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2015 Supreme(Guj) 661
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
C.L. SONI, J.
NAYAK CHUNIBEN CHANDUBHAI & ORS. - PETITIONERS
VERSUS
CHIEF ELECTION COMMISSIONER & ANR. - RESPONDENTS
SPECIAL CIVIL APPLICATION NO. 8464 of 2015
Decided on : 18.06.2015
Advocate Appeared:
MR. M.A. KHARADI, for the Petitioners No. 1-5
MS. ROOPAL R. PATEL, MS. MANISHA LAVKUMAR, GP for the Respondents No. 1-2
Headnote:
Gujarat Panchayats Act, 1993 - Sections 30 (kk) - Election disqualification - Rival candidates raised objections against the nomination of the petitioners that the petitioners did not have Toilets and the certificate given by the Talati of the village was false, the Returning Officer got the physical verification made at the residential places of the petitioners through the Taluka Development Officer. After the site inspection when it was reported that the petitioners have Toilets but with incomplete closet (cesspool) commonly known as Khalkuwa, the Returning Officer refused to accept the nomination of the petitioners - By the present petition filed under Article 226 of the Constitution of India, the petitioners have challenged order passed by the respondent No. 2 the Returning Officer whereby the nomination papers of the petitioners to contest election as members of the Gram Panchayat came to be rejected and petitioners have also prayed for direction to allow them to contest election of the Gram Panchayat which was scheduled - Therefore in the eyes of law having only toilet with incomplete cesspool is no facility of water closet or privy accommodation at the place of residence of a person to qualify to be a member of Panchayat - Rejection of nomination paper held to be proper -Objection raised that petitioners were not having water closets (Toilets) at places of their ordinary residences - Returning officer held summary inquiry to decide objections under Rule 15 - Returning officer, therefore, decided objections on the next day - Rule 15 is almost pari materia to Section 36 of Representation of the People Act, 1951 - Rule 15(5) provides for scrutiny of nominations on the appointed day - However such would not prohibit taking of time by Returning officer to decide the objection after summary enquiry - However order of Returning officer under Rule 15 cannot estop petitioners form calling in question decision of Returning officer by election petition - there was also violation of mandatory provision of Rule 15 inasmuch as the election declared was invalid declaration as the same was the last date for withdrawal of the nominations and required to note that when the Returning Officer found that the petitioners did not qualify to contest the election, their nominations were rejected. The remaining candidates since were required to be declared elected uncontested, declaration of the result could not be a ground to say that the decision taken by the Returning Officer of the rejecting the nomination of the petitioners would vitiate the result of election. If any irregularity is committed in the matter of declaration of result of the election, the same could be urged by election petition where the competent authority may decide on the basis of evidence which may be led by the parties - The Court does not find any error in the view taken by the Returning Officer as the cesspool is the main source to drain into it the discharges and filths to make the Toilet workable and with incomplete cesspool, no person can say that he is having facility of water closet or privy accommodation at the place of his ordinary residence and such person therefore could not be said to be qualified to be a member of the Panchayat. Whether the report of Taluka Development Officer was incorrect or got up could be examined by competent Court in the election petition. It is always open to the petitioners to challenge the decision of the Returning Officer and the election by election petition - Petition is rejected - Interim Relief stands vacated - Petitioner dismissed - Evidence Act, 1872 - Section 115.
1. By the present petition filed under Article 226 of the Constitution of India, the petitioners have challenged order dated 05.05.2015 at Annexure 'C' passed by the respondent No. 2 the Returning Officer whereby the nomination papers of the petitioners to contest election as members of the Gram Panchayat came to be rejected. The petitioners have also prayed for direction to allow them to contest election of the Gram Panchayat which was scheduled on 17.05.2015.
2. It appears that since rival candidates raised objections against the nomination of the petitioners that the petitioners did not have Toilets and the certificate given by the Talati of the village was false, the Returning Officer got the physical verification made at the residential places of the petitioners through the Taluka Development Officer. After the site inspection when it was reported that the petitioners have Toilets but with incomplete closet (cesspool) commonly known as Khalkuwa, the Returning Officer refused to accept the nomination of the petitioners.
3. Learned Advocate Mr. M.A. Kharadi for the petitioners submitted that as per Section 30 (kk) of the Gujarat Panchayat Act, 1993("the Act") a person is not qualified to be member of Panchayat if he is not having Toilet at his place of residence, however, as per the report of Taluka Development Officer, the petitioners were found to have Toilets but the cesspool attach to Toilets were stated to be incomplete in the report and only on this count, the nomination papers of the petitioners were rejected. Mr. Kharadi submitted that once the petitioners were found to have Toilets attached with their residential premises, the petitioners could be said to have satisfied the requirement to have facility of water closet or privy accommodation at their places of ordinary residence, therefore, the Returning Officer was not justified in rejecting the nominations of the petitioners. Mr. Kharadi submitted that the Returning Officer has otherwise also acted in gross violation of Rule 15 of the Gujarat Panchayat Elections Rules, 1994 ("the Rules"), in the matter of holding scrutiny of the nomination papers of the petitioners. Mr. Kharadi submitted that as per sub-Rule (5) of Rule 15, the Returning Officer was required to hold and complete the scrutiny of the nomination papers on the appointed date which was 04.05.2015 without any adjournment to the proceedings of the scrutiny of the nomination papers. However, the Returning Officer completed such scrutiny on the next day, i.e. on 05.05.2015, which was in gross violation of mandatory requirement of sub-Rule (5) of Rule 15. Mr. Kharadi submitted that the Returning Officer has also violated the rule as regards declaration of the result of the election inasmuch as the results were declared on the last date of withdrawal of the nomination on 05.05.2015 instead of declaring on the next date of withdrawal of the nomination papers. Mr. Kharadi submitted that in fact, on 08.05.2015, this Court granted interim protection against declaration of the result, however, by manipulating the documents result was stated to be declared on 05.05.2015 to show that there is no breach of interim order. Therefore, this Court may take serious view of the matter and set aside the result of the election and direct to hold fresh election.
4. Learned Advocate Ms. Roopal R. Patel appearing for the respondent No.1 submitted that the Returning Officer has not committed any illegality in rejecting the nominations of the petitioners as the Returning Officer found that the petitioners did not satisfy legal requirement to have facility of water closet or privy accommodation at the place of their residential premises on the basis of the summary inquiry made by him. Ms. Patel submitted that the Returning Officer is not stopped from holding summary inquiry during scrutiny of the nomination papers, when summary inquiry is held, it may not be possible for the Returning Officer to complete the scrutiny of the n
