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2018 Supreme(Gau) 1566
IN THE HIGH COURT OF GAUHATI AT AIZAWL
NELSON SAILO, J.
Sumir Tongchangya - Petitioner
Versus
Mizoram State Election Commission and Ors. - Respondents
WP(C) No. 43 of 2018 with IA(C) No 41 of 2018
Decided On : 22-06-2018
For The Petitioner: Mr. O Lalramzauva, Mr. J. Lalremruata Hmar, Mr. H. Zodinsanga, Ms. Vanlalhriati and Mr. H. Lalramhluna
For The Respondent: Mr. A.K. Rokhum and Mr. B. Lalramenga
Headnote:
Constitution of India, 1950 - Articles 226, 136 and 227 - People Act, 1951 - Sections 100, 33, 80, 80A, 81 and 105 - Elections Nomination - Political Party - Petitioner had filed his nomination for Fultuli MDC Constituency for which he was proposed and seconded whose names are in electoral roll for said Constituency - However on scrutiny of nomination paper of petitioner Returning Officer upon finding seconder to be an employee under CADC rejected nomination of petitioner vide Certificate of Scrutiny and vide Certificate of Election declared respondent No - 3 to be duly elected as MDC for Fultuli MDC Constituency - He submits that so long as a person is included in Electoral Roll of Constituency and is not subject to any disqualification for being so included under CCB Rules he or she may subscribe as a proposer or seconder however only with restriction that a proposer or seconder can propose or second for one candidate only - Held, However for purpose of present case it may be noticed that rule of CCS Conduct Rules clearly prohibits a Government servant from being associated with any political party or any organization which takes part in politics - Further Government servant is also prohibited to subscribe in aid of any political movement or activity or assist such movement or activity in any manner - Petitioners seconder to his nomination is admittedly an employee of CADC though on Muster Roll basis - Returning Officer upon making a verification from Acquiescence Roll came to conclusion that seconder was an employee of CADC and therefore his nomination was only invalid - It may further be noticed that provisions of CCS Conduct Rules was not before Apex Court when case was being considered and in fact it could not have been since CCS Conduct Rules has only been framed in year - I am of considered view that exercise of discretionary powers conferred upon High Court in given facts and circumstances of case is not called for writ petition insofar as first issue formulated is concerned is therefore found to be without any merit - Petition stands disposed of.
1. Heard Mr. C. Lalramzauva, the learned senior counsel assisted by Mr. H. Lalramhluna, the learned counsel for the writ petitioner. Also Mr. A.K. Rokhum, the learned counsel appearing for the respondent Nos. 1 and 2 and Mr. B. Lalramenga, the learned counsel for the respondent No. 3.
2. By this application under article 226 of the Constitution of India, the petitioner has challenged the validity/legality of the rejection of his nomination vide Certificate of Scrutiny dated 5.4.2018 and also the Certificate of Election declaring the respondent No. 3 as duly elected as Member of the CADC for the 18-Fultuli MDC Constituency.
3. The petitioner had filed his nomination for the 18-Fultuli MDC Constituency for which he was proposed by Sh. Priyo Lai and seconded by Sh. Tengkhi Muni Tongchangya whose names are in the electoral roll for the said Constituency. However, on scrutiny of the nomination paper of the petitioner, the Returning Officer upon finding the seconder to be an employee under CADC rejected the nomination of the petitioner vide Certificate of Scrutiny dated 5.4.2018 and vide Certificate of Election dated 6.4.2018 declared the respondent No. 3 to be duly elected as MDC for the 18-Fultuli MDC Constituency.
4. The petitioner being aggrieved with the denial of contesting the said MDC Election for the 18-Fultuli MDC Constituency has approached this court for invoking writ jurisdiction under article 226 of the Constitution of India.
5. Appearing for the writ petitioner, Mr. C. Lalramzauva, the learned senior counsel has led me to the notification dated 23.3.2018 (Armexure 1) and the Certificate of Scrutiny dated 5.4.2018 (Annexure 3) and contends that the date for scrutinizing the nominations was fixed as 5.4.2018 and the Returning Officer upon scrutinizing the nomination paper of the petitioner, declared his nomination to be invalid on the ground that his seconder was an employee of the Chakma Autonomous District Council (CADC). The learned senior counsel then refers to rules 151(3), 151(4) and 153 of the Chakma Autonomous District Council (Constitution, Conduct of Business, etc.) Rules, 2002 (‘CCB Rules’) and contends that there is no provision for disqualifying a candidate from contesting the election for membership to the CADC on the ground that the seconder is an employee of the CADC. He submits that so long as a person is included in the Electoral Roll of the Constituency and is not subject to any disqualification for being so included under the CCB Rules, he or she may subscribe as a proposer or seconder, however, only with the restriction that a proposer or seconder can propose or second for one candidate only.
6. The learned senior counsel referring to rules 193, 194 and 195 of the CCB Rules, submits that ordinarily, the remedy for the person aggrieved against the election of a ‘Returned Candidate’ is to file an election petition. However, the remedy against the rejection of a nomination on the ground that the seconder is a Government servant is not one of the grounds provided by the CCB Rules. Therefore, as no alternative remedy is available to the petitioner, he is before this Court through the present writ petition. He also refers to section 100(c) of the Representation of the People Act, 1951 (‘Act of 1951’) and submits that unlike the CCB Rules, there is a provision for filing an election petition on the ground that the nomination was improperly rejected. However, as there is no similar provision in CCB Rules, this court has the jurisdiction to entertain the writ petition filed under article 226 of the Constitution.
7. Mr. C. Lalramzauva, the learned senior counsel further submits that the respondent No. 3 cannot be a ‘returned candidate’ within the meaning of the CCB Rules inasmuch as in terms of rule 193(e) of the same Rules, in order to be a ‘returned candidate’, the name of the candidate should have been published under the CCB Rules as duly elected. That the publication of the name of the elected candid
