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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
SANGEET LODHA, J.
YASH MIDDHA – Appellant
VS.
THE STATE OF RAJASTHAN & ORS. – Respondent
(S.B.CIVIL WRIT PETITION NO.8230/14)
Decided on: 21st November, 2014
Constitution of India , 1950 - Article 226 , 243 P to 243 ZG ,329(b) and 243-O – Indian Penal Code, 1860 - Section 452, 323 and 34 - Representation of the People Act, 1951 - Rajasthan Municipalities Act, 2009 - Section 24(iii) – Election - Disqualified to contest election - Directed against order - Petitioner being aspirant to contest election as Member from Ward No.21 of Municipal Council filed his nomination form in prescribed proforma alongwith requisite declaration/undertaking and affidavit on - On date fixed for scrutiny of nomination papers Returning Officer examined nomination papers - Petitioners nomination paper has been rejected by Returning Officer on ground that since cognizance has been taken and charges have been framed by criminal court of competent jurisdiction against petitioner for offences - He is disqualified to contest election by virtue of provisions - Petitioner in declaration attached to the nomination form, it was candidly disclosed that a criminal case for offences has been registered against him and cognizance has been taken by court of Chief Judicial Magistrate - It is submitted that nomination form was accompanied by order dated passed by court taking cognizance and fact regarding cognizance having been taken was also mentioned in affidavit filed alongwith the nomination form - It is stated that though order dated of taking cognizance was available on record, Returning Officer acting in arbitrary manner has rejected the nomination form holding petitioner disqualified for contesting election - It is submitted that having come to know about rejection of nomination paper petitioner made a detailed representation to Returning Officer – Held, Petitioner has made declaration in terms that court of Chief Judicial Magistrate has taken cognizance for offences under Section 452, 323 & 34 IPC and charges have also been framed against petitioner - It is true that there are no separate columns provided in prescribed declaration form for furnishing details of the order taking cognizance and framing charge but then fact remains that petitioner has not clarified position in this regard while furnishing declaration as aforesaid - In considered opinion of this court disputed facts in this regard can only be adjudicated on the basis of evidence to be led by parties and therefore on facts and in circumstances of case even otherwise there is no reason as to why this court should enter into a roving inquiry into question of facts by passing remedy of raising election dispute available to petitioner under provisions of the Act moreso, when Article 243 ZG specifically creates a bar against questioning of election to a Municipality except by way of election petition as provided for by or under law made by legislature of the State - Court is firmly of the opinion that present case does not suggest any special feature warranting interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India in midst of elections by passing remedy of election petition available to petitioner under Section 31 of Act after elections are over - Petition fails, it is hereby dismissed
1. This writ petition is directed against order dated 12.11.14 of the Returning Officer rejecting the nomination paper filed by the petitioner for contesting the election as Member from Ward No.21 of Municipal Council, Sri Ganganagar, on the ground that he is disqualified to contest the election by virtue of provisions of Section 24(iii) of Rajasthan Municipalities Act, 2009 (for short “the Act”).
2. The relevant facts are that the State Election Commission, Rajasthan, issued notification dated 7.11.14 for intended elections of various municipalities including the Municipal Council, Sri Ganganagar. As per the programme notified, the nominations were to be filed during the period from 7.11.14 to 11.11.14. The date for scrutiny of the nomination was fixed as 12.11.14. The last date for withdrawal of the candidature was fixed as 14.11.14 and the date and hours of polls, if necessary, is fixed as 22.11.14.
3. The petitioner being aspirant to contest the election as Member from Ward No.21 of Municipal Council, Sri Ganganagar filed his nomination form in the prescribed proforma alongwith the requisite declaration/undertaking and affidavit on 10.11.14. On the date fixed for scrutiny of the nomination papers, the Returning Officer examined the nomination papers. The petitioner's nomination paper has been rejected by the Returning Officer on the ground that since cognizance has been taken and charges have been framed by criminal court of competent jurisdiction against the petitioner for offences under Section 452 & 323/34 IPC, he is disqualified to contest the election by virtue of provisions of Section 24(iii) of the Act.
4. According to the petitioner in the declaration attached to the nomination form, it was candidly disclosed that a criminal case for offences under Section 452, 323/34 IPC has been registered against him and cognizance has been taken by the court of Chief Judicial Magistrate, Sri Ganganagar. It is submitted that the nomination form was accompanied by order dated 30.9.14 passed by the court taking cognizance and the fact regarding cognizance having been taken was also mentioned in the affidavit filed alongwith the nomination form. It is submitted that though the cognizance has been taken by the criminal court of competent jurisdiction for commission of offences under Section 452, 323/34 IPC but no charges have been framed against the petitioner till this date and therefore, the provisions of Section 24(iii) of the Act are not attracted in the matter. It is stated that though the order dated 30.9.14 of taking cognizance was available on record, the Returning Officer acting in arbitrary manner, has rejected the nomination form holding the petitioner disqualified for contesting election. It is submitted that having come to know about the rejection of the nomination paper, the petitioner made a detailed representation to the Returning Officer at 4.45 p.m. on 12.11.14, but to no avail. Hence, this petition.
5. In response to the notice issued, an affidavit has been filed on behalf of the Returning Officer taking the stand that the petitioner submitted his two nomination papers; one on 10.11.14 and another on 11.11.14 wherein it was specifically mentioned that the cognizance has been taken and charges have been framed by the court against him for offences under Section 452, 323 and 34 IPC. It is submitted that the stand taken by the petitioner that the order dated 30.9.14 passed by the trial court was submitted alongwith the nomination form is outrightly false and incorrect and no such order was ever presented before the concerned officer with the nomination paper or at/before the time of scrutiny. It is submitted that at the time of scrutiny, the petitioner was present personally, however, the petitioner failed to point out any such mistake and further no objection was raised by the petitioner at any time during
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