State Election Commission, M. P. vs Ras Bihari Raghuwanshi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1995 Supreme(MP) 189

1995 JLJ 651
V.L. Bhat, C.J. and R.S. Garg, J.
State Election Commission, M.P. v. Ras Bihari Raghuwanshi and others
L.P.A. No. 141 of 1994; against the order passed by Hon‘ble Justice Shri A.K. Mathur, J., in Writ Petition No. 2102 of 1994; Decided on 3.2.1995.

Advocates:
S.L. Saxena for appellant; S.S. Jha for respondent No. 1.

Headnote:(1) Panchayat Raj Adhiniyam, 1993 (M.P.) -- Ss. 42 and 122 -- Panchayat Election Rules, 1994 (M.P.) -- R. 33 (6) -- Returning Officer rejecting two nomination papers out of three -- his order is final -- cannot be challenged or suo motu reviewed by State Election Commission under S. 42 -- remedy against is only election petition under S. 122.
        (2) Constitution of India -- Art. 243 O (b) -- Panchayat Election Rules, 1994 (M.P.) -- R. 33 (6) --- scheme under the provision -- is one that order of Returning Officer under R. 33 (6) is final -- can only be challenged in election petition alone.
        The scheme of Art. 243 O (b) read in the light of rule 33 (6) is that the decision of the Returning Officer shall be final, subject to review only by the Election Tribunal in a duly filed Election Petition. The order passed by the Returning Officer accepting or rejecting the nomination paper is not susceptible to review at any other stage or by any authority other than Election Tribunal. It is significant to note that the Rules do not provide an appeal to the Commission or revision suo-motu or otherwise to the Commission against the order of the Returning Officer. These circumstances make it clear that whatever be the amplitude of the power vested in the Commission under Art. 243K and section 42 of the Act, it does not take in the power of up-setting the final decision arrived at by the Returning Officer accepting or rejecting the nomination paper. The Election Commission has no jurisdiction to interfere at that stage in that matter. AIR 1952 SC 64, AIR 1978 SC 851, AIR 1984 SC 921, (1985) 4 SCC 628 and (1994) 3 SCC 1 discussed and followed. [Para 17
        (3) Panchayat Election Rules, 1994 (M.P.) -- Rr. 43 and 33 (6) -- countermanding poll due to death of contesting candidate leaving one in the field -- not the one and same thing envisaged under R. 33 (6) i.e. rejection of nomination papers of all leaving only one in the field -- Election Commission cannot cancel the election in case of rejection of nomination paper.
        It is difficult to agree that rule 43 is only one instance of the power of the Commission. On the other hand, it is a specific provision to deal with case of death of a candidate in all cases. We fail to see how the power of countermanding the poll leading to fresh election can be exercised in the case of rejection of nomination papers of all candidates except one particularly in view of Art. 2430 (f) and Rule 33 (6) of the Rules. [Para 18
        (4) Constitution of India -- Arts. 243 O and 226 -- State Election Commission interfering in election process without jurisdiction -- provision under does not bar interference by High Court. [Para 19
        (5) Panchayat Election Rules, 1994 (M.P.) -- Rr. 17 (3) and 33 (6) -- nomination papers rejected by the returning officer -- Election Commission cannot act under R. 17 (3) to set aside the order of returning officer.
        Illegal rejection or acceptance of nomination papers, even illegal rejection of nomination papers leading to the only one candidate being left in the field is capable of correction by the Election Tribunal, thereby safeguarding the legality and purity of election. Rule 17 (3) of the Rules cannot be regarded as empowering the Commission to interfere with the order passed by the Returning Officer accepting or rejecting the nomination papers. [Para 21
        ¼1½ iapk;r jkt vf/kfu;e] 1993 ¼e-iz-½ && /kkjk 42 rFkk 122 && iapk;r fuokZpu fu;e] 1994 ¼e-iz-½ && fu- 33 ¼6½ && fjVfuZax vkfQlj }kjk rhu esa ls nks ukefunsZ‘kui= ukeatwj fd, x, && mldk vkns‘k vafre gS && vk{ksfir vFkok /kkjk 42 ds v/khu jkT; fuokZpu vk;ksx }kjk Loizsj.kk ls iqufoZyksfdr ugha fd;k tk ldrk && mlds fo:) mipkj dsoy /kkjk 122 ds v/khu fuokZpu vthZ gSA
        ¼2½ Hkkjr dk lafo/kku && vuq- 243 .k ¼[k½ && iapk;r fuokZpu fu;e] 1994 ¼e-iz-½ && fu- 33 ¼6½ && mica/k ds v/khu Ldhe && ;g gS fd fu- 33 ¼6½ ds v/khu fjVfuZax vkfQlj dk vkns‘k vafre gS && dsoy fuokZpu vthZ esa gh vk{ksfir fd;k tk ldrk gSA
        fu- 33 ¼6½ dks fopkj esa j[krs gq, vuq- 243 .k ¼[k½ ds ikB ls mldh Ldhe ;g gS fd fjVfuZax vkfQlj dk vkns‘k vafre gksxk] ftldk iqufoZyksdu dsoy fuokZpu vf/kdj.k }kjk] lE;d~ :i ls Qkby dh xbZ fuokZpu vthZ esa fd;k tk ldsxkA fjVfuZax vkfQlj }kjk ukefunsZ‘ku Lohdkj vFkok ukeatwj djrs gq, ikfjr vkns‘k dk vU; fdlh Hkh izØe ij vFkok fuokZpu vf/kdj.k ds vU;Fkk fdlh Hkh izkf/kdkjh }kjk iqufoZyksdu ugha fd;k tk ldsxkA bls fopkj esa ysuk egRoiw.kZ gksxk fd fu;e }kjk fjVfuZax vkfQlj ds vkns‘k ds fo:) vk;ksx ds le{k vihy ;k vk;ksx ds le{k Loizsj.kk ls vFkok vU;Fkk iqufoZyksdu micaf/kr ugha gSa bu ifjfLFkfr;ksa ls Li"V gS fd vuq- 243V rFkk vf/kfu;e dh /kkjk 42 }kjk vk;ksx esa fufgr ‘kfDr dk foLrkj tks Hkh gks] og mlesa fjVfuZax vkfQlj }kjk ukefunsZ‘kui= dks Lohdkj ;k ukeatwj djrs gq, fd, x, vafre fofu‘p; dks myV nsus dh ‘kfDr ugha ysrkA fuokZpu vk;ksx dks ml izØe ij ml ekeys esa gLr{ksi djus dh dksbZ vf/kdkfjrk ugha gSA , vkb vkj 1952 ,l lh 64] , vkb vkj 1978 ,l lh 851] , vkb vkj 1984 ,l lh 921] ¼1985½ 4 ,l lh lh 628 rFkk ¼1994½ 3 ,l lh lh 1 foosfpr rFkk vuqlfjrA ¿ iSjk 17
        ¼3½ iapk;r fuokZpu fu;e] 1994 ¼e-iz-½ && fu- 43 rFkk 33 ¼6½ && fuokZpu ds fy, ,d dks NksM+rs gq, fuokZpu yM+us okys vH;FkhZ dh e`R;q ds dkj.k ernku izR;kfn"V fd;k tkuk && fu- 33 ¼6½ ds v/khu ifjdfYir ckr vFkkZr~ fuokZpu ds fy, dsoy ,d dks NksM+rs gq, lHkh ds ukefunsZ‘kui=ksa dh ukeatwjh ds leku ugha gS && ukefunsZ‘kui=k dh ukeatwjh dh n‘kk esa fuokZpu vk;ksx fuokZpu jn~n ugha dj ldrkA
        blls lger gksuk dfBu gS fd fu;e 43 vk;ksx dh ‘kfDr dk dsoy ,d gh n`"Vkar gSa blds nwljh vksj] lHkh ekeyksa esa vH;FkhZ dh e`R;q ds ekeys ls fuiVus ds fy, fofufnZ"V mica/k gS ge ;g ns[kus esa vleFkZ gSa fd u, fuokZpu esa ifj.kkfer gksus okyh ernku dks izR;kfn"V djus dh ‘kfDr ,d dks NksM+ dj lHkh ukefunsZ‘kui=ksa dh ukeatwjh ds ekeys esa fo‘ks"kr% vuq- 243.k ¼p½ rFkk fu;e ds fu- 33 ¼6½ dks n`f"V esa j[krs gq,] dSls iz;ksx dh tk ldrh gSA ¿ iSjk 18
        ¼4½ Hkkjr dk lafo/kku && vuq- 243 .k rFkk 226 && fcuk vf/kdkfjrk ds jkT; fuokZpu vk;ksx }kjk fuokZpu izfØ;k esa gLr{ksi && mica/k esa mPp U;k;ky; }kjk gLr{ksi oftZr ugha gSA ¿ iSjk 19
        ¼5½ iapk;r fuokZpu fu;e] 1994 ¼e-iz-½ && fu- 17 ¼3½ rFkk 33 ¼6½ && fjVfuZax vkfQlj }kjk ukefunsZ‘kui= ukeatwj && jkT; fuokZpu vk;ksx fjVfuZax vkfQlj ds vkns‘k dks vikLr djus ds fy, fu- 17 ¼3½ ds v/khu dkjZokbZ ugha dj ldrkA
        ukefunsZ‘kui=ksa dks voS/k ukeatwjh ;k Lohd`fr] ;gk¡ rd fd fuokZpu ds fy, dsoy ,d vH;FkhZ dks NksM+rs gq, ukefunsZ‘kui=ksa dh voS/k ukeatwjh Hkh fuokZpu vf/kdj.k }kjk ‘kqf)‘kD; gS] ftlds }kjk fuokZpu dh fof/kdrk rFkk fo‘kqf) jf{kr gSA fjVfuZax vkfQlj }kjk ukefunsZ‘kui=ksa dks Lohdkj vFkok ukeatwj djrs gq, ikfjr vkns‘k ds lkFk gLr{ksi djus ds fy, fu;eksa ds fu;e 17 ¼3½ }kjk vk;ksx dks l‘kDr fd;k x;k gS] ;g ugha le>k tk ldrkA ¿ iSjk 21

JUDGMENT

V.L. Bhat, C.J. -- 1. Thse appeals are filed by the State Election Commission constituted under Art. 243-K of the Constitution and section 42 of the M.P. Panchayat Raj Adhiniyam, 1994 (for short 'the Act') against the common order passed by the learned Single Judge in W.P. Nos. 2102/94, 2100/94 and 2101/94 filed by the respective first respondents in these appeals.

2. The cases arise in regard to the election for the post of one Sarpanch in each of three Panchayats, Utiyakalan, Ahmadpur and Maheshwar respectively. We will refer to the facts in L.P.A. No. 142/94 which relates to a seat reserved for ladies. Three ladies, namely, first respondent Pramilabai, fifth respondent Manoramabai and one Shakunbai, filed nominations. On the day of scrutiny of nominations namely, 3.5.1994, the nominations of Manoramabai and Shakunbai were rejected by the Returning Officer, thereby leaving only one candidate with a valid nomination. Rejection of nomination papers was effected because of alleged unauthorised over-writing in the nomination papers in regard to serial number and the ward number in the voters lists of the candidate and the proposer. 5.5.1994 was the last date fixed for withdrawal of candidature and 7.6.1994 was the date fixed for polling. After the expiry of the last day for withdrawal, Returning Officer shall prepare and publish in the prescribed forms a list of contesting candidates those nominations have been finally accepted and who have not withdrawn their candidature within the period prescribed, and list of contesting candidates shall be affixed on the notice board of the office of the Returning Officer and copies supplied to the contesting candidates. If for any seat there remains only one candidate whose nomination is found valid, Returning Officer shall forthwith declare the candidate duly elected to fill the seat and inform the Commission through District Election Officer. That could have been done only after the time prescribed for the withdrawal of nomination on 5.5.1994. A voter complained to the District Returning Officer regarding the rejection of nomination papers and the latter reported to the Secretary to the Commission. The Commission on 20.5.1994 took a decision to countermand the election and to order re-election on the ground that nomination paper had been tampered with by an Election Officer. The writ petition was filed on 28.5.1994 seeking to quash the order and seeking a direction for declaration of results of the election.

3. In the two other cases also, all but one of the nominations filed for each of the seats were rejected for a similar reason and the Election Commission took a similar decision. Writ Petitions were filed seeking similar reliefs as in W.P. No. 2100 of 1994.

4. The writ petitioners contended before the learned Single Judge that the decision of Returning Officer being final, the Election Commission could not have interfered with the remaining process of election which consisted of declaration of the results, that once election process commenced no authority can impede the same, that the impugned decisions were in violation of principles of natural justice inasmuch as the sole candidate whose nomination paper was accepted was not given an opportunity and the Commission had no jurisdiction to countermand election and order re-election which could be secured only by filing an election petition. The Election Commission rebutted these submissions and asserted that the general power of superintendence or control vested in it included also the power to countermand election and order fresh election, such an act done during the process of election cannot be challenged in Court as sought to be done by the petitioners. It is also contended that since one of the election officers himself was responsible for the tempering of nomination papers, it was necessary that the Election Commission should interfere.

5. Learned Single Judge on review of the provisions of the Constitution and the statu

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1995 Supreme(MP) 189

1995 JLJ 651V.L. Bhat, C.J. and R.S. Garg, J.State Election Commission, M.P. v. Ras Bihari Raghuwanshi and othersL.P.A. No. 141 of 1994; against the order passed by Hon‘ble Justice Shri A.K. Mathur, J., in Writ Petition No. 2102 of 1994; Decided on 3.2.1995.

Cases Referred (8)

1995 JLJ 651
V.L. Bhat, C.J. and R.S. Garg, J.
State Election Commission, M.P. v. Ras Bihari Raghuwanshi and others
L.P.A. No. 141 of 1994; against the order passed by Hon‘ble Justice Shri A.K. Mathur, J., in Writ Petition No. 2102 of 1994; Decided on 3.2.1995.