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HIGH COURT OF MADHYA PRADESH
Bishambhar Dayal C.J. & Shivdayal, JJ.
Kishanchand & others
Vs.
Supervising Officer, Municipal Committee Kurwai & others
M.P. No. 296 of 1969
Decided On : 11-8-1969
The nomination forms were duly filled in, except that the name of the Municipality was not entered. An amendment made in the Form IV in 1966 directed the name of the Municipality to be added in the Form, but the amendment was not incorporated in the official publication of 1968. The un-amended form was supplied by the Supervising Officer for price. On the security, the Supervising Officer checked the nomination paper and found the names of the candidate, the seconder and proposers in electoral rolls of the Municipality. The nomination papers were rejected on the ground that the name of the Municipal Committee to which election was sought was not mentioned.
Held: The omission was by no means one of substance. It was of mere form and technical in character. It could not be rejected in view of clause (vi) of sub-rule (1) of Rule 13. [Para 11
(2) Municipalities Act, 1961 (M.P.) - S 20(1) - nomination form illegally rejected - election can be challenged by election petition - jurisdiction of High Court not barred - Constitution of India - Art. 226.
(3) Constitution of India - Art. 226 - alternative remedy of election petition - not a bar to the writ jurisdiction of the High Court - interference when may be made - Municipalities Act, 1961 (M.P.) - S. 20 (1).
The powers of the High Court under Article 226 of the Constitution cannot be taken away or curtailed by legislation, except by amendment of the Constitution. Any law which would seek to take away or restrict the jurisdiction of the High Court under Article 226 would be void. The High Court is entitled to exercise the powers under Article 226 free from all fetters whether they are directly or indirectly imposed. 1959 SCR 993 relied on.
By enacting sub-section (1) of section 20 of the M.P. Municipalities Act, 1961, the legislature excluded every other remedy under any law, but the jurisdiction of the High Court under Article 226 has not been, and cannot be, taken away, however emphatic the words may be. 1952 SCR 218 distinguished. [Para 13
Where the rejection of nomination paper was flagrantly wrong and arbitrary, and no enquiry or evidence is required to reach that conclusion, and the civic rights of the petitioners are liable to be jeopardised, the High Court may interfere under Art. 226. The provision of an alternative remedy is neither efficacious nor a bar to the jurisdiction of the High Court. 1965 JLJ 248 followed. [Para 14
If eventually, as a result of an ejection petition, when it will be held that the rejection of nomination paper was improper, the election would be set aside, but there is no provision for setting back the clock and the selection of the councillors and the election of the President and Vice-President will not, ipso facto, become void. [Para 14
(4) Constitution of India - Art. 226 - writ petition alleging mala fide - return should be filed.
When an allegation of mala fide is made against a respondent in a petition under Article 226, it is only proper that he should acquaint the High Court of the factual position by filing a return. [Para 16
Shivdayal, J.
1. This is a petition under Article 226 of the Constitution.
2. The Tahsildar, Kurwai (respondent No. 1), was appointed Supervising Officer for the conduct of elections to the Kurwai Municipality. The last date for filing nomination papers was the 1st July 1969; the date of scrutiny was the 7th July and the date for polling was fixed as 7th August 1969.
3. Petitioners No. 1 to 6 were candidates from wards No. 1 to 6 respectively. On the date of scrutiny, their nomination papers were rejected by the Supervising Officer, and their appeal to the Sub-Divisional Officer was also dismissed, on the ground that the name of the municipality was not entered at the top of the printed nomination forms which they had filed. It is not disputed before us that that was the only defect.
4. As a result of the rejection of the nomination paper of petitioners No. 1, 3, 4, 5, & 6 the respondents No. 4, 6, 7, 8 & 9 were declared elected unopposed from wards No. 1, 3, 4, 5 & 6 respectively on July 7, 1969. This is not in dispute. It is also not in dispute that as a result of the rejection of the nomination paper of petitioner No. 2 and the withdrawal of respondent No. 10, who was described by the petitioners as a dummy candidate from ward No. 2, respondent No. 5 was also declared elected unopposed on July 16, 1969. In short, the respondents No. 4 to 9 being declared elected as unopposed, the polling of August 7, 1969, became unnecessary.
5. The petitioners' contention is that the rejection of their nomination papers is in utter violation of the law and that the Supervising Officer was in league with respondents No. 4 to 10. It is contended that now a meeting of the councillors so elected will be called for the purpose of selecting councillors as required by section 19 of the M.P. Municipalities Act, 1961, (hereinafter called the Act). The elected councillors and the selected councillors will then elect the President and Vice-Presidents under section 43 of the Act. The petitioners would be deprived of their valuable right to participate in the selection of candidates under section 19(b) and the right to contest the President-ship and Vice- President-ship under section 43 of the Act.
6. The Supervising Officer and the Chief Municipal Officer of the Kurwai Municipality were served. They acknowledged receipt of notice of this petition but did not enter appearance before us to oppose the petition. A return was filed on behalf of respondents No. 4 to 9, Shri B.C. Verma appeared for them and argued the case before us. Shri Munshi, learned Government Advocate also addressed us.
7. The petitioners produced before us an authorised publication. It is entitled as "The Madhya Pradesh Municipalities (Preparation, Revision and Publication of Electoral, Rolls, Ejection and Selection of Councillors) Rules, 1962, as published under Notification No. 100-U-XVIII, dated the 25 July 1962, and incorporating all amendments issued from time to time." On the title page is also printed "Bhopal, Government Central Press, 1968". On the first page, where the rules begin, at the top is again repeated the same title (as we have reproduced above from the title page) including the words "and incorporating all amendments issued from time to time". At page 25 of this booklet, there is "form IV [Clause (i) of sub-rule (1) of rule 13] Nomination Paper." This form of nomination paper does not contain any column for entering the name of the municipality for the election to which the nomination paper is meant. The columns are:-
"1. Name of the Ward for which the candidate is nominated.
2. Name of candidate.
3. Father's/Husband's name.
4. Age
5. Address
6. Occupation.
7. Actual caste in case of candidate belonging to Scheduled Caste or Scheduled Tribes.
8. Number of the candidate in the electoral roll of the wards in which he is registered as an elector.
9. Name of the proposer.
10. Number of the proposer in the electoral roll or the ward.
11. Signature of the proposer.
12. Name of the seco
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