HIGH COURT OF MADHYA PRADESH: BENCH INDORE BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA &

HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

ON THE 4^th OF JULY, 2022 WRIT APPEAL No. 767 of 2022 Between:-

MADHYA PRADESH ELECTION COMMISSION THROUGH

1. CHIEF ELECTION OFFICER 58, ARERA HILLS BHOPAL (MADHYA PRADESH)

DISTRICT ELECTION OFFICER (COLELCTOR) COLLECTOR

2.

OFFICE, RAJGARH (MADHYA PRADESH)

DEPUTY ELECTION OFFICER UPKHAND SARANGPUR, 3.

RAJGARH (MADHYA PRADESH)

RETURNING OFFICER (PANCHAYAT) VIKASKHAND

4.

SARANGPUR, RAJGARH (MADHYA PRADESH)

.....APPELLANT (KAMAL NAYAN AIREN, LEARNED COUNSEL FOR THE APPELLANTS)

AND RANI W/O SHRI PAWAN KUMAR , AGED ABOUT 30 YEARS, 1. OCCUPATION: HOUSEWIFE VILLAGE MAU, TEHSIL SARANGPUR (MADHYA PRADESH)

STATE OF M.P., PRINCIPAL SECRETARY PANCHAYAT AND

2. RURAL DEVELOPMENT DEPARTMENT VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)

.....RESPONDENTS (MANISH KUMAR VIJAYVARGIYA APPEARED FOR RESPONDENT NO.1)

This appeal coming on for orders this day, JUSTICE VIVEK RUSIA passed the following:

O R D E R

The appellants (respondents No.2 to 5 in the writ petition)

have filed the present writ appeal against order dated 28.6.2022 passed in W.P. No.14023/2022 whereby the learned Writ Court has directed them to allow the writ petitioner to cure the defects in nomination papers within 2 days and to proceed further as per the election program.

The facts of the case, in short, are as under :

1. The State Election Commission has declared the election program for Panchayat elections on 27.5.2022 under the provisions of Rule 31 of M.P. Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as “Nirvachan Niyam, 1995” for short). The writ petitioner submitted her Nomination Form for contesting the election for the post of Surpanch for Gram Panchayat Mau, Vikas Khand Sarangpur, District Rajgarh which is reserved for “Other Backward Classes” (OBC) Category. Undisputedly apart from others documents, she was required to submit caste certificate of her own, but instead she has filed the caste certificate of her husband and filed an affidavit of her own that she belongs to OBC. As the petitioner failed to file her caste certificate, the Returning Officer has rejected her Nomination Form vide order dated 15.6.2022. Being aggrieved by the aforesaid order the petitioner filed W.P. No.14023/2022 before this Court on 21.6.2022.

2. The writ petition came up for hearing on 22.6.2022 and the counsel appearing for State Election Commission sought time to file a reply. After filing of the reply, the writ petition was heard finally on 28.6.2022 and the same has been allowed by quashing the order dated 15.6.2022 with a direction to allow the petitioner to cure the defects within 2 days and to proceed further with the election program, on the grounds that the error committed by the petitioner in submitting her nomination form can be said to be technical in nature or a defect which is not substantial for which an opportunity to cure the same ought to have been given by the Returning Officer as provided in Section 35(4) of the Nirvachan Niyam, 1995. Hence the present writ appeal before this Court.

3. The appellants/State Commission has filed this writ appeal on the ground that the learned Writ Court has wrongly interfered with the election process by issuing a writ. The last date of correction of nomination papers had already been passed; thereafter, election symbols have been allotted to the contesting candidates and they have started campaigning. It is further submitted that the writ petition was not maintainable as the petitioner is having remedy to challenge the election under the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 read with Nirvachan Niyam, 1995.

4. Shri Kamal Nayan Airen, learned counsel appearing for the appellants has placed reliance on Rule 38 of M.P. Panchyat Nirvachan Niyam, 1995 which provides preparation of a list of contesting candidates by the Returning Officer. The said list shall contain the names in alphabetical order and thereafter allotment of