Lalita vs The State Election Commission of Maharashtra and Others

S.P. Deshmukh, J—Rule. Rule made returnable forthwith. Heard learned counsel for parties finally, by consent.

Petitioner has filed present petition against the order passed by returning officer on 13-07-2015 (appearing at page 39 to petition), holding nomination of respondent No. 5 valid for ward No. 2 in the elections to gram panchayat of village Mangnali, Taluka Dharmabad, District Nanded.

The order of the returning officer is assailed by the petitioner, pointing out that nomination is sought by respondent No. 5 to a seat reserved for scheduled tribe (women category) claiming that she comes from said tribe and category, particularly ''Mannervarlu''. Petitioner is one of the contestants from said category to ward No. 2 of said elections. In all, four contestants had claimed candidature to said seat. Scrutiny of ward No. 2 had taken place according to the schedule on 13-07-2015.

In respect of candidature of respondent No. 5, petitioner has taken objection on the ground that she (respondent No. 5) does not belong to the tribe claimed by her in the nomination form and had produced before election officer, a copy of decision rendered by respondent No. 4-scrutiny committee on 18-04-2012 wherein it has been declared that respondent No. 5 does not belong to ''Mannervarlu'' tribe, having regard to her failure to establish affinity, traditions as well as her relationship with the persons belonging to said tribe. The committee has observed that the tribe certificate produced by respondent No. 5 which was subjected to scrutiny had been bogus and it had not been issued by the office by which it was represented to have been issued. According to learned counsel for the petitioner, it is more than established on record that such an objection had been tendered by the petitioner during the course of the day scheduled for scrutiny of nominations.

This court had, having regard to the submissions of the petitioner that respondent No. 5''s tribe claim had been invalidated by the scrutiny committee, issued notice on 15-07-2015 which was made returnable on 22-07-2015 making it clear that nomination of respondent No. 5 would be subject to decision in present writ petition. Accordingly parties have been served, including the scrutiny committee.

Mr. Shelke, learned counsel for election commission had on 22-07-2015 sought time and matter was adjourned to the next day i.e. 23-07-2015. On 23-07-2015, there was a request again at respondents'' instance for adjournment and thus the matter is coming up today for hearing.

Learned counsel for the State Election Commission submits that he has no dispute about the factual position of invalidation of tribe claim of respondent No. 5. However, he purports to support the order of returning officer for the reason that while scrutiny of nominations for ward No. 2 was going on, no such objection had ever been taken by petitioner and it is sometime after completion of scrutiny, objection was raised. He refers to that the scrutiny of nominations for ward No. 2 had started at about 11.20 a.m. and completed around 11.40 a.m. Whereas objection was taken by or at the behest of petitioner around 11.50 a.m. He, therefore, purports to contend that the returning officer had become functus officio after 11.40 a.m. He refers to certain other matters like electronic voting machines being sealed on 22-07-2015 in the presence of contesting candidates.

Mr. Shelke further contends that in any case, election programmes are not to be generally interfered with unless and until there is exigency. He, for said purpose, relies on observations in a supreme court decision of three-judge bench, in Ashok Paper Mills Kamgar Union Vs. Union of India and Another, AIR 2000 SC 2977 : (2000) 87 FLR 437 : (2000) 10 JT 49 : (2001) 1 LLJ 601 : (2000) 6 SCALE 221 : (2000) 7 SCC 326 : (2000) SCC(L&S) 922 : (2000) AIRSCW 3200 : (2000) 6 Supreme 90 . He particularly refers to and lays emphasis on clause (1) of paragraph number 32 of said judgment which reads as under;

"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinbelow:--

1) if an election, (the term ''election'' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilities the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.

5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court''s indulgence by filing a petition, outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end."

Mr. Sapkal, learned counsel appearing for respondent No. 5 contends that respondent No. 5, having regard to the observations of the scrutiny committee with regard to her tribe certificate while invalidating the same as being not genuine, has not been precluded from having another and accordingly she has received a certificate which is genuine and further that it cannot be said that the decisions rendered by the committee and the high court would foreclose doors on respondent No. 5 to claim scheduled tribe status.

Mr. Sapkal, learned counsel for respondent No. 5 relies on quite a few judgments of this court in order to impress upon that the election petition would be a proper remedy for petitioner having regard to the advanced stages of elections having reached.

Mr. Sapkal cites decision in Kalpana Ananda Sutar and others Vs. The State of Maharashtra and others, (1998) 3 ALLMR 106 : (1998) 3 BomCR 712 : (1998) 2 MhLj 626 which refers to the supreme court decision in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, AIR 1952 SC 64 : (1952) 1 SCR 218 and he emphasizes that the supreme court has held that rejection or acceptance of nomination paper is an intermediate stage and as such would be amenable to judicial scrutiny only after termination of election process.

Mr. Sapkal also refers to a decision in Vinod Pandurang Bharsakade Vs. Returning Officer and Another, (2003) 4 MhLj 359 rendered by a division bench. In said case, nomination had been rejected and the court went on to consider that having regard to 243-O(b) of the Constitution of India and sections 15 and 15A of the Maharashtra Village Panchayats Act and rules thereunder, remedy available would be election petition and powers of the high court under Article 226 shall not be invoked.

Learned counsel for petitioner, however, counters the proposition put-forth by the respondents that an election petition would be a proper remedy in the present case, contending that this is a gross and glaring case wherein urgent intervention by the high court invoking its powers is called for. He submits that the returning officer has refused to consider request of petitioner or on his behalf on technical ground which particularly can be referred to as self evolved procedure not made known to candidates. He further contends that such a plea would seldom augment and enrich purity of election.

Learned counsel for petitioner submits that when falsity of claim made by respondent No. 5 had been brought to the notice of the returning officer, it was incumbent to have taken cognizance of the same and pass appropriate orders. He submits that fraud played by respondent No. 5 vitiates everything and in such a case, the contention by learned counsel for election commission, of returning officer having become functus officio is not available at all. He submits that objection had been taken and things have been brought before the returning officer and to his notice before expiry of time for scrutiny.

Mr. Bade, learned counsel appearing on behalf of respondent No. 4-scrutiny committee points out the decision of the committee, particularly operative part thereof under which, according to him, the committee on merits holds that respondent No. 5 does not belong to the tribe claimed by her and that the committee has additionally pointed out that a bogus certificate was subjected to scrutiny. He submits that once having held the person to be not belonging to a particular tribe, it may not be possible for such a person to claim again that he/she belongs to that very tribe. In the face of such decision by the committee and high court, according to him, procurement and issuance of second certificate is vulnerable legally and factually. In his submission, as a matter of fact, respondent No. 5 should have refrained from committing another error which seems to be per se fraudulent.

I deem it appropriate to succinctly refer to relevant aspects. It would be pertinent to refer to decision of the scrutiny committee rendered on 18-04-2012 and particularly operative part thereof (at page 28 of this writ petition), which is reproduced hereinbelow.

It appears that thereafter, respondent No. 5 had been before the high court under writ petition bearing number 4103 of 2012 which was disposed of by division bench on 30-04-2014, observing thus;

"3. We have considered the submissions of the learned Counsel for the parties and also perused the impugned decision of the committee. Upon careful perusal of the reasons recorded by the committee, it appears that the committee has considered the affidavit filed by Pujarwad Pundlik Poshatty and observed that the petitioner could not establish relationship with said Pujarwad Pundlik Poshatty. We have carefully perused the contents of the affidavit sworn in by Pujarwad Pundlik Poshatty and in particular, genealogy explained in the said affidavit. By way of genealogy, the petitioner has not established her relationship with Prabhu S/o. Saibu Pujarwad and also Jaloji Saibu Pujarwad. Apart from rejecting the claim of the petitioner on the ground that the petitioner did not establish relationship with Pundlik Poshatty, the committee in operative part of the order, observed that the certificate obtained by the petitioner finds No. 90/A/MISC/Certificate/2225 dated 27.7.1990. However, in the year, 1990, concerned Tahsil office has issued only 1349 certificates.

In pursuant to the order passed by this Court, the respondent No. 3 Naib Tahsildar, Tahsil Office, Biloli has filed affidavit-in-reply. Para 4 of the said affidavit reads, thus;

"4. It is further submitted that, I have scrutinized the whole of the register and more particularly entries those have been taken on 27.7.1990. From the register it can be said that, there are few entries on 27.7.1990 which shows that caste certificates have been given to different persons but the name of the petitioner is not finding place in the said register on 27.7.1990 also. It is further submitted that, the letter Exh. D is not genuine and hence no question arises of producing a true copy of the certificate referred in the said letter. "

Therefore, in the light of operative part of decision of the committee and also affidavit-in-reply by the Naib Tahsildar, on behalf of the Tahsildar, Biloli and in particular, para 4 thereof, it appears that the certificate obtained by the petitioner that the petitioner belongs to Munnerwarlu tribe is not genuine."

It is further not disputed that the order of the high court in above writ petition had not been subjected to any further challenge by respondent No. 5 herein. Taking into account the submissions as have been advanced on behalf of the scrutiny committee and particularly its decision and that of the high court, respondent No. 5 would not be able to stake claim to the tribe particularly Mannervarlu at this stage for the purpose of this election as it is not the case that she belongs to any tribe other than Mannervarlu. The decision by scrutiny committee invalidating tribe claim of respondent No. 5 appears to be with reference to merits of claim and has been further endorsed by the division bench of high court.

In the face of this situation, the objection raised on behalf of the petitioner to candidature of respondent No. 5 ought to have been given its due weightage which had strong foundation of law and facts. When such glaring aspects involved in the matter have been brought to the notice, it would not be proper to let the matter travel further culminating into election of ward No. 2 and then to have the remedy of election petition as is sought to be argued by respondents.

The three-judge bench decision of the apex court in Ashok Paper Mills Kamgar Union Vs. Union of India and Another, AIR 2000 SC 2977 : (2000) 87 FLR 437 : (2000) 10 JT 49 : (2001) 1 LLJ 601 : (2000) 6 SCALE 221 : (2000) 7 SCC 326 : (2000) SCC(L&S) 922 : (2000) AIRSCW 3200 : (2000) 6 Supreme 90 relied on by the learned counsel for election commission makes it abundantly clear that in a given case though the court would act with reluctance, yet the court is not precluded from causing interference in the election in exercise of its powers in a clear and strong case.

In the present case, this court had already made it clear when the notice was issued that the nomination of respondent No. 5 would be subject to outcome of writ petition. In view of the same, difficulties being put-forth on behalf of respondent No. 1-election commission would not weigh with the court while passing the order. The election commission shall make all the endevour to take corrective action, if possible by the time the voting takes place or, if it is not possible, to defer the election to ward No. 2 of grampanchayat of village Mangnali to a suitable date in order to bring the same in order. As such, order of returning officer accepting nomination of respondent No. 5 is quashed and set aside.

Writ Petition stands allowed. Rule is made absolute in terms of prayer clause (B). Petition stands disposed of accordingly. Election commission shall make endevour to carry out proper corrections, if possible, by the time voting takes place or, if the same is not possible, to defer the election to ward No. 2 of Gram Panchayat, Mangnali, Tq. Dharmabad, District Nanded to a suitable date.

Learned counsel appearing for respondent-election commission and learned Assistant Government Pleader to communicate this order to the authorities concerned immediately.

Parties to act on authenticated copy of this operative order.