MARUTIBEN DHUDABHAI GAMAR vs STATE ELECTION COMMISSION & ANR.

Rule. Ms. Jhaveri, learned AGP waives service of notice of rule on behalf of the respondent no.1 - State. Ms. Roopal Patel, learned advocate

waives service of notice of rule on behalf of the respondent no.2. By consent, rule is fixed forthwith.

Heard learned counsels for the parties. The petitioner who happened to be the candidate aspiring to be contestant in Election of Bhabhar Taluka

Panchayat pursuant to the Notification dated 31st January 2018 has approached this Court by way of this petition with following prayers.

(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to quash and

set aside the impugned order dated 09.02.2018 passed by the respondent no.2, rejecting the nomination form of the petitioner, and further be

pleased to direct the respondent no.2 to accept the nomination from of the petitioner and permit the petitioner to contest the election of the Taluka

Panchayat, Bhabhar from 17 Vadana constituency;

(B) Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned

order dated 09.02.2018 passed by the respondent no.3AnnexureG to this petition; and further be pleased to permit the petitioner to contest the

election of the Taluka panchayat, Bhabhar from 17 Vadana constituency;

(C) Pending admission and final disposal of the present petition, be pleased to stay the election of Bhabhar Taluka Panchayat of 17 Vadana

constituency;

(D) Be pleased to pass such other and further orders as may be deemed fit and proper.

Thus, what is essentially under challenge is the order dated 9th February 2018 whereunder her nomination is rejected on account of difference in

name of the candidate - petitioner as in Voter''s list the name is shown as Shah Marutiben Kanaiyalal whereas in the Caste Certificate the name is

shown as Gamar Marutiben Dhudabhai and as the certificate of marriage indicating the change in name has not been produced on 9th February

2018 by 3:00 O''clock, the nomination came to be rejected. Being aggrieved and dissatisfied with the order, the present petition is filed on the

ground stated in the memo of the petition.

The facts in brief as could be gathered from the memo and the annexed documents would indicate that the elections for the Taluka Panchayat in

question alongwith other panchayats inter alia scheduled to be held on 21st February 2018, the schedule is produced at page no.21 as could be

seen from the notification in which it is mentioned that the date of notification is 31st January 2018. The last date of accepting the nomination form

is 8th February 2018, the date of the scrutiny is happened to be 9th February 2018 and the withdrawal date is 10th February 2018. The voting is

to take place on 21st February 2018. The petitioner filled in her nomination form along with requisite documents. However, as the petitioner was

desirous of contesting on the seat which was reserved for the schedule tribe woman candidate, she had to submit the certificate indicating that she

belong to schedule tribe. Accordingly, the certificate was produced and during the scrutiny i.e. 9th February 2018, the concerned officer noticed

that there was a discrepancy in the name of the petitioner which the petitioner had explained by way of an affidavit, which is placed on record and

that affidavit indicated that though she belong to schedule caste, she had married to Shri Kanaiyalal Shah, who was not a member of schedule

caste and therefore, after marriage she had to mentioned husband''s name and that is the reasons for nonmatching with the name in other records

i.e. the voter''s list.

The officer appears to have insisted for production of marriage certificate, which according to the petitioner was not rightly available and the

officer based thereupon appears to have rejected the nomination on the ground of nonavailability of marriage certificate, which could have

explained difference between the name. However, the officer appears to have not doubted or challenged the genuineness or veracity of the status

of the petitioner.

The petitioner being aggrieved and dissatisfied with the order of rejection of nomination, approached this Court by way of the present petition

filed under Section 226 of the Constitution of India.

Learned counsel for the petitioner invited Court''s attention to the provision of Rule 15 (4 & 5) to support his submission that the officer at the

time of scrutiny if comes to the conclusion that there was some discrepancy in the name, he was obliged to grant a day''s time for meeting with or

explaining the same. He further submits that in any case, the discrepancy and the defect is technical, which would render the nomination of the

petitioner invalid. In the instant case, the date of scrutiny is 9th February 2018 and the very same day, the discrepancy was heldout to the

petitioner so as to render her from invalid without affording her an opportunity for explaining despite there being the availability of the proper

explanation in the form of affidavit, which has not been doubted in any manner.

Learned counsel for the petitioner relied upon the decision in case of Election Commission of India Vs. Ashok Kumar And others, reported in

(2000) 8 Supreme Court cases 216 and laid emphasis upon paragraphs 12, 13, 15, 20, 21, 23, 30 & 32 to support his contention that the bar of

Article 243 (O) would not be an impediment in the way of the petitioner in maintaining the petition, as the provision of Section 31, which is sought

to be relied upon by the respondents for indicating alternative remedy is in fact not alternative remedy, as the said provision is not in paramateria

with the provision of Section 14 of the Gujarat Municipalities Act, 1963, wherein it is specifically spellout by the legislature that the remedy against

the name is covered by Section 14, whereas such provision conspicuously absent so far as Section 14 of the Gujarat Panchayat Act, 1993 is

concerned.

Learned counsel for the petitioner thereafter invited Court''s attention to the procedure and submitted that even otherwise also when the

petitioner happened to be the sole contestant, there was no other question. However, when the genuineness of the status of the petitioner is not

questioned, the denial would nothing but arbitrary action on the part of the officer and the same is likely to be result into depriving the schedule

tribe candidate from participating in the process and representing the constituency in question. Learned counsel for the petitioner therefore, urges

that the petition may be allowed and the order dated 9th February 2018 may be quashed and set aside.

Learned counsels for the respondents contended that the bar of Article 243 (O) may dissuade this Court from entertaining this petition as the

provision of Section 31 is aptly available to the petitioner. In alternative, it is submitted that the petitioner has not cared to fill in the form i.e.

nomination form in detail as could be seen from even a cursory glance at page no.38 of the petition and submitted that the columns have been

leftout.

Learned counsels for the respondents further submitted that Rule12 of the Panchayat election Rules unequivocally indicate that any incomplete

or incorrect information in the form or lack of documents would entitle the returning officer to reject the nomination form and even on that ground

also the Court when calledupon to examine the aspect of rejection of nomination, Court may also take nomination form into consideration while

examining the same. Learned counsels for the respondents submitted that the close reading of Rule15( 5) would indicate that the adjournment is

permissible only in the exigency mentioned in the rule itself and therefore, in all and every objection, the time is not to be granted. We are unable to

accept this submission, as the plain and simple reading of the rule would clearly indicate that the embargo for not adjourning the scrutiny is upon the

officer and the exigency mentioned thereunder as exception for adjournment, but the provision is absolutely clear, which is inconsonance with the

principle of natural justice, which provides that in case of the objection, either by the candidate or by anyone in respect of the nomination, the

nominee candidate has to be given an opportunity by adjourning the matter for a day and that being so, we are very much convinced that the said

adjournment, which was required had not been granted and has vitiated the rejection of the nomination.

Learned counsels for the respondents submitted that in view of this, the petition may be dismissed as having no merits.

The Court has heard the learned counsels for the parties and perused the documents. The fine question, which has been posed before the

Court for examination is when the concerned rule i.e. Rule 15 (5) provides for an opportunity to be granted to the candidate, as could be seen

from the schedule of programme of election, the last date of submission of nomination form happened to be 8th February 2018 and the scrutiny of

the form happened to be on 9th February 2018, therefore, the real date in question happened to be 9th February 2018 and when 9th February

2018 is the date of scrutinizing and when at the time of scrutiny an objection was received and it was found that the name of the petitioner is

different than the name mentioned in the voter''s list and caste certificate, the provision of Rule 15 (5) makes it incumbent upon the returning officer

to afford an opportunity explaining the same by adjourning the scrutiny and record its reason. The provision of Rule 15 (5) deserve to be setout as

under :Rule

15: Scrutiny of nomination papers:

(1).........

(2)........

(3).......

(4)........

(5) The returning officer shall hold the scrutiny on the appointed date in this behalf under rule 9 and shall not allow any adjournment of the

proceedings except when such proceedings are interrupted or obstructed by riot or violence or by causes beyond his control;

Provided that in case an objection is raised by the returning officer or is made by any other person the candidate concerned may be allowed time

to rebut it not later than the next day immediately following the date fixed for scrutiny and the returning officer shall record his decision on the date

to which the proceedings have been adjourned. (emphasis supplied)

In this view of the matter, it is indisputed that the officer concerned appears to have rejected the nomination right on the date when he had

undertaken the scrutiny, which in our view not permissible in law. The petition deserve to be allowed only on this ground. The decision relied upon

by the learned counsel for the petitioner in case of Election Commission of India Vs. Ashok Kumar And others, reported in (2000) 8 Supreme

Court cases 216 would also support the submission of the petitioner for maintaining this petition.

However, we are of the view that before parting with the judgment and giving the final decision of the aspect, it would be most appropriate to

advert to the other aspect of the matter also viz. as to whether the officer was justified in calling upon the marriage certificate and whether the

nonavailability of marriage certificate would have rendered the nomination invalid. In our view, this issue requires little more probing inasmuch as

the form itself is to be on verification and declaration and when the affidavit is filed then the officer has to accept the same and this acceptance

definitely would not render the nomination beyond any challenge as in case if there was any incorrect statement or doubt about the status of the

petitioner, it was open to the scrutiny at the instance of those, who have been conferred right to challenge the election by way of Section 31 of the

Act.

In that view of the matter, without dwelling elaborately upon this, suffice it to say that we are of the view that the nomination of the petitioner

has wrongly been rejected and the same is required to be treated as valid nomination. This declaration of the Court is only in respect of lack of

time given to the petitioner and it does not attach any other validity of the nomination. It would also not weigh with the authority that the Court in

case if the said nomination is subject matter of scrutiny under the appropriate proceedings, if preferred by anyone under Section 31 of the Gujarat

Municipalities Act.

With the aforesaid observations, the present petition is allowed. The impugned order dated 9th February 2018 passed by the respondent no.2

herein rejecting the nomination of the petitioner is hereby quashed and set aside. The nomination of the petitioner is declared as valid and

respondents are directed to act in accordance therewith. Rule made absolute. However, there shall be no order as to costs. Direct service

permitted today.

Learned counsels for the parties are permitted to convey the order by appropriate mode including fax and telephonic instructions to the

concerned.