M.S.D. Thenraja vs Executive Officer and Another

C. Shivappa, J.—The petitioners have challenged the rejection of their nomination papers to the election scheduled for Cantonment Board

on 2.2.1997. The grievance being common, the contesting respondents have filed common counters and hence all these petitions were heard

together and decided by this common order.

Few dates and certain important facts are summarised hereunder.

The date of election to Cantonment Board was proclaimed on 17.12.1996 and the schedule for election was also given. The last date for

inclusion of names in Electoral Roll was fixed on 20.12.1996. On the same day effected publication of list of claims with notice inviting objections

to such applications. The last date for receipt of objections to claim applications was fixed on 23.12.1996. Disposal of the claims and objections

by the President was fixed on 24 and 25th December, 1996 between 9 A.M. and 5 P.M. The presentation of nomination papers for the election

to the Returning Officer was fixed on 26.12.1996 between 10 A.M. and 4. P.M. Place for the scrutiny of nomination paper was fixed at 5 P.M.

nomination paper has to be scrutinized by the Returning Officer on 30.12.1996 between 10 A.M. and 5 P.M. Withdrawals of the candidates was

fixed on 31.12.1996 between 10 A.M. and 5 P.M. The names of the withdrawn candidates has to be announced on 31.12.1996. The allotment of

symbols has to be announced on 2.1.1997 at 11 A.M. The list of contesting candidates has to be published on 2.1.1997 at 4 P.M. The election to

be held on 2.2. 1997 from 7.30 A.M. to 4.30 P.M. Counting of votes and declaration of results was fixed on 3.2.1997. In this process major

portion of the election process is over and the election alone is to be held on 2.2.1997 from 7.30 A.M. to 4.30 P.M.

In pursuance of the proclamation as scheduled, petitioner in W.P.No. 155 of 1997 filed his nomination paper for the election of Ward No. 2,

St. Thomas Mount Cantonment Board. Petitioner in W.P.No. 197 of 1997 also filed his nomination paper on 26.12.1996 for Ward No. 5.

Petitioner in W.P.No. 255 of 1997 filed his nomination to Ward No. 1.

The elections to the Cantonment Board is regulated under the Cantonments Act, 1924 and the Cantonments Electoral Rules, 1945, hereinafter

referred to, in short, as ""the Act"" and ""the Rules"", wherein for purpose of holding elections, there are separate provisions made for inclusion of

divisions into wards, determination of number of members, preparation, revision and final publication of electoral rolls, nomination papers, time and

manner of holding elections, authority by which and the manner in which disputes relating to elections shall be decided is regulated under the Act

and the Rules.

At the time of scrutiny of the application of the petitioner in W.P.No. 155 of 1997 one Mr. Denzil Sequra objected stating that the petitioner has

not paid necessary professional tax. The petitioner contended that he had shown all the receipts for payment of the said professional tax and

absolutely there is no arrears to be paid by him and the objection regarding payment of professional tax by the petitioner for the company

Thennammal Finance Limited for 1995-96 has nothing to do with the right to contest the election and also alleged that he showed certain receipts

for the payment of professional tax for the company also and it is also stated that at the instance of Mr. Denzil Sequra the police foisted a false

case under various sections of the Penal Code and he was arrested on 31.12.1996 at 1.00 A.M. and let out on bail on 31.12.1996 around 2.30

P.M. Meanwhile, the Returning Officer has affixed the list of contesting candidates for Ward No. 2 excluding the name of the petitioner. When

enquired, the Returning Officer orally stated that he was in arrears of professional tax for Thennammal Finance Private Limited for the period

1995-96. The case of the petitioner is that the Returning officer has acted arbitrarily without following the election schedule itself and he did not

adhere to principles of natural justice and he is acting at the instigation of ruling party M.L.A. and other influential persons and this act of the

Returning Officer has deprived the petitioner the right of participation in the election schedule to Ward No. 2. It is his grievance that if there are any

arrears by any person, the Board has to give notice as prescribed u/s 28(h). Even assuming without admitting that Thennammal Finance Private

Limited is in arrears of payment of professional tax, the Directors in it are not personally liable and company is not contesting in election. Thus,

there is no justification in disqualifying the petitioner from contesting in the election and it is his assertion that he has not received any notice

demanding the arrears and he alleged that the act of the Returning Officer is unjust and it is colourable exercise of power and also alleged that the

respondents are acting under the instructions of the ruling party people and helping them out of way, and his name has not been included in the list

of contesting candidates on false and frivolous grounds.

The petitioner in W.P.No. 197 of 1997 who filed nomination paper on 26.12.1996 was present at the time of scrutiny of the nomination paper.

An objection was raised that his name is found more than one electoral roll. After verification, the Returning Officer published the list of valid

nominations on 31.12.1996 in the Cantonment Election Office notice board wherein his name was not found a place in the said list. It is alleged

that the Returning Officer endorsed as per rules in the nomination paper itself stating that ''O.K.'' and when once the said nomination held valid, the

Returning Officer has become functus officio and he has no power to hear any objection and the act of rejection is totally contrary to law. It is also

submitted that there is no provision in the Act that if a person is found in some other electoral roll of Municipality, corporation or Village

Panchayat, then he is not eligible to contest for any post in the Cantonment Board. It is his case that he has been contesting as Member to the

Cantonment Board and elected successfully till date except one time and also elected as Vice-President for many years. He has also alleged that

one Mr. Rajasekar and Mr. Chandrasekar, who are the candidates contesting for Ward No. 6 and 7, whose names were also found in the

electoral roll of Pallavaram Municipality as well as in the Cantonment Board, their nominations were found valid. Hence, the Returning Officer

cannot apply different yardsticks for different persons and his act is illegal, arbitrary and cannot be sustained in law and on facts and also urged mat

the action of the Returning Officer is based on extraneous consideration and due to political pressure.

The petitioner in W.P.No. 255 of 1997 filed his nomination paper to contest the election of the first Ward, Cantonment Board. He has alleged

that he was elected as Member during the periods from 1992 to 1997 and the said term expires in March, 1997. He belongs to Adi Dravidar

community. Totally there are seven Wards for Cantonment Board and the 1st Ward was reserved for Scheduled Caste. That respondent No. 3,

who is contesting in Ward No. 1 raised objection inter alia contending that petitioner did not belong to schedule Caste. It is alleged that he

produced the Community Certificate and the copy of the judgment in O.P. No. 19 of 1992 for scrutiny and inspite of it the name of the petitioner

was not included in the list of candidates for Cantonment Election. It is submitted that he belongs to A.I.A.D.M.K. party and he was prevented

from contest due to political enmity. It is also stated mat the O.P. was dismissed on 23.11.1994. Against the said order respondent No. 3 filed a

writ petition in W.P.No. 7956 of 1995 before This court and the same is pending. In these circumstances, respondent No. 3 colluded with other

respondents is preventing the petitioner from contesting the election. The petitioner further submitted that respondent No. 2 is the appellate

authority and he is keeping silent and he could not file die appeal before respondent No. 2 since he has not received any order from respondent

No. 1.

It is contended by respondent No. 1 that rejection of nomination paper at the time of scrutiny is only a matter to be agitated by way of election

petition under Rule 42 of the Rules framed Under Sections 30 and 31 of the Act. Any question relating to the verification of the facts and

circumstances can be done by appropriate authority and such an enquiry or investigation cannot be entertained by This court under writ

proceedings and that the petitioner can only avail an alternative remedy by way of election petition and cannot maintain the writ petition. It is also

submitted that the list of contesting candidates has already been published on 31.12.1996 itself. It would affect the aforesaid persons also and they

are also necessary parties to be added and petitioner having failed to implead them as necessary parties cannot maintain the present writ petition.

Returning Officer, contended that as per the provisions of the Cantonment Board Act and Election Rules, defaulter is not eligible to contest in

the election. After verification came to know about the arrears of professional tax due to the Cantonment Board from the petitioner and hence he

rejected the nomination paper and denied the averment that he has cleared the arrears of tax, so also the averment regarding arbitrariness,

colourable exercise of power and allegation that rejection of nomination is motivated at the instance of ruling political party.

The Returning Officer in so far as W.P.No. 197 of 1997 has contended that in view of the objection of one Thiru. D. Nandakumar it was

found that the name of the petitioner found in Alandur Assembly Constituency and the writ petitioner is residing outside the Cantonment Board

area, namely Pozhichalur, as such the petitioner''s nomination paper has to be rejected in accordance with the Cantonment Board Electoral Rules

and it was rejected on merits. He further denied the averment regarding mala fides on the ground that they are vague and unsustainable for want of

particulars. He has also alleged that the writing as ''O.K.'' in the nomination paper is not a valid ground to entertain his nomination paper.

In so far as W.P.No. 255 of 1997 it is contended by the Returning Officer that one Thiru. D. Mahadevan gave an objection petition dated

26.12.1996 to the Returning Officer and objected that Ward No. 1 is reserved for Scheduled Caste and the writ petitioner is not eligible to contest

as a candidate of this reserved Ward. The writ petitioner produced xerox copy of his Community Certificate at 3.45 P.M. on 30.12.1996. The

Returning Officer though requested to produce the original Community Certificate for verification, he failed to produce the original Community

Certificate. Hence the Returning Officer has no other way except to reject the nomination paper in accordance with law and other allegations such

as rejection was due to extraneous consideration, arbitrary in nature are denied as false and frivolous. He has further contended that no writ can be

issued contrary to the statutory provisions, that too, when the election process has alrady started as per the Election Rules.

In view of these pleadings, the question is whether petitioners are entitled to contest the election when election process has already started and

the election is scheduled to be held on 2.2.1997, on the ground that rejection of nomination papers (a) is arbitrary, (b) actuated by mala fides, (c)

on extraneous consideration, that is, due to political pressure and (d) without resorting to election dispute?

The counsel for the petitioners contended that the act of rejection of nomination papers by the Returning Officer is arbitrary, due to political

pressure, and for reasons which are not substantial in nature and in support of the contention relied on a decision of this Court reported in

Marippan v. The Assistant Election Officer, Pallapatti Panchayat and Anr., 1986 WLR 304.

Countering the arguments the counsel appearing for the respondents cited several decisions of various High Courts and that of the Apex Court

to substantiate the contentions that the act of rejection of nomination papers is after due verification, and the allegation of mala fides does not

require consideration for want of particulars and not impleading those persons as necessary parties and when election process has already started,

interference at intermediate stage with the process of election, that too, when there is a remedy provided in the relevant act and the Rules is

unwarranted and sought for dismissal of the petitions.

The word ""election"" is used to embrace the whole procedure emanating from the event of publication of the notification containing the calendar

of events and culminating in the completion of the process which includes the declaration of election. It is not used in a narrow sense. The rejection

or acceptance of nomination paper is included in the term ""election"". Rejection cannot be called in question under Article 226 under the Scheme of

election law. (See N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, ). Once the election process was set in motion

according to law, any illegality or irregularity committed while the election process is in progress or the conduct of the election is vitiated by any

illegality or irregularity in its process, the proper remedy is to lay the action by means of an election petition and have the dispute adjudicated,

without the election process being interdicted or retarded mid way.

In Marippan v. The Assistant Election Officer, Pallapatti Panchayat and Anr., 1986 WLR 304 this Court has held that Article 226 can be

invoked in case, if the rejection of nomination for reasons which are not substantial in nature. Panchayat Act, Section 29(5) contemplates that the

Returning Officer shall not reject any nomination paper on the ground of any defect which is not of substantial nature. Therefore, this court invoked

the jurisdiction under Article 226. This case has no bearing to the facts and circumstances.

Section 28 of the Cantonments Act contemplates qualification for being a member of the Board in the Cantonment Board. Sub-section (2)

talks of qualification whether by election or nomination for being a member of the Board and if a person fails to pay any arrears of any kind due by

him otherwise than as an agent, receiver, trustee or an executor to the Board within thirty days after the notice in this behalf has been served upon

him is disqualified to contest the election. At the time of scrutiny the petitioner failed to produce valid proof to show that he had paid the arrears

due by him.

The Cantonments Electoral Rules, 1945 Chapter 11 speaks of Electoral Rolls. Rule 4 of the Rules contemplates no person shall be entitled to

be registered in the electoral roll for more than one Ward and no person shall be so registered for any Ward more then once. Rule 5 contemplates

that every person who is eligible for enrollment as an elector under Sub-section (1) of Section 27 of the Act, and is not otherwise disqualified

Under Sub-section (2) of the said section shall be enrolled as an elector. Sub-section (1) of Section 27 contemplates two criteria on the qualifying

date to be an elector, that is, he should not be. less than twenty-one years of age and who has resided in the cantonment for a period of not less

than six months immediately preceding the qualifying date. Only such person is entitled to be enrolled as an elector.

In view of Rule 4 and Rule 5, if read with Section 27, it contemplates residence for a period of not less than six months immediately preceding

the qualifying date if not otherwise disqualified and also registration in only one ward. A person who is residing elsewhere having a right to vote or

contest cannot opt to contest even from the cantonment Board unless he fulfils the qualification that he is the resident of the cantonment area as

contemplated Under Sub-section (1) of Section 27 of the Act. In the instant case, not only his name finds place in two electoral rolls of different

places, but also no material is placed to prove the factum of residence. According to the Returning Officer, his name is found in Alandur Assembly

Constituency, residing outside the Cantonment Board area, namely, Pozhichalur.

So far as the rejection of nomination paper of the petitioner, who claims to be the scheduled caste candidate to a reserved constituency, it is

contended that he has not produced any documents in proof of the caste. In fact, the objector produced a transfer certificate wherein it is shown

that the petitioner is a non-scheduled caste person. He has produced only a cause title of a proceedings and not the full judgment and that

judgment is also subject matter of a writ petition No. 7955 of 1995 still pending on the file of this Court.

In this fact situation, it cannot be said that the rejection is without application of mind and arbitrary. As has been contended by the respondents,

the allegation of mala fides must be supported by particulars and the person who was responsible or actuated the decision has to be a necessary

party. Since there are no such averments and the averments being vague, that contention is not worthy of any consideration and hence rejected.

It is settled law that the process of scrutiny is a summary enquiry. Parties or nominees are required to be present and they are at liberty to

place necessary material, which material they have to produce and which aspect has to be concentrated is also contemplated in the provisions

contemplating qualification to contest the election when they were known about the requirements and failed to ask for an opportunity nor

attempted to satisfy the Returning Officer of the correctness of the particulars, it is not proper to expect the Returning Officer to make roving

enquiry to satisfy himself about the requirements of a valid nomination paper. It is the duty of the candidate or proposer to satisfy the Returning

Officer and keep all materials in his custody and place them before the Returning Officer to show that he has complied with all the requirements

contemplated in law. When the objection is raised, if the Returning Officer finds that the defect is substantial character, he is empowered to reject

the nomination. In the instant case, a Tahsildar has been nominated as the Returning Officer. If they had any acceptable material to answer the

objection, nothing prevented them to produce or file an appeal within the stipulated time to the President within two days. In Bhogendra Jha Vs.

Manoj Kumar Jha, , the Apex Court has taken the view, the Returning Officer is not expected to make a roving enquiry to find out the truth or

otherwise of the objection and it is the duty of the candidate or proposer to satisfy the Returning Officer with all materials that the objection raised

is frivolous. In the absence of such material, it cannot be said that the order of the Returning Officer is arbitrary. The candidates who, filed their

nominations though admittedly present did not ask for an opportunity nor attempted to satisfy the Returning Officer as to the correctness of the

particulars furnished by them in the nomination papers.

The Cantonments Electoral Rules, 1945 Chapter VII, Rule 42 contemplates election petition and Rule 47 contemplates grounds for declaring

election void and Sub-clause (a)(ii) of Rule 47 talks of improper acceptance or refusal of nomination paper. Therefore, when a statute

contemplates a remedy to a person aggrieved of rejection of nomination paper, it is settled law when the scheme of the Act and the Rules

prescribed thereunder contemplates that a specific act should be done in a particular manner, it has to be done only in that manner and in no other

way. It is also settled in law, when the disputed questions of facts require evidence and a remedy has been provided, this court under Article 226

should not venture to decide such disputed questions of facts.

There are string of decisions of various High courts and that of the Apex Court to the effect that once the election process has started, the High

Court in exercise of the powers under Article 226 would not be justified in interdicting or retarding the election process. In Boddula Krishnaiah

and another Vs. State Election Commissioner, A.P. and others, it was held that once an election process has been set in motion, they are free to

seek remedy by way of an election petition as provided in the act and the Rules. In Shri Savio O. Fernandes and another Vs. State Election

Commissioner and others, following AIR 1985 SC 1233 in para 39 it has been held that order, interim or otherwise having tendency to or effect of

postponing election which is reasonably imminent should not be passed. In Jagadish Patil Vs. The State of Karnataka and Others, , it was held that

election once started cannot be stopped, unless the law itself in express terms authorises such an officer on any of the circumstances mentioned in

such a law itself to stop. In Sewa Sahakari Sanstha Mahagarh and Others Vs. Ramchandra Narayan Kokil and Others, it was held that election

process once started should be allowed to continue without any restriction. In Ramachandra Ganpat Shinde and another Vs. State of Maharashtra

and others, it has been observed as follows:-

Once the election process was set in motion according to law any illegality or irregularity committed while the election process is in progress or the

conduct of the election is vitiated by any illegality or irregularity in its process, the proper remedy is to lay the action before the Tribunal constituted

under that Act by means of an election petition and have the dispute adjudicated without the election process being interdicted or retarded in its

mid way. The High Court or this Court while exercising the constituent plenary power under Article 226 or 32 or Under 136, as the case may be,

would decline to interfere with the election process and relegate the parties to take recourse to the alternative remedy of the election petition

provided under the statute.

In Bhogendra Jha Vs. Manoj Kumar Jha, it has been held that opportunity when once provided to raise objection, if no objection raised at the time

of scrutiny and subsequent objection if any will be a matter to urge in an election petition and cannot be a criteria to intercept the process which will

have the effect of postpoing the election.

In S.T. Muthusami Vs. K. Natarajan and Others, when the question whether it is appropriate for the High Court to interfere with the election

process at an intermediate stage after the commencement of the election process and before the declaration of the result of the election came up

for consideration, the Supreme Court held that at intermediate stage interfered with the process of election thus impede the process and the High

Court should decline to exercise that power and leave the parties to remedy of an election petition to be presented after the election was over.

Similarly, in W.P.Nos. I836 and 1837 of 1992 decided on 12.2.1992 following N.P. Ponnuswami Vs. Returning Officer, Namakkal

Constituency and Others, and S.T. Muthusami Vs. K. Natarajan and Others, mis court has taken the view that persons aggrieved by any order

resulting in non-participation in election process can, if so advised, resort to an effective alternative remedy contemplated to resolve the dispute by

way of an election petition.

In Lakshmi Narain, C. v. The Chief Election Commissioner and three Ors., 1996 W.L.R. 709 this Court has taken the view that even if the

allegations of irregularity in the electoral rolls are assumed to be true, this court would not be justified in interfering or interdicting the election

process which has commenced much earlier even though there was irregularity in the preparation of electoral rolls. But, the Rule 47 even

contemplates illegalities. Therefore, there is no merit in the contention that this Court may invoke the jurisdiction to set aside the order rejecting the

nomination.

The preponderance of judicial opinion and the view of the Supreme Court as expressed in various pronouncements point to the principle

regarding challenge to the election or any. intermediary stage in case, there is an alternative effective and independent-mechanism provided, the

court shall abstain to interfere except on jurisdictional errors, when infirmity is based on violation of constitutional mandate, mala fides, non-

compliance with rules of natural justice and perversity. This is not one such case, where it can be termed that there is non- compliance with the

Rules, no opportunity to the petitioners and the rejection is an act of perversity meaning thereby without any application of mind.

In Kripa Shankar Chatterji Vs. Gurudas Chatterjee and others, the Supreme Court has held that an exparte affidavit without affording an

opportunity to test the veracity of the statements made in the affidavit by cross-examining him cannot be held to be sufficient proof when rejection

is challenged on the ground that it was improper rejection. It is not appropriate to stall the election without putting the petitioners to an election

petition to prove the fact alleged by them.

There is a remedy for every wrong done during the election in progress although it consumes sometime. Under the Act, enough powers are

given to give relief to an injured candidate if he makes out a case and such processual amplitude of powers should not be by-passed to undo

illegality and injustice alleged to have been committed that too without an opportunity in the form of placing materials before the competent

authority.

Therefore, the law in regard to the adjudication of an election dispute constitute a self contained code, and every violation of the Rule as

alleged requires evidence and that can be done only by a competent authority in an election dispute and not under Article 226.

The election law being statutory in character must be strictly complied with and election to be conducted in conformity with the requirements of

election law and those who violate the statutory norms must suffer for such violations. In the event of proof of such violation due to mala fides or

for any extraneous consideration and the returned candidate is shown to have secured his success at the election due to his mistakes or for the

reckless of the Returning Officer the person affected is entitled for compensation and the election will be set at naught by the competent authority

and those who succeeded on the basis of such illegal acts will suffer for his or their mistakes.

For he reasons aforestated, I see no merit in the contentions urged by the petitioners and they cannot be allowed to participate in the election

intercepting the election process in the intermediate stage. Before parting with this case, it is appropriate to mention that in the event of filing

election petition, the authority to complete the proceedings expeditiously without protracting for an unduly long period. In view of the aforestated

reasons, the petitions are dismissed. Parties to bear their own costs. Consequently, W.M.P.Nos. 237, 238, 283 and 371 of 1997 are also

dismissed. The impleading applicants not being aggrieved parties, their applications are liable to be rejected and accordingly rejected.