Gujarat High Court
Chandrikaben Narsinhbhai Vaghela vs State Election Commissioner on 12 February, 2013
Author: Jayant Patel
Bench: Jayant Patel
CHANDRIKABEN NARSINHBHAI VAGHELA....Petitioner(s)V/SSTATE ELECTION COMMISSIONER THRO SECRETARY C/SCA/1539/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1539 of 2013 With SPECIAL CIVIL APPLICATION NO. 1540 of 2013 With SPECIAL CIVIL APPLICATION NO. 1541 of 2013 With SPECIAL CIVIL APPLICATION NO. 1542 of 2013 With SPECIAL CIVIL APPLICATION NO. 1543 of 2013 With SPECIAL CIVIL APPLICATION NO. 1544 of 2013 ================================================================ CHANDRIKABEN NARSINHBHAI VAGHELA....Petitioner(s) Versus STATE ELECTION COMMISSIONER THRO SECRETARY & 3....Respondent(s) ================================================================ Appearance: MR YV VAGHELA, ADVOCATE for the Petitioner(s) No. 1 MR.KISHORE PRAJAPATI, ADVOCATE for the Petitioner(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 12/02/2013 COMMON ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As in all the petitions, common question arises for consideration, they are being considered by this common order.
2. All the petitions are directed against the decisions of the Election Officer for rejecting the nomination papers of the petitioners on the ground that mandate of the political party was produced after 3.00 p.m.
3. Additional facts and prayers in Special Civil Application Nos.1542, 1543 and 1544 of 2013 are that after rejection of the nomination form of the concerned petitioner on the very ground, other candidate who remained uncontested have been declared as elected candidate and the said actions are also challenged additionally in the aforesaid group of three matters.
4. We have heard Mr.Vaghela, learned counsel appearing for the petitioner and Ms.Patel, learned counsel appearing for respondent Nos.1, 2 and 3 upon advance copy.
5. The contention raised on behalf of the petitioner is that as per the Gujarat Panchayats Elections Rules, 1994 (hereinafter referred as the Rules for short) more particularly, Rule 15, nomination form can be rejected only on the grounds as mentioned in sub-rule (2) of Rule 15 of the Rules that too at the time of scrutiny of the nomination form is to take place and it cannot be rejected on any other ground including the ground for non-production of mandate after 3.00 p.m. Therefore, it was submitted that the action was beyond of the scope of Rule 15 of the Rules. It was also, alternatively, submitted that such being only technical lapse, could have been condoned by the Election Officer since there was only time gap not exceeding one hour after the prescribed period and, therefore, nomination form should have been said as validly accepted.
6. It was also submitted by learned counsel appearing for the petitioner that in the group of Special Civil Application Nos.1542, 1543 and 1544 of 2013, it was not expected for the election authority to make undue haste in declaring left out candidate as elected and he should have waited till the date fixed of the declaration of the result of the election. It was, therefore, submitted that this Court may interfere.
7. Whereas learned counsel appearing for the respondents submitted that the Election Commission, in exercise of the powers under Rule 15, has framed the Rules whereby the mode and procedure for submission of nomination form and also mandate is provided. As per clause 15 of the instructions issued by the State Election Commission, mandate together with the nomination form is required to be submitted before 3.00 p.m. of the last day for submission of the nomination form. It was also submitted that in Form No.KH, time limit has been prescribed and as such mandate was not submitted well in time, nomination form has been rightly rejected. In respect of three matters where the candidates have been declared uncontested, it has been submitted that there was no other candidate and, therefore, information in the prescribed form was submitted and based on the same, left out candidate whose nomination was validly accepted has been declared as elected.
8. Rule 11 of the Rules provides that the Election Commission will have power to issue general or special direction. On the aspect of presentation of nomination form, Rule 12(2) of the Rules expressly provides that such nomination has to be submitted between 11.00 a.m. and 3.00 p.m. Rule 12 of the Rules for ready reference reads as under.
12. Presentation of nomination papers and requirement for valid nomination.-(1) A nomination paper in Form 4 shall be supplied by the returning officer to any person asking for the same.
(2)On or before the date appointed for making nominations under clause
(a) of sub-rule (2) of rule 9, each candidate shall either in person or by his proposer, between the hours of eleven O clock in the forenoon and three O clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under rule 10, a nomination paper completed in the form specified in sub-rule (1) and signed by the candidate and by a voter of the electoral division as proposed :
Provided that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:
Provided further that no paper purporting to be a nomination paper of a candidate which is -
(a) delivered to the returning officer before eleven O clock in the forenoon or after three O clock in the afternoon or on any day on which a nomination paper may be delivered in accordance with these rules; or
(b) delivered by a person other than the candidate or his proposer; or
(c) received by returning officer by post or in any other manner;
shall be treated by the returning officer as a nomination paper and any such paper shall be rejected as soon as it is received by the returning officer and shall not be considered at the time of scrutiny;
[Provided also that candidate not set up by the recognised political party for an election to any electoral division of taluka or a district panchayat shall not be deemed to be duly nominated candidate for election an electoral division unless the nomination paper is subscribed by one proposer and nine seconders, being voters of the electoral division.] On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and numbers in the list of voters of the [candidate, his proposer and seconders] as entered in the nomination paper are the same as those entered in the list of voters, and if not, invite the attention of the candidate or the proposer [or the seconder] as the case may be, to his effect:
Provided that the returning officer shall permit any clerical or technical error in the nomination paper in regarded to the said names or numbers to be corrected in order to bring them in conformity with the corresponding entries in the list of voters.
Where a candidate is a voter in a different electoral division, a copy of the list of voters of that division or of the relevant part thereof or a certified copy of the relevant entries in such list shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of the scrutiny.(5)
Nothing in this rule shall prevent any candidate from being nominated by more than one nomination paper; provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same electoral division.
[(5A) A candidate shall be prohibited from filing nomination paper for election from more than two electoral divisions of the panchayat.] (6) No person shall sign as a proposer [or seconder] any nomination paper or papers of more than one candidate at the same election in an electoral division and if he does so, then, of all the nomination papers signed by him as proposer [or seconder], only the nomination paper or papers of the candidate which or one of which is delivered first to the returning officer shall be accepted and the nomination paper or papers of all other candidates shall be rejected as soon as they are received by the returning officer and shall not be given any serial number and shall not be taken for scrutiny. (Emphasis supplied).
9. By second proviso, it has been provided that nomination form delivered before eleven O clock in forenoon or after three O clock in the afternoon shall be rejected as soon as it is received by the Returning Officer and shall not be considered at the time of scrutiny. The aforesaid shows that by statutory rule, requirement to submit nomination form between 11.00 a.m. and 3.00 p.m. is treated to be mandatory and the Election Officer has to reject the same if received prior to 11.00 a.m. or after 3.00 p.m. In the order issued for general instructions by the Election Commission dated 8.2.2012 it has been expressly provided vide clause 15(3), translation of which reads as under.
A candidate who is a member of any political party has to intimate in writing to the Election Officer in the prescribed form upto 3.00 p.m. noon on the last day fixed for acceptance of nomination forms.
10. The aforesaid instructions appear to be in conformity with the scheme of Rule 12 of the Rules for acceptance of the nomination form. It is not the case of the respective petitioner that nomination form was filed by him in a capacity as an independent candidate, but the case of the petitioner is that it was filed as a member of the political party Indian National Congress in the present case. It is not the case of the petitioner that mandate of the political party was submitted prior to 3.00 p.m. Therefore, it is an admitted position that mandate of the political party was submitted after 3.00 p.m. As such, if Rule 12 of the Rules is read with instruction No.15(3) of the Election Commission, nomination form together with mandate of the political party is required to be submitted latest by 3.00 p.m. on the last day fixed for acceptance of nomination form, such has not been complied with in the present case. As Rule 12 of the Rules provides for rejection of nomination form in the event it is submitted after 3.00 p.m., the same situation should apply in the event mandate of the political party is not submitted before the outer limit prescribed by the Election Commission and the simple reason is that nomination form could be said as complete only when it is coupled with the details of mandate of the political party for the candidate concerned. In view of the express language of Rule 12 of the Rules read with the instructions issued by the Election Commission, it cannot be said that such ground was not available to the Election Officer for rejection of the nomination form. It is true that in Rule 15, the ground is not mentioned, but when it has been expressly provided under Rule 12 of the Rules read with the instructions issued by the Election Commission under Rule 11 of the Rules, it is not possible for us to accept the contention that decision for rejection of nomination form is on the ground not available to the Election Officer. Further, Rule 15 of the Rules is a stage where scrutiny of the nomination form is to take place, whereas Rule 12 of the Rules is a stage where nomination form is to be accepted. There is material difference in operation of Rule 12 and Rule 15 of the Rules. Therefore, argument is misconceived and cannot be accepted. Under the circumstances, it cannot be said that rejection of nomination form on account of non-availability of the mandate of the political party was not authorized under the law.
11. On the aspect of declaration of remaining candidate as elected in three matters of Special Civil Application Nos.1542, 1543 and 1544 of 2013, it appears that if only one candidate was there, action could not be said as unauthorized under the law.
12. We may state that the matters were heard in the first sitting and learned counsel for the petitioner had taken time after arguments to take instructions from his client as to whether the petitioner would like to invite order or would like to withdraw the petition with a view to prefer election petition after the results of the election are declared in all the cases. In the second sitting, he prayed that the petitioner would invite appropriate order. Therefore, we have examined the contentions raised. However, it is observed that in the event any election petition is filed before the appropriate forum, rights and contentions of both the sides shall remain open.
13. All the petitions are disposed of accordingly.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) pathan Page 10 of 10