Bombay High Court
Rashmi W/O Shyamkumar Barve (Rina D/O ... vs Dy. Commissioner And Member, District ... on 4 April, 2024
Author: M. S. Jawalkar
Bench: Avinash G. Gharote, Mukulika Shrikant Jawalkar
907-WP2155.24.odt
1/20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2155 OF 2024
Rashmi w/o Shyamkumar Barve
(Rina d/o Somraj Sonekar, name before marriage)
Vs.
Deputy Commissioner & Member, District Caste
Certificate Scrutiny Committee, Nagpur and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. S.R.Narnaware, counsel for the petitioner.
Mr. D.V.Chavan, GP for respondents-State.
Ms. Neerja Choubey, counsel for respondent No.4.
Mr.S.P.Dharmadhikari, Sr.Adv.i/b Mr.M.P.Khajanchi,
counsel for respondent No.7.
CORAM : AVINASH G. GHAROTE &
SMT. M. S. JAWALKAR, JJ.
DATE : 4TH APRIL, 2024
1. Heard Mr. Narnaware, learned counsel for the petitioner. Mr. Deven Chauhan, learned Government Pleader for the respondent nos. 1 to 3 and 5, Miss Neerja Choubey learned Counsel for the respondent no.4 and Mr. S P. Dharmadhikari, learned Senior Counsel for the respondent no.7, all of whom have appeared suo motu.
2. The basic reliefs claimed in the petition is against the decision passed by the Caste Scrutiny Committee, Nagpur, dated 28/03/2024, (page 135), by which, the caste claim of the petitioner belonging to Scheduled Caste - 'Chambhar' which was earlier validated by the Caste Scrutiny Committee on 17/02/2020, on the complaint of respondent No.6 dated 20/03/2024 (page 104) has KHUNTE 907-WP2155.24.odt 2/20 been canceled on the ground, that the earlier validity certificate which was obtained by the petitioner, on 17/02/2020, was by practicing fraud. It also challenges the order dated 28/03/2024 (page 150) passed by the Returning Officer of 9 Ramtek Parliamentary Constituency, Nagpur by which the nomination of the petitioner, for the ongoing Lok Sabha Elections, has been rejected.
2.1. Mr.Narnavare, the learned counsel for the petitioner assailing both these orders contends, that once the Caste Scrutiny Committee had validated the caste claim of the petitioner by issuing validity certificate on 17/02/2020, a complaint against which, by the respondent No.7 on 27/02/2024 (page 159) was rejected in the light of Section 7(2) of the Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate Act, 2000 (hereinafter referred to as "Caste Certificate Act"), it was not permissible for the Caste Scrutiny Committee to have revisited the decision by exercising the power of review.
2.2. It is further contended that even if the decision dated 28/03/2024, by the Caste Scrutiny Committee had been taken on the complaint by the respondent No.6 however, the complaint by respondent No.6 indicates that it was at the behest of the respondent No.7 itself, for which he invites my attention to the last para (on record page 108), in the said complaint, which indicates that the documents for filing the said complaint were obtained by respondent no.6 from the respondent no.7.
KHUNTE 907-WP2155.24.odt 3/20 2.3. In support of his contention that the Scrutiny Committee has no power of review, he relies upon Bharat Nagu Garud Vs. State of Maharashtra, 2023 SCC OnLine Bom 2537 as well as Sameer Hariram Shende Vs. The Scheduled Tribe Caste Certificate Scrutiny Committee, Gondia in Writ Petition No.1224/2024 (para 28 to 30), and Ishwar Naga Bondalwar and anr. v. The District Caste Certificate Scrutiny Committee, Gadchiroli and others, Writ Petition No.472/2020 (page 139- in the compilation).
2.4. Further relying upon the language of section 7(1) of the Caste Certificate Act, it is contended that the same would be restricted to cancellation of certificate issued by the Competent Authority under Section 4 of the said Act and does not relate to a validity issued by the Scrutiny Committee under Section 6 of the said Act. He therefore submits that, the impugned decision of the Caste Scrutiny Committee, which cancels the validity, therefore, cannot be sustained in law.
2.5. Insofar as the locus of the respondent No.7 is concerned, it is contended that the earlier complaint filed by respondent No.7 in this regard on 27/02/2024 (page 159), already stood rejected, apart from which he would not fall within the definition of an 'aggrieved party', so as to have the locus to challenge the validity issued in favour of the petitioner, for which he places reliance upon Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra, reported in (2013) 4 SCC 465 (para-9).
KHUNTE 907-WP2155.24.odt 4/20 2.6. He further contends that while taking the decision dated 28/03/2024, by the Caste Scrutiny Committee there has been violation of the principles of natural justice for which he points out a series of events commencing from the complaint filed by the respondent No.7, which are as under :
(i) It is contended that on 30/01/2024 (page 95) the respondent no.7 had filed a complaint under Section 18(1) of the Right to Information Act, 2005 with the State Information Commissioner, alleging that the validity in favour of the petitioner was obtained by practicing fraud.
(ii) Surprisingly the State Information Commissioner took cognizance of the complaint and by order dated 28/02/2024 directed an enquiry by the Superintendent of Police, Nagpur Rural in this regard.
(iii) A challenge to this order was raised in Writ Petition No.1578/2024, by the petitioner in which by an order dated 05/03/2024, this Court prima facie recorded that the State Information Commissioner had exceeded its jurisdiction, in directing an enquiry by the Superintendent of Police, Nagpur (Rural) and consequently granted a stay to all the proceedings taken out by the State Information Commissioner (page 103).
(iv) It is submitted that in pursuance to the directions of the State Information Commissioner, as contained in the order dated 21/02/2024, the Superintendent of Police, Nagpur (Rural) has conducted an enquiry and submitted a report on 16/02/2024 (page 111) indicating commission of an offence under sections 420, 425, 468, 471 of the IPC, by the petitioner.
KHUNTE 907-WP2155.24.odt 5/20
(v) However, before the matter in Writ Petition No.1578/2024 could be decided, the State Information Commissioner, by a pursis dated 21/03/2024 (page 123) intimated withdrawal of all the orders dated 07/02/2024 and 21/02/2024 which were impugned in that petition on account of which by an order dated 22/02/2024, the Writ Petition No.1578/24 came to be disposed of (page 127).
(vi) It is just prior to this that on 20/03/2024, the respondent No.6 filed a complaint of a similar nature as that filed by the respondent No.7 earlier in point of time (page 104), before the Caste Scrutiny Committee.
(vii) It is on the basis of this complaint, by the respondent no.6, that the Caste Scrutiny Committee issued a notice to the petitioner on the same day i.e. 20/03/2024 (page 115) calling upon the petitioner to show cause by 22/03/2024 at 11:00 a.m. as to why the validity granted in her favour, ought not to be cancelled. It is material to note, that in this show cause notice dated 20/03/2024 (page 115) itself, the Caste Scrutiny Committee records, regarding the rejection of earlier complaint of a similar nature filed by the respondent No.7.
(viii) By communication dated 22/03/2024, the petitioner raised three preliminary objections namely that the complainant had no locus, second the Caste Scrutiny Committee has no power of review and third that the matter was then pending before the High Court in Writ Petition No.1578/2024 in which the stay was granted. A demand for supply of the copy of the complaint made by the respondent no.6 along with a time of 14 days to submit a detailed explanation was also sought (page 120).
KHUNTE 907-WP2155.24.odt 6/20
(ix) It is further contended that instead of deciding the preliminary objection, the Caste Scrutiny Committee by the communication dated 27/03/2024 (page 134), intimated to the petitioner, the receipt of the Vigilance Report and had asked the petitioner to remain present on 28/03/2024 at 9:45 a.m. (page 134). It is contended that this communication was received by the petitioner on 28/03/2024 at 10:00 a.m. thereby making it impossible for the petitioner to attend.
(x) Since the petitioner could not appear before the Committee on 28/03/2024 for the reason aforesaid, the Caste Scrutiny Committee by the impugned order dated 28/03/2024, declared the validity dated 17/02/2020 earlier issued in favour of the petitioner as having obtained by suppression of material facts and therefore invalid.
(xi) In the light of this narration Mr.Narnaware, learned counsel for the petitioner contends, that even the principle of natural justice of according the reasonable opportunity of being heard has not been followed. According to him, such a requirement is indicated in Section 7(1) of the Caste Certificate Act as well as Rule 17(11) (i),(ii) & (iii) of the Caste Certificate Rules, 2012. He therefore submits that on this touchstone also the action of the Caste Scrutiny Committee in invalidating the caste claim of the petitioner was not justified.
2.7. It is also contended by him, relying upon the communication dated 22/03/2024, (page 128), addressed by the Under Secretary of the State of Maharashtra, to the Caste Scrutiny Committee, Nagpur, that the decision of the Caste Scrutiny Committee was not an independent decision, but was politically motivated.
KHUNTE 907-WP2155.24.odt 7/20 2.8. It is therefore, in the light of above position, it is contended that the decision of the Caste Scrutiny Committee and all consequent actions are not tenable in law, and need to be stayed.
2.9. Mr.Chavan, learned Government Pleader on behalf of the respondents No.1 to 3 and 5, contends, that the impugned decision of the Caste Scrutiny Committee dated 28/03/2024, against the petitioner, was not ex-parte but on each and every stage, the petitioner was put to notice. Mr.Chavan, learned Government Pleader submits that the communication dated 27/03/2024, asking the petitioner to attend the Caste Scrutiny Committee on 28/03/2024 at 9.45 a.m., was in fact served upon the petitioner by e-mail on 27/03/2024 at 11.45 p.m. and therefore the petitioner was aware on 27/03/2024 itself in this regard and therefore there is no violation of the principles of natural justice.
2.10. He further relies upon the language of Section 7(1) of the Caste Certificate Act, to contend that the Caste Scrutiny Committee, had power to recall validity issued, in case fraud is committed by a person in whose favour it is issued.
2.11. Insofar as locus is concerned, he contends, that Section 7(1) of the Caste Certificate Act itself empowers the Caste Scrutiny Committee to take action either suo motu or otherwise, which would indicate that such an action can be initiated even on the basis of the illegality being brought to the notice of the Committee by any person whomsoever, and therefore, the question of locus would be immaterial, for which, reliance is placed by him on Rajeshwar KHUNTE 907-WP2155.24.odt 8/20 Baburao Bone v. State of Maharashtra, reported in (2015) 14 SCC 497.
2.12. He submits that even if the entire procedure or orders passed by the State Information Commissioner were ignored, even then, the independent examination of the impugned order of the Caste Scrutiny Committee, would indicate, that relevant material has been considered for passing the said decision which was necessary on the ground that while issuing the validity dated 17/02/2020 (page 165), no vigilance enquiry was carried out, which according to him is necessary in view of District Collector, Satara and anr. v. Mangesh Nivrutti Kashid, reported in (2019) 10 SCC 166 (para 28 to 32), in spite of which directions, the vigilance was not conducted, justifying the revisiting of the grant of validity.
2.13. It is further contended by him that the situation has lost its urgency inasmuch as the nomination of the petitioner, was rejected on 28/03/2024 and the stage has proceeded to the allotment of symbols which also has been crossed. It is therefore contended, relying upon N.P. Ponnuswami v. The Returning Officer, reported in AIR 1952 SC 64 (para 8) that no interference in the election process now is permissible and the only remedy is to question the result of the election by way of an Election Petition.
2.14. He further points out, that the membership of the petitioner of Zilla Parishad, Nagpur also has consequently being canceled by the order dated 02/04/2024 passed by the Divisional Commissioner, Nagpur.
KHUNTE 907-WP2155.24.odt 9/20 2.15. It is therefore, contended, that nothing has survived in the petition so far as grant of interim relief is concerned.
3. Mr. S. P. Dharmadhikari, learned Senior Counsel appearing for the respondent No.7 contends that the petition challenging the rejection of nomination paper of the petitioner, was clearly not maintainable, in view of law laid down by the Hon'ble Apex Court in Ponnuswami (supra) and in the light of what is laid down in Section 100(1)(c) of Representation of People Act 1951 and election petition was now the only remedy available.
4. Ms. Neerja Choube, learned counsel for the respondent No.4 submits, that the decision by the Returning Officer, to reject the nomination paper of the petitioner, was justified as the seat was reserved for a Scheduled Caste candidate and since the petitioner had lost that status, on account of her validity being declared as illegal, the only option open for the Returning officer was to reject her nomination. She further contends that now, the only mode of questioning the rejection of the nomination was by filing an election petition, as the process of election had already commenced. Ms Choube, learned counsel for the respondent No.4 relies on Ponnuswami (supra) also places reliance upon Mohinder Singh Gill v. Chief Election Commissioner reported in (1978) 1 SCC 405 and the proposition enunciated in para-92(1)(a) and (b). She also places reliance upon Election Commission of India v. Shivaji reported in (1988) 1 SCC 277 (para-6) and Manda Jaganath v. K.S.Rathnam, reported in (2004) 7 SCC 492 paras-12 and 13 to contend that KHUNTE 907-WP2155.24.odt 10/20 the remedy of the petitioner, vis-a-vis the rejection of the nomination paper would be only by filing an election petition under the relevant provisions of the Representation of People Act, 1951.
5. Mr. Narnaware, learned counsel for the petitioner in rebuttal submits that Mangesh Kashid (supra) was not attracted on account of language of Section 7(2) of the Certificate Act of 2000. He submits, by relying upon State of Punjab Vs. Davinder Pal Singh Bhullar, reported in (2011) 14 SCC 770 (para 108) that in case, the basis of the proceedings is gone, all consequential acts, actions, orders would fall to the ground automatically. He also places reliance upon Union Territory of Ladakh and others v. J & K National Conference reported in 2023 LawSuit (SC) 890, in support of his contention, that interference by this Court in the order dated 28/03/2024 by the Returning Officer will be permissible.
6. He also submits, that though on an earlier occasion, the notice dated 20/03/2024 was challenged before the Hon'ble Apex Court by filing petition under Article 32 of the Constitution, vide Diary No.1443/2024, in the light of the pendency of the present petition, the same was withdrawn on 01/04/2024.
7. Having heard the above arguments, we are of the considered opinion that a case for deciding the controversy on its merits has been made out. The question whether the power to cancel the validity vests with the Caste Scrutiny Committee in view of the language of Sec.7(1) of the Caste Certificate Act or the High Court KHUNTE 907-WP2155.24.odt 11/20 also needs determination. The plea that when on similar allegations, by the respondent no.7, the Caste Scrutiny Committee itself had dismissed the complaint of the respondent no.7, then on the same set of allegations, whether it was permissible for it to again consider the objection to the caste validity of the petitioner also needs determination. The manner in which the proceedings were conducted by the Caste Scrutiny Committee with the filing of the complaint by the respondent No.6 on 20/03/2024 and the passing of the impugned order on 28/03/2024, within a period of nine days, also needs to be gone into in light of the plea regarding violation of principles of natural justice and denial of a fair opportunity to the petitioner. Hence, issue notice for final disposal returnable on 22/04/2024. Learned Government Pleader Mr. Chavan waives notice for the respondents 1 to 3 and 5. Miss. Choube waives notice for the respondent no.4 and Mr. S.P.Dharmadhikari, learned Senior Counsel waives notice for the respondent no.7. The petitioner shall serve the respondent no.6 by all modes permissible in law including hamdast by the returnable date. The respondents who have appeared shall complete their pleadings by the returnable date, with advance copies to the petitioner.
8. Insofar as the plea for interim relief vis-à-vis the impugned order dated 28/03/2024 passed by the Caste Scrutiny Committee is concerned, we are of the considered opinion that the narration of events, as recorded above, which have led to the cancellation of the validity of the caste certificate of the petitioner, prima facie, indicate that no reasonable and fair opportunity of hearing has been afforded to the petitioner, by the Caste Scrutiny Committee, KHUNTE 907-WP2155.24.odt 12/20 which is evident by the admitted position on record that the notice indicating the supply of the vigilance report to the petitioner, even presuming what has been said by Mr. Chavan learned Government Pleader, was sent by e-mail on 27/03/2024 at 11.45 p.m. asking the petitioner to remain present before the Caste Scrutiny Committee on 28/03/2024 at 9:45 a.m., to be correct, clearly cannot be considered to be a reasonable opportunity.
Section 7 (1) and (2) of the Caste Certificate Act, 2000 read as under:
"7. Confiscation and cancellation of false Caste Certificate. - (1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any.
(2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or Court except the High Court under Article 226 of the Constitution of India."
Rules 17(11) (i), (ii) and (iii) of the Caste Certificate Rules, 2012 read as under:
"17. Procedure of Scrutiny Committee.- (1)..... (2) ..........
(3) ..........
(4) ..........
(5) ..........
(6) ..........
(7) ..........
(8) ..........
(9) ..........
KHUNTE 907-WP2155.24.odt 13/20 (10) ..........
(11)(i) In case of those cases which are refered to Vigilance Cell, upon considering the 'Report of Vigilance Cell', if the Scrutiny Committee is not satisfied about the claim of the applicant, it shall call upon the applicant to prove his Caste claim, by discharging his burden, as contemplated under section 8 of the Act, by issuing a notice in FORM-25 coupled with copy of 'Report of Vigilance Inquiry';
(ii) After issuance of notice/intimation, if applicant requests, by way of written application, for copies of vigilance inquiry report or any other document or prays for adjournment, reasonable time for final hearing or for submitting written submission, it may be granted;
(iii) After affording an opportunity of hearing, Scrutiny Committee shall,-
(a) on being satisfied regarding the genuineness of the Caste claim, decide the matter finally, upon appreciation of evidence, by its reasoned decision, i.e. decision of committee and issue Certificate of Validity, in FORM-24; and forward the same to concerned authorities within thirty days, by preserving its scanned copy (in electronic form );
(b) on being not satisfied about the genuineness of the claim and veracity of the Caste Certificate, it shall pass its decision, thereby canceling and confiscating the original Caste Certificate and invalidating the Caste or Tribe Claim of the applicant / claimant;
(c) upon invalidation of Caste or Tribe claim, the Caste Certificate under inquiry shall be stamped as "canceled and confiscated", and forward the same along with copy of decision, to the Competent Authority and concerned parties, by preserving its scanned copy (in electronic form);
(d) after conclusion of the hearing of the case, the work of writing of the decision shall be assigned to one of its member by the Scrutiny Committee;
(e) in case of difference of opinion amongst the members of Committee, on the main order of majority, the dissenting member shall write his separate order;
(f) The name of member of Committee to whom work of writing final order was assigned, shall be mentioned in the Roznama. Moreover, front page of final order shall disclose the date of the order."
9. That a reasonable opportunity has to be afforded is clearly spelt out from a reading of section 7(1) of the Caste Certificate Act, as well as Rules of 2012, framed thereunder and specifically Rules 17(11) (i),(ii) & (iii) of the Caste Certificate Rules, 2012. Apart from KHUNTE 907-WP2155.24.odt 14/20 the above, the impugned order canceling the caste validity of the petitioner, has been passed on 28/03/2024 itself, the date on which, the petitioner was asked to appear. The tearing hurry, which is indicated from the narration of events above, resulting in completion of the enquiry within a period of nine days from the date of the filing of the complaint on 20/03/2024 and passing of the impugned order on 28/03/2024 by the Caste Scrutiny Committee, leaves much to be said about the conduct of the Caste Scrutiny Committee, Nagpur in the matter of passing of the impugned order dated 28/03/2024. The role of the State Information Commissioner, for the State, in directing enquiry into the caste validity granted by the Caste Scrutiny Committee, which was definitely, beyond his jurisdiction, appears to be the genesis of the entire issue. Though the order has subsequently been withdrawn, that does not absolve the State Information Commissioner, of culpability in the matter, as it is his order dated 28/02/2024, which has set the ball rolling. Hence by way of an interim order, we direct that the effect and operation of the impugned order dated 28/03/2024, passed by the Caste Scrutiny Committee shall stand stayed till further orders.
10. Insofar as the plea for interim relief vis-à-vis the impugned order dated 28/03/2024 passed by the Returning Officer, rejecting the nomination of the petitioner is concerned, it is necessary to note that the election programme has commenced from 20/03/2024 and has reached a stage where admittedly, as of today, even the election symbols have been allotted. In Ponnuswami (supra) the 6 Judges Bench of the Hon'ble Apex Court, while considering the scope of interference by the High Court in view of the bar as KHUNTE 907-WP2155.24.odt 15/20 contained in Article 329(b) of the Constitution had the following to say :
"8. In construing this article, reference was made by both the parties in the course of their arguments to the other articles in the same Part, namely, Articles 324, 325, 326, 327 and 328. Article 324 provides for the constitution and appointment of an Election Commissioner to superintend, direct and control elections to the legislatures; Article 325 prohibits discrimination against electors on the ground of religion, race, caste or sex; Article 326 provides for adult suffrage; Article 327 empowers Parliament to pass laws making provision with respect to all matters relating to, or in connection with, elections to the legislatures, subject to the provisions of the Constitution; and Article 328 is a complementary article giving power to the State Legislature to make provision with respect to all matters relating to, or in connection with, elections to the State Legislature. A notable difference in the language used in Articles 327 and 328 on the one hand, and Article 329 on the other, is that while the first two articles begin with the words "subject to the provisions of this Constitution", the last article begins with the words "notwithstanding anything in this Constitution". It was conceded at the Bar that the effect of this difference in language is that whereas any law made by Parliament under Article 327, or by the State Legislatures under Article 328, cannot exclude the jurisdiction of the High Court under Article 226 of the Constitution, that jurisdiction is excluded in regard to matters provided for in Article 329"
11. The dictum in Ponnuswami (supra) has been further considered by a still larger Bench of seven Judges of the Hon'ble Supreme Court in Hari Vishnu kamath v. Syed Ahmad Ishaque, reported in (1954) 2 SCC 881, where the above position has been accepted and it has been clarified that the bar under Article 329(b) of the Constitution would not be attracted, only where an election petition, questioning the election already stands filed before the Tribunal, for in that case, the matter has to be viewed in light of the general powers of superintendence of the High Court over the Tribunals. The position has been further considered by Constitution Bench of Five Judges in Mohinder Singh Gill (supra) in the following terms :
KHUNTE 907-WP2155.24.odt 16/20
92. Diffusion, even more elaborate discussion, tends to blur the precision of the conclusion in a judgment and so it is meet that we, synopsize the formulations. Of course, the condensed statement we make is for convenience, not for exclusion of the relevance or attenuation of the binding impact of the detailed argumentation. For this limited purpose, we set down our holdings :
1 (a) Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result.
(b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate."
12. The position of non-interference has also been reiterated in Ram Phal Kundu v. Kamal Sharma, reported in (2004) 2 SCC 759 (para 24), by holding that once the nomination paper of a candidate is rejected, the Representation of People Act, 1951, provides only one remedy, that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage, by relying upon Mohinder Singh Gill (supra) and ECI v. Shivaji (supra). In Manda Jaganath v. K. S. Rathnam (supra), which was a case of rejection of Form B, which was found to be unacceptable and therefore though the nomination was accepted, the symbol reserved for the Telangana Rashtra Samithi was not allotted, while holding that whether the Returning Officer is justified in rejecting this Form B submitted by the first respondent therein or not, was not a matter for the High Court to decide in the exercise of its writ jurisdiction and this issue should be agitated by an aggrieved party in an election petition only, it was also held that under Article 329(b) of the Constitution of India there is a specific prohibition against any challenge to an election either to the Houses of Parliament or to the Houses of Legislature of the State except by KHUNTE 907-WP2155.24.odt 17/20 an election petition presented to such authority and in such manner as may be provided for in a law made by the appropriate legislature. Parliament has by enacting the Representation of the People Act, 1951 provided for such a forum for questioning such elections hence, under Article 329(b) no forum other than such forum constituted under the RP Act can entertain a complaint against any election. It was also held that the word "election" has been judicially defined by various authorities of the Hon'ble Supreme Court, to mean any and every act taken by the competent authority after the publication of the election notification.
13. In Vinod Pandurang Bharsakade v. Returning Officer, reported in 2003 (4) Mh.L.J. 359, the Full bench of this Court while considering Article 243-O(b) of the Constitution, the language of which is similar to that used in Article 329(b) of the Constitution, in the context of rejection of the nomination paper in Panchayat elections, held as under:
"67. To us, the law appears to be well settled and it is that once the election process has started, it has to be over in accordance with the provisions of the relevant statute. Once an election notification is issued, the process can be said to have started. There are various stages of election. One of such stages is scrutiny of nomination papers. It is thus a part and parcel of election process. The law contemplates only one attack in election matters, and that too, after the election is over. A petition under Article 226 of the Constitution against rejection of nomination paper, therefore, cannot lie. Since, in the instant cases, nomination papers of the petitioner have been rejected, keeping in view the mandate of the Constitution in Article 243-O(b) and sections 15 and 15-A of the Act, the remedy available to the petitioners is to file election petition in accordance with provisions of the Act and not to invoke extraordinary jurisdiction of this court under Article 226 of the Constitution."
14. Another Full Bench of this Court in Karmaveer Tulshiram Autade & ors v. State Election Commission and connected matters reported in 2021 SCC OnLine Bom 1150 KHUNTE 907-WP2155.24.odt 18/20 while considering a similar challenge as was considered in Vinod Pandurang Bharsakade (supra) has answered the questions as under :
Sr. Question Opinion
No
(i) Does allowing a challenge (i) Allowing a challenge in a writ petition
in a writ petition to to rejection of nomination form to
rejection of nomination contest an election and granting the relief
form to contest an election claimed by setting aside such order of and granting the relief rejection is definitely not a step to sub- claimed by setting aside serve the progress of election and/or such order of rejection, facilitate its completion in the sense amount to intervention, enunciated in Mohinder Singh Gill obstruction or protraction (supra) and explained in Ashok Kumar of the election or is it a (supra) though it may not always amount step to facilitate the to intervention, obstruction or process of completion of protraction of the election; election?
(ii) Whether rejection of (ii) Article 243-O(b) of the Constitution nomination form would of India is a bar for entertaining a writ attract the provisions of petition under Article 226 of the Article 243-O(b) of the Constitution against an order passed by Constitution of India? the Returning Officer rejecting nomination paper and such provision would clearly be attracted whenever a writ petition is presented before a Court for its consideration;
15. The above position clearly indicates that rejection of a nomination paper by the Returning Officer, would not be susceptible to a challenge before this Court by invoking the jurisdiction under Article 226 of the Constitution and the remedy would be an election petition, and we are bound by the aforesaid view.
KHUNTE 907-WP2155.24.odt 19/20
16. It is also material to note that Sec.100(1)(c) of the Representation of People Act, 1951, while delineating the grounds on which an election can be challenged, provides that improper rejection of the nomination can be one of the grounds available for challenge of the election, which in turn would indicate that such a challenge at an interim stage would not be permissible, considering that it cannot be considered as a step in aid of the election. The position, rather would be otherwise and would result in obstructing the conduct of the election, which is impermissible.
17. Though Mr. Narnavare, learned Counsel for the petitioner relies upon Davinder Pal Singh Bhullar (supra) and specifically paras 108 to 110, to contend that once the impugned order goes, all consequent orders automatically vanish, that however, has to be viewed in light of the mandate of Article 329(b) of the Constitution and Sec.100(1)(c) of the Representation of People Act, 1951, as indicated above. That apart the challenge to the impugned order dated 28/03/2024 passed by the Caste Scrutiny Committee, is still under consideration on account of which reliance upon Davinder Pal Singh Bhullar (supra) is of no assistance to the learned counsel for the petitioner.
18. J & K National Conference (supra) was a case pertaining to the non-allocation of the plough symbol in the general elections of Ladakh Autonomous Hill Development Council, in spite of the same having been reserved, for the J & K National Conference, to its candidates and the interference by the learned Single Judge, by directing notification of this symbol allotted to the party in terms KHUNTE 907-WP2155.24.odt 20/20 of para-10 and 10(A) of the Election Symbols (Reservation and Allotment) Order, 1968 and to allow the candidate set up by the petitioner party to contest on the reserved election symbol already allotted to the party, was clearly a step in aid of the election, on which count it was held that the interference was warranted (para-
40). As indicated above, interference in the rejection of the nomination paper by the Returning Officer, is not something, which can be considered as a step in aid of the election process, as the remedy there against, is only by way of an election petition under section 80 of the RP Act, 1951 in which the plea that the nomination has been improperly rejected is open to be raised for declaring election to be void, under section 100(1)(c) of the RP Act, 1951.
19. We therefore are of the opinion, that though the action of the Caste Scrutiny Committee in passing the impugned order dated 28/03/2024, cannot be countenanced and the order dated 28/03/2024 by the Returning Officer is a fall out of the said order, however, in view of the law as applicable in the matter, as stated above, we are unable to grant any interim relief, to the petitioner vis-à-vis the order dated 28/03/2024 passed by the Returning Officer. The prayer therefore in that regard, for interim relief, vis- a-vis the order dated 28/03/2024 by the Returning Officer, will have to be turned down.
20. The matter may now be posted on 22/04/2024 as indicated earlier for final disposal.
(SMT.M.S.JAWALKAR, J) Signed by: Mr. G.S. Khunte (AVINASH G.GHAROTE, J) Designation: PS To Honourable Judge Date: 04/04/2024 21:24:59 KHUNTE