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Hanifabi Vs. Kamal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1146 of 1972
Judge
Reported inAIR1978Bom283; 1977MhLJ673
ActsBombay Village Panchayats Act, 1959 - Sections 14, 15(1) and 15(2); Bombay Village Panchayats Act, 1958 - Sections 15; Representation of People Act, 1951 - Sections 37 and 82; Cantonments Act, 1924 - Sections 31; Bombay Village Panchayats Election Rules, 1959 - Rules 8, 10, 11, 12(4), 13, 14, 43 and 47; Rajasthan Town Municipalities Act, 1951 - Sections 19
AppellantHanifabi
RespondentKamal and ors.
Appellant AdvocateN.S. Munshi, Adv.
Respondent AdvocateR.N. Desai, Adv.
Excerpt:
.....papers and ending with the declaration of the result - further, the candidate whose nomination paper was rejected was no longer included in the expression 'candidate at such election ' - however, the court provided that the candidate could file a election petition and if he would have succeeded in that petition and had obtained a finding that his nomination paper was wrongly rejected, then he would be able to contest the election. - - it related to the election for the akola constituency of the state assembly of madhya pradesh which was held on 13-12-1951. in that petition the petitioners had impleaded as respondents the three unsuccessful candidates who went to the polls. 16. the next contention that was raised, rather feebly, was that the election petition was not presented..........officer, respondent no. 2 was declared elected to the general seat.4. respondent no. 1, kamal filed election petition in the court of the civil judge, senior division, washim, under section 15 of the bombay village panchayats act (hereinafter referred to as the act) for setting aside the election of respondent no. 2 badrinarayan who was elected to the general seat. respondent no. 1 contended in that petition that her nomination paper had been improperly rejected. she prayed that the election to the general seat of the respondent no. 2 badrinarayan was liable to be set aside. on consideration of the material before him including the decision of this court in special civil applns. nos. 528, 529 and 530 of 1970 in which the order as regards disqualification of the husband of respondent.....
Judgment:

Kambli, J.

1. This petition is directed against the order dated 13-9-1972 passed by Civil Judge, Senior Division, Washim, setting aside the election of Ward No. 4 of the Malegaon Gram Panchayat held on 25-5-1970, including the election of the petitioner as a woman candidate from that ward, under Section 15 of the Bombay Village panchayats Act, 1958.

2. Ward No. 4 of Malegaon was a double member constituency and one seat was reserved for a woman candidate.The elections to the village Panchayat were to be held on 24-5-1970. The nominations were to be submitted by 6-5-1970. The scrutiny thereof was to be done on 7-5-1970, and the counting was scheduled for 25-5-1970.

3. The petitioner had filed her nomination before the prescribed date, specifically disclosing therein that she was contesting for the 'reserved seat'. The respondents 1 to 4 had also filed their respective nominations for the general seat. Respondent No. 1 was a voter, from Ward No. 6. She had however filed her nomination paper for election from Ward No. 4. All the nomination papers were scrutinised by the Returning Officer on 7-5-1970. In the said scrutiny, the Returning Officer found that the respondent No. 1, Kamal was disqualified to be a member of Gram Panchayat, inasmuch as she was a defaulter within the meaning of Section 14 (h) of the Bombay Village Panchayats Act. He, therefore, rejected her nomination paper. An appeal against that rejection was filed by respondent No. 1, Kamal, under Rule 12 (4) of the Bombay Village Panchayats Elections Rules, 1959, before the Tahsildar, Washim, who rejected that appeal on 11-5-1970. The petitioner was the only woman candidate left in the field and she was declared elected by the Returning Officer, Respondent No. 2 was declared elected to the general seat.

4. Respondent No. 1, Kamal filed Election Petition in the Court of the Civil Judge, Senior Division, Washim, under Section 15 of the Bombay Village Panchayats Act (hereinafter referred to as the Act) for setting aside the election of respondent No. 2 Badrinarayan who was elected to the general seat. Respondent No. 1 contended in that petition that her nomination paper had been improperly rejected. She prayed that the election to the general seat of the respondent No. 2 Badrinarayan was liable to be set aside. On consideration of the material before him including the decision of this Court in Special Civil Applns. Nos. 528, 529 and 530 of 1970 in which the order as regards disqualification of the husband of respondent No. 1 under Section 14 (h) of the Act was set aside, the learned Civil Judge held that the nomination of respondent No. 1 was improperly rejected. It may be noted that on the day of the scrutiny of nomination papers an objection was raised to the nomination of respondentNo. 1 on the ground that she was a defaulter in respect of taxes of the village Panchayat, Malegaon, under Section 14 (h) of the Act, The Returning Officer had upheld that objection and had rejected the petitioner's nomination paper. It appears that this liability to pay the tax was of the husband of respondent No. 1 and it was held that respondent No. 1 also being the member of the joint family was disqualified, as contemplated by Explanation 2 to Section 14 of the Bombay Village Panchayats Act. It was held in one of the special civil applications referred to above that husband of respondent No. 1 had not incurred the disqualification on the basis of which the nomination paper of respondent No. 1 was rejected was also held to be improper.

5. After the learned Civil Judge held that the nomination paper of respondent No. 1 was wrongly rejected, he wholly set aside the election of Ward No. 4 including the election of Hanifabi, the petitioner in this case.

6. It was contended before the learned Civil Judge that the election of the present petitioner was not liable to be disturbed and therefore it should be maintained. The learned Civil Judge negatived that contention holding that if the rejection of the nomination paper of respondent No. 1 was improper it was obvious that the petitioner and respondent No. 1 would be the two female candidates for the reserved seat. In that view, he set aside the election of Ward No. 4 including election of the petitioner: Hanifabi. Being aggrieved, the petitioner has preferred this petition.

7. Mr. Munshi, the learned counsel for the petitioner, contended that respondent No. 1 was not competent to file the election petition as according to him the remedy of election petition under Section 15 of the Bombay Village Panchayats Act is available only to 'a candidate at such election' or to any person qualified to vote at the election to which such question refers. According to him, respondent No. 1 could not be said to be 'a candidate at the election' nor she was a voter from Ward No. 4 and, therefore, she could not file the election petition.

8. Admittedly, respondent No. 1 Kamal was not a voter from Ward No. 4 though she had filed the nomination paper for her election from that Ward.However, she could file the election petition under Section 15 of the Act if she is held to be a candidate at such election of that Ward. The question, therefore, for consideration is whether respondent No. 1 could be said to be a candidate at election of Ward No. 4. It is contended for the petitioner that respondent No. 1 could not be said to be a candidate at the election inasmuch as her nomination paper was rejected by the Returning Officer which rejection was confirmed by the Tahsildar in appeal. She was, therefore, not a candidate at the election. It Is not possible for us to accept this contention.

9. We may refer to the decision of the Supreme Court in Bhikaji Keshao v. Brijlal Nandlal : [1955]2SCR428 . In that case an appeal was filed before the Supreme Court against the judgment and order of the Election Tribunal, Akola, Madhya Pradesh, dated 1-5-1953 dismissing the election petition filed by the appellants. It related to the election for the Akola Constituency of the State Assembly of Madhya Pradesh which was held on 13-12-1951. In that petition the petitioners had impleaded as respondents the three unsuccessful candidates who went to the polls. However, three other persons were nominated as candidates at the election. Their nominations were found to be in order on scrutiny by the Returning Officer but within the time allowed these three persons withdrew from the election under Section 37 of the Representation of the People Act, 1951. These three persons were not impleaded as respondents. The view taken by the Tribunal was that these persons were also necessary parties and that their nonjoinder rendered the petition liable for dismissal in view of Section 82 of the Act. It was argued before the Supreme Court that this view was erroneous and that the persons who filed their nominations and who withdrew from the contest within the prescribed time in spite of their nominations having been found to be in order on scrutiny by the Returning Officer, cannot be said to fall within the category of 'candidates duly nominated at the election'. Referring to this argument, the Supreme Court observed (at p. 614) :--

'If we were called upon to settle this controversy, we would prefer to base the decision not on any meticulous construction of the phrase 'at the election' buton a comprehensive consideration of the relevant provisions of the Act and of the rules framed thereunder and of the purpose, if any of the requirement under Section 82 as to the joinder of parties other than the returned candidate.'

10. It would appear from the above observations that the meaning of the expression 'a candidate at the election' in a particular Act has to be ascertained on a comprehensive consideration of the relevant provisions of the Act and of the rules framed thereunder and the purpose and requirements of the relevant provisions in the Act. When the matter is so investigated with reference to the provisions in the particular Act and the Rules made thereunder it may lead to the conclusion that the expression 'a candidate at the election' has been used in the Act concerned to denote a candidate at any stage of election starting with the filing of the nomination papers and ending with the declaration of the result. This view finds support from the decision of the Madhya Pradesh High Court in Ramnarayan Maluram v. Vishnu Krishnarao : AIR1957MP20 . It was a case of an election under Cantonments Act (2 of 1924), Section 31. On consideration of the provisions of the Act and the Rules framed thereunder particularly Rule 43, it was held (at p. 22):

'Both the expressions, 'a candidate at the election' and 'a candidate for the election' have been used in the said Rules to denote a candidate at any stage of election starting with the filing of nomination papers and ending with the declaration of the result.'

The observation of the Supreme Court in Mangoo Singh v. Election Tribunal, Bareilly : [1958]1SCR418 may also be usefully referred to. It is observed there:

' 'Election' is a continuous process consisting of several stages and embracing many steps of which nomination is one; nomination is the foundation of a candidate's right to go to the polls and must be treated as an integral part of the election.'

11. Section 15 (1) of the Village Panchayats Act provides that if the validity of any election of a member of a Panchayat is brought in question by any candidate at such election or by any person qualified to vote at the election towhich such question refers, such candidate or person may, at any time within fifteen days after the date of the declaration of the result of the election, apply to the Civil Judge, for the determination of such question. Section 15 (2) provides that an enquiry shall thereupon be held by the Judge and he may after such enquiry as he deems necessary pass an order, confirming or amending the declared result, or setting the election aside, What is the scope of such enquiry came to be considered by a Division Bench of this Court in Manohar Ramchandra Manekar v. G. Section Solanke 1964 Mh LJ 739. It was argued before the Bench that a decision regarding acceptance or rejection of a nomination paper is not within the ambit of enquiry under Section 15 of the Bombay Village Panchayats Act, Repelling that argument the Division Bench held that they did not find any limits on the power of the Judge making an enquiry into an election petition under Section 15 (2) which in any way hampers him from adjudicating as to the proper or improper acceptance of the nomination paper of a candidate. It will thus be seen that an election petition can be filed under Section 15 (1) of the Act on the ground that a nomination paper of a candidate is improperly rejected. If election petition can be filed on this ground, it would follow that it mav be filed either by a voter qualified to vote at the election or by the candidate concerned. The rejection of the nomination paper of a candidate may prevent him from going to the poll. However, in view of the fact that rejection of his nomination: paper can be contested in an election petition, it can be said that his right to contest the election after the rejection of his nomination paper is suspended temporarily. If he files an election petition and succeeds in that petition and obtains a finding that his nomination paper was wrongly rejected, he will be able to contest the election. In view of this position, it will have to be held that a candidate whose nomination paper has been rejected does not cease to be a candidate at the election.

12. Reference to the Bombay Village Panchayats Election Rules, 1959, and particularly Rules 8, 10, 11, 13 and 14 would show that a person filing a nomination paper for the election is referred to as a candidate. Rule 11 refers to the scrutiny of nomination and provides that the Returning Officer shall reject a nomi-nation paper of a candidate on any of the grounds mentioned in Sub-rule (2) (i) (ii). Rule 13 refers to the withdrawal of candidature. It says that any candidate may withdraw his candidature by a notice in writing subscribed by him and delivered to the Returning Officers. Rule 14 speaks of preparation of list of contesting candidate and notice of election. It provides:

'On the expiry of the period for the withdrawal of candidature provided in Rule 13, the Returning Officer shall prepare under his signature a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidatures within the said period.'

It would thus be seen that candidates whose nomination papers are not rejected by the Returning Officer or who have not withdrawn their candidatures are referred to in Rule 14 as contesting candidates. Now, if we turn to Section 15 (1) of the Act it does not say that an election petition can be filed by a contesting candidate only. However, Section 15 (1) provides that an election petition may be filed by any candidate at such election. If the Legislature had intended that an election petition should be filed by a contesting candidate only there would have been no difficulty in using the expression 'any contesting candidate at such election'. As we have pointed out above the Supreme Court has in Mangoo Singh's case : [1958]1SCR418 (supra) observed that election is a continuous process consisting of several stages and embracing many steps of which nomination is one. In view of this position, a candidate who files the nomination paper and whose nomination paper happens to be rejected still in our opinion he is a candidate at such election and especially so when under Section 15 (1) of the Act the improper rejection of a nomination paper can be validly enquired into, resulting in the setting aside of the election in case the rejection of a nomination paper is found to be improper.

13. We are, therefore, of the view that a candidate whose nomination paper is rejected still continues to be a candidate at an election of the Village Panchayats within the meaning of Section 15 (1) of the Act.

14. This view of ours is supported by the decision of the Allahabad High Courtin Vishwa Mitra v. District Judge, Jhansi : AIR1956All89 . It was a case of an election under Cantonments Act (1924), Section 31. It was held that a candidate at the election includes candidate whose nomination paper was rejected. The relevant observations are:

'The phraseology of each section has to be interpreted in the light of the context and no assistance can be taken from reference to the provisions of othersimilar Acts.

The fact that improper refusal of a nomination paper has been made specifically a ground for challenging an election by Rule 47 is a necessary factor to be considered in interpreting the words 'at the election' in Rule 43.

If the framers of the Rules had thought that the words 'at the election' did not include persons whose nominations had been wrongfully rejected, an express provision would have been made to that effect. The framers of the Rules having thought that the words 'at the election' included a candidate whose nomination had been wrongfully rejected, did not further provide that a person, whose nomination has been rejected, will have a right to file a petition.'

We may also usefully refer to the decision of Rajasthan High Court in Tekchand v. Banwarilal . It was a case of election under Rajasthan Town Municipalities Act (23 of 1951), Section 19. It was observed there:

'The term 'election' has both a wide and a narrow meaning and where necessary, there can be no objection whatever to giving it a wider meaning which embraces the entire process of election right from the time when a written notice in connection with the holding of an election is given down to the stage where the returning officer declares the result of the election.

The word 'election' as used in Section 19 properly bears, and should be understood in its extensive sense, namely, that it embraces within itself the entire process of election beginning with the filing of a nomination paper and the several stages and steps subsequent thereto culminating in the declaration of the result by the Returning Officer.

Similarly, the word 'candidate' in Section 19 must also be understood in its wider sense and must not be confined to a per-son whose nomination paper has been accepted and who, therefore, is in a position to stand for the poll. The expression 'candidate who stood for election' occurring in Section 19 connotes not merely the eligible candidates who actually take part in the poll but also those who file their nomination papers to contest the election but stand rejected by the Returning Officer and who have thus been thrown out at an earlier stage and are disabled from actually taking part in the poll.'

15. We may in this context refer to a decision of the Division Bench of this Court in Sitaram Hirachand Birla : AIR1953Bom293 which is distinguishable on facts. That was a decision on a petition filed by a successful candidate at an election held for a seat in the Bombay Legislative Assembly from the Erandol Taluka Constituency. It was a case under the Representation of the People Act, 1951. The question before the Division Bench was whether it was necessary for the petitioner to join as parties all candidates whose nomination papers were accepted. It was contended before the Division Bench on behalf of the petitioner that a candidate whose nomination was accepted and who withdrew subsequently from the candidature was a necessary party to the petition. The contention was rejected. The expression 'the candidates who were duly nominated at the election' fell for construction before the Division Bench. It was observed by the Division Bench that the expression 'at the election' emphasises the point of time when the election takes place. In that view it was held that the respondent who had withdrawn from the candidature was not a necessary party to the petition. This decision of our Court, however, was a case under the Representation of the People Act, 1951. The question before the Court as pointed out above was whether a candidate whose nomination paper was accepted but who subsequently withdrew need be joined as a party to an election petition. It was held that such a candidate was not a candidate duly nominated 'at the election'. Obviously the phrase 'duly nominated at the election' was required to be construed in this decision in accordance with the provisions of the Representation of the People Act, 1951. Now, the Supreme Court as we have pointed out above in the case of Bhikaji Keshao v. Brijlal Nandlal : [1955]2SCR428 has observedthat the phrase 'at the election' has to be construed on a comprehensive consideration of the relevant provisions of an Act and of the Rules. In the instant case, we are concerned with the provisions of the Bombay Village Panchayats Act and the Rules framed thereunder and on consideration of those provisions, we are of the view that the expression 'candidate at the election' must not be confined to a person whose nomination paper has been accepted and who, therefore, is in a position to go to the poll, The contention raised on behalf of the petitioner that a person whose nomination paper for an election of the Village Panchayat has been rejected by the Returning Officer cannot file an election petition under Section 15 (1) of the Act has to be rejected.

16. The next contention that was raised, rather feebly, was that the election petition was not presented within the time prescribed by Section 15 of the Act, It may be noted that the election petition in the Court of Civil Judge, Senior Division, Washim was presented on 8-6-1970. It appears that the petitioner was declared elected on 12-5-1970 as she was the only lady candidate. Admittedly, the results of the elections, however, were declared on 25-5-1970 after the counting of the votes. The election petition wag filed within 15 days from that time. What Section 15 (1) of the Act requires is that the candidate or a voter seeking to challenge the election has to make an election petition under Section 15 (1) of the Act within 15 days after the date of the declaration of the result of the election. Now, in this case, the declaration of the result was admittedly done on 25-5-1970. The election petition is filed on 8-6-1970. The contention, therefore, that the election petition was filed beyond time, is untenable.

17. No other point was raised.

18. In the result, the petition fails and is dismissed. In the circumstances of the case, there would be no order asto costs.

19. Petition dismissed.


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