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Manohar Ramchandra Manekar Vs. G.S. Solanke - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 191 of 1962
Judge
Reported in(1964)66BOMLR578
AppellantManohar Ramchandra Manekar
RespondentG.S. Solanke
DispositionPetition dismissed
Excerpt:
.....failing to endorse time and date when nomination, paper received--subsequent endorsement made by returning officer that nomination paper received late whether acceptable--whether returning officer can reject nomination paper on date fixed for receiving nomination papers--other contesting candidates whether have right to be heard by appellate authority--decision, regarding acceptance or rejection of nomination paper whether within ambit of election tribunal.;rule 8(2) of the bombay village panchayat election rules, 1959, which requires the returning officer to make an endorsement of the exact time and date on the nomination paper must be strictly complied with in all cases, and if the returning officer fails to do so, then it cannot be canvassed that the nomination paper was delivered..........a date fixed for receipt of nomination papers. the nomination papers were to be received by the returning officer (respondent no. 2) between 11 a.m. and 4 p.m. on that date, at village yeoda. the distance between wadner-gangai and village yeoda is about 5 to 9 miles. it is connected by a road which is stated to be motorable, being part of akot-daryapur road. scrutiny of nomination papers was to be held on june 4, and the date for withdrawal of nomination was june 11, 1962. according to the petitioners, there were five candidates on whose behalf nomination papers were given from ward no. 2. only three candidates were to be elected to the three seats from this ward. nomination papers of sukhdeo and tukaram (respondent no. 3 and respondent no. 6) were rejected by the returning officer,.....
Judgment:

Abhyankar, J.

1. This joint petition by six petitioners challenges six different orders passed by the appellate authority under Rule 12 of the Bombay Village Panchayat Election Rules whereby that authority has set aside the rejection of the nomination papers of respondents Nos. 3 to 8 and accepted them as validly nominated candidates from different wards for election to the Wadner-Gangai Gram Panchayat. The Collector, Amravati, fixed an election programme for election to various wards for constitution of Village Panchayat of Wadner-Gangai. According to that programme, June 3, 1962, was a date fixed for receipt of nomination papers. The nomination papers were to be received by the Returning Officer (respondent No. 2) between 11 a.m. and 4 p.m. on that date, at village Yeoda. The distance between Wadner-Gangai and village Yeoda is about 5 to 9 miles. It is connected by a road which is stated to be motorable, being part of Akot-Daryapur road. Scrutiny of nomination papers was to be held on June 4, and the date for withdrawal of nomination was June 11, 1962. According to the petitioners, there were five candidates on whose behalf nomination papers were given from ward No. 2. Only three candidates were to be elected to the three seats from this ward. Nomination papers of Sukhdeo and Tukaram (respondent No. 3 and respondent No. 6) were rejected by the Returning Officer, because they were filed late i.e. after 4 p.m.. Two candidates were to be elected from ward No. 3. Five nomination papers were filed in respect of these two seats. Out of these, nomination paper of one Shanker Tukaram (respondent No. 7) was rejected because it was filed late. Nomination paper of Assadullakhan was rejected on merits and the fifth candidate Bhaurao withdrew his nomination, thus leaving only two candidates, Gunwant and Rashidkhan as the only candidates for the two seats. Ward No. 5 had also to elect two representatives for which four nomination papers were filed. Nomination paper of Bajirao Nathuji (respondent No. 5) was rejected as having been filed late; that of Baliram Jyotiba was rejected on merits, but he filed an appeal challenging that rejection and in appeal his nomination paper was accepted. Thus, there were three candidates remaining for contest in ward No. 5 for the two seats. In ward No. 6 two representatives were to be elected. Four persons had filed nomination papers, of whom the nomination papers of Haribhau and Gulabrao, i.e. respondents Nos. 8 and 4, were rejected as filed late by the Returning Officer.

2. Those candidates whose nomination papers were rejected by the Returning Officer as being filed late, i.e. beyond 4 p.m., preferred appeals separately before the appellate authority, i.e. the Mamlatdar. The Mamlatdar reversed the order of rejection of the nomination paper of each of these persons and accepted their nomination papers. The Mamlatdar did not issue any notice to any of the petitioners before hearing the appeal or deciding the same.

3. It is this order of the Mamlatdar in respect of each of the respondents accepting the nomination papers that is challenged in this petition by the petitioners. Originally it was stated in the petition that there was only one appeal filed by Sukhdeo (respondent No. 3) and that there was no other appeal filed by other respondents Nos. 4 and 8 and in spite of this respondent No. 1 the appellate authority had set aside the rejection of the nomination papers of other respondents as well. We had sent for the papers in connection with these nominations and the record of the appellate authority. It is now clear that separate appeals were filed on behalf of each of respondents Nos. 4 to 8 and that a common order was passed by respondent No. 1 in the appeal filed by respondent No. 3.

4. Respondent No. 1, the appellate authority, had to consider the question in each appeal whether the rejection of the nomination paper of the respondents was valid on the ground that the nomination papers were filed late. The appellate authority has observed in its order that the Returning Officer has failed to note the exact time of presentation of the nomination papers. The nomination papers were perused by the authority. He has also observed that it is absolutely necessary that exact time of presentation should be noted as provided for in the form, and in the absence of any such noting of the exact time the benefit therefrom must go to the appellants. The appellate authority also noticed the contention of the opponents that they were detained due to heavy rains and that they could not start early. The appellate authority, therefore, came to the conclusion that the rejection of the nomination papers by the Returning Officer on the ground that they were filed late was not justified.

5. Unfortunately, none of the respondents are present before us and none have filed any return. The original nomination papers which were filed by the respondents are, however, before us and we are constrained to notice that the Returning Officer does not seem to be aware of his duties in the matter of receipt of nomination papers and what he is required to do after receipt of those papers. In respect of nomination papers of Sukhdeo, Gulabrao and Bajirao, it is found that that portion of the nomination on which the time and date of receipt of the nomination paper is to be endorsed by the Returning Officer is completely torn. It is not possible to know, therefore, from the scrutiny of these papers of the three respondents whether or not the Returning Officer did make any endorsement at all regarding the date and time of the receipt of nomination papers. So far as the nomination papers of Shrimati Hirabai, Tukaram and Shankar are concerned, it is obvious that the Returning Officer has noted only the date of receipt of the nomination paper by him bit has omitted to record the time when the nomination papers were received by him. Similarly, we find that in none of these nomination papers the Returning Officer has cared to record the serial number or the order in which the nomination papers were received from these respondents. It is also found that on each of these nomination papers there is an endorsement to the effect that the application was received late and hence rejected. This endorsement purports to be made on the very date on which the nomination papers were received i.e. on June 3, 1962. The Returning Officer has put this date in his own hand in the nomination paper of Hirabai whereas in other nomination papers the date is below the endorsement of rejection as a facsimile of that date.

6. It is an admitted position that the Returning Officer did not accept the deposit which must have been offered by each of these candidates at the time of delivery of their nomination papers. So far as the record shows, we do not find any separate order having been passed by the Returning Officer on the next date i.e. on June 4, 1962, when the nomination papers were scrutinized. However, along with the memorandum of appeal filed by each of the respondents they have attached a communication received by each of them from the Returning Officer intimating that the nomination paper of each of the appellants has been rejected as it was received late. This appears to be a communication of the order and not the order itself.

7. The learned Counsel for the petitioners has raised two points in support of this petition. One, that the petitioners had acquired a valuable right of being declared elected because they were the only candidates remaining in the field in respect of the wards Nos. 2, 3 and 6, at any rate after the rejection of nomination papers of other contesting candidates. They had, therefore, the right to be heard by the appellate authority before the nomination papers of their opponents were accepted by the appellate authority in appeal. Secondly, it is also urged that the endorsement of the Returning Officer that the nomination papers of respondents Nos. 3 to 8 were received late should have been accepted as a fact established because respondents Nos. 3 to 8 did not apparently produce any evidence before the appellate authority to controvert the correctness of this endorsement, nor did they allege that they filed the nomination papers within time prescribed by the programme.

8. We shall first deal with the second contention as to whether the appellate authority acted within its jurisdiction in accepting the nomination paper of each of the respondents in the circumstances of this case. In our opinion, the Returning Officer in this case has completely failed to do his duty as required by the election rules. Under the election rules, Rule 8 prescribes that on the date appointed for the nomination of candidates, each candidate has to make an application in writing in Form A signed by him and present it either in person or through a representative authorised in writing in this behalf by such candidate to the Returning Officer. Sub-rule (2) is in the following terms:

On receiving a nomination paper under Sub-rule (1), the Returning Officer shall write on the nomination paper its serial number, and shall sign thereon a certificate stating the date on which and exact time at which the application was delivered to him.

In our opinion, a scrupulous adherence to this procedure is insisted upon by the rules and any dereliction of duty on the part of the Returning Officer in carrying out the provisions of these rules is not permitted. In the instant case what is to be found on close examination of the nomination paper is that the Returning Officer, i.e. respondent No. 2, has completely failed to do his duty in any of the three matters required to be done under Sub-rule (2) of Rule 8. He has omitted to note on the nomination paper the serial number; in three cases at least he has omitted to note on the nomination paper the date on which the nomination paper was delivered to him; and he has omitted to note in all the papers the exact time or any time at all at which the nomination paper was delivered to him. The failure on the part of respondent No. 2 to make the necessary endorsements required by Sub-rule (2) of Rule 8 has created several difficulties in this case which should never ordinarily arise if the Returning Officer1 were to comply with the provisions of Sub-rule (2). Instead of noting the exact time when the nomination papers were delivered to him, the Returning Officer seems to have made a subsequent endorsement on the application that the application was received late, and hence rejected. These endorsements are made on each of these nomination papers apparently on the same date i.e. on June 3, 1962. Now, as far as we can see, there is no power in the Returning Officer to reject the nomination paper whatever may be the defects in the paper on the same date. It is only on the date fixed for scrutiny of nomination papers according to the election programme that the Returning Officer is required to determine whether the nomination papers have been delivered in time and contained the necessary compliance with the rules in this behalf. It is at this time that he has to consider the objections, if any are raised, regarding the nomination paper and either on objection or on his own motion and after a summary enquiry the Returning Officer can reject a nomination on the grounds stated in Sub-rule (2) of Rule 11. One of the grounds on which the nomination paper is liable to be rejected is a failure of the candidate to comply with any of the provisions contained in the rules or the Act, Therefore, in a given case if it is found that the nomination paper is actually delivered beyond the time prescribed by the rules, the Returning Officer is well within his rights to reject the nomination paper on this ground. In our opinion, however, rejection of the nomination paper on the ground that it was filed late is intimately connected with the requirement of the rule that the Returning Officer shall endorse on the nomination paper the exact time at which and the date on which the nomination paper was delivered to him. If there is failure on the part of the Returning Officer to comply with this requirement of the law, we do not think that the Returning Officer has any jurisdiction subsequently at any rate on his own behalf to reject the nomination paper on the ground that it was delivered late. Whether a nomination paper is or is not delivered late is a matter which can always be checked by reference to the endorsement of the exact time at which the nomination paper was delivered made by the Returning Officer. It is possible that an objection on this ground may well be raised at the time of scrutiny by a contesting or opposing candidate. That then will be a matter for summary enquiry and the Returning Officer may have to make enquiry into such an objection. But in the absence of such an objection the only material on which the Returning Officer will be justified in rejecting the nomination paper will be the endorsement on the nomination paper of the exact time when the nomination paper was delivered to the Returning Officer. If the nomination paper does not bear an endorsement in this behalf, even the Returning Officer will be acting in excess of his jurisdiction in rejecting the nomination as filed late or beyond time because he has deprived himself of the means to ascertain whether in fact the nomination paper was or was not filed within time as required by the rules. In our opinion, therefore, the Returning Officer is not entitled to make any other endorsement on the nomination paper such as the nomination paper was filed late, except in the manner in which the time of delivery of nomination paper is to be indicated by endorsement given in the rule and that rule prescribes the endorsement of the exact time of delivery of nomination paper to the Returning Officer. In our opinion, therefore, the view taken by the appellate authority that doubt arose in such cases whether the nomination paper was not delivered in time cannot be assailed. It is contended before us that even though the exact time of the delivery of nomination paper was not noted by the Returning Officer, his endorsement of even date that the nomination paper was received late should have been acted upon or accepted by the appellate authority. We find it difficult to agree with this contention. The use of the word 'late' may have a different meaning in different contexts. It is not difficult to conceive of cases where the Returning Officer may have an incorrect idea as to the time limit up to which nomination papers are required to be delivered, and if he acts under some such impression that the nomination paper was delivered beyond time, the consequences of such negligence would be suffered by the candidate whose paper stands the risk of being rejected on the ground that it was delivered late. We must, therefore, hold that strict compliance with the rule requiring the Returning Officer to make an endorsement of the exact time and date on the nomination paper must be complied with in all cases, and if the Returning Officer fails to do his duty, then it is not possible to canvass that the nomination paper was delivered late merely on the strength Of the subsequent endorsement made by the Returning Officer.

9. There is a further safeguard given in the rule itself. It requires the Returning Officer to put a serial number on each of the nomination papers indicating the order in which the nomination papers were received by the Returning Officer. This is another check ensured by the rule in requiring the Returning Officer to indicate as to when the nomination paper was delivered to him. In the instant case the Returning Officer is probably not aware of his duty to make such an endorsement of serial number at all. We do not find any serial number endorsed on any of the nomination papers. In the absence of this material on record, we do not see how it could be still contended that the Returning Officer was entitled to reject the nomination papers.

10. When the matter went before the appellate authority, that authority seems to have accepted the contention of the respondents that they had reached the place in time and that they were detained due to heavy rains and could not start early. That is purely a question of fact which the appellate authority was entitled to determine according to the material before it. We, therefore, do not think that it is possible in this petition to have that matter adjudicated in face of the decision of the appellate authority and in view of the omission of the Returning Officer to do his duty under Sub-rule (2) of Rule 8.

11. This takes us to the first question raised, whether any of the petitioners have at all right to be heard by the appellate authority. In our opinion, there is no such right. It will be seen that the acceptance of nomination paper in spite of objection by a candidate is not liable to be challenged before an appellate authority. The time within which the appeal has to be filed is three days from the order of rejection. The appellate authority, constituted by the rules is the Mamlatdar who must necessarily dispose of the appeals, stationed at one place, distant from the place where the contesting candidates may be resident. It does not, therefore, appear likely that the rules intended that the right of hearing should be given to other contesting candidates who undoubtedly may be affected by the decision of the appellate authority one way or the other. We do not think it could be seriously contended that a wrong rejection of a nomination paper by a Returning Officer creates any right in the remaining candidates as such. After all, in a democratic process the accepted means of choice of representatives is by election. It is only in exceptional circumstances that a person may become entitled to be declared elected unopposed either because the remaining candidates have withdrawn or because the names of some of the candidates are liable to be rejected according to law. Therefore, it is not correct to say that the petitioners have acquired any legal right to be declared elected. Such a right accrues to them under Rule 15 of the rules subject to the compliance of Rules 11, 12 and 13. Rule 12 itself postulates that the decision of the appellate authority in a given case setting aside rejection of a nomination paper of a particular candidate shall be final. In our opinion, therefore, there is no legal right in any of the petitioners which is put in jeopardy by the appellate authority hearing the appeal filed by the candidate whose nomination paper is rejected without notice to the other candidate who may or may not object to his nomination paper. In fact, the scheme of the rules appears to be that whenever a nomination paper is accepted either by the Returning Officer or by the appellate authority in the summary procedure prescribed for decision of these matters, the opposite party has no right of challenge. It is not, therefore, possible to uphold any right in the petitioners to be heard in support of an order of the Returning Officer rejecting a particular nomination paper.

12. There is another aspect of this matter also. The matter was put in this way. According to the petitioners the order of the appellate authority is made final. Therefore, the persons in the position of petitioners will have no opportunity to challenge an improper admission of a nomination paper by election petition. In our opinion, the view 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 is not correct. Sub-section (2) of Section 15 of the Act is in the following terms:

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. For the purposes of the said enquiry the said Judge may exercise all the powers of a civil court, and his decision shall be conclusive.

We do 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. To take an illustration on the point: if any of the petitioners were to challenge before the Judge in an election petition in this very case that the nomination papers of any of the respondents were improperly accepted by the appellate authority, and if such a challenge is adjudicated, we do not see that there is any impediment in the exercise of powers by the Judge under Section 15 preventing him from embarking on such an enquiry. In fact, the very opening words of Sub-section (1) of Section 15 are : 'If the validity of any election of a member of a Punchayat is brought in question by any person qualified to vote at the election to which such question refers...'. If general right is given to the electorate at large to question the validity of an election, it is difficult to see how one of the contesting candidates is deprived of a similar right simply because in a summary enquiry the conclusion of acceptance or rejection of a nomination paper either by the Returning Officer or by. the appellate authority is declared to be final under the rules. It is well-settled that the right given by the section cannot be cut down or abridged by the rule. The finality which is given in the rule only means this that there is no further challenge at that stage to the decision of the Returning Officer or the Mamlatdar as an appellate authority so far as the rejection or acceptance of the nomination paper is concerned. But it cannot mean that the jurisdiction of the election tribunal created under Section 15 is in any way abridged in this matter. We, therefore, do not think that either on the interpretation of Rule 12, Sub-rule (4) or of any provision of Section 15 of the Act which permits an election petition, the petitioners are without a remedy, in case, they are not to be heard by the appellate authority against an appeal rejecting the nomination of a particular candidate.

13. Thus, the two points on which the petition was urged do not survive. The petition fails and is liable to be dismissed. It was represented before us that the elections were stayed as a result of stay order from this Court. The dismissal of the petition vacates the stay order automatically, and the election will now be held to these wards. What is apprehended is that in case the election is not held well within the time fixed under the Zilla Parishads Act, the elected members may be deprived of their right to vote at the Panchayat Samiti elections, unless their names are brought on the electoral roll of those elections. At this stage we are not called upon to pronounce on any such matters. If any such elections are held within time and they are notified, and persons so elected acquire the right to vote, we do not think they would be prevented to do so if they approach the necessary authorities, to enable them to exercise their right to vote.

14. The petition fails but in the circumstances there will be no order as to costs.


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