PATEL KANCHANBHAI MANGALBHAI Vs. MANEKLAL MAGANLAL GANDHI

JUDGEMENT

(1.) Two question of considerable importance and significance arise on this petition. One is whether under the provisions of the Gujarat Panchayats Act 1961 and the Gujarat District Panchayats Election Rule 1962 made by the Government of Gujarat in exercise of its powers under section 323 of the Act it is open to an aggrieved person to challenge the validity of an election under section 24 on the ground that the nomination paper of a candidate was improperly rejected by the Returning Officer or is the decision of the Returning Officer regarding rejection of the nomination paper final in the sense that it cannot be impugned even as a ground for setting aside the election under section 24. The other is as to what is the consequence if more than one nomination paper in favour of a candidate are subscribed by the same proposer:- are all the nomination papers invalid in such a case or is the nomination paper first accepted by the Returning Officer valid and only the other nomination papers are invalid ? The determination of these questions depends on the true construction of certain provisions of the Act and the Rules but in order to appreciate how the questions arise it is necessary to briefly state the facts giving rise to the petition.

(2.) The District Panchayat of Panchmahals District was to be constituted for the first time under the Act and for that purpose members were to be elected to the District Panchayat under section 15(2). The date of election was therefore fixed by the District Development Officer as 20th February 1964 under section 18(1). After appointing the date of election the District Development Officer acting under Rule 8 appointed 29th January 1964 as the east date for filing nomination papers and 31st January 1964 as the date for scrutiny of nomination papers. One of the electoral divisions for the election was Kalol electoral division. From this electoral division respondent No. 1 filed three nomination papers two on 28th January 1964 and the third on 29th January 1964 and they were numbered respectively 1 2 and 8. Petitioner No. 1 filed two nomination papers on 29 January 1964 and since they were filed immediately after the nomination papers bearing Nos. 1 and 2 they were given serial Nos. 3 and 4. Petitioner No. 2 filed three nomination papers on 29th January 1964 after the fililg of the nomination papers by petitioner No. 1 and the numbers given to the nomination papers filed by petitioner No. 2 were 5 6 and 7. Both the nomination papers of petitioner No. 1 were subscribed by the same proposer namely Parmar Mohansinh Sabursinh while out of the three nomination papers of petitioner No. 2 two bearing Nos. 5 and 6 were subscribed by the same proposer namely Thakore Kishorsinh Samatsinh. On 31st January 1964 at the time of scrutiny of the nomination papers an objection to the validity of the nomination papers of the petitioners was raised by the agent of respondent No. 1. The Returning Officer upholding the objection rejected the nomination papers of the petitioners. The ground on which the nomination papers of petitioner No. 1 were rejected was that they were subscribed by the same proposer in contravention of the second proviso to sub-rule (5) of Rule 10 and were therefore liable to be rejected under clause (c) of sub-rule (2) of Rule 14. The rejection of the nomination papers of petitioner No. 2 bearing Nos. 5 and 6 was also based on the same ground namely that they were subscribed by the same proposer. The nomination paper of petitioner No. 2 bearing No. 7 was rejected on a different ground but it is not necessary to refer to it as there is no dispute about the validity of that rejection. Since the nomination papers were rejected on the around of non-compliance with the second proviso to sub-rule (5) of Rule 10 the petitioners preferred the present petition against respondent No. 1 and the Returning Officer and the District Development Officer as respondents Nos. 2 and 3 respectively praying for a writ directing the Returning Officer to cancel the rejection of the nomination papers of the petitioners and to accept the same and to proceed with the election according to law on the basis that the nomination of the petitioners was valid. The petition was filed on 7th February 1964 but before the filing of the petition the Returning Officer by an order dated 4th February 1964 declared respondent No. 1 elected as he remained the only contesting candidate in the field after the rejection of the nomination papers of the petitioners and communicated the name of respondent No. 1 to the District Development Officer and the District Development Officer acting under Rule 59 published the name of respondent No. 1 as elected candidate by issuing a notification dated 4th February 1964. This notification was however published in the Gujarat Government Gazette on 13 February 1964 and the petitioners were therefore presumably not aware that respondent No. 1 was already declared as elected candidate. It appears however that soon after the filing of the petition when the interim order obtained by the petitioners was sought to be served by them the petitioners came to know that respondent No. 1 was already declared elected candidate and the petitioners therefore applied for leave to amend the petition by introducing-paragraph 8-A and prayers 12(bb) and 12 challenging the validity of the election of respondent No. 1. Leave to amend was granted and the petition as amended became a petition impugning the validity of the election of respondent No. 1 on the ground that the nomination papers of the petitioners were wrongly rejected. by the Returning Officer. The main ground of attack against the decision of the Returning Officer was that on a true construction the second proviso to sub-rule (5) of Rule 10 did not have the effect of invalidating all the nomination papers which may have been subscribed by a proposer in favour of a candidate but that the only effect of that proviso was that the nomination papers other than the first accepted by the Returning Officer were invalid and the first nomination papers accepted by the Returning Officer was not invalidated on that count. It was also urged in the petition in the alternative that in any event even if there was a defect arising from non-compliance with the second proviso to sub-rule (5) of Rule 10 such defect was a technical defect not of a substantial character and the nomination papers of the petitioners were therefore not liable to be rejected on the ground of such defect by reason of sub-rule (4) a Rule 14. These were the two broad grounds on which the validity of the decision of the Returning Officer was challenged. These grounds were denied by respondent No. 1 in the affidavit filed by him in opposition to the rule and the decision of the Returning Officer was sought to be sustained on merits. But in addition to the defence on merits a preliminary objection was also raised by respondent No. 1 and the preliminary objection was that inasmuch as the petitioners had a specific alternative remedy available to them under section 24 for challenging the validity of the election of respondent No. 1 on the ground of improper rejection of their nomination papers ? this Court in the exercise of its extra-ordinary jurisdiction should not interfere under Article 226 of the Constitution even if the grievance of the petitioners was well-founded. It was also stated in the affidavit in reply that an application under section 24 was presented before the Civil Judge Junior Division Kalol by Thakore Kishorsinh Samatsinh for setting aside the election of respondent No. 1 and that was urged as an additional circumstance why this Court should refuse to interfere in the exercise of its discretion under Article 226 of the Constitution. The affidavit in reply was handed in at the time when the petition reached hearing before us and it was therefore stated by the learned Advocate General appearing on behalf of the Returning Officer as also by Mr. Patwari appearing on behalf of respondent No. 1 that they were merely relying on the fact that such an application had been filed by Thakore Kishorsinh Samatsinh and that they did not rely on the further allegation made in the affidavit in reply that the said application was filed by reason of the instrumentality of the petitioners. In view of this no affidavit in rejoinder was filed on behalf of the petitioners.

(3.) Now ordinarily in petitions of this kind the Officer or Tribunal whose decision in favour of one party is assailed by the other does not appear to contest the petition but leaves it to the successful party to repel the attack levelled against his or its decision in the petition. We should have therefore expected the Returning Officer in the present case to take up a non-contentions attitude and to offer to be guided by whatever decision the Court would arrive at after hearing the petitioners and respondent No. 1 who were the contesting parties affected by the result of the petition. But presumably in view of the fact that the question arising on the preliminary objection was an important question relating to procedure to be followed when the decision of the Returning Officer as regards acceptance or rejection of a nomination paper is sought to be challenged the Returning Officer instructed the learned Advocate General to appear for him and the learned Advocate General appearing for the Returning Officer made his submissions on the various questions arising in the petition. The result of course was that a view was canvassed which was favourable to respondent No. 1 and much of the effect on the part of Mr. Patwari learned advocate appearing on behalf of respondent No. 1 was saved.