Writ Jurisdiction Cannot Be Extended Against The Rejection Of Nomination Papers At An Intermediate Stage Of Gram Panchayat Elections: Bombay HC [FB]

A full bench of the Bombay High Court comprising of Chief Justice Dipankar Datta, Justice A.S. Gadkari and Justice G.S. Kulkarni held that a writ petition under Art. 226 challenging the rejection of nomination papers by the Returning Officer cannot be entertained as it is not a step in facilitating the election process. The Court was hearing a reference made to a larger bench after the division bench of the High Court was dealing with two conflicting opinions of the Court raising different opinions with regards to the maintainability of the petitions. The bench also clarified that Art. 243-O(b) of the Constitution places a bar on the HC for entertaining writ petitions under Art. 226 against impugned orders passed by the Returning Officer rejecting the nomination papers. BACKGROUND OF THE REFERENCE The division bench of the Bombay High Court was dealing with a bunch of petitions which challenged the orders passed by the Returning Officer of Bhose Gram Panchayat wherein the nomination papers of the petitioners were rejected. Therefore, the petitioner had prayed for setting aside the impugned orders of the Returning Officer and a direction on the State Election Commission to cancel the Gram Panchayat elections in order to conduct a fresh election and also to take action against the village officials who had allegedly issued fabricated certificates leading to their rejection of nomination papers. The need of reference to a larger bench was felt by the division bench after the counsels from both the sides argued over the maintainability of petitions under Art. 226 of the Constitution. It was argued on behalf of the State Election Commission that the petitions are not maintainable according to the decision in Vinod Pandurang Bharsakade v. Returning Officer, Akot (2003) wherein the division bench of Bombay HC was of the opinion that any dispute regarding elections can only be raised after elections by raising election dispute. It was argued on behalf of the petitioners that the petitions were in fact maintainable in accordance with the two decisions of coordinate benches of the HC in Sudhakar s/o. Vitthal Misal v. State of Maharashtra & Ors. 2007(6) All MR 773 and Smt. Mayaraju Ghavghave v. Returning Officer for Gram Panchayat, Dhamangaon & Anr. 2004(4) ALL MR 258 wherein the petitions were held maintainable as it did not call in question the election but only the right to contest election. The division bench had prima facie opined that the writ petitions are not maintainable under Art. 243-O(b) and that if the relief is with regards to facilitating completion of the election, petitioners must challenge the impugned orders in judicial review. However, due to the conflict in decisions in the three judgments, the division bench referred the following questions to the larger bench: Does allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting the relief claimed by setting aside such order of rejection, amount to intervention, obstruction or protraction of the election or is it a step to facilitate the process of completion of election? Whether rejection of nomination form would attract the provisions of Article 243-O(b) of the Constitution of India? Are the views expressed by the Division Benches of this Court in the cases of Sudhakar s/o. Vitthal Misal and Smt. Mayaraju Ghavghave correct, or does the decision in the case of Vinod Pandurang Bharsakade represents the correct view in law? OBSERVATIONS OF THE BENCH The bench analyzed the provisions of Part IX of the Constitution which deals with "Panchayats". It was observed that Art. 243, 243A to 243O were incorporated in the Constitution by 73rd Amendment Act after the Panchayati Raj Bill was introduced. Thereafter, Maharashtra Village Panchayats Act, 1959 was also amended wherein Sec. 10A was introduced that provided for State Election Commission. Another provision Sec. 15A was amended which provided a bar on the Courts to interfere in electoral matters. According to the provision: "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 to which 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 (Junior Division) and if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division) having ordinary Jurisdiction in the area within which the election has been or should have been held for the determination of such question." This provision is similar to Art. 329 which bars the courts to interfere in electoral matters. According to the petitioners, it was argued that they have correctly invoked the jurisdiction under Art. 226. It was argued that filing of ...

Writ Jurisdiction Cannot Be Extended Against The Rejection Of Nomination Papers At An Intermediate Stage Of Gram Panchayat Elections: Bombay HC [FB]

Nupur Thapliyal

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