TMI Blog1997 (1) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... of objections to claim applications was fixed on 23.12.1996. Disposal of the claims and objections by the President was fixed on 24 and 25th December, 1996 between 9 A.M. and 5 P.M. The presentation of nomination papers for the election to the Returning Officer was fixed on 26.12.1996 between 10 A.M. and 4. P.M. Place for the scrutiny of nomination paper was fixed at 5 P.M. nomination paper has to be scrutinized by the Returning Officer on 30.12.1996 between 10 A.M. and 5 P.M. Withdrawals of the candidates was fixed on 31.12.1996 between 10 A.M. and 5 P.M. The names of the withdrawn candidates has to be announced on 31.12.1996. The allotment of symbols has to be announced on 2.1.1997 at 11 A.M. The list of contesting candidates has to be published on 2.1.1997 at 4 P.M. The election to be held on 2.2. 1997 from 7.30 A.M. to 4.30 P.M. Counting of votes and declaration of results was fixed on 3.2.1997. In this process major portion of the election process is over and the election alone is to be held on 2.2.1997 from 7.30 A.M. to 4.30 P.M. 4. In pursuance of the proclamation as scheduled, petitioner in W.P.No. 155 of 1997 filed his nomination paper for the election of Ward No. 2, St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re any arrears by any person, the Board has to give notice as prescribed Under Section 28(h). Even assuming without admitting that Thennammal Finance Private Limited is in arrears of payment of professional tax, the Directors in it are not personally liable and company is not contesting in election. Thus, there is no justification in disqualifying the petitioner from contesting in the election and it is his assertion that he has not received any notice demanding the arrears and he alleged that the act of the Returning Officer is unjust and it is colourable exercise of power and also alleged that the respondents are acting under the instructions of the ruling party people and helping them out of way, and his name has not been included in the list of contesting candidates on false and frivolous grounds. 7. The petitioner in W.P.No. 197 of 1997 who filed nomination paper on 26.12.1996 was present at the time of scrutiny of the nomination paper. An objection was raised that his name is found more than one electoral roll. After verification, the Returning Officer published the list of valid nominations on 31.12.1996 in the Cantonment Election Office notice board wherein his name was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances, respondent No. 3 colluded with other respondents is preventing the petitioner from contesting the election. The petitioner further submitted that respondent No. 2 is the appellate authority and he is keeping silent and he could not file die appeal before respondent No. 2 since he has not received any order from respondent No. 1. 9. It is contended by respondent No. 1 that rejection of nomination paper at the time of scrutiny is only a matter to be agitated by way of election petition under Rule 42 of the Rules framed Under Sections 30 and 31 of the Act. Any question relating to the verification of the facts and circumstances can be done by appropriate authority and such an enquiry or investigation cannot be entertained by this court under writ proceedings and that the petitioner can only avail an alternative remedy by way of election petition and cannot maintain the writ petition. It is also submitted that the list of contesting candidates has already been published on 31.12.1996 itself. It would affect the aforesaid persons also and they are also necessary parties to be added and petitioner having failed to implead them as necessary parties cannot maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to contest the election when election process has already started and the election is scheduled to be held on 2.2.1997, on the ground that rejection of nomination papers (a) is arbitrary, (b) actuated by mala fides, (c) on extraneous consideration, that is, due to political pressure and (d) without resorting to election dispute? 14. The counsel for the petitioners contended that the act of rejection of nomination papers by the Returning Officer is arbitrary, due to political pressure, and for reasons which are not substantial in nature and in support of the contention relied on a decision of this Court reported in Marippan v. The Assistant Election Officer, Pallapatti Panchayat and Anr., 1986 WLR 304. 15. Countering the arguments the counsel appearing for the respondents cited several decisions of various High Courts and that of the Apex Court to substantiate the contentions that the act of rejection of nomination papers is after due verification, and the allegation of mala fides does not require consideration for want of particulars and not impleading those persons as necessary parties and when election process has already started, interference at intermediate stage with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the electoral roll for more than one Ward and no person shall be so registered for any Ward more then once. Rule 5 contemplates that every person who is eligible for enrollment as an elector under Sub-section (1) of Section 27 of the Act, and is not otherwise disqualified Under Sub-section (2) of the said section shall be enrolled as an elector. Sub-section (1) of Section 27 contemplates two criteria on the qualifying date to be an elector, that is, he should not be less than twenty-one years of age and who has resided in the cantonment for a period of not less than six months immediately preceding the qualifying date. Only such person is entitled to be enrolled as an elector. 20. In view of Rule 4 and Rule 5, if read with Section 27, it contemplates residence for a period of not less than six months immediately preceding the qualifying date if not otherwise disqualified and also registration in only one ward. A person who is residing elsewhere having a right to vote or contest cannot opt to contest even from the cantonment Board unless he fulfils the qualification that he is the resident of the cantonment area as contemplated Under Sub-section (1) of Section 27 of the Act. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer. If they had any acceptable material to answer the objection, nothing prevented them to produce or file an appeal within the stipulated time to the President within two days. In Bhogendra Jha v. Manoj Kumar Jha, AIR1996SC2099 , the Apex Court has taken the view, the Returning Officer is not expected to make a roving enquiry to find out the truth or otherwise of the objection and it is the duty of the candidate or proposer to satisfy the Returning Officer with all materials that the objection raised is frivolous. In the absence of such material, it cannot be said that the order of the Returning Officer is arbitrary. The candidates who, filed their nominations though admittedly present did not ask for an opportunity nor attempted to satisfy the Returning Officer as to the correctness of the particulars furnished by them in the nomination papers. 24. The Cantonments Electoral Rules, 1945 Chapter VII, Rule 42 contemplates election petition and Rule 47 contemplates grounds for declaring election void and Sub-clause (a)(ii) of Rule 47 talks of improper acceptance or refusal of nomination paper. Therefore, when a statute contemplates a remedy to a person aggrieved of rejection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relegate the parties to take recourse to the alternative remedy of the election petition provided under the statute. In Bhogendra Jha v. Manoj Kumar Jha, AIR1996SC2099 it has been held that opportunity when once provided to raise objection, if no objection raised at the time of scrutiny and subsequent objection if any will be a matter to urge in an election petition and cannot be a criteria to intercept the process which will have the effect of postponing the election. 26. In S.T. Muthusami v. K. Natarajan, [1988]2SCR759 when the question whether it is appropriate for the High Court to interfere with the election process at an intermediate stage after the commencement of the election process and before the declaration of the result of the election came up for consideration, the Supreme Court held that at intermediate stage interfered with the process of election thus impede the process and the High Court should decline to exercise that power and leave the parties to remedy of an election petition to be presented after the election was over. 27. Similarly, in W.P.Nos. I836 and 1837 of 1992 decided on 12.2.1992 following N.P. Ponnuswand v. Returning Officer, Namakkal, [1952 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have been committed that too without an opportunity in the form of placing materials before the competent authority. 32. Therefore, the law in regard to the adjudication of an election dispute constitute a self contained code, and every violation of the Rule as alleged requires evidence and that can be done only by a competent authority in an election dispute and not under Article 226. 33. The election law being statutory in character must be strictly complied with and election to be conducted in conformity with the requirements of election law and those who violate the statutory norms must suffer for such violations. In the event of proof of such violation due to mala fides or for any extraneous consideration and the returned candidate is shown to have secured his success at the election due to his mistakes or for the reckless of the Returning Officer the person affected is entitled for compensation and the election will be set at naught by the competent authority and those who succeeded on the basis of such illegal acts will suffer for his or their mistakes. 34. For he reasons aforestated, I see no merit in the contentions urged by the petitioners and they cannot be al ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
