Petition under Article 226 against rejection of nomination in panchayat elections not maintainable: Bombay High Court [Read Judgment]

Petitions before High Courts under Article 226 of the Constitution challenging the rejection of nomination paper by returning officer to contest village panchayat elections, would not be maintainable, the Bombay High Court held. .This, the Court ruled, was by virtue of Article 243-O of the Constitution which bars interference from courts in electoral matters except in the manner provided by the law made by the State legislature. .“Article 243-O(b) is a bar on entertaining petition under Article 226 of the Constitution against an order passed by the Returning Officer rejecting nomination paper and it would clearly apply whenever a writ petition is presented before a Court for its consideration," the Bench of Chief Justice Dipankar Datta and Justices GS Kulkarni and AS Gadkari said..Article 243-O(b) is a bar on entertaining petition under Article 226 challenging rejection of nomination in village panchayat election.Bombay High Court .The petitioners had approached the High Court challenging the orders passed by the returning officer of the village panchayat rejecting their nomination forms to contest elections to Bhose village panchayat..The State Election Commission challenged the maintainability of the petitions referring to the co-ordinate bench decision in Vinod Pandurang Bharsakade v. Returning Officer, Akot and Anr..The petitioners relied upon co-ordinate bench decision of Sudhakar s/o. Vitthal Misal v. State of Maharashtra & Ors. and Smt. Mayaraju Ghavghave vs. Returning Officer to contend that the petitions were maintainable..When the matter first came up before a Division Bench of Chief Justice Datta and Justice Kulkarni, the apparent conflict in the decisions of the co-ordinate Benches was noted and the matter was referred to a larger Bench. Noting that in the above decisions as relied on behalf of the parties there was clear conflict of opinion of the two different Division Benches on the point, namely, as to whether writ petitions under Article 226 of the Constitution would be maintainable challenging the orders of rejection of nomination forms, Division Bench of Chief Justice and Justice Kulkarni referred the matter to a larger bench..The question before the three-judge Bench was whether writ petitions under Article 226 of the Constitution would be maintainable challenging the orders of rejection of nomination forms in a village panchayat election. .Advocate General Ashutosh Kumbhakoni submitted that High Courts should not shut its doors completely to petitions under Article 226 of the Constitution even when it pertains to challenging the rejection of nomination of the candidates who intend to contest. The wide ambit of powers conferred on High Courts under Article 226 should be taken into account in this regard, he added. .Advocate Dilip Bodake appearing for petitioners submitted that if petitions under Article 226 are not entertained, then the filing of election petition under section 15 of the MVP Act will not be an efficacious remedy for candidates whose nomination stood rejected. Similarly, a challenge to the entire election would not be an appropriate remedy..Senior Advocate Anil Anturkar, the Amicus Curiae, brought to the attention of the court a Constitution Bench judgment of Supreme Court in the case of N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors. which was a plea challenging the rejection of nomination in elections. The judgment laid down that a petition under Article 226 of the Constitution challenging improper rejection of nomination cannot be entertained..Advocate Sachindra Shetye appearing for the State Election Commission added that the right to contest election are statutory rights and in the present case, it is governed by the MVP Act and the Bombay Village Panchayat Election Rules, 1959. It is neither a civil right nor a fundamental right of the petitioners and hence they cannot raise their grievance by approaching High Court under Article 226 of the Constitution, he argued..Advocate Dilip Bodake appearing for petitioners submitted that if petitions under Article 226 are not entertained, then the filing of election petition under section 15 of the MVP Act will not be an efficacious remedy for candidates whose nomination stood rejected.Similarly, a challenge to the entire election would not be an appropriate remedy..It was also submitted that returning officers reject nomination papers for absurd reasons possibly because they are ignorant of relevant laws or because of extraneous considerations. Hence, the High Court must intervene and lay down situations were writ petition under Article 226 could be entertained..However, the Full Bench was not convinced of this argument in light of the NP Ponnuswami judgment of the Supreme Court.The High Court opined that if indeed, the issue is so serious that returning officers are inefficient and incapable of discharging the solemn duty entrusted to them, it is for the State Legislature to make appropriate provisions in the MVP Act for addressing the problem. ."The legislature expresses the will of the people through legislation enacted by it. Any issue which could be dealt with by the legislature cannot be solved by a judicial fiat, having regard to Article 243-O(b) of the Constitution read with the MVP Act," the Court added..It, therefore, concluded that the law laid down in Vinod Pandurang Bharsakade is correct while the decisions in Smt. Mayaraju Ghavghave and Sudhakar s/o Vitthal Misal do not lay down the correct law..[Read Judgment]