Case Note & Summary
The judgment before the High Court of Judicature at Bombay arose from two writ petitions filed under Article 226 of the Constitution challenging orders of the Returning Officer for Bhose Gram Panchayat rejecting nomination forms of the petitioners for the Gram Panchayat elections. The petitioners sought a writ of mandamus to set aside the rejection orders, to permit them to contest from their respective wards, to cancel the election programme and issue a fresh programme, and to direct action against private respondents for allegedly producing false and fabricated certificates that led to the rejection. The petitioners also sought interim relief to stay the rejection orders and permit them to contest pending hearing. At the admission stage before a Division Bench, the State Election Commission raised an objection to maintainability, relying on Vinod Pandurang Bharsakade v. Returning Officer, Akot (2003(4) Mh.L.J. 359), and contended that any grievance relating to rejection of nominations should be raised after elections by way of an election dispute. The petitioners, on the other hand, relied on 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 and Anr. (2004(4) ALL MR 258) to argue that the writ petitions were maintainable. The Division Bench, in its order dated 4 January 2021, noted a clear conflict of opinion among Division Benches on whether writ petitions under Article 226 challenging rejection of nomination forms are maintainable. It observed prima facie that if the petitioners were considered to have called in question the elections, the writ petitions may not be maintainable under Article 243-O(b) of the Constitution; but if the relief claimed facilitated completion of the election process, judicial review of the Returning Officer's orders might be available. Accordingly, the Division Bench referred three questions to a larger Bench: (i) whether allowing a challenge to rejection of nomination and granting relief amounts to intervention, obstruction or protraction of election or facilitates completion; (ii) whether rejection of nomination form attracts Article 243-O(b); and (iii) which of the conflicting Division Bench decisions represents the correct view in law. A Full Bench was constituted to answer these questions. The Full Bench heard the Advocate General, the Amicus Curiae, counsel for the petitioners, counsel for the State Election Commission, and an intervenor. The extracted text records the relevant constitutional provisions under Part IX and Part XV, including Articles 243-B, 243-C, 243-K, 243-O and Article 329, but ends while quoting Article 243-C and does not include the Full Bench's final answer or operative directions. The judgment was reserved on 11 January 2021 and pronounced on 13 January 2021.
Headnote
A) Constitutional Law - Panchayat Elections - Judicial Review of Returning Officer's Rejection of Nomination - Constitution of India, 1950, Article 226, Article 243-O(b) - The Division Bench referred the question whether allowing a writ petition challenging rejection of nomination amounts to intervention, obstruction or protraction of the election or facilitates completion; prima facie it observed that if the petitioners are considered to have called in question the elections, the writ petitions may not be maintainable under Article 243-O(b), but if the relief claimed facilitates completion, judicial review could lie (Paras 3-4). B) Constitutional Law - Electoral Bar - Applicability of Article 243-O(b) to Rejection of Nomination - Constitution of India, 1950, Article 243-O(b) - The question whether rejection of a nomination form attracts the bar under Article 243-O(b) was referred; Article 243-O(b) bars courts from calling in question any election to a Panchayat except by an election petition; the reference required determining whether rejection of nomination is a pre-election step amenable to judicial review under Article 226 or part of an election dispute (Paras 4-7). C) Precedent - Conflict of Division Bench Views - Correctness of Decisions - Constitution of India, 1950, Article 226, Article 243-O(b) - The Division Bench noted conflicting decisions: Vinod Pandurang Bharsakade v. Returning Officer, Akot (2003(4) Mh.L.J. 359) held challenge permissible only after election, whereas 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 and Anr. (2004(4) ALL MR 258) held writ petition maintainable to assert right to contest; the larger Bench was constituted to resolve which view represents the correct law (Paras 2-4).
Issue of Consideration
Whether allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting relief by setting aside such rejection amounts to intervention, obstruction or protraction of the election or is a step to facilitate completion of election; whether rejection of nomination form attracts Article 243-O(b) of the Constitution of India; which of the conflicting Division Bench decisions represents the correct view in law.
Law Points
- Article 243-O(b) of the Constitution bars courts from calling in question any election to a Panchayat except by an election petition
- a writ petition under Article 226 may be maintainable if the challenge facilitates completion of election process rather than calling in question the election
- rejection of nomination form may or may not attract Article 243-O(b) depending on whether it amounts to calling in question election or merely asserts right to contest
- conflict of Division Bench views on maintainability requires authoritative resolution by Full Bench.
