NAVUBA GOKALJI CHAVADA SMT Vs. RETURNING OFFICER

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution of India the petitioners who are the voters residing within the local limits of Khanusa Gram Panchayat in Vijapur taluka of Mehsana district have challenged the action of respondent No. 1-returning officer rejecting the nomination paper of petitioner No. 1 whereby she was prevented from contesting the election from ward No. 7-J of the Khanusa Gram Panchayat held in the closing months of year 198J. Petitioner No. 1 was the sole contestant from that ward wherein only one seat was ear-marked as reserved for women. Petitioner No. 1 was not opposed by any rival female candidate. She filled in the nomination form on 27-11-1980 for contesting from the aforesaid ward on the reserved seat for women. Her nomination form came to be rejected by the returning officer by his order dated 29-11-1980 on the ground that on scrutiny of the nomination paper it was found that the candidate had not mentioned her number in the voters list. The aforesaid order below the nomination form as passed by the first respondent-returning officer rejecting the nomination paper is annexed as Annexure `A to the petition. It is obvious that when petitioner No. 1 being the sole candidate was not permitted to contest the election to Khanusa Gram Panchayat on the reserved seat no candidate was returned from the said ward on the reserved seat and the said seat remained vacant. In the meanwhile petitioner No. 1 alongwith petitioner No. 2 who is also a voter from the same ward brought this petition under Article 226 before this court praying for the relief that respondent No. 1 be directed to accept the petitioner No. 1s nomination paper and to declare petitioner No. 1 as duly elected to the reserved seat for women from ward No. 7-J of the Khanusa Gram Panchayat. It was also prayed that respondents be restrained from holding election of the Deputy Sarpanch for the said Gram Panchayat.

(2.) Mr. N. J. Mehta learned Advocate appearing for the petitioners contended that the first respondent-returning officer had patently erred in law in rejecting the nomination paper of petitioner No. 1 on the ground that she had not stated her number in the voters list. He submitted that this was at the highest a technical error of trivial nature which could have been got rectified by the returning officer in exercise of his powers under rule 10 (2) of the Gujarat Gram and Nagar Panchayats Election Rules 1962 (hereinafter called the election rules) whereunder the returning officer is required to hold a summary inquiry for considering the objections regarding given nomination form before deciding to reject the concerned nomination paper. Inasmuch as the first respondent returning officer failed to exercise his aforesaid powers coupled with duty as enjoined upon him under rule 10(2) of the said rules his decision is patently erroneous and liable to be quashed. In this connection Mr. Mehta heavily relied upon a decision of A. N. Surti J. in special civil application No. 95 of 1981 decided by him on 4/5-2-1981. (Kalidas Karsandas Chavda v. Returning off Vadodara Jilla Panchayat XXII G.L.R. 1050).

(3.) On the other hand Mr. Mankad learned Advocate appearing for respondent no. 2 Panchayat submitted that the present petition under Article 226 is totally misconceived. That the petitioner has got equally efficacious alternative remedy by way of election petition under sec. 24 of the Gujarat Panchayats Act. That the petitioners equally had an alternative remedy by way of an appeal under rule 11(4) of the Election rules and consequently this petition was liable to be dismissed on the preliminary ground that the petitioners ought to have exhausted the alternative remedies available to them. On merits Mr. Mankad contended that provisions of rule 8 of the said Rules were mandatory in character and as petitioner No. 1 had failed to comply with the mandatory requirements of form A-1 prescribed under rule 8 laying down various requirements of a valid nomination paper the first respondent was quite justified in rejecting the nomination paper.