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Rajasthan High Court Dismisses Petition Challenging Election of Union Minister and Ordered To Reject Candidates Who Delayed Submitting Certificate

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In the present case, an election petition was filed by the Petitioner, a former IAS officer, questioning the election of the Union Minister Kailash Choudhary. Further, the Petitioner also alleged that his nomination papers were wrongly rejected by the Returning Officer. Responding to this, the Rajasthan High Court, as a major relief to Union Minister Kailash Choudhary, rejected the petition challenging his election as the BJP candidate from the Barmer Lok Sabha constituency. While renouncing the petition, Justice Arun Bhansali said that that there was nothing wrong with the rejection of Pankaj Choudhary’s nomination papers as he failed to submit a required certificate in time.

Facts of the case

In the present case, the Petitioner was an erstwhile IPS Officer. He was dismissed from his services because he violated the Conduct Rules, 1968. Besides, the Petitioner proposed as a candidate for the Barmer Parliamentary Constituency for Parliamentary Elections held between April-May, 2019. Further, Petitioner contacted the Secretary, ECI through Fax, E-mail, WhatsApp and also personally handed over a letter to the ECI on 01.04.2019 requesting the issuance of a certificate under Sections 9(2) and 33(3) of the Act, which was necessary for him to contest the elections. But the same was not issued.

Further, as per the schedule, the Petitioner filed his nomination papers for Barmer Parliamentary Constituency on 08.04.2019. But these nomination papers were not accompanied by the obligatory certificate envisaged under Section 33(3) of the Act.

Further, the scrutiny of Petitioner’s nomination papers was held on 10.04.2019. And subsequently, the Petitioner again requested ECI on 10.04.2019 at around 1.03 PM for the issuance of a requisite certificate under Section 33(3) of the Act, however, the same was not responded. Because of this i.e., the absence of the requisite certificate, the nomination form of the Petitioner was rejected by the Returning Officer as per Section 36(2)(b) of the Act. As per the Petition, the Petitioner again wrote a letter/representation to the ECI on 11.04.2019. This letter indicated his interest to contest the election from Bikaner Parliamentary Constituency because of which certificate must be issued by 5 PM on the same date, however, the requisite certificate was not issued. Thereby, S.B. Civil Writ Petition No. 5356/2019 was filed for issuance of the certificate. The same was accepted by the Court. Following this, the ECI issued a certificate under Section 9(2) and 33(3) of the Act indicating that the charge against the Petitioner does not involve ‘corruption’ or ‘disloyalty to the State’. The Petitioner on receiving the certificate applied to the Chief Electoral Officer, ECI, New Delhi, and urged that he must be allowed to contest election from Barmer Parliamentary Constituency, however, the same was not permitted. Subsequently, based on the above averments, Petitioner contended that the nomination form of the Petitioner was wrongly rejected by the Returning Officer and also questioned the election of Respondent No.1 to the Barmer Parliamentary Constituency.

Petitioner’s arguments

Learned counsel for the Petitioner submitted that the nomination form of the Petitioner was wrongly rejected by the Returning Officer and as such, the petition was liable to be accepted as per the provisions of Section 100(1)(c) of the Act. He further stated that the onus to issue the certificate was on the ECI, as the Petitioner had already approached the ECI on time by applying on 01.04.2019 i.e. before the elections were notified by notification dated 02.04.2019. And further repeated efforts were made by the Petitioner for issuance of the same. However, the certificate was then also not issued, in bad faith and, therefore, ECI cannot take benefit of its wrong, which has resulted in the improper rejection of Petitioner’s nomination paper.

Furthermore, the Learned Counsel referred to the accepted writ petition filed by the Petitioner before the Court, wherein the order was passed on 12.04.2019 to issue the required certificate. Pursuant thereto, the certificate was issued under Section 33(3) of the Act to the Petitioner that indicated that the charge proved against him does not involve ‘corruption’ or ‘disloyalty to State’. This indication further proved the fact that the Petitioner fulfils the eligibility criteria to contest the election in terms of Section 33(3) of the Act. Further submissions were made that as the rejection of the nomination form is on account of the mala fides of the ECI, the petition deserved to be accepted and the election of Respondent No.1, Kailash Choudhary deserved to be set aside.

Respondent’s arguments

Firstly, Respondent No.1, Kailash Choudhary raised prefatory objections on the maintainability of the election petition filed by the Petitioner. He submitted that as on the date of scrutiny of the nomination forms, the Petitioner was admittedly not in possession of the certificate required under provisions of Section 9(2) and 33(3) of the Act, because of which the Petitioner was rightly rejected and disqualified to contest the election. Moreover, it was submitted that the provisions of Section 100(1)(c) of the Act provide for the ground for declaring election to be void if the nomination has been improperly rejected. In the context of the present case, it was improper because of the non-availability of the required certificate. Further, some prominent cases were also referred. Then, Respondent No. 2&3 filed the reply to the election petition. It was also stated that the allegations made regarding the ECI in bad faith failing to issue the certificate, cannot be the subject matter of scrutiny in the present election petition. The Court is only required to examine as to whether the nomination of the Petitioner was wrongly rejected. Further, submissions were made that any subsequent event of issuance of the certificate, cannot nullify the order passed by the Returning Officer, since, the relevant date for the purpose is the date of scrutiny and as admittedly on the said date, there was no certificate available as envisaged by Section 33(3) of the Act, the nomination was rightly rejected. Furthermore, reliance was placed on some judgments.

Court’s observations 

The Court firstly considered the submissions made by the Learned Counsel for the parties and perused the material available on record. Hon’ble Mr Justice Arun Bhansali first after observing the Provisions of Section 9, 33(3) and 36 of the Act and a prominent case, namely S.M. Banerji v. Krishna Agarwal AIR 1960 SC 368, concluded that from the above provisions as well as the pronouncement of Hon’ble Supreme Court, it is apparent that a candidate, who has been dismissed from government service, will have to file along with the nomination form a certificate issued by the ECI to the effect that he has not been dismissed for ‘corruption’ or ‘disloyalty to State’ and if it has not been done, the Returning Officer, either suo moto or on objections raised by the opposite party, has to mandatorily reject the nomination. And in the context of the present case, it was noticed that as per the aforesaid averments, it is apparent that the nomination papers filed by the Petitioner, were not accompanied by the mandatory certificate as envisaged under Section 33(3) of the Act and as such, the Returning Officer had no option, but to reject the nomination filed by the Petitioner and thereby it cannot be said that the nomination was wrongly rejected.

Further, the Court referred to the case of K. Prabhakaran. and concluded that it was laid down by Hon’ble Supreme Court that the decision by the Returning Officer has to be taken on the facts as they exist on the date of scrutiny, the Returning Officer cannot postpone his decision nor make it conditional upon what may happen after that date.

Therefore, merely because the certificate was issued by the ECI after the order was passed by this Court in a writ petition filed by the Petitioner, cannot be of any consequence insofar as the rejection of Petitioner’s nomination by the Returning Officer on the date of scrutiny i.e. 10.04.2019 is concerned. Hence, various submissions made by the Petitioner, seeking to allege mala fides against the ECI and questioning the action of the ECI in not issuing the certificate by labelling it unjust and arbitrary cannot essentially form the subject matter of an election petition under the Act. Further, Court referred to the case of Thampanoor Ravi v. Charupara Ravi & Ors.: (1999) 8 SCC 74. As such, the entire emphasis laid by the Petitioner seeking to allege mala fides against the ECI in not issuing the requisite certificate in time and to claim that as the Returning Officer is representative of the ECI, they cannot take benefit of their wrong, was of no consequence as while trying the election petition under the provisions of the Act, the said aspect essentially, cannot be determined by this Court. Moreover, the jurisdiction of this Court in the present case is confined to examine as to whether the nomination of the Petitioner was wrongly rejected. From the said perspective, allegations made against the ECI, cannot come to the aid of the Petitioner.

Court’s decision 

As per the aforementioned considerations, it was apparent that in the view of the express provisions of Section 33(3) of the Act, for lack of requisite certificate issued by the ECI, the Petitioner was disqualified to contest the election and, therefore, it cannot be said that the Returning Officer wrongly rejected the nomination of the Petitioner for Barmer Parliamentary Constituency on 10.04.2019. And consequently, both the issues as framed, were decided against the Petitioner. The election petition had no substance, the same was, therefore, dismissed with costs.

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