JUDGMENT
V.M. Kanade, J.
1. Heard the parties. Rule returnable forthwith with the consent of the parties.
2. The petitioner in this petition is challenging the order passed by the Additional District Judge, Wardha in Appeal No. 5/2001 dated 23-11-2001, by which the Additional District Judge, Wardha confirmed the order passed by the Returning Officer, rejecting the nomination paper of the petitioner.
3. The said Election Commission declared the election procedure for election of President of the Municipal Council, Arvi.
Brief facts are as follows:
4. The Returning Officer rejected the nomination paper of the petitioner and held that the petitioner was disqualified from contesting the election. In view of section 16(1)(h)(a) of the Audit Act. He further held that the Commissioner while exercising power under section 11 of the Audit Act, had passed an order fixing a surcharge upon the petitioner and that the said amount was not paid and, therefore, he was a defaulter and, therefore, he was disqualified as per the provisions of the said Act.
5. The petitioner filed an appeal against the said order before the Additional District Judge. The Additional District Judge, after hearing the parties rejected the appeal by passing a reasoned order. The petitioner has filed this writ petition under Articles 226 and 227 of the Constitution of India, challenging the said order passed by the Returning Officer and confirmed by the Additional District Judge, Wardha.
6. A preliminary objection was raised by the respondent and it was contended that the writ petition under Article 226 of Constitution of India was not maintainable, in view of the judgment of the Apex Court in the case of Anugraha Narayansingh v. State of U.P., . It was contended by the Counsel appearing on behalf of the respondent that in view of Article 243-ZG, there was a complete bar for challenging the said order by filing a writ petition and the Apex Court had clearly laid down that the writ petition under Article 226 of Constitution of India is not maintainable.
7. Shri Madkholkar, Counsel appearing on behalf of the petitioner, submitted that in view of the subsequent judgment of the Apex Court, in the case of Election Commission of India through Secretary, appellant v. Ashok Kumar and others, respondents, , the writ petition under Article 226 of Constitution of India was maintainable. He further submitted that the Constitution Bench of the Hon’ble Supreme Court had taken into consideration the said judgment in Anugraha Narayansing v. State of U.P. , in para 25 of his judgment and, thereafter, in paras 32 and 33 had laid down the conclusions and while doing so, it has held that the power of judicial review under Article 226 of the Constitution of India cannot be taken away by any provision in the statute. However, while exercising the said power under Article 226 of Constitution of India, the High Court should act with caution while entertaining any election dispute. Paras 32 and 33 are reproduced herein below:
“For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove.
1) If an election, (the term “election” being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceeding in elections.
2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought it to during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilize the Court’s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.
These conclusions, however, should not be constructed as a summary of our judgment. These have to be read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons.
8. In view of the judgment of the Apex Court in Ashok Kumar’s case, in my view the writ petition is maintainable under Article 226 of Constitution of India, therefore, the preliminary objection raised by the respondent is liable to be rejected.
9. Shri Madkholkar, learned Counsel appearing on behalf of the petitioner, submitted that against the order passed by the Commissioner, levying surcharge he has preferred an appeal and in the said appeal stay was granted to the operation of the order of the Commissioner. He further submitted that in view of the stay granted by the Appellate Court, no amount was due and payable and, therefore, he had not committed any act, whereby he has liable to be disqualified as per the provisions of the said Act.
10. Shri Madkholkar, learned Counsel appearing on behalf of the petitioner, further submitted that section 12 of the Bombay Local Fund Audit Act, 1930 laid down the procedure for the recovery of the surcharges and the charges.
Section 12 reads as follows:
(1) Every sum certified by the Commissioner to be due from any person under sub-section (1) of section 11 shall be paid by such person into the treasury or bank in which the funds of the local authority concerned are lodged, within one month from the receipt by him of the decision of the Commissioner, unless within that time such person has applied to the Court or to (the State Government) as provided in section 13.
(2) The said sum, if no duly paid, or if an application has been made to the Court or to (the (State) Government) against the decision of the Commissioner as provided in sub-section (1) of section 13, such sum as the Court or (the (State) Government) shall declare to be due, shall be recoverable (as an arrear of land revenue).
11. He submitted that sub-clause (2) specifically provided that after the final adjudication is made by the State Government, the amount would be declared as due and payable and, thereafter, it shall be recoverable as arrears of land revenue. He, therefore, submitted that this amount which the Commissioner had levied was not an amount due and payable, since there was no financial adjudication of the said amount by the Appellate Authority. He further submitted that there was a analogous provisions in the Co-operative Societies Act and our High Court had taken a view that if the said order of dues is stayed, then it would not amount to a disqualification. He relied on the judgment Ramesh Rajaram Patil v. Additional Commissioner, Aurangabad Division and others, wherein it has been held that the disqualification contemplated by section 73-FF(1)(ii) is a temporary qualification for a particular election and that has reference to a particular point of time. The disqualification of being a defaulter is a curable one. The date on which the Returning Officer is to record his decision under Rule 23 of the Election Rules would be the crucial date and that date cannot be allowed to be crossed for the purpose of finalising and publishing the list of the candidates contesting the elections. The petitioner was entitled to rebut the objection regarding the alleged disqualification before the Returning Officer himself.
12. He further submitted that the Additional District Judge had erred in relying on judgment reported in B.R. Kapur v. State of T. & N., . He submitted that the said case was pertaining to a case where the petitioner therein was convicted by the Sessions Court and a appeal was pending before the High Court and that there was no stay to the operation of the order and under these circumstances, the Hon’ble Supreme Court had held that in view of the conviction of the Sessions Court, the disqualification was not stayed. He submitted that the facts of the present case were entirely different and that sub-clause (2) of section 12 of the Bombay Local Fund Audit Act, 1930, specifically provided that amount did not become due and payable, as long as there was no final adjudication by the State Government.
13. Mr. S.G. Jagtap, learned Counsel appearing on behalf of the petitioner in Writ Petition No. 3981/2001, adopted the submissions made by Shri Madkholkar, Advocate.
14. Mr. Sudame, learned Counsel appearing on behalf of the respondents, submitted that the petitioner had not shown his bona fides and had not made the payment of amount due. He submitted that in the application which was preferred by the petitioner, he had stated that if there is any other objection, he would remove the said objection but so far as the objection regarding the amount due is concerned, he had submitted that an appeal was filed and the stay order was obtained. The learned Counsel appearing on behalf of the respondents, therefore, submitted that there was no question of rebutting the said objection because the petitioner himself had not offered to pay the said amount under protest. He submitted that therefore the contention of the petitioner on that count cannot be accepted. He further pointed out that the judgment of the Apex Court , would be applicable to the facts of the present case. He further submitted that the election process was almost complete and that ballot papers were already printed and the election was to be held on 9th of December, 2001. He also pointed out that the Hon’ble Supreme Court in Ashok Kumar’s case, though it had held that the writ petition is maintainable under Article 226 of Constitution of India, however, had cautioned that the High Court should not very lightly exercise jurisdiction under Article 226 of Constitution of India, specially when there is a alternate remedy available to the petitioner for filing an election petition.
15. In view of the above, after considering the submissions made by the rival parties. I am of the view that this is not a fit case for interfering under Article 226 of the Constitution of India, since the election process is almost over and only the voting is to take place on 9th of December, 2001 and the result is to be declared on 10th of December, 2001. If the petitioners are allowed to contest the election, the entire schedule of the election will be upset and the ballot papers will have to be reprinted, which may take couple of days and, therefore, without making any observation regarding the merits of the matter, as to whether the nomination paper was validly rejected or not, I reject the writ petition. It is, clarified that in the event the election petition is filed by the petitioner, the Court deciding the election petition will not be influenced by any observation made by me in this petition and shall decide the election petition on its own merits.
16. In view of the above, the writ petitions are rejected. Under the circumstances, there shall be no order as to costs.