Ramesh Bhikamchand Jain vs The State Election Commission

R.V. Ghuge, J.—By this petition, the petitioner has, primarily, sought the following two prayers:-

"(A) The Hon''ble High Court may be pleased to quash and set aside the proceedings initiated by State election Commission respondent No. 1 on the basis of complaint filed by the respondent No. 2, dated 8th September, 2013 [Annexure "H"].

(B) In the alternative, the Hon''ble High Court may be pleased to quash and set aside the order below Exh.67 in Election Petition No. 1/2013 dated 14th December, 2013 passed by the learned Civil Judge Senior Division, Jalgaon and allow the application filed at Exh.67, dated 25th November, 2013 in Election Petition No. 1 of 2013."

Contention is that the election of the petitioner to the Municipal Corporation of Jalgaon has been called in question by Respondent No. 2 filing Election Petition No. 1 of 2013 before the competent authority. Written statement to the said Election Petition was filed on 13.11.2013, by the petitioner. It is admitted that no objection was raised in the Written Statement about the maintainability of the Election Petition in the light of the complaint filed by respondent No. 2 / defeated candidate to the State Election Commission dated 8.9.2013, which was received by the first respondent - State Election Commission on 13.9.2013.

By an application Exhibit 67, filed on 14.12.2013, the petitioner has questioned the continuance of one of the proceedings in the Election Petition No. 1 of 2013, and complaint filed by respondent No. 2 before the Election Commission. It was canvassed in the said application that, "Simultaneously he has also filed a complaint to the State Election Commission dated 8.9.2013". It is further submitted in the said application that "The Election Petition as well as the complaint is based on a common cause of action."

I have heard the learned Advocates for the respective sides for quite sometime. It would be a futile exercise to advert to all the contentions of the litigating parties, in view of the submissions made by respondent No. 1/ State Election Commission and in the light of the order that I propose to pass.

The gravamen of the submission of the petitioner is that, on the one hand, the election petition rests on an allegation of suppression of material aspects in the affidavit filed along with the nomination papers before the Returning Officer and on the other hand, the complaint made to the third respondent dated 8.9.2013 also rests on the same allegation. There is a possibility that divergent conclusions are likely to be arrived at by the competent Court in the Election Petition as well as by the competent authority adjudicating upon the complaint, which is the State Election Commission.

The petitioner has referred to the prayers made in the Election Petition as well as in the complaint before the State Election Commission. In prayer clause (A) of the complaint, the second respondent has prayed for disqualifying the petitioner, on account of the deficiencies in the affidavit. In prayer clause (c) it is prayed that a criminal case be registered against the petitioner for having furnished false information through the affidavit. In the Election Petition, the prayer is that the election of the petitioner as a Corporator from Ward No. 21, dated 2.9.2013 be held to be illegal and the same be set aside. It is further prayed that fresh elections be held in the said ward.

The serious apprehension of the petitioner, therefore, is that firstly, divergent conclusions are likely to be arrived at in these two proceedings and secondly, during the pendency of the complaint before respondent No. 1 - State Election Commission, he is likely to be disqualified or his election is likely to be stayed and he is likely to be restrained from performing his functions as a Corporator, by way of interim relief to respondent No. 2.

Shri Paranjape, learned Advocate appearing for respondent No. 1 - State Election Commission has straightway drawn my attention to the circular dated 11.8.2005 issued by respondent No. 1. He submits that the said circular pertains to dealing with cases, wherein the contesting candidates have suppressed material aspects as regards their antecedents and pendency of criminal cases against them, in the affidavit filed in support of the nomination papers. It is provided that the concerned authorities should deal with such suppression of facts and should initiate an appropriate action against the concerned.

Shri Paranjape, learned Advocate has then turned to the circular dated 20.2.2013, issued by the first respondent, which makes a reference to the circular dated 11.8.2005. He has drawn my attention to the salient features of the said circular and submits that if the first respondent acquires the knowledge about the suppression of material aspects in an affidavit in support of the nomination papers, the concerned candidate should be called upon to explain his conduct and it should be assessed as to whether the suppression was innocuous or un-intentional or whether such a suppression was intentional, willful and deliberate with oblique motives. The said circular then provides for registering a first information report (FIR) against the said candidates before the competent police station, where after the criminal proceedings would be initiated against the said candidate in accordance with the procedure laid down by law.

He has pointed out that filing a false affidavit would be an offense under Section 181 of the Indian Penal Code and procedure to deal with such false affidavit would be in accordance with Section 195 of the Criminal Procedure Code. He, therefore, submits that as of now, no proceedings have been commenced against the petitioner, as is being mistakenly apprehended by the petitioner.

Shri Paranjape, learned Advocate then referred to the letter dated 27.1.2014, which is authored by the Additional Secretary, State Election Commission, Maharashtra to the Municipal Commissioner of the Jalgaon Municipal Corporation - respondent No. 9. From the said communication, it is brought to the notice of respondent No. 9 about the circulars dated 11.8.2005 and 20.2.2013. It is also brought to his notice that there are allegations against the petitioner of having furnished false information and/or having suppressed material information, inclusive of offences registered against him, in the affidavit in support of the nomination papers. It is then stated that the entire documents, comprising of 244 pages, pertaining to the preliminary enquiry conducted will have to be taken into account and respondent No. 9 will have to follow the due procedure of law in the light of the circulars mentioned in the said letter.

Shri Paranjape, learned Advocate, therefore, submits that the petitioner has carried a mis-conception that this letter is aimed at dis- qualifying the petitioner without taking recourse to the circular dated 20.2.2013. It is further clarified that the process that the State Election Commission will have to adopt in the light of the circular, is to permit respondent No. 9 to register a first information report against the petitioner after hearing him.

It is informed that the petitioner has already submitted his detailed reply to respondent No. 9 in response to the show cause notice issued to him. Shri Paranjape, learned Advocate, therefore, concludes by stating that after considering the reply of the petitioner and after hearing him personally, the competent authority would conclude as to whether, prima facie, there appears any offense committed by the petitioner and then respondent No. 9 will register a first information report against the petitioner in the competent police station.

The submissions of the learned Advocate for respondent No. 2 / complainant are based upon his allegations made in the Election Petition as well as in the complaint to the first respondent. I do not find it purposeful to refer to all the allegations in this order. The sum and substance of the contention of the second respondent is that the Election Petition is in the form of civil proceedings and he has prayed for setting aside of the election in the said proceedings. Whereas, he has prayed for initiating criminal action against the petitioner in his complaint to the first respondent, which may lead to a criminal trial and conviction.

Respondent Nos. 3 to 8 have been served by Court notice. They have chosen to remain absent and have not entered their appearance, either in person or through an Advocate.

The learned Advocate for respondent No. 9 - Municipal Commissioner submits that there are no proceedings being conducted by the State Election Commission parallel to the Election Petition. He submits that the steps being taken by the State Election Commission and the ninth respondent are in a different area and are on different premises which would eventually lead only to the registering of a first information report against the petitioner. He submits that once such a first information report is registered, the Court having criminal jurisdiction would deal with such first information report and neither the first respondent nor the ninth respondent would be coming to a conclusion as to whether the petitioner has committed any offense. He, therefore, emphatically submits that the criminal proceedings would then be initiated and the Court having jurisdiction would deal with the same. He reiterates that the apprehension in the mind of the petitioner is a mis-conception.

The learned Advocate further submits that the Election Petition is in the nature of civil proceedings. The conclusions drawn in the Civil proceedings may not impact the criminal trial in the event the first information report is registered. He submits that the two circulars placed on record restrict the role of the ninth respondent to the extent of registering first information report against the petitioner only upon being convinced after hearing him that some offense is made out.

Shri Kulkarni, learned Advocate for the petitioner submits that he has a serious apprehension that his election as a Corporator would be in jeopardy only on the basis of the complaint of respondent No. 2 and at the hands of the first respondent. He states that the petitioner is under the impression that based on the complaint filed by the second respondent, the first respondent was likely to issue interim orders preventing the petitioner from functioning as a Corporator, either till the criminal proceedings were concluded or till the Election Petition was decided.

He, therefore, submits that in the light of the contentions put forth by the learned Advocates on behalf of the first and ninth respondents, based on two circulars, he still believes that his election as a Corporator would be interfered with under the interim orders of the State Commission and that the criminal proceedings would be initiated if the first information report is registered against him.

In the light of the above, the impugned order passed by the trial Court dated 14.12.2013, in my view, cannot be said to be a perverse or an erroneous order. The trial Court has rightly come to a conclusion that two parallel proceedings cannot be allowed before two different fora on the same cause of action. I also find that the trial Court has rightly observed that the conclusions of the complaint filed by the second respondent would be different than the result of the Election Petition pending before the trial Court.

In my view, the two circulars, which are the guiding principles to the actions of the first and ninth respondent would continue to bind them to the extent of the role defined by the circulars, which they are entitled to play. On registering a first information report, subject to the conditions as recorded above, the criminal proceedings would be set in motion and the same would, therefore, lead to a conclusion, which would invite a penal action against the petitioner. Per contra, the Election Petition would lead to the setting aside of the election of the petitioner and if that so happens, fresh elections would be consequently announced.

I am, therefore, of the view that the process of enquiry initiated by the State Election Commission on the basis of the complaint, does not amount to a proceeding as on date. It is merely a process of hearing the petitioner by the ninth respondent and which would be the basis for registering a first information report. As such, as on date, there are no proceedings initiated on the complaint. So also, the process to deal with the complaint is altogether distinct and different from the judicial proceedings dealing with the Election Petition. In dealing with both these aspects the law invoked operates in different fields and would lead to different results, as discussed above.

Having considered the narration of facts as recorded in brief hereinabove, in my view, so far as the limitations of the writ and/or supervisory jurisdiction of this Court are concerned, the view taken by the 5 Judges Bench of the Supreme Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, . The Apex Court has laid down the law under paragraph Nos. 7 and 8 of the said judgment, which read thus:-

"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque), Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, and Kaushalya Devi v. Bachittar Singh.

It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of a the legal provision which is alleged to have been misconstrued or contravened."

In the case of Surya Dev Rai Vs. Ram Chander Rai [2003 (6) SCC 682], the Apex Court has once again defend the scope and jurisdiction of the supervisory powers of this Court in paragraph Nos. 39(1) to (9) and 39, which read thus :-

"38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-

(1) Amendment by Act No. 46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.

Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where ''a stitch in time would save nine''. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge."

As such, in my view, the impugned order is not perverse and cannot be branded as being erroneous. The petition is based on a mis-conception and purely an apprehension. In the light of the above, this petition sans merits and is, therefore, dismissed.

Shri Kulkarni, learned Advocate for the petitioner makes a submission that since there was an interim order passed by this Court, the same be continued for a further period of four weeks. The second respondent seriously opposes the said request on the ground that the petitioner is preferring petitions after petitions before this Court and by filing trifle applications before the trial Court, he has been creating obstacles in the trial of the Election Petition at every stage.

Shri Malte and Shri Paranjape, learned Advocates for the ninth and first respondents respectively submit that they do not intend to initiate any action against the petitioner until they hear the petitioner and for which the petitioner may appear before the ninth respondent on 30.10.2014. The petitioner submits that he still believes that two parallel proceedings are being continued.

In my view, application Exhibit 67 was filed on the plea that two parallel proceedings are commenced and the first and ninth respondents are likely to pass interim orders against him, merely based on the complaint of the second respondent. This Court has come to a conclusion that the said plea was purely on apprehension and mis-conception and there are no over- lapping proceedings. I do not think that the interim order passed by this Court needs to be continued any further. The Election Petition is expected to be decided expeditiously. Request of the petitioner is hence rejected.

In the light of the above, the petitioner and the second respondent may appear before the ninth respondent on 30.10.2014, at 11.00 a.m. It is expected that the ninth respondent shall, thereafter, take a decision in accordance with law and on its own merits and as expeditiously as possible and preferably within a period of eight weeks thereafter.