No. 2809759H Ex-recruit Babanna Machched vs Union Of India

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1629 OF 2016 (Arising out of S.L.P.(C) No.22902 of 2011)

Shaji K. Joseph ... Appellant

Versus

V. Viswanath & Ors. ... Respondents

JUDGMENT

ANIL R. DAVE, J.

1. Leave granted.

2. Heard the learned counsel for the parties.

3. The issue involved in this appeal is with regard to election of a

member to the Dental Council of India under Section 3 (a) of the

Dentists Act, 1948 [hereinafter referred to as 'the Act'] and Dental

Council (Election) Regulations, 1952 [hereinafter referred to as 'the

Regulations']. Respondent no.1 herein wanted to contest the election,

but as his name was not in the electoral roll in Part A of the register of

dentists for the State, his nomination form had not been accepted by

the Signature Not Verified Returning Officer, Respondent no.3 herein. In these Digitally signed by ANITA MALHOTRA Date: 2016.02.24 16:26:25 IST

circumstances, Respondent no.1 preferred Writ Petition (C) No.4075 of Reason:

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2011 before the High Court of Kerala at Ernakulam challenging the

validity of rejection of his nomination paper. The Learned Singe Judge

of the High Court vide judgment dated 23 rd May, 2011 allowed

Respondent no.1’s Writ Petition by setting aside the order passed by

the Returning Officer, rejecting nomination in respect of candidature

of Respondent no.1 and directed the Returning Officer to conduct the

election afresh after including name of Respondent no.1 and to declare

the result on the basis of such election to be conducted afresh from

the stage after submission of the nominations.

4. Being aggrieved by the aforestated judgment delivered in the writ

petition, the present appellant preferred Writ Appeal No.806 of 2011

assailing the validity and correctness of the said judgment rendered by

the Learned Single Judge of the High Court. The Division Bench of the

High Court dismissed the Writ Appeal by its judgment dated 18 th July,

2011 and therefore, the appellant has approached this Court by way

of this appeal.

5. The learned counsel appearing for the appellant submitted that

on 3rd May, 2010, the Returning Officer had published preliminary

electoral roll as specified in Regulation 3(1) of the Regulations and the

last date for preferring claims and objections relating to the entries or

omissions in the preliminary electoral rolls was 30 th July, 2010.

However, the said last date was extended up to 31 st August 2010.

Ultimately, the Final Electoral Roll was published in the

2 Extra-ordinary Gazette no.35 on 10th January, 2011. The election

programme was notified in the Gazette on 27 th January, 2011,

whereby it was notified that the last date for receiving nomination

papers was 7th February, 2011 and the scrutiny of the nomination

papers was to take place on 9 th February, 2011. The schedule

prescribed the last date for withdrawal of the nomination as 16 th

February, 2011 and the election was to take place on 18 th March,

2011. Counting was to take place on 19 th March, 2011. The

aforestated facts are not in dispute.

6. The learned counsel further submitted that after the process of

election had started by publication of the election programme on 27 th

January, 2011, the High Court should not have entertained the

petition filed by Respondent no.1, especially when he was not even an

elector/voter and that nomination of Respondent no.1 was rightly

rejected by the Returning Officer because his name was not in the

electoral roll.

7. In the circumstances, the learned counsel submitted that the

appeal should be allowed especially in view of the law laid down by

this Court in the case of N.P. Ponnuswami v. The Returning

Officer, Namakkal Constituency, Namakkal, Salem Dist. and

others, AIR 1952 SC 64, Nanhoo Mal and others v. Hira Mal and

others 1976 (3) SCC 211 and Shri Sant Sadguru Janardan Swami

(Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another

3 v. State of Maharashtra and others 2001 (8) SCC 509. He submitted

that the aforestated judgments of this Court have laid down the law to

the effect that once the process of election starts, no court should

interfere with the election process. He further added that in view of

the fact that Section 5 of the Act read with Regulation 20 of the

Regulations, specifically provides that whenever any dispute arises in

the course of election, it should be referred to the Central Government,

whose decision shall be final. Section 5 of the Act read with Regulation

20 of the Regulations thereunder reads thus:-

“Section 5. Mode of elections: - Elections under this Chapter shall be conducted in the prescribed manner and where any dispute arises regarding any such election, it shall be referred to the Central Government whose decision shall be final. Regulation 20. Procedure for setting aside election.-

(1) Before setting aside an election under Section 5, the Central Government shall give an opportunity to all the parties concerned to show cause why the election should not be set aside.

(2) A decision under Section 5 may be given on the inquiry and report of any person appointed by the Central Government in that behalf.”

8. In view of the aforestated provisions of the Act and the

Regulations, the High Court should not have interfered with the

process of the election as it was open to Respondent no.1 to raise the

election dispute before the Central Government after completion of the

election. The learned counsel, therefore, submitted that the impugned

judgment should be set aside.

9. On the other hand, the learned counsel for Respondent no.1

4 submitted that Respondent no.1 was competent to contest the election

though his name was not registered in Part A of the State register.

Respondent no.1 was to be elected by the Dentists whose names were

registered as Dentists in Part A of the State register and for the

purpose of contesting the election, it was not necessary that his name

should be in Part A of the State register. To contest the election one

must be a registered Dentist possessing a recognised dental

qualification and in fact Respondent no.1 was having qualification of a

Dentist and he was registered as a Dentist. In these circumstances,

according to the learned counsel appearing for Respondent no.1,

non-inclusion of name of Respondent no.1 in Part A of the State

register was not relevant.

10. He referred to the provisions of Section 3 of the Act, relevant

portion whereof reads as under:

“Section 3. Constitution and composition of Council.- The Central Government shall, as soon as may be, constitute a Council consisting of the following members, namely:-

(a) One registered dentist possessing a recognized dental qualification elected by the dentists registered in Part A of each (State) register;

(b) ……………………………………………………….”

11. According to him, a registered Dentist possessing recognised

Dental qualification can contest election and as Respondent no.1 is a

registered Dentist, he was competent to contest election even though

he was not registered in Part A of the State register. Thus, according

5 to him, to become a member of Dental Council of India one need not

be in the electoral roll or need not be registered in Part A of register of

dentists for the State.

12. According to the learned counsel, the High Court had rightly

intervened by setting aside the order passed by the Returning Officer

of rejecting nomination paper of Respondent no.1 and therefore, the

appeal deserved to be dismissed.

13. We have heard the learned counsel for the parties at length and

have considered the provisions of the Act and the judgments referred

to hereinabove.

14. In our opinion, the High Court was not right in interfering with

the process of election especially when the process of election had

started upon publication of the election program on 27 th January,

2011 and more particularly when an alternative statutory remedy was

available to Respondent no.1 by way of referring the dispute to the

Central Government as per the provisions of Section 5 of the Act read

with Regulation 20 of the Regulations. So far as the issue with regard

to eligibility of Respondent no.1 for contesting the election is

concerned, though prima facie it appears that Respondent no.1 could

contest the election, we do not propose to go into the said issue

because, in our opinion, as per the settled law, the High Court should

6 not have interfered with the election after the process of election had

commenced. The judgments referred to hereinabove clearly show the

settled position of law to the effect that whenever the process of

election starts, normally courts should not interfere with the process

of election for the simple reason that if the process of election is

interfered with by the courts, possibly no election would be completed

without court’s order. Very often, for frivolous reasons candidates or

others approach the courts and by virtue of interim orders passed by

courts, the election is delayed or cancelled and in such a case the

basic purpose of having election and getting an elected body to run the

administration is frustrated. For the aforestated reasons, this Court

has taken a view that all disputes with regard to election should be

dealt with only after completion of the election.

15. This Court, in Ponnuswami v. Returning Officer (supra) has

held that once the election process starts, it would not be proper for

the courts to interfere with the election process. Similar view was

taken by this Court in Shri Sant Sadguru Janardan Swami (Moingiri

Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of

Maharashtra (supra).

16. Thus, in view of the aforestated settled legal position, the High

Court should not have interfered with the process of election. We,

therefore, set aside the impugned judgment and direct that the result

7 of the election should be published. We are sure that due to interim

relief granted by this Court, Respondent no.1 must not have been

permitted to contest the election. It would be open to Respondent no.1

to approach the Central Government for referring the dispute, if he

thinks it proper to do so. No issue with regard to limitation will be

raised if Respondent no.1 initiates an action under Section 5 of the Act

within four weeks from today.

17. For the aforestated reasons, we allow the appeal with no orders

as to costs.

………………..……………….J. (ANIL R. DAVE)

.….…………..……………….J. (ADARSH KUMAR GOEL)

NEW DELHI;

FEBRUARY 22, 2016.

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ITEM NO.1A COURT NO.2 SECTION XIA For Judgment

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s).1629/2016 @ SLP(C)No.22902/2011

SHAJI K JOSEPH Appellant(s)

VERSUS

V.VISWANATH & ORS. Respondent(s)

Date : 22/02/2016 This appeal was called on for pronouncement of Judgment today.

For Appellant(s) Mr. K. Radhakrishnan,Sr.Adv.

Ms. Kiran Bhardwaj,Adv.

For Respondent(s) Mr. Gaurav Sharma,Adv. Mr. Jogy Scaria,Adv.

Mr. Vinodh Kanna B.,Adv. Mr. S. Ramsubramanian,Adv.

Hon'ble Mr. Justice Anil R. Dave pronounced the

Reportable judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Adarsh Kumar Goel.

Leave granted.

The appeal is allowed with no order as to costs in terms of signed Reportable judgment.

(Sarita Purohit) (Sneh Bala Mehra) Court Master Assistant Registrar

(Signed Reportable judgment is placed on the file)

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