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Malam Singh Vs. the Collector, Sehore, M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 486 of 1970
Judge
Reported inAIR1971MP195; 1971MPLJ531
ActsConstitution of India - Articles 226 and 227; Madhya Pradesh Panchayats Act, 1962 - Sections 329 and 357(1); Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962 - Rule 22(1)
AppellantMalam Singh
RespondentThe Collector, Sehore, M.P. and ors.
Appellant AdvocateV.S. Dabir and ;P.P. Naolekar, Advs.
Respondent AdvocateM.V. Tamaskar, Govt. Adv. (for Nos. 1 and 2) and ;N.P. Dubey, Adv. (for No. 4)
Cases Referred and Pancham Ramcharan v. Collector
Excerpt:
.....the provisions of the representation of the people act to state that the act provides for only one remedy, that remedy being an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage'.it is clear from the observations of the supreme court in air 1952 sc 64 (supra), that on the provisions of the representation of the people act the supreme court took the view that when section 80 of that act laid down that no election shall be called in question except by an election petition and the word 'election' meant the whole procedure consisting of several stages and many steps, it would not be proper to interfere under article 226 of the constitution at an inter , have, however, held that no interference was called for, following the..........down by their lordships. 9. first of all, their lordships rejected the contention that the post-election remedy of an election petition was inadequate to afford the relief which the petitioner sought. on the strength of the observations of wallace, j., in sarvothama rao v. chairman, municipal council, saidapet, ilr 47 mad 585 = (air 1923 mad 475), it was urged before them that to drive him to that remedy would be an anomaly, which their lordships more appropriately described as hardship or prejudice. it was further urged that the court could not stultify itself by allowing the wrong which it was asked to prevent to be actually consummated. while rejecting the contention, their lordships noticed with approval the following observations of wallace, j., in desi chet-tiar v. chinnasami.....
Judgment:

A.P. Sen, J.

1. These five petitions have been referred to the Full Bench for deciding the controversial question whether it is proper that the High Court should exercise its jurisdiction under Article 226 of the Constitution in election matters, at intermediate stages i.e., to interfere with individual orders, passed during the process of election and thus impede that process, or, should it decline to exercise that power and leave the parties to their remedy of an election petition to be presented after the election is over.

2. The facts are that the petitioners had filed their nomination papers for being chosen as Panchas at the recent Gram-Pan-chayat elections. Their nomination papers were rejected during scrutiny on the objection that they had not paid all taxes due against them to the Gram-Panchayats for the last financial year and were, therefore, disqualified for being a Panch, Sarpanch or an Up-Sarpanch of a Gram-Panchayat under Section 17(1)(i) of the Act. These petitions are filed for issuing writs in the nature of certiorari for quashing the orders of the Returning Officers on the ground of improper rejection of nomination papers and for issuing writs in the nature or mandamus for directing the Returning Officers to include their names in the lists of valid nominations and thereafter to proceed with the elections.

3. The Madhya Pradesh Panchayats Act, 1962 (No. 7 of 1962) provides, inter alia, by Section 10 for the establishment of Gram-Panchayats in accordance with the provisions of the Act, Section 11 directs that every Gram-Panchayat shall consist of elected and co-opted members. The manner of election and co-option of Panchas is provided for by Section 12. Under Section 12 (1), the election and co-option of Panchas shall be in accordance with the Rules. For this purpose, the State Government has made the Madhya Pradesh Gram-Panchayat Election and Co-option Rules, 1963. The Rules provide a complete process for election and co-option of Panchas.

For the sake of convenience, the relevant rules in regard to nomination of candidates may be set out. Rule 27 (1) enjoins the Returning Officer to fix a date for scrutiny. Under Rule 27 (2), he shall, on the date of scrutiny, decide all objections which may be raised to any nomination. Under the proviso to Rule 27 (5), the Returning Officer is required to give to the candidate against whose candidature an objection is raised, an opportunity to rebut the objection, if any, and for this purpose, he has to allow him time till the next date. The Returning Officer, may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the grounds mentioned in Rule 27 (2). One or the grounds for rejection is that the candidate is disqualified from being chosen to fill the seat by or under the Act. Rule 27 (6) requires the Returning Officer to endorse on each nomination paper his decision accepting or rejecting the same, and if the nomination paper is rejected he is required to record in writing a brief statement of his reasons for such rejection and it attaches a finality to the order passed by the Returning Officer. Under Rule 27 (8), he is required to prepare and publish a list of candidates whose nominations have been accepted. Unlike other enactments, there is no appeal provided against improper acceptance or rejection of nomination papers. That, however, is a ground for an election petition.

4. Section 357 (1) of the Act, with which we are concerned, reads as follows:--

'No election, or co-option notified under Sections 20, 113, 170 and 216 shall be called into question except by a petition presented to the prescribed authority.'

The word 'election' must in the context in which it appears be interpreted to mean the entire process of election culminating in a candidate being declared elected and includdes the rejection of a nomination paper with which the process of election begins. Section 357 (1) was apparently enacted to prescribe the manner in which and the stage at which the rejection of a nomination paper can be raised as a ground to call the election in question. The State Government has framed the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962, prescribing the manner in which an election or co-option can be called in question. Under Rule 22 (1) (c) and (d) (i), the improper acceptance or rejection of a nomination paper is a ground for an election petition. The Rule reads as follows:--

'22. Grounds for declaring election or co-option to be void. -

(1) Subject to the provisions of Sub-rule (2) if the prescribed authority is of opinion-

.....

(c) that any nomination paper has been improperly rejected; or

(d) that the result of the election or co-Option, in so far as it concerns returned candidate, has been materially affected-

(i) by the improper acceptance of any nomination,

the prescribed authority shall declare the election or co-option of the returned candidate to be void.'

Rule 26 attaches a finality to the decision of the prescribed authority.

5. The Act, therefore, furnishes a complete remedy for the particular breach complained of. The Legislature prescribed the manner in which and the stage at which the rejection of a nomination paper can be raised as a ground to call the election in question. We think it follows by necessary implication from the language of Section 357 (1) that this ground cannot be urged in other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Section 357 (1) and in setting up an election tribunal. The question of improper refection of a nomination paper has, therefore, to be brought up before the election tribunal by means of an election petition after the conclusion of the election.

6. It will be noticed that Section 357 (1) of the Act is identically the same as Section 80 of the Representation of the People Act, 1951. The language of these provisions is borrowed from Article 329(b) of the Constitution with this difference only that the Article is preceded by the words 'Notwithstanding anything in this Constitution'. Article 329(b) of the Constitution provides that

'no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.'

The Representation or the People Act, 1951, which made detailed provisions for election to the various Legislatures of the country also contains a provision in Section 80 that

'no election shall be called in question except by an election petition presented in accordance with the provisions of the Act.'

7. In N. P. Ponnuswami v. Returning Officer Namakkal, AIR 1952 SC 64, the question for consideration before their Lordships of the Supreme Court was whether in view of the provisions of Article 329(b) of the Constitution and Section 80 of the Representation of the People Act, 1951 the High Court had any jurisdiction to interfere with the order of the Returning Officer. Themain controversy centred around the meaning of the words 'no election shall be called in question except by an election petition' and the point to be decided was whether questioning the action of the Returning Officer in rejecting a nomination paper can be said to be comprehended within the words 'no election shall be called in question'. The contention was that questioning something which has happened before a candidate is declared elected was not the same as questioning the election and it was urged that the word 'election' as used in those provisions means what it normally and etymologically means, namely, the result of polling or the final selection of a candidate. The contention was rejected by their Lordships in these words,

'That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected.'

8. Their Lordships of the Supreme Court, having regard to the words 'notwithstanding anything in this Constitution' used in Article 329(b), held that they were sufficient to exclude jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress. Nevertheless, the decision of their Lordships did not entirely turn on the language of Article 329(b) of the Constitution. Their Lordships also enunciated certain well settled principles applicable to election cases in general. In particular, they interpreted Section 80 of the Representation of the People Act, 1951. Though we are not concerned with Article 329(b) of the Constitution, we are bound by the principles laid down by their Lordships.

9. First of all, their Lordships rejected the contention that the post-election remedy of an election petition was inadequate to afford the relief which the petitioner sought. On the strength of the observations of Wallace, J., in Sarvothama Rao v. Chairman, Municipal Council, Saidapet, ILR 47 Mad 585 = (AIR 1923 Mad 475), it was urged before them that to drive him to that remedy would be an anomaly, which their Lordships more appropriately described as hardship or prejudice. It was further urged that the Court could not stultify itself by allowing the wrong which it was asked to prevent to be actually consummated. While rejecting the contention, their Lordships noticed with approval the following observations of Wallace, J., in Desi Chet-tiar v. Chinnasami Chettiar, AIR 1928 Mad 1271:--

'The petitioner is not without his remedy. His remedy lies in an election petition which we understand he has already put in. It is argued for him that that remedy which merely allows him to have set aside an election once held is not an efficacious as the one which would enable him to stop the election altogether and certain observations at page 600 of ILR 47 Mad 5S5 = (AIR 1923 Mad 475) (Supra), are quoted. In the Erst place, we do not see how the mere fact that the petitioner cannot get the election stopped and has his remedy only after it is over by an election petition, will in itself confer on him any right to obtain a writ. In the second place, these observations were directed to the consideration of the propriety of an injunction in a civil suit, a matter with which we are not here concerned. And finally it may be observed that these remarks were made some years ago when the practice of individuals coming forward to stop elections in order that their own individual interest may be safeguarded was not so common. It is clear that there Is another side of the question to be considered, namely, the inconvenience to the public administration of having elections and the business of Local Boards held up while individuals prosecute their individual grievances.'

These observations of Wallace, J., were made in regard to elections to Local Boards. It thus follows that the alternative remedy of an election petition is not less convenient, beneficial and effectual.

10. Next, their Lordships re-stated the principle that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Their Lordships relied on the dictum of Willes, J., which has become classical:

'It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J., in Wolver-bampton New Water Works Co. v. Hawkesford, (1859) 6 CB (NS) 336, at p. 356, in the following passage:

'There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and a peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. Butthere is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... The remedy provided by thestatute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to'. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd., 1919 AC 368, and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co., 1935 AC 533, and Secy, of State v. Mask & Co., 44 Cal WN 709 = (AIR 1940 PC 105), and it has also been held to be equally applicable to enforcement of rights (see Hurdutrai v. Off. Assignee of Calcutta, (1948) 52 Cal WN 343 at p. 349.'

11. Lastly, their Lordships stated that the law of election in this country does not contemplate that there should be two attacks on matters connected with election proceedings, in the following passage:--

'In my opinion, to affirm such a position would be contrary to the scheme of ..... the Representation of the PeopleAct, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance, which the rejection of a nomination paper has, consists in the fact that it can be used as a ground to call the election in question.'

12. There is no constitutional bar to the exercise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities, Panchayats and the like. However, as it is desirable to resolve election disputes speedily through the machinary of election petitions, the Court in the exercise of its discretion should always decline to invoke its writ jurisdiction in au election dispute, if the alternative remedy of an election petition is available. So, their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, stated:--

'..... though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have diputes about these special rights decided as speedily as may be- Therefore, writ petitions should not be lightly entertained in this class of case.'

13. The principles governing the grant of writ of mandamus are stated in Halsbury's Laws of England, Simonds Edition (3rd edition), Vol. II, Pages 107-8 as follows:--

'The Court will, as a general rule, and in the exercise of its discretion refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial, and effective.

Alternative remedies which thus exclude the remedies by writ of mandamus are ....election petition, ..... even though itmay be fruitless in its results.'

In England, where an election petition does lie, a nigh prerogative writ is not issued unless there are special circumstances (See, Regina v. Chester Corporation, (1855) 25 LJQB 61, Regina v. Welchpool Corporation, (1876) 35 LT 594 and It. (O'Lehane) v. Dublin Town Clerk, (1909) 43 ILT 169).

14. There is no uniform rule of practice adhered to by the different Division Benches of this Court, The question first arose in Vinod Kumar v. K. L. Jain, 1965 MPLT 375, In that case, Naik and Shiv Dayal JJ., interfered with the rejection of a nomination paper. Naik, ]., who delivered the judgment stated that such interference was called for, first because no remedy was provided against the illegal rejection of a nomination paper, secondly because the refection of the nomination paper is so manifestly wrong that there is an error apparent on the face of the record, thirdly because it will save needless worry and expenses to the parties if the matter were to be taken up later by an election petition, and fourthly because there is no answer to the petitioner's contention that no interference at this stage will deprive him of the right to contest further election for Tahsil and District Panchayats, elections to which take place indirectly through those who are elected in the Gramsabha. The question next arose before the same Judges in Thakurprasad v. V. S. Mehta, 1965 MPLT 180 = (AIR 1965 Madh Pra 258), but they differed. While Naik, J., adhered to his earlier view, Shiv Dayal, J., held that there should be no interference. On reference, Dixit, C. J., expressed as follows:--

'To me, it appears that the matter is really concluded by the decision of the Supreme Court in AIR 1952 SC 64. In that case, the Supreme Court after holding that the term 'election' as used in Article 329(b) of the Constitution embraces the whole procedure consisting of several stages and embracing many steps whereby 'an elected member' is returned, whether or not it was necessary to take poll, examined the provisions of the Representation of the People Act, 1951, noted Section 80 of that Act drafted in almost the same language as Article 329(b) of the Constitution providing that no election shall be called in question except by an election petition, and said that the said Act was a self-contained enactment so far as elections were concerned and that there was no provision in the Act to the effect that anything connected with electionscould be questioned at an intermediate stage. The Supreme Court then stated the well recognised rule that where a right or liability is created by statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of and observed-

'..... it will be a fair inferencefrom the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage'. It is clear from the observations of the Supreme Court in AIR 1952 SC 64 (supra), that on the provisions of the Representation of the People Act the Supreme Court took the view that when Section 80 of that Act laid down that no election shall be called in question except by an election petition and the word 'election' meant the whole procedure consisting of several stages and many steps, it would not be proper to interfere under Article 226 of the Constitution at an intermediate stage with any matter which has the effect of vitiating an election. The Supreme Court then pointed out that because of Article 329(b) of the Constitution the jurisdiction of the High Court to deal with any matter arising while the election is in progress is totally excluded. It is thus plain that in Ponnuswami's case, AIR 1952 SC 64 (supra), the Supreme Court has held not only that Article 329(b) of the Constitution excludes the jurisdiction of the High Court in election matters, but also that even without Article 329(b), on the provisions of the Representation of the People Act, 1951, especially Section 80 thereof, it would not be proper to permit a party to invoke the jurisdiction of the High Court under Article 226 of the Constitution abandoning the special remedy given by the said Act for calling into question an election, As has been pointed out earlier, the provisions of the Madhya Pradesh Panchyats Act, 1962, and the rules made thereunder relating to elections, bear a close resemblance to the relevant provisions of the Representation of the People Act, 1951, and the Conduct of Election Rules, 1961, It follows, therefore, that on the authority of the Supreme Court's decision in Ponnuswami's case, AIR 1952 SC 64 (supra), it must be held here that it would not be proper to exercise the powers under Articles 226 and 227 of the Constitution for interfering with the order of the Returning Officer rejecting a nomination paper when Section 357 of the Madhya Pradesh Panchayats Act, 1962, provides for only one remedy, namely, that of an election petition to be presented after the election is over and notified.'

15. The majority view in Thakurprasad's case, AIR 1965 Madh Pra 258 has, however, been departed from. So, in Tundilal Bholaram v. Returning Officer, BlockLalbarra, 1965 MPLJ 897 = (AIR 1965 Madh Pra 256), Dixit, C. J. and Pandey, J., interfered with the rejection of a nomination paper, but the facts of that case were distinguishable. There, the nomination papers of all the candidate seeking elections had been rejected. There could thus be no question of notifying the election of any particular person under Section 20. The provisions of Section 357 (1) of the Act were, therefore, not attracted. However, Dixit, C. J. and Pandey, J., in Tdandas v. Election Officer, Khandwa, 1966 MPLJ 242, interfered with the co-option of the Panchas on the ground that it was in violation of Sections 11 and 19 of the Act, stating that it would not be proper to allow the members illegally co-opted to function as Panchas and to direct the petitioner to challenge their co-option by an election petition. In Kishanchand v. Supervising Officer, Municipal Committee, Kurwai, 1969 MPLJ 856, Bishambhar Dayal C. J., and Shiv Dayal, J., interfered with the rejection a nomination paper on the ground that the remedy by way of an election petition was not an equally efficacious alternative remedy. Shiv Dayal, J., speaking for the Division Bench, stated that interference was called for as otherwise the mischief which would be done consequent upon the flagrantly wrong and arbitrary decision of the Supervising Officer, which was contrary to the mandatory provisions contained in the rules, would remain undisturbed. He further held that the jurisdiction of the High Court under Article 226 of the Constitution was unfettered and in no way controlled by the provisions of Section 357 (1) of the Act. He followed the view in Vinod Kumar's case, 1965 MPLT 480. In Jaidev Dubey v. Awadheshchandra Gupta, 1970 Jab LJ (N) 131 and Pancham Ramcharan v. Collector, Bhind, 1971 MPLJ 50 = (AIR 1971 Madh Pra 97), Shiv Dayal and Raina, JJ., have, however, held that no interference was called for, following the view in Thakurprasad's case, AIR 1965 Madh Pra 258 (FB).

16. In view of the provisions of the Madhya Pradesh Panchayats Act, 1962, which provides for an adequate remedy, namely, the remedy of an election petition to be presented after the election is over, for all grievances whether grounded on the ultimate result of the election or upon any interlocutory order passed in the process of election, we are of the view that, where that remedy is available, it would not be proper for the High Court to exercise its undoubted powers under Articles 226 and 227 of the Constitution for interfering with an interlocutory order passed during the process of election, save in very exceptional circumstances.


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