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Thakur Prasad Vs. V.S. Mehta and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Election
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 596 of 1964
Judge
Reported inAIR1965MP258; 1965MPLJ480
ActsConstitution of India - Articles 226 and 227; Madhya Pradesh Panchayats Act, 1962 - Sections 20 and 357; Madhya Pradesh Panchayats (Election Petitions, Corrupt Practiees and Disqualification for Membership) Rules, 1962 - Rule 22; Madhya Pradesh Gram Panchayats Election and Co-option Rules, 1963 - Rule 24(2) and 27(6)
AppellantThakur Prasad
RespondentV.S. Mehta and ors.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateA.P. Sen, Adv. (for No. 2) and ;R.J. Bhave, Govt. Adv. (for Nos. 1 and 2)
Cases ReferredHariprasad v. State of Madhya Pradesh
Excerpt:
.....a petition under article 226 of the constitution questioning the legality of an order of the returning officer rejecting a nomination paper, but it was manifest by the act and the rules made thereunder that the legislature intended that there should be no obstruction at the stage of scrutiny of the nomination papers: of taxes, dhubri air 1964 sc 1419, and many other cases that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the high court to issue a prerogative writ; and that the existence of an alternative remedy does not oust the jurisdiction of the court to issue a writ, but it is a thing to be taken into consideration in the matter of granting..........election and election disputes in the representation of the people act, 1951, and the conduct of election rules, 1961. whether it is necessary for the gram panchayat elections to have such elaborate rules when much simpler rules can be more effective and conducive to the expeditious completion of the election is a matter which, in my opinion, ought to receive serious consideration by the legislature and the government. be that as it may, it is manifest that the scheme of the act and the two sets of the rules referred to above it to give a sort of finality to different stages of election and to provide that all matters arising during the election and all disputes relating to the election shall be determined and adjudicated upon, after the election is over and has been notified, by means.....
Judgment:

Dixit, C.J.

1. This matter has come up before me on a difference of opinion having arisen between Naik and Shiv Dayal JJ., on points to be presently stated, in a petition under Articles 226 and 227 of the Constitution for the issue of a writ of certiorari for quashing an order of the Returning Officer appointed for the Gram Panchayat elections of Lanji Block rejecting a nomination paper of the applicant Thakur Prasad for his election to the Gram Panchayat from Ward No. 5.

2. The material facts are that for the election of only one person as a Panch from the aforesaid Ward, the petitioner and the respondent No. 3. Kamta Prasad, filed their nomination papers. The applicant's nomination paper was filed before the Returning Officer on a certain day at 12.55 P. M. while the nomination paper of Kamta Prasad was filed on the same day at 2.11 P. M. The petitioner's name was proposed by one Kashinath. That same person also subscribed as proposer a nomination paper relating to Kamta Prasad. Another nomination paper of Kamta Prasad was also filed by some other person subscribing as his proposer. The Returning Officer rejected the nomination papers of Thakur Prasad as well as of Kamta Prasad in which the proposer was Kashinath.

He took the view that both these nomination papers were invalid inasmuch as Kashinath had subscribed as proposer two nomination papers contrary to Rule 24(2) of the Madhya Pradesh Gram Panchayats Election and Co-option Rules, 1963, (hereinafter referred to as the Rules). He, however, accepted as valid the other nomination paper of Kamta Prasad and declared him to be elected after rejecting the two nomination papers filed by Kashinath proposing the petitioner and Kamta Prasad for the election. The petitioner then filed an application under Articles 226 and 227 of the Constitution for quashing the order of the Returning Officer rejecting his nomination paper contending that his nomination paper subscribed by Kashinath as proposer being the earlier one was valid and the one subscribed by Kashinath later in relation to Kamta Prasad was invalid.

3. Naik J., was inclined to accept the contention advanced on behalf of Thakur Prasad. In regard to the contention urged before the Division Bench by the respondent Kamta Prasad that as [he petitioner had an alternative remedy by way of an election petition no relief should be granted to him under Articles 226 and 227 of the Constitution, Naik J., expressed the opinion that the Rule that the High Court docs not usually interfere when an alternative remedy, equally convenient, expedient and efficacious, exists was by no means an invariable one; and that in the present case the Madhya Pradesh Panchayats Act, 1952, (hereinafter called the Act) and the rules made thereunder provided no remedy against the wrongful rejection of a nomination paper. He proceeded to say --

'By the rejection of his nomination paper, the petitioner is denied his right to seek election not only to the Gram Panchayat but also to the Tahsil and District Panchayats, as the election to these bodies are by an indirect process. The remedy by way of an election petition shall be available to the petitioner when all the elections are over. That remedy cannot, therefore, be said to be as expedient or efficacious. Besides, interference at this stage, when the elections are yet to be held, shall result in the saving of time and money to all concerned.'

4. Shiv Dayal J.. took the view that having regard to the principle that when a new right is created by a statute or a special law and that statute or law provides a machinery for redress, then the party complaining of a violation of his rights under the statute or law must resort to the special remedy provided by that statute or law. and regard being had to Rule 27(6) of the Rules making an order passed by the Returning Officer, with regard to rejection of a nomination paper final, there should be no interference with the order of the Returning Officer, rejecting Thakur Prasad's nomination paper, in this petition. He further said that this Court bad no doubt the jurisdiction to entertain a petition under Article 226 of the Constitution questioning the legality of an order of the Returning Officer rejecting a nomination paper, but it was manifest by the Act and the rules made thereunder that the Legislature intended that there should be no obstruction at the stage of scrutiny of the nomination papers: that the validity of the election must be challenged only by an election petition; and that the word 'election', as used in the Act and the rules, must be given the same meaning which the Supreme Court gave to the term in N.P. Pommswami v. Returning Officer. 1952 SCR 218: AIR 1952 SC 64. He did not express any opinion on the merits of the case

5. The points of law on which the learned Judges of the Division Bench differed, as stated by them, are as follows:

'1. Whether, in this case, interference at this stage is called for?

2. If the answer to the first question is in the affirmative, then, whether the order of the Returning Officer rejecting the nomination paper of the petitioner was erroneous and therefore, required to be quashed?'

6. In connection with the first question, the points to be considered are whether the Act and the rules provide any remedy for calling into question an election on the ground of illegal rejection of a nominal paper, and if such a remedy is provided, then whether it would be a proper exercise of the discretionary jurisdiction of this Court under Articles 226 and 227 of the Constitution to permit the petitioner to bypass that remedy and give him relief at this stage by issuing an appropriate direction or writ under Articles 336 and 227 of the Constitution. It was not disputed before me, and indeed could not be, that the M. P. Panchayats Act 1962, and the rules made thereunder, provide a complete machinery for challenging an election by an election petition founded on the ground of illegal acceptance of rejection of a nomination paper.

Section 357 of the Act says that no election or co-option notified under Sections 20, 118, 170 and 216 shall be called into question except by a petition presented to the prescribed authority. Rule 27(6) of the Rules prescribes that if the Returning Officer rejects a nomination paper, then he shall record in writing a brief statement of his reason for such a rejection and the order passed by him shall be final. Rule 22 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962, published in the Madhya Pradesh Gazette of 7th December 1962 at p. 807, inter alia lays down that if the prescribed authority is of opinion that any nomination paper has been improperly rejected, then that authority shall declare the election or co-option of the returned candidate to be void. It also says that if the prescribed authority is of the opinion that the result of the election or co-option, in so far as it concerns a returned candidate, has been materially affected by improper acceptance of a nomination paper, then that authority shall declare the election or co-option of the returned candidate to be void.

The authority to whom election petitions are to be presented has been prescribed by the Government Notification No. 197-152-XVIII-Rules dated the 24th September 1962, published in the M. P. Government Gazette dated the 12th October 1962. These provisions leave no doubt that a person seeking an election for the office of a Panch whose nomination paper has been rejected by the Returning Officer has the remedy of calling into question the election by filing an election petition after the election has been notified under Section 20 in the prescribed manner. The manner of notifying an election or co-option has been prescribed by Rule 80 of the M. P. Gram Panchayats Election and Co-option Rules, 1908.

7. It must be mentioned that the provisions of the Act, the M P. Gram Panchayats Election and Co-option Rules, 1968 and M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962, relating to election and election disputes bear a close resemblance to the provisions contained on the matter of election and election disputes in the Representation of the People Act, 1951, and the Conduct of Election Rules, 1961. Whether it is necessary for the Gram Panchayat elections to have such elaborate rules when much simpler rules can be more effective and conducive to the expeditious completion of the election is a matter which, in my opinion, ought to receive serious consideration by the Legislature and the Government. Be that as it may, it is manifest that the scheme of the Act and the two sets of the rules referred to above it to give a sort of finality to different stages of election and to provide that all matters arising during the election and all disputes relating to the election shall be determined and adjudicated upon, after the election is over and has been notified, by means of an election petition to he decided by the prescribed authority. The Act find the Rules made thereunder contemplate the whole process of election as one complete process, and the word 'election' as used therein embraces the whole procedure which consists of several stages and embraces many steps where by a person is returned, whether or not it be found necessary to take poll. A rejection or acceptance of a nomination paper is included in the term. It is for securing that the election under the Act and the rules thereunder should be completed with expedition and without interruption that it is provided in the Act and the Rules that no election or co-option notified under the relevant provision shall be called into question except by an election petition and that the order of the Returning Officer rejecting a nomination paper shall be final. In determining whether this Court should decline to interfere under Articles 226 and 227 of the Constitution with the orders of the Returning Officer before the election is completed, the fact that the right Lo hold an election, to stand for election and to be elected as a Panch to a Gram Panchayat and all rights created by the M. P. Panchayats Act, 1902 and the rules made thereunder, and that these provisions also provide a specific remedy for challenging a notified election, cannot be overlooked. This is, however, not to say that any of the provisions of the Act or the rules oust the jurisdiction of this Court to issue writs or directions under Articles 220 and 227 of the Constitution in the matter of elections under the Act. Those provisions do not in any way affect the jurisdiction of this Court under Articles 226 and 227 The question is one of propriety of interfering in the exercise of the jurisdiction conferred by Articles 226 and 227 of the Constitution with the orders of the Returning Officer before any election or co-option under the Act is notified.

8. Now, the Supreme Court has said in Rashid Ahmed v. Municipal Board Kairana, 1950 SCR 566: AIR 1950 S.C. 163, K S. Rashid and Son v. Income Tax Investigation Commission, 1964 SCR 738 : AIR 1954 SC 207 Union of India v. T.R. Varma (S) AIR 1957 SC 882 and Thansing v. Supdt. of Taxes, Dhubri AIR 1964 SC 1419, and many other cases that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ; and that the existence of an alternative remedy does not oust the jurisdiction of the Court to issue a writ, but it is a thing to be taken into consideration in the matter of granting writs, and where such remedy exists, it would he sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution, unless there are good grounds therefor. In regard to taxation matters also, the Supreme Court has laid down in C. A. Abraham v. Income Tax Officer, AIR 1901 SC 009 and Shivram Poddar v Income Tax Officer. AIR 1964 SC 1095 that where the (axing Act provides a complete machinery for assessment of lax and imposition of penalty and for obtaining redress in respect of any improper order by the faxing authority, then the aggrieved person cannot be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution. Again, in the case of AIR 1904 SC 1419, the Supreme Court made the following observations on the exercise of the extraordinary jurisdiction of the High Court under Article 226 of the Constitution.

'The jurisdiction of the High Court underArticle 226 of the Constitution is couched inwide terms and the exercise thereof is notsubject to any restrictions except the territorial restrictions which are expressly providedin the Articles. But the exercise of the jurisdiction is discretionary: it is not exercisedmerely because it is lawful to do so. The veryamplitude of the jurisdiction demands that itwill ordinarily be exercised subject to certainself-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedyfor relief which may he obtained in suit or othermode prescribed by statute Ordinarily theCourt will not entertain a petition for a writunder Article 220, where the petitioner has analternative, remedy, which without being unduly onerous, provides an equally efficaciousremedy.... Where it is open to the aggrieved petitioner to move another tribunal, oreven itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permitby entertaining a petition under Article 226 ofthe Constitution the machinery created underthe statute to be by-passed, and will leave theparty applying to it to seek resort to themachinery so set up.'

So also, in 1952 SCR 218: AIR 1952 SC 64, which is directly in point here, the Supreme Court has said, with reference to the Representation of the People Act 1951, and the Rules thereunder, which also prohibit an election being called in question except by an election petition and contemplate that any matter which has the effect of vitiating an election should not be brought up at an intermediate stage, that the said Act is a self-contained enactment so far as the elections are concerned, and 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. These pronouncements of the Supreme Court leave no doubt that it would not be a sound exercise of discretion to interfere with an order of the Returning Officer in an election held under the Panchayat Act of 1962, and the rules made thereunder, at any intermediate stage before the election is completed and notified and when the Act provides for only one remedy, that remedy being an election petition to the prescribed authority after election is over and notified. So to interfere would amount to virtually negativing the policy of the Legislature which has thought it fit to provide that an election to a Gram Panchayat or other body under the Act, if it is to be challenged, should be challenged by an election petition to the prescribed authority so that the election may be completed expeditiously and without being delayed by any obstruction at an Intermediate stage

9. To me, it appears that the matter is really concluded by the decision of the Supreme Court in 1952 SCR 218 : 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 anything connected with elections could 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 that

it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only fine 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 1952 SCR 218 at pp. 230, 231 and 232: AIR 1952 SC 64 al p. 69 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. 1952 SCR 218 : (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 he 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 M.P. Panchayats Act, 1962, and the rules made thereunder relating to elections, bear a cost resemblance to the relevant provisions of the Representation of the People Act, 1961, and the Conduct of Election Rules, 1961. It follows, therefore, that on the authority of the Supreme Court's decision in Ponnuswami's case, 1952 SCR 218 : 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 M.P. Panchayats Act, 1962, provides for only one remedy, namely, that of an election petition to be presented after the election is over and notified.

10. The observations, which the Supreme Court made in Ponnuswami's case 1952 SCR 218 : AIR 1952 SC 64 (supra) on two decisions of the Madras High Court in Sarvothama Rao v. Chairman, Municipal Council Saidapet, ILR 47 Mad 585 : AIR 1923 Mad 475 and Desi Chettiar v. Chinnasami Chettiar, AIR 1928 Mad 1271, furnish a complete answer to the contention put forward on behalf of the petitioner in the present case, before the Division Bench as also before me that the remedy of an election petition was not expeditious or efficacious and that considerable time and money would be saved and the person concerned would be relieved of hardship if relief were to be given to him in proceedings under Articles 226 and 227 of the Constitution. In ILR 47 Mad 585: AIR 1923 Mad 475 Wallace J. observed --

'It is no consolation to tell him that he can stand for some other election. It is no remedy to tell him that he must let the election go and then have it set aside by petition and have a fresh election ordered.'

In regard to these observations, the Supreme Court said that they represented only one side of the picture and the same learned Judge presented the other side of the picture in the subsequent case, namely, AIR 1928 Mad 1271 in the following passage --

'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 as efficacious as the one which would enable him to stop the election altogether; and certain observations of ILR 47 Mad 585 at p. 600: AIR 1923 Mad 475 at p. 470 are quoted, in the first 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 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. We understand the election for the elective seats in this Union has been held up since 31st May because of this petition the re suit being that the electors have been unable since then to have any representation on the Board, and the Board is functioning, if indeed it is functioning, with a mere nominated fraction of its total strength; and this state of affairs the petitioner proposes to have continued until his own personal grievance is satisfied.'

The Supreme Court approved the view expressed by Wallace J. in the above passage, and while doing so said:--

'These observations which were made in regard to elections to Local Boards will apply with greater force to elections to legislatures, because it does not require much argument to show that in a country with a democratic constitution in which the legislatures have to play a very important role, it will lead to serious consequences if the elections are unduly protracted or obstructed.'

The hardship or inconvenience that may be caused to a person whose nomination paper has been rejected by the Returning Officer and who is required to file an election petition if he wishes to have the election set aside on the ground of illegal rejection of his nomination is an irrelevant consideration. So also is irrelevant the consideration that if the order of the Returning Officer rejecting a-nomination paper of a person is not set aside at an intermediate stage and that person is not allowed to contest the election, then he may lose all the rights, benefit and privileges to which he would be entitled if elected as a Panch, to wit, the right to vote as it Panch for election to other bodies.

11. Shri Dharmadhikari, learned counsel for the petitioner, referred me to the decisions in Kanglu v. Chief Executive Officer, ILR (1954) Nag 875: ( (S) AIR 1955 Nag 49) (FB) and Jawaharlal Motilal v. Dy. Commr. Amravati, 1955 Nag LJ 183, to support the contention that the petitioner should be granted relief under Articles 226 and 227 of the Constitution. The decision in Kanglu's case, ILR (1954) Nag 875: ( (S) AIR 1955 Nag 491 (FB) is not in point as there the election for Janapad Sabha was attacked on the ground of illegalities in the preparation of electoral rolls. In that case, any order of a Returning Officer passed in an election was not challenged. In the other case of Jawaharlal Motilal, 1955 Nag LJ 183, a Division Bench of the Nagpur High Court bad to construe Section 22(1) of the C. P. and Berar Local Government Act, 1948, which ran as follows:--

'No election or selection notified under Section 20 shall be called into question except by a petition presented to the District Court within the limits of whose jurisdiction the election or selection was held.'

It was held by the learned Judges that--

'The bar is against interference, except in the manner provided by the statute, with an election or selection notified under Section 20 of the Act. In the present case, the petitioner is not questioning an election or selection so notified. The bar created does not come into play because the stage at which the bar operates is not yet reached. In short, the bar created by the sub-section is against calling in question an election in the narrow sense, as pointed out by their Lordships of the Supreme Court. We, therefore, hold that Ponnuswami's case. AIR 1952 SC 64 is not applicable to the present facts.'

With all due deference to the learned Judges, the word 'notified' does not signify that so long as an election is not notified it can be questioned in proceedings under Article 226 of the Constitution; but it is that an election petition would be competent only after the election or selection is notified and not before. That word does not in any way curtail the wide meaning of the word 'election'. Thus if there is no occasion at all for notifying an election, as for example, when the Returning, Officer rejects all the nomination papers and fresh dates for filing the nomination papers are fixed, then the bar created by Section 357 of the Act can not apply.

This is precisely what has been held in the case of Tundilal v. Returning Officer, Misc. Petn. No. 587 of 1964, D/- 7-1-1965: (reported in AIR 1965 Madh Pra 250) where the Returning Officer rejected the nomination papers of all the candidates seeking election, and this Court set aside in proceeding under Article 226 of the Constitution the order of the Returning Officer rejecting the nomination paper of one candidate. It may be pointed out, that as against the case of Jawaharlal Motilal, 1955 Nag LJ 183, there is a Full Bench decision of this Court in Hariprasad v. State of Madhya Pradesh, AIR 1959 Math Pra 343 where it has been held that when the C. P. and Berar Local Government Act, 1948, provides a remedy of an election petition for challenging an election, then the High Court would not be justified in exercising the jurisdiction under Article 226 of the Constitution for interfering with an election disputes under the Act.

12. For all these reasons. I am of the view that this Court would properly be exercisingits jurisdiction in declining to interfere under Articles 226 and 227 of the Constitution withthe order of the Resuming Officer rejecting thepetitioner Thakur Prasad's nomination paperand no interference is called for at this stagein that order in view of this answer to thefirst question, it is unnecessary for me to consider and answer the second question.


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