Skip to content


Niranjan Singh Vs. Collector, Sriganganagar and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 295/82
Judge
Reported in1982WLN(UC)255
AppellantNiranjan Singh
RespondentCollector, Sriganganagar and ors.
DispositionPetition dismissed
Cases ReferredGunwant Kaur v. Bhatinda Municipality
Excerpt:
constitution of india - article 226 and rajasthan panchayat samitis avam zila parishad(sht ai samatianka gathan) niyam, 1965--rule 5--election challen gedong round of non-compliance of rule 5--remedy by way of election petition available--held, extra ordinary jurisdiction under article 226 cannot be invoked.;the aforesaid election tribunal alone has the jurisdicion to consider the question as to whether the election- of the members of the standing committees of the panchayat samiti is liable to be set aside on account of non-compliance with the provisions of rule 5 of the standing committee rules. this court, cannot exercise its jurisdiction under article 226 to set aside the election on the ground of non-compliance of rule 5 of the standing committee rules. in my view, therefore, it is.....s.c. agrawal, j.1. in this writ petition filed under article 226 of the constituion of india, the petitioner, niranjan singh, who is up-pradhan of panchayat samiti, anupgarh (hereinafter referred to as 'the panchayat samiti') has challenged the validity of the 'election of the members of the standing committees of the panchayat samiti held on 10th february, 1982 and notified on 11th february, 1982 by the vikas adhikari, panchayat samiti anupgarh (respondent no. 2).2. the panchayat samiti has been constituted under the provisions of the rajasthan panchayat samitis and zila parishads act, 1959 (hereinafter referred to as 'the act'). under sub-section (1) of section 20 of the act, it has been provided that every panchayat samiti shall constitute four standing committees one for each of the.....
Judgment:

S.C. Agrawal, J.

1. In this writ petition filed under Article 226 of the Constituion of India, the petitioner, Niranjan singh, who is Up-Pradhan of Panchayat Samiti, Anupgarh (hereinafter referred to as 'the Panchayat Samiti') has challenged the validity of the 'election of the members of the standing committees of the Panchayat Samiti held on 10th February, 1982 and notified on 11th February, 1982 by the Vikas Adhikari, Panchayat Samiti Anupgarh (respondent no. 2).

2. The Panchayat Samiti has been constituted under the provisions of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (hereinafter referred to as 'the Act'). Under Sub-section (1) of Section 20 of the Act, it has been provided that every Panchayat Samiti shall constitute four standing committees one for each of the group of subjects mentioned In clauses (a), (b), (c), and (d) of sub Section (1). Provision has also been made for constitution of a fifth standing committee for any of the subjects enumerated in any group or groups mentioned in Sub-section (1). In Sub-section (3) of Section 20, it is provided that every standing committee shall consist of seven members, five of whom shall be from amongst the members of the Panchayat Samiti and two of whom shall be co-opted in the prescribed manner from amongst persons not being members of the Panchayat Samiti residing in the block and having experience and knowledge of the subjects assigned to the standing committee. The State Government has framed the Rajasthan Panchayat Samiti Avam Zila Parishad (Sthai Samitian Ka Gathan) Niyam, 1965 (hereinafter referred to as 'the Standing Committee Rules') whereunder provision has been made for election as well as cooption of the members of the standing committees of the Panchayat Samitis Rule 3 of the Standing Committee Rules lays down that the members of the standing committee shall be elected at a meeting convened by the Presding Officer, Viz. Vikas Adhikari of the Panchayat Samiti. Rule 5 prescribes that for the aforesaid meeting of the Panchayat Samit) seven clear days' notice must be given to all the members of the Panchayat Samiti and the said notice should state the place., date and time during which the nomination papers can be filed, the place, date and time when the scrutiny of the nomination papers would be conducted and the place and date and time when the polling, if necessary, will be held. The said rule further requires that the said notice shall be sent to the various members by registered post or any other method considered appropriate by the Presiding Officer and the said notice should also be put on the notice board of the Panchayat Samiti. Rule 6 makes provision for filing of nomination papers. Rule 7 provides for scrutiny of the nomination papers. Rule 8 provides for publication of the list duly nominated candidates. Rule 9 makes provision for withdrawal of candidature. Rule 10 provides that if the number of vacancies are equal to the number of can-dates, then the Presiding officer would declare all the candidates to be elected, if the number of condidates is less than the number of vacancies, then the Presiding Officer would declare all the candidates to be elected and would fix another date for election for the remaining vacancies, and if the number of candidates is more than the members to be elected, then the members present would be required to cast their votes by secret poll. Rule 11 prescribes the procedure for the polling and under Sub-rule (7) of rule 11, it is laid down that when the polling is over the Presiding Officer shall count the votes in the presence of the members and would declare the candidate who has received the highest votes as being elected and in the event of candidates receiving equal number of votes, lots would be drawn, Rule 14 provides that after the completion of the election, the Presiding Officer shall prepare the minutes of the proceedings of the meeting and would allow the members to put their signatures on the said minutes and that thereafter a list of the duly elected members of the standing committees containing the signatures of the Presiding Officer shall be published and placed on the notice board of the office of the Panchayat Samiti and a copy of the said notification shall also be sent to the Collector and the Panchayat and Vikas Vibhag of the State Government.

3. Under Section 71-Article of the Act, the provisions of Section 13 of the Act have been made applicable, mutatis mutandis, to the election of members of the standing committees of the Panchayat Samiti. Section 13 of the Act prescribes that the election of a Pradhan or Up-Pradhan of the committee may be called in question by any member thereof by presenting in the prescribed manner to the Judge, as defined in Section 2(6) of the Act, a petition in this behalf on the prescribed grounds & within the prescribed period In exercise of the powers conferred' on it by Section 13 and Sub-section (5) of section 45 read with Sub-section (1) of Section 79 of the Act, the State Government has made the Rajasthan Panchyat Samitis and Zila Parishad (Election Petition) Rules. 1959 (hereinafter referred to as 'the Election Petition Rules'). Under rule 10 of the said Rules, the provisions of rule 3 to 9 have been made applicable, mutatis, mutandis, to the election of a member of the standing committee of a Panchayat Samiti. Rule 3 of the Election Petition Rules lays down the grounds on which the election may be questioned by the election petition. Rule 5 prescribes that the election petitition may be presented within thirty days after the day on which the result of the election is announced.

4. By a notice dated 2nd February, 1982 issued by respondent no. 2, viz, Vikas Adhikari Panchayat Samiti, Anupgarh, the meeting of the Panchayat Samiti for the purpose of constituting the standing committees of the Panchayat Samiti was called on 10th February, 1982. The case of the petitioner is that the said notice was sent by registered post to the various members of the Panchayat Samiti on 3rd February, 1982 and it was received by the members not before 5th February, 1982 The case of the petitioner is further that the petitioner as well as respondents nos. 4,6, 15 and 21 to 27 attended the meeting of the Panchayat Samiti in the office of Panchyat Samiti on February 10, 1982 at (sic)10 a.m. and that petitioner and respondent nos. 4. 15 and 21 to 27 filed their nomination papers for being elected as member of the standing committees. According to the petitioner, there were some other members of the Panchayat Samiti who were present at that time but they did not file their nomination forms up to 12 noon and that no other person except the petitioner and respondents nos. 4, 15 and 21 to 27 had filed up the nomination papers for the membership of the standing committees The case of the petitioner further is that there was no scrutiny of the nomination papers by respondent no. 2 nor any list of validly nominated candidates was prepared and that in fact no proceedings as required by the Standing Committee Rules took place and nothing was done by respondent no. 2 till 2 p m. and thereupon the petitioner and respondents nos. 4,6, 15 and 21 to 27 approached respondent no. 2 and requested him to hold election but respondent no. 2 told the petitioner and respondents nos. 4,6,15 and 21 to 27 that he had received a wireless message from the Collector, Ganganagar to postpone the meeting to be held for constitution of the standing committees and that the meeting was being postponed. The petitioner has also alleged that the petitioner and respondents nos. 4,6,15, and 21 to 27 there upon requested respondent no. 2 to record the proceedings that the meeting was being adjourned to another date but respondent no. 2 refused to do so and that the petitioner and respondents nos. 4,6,15 and 21 to 27 waited upto 4.30 p.m. and that when the time of the meeting was over, the petitioner and respondents nos. 4,6,15,21 to 27 filed an application before respondent no. 2 stating the fact that no proceedings of the meeting had taken place as the Returning Officer had received a wireless message for postponing the meeting and the said application was handed over by them to respondent no. 2 and the signatures were obtained on the carbon copy of the said application. The petitioner has further alleged that on the next day, i.e., February 11, 1982, a notice was published on the notice board of Panchayat Samiti wherein it was mentioned that various persons named in the said notice had been elected as members of the standing committees and that thereupon respondent no. 26 sent a telegram on 11th February, 1982 to the Collector, Ganganagar informing him as to what had taken place. It is also alleged that the petitioner and respondents nos. 23 to 27 moved an application before the Collector, Ganganagar on 12th February, 1982 informing him as to what had happened and that another application dated 23rd February, 1982 was submitted by the petitioner and respondents nos. 23 to 27 before the Collector, Ganganagar wherein it was requested that action may be taken immediately to quash the proceedings, which had taken place and to stay the functioning of the standing committees. On March 2, 1982 the petitioner filed this writ petition in this Court.

5. In the writ petition, the petitioner has submitted that the constitution of the standing committees as notified by respondent no. 2 in the notice, a copy of which has been annexed as Schedule 'A' is null and void and liable to be quashed for the reason that the meeting dated 10th February, 1982 was convened in breach of the mandatory provisions of rule 5 of the Standing Committee Rules in as much as seven clear days' notice of the meeting of the Panchayat Samiti was not given to the members of the Panchayat Samiti and further that the said notice was not in accordance with Sub-rule (2) of rule 5 of the Standing Committee Rules inasmuch as in the said notice it was not mentioned as to when and at what time the nomination papers could be withdrawn. In the writ petition, the petitioner has also challenged the validity of the notice (Schedule 'A') on the ground that in fact no election for constitution of the standing committees had taken place on 10th February, 1982 and on that date, the meeting was adjourned to another date. The petitioner has, therefore, prayed that an order, direction or writ including a writ of certiorari or quo warranto or mandamus be issued quashing the proceedings constituting the standing committees and restranining respondents nos. 5 to 21, 23 and 27 to 35 from functioning as members of the standing committees.

6. A notice was issued on this writ petition requiring respondents no. 1 and 2 to show cause as to why the writ petition be not admitted. In response to the said notice, reply has been filed on behalf of responednts no. 1 and 2.

7. In the reply that has been filed on behalf of Collector, Ganganagar (respondent no. 1), it has been stated that no wireless message had ever been sent by respondent no. 1 with respect to the election of the standing committees. In the said reply, it has also been stated that though a telegram might have been received in the office of respondent no. 1 but it contained incorrect facts and hence needed no reply. In the said reply, it has been admitted that the application dated 12th February, 1982 had been received and the same has been ordered to be disposed of by the District Development Officer, who has called for a detailed report in this regard from the concerned authorities. With regard to the application dated 23rd February, 1982 submitted by the petitioner and respondents no. 23 to 27, it has been stated in the said reply that since in the said application some allegations were made against respondent no. 1, respondent no. 1 hid ordered that the said application be disposed of by Additional District Magistrate, Sri-ganganagar and that the Additional District Magistrate was examining the said matter. In the said reply, an objection has been raised that the extraordinary jurisdiction of this Court under Article 226 of the Constitution could not be invoked by the petitioner in as much as an alternative remedy of an election petition has been provided by the statute.

8. In the reply that has been filed on behalf of respondent no. 2, certain preliminary objections have been raised with regard to the maintainability of the writ petition. The first objection that has been raised is that in the writ petition, the petitioner has made deliberately, false submissions and that the petitioner is disentitled from seeking relief from this Court under its extra ordinary jurisdiction. Another preliminary objection that has been raised on behalf of respondent no. 2 is that there was waiver and acquiescence on the part of the petitioner as a result of which he is precluded from challenging the validity of the notice (Ex. 1) of the meeting issued by respondent no. 2. In this regard, reliance has been placed on the averments contained in the writ petition and it is stated that not only did the petitioner not take any objection to the holding of the meeting when the meeting was duly commenced but he chose to file his nomination papers and requested respondent no. 2 to hold the election. The third preliminary objection that has been raised by respondent no. 2 is that the case involves disputed questions of fact, which cannot appropriately be decided in this writ petition. As to merits, respondent no. 2, in his reply, has submitted that the duration of the period of the notice is of no consequence as eventually all the members of the Panchayat Samiti were present at the time of the holding of the meeting and the meeting was held without any objection. In the said reply, it has been denied that there was no scrutiny of the nomination papers and that the list of the validly nominated candidates was not prepared. It has also been denied that no proceedings, as required of the Standing Committee Rules, had taken place or that nothing was done upto 2 p.m. by respondent no. 2 On the other hand, it has been asserted that the meeting was duly started and it concluded its deliberations without any objection of any sort from any person. In the said reply, it has been denied that respondent no. 2 had told the petitioner and other respondents that he had received a wireless message from the Collector to postpone the meeting for constitution of the standing committees and it has been asserted that the meeting was never edjourned. Along with the aforesaid reply, respondent no. 2 has filed (as Annexure Rule 2/1), the photostat copy of the minutes of the meeting of the Panchayat Samiti held on 10th February, 1982 wherein it is stated that the nomination papers of the candinates mentioned therein for the various standing committees had been received before 11 a.m. and 12 noon and that the scrutiny of the nomination papers of the aforesaid candidates was conducted at 12.00 o'clock and the sane were found to be valid as the number of validly nominated candidates was more than the number of the members of the standing committees, a copy of the list of validly nominated candidates was placed on the notice board and that the polling was held between 2 p.m. and 4 p.m. and that the counting of votes took place between 4 p.m. and 6 p.m. and thereafter the result was announced. In the said minutes, the votes received by the various candidates are also set out. It is stated that the aforesaid minutes contain the signatures of 24 members of the Panchyat Samiti. In the said reply, it has also been stated that after the result had been declared, the duly elected members of the standing committees were also administered oath and copies of the oath forms of some of those members have been annexed as Annexures Rule 2/2 to Rule 2/4 to the said reply.

9. The petitioner has filed a rejoinder to the aforesaid reply filed on y, behalf of respondent no. 2 wherein he has reiterated the averments containedin the writ petition, namely, that no election of the members of the standing committees of the Panchayat Samiti was held at the meeting of the Panchayat Samiti held on 10th February, 1982 and has asserted that the minutes drawn by respondent no. 2 about the said meeting are false. Respondent no. 2 has filed a reply to the aforesaid rejoinder filed by the petitioner wherein it has been denied that the minutes of the meeting prepared by respondent no. 2 are false. In support of the aforesaid assertion that the said minutes are correct that the election of the members of the standing committees was held on 10th February, 1982, respondent no. 2 has also filed the affidivits of fifteen members of the Panchayat Samiti.

10. I have heard Shri H.M. Parekh, the learned Counsel for the petitioner and the learned Government Advocate for respondent no. 1 and Shri M. Mridul, the learned Counsel for respondent no. 2.

11. The learned Government Advocate as well as Shri Mridul have raised the following preliminary objections with regard to the maintainability of the writ petition:

(1) Since the validity of the election of the members of the standing committee can be challenged in an election petition and the said remedy of election petition is an equally efficacious remedy, the extra ordinary jurisdiction of this Court under Article 226 of the Constitution cannot be invoked to challenge the validity of the said election.

(2) The writ petition raises disputed questions of fact necessitating the production of oral evidence and the said questions of fact cannot be conveniently decided in a writ petition under Article 226 of the Constitution.

12. The law is well settled that the remedy under Article 226 of the Constitution of India is in the nature of a discretionary remedy and the High Court would refuse to exercise its jurisdiction under Article 226 of the Constitution in cases where the statute has provided an alternative remedy and the said remedy is equally efficacious. The existence of an alternative remedy does not operate as a bar to the exercise of the jurisdiction of this Court under Article 226 in cases where the petitioner seeks the enforcement of any of the fundamental rights guaranteed under part III of the Constitution. In the present case, the petitioner is not seeking the enforcement of any fundamental right. He is seeking to challenge the validity of an election. The right to be elected to a particular office is the creature of statute and is governd by the provisions of the statute which creates that right. The question as to what extent the remedy under Article 226 can be invoked to challenge the validity of an election has come up before the Supreme Court in a number of cases and it would be appropriate to take note of the said decisions.

13. The leading case is the decision in N. P. Ponnuswami v. The Returning Officer, Namakkal Costituency : [1952]1SCR218 . That case related to the election to the Legislative Assembly of the State of Madras under the provisions of the Representation of the People Act, 1951. In the case, the appellant before the Supreme Court had filed his nomination paper for election to the Mardras Legislative Assembly from the Namakkal Constituency and the said nomination paper was rejected by the Returning officer and the appellant had there upon moved a petition before the High Court under Article 226 of the Constitution where it was prayed that a writ of certiorari may be issued to quash the order passed by the Returning Officer rejecting the nomination paper of the appellant and a direction be issued to the Returning Officer to include to the name of the appellant in the list of valid nominations to be published. The said writ petition was dismissed by the High Court on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Article 329(b) of the Constitution and the said decision was affirmed by the Supreme Court. In that case, it has been observed as under:

It is now well-recognized 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.

That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.

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.

In that case, the Supreme Court has laid down the following principles:

(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time-schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protacted.

(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the 'election' and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed would have the effect of vitiating the 'election' and enable the person affected to call it in question they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress.

14. In Dr. N. B. Khare v. Election Commission of India : [1957]1SCR1081 petitions had been directly filed in the Supreme Court where in was alleged that the election for the office of the President of India was not being conducted in accordance with the provisions of the Constitution and in view of the provisions contained in Article 71(1) of the Constitution, it was incumbent upon the Supreme Court to enquire and decide into the validity of the proposed election. The Supreme Court rejected the said petitions on the view that the validity of the election could only be challenged through an election petition filed in accordance with the provisions of the Presidential and Vice-Presidential Election Act, 1952 and that all doubts and disputes relating to any stage of the entire election process is be convassed only by election petition presented before the Supreme Court after the election in its wide sense was concluded.

15. In The Chief Commissioner of Ajmer v. Radhey Shyam Dani : [1957]1SCR68 , a writ petition had been filed under Article 226 of Constitution before the Judicial Commissioner, Ajmer by a voter of the Ajmer (Municipality and in the said writ petition, it was submitted that the electoral roll on the basis of which the Ajmer Municipality was being held had not been properly prepared and it was prayed that District Magistrate, Ajmer be restrained from holding the elections and poll to the Ajmer Municipal Committee. The said writ petition was allowed by the Judicial Commissioner on the ground that Rule 7 of the Ajmer State Municipalities lection Rules, 1955, was not in consonance with and it was in contradiction to Section 30 Sub-section (2) of the Ajmer Merwara Municipalities Regulation and was in excass of the rulemaking phwer conferred upon the Chief Commissioner and that the elections proposed were not lawful. The Supreme Court, on appeal affirmed, the said judgment of the Judicial Commissioner and has observed as under:

It is of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications, Opportunity should also be given for the revision of the electhroal roll and for the adjudication of claims to be enrolled there in and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective.

If Rules 7 and 9 above referred to were intended to form a complete code for the finalisation of the electoral roll of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of Section 30, Sub-Section (2) of the Regulation or were defective in so far as they failed to provide the proper procedure for taking of the steps here in above indicated for finalising the electoral roll of the Municipality. If that was the true position the electoral roll of the Municipality which had been authenticated and published by the Chief Comnissioner on August 8, 1953, was certainly not an electoral roll prepared in accordance with law on the basis of which the elections am poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at any time thereafter.

16. In Nanhoo Mal v. Hira Mal : [1976]1SCR809 , the election to the office of the President of the Municipal Board, Soron was sought to be challenged through a writ petition filed under Article 276 of the Constitution The ground of challenge was that rule 6 of the U.P. Municipalities (Conduct of Election of Presidents and Eelction Petitions) Order, 1964, required that the date of making nomination for the office of President of a Board should be fixed ateast four days after the date of notification issued by the District Magistrate in the official Gazette and that in that case the last date of filing the nomination papers was 26th September, 1974 although the Gazette in which the notification dated 21st September, 1974 issued by the District Magistrate was printed had not been published till 25th September, 1974. A full Bench of the Allahabad High court in its judgment reported in Hira Lal v. District Magsitrate, (sic)Elah (5) 1975 Allch L. J. 419., allowed the writ patition on the ground that the provisions of Rule 6 that the date for filing of nomination should be fixed at least four days after the date of notification were mandatory in nature and since the election of the President was held in breach of the said mandatory provisions, the election was liable to be set-aside The High Court rejected the objection with regard to the maintainability of the writ petition under Article 226 of the Constitution on the ground that the remedy of an election petition was available under Section 43(B)(1) of the U.P. Municipalities Act on the view that the petitioner had moved the High Court before the election had been held and that the provisions of Section 43(B) (1) were not applicable. The Supreme Court reversed the aforesaid decision of (he Allahabad High Court and held as under:

We are of the opinion that the whole approach of the learned Judges of the High Court to this problem was mistaken, after the decision of this Court in N.P. Ponnuswami v. Returning Officer, Nanakamal Constituency : [1952]1SCR218 there is hardly any room for Courts to entertain applications under Article 226 of the Constitution in matters relating to elections.

After refering to the provisions contained in Section 43(B) of the Municipalities Act, the Supreme Court has observed as under:

Thus the only way by which the election of a President can be called in question is by means of an election petition presented in accordance with the provisions of this Act. The election itself can be questioned only on one of the three grounds mentioned above. The only ground in the present case on the basis of which the election of the appellant was questioned is that there was a noncompliance with the provisions of Rule 6, already referred to. Under the Act the non-compliance with any rule or order made under the Act or any provision of the Act does not ipso facto result in the election being set aside. That result can be set aside only if the Election Tribunal comes to the conclusion that the result of the election has been materially affected by such non-compliance. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge. In the circumstances there was no room for the High Court exercising its powers under Article 226 in order to set aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge,

In the said case, the Supreme Court has referred the principles above laid down in Ponnuswami's case (1) and has observed that in the absence of any express provisions in the Act to the contrary these principles are applicable equally to cases of elections to local bodies also. The Supreme Court has further observed as under:

It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the ponvisions of the Act and in no other way. The Act provides only for one remedy that remady being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswami's case : [1952]1SCR218 (supra) in its application to the fact of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is parred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution.

In the said case, t be Supreme Court did not think it necessary to consider the question as to whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections.

17. In K K Shrivastava v. B.K. Jain AIR 1977 SC 1973, the election to the Bar Council of Madhya Pradesh had been challenged before the Madhya Pradesh High Court under Article 226 of the Constitution and the High Court had set aside the election of the all the members of the Bar Council even though under Rule 31 of the Election Rules framed by the Bar Council of Madhya Pradesh provision has been made for the constitution of election Tribunals as well as the period of limitation within which the election petition can be filed and other matters. The High Court had entertained the writ petition under Article 226 of the Constitution and had set aside the election on the ground that where the entire election is challenged, an election petition would not be an appropriate remedy and that in any case, it could not be considered as an equally efficacious remedy. The Supreme Court, disagreeing with the aforesaid view of the High Court, reversed the decision of the High Court and has observed as under:

It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition, it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore, a writ petition will lie, is a fallacious argument.

There is no fundation what ever for thinking that where the challenge is to an 'entire election' then the writ jurisdiction springs into action.

18. In Bar Council of Delhi v. Surjeetsingh : [1980]3SCR946 , the Supreme Court was dealing with the validity of the election for the Bar Council of Delhi. The said election had been challenged on the ground that the proviso to rule 3(j) of the Delhi Bar Council Election Rules relating to the preparation of the Electoral Roll was invalid and that the election that was held on the basis of the electoral roll prepared in accordance with the aforesaid proviso was void. The High Court held the proviso to rule 3(j) to be invalid and set aside the entire election. The Supreme Court affirmed the said decision of the High Court. In this case, the Supreme Court, while dealing with the objection that in view of alternative remedy of an election petition as provided in rule 34 of the Delhi Bar Council Election Rules, the petition under Article 226 of the Constitution could not be entertained, has considered its earlier decision in The Chief Commissioner of Ajmer's case (3) and has observed as under:

In the instant case the electoral roll was prepared on the basis of a rule which has been found to be void and ultra vires. That being so, even though the contesting respondents came to challenge the election after it was held, they could do so because of the gravity of the law in the preparation of the electoral roll.

In the said case, the Supreme Court has also noticed the decision in K. K. Shrivastava's case (6) and has observed as under:

We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable inspite of there being an alternative remedy being available, so widely put, may not be quite correct and specially after the recent amendment of Article 226 of the Constitution. If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have poined out above that the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(3) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy it all.

From the aforesaid decisions of the Supreme Court, the following principles can be deduced:

(1) The jurisdiction of the High Court under Article 226 cannot be invoked to challenge the validity of an election in cases where the remedy of an election petition has been provided by the statute and the ground on which the election is sought to be challenged can be raised in the said election petition.

(2) This would be so even in cases where the validity of the entire election is sought to be challenged and it would be nessary to file a number of elections.

(3) The jurisdiction under Article 226 to challenge the validity may, however, be invoked in cases where an illegality has been committed in the preparation of the electoral and the said illegality goes to very root of the matter in the sense that the electoral roll has been prepared on the basis of a provision which is invalid.

19. At this stage reference maybe made to the decisions of this Court on which reliance has been placed by Shri Parekh in support of his contention that the existence of the statutory remedy of an election petition is no bar to the maintainbility of a writ petition challenging the validity of the election.

20. In Kalyan Chandra v. The Chief Panchayat Officer 1956 RLW 414, a Divsion Bench of this Court (Bapna and Bhandari JJ.) in exercise of the jurisdiction under Article 226 of the Constitution, set aside the election of the Tehsil Panchayat, Bariath, on the ground that there was contravention of Rule 23 of the Panchayat Election Rules which required the returning officer to fix a date for filing of the nomination papers on a day not less than a week before the date fixed for election and that the electoral roll was not prepared in accordance with the provisions of Section 5B of the Rajasthan Panchayat Act-According to the learned Judges both these grounds went to the root of the election. In this case, the question as to whether the writ petition was maintainable in view of the statutory remedy of election petition was not considered.

21. In Parbhu Dayal v. Chief Panchayat Officer 1957 RLW 317, decided, by a division bench of this Court (Wanchoo C J. and Bapna J.) it was found that there was non-compliance with the provisions of Rule 4 of the Panchayat Election Rules which required the returning officer to announce by notice at least seven days before the date of election, the number and names of wards, if any, the number of Panchas to be elected for each ward and from the entire Panchayat Circle and the date, time and place of election, and the entire election of the Panchas was set aside. The learned Judges rejected the objection with regard to the maintainability of the writ petition on the view that the remedy of an election petition provided under Rule 19 of the Panchayat Election Rules contemplated election petition against individual Panchas and did not contemplate an election petition asking the Tribunal to declare the entire election invalid on the ground of a fundamentay deficiency in carrying out the mandatory rules relating to the holsding of the election.

22. Similarly in Bishambhar Dayal v. Chief Panchayat Officer 1957 RLW 670, a division benon of this Court (Wanchoo C.J. and Sharma J.) in exercise of its jurisdiction under Article 226 of the Constitution, set aside the election of the Sarpanch and Panchas of Tehsil Panchayat, Behror on the ground that there had been non-compliance which the mandatory provisions of Rule 23 of the Panchayat Election Rules which required that the date specified for filing the nomination papers must not be less than a week before the date fixed for election. The Court was of the view that aforesaid ground related to the whole election and could be agitated in under Article 226 of the Constitution and that other points relating to the individual candidates who had succeeded had to be raised in election petition against the individual Panchas.

23. In Qurabali v. Government of Rajasthan , the election of the members of the Pali Municipality was challenged in a petition filed under Article 226 of the Constitution on the ground that the territorial limits adopted for the purpose of holding the election of the Municipality were not validly fixed and could not be retrospectively applied and that the composition of the Municipal Board had not been carefully determined as required by Section 10 of the Rajasthan Town Municipalities Act, 1951. A division bench of this court (Modi & Bhandari JJ.) held that the alternative remedy of an election petition under Section 10 of the Muaicipalites Act did not bar the remedy under Article 226 of the Constitution. Modi. J. observed that the error was not an error merely in the holding of an election but something which was so fundamental and affected the very constitution of the Municipality in the eye of law. The learned Judge was also of the view that the irregularities which had been committed were outside the real scope of an election petition and could not be made the subject matter of an election petition. Bhandari J, while concurring with the conclusion arrived at by Modi J., has observed that when there is a remedy by way of an election petition a writ of quo warranto is displaced.

24. In Roshanlal v. Gauri Shanker 1961 RLW 511 the election of the member of the Gangapur Municipal Board was challenged on the ground that no notification had been published by the Government or the Collector under Section 10 of the Rajasthan Town Municipalities Act, 1951, fixing the number of members of the Municipal Board and delimiting wards. A division bench of this Court (Sarjoo Prasad C.J. and Rarawat J) rejected the contention that, in view of the remedy of an election petition being available under Section 19 of the Municipalities Act, a writ petition under Article 226 of the Constitution could not be entertained on the ground that a breach of the mandatory provision of Section 10 did not fall within the scope of Section 19(5) of the Municipalities Act.

24. It would thus be seen that in Kalian Chandra's case (8), the question as to whether the statutory remedy of election petition was available to the petitioner in that case and whether the grounds on which the validity of the election was challenged before this Court could be agitated in this election petition, were not considered by this Court and the writ petition under Article 226 of the Constitution was held to be maintainable on the view that there was breach of mandatory provisions which went to the root of the election. In Qurabali's case (11) and Roshanlal case (12), the petition under Article 226 of the Constitution was held maintainable for the reason that the ground on which the validity of election was challenged before this Court could not be agitated in an election petition. In Parbhu Dayal's case (9) and Bishambhar Dayal's case. (10, the petition under Article 226 of the Constitution was held to be maintainable for the reasons that (i) there was breach of a mandatory provision of law relating to the holding of election, and (ii) the said illegality vitiated the entire election. As noticed earlier, both these reasons are not tenable in view of the subsequent decisions of the Supreme Court in Nanoo Mal's case (4), K K. Shrivastava's case (6) Bar Council of Delhi's case (7) and, therefore, it is not possible to accept the contention of Shri Parekh that in cases where there is a breach of a mandatory provision of law relating to the holding of elections the statutory remedy of an election petition would not bar a petition under Article 226 of the Constitution. In order that a petition under Article 226 of the Constitution may be maintainable in such case it would be necessary to establish that the aforesaid breach of law cannot be made a ground of challenge in the election petition and that the illegality is of such a nature which goes to the root of the matter.

26. In so far as the present case is concerned, there is no dispute that under Section 71 A read with Section 13 of the Act, a provision has been made for challenging the election of the members of the standing committees of the Panchayat Samiti through an election petition and the Election Petition Rules have been made by the State Government in that regard. Rule 3 of the Election Petition Rules, which prescribes the grounds on which the election may be called in question, reads as under:

3. Ground on which election may be called in question

The election of a Pradhan, Up-pradhan, Pramukh or Up-pramukh maybe questioned by any member of the Panchayat Samiti or Zila Parishad, as the case may be, by an election petition on one or more of the following grounds, namely

(a) that such person bad committed during or in respect of the election proceedings a corrupt practice as specified in rule 4.

(b) that such person was declared to be elected by reason of the improper rejection or admission of any nomination or for any other reason was not duly elected by a majority of lawful votes; or

(c) that such person was disqualified for election as Pradhan, Up-pradhan, Pramukh or Up-Pramukh, as the case may be, under the provisions of the Act.

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

(i) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(ii) by any non-compliance with the provisions of the Act or any rules made thereunder.

In view of rule 10 of the Election Petition Rules, the said rule also applies to elections to the members of the standing committee of the Panchayat Samiti. The question which requires consideration is as to whether the grounds on which the petitioner is seeking to challenge the election of the members of the standing committee of the Panchayat Samiti in the present writ petition can be agitated in an election petition under Rule 3 of the Election Petition Rules. In this writ petition, the petitioner has challenged the election of the members of the standing committee of the Panchayat Samitis on the following grounds:

(1) There has been non-compliance with the mandatory provisions of Sub-rules (1) and (2) of the rule 5 of the Standing Committee Rules in as much as the notice that was issued for convening the meeting of the Panchayat Samiti on 10th February, 1982 did not give seven clear days' notice to the members of the Panchayal Samiti and the said notice did not specify the date and time for withdrawal of the nomination; and

(2) In fact, no election was held on 10th February, 1982 and respondent no. 2 issued a notification declaring certain persons as members of the standing committees without following the procedure laid down in the Standing Committee Rules.

27. In so far as the first ground of challenge is concerned, it is not disputed that it would be covered by Sub-clause (ii) of clauses (d) of rule 3 of the Election Petition Rules, namely, non-compliance with the provisions of the Act or any Rules made thereunder. Shri Parekh has, however, submitted that even though it may be open to the petitioner to raise the aforesaid ground in an election petition, the petitioner is entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution in as much as the provisions of rule 5(1) of the Rules are mandatory in nature and the non-compliance with the said provisions renders the entire election void, and bar of an alternative remedy of an election petition would be inapplicable. I am unable to accept the aforesaid contention of Shri Parekh. In view of rule 3 of the Election Petition Rules, the non-compliance of the provisions of the Act or the Rules made thereunder can afford a ground for setting aside the election only if the result of the election in so far as it concerns the returned candidate can be said to have been materially affected by the aforesaid non-compliance. This would mean that the question as to whether the provisions of a particular rule are mandatory or directory in nature is not of much significance and even if a particular provision is held to be mandatory, the non-compliance of the provisions would not, ipso facto, result in invalidation of the election and it will further have to be established that such noncompliance has materially affected the result of the election in so far as it concerns the returned candidate The present case is in no way different from Nanhoo Mal's case (4) because in that case also it was (sic)alleted that there was non-compliance with the mandatory provisions of rule 6 of the U. P Municipalities (Conduct of Election of Presidents and Election Petitions) Order, 1954, which prescribed that the date for making nominations shall be a date atleast four days after a date of notification. The Supreme Court, however, held the aforesaid ground with regard to the non-compliance of the provisions of rule 6 did not ipso facto result in the election being set aside and that the result of the election could be set aside only if the Election Tribunal came to the conclusion that the said result had had been materially affected by such non-compliance and the jurisdiction to decide the said question was an exclusive one confered on the District Judge and that the High Court could not assume the said jurisdiction in exercise of its powers under Article 226 of the Constitution. Similarly in the present case, under the Election Petition Rules, the jurisdiction to decide the validity of the election of the members of the Panchayat Sjmiti has been exclusively conferred on the District Judge sitting at the place where the principal office of the Panchayt Smiti is situated and where there is no such District Judge the Civil Judge so sitting and where there is no such Civil Judge also any other Judge of Civil Court specially empowered in that behalf by the District Judge having jurisdiction. I or the reasons given by the Supreme Court in Nanhoo Mul's case (4), the aforesaid election tribual alone has the jurisdiction to consider the question as to whether the election of the member of the standing committee of the Panchayat smiti is liable to be set aside on account of non-compliance with the provisions of Rule 5 of the Standing Committee Rules. This Court, cannot exercise its jurisdiction under Article 226 to set aside the election on the ground of non compliance of rule 5 of the Standing Committee Rules-In my view, therefore, it is not open to the petitioner to challenge the election of the members of the standing committee of the Panchayat Samiti on the ground of non-compliance with the provisions of rule 5 (1) of the Standing Commitee Rules in this petition under Article 226 of the Constitution and the only remedy that could be invoked by the petitioner for challenging the election of the members of the standing committees on the said ground was an election petition filed in accordance with the provisions of the Election Petition Rules.

28. As regards the second ground of challenge, namely, that no election was actually held on 10th February, 1982 and that the notification was issued by respondent no. 2 without following the procedure laid down in the Standing Committee Rules, the sumbission of Shri Parekh was that the said ground cannot be agitated by the petitioner in an election petition in as much as all the grounds set out in rule 3 of the Election Petition Rules postulate the holding of an election and do not cover a case like the present one where no election was held. The learned Government Advocate and Shri Mridul, on the other hand, have placed reliance on clause (b) and subclause (ii) of rule 3 of the Election Petition Rules and have submitted that the aforesaid ground of challenge can be agitated in an election petition. Under clause (b) the election may be questioned on the ground that the person whose election was questioned was declared to be elected by reason of the improper rejection or admission of any nomination or for any other reason was not duly elected by a majority of lawful votes. The words 'for any other reason was not duly elected by a majority of lawful votes' are words of very wide amplitude and would cover a case where a person has been declared elected even without holding an election because in that case also, it can be said that he was not duly elected by a majority of lawful votes. Moreover, the notification (Schedule 'A') which was issued under the signatures of respondent no. 2 where by the names of the elected members of the standing committee of the Panchayat Samitis were notified was issued in the purported exercise of the power conferred by rule 14 of the Standing Committee Rules. The complaint of the petitioner that in fact no election whatsover had taken place, in substance, means that rules 6 to 11 of the Standing Committee Rules which prescribe the procedure for holding the election were not complied with by the Presiding Officer of the meeting. Under Sub-clause (ii) of clause (d) of rule 3 of the Election Petition Rules, non-compliance with the provisions of the Sanding Committee Rules is a ground for questioning the election if the result of the election in so far as it concerned the returned candidate has been materially affected by such non-compliance. Since the case of the petitioner is that there was complete non-compliance with rules 6 to 11 of the Standing Committee, the petitioner could question the election of the members of the standing committee of the Panchayat Samiti under Sub-clause (ii) of clause (d) on the ground that the result of the said election in so far as it concerned the returned candidate had been materially affected by the non-compliance to the provisions of rules 6 to 11 of the Standing Committee Rules. I am, therefore, unable to accept the submission of Shri Parekh that no election whatsoever was held on 10th February, 1982 and that the notification (Schedule A) notifying the name of the elected members of the standing committee of the Panchayat Samiti was issued without holding any such election could not be raised by the petitioner in an election petition under rule 3 of the Election Petition Rules Once it is held that the aforesaid ground could be raised in an election, petition the petitioner cannot be permitted to invoke the jurisdiction of this Court under Article 220 of the Constitution.

29. Even if it be assumed that it is not open to the petitioner to agitate the aforesaid ground, namely, that no election whatsoever was held on 10th February, 1982 in an election petition under rule 3 of the Election Petition Rules, there is no dispute that it would be open to the petitioner to to challenge the validity of the election on that ground in a civil suit. In the present case, there is a serious controversy between the parties on the question as to whether the election was actually held on 10th February, 1912 or not The petitioner, in support of his case that the election was not held on 10th February, 1982, has submitted certain affidavits (Ex. 8 to Ex. 17). Respondent no. 2, in support of his case that the election was actually held on 10th February, 1982, has also filed certain affidavits (Annexure Rule 2/5 to Rule 2/18). For the purpose of deciding the aforesaid question, it would be necessary to record oral evidence, which ran more conveniently be done either in an election petition or In a civil suit. It is true that this Court should not refuse to entertain a petition under Article 226 of the Constitution merely because in considering the petitioner's right to relief questions of fact may fall to be determined. But, as observed by the Supreme Court in Gunwant Kaur v. Bhatinda Municipality (13), when the petitioner raises question of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the veiw that the dispute may not appropriatly be tried in a writ petition, the High Court may decline to try a petition. This is a case in which question of fact of complex nature have been raised and for the determination of the said questions, it would be necessary to record oral evidence. The said disputes cannot appropriately be tried in a writ petition and can more appropriatly be determined in an election petition or a suit. In my opinion, therefore, this is a fit case in which the jurisdiction of this Court under Article 226 of the Constitution may be invoked. I would, there fore, up-hold the preliminary obections, that have been raised by the learned Government Advocate and Shri Mirdul, the learned Counsel for respondent No. 2.

30. The writ petition is, therefore, dismissed summarily. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //