Page No.# 1/5 vs The Assam State Election Commission And ...
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Gauhati High Court

Page No.# 1/5 vs The Assam State Election Commission And ... on 5 May, 2025

Author: Manish Choudhury

Bench: Manish Choudhury

                                                                      Page No.# 1/5

GAHC010093942025




                                                                2025:GAU-AS:5553

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/2407/2025

            HALIMA BEGUM
            D/O ABDUL BAREK R/O VILL NO 1 KHRING KHRING PP NAKHTI BZAR PS
            LUMDING DIST HOJAI ASSAM 782446HOJAI, ASSAM



            VERSUS

            THE ASSAM STATE ELECTION COMMISSION AND 4 OTHERS
            REP BY THE STATE ELECTION COMMISSIONER PANJABARI, GUWAHATI,
            ASSAM 37

            2:THE STATE ELECTION COMMISSIONER
             PANJABARI ROAD PANJABARI GUWAHATI ASSAM 37

            3:THE DISTRICT ELECTION COMMISSIONER HOJAI CUM DISTRICT
            COMMISSIONER
             SANKARDEV NAGAR DIST HOJAI PIN 782442 ASSAM

            4:AUTHORIZED OFFICER
             PANCHAYAT ELECTION 2025 LUMDING SUB DIVISION O/OI THE
            ELECTION COMMISSIONER SANKARDEV NAGAR DIST HOJAI PIN 782442
            ASSAM

            5:MUSLIMA BEGUM
             R/O VILL NO 1 KHRING KHRING PP NAKTI BAZAR PS LUMDING DIST
            HOJAI ASSAM 78244

Advocate for the Petitioner   : MR M J QUADIR, MR. A K HANNAN

Advocate for the Respondent : GA, ASSAM, SC, ASEC
                                                                                    Page No.# 2/5

                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                            ORDER

Date : 05.05.2025

Heard Mr. M.J. Quadir, learned counsel for the petitioner and Mr. R. Dubey, learned Standing Counsel, Assam State Election Commission for the respondent nos. 1-4.

2. In this writ petition instituted under Article 226 of the Constitution, the petitioner has averred that she desired to contest the election for the post of Member to Sarkey Basti Gaon Panchayat, District - Hojai from Ward no. 1 of the said Gaon Panchayat. To that effect, the petitioner submitted her nomination paper before the Authorized Officer, appointed under Rule 16 and 22 of the Assam Panchayat [Constitution] Rules, 1995 to accept the nomination papers and scrutinize them and thereafter, either to accept or reject the nomination paper. As per the notification published by the Assam State Election Commission on 02.04.2025, the date of scrutiny of the nomination papers was fixed on 12.04.2025. As the respondent no. 5 had also submitted her nomination paper to contest for the post of Member of Sarkey Basti Gaon Panchayat, District - Hojai from Ward no. 1, as like the petitioner, the petitioner objected against acceptance of the nomination paper of the respondent no. 5. Yet, the Authorized Officer had accepted the nomination paper of the respondent no. 5. Aggrieved thereby, the petitioner stated to have submitted a complaint before the Election Observer on 24.04.2025. As no action has been taken on the said complaint and seeking setting aside of the nomination paper of the respondent no. 5, the petitioner has instituted the present writ petition.

4. Mr. Dubey, learned Standing Counsel, Assam State Election Commission has submitted that a writ petition under Article 226 of the Constitution, at this stage, challenging acceptance or rejection of a nomination paper of a contesting candidate is not to be entertained as the petitioner has the option of presenting an election petition before the jurisdictional Panchayat Election Tribunal, constituted under Section 127 of the Assam Panchayat Act and a writ petition is clearly barred under Article 243O [b] of the Constitution read with Section 129 [b] of the Assam Panchayat Act. They have conjointly submitted that the issue has already been decided in an common Judgment & Order dated 29.04.2025 passed in writ petition, W.P.[C.] Page No.# 3/5

no. 2178/2025 [Sri Ranjan Gogoi and another vs. State of Assam and others] and two other writ petitions.

5. In Ranjan Gogoi [supra], this Court has inter-alia observed as under :-

44. Thus, the consistent principle which has emerged is that the term, 'election' is interpreted broadly to include all steps and proceedings commencing from the date of notification of election till the date of declaration of results. The submission of nomination papers, scrutiny of nomination papers, acceptance of nomination papers and rejection of nomination papers are all intermediate stages in an election process.

Improper acceptance of nomination paper of a candidate, who has ultimately been elected, would allow a rival contesting candidate to present an election petition before the jurisdictional Election Tribunal and the same may lead to setting aside of the result of the elected candidate. Similarly, improper rejection of nomination paper of a candidate is a ground to present an election petition for a contesting candidate. Once the process of election starts in the wider sense, then it is of utmost priority that the process of election is concluded according to the time-schedule. Any controversy or dispute arising at the intermediate stages can be postponed for decision till after the election process is over so as to ensure an uninterrupted election adhering to the time-schedule and so that the process of election is not protracted. Conduct of election to the Panchayats is of paramount importance in a democracy and the process is arduous and time-taking. There is involvement of huge manpower and resources. Interference in the intermediate stages of the election process is not ordinarily called for unless an exceptional case is made out, that too, when such interference is called for to promote the election process. It is only in a case where the wrong done during the intermediate stage cannot be undone after the end of the election process, the court can examine the question taking primarily into Page No.# 4/5

consideration the factors like the facts and circumstances of the case, whether such interference would interrupt or postpone the ongoing process of election or would facilitate a better process of election.

45. The above view is guided by the analysis done by the Hon'ble Supreme Court in Election Commission of India vs. Ashok Kumar and others, reported in [2000] 8 SCC 216, where the Hon'ble Court after analyzing the two Constitution Bench decisions in Ponnuswami [supra] and Mohinder Singh Gill [supra], has summed up to the effect that if an election [the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result] is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

6. Mr. Quadir, learned counsel for the petitioner has referred to a decision of the Hon'ble Supreme Court in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, [2014] 1 SCC 603, to submit that in an appropriate case, the High Court is not debarred from entertaining a writ petition under Article 226 of the Constitution even if there is an effective alternative remedy available to an aggrieved person. The decision in Chhabil Dass Agarwal [supra] is rendered in a matter arising out of the Income Tax Act, 1961. The law regarding election is different from matters arising out of the Income Tax Act, 1961. The law in respect of election matters is settled by a long line of decisions by following the principle 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.

7. In such view of the matter, the decision in Chhabil Dass Agarwal [supra] is found to be of no assistance to the case of the petitioner.

8. As the issue raised in this writ petition is fully covered by the common Judgment & Page No.# 5/5

Order dated 29.04.2025, rendered in W.P.[C.] no. 2178/2025 [supra] and the petitioner has the option of presenting a election petition before the jurisdictional Panchayat Election Tribunal after declaration of the results as a contesting candidate, the writ petition is not entertained.

9. It is clarified that non-entertainment of the writ petition on the aforesaid ground, shall not preclude the petitioner as a contesting candidate to present an election petition before the jurisdictional Panchayat Election Tribunal within the stipulated period of limitation.

JUDGE

Comparing Assistant