Himachal Pradesh High Court

Kauser vs State Election Commission & Ors on 8 February, 2021

Bench: Jyotsna Rewal Dua

        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.




                                                                   .
                                    CWP No. 691 of 2021





                               Date of decision: February 08, 2021.





    Kauser                                       ......Petitioner.
                               Versus
    State Election Commission & ors.             .....Respondents.



    Coram

    Ms. Justice Jyotsna Rewal Dua, Judge.

    Whether approved for reporting? 1

    For the petitioner         :    Mr. Varun Chandel, Advocate.

    For the respondents        :    Mr. Ajeet Saklani, Advocate, for
                                    respondent No. 1.



                                    Mr. Ashok Sharma, AG with Mr. Hemant
                                    Vaid, Mr. Arvind Sharma, Addl. AGs and
                                    Mr. R.R. Rahi, Dy. AG, for respondents




                                    No. 2 to 4.

                                    Nemo for respondent No. 5.





                          (Through Video Conferencing)





    Jyotsna Rewal Dua, Judge (Oral)

Notice. Mr. Ajeet Saklani, Advocate and Mr. R.R. Rahi,

learned Advocate General appear and accept service of notice on

behalf of respondent No. 1 and respondents No. 2 to 4,

respectively.

Whether the reporters of the local papers may be allowed to see the Judgment? yes.

2. Petitioner has in essence challenged the election of

respondent No. 5 as Member, Block Development Committee,

Misserwala, District Sirmour in the elections to Panchayati Raj

Institutions of the State concluded in January 2021. The writ

petition has been filed for the following relief:

"(I) That the respondent election commission may be directed to start the fresh election process after declaration of the

election process held in pursuant to notification dated 21.1.2.2020 for the post of member of Block Development Committee (BDC) Misserwala ward no. 37 Distt. Sirmour null and void or the HP State Election Commission may be

directed to recount and inspect each and every vote in the

presence of petitioner alternatively the respondent election commission may be directed to settle/decide the grievances of the petitioner within two months and till the decision, the record of the said election process my be ordered to kept

away from the reach of the staff or the officers deputed/concerned in the counting of votes of election qua the member of Block Development Committee ward no. 37

(Misserwala) district Sirmour, H.P."

3. The writ petition filed by the petitioner is not

maintainable at all as an efficacious and alternate remedy is

available to the petitioner for redressal of her grievance under

the provisions of H.P. Panchayati Raj Act, 1994. Section 162 of

the H.P. Panchayati Raj Act provides that no election under the

Act shall be called in question except by an election petition

presented in accordance with the provisions of the chapter and

Section 175 of the Act enumerates the grounds for declaring

election to be void. The above sections run as under:

"162. Election petition:- No election under this Act shall be called in question except by an election petition

.

presented in accordance with the provisions of this

Chapter."

"175. Grounds for declaring election to be void.- (1) If the authorized officer is of the opinion-

(a) that on the date of his election the elected person was not qualified, or was disqualified to be elected under this Act; or

(b) that any corrupt practice has been committed by the

elected person or his agent or by any other person with the consent of the elected person or his agent; or

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

(d) that the result of the election, in so far as it concerns

the elected person, has been materially affected-

(i) by the improper acceptance of any nomination, or

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

(iii) by any non-compliance with the provisions of this Act or of any rule made under this Act, the authorized officer shall declare the election of the

elected persons to be void."

4. In this regard it will be appropriate to refer to a

decision rendered by a division Bench of this Court on 6.1.2021

in CWP No. 5987 of 2020 alongwith other connected matters,

titled Manish Dharmaik vs. State of Himachal Pradesh and others,

wherein after considering the limitation in exercise of judicial

review in electoral matters imposed under Article 243-O of the

Constitution of India, it was observed as under:

"We are also conscious of the limitations set forth on such exercise of judicial review in view of bar of jurisdiction

imposed by Article 243-O of the Constitution of India, which is quoted hereinbelow :-

.

"243-O. Bar to interference by Courts in electoral

matters- Notwithstanding anything in this Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such

constituencies made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such

authority and in such manner as is provided for by or under any Law made by the Legislature of a State."

In Bal Krishan and others Vs. State of H.P. and others

2015 (6) ILR (HP) 914, this Court considered the

preliminary objections relating to maintainability of the writ petitions questioning the constitution, re-constitution, delimitation, reservation of the Panchayat areas, merger of Panchayats with Municipal areas and vice-versa, change of

headquarters of Gram Panchayats, amalgamation and alteration of respective Panchayat areas on ground that such actions of respondents were in violation of H.P.

Panchayati Raj Act, 1994, Himachal Pradesh Panchayati Raj (Election) Rules 1994 etc. After considering entire legal

gamut, the position was summed up in following operative para 33:-

"33. The proposition which can now be culled out from the above noted judgments of the Hon'ble Supreme Court and other High Courts including this Court is that:-

(1) The word "election" appearing in Article 243-O and the provisions contained in the 1994 Act and the rules framed thereunder bears larger connotation. It embraces and includes all steps commencing from the date of notification by the Competent Authority, whereby the electorates are called upon to elect Pradhans and Up-Pradhans and ending with declaration of result. Reservation of offices of Pradhan and Wards in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and Women, preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny of nomination papers and withdrawal thereof, publication of the list

of eligible candidates, allotment of symbols, appointment of election agents, the conduct of poll, counting of votes, declaration of results and all other ancillary steps taken for the

.

purpose of holding elections fall within the ambit of the term

"election". {N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Mohinder Singh Gill v. Chief Election Commissioner, Election Commission of India v. Shivaji and Election Commission

of India vs. Ashok Kumar (supra).

(2) (i) The bar contained in Article 243-O, which begins with non- obstante clause, debars all Courts from entertaining any challenge to law relating to delimitation of constituencies or

allotment of seat made or purporting to be made under Article 243-K or election to the Panchayats. This bar also operates against the High Court's power of judicial review under Article

226. (N.P. Ponnuswami v. Returning Officer, Namakkal

Constituency, Durga Shankar Mehta v. Raghuraj Singh, Election Commission of India v. Shivaji and Election Commission of India v.

Ashok Kumar (supra)}

(ii) The proposition contained in Clause (i) above is subject to the condition that challenge to the delimitation may be entertained in exceptional cases where no objections were invited and no

hearing was given provided that such challenge is made before issue of notification for holding election. {State of U.P. v. Pradhan Sangh Kshetra Samiti (supra)}.

(iii) The bar contained in Article 243-O (a) would operate immediately after publication of notification of delimitation of

Panchayat areas even in cases where the same is challenged prior to issuance of notification of election.

(iv) The bar contained in Article 243-O(b) operates only till the

adjudication of election dispute by an adjudicatory forum created by or under any law made by the Legislature of the State. An order made by an adjudicatory forum constituted under the law made by the State Legislature can be called in question by filing a petition under Article 226 of the Constitution.

(3) The bar contained in Article 243-O operates at all stages of the election i.e. notification issued by the State Election Commission calling upon the electorate to elect Pradhans and Up-Pradhans; reservation of offices of Pradhans in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and Women; preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny and

withdrawal thereof; allotment of symbols; appointment of election agents; counting of votes and declaration of result.

.

(4) The bar contained in Article 243-O(b) does not operate qua

challenge to the constitutionality of a statutory provision relating to elections, though, even in such a case, the High Court will be extremely loath to pass an interlocutory order which has the

effect of stalling or jeopardizing the process of election or which may result in the constitutional hiatus on account of indirect violation of Article 243-K(3) read with Article 243-K(1).

5. Where the petitioner raises grounds which is not barred under the aforesaid provisions of the Constitution and is not covered in any one of the grounds as prescribed under Section 175(1) of the Himachal Pradesh Panchayati Raj Act, then the bar of alternate

remedy by way of election petition under Section 162 of the Act and further bar under Article 243-O of the Constitution would not

be attracted. Even in such cases, the Court will not normally pass interlocutory orders, which has effect of interrupting, obstructing or protracting the election."

(emphasis supplied)

Before High Court of Karnataka, in Smt. Latha Vs. State of Karnataka CWP Nos. 22740-762/2016, rendered on judgment rendered on 06.01.2016, allocation of category-

wise reservation to Zila Panchayats for the posts of Pradhans/Up-Pradhans was contended to be in breach of

relevant Statute and the Rules providing such reservation. State took up preliminary objection regarding

maintainability of the petitions in view of Article 243-O of the Constitution of India. The Court held that allotment of seats for the post of Pradhans in Zila Panchayat would fall within the ambit and scope of Cluse (a) of Article 243 of Constitution of India, therefore, writ jurisdiction of High Court cannot be invoked. The only remedy provided and allowed by the Constitution was of an Election Petition before the Competent Authority."

5. It will also be appropriate to take note of a judgment

rendered by Hon'ble Apex Court in AIR 2020 Supreme Court

3393 , titled Laxmibai v. Collector, Nanded , wherein, after

tracing the legal terrain, on the maintainability of writ petitions

under Article 226 of the Constitution of India vis-a-vis Article

243-O of the Constitution of India in respect of limitation in

exercise of judicial review by the Court in election matters, it was

held that all election disputes must be determined only by way of

an election petition. This by itself may not per-se bar judicial

r to review, which is the basic structure of the Constitution but

ordinarily such jurisdiction would not be exercised.

paragraphs of the judgment are extracted hereinafter:

The relevant

"42. This Court again examined the question in respect of raising a dispute relating to an election of a local body before the High Court by way of a writ petition under Article

226 of the Constitution of India in a judgment reported as Harnek Singh v. Charanjit Singh & Ors. It was held as under:

"15. Prayers (b) and (c) aforementioned, evidently, could not have been granted in favour of the petitioner by the High

Court in exercise of its jurisdiction under Article 226 of the Constitution of India. It is true that the High Court exercises a

plenary jurisdiction under Article 226 of the Constitution of India. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious alternative remedy is available therefor. (See Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd., 2 (2005) 8 SCC 242: 2005 (7) SCALE 290.)

16. Article 243-O of the Constitution of India mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may

be some cases where a writ petition would be entertained but in this case we are not concerned with the said question.

.

17. In C. Subrahmanyam Vs. K. Ramanjaneyullu and Others : (1998) 8 SCC 703, a three-Judge Bench of this Court observed that a writ petition should not be entertained when the main

question which fell for decision before the High Court was non-compliance of the provisions of the Act which was one of the grounds for an election petition in terms Rule 12 framed under the Act."

43. Section 10A of the 1959 Act and Section 9A of the 1961 Act read with Articles 243-K and 243-O, are pari materia with Article 324 of the Constitution of India. In view of the

judgments referred, we find that the remedy of an aggrieved

person accepting or rejecting nomination of a candidate is by way of an election petition in view of the bar created under Section 15A of the 1959 Act. The said Act is a complete code providing machinery for redressal to the grievances

pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises extraordinary jurisdiction under Article 226 of the Constitution of India but

such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative

remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India. Once alternate machinery is provided by the statute, the recourse to writ

jurisdiction is not an appropriate remedy. It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Cour t. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference."