Ramesh Dutt vs State Of H.P. And Others
2021 Latest Caselaw 1067 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 739 of 2021 Decided on: 12.02.2021

.

    Ramesh Dutt                        ......petitioner

                                           Versus





    State of H.P. and others            ...... respondents

........................................................................................... Coram

Ms. Jyotsna Rewal Dua, Vacation Judge.

Whether approved for reporting?1 For the petitioner : Mr. Ashwani Kaundal, Advocate.

For the respondents : Mr. Hemant Vaid, Mr. Arvind Sharma, Mr.

Himanshu Mishra, Additional Advocates General, Mr.Raju Ram Rahi & Mr. Amit Dhumal, Deputy Advocates General, for respondents No.1, 3, 4 & 5.

Mr. Ajit Saklani, Advocate, for respondent No.2.

(through video conferencing)

Jyotsna Rewal Dua, Vacation Judge (Oral)

Notice. Mr. Hemant Vaid, learned Additional Advocate

General and Mr. Ajit Saklani, learned Standing counsel, appear and

waive service of notice on behalf of respondents No.1, 3 to 5 & 2

respectively.

Whether reporters of the local papers may be allowed to see the judgment?

2. No notice is required to be issued to respondent No.6 in

view of the order being passed hereinafter.

.

3. The petitioner was a candidate in Zila Parishad

Election held on 17th, 19th & 21st January 2021 for ward No.47­

Sathana Tehsil and Block Development Office Fetehpur, District

Kangra, H.P. The counting of votes for the aforesaid election was

held on 22.01.2021 and result was declared on 23.01.2021. The

petitioner remained unsuccessful.

r He was not satisfied with the

counting of votes and prayed for re­counting the same. Alleging that

recounting of the votes was not carried out in accordance with the

provisions of Himachal Pradesh Panchayati Raj Act, 1994, the

instant writ petition has been preferred with the following prayer:­

"i) Issue a writ of mandamus directing the respondents or any other independent authority to initiate independent inquiry into

the counting of votes carried out on 22.01.2021 for Election to the Zila Parishad Ward No.47­Sathana.

ii) Issue a writ of mandamus directing the respondents to

submit a status report regarding the fact of the illegal way in which counting of votes was carried out by employees who were under in intoxication on 22.01.2021 for Election to the Zila Parishad Ward No.47­Sathana.

iii) Direct the Deputy Commissioner Kangra to Seal the entire records of the counting of votes casted, rejected, NOTA votes on 23.01.2021 for Election to the Zila Parishad Ward No.47­Sathana, including the videography recorded by the camera of the counting room."

4. 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 his 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 anyvote or the reception of any vote which is void, or

(iii) by any non­compliance 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."

5. 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 243­O 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

243­O of the Constitution of India, which is quoted hereinbelow:­ "243­O. 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, re­constitution, delimitation, reservation of the

Panchayat areas, merger of Panchayats with Municipal areas and vice­versa, 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 243­O 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 Up­Pradhans 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 243­O, which begins with non­obstante 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

243­K 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 243­O (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 243­O(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 243­O operates at all stages of the election i.e. notification issued by the State Election

Commission calling upon the electorate to elect Pradhans and Up­Pradhans; 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 243­O(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 243­K(3) read with Article 243­K(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 243­O 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. 22740­762/2016, rendered on judgment rendered on 06.01.2016, allocation of category­ wise reservation to Zila Panchayats for the posts of

Pradhans/Up­Pradhans 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 243­O 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."

6. 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 vis­a­vis Article

243­O 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 per­se bar judicial

review, which is the basic structure of the Constitution but

ordinarily such jurisdiction would not be exercised. The relevant

paragraphs of the judgment are extracted hereinafter:­

"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 243­O 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 three­Judge 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 243­K and 243­O, 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 243­O 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 Court. 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."

In the backdrop of above legal position, the instant

writ petition is not maintainable at all and the same is

accordingly dismissed with liberty reserved to the petitioner to

avail appropriate alternate remedy in accordance with law.

Pending application(s), if any, shall also stand disposed of.

.

                                          Jyotsna Rewal Dua
                                           Vacation Judge





     February 12, 2021 (rohit)




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