Jimedar Singh vs The State Of Jharkhand
2022 Latest Caselaw 4241 Jhar

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                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                   W.P.(C) No. 2455 of 2022
            Jimedar Singh                                               ..... Petitioner
                                              Versus
            1. The State of Jharkhand, through the Chief Secretary, Ranchi
            2. The Deputy Commissioner, Garhwa
            3. The District Panchayat Raj Officer, Garhwa
            4. The Sub-Divisional Officer, Garhwa
            5. The Block Development Officer-cum-Returning Officer, Garhwa
            6. The State Election Commission, through its Secretary, Ranchi
            7. Kamesh Korba                                             ..... Respondents
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner: Mr. Navin Kumar For Respondent Nos.1-5: Ms. Surabhi, A.C to A.A.G-II For Respondent No.6: Mr. Sumeet Gadodia

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05/18.10.2022 The present writ petition has been filed for issuance of direction upon the

respondents, particularly, the respondent No.2 and the respondent No.5 to

reject the election form/candidature of the respondent No.7 for the post of

Mukhiya of Panchayat-Chete, Block-Ramkanda, District-Garhwa in the 3-Tier

General Panchayat Election, 2022 as well as to cancel his election on the said

post on the ground that his proposer, namely, Kamlesh Kumar Yadav was

working as an Assistant Teacher in upgraded Middle School, Chete despite being

a government servant and had also campaigned openly in favour of the

respondent No.7 for which an FIR was also lodged against him by the

respondent No.5. Further prayer has been made for issuance of direction upon

the respondent Nos. 3 & 5 to declare the petitioner as the Mukhiya of the said

Panchayat in place of the respondent No.7 as the petitioner had got second

highest votes being a contesting candidate of Mukhiya in the said election.

2. Learned counsel for the petitioner submits that the State Election

Commission, Jharkhand vide its Notification No. 154/2022, Ranchi dated

09.04.2022, notified the 3-Tier General Panchayat Election, 2022 for different

posts in four stages between 14.05.2022 and 27.05.2022. Pursuant to the said

notification, the petitioner along with two others including the respondent No.7

filled the nomination forms for the post of Mukhiya of Panchayat-Chete under

Block-Ramkanda, District-Garhwa. The petitioner came to know that the

proposer of the respondent No.7 was one Kamlesh Kumar Yadav, who was a

government servant working as an Assistant Teacher in upgraded Middle School,

Chete and hence the petitioner filed a complaint before the respondent No.5 for

cancellation of the nomination form of the respondent No.7 as the law does not

permit that any government official can be a proposer of any candidate

contesting the election for the post of Mukhiya. On 26.04.2022, the petitioner

orally inquired from the respondent No.5 about the status of his complaint

whereupon he was informed that the same was forwarded to the respondent

No.2 seeking guidelines in the said matter and any action would be taken

against the respondent No.7 only after receiving the guidelines/directions of the

said respondent. On the one hand, no action was taken on the complaint of the

petitioner and on the other hand, an FIR was lodged against said Kamlesh

Kumar Yadav by the respondent No.5 on 05.05.2022 making almost the same

allegations as levelled by the petitioner against the respondent No.7. Despite

lodging of the said FIR, the respondent Nos. 3 & 5 continued with the election

process and after voting, the respondent No.7 was declared successful by the

State Election Commission at Ranchi on 17.05.2022. Thereafter, the petitioner

submitted a detailed representation in the office of the State Election

Commission, Ranchi on 19.05.2022, however, till date the authorities of the

State Election Commission have been sitting tight over the matter.

3. Learned counsel for the respondent Nos. 1 to 5 as well as the respondent

No.6 raise preliminary objection with regard to maintainability of the present

writ petition in view of availability of alternative/statutory/efficacious remedy of

preferring an election petition under the Jharkhand Panchayat Raj Act, 2001

[hereinafter referred to as 'the Act, 2001'] for redressal of the petitioner's

grievance. It is further submitted that the petitioner has raised factual dispute

before this Court which cannot be adjudicated in the writ jurisdiction.

4. Heard learned counsel for the parties and perused the relevant materials

available on record. The claim of the petitioner is that the election of the

respondent No.7 as Mukhiya of Panchayat-Chete under Block-Ramkanda,

District-Garhwa is void as his proposer in the nomination form was a

government servant which is not permissible in law. It is further claimed that the

said government servant had also made campaign in favour of the respondent

No.7 and had influenced the voters due to his post.

5. Section 151 of the Act, 2001 provides for filing of election petition in the

prescribed manner before the Sub-Divisional Officer to challenge election of any

Gram Panchayat, before the Deputy Commissioner/District Magistrate in case of

challenging election of Panchayat Samittee and before the Divisional

Commissioner in case of challenging election of Zila Parishad within thirty days

from the date of notification of the election in question, which is to be examined

and disposed of in the manner as may be prescribed. The basis for declaring the

election as void has been provided under Section 152 of the Act, 2001 which

includes the ground of corrupt practice committed by the returned candidate as

well as the ground of improper acceptance of the nomination paper of the

returned candidate. Further, Section 153 empowers the prescribed authority

hearing the election petition to declare a candidate as elected other than the

returned candidate which is also one of the prayers of the petitioner in the

present writ petition. Thus, the petitioner has got alternative/

statutory/efficacious remedy of preferring an election petition before the

prescribed authority i.e. the Sub-Divisional Officer for redressal of his grievance.

However, without availing the same, he has directly invoked the writ jurisdiction

of this Court under Article 226 of the Constitution of India.

6. The moot question for consideration before this Court is as to whether

the present writ petition is maintainable even when there is alternative/

statutory/efficacious remedy of preferring an election petition under Section 151

of the Act, 2001.

7. In the case of Avtar Singh Hit Vs. Delhi Sikh Gurdwara

Management Committee & Ors. reported in (2006) 8 SCC 487, the

Hon'ble Supreme Court has held as under:-

"19. It is well-settled principle that where

elections are conducted in accordance with the provisions of a statute and the statute also provides a remedy of settlement of election disputes by filing an election petition before a tribunal, it is that remedy alone which should be availed of and recourse cannot be taken to proceedings under Article 226 of the Constitution. This view has been taken in a series of decisions rendered by this Court. The earliest decision was rendered in N.P.

Ponnuswami v. Returning Officer [1952 SCR 218:AIR 1952 SC 64] by a Bench of six learned Judges. In this case the nomination paper of the appellant for election to the Madras Legislative Assembly was rejected by the Returning Officer. The appellant challenged the rejection of the nomination paper by filing a writ petition in the High Court which was dismissed on the ground that it had no jurisdiction to interfere with the order of the Returning Officer on account of Article 329(b) of the Constitution, which says that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. In appeal, this Court examined the question whether the writ petition would be maintainable at the initial stage against an order rejecting the nomination paper. Certain observations made in AIR para 9 of the reports are relevant and they are being reproduced below: (SCR p.

228) "The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court."

20. In AIR para 12 it was observed:

"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.

It will be a fair inference from the provisions of the Representation of the People Act to draw 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."

23. In Gujarat University v. N.U. Rajguru [1987 Supp SCC 512] the dispute related to election to the Court of Gujarat University. Some teachers challenged the holding of elections by means of a writ petition before the High Court which was allowed. In appeal, this Court set aside the judgment of the High Court with the following observations: (SCC p. 516, para 6) "6. It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental nor a common law right, instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution bypassing the machinery designated by the Act for determination of the election dispute.

Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify bypassing the alternative remedies."

24. There are several other decisions where the same view has been taken. S.T.

Muthusami v. K. Natarajan [(1988) 1 SCC 572] is a case relating to election to the office of Chairman of a Panchayat Union under the Tamil Nadu Panchayats Act, 1958 where it was held that the parties who are aggrieved by the result of the election can question the validity of the election by an election petition which is an effective alternative remedy and it is not appropriate for the High Court to interfere with the election process.

25.C. Subrahmanyam v. K. Ramanjaneyullu [(1998) 8 SCC 703] is a case relating to election under the Andhra Pradesh Panchayat Raj Act and in a short judgment it was observed that the main question for decision being the non-compliance with a provision of the Act which is a ground for an election petition in Rule 12 framed under the Act, the writ petition under Article 226 of the

Constitution should not have been entertained for this purpose.

26. In Ashok Kumar Jain v. Neetu Kathoria [(2004) 12 SCC 73] a writ petition was filed under Article 226 of the Constitution challenging the election held under the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972. This Court observed that Section 66-A of the said Act provided that an election under the Act could be challenged only by presenting an election petition and except in some exceptional extraordinary circumstances, normally remedy under Article 226 of the Constitution, challenging the election by filing a writ petition would not be available.

27.Umesh Shivappa Ambi v. Angadi Shekara Basappa [(1998) 4 SCC 529] is a case relating to election of the President, Vice-President and Chairman, etc. under the Karnataka Cooperative Societies Act, wherein the High Court in a writ petition under Article 226 of the Constitution set aside the order by which the nomination of the first respondent therein was rejected. This Court reversed the judgment of the High Court with the following observation: (SCC p. 529) "Once an election is over, the aggrieved candidate will have to pursue his remedy in accordance with the provisions of law and the High Court will not ordinarily interfere with the elections under Article 226. The High Court will not ordinarily interfere where there is an appropriate or equally efficacious remedy available, particularly in relation to election disputes."

8. Thus, in catena of decisions, the Hon'ble Supreme Court has held that

when there is specific provision for filing an election petition challenging any

election of an office, or an authority or institution, it is not permissible to invoke

the jurisdiction of the High Court under Article 226 of the Constitution of India

bypassing the machinery designated by the Act for determination of the election

dispute. Only in exceptional or extraordinary circumstances, the writ petition

may be entertained bypassing the alternative remedies.

9. The petitioner has failed to show any such exceptional situation before

this Court under which the statutory remedy of filing an election petition has

been avoided by him. This Court is of the considered view that the allegations

levelled by the petitioner against the respondent No.7 can effectively be raised

by filing an election petition under Section 151 of the Act, 2001. Moreover, the

petitioner has raised factual dispute and the nature of the allegation is such

which can only be entertained and decided by a fact finding adjudicatory body

after adducing evidences from both the sides.

10. Considering the aforesaid factual and legal position, I find no reason to

entertain the present writ petition at this stage and the same is accordingly

dismissed as not maintainable.

11. The petitioner is however at liberty to take the appropriate statutory

recourse for redressal of his grievance.

Satish/-                                                        (RAJESH SHANKAR, J)