Harpal Singh vs State Of Punjab And Others
2021 Latest Caselaw 549 P&H

   IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
               HARYANA AT CHANDIGARH

                                                              CWP-3125-2021
                                           Date of Decision: February 12, 2021

Harpal Singh

                                                                 .... Petitioner

                                      Versus

The State of Punjab and others

                                                               .... Respondents

CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN
       HON'BLE MR. JUSTICE VIVEK PURI

Present:      Mr. Jagmohan Singh Bhatti, Advocate,
              for the petitioner.

              Mr. Suveer Sheokand, Addl. Advocate General, Punjab,
              for the respondents.

VIVEK PURI, J.

The matter has been taken up through video-conferencing in

the light of the pandemic Covid-19 situation and as per instructions.

Reply has been circulated through E-mail in the Court today

and the same is taken on record.

We have heard learned counsel for the parties and perused

the record.

The petitioner has assailed the order dated 04.02.2021

(Annexure P/2) passed by the Returning Officer vide which his

nomination papers as a candidate for Ward No. 20, S.A.S. Nagar (Mohali)

have been rejected.

1 of 13

On 16.01.2021, the Punjab Election Commission had

announced the schedule for elections and bye-elections of eight Municipal

Corporations and 109 Municipal Councils and Nagar Panchayats. The

filing of nomination papers commenced on 30.01.2021. The nomination

papers of the petitioner have been rejected on 04.02.2021 on the score that

his proposer, namely, Lakhbir Singh was not enrolled as a voter in the

constituency from which the petitioner had sought to contest the election.

The proposer was enrolled as a voter in Ward No. 22 and consequently,

the nomination papers submitted by the petitioner have been rejected.

It has been argued by the learned counsel for the petitioner

that the nomination papers have been rejected on the ground that the

proposer is from a different ward and there is nothing in the Punjab State

Election Commission Act, 1994 (for short `Act 1994') which requires that

the proposer for filing the nomination papers should be from the same

ward. The nomination papers have been rejected on flimsy grounds in an

illegal and arbitrary manner. It has been further argued that the Returning

Officer could not reject the nomination papers as the defect was not of a

substantial character. Furthermore, reliance has been placed upon a

judgment of Division Bench of this Court in the case of Sukhdev Singh

Patwari Vs. State Election Commissioner, Punjab and others, 2015(2)

RCR (Civil) 647 to argue that the nomination papers of the petitioner are

liable to be accepted.

On the contrary, the learned State counsel, at the very outset,

disputes the maintainability of the petition on the score that the

efficacious remedy is available to the petitioner by challenging the

election after the process has been completed. Furthermore, no

2 of 13

interference is called for once the election process has been set into

motion. In the event, the nomination papers have been wrongly rejected,

the petitioner can invoke the jurisdiction of the Election Tribunal to

declare the election of the returned candidate as void by invoking the

provisions of Section 89(1)(c) of the Act 1994. It has been further argued

that Article 243-ZG of the Constitution bars the interference by the Courts

in electoral matters and the election of the municipality cannot be called

in question except by way of election petition to be presented to the

concerned authority. As per the provisions of Section 38(1) of the Act

1994, the nomination papers are required to be completed in the

prescribed form and signed by the candidate and by an elector of the

constituency as proposer. The defect in submitting the nomination papers

containing the proposer of a different constituency is a substantial and

incurable defect which renders the rejection of the nomination papers. The

nomination papers submitted by the petitioner were not in conformity and

requirements of the statutory provisions.

Before proceeding further, it shall be appropriate to refer to

the provisions of law which are relevant to settle the instant controversy.

Article 243-ZG of the Constitution bars the interference by the Courts in

electoral matters and it provides as following:-

"243-ZG. 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 of the allotment of seats to such constituencies, made or purporting to be made under article 243-ZA shall not be called in question in any Court;

3 of 13

(b) no election to any Municipality 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."

Section 38(1) of the Act 1994 deals with the presentation of

nomination paper and requirements for a valid nomination paper and it

provides as following:-

"38. Presentation of nomination paper and requirements for a valid nomination - (1) On or before the date appointed under clause (a) of Section 35, each candidate shall, either in person or by his proposer, between the hours of eleven O'clock in the forenoon and three O'clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under Section 36, a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:

Provided that no nomination paper shall be delivered to the Returning Officer on a day which is a public holiday."

Section 89(1) of the Act 1994 provides for the grounds on

which the election can be declared void which provides as following:-

"89. Grounds for declaring election to be void - (1) Subject to the provisions of sub-section (2), if the Election Tribunal is of the opinion -

      (a)     xxx          xxx             xxx
      (b)     xxx          xxx             xxx
      (c)     that any nomination has been improperly rejected; or
      (d)     xxx          xxx             xxx

the Election Tribunal shall declare the election of the returned candidate to be void."

Furthermore, the nomination papers have to be scrutinized as

per the provisions of Section 41 of the Act 1994 which provides as

following:-

4 of 13

"41. Scrutiny of nominations -

      (1) to (3)    xxx            xxx          xxx
      (4)     The Returning Officer shall not reject any nomination

paper on the ground of any defect which is not of a substantial character.

(5) to (7) xxx xxx xxx"

Section 74 of the Act 1994 deals with the election petitions,

which reads as under:-

"74. Election petitions - No election shall be called in question except by an election petition presented in accordance with the provisions of this Chapter."

The right to contest an election is not a fundamental right,

but a statutory right. As such, the statute may lay down the qualifying or

disqualifying conditions for a contesting candidate. Consequently, the

requirement of submitting valid nomination papers as prescribed by

relevant statute is an essential concomitant and required to be complied

with as prescribed by law.

It has to be seen as to whether the writ jurisdiction can be

invoked in the event of rejection of the nomination papers during the

period when the election process has been set into motion or the remedy is

to be availed after the process has been completed by means of election

petition as prescribed under law. The Hon'ble Supreme Court in the land

mark decision in the case of N.P. Ponnuswami versus The Returning

Officer, Namakhal Constituency, Namakkal, Salem Dist., and others

reported in 1952 AIR (SC) 64 has laid down as following:-

"9. The question now arises whether the law of elections in this country contemplates 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

5 of 13

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. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that 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. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(2) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it."

Thus, a writ petition challenging the rejection of nomination

is in effect a petition challenging the election because `challenge to an

election' implies challenge to an intermediary stage of an election such as

6 of 13

rejection/acceptance of nomination, for which the appropriate remedy is

to file an election petition. Relying upon the N.P. Punnuswami's case

(supra), Hon'ble Delhi High Court in Ravinder Negi Vs. State Election

Commission and another, 2017 SCC OnLine Del 7812, has held to the

following effect:-

"19. Learned counsel for the State Election Commission is also right in his submission that improper rejection of nomination as per Section 17(1)(c) of the DMC Act can be made subject matter of the Election Petition. In N P Ponnuswamy (supra), the Supreme Court had interpreted Article 329 (b) of the Constitution and on the ambit of the word "Election" held that the same has reference to the entire process which consists of several stages and embraces many steps. Referring to the provisions of the Representation of People's Act, 1951, it was observed that where a right and liability is created by the statute which gives special remedy for enforcing it, then the remedy given by that statute must be availed of. It was accordingly held as under:

"17. It may be pointed out that Article 329 (b) must be read as complimentary to clause (a) of that article. Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under Articles 327 and 328 relating to the delimitation of constituencies or the allotment of seats to such constituencies. It was conceded before us that Article 329 (b) ousts the jurisdiction of the courts with regard to matters arising between the commencement of the polling and the final selection. The question which has to be asked is what conceivable reason the legislature could have had to leave only matters connected with

7 of 13

nominations subject to the jurisdiction of the High Court under Article 226 of the Constitution. If Part XV of the Constitution is a code by itself i.e., it creates rights and provides for their enforcement by a Special Tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject-

matter of contest before the High Courts and thereby upset the time-schedule of the elections. The more reasonable view seems to be that Article 329 covers all "electoral matters".

18. The conclusions which I have arrived at may be summed up briefly as follows:

"(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 protracted.

(2) In conformity with this principle, the scheme 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

8 of 13

election petition and not be made the subject of a dispute before any court while the election is in progress."

In somewhat similar circumstances, Hon'ble the Supreme

Court in Ram Phal Kundu Vs. Kamal Sharma, (2004) 2 SCC 759, has

illuminatingly observed as under:-

"24. It may be noticed that the petition by Kamal Sharma was filed on 6.2.2000 and the same was allowed by the Election Commission very next day i.e. on 7.2.2000 by which a direction was issued to the Returning Officer to hold a fresh scrutiny. There is nothing on record to indicate nor it appears probable that before passing the order, the Election Commission issued any notice to Bachan Singh. Apparently the order was passed behind his back. The order of the Election Commission to the effect that the Returning Officer shall take further consequential steps as may become necessary, by treating all earlier proceedings in relation to said candidates, as ab initio void and redraw the list of validly nominated candidates could not have been passed without giving an opportunity of hearing to Bachan Singh. That apart, it has been held by a catena of decisions of this Court that once the nomination paper of a candidate is rejected, 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."

Moreover, an identical issue came up for adjudication before

a Co-ordinate Bench of this Court, in a bunch of petitions, the main case

being CWP-2910-2021, titled as "Tanu Vs. State of Punjab and others",

which is stated to have been dismissed vide judgment of even date.

9 of 13

It is no more res integra that the word "election" has to be

construed as the whole procedure whereby "an elected member" is

returned. The word "election" embraces all the steps that have an

important bearing on the result of the election process and it consists of

several stages including the filing of nomination papers, scrutiny thereof

etc.

At this stage, it shall be apposite to refer to a recent Full

Bench decision of Bombay High Court in the case of Karamaveer

Tulshiram Autade Age About 33 yrs., Occ. Agriculturist and others vs.

The State Election Commission Office at New Administrative Bldg.

Madam Cama Marg, Mumbai - 32 Through its Secretary and others,

Writ Petition (St.) No. 26 of 2021, decided on 13.01.2021 wherein the

fundamental question which arose for determination was as to whether a

writ petition before the High Court exercising the jurisdiction under

Article 226 of the Constitution would be maintainable if the petitioner

seeks to challenge an order of rejection of his nomination paper (to

contest a Gram Panchayat election) by the Returning Officer/the

competent authority having regard to the provisions of Article 243-O of

the Constitution. The fundamental question as formulated was answered

in negative and it was laid down as following:-

"(i) Allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting the relief claimed by setting aside such order of rejection is definitely not a step to sub-serve the progress of election and/or facilitate its completion in the sense enunciated in Mohinder Singh Gill (supra) and explained in Ashok Kumar (supra) though it may

10 of 13

not always amount to intervention, obstruction or protraction of the election;

(ii Article 243-O(b) of the Constitution of India is a bar for entertaining a writ petition under Article 226 of the Constitution against an order passed by the Returning Officer rejecting nomination paper and such provision would clearly be attracted whenever a writ petition is presented before a Court for its consideration; "

It may be mentioned here that Article 329(b) of the

Constitution is pari materia with Article 243-O(b) dealing with the

Panchayats and Article 243-ZG(b) dealing with the Municipalities.

In the case in hand, the proposer in the nomination papers of

the petitioner was from a different constituency from which the petitioner

was seeking election. As per the provisions of Section 38(1) of the Act

1994, the nomination papers were required to be signed by an elector of

the constituency of the proposer. Furthermore, in the event, the petitioner

is aggrieved in any manner on account of improper rejection of his

nomination papers as per the provisions of Section 89(1)(c) of the Act

1994, he has a remedy to invoke the jurisdiction of the Election Tribunal

seeking declaration of the election of the returned candidate to be void

after the election process is over.

In such circumstances, the challenge to the rejection of

nomination papers is not maintainable while entertaining a writ petition

under Article 226 of the Constitution. The judicial intervention can be

extended only if the assistance of the Court is sought to correct or

smoothen the process of the election proceedings and remove the

obstacles therein. However, the recourse cannot be adopted for

interrupting, obstructing or delaying the progress of election. The

11 of 13

petitioner ought to have availed the efficacious remedy under the Act

1994 by filing an election petition.

Lastly, the petitioner has sought to place reliance upon

Sukhdev Singh Patwari (supra) with a submission that his nomination

papers may be accepted. It may be mentioned here that the ratio of the

said decision is distinguishable from the facts of the present case. In the

said decision, the name of the candidate and the proposer had not tallied

with the serial no. in the new voter list prepared for the Municipal

Corporation election as the serial no. as mentioned in the voter list of

election to Vidhan Sabha was specified in the nomination papers. In

terms of the interim direction, the candidate was permitted to participate

in the election process by directing the Returning Officer to accept the

nomination papers of the petitioner. The sealed result was submitted

before the Court which indicated that the petitioner had secured the

maximum number of valid votes. In such circumstances, it was concluded

that to set at naught the election would be against the wish of the people

of the constituency. Accordingly, the writ petition was disposed of with

liberty to the parties or such affected person to seek remedy against the

election in accordance with law and before an appropriate Forum. In the

said decision, it was also observed that it is a judicial restraint to interfere

in the election once the election process has been set into motion.

However, in the instant case, no such interim direction has been issued in

favour of the petitioner. Furthermore, the election is scheduled to be held

on 14.02.2021; the nomination papers submitted by the petitioner have

been rejected as the same were not in conformity of the statutory

requirements and it shall not be appropriate, in the circumstances of the

12 of 13

case, to interfere in any manner in the due process of the election which

has been set into motion.

Since, the present petition is not maintainable, we are not

inclined to comment to the averments raised by learned counsel for the

petitioner and the validity of the decision taken by the competent authority

and the reasons thereof.

In view of the above, the instant petition is, hereby,

dismissed.

However, the petitioner is free to avail the alternate remedy

available to him, if so advised.

[JITENDRA CHAUHAN]                                          [VIVEK PURI]
     JUDGE                                                     JUDGE

February 12, 2021
vkd

      Whether speaking/reasoned           :    Yes
      Whether reportable                  :    Yes




                               13 of 13