Uttarakhand High Court
Sri Ram Singh vs State Election Commission on 25 July, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 2234 of 2025 (M/S)
Sri Ram Singh ..........Petitioner
Vs.
State Election Commission, Uttarakhand and others
........ Respondents
Present : Mr. Jai Krishna Pandey, Advocate for the petitioner.
Mr. Sanjay Bhatt, Advocate for the State Election Commission.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
By means of the instant petition, the petitioner seeks
the following reliefs:-
I. Issue a writ, order, or direction in the nature of Mandamus
directing the respondents, particularly the State Election
Commission and the Returning Officer, to forthwith reject
the nomination of Respondent No.5 for the election to
Kshettra Panchayat 1 Baraon, District Nainital, on the
ground of her ineligibility arising from her simultaneous
registration in two distinct electoral rolls in contraventiuon
of the statutory provisions;
II. Issue a writ, order, or direction in the nature of Mandamus
directing the respondents to conduct fresh elections of
Kshettra Panchayat 11 Baraon, District Nainital in
accordance with law, ensuring strict compliance with the
statutory provisions and the constitutional mandate of free
and fair elections;
III. Or/and pass any other order which this Hon'ble court may
deem fit and proper under the circumstances of the case.
2. Heard learned counsel for the parties and perused the
record.
3. Learned counsel for the petitioner submits that the
respondent no.5 is not eligible for contesting the election of
Members, Kshetra Panchayat because her name is included in two
Voters List, despite that her nomination has been accepted.
4. Learned counsel for the petitioner submits that the
judicial review is not totally barred, the Court may examine this
issue. He referred to the principle of law as laid down in the case of
Election Commission of India vs. Ashok Kumar and others, (2000)8
SCC 216, in which case, the Hon'ble Supreme Court laid down the
guidelines as follows:-
"18. Is there any conflict between the jurisdiction conferred on
the High Courts by Article 226 of the Constitution and the
embargoes created by Article 329 and if so how would they coexist
came up for the consideration of a Constitution Bench of this
Court in N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency (1952) 1 SCC 94 : AIR 1952 SC 64. The law
enunciated in Ponnuswami (1952) 1 SCC 94 : AIR 1952 SC 64 was
extensively dealt with, also amplified, by another Constitution
Bench in Mohinder Singh Gill v. Chief Election Commr. (1978) 1
SCC 405 : AIR 1978 SC 851. The plenary power of Article 329 has
been stated by the Constitution Bench to be founded on two
principles:
(1) the peremptory urgency of prompt engineering of the whole
election process without intermediate interruptions by way of legal
proceedings challenging the steps and stages in between the
commencement and the conclusion;
(2) the provision of a special jurisdiction which can be invoked
by an aggrieved party at the end of the election excludes other
form, the right and remedy being creatures of statutes and
controlled by the Constitution.
On these principles the conclusions arrived at in Ponnuswami
case (1952) 1 SCC 94 : AIR 1952 SC 64 were so stated in Mohinder
Singh Gill case (1978) 1 SCC 405 : AIR 1978 SC 851: (SCC p. 426,
para 26)
"(1) Having regard to the important functions which the
legislatures have to perform in democratic countries, it has always
been recognised 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 of 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
election petition and not be made the subject of a dispute before
any court while the election is in progress.""
5. Learned counsel for the petitioner also referred to the
principle of law, as laid down in the case of Harnek Singh vs.
Charanjit Singh and others, (2005)8 SCC 383, in which, Hon'ble
Supreme Court observed as under:-
"16. Article 243-O of the Constitution 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."
6. Learned counsel for the State Election Commission,
Uttarakhand ("the Commission") submits that in case of wrong
acceptance of the nomination form, the petitioner may file election
petition under Section 131-H of the Uttarakhand Panchayati Raj
Act, 2016 ("the Act"). He would submit that elections have already
been concluded yesterday; in view of Article 243-O of the
Constitution of India, at this stage, this matter may not be taken
up.
7. Before proceeding further, it would be apt to reproduce
the Constitution and statutory provisions on the subject. Article
243-O reads as follows:-
"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
243-K, 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."
8. Further, Section 131-H of the Act is as follows:-
" (1) The election of a person, Chairman or as members of
a Panchayat including the election of a person appointed as a
Panch shall not be called in question except by an application
presented to such authority within such time and in such manner
as may be prescribed on the ground;
That this election has not been a free election by reason
that the corrupt practice of bribery or undue influence has
extensively prevailed at the election,
..................................................................................................
..................................................................................................
(2) that the result of the election has been materially
affected-
(i) by the improper acceptance or rejection of
any nomination; or
(ii) by gross failure to comply with the
provisions of this Act or the rules framed
thereunder."
9. Undoubtedly, the jurisdiction of Article 226 of the
Constitution of India cannot be obstructed by any statute. There
are self imposed restrictions on it that the Courts at times, under
Article 226, refrain to make any interference.
10. In the case of West Bengal State Election Commission
and others Vs. Communist Party of India (MARXIST) and others,
(2018)18 SCC 141, the Hon'ble Supreme Court discussed the scope
of Panchayat Elections and Article 343-O of the Constitution of
India. In para 28 and 29, the Hon'ble Supreme Court observed as
follows:-
"28. The Panchayat Elections Act is a complete code in regard to the
conduct of the poll and for the resolution of disputes concerning the
validity of the election. Article 243-K entrusts the superintendence,
direction and control over the conduct of all elections to the
panchayats in the State Election Commission. Clause (b) of Article
243-O stipulates thus:
"243-O. Bar to interference by courts in electoral matters.--
Notwithstanding anything in this Constitution--
***
(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."
29 Ed. : Para 29 corrected vide Official Corrigendum No.
F.3/Ed.B.J./57/2018 dated 29-10-2018. There is merit in the
submission that the discipline which is mandated by the provisions of
the Constitution and enforced by the enabling State law on the
subject must be maintained. Any dispute in regard to the validity of
the election has to be espoused by adopting a remedy which is known
to law, namely, through an election petition. It is at the trial of an
election petition that factual disputes can be resolved on the basis of
evidence. This principle has been consistently adhered to in decisions
of this Court. In Boddula Krishnaiah, Boddula Krishnaiah v. State
Election Commr., A.P., (1996) 3 SCC 416, a three-Judge Bench
adverted to the decisions of the Constitution Bench in N.P.
Ponnuswami v. Returning Officer, Namakkal Constituency [N.P.
Ponnuswami v. Returning Officer, Namakkal Constituency, (1952) 1
SCC 94 : 1952 SCR 218 : AIR 1952 SC 64 and in Lakshmi Charan
Sen v. A.K.M. Hassan Uzzaman Lakshmi Charan Sen v. A.K.M.
Hassan Uzzaman, (1985) 4 SCC 689. After referring
to Ponnuswami [N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency, (1952) 1 SCC 94 : 1952 SCR 218 : AIR 1952 SC 64, it
was observed : (Boddula Krishnaiah case, Boddula Krishnaiah v. State
Election Commr., A.P., (1996) 3 SCC 416, SCC pp. 419-20, para 8)
"8. In N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency, N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency, (1952) 1 SCC 94 : 1952 SCR 218 : AIR 1952 SC 64, a
Constitution Bench of this Court had held that having regard to the
important functions which the legislatures have to perform in
democratic countries, it has always been recognised 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. In conformity with the principle, the scheme
of the election law 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 election petition and not be made
the subject of a dispute before any court while the election is in
progress."
The binding principle must be followed."
11. Further having considered the law on the field, the
Hon'ble Supreme Court in the case of West Bengal State Election
Commission (supra) observed that, "once the election process has
commenced, it is trite law that it should not be interdicted mid
stage. The electoral process is afforded sanctity in a
democracy. That is the reason why in a consistent line of
precedent, this Court has insisted upon the discipline of the
law being followed so that any challenge to the validity of an
election has to be addressed by adopting the remedy of an
election petition provided under the governing statute." This
principle of law, as laid down in the case of West Bengal State
Election Commission (supra) has further been followed by the
Hon'ble Supreme Court in the case of State of Goa and another Vs.
Fouziya Imtiaz Shaikh and another, (2021)8 SCC 401.
12. In the case of State of Goa (supra), the Hon'ble
Supreme Court has discussed the provisions of Municipality
Elections and the provisions of Section 243-ZG(b), which reads as
follows:-
"243-ZG. Bar to interference by courts in electoral matters.--
Notwithstanding anything in this Constitution,--
(a) .......................................................................................;
(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."
13. A bare reading of Article 243-ZG(b) and Article 243-
O(b) of the Constitution of India makes it abundantly clear that
they are similarly worded except interchanging the word
'Panchayat' and 'Municipality'. In the case of State of Goa (supra),
the Hon'ble Supreme Court in para 68.1 of the judgment observed
that from the date of notification of the election till the date of the
declaration of result a judicial hands-off is mandated by the non
obstante clause contained in Article 243-ZG(B). It reads as follows:-
"68.1. Under Article 243-ZG(b), no election to any
municipality can be called in question except by an election petition
presented to a Tribunal as is provided by or under any law made by
the legislature of a State. This would mean that from the date of
notification of the election till the date of the declaration of result a
judicial hands-off is mandated by the non obstante clause contained
in Article 243-ZG debarring the writ court under Articles 226 and
227 from interfering once the election process has begun until it is
over. The constitutional bar operates only during this period. It is
therefore a matter of discretion exercisable by a writ court as to
whether an interference is called for when the electoral process is
"imminent" i.e the notification for elections is yet to be announced."
14. In the case of State of Goa (supra), the Hon'ble
Supreme Court has further held as under:-
"68.5. Judicial review of a State Election Commission's order is
available on grounds of review of administrative orders. Here again,
the writ court must adopt a hands-off policy while the election
process is on and interfere either before the process commences or
after such process is completed unless interfering with such order
subserves and facilitates the progress of the election."
15. Against improper acceptance of nomination papers, the
petitioner has a remedy of filing election petition. In fact, elections
have already been concluded yesterday. It has been told that the
respondent no.5 remained uncontested. Therefore, at this stage,
this Court is of the view that in view of the settled principle of law,
this Court has to adopt hands-off approach.
16. Accordingly, there is no reason to interfere in the
instant petition. The petition deserves to be dismissed at the stage
of admission itself.
17. The petition is dismissed in limine.
(Ravindra Maithani, J.)
25.07.2025
Sanjay
SANJAY
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
2.5.4.20=e50e50b49596520698eff87e0a08bbd504
686df4d1afc60f54a287831dec46fe,
KANOJIA
postalCode=263001, st=UTTARAKHAND,
serialNumber=26EEB7122ED0DD23233A255DD8E
C450A84B515A087CAEFD1B3179A7DEAE40699,
cn=SANJAY KANOJIA
Date: 2025.07.31 11:28:07 +05'30'
