Uttarakhand High Court
Rajendra Singh Chauhan vs State Election Commission And Others on 30 July, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 2269 of 2025 (M/S)
Rajendra Singh Chauhan ........Petitioner
Versus
State Election Commission and Others ........Respondents
Present:-
Mr. Sagar Kothari, Advocate for the petitioner.
Mr. M.S. Bisht, Brief Holder for the State.
Mr. Sanjay Bhatt, Advocate for the respondent no.1.
Mr. Bhuwan Bhatt, Advocate for the respondent no.7.
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 certiorari,
calling for records, and quashing the votes casted in Polling
Centre No.75, Junior High School, Datnu (Erstwhile Badnu),
Block and Tehsil Kalsi, District Dehradun, at Polling Booth
No.82, Junior High School, Datnu (Erstwhile Badnu), Block
Tehsil, Kalsi, District Dehradun in the elections of Member of
Kshetra Panchayat, Kshetra Joshi Gothan, Block and Tehsil
Kalsi, District Dehradun.
(ii) Issue a writ, order or direction in the nature of mandamus
directing an independent agency to conduct an independent
inquiry against the erring officials involved in corrupt practice
of getting fake votes casted in the elections of Kshetra
Panchayat, Kshetra Joshi Gothan, Block and Tehsil, Kalsi,
District Dehradun.
(iii) Issue any other suitable writ, order or direction of any nature
in favour of petitioner, which this Hon'ble Court may deem fit
and proper in the present circumstances of the case.
(iv) Award the cost of writ petition in favour of the petitioner.
2. Heard learned counsel for the parties and perused the
record.
3. Learned counsel for the petitioner submits that the
petitioner contested the election of Membership of Kshetra Panchayat
from Kshetra Joshi Gothan, Block and Tehsil Kalsi, District Dehradun.
During elections, fake votes were casted. In Para 7 of the petition, the
petitioner claims that 38 votes were fake. Therefore, those votes may
be quashed and a high level enquiry may be conducted.
4. Learned counsel for the respondent no.7 submits that
the relief, which the petitioner seeks, may be sought by him by way of
presenting an election petition under Section 131-H of the
Uttarakhand Panchayati Raj Act, 2016 ("the Act"). At this stage, the
petition may not be entertained because the election is almost over.
Tomorrow is the day for counting of votes.
5. Learned counsel for the respondent no.1/State Election
Commission submits that it is an election dispute. It requires a trial. It
may not be decided in the writ petition in view of the bar created under
Article 234-O of the Constitution of India and Section 131-H of the Act.
6. Learned counsel for the petitioner also submits that
some voters have also complained that they did not caste vote and
some fake voters have casted their votes; the writ petition is
maintainable.
7. Before proceeding further, it would be apt to reproduce
the statutory provisions on the subject. Section 131-H of the Act reads
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,
..................................................................................................
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(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."
8. There is another provision under Article 243-O of the
Constitution of India, which 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."
9. The remedy under Article 226 of the Constitution of India
may not be curtailed by the statutory provisions. But then, there are
self imposed limitations as to under what circumstances this
jurisdiction should be exercised.
10. This Court has adverted to the principles of law on this
subject while deciding Writ Petition (M/S) No. 2234 of 2025, Sri Ram
Singh Vs. State Election Commission, Uttarakhand and Others, on
25.07.2025. This Court then observed as follows:-
"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."
11. Election is already underway. The voting has been done
and it is admitted that tomorrow is the day for counting. At this stage,
in view of the settled principles of law, this Court should adopt a
hands-off approach. Moreover, whether the votes were genuine or fake,
it is a question of fact, which requires full-fledged trial. Otherwise also
definitely if occasion arises, such dispute may only be decided in an
election petition.
12. Therefore, at this stage, this Court is of the view that this
petition may not be entertained. Accordingly, the petition deserves to
be dismissed at the stage of admission itself.
13. The writ petition is dismissed in limine.
(Ravindra Maithani, J)
30.07.2025
Ravi Bisht
