Avtar Singh vs State of Punjab and Others

R.P. Sethi and Satpal, JJ.—Aggrieved by the order of rejection of the nomination papers the present petition has been filed with the prayer for quashing the order of the Returning Officer by giving appropriate directions for the conduct of the election of the Panchayat Samitis.

We have heard the learned Counsel for the petitioner and perused the record.

Section 74 of the Punjab State Election Commission Act, 1994 (for short the ''Act'') provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Chapter XII of the said Act. The aforesaid provisions of the Act have been incorporated on the authority of Article 243O Clause (b) of the Constitution of India which was inserted by the Constitution (73rd Amendment) Act, 1992. Once the election process commences, no election can be called in question in any Court except by way of an election petition. Acceptance or rejection of nomination papers by the Returning Officer being in the process and part of the election cannot be called in question by way of a writ petition under Article 226 of the Constitution of India. In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , it was held that conspectus of provisions bearing on the subject of elections clearly express that there is a remedy for every wrong done during the election in progress although it is postponed to the post election stage and that the Court would not interfere in the exercise of the writ jurisdiction under Article 226 of the Constitution of India.

In Sukar Gope Vs. State of Bihar, it was held that election in its comprehensive sense would embrace the whole procedure whereby an elected member is returned. Rejection of nomination paper was held to be within the jurisdiction of the Returning Officer in the discharge of judicial and not ministerial function and in that case the High Court has no power to interfere with by issuing any writ, order or direction.

In N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, it was held that:

"The word "election" has been used in part XV of the Constitution in the wide sense, that is to say, connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression "conduct of elections" in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in part XV including Article 329(b). The term "election" may be taken to embrace the whole procedure which consists of several stages and embraces many steps, whereby an "elected member" is returned, whether or not it be found necessary to take poll. It is not used in narrow sense."

Election cannot be held to be merely ultimate decision or the ultimate result and includes every stage from the time the notification is issued till the result is declared. On the analogy of Article 329 it can safely be held that no action of the Returning Officer can be called in question after the election process has commenced except by way of an election petition.

We have been told at the Bar that an Election Tribunal has already been constituted in terms of Section 73 of the Act.

There is no merit in the petition which is accordingly dismissed in limine. The petitioner is, however, at liberty to approach the Election Tribunal in accordance with the provisions of the Act and the Rules made thereunder.