Kamaljeet Kaur vs Uma Tripathi And Others

Ramesh Ranganathan, CJ

This Special Appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No. 3401 of 2019 dated 16.11.2019.

In the order under appeal, the learned Single Judge observed that, in terms of Section 131(6) of the Uttarakhand Panchayati Raj Act, 2016 (for short the 'Act'), election disputes can only be agitated before the prescribed authority; the State Government had not prescribed any such authority till date; Section 132 of the Act bars the jurisdiction of the Civil Court in election matters; and the respondent-writ petitioner had no other remedy except to approach this Court invoking its extra-ordinary jurisdiction under Article 226 of the Constitution of India. The learned Single Judge posted the matter on 25.11.2019 to enable the respondents to file their counter affidavits. It is against such an order that the present Special Appeal is filed by a candidate who was successful in the elections, and is now holding the office of Block Pramukh of Sitarganj in Udham Singh Nagar district.

The jurisdiction exercised by this Court under Article 226 of the Constitution of India is part of the basic structure of the Constitution (L. Chandra Kumar vs. Union of India : AIR 1997 SC 1125). Since this power of judicial review forms part of the basic structure of the Constitution, it cannot be circumscribed or negated even by an amendment to the Constitution, much less by legislation-plenary or subordinate.

As Section 132 of the Act bars the Civil Court from exercising jurisdiction regarding election disputes, failure on the part of the State Government to designate the prescribed authority, under Section 131(6) of the Act, has left those, who intend questioning the validity of the election, without any other remedy; and they can, therefore, only invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution.

Since the respondent-writ petitioner has a legal right under the Act to question the validity of the election, and since no forum has been provided to resolve such election disputes, the learned Single Judge was, in our view, not in error in entertaining the writ petition.

A feeble attempt is made by Sri Vikas Bahuguna, learned counsel for the appellant, to sumit that the jurisdiction of the Civil Court can be invoked; and this Court would not entertain a writ petition to adjudicate an election dispute as it requires determination of disputed questions of fact. Accepting the submission of the learned counsel for the appellant would require us to ignore Section 132 of the Act which bars exercise of jurisdiction by the Civil Court over election disputes.

While the State Government could have taken steps to ensure that those, who seek to question election disputes, are not left remediless, failure on its part to frame rules, prescribing an authority to decide election disputes relating to Kshetra Panchayats and Zila Panchayats, has left those, who seek to challenge the validity of such elections, remediless.

Sri M.C. Pandey, learned Additional Advocate General, on instructions, states that the matter is under examination; necessary action is being taken by the State Government to prescribe an authority; and the exercise is likely to be completed within two weeks.

Suffice it, while disposing of the Special Appeal, to observe that, in case any such authority is prescribed, the order now passed by us shall not disable the learned Single Judge from referring the dispute to such an authority.

Subject to aforesaid observations, the Special Appeal fails and is, accordingly, dismissed. No costs.