Tagung Neri vs Tingri Effa and Others

Amitava Roy, J.—This appeal witnesses a challenge to the judgment and order dated 23.12.2004 setting aside the notification dated 7.1.2004 issued by the State Election Commissioner, Arunachal Pradesh notifying election under Rule 4 of the Arunachal Pradesh Panchayat Raj (Conduct of Election) Rules, 2001 (hereinafter referred to as the ''Rules'') for Zila Parishad member from Bameng West Anchal Samiti Constituency and directing the official Respondents including the Election Commission to act in terms of the judgment and order dated 16.12.2003 passed by the Panchayat Raj Election Tribunal, Arunachal Pradesh (hereinafter referred to as the ''Tribunal'') in case No.PR(ET) 00014.

We have heard Mr. B.C. Das, Senior Advocate assisted by Mr. D. Mazumdar, Advocate for the Appellant, Mr. C.K. Sarma Baruah, learned Advocate General, Arunachal Pradesh for the official Respondents, Mr. Apang, learned Counsel for the Election Commission and Mr. C. Baruah, Senior Advocate assisted by Mr. R.K. Das, Advocate for the Respondent No. 1.

A brief narration of the facts would be necessary to outline the backdrop.

The Appellant, Respondent No. 1 and two others submitted their nomination papers for election as Zila Parishad Member from Bameng West Anchal Samiti Constituency in the District of East Kameng in response to a notification under the Rules issued by the State Election Commission, Arunachal Pradesh for Panchayat Election, 2003. The nomination papers of all the candidates were rejected by the Returning Officer on 22.3.2003 for different reasons. The decision to the above effect was conveyed to the Respondent No. 1 by the Returning Officer by letter dated 18.3.2003. Thereafter the Respondent No. 1 and his proposer filed an application u/s 69 of the Rules before the Tribunal constituted u/s 122(3) of the Arunachal Pradesh Raj Act, 1997 (hereinafter referred to as the ''Act'') for setting aside the decision contained in the communication dated 18.3.2003 referred to above and/or pass any other order as deemed fit and proper. Neither the Appellant nor the other candidates were impleaded as parties. The learned Tribunal after trial of the election petition by the judgment and order dated 16.12.2003 allowed the same with the following operative directions:

In the result, the petition is allowed, the order No. BMG/PR/01/2002-03 dated 18.03.2003 is set aside and quashed. In the event of any election being held on 02.04.2003 in the Bameng West Anchal Constituency for the post of ZPM, that election shall stand as void and a fresh election shall be held in which the Petitioner No. 1 shall be allowed to contest. In any case, the election shall he held within two months from today.

It was thereafter that the notification dated 7.1.2004 referred to above was issued by the State Election Commissioner, Arunachal Pradesh, Itanagar notifying fresh elections of Zila Parishad Member from the Bameng West Anchal Samiti Constituency setting out the schedule therefor. Thereby the Returning Officer was directed to issue Public Notice of the election under Rule 4 of the Rules. It provided further that the Respondent No. 1 shall be allowed to contest the election as ordered by the learned Tribunal vide its judgment and order dated 16.12.2003.

The Respondent No. 1 being aggrieved, approached this Court with WP (C) No. 165 (AP)/2004 impugning the notification dated 7.1.2004. The Respondent No. 1 in the writ petition prayed for an appropriate writ to quash the notification dated 7.1.2004 and sought for a further direction to the official Respondents to declare him as the duly elected Zila Parishad Member from the constituency in question as the sole candidate with valid nomination. By order dated 13.1.2004, in the interim, the operation of the notification dated 7.1.2004 was stayed by the learned Single Judge.

The Appellant, who in the meantime had submitted his nomination paper in response to the said notification having come to learn about the writ proceeding filed an application being Misc. case No. 782/2004 [Misc. case No. 107 (A.P.)/2004] for impleading him as a party Respondent therein. The prayer was allowed on 21.12.2004 and the hearing of the writ petition was also completed on the same date. By the impugned judgment and order, the notification dated 7.1.2004 was set aside with the following directions:

For the foregoing reasons, I am of the considered opinion that the Respondents ought to have considered the consequence of the judgment and order dated 16.12.2003 passed in PR (ET) 00014 and all other attending circumstances as narrated above before issuing the Notification dated 7.1.2004 providing for fresh election. In that view of the matter, the impugned Notification dated 7.1.2004 is set aside and quashed. The Election Commission and for that matter the Respondent Nos. 3, 4 and 5 shall now take into account the consequence of the aforesaid judgment and order dated 16.12.2003 passed by the Tribunal and all other relevant materials including the fact that it was the nomination of the Petitioner which alone was the valid nomination and then shall pass appropriate order as per the provisions of the Arunachal Pradesh Panchayat Raj Act. 1997 the rules framed thereunder i.e. Arunachal Pradesh Panchayat Raj (Conduct of Election) Rules, 2001. Entire exercise shall be carried out within a high period of one month from today.

It is submitted at the Bar that in compliance of the directions, the Respondent No. 1 has, in the meantime been declared elected as the Zila Parishad Member from the Bameng West Anchal Samiti Constituency and has accordingly assumed office.

The learned Single Judge, in the contextual facts held that in absence of any valid nomination, no election could have been held and thus, the observation of the learned Election Tribunal rendering the election of the candidates as void in the event of the election being held on 2.4.2003 was redundant. It was observed that the Respondent No. 1 was aggrieved only by the rejection of his nomination and as there was no concluded election, the question of calling in question the same did not arise. It was held that therefore, the learned Tribunal could not have made a declaration in favour of the Respondent No. 1 declaring him to be elected uncontested and therefore the decision of the learned Tribunal for holding of fresh election has to be understood accordingly. The learned Single Judge was of the view that as the nomination of the Respondent No. 1 was determined to be valid, it was the duty of the Respondents to consider his case before issuing the impugned notification for fresh election and the right which had accrued to the Appellant and other candidates to contest the election in terms of the said notification could not efface the right of the Respondent No. 1 on the basis of the judgment and order of the learned Tribunal. The contesting pleas of the parties have to be evaluated in the above background.

Mr. Das has assertively urged that there being no concluded election before issuance of the impugned notification, the election petition filed by the Respondent No. 1 for setting aside the order of rejection of his nomination paper and for consequential directions was misconceived having regard to the scheme of the Act and the Rules. As any challenge contemplated in Section 122 of the Act and the Rules, pre supposes election of a candidate, the election petition filed by the Respondent No. 1 was stillborn and not conceived of under the Act and the Rules and therefore, the Respondent No. 1 could not claim any right to be elected as Zila Parishad Member only on the strength of the declaration that his nomination was wrongly rejected. Without prejudice to the above, the learned Senior Counsel argued that in any case, the judgment and order of the learned Tribunal to be acted upon in law has to be essentially interpreted as a whole and inconformity with the prescriptions of the Act and the Rules. The complaint before the election Tribunal being against the illegal rejection of the nomination of the Respondent No. 1, it was at best akin to an assertion that the results of the concluded election had been materially affected thereby as contemplated under Rule 73(3) leading to a direction for fresh election under Rule 74(2)(b) of the Rules, he contended. According to him, therefore, having regard to the background of facts and the frame of the election petition, the direction to hold fresh election following the declaration that the nomination paper of the Respondent No. 1 was wrongly rejected was in consonance with the Rules and therefore, the notification dated 7.1.2004 is unassailable. Copiously referring to the various provisions of the Rules bearing on the procedure for conduct of an election thereunder, Mr. Das argued that the right to contest such election as well as to question any matter relating thereto is a statutory right circumscribed by the provisions of the Act and the Rules. He maintained that any irregularity pertaining to the nomination paper or an improper reception or rejection thereof by itself would not give rise to a cause of action for an election petition and can be a ground to impeach the eventual election of a candidate if the same materially affects the results thereof. As in the instant case, no election had been held following rejection of the nomination of the candidates, there was no scope for the election Tribunal to declare the Respondent No. 1 to be elected, more particularly, in absence of any prayer to the said effect. He further contended that as the notification dated 7.1.2004 issued in terms of the judgment and order dated 16.12.2003 as well as the Rules, initiated a fresh process for election, no interference therewith was permissible in exercise of power under Article 226 of the Constitution of India in face of the constitutional bar contained in Article 243(O) and Article 329 of the Constitution of India. In support of his submissions, Mr. Das placed the following decisions-

(1) N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, Respondents;

(2) (1987) 1 SCC 405: Mohinder Singh Gill and Anr., Appellants, v. Chief Election Commissioner, New Delhi and Ors. Respondents;

(3) Election Commission of India Vs. Shivaji and Others, Respondents;

(4) Boddula Krishnaiah and another Vs. State Election Commissioner, A.P. and others, Respondents;

(5) Amal Ch. Choudhury Vs. State of Assam and Others, Respondents;

(6) All India SC and ST Employees Assn. and Another etc. Vs. A. Arthur Jeen and Others etc., Respondents;

(7) Ramachandra Ganpat Shinde and another Vs. State of Maharashtra and others, Respondents;

(8) M.V. Venkataramana Bhat Vs. Returning OFficer and Tahsildar and others, Respondents;

(9) Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, Respondents.

In reply, the learned Advocate General, Arunachal Pradesh argued that as the grievance ventilated in the election petition relates to illegal/improper rejection of the nomination paper of the Respondent No. 1 as comprehended in Rule 73(3) of the Rules, consequent upon the declaration of the learned Tribunal that such rejection was illegal, it was within the power of the Returning Officer under Rule 22 to make necessary declaration to the effect that the Respondent No. 1 had been elected as Zila Parishad Member in question. According to him, in the present fact situation, Rule 74(2)(b) was not attracted and the direction to order fresh election was uncalled for. The learned Counsel for the Election Commission did not offer his comments.

Mr. Baruah, straightway assailed the maintainability of the appeal asserting that as in the meantime, in compliance of the directions contained in the impugned judgment and order of the learned Single Judge, the Respondent No. 1 had been declared to be elected, the only remedy available to the Appellant is as sanctioned by the Act and the Rules. He further maintained that in view of the above developments, the writ appeal is also infructuous and is therefore liable to be dismissed in limine. According to the learned Senior Counsel, the election process had started with the notification dated 26.2.2003 of the State Election Commission, Arunachal Pradesh, Itanagar under Rule 4, setting out the calendar of dates for the election, pursuant to which the candidates had filed their nomination papers. With the rejection of the nomination papers, the process ended, but got revived with the judgment and order dated 16.12.2003 of the learned Tribunal. As no other candidate had challenged the rejection of his nomination paper, the Respondent No. 1 was entitled to be declared elected in terms of the determination made by the learned Tribunal and therefore, the impugned judgment and order in the writ proceeding is unexceptionable. He submitted that the notification dated 7.1.2004 besides being unwarranted, waj a hindrance to the election process initiated by the notification dated 26.2.2003 and therefore, the writ petition filed for the purpose of facilitating the completion of the such exercise was maintainable in law in view of the ratio of the decision of the Apex Court in Election Commission of India Through Secretary Vs. Ashok Kumar and Others, Respondents. In any view of the matter, as no election was held following the rejection of the nomination of all the candidates, the learned Tribunal''s direction to hold fresh election was redundant and therefore, the learned Single Judge was perfectly justified in requiring the official Respondents to act in terms of the judgment and order dated 16.12.2003 and the Rules.

Mr. Das, in his reply has submitted that as the declaration in favour of the Respondent No. 1 pursuant to which he has been returned as Zila Parishad Member being a direct consequence of the impugned judgment and order, the appeal cannot by any means be said to have been rendered infructuous. The election of the Respondent No. 1 being in compliance of the directions contained in the judgment impugned in the instant appeal, there is no scope for the Appellant to challenge the same before the Tribunal and therefore on this count as well, the writ appeal cannot be rejected being not maintainable in law. As the whole process leading to the return of the Respondent No. 1 as the Zila Parishad Member, is vitiated by gross illegalities, this Court in exercise of its plenary powers under Article 226 of the Constitution of India ought to correct the records in the interest of justice.

We have extended our anxious consideration to the rival contentions. As a challenge has been made to the maintainability of the writ appeal, it would be essential to deal with the same at the out set.

The assailment on the sustainability of the appeal is founded on the declaration already made in favour of the Respondent No. 1 returning him as the Zila Parishad Member of the Bameng West Anchal Samity Constituency. The declaration, as is manifest, is a direct consequence of a judicial intervention following an interpretation of the judgment and order of the learned Tribunal and not on the completion of the election process initiated on 26.2.2003 as contemplated under the Act and the Rules. Additionally, the Appellant even if made to approach the learned Tribunal to seek redress, in the above factual premises, no effective remedy can be extended to him by the Tribunal in such a proceeding in face of the determination made by this Court in the writ proceeding. In that view of the matter, we are of the considered opinion that in the peculiar facts and circumstances of the case, the declaration of the Respondent No. 1 as Zila Parishad Member from the aforementioned constituency has not rendered the writ appeal unsustainable in law. By same analogy, the present appeal cannot be deemed to have become infructuous inasmuch as in the event of the impugned judgment and order being over turned in appeal byway of consequential relief, the declaration in favour of the Respondent No. 1 would have to be quashed. In any view of the matter, considering the unusual features of the present case and the legal issues raised, we are inclined to examine the contentions on merits.

What therefore is, the true purport of the decision of the learned Tribunal and the consequential directions to hold a fresh election. Admittedly, the decision rejecting the nomination of the Respondent No. 1 was challenged by him under Rule 69 of the Act which provides for filing of an election petition as envisaged u/s 122(3) thereof. Under Sub-section (3) of Section 123, the Government is empowered to constitute a Election Tribunal to dispose of (i) all election petitions challenging elections to a Panchayat. (ii) matters relating to disqualification of a member of the Panchayat and (iii) any other election matter, in such manner as may be prescribed. Apetition filed u/s 69 is to be filed within 30 days from the date of declaration of the election result and the Petitioner if he so desires, may in addition to calling in question the election of the returned candidate, claim for a declaration that he himself or any other candidate has been duly elected. No such declaration in the petition filed by the Respondent No. 1 was, however, prayed for.

Rules 3 and 4 empower the State Election Commission to fix the date and time of poll for any election to the Panchayat in consultation with the State Government and to publish a public notice setting out the dates for making nomination, scrutiny thereof, withdrawal of candidatures and the poll. Rules 5, 6, 11 and 12 provide for the manner of nomination of candidates and scrutiny thereof. Rules 15 and 16 deal with preparation of list of contesting candidates following scrutiny and the publication thereof. Under Rule 22, the Returning Officer is empowered amongst others to declare candidates to be duly elected in the prescribed form in two eventualities, firstly, when the number of such candidates is equal to the number of seats to be filled and secondly, where such number is less than the number of seats to be filled. Rule 60 lays down the manner of declaration of results of the election to the Gram Panchayat, Anchal Samity or Zila Parishad after the counting of votes is completed. Under Rule 60(4), as soon as a candidate is declared to be elected, in the manner prescribed, the Returning Officer is required to grant to the elected candidate a certificate of election in From 25 and obtain from the candidate an acknowledgement of its receipt duly signed by him and send the acknowledgement to the District Election Officer.

Section 73 contemplates the orders that can be passed by the Election Tribunal on the completion of the trial of the election petition filed under Rule 69. Sub-rule 3 of Rule 73 ordains that if in the opinion of the Election Tribunal the results of the election has been materially affected by any irregularity in respect of the nomination paper or by improper reception or refusal of the nomination paper or in voting or by any non compliance of the provisions of the Act or the Rules made thereunder, the election of such returned candidate may be declared to be void. Under Rule 74(1), the Election Tribunal at the conclusion of the enquiry would declare whether the election of the returned candidate or candidates is void under Rule 73. If the Election Tribunal declares the election of the returned candidate to be void, it may under 74(2) either declare that any other party to the petition who had under the Rules claimed the seat, has been duly elected or order a fresh election. Rule 75 mandates that if an election is declared to be void under Rule 74(1) and a fresh election is ordered under Rule 74(2), the seat of the returned candidate, as the case may be shall be deemed to be vacant from the date of the order of the Election Tribunal and the Election Commission would forthwith take necessary steps for holding such election.

A conjoint reading of the above provisions of the Act and the Rules makes the legislative intendment manifest and obvious. The law makers while prescribing the detailed procedure of conducting the election right from the stage of determination of the date of poll till the declaration of the results thereof, have also consciously provided the legal framework within which any grievance relating to the election may be registered and redressed. Noticeably, though u/s 122(3) the Election Tribunal constituted by the government has been authorized to deal with election petitions challenging elections, matters relating to disqualification of a member of the Panchayat and any other election matters, the corresponding provisions in the Rules are only as contained in Part VII thereof relating to election disputes. This assumes importance in view of the mandate that the proceedings before the Election Tribunal on any one or more of the matters enumerated in Sub-clause (a) of Section 122(3) have to be imperatively in accordance with the procedure prescribed by the rules. Section 69, the solitary provision under Part VII of the Rules delineating the manner of initiating an election dispute before the learned Tribunal clearly conceives of an election by a candidate on the completion of the poll exercise outlined in the Rules. Though Section 122 (3)(a)(iii) contemplates any other "election matter" to be disposed of by the Election Tribunal, apart from comprehending an election petition under Rule 69, challenging a concluded election to a Panchayat, no separate procedure has been prescribed by the Rules therefor. It has therefore, to logically follow that the provisions of the said part of the Rules would also apply in a proceeding before the Election Tribunal called upon to decide any ''election matter'' other than, election petitions challenging elections to a Panchayat. The legislature therefore, clearly contemplated proceedings other than election petitions challenging elections to Panchayat to be adjudicated by the Election Tribunal, however, in the manner as prescribed under Chapter VII of the Rules. The residuary clause in the shape of Clause (iii) to Section 122(3)(b) of the Act is a consequence of such conscious legislative edict. In that view of the matter, we do not feel persuaded to hold that the election petition filed by the Respondent No. 1 under Rule 69 of the Rules was dehors the Act and the Rules and thus misconceived as contended on behalf of the Appellant.

The finding of the learned Tribunal that the nomination of the Respondent No. 1 was valid and the directions to set aside the decision of the Returning Officer to the contrary has remained unchallenged by the Appellant or any other candidate. The situation can at best be held to be analogous to one where an election, if held, could be said to have been materially affected by such illegal/improper rejection of the nomination paper of the Respondent No. 1. As a result, as permissible under Rule 74(2), the only direction which the Election Tribunal could have issued in the present fact situation was to order a fresh election. No election, in fact, having been held as the nominations of all the candidates had been rejected, the question of declaring the election of a returned candidate void or to declare any other candidate to be elected would not arise. In view of the well defined scheme of the Rules appertaining to the procedure of conducting elections thereunder and the permissible remedies vis-a-vis election disputes, we are of the firm opinion that no consequential direction could have been issued by the Election Tribunal to act in terms of Rule 22 of the Rules as contended by the learned Advocate General. According to us, any such order or direction would have been dehors the Rules and thus without jurisdiction being extra statutory in nature. The Election petition having been initiated under the Rules, any determination by the Election Tribunal has to be essentially in conformity therewith. The power exercisable by the Tribunal being conferred, marked and circumscribed by the Act and the Rules, it has no inherent power to indulge in any adjudicative pursuit beyond the framework thereof. Any order or direction dehors the enacted alignment would be destructive of the obvious legislative objective and militative of the constitutional embargo embodied in Article 243(o). Any interpretation of its decision or directions opposed to the Rules would be annihilative of the legislative intendment and directives and thus judicially un-approvable. In other words, the direction to hold a fresh election as contained in the judgment and order dated 16.12.2003 cannot be deemed to be one in continuation of the election process initiated by notification dated 26.2.2003 and has to be construed to be a direction under Rule 74(2)(b) for a de novo election sustainable in the touchstone of the Act and the Rules. In face of the above, there is no scope according to us, to entertain any view that the observations of the learned Tribunal that the election if any, held on 2.4.2003 was void and that fresh election was to be held were either irrelevant, redundant or inconsequential. As a corollary, we are of the view that the notification dated 7.1.2004 for fresh election issued in terms of the judgment and order dated 16.12.2003 and Rule 4 of the Rules was in total consonance therewith and therefore was valid in law.

Before, we complete the narration on this facet of the controversy, we consider it to be apt to refer to a few authorities on the principles of interpretation of statutes relevant in the attending factual premises.

The Apex Court in Dadi Jagannadham Vs. Jammulu Ramulu and Others, while dilating on the settled norms of construction which a Court must adopt vis-a-vis intention of the legislature held thus:

The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly, if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature''s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.

In Dhannalal Vs. Kalawatibai and Others, with reference to an ambiguous statute, it was ruled that when the statute does not provide the path and precedents abstain to lead, then sound logic, rational, reasoning, common sense and urge for public good play as guides of those who decide.

In the same vein, the Apex Court held in Maulavi Hussein Haji Abraham Umarji Vs. State of Gujarat and Another, that the Court cannot read anyhting into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature and the language employed in a statute is the determinative factor of legislative intent, it ruled.

On a consideration of the frame work of the Act and the Rules, we are of the view that the opinion expressed by us as above accords with the pronounced judicial principles alluded hereinabove.

That, an election lis has to be obligatorily guided by the statute involved had been authoritatively laid down in Jyoti Basu and Ors. (supra) where it was alia held that a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right, but is pure and simple a statutory right. It was observed that a right to be elected and right to dispute an election is also a statutory right and therefore subject to statutory limitations. It was ruled that an election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes, applies. It was held that in the trial of the election dispute, the Court is put in a strait jacket and the special jurisdiction has to be exercised in accordance with the statute creating it.

The emphatic pronouncement of the Apex Court as above leaves no room for any flexibility for a Court dealing with an election dispute to deviate from the provisions of the statute that governs the same. The judgment and order of the learned Tribunal therefore has to be mandatorily interpreted in the light of the Act and the Rules to be sustainable in law. The notification dated 7.1.2004 therefore, in our consideration was in accordance with the Rules and the directions issued by the learned Tribunal in its judgment and order dated 16.12.20.03.

Is the bar of Article 243(O) of the Constitution of India attracted vis-a-vis this notification so as to render the writ petition filed by the Respondent No. 1 rejectable in limine ? The said article inter alia mandates that notwithstanding anything in the Constitution, 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. The expression "Panchayat" has been defined to be an institution of self government under Article 243 of the Rules. Article 243 B of the Constitution provides that there shall be constituted in every State. Panchayats at the village, intermediate and district levels in accordance with the provisions of the Part IX of the Constitution of India. There is no wrangle at the bar that the election of a Zila Parishad Member as in the instant case is an election to a "Panchayat" conceived of under Article 243(O) of the Constitution of India.

The cited authorities deserve attention at this stage to have a better insight of the j udicially evolved principles on the issue under scrutiny.

The Appellant in N.P. Pannuswami (supra), was one of the persons who had filed his nomination for election to the Madras Legislative Assembly from the Namakkal Constituency. On his nomination being rejected, he moved the Madras High Court under Article 226 of the Constitution of India to quash the rejection order. Being unsuccessful, he approached the Apex Court. While dwelling on the question of maintainability of the writ petition, in the force of the bar contained in Article 329(b) of the Constitution of India, the Apex Court dilated on the meaning of the word ''election'' used in the said Article. It was held that the word ''election'' connotes the entire procedure to be gone through to return a candidate to the legislature and 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 was held that the rejection of a nomination paper could be used as a ground to call an election in question as comprehended in Article 329(b) and that the same could not be urged in any manner at any other stage and before any other Court. It was of the view that the ground on which the election can be called in question if allowed to be raised at any earlier stage and error if any, is rectified, Article 329(b) would be rendered nugatory. Recalling the well settled principle that where a statute creating a right or liability provides a special remedy for enforcing it, the remedy provided by that statute only must be availed of, it held in the contextual facts that the remedy by way of an election petition under the Representation of the Peoples Act, 1951 was the only redress available to the Appellant. The jurisdiction of the High Court was therefore, ruled to be excluded to deal with any matter which may arise when the election process is in progress.

In Mohinder Singh Gill and Anr. (supra), the Appellant had approached the Delhi High Court with an application under Article 226 of the Constitution of India being aggrieved by the decision of the Election Commission declining his request to conduct report for his constituency. The writ petition was dismissed. While deliberating on the scope and amplitude of Article 329(b) of the Constitution, the Apex Court reiterated its observations in N.P. Pannuswami (supra) and held that the expression ''election'' included in its sweep, the process, commencing from the initial notification and culminating in the declaration of a returned candidate. Closely examining the features of the prohibitory article of the Constitution, their Lordships held the view that the exclusion of all other remedies contemplated thereunder included the constitutional remedy under Article 226 in view of the non obstante clause. It was held that the embargo of Article 329(b) rested on two principles, namely, (i) the peremptory urgency of completing the election process without intermediate interruptions by way of legal proceedings questioning, the steps at stages in between and (ii) remedial provisions available under the enacted law excludes any other form of remedy, the right and remedy being creatures of statutes and controlled by the Constitution.

Reiterating the above view, the Apex Court in the Election Commission of India v. Shivaji (supra), disapproved the approach of the Bombay High Court in entertaining an application under Article 226 of the Constitution of India challenging the notification for election to the Legislative Council of the State of Maharastra from the local authorities constituencies as well as a review petition, following the dismissal of the writ petition, making a grievance with regard to the schedule of dates pertaining to the last date of withdrawal of candidatures and the date of poll. In that context, it was held that it was not the concern of the High Court under Article 226 of the Constitution to rectify any error even if there be any, in the process of election at any stage prior to declaration of the results of the election, notwithstanding that such error related to a mandatory provision of the statute appertaining to the election.

The precedents relating to the bar under Article 329(b) of the Constitution of India and the principles enunciated therein were held to be applicable to the situations covered by Article 243(O) by this Court in Amal Ch. Choudhury (supra).

The decision in the Election Commission of India v. Ashok Kumar and Ors. (supra) was pressed into service on behalf of the Respondent No. 1 to underline the ratio that judicial intervention is permissible even during the election process if assistance of the Court is sought to merely correct or facilitate the process and to remove obstacles therein or to preserve a vital piece of evidence likely to be lost or destroyed or rendered irretrievable by the time the results are declared and the stage is reached, to pursue legal remedy available under the election law. The Apex Court held that any decision sought and rendered would not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion thereof. In doing so, however, it was reiterated that in case the election is to be called in question, which would have the effect of interrupting, obstructing or protracting the election process in any manner, invocation of the judicial remedy has to be postponed till after the completion of the proceeding in election. A note of caution was sounded for the Courts to be circumspect and cautious while dealing with such an issue so as to ensure that entertainment of any election dispute is not opposed to the bar under Article 329(b) of the Constitution of India. Judicial intervention, it was held was allowable only on the making of a clear and strong case not meaning, however, to cause hindrance under camouflage to the process of election already initiated.

The graphic exposition of law underlines that if a challenge is made in course of the election process, the scrutiny thereof has to be postponed till the exercise is over and the election is complete. Till the declaration of the results, judicial intervention during the pendency of the process has been clearly and emphatically excluded. It is only if the impugnment of any decision during the process is in the interest thereof so as to expedite the same that the constitutional bar would not be attracted.

In the present setting of facts following the survey of the schematic lay out of the Act and the Rules, the direction of the learned Tribunal to hold a fresh election following its determination that the Respondent No. 1''s nomination was wrongly rejected cannot be said to be dehors the Act and the Rules. The impugned notification dated 7.1.2004 pursuant to such direction as well as under Rule 3 of the Rules cannot be denounced as violative of the Act or the Rules. For all intents and purposes, by the said notification, a fresh election process in terms of the judgment and order of the learned Tribunal and the Rules had been initiated. The writ petition filed by the Respondent No. 1 challenging the said notification therefore obviously called into question the process set in motion thereby. In our considered view therefore, having regard to the reliefs prayed for in the writ petition, it can unhesitatingly be held that the writ proceeding had called in question the election process to stall and terminate the same and not to further it. In other words, the decision of the Apex Court in Election Commission of India v. A. Kumar and Ors. (supra) is not applicable to the facts of the instant case and therefore does not assist the Respondent No. 1.

In face of the determination as above, according to us the view of the learned Single Judge that the observations of the learned Tribunal that the election if held on 2.4.2003 was void and the direction to hold fresh election were inessential cannot be sustained. The observation in the impugned judgment that following the declaration that the nomination of the Respondent No. 1 was valid, it was the duty of the Respondents to consider his case before issuance of the impugned notification for fresh election and the direction to the official Respondents including the Election Commission to take appropriate steps under the Act and the Rules bearing in mind that the Respondent No. 1 ''s was the only valid nomination, also cannot be upheld. In our view, the conclusion of the learned Single Judge, that consequent upon setting aside of rejection of the Respondent No. 1 ''s nomination, he had a right which could not be effaced by initiating a fresh election process, is not in accordance with the legislative intent manifested in the Act and the Rules. Such a view is in disharmony with the explicit scheme of the Act and the Rules and thus cannot be countenanced. The observations and directions as above contained in the impugned judgment and order therefore, suffer from a patent error of law warranting rectification at our end.

In Ramchandra Ganpat Shinde and Anr. (supra), the voters'' list prepared in contravention of the Maharashtra Speciffied Cooperative Societies Elections to Committee Rules, 1971 formed the basis of election of the Committee of the society. The Bombay High Court did not entertain the challenge thereto. In the facts of the case, the Apex Court held that a collusive order had been obtained from the High Court by playing fraud on the Court and that the said order was the foundation to conduct the elections. While dealing with the objection against exercise of power by the High Court to interfere with the election process, the Apex Court held that when the order of the High Court under Article 226 formed the foundation for preparation of the electoral roll contrary to or dehors the Act, Rules and the bye laws and the election was conducted on the basis thereof, the Election Tribunal constituted to decide the election dispute would have no power or jurisdiction to examine the legality of the High Court''s error as it would then be destructive of judicial discipline. It held that the order could neither be impugned in the election petition, nor the Election Tribunal would have the power or jurisdiction to determine the correctness or otherwise of the order of the High Court and that therefore, the only appropriate forum would be the High Court itself or in appeal to the Supreme Court to correct the error if need be. It held the view that as the High Court was apprised of the necessary facts, it ought to have corrected the error and by omitting to do so it failed to exercise its power.

In M.V. Venkatararnana Bhat (supra), which involved election of Pradhan to the Sullia Mandal Panchayat in the State of Karnataka under the relevant rules, at the intervention of the Karnataka High Court, at the instance of the 5th Respondent, two nominated members were restrained from voting. The writ petition filed by the defeated candidate challenging the election was dismissed. In the prevailing facts, the Apex Court being satisfied that the writ petition filed by the 5th Respondent was not bonafide, observed that it was the duty of the High Court to see that its judicial process was not abused and its order did not become an instrument or aid to overreach the adversary and in such a situation suitable remedy ought to be extended. The Apex Court in such factual premises set aside the election of the 4th Respondent, the beneficiary of the restraint order of the High Court.

In Boddula Krishnaiah and Anr. (supra), the controversy centered around the election to the Gram Panchayat in the Nalgonda District of Andhra Pradesh. In the draft roll prepared, the names of 94 persons which initially found place were later on deleted. Before the elections were held, by an order, the Andhra Pradesh High Court in the writ petition filed, allowed the 94 persons to participate in the election who, however, could not vote. In a subsequent writ petition, a direction was sought for to permit these persons to exercise their franchise. The High Court by an interim order restrained declaration of the results. On a prayer made to vacate the said order, the High Court directed the concerned authority to make an enquiry at the end of which, it was brought on record that only 20 persons were eligible to be included in the voters list. On this, the High Court directed the 20 persons to be allowed to participate in the election. The Apex Court disapproved the approach of the High Court and taking note of the constitutional bar contained in Article 243(O) held that as the election process had already been set in motion, it was not justified in injuncting the results and directing fresh elections by allowing participation of the 20 persons. The impugned orders were therefore, set aside.

The decision of the Apex Court in Dwarka Nath (supra) has been relied upon on behalf of the Appellant to drive home the point that in exercise of the plenary powers of the High Court under Article 226 of the Constitution of India, it can reach injustice wherever it is found and remedy the malaise in the interest of rule of law.

In Air India Statutory Corporation, etc. Vs. United Labour Union and others [overruled], failure to enforce the provisions of Contract Labour (Regulation and Abolition) Act, 1970 was alleged. The Apex Court while dwelling on the essence of the plenary powers of a writ Court expressed itself in the following words:

The founding fathers placed no limitation or letters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinal in the qui vive is to mete out justice in given facts. On finding that either the workmen were engaged in violation of the provision of the Act or were continued as contract labour, despite prohibition of the contract labour u/s 10(1), the High Court has, by judicial review as the basic structure, constitutional duty to enforce the law by appropriate directions.

Having regard to the host of authorities and the legal principles adumbrated therein, we are of the view that the facts in hand present a situation warranting interference of this Court to rectify a manifest error of law impairing the process of election involved. The directions issued by the learned Single Judge and the election of the Respondent No. 1 on the basis thereof as the Zila Parishad Member from Bameng West Anchal Samity Constituency, fly in the face of the Act, Rules and the constitutional bar under Article 243(O) and therefore cannot be sustained. The impugned judgment and order is therefore set aside. Consequently, the decision of the State authorities declaring the Respondent No. 1 to be elected as Zila Parishad Member from Bameng West Anchal Samiti Constituency is also hereby quashed. The notification dated 7.1.2004 is upheld.

In the result, the appeal is allowed. No costs.