Vijay Nahar vs State Of H.P. & Others

Jyotsna Rewal Dua, J

Notice. Mr. R.R. Rahi, learned Deputy Advocate General and Mr. Ajeet Saklani, learned Counsel appear and accept service of notice on behalf of

respondents No. 1, 3 & 4 and respondent No. 2, respectively.

Heard learned Counsel for the parties.

The petitioner contested election for the post of Member of Panchayat Samiti for Ward No. 19, Jakhera â€" Bangarh, District Una, H.P. The

elections were held on 23rd January, 2021. The petitioner remained unsuccessful therein. Vide his letter dated 23rd January, 2021, petitioner requested

the Returning Officer/respondent No. 4 for recounting of votes. The request of the petitioner was allowed by the Returning Officer. The petitioner,

however, has grievance in respect of the process adopted while recounting of the votes. Learned Counsel for the petitioner submits that the H.P.

Panchayati Raj (Election) Rules, 1994, in particular Rules 74, 75 and 79 were not followed during recounting of the votes. It is further pleaded in the

petition that though the petitioner has to file an election petition for recounting of votes, however, since the election petition is to be heard by the same

returning Officer, therefore, it would be in violation of the principles of natural justice. Accordingly, he has preferred the instant writ petition for the

following reliefs:

“(i) Issue a writ of mandamus directing the respondent No. 3 to allow recounting of votes as per the procedure enshrined under the H.P.

Panchayati Raj (Election) Rules, 1994 and/or;

(ii) Issue a writ of mandamus for appointment of Authorized Officer other than the respondent No. 4 for presenting the Election petition for recounting

of votes for the Wad No. 19 of Jakhera â€" Bangarh of District Una for Election of member of Panchayat Samiti held on 23.01.2021.â€​

The writ petition filed by the petitioner is not maintainable at all as an efficacious and alternate remedy is available to the petitioner for redressal of

his grievance under the provisions of H.P. Panchayati Raj Act, 1994. Section 162 of the H.P. Panchayati Raj Act provides that no election under the

Act shall be called in question except by an election petition presented in accordance with the provisions of the chapter and Section 175 of the Act

enumerates the grounds for declaring election to be void. The above sections run as under:

“162. Election petition:- No election under this Act shall be called in question except by an election petition presented in accordance with the

provisions of this Chapter.â€​

“175. Grounds for declaring election to be void.-(1) If the authorized officer is of the opinion-

(a) that on the date of his election the elected person was not qualified, or was disqualified to be elected under this Act; or

(b) that any corrupt practice has been committed by the elected person or his agent or by any other person with the consent of the elected person or

his agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns the elected person, has been materially affected-

(i) by the improper acceptance of any nomination, or

(ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iii) by any non-compliance with the provisions of this Act or of any rule made under this Act, the authorized officer shall declare the election of the

elected persons to be void.â€​

In this regard it will be appropriate to refer to a decision rendered by a division Bench of this Court on 6.1.2021 in CWP No. 5987 of 2020

alongwith other connected matters, titled Manish Dharmaik vs. State of Himachal Pradesh and others, wherein after considering the limitation in

exercise of judicial review in electoral matters imposed under Article 243-O of the Constitution of India, it was observed as under:

We are also conscious of the limitations set forth on such exercise of judicial review in view of bar of jurisdiction imposed by Article 243-O of the

Constitution of India, which is quoted hereinbelow :-“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 243K, 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.â€​

In Bal Krishan and others Vs. State of H.P. and others 2015 (6) ILR (HP) 914, this Court considered the preliminary objections relating to

maintainability of the writ petitions questioning the constitution, re-constitution, delimitation, reservation of the Panchayat areas, merger of Panchayats

with Municipal areas and vice - versa, change of headquarters of Gram Panchayats, amalgamation and alteration of respective Panchayat areas on

ground that such actions of respondents were in violation of H.P. Panchayati Raj Act, 1994, Himachal Pradesh Panchayati Raj (Election) Rules 1994

etc. After considering entire legal gamut, the position was summed up in following operative para 33:-

“33. The proposition which can now be culled out from the above noted judgments of the Hon’ble Supreme Court and other High Courts

including this Court is that:-

(1) The word ""election"" appearing in Article 243-O and the provisions contained in the 1994 Act and the rules framed thereunder bears larger

connotation. It embraces and includes all steps commencing from the date of notification by the Competent Authority, whereby the electorates are

called upon to elect Pradhans and Up-Pradhans and ending with declaration of result. Reservation of offices of Pradhan and Wards in favour of

Scheduled Castes, Scheduled Tribes, Backward Classes and Women, preparation, printing and publication of electoral rolls (provisional and final),

filing of nomination papers, scrutiny of nomination papers and withdrawal thereof, publication of the list of eligible candidates, allotment of symbols,

appointment of election agents, the conduct of poll, counting of votes, declaration of results and all other ancillary steps taken for the purpose of

holding elections fall within the ambit of the term ""election"". {N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Mohinder Singh Gill v.

Chief Election Commissioner, Election Commission of India v. Shivaji and Election Commission of India vs. Ashok Kumar (supra).

(2) (i) The bar contained in Article 243-O, which begins with non-obstante clause, debars all Courts from entertaining any challenge to law relating to

delimitation of constituencies or allotment of seat made or purporting to be made under Article 243 -K or election to the Panchayats. This bar also

operates against the High Court's power of judicial review under Article 226. (N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Durga

Shankar Mehta v. Raghuraj Singh, Election Commission of India v. Shivaji and Election Commission of India v. Ashok Kumar (supra)}

(ii) The proposition contained in Clause (i) above is subject to the condition that challenge to the delimitation may be entertained in exceptional cases

where no objections were invited and no hearing was given provided that such challenge is made before issue of notification for holding election.

{State of U.P. v. Pradhan Sangh Kshetra Samiti (supra)}.

(iii) The bar contained in Article 243-O (a) would operate immediately after publication of notification of delimitation of Panchayat areas even in cases

where the same is challenged prior to issuance of notification of election.

(iv) The bar contained in Article 243-O(b) operates only till the adjudication of election dispute by an adjudicatory forum created by or under any law

made by the Legislature of the State. An order made by an adjudicatory forum constituted under the law made by the State Legislature can be called

in question by filing a petition under Article 226 of the Constitution.

(3) The bar contained in Article 243-O operates at all stages of the election i.e. notification issued by the State Election Commission calling upon the

electorate to elect Pradhans and Up-Pradhans; reservation of offices of Pradhans in favour of Scheduled Castes, Scheduled Tribes, Backward

Classes and Women; preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny and withdrawal

thereof; allotment of symbols; appointment of election agents; counting of votes and declaration of result.

(4) The bar contained in Article 243 -O(b) does not operate qua challenge to the constitutionality of a statutory provision relating to elections, though,

even in such a case, the High Court will be extremely loath to pass an interlocutory order which has the effect of stalling or jeopardizing the process of

election or which may result in the constitutional hiatus on account of indirect violation of Article 243-K(3) read with Article 243-K(1).

Where the petitioner raises grounds which is not barred under the aforesaid provisions of the Constitution and is not covered in any one of the

grounds as prescribed under Section 175(1) of the Himachal Pradesh Panchayati Raj Act, then the bar of alternate remedy by way of election petition

under Section 162 of the Act and further bar under Article 243-O of the Constitution would not be attracted. Even in such cases, the Court will not

normally pass interlocutory orders, which has effect of interrupting, obstructing or protracting the election.â€​

(emphasis supplied)

Before High Court of Karnataka, in Smt. Latha Vs. State of Karnataka CWP Nos. 22740-762/2016, rendered on judgment rendered on 06.01.2016,

allocation of category-wise reservation to Zila Panchayats for the posts of Pradhans/Up-Pradhans was contended to be in breach of relevant Statute

and the Rules providing such reservation. State took up preliminary objection regarding maintainability of the petitions in view of Article 243-O of the

Constitution of India. The Court held that allotment of seats for the post of Pradhans in Zila Panchayat would fall within the ambit and scope of Cluse

(a) of Article 243 of Constitution of India, therefore, writ jurisdiction of High Court cannot be invoked. The only remedy provided and allowed by the

Constitution was of an Election Petition before the Competent Authority.â€​

It will also be appropriate to take note of a judgment rendered by Hon’ble Apex Court in AIR 2020 Supreme Court 3393, titled Laxmibai v.

Collector, Nanded, wherein, after tracing the legal terrain, on the maintainability of writ petitions under Article 226 of the Constitution of India vis-a-vis

Article 243-O of the Constitution of India in respect of limitation in exercise of judicial review by the Court in election matters, it was held 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. The relevant paragraphs of the judgment are extracted hereinafter:

“42. This Court again examined the question in respect of raising a dispute relating to an election of a local body before the High Court by way of a

writ petition under Article 226 of the Constitution of India in a judgment reported as Harnek Singh v. Charanjit Singh & Ors. It was held as under:

“15. Prayers (b) and (c) aforementioned, evidently, could not have been granted in favour of the petitioner by the High Court in exercise of its

jurisdiction under Article 226 of the Constitution of India. It is true that the High Court exercises a plenary jurisdiction under Article 226 of the

Constitution of India. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious

alternative remedy is available therefor. (See Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd., 2 (2005) 8 SCC 242: 2005 (7) SCALE

290.)

Article 243-O of the Constitution of India 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.

In C. Subrahmanyam Vs. K. Ramanjaneyullu and Others : (1998) 8 SCC 703, a three-Judge Bench of this Court observed that a writ petition

should not be entertained when the main question which fell for decision before the High Court was non-compliance of the provisions of the Act

which was one of the grounds for an election petition in terms Rule 12 framed under the Act.â€​

Section 10A of the 1959 Act and Section 9A of the 1961 Act read with Articles 243-K and 243-O, are pari materia with Article 324 of the

Constitution of India. In view of the judgments referred, we find that the remedy of an aggrieved person accepting or rejecting nomination of a

candidate is by way of an election petition in view of the bar created under Section 15A of the 1959 Act. The said Act is a complete code providing

machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises

extraordinary jurisdiction under Article 226 of the Constitution of India but such jurisdiction is discretionary in nature and may not be exercised in view

of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India.

Once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy. It is a prudent discretion to be

exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but

relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been

entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the

date of election does not warrant any interference.â€​

Notwithstanding the above legal position, it is the pleaded case of the petitioner that remedy is available to him by way of an election petition.

Therefore, in the above circumstances, the instant writ petition is not maintainable at all and the same is accordingly dismissed with liberty reserved

to the petitioner to avail appropriate legal remedy in accordance with law by taking all the submissions which are available to him both in law and on

facts and seek appropriate direction at appropriate stage. Pending application(s), if any, shall also stand disposed of.