Vishwabandhu Gupta vs Returning Officer and Another

R.M. Sahai, J.—The short question of law that arises for consideration in this writ Petition is if this Court is precluded from exercising its jurisdiction under Article 226 of the Constitution once election process of a local body has started irrespective of the error howsoever manifest and palpable it may be.

Nomination of Petitioner, a candidate for the office of Chairman of Municipal Board, was rejected by the returning officer on 21st October 1988 as he was removed from the office of Chairman of Town Area in June 1976 u/s 7A of the Town Areas Act, the relevant portion of which is extracted below:

7A. Removal of Chairman or a member of committee-

(1) The Prescribed Authority or, where an authority has not been prescribed, the District Magistrate, may remove a Chairman or any member of the committee who, in its or his opinion-

(a) has been guilty of gross misconduct or failure in the discharge of his duties, or

Provided, firstly, that before making an order removing the Chairman or the member, as the case may be, he shall be allowed an opportunity to submit his explanation on the charges or charge against him;

Provided, secondly, that no order for removal shall take effect unless it is confirmed by the State Government.

(2) A member or Chairman removed under this Section shall not be eligible for further election or nomination as a member or Chairman for a period of four years from the date of his removal.

That the order is manifestly erroneous for reasons more than one and each one of them is formidable could not be seriously disputed. For instance it is in teeth of Sub-section (2) extracted above. The ineligibility to contest for the post of Chairman came to an end by efflux of time after four years. The disqualification stood removed automatically by operation of law. The order dated June 12, 1976 could not furnish foundation for rejecting nomination of Petitioner. Feeble attempt was made to justify the order under Sub-section (4) of Section 41 of the Municipalities Act. The Section deals -with the disabilities of members of Municipal Board which includes the President as well by virtue of Section 49 of the Act. It is reproduced below:

41(4). A member removed under any other provision of the preceding Section shall not be so eligible until be is declared for reasons to be specified to be no longer ineligible, and he may be so declared, by an order of the State Government or the Prescribed Authority whichever of these authorities passed the order of removal.

Sub-section (3) of Section 40 is more or less analogous to Section 7A of the Town Areas Act except that the bar under this Act is for five years unless the Government grants exemption. What is manifest from these legislative provisions is that removal due ro reasons mentioned in these Sections is time bound. And Sub-section (4) of Section 41 has no application to such removal. Therefore even if the provisions of Municipalities Act would nave become applicable if the Town Area would have been upgraded in 1979 the Petitioner would have become eligible in 1980 and no declaration of State Government removing ineligibility would have been necessary. Further admittedly the Town Area was upgraded as Municipal Board in 1986 whereas the disability of Petitioner ceased in 1980.

All this academic exercise had to be taken because it appears the Petitioner did not produce the order dated 12-6-1976 in which the order of removal passed against the Petitioner in June 1976 was itself quashed by this Court. But the fact remains that the effect of the order dated 12-6-1976 was that the Petitioner could not be deemed to have been removed u/s 7A of the Town Areas Act. Consequently he was not disqualified at any point of time.

But what has been urged vehemently by the Counsel for the opposite party is that filing of nomination is included in election process therefore this Court is debarred from entertaining any writ Petition under Article 226 of the Constitution. And the remedy of Petitioner is to challenge the election by way of election Petition under the statute. Reliance has been placed on the case of Nanhoo Mal and Others Vs. Hira Mal and Others, . It was a decision under Municipalities Act. The objection to the procedure of election was based on failure to comply with Rule 6 of U.P. Municipalities (Conduct of Election of President and Election Petition) Order, 1964. The Court while entertaining the Petition did not stay elections but it set aside the election for breach of Rule 6. In effect the election of President of Municipal Board was set aside for violation of provisions of rules which is one of the grounds on which election of President could be set aside under 43B of the Act. It was held by the Hon''ble Court that an election for non-compliance of any provision of the Act or rules under Sub-clause (c) of Section 43B could be set aside only if it was held, that the result of the election has been materially effected by such non-compliance. The High Court however erred, because it did not consider whether the result of the election had been materially effected by non-compliance With the rule in question. On the general principle the Hon''ble Court held.

Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election Petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election Petition to be presented after the election is over and there is no remedy provided at any intermediate stage:

In, view of these circumstances the Hon''ble Court did not examine:

Whether there can be any extraordinary circumstance in which the High Courts could exercise their power under Article 226 in relation to elections it is net now necessary to consider.

But this occasion arouse in S.T. Muthusami Vs. K. Natarajan and Others, . The Hon''ble Court approved the principle laid down by a Full Beach of the Madbya Pradesh High Court in Malam Singh Vs. The Collector, Sehore, M.P. and Others, which is extracted below:

There is no constitutional bar to the exercise of writ Jurisdiction in respect of elections to Local Bodies such as Municipalities, Panchayats and the like. However, as it is desirable to resolve election disputes speedily through the machinery of election Petitions, the Court in the exercise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if the alternative remedy of an election Petition is available. So, their Lordships of the Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, stated:

....though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be, therefore, writ Petitions should not be lightly entertained in this class of cases.

Even in Gujarat University Vs. N.U. Rajguru and Others, on which reliance was placed by learned Counsel for the opposite party it was held by the Hon''ble Court.

It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statutes while considering an election-dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution by passing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify by passing the alternative remedies. In the instant case, there existed no circumstances justifying departure from the normal rule as even the challenge to the validity of statute (?) was not pressed by the Respondents before the High Court.

Thus there is neither any constitutional bar like the one in Article 329 of the Constitution nor absolute bar due to availability of remedy to challenge election under the Act to entertain a Petition under Article 226 of the Constitution once the election process of a local body has commenced. Except that the circumstances warranting interference should be extraordinary. From what has been narrated earlier there can be no doubt that the order being manifestly erroneous resulting in depriving Petitioner from contesting the election which is sine qua non of democratic process a situation has arisen in which it is just and proper for this Court to interfere in exercise of power under Article 226 of the Constitution.

By removing the order such as the impugned one the Court shall not be interfering with election process but enabling it to proceed in accordance with law. Although wrong rejection of a nomination paper or incorrect inclusion is a specific ground in Clause (b) of Section 43B of Municipal Act in which election Petition can be filed but unlike Clause (c) the vitiation of election does not depend on its being materially effected as was the case in Nanhoo Mal''s (supra) since improper rejection of nomination nullifies the election the Petitioner cannot be debarred from invoking extraordinary jurisdiction of this Court in view of facts stated above because he has an alternative remedy by way of election, Petition.

In the result the writ Petition succeeds and is allowed. The order passed by the Returning Officer rejecting the nomination paper of the Petitioner for election to tbe office of Chairman Municipal Board Gulaothi, District Bulandshahr, is quashed. It is directed that the Petitioner be allotted symbol and he be permitted to contest election to the office of the President which is scheduled to take place on 12th November, 1988.

A copy of this order may be given to the Counsel for the Petitioner on payment of usual charges within three days.