2005 Supreme(SC) 1346

2005(7) Supreme 182
Supreme Court of India
(From Punjab and Harayna High Court)
Ashok Bhan & S.B. Sinha, JJ.
Harnek Singh —Appellant
versus
Charanjit Singh & Ors. —Respondents
Civil Appeal No. 6325 of 2005
(Arising out of S.L.P. (C) No. 21724 of 2003)
Decided on 7-10-2005
Counsel for the Parties :
For the Appellant : S. Muralidhar, Sudhir Walia and Mahinder Singh Dahiya, Advocates.
For the Respondents : D.P. Singh, Addl. Advocate General, Arun K. Sinha, Ms. Avneet Toor, R.S. Randhawa and Ms. S. Janani, Advocates.

Headnote:Constitution of India—Articles 226 and 243-O—Punjab State Election Commission Act, 1994—Section 89(1)(d)(iv)—Whether a writ Court should entertain a dispute as regard validity or otherwise of an election?—Appellant and respondent contested an election for post of Chairman Gram Panchayat—Meeting was called for holding election on 28.1.2003—Party led by 1st respondent allegedly created commotion and stopped the process of electing the Chairman—Election process was adjourned by Returning Officer — Respondent questioned authority of Returning Officer to fix 30.1.2003 for holding re-election—Deputy Commissioner relying on Rule 45(1) of Punjab Panchayat Rules refused to refer the matter to Election Commission—High Court accepting contention of respondent that Returning Officer had no power to fix a date of the adjourned meeting to elect Chairman set aside the election of petitioner—Appeal—Writ jurisdiction being discretionary in nature may not be exercised in view of an efficacious alternative remedy available therefore—State Election Commission Act provided for remedy in the Act—Impugned judgment was liable to be set aside.

       Held : It is, therefore, clear that on 30th January, 2003, only lot was to be drawn and, thus, the election process which was started on 28th January, and could not be completed owing to commotion created by the Respondents’ group, was to be completed. It may be true that the Respondent herein questioned the jurisdiction of the Deputy Commissioner and/or the Returning Officer in fixing a date for election but in his writ petition he had prayed inter alia for the following:

       “(a) issue a writ, order or direction quashing the entire process, manner and method adopted by respondent No.3 in holding the election and for quashing the result declared by respondent No.3 in declaring respondent No.4 elected as Chairman of the Block Samiti to be illegal and bad.

       (b) issue a writ, order or direction, quashing the action of respondent No.3 in rejecting the valid vote case in favour of the petitioner, the same being actuated with malice and motive and otherwise being arbitrary and illegal.

       (c) issue a writ, order or direction declaring the petitioner elected as Chairman of the Block Samiti on the basis of votes cast in his favour if necessary by calling for the records of the election and ballot papers and after examining the same.

       (d) issue a writ, order or direction commanding the respondents to restart the election process from the stage respondent No.3 illegally adjourned and reassemble the meeting or alternatively, to direct the respondent to hold a fresh election by following the process of law and the procedures and rules prescribed in the Act and the Rules.

       (e) issue a writ, order or direction quashing the order passed by DC on the representation filed by the petitioner, the same being illegal and in violation of the statutory provision.

       (f) dispense with service of advance notice on the respondents.”

       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. 2005 (7) SCA LE 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 (supra), a 3-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 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. (Paras 13 to 17)

       Section 89(1)(d)(iv) of the Punjab State Election Commission Act 1994 reads, thus :

       “89. Grounds for declaring election to be void.—(1). Subject to the provisions of sub-section (2), if the Election Tribunal is of the opinion,-

       *** *** ***

       (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected,–

       (i) *** ***

       (ii) *** ***

       (iii) *** ***

       (iv) by any non-compliance with the provisions of the Constitution of India or of this Act or of any rules or orders made under this act;

       the Election Tribunal shall declare the election of the returned candidate to be void.”

       In view of the aforementioned provision, which is in pari materia with Section 100(1)(d)(iv) of the Representation of People Act, a writ petition may not be held to be maintainable. In this view of the matter, we are of the opinion that it was not a fit case where the High Court should have exercised its writ jurisdiction. Furthermore, it was not even a case where the Respondent was not aware of the postponed date. It is not in dispute that the Respondent was present on the adjourned date of poll but refused to sign the proceeding book as would appear from the records which have been produced before us. The Respondent, however, contested the said statement contending that the same had been done with a mala fide motive. But, it is not in dispute that he took part in the proceedings. We, therefore, do not think that it was a fit case in which the High Court should have exercised its discretionary jurisdiction. (Paras 21 to 25)