A writ petition is not maintainable to challenge an order of rejection of nomination paper by the Returning Officer/competent authority having regard to the provisions in Article 243-O of the Constitution as well as section 15-A of the MVP Act read with section 15 thereof.

JUDGMENT :

(Through Video Conference)

In Re: M.A.T. 1165 of 2023 with CAN 1 of 2023

1. This appeal is directed against the judgment and order dated June 21, 2023, whereby the writ petition of the respondent nos. 1 to 3 herein being WPA 14718 of 2023 was disposed of.

2. As appears from the order under appeal, the writ petitioners approached the learned Single Judge with the case that they had submitted their nominations for contesting the Panchayat Elections 2023. Their names were published in the list after scrutiny. However, in the final list, their names are absent. No reason for disappearance of their names from the final list of contesting candidates has been furnished. They prayed for a direction on the respondent authorities including the State Election Commission to allow them to contest the 2023 Panchayat elections.

3. It was submitted on behalf of the State that once the list of final candidates has been published, the Election Commission cannot permit other candidates to contest the election. It was also submitted that since the dispute related to an election, the writ petitioners should seek remedy by way of filing election petition after completion of election. The court, in its writ jurisdiction, ought not to interfere in the matter.

4. The learned Judge disposed of the writ petition with the following direction:-

“It appears from the submissions made on behalf of the parties and upon perusal of materials on record that the nomination papers of the petitioners were scrutinized and their names published in a list. When the final list was published the names of the petitioners disappeared.

The petitioners assert that they did not file any application for withdrawal of their nominations. If the petitioners have not withdrawn their nominations voluntarily, then the State Election Commission ought not to have removed their names from the final list.

There is nothing on record to suggest that there was voluntarily withdrawal of the nomination.

In view of the above, the State Election Commission through the Panchayat Returning Officer is directed to permit the petitioners to contest the election. Steps shall be taken by the Commission in compliance of the above direction.”

5. Being aggrieved, The West Bengal State Election Commission and its secretary have come up by way of this appeal.

6. Appearing for the appellants, Mr. Kishore Dutta, learned Senior Advocate, urged the following legal points:-

“(i) Article 243-O of the Constitution is a bar to interference by courts in electoral matters. Sub-clause (b) of the said Article provides that “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.”

(ii) Section 79 of the West Bengal Panchayat Elections Act, 2003, read with Section 93 of the Act provide the writ petitioners with adequate remedy by way of filing of election petition. One of the grounds for declaring an election to be void is that any nomination has been improperly rejected. The relevant portions of Section 79 and Section 93 of the 2003 Act are set out hereunder:-

“79. Disputes as to elections.- (1) If any dispute arises as to the validity of an election under this Act, any person entitled to vote at such election may, within thirty days after the date of declaration of the results of such election, file a petition, calling in question such election on one or more of the grounds specified in sub-section (1) of section 93 and section 94—

(a) before the Civil Judge having jurisdiction where such election is in respect of a Gram Panchayat or a Panchayat Samiti,

(b) before the District Judge of the district, where such election is in respect of a Zilla Parishad or the Siliguri Mahakuma Parishad.

93. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the Court is of opinion—

(a) that on the date of his election a returned candidate was no