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Gujarat High Court
Judgename :P.R.GOKULAKRISHNAN, R.A.MEHTA
AMBABHAI POPATBHAI - Appellant
Versus
B.A.PANDEY - Respondent
L.P.A. 179 of 1989
Decided On : 06/17/1989
Gujarat Gram and Nagar Panchayats Election Rules 1962 – Rule 10 – Gujarat Panchayats Act 1961 – Section 24 – Constitution of India – Article 226 – Writs – Mandamus – Prohibition – Certiorari – This Letters Patent Appeal is against order passed by learned single Judge dismissing Special Civil Application – In Special Civil Application appellant herein has prayed for quashing orders of authorities concerned which are at Annexures A and B to Special Civil Application and has prayed for accepting his nomination paper for post of Sarpanch of Gram Panchayat – It is clear from the facts of case that election process has started and Returning Officer has rejected nomination paper of appellant herein after scrutiny of nominations as per Rule 10 of Gujarat Gram and Nagar Panchayats Election Rules 1962 – Rejection is on ground that appellant has mentioned that his name is at Serial of Voters List while as a matter of fact it is at Serial – Thus it is clear from facts alleged that appellant wants to put forth his case on ground that it is an improper rejection of his nomination paper – Section 24 of Gujarat Panchayats Act 1961 clearly states that validity of election of a member of panchayat has to be determined by a Judge as per procedure set up thereunder – Section 24 (1) reads as follows:"24 (1) If validity of any election of a member of a Panchayat is brought in question by any person contesting election or by any person qualified to vote at election to which such question refers such person may at any time within fifteen days after the date of declaration of results of election apply to Civil Judge and if there be no Civil Judge then to Civil Judge having ordinary jurisdiction in area within which election has been or should have been held for determination of such question" – Hence as per provision now available to appellant course open to him is by filing an election petition and he cannot invoke jurisdiction of this Court under Art. 226 of Constitution of India for setting aside orders of authorities below and to have his nomination paper accepted – Held, As far as present case is concerned there is a candidate who has to be declared as elected since two other candidates nomination papers have been rejected – Third candidate who is in field and whose nomination paper has been accepted will be automatically declared elected and if at all other candidates whose nomination papers have been rejected have any grievance remedy for them is by way of an election petition and not by invoking jurisdiction of this High Court under Art. 226 of Constitution of India – Both our High Court and Supreme Court have in many decisions deprecated interference in process of election by Courts after election process has started – It has also been held that the only remedy available to an aggrieved candidate in such cases is by way of an election petition after election is over and not to stall the election in middle – It is unnecessary for us to quote various decisions in this field since it is a settled principle that when there is an efficacious alternative remedy available for appellant he cannot be permitted to come by way of a writ petition under Art. 226 of Constitution of India – Learned single Judge has correctly appraised all these facts of case and has dismissed Special Civil Application – Letters Patent Appeal is Dismissed
( 1 ) THIS Letters Patent Appeal is against the order passed by the learned single Judge dismissing Special Civil Application No. 3862 of 1989. In the Special Civil Application the appellant herein has prayed for quashing the orders of the authorities concerned which are at Annexures A and B to the Special Civil Application and has prayed for accepting his nomination paper for the post of Sarpanch of Kapadiali Gram Panchayat. It is clear from the facts of the case that the election process has started and the Returning Officer has rejected the nomination paper of the appellant herein after scrutiny of nominations as per Rule 10 of the Gujarat Gram and Nagar Panchayats Election Rules 1962 The rejection is on the ground that the appellant has mentioned that his name is at Serial No. 107 of the Voters List while as a matter of fact it is at Serial No. 40. Thus it is clear from the facts alleged that the appellant wants to put forth his case on the ground that it is an improper rejection of his nomination paper. Section 24 of the Gujarat Panchayats Act 1961 (Gujarat Act No. VI of 1962) clearly states that the validity of the election of a member of the panchayat has to be determined by a Judge as per the procedure set up thereunder. Section 24 (1) reads as follows:"24 (1) If the validity of any election of a member of a Panchayat is brought in question by any person contesting the election or by any person qualified to vote at the election to which such question refers such person may at any time within fifteen days after the date of the declaration of the results of the election apply to the Civil Judge (Junior Division) and if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division) (hereinafter referred to as the Judge) having ordinary jurisdiction in the area within which the election has been or should have been held for the determination of such question". Hence as per the provision now available to the appellant the course open to him is by filing an election petition and he cannot invoke the jurisdiction of this Court under Art. 226 of the Constitution of India for setting aside the orders of the authorities below and to have his nomination paper accepted.
( 2 ) MR. Mishra the learned Counsel appearing for the appellant assails the order passed by the learned single Judge stating that the learned single Judge ought to have admitted the Special Civil Application in view of the decision in the case of Navuba v. Returning Officer reported in [1982 (2)] XXIII (2) GLR 397. In [1982 (2)] XXIII (2) GLR 397 (supra) the nomination of the reserved seat for women swat rejected by the Returning Officer on the ground that on scrutiny of the nomination paper it was found that the candidate has not mentioned her number in voters list. Mr. Mishra on analogy states that this case will squarely apply to the facts of the present case and at such the learned single Judge ought to have admitted the Special Civil Application and granted the interim relief asked for therein. It will be interesting to extract the relevant portion of the judgment in [1982 (2) XXIII (2) GLR 397 (supra) in order to appreciate the arguments advanced by Mr. Mishra. The relevant portion reads as follows (at page No. 398 of GLR):"held: that in the instant case on the peculiar facts it is found that the remedy under Sec. 24 of the Gujarat Panchayats Act would not be available to the petitioners herein. A mere look at Sec. 24 shows that remedy by way of election petition contemplated by the said section pertains to a case where validity of election of a member the Panchayat is brought in question by any person contesting the election or qualified to vote at the election which such question refers. Consequently in such an election petition election of the concerned returned candidate can be brought in challenge by either unsuccessful contestant or even by other persons who are qualified to vote at the concerned election. I
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