Where a remedy by way of an election petition is available to a petitioner, the High Court should not interfere before the remedy by way of an election petition is exhausted.

MODI, J.

( 1 ) THIS is a petition by Tekchand under Article 226 of the Constitution praying for a writ of certiorari in connection with the rejection of his nomination paper.

( 2 ) THE petitioner is a resident of Karanpur which is a municipality under the rajasthan Town Municipalities Act, 1951, 23 of 1951 (hereinafter referred to as the Rajasthan Act ). The case of the petitioner is that he stood as a candidate for the municipal elections of the Karanpur municipality, which were scheduled to be held on 5-12-1955, and filed his nomination paper from Ward No. 3 for that purpose. Opposite parties 1 to 3 also filed their nomination papers from the same ward. On the day fixed for the scrutiny of the nomination papers, opposite party 1 banwarilal objected to the nomination paper of the petitioner on certain grounds which are not material for the purposes of the present application. The Returning officer who is opposite party 4 accepted this objection and rejected the nomination paper of the petitioner. Consequently, the petitioner has come forward with this petition and he prays that his nomination paper was wrongly rejected by the Returning Officer, and, therefore we should quash that order. The petitioner further stated in his application that, he is entitled to the writ of certiorari because Section 20 of the rajasthan Act bars a civil suit and the remedy by way of an election petition is only a post-election remedy and it would be no consolation to a person whose nomination paper is wrongly rejected to be told that he must let the election go and then have it set aside by an election petition.

( 3 ) THE application has been opposed by the Returning Officer (opposite party 4)and Banwarilal (opposite party 1) although no written reply has been filed on behalf of the latter. The stand taken by the Returning Officer in his reply is that the nomination paper of the petitioner was rightly rejected (with which aspect of the matter we do not propose to deal as already stated above); and, secondly, that the petitioner has a remedy by way of an election petition, and consequently he is not entitled to any relief by way of a writ of certiorari in the extraordinary jurisdiction of this Court.

( 4 ) THE first question for determination before us is whether the petitioner has a remedy by way of an election petition or not against the alleged improper rejection of his nomination paper toy the Returning Officer, and the second question is whether where a remedy by way of an election petition is available to the petitioner, this Court should interpose at this stage and consider his application on the merits.

( 5 ) WE take up the first question first. The determination of this question depends upon the interpretation of Section 19 of the Rajasthan Act. The material portion of section 19 is in these terms:

(1) At any time within 10 days after the date of the declaration of the result of an election, any candidate who stood for election, or any ten persons qualified to vote at that election may apply. . . . to the Judge having jurisdiction over the district within which the election has been or should have been held for the determination of the validity of the election.

(2) The Judge may, after such enquiry as he deems necessary and subject to the provisions of Sub-section (3), pass an order confirming or amending the declared result of the election or setting the election aside. . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) (a) The Judge, if satisfied that a candidate has within the meaning of sub-section (4) committed any corrupt practice for the purpose of that election, shall declare the candidate disqualified. . . . . . . . . . and shall set aside the election of such candidate if he has been elected. (b) If in any case to which Clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall after a scrutiny and computation of the votes recorded in favour of each such