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IN THE HIGH COURT OF ORISSA
B.L. Hansaria, K.C. Jagadeb Roy, JJ.
MAHESWAR TRIPATHY AND OTHERS - APPELLANT
Versus
STATE OF ORISSA AND OTHERS - RESPONDENT
Decided On : 11-05-1992
ELECTION - WRIT PETITION - ELECTION DISPUTES - JURISDICTION - ELECTION PETITIONS - ALTERNATIVE REMEDY - EXTRAORDINARY CIRCUMSTANCES - INTERPRETATION OF STATUTORY PROVISIONS - ELECTION PROCESS - DELAY IN HOLDING ELECTIONS - ELECTION OF GRAM PANCHAYAT AND PANCHAYAT SAMITI - REJECTION OR ACCEPTANCE OF NOMINATION PAPERS - ELECTION OF PRESIDENT OF MUNICIPAL BOARD - ELECTION OF MEMBERS OF BAR COUNCIL - ELECTION OF MEMBERS OF UNIVERSITY COURT - ELECTION TO LEGISLATIVE ASSEMBLIES - ELECTION TO LOCAL BODIES - ELECTION TO GRAM PANCHAYAT AND PANCHAYAT SAMITI - REJECTION OR ACCEPTANCE OF NOMINATION PAPERS - ELECTION OF PRESIDENT OF MUNICIPAL BOARD - ELECTION OF MEMBERS OF BAR COUNCIL - ELECTION OF MEMBERS OF UNIVERSITY COURT - ELECTION TO LEGISLATIVE ASSEMBLIES - ELECTION TO LOCAL BODIES
Fact of the Case:
Numerous petitions were filed challenging the improper acceptance or rejection of nomination papers for the upcoming Grama Panchayat and Panchayat Samiti elections. The petitioners sought to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, arguing that the statutory remedy of filing an election petition was not adequate or efficacious.
Finding of the Court:
The Court held that it lacked jurisdiction to entertain the petitions under Article 226 of the Constitution. It reasoned that the Grama Panchayat Act and the Orissa Panchayat Samiti Act provided a comprehensive statutory framework for adjudicating election disputes, including the improper rejection or acceptance of nomination papers. The Court further held that the right to stand for election was a creature of statute and was subject to the limitations imposed by the statute. Since the statutes provided for an election petition as the sole remedy for challenging an election, the Court held that this remedy alone was available and that the extraordinary remedy under Article 226 could not be invoked.
Issues: 1. Whether the High Court had jurisdiction to entertain the petitions challenging the improper acceptance or rejection of nomination papers for the upcoming Grama Panchayat and Panchayat Samiti elections under Article 226 of the Constitution. 2. Whether the statutory remedy of filing an election petition was adequate or efficacious in addressing the petitioners' grievances.
Ratio Decidendi: 1. The Court relied on several precedents, including N.P. Ponnuswami v. Returning Officer Nimakkal, Mohindar Singh Gill v. The Chief Election Commissioner, Nanhoo Mal and Others Vs. Hira Mal and Others, and Bar Council of Delhi and Others Vs. Surjeet Singh and Others, to establish the following principles: a) The right to stand for election is a creature of statute and is subject to the limitations imposed by the statute. b) If the statute provides only one remedy, that remedy being an election petition to be presented after the election is over, remedy at any intermediate stage would not be available. c) The word 'election' has to be understood as including the stage of rejection or acceptance of nomination paper. d) If the alternative remedy fully covers the challenge to election, that remedy alone must be resorted to, even though in the case challenge is to the election of all the successful candidates. e) There may exist exceptional or extraordinary circumstances under which a High Court can be approached to challenge an election like the one at hand; but improper acceptance or rejection of nomination papers in individual cases would not normally be such a circumstance. f) There would be hardly any room to entertain applications under Art. 226 of the Constitution in matters relating to elections, An exception can be when there is real and genuine challenge to the vires of provision having intimate connection with the holding of election. This too would be permissible after the election is over. 2. The Court found that the statutory remedy of filing an election petition was adequate and efficacious in addressing the petitioners' grievances. It noted that Section 39 of the Panchayat Act made available an efficacious remedy inasmuch as an election held under the provisions of this Act can be challenged on the ground of improper acceptance or rejection of nomination papers.
Final Decision: The Court dismissed the petitions, holding that it lacked jurisdiction to entertain them under Article 226 of the Constitution. The Court emphasized the importance of avoiding delay in holding elections and the need to maintain the integrity of the electoral process.
JUDGMENT :
B.L. Hansaria, C.J. - All these petitions are relatable to Grama Panchayat and Panchayat Samiti elections, the polling in which shall take place from 20-5-1992. The grievances relate to improper acceptance or improper rejection of nomination papers. We have to decide whether we can entertain these petitions.
2. The subject-matter is governed by the Grama Panchayat Act, 1964 (for short, 'the Panchayat Act'), or Orissa Panchayat Samit Act, 1959 (hereinafter 'the Samiti Act,). These are the statutes which have conferred the power of contesting the elections in questioh and have set up a machinery for deciding election disputes. As the relevant provisions to which we shall advert hereinafter are similarly worded in the two statutes which we are concerned, we would be referring to the language used in the Panchayat Act, Section 30 of the Panchayat Act reads as below :
"No election of a person as a member of the Grama Panchayat or as a Sarapanch or Naib-Sarapanch held under this Act shall be called in question except by an election petition presented in accordance with the provisions of this Chapter."
Section 32 deals with the parties to the petition which states that the petition may be presented by any person who has filed his nomination. Section 39 specifies the grounds for declaring the election void, and Clause (c) of Sub. Section (1) is concerned with the ground relating to improper rejection or acceptance of nomination paper. The aforesaid provisions leave no manner of doubt that the Panchayat Act has provided a machinery for adjudicating the grievance of a person whose nomination has been improperly rejected or when a nomination paper is improperly accepted.
3. It is in this background that we have to decide about the question of entertainability of these petitions under Art. 226 of the Constitution. As is known, Art. 329 (6) of the Constitution has created an embargo in entertaining such petitions by stating that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be pro- vided for by or under any law made by the appropriate Legislature. A Constitution Bench of the apex Court had occasion to deal with this provision as early as 1952 in N.P. Ponnuswami v. Returning Officer Nimakkal. AIR 1952 SC 64, which has been described as a land-mark case in election laws by another Constitution Bench in Mohindar Singh Gill v. The Chief Election Commissioner, AIR 1978 SC 851. Ponnuswami's case was one which attracted Art. 329 (b). The question is as to whether what was stated in Ponnuswami would apply to the elections at hand. Before we decide this question, it may be pointed out that the word 'election' appearing in Art. 329 (b) of the Constitution was stated to cover the entire procedure to be gone through to return a candidate. To put it more clearly, that was stated in Ponnuswami about the word 'election' was that in embraces the whole procedure which consists of several stages and many steps including the rejection or acceptance of nomination paper. This interpretation given to the word 'election' in Art. 329 (b) would seem to apply to other elections, as would appear from what has been stated by a three-Judge Bench of the apex Court in Nanhoo Mal and Others Vs. Hira Mal and Others, .
A. Now, we come to Nanhoo Mat, which is a case related to election to local body (Municipal Board in that case), and has relied heavily on what was stated in Ponnuswami. (This case having come to our notice, required the examination of the question of entertainabilitv). it was made clear in para 5 of this judgment that what was stated in Ponnuswami cannot be confined to elections attracting Art. 329. Though we do not find mention about the reason of taking this view, we would venture to think that the same was perhaps taken because in Ponnu- swami, after referring to certain observatio
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