The rejection of nomination papers during the election process does not warrant a writ petition, and the appropriate remedy is to file an election petition after the election is completed.

JUDGMENT :

VIVEK PURI, J.

1. The matter has been taken up through video-conferencing in the light of the pandemic Covid-19 situation and as per instructions.

2. We have heard learned counsel for the parties and perused the record.

3. The petitioner has assailed the impugned action as reflected in the list (Annexure P/5), whereby his nomination papers for contesting the post of member of Municipal Council for Ward No. 28, Mandi Gobindgarh, Fatehgarh Sahib have been rejected.

4. The State Election Commission, Punjab has issued a notification for holding the elections of Municipal Corporations, Municipal Councils and Nagar Panchayats including that of Municipal Council, Mandi Gobindgarh, Fatehgarh Sahib. The petitioner had submitted the nomination papers for contesting the election for the post of Councilor for Ward No. 28. The nomination papers have been rejected and the action has been alleged to be mala-fide and fraudulent on the part of the respondents.

5. It has been argued by the learned counsel for the petitioner that the nomination papers have been rejected on flimsy grounds in an illegal and arbitrary manner. At the time of scrutiny, frivolous objections were raised and the petitioner had submitted reply controverting the allegations which were raised in the objection petition. No opportunity of hearing was afforded to the petitioner by the Returning Officer and the nomination papers have been rejected without any substantial ground as mentioned in Section 41 of the Punjab State Election Commission Act, 1994 (for short ‘Act 1994’).

6. Per contra, the learned State counsel, at the very outset, disputes the maintainability of the petition on the score that the efficacious remedy is available to the petitioner by challenging the election after the process has been completed. Furthermore, no interference is called for once the election process has been set into motion. In the event, the nomination papers have been wrongly rejected, the petitioner can invoke the jurisdiction of the Election Tribunal to declare the election of the returned candidate as void by invoking the provisions of Section 89(1)(c) of the Act 1994. It has been further argued that Article 243-ZG of the Constitution bars the interference by the Courts in electoral matters and the election of the municipality cannot be called in question except by way of election petition to be presented to the concerned authority.

7. Before proceeding further, it shall be appropriate to refer to the provisions of law which are relevant to settle the instant controversy. Article 243-ZG of the Constitution bars the interference by the Courts in electoral matters and it provides as following:-

“243-ZG. Bar to interference by Courts in electoral matters - Notwithstanding anything in this Constitution:

(a) the validity of any law relating to the delimitation of constituencies of the allotment of seats to such constituencies, made or purporting to be made under article 243-ZA shall not be called in question in any Court.

(b) no election to any Municipality 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.”

Section 89(1) of the Act 1994 provides for the grounds on which the election can be declared void which provides as following:-

“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:

(a) xxx xxx xxx

(b) xxx xxx xxx

(c) that any nomination has been improperly rejected.

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

Furthermore, the nomination papers have to be scrutinized as per the provisions of Section 41 of the Act 1994 which provides as following:-

“41. Scrutiny of nominations:

(1) to (3) xxx xxx xxx

(4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

(5) to (