The main legal point established in the judgment is that the right to contest an election is a statutory right, and the appropriate remedy for challenging the rejection of nomination papers is to file an election petition.

ORDER

Vivek Puri, J. - The matter has been taken up through video-conferencing in the light of the pandemic COVID-19 situation and as per instructions.

CM-2390-CWP-2021

Allowed as prayed for, subject to all just exceptions.

Main petition

2. This writ petition under Articles 226/227 of the Constitution of India has been filed, inter alia, seeking cancellation of impugned order dated 04.02.2021 for FORM No. 22 (Annexure P-7), passed by respondent No.5, wherein, the name of the petitioner does not figure in the list of genuine nominated candidates; and to declare the petitioner entitled to contest the elections.

3. Learned counsel for the petitioner states that order dated 04.02.2021 was deliberately not made available to the petitioner and has been issued to him only yesterday under the influence of local MLA of the rival Indian National Congress, whereas, the petitioner comes from Shiromani Akali Dal. Further states that the order has been passed without considering the receipt dated 25.01.2021 (Annexure P-5), which depicts that the petitioner has been regularly paying the taxes due to him as well as copy of letter issued by the Municipal Council, Sirhind dated 06.10.1989 (Annexure P-12) and map (Annexure P-13), which clearly reflect that the structure was raised after due permission of the competent authority.

4. Per contra, learned State counsel states that the petitioner has alternate efficacious remedy under Article 243-ZG(b) of the Constitution of India read with Section 74 of the Punjab State Election Commission Act, 1994 (for short, 'the Act'). Without availing the same, he has approached this Court, therefore, the present writ petition is not maintainable.

5. Heard.

6. 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 11 of the Act 1994 deals with the disqualifications for membersship of a Panchayat or a Municipality, which provides as following:-

"77. Disqualifications for membership of a Panchayat or a Municipalities - A person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality, -

(a) to (p) xxx xxx xxx

(q) if he has not paid the arrears of tax imposed by the Panchayat or the Municipality, as the case may be; or

(r) if he is in un-authorized occupation of property belonging to any local authority; or

(s) to (v) xxx xxx xxx"

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

"59. 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; or

(d) xxx xxx xxx

the Election Tribunal shall declare the election of the returned candidate to be void."

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

"47. 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 (7) xxx xxx xxx"

Section 74 of the Act 1994 deals with the election petitions, which reads as under:-

"74. Election petitions - No electio