The right to contest an election is a statutory right, and the challenge to the rejection of nomination papers through a writ petition is not maintainable during the election process. The remedy of filing an election petition after the election is completed should be availed.

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.

2. Reply has been circulated through E-mail in the Court today and the same is taken on record.

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

4. The petitioner has assailed the order dated 04.02.2021 (Annexure P/2) passed by the Returning Officer vide which his nomination papers as a candidate for Ward No. 20, S.A.S. Nagar (Mohali) have been rejected.

5. On 16.01.2021, the Punjab Election Commission had announced the schedule for elections and bye-elections of eight Municipal Corporations and 109 Municipal Councils and Nagar Panchayats. The filing of nomination papers commenced on 30.01.2021. The nomination papers of the petitioner have been rejected on 04.02.2021 on the score that his proposer, namely, Lakhbir Singh was not enrolled as a voter in the constituency from which the petitioner had sought to contest the election. The proposer was enrolled as a voter in Ward No. 22 and consequently, the nomination papers submitted by the petitioner have been rejected.

6. It has been argued by the learned counsel for the petitioner that the nomination papers have been rejected on the ground that the proposer is from a different ward and there is nothing in the Punjab State Election Commission Act, 1994 (for short 'Act 1994') which requires that the proposer for filing the nomination papers should be from the same ward. The nomination papers have been rejected on flimsy grounds in an illegal and arbitrary manner. It has been further argued that the Returning Officer could not reject the nomination papers as the defect was not of a substantial character. Furthermore, reliance has been placed upon a judgment of Division Bench of this Court in the case of Sukhdev Sinsh Patwari Vs. State Election Commissioner, Punjab and others, 2015(2) RCR (Civil) 647 to argue that the nomination papers of the petitioner are liable to be accepted.

7. On the contrary, 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(l)(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. As per the provisions of Section 38(1) of the Act 1994, the nomination papers are required to be completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. The defect in submitting the nomination papers containing the proposer of a different constituency is a substantial and incurable defect which renders the rejection of the nomination papers. The nomination papers submitted by the petitioner were not in conformity and requirements of the statutory provisions.

8. 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 C