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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Jaswant Singh, Sant Parkash, JJ.
Manjinder Kaur Cheema - Appellant
Versus
State Election Commission, Punjab & Ors. - Respondents
Civil Writ Petition No. 2887 of 2021 (O&M)
Decided On : 09-02-2021
ELECTION - NOMINATION - REJECTION - WRIT PETITION - MAINTAINABILITY - PUNJAB STATE ELECTION COMMISSION ACT, 1994 - SECTION 74 - ARTICLE 243ZG OF THE CONSTITUTION OF INDIA - ARTICLE 329(B) OF THE CONSTITUTION OF INDIA - REPRESENTATION OF THE PEOPLE ACT, 1951 - SECTION 89(1)(C) - SECTION 100 - SECTION 33(4) - SECTION 38(4) - PUNJAB MUNICIPAL ACT, 1994 - SECTION 11(Q) AND (R) - ELECTION PETITION - JURISDICTION - BAR - EXCEPTIONS - JUDICIAL REVIEW - SCOPE - INTERIM ORDER - BINDING PRECEDENT - RELEVANCE - DISPUTED QUESTIONS OF FACT - ADJUDICATION - WRIT JURISDICTION - APPLICABILITY - ELECTION DISPUTE - ADJUDICATION - STAGE - RELEVANCE - INTERPRETATION OF STATUTORY PROVISIONS - DETAILED CONSIDERATION - NECESSITY.
Fact of the Case:
Petitioner's nomination papers for election as a Councillor from Ward No. 15, to the Municipal Corporation, Kapurthala were rejected on the ground that she was in illegal occupation of Government land. Petitioner challenged the order of rejection by filing a writ petition.
Finding of the Court:
The Court held that the writ petition was not maintainable. The Court observed that the validity of any election under the provisions of the Punjab Municipal Act, 1994 can ordinarily be called in question only by way of election petition before the Election Tribunal under the provisions of the relevant statute and not by invoking the provision of Article 226 of the Constitution except it falls into any one of the exceptions as carved by Hon'ble Supreme Court in Paragraph 32 of Ashok Kumar's case (supra) and summarized by the Court in paragraph 5.6.
Issues: 1. Whether the writ petition is maintainable? 2. Whether the petitioner is disqualified for being chosen as a member of the Municipality under Section 11(q) and (r) of the Punjab State Election Commission Act, 1994?
Ratio Decidendi: 1. The Court held that the writ petition was not maintainable. The Court observed that the validity of any election under the provisions of the Punjab Municipal Act, 1994 can ordinarily be called in question only by way of election petition before the Election Tribunal under the provisions of the relevant statute and not by invoking the provision of Article 226 of the Constitution except it falls into any one of the exceptions as carved by Hon'ble Supreme Court in Paragraph 32 of Ashok Kumar's case (supra) and summarized by the Court in paragraph 5.6. 2. The Court held that the petitioner was disqualified for being chosen as a member of the Municipality under Section 11(q) and (r) of the Punjab State Election Commission Act, 1994. The Court observed that the petitioner was in illegal occupation of a building whose site plan had not been sanctioned and that no tax had been paid to any authority as well.
Final Decision: The Court dismissed the writ petition, holding that it was not maintainable. The Court also held that the petitioner was disqualified for being chosen as a member of the Municipality under Section 11(q) and (r) of the Punjab State Election Commission Act, 1994.
ORDER
Jaswant Singh, J. - Vetitioner-Manjinder Kaur Cheema has filed the present writ petition challenging the order dated 04.02.2021 (Annexure P-5) passed by Returning Officer-cum-Tehsildar whereby her nomination papers as a Akali candidate for election as a Counsellor from Ward No. 15, to the Municipal Corporation, Kapurthala have been rejected on the ground that she is in illegal occupation of Government land.
2. Learned counsel for the petitioner has argued that the Returning officer has wrongly rejected the nomination papers of the petitioner as she is not in illegal occupation of any Government land. It is submitted that the building in which she is residing is owned by her father in law who had constructed it in the year 1985. It is further submitted that the land in question is maafi land and therefore the possession of petitioner's father in law cannot be said to be illegal. As far as issue of jurisdiction of this court to entertain the petition at this stage is concerned, it is submitted that the writ petition is very well maintainable in view of the law settled by Hon'ble Supreme Court in cases "Nandiesha Reddy Vs Mrs. Kavitha Mahesh", 2011(7) SCC 721; ''Election Commission of India through Secretary Vs. Ashok Kumar and others", 2000(8) SCC 216, and interim order dated 05.02.2021, passed by a Coordinate Bench of this Court in CWP No. 2780 of 2021, titled as "Sahibee Anand Vs. State of Punjab and others".
3. We have heard learned counsel for the petitioner at length and have scrutinized the paper book.
4. Since, the issues raised and provisions of law involved in the present case are intermingled, it would be gainful to discuss the relevant Constitutional as well as Statutory provisions pertaining to elections.
[4.1] Article 329(b) of the Constitution bars calling of any election to either House of Parliament or either House of the Legislature of State except by way of election petition. For ready reference, Article 329 is reproduced as under:
"329. [Notwithstanding anything in this Constitution2[***]-]
(a) The validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;
(b) 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 provided for by or under any law made by the appropriate Legislature "
[4.2] Indisputably, Part IX A in the Constitution has been introduced to ensure the timely elections and smooth functioning of elected bodies at municipal level. The provisions incorporated by way of Article 243 P to 243 ZG give constitutional status to the municipal bodies and ensure regular and fair conduct of elections.
[4.3] Article 243ZG of the Constitution of India bars interference by the court in electoral matters of municipalities specifically provides that no election to any municipality shall be called in question except by an election petition to such authority in such manner as is provided for by or under any law made by the legislature of a State. For ready reference, Article 243ZG is reproduced as under:-
"Article-243ZG. 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 or the allotment of seats to such constituencies, made or purporting to be made under article 243ZA 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."
[4.4] To give effect to the mandate of the afore-reproduced provisions of the Constitution, the Punjab State also framed its own act namely, the Punj
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