JUDGMENT

1. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

'i) That, impugned order contained in Annexure /1 (Colly.) may kindly be quashed and the petitioners be declared to be eligible for reserved seat of S.T. Category in election of the Counsellor Ward No.6 Municipal Corporation Gwalior (M.P.) for all purposes.

ii) Cost of the petition be awarded or any other order deemed fit in the circumstances of the present case may be passed.'

2. It is submitted by the counsel for the petitioners that the petitioners had submitted their nomination papers for the post of Counsellor Ward No.6, Gwalior. However, their nomination papers have been wrongly rejected.

3. It is submitted that a writ petition under Article 226 of the Constitution of India is maintainable against improper rejection of candidature. The petitioner has relied upon a judgment passed by a Co- ordinate Bench of this Court in the case of Smt. Shamabai vs. Panchayat and Rural Development and others passed on 20.6.2022 in W.P.No.12982/2022.

4. Per contra, the petition is vehemently opposed by the counsel for the respondent/State. It is submitted that in view of the bar as contained under Article 243-(O)(b) of the Constitution of India, the petition is not maintainable.

5. Heard the learned counsel for the parties.

6. Article 243-O of the Constitution of India reads as under:-

'243O. 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 243K, shall not be called in question in any court;

(b) no election to any Panchayat 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.'

7. During course of arguments, it was fairly conceded by the counsel for the petitioners that improper rejection or acceptance of nomination paper can be a ground for filing an election petition but he submitted that when he can contest the present election, then why he should wait for the outcome of the election petition thereby resulting in wastage or misuse of huge public money for conducting present election. However, he fairly conceded that right to contest the election is not a fundamental right but it is a statutory right.

8. The Supreme in the case of Election Commission of India vs. Ashok Kumar and others reported in (2000) 8 SCC 216 had held as under:

30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens, pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill case [(1978) 1 SCC 405 : AIR 1978 SC 851] ). The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two-pronged attack on anything done during the election proceedings is to be avoided - one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.

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32. For convenience sake we would now generally sum up our conclusions by partly restating what t