1. Election of Zilla Panchayat Adhyaksha — Challenge by voters via writ petition — Bar under Article 243-O of the Constitution — Maintainability of judicial review. (Para 2 , 3 , 4 )
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2017 Supreme(SC) 1352
SUPREME COURT OF INDIA
J. Chelameswar, S. Abdul Nazeer, JJ.
Smt. Bharati Reddy – Appellant
Versus
The State of Karnataka and Ors. – Respondents
Civil Appeal No. 10587 of 2017 (Arising Out of SLP (Civil) No.17059 of 2017
Decided On : 17-08-2017
Important Points
A writ petition filed by voters (non-members) challenging the election of the Zilla Panchayat Adhyaksha is maintainable under Article 226. Judicial review is a basic feature of the Constitution and cannot be ousted, ensuring that aggrieved voters are not left remediless despite restrictions on filing election petitions.
Subject
Election Law - Election Disputes
Act Referred
CONSTITUTION OF INDIA: Art.243(o), Art.226, Art.368, Art.32, Art.227
KARNATAKA PANCHAYAT RAJ ELECTION OF ADHYAKSHA AND UPADHYAKSHA OF ZILLA PANCHAYAT RULES: R.7
PRESIDENTIAL AND VICE PRESIDENTIAL ELECTIONS ACT: S.14(a)
KARNATAKA PANCHAYAT RAJ ELECTION OF ADHYAKSHA AND UPADHYAKSHA OF ZILLA PANCHAYAT RULES: R.7
PRESIDENTIAL AND VICE PRESIDENTIAL ELECTIONS ACT: S.14(a)
Headnote
CONSTITUTION OF INDIA - Article 243-O - Challenge to election - Election to panchayat can only be questioned by an election petition presented to such authority and in such manner as provided for by State Legislature.
Legal Category Hierarchy
Advocates Appeared:
For the Appellant :H. Chandra Sekhar, Advocate.
For the Respondent:(M/S S-Legal Associates[caveat]), Advocate.
For the Appellant :H. Chandra Sekhar, Advocate.
For the Respondent:(M/S S-Legal Associates[caveat]), Advocate.
Table of Contents
2. Maintainability of writ petition versus statutory bar under Article 243-O — Availability of election petition remedy for non-member voters under state rules. (Para 2 , 5 , 6 , 11 )
3. Judicial review under Articles 226 and 227 is an inviolable part of the basic structure of the Constitution and cannot be ousted by statutory bars. (Para 12 , 13 )
4. Where a statutory remedy is unavailable to a specific class of aggrieved persons, the constitutional remedy of judicial review under Article 226 remains maintainable. (Para 13 , 15 )
5. Writ petition held maintainable — Matter remanded to Single Judge for expedited disposal — Appellant permitted to continue as Adhyaksha subject to final outcome. (Para 16 )
6. Does Article 243-O of the Constitution completely bar the jurisdiction of High Courts in electoral matters?
No. While Article 243-O provides a bar, the power of judicial review under Articles 226 and 227 is an essential feature of the basic structure of the Constitution and cannot be ousted. (Para 12 , 13 )
7. Can a voter who is not a member of the Zilla Panchayat challenge the election of the Adhyaksha via an election petition?
No. Under Rule 7 of the Karnataka Panchayat Raj (Election of Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 1994, only a member of the Zilla Panchayat can file an election petition. (Para 10 , 15 )
8. Is a writ petition maintainable if the aggrieved party is ineligible to file a statutory election petition?
Yes. A voter who is not a member and is thus barred from filing an election petition cannot be rendered remediless and may approach the High Court under Articles 226/227. (Para 13 , 15 )
JUDGMENT :
S.Abdul Nazeer, J.
Leave granted.
2. The appellant was elected as a member of Zilla Panchayat, Bellary from 13-Badanahatti Constituency, which was reserved for General (Women) category in the election held on 20.2.2016. The State Government issued a notification dated 15.4.2016 reserving the post of Adhyaksha of Zilla Panchayat, Bellary for Backward Class-B (Woman). The appellant contested for the said office and was declared as elected. Respondents 6 to 9 are residents of Bellary district and were voters in the election to the Zilla Panchayat in question. They filed Writ Petition No.106417 of 2016 in the Dharwad Bench of Karnataka High Court challenging the election of the appellant as the Adhyaksha mainly on the ground that she does not belong to backward class (B) and that she has contested the election on the basis of a false caste certificate issued by the Tehsildar, Kurugodu, Bellary. The appellant raised objection as to the maintainability of the writ petition having regard to the bar contained in Clause (b) of Article 243-O of the Constitution of India. It was also contended that the aggrieved party has to challenge the election by way of election petition before the jurisdictional District Judge.
3. Learned Single Judge by his order dated 21.10.2016 dismissed the writ petition on the ground of maintainability in view of the bar contained in Clause (b) of Article 243-O of the Constitution. Learned Single Judge also referred to Rule 7 of the Karnataka Panchayat Raj (Election of Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 1994 providing for the filing of the election petition before the jurisdictional District Judge by an aggrieved party.
4. Respondents 6 to 9 challenged the said order by filing Writ Appeal No.101459 of 2016 before the Division Bench. The Division Bench by order dated 5.6.2017 set aside the order of the learned Single Judge by holding that the writ petition was maintainable. The Division Bench remanded the matter to the learned Single Judge for fresh disposal of the case, keeping open all the other questions. The appellant has challenged the legality and correctness of the said order in this appeal.
5. Appearing for the appellant, Shri Mukul Rohatgi, learned senior counsel, submits that the writ petition filed by respondent Nos. 6 to 9 challenging the election of the appellant, was not maintainable in view of the express bar contained in Article 243-O of the Constitution of India. It is submitted that the only remedy available to the aggrieved party is to file an election petition before the jurisdictional District Judge. In this connection, he has relied upon the decision of this Court in Charan Lal Sahu v. K.R. Narayanan (1998) 1 SCC 56.
6. On the other hand, Dr. Rajiv Dhawan, learned senior counsel, appearing for respondents 6 to 9 submitted that respondents 6 to 9 were the voters in the election to the Zilla Panchayat. They cannot maintain an election petition as they are not the members of the Zilla Panchayat. If the writ petition is dismissed on the ground of maintainability, the voter, who is not a member of Zilla Panchayat and aggrieved by the election of the Adhyaksha, will remain remediless. He submits that judicial review is the basic structure of the Constitution.
7. We have carefully considered the submissions of the learned senior counsel for the parties. The short question for our consideration is whether the writ petition filed by the voters, who are not the members of the Zilla Panchayat, challenging the election of the Adhyaksha of the Zilla Panchayat is maintainable.
8. Part IX containing Articles 243, 243-A to 243-O was inserted by the Constitution 73rd Amendment Act, 1992. Article 243-O which is relevant for this case reads as under:
"243-O. 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 allotment of seats to such constituencies made or purport
