Punjab-Haryana High Court
Harjinder Singh vs State Of Punjab And Ors on 30 April, 2021CWP-8511-2021 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-8511-2021 (O&M)
Date of decision : 30.04.2021
Harjinder Singh
…Petitioner(s)
Versus
State of Punjab and others
…Respondent(s)
CORAM:- HON’BLE MR. JUSTICE JITENDRA CHAUHAN
HON’BLE MR. JUSTICE VIVEK PURI
Present: Mr. Lupil Gupta, Advocate for the petitioner(s).
Mr. Suveer Sheokand, Addl.A.G., Punjab.
Mr. H.S. Brar, Advocate for respondent No.7.
JITENDRA CHAUHAN J. (ORAL)
The matter has been taken up through video-conferencing in the
light of the pandemic COVID-19 situation and as per instructions.
This writ petition under Articles 226/227 of the Constitution of
India has been filed, inter alia, seeking a direction to respondent Nos.1 to 6,
to conduct a fair and impartial enquiry against respondent No.7 according to
the provisions of Section 11(r) and 12 of the Punjab State Election
Commission Act, 1994 (for short, ‘the Act’), the latter having encroached
upon the government land for which he is already facing eviction
proceedings under the relevant provisions of law; with a further direction to
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the respondents to take a final decision on representations dated 22.04.2021
(Annexures P-7 to P-9), within a stipulated period. It is also prayed that
during the pendency of the enquiry, oath of office of Municipal Council,
Ward No.6, Kotkapura, may not be administered to respondent No.7.
Learned counsel for the petitioner states that respondent No.7 is
in unauthorized possession of the government land and has already been
facing proceedings under the relevant provisions of law. However, while
filing the nomination papers for contesting election of Municipal Council,
Kotkapura, this fact has been concealed by respondent No.7, which were
wrongly accepted by respondent No.5. Thus, despite being ineligible, he
contested and won the election. Feeling aggrieved, the petitioner moved
representations dated 22.04.2021, to respondent Nos.2, 4 and 5 (Annexures
P-7 to P-9, respectively), however, no decision has been taken thereupon, so
far. Contends that the act and conduct of the petitioner calls for his
disqualification as provided in Section 11 of the Act.
Controverting the arguments advanced on behalf of the
petitioner, learned State counsel, at the outset, 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. Further
states that even the statutory period of 45 days has expired on 05.04.2021,
and the petitioner has approached this Court belatedly. The oath of the
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office has already been administered to respondent No.7.
Heard.
The prayer of the petitioner, if accepted, would have the effect
of calling the election into question which is barred specifically by virtue of
Article 243ZG of the Constitution of India. It reads thus:-
“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 243-ZA shall not be called in question in any
court;
(b) no election to any municipality shall be called in
question except by any 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.”
At this stage, it is relevant to quote Section 89(1)(c) of the Act
which is adumbrated below:-
“Section 89. 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
(b) XXX
(c) XXX
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(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected,–
(i) by the improper acceptance of any nomination; or
(ii)XXX
(iii)XXX
(iv)xxx
the Election Tribunal shall declare the election of the
returned candidate to be void. ”
Section 74 of the Act is an off-shoot of Article 243ZG of our
Constitution, which reads thus:-
“74. Election petitions.– No election shall be called in
question except by an election petition presented in
accordance with the provisions of this Chapter.”
Hon’ble the Supreme Court in N.P. Ponnuswami Vs.
Returning Officer, 1952 AIR (SC) 64, has specifically observed that
rejection or acceptance of nomination cannot be questioned by filing a
petition under Articles 226/227 of the Constitution of India because such
cases fall under the class of cases which have the effect of vitiating the
‘election’ and enable the person affected to call it in question, which ought
not to be made subject of dispute before any Court while the election is in
progress. Any such dispute should be raised by way of filing an election
petition. The relevant portion of the judgment is enumerated below:-
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“7. These arguments appear at first sight to be quite
impressive, but in my opinion there are weightier and
basically more important arguments in support of the
view taken by the High Court. As we have seen, the most
important question for determination is the meaning to
be given to the word “election” in Article 329(b). That
word has by long usage in connection with the process of
selection of proper representatives in democratic
institutions, acquired both a wide and a narrow meaning.
In the narrow sense, it is used to mean the final selection
of a candidate which may embrace the result of the poll
when there is polling or a particular candidate being
returned unopposed when there is no poll. In the wide
sense, the word is used to connote the entire process
culminating in a candidate being declared elected. In
Srinivasalu v. Kuppuswami [(1928) AIR Mad 253 at
255], the learned Judges of the Madras High Court after
examining the question, expressed the opinion that the
term “election” may be taken to embrace the whole
procedure whereby an “elected member” is returned,
whether or not it be found necessary to take a poll. With
this view, my brother, Mahajan, J. expressed his
agreement in Sat Narain v. Hanuman Prasad [(1946)
AIR Lah. 85] ; and I also find myself in agreement with
it. It seems to me that the word “election” has been used
in Part XV of the Constitution in the wide sense, that is to
say, to connote the entire procedure to be gone through
to return a candidate to the legislature. The use of the
expression “conduct of elections” in Article 324
specifically points to the wide meaning, and that meaning
can also be read consistently into the other provisions
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which occur in Part XV including Article 329(b). That the
word “election” bears this wide meaning whenever we
talk of elections in a democratic country, is borne out by
the fact that in most of the books on the subject and in
several cases dealing with the matter, one of the
questions mooted is, when the election begins. The
subject is dealt with quite concisely in Halsbury Laws of
England in the following passage [ See page 237 of
Halsbury’s Laws of England, 2nd Edn. Vol. 12] under the
heading Commencement of the Election”:
“Although the first formal step in every election is the
issue of the writ, the election is considered for some
purposes to begin at an earlier date. It is a question of
fact in each case when an election begins in such a way
as to make the parties concerned responsible for
breaches of election law, the test being whether the
contest is ‘reasonably imminent’. Neither the issue of the
writ nor the publication of the notice of election can be
looked to as fixing the date when an election begins from
this point of view. Nor, again, does the nomination day
afford any criterion. The election will usually begin at
least earlier than the issue of the writ. The question when
the election begins must be carefully distinguished from
that as to when ‘the conduct and management of’ an
election may be said to begin. Again, the question as to
when a particular person commences to be a candidate is
a question to be considered in each case.”
The discussion in this passage makes it clear that the
word “election” can be and has been appropriately used
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with reference to the entire process which consists of
several stages and embraces many steps, some of which
may have an important bearing on the result of the
process.
XXX
9. The question now arises whether the law of elections
in this country contemplates that there should be two
attacks on matters connected with election proceedings,
one while they are going on by invoking the
extraordinary jurisdiction of the High Court under
Article 226 of the Constitution (the ordinary jurisdiction
of the courts having been expressly excluded), and
another after they have been completed by means of an
election petition. In my opinion, to affirm such a position
would be contrary to the scheme of Part XV of the
Constitution and the Representation of the People Act,
which, as I shall point out later, seems to be that any
matter which has the effect of vitiating an election should
be brought up only at the appropriate stage in an
appropriate manner before a Special Tribunal and
should not be brought up at an intermediate stage before
any court. It seems to me that under the election law, the
only significance which the rejection of a nomination
paper has consists in the fact that it can be used as a
ground to call the election in question. Article 329(b) was
apparently enacted to prescribe the manner in which and
the stage at which this ground, and other grounds which
may be raised under the law to call the election in
question, could be urged. I think it follows by necessary
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implication from the language of this provision that those
grounds cannot be urged in any other manner, at any
other stage and before any other court. If the grounds on
which an election can be called in question could be
raised at an earlier stage and errors, if any, are rectified,
there will be no meaning in enacting a provision like
Article 329(b) and in setting up a Special Tribunal. Any
other meaning ascribed to the words used in the article
would lead to anomalies, which the Constitution could
not have contemplated, one of them being that conflicting
views may be expressed by the High Court at the pre-
polling stage and by the election tribunal, which is to be
an independent body, at the stage when the matter is
brought up before it.
XXX
27. We are informed that besides the Madras High Court,
seven other State High Courts have held that they have
no jurisdiction under Article 226 of the Constitution to
entertain petitions regarding improper rejection of
nomination papers. This view is in my opinion correct
and must be affirmed. The appeal must therefore fail and
is dismissed. In view of the nature and importance of the
points raised in this appeal, there should be no order as
to costs.”
Thus, a writ petition challenging the acceptance of nomination,
is in effect, a petition challenging the election because ‘challenge to an
election’ implies challenge to an intermediary stage of an election such as
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rejection/acceptance of nomination, for which the appropriate remedy is to
file an election petition. Relying upon the N.P. Punnuswami’s case (supra),
Hon’ble Delhi High Court in Ravinder Negi Vs. State Election Commission
and Another, 2017 SCC OnLine Del 7812, has held to the following effect:-
“15. Learned counsel for the State Election Commission
is also right in his submission that improper rejection of
nomination as per Section 17(1)(c) of the DMC Act can
be made subject matter of the Election Petition. In N P
Ponnuswamy (supra), the Supreme Court had interpreted
Article 329(b) of the Constitution and on the ambit of the
word “Election” held that the same has reference to the
entire process which consists of several stages and
embraces many steps. Referring to the provisions of the
Representation of People’s Act, 1951, it was observed
that where a right and liability is created by the statute
which gives special remedy for enforcing it, then the
remedy given by that statute must be availed of. It was
accordingly held as under:
“17. It may be pointed out that Article 329(b) must
be read as complimentary to clause (a) of that
article. Clause (a) bars the jurisdiction of the
courts with regard to such law as may be made
under Articles 327 and 328 relating to the
delimitation of constituencies or the allotment of
seats to such constituencies. It was conceded
before us that Article 329(b) ousts the jurisdiction
of the courts with regard to matters arising
between the commencement of the polling and the
final selection. The question which has to be asked
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is what conceivable reason the legislature could
have had to leave only matters connected with
nominations subject to the jurisdiction of the High
Court under Article 226 of the Constitution. If Part
XV of the Constitution is a code by itself i.e., it
creates rights and provides for their enforcement
by a Special Tribunal to the exclusion of all courts
including the High Court, there can be no reason
for assuming that the Constitution left one small
part of the election process to be made the subject-
matter of contest before the High Courts and
thereby upset the time-schedule of the elections.
The more reasonable view seems to be that Article
329 covers all “electoral matters”.
18. The conclusions which I have arrived at may
be summed up briefly as follows:
“(1) Having regard to the important
functions which the legislatures have to
perform in democratic countries, it has
always been recognized to be a matter of
first importance that elections should be
concluded as early as possible according to
time schedule and all controversial matters
and all disputes arising out of elections
should be postponed till after the elections
are over, so that the election proceedings
may not be unduly retarded or protracted.
(2) In conformity with this principle, the
scheme the election law in this country as
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well as in England is that no significance
should be attached to anything which does
not affect the ‘election’; and if any
irregularities are committed while it is in
progress and they belong to the category or
class which, under the law by which
elections are governed, would have the effect
of vitiating the ‘election’ and enable the
person affected to call it in question, they
should be brought up before a Special
Tribunal by means of an election petition
and not be made the subject of a dispute
before any court while the election is in
progress.”
Thus, the question which arises for determination of this Court
is whether an election which has been set in motion or stands completed can
be called in question by invoking writ jurisdiction. It is no more res integra
that the word “election” has to be construed as the whole procedure whereby
“an elected member” is returned. The word “election” embraces all the steps
that have an important bearing on the result of the election process and it
consists of several stages including the filing of nomination papers, scrutiny
thereof etc. At this stage, reference can be made to the provisions of Article
243-O(b) of the Constitution of India, which casts a bar for entertaining a
writ petition under Article 226 of the Constitution challenging an ‘election’ .
It may be mentioned here that Article 329(b) of the Constitution is pari
materia with Article 243-O(b) dealing with the Panchayats and Article 243-
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ZG(b) dealing with the Municipalities. Thus, the petitioner, if aggrieved by
the ‘election’ of respondent No.7, ought to have invoked the jurisdiction of
the Election Tribunal, seeking declaration of the election of respondent No.7
as void.
In view of the above, the instant petition is held to be not
maintainable.
Since, the present petition is not maintainable, we are not
inclined to comment to the averments raised by learned counsel for the
petitioner on merits.
The instant petition is, thus, dismissed.
(JITENDRA CHAUHAN) (VIVEK PURI)
JUDGE JUDGE
30.04.2021
atulsethi
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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