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1973 DIGILAW 61 (MP)

Ramlakhan Singh v. Collector, Satna

1973-05-01

J.S.VERMA, SHIV DAYAL SHRIVASTAVA

body1973
ORDER Shiv Dayal, J. This is a petition under Article 226 of the Constitution challenging the co-option of two members and the election of the President and Vice-President of the Janpad Panchayat, Unchehara. After declaration of the results of the co-option and election, the Collector, Satna, notified the result of the election as required under section 113 of the M. P. Panchayats Act, 1962, (hereinafter called the Act), in which he notified the election of elected members, co-opted members and President and Vice-President of Unchehara Panchayat. Several contentions are raised in this petition to urge that the co-option of the members on August 2, 1972, and the election of the President and the Vice-President on August 9, 1972, are bad in law. A preliminary question arises whether this Court can go in the questions raised in this petition under Article 226 of the Constitution, when it was open to the petitioner to challenge the election by way of an election petition under section 357 of the Act. It reads as follows: 357 (1) No election, or co-option notified under sections 20, 113, 170 and 216 shall be called into question except by a petition presented to the prescribed authority x x x x Rule 22 of the M. P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962, enumerates the grounds on which an election or co-option can be declared void. It is contended for the petitioner that the existence of an alternative remedy is no bar to interference by this Court under Article 226 of the Constitution. In Ponnuswami v. Returning Officer A I R 1952 S C 64 : 1952 S C R 218 the question was whether there can be interference by way of a writ with an order rejecting a nomination paper filed for election under the Representation of the People Act. It was held 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 the Court. Similar question arose under the Panchayats Act in several cases before this Court. It was held 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 the Court. Similar question arose under the Panchayats Act in several cases before this Court. In Thakur Prasad v. S. Mehta 1965 M P L J 480, following the decision in Ponnuswami (supra), this Court declined to interfere under Articles 226 and 227 of the Constitution with the order of the Returning Officer, rejecting a nomination paper. In Pancham v. Collector, Bhind 1971 M P L J 50, it was held by a Division Bench: For the grounds enumerated in rule 22 of the rules framed under section 357 of the Act, an election petition is the appropriate remedy and the special Act lays emphasis on this in the first sub-section of section 357. It is true that an enactment, by providing an exclusive remedy, cannot take away the extraordinary powers conferred on this Court by the Constitution, yet this Court will not exercise those powers when there is an efficacious and speedy remedy provided in the Act, save when there is a flagrant or manifest violation of the law or excessive exercise of jurisdiction for which this Court feels compelled to interfere. When there are disputed questions of fact, this Court will ordinarily leave the parties to take recourse to the ordinary remedy, that is, by way of an election petition. (Italics by us) In Jaidev v. Awadheshchandra Gupta Misc. Petition No. 105 of 1970, decided on the 7th October 1970 (Gwalior Bench) a Division Bench held: The High Court will not, therefore, entertain a petition for writ under Article 226 of the Constitution where the petitioner has alternative remedy, which without being unduly onerous is equally efficacious. A remedy by way of election petition is not at all onerous. The High Court would not, therefore, entertain a petition challenging an election under the Act except in extraordinary circumstances justifying such a course. A remedy by way of election petition is not at all onerous. The High Court would not, therefore, entertain a petition challenging an election under the Act except in extraordinary circumstances justifying such a course. (Italics by us) It is thus clear that the decisions cited above consistently held that there would be no interference "except in extraordinary circumstances," or "save when there is a flagrant or manifest violation of the law or excessive exercise of jurisdiction for which this Court feels compelled to interfere." This Court had interfered in a few cases earlier, but there is no inconsistency as they fell within the exceptions. (1) In Vinod Kumar v. K. L. Jain 1965 M P L J 375, a nomination form for the election to a Gram Sabha was filled by mentioning in column No. 1, the correct "ward No. 15" from which the petitioner was contesting. In column No. 2, he showed "Ward No. 14" (the ward where he lived). His nomination was rejected on the ground that this created an ambiguity. This was found to be manifestly wrong and the error was apparent on the face of the record. The propose could not be penalised as the headings of the columns created ambiguity. (2) In Tundilal v. Returning Officer 1965 M P L J 897, nomination papers of the candidates seeking election were rejected. Therefore, there could be no question of notifying the election under section 20 and the provisions of section 357(1) of the Act, could not, therefore, be attracted. The Court, therefore, interfered with the rejection of the nomination papers. (3) In Idandas v. Election Officer, Khandwa 1966 M P L J 242, there was interference on the ground that the co-option was in violation of sections 11 and 19 of the Act. (4) In Kishanchand v. Supervising Officer, Municipal Committee, Kurwai 1969 M P L J 856, a writ had to be issued because the nomination paper was rejected merely on the ground that the name of the municipality was not mentioned. It will thus be seen that all these four cases, where there was interference, fell within the exceptions; there was flagrant or manifest violation of the law or excessive exercise of the jurisdiction for which the Court felt compelled to interfere. There was, therefore, no conflict or divergence of judicial opinion in the first and the second set of cases. It will thus be seen that all these four cases, where there was interference, fell within the exceptions; there was flagrant or manifest violation of the law or excessive exercise of the jurisdiction for which the Court felt compelled to interfere. There was, therefore, no conflict or divergence of judicial opinion in the first and the second set of cases. However, for the removal of doubt, the question was referred to a Full Bench in Malam Singh v. Collector, Sehore 1971 M P L J 531, and this is what the Full Bench has said: For all grievances whether grounded on the ultimate result of the election or upon any interlocutory order passed in the process of election, we are of the view that, where that remedy is available, it would not be proper for the High Court to exercise its undoubted powers under Articles 226 and 227 of the Constitution for interfering with an interlocutory order passed during the process of election, save in very exceptional circumstances. (Italics by us) The law is and has always been clear that (1) the High Court has undoubted power under Article 226 of the Constitution to interfere; (2) but the High Court will not interfere in its writ jurisdiction "save in very exceptional circumstances"; for instances when there is a flagrant or manifest violation of law or excessive exercise of jurisdiction for which the Court feels compelled to interfere. In the present case, the petitioner has not come at any interlocutory stage. He has come after the election and co-option. Two exceptional circumstances are pressed into service for invoking the writ jurisdiction, without challenging the election by an election petition. It is first contended that the notice for the meeting held on August 2, 1972, was issued on July 26, 1972. It was invalid in as much as rule 8 (4) of the M. P. Janpad Panchayats (Election and co-option) Rules, 1963, required a clear 7 days notice. It is, however admitted for the petitioner that all the members entitled to vote were present in the meeting and participated in the election. That being so, the view can be taken that the notice was waived. We do not finally decide this question but it must be said that we do not see any "exceptional circumstance" for exercising our jurisdiction under Article 226 of the Constitution. That being so, the view can be taken that the notice was waived. We do not finally decide this question but it must be said that we do not see any "exceptional circumstance" for exercising our jurisdiction under Article 226 of the Constitution. The petitioner had his remedy by an election petition under section 357 of the Act. The second contention is that three voters were allowed to have a companion each for assisting in voting although they were all literate and were not incapacitated within the meaning of rule 8 (3) of the M. P. Janpad Panchayats (President and Vice-President) Election Rules. We have perused the statements in the petition and those in the return. There can be no doubt that a disputed question of fact is involved whether the votors or any of them was really incapacitated within the meaning of the above rule. This is not, therefore, an exceptional circumstance for invoking the jurisdiction under Article 226 of the Constitution. The preliminary objection prevails. The petition is dismissed, leaving the parties to bear their own costs. The outstanding amount of the security deposit shall be refunded to the petitioner. Petition dismissed.