JUDGMENT : M.R. Shah, J. Leave to correct the cause title by describing respondent No.1 as State Election Commission, notice to be served through the Secretary, Election Commissioner, State Election Commission. Draft amendment allowed as prayed for. Petitioner to carry out the amendment forthwith. Shri Mahendra Vora, learned advocate seeks permission to delete respondent Nos.3 and 4. Permission is, accordingly, granted. 2. RULE. Ms. Roopal Patel, learned advocate waives service of notice of Rule on behalf of respondent Nos.1 and 2 and Shri Dipen Desai, learned advocate waives service of notice of Rule on behalf of respondent Nos.5 to 7. 2.1. In the facts and circumstances of the case and with the consent of learned advocates appearing on behalf of respective parties, present petition is taken up for final hearing today. 3. By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction or order directing respondent Nos.1 and 2 to accept the nomination form of the petitioner for election to the post of Councilor of Ward No.7 of Dhanera Nagarpalika and permitting him to contest the said election on the symbol of a recognised political party – Bharatiya Janta Party (BJP). By way of amendment which has been carried out the petitioner has prayed for an appropriate writ, direction or order declaring the nomination of the petitioner as valid nomination as the nomination of the main candidate mandated/set up by his party – BJP has been declared invalid by this Court by order dated 04.02.2013 passed in Special Civil Application No.1009 of 2013. 4. Facts leading to the present Special Civil Application in nutshell are as under: 4.1. That for the election of Ward No.7 of Dhanera Nagarpalika, the petitioner and one Yogeshbhai Durgashanker Trivedi submitted the nomination forms and desired to contest the election on behalf of a recognised political party BJP along with the mandate of the concerned party. It appears that the name of the petitioner was sponsored by the recognised political party as a substitute candidate meaning thereby in the mandate given by the aforesaid recognised political party, name of Yogeshbhai Durgashanker Trivedi was submitted/given as a main candidate and the name of the petitioner was submitted/given as a substitute/dummy candidate. It appears that the name of the petitioner was sponsored by the recognised political party as a substitute candidate meaning thereby in the mandate given by the aforesaid recognised political party, name of Yogeshbhai Durgashanker Trivedi was submitted/given as a main candidate and the name of the petitioner was submitted/given as a substitute/dummy candidate. It appears that so far as Yogeshbhai Durgashanker Trivedi is concerned, at the time of scrutiny of the nomination paper, his nomination paper was required to be rejected on the ground that as such he was disqualified to become a Councilor considering the provision of Section 11(1)(a) of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "Act") as he was convicted by the Criminal Court on 05.09.2005 but not undergone the sentence since the sentence was suspended and therefore, the period of four years was not over from the date of conviction, his imprisonment and release from the imprisonment. Despite the above, the Returning Officer accepted the nomination form of the said Yogeshbhai Durgashanker Trivedi. As the nomination form of the said main candidate set up by the concerned recognised political party came to be accepted by the Returning Officer, considering clause 17(1) of the order issued by the State Election Commission dated 08.02.2012 which were issued in exercise of powers under Rule 15 of the Gujarat Municipalities (Conduct of Election) Rules, 1994 (hereinafter referred to as "Election Rules"), the Returning Officer did not consider the nomination form of the petitioner as considering clause 17(1) of the aforesaid order on accepting the nomination form of the main candidate set up by the concerned recognised political party, the nomination form of the dummy candidate/substitute candidate was required to be treated as rejected unless the said dummy/substitute candidate has shown his desire by filing separate nomination form/s and shown his desire to contest the election as an independent candidate (with the signatures of required proposers and seconders). It so happened that the decision of the Returning Officer accepting the nomination form of the main candidate set up by the concerned recognised political party i.e. Yogeshbhai Durgashanker Trivedi came to be challenged by one of the voter of Ward No.7 of Dhanera Nagarpalika before this Court by way of Special Civil Application No.1009 of 2013, which came to be heard finally by the Division Bench on 04.02.2013 and considering the provision of Section 11(1)(a) of the Act as the main candidate set up by the aforesaid recognised political party was disqualified/ineligible to become the Councilor in view of his conviction by the competent criminal Court and as reported, the Division Bench was inclined to set aside the decision of the Returning Officer accepting his nomination form, learned advocate appearing on behalf of the main candidate declared before the court that he is not desirous to contest the election and he has no objection, if his nomination form is rejected by the Court. Considering the above stand taken by the main candidate, the Division Bench by judgment and order dated 04.02.2013 allowed the aforesaid Special Civil Application by quashing and setting aside the order dated 28.01.2013 rejecting the objection of the petitioner of that Special Civil Application and acceptance of the nomination form of the main candidate and consequently, the nomination form of the main candidate came to be rejected. That immediately thereafter the petitioner has preferred the present Special Civil Application for the aforesaid reliefs. 5. That immediately thereafter the petitioner has preferred the present Special Civil Application for the aforesaid reliefs. 5. Shri Mahendra U. Vora/Shri V.C. Vaghela, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such the petitioner filled in the nomination form in prescribed format along with the mandate of a recognised political party (BJP) and in the mandate the name of the petitioner was mentioned as a dummy/substitute candidate set up by the aforesaid political party and therefore, when the nomination form of the main candidate set up by the aforesaid recognised political party has been rejected and/or came to be rejected, as per clause 17(2) of the Order2012 issued by the State Election Commission, the nomination form of the dummy/substitute candidate was required to be considered and if all other formalities are satisfied, the nomination form of the dummy/substitute was required to be accepted and he is required to be permitted to contest the election on the symbol of and/or as a candidate of the aforesaid recognised political party whose mandate in the prescribed form has been produced by the petitioner along with his nomination form within the stipulated time prescribed as per the Election Programme. 5.1. It is the case on behalf of the petitioner that as such when the main candidate was ineligible to contest the election in view of the disqualification contemplated under Section 11(1)(a) of the Act, at the time of scrutiny itself, the Returning Officer was required to reject his nomination paper and consequently considering clause 17(2) of the Order2012 issued by the State Election Commission, the nomination form of the petitioner was required to be considered. It is submitted that as the Returning Officer at the relevant time i.e. at the time of scrutiny acted illegally and not acted in accordance with law and accepted the nomination of the main candidate illegally, the nomination form of the petitioner has not been considered by the Returning Officer illegally. It is submitted that as the Returning Officer at the relevant time i.e. at the time of scrutiny acted illegally and not acted in accordance with law and accepted the nomination of the main candidate illegally, the nomination form of the petitioner has not been considered by the Returning Officer illegally. It is submitted that as stated herein above, if at the time of scrutiny, the nomination form of the main candidate which was otherwise liable to be rejected, would have been rejected by the Returning Officer, in that case considering clause 17(2) of the Order2012, nomination of the petitioner was required to be considered more particularly when there was already a mandate by the aforesaid recognised political party in favour of the petitioner also. It is submitted that by not acting legally and/or in accordance with law by the Returning Officer at the relevant time i.e. at the time of scrutiny of the nomination forms and accepting the nomination form of the ineligible candidate i.e. Main candidate, the right of the petitioner to consider his nomination form as provided under clause 17(2) of the Order 2012 has been taken away and/or infringed. It is submitted that because of the illegality committed by the Returning Officer accepting the nomination form of the ineligible candidate (in the present case the main candidate) and thereby not considering the nomination form of the petitioner treating the same as rejected in view of clause 17(1) of the Order2012, the petitioner should not be made to suffer. It is submitted that as such while submitting the nomination form, the petitioner has complied with all other requirements to consider his nomination sponsored/set up by a recognised political party. 5.2. It is submitted by the learned advocate appearing on behalf of the petitioner that as such earlier the petitioner had no occasion to make the grievance and/or no right to accrued in favour of the petitioner to consider his nomination paper unless and until the nomination form of the main candidate set up by the recognised political party has been rejected. It is submitted that so far as the nomination form of the main candidate set up by the aforesaid recognised political party has been rejected only on 04.02.2013 by this Court, a right has been accrued in favour of the petitioner to consider his nomination considering clause 17(2) of the Order2012 issued by the State Election Commission. Therefore, it is submitted that as such there is no delay at all on the part of the petitioner in approaching this Court for the aforesaid reliefs. It is submitted that rejection of the nomination form of the main candidate Yogeshbhai Durgashanker Trivedi by this Court on 04.02.2013 would as such relate back to the date of scrutiny. Making above submissions, it is requested to allow the present Special Civil Application. 6. Ms. Roopal Patel, learned advocate appearing on behalf of respondent Nos.1 and 2 has requested to pass appropriate order and has left it to the Court to pass suitable order by submitting that as such despite the aforesaid provisions i.e. clause 17(1) and 17(2) of the Order2012, so far as the Returning Officer is concerned, he has no power and/or authority to consider the nomination form of the petitioner subsequently i.e. beyond the date of scrutiny. She has also stated at the bar that whatever the directions are issued, the same shall be complied with/carried out by the State Election Commission and the Returning Officer. At the same time, she has also fairly conceded that at the relevant time the Returning Officer ought not to have accepted the nomination form of the main candidate in view of his disqualification under Section 11(1)(a) of the Act. She has also categorically admitted that if at the relevant time the Returning Officer would have rejected the nomination form of the main candidate, the nomination of the petitioner being a dummy/substitute candidate set up by the recognised political party could have been considered, if other requirements are satisfied or complied with. 7. Present Special Civil Application is seriously and vehemently opposed by Shri Dipen Desai, learned advocate appearing on behalf of respondent Nos.5 to 7. It is submitted by Shri Desai, learned advocate appearing on behalf of respondent Nos.5 to 7 that as at the relevant time the petitioner did not challenge the rejection of his nomination form i.e. on 28.01.2013, thereafter, it is not open for the petitioner to challenge the same. It is submitted by Shri Desai, learned advocate appearing on behalf of respondent Nos.5 to 7 that as at the relevant time the petitioner did not challenge the rejection of his nomination form i.e. on 28.01.2013, thereafter, it is not open for the petitioner to challenge the same. It is further submitted that therefore on the ground of waiver and acquiescence, the present petition may not be entertained. 7.1. It is further submitted by Shri Dipen Desai, learned advocate appearing on behalf of respondent Nos.5 to 7 that even otherwise the nomination form of the main candidate came to be rejected by this Court on 04.02.2013 i.e. after the date of scrutiny by the Returning Officer and therefore, even otherwise on the date of scrutiny of the nomination forms, the nomination form of the petitioner was required to be rejected and therefore, the nomination of the petitioner was rightly rejected by the Returning Officer on 28.01.2013. 7.2. It is further submitted by Shri Dipen Desai, learned advocate appearing on behalf of respondent Nos.5 to 7 that as such if so desired, the petitioner could have filled in the separate nomination form as an independent candidate along with the signatures of required number of voters as proposers/seconders and having chosen not to do so, thereafter, it is not open for the petitioner to contend that his nomination form ought to have been considered as a dummy/substitute candidate. In support of his above submissions, Shri Dipen Desai, learned advocate appearing on behalf of respondent Nos.5 to 7 has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Sathi Vijay Kumar v. Tota Singh and Ors. reported in (2006) 13 SCC 353 as well as in the case of Krishna Mohini (Ms) v. Mohinder Nath Sofat reported in (2000) 1 SCC 145 . Relying upon the decision of the Hon'ble Supreme Court in the case of Sathi Vijay Kumar (Supra), it is submitted by Shri Dipen Desai, learned advocate appearing on behalf of respondent Nos.5 to 7 that as such the substitute candidate cannot be said to be a duly nominated candidate of that party. It is submitted that in the aforesaid decision the Hon'ble Supreme Court has confirmed the view taken by the High Court that on nonjoinder of the substitute candidate in the election petition, the election petition cannot be dismissed. 7.3. It is submitted that in the aforesaid decision the Hon'ble Supreme Court has confirmed the view taken by the High Court that on nonjoinder of the substitute candidate in the election petition, the election petition cannot be dismissed. 7.3. Lastly, it is submitted that even on the ground of having alternative remedy available to the petitioner to file an election petition on whatever ground available, it is requested not to entertain the present petition under Article 226 of the Constitution of India and not to grant the reliefs as prayed for in the petition. 8. In reply to the contention on behalf of the respondent Nos.5 to 7 that in view of the alternative remedy available to the petitioner by way of election petition and therefore, this Court may not entertain the present petition under Article 226 of the Constitution of India, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Election Commission of India Through Secretary v. Ashok Kumar and Ors. reported in (2000)8 SCC 216 ; Pundlik v. State of Maharashtra and Ors. reported in (2005)7 SCC 181 as well as decision of the Division Bench of this Court in the case of Bashir Adamji Adat v. State of Gujarat & Ors. reported in 2007 (2) GLR 1820 as well as another decision of the Division Bench of this Court in the case of Ukabhai Jivabhai Kanjaria v. State of Gujarat & Ors. reported in 2007 (2) GLH 242 . It is further submitted by the learned advocate appearing on behalf of the petitioner that if the present petition is allowed and the reliefs as sought for are allowed, in that case, the election programme is not likely to be affected. It is submitted that on the contrary by not exercising the powers at this stage would tantamount to perpetuate the illegality committed by the Returning Officer at the relevant time. It is further submitted that as such on the issue which is raised in the present Special Civil Application and/or on the ground which is raised in the present Special Civil Application, the election petition would not be maintainable and/or on the ground raised in the present Special Civil Application the petitioner cannot challenge the election and/or file the election petition. Therefore, it is requested to entertain the present Special Civil Application. 8.1. Therefore, it is requested to entertain the present Special Civil Application. 8.1. To the aforesaid Shri Dipen Desai, learned advocate appearing on behalf of respondent Nos.5 to 7 has submitted that on the ground of rejection of nomination form of a candidate, subsequently the election petition would be maintainable and the same can be a ground to challenge the election of a returned candidate. It is submitted that even in the case of Krishna Mohini (Ms) (Supra), the matter arise out of the election petition in which the election of a returned candidate was challenged by a person/candidate whose nomination form was wrongly rejected. Therefore, it is requested not to exercise the powers under Article 226 of the Constitution of India at this stage and to dismiss the present Special Civil Application. 9. Heard learned advocates appearing on behalf of respective parties at length. The following are the undisputed facts. 1. The petitioner did submit the nomination form before the relevant date of submitting the form to contest the election for the post of Councilor of Ward No.7 of Dhanera Nagarpalika along with the mandate of the concerned recognised political party, however, the mandate which was given by the aforesaid recognised political party in favour of the petitioner was as dummy/substitute candidate set up by the aforesaid recognised political party and the mandate in favour of one Yogeshbhai Durgashanker Trivedi who also filled in the nomination form at the relevant time along with the petitioner, was as a main candidate set up by the aforesaid recognised political party. 2. Despite the fact that the main candidate set up by the aforesaid recognised political party was ineligible to become the Councilor in view of the provision of Section 11(1)(a) of the Act, at the time of scrutiny, the Returning Officer illegally and against the provisions of law accepted the nomination form of the main candidate. 3. Considering clause 17(1) of the Order2012 issued by the State Election Commission issued in exercise of powers under Rule 15 of the Election Rules, as the nomination form of the main candidate was accepted, the Returning Officer at the relevant time i.e. at the time of scrutiny, did not consider the nomination form of the petitioner and/or rejected the nomination form of the petitioner. 4. 4. That the nomination form of the main candidate came to be rejected by the Division Bench of this Court by judgment and order dated 04.02.2013 passed in Special Civil Application No.1009 of 2013, which as such would relate back to the date of scrutiny. 5. As such otherwise the nomination form of the petitioner was in the prescribed format/form and after satisfying all other conditions and/or requirements along with the mandate in his favour by a recognised political party. Considering the aforesaid facts and circumstances, the controversy raised in the present Special Civil Application is required to be considered. 9.1. It is required to be noted and it is not the case on behalf of learned advocate appearing on behalf of respondent Nos.5 to 7 that one recognised political party cannot give mandate to more than one candidate. It is also not the case on behalf of respondent Nos.5 to 7 that the petitioner could not have submitted the nomination form as a dummy/substitute candidate set up by the aforesaid recognised political party. Considering the provisions of the Election Rules as such it is always open for a candidate to submit four nomination forms. He may submit one form showing his desire to contest the election for being set up by a recognised political party and he can pin his hopes for being sponsored by such political party upto the hour by which the time for filing the nomination form expires and simultaneously he can also submit other three nomination forms to contest as an independent candidate along with the signatures of required proposers and seconders. If such a candidate succeeds in getting the mandate/sponsorship by such recognised political party, in that case, he should be permitted to contest the election as if he is sponsored by such recognised political party and on the symbol of the said recognised political party. As observed by the Hon'ble Supreme Court in the case of Krishna Mohini (Ms) (Supra), if he fails to obtain such sponsorship by the recognised political party in accordance with the provisions contained in para 13 of the Symbol's order then his nomination/candidature is required to be considered as an independent candidate subject to his satisfying the requirement of having been proposed by the required electors/proposers/seconders. The contention on behalf of respondent Nos.5 to 7 that at the relevant time the petitioner did not fill up/submitted other nomination form to contest the election as independent candidate and at the time of scrutiny he accepted the decision of the Returning Officer rejecting his nomination, thereafter his case cannot be considered on the ground of waiver and/or acquiescence, cannot be accepted. Merely because at the relevant time he did not submit the nomination forms showing his inclination to contest the election as independent candidate and submitted the nomination form along with the sponsorship/mandate in his favour by a recognised political party, in case of the eventuality, which has occurred, as provided under clause 17(2) of the Order2012, it cannot be said that subsequently he cannot claim his case and/or right on the basis of clause 17(2) of the Order2012. There is no question of waiver or acquiescence by the petitioner. As per the cardinal principle of law and as per catena of decisions of the Hon'ble Supreme Court, there cannot be any waiver against the statute. Even otherwise in the present case it cannot be said that there was any waiver and/or acquiescence by the petitioner. If subsequently the petitioner claims that his nomination/candidature is to be considered as independent candidate then and then only the question with respect to waiver and/or acquiescence will arise. 9.2. As stated herein above as such at the relevant time i.e. at the time of scrutiny of the nomination forms, the Returning Officer ought to have rejected the nomination form of the main candidate i.e. Yogeshkumar Durgashanker Trivedi. Therefore, as such at the time of scrutiny of the nomination forms, the Returning Officer acted illegally and wrongly accepted the nomination form of the main candidate i.e. Yogeshkumar Durgashanker Trivedi. If at the relevant time i.e. at the time of scrutiny of the nomination forms the Returning Officer would have acted in accordance with law, in that case, he would have rejected the nomination form of the main candidate set up by the aforesaid recognised political party and in that case, considering clause 17(2) of the Order2012, the nomination form of the petitioner being a dummy/substitute candidate set up by the aforesaid recognised political party was required to be considered/approved by the Returning Officer. As the Returning Officer acted illegally and/or contrary to the law and thereby accepted the nomination form of the main candidate set up by the aforesaid recognised political party, considering clause 17(1) of the Order2012, the nomination form of the petitioner was treated as cancelled/rejected. Clause 17(1) and 17(2) of the Order2012, which is relevant, reads as under: 17(1) Upon nomination form of the approved candidate being approved, the nomination form of the dummy candidate shall be rejected/cancelled by the Election Officer. Even if the dummy candidate has filed another nomination form with necessary number of proposers and seconders, then considering such a candidate as individual candidate, nomination form shall be examined differently. 17(2) Upon rejection/cancellation of the nomination form of the candidate of a party, the nomination form of dummy candidate set up by the party shall be approved, if not liable to be rejected on any other ground. Thus, at the relevant time i.e. at the time of scrutiny of the nomination forms, the Returning Officer acted illegally and thereby treated the nomination form of the petitioner as rejected. As per the settled proposition of law, nobody can be made to suffer because of the fault of others and/or illegality committed by the Authority which cannot be attributed to the said person. Therefore, in the present case, for the illegality committed by the Returning Officer at the time of scrutiny of the nomination forms by accepting the nomination form of the main candidate i.e. Yogeshbhai Durgashanker Trivedi and thereby illegally treating the nomination of the petitioner as rejected, the petitioner should not be made to suffer. 9.3. It is also required to be noted at this stage that even Shri Desai, learned advocate appearing on behalf of respondent Nos.5 to 7 has fairly conceded that if at the time of scrutiny of nomination forms, the nomination form of the main candidate would have been rejected by the Returning Officer at the relevant time, the nomination form of the petitioner being a dummy/substitute candidate set up by the recognised political party could have been considered. However, it is the case on behalf of respondent Nos.5 to 7 that as at the relevant time the petitioner did not challenge the rejection of his nomination form, thereafter, it is not open for him to challenge the same. The aforesaid has no substance and cannot be accepted. However, it is the case on behalf of respondent Nos.5 to 7 that as at the relevant time the petitioner did not challenge the rejection of his nomination form, thereafter, it is not open for him to challenge the same. The aforesaid has no substance and cannot be accepted. It is to be noted that the right in favour of the petitioner has accrued only when the nomination form of the main candidate has been rejected by this Court i.e. on 04.02.2013 (which would ultimately relate back to the date of scrutiny). Till then, considering clause 17(1) and 17(2) of the Order2012 and so long as the nomination of the main candidate set up by the recognised political party was accepted, there was no right in favour of the petitioner to consider his nomination form for and on behalf of the recognised political party unless he had filled in another nomination form with required signatures of the voters/proposers/seconders to contest the election as an independent candidate. Under the circumstances, so long as the decision of the Returning Officer to accept the nomination form of the main candidate stood, there was no occasion for the petitioner to challenge the rejection of his nomination form. As stated herein above the eventuality to claim the right by the petitioner has arisen only on occurring of the eventuality mentioned in clause 17(1) and 17(2) of Order2012. Under the circumstances, nomination form of the petitioner as a candidate sponsored by the concerned recognised political party is/was required to be considered considering clause 17(2) of the Order2012. At the cost of repetition, it is to be noted that if at the relevant time i.e. at the time of scrutiny of the nomination forms, the Returning Officer would have acted legally and/or in accordance with law and had rejected the nomination form of the main candidate, in that case the nomination form of the petitioner which was filled in as a dummy/substitute candidate was required to be considered by the Returning Officer in view of clause 17(2) of the Order2012. Had the Returning Officer acted in accordance with law at the time of scrutiny, the occasion to reject the nomination form of the main candidate by this Court would not have arisen on 04.02.2013 and if the nomination form of the main candidate would have been rejected at the relevant time i.e. on the date of scrutiny, the nomination form of the petitioner which was filled in as a dummy/substitute candidate set up by the recognised political party would have been considered. As noted herein above, as such the learned advocate appearing on behalf of respondent Nos.5 to 7 is not in a position to dispute the same and as such not disputing the same, however, the present petition is opposed by learned advocate appearing on behalf of respondent Nos.5 to 7 on the grounds stated herein above. However, because of the error and/or mistake and/or illegality committed by the Returning Officer, the petitioner should not be made to suffer, more particularly such error and/or illegality is not attributed to the petitioner. 9.4. Now so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Krishna Mohini (Ms) (Supra) by learned advocate appearing on behalf of respondent Nos.5 to 7 is concerned, this Court fails to appreciate how the said decision would be of any assistance to them. The controversy before the Hon'ble Supreme Court was to consider another nomination form filled in by a substitute candidate set up by a recognised political party as independent candidate and to that the Hon'ble Supreme Court has observed and held that even the nomination of the main candidate set up by a recognised political party is accepted, nomination of the substitute candidate of that party cannot be rejected if the same is subscribed by 10 proposers and in that case nomination of such candidate was required to be accepted by treating him as an independent candidate. Even as such that is the provision in the Order2012 of the State Election Commission. Even as such that is the provision in the Order2012 of the State Election Commission. However, merely because the petitioner did not choose to submit another nomination form (though permissible) as an independent candidate by that itself it cannot be said that the petitioner has waived his right available under clause 17(2) of the Order2012 and/or by that it cannot be said that the petitioner cannot assert his right to consider his nomination form submitted as a dummy/substitute candidate set up by the concerned recognised political party available under clause 17(1) of the Order2012 issued by the State Election Commission. 9.5. Now so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Sathi Vijay Kumar (Supra) is concerned, the same would not be of any assistance to respondent Nos.5 to 7. In the case before the Hon'ble Supreme Court the nomination form of the main candidate set up by the concerned recognised political party was accepted and he contested the election and thereafter the defeated candidate filed the election petition without joining substitute candidate and an objection was raised with respect to nonjoinder of the substitute candidate and it was requested to dismiss the election petition on the ground of nonjoinder of substitute candidate. To that the Hon'ble Supreme Court has observed and held that once the nomination paper of an approved/main candidate of a recognised political party is accepted, nomination paper of the substitute of the same party has to be rejected and where the returned candidate was a candidate of the political party, the other one was substitute of the same party and when the nomination of the returned candidate was accepted, the substitute cannot be held to be duly nominated candidate of that party and therefore, the nonjoinder of the substitute as a party respondent would not be fatal to the election petition. 9.6. Now so far as the last submission made by the learned advocate appearing on behalf of respondent Nos.5 to 7 and his request not to entertain the present petition under Article 226 of the Constitution of India on the ground of alternative remedy available to the petitioner to file election petition is concerned, the aforesaid cannot be accepted in the facts and circumstances of the case narrated herein above. Assuming that the election petition would be maintainable, in that case also, considering the decisions of the Hon'ble Supreme Court in the case of Ashok Kumar and Ors. (Supra) as well as in the case of Pundalik (Supra) and the decisions of the Division Bench of this Court in the case of Bashir Adamji Adat (Supra) and in the case of Ukabhai Jivabhai Kanjaria (Supra), as such there is no bar to entertain the present petition under Article 226 of the Constitution of India. In the case of Ashok Kumar and Ors. (Supra), the Hon'ble Supreme Court has laid down the following principles in paras 28 and 32 of the judgment. "28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes. 32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us herein above : 1. If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. 2. Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. 3. 2. Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. 3. Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. 4. Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. 5. The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material." 9.7. Relying upon the decisions of the Hon'ble Supreme Court in the case of Ashok Kumar and Ors. Relying upon the decisions of the Hon'ble Supreme Court in the case of Ashok Kumar and Ors. (Supra) and Pundalik (Supra), the Division Bench of this Court in the case of Bashir Adamji Adat (Supra) and Ukabhai Jivabhai Kanjaria (Supra) have also held that where the statutory Authority has acted in breach of law, without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein. In the present case the learned counsel appearing on behalf of the State Election Commission has categorically stated that if the prayer which is sought in the present Special Civil Application is granted in favour of the petitioner and his nomination form is directed to be considered/accepted as sponsored by the concerned recognised political party, in that case, the State Election Commission is to allot the symbol of the concerned recognised political party to the petitioner while permitting the petitioner to contest the election and the same is not likely to interrupt/obstruct/delay the progress of the election proceedings. Considering the aforesaid decisions of the Hon'ble Supreme Court as well as Division Bench of this Court and when by granting relief to the petitioner at this stage there is no likelihood of interrupting/obstructing/delaying progress of election proceedings, the petitioner is entitled to relief as sought in the present petition. 10.0. In view of the above and for the reasons stated above, present Special Civil Application succeeds. 10.0. In view of the above and for the reasons stated above, present Special Civil Application succeeds. The action of the respondent Returning Officer/State Election Commission in rejecting/not considering the nomination form of the petitioner in light of clause 17(1) of the Order2012 as a candidate set up by the concerned recognised political party and thereby not permitting the petitioner to contest the election of Ward No.7 of Dhanera Nagarpalika is hereby quashed and set aside and the Returning Officer is directed to consider the nomination form of the petitioner set up by the concerned recognised political party for Ward No.7 of Dhanera Nagarpalika considering clause 17(1) and 17(2) of the Order2012 issued by the State Election Commission forthwith and if all other conditions and/or requirements are satisfied, accept/approve the nomination form of the petitioner and permit him to contest the ensuing election for the post of Councilor of Ward No.7 of Dhanera Nagarpalika as a candidate set up by the concerned recognised political party of which he has submitted the mandate of the concerned recognised political party in the prescribed format. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, no order as to costs. Direct service is permitted TODAY. Petition allowed.