Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1657 (GAU)

Lila Sarma v. State of Assam

2018-11-28

UJJAL BHUYAN

body2018
ORDER : Ujjal Bhuyan, J. 1. This order will dispose of WP(C) Nos. 8065, 8066, 8070, 8071, 8074, 8079, 8081 and 8082/2018. 2. Heard Mr. M.K. Choudhury and Mr. HRA Choudhury, learned Senior counsel assisted by Mr. A. Sharma, Mr. A.R. Bhuyan, Mr. JMA Choudhury, Ms. S.K. Nargis, Mr. Suryadeep Dey, Mr. B.K. Das and Mr. P. Saikia, learned counsel for the petitioners. Also heard Mr. N. Borah, learned Standing Counsel, Assam State Election Commission and Mr. M. Nath, learned Standing Counsel, Panchayat and Rural Development Department, Govt. of Assam. Mr. M.H. Choudhury, learned counsel has appeared by filing caveat in WP (C) No. 8066/2018. 3. Issue raised in this bunch of writ petitions relates to rejection of nominations of the petitioners for contesting the ensuing panchayat election in the State of Assam. Prayer made is for quashing such rejection and for directing the respondents to allow the petitioners to contest election by treating their nominations as valid. 3.1. Though detailed narration of facts of individual cases may not be necessary, however, for a proper appreciation of the controversy, it would be apposite to briefly narrate the facts of individual cases. 4. In WP(C) No. 8065/2018, there are 7 petitioners. Their case is that they had submitted nominations for the posts of President of Gaon Panchayats and Member of Anchalik Panchayats in the district of Biswanath. Their nominations have been rejected on the ground of non-submission of Bakijai clearance certificates. 5. Petitioner in WP(C) No. 8066/2018 had submitted nomination for the post of Member of Anchalik Panchayat from No. 71 Besimara Gaon Panchayat in the district of Darrang. It is contended that his nomination was initially declared as valid on 16.11.2018 but was rejected on 17.11.2018 by striking off the same from the valid list of nominations. Ground given for such rejection is that petitioner was Secretary of Village Defence Party (VDP), thus holding an office of profit. 6. In WP(C) No. 8070/2018, petitioner had filed nomination for the post of President, No. 64 Kallayan Gaon Panchayat in the district of Darrang. Here also, his nomination was declared valid on 16.11.2018 but was rejected on 17.11.2018 on the ground of being VDP Secretary, thereby holding an office of profit. 7. In WP(C) No. 8071/2018, petitioner had filed nomination for the post of President, No. 93 Bagbari Gaon Panchayat, Karimganj. Here also, his nomination was declared valid on 16.11.2018 but was rejected on 17.11.2018 on the ground of being VDP Secretary, thereby holding an office of profit. 7. In WP(C) No. 8071/2018, petitioner had filed nomination for the post of President, No. 93 Bagbari Gaon Panchayat, Karimganj. Her nomination was rejected on 20.11.2018 on the ground that her name was not included in the electoral roll of the concerned Panchayat. 8. Petitioner in WP(C) No. 8074/2018 had filed his nomination for the post of President, No. 66 Arimari Gaon Panchayat in the district of Darrang. It is contended that his nomination was found valid on 16.11.2018 but was however rejected on 17.11.2018 on the ground that petitioner was VDP Secretary and thus holding an office of profit. 9. In WP(C) No. 8079/2018, petitioner had filed nomination for the post of President, No. 39 Balabari Gaon Panchayat in the district of Darrang. His nomination was rejected on 19.11.2018 on the ground that he was VDP Secretary and, thus, holding an office of profit. 10. In WP(C) No. 8081/2018, petitioner had filed nomination for the post of President, No. 40 Sherpur Gaon Panchayat in the district of Darrang. However, his nomination was rejected on 19.11.2018 without assigning any reason. Since petitioner was Secretary of VDP, he has assumed that because he was Secretary of VDP, his nomination was rejected. 11. Lastly in WP(C) No. 8082/2018, petitioner had filed nomination for the post of President, Rajgarh Gaon Panchayat. Dibrugarh. Her nomination was rejected on 17.11.2018 on the ground that her party nomination was found to be defective and that she did not choose any other symbol of independent candidate. 12. Mr. M.K. Choudhury, learned Senior counsel in his submissions contended that nominations of the petitioners have been rejected on very trivial grounds. Petitioners want to participate in the panchayat election but they have been denied that opportunity in an arbitrary and unreasonable manner by the Returning Officers. Impugned rejections are devoid of reasons or are on wholly untenable grounds. Objective of the petitioners is not to obstruct or derail the electoral process but to further the same. Interference by the writ Court would not obstruct the electoral process. Referring to Article 243O as well as Article 329 of the Constitution together with Section 129 of the Assam Panchayat Act, 1994, Mr. Objective of the petitioners is not to obstruct or derail the electoral process but to further the same. Interference by the writ Court would not obstruct the electoral process. Referring to Article 243O as well as Article 329 of the Constitution together with Section 129 of the Assam Panchayat Act, 1994, Mr. Choudhury submits that though Supreme Court has given wide interpretation to the expression 'election', Article 243O or Section 129 of the Assam Panchayat Act, 1994 (Panchayat Act) as such do not oust judicial review altogether. If rejection of nomination is on absolutely arbitrary and wholly untenable grounds which would affect purity of the electoral process, writ Court exercising power of judicial review under Article 226 of the Constitution would certainly be within its jurisdiction to intervene. In support of his submissions, Mr. Choudhury has placed reliance on the following decisions:- AIR 1984 SC 1911 : Inderjit Baruah Vs. Election Commission of India; (1996) 6 SCC 303 : Anurag Narain Singh Vs. State of UP; (2000) 8 SCC 216 : Election Commission of India Vs. Ashok Kumar. 12.1. He, therefore, submits that rejection of nomination in the present cases being wholly illegal and untenable, writ Court should set aside the same and allow the petitioners to participate in the election which would only strengthen the electoral process. 13. Supporting the submissions made by Mr. Choudhury, Mr. A. Sharma submits that in an election matter, jurisdiction of the writ Court under Article 226 is not totally ousted. He submits that rejection of nomination on the ground that candidate was VDP Secretary is highly illegal. Firstly, VDP Secretary is not an office of profit. Therefore, holding the post of VDP Secretary would not render a candidate ineligible. Secondly, as a matter of fact, at the time of scrutiny of nomination papers, his clients had resigned as VDP Secretary. Mr. Sharma has referred to the decision of the Supreme Court in MS. Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405 as well as in the case of Boddula Krishnaiah Vs. State Election Commissioner, A.P., (1996) 3 SCC 416 . Referring to the recent decision of the Supreme Court in West Bengal State Election Commission Vs. Mr. Sharma has referred to the decision of the Supreme Court in MS. Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405 as well as in the case of Boddula Krishnaiah Vs. State Election Commissioner, A.P., (1996) 3 SCC 416 . Referring to the recent decision of the Supreme Court in West Bengal State Election Commission Vs. Communist Party of India (Marxist), Civil Appeal No. 8515/2018, decided on 24.8.2018, he submits that that was a case where Calcutta High Court made wholesale intervention in the electoral process by permitting online submission of nominations which was not a mode of submission of nomination under the West Bengal Panchayat Act. This was set aside by the Supreme Court. Present cases stand on totally different footing. 14. Mr. H.R.A. Choudhury, learned Senior counsel, strenuously argued that the post of VDP Secretary is honorary. It is not an appointment by the Government and does not carry any salary. Referring to the provisions of Assam Village Defence Organisation Act, 1966 and the Rules framed thereunder, he submits that holding of post of VDP Secretary does not amount to holding an office of profit. In this connection, he has placed reliance on a decision of the Supreme Court in Pradyut Bordoloi Vs. Swapan Roy, (2001) 2 SCC 19 . 14.1. Mr. Choudhury has referred to the provisions of the Assam Panchayat (Constitution) Rules, 1995, particularly, Rules 16 and 22 thereof as well as the Handbook for Conduct of Panchayat Elections issued by the Assam State Election Commission and submits that scrutiny of nomination papers is an exercise of quasi-judicial powers. There is presumption of validity of nomination papers. Unless there are overriding reasons, nomination papers should not be rejected and if it has to be rejected, then reasons must be given. In the instant cases, either reasons are wholly untenable or no reasons have been given. Such rejection of nomination papers is highly improper. 15. Mr. Suryadeep Dey, learned counsel has supported the submissions made by other counsel for the petitioners. Besides, he has highlighted what he terms as wholly arbitrary and discriminatory rejection of the nomination of his client. 16. Mr. B.K. Das and Mr. A.R. Bhuyan have adopted the submissions made by other learned counsel for the petitioners. 17. Mr. 15. Mr. Suryadeep Dey, learned counsel has supported the submissions made by other counsel for the petitioners. Besides, he has highlighted what he terms as wholly arbitrary and discriminatory rejection of the nomination of his client. 16. Mr. B.K. Das and Mr. A.R. Bhuyan have adopted the submissions made by other learned counsel for the petitioners. 17. Mr. N. Bora, learned Standing Counsel, Assam State Election Commission submits that there should be no interference by the Court at this stage when election process has been set in motion. Remedy of the petitioners is by way of election petition post declaration of results. Therefore, filing of writ petition is misconceived. Writ petitions should be dismissed. He has referred to the decision of Boddula Krishnaiah (supra) and placed heavy reliance on the decision of the Supreme Court in Manda Jaganath Vs. K.S. Rathnam, (2004) 7 SCC 492 . 18. Supporting the submissions of Mr. Bora, Mr. M. Nath, learned Standing Counsel, Panchayat and Rural Development Department submits that the expression 'election' has been given wide interpretation by the Courts in India 'Election' includes rejection or acceptance of nomination. In view of the bar under Article 243O of the Constitution and Section 129(b) of the Panchayat Act, writ petitions are not maintainable. There should be no interference under Article 226 of the Constitution of India. Therefore, writ petitions should be dismissed. In support of his submissions, he has referred to the decision of the Supreme Court in N.P. Punnuswami Vs. Returning Officer, Namakkal Constituency, AIR 1952 SC 64 , Pratap Chandra Mehta Vs. State Bar Council of M.P., (2011) 9 SCC 573 and Shaji K. Joseph Vs. V. Viswanath, (2016) 4 SCC 429 . 19. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 20. After hearing elaborate submissions of learned counsel for the parties, following three issues arise for consideration in this batch of writ petitions:- (1) What is the meaning of the expression 'election'? Whether rejection of nomination would fall within the ambit of the said expression 'election'? (2) Whether in view of the bar under Article 243O of the Constitution and under Section 129(b) of the Panchayat Act, judicial review under Article 226 of the Constitution is totally excluded? (3) Whether petitioners are entitled to the reliefs as claimed? 21. Whether rejection of nomination would fall within the ambit of the said expression 'election'? (2) Whether in view of the bar under Article 243O of the Constitution and under Section 129(b) of the Panchayat Act, judicial review under Article 226 of the Constitution is totally excluded? (3) Whether petitioners are entitled to the reliefs as claimed? 21. Before embarking on a deliberation of the issues so framed, it would be apposite to refer to the election notification. State Election Commissioner, Assam issued notification dated 05.11.2018 in exercise of powers conferred by Article 243K of the Constitution and Section 114(1) of the Panchayat Act read with Rules 15 and 16 of the Assam Panchayat (Constitution) Rules, 1995 (Constitution Rules) notifying schedule of general election to the panchayats in the State of Assam. It was mentioned that general election will be held in two phases as per schedule. Schedule appended to the notification mentions that there will be two phases of election. In the first phase, election will be held on 5.12.2018 and in the second phase, it will be held on 9.12.2018. While the last dates for filing nominations were 15.11.2018 and 19.11.2018, dates for scrutiny were 16.11.2018 and 20.11.2018 respectively. The dates for withdrawal of candidature were 19.11.2018 and 22.11.2018 which were also the dates for publication of the list of contesting candidates. Counting of votes will take place on 12.12.2018. 22. Part-IX of the Constitution comprising of Articles 243 to 243-O deals with panchayats. Article 243-O bars interference by Courts in electoral matters. It starts with a non-obstante clause. In this proceeding, we are concerned with Clause (b). It says that notwithstanding anything in the Constitution, 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. 23. Under the Representation of the People Act, 1951, which deals with parliamentary and assembly elections, no election shall be called in question except by an election petition as per Section 80 thereof. Section 100 provides the grounds for declaring an election to be void. 23. Under the Representation of the People Act, 1951, which deals with parliamentary and assembly elections, no election shall be called in question except by an election petition as per Section 80 thereof. Section 100 provides the grounds for declaring an election to be void. As per Section 100(1)(c), if the High Court functioning as the Election Tribunal is of the opinion that any nomination has been improperly rejected or under Section 100(1)(d)(i), if the result of the election in so far it concerns a returned candidate has been materially affected by improper acceptance of any nomination, High Court shall declare the election of the returned candidate to be void. 24. Before proceeding to the Panchayat Act, it would be relevant to briefly refer to Part-XV of the Constitution which deals with elections, meaning thereby elections to Parliament and to the Legislature of the States as well as to the offices of President and Vice-President. Like Article 243-O, Article 329 bars interference by Courts in electoral matters. Here also, the relevant provision, i.e., Article 329(b) is similarly worded as Article 243-O. It says that notwithstanding anything in the Constitution, no election to either house of Parliament or to the house or either house of the Legislature of State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. As noticed above, such election can be challenged by an election petition before the jurisdictional High Court as per provisions contained in the Representation of the People Act, 1951. 25. After the panchayats have been given constitutional status with the insertion of Part-IX in the Constitution by making them third tier of governance in the country, Panchayat Act was enacted providing for a three-tier Panchayati Raj system in the State which are to be formed on the basis of election based on universal adult franchise. Section 129 bars interference by Courts in electoral matters, i.e., in panchayat elections. 26. In this proceeding, we are concerned with Sub-Section (b) of Section 129. It says that notwithstanding anything contained in the Panchayat Act, no election to any panchayat shall be called in question except by an election petition presented within 60 days from the date of declaration of election results to the Tribunal constituted under Section 127. 27. 26. In this proceeding, we are concerned with Sub-Section (b) of Section 129. It says that notwithstanding anything contained in the Panchayat Act, no election to any panchayat shall be called in question except by an election petition presented within 60 days from the date of declaration of election results to the Tribunal constituted under Section 127. 27. Constitution of Panchayat Election Tribunal is dealt with in Section 127. It says that the Government shall constitute such Election Tribunals as may be necessary, on the recommendation of the High Court to dispose of all direct election petitions challenging elections under the Panchayat Act. The jurisdiction, powers and functions and the headquarters of such Tribunals shall be decided by the Government in consultation with the High Court. It is stated at the Bar that Courts of District Judges have been designated as Panchayat Election Tribunals. 28. Assam Panchayat (Constitution) Rules, 1995 have been framed in exercise of powers conferred by Sub-Section (1) of Section 141 of the Panchayat Act for conducting panchayat elections. Rule 16 thereof deals with submission, scrutiny and withdrawal of nominations and Rule 22 specifically deals with filing and scrutiny of nomination papers. 29. In the Handbook for Conduct of Panchayat Elections, Chapter-6 deals with scrutiny of nominations. The authorized officer scrutinizing nomination must be satisfied that the nomination paper is valid in law. 13 grounds have been mentioned which would entail rejection of nomination. However, there is a presumption that every nomination paper is valid. That apart, when a candidate's nomination paper is improperly rejected and he is prevented thereby from contesting the election, there is legal presumption that the result of the election has been materially affected by such improper rejection in which event election may be set aside. Highlighting the aspect that scrutiny of nomination paper is a quasi-judicial exercise, it has been emphasized that rejection of nomination paper must be supported by recording of reasons. 30. In the present bunch of writ petitions, grievance expressed by the petitioners is that their nomination papers were summarily rejected without assigning reasons, sometimes beyond the scheduled date. 31. Though Assam State Election Commission has prepared the above handbook for internal circulation, field level officers, particularly, Returning Officers are required to be sensitized while dealing with scrutiny of nomination papers. In the present bunch of writ petitions, grievance expressed by the petitioners is that their nomination papers were summarily rejected without assigning reasons, sometimes beyond the scheduled date. 31. Though Assam State Election Commission has prepared the above handbook for internal circulation, field level officers, particularly, Returning Officers are required to be sensitized while dealing with scrutiny of nomination papers. Improper acceptance of nomination or improper rejection of nomination paper may lead to setting aside of the result of the elected candidate. Assam State Election Commissioner may look into this aspect of the matter and do the needful so that Returning Officers and all other officers who are in the field scrupulously follow the rule book while dealing with scrutiny of nomination papers because this is a crucial phase of the electoral process which may have a material bearing on the outcome of the election. 32. Proceeding to the questions framed. We find that the expression 'election' is neither defined in the Constitution nor in the Representation of the People Act, 1951. It is also not defined in the Panchayat Act. 33. In N.P. Ponnuswami (supra), a Constitution Bench of the Supreme Court held that the word 'election' has been used in Part-XV of the Constitution in a wide sense, i.e., 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 election' in Article 324 specifically points to the wide meaning. The word 'election' bears this wide meaning whenever we talk of elections in a democratic country. It was held that the word 'election' can be and has been appropriately used 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. 34. In Manda Jaganath (supra), Supreme Court referred to the deliberations in N.P. Ponnuswami (supra) and held that the word 'election' has been judicially defined by various authorities to mean any and every act taken by the competent authority after publication of the election notification. 35. Finally, in Pratap Chandra Mehta (supra), Supreme Court specifically clarified that 'election' is an expression of wide connotation which embraces the whole procedure of election and is not confined to the final result thereof. Rejection or acceptance of nomination paper is included in the term' election'. 36. 35. Finally, in Pratap Chandra Mehta (supra), Supreme Court specifically clarified that 'election' is an expression of wide connotation which embraces the whole procedure of election and is not confined to the final result thereof. Rejection or acceptance of nomination paper is included in the term' election'. 36. Therefore, from an analysis of the judicial pronouncements as above, there is no room for any doubt that the expression 'election' whether it appears in Articles 324 or in Article 243-O of the Constitution or under Section 129(b) of the Panchayat Act, has a wide connotation and would mean and cover every stage of the electoral process commencing from the date of issue of election notification till the date of declaration of result. 37. Viewed in the above context, acceptance or rejection of nomination paper would certainly fall within the ambit of the expression 'election'. 38. Coming to the second question, i.e., bar under Article 243-O of the Constitution and Section 129(b) of the Panchayat Act, we may once again revert back to the decision in N.P. Ponnuswami (supra), which is the leading case on the subject. In that case, Constitution Bench of the Supreme Court 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 any Court. Under the election law, the only significance which rejection of nomination paper has consists in the fact that it can be used as a ground to call the election in question in an election petition. 38.1. Referring to the language of Article 329(b), Supreme Court held that by necessary implication, such grounds calling the election in question cannot be urged in any other manner at any other stage and before any other Court. Permitting parallel proceeding, i.e., assailing an election before the Election Tribunal and invoking power of judicial review would lead to anomalies which the Constitution could not have contemplated. In that case, Supreme Court also noted that Madras High Court and 7 other High Courts had held that remedy of Article 226 would not be available regarding improper rejection of nomination papers. Supreme Court affirmed the said view by holding it to be the correct view. 39. In that case, Supreme Court also noted that Madras High Court and 7 other High Courts had held that remedy of Article 226 would not be available regarding improper rejection of nomination papers. Supreme Court affirmed the said view by holding it to be the correct view. 39. A later Constitution Bench of the Supreme Court in Mohinder Singh Gill's case took a slightly different approach and observed that bar of interference by the Courts would not exclude judicial review if it is for furtherance of election. If the Election Commission acts in a manner which prevents a free and fair election, Court's judicial review of such decision will facilitate the flow, not stop the stream. Election, wide or narrow be its connotations, means choice from a possible plurality and if that concept is crippled by the Election Commission's act, it holds no election at all. Immunity under Article 329(b) of the Constitution is conferred only if the act impeached is done for apparent object of furthering a free and fair election and the protective armour drops down if the act challenged is either unrelated to or thwarts or taints the course of the election. 40. In Boddula Krishnaiah (supra), which is a case relating to panchayat elections in the State of Andhra Pradesh, Supreme Court observed that once an election process has been set in motion, though High Court may entertain a writ petition, it would not be justified in interfering with the election process by giving direction to the Election Officer to stall the proceedings or to conduct the election process afresh. 41. The issue relating to interference by High Courts in the election process under Article 226 of the Constitution continued to raise legal and constitutional questions. After surveying the entire law on the subject, a three-judge Bench of the Supreme Court in the case of Election Commission of India Vs. Ashok Kumar (supra), summed up the position. Though entire conclusions may not be relevant for the purpose of the present adjudication, what is relevant to note is that the expression 'election' has received wide interpretation so as to include all steps and entire proceedings commencing from the date of publication of notification of the election till the date of declaration of result. Though entire conclusions may not be relevant for the purpose of the present adjudication, what is relevant to note is that the expression 'election' has received wide interpretation so as to include all steps and entire proceedings commencing from the date of publication of notification of the election till the date of declaration of result. If an election is to be called in question which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, invoking of judicial remedy has to be postponed till after the completion of the proceedings in election. Second legal position which has been culled out is that any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. In the circumstances, action taken or orders issued by the Election Commission would be open to judicial review on the well settled parameters, such as, mala fide or arbitrary exercise of power or acting in breach of law. Therefore, without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court is sought for merely to correct or smoothen the progress of the election proceeding or to remove obstacles. However, while doing so, Court must be very circumspect and act with caution. Considering 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. 42. In Manda Jaganath (supra) on which heavy reliance has been placed by Mr. Bora, High Court had entertained a writ petition and had set aside the decision of the Returning Officer treating the candidature of the respondent as an independent candidate and not as a candidate set up by the political party Telangana Rastra Samittee (TRS). While setting aside such decision of the High Court, Supreme Court held that whether Returning Officer was justified in rejecting the nomination of the respondent or not was not a matter for the High Court to decide in exercise of its writ jurisdiction. While setting aside such decision of the High Court, Supreme Court held that whether Returning Officer was justified in rejecting the nomination of the respondent or not was not a matter for the High Court to decide in exercise of its writ jurisdiction. This issue should be agitated by the aggrieved party in an election petition only. While acknowledging that erroneous decision of the Returning Officer are amenable to correction in writ jurisdiction, it was clarified that such error should have the effect of interfering with the free flow of the scheduled election or hinder the progress of the election which is of paramount consideration. If by an erroneous order, conduct of the election is not hindered, then Courts under Article 226, should not interfere with the orders of the Returning Officer, remedy for which lies in an election petition only. 43. In Shaji K. Joseph (supra), which was a matter relating to election of a member to the Dental Council of India where the High Court had interfered under Article 226, Supreme Court held that in view of the settled legal provision, High Court should not have interfered with the process of election as it was open to the respondent to raise the election dispute before the appropriate forum after completion of the election. 44. In West Bengal State Election Commission (supra), a Division Bench of the Calcutta High Court had issued directions to the State Election Commission to accept the nominations submitted in electronic form while extending the time for submission of nomination papers by reading the provisions of the Information Technology Act, 2000 into the provisions of the West Bengal Panchayat Elections Act, 2003 and by taking the view that such construction would further the democratic process and facilitate a fair and free election. 44.1. While setting aside the direction of the Calcutta High Court, Supreme Court held that discipline which is mandated by the Constitution and enforced by the enabling State law on the subject must be maintained. Any dispute with regard to validity of the election has to be espoused by adopting a remedy which is known to law, namely, through an election petition. It is at the trial of the election petition that factual disputes can be resolved on the basis of evidence. 44.2. Any dispute with regard to validity of the election has to be espoused by adopting a remedy which is known to law, namely, through an election petition. It is at the trial of the election petition that factual disputes can be resolved on the basis of evidence. 44.2. Finally, it was held that challenge to validity of elections to the uncontested seats in the panchayats should also be pursued in election petitions as provided under the West Bengal Panchayat Elections Act. 45. Thus, from a careful and conjoint analysis of the judgments of the Supreme Court as above, what comes to the fore is that ordinarily a challenge to an election has to be by way of an election petition as provided under the statute. However, neither Article 329 nor Article 243-O totally ousts judicial review from an electoral process, so also the provision of Section 129(b) of the Panchayat. Act. If the decision of the Returning Officer or the Election Officer is found to be erroneous which obstructs the democratic process or which creates hurdles in the free flow of election or which creates a situation where free and fair election is hampered, High Court under Article 226 will certainly intervene and remedy the situation to further the cause of the electoral process. But while doing so, the writ Court would be extremely circumspect and slow in invoking its power of judicial review. It is only when a full-proof case is made out in extraordinary circumstances, High Court would invoke its writ jurisdiction under Article 226 of the Constitution. Question No. 2 is answered accordingly. 46. Coming to all important issue dealt with by question No. 3, Court is of the view that election as per the schedule is just round the corner. Today is 28th of November and the first phase of election is just 7 days away. Intervention by the writ Court at this stage would cause manifold administrative problems for the State Election Commission besides creating confusion in the minds of the electorate. The electorate must have a clear picture before them while exercising their right of franchise. Intervention by the Court at this eleventh hour would confuse the situation which would not be in the interest of free and fair election. As a matter of fact, a Division Bench of this Court in Writ Appeal No. 330/2018, Jahanara Begum Vs. The electorate must have a clear picture before them while exercising their right of franchise. Intervention by the Court at this eleventh hour would confuse the situation which would not be in the interest of free and fair election. As a matter of fact, a Division Bench of this Court in Writ Appeal No. 330/2018, Jahanara Begum Vs. State of Assam, disposed of on 16.11.2018 has taken the view that when the election process has been set in motion, Court would not interfere in such matters by issuing any direction. 47. In that view of the matter, Court is not inclined to entertain the writ petitions. However, petitioners would have their remedy under Section 129(b) of the Panchayat Act which provides for filing of election petition within 60 days from the date of declaration of result. As noticed above, election results are scheduled to be declared on 12.12.2018. Petitioners may avail their remedy under Section 129(b) of the Panchayat Act within 60 days from 12.12.2018 and if such election petitions are filed, concerned Panchayat Election Tribunals shall expeditiously hear and decide the election petitions if necessary on day-to-day basis. It may be pointed out that under Section 86(7) of the Representation of the People Act, 1951, every election petition is required to be tried as expeditiously as possible and endeavour should be made to conclude the trial within six months from the date on which election petition is presented. 47.1. That being the position, Panchayat Election Tribunals shall decide the election petitions of the petitioners, if filed, as expeditiously as possible and if necessary by holding day-to-day hearing and conclude the same within a period of 6 months from the date of filing of the election petitions. 48. All the writ petitions are accordingly disposed of.