Punjab-Haryana High Court
Lal Chand vs State Of Haryana And Ors. on 28 May, 1998
Equivalent citations: AIR1999P&H1, (1998)119PLR640, AIR 1999 PUNJAB AND HARYANA 1, 1999 A I H C 369, 1998 (2) REVLR 150, (1998) 3 LANDLR 269, (1998) 119 PUN LR 640, (1998) 3 ICC 390, (1998) 3 RECCIVR 255, (1998) ILR 2 P&H 290
ORDER R.S. Mongia, J.
1. This order may also be read in Civil Writ Petitions No. 1160 of 1995, 1177 of 1995, 1185 of 1995 1186 of 1995, 1193 of 1995, and 17772 of 1994.
2. In all these writ petitions the challenge is to the election of a Member to a Gram Panchayat or to a Municipal Committee. Civil Writ Petitions No. 1160 of 1995, 1177 of 1995, 1185 of 1995 and 1193 of 1995 pertain to the election to different Gram Panchayats in State of Haryana, which were held under the provisions of Haryana Panchayati Raj Act, 1994, read with Haryana Panchayati Raj Election Rules, 1994 (in short hereinafter referred to as the 'Haryana Act' and the 'Haryana Rules' respectively). Civil Writ Petition No. 17772 of 1994 pertains to election to a Gram Panchayat in the State of Punjab held under the Punjab Panchayati Raj Act, 1994, read with Punjab Panchayat Election Rules, 1994 and the provisions of the Punjab State Election Commission Act, 1994 (hereinafter referred to as the 'Punjab Act', 'Punjab Rules' and 'Election Commission Act' respectively). Civil Writ Petition No. 1186 of 1995 pertains to the election to a Municipal Committee in Haryana held under the provisions of Haryana Municipal Act and the Rules made thereunder.
3. On notice of motion having been issued a preliminary objection has been taken in almost all the cases where written-statement has been filed that no writ petition is maintainable to challenge the election to the Gram Panchayat or to the Municipal Committee in view of the bar to interference by the Courts in electoral matters created by Articles 243-O and 243-ZG of the Constitution of India. Articles 243-O and 243-ZG of the Constitution of India are in the following terms :
"243-O. Bar to interference by Courts in electoral matters--Notwithstanding anything in this Constitution -
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243-K, shall not be called in question in any Court;
(b) 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."
243-ZG. Notwithstanding anything in the "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 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."
Further it was also pleaded that so far as any election to the Gram Panchayat in the State of Punjab is concerned, the samecannot be called in question except by an election petition in view of the provisions of Section 74 of the Election Commission Act. Section 75 of the said Act further lays down that only the Election Tribunal having jurisdiction shall have the power to adjudicate upon the election petition. Section 89 of the said Act provides the various grounds for declaring the election invalid. In support of their contention, learned counsel for the respondents in these writ petitions relied upon some judgments of this Court and the Supreme Court of India. The judgments cited are C.W.P. No. 15653, decided on September 23, 1994 (D.B.);Civil Writ Petition No. 18057 of 1994, decided on 20-12-1994 (D.B.); Civil Writ Petition No. 15691 of 1994 decided on 8-11-1994 (D.B.); Civil Writ Petition No. 9579 of 1994 decided on September 22, 1994 (D.B.); N. P. Ponnuswami v. The Returning Officer, AIR 1952 SC 64 and Jyoti Basu v. Devi Ghosal, AIR 1982 SC 983.
4. Learned counsel for the petitioner, however, contended that in none of those cases, the question of vires of Articles 243-O and 243-ZG of the Constitution of India was raised or decided. The petitioners wish to challenge the vires by submitting oral arguments and in fact in C.W.P. No. 1160 of 1995, a specific application was moved to permit the challenge to the vires of Article 243-O of the Constitution of India. It was also submitted by the learned counsel for the petitioners that so far as election to the Gram Panchayat in the State of Haryana are concerned, there are no ground mentioned in the Haryana Act or the Rules on which the election of the returned candidate can be challenged. The only grounds that can be culled out from Section 176 of the Act to challenge the election of a Member of the Gram Panchayat under the Haryana Act can be corrupt practice committed by the returned candidate or the wrong counting of votes. The argument proceeded that even if a writ petitioner is to challenge the election, it can only be on the above two grounds. On all other possible grounds, the election can be challenged by way of a writ petition. It may be observed here that it is not the case of the petitioners that in all cases where a writ petition challenging the election is filed, the High Court must entertain the writ petition. On given facts and circumstances, the High Court may relegate the petitioner to his remedy under the Act but there cannot be any complete bar under the Constitution or any Act, to oust the jurisdiction of the High Court under Articles 226/227 of the Constitution of India.
5. The argument further proceeded that after the judgment of the Supreme Court in Minerva Mills Ltd. case, AIR 1980 SC 1789, it is quite well settled that judicial review is a basic structure of our Constitution and an integral part of our Constitutional system. Even the Constitution cannot be amended to tinker with or to erode the basic structure of the Constitution. Articles 243-O and 243-ZG erode and tinker with the basic structure of the Constitution i.e. judicial review by the High Court under Article 226 of the Constitution of India. According to the learned counsel if the jurisdiction of the High Court or judicial review of an election dispute under Article 226 of the Constitution of India is to be taken away, then an alternative substitute arrangement forum has to be equally effective, efficacious and efficient as also capable of upholding the Constitutional limitations. Such a Tribunal should be a real substitute pf the High Court -- not only in form and de jure but in content and de facto. Giving powers to a Civil Court or any other Tribunal to decide the election dispute is not providing a real substitute of the High Court. Primary reliance was placed on the Supreme Court judgment reported as S.P. Sampat Kumar v. Union of India, AIR 1987 SC 386. In that case, the vires of the Administrative Tribunals Act were under challenge and one of the grounds was that by ousting the jurisdiction of the High Court to entertain service matters on the constitution of an Administrative Tribunal by the State or the Central Government, as the case may be, the basic structure of the Constitution had been tinkered with as the judicial review by the High Court under Article 226 of the Constitution of India in such matters was being taken away. The vires of the said Act were upheld by the Supreme Court after going in details of the constitution of the Administrative Tribunal. It came to the conclusion that effective alternative institutional mechanism or arrangements for judicial review had been provided by the constitution of a Tribunal under the Administrative Tribunal Act and the Administrative Tribunal could exercise all the powers of the High Court. Specific reliance was placed by the counsel for the-petitioners on paras 12, 14, 15, 16, 17 of the Report. Paras Nos. 12, 16 and 17 may be reproduced here :
"12. Strong reliance was placed on the judgment of Bhagwati, J. (one of us presently the learned Chief Justice) in Miverva Mills ltd. v. Union of India, (1981) 1 SCR 206, 287 : AIR 1980 SC 1789 at pp. 1825 and 1826 where it was said : "The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that, however, effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the Legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review....."
16. What, however, has to be kept in view is that the Tribunal should be a real substitute of the High Court not only in form and de jure but in content and de facto. As was pointed out in Minerva Mills, (AIR 1980 SC 1789) the alternative arrangement has to be effective and efficient as also capable of upholding the constitutional limitations. Article 16 of the Constitution guarantees equality of opportunity in matters of public employment. Article 15 bars discrimination on ground of religion, race, caste, sex or place of birth. The touchstone of equality enshrined in Article 14 is the greatest of guarantees for the citizen. Centering around these articles in the Constitution a service jurisprudence has already grown in this country. Under Sections 14 and 15 of the Act all the powers of the Courts except those of this Court in regard to matters specified therein vest in the Tribunal -- either Central or State. Thus the Tribunal is the substitute of the High Court and is entitled to exercise the powers thereof.
17. The High Courts have been functioning over a century and a quarter and until the Federal Court was established under the Government of India Act, 1935, used to be the highest Courts within their respective jurisdiction subject to an appeal to the Privy Council in a limited category of cases. In this long period of about six scores of years, the High Courts have palyed their role effectively, efficiently as also satisfactorily. The litigant in this country has seasoned himself to look up to the High Court as the unfailing protector of his person, property and honour. The institution has served its purpose very well and the common man has thus come to repose great confidence therein. Disciplined, independent and trained Judges well versed in law and working with all openness in any unattached and objective manner have ensured dispensation of justice over the years. Aggrieved people approach the Court --the social mechanism to act as the arbiter -- not under legal obligation but under the belief and faith that justice small be done to them and the State's authorities would implement the decision of the Court. It is, therefore, of paramount importance that the substitute institution -- the Tribunal -- must be a worthy successor of the High Court in all respects. That is exactly what this Court intended to convey when it spoke of an alternative mechanism in Minerva Mill's case, (AIR 1980 SC 1789)."
Learned counsel for the petitioner also relied on Raj Krishna Bose v. Binod Kanungo, AIR 1954 SC 202, and a Full Bench judgment of Andhra Pradesh High Court reported as Sakinala Harinath v. State of Andhra Pradesh, (1993) 6 Serv LR 1 and C.W.P. No. 12891 of 1994, decided on February 1, 1995 (DB). The Full Bench of the Andhra Pradesh High Court even after noticing Sampat's case, (AIR 1987 SC 386) (supra) held that the Administrative Tribunal Act which empowers the establishment of Administrative Tribunal to oust the jurisdiction of the High Court under Article 226 of the Constitution of India was ultra vires.
6. On the other hand, the learned counsel for the respondent submitted that Article 329 of the Constitution of India is pari materia to Articles 243-O and 243-ZG and takes away the jurisdiction of the High Court to entertain an election dispute regarding the election to either house of Parliament or to the house of the Legislature of the State except by an election petition to be presented to such authorities as may be provided by any law enacted by the appropriate Legislature. The learned counsel for the respondent submitted that this provision was challenged before the Supreme Court in N.P. Ponnuswami v. The Returning Officer, AIR 1952 SC 64, and, therefore, the raising of question of vires of Article 243-O etc. of the Constitution of India does not arise. Further, according to the learned counsel, the Civil Court which has the jurisdiction to entertain an election dispute under Section 176 of the Haryana Act and the Tribunal constituted under the Punjab Act i.e. the Deputy Commissioner has ample powers to declare an election invalid and the remedy is equally efficacious and effective as under Article 226 of the Constitution of India. The idea of introducing Article 243-O etc. was to debar the challenge to the election at any stage during the course of election.
7. Further, it was submitted that under Section 176 of the Haryana Act, the election of the returned candidate could be challenged on any possible ground and was not confined only on corrupt practice or the wrong counting of votes.
8. In reply to this, the learned counsel for the petitioner submitted that in Ponnuswami's case, (AIR 1952 SC 64) (supra) the validity of Article 329 was not adjudged on the touchstone of the basic structure of the Constitution of India. Moreover, the authority to go into the election dispute in case of Member of Parliament/ Legislature has invariably been a Judge of a High Court. Further it was submitted that since the decision of Ponnuswami's case (supra) the law laid down by the Supreme Court had undergone a sea change as the concept of the basic structure of the Constitution of India was first evolved in Minerva Mills' case, (AIR 1980 SC 1789) (supra). It was contended by the learned counsel for the petitioners that the High Court under Article 226 of the Constitution of India cannot be a silent spectator where on the face of it and without any further evidence, on the interpretation of the Statute, it becomes apparent that the nomination paper of a particular candidate was wrongly rejected and yet the High Court would be debarred from interfering and only the Civil Court or the Tribunal as the case may be would go into that matter after the elections are over. Take for example, as in the case of Manjit Kaur v. State of Haryana, (1995) I Cur LJ 1, a nomination paper of the candidate was rejected on the ground that her husband who was the Ex-Sarpanch owed some money to the Gram Panchayat. Such is not the ground under the Haryana Act on which a candidate is disqualified, yet the nomination paper was rejected. Would under these circumstances the High Court be debarred under Article 226 of the Constitution of India to go into the matter? The Division Bench did go into the matter and set aside the rejection of nomination paper. Of course, the question of non-maintainability of the writ petition does not seem to have been raised before the Bench. Take another example. On the ballot paper the symbol of a particular candidate is not at all printed or is printed in such a manner that the same is not decipherable. Should the matter be referred to the Civil Court under Section 176 where like the procedure under the Civil Procedure Code, there will be an opportunity to file written-statement to the respondent, issue will be framed, parties will be allowed to lead evidence in affirmative and rebuttal and then the only question that would have to be seen is whether a ballot paper contains the symbol of a particular candidate or the same is not decipherable. Why can't the High Court under Article 226 of the Constitution of India just sec the ballot paper and decide one way or the other?
9. After hearing the learned counsel for the parties, we are of the view that the issues raised in these writ petitions are of significant importance and likely to arise again and again. We are further of the view that the points raised need to be settled authoritatively one way or the other. Consequently, we refer these cases to a Full Bench to decide the following questions :--
(1) Whether Articles 243-O and 243-ZG of the Constitution of India are ultra vires on the ground that these are against the basic structure of the Constitution of India inasmuch as the jurisdiction of the High Court of judicial review under Article 226 of the Constitution of India has been taken away regarding the election disputes of Gram Panchayats/Zila Parishads/Municipal Committees.
(2) What are the grounds on which an election of a returned candidate to a Gram Panchayat/Zila Parishad can be challenged under the Haryana Panchayati Raj Act and the relevant Rules.
Let the papers of these cases be laid before Hon'ble the Chief Justice for constituting a Full Bench at an early date.
ORDER Satpal, J.
10. This judgment may also be read in C.W.P. Nos. 1160 of 1995, 1177 of 1995, 1185 of 1995, 1186 of 1995, 1193 of 1995, 17772 of 1994, 17352 of 1997 17390 of 1997, 17420 of 1997, 17816 of 1997, 17888 of 1997, 17931 of 1997, 17932 of 1997, 17950 of 1997, 17971 of 1997, 17976 of 1997, 17999 of 1997 and 18003 of 1997.
11. In Writ Petition Nos. 1160 of 1995, 1177 of 1995, 1185 of 1995 and 1193 of 1995, the challenge is to the election of a member of Gram Panchayat in the State of Haryana which were held under the provisions of Haryana Panchayati Raj Act, 1994 read with Haryana Panchayati Raj Rules, 1994 (hereinafter referred to as the 'Haryana Act' and the 'Haryana Rules' respectively). C.W.P. No. I7772of 1994pertains to the election to the Gram Panchayat in the State of Punjab held under the Punjab Panchayati Raj Act read with Punjab Panchayati Rules and the Provisions of Punjab State Election Commission Act, 1994, (hereinafter referred to as the 'Punjab Act', 'Punjab Rules' and the 'Election Commission Act' respectively). C.W.P. No. 1186 of 1995 relates to the elections of a Municipal Committee in Haryana under the provisions of the Haryana Municipal Act and the Rules made therein.
12. In the written statement filed on behalf of the respondents in all these writ petitions, a preliminary objection has been taken that no writ petition is maintainable to challenge the elections to the Gram Panchayat or to the Municipal Committee in view of the bar to interference by Courts in electoral matters created by Article 243-O and Article 243-ZG of the Constitution of India. The aforesaid articles read as under:--
"243-O. Bar to interference by Courts, in electoral matters--Not withstanding 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-K, shall not be called in question in any Court;
(b) 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."
243-ZG. 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 243ZA shall not be called in question in any Court:
(b) no election to any Municipality 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."
13. It was also pleaded in the written statement that so far as any election to the Gram Panchayat in the State is concerned, the same cannot be called in question except by an election petition in view of the provisions of Section 74 of the Election Commission Act. Section 75 of the said Act further lays down that only the Election Tribunal having jurisdiction was having the power to adjudicate upon an election petition. Section 89 of the said Act provides various grounds for declaring the election invalid.
14. During the pendency of the above writ petition, the petitioner in C.W.P. No. 1160 of 1995 filed an application seeking permission of the Court to challenge the vires of Article 243-O of the Constitution of India. It was also contended that there were only two grounds mentioned in the Haryana Act, on which the election of a returned candidate can be challenged and these grounds were : corrupt practices committed by the returned candidate and the wrong counting of votes. It was further contended that there cannot be any complete bar under the Constitution or in any Act to oust the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India, It was submitted that judicial review was the basic structure of our Constitution and an integral part of our Constitutional System. Even the Constitution cannot be amended to tinker with or to erode the basic structure of the Constitution. It was contended that Article 243-O and 245-ZG erode and tinker with the basic structure of the Constitution i.e. the judicial review under Article 226 of the Constitution of India.
15. After hearing the learned counsel for the parties, the learned Judges of the Division Bench were of the view that the issues in this writ petition were of significant importance and were likely to arise again and again and need to be settled authoritatively one way or the other. Consequently, the above-mentioned writ petitions were referred to a Full Bench to decide the following questions :
(1) Whether Articles 243-O and 243-ZG of the Constitution of India are ultra vires on the ground that these are against the basic structure of the Constitution of India inasmuch as the jurisdiction of the High Court of judicial review under Article 226 of the Constitution of India has been taken away regarding the election disputes of Gram Panchayats/Zila Parishads/Municipal Committees.
(2) What are the grounds on which an election of a returned candidate to a Gram Panchayat/Zila Parishad can be challenged under the Haryana Panchayati Raj Act and the relevant Rules.
16. In CWP No. 17352, 17390, 17420, 17816, 17888, 17931, 17932, 17950, 17971, 17976, 17999 and 18003 of 1997, the challenge was to the reservation of seats for the office of Sarpanch in favour of scheduled castes inter-alia on the ground that it is in contravention of the provision of Section 12 of the Punjab Panchayati Raj Act, 1994 and the Rules framed thereunder. The first objection was that since the election process had commenced, this Court should not interfere to stall the said process and allow the same to be concluded. The other objection was that in view of the Constitutional bar contained in Article 243-O of the Constitution, this Court cannot examine the validity of any law relating to the delimitation of the constituencies or the allotment of seats of such constituencies nor can it interfere in the electoral matters. These writ petitions came up for hearing before a Division Bench comprising N.K. Sodhi and S.C. Malte, JJ. on 24-12-1997: The learned Judges held that the first objection did not survive as the State Government vide Notification No. SO 119/PA9/ 94/H 209/97, dated 5th September, 1997 had postponed the Gram Panchayat Election in the State and the earlier notification requiring the elections to be held in the State had been rescinded.
17. With regard to the 2nd objection, it was observed that the challenge made on behalf of the petitioner appeared to be covered by the provisions of Article 243-O and, therefore, the same could not be accepted. It was however, further observed that the petitioners had contended that Article 243-O of the Constitution violates the basic structure inasmuch as it takes away the power of judicial review from this Court which it otherwise possesses under Article 226 of the Constitution. It was further observed that since the constitutional validity of Article 243-O is under challenge in the case of Lal Chand (supra) and the same is pending decision, these cases were also listed for hearing along with Lal Chand's case. That is how we are seized of the matter.
18. We propose to deal with first question only as the second question had already been answered by a Full Bench of this Court in the case of Smt. Anju v. Addl. Civil Judge (Sr. Division, Pchowa), C.W.P. No. 15310 of 1996 decided on 12th March, 1998 (reported in AIR 1998 Punj & Har 140). In this case it was held by the Full Bench that the election of a returned candidate cannot be allowed to be challenged on any of the grounds other than those specified in Section 176 of the Haryana Panchayati Raj Act, 1994. That is to say that the grounds on which the election can be challenged are :
(a) That the returned candidate committed corrupt practices within the meaning of Sub-section (5);
(b) That some irregularities or illegalities were committed during the course of counting, on which plea the Court may order scrutiny and recounting of votes and declaring the candidate who is found to have largest number of valid votes in his favour to be duly elected.
19. Mr. Ravi Sodhi, learned counsel appearing on behalf of the petitioners in C. W.P. No. 1160 of 1995 submitted that under Article 38 of the Constitution, the State was required to secure political justice and political justice could not be secured if the power of judicial review under Article 226 of the Constitution is eroded. He submitted that even the Constitution cannot be amended to erode the basic structure of the Constitution and it is now well settled that judicial review is the basic structure of the Constitution. In support of his submissions, the learned counsel placed reliance on three judgments of the Supreme Court in Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461; Minerva Mills Limited v. Union of India, AIR 1980 SC 1789 and L. Chandra Kumar v. Union of India, (1997) 3 JT (SC) 589 :
(AIR 1997 SC 1125). Comparing Article 329 of the Constitution of India, the learned counsel submitted that the similarity between the said two Articles was only of form and not of content. He submitted that Article 329 deals with elections to the Parliament and Election Tribunal to adjudicate the election petitions is of the rank of a Judge of the High Court whereas Article 243-O deals with the elections to the Panchayat and with regard to elections to the Panchayat, the Civil Court is the Tribunal. The learned counsel, therefore, contended that the Tribunal provided for election to the Parliament was high powered in comparison to the Tribunal provided for election to the Panchayats.
20. The learned counsel further submitted that in case the Court came to the conclusion that Article 243-O was intra vires, then Article 243-O should be read down to mean that the bar of interference by Courts is the ordinary jurisdiction of the Courts and not the extraordinary jurisdiction of the High Court under Article 226 or of the Supreme Court under Article 136 of the Constitution. In this connection, the learned counsel referred to and relied upon a Full Bench judgment of the Andhra Pradesh High Court in S. Fakrudin v. Govt. of Andhra Pradesh, AIR 1996 AP 37. In this case it was held by the Full Bench of the Andhra Pradesh High Court that it would not be necessary to pronounce that Article 243-O was unconstitutional as it does not take away the power of the High Court under Article 226 of the Constitution to examine the validity of any law relating to the elections including delimitation of constituencies or the allotment of the seats to such constituencies made or purported to be made under Article 243-K of the Constitution.
21. Mr. S.P. Singh, learned counsel appearing on behalf of some writ petitioners, submitted that under Article 243-O(a) the validity of any law relating to the delimitation of constituencies or the allotment of the seats to such constituencies cannot be called in question in any Court and "any Court" means and includes the High Court and the Supreme Court. He, therefore, contended that the said Article was contrary to the basic structure of the Constitution as there cannot be any complete bar under the Constitution or any Act to oust the jurisdiction of judicial review of the High Court under Article 226 of the Constitution. The learned counsel further submitted that under Sub-clause (b) of Article 243-O, no election to any Panchayat can be called in question except by an election petition presented to such authority and in such manner as is provided for by any law made by the Legislature of a State. He submitted that election to Panchayats in Haryana was governed by the Haryana Act. Under the provisions of the said Act, election to the Panchayat can be challenged only on two grounds mentioned in Section 176 of the Act. He, therefore, contended that even Clause (b) of Article 243-O was ultra vires.
22. Mr. Gulshan Sharma, learned counsel appearing on behalf of some of the petitioners, submitted that even under Sub-clause (a) of Article 243-O of the Constitution, the writ petition under Article 226 of the the Constitution was maintainable on the ground that before the delimitation, no objections were invited and no hearing was given. In support of his submission, the learned counsel placed reliance on a judgment of the Supreme Court in State of U.P. v. Pradhan Sandh Samiti, AIR 1995 SC 1512.
23. Mr. M.M. Kumar, learned counsel appearing on behalf of the petitioners while reiterating the submissions made by Mr. Sodhi, submitted that even in the case pf N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, AIR 1952 SC 64, decided by a Constitution Bench of the Supreme Court, the, question as to what powers of the High Court under Articles 226 and 227 and of the Supreme Court under Article 136 of the Constitution may be, was left open.
24. Mr. Ahluwalia, learned Additional Advocate General Punjab, appearing on behalf of the State of Punjab, fairly conceded that the power of judicial review cannot be taken away by any Act of Parliament or even by amending the Constitution of India. He, however, submitted that the power of judicial review can be exercised only if there was an illegality or procedural irregularity. He further submitted that the right to dispute an election was not a fundamental right but was created by the statute and as such, the same was subject to statutory limitations. He submitted that it was a statutory proceeding, to which neither the common law nor the principles of equity would apply. He, therefore, contended that since the procedure to challenge the election has been provided for, the aggrieved person will have to avail himself the remedy provided in the statute and cannot approach the High Court under Article 226 of the Constitution of India in the first instance. In support of his submission, the learned counsel placed reliance on a judgment of the Supreme Court in Joyti Basu v. Devi Goshal. AIR 1982 SC 983. Mr. Rathee, learned counsel appearing on behalf of the State of Haryana, reiterated the submissions made by Mr. Ahluwalia.
25. We have carefully considered the submissions made by the learned counsel for the parties and have perused the record. Article 243-O of the Constitution of India and Article 243-ZG are in the same parameters except that Article 243-O creates bar to interference by Courts in respect of elections to Panchayat whereas Article 243-ZG creates bar to interference by Courts in respect of elections to Municipalities.
26. The question with regard to Sub-clause (a) of Article 243-O of the Constitution of India came up for hearing before the Hon'ble Supreme Court in the case State of U.P. v. Pradhan Sangh Kshetra Samiti, AIR 1995 SC 1512. In this case, it was held by the Apex Court that neither delimitation of the Panchayat area nor of the constituency in the said areas and the allotment of seats to the constituencies, could be challenged nor the Court could entertain such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. It was further observed that even this challenge could not be entertained after the notification for holding elections was issued. The relevant portion from this judgment is reproduced hereinbelow (at p. 1528) :--
"What is more objectionable in the approach of the High Court is that although Clause (a) of Article 243-O of the Constitution enacts a bar on the interference by, the Courts in electrical matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be under Article 243-K and the election to any Panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari v. Delimitation Commission, (1967) 1 SCR 400 : AIR 1967 SC 669. In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law relating to the delimitation of the Constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of Sections 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any Court of law. There was a very good reason for such a provision because if the orders made under Sections 8 and 9 were to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from Court to Court. Although an order under Section 8 or 9 of the Delimitation Commission Act and published under Section 10(1) of that Act is not part of an Act of Parliament, its effect is the same. Section 10(4) of that Act puts such an order in the same position as a law made by the Parliament itself which only be made by it under Article 327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and Section 2(kk) of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the Panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged or the Court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31st August, 1994."
27. Thus the question with regard to Sub-clause (b) (or (a)) of Article 243-O has already been answered by the Apex Court in the terms mentioned hereinabove and does not require any further consideration. Since Sub-clause (a) of Article 243-ZG is in the same terms as of Article 243-O, the question posed with regard to Sub-
Clause (a) of Article 243-ZG is also answered by the above judgment.
28. Before dealing with Clause (b) of Article 243-6 and Clause (b) of Article 243-ZG, it will be relevant to refer to these provisions of the Constitution which read as under :--
"243-O. Bar to interference by Courts in electoral matters--Notwithstanding anything in this Constitution -
(a)xxx xxx xxx xxx
(b) 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."
"243-ZG. Bar to interference by Court in electoral matters--Notwithstanding anything in this Constitution -
(a)xx xxx (b) no election to any Municipality shall be called in question Except by an election petition to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
29. A bare reading of Sub-clause (b) of Article 243-O and Sub-clause (b) of Article 243-ZG would show that election to any Panchayat or Municipality cannot 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. Under the Election Commission Act, 1994, Election Tribunal in Punjab comprises of an I AS, or PCS or Class I Officer of the State Government.
Under Section 176 of the Haryana Act, the Election Tribunal is the Civil Court having ordinary jurisdiction in the area where the election has been held and under Rule 77 of the Haryana Municipal Corporation Election Rules, 1994, the Election Tribunal comprises of Subordinate Judges of the 1st Class belonging to the State Judicial Service or persons who may have retired from the State Judicial Service as a District Judge. For a ready reference, the above- mentioned provisions are reproduced hereinbelow :--
"Section 73 of the Punjab State Election Commission Act. 1994 -- (1) There shall be constituted by the State Government in consultation with the Election Commission, for each strict or part thereof, an Election Tribunal at the district or sub-divisional headquarters.
(2) The State Government shall. by Notification in the Official Gazettee, appoint an IAS or PCS or Class I Officer of the State Government having adequate administrative, legal or magisterial experience, as the presiding officer of an Election Tribunal. "
Section 17 of the Haryana Panchayati Raj Act.
176.(1) Determination of validity of election enquiry by judge and procedure. If the validity of any election of a member of a Gram Panchayat Samiti or Zila Parishad or Up-Sarpanch, Sarpanch of Gram Panchayat Chairman or Vice-Chairman, President or Vice-President of Panchayat Samiti or Zila Parishad respectively is brought in question by any person contesting the election or by any person qualified to vote at the election to which such question relates, such person may at any time within thirty days after the date of declaration of results of the election, present an election petition to the Civil Court having ordinary jurisdiction in the area which the election has been or should have been held, for the determination of such questions."
xxxxx xxxxx xxxxx xxxxx Rule 77 of the Haryana Corporation Election Rules, 1994.
"77. Appointment of Tribunal. -- (1) The Government shall appoint a Tribunal to hold an enquiry in accordance with the provisions of these rules.
(2) In the case of multi Member Tribunal, the appointment shall be made from amongst :
(a) Subordinate Judges of the 1st Class belonging to the State Judicial Service : or
(b) persons who may have retired from the State Judicial Service as a District Judge.
(3) In the case of multi Member Tribunal at least one member shall be appointed from amongst the category of persons mentioned in Sub-rule (2) and the remaining members of the Tribunal may be appointed from amongst advocates duly enrolled as such under the Advocates Act, 1961, who may have served at the bar of the State High Court for a minimum period of ten years. The member appointed under Sub-rule (2) shall be designated as the Chairman of the Tribunal.
xxxxx xxxxx xxxxx xxxxx
30. It has, therefore, been contended by the learned counsel appearing on behalf of the States of Punjab and Haryana that right to dispute an election is neither a fundamental right nor a common right and since this right has been created under the Statute, a person could challenge the election only before the Election Tribunal and not even before the High Court under Article 226 of the Constitution of India. From Article 243-O and Article 243-ZG it will be seen that in these Articles, there is a non obstante clause "Notwithstanding anything in this Constitution". The learned counsel of the State have, therefore, contended that in spite of Article 226 of the Constitution, the High Court had no jurisdiction to entertain the writ petition in view of the bar imposed under Clause (b) of Article 243-O and 243-ZG. It has also been contended that the aggrieved person will have to avail himself of the remedy provided in the Statute and cannot approach the High Court in the first instance under Article 226 of the Constitution of India.
31. We, however, do not find any merit in the contention raised by the learned counsel for the State. In this connection, reference may be made to a 13-Judge Bench judgment of the Supreme Court in the case of Kesavananda Bharti, (AIR 1973 SC 1461) (supra). In this case by a majority of 7 against 6, the Supreme Court held that Article 368 of the Constitution does not enable Parliament to alter the basic structure or framework of the Constitution. The majority also opined that the basic structure of the Constitution could not be altered by any Constitutional amendment and it was held in unambiguous terms that one of the basic features is the existence of the Constitutional system of judicial review. This view was followed by a Constitution Bench of the Supreme Court in the case of Minerva Mills (AIR 1980 SC 1789) (supra).
32. In the case of L. Chandra Kumar (AIR 1997 SC 1125) (supra), a seven-Judge Bench of Supreme Court has held that the jurisdiction conferred upon the High Courts under Articles 226/ 227 of the Constitution and upon the Supreme Court under Article 32 of the Constitution cannot be ousted. The relevant; portion from the said judgment is reproduced hereunder :--
"The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of those Tribunal will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless continue to act like Courts of first instance in respect of the areas of law for which they have been constituted."
33. Since the power of judicial review under Articles 226/227 of the Constitution has been held by the Apex Court as an essential feature of the Constitution which can neither be tinkered with nor eroded, we are of the opinion that the words "Notwithstanding anything in this constitution" will have to be read down to mean as "Notwithstanding anything in this Constitution subject, however, to Articles 226/227 of the Constitution". In view of this, Clause (b) of Article 243-O and Clause (b) of Article 243-ZG will be read to mean as follows "No election to any Panchayat/ Municipality 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 to a State but this will not oust the jurisdiction of the High Court under Articles 226/227 of the Constitution.
34. It is true that in terms of the judgment in the case of L. Chandra Kumar (AIR 1997 SC 1125) (supra) the Tribunals created under Article 323-A and Article 323-B of the Constitution continue to act (as) Courts of first instance in respect of areas of law for which they have been constituted . But we have to keep in mind the observations of the Supreme Court in L. Chandra Kumar (supra) itself that the Tribunals created under Article 323-A and Article 323-B of the Constitution of India perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution of India and these Tribunals are possessed of the competence to test the Constitutional validity of statutory provisions and the rules. But the Tribunals created under the Haryana Act is the Civil Court having ordinary jurisdiction in the area in which the election has been held. The Tribunal under Section 77 of the Haryana Municipal Corporation Election Rules 1994 comprises of Subordinate Judges of the 1st Class belonging to the State Judicial Service or persons who may have retired from the State Judicial Service as a District Judge and the Tribunal under Section 73 of the Election Commission Act comprises of an IAS, PCS or a Class I Officer of the State Government having adequate administrate, legal or magisterial experience and these Tribunals cannot be equated with the Tribunals created under Article 323-A and Article 323-B of the Constitution as they cannot perform the supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution of India. In this view of the matter, it cannot be held that the High Court has no jurisdiction under Articles 226/227 of the Constitution to entertain a writ petition with regard to challenge to the election to any Panchayat/Municipality in view of the bar imposed under Clause (b) of Article 243-O and 243-ZG of the Constitution.
35. We also do not find any merit in the contention raised by the learned counsel for the State that writ petition for challenging the election to Panchayat/Municipality was not maintainable in view of the law laid down by the Apex Court in the case of N.P. Punnuswami. (AIR 1952 SC 64) (supra). In this connection, we may refer to para 19 of the said judgment wherein it was stated that question as to what the powers of the High Court under Articles 226/227 and of Supreme Court under Article 136 of the Constitution may be, is one that will have to be decided on a proper occasion. As stated hereinabove, the Supreme Court by a catena of judgments has now held that one of the basic features is the existence of the Constitutional system of judicial review and even Article 368 of the Constitution does not enable the Parliament to alter the basic feature or framework of the Constitution.
36. In view of the above discussion; we are of the considered view that despite the bar imposed under Articles 243-O and 243-ZG of the Constitution of India, the election of the Panchayat/ Municipality can be challenged directly before the High Court under Articles 226/227 of the Constitution of India otherwise the Articles would be against the basic structure of the Constitution (i.e. judicial review by the High Court/Supreme Court). The High Court, however, keeping in view the facts and circumstances of the case may relegate the petitioner to the remedy available before the Election Tribunal.
37. To sum up, our answers to the questions referred to the Full Bench are as follows :
1. The question with regard to Clause (a) of Article 243-O and Clause (a) of Article 243-ZG of the; Constitution stands answered in the judgment of, the Supreme Court in the case of Pradhar Sangh Khestra Samiti (AIR 1995 SC 1512) (supra).
2. With regard to Clause (b) of Article 243-O and Clause (b) of Article 243-ZG of the Constitution, we hold that the words "notwithstanding anything in this Constitution " appearing in the aforesaid two Articles will be read down as "notwithstanding anything in this Constitution" subject, however, to Articles 226/227 of the Constitution. Accordingly,' Clause (b) of Article 243-O and Clause (b) of An. 243-ZG would be read to mean as follows :
"No election to any Panchayat/Municipality shall be called in question except an election petition presented to such an authority and in such manner as is provided for by or in any law made by the Legislature of a State, but this will not oust the jurisdiction of the High Court under Articles 226/227 of the Constitution".
3. The second question pertaining to grounds on which an election of a returned candidate to Gram Panchayat/Zila Parishad can be challenged, under the Haryana Act and Haryana Rules already stands answered in the Full Bench judgment of this Court in the case of Smt. Anju v. Addl. Civil Judge (Sr. Division, Pehovva), C.W.P. No. 15310 of 1996 decided on 12th March, 1998 (reported in AIR 1998 Punj & Har 140).
38. The Registry is now directed to list (sic) these cases before the Motion Bench.