Allahabad High Court
Amrendra Singh Son Of Late Tara Chandra ... vs State Of U.P. Through Principal ... on 12 October, 2007
Equivalent citations: AIR 2008 (NOC) 1314 (ALL.), 2008 (2) ALJ 260
Author: Sudhir Agarwal
Bench: S. Rafat Alam, Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. Aggrieved by the judgment dated 21.10.2005 dismissing the writ petition No. 63643 of 2005, the petitioner-appellant. (hereinafter referred to as 'petitioner') has field this intra court appeal under Chapter VIII Rule 5 of the Rules of the Court.
The petitioner was convicted under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1983 in Session Trial No. 43 of 1993 vide judgment dated 13th August 1997 passed by Special Judge, Sonbhadra and was sentenced to undergo three years rigorous imprisonment, a fine of Rs. 5,000/- and in default of payment of fine, further six months rigorous imprisonment. He filed an appeal No. 1272 of 1997 which was admitted on 28th July 1997 and bail was granted. The Appellate Court passed the following order:
Admit.
Let the appellant Amrendra Singh Kurmi s/o late Tar a Chandra Singh be released on bail in S.T. No. 43 of 1993 under Section 20 of N.D.P.S. Act on his furnishing two sureties and a personal bond in the like amount to the satisfaction of the Chief Judicial Magistrate, Sonbhadra.
2. An election for the post of Gram-pradhan, village Murdhawa was held in August 2005 for which the petitioner filed his nomination on 6th August 2005. Polling was held on 23rd August 2005 and result was declared on 23rd August 2005 wherein he was declared elected and the Election Officer also issued certificate declaring the petitioner elected as Gram-pradhan village Murdhawa vide certificate dated 28th August 2005. However, it appears that a complaint was made by Sri Shyam Singh that the petitioner was disqualified having been convicted in 1997 and, therefore, could not have been declared elected as Gram-Pradhan of village Murdhawa. The said complaint was enquired into by the State Election Commission, U.P. Lucknow land by order dated 22th September 2005 in purported exercise of power under Article 243-K of the Constitution of India read with Section 12-BB of Sanyukt Prant Panchayat Raj Act, 1947 (hereinafter referred to as '1947 'Act'), the State Election Commission, U.P. Lucknow declared the election of the petitioner illegal and has countermanded the same. Aggrieved by the said decision of the Election Commission, the petitioner preferred the aforesaid writ petition which has been dismissed by the Hon'ble Single Judge vide judgment under appeal. The Hon'ble Single Judge has found the contention of the petitioner that he was not disqualified to be incorrect. However, proceeding further, it has also taken note of certain Division Bench judgements of this Court holding that once the result of the election is declared, the State Election Commission has no jurisdiction to set aside the election but, thereafter, the Hon'ble Single Judge considering the facts and circumstances of the case in hand has declined to exercise its discretionary jurisdiction in favour of the petitioner under Article 226 of the Constitution of India and, accordingly, dismissed the writ petition. To complete the chain of events, it may also be placed on record that during the pendency of appeal, since, there was no stay either of the order of State Election Commission or of the Hon'ble Single Judge, fresh election on the post of Gram-pradhan village Murdhawa was held wherein respondent No. 6, Sunil Kumar Gupta, has been elected as Pradhan of the village in question.
3. Sri R.K. Jain, Senior Advocate, assisted by Sri Ashwani Mishra has submitted that once the result of an election is declared, the Election Commission becomes functus officio and has no jurisdiction to uphold the result of the election in any manner and if any person is aggrieved by result of the election, the only remedy available to him is to file an election petition and, therefore, the order passed by the State Election Commission countermanding the election on the post of Pradhan is illegal and without jurisdiction. He further submits that Article 243-K of the Constitution of India has no application in the matter and in no manner it gives any power to the Election Commission to pass an order setting aside the result of an election result whereof has already been declared and, therefore, the State Election Commission, it is contended, has illegally usurped the power by illegally referring to Article 243-K of the Constitution. Similarly, it is said that Section 12-BB of 1947 Act also does not give any such power and, therefore, the order of the State Election Commission is wholly without jurisdiction and nullity in the eyes of law. It is contended that once it is evident that the order, impugned in the writ petition, was a nullity being wholly without jurisdiction, the writ Court ought to have interfered and set aside such an order and the Hon'ble Single Judge by refusing to exercise his jurisdiction under Article 226 of the Constitution has erred in law. He lastly contended that subsequent event that fresh election has been held wherein respondent No. 6 Sri Sunil Kumar Gupta has been elected as Gram-pradhan of village Murdhawa will not affect the dispute in question pending this appeal since the election has been conducted afresh during the pendency of this matter before this Court and therefore the same would have to abide by the result of the litigation and in case it is found that the order of the State Election Commission countermanding the election is without jurisdiction, all subsequent transactions and orders would also become non est, which would include the election of respondent No. 6 also.
4. On the contrary, learned Counsel appearing for State Election Commission submits that a person, who is disqualified to hold an office can neither be declared nor be allowed to continue to hold the elected office and, therefore, not only, before election of the person concerned, but even thereafter, the State Election Commission has a statutory and Constitutional obligation to see that no person, who is disqualified to hold an office should continue therein. In the case in hand, the petitioner was admittedly convicted and hence was disqualified under law to be elected as Gram-pradhan under the provisions of 1947 Act and rules and regulations framed thereunder. Hence, the State Election Commission rightly passed the order countermanding election and in any case, since the petitioner was a person who was disqualified to hold a public office, the Hon'ble Single Judge has rightly refused to exercise discretionary jurisdiction under Article 226 of the Constitution and there is no error in the decision of Hon'ble Single Judge warranting any interference in this appeal.
5. We have heard learned Counsel for the parties and perused the record. Besides oral submissions, the petitioner has also filed written submissions, which has also been considered by us. In our view, rival submissions give rise to the following four issues which require adjudication in this appeal.
1. Whether the petitioner suffered disqualification for election to the post of Gram-pradhan?
2. Whether the petitioner had any legal right to continue in office after declaration of result till he is declared disqualified under Section 6-A of the Act and can such right be enforced by filing writ petition under Article 226 of the Constitution of India?
3. Whether the Election Commission could pass impugned order dated 21.10.2005 countermanding the election after the result of the election of the petitioner was declared?
4. Whether the Hon'ble Single Judge was right in declining to exercise discretionary jurisdiction under Article 226 of the Constitution?
6. Before answering the aforesaid issues it would be appropriate to have a bird's eye view of the relevant statutory provisions applicable in the case in hand. Section 5-A of 1947 Act provides for disqualification of membership and reads as under:
5-A. Disqualification of membership- A person shall be disqualified for being chosen as, and for being, the Pradhan or a member of a Gram Panchayat, if he
(a) is so disqualified by or under any law for the time being in force for the purposes of elections of the State Legislature:
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of 21 years;
(b) is a salaried servant of the Gram Panchayat or a Nayaya Panchayat;
(c) holds any office of profit under a State Government or the Central Government or a local authority, other than a Gram Panchayat or Nayaya Panchayat; or a Board, Body or Corporation owned or controlled by a State Government or the Central Government;
(d) has been dismissed from the service of State Government, the Central Government or a local authority or a Nyaya Panchayat for misconduct;
(e) is in arrears of any tax, fee, rate or any other dues payable by him to the Gram Panchayat, Kshettra Panchayat or Zila Panchayat for such period as may be prescribed, or has, in spite of being required to do so by the Gram Panchayat, Nyaya Panchayat, Kshettra Panchayat or Zila Panchayat failed to deliver to it any record or property belonging to it which had come into possession by virtue of his holding any office under it;
(f) is an undischarged insolvent;
(g) has been convicted of an offence involving moral turpitude;
(h) has been sentenced to imprisonment for a term exceeding three months for contravention of any order made under the Essential Commodities Act, 1955;
(i) has been sentenced to imprisonment for a term exceeding six months or to transportation for contravention of any order made under the Essential Supplies (Temporary Powers) Act, 1946 or the U.P. Control of Supplies (Temporary Powers) Act, 1947;
(j) has been sentenced to imprisonment for a term exceeding three months under the U.P. Excise Act, 1910;
(k) has been convicted of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985;
(l) has been convicted of an election offence;
(m)has been convicted of an offence under the U.P. Removal of Social Disabilities Act, 1947 or the Protection of Civil Rights Act, 1955; or
(n) has been removed from office under Sub-clauses (Hi) or (iv) of Clause (g) of Sub-section (1) of Section 95 unless such period, as has been provided in that behalf in the said section or such lesser period as the State Government may have ordered in any particular case, has elapsed:
provided that the period of disqualification under Clauses (d), (f), (g), (h), (i), (j), (k), (I) or (m) shall be five years from such date as may be prescribed:
Provided further that the disqualification under Clause (e) shall cease upon payment of arrears or delivery of the record of property, as the case may be:
Provided also that a disqualification under any of the clauses referred to in the first proviso may in the manner prescribed, be removed by the State Government.
7. U.P. Panchayat Raj (Computation of Period of Five Years for Removal of Disqualification, Fixation of Period of Dues Etc. and Settlement of Disputes of Disqualification) Rules 1994 (hereinafter referred to as '1994 Rules') have been framed and Rules 3 and 4 thereof reads as under:
3. Computation of period of five years. The date from which the period of five years for removal disqualification under Clauses (d), (f), (g), (h), (i),(j), (k), (l) or (m) of Section 5-A of the Act shall be computed will be as follows:
(a) For Clause (d), from the date of dismissal;
(b)For Clause (f), from the date on which the insolvent is discharged;
(c) For Clauses (g) (h) (i), (j), (k), (l), or (m);
(i) In case of sentence of imprisonment, form the date of expiry of the period of sentence;
(ii) In the case of sentence of fine, from the date of payment or recovery thereof;
(iii) In the case of sentence of both imprisonment and find, from the date of expiry of sentence, or payment or recovery of fine, whichever is later.
4. Removal of disqualification under Section 5-A.- (1) An application for removal of the disqualification under Clauses (d), (f), (g), (i), (j), (k), (I), or (m), of Section 5-A of the Act shall be in the form given in the Appendix and shall show the grounds upon which the applicant claims removal of the disqualification.
(2) The application shall be presented to Sub-Divisional Officer of Sub-Division concerned.
(3) The Sub-Divisional Officer may, after such enquiry as he deems fit, either accept the application and remove the disqualification or reject the application.
(4) A copy of the order passed under Sub-rule (3), removing the disqualification shall be sent to the secretary of the concerned Gram Panchayat and to the Assistant Development Officer (Panchayat) and to the concerned Kshettra Panchayat.
8. There are some other provisions which have been referred and relied upon by the learned Counsel for parties. Therefore, we propose to mention the same also at this stage. Section 6-A of the Act provides for authority and manner to decide the question of disqualification of a person under Section 5-A or Section 6 (1) of 1947 Act and reads as under:
6-A. Decision on question as to disqualifications.-lf any question arises as to whether a person has become subject to any disqualification mentioned in Section 5-A or in Sub-section (1) of Section 6, the question shall be referred to the prescribed authority for his decision and his decision shall, subject to the result of any appeal as may be prescribed, be final.
9. Section 12-BB provides for Superintendence etc. of the election and 12-H deals with casual vacancy which reads as under:
12-BB. Superintendence, etc. of the election.-(1) The Superintendence, direction and control of the conduct of the election to the office of the Pradhan, Up-Pradhan or a member of a Gram Panchayat shall be vested in the State Election Commission.
(2) Subject to Superintendence, direction and control of the State Election Commission, the Mukhya Nirvachan Adhikari (Panchayat) shall supervise and perform all functions relating to the conduct of the election to the office of Pradhan, Up-Pradhan or a member of a Gram Panchayat in the State.
(3) State Government with consultation of State Election Commission, by notification, shall appoint the date or dated for the general election or by election of Pradhan, Up-Pradhan or members of any village.
12-H. Casual Vacancy.-lf a vacancy in the office of the Pradhan, Up-Pradhan or a member of a Gram Panchayat arises by reason of his death, removal, resignation, voidance of his election or refusal to take oath of office, it shall be filed before the expiration of a period of six months from the date of such vacancy, for the remainder of his term in the manner, as far as may be,, provided in Sections 11-B, 11-C or 12, as the case may be :
Provided that if on the date of occurrence of such vacancy the residue of the term of the Gram Panchayat is less than six months, the vacancy shall not be filled.
10. Section 12-C makes provision with respect to election petition and U.P. Panchayat Raj (Settlement of Election Disputes), Rule 1994 provides procedure for such election petitions. We propose to refer the same subsequently if it is needed.
11. Now we propose to consider the issues framed above.
Issue No. 1Issue No. 1 can be answered straightway in the affirmative. From a bare reading of Section 5-A (k) of 1947 Actread with Rules-3 and 4 of 1994 Rules, we are clearly of the view that the petitioner having been convicted under "Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1983 did suffer a disqualification to be elected a member or a Pradhan under the Act. The Hon'ble Single Judge has rightly held that mere pendency of appeal has no effect of defering the disqualification possessed by a person under the Act, since, there is no provision under the act defering disqualification possessed by a person on account of his conviction merely because his appeal against the order of conviction is pending.
Section 5-A disqualifies a person for being chosen for being Pradhan or member of Gram Panchayat if he suffers any of the disqualifications provided under Clauses (a) to (n) thereof. The language of Section 5-A makes it clear that a person would be ineligible to contest an election or to stand for election if he suffers any of the disqualifications under Clauses (a) to (n) of Section 5-A. Some of the disqualifications are permanent and some are temporary for for a limited period. For such disqualifications which are for limited period, the period is also provided by three provisos appended at the end of Section 5-A. The period of disqualification under Clauses (d), (f), (g), (h), (k), (l) or (m) is five years while for disqualification under Clause (e) it is the period upto which the incumbent continues to be a defaulter or has not delivered record or property of the concerned local body. The computation of period of five years is to be made in accordance with Rule 3 of 1994 Rules. Therefore, we have no hesitation in concluding that the petitioner suffered disqualification under Section 5-A (k) of 1947 Act.
Issue No. 2.
Learned counsel for the petitioner referring to Rule 6-A of the Act contended that whether any question arises where any person has become subject to any disqualification mentioned in Section 5-A or 16(1) of the Act, such question shall be referred to Prescribed Authority for its decision and contended that the said decision could not have been taken by the State Election Commission but only by the Prescribed Authority. He. further contended that when something is required to be done in a particular manner provided in the statute, no other procedure can be adopted and any order passed otherwise would be void.
It is true that Section 6-A provides for adjudication of a dispute with respect to a question as to whether a person has become subject to any disqualification under Section 5-A or 6(1) of the Act, but in our view, the said provision would be applicable only where there is some dispute or doubt with respect to disqualification of the person concerned. In a case where the disqualification is writ large and there is no dispute at all, in our view no assistance can be taken by referring to Section 6-A of the Act. It is important to notice at this stage that right to vote and be represented is integral to the democratic system under the Constitution of India but none of the two can be said to be an absolute right. There are certain limitations to right to vote and be represented. Right to stand as a candidate for election is neither a fundamental right nor a constitutional right nor ordinary civil right but is a creation of statute or special law. In N.P. Ponnuswami v. Returning Officer , the Apex Court referred with approval the decision of Privy Council in Joseph Theberge and Anr. v. Phillippe Laudry (1876) 2 AC 102 and held in para 19 of the judgment as under:
The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to limitation imposed by it.
In Hari Prasad Moot Shanker Tiwari v. V.B. Raju and Ors. , reiterating the aforesaid view, the Court held that "the right to stand for election is a statutory right and the statute can therefore, regulate the manner in which the right has to be enforced or the remedy for enforcing it."
In Jyoti Basu v. Debi Ghosal , the Apex Court said "the right to elect, fundamental though it is to democracy, is, anomalously enough, neither the fundamental right nor a common law right So is the right to be elected. So is the right to dispute an election. Outside the statute there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and, therefore, subject to statutory imitations."
The said view has further been reiterated in subsequent cases and recently in Kuldip Nayar v. Union of India and Ors. , Shri Kant v. Vasant Rao and Raja Ram Pal v. the Hon'ble Speaker, Lok Sabha and Ors. .
In the light of the aforesaid nature of right in issue, considering the right of the petitioner to maintain this writ petition challenging the order impugned therein, particularly when it is evident from record, that he did suffer the disqualification under Section 5-A of the Act, it cannot be said that he had a legal land enforceable right to continue in the office after being declared elected though erroneously or illegally, due to fault or ignorance or mistake of the authority concerned by ignoring the disqualification possessed by the petitioner and permitting him to contest the election, but the fact remains, that once he is disqualified under Section 5-A of the Act, it cannot be said that he has a legal right and that too enforceable to continue in the office till it is adjudcicated or decided by some authority under the Act. He is not entitled to enforce the said right in law which, admittedly he has usurped by contesting the election for which he was disqualified under the statute. Issue No. 2 is answered accordingly.
Issues No. 3 and 4:
Both the issues can be dealt with together. The power of cancellation of result after its declaration by the State Election Commission came to be considered by a Division Bench of this Court in Smt. Ram Kami v. District Magistrate and Ors. 1995 AWC 1465 and after having considered various provisions in this regard, applicable under the Act as well as Constitution, this Court in para 9 of the judgment held as under:
From the above provisions, it is thus, apparent that the State Election Commissioner, District Magistrate and the Election Officer are empowered to supervise, control and conduct the election. After the election is over, they lose all jurisdiction over the matter and it is the Election Tribunal alone, which is competent to deal with the dispute arising out of or in connection with the election. The meaning of the word "election" and when does the "election process" comes to an end has been considered by the Supreme Court from time to time while deciding the cases under the R.P. Act, leading case being N.P. Punnuswami v. Returning Officer , wherein the "election" was given the wide meaning so as to connote "the entire process culminating in a candidate being declared elected". It, thus, includes the entire procedure to be gone through to return a candidate to the Legislature". Same rule was reiterated in Mohinder Singh Gill v. Chief Election Commissioner , wherein it was laid down that the election "commences from the initial election notification and culminates in the declaration of the return of a candidate". Election process, thus, comes to an end on "the final declaration of returned candidates". As the pattern and the procedure for holding the election under the Act and the Rules is similar to that contained in the R.P. Act, the same definition of "election" has to be applied to the election held under the Act and the Rules. After the election process has come to an end, the State Election Commissioner, District Magistrate and the Election Officer lose all their jurisdiction and the only authority, which can deal with an decide any complaint regarding the election is the Election Tribunal. It follows, therefore, that the Election Commissioner, District Magistrate and the Election Officer can neither cancel the poll/declaration of the result nor can they direct for fresh poll or recounting after the candidate has been declared elected, but such a declaration has to be in accordance with law. Under the R.P. Act, as per Section 66, after the counting of votes has been completed, the Returning Officer has to forthwith declare the result of the election "in the matter provided by this Act or the Rules made thereunder." Rule 64 of the Conduct of the Election Rules 1961 framed under the R.P. Act requires the Returning Officer to declare the candidate as elected in Form 21C or Form 21D as may be appropriate. Rule 66 further requires the Returning Officer to grant to a candidate so declared elected a certificate of election in Form 22. In Krishna Ballabm Prasad Singh v. Sub-Division Officer , Supreme Court has laid down that in view of the provisions contained in Section 66 of the R.P. Act, a candidate can only be declared in the manner provided by the Rules made thereunder and the manner having been provided in Rule 64, a candidate cannot be said to have been duly elected unless the declaration is made in Form 21C. It was further laid down that in the absence of declaration in the said form, even the grant of certificate of election in Form 22 cannot be of any help to a candidate because such a certificate can only be issued after the candidate has been declared elected in the manner prescribed, namely, in Form 21C. It was accordingly held that election process comes to an end only after declaration in Form 21C has been made.
13. The view taken in Ram Kanti (supra) has been reiterated by another Division Bench in Shambhu Singh v. State Election Commissioner 2000(4) AWC 2777 and in para 8 of the judgment the Court held as under:
The meaning of word "Election" and when does the election process comes to an end has been considered by the Supreme Court white deciding the cases under Representation of Peoples Act. In this connection, the judgment and decision in the case of P.N. Ponnuswami v. Returning Officer , may be taken note of. In the aforesaid decision, the Supreme Court has given a wide meaning to the word "Election" so as to connote the entire process culminating in a candidate being declared elected. The election, therefore, really includes the entire procedure to be gone through to return a candidate to the Legislature". The same principle has been enunciated in the judgment and decision in the case of Mohinder Singh Gill v. Chief Election Commissioner , wherein it was laid down that the election "commences from the initial election notification and culminates in the declaration of the return of a candidate". Election process, thus, comes to an end on "the final declaration of returned candidates". More or less the same procedure as in the Representation of Peoples Act has been provided in the Statute with which we are concerned. In the present case, the same definition of election has to be applied to the election held under the U.P. Panchayat Raj Act and the Rules. In our view, on proper interpretation of the Statute, after the election process has come to an end, the State Election Commissioner, District Magistrate and the Election Officer cease to have any jurisdiction and the only authority which can deal with an decide any complaint regarding the election is the Election Tribunal. As a corollary, it follows that the State Election Commissioner, District Magistrate and Election Officer can neither cancel the poll/declaration of the result nor can direct for a fresh poll and recounting after the candidate has been declared elected, but such a declaration has to be in accordance with law.
14. In view of the aforesaid two Division Bench decisions, it is abundantly clear that once the election process has come to an end on the final declaration of the returned candidate, the State Election Commission or the District Magistrate or the Election Officer ceases to have any jurisdiction and the only authority which can deal with and decide any complaint regarding the election is the Tribunal. Thus far there is no difficulty and we have not been persuaded to take a different view than what has been consistently taken by this Court as is evident from the above judgment.
However, the matter does not rest here. Since the petitioner has invoked extraordinary jurisdiction under Article 226 of the Constitution., the remedy is not as a matter of right and this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous. There are certain exceptions which are well recognised and one of such exceptions is where setting aside of an order will result in revival of another illegal order.
15. In Champalal Binani v. The Commissioner of Income Tax west Bengal and Ors. the Apex Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."
In Durga Prasad v. The Chief Controller of Imports and Exports and Ors. (para 7) and in Bombay Municipal Corporation for Greater Bombay v. Advance Builders (India) Pvt. Ltd. it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.
16. It would be appropriate to refer at this stage the view expressed by the Apex Court in Municipal Board, Pratabgarh and Anr. v. Mahendra Singh Chawla and Ors. wherein it was held:
...this Court is not bound to tilt at everyapproach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its prestine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136.
17. What has been observed by the Apex Court with reference to Article 136 of the Constitutions, in our view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the fact and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival lot another illegal order, the Court would be justified in refusing to interfere.
18. In Employees' State Insurance Corporation and Ors. v. Jardine Henderson Staff Association and Ors. the Apex Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment the Court clearly held that the High Court under Article 226 and the Apex Court under Article 136 read with 142 of the Constitution has the power to mould the relief in the facts of the case.
In Ramnik Lal N. Bhutta and Anr. v. State of Maharashtra , the Apex Court observed:
The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point.
19. In State of H.P. v. Raja Mahendra Pal and Ors. in para 6 of the judgment the Apex Court held:
...It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this Court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article....
20. Similarly, in Director of Settlement v. M.R. Apparao (2002) SCC 638 in para 17 the Apex Court held that the power vested in High Court under Article 226 of the Constitution is discretionary.
Applying the above exposition of law to the facts of this case, it is evident from the facts of this case that the petitioner having been convicted under Section 20 of the NDPS Act to undergo sentence of three years R.I. Suffered disqualification under Section 5A(k) of the Act and, therefore, neither he could have been chosen nor could continue to be Pradhan or member of Gram Panchayat. The authorities erred in law in permitting him to contest the election in flagrant violation of Rule 5A of the Act and, therefore, he has no legal and valid right to hold the office in question. Though as we have already held that once election process is over, the State Election Commission has no authority to interfere with the election or to pass an order interfering therewith but setting aside the order passed by the State Election Commission in the case in hand would result in revival of election of the petitioner to an office illegally despite the fact that he is disqualified under Section 5A not only for being chosen but also for being a Pradhan or Member of Gramt Panchayat. Therefore, in our view, the Hon'ble Single Judge has rightly declined to exercise discretionary jurisdiction under Article 226 of the Constitution of India injavour of the petitioner.
21. Moreover, there is another aspect of the matter, namely, during the pendency of the case fresh election has already taken place and another incumbent has already elected. Therefore, under entire facts and circumstances of the case we do not find any reason to interfere in this appeal. Both the issues No. 3 and 4 are answered accordingly.
22. In the result, in the peculiar facts and circumstances of the case, we do not find any fault or error in the order of learned Single Judge, warranting any interference in this appeal. The appeal therefore, lacks merit and is accordingly dismissed. There shall be no order as to costs.