Gujarat High Court
Ambabhai Popatbhai vs B.A. Pandey And Ors. on 17 June, 1989
Equivalent citations: AIR1990GUJ184, (1989)2GLR663, AIR 1990 GUJARAT 184
JUDGMENT Gokulakrishnan, C.J.
1. This Letters Patent Appeal is against the order passed by the learned single Judge, dismissing Special Civil Application No. 3862 of 1989. In the Special Civil Application, the appellant herein has prayed for quashing the orders of the Authorities concerned, which are at Annexures 'A' and 'B' to the Special Civil Application and has prayed for accepting his nomination paper for the post of Sarpanch of Kapadiali Gram Panchayat. It is clear, from the facts of the case that the election process has started and the Returning Officer has rejected the nomination paper of the appellant herein after scrutiny of nominations as per Rule 10 of the Gujarat Grain and Nagar Panchayats Election Rules, 1962. The rejection is on the ground that the appellant has mentioned that his name is at serial No. 107 of the Voters' List while, as a matter of fact; it is J at serial No. 40. Thus, it is clear from the facts alleged that the appellant wants to put forth his case on the ground that it is an improper rejection of his nomination paper. Section 24 of the Gujarat Panchayats Act, 1961 (Gujarat Act No. VI of - 1962) clearly states that the validity of the election of a member of the Panchayat has to be determined by a Judge as per. the procedure set up thereunder. Section 24(l) reads as follows:
"24. (1) If the validity of any election of a member of a panchayat is brought in question by any person contesting the election or by any person qualified to vote at the election to which such question refers, such person may, at any time within fifteen days after the date of the declaration of the results of the election, apply to the Civil Judge (Junior Division), and if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division), (hereinafter referred to as "the Judge") having ordinary jurisdiction in the area within which the election has been or should have been held for the determination of such question."
Hence, as per the provision now available to the appellant, the course open to him is by filing an election petition and he cannot invoke the jurisdiction of this Court under Art. 226 of the Constitution of India for setting aside the orders of the authorities below and to have his nomination paper accepted.
2. Mr. Mishra, the learned counsel appearing for the appellant, assails the order passed by the learned singk Judge, stating that the learned single Judge ought to have admitted the Special Civil Application in view of the decision in the case of Navuba v. Returning Officer, reported in XXIII (2) Guj LR 397 : (AIR 1982 Guj 28 1). In XXIII (2) Guj LR 397: (AIR 1982 Guj 28 1) (supra), the nomination of the reserved seat for women was rejected by the Returning Officer on the ground that on scrutiny of the nomination paper, it was found that the candidate has not mentioned her number in the voters' list. Mr. Mishra, on analogy, states that this case will squarely apply to the facts of the present case and as such, the learned single Judge ought to have admitted the Special Civil Application and granted the interim relief asked for there in. It will be interesting to extract the relevant portion of the judgment in XXIII (2) Guj LR 397 : (AIR 1982 Guj 281) (supra) in order to appreciate the arguments advanced by Mr. Mishra. The relevant portion reads as follows:
"Held : that in the instant case on the peculiar facts it is found that the remedy under Section 24 of the Gujarat Panchayats Act, would not be, available to the petitioners herein. A mere look at Section 24 shows that remedy by way of election petition contemplated by the said section pertains to a case where validity of election of a member of the Panchayat is brought in question, by any person contesting the election or-qualified to vote at the election to which such question refers. Consequently, in such an election petition, election of the concerned returned candidate can be brought in challenge by either unsuccessful contestant or even by other persons who are qualified to vote at the concerned election. In the instant case as there was no election and there was no returned candidate for the reserved seat for woman, no occasion arises for asking the petitioners to prefer an election under Section 24 for determination of validity of such election. In the instant case the nomination of the petitioner was declared invalid and because there was no other candidate no election took place. It must, therefore, be held that the remedy by way of election petition under Section 24 is not available to the petitioner in the, instant case."
Thus, it is clear from the above said facts that there is no candidate to be declared elected after the rejection of the nomination paper in that case. If so, no election can be called in question by way of an election petition. In those circumstances, the learned single Judge held that on the peculiar circumstances and the facts of that case, the remedy available for the petitioner therein was under Art. 226 of the Constitution of India.
3. As far as the present case is concerned, there is a candidate who has to be declared as elected since two other candidates' nomination papers have been rejected. The third candidate, who is in the field and whose nomination paper has been accepted, will be automatically declared elected and if at all the other candidates, whose nomination papers have been rejected have any grievance, the remedy for them is by way of an election petition and not by invoking the jurisdiction of this High Court under Art. 226 of the Constitution of India. Both our High Court and the Supreme Court have, in many decisions, deprecated the interference in.the process of election by courts after election process has started. It has also been held that the only remedy available to an aggrieved candidate in such cases is by way of an election petition ,.after the election is over, and not to stall the election in the middle. It is unnecessary for us to quote the various decisions in this field since it is a settled principle that when there is an efficacious alternative remedy available for the appellant, he cannot be permitted to come by way of a writ petition under Art. 226 of the Constitution of India. The learned single judge has correctly appraised all these facts of the case and has dismissed the Special Civil Application. We are in complete agreement with the reasoning of the learned single Judge and accordingly, this Letters Patent Appeal is dismissed.
4. Appeal dismissed.