Himachal Pradesh High Court
Ashwani Gupta vs State Of H.P. And Others on 20 June, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No. 7502 of 2014
Judgment reserved on: 15.6.2015
Date of Decision : June 20, 2015
Ashwani Gupta ...Petitioner
Versus
State of H.P. and others
Coram
r to
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
....Respondents.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ? Yes For the Petitioner : Mr. Dinesh Bhanot, Advocate.
For the respondents : Mr. Shrawan Dogra, Advocate General,
with Mr. Anup Rattan, Mr. Romesh
Verma, Addl. Advocate Generals,
Mr. J.K.Verma and Mr. Vikram Thakur,
Deputy Advocate Generals, for
respondents No. 1 and 4.
Mr. Ashok Sharma, ASGI, for
respondent No. 2.
Ms. Nishi Goel, Advocate for
respondent No.3.
Tarlok Singh Chauhan, Judge
The petitioner, who claims himself to be RTI candidate, has filed this petition allegedly as probono publico and has sought following reliefs:
"(a). The respondent No.5 may kindly be held to be disqualified from holding the office of the member State Legislative Assembly by issuing a writ of quo warranto or any other appropriate writ, order or direction.
(b) Restrained respondent No.5 from functioning as an MLA.
______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 22. This Court on 15.10.2014 issued notices which were .
confined to the official respondents whereas no notice was issued to the elected candidate, who has been arrayed as respondent No.5. The allegations as set out in the petition are that respondent No.5 at the time of nomination was a Government contractor and had many subsisting contracts and therefore, had incurred disqualification for being elected as a member of the State Legislative Assembly because this fact was suppressed by him while filling up his nomination. It is further alleged that the Returning Officer i.e. respondent No.4 did not follow the provisions contained in Section 9-A and 125-A of the Representation of the People Act, 1951 and illegally permitted respondent No.5 to get elected as a member of State Legislative Assembly.
3. Respondent No.1 in response to the petition filed its reply wherein preliminary objection regarding maintainability of this petition has been raised. It is averred that Article 329 of the Constitution debars any Court of the land to entertain a suit or proceedings calling in question any election to Parliament or State Legislature and the only mode and manner of challenge to the election of a candidate to either Parliament or State Legislature can only be by way of election petition.
4. The respondents No. 2 to 4 have filed their separate reply wherein these respondents too have relied upon the provisions of Article 329(b) of the Constitution of India and Part-VI of the Representation of the People Act, 1951 to canvass that no election can be called in question except by way of an election petition presented within 45 days from the date of declaration of result of the returned ::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 3 candidate. It has further been averred that the lack of qualification and .
disqualification at the time of contesting any election is a ground to be raised in an election petition under Section 100 (1) of the Act of 1951 and not by way of present writ petition.
5. Since the respondents have raised preliminary objection regarding very maintainability of this petition, we propose to deal only with this question.
6. We have heard learned counsel for the parties and have gone through the records of the case carefully.
7. The petitioner in order to justify the maintainability of the petition has vehemently argued that Article 226 of the Constitution is couched in widest possible terms and there being no express bar to the jurisdiction of this Court, therefore, the present writ is maintainable.
In support of his argument, he has relied upon the judgment of the Hon'ble Supreme Court in K. Venkatachalam vs. A. Swamickan and another (1999) 4 SCC 526.
8. While the respondents on the other hand would canvass that in view of the clear cut provisions as contained in Article 329 of the Constitution of India read with the Representation of the People Act, 1951 ( for short 'RP Act') and also taking into consideration the disputed questions of fact, the writ petition is not maintainable.
9. In K. Venkatachalam's case (supra) it was held by the Hon'ble Supreme Court as follows:
"20. In all these cases there is a common message that when the poll or re-poll process is on for election to the Parliament or ::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 4 Legislative Assembly, High Court cannot exercise its jurisdiction under 226 of the Constitution and that remedy of the aggrieved .
parties is under the Act read with Article 329(b) of the Constitution.
The Act provides for challenge to an election by filing the election petition under Section 81 on one or more grounds specified in sub-
section(l) of Sections 100 and 101 of die Act. There cannot be any dispute that there could be a challenge to the election of the appellant by filing an election petition on the ground improper acceptance of his nomination inasmuch as the appellant was hot an elector on the electoral roll of Lalgudi Assembly Constituency and for that matter also by any non-compliance, with the provisions of the Constitution or of the Act. If an election petition had been filed under Section 81 of the Act High Court would have certainly declared the election of the appellant void. It was, therefore, submitted that respondent could not invoke the jurisdiction of the High Court under Article 226 of the Constitution in view of Article 329(b) of the Constitution read with Sections 81 and 100 of the Act and only an election petition was maintainable to challenge the election of the appellant. That right the respondent certainly had to challenge the election of the appellant. Election petition under Section 81 of the Act had to be filed within forty-five days from the date of election of the returned candidate, that is the appellant in the present case. This was not done.There is no provision under the Act that an election petition could be filed beyond the period of limitation prescribed under Section 81 of the Act. That being so the question arises if the respondent is without any remedy particularly when it is established that the appellant did not have the qualification to be elected to the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency.
26. The question that arises for consideration is if in such circumstances High Court cannot exercise its jurisdiction under Article 226 of the constitution declaring that the appellant is hot qualified to be member of the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. On the finding recorded by the High Court it is clear that the appellant jn his nomination form impersonated a person known as `Venkatachalam s/o Pethu', taking advantage of the fact that such person bears his first name. Appellant would be even criminally liable as he filed his nomination on affidavit impersonating himself If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be fraud to the constitution.::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 5
27. In view of the judgment of this Court in the case of Election Commission of India v. Saka Varikata Rao, AIR (1953) SC 210 it may .
be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court, which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above, do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?
28. We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a member of the Legislative Assembly, The net effect is that the appellant ceases to be a member of the Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed respondent No. 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to Election Commission that Lalgudi Assembly constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election from that Assembly Constituency. Normally in a case like this Election Commission should invariably be made a party."
10. A perusal of the underlined portion of the judgment undoubtedly goes to show that the Hon'ble Supreme Court held that Article 226 of the Constitution is couched in widest possible terms and unless there was a clear bar to the jurisdiction of the High ::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 6 Court its power under Article 226 of the Constitution could be exercised .
when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. It was specifically held that the bar under Article 329 (b) of the Constitution would not come into play.
11. But then the aforesaid judgment was itself explained and distinguished by the Hon'ble Supreme Court in a later decision in Kurapati Maria Das vs. Dr. Ambedkar Seva Samajan and others (2009) 7 SCC 387 in the following manner:
"25."Learned counsel Shri Gupta, however, invited our attention to some other decisions of this Court reported as K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] where a writ of quo warranto was sought against the member of the Legislative Assembly on the ground that his name was not found in the voters' list of that particular constituency from where he was elected. Our attention was invited to paragraphs 27 and 28. In paragraph 27 after referring to the decision of the Election Commission of India v. Saka Venkata Rao [AIR 1953 SC 210] and considering the Article 192, the Court observed that Article 226 is couched in widest possible language and unless there is a clear bar to the jurisdiction of the High Court, its powers under Article 226 can be exercised when there is any act which is against any provision of law or vioative of constitutional provisions and when the recourse cannot be had to the provisions of the Act for appropriate relief. Then the Court observed: (A. Swamickan case, SCC p. 544, para 27) "27...."In circumstances like the present one, bar Under Article 329 (b) will not come into play when the case falls under Articles 191 and 193 and the whole process of election is over. Consider the case where a person elected is not a citizen of India. Would the court allow the foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?"
In paragraph 28, the Court went on to hold that the High Court had rightly exercised its jurisdiction in entertaining the writ petition under ::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 7 Article 226. This case has been very heavily relied on in the impugned judgment of the Division Bench.
.
26. Shri L. Nageshwar Rao further points out that the factual scenario in that case was different. That was a case where admittedly the name of the elected candidate was not in the voters' list and the elected candidate had tried to use similar name in the voters' list which was admittedly not that of the elected candidate. There was no necessity of any proof, as a voter list was an admitted document and it clearly displayed that the name of the Legislator was not included in the list. Therefore, the Court observed in that case in paragraph 27 which we have quoted above to the effect: (Swamickan case, SCC p. 544, para 27) "27....."In circumstances like the present one, bar Under Article 329 (b) will not come into play when the case false under Articles 191 and 193 and the whole process of election is over." (emphasis supplied)
27. We are afraid, we are not in position to agree with the contention that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is applicable to the present situation. Here the appellant had very specifically asserted in his counter affidavit that he did not belong to the Christian religion and that he further asserted that he was a person belonging to the Scheduled Caste. Therefore, the Caste status of the appellant was a disputed question of fact depending upon the evidence. Such was not the case in K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526]. Every case is an authority for what is actually decided in that. We do not find any general proposition that even where there is a specific remedy of filing an Election Petition and even when there is a disputed question of fact regarding the caste of a person who has been elected from the reserved constituency still remedy of writ petition under Article 226 would be available.
28. Again as we have stated earlier, there was no dispute and no challenge to the findings of the High Court that K. Venkatachalam, the petitioner in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] was not a Legislator in electoral roll of the constituency for the general elections for December, 1984 and he blatantly and fraudulently represented himself to be a Legislator of the constituency using the similarity with the name of another person. The situation in the present case is, however, entirely different in the sense that here the petitioner very seriously asserted that firstly, he ::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 8 was not a Christian and, secondly, that he belongs to the Scheduled Caste.
.
33. There is yet another distinguishing feature in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526]. In that case there is a clear finding that the elected person therein played a fraud with the Constitution inasmuch as that he knew that his name was not in Electoral Roll of that constituency and he impersonated for some other person taking the advantage of the similarity of names.
The appellant herein asserts on the basis of his Caste Certificate that he still belongs to Scheduled Caste. We are, therefore, of the clear opinion that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is not applicable to the present case and the High Court erred in relying upon that decision."
12. The Hon'ble Apex Court further held that the writ petition to set aside an election under the garb of writ of quo- warranto was not maintainable. It is apt to reproduce the following observations:
"22. There is no dispute that Rule 1 of the Andhra Pradesh Municipalities (Decision on Election Disputes) Rules, 1967, specifically provides for challenging the election of Councillor or Chairman. It was tried to be feebly argued that this was a petition for quo warranto and not only for challenging the election of the appellant herein. This contention is clearly incorrect. When we see the writ petition filed before the High Court, it clearly suggests that what is challenged is the election. In fact the prayer clauses (b) and
(c) are very clear to suggest that it is the election of the appellant which is in challenge.
23. Even when we see the affidavit in support of the petition in paragraph 8, it specifically suggested that the Ward No. 8 was reserved for the persons belonging to the Scheduled Castes from where the appellant contested the election representing himself to be a person belonging to the Scheduled Caste. Paragraph 9 speaks about the election of the appellant as the Chairperson. Paragraph 30 also suggests that the complaint has been made against the appellant that he had usurped the public office by falsely claiming himself to be a person belonging to the Scheduled Caste. In paragraph 33, it is contended that the first petitioner had no remedy ::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 9 to question the election of the 9th respondent by way of an election petition. Therefore, though apparently it is suggested in the writ .
petition was only for the writ of quo warranto, what is prayed for is the setting aside of the election of the appellant herein on the ground that he did not belong to the Scheduled Caste.
24. It is further clear from the writ petition that the writ-petitioners were themselves aware of the situation that the writ of quo-warranto could have been prayed for only on invalidation or quashing of the election of the appellant, firstly as a Councillor and secondly, as a Chairman and that was possible only by an Election Petition. The two decisions quoted above, in our opinion, are sufficient to hold that a writ petition of the nature was not tenable though apparently the writ petition has been couched in a safe language and it has been represented as if it is for the purpose of a writ of quo warranto."
13. The Hon'ble Supreme Court thereafter placed reliance upon an earlier decision rendered in Gurdeep Singh Dhillon vs. Satpal and others (2006) 10 SCC 616 wherein after quoting Article 243-ZG (b) the Court observed that the shortcut of filing the writ petition and invoking constitutional jurisdiction of the High Court under Articles 226/227 was not permissible and the only remedy available to challenge the election was by raising the election dispute under the local statute.
14. Article 329 of the Constitution of India reads thus:
"329. 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 327 or Article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a 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."::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 10
15. It would be seen that under Article 329 (b), there is a .
specific prohibition against any challenge to an election either to the house of Parliament or to the House of the Legislature except by an election petition presented to such authority and in such manner as may be provided for in a law made by the appropriate Legislature.
Parliament has by enacting the R P Act, 1951 provided for such a forum for questioning such elections hence, under Article 329 (b) no forum other than such forum constituted under the R P Act can entertain a complaint against any election.
16. In N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency AIR 1952 SC 64 the Hon'ble Supreme Court held that "the law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition."
17. A Constitution Bench in Durga Shankar Mehta vs. Raghuraj Singh, AIR 1954 SC 520 observed that "the non obstante clause with which Article 329 of the Constitution begins debars any other Court in the land, to entertain a suit or a proceeding calling in question any election to the Parliament or the State Legislature. It is the Election Tribunal (now the High Court) alone that can decide such disputes and the proceeding has to be initiated by an election petition and in such manner as may be provided by a statute...."
::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 1118. To similar effect are the observations made by the Hon'ble .
Supreme Court in Hari Vishnu Kamath vs. Syed Ahmad Ishaq, AIR 1955 SC 233 wherein it was observed as under:
"......These are instances of original proceedings calling in question an election, and would be within the prohibition enacted in Article 329
(b). But when once proceedings have been instituted in accordance with Article 329 (b) by presentation of an election petition, the requirements of that article are fully satisfied. Thereafter when the election petition is in due course heard by a Tribunal (now the High Court) and decided, whether its decision is open to attack, and if so, where and to what extent, must be determined by the general law applicable to decisions of Tribunals. .........The view that Article 329
(b) is limited in its operation to initiation of proceedings for setting aside an election and not to the further stages following on the decision of the Tribunal is considerably reinforced, when the question is considered with reference to a candidate whose election has been set aside by the Tribunal."
19. In the celebrated case of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others (1978) 1 SCC 405 the Constitution Bench of the Hon'ble Supreme Court held that under Article 329 (b) the sole remedy for an aggrieved party, if he wants to challenge any election, is an election petition and this exclusion of all other remedies includes constitutional remedies like Article 226 because of the non-obstante clause. It was further held that paramount policy of the Constitution-makers in declaring that no election shall be called in question except the way it is provided for in Article 329 (b) and the Representation of the People Act, 1951, shows that the Constitution and the Act should be read as an integrated scheme.
20. In Krishna Ballabh Prasad Singh vs. Sub Divisional Officer Hilsa-cum- Returning Officer and others (1985) 4 SCC ::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 12 194, the Hon'ble Supreme Court held that the bar under Article 329(b) .
against filing of the writ petition operates only after process of election comes to an end and it shall be apt to reproduce para-5 which reads thus:
"5. We are of opinion that the process of election came to an end only after the declaration in Form 21-C was made and the consequential formalities were completed. The bar of clause (b) of Article 329 of the Constitution came into operation only thereafter and an election petition alone was maintainable. The writ petition cannot be entertained."
21. In Indrajit Barua and others vs. Election Commission of India and others AIR 1986 SC 103, a Constitution Bench of the Hon'ble Supreme Court was again confronted with the proposition as to whether a writ petition under Article 226 could be maintained for challenging the election to the State Legislature. The Hon'ble Supreme Court after placing reliance upon Hari Vishnu Kamath case (supra) and Constitution Bench decision in Durga Shankar Mehta case (supra) observed as follows:
"6. These are clear authorities - and the position has never been assailed - in support of the position that an election can be challenged only in the manner prescribed by the Act. In this view of the matter, we had concluded that writ petitions under Article 226 challenging the election to the State Legislature were not maintainable and election petitions under Section 81 of the Act had to be filed in the High Court. The Act does not contemplate a challenge to the election to the Legislature as a whole and the scheme of the Act is clear. Election of each of the returned candidates has to be challenged by filing of a separate election petition. The proceedings under the Act are quite strict and clear provisions have been made as to how an election petition has to be filed and who should be parties to such election petition. As we have already observed, when election to a Legislature is held it is not one election but there are as many elections as the legislature has members. The challenge to the ::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 13 elections to the Assam Legislative Assembly by filing petitions under Article 226 of the Constitution was, therefore, not tenable in law."
.
22. In Jaspal Singh Arora vs. State of Madhya Pradesh (1998) 9 SCC 594 the election of President of the Municipal Council had been challenged by medium of the writ petition and it was held :
"3. These appeals must be allowed on a short ground. In view of the mode of challenging the election by an election petition being prescribed by the M.P. Municipalities Act, it is clear that the election could not be called in question except by an election petition as provided under that Act. The bar to interference by courts in electoral matters contained in Article 243-ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. Apart from the bar under Article 243-ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside election to a municipality was not called for because of the statutory provision for election petition and also the fact that an earlier writ petition for the same purpose by a defeated candidate had been dismissed by the High Court."
23. In Election Commission of India through Secretary vs. Ashok Kumar and others (2000) 8 SCC 216, after taking into consideration the entire law on the subject, it was held as under:
"28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over- enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
30. To what extent Article 329 (b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only ::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 14 one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided .
at any intermediate stage. The non-obstante clause with which Article 329 opens, pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill case). The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the Court so as to have the wrong done remedied by invoking the judicial forum;
nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two-pronged attack on anything done during the election proceedings is to be avoided ---- one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.
32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:-
(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election.
Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well- settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered ::: Downloaded on - 15/04/2017 18:25:00 :::HCHP 15 irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
.
(5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same r by necessary material."
24. In view of the aforesaid exposition of law, we have no hesitation to hold that in view of the non-obstante clause with which Article 329 opens pushes out Article 226 where the dispute takes the form of calling in question an election. The election rights and remedies being statutory cannot be ignored and the petitioner cannot be permitted to resort to a short cut method of filing a writ petition and the only remedy available to challenge the election is by raising an election dispute in accordance with law.
25. In view of the aforesaid discussion, it can safely be concluded that the present writ petition in view of the specific bar as contained under Article 329 (b) of the Constitution is not maintainable.
Consequently, the same is dismissed as such. The parties are left to bear their own costs.
( Mansoor Ahmad Mir)
Chief Justice
June 20, 2015 (Tarlok Singh Chauhan),
(GR) Judge
::: Downloaded on - 15/04/2017 18:25:00 :::HCHP