Chattisgarh High Court
Smt. Shikha Soni vs The Election Commission on 24 September, 2008
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri
HIGH COURT OF CHATTISGARH AT BILASPUR
Writ Petition No 4713 OF 2004
Smt. Shikha Soni
...Petitioners
Versus
1. The Election Commission
2. The Returning Officer
3. Smt. Subhashini Singh
...Respondents
! Mr. B.P. Sharma and Mr. K. Sharma,counsel for the petitioner ^ Mr. Vinay Harit, Deputy Advocate General for the respondent No.1 State Ms. A. Sisodiya, counsel for the respondent No.2 Mr. Sanjay K. Agrawal and Mr. Sourabh Sharma counsel for the respondent No.3 Honble Mr. Satish K. Agnihotri, J Dated: 24/09/2008 : Judgement (Writ Petition under Article 226/227 of the Constitution of India) ORAL ORDER (Passed on this 24th day of September, 2008) The petitioner, by this petition, seeks a writ in the nature of certiorari to quash the order of the Returning Officer, whereby nomination paper of the respondent No.3 was accepted for election to the post of Mayor of Municipal Corporation, Chirmiri and prohibiting the election process in view of illegal acceptance of nomination paper of the respondent No.3.
2) Notice was issued on 25-9-2006. However, no interim relief was granted. Thereafter, subsequently election was held on 19-12-2004 and the respondent No.3 was elected by majority as Mayor of Municipal Corporation, Chirmiri. This petition has now become infructuous as once the election had already taken place, no challenge to the acceptance of nomination of a candidate can be made in writ petition. If there is any challenge to the election proceedings, the same is maintainable by filing an election petition under Article 243-ZG (b) of the Constitution of India.
3) The Hon'ble Supreme Court in the matter of Jaspal Singh Arora Vs. State of M.P. and others1, observed as under:
"3.. 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 sunder 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."
The aforesaid view was later on referred with approval by Hon'ble the Supreme Court in the matter of Harnek Singh Vs. Charanjit Singh and others2.
4) In the matter of N.P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others3, the Hon'ble Supreme Court observed as under:
"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."
5) In the matter of Manda Jagannath Vs. K.S. Rathnam and others4 the Hon'ble Supreme Court observed as under:
"12. In our opinion, whether the returning officer is justified in rejecting this Form B submitted by the first respondent herein or not, is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only.
19. In Election Commission of India v. Shivaji (supra) this Court while considering a challenge to the election notification which included certain Zila Parishads within a notified constituency, held following the judgment in Ponnuswami (supra) that even if there was any ground relating to the noncompliance with the provisions provisions of the Act and the Constitution on which the validity of any election process could be questioned, the person interested in questioning the election has to wait till the election is over and institute a petition in accordance with section 81 of the Act calling in question the election of the successful candidate."
6) Further, in the matter of Gurdeep Singh Dhillon Vs. Satpal and others5, the Hon'ble Supreme Court observed as under:
"5. There is no dispute that the writ petition was moved only to challenge the election of the appellant to Municipal Council, Ferozepur City. Instead of challenging the said election by an election petition under Section 74 of the Punjab State Election Commission Act, 1994 Respondents 2 to 13 took a short cut by filing a writ petition and invoking the constitutional jurisdiction of the High Court under Articles 226/227 of the Constitution. This petition ought not to have been entertained in view of the specific bar under Article 243 ZG (b) of the Constitution of India. The only remedy available to challenge the election was by raising an election dispute under the local statute.
7) Applying well settled principles of law as laid down by the Hon'ble Supreme Court to the facts of the present case, wherein this petition was initially filed, challenging acceptance of nomination papers of the respondent No.3, this petition is not maintainable on the ground that the election had already taken place.
8) Accordingly, the petition is dismissed.
Consequently, pending applications, if any, also stand dismissed.
JUDGE