Uttarakhand High Court
Islam vs Returning Officer Urban Local Bodies … on 16 January, 2025
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
JUSTICE SHRI ASHISH NAITHANI
(Special Vacation Bench)
SPA NO.08 OF 2025
16TH JANUARY, 2025
Islam ......Appellant
Vs.
Returning Officer Urban Local Bodies and Others
......Respondents
Present:
Mr. Salman Khurshid, learned Senior Advocate assisted by Mr. Siddhartha
Sah, learned counsel for the appellant through V.C.
Mr. Devesh Bishnoi, learned counsel for respondent no.2/ Nagar Palika
Parishad through V.C.
Mr. Alok Kumar, learned counsel holding brief of Mr. Sandeep Kothari,
learned counsel for respondent no.5.
Mr. Sanjay Bhatt, learned counsel for respondentno.6.
Hon'ble Ashish Naithani, J.
1. This intra-court appeal is filed by the appellant to set aside the
judgment and order dated 07.01.2025 passed by the learned
Single Judge in Writ Petition (M/S) No.29 of 2025, whereby
the said writ petition, filed by the appellant for permitting him
to contest the Municipal Election 2024 for the post of
Chairman of Nagar Palika Parishad Manglaur, District
Haridwar has been dismissed.
2. The appellant, Islam, 57, a resident of Mohalla Kila, Manglaur,
Haridwar, challenged the rejection of his nomination for the
position of Chairman, Nagar Palika Parishad Manglaur. The
Returning Officer rejected the nomination during the scrutiny
process based on allegations of unauthorised occupation of
Nazul land, a decision that the appellant believes infringed
upon his fundamental right to a fair and transparent process.
3. The appellant contended that the principles of natural justice
were violated, as he was neither informed of the specific
details of the objection raised against him nor provided with a
copy of the objection. Furthermore, he was not given adequate
time to respond to the allegations. This lack of transparency
and denial of an opportunity to present his defence
contravened the fundamental tenet of audi alteram partem,
which ensures that no person is condemned unheard.
Consequently, the appellant was deprived of a fair and
reasonable opportunity to defend himself, undermining the
integrity of the electoral process.
4. The Returning Officer’s actions demonstrate an arbitrary and
discriminatory exercise of power, undermining the integrity of
the electoral process. By relying solely on external reports
while disregarding the official report submitted by the
Executive Officer of the Nagar Palika Parishad, the Returning
Officer displayed clear bias in decision-making. This selective
and inconsistent application of discretion is unjustified and
constitutes a violation of the equality guaranteed under Article
14 of the Constitution. Such actions undermine fair
administrative practices and erode public confidence in the
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Impartiality and integrity of democratic institutions.
5. While Article 243ZG of the Constitution bars judicial
interference in electoral matters to preserve the autonomy of
the electoral process, it does not provide absolute immunity
against scrutiny in cases of mala fide or arbitrary actions.
Judicial review serves as a crucial safeguard to prevent
irreparable harm when authorities act in deviation from
principles of fairness and legality. When administrative
decisions are tainted by malice, arbitrariness, or a clear abuse
of power, the judiciary retains the authority to intervene and
ensure justice. No constitutional provision can be interpreted to
shield actions that result in injustice or infringe upon
fundamental rights.
6. The arbitrary rejection of the petitioner’s nomination has
caused irreparable harm by unjustly depriving him of the
opportunity to participate in the electoral process. This denial
undermines his political aspirations and infringes upon his
fundamental right to contest elections, a cornerstone of
democratic participation. Beyond the immediate loss, it hinders
the petitioner’s ability to serve the electorate and fulfil his
envisioned public role. Such an unjust action warrants urgent
judicial intervention to address the substantial prejudice caused
and to safeguard the integrity of the democratic process.
7. The Learned Senior Advocate for the appellant submitted that
the appellant should be permitted to contest the election, and
the Returning Officer’s order rejecting his nomination should
be stayed. Furthermore, it was requested that the election
results, if declared, be subject to the final order of this Court.
The counsel argued that the stance taken by the Returning
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Officer in this case diverges from the legally valid views
adopted by other Returning Officers in similar circumstances,
resulting in the appellant being unfairly deprived of the
opportunity to contest. It was further contended that the
appellant’s case is directly covered by the precedent set in the
judgment of the Hon’ble Supreme Court in Election
Commission of India vs. Ashok Kumar and Others (2000,
Volume 8 SCC 216), which ruled in favour of an appellant in a
similar situation. Hence, the appellant should be allowed to
contest the election.
8. Learned counsel for the State Election Commission submitted
that the elections are scheduled to be held on 23.01.2025,
making the appellant’s petition untimely for judicial
intervention. It was further argued that Article 243ZG of the
Constitution imposes a specific bar on courts from entertaining
writ petitions during the election process. The counsel
emphasised that the State Election Commission, as the
authority responsible for conducting and supervising elections,
is bound by the provisions of the Constitution and the relevant
laws, leaving no scope for judicial interference at this stage.
9. Article 243ZG of the Constitution provides an explicit
limitation on judicial intervention in electoral matters. It states:
“243ZG. 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 notSPANO.08OF2025 (ASHISHNAITHANI, J)
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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.”
10. Learned counsel for the State Election Commission further
submitted that the State Legislature has already provided a
mechanism for addressing electoral disputes through Section
19 of the Municipalities Act, 1916. This provision specifies
that the improper rejection or acceptance of nomination papers
can only be challenged through an election petition, which
must be filed after the declaration of election results. A similar
mechanism exists under the Representation of the People Act
of 1950. The counsel argued that judicial interference at this
stage would disrupt the entire electoral process, contrary to the
statutory framework.
11. The respondents asserted that the rejection of the petitioner’s
nomination was in strict compliance with Section 13-D of the
Uttarakhand Municipalities Act, which disqualifies candidates
found to be in unauthorised occupation of government land.
They argued that the decision was firmly grounded in statutory
provisions and aligned with the legal framework governing
municipal elections. The respondents emphasised that the
Returning Officer acted within the scope of the law, ensuring
adherence to the eligibility criteria established by the statute to
maintain the integrity of the electoral process.
12. The respondents have asserted that the rejection of the
petitioner’s nomination was fully aligned with the mandates of
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Section 13-D of the Uttarakhand Municipalities Act, which
unequivocally disqualifies candidates found to be in
unauthorized occupation of government land. They
emphasised that the Returning Officer’s decision was firmly
rooted in statutory provisions, reflecting a conscientious effort
to uphold the legal framework governing municipal elections.
By acting within the confines of law, the respondents argued,
the Returning Officer sought to ensure strict compliance with
the eligibility criteria, thereby safeguarding the integrity and
credibility of the electoral process.
13. The respondents defended the scrutiny process as having been
conducted in strict accordance with the established legal
provisions. They contended that all procedural requirements
were diligently followed, ensuring compliance with the
statutory framework governing the nomination process. By
adhering to the prescribed rules and regulations, the
respondents maintained that the scrutiny was fair, impartial,
and transparent, reflecting their commitment to upholding the
integrity of the electoral process.
14. Learned counsel for the State Election Commission reiterated
that elections are scheduled for 23.01.2025, making the
appellant’s petition untimely for judicial intervention.
Referring to Article 243ZG of the Constitution, it was argued
that courts are explicitly barred from interfering in electoral
matters during the election process. Article 243ZG prohibits
challenges to the delimitation of constituencies or election
outcomes, except through an election petition as prescribed by
state law.
15. The counsel further emphasized that Section 19 of the
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Municipalities Act, 1916, provides a precise mechanism to
challenge the improper acceptance or rejection of nomination
papers through election petitions. This provision aligns with
the Representation of the People Act of 1950, which similarly
restricts judicial interference during the electoral process.
Intervening at this stage, it was argued, would disrupt the
ongoing election and contravene the constitutional and
statutory framework designed to preserve the sanctity of
elections.
16. Additionally, reliance was placed on the Supreme Court
judgment in State of Goa vs. Fouziya Imtiaz Shaikh (2021, 8
SCC 401), which under scored the constitutional mandate
under Article 243K for the appointment of an independent
State Election Commissioner (SEC). The Court held that
assigning the SEC’s role as an additional charge to a
government officer compromises the independence required
for this constitutional office and undermines the democratic
process. It directed that all State Election Commissioners
across India must be independent individuals, unaffiliated with
any government position, to ensure free and fair elections as
envisioned under Parts IX and IXA of the Constitution.
17. The determination of this Special Appeal hinges on whether
this Court possesses the jurisdiction to intervene in election-
related matters. It considers the bar imposed under clause (b)
of Article 243ZG of the Constitution of India and the extent to
which this restriction aligns with the writ jurisdiction conferred
under Article 226.
18. While Article 243ZG establishes a strong presumption against
judicial interference in electoral matters, this bar is not
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absolute. The writ jurisdiction under Article 226 remains
available in exceptional circumstances, such as when
fundamental rights are violated, when the authority conducting
the election acts beyond its jurisdiction, or when decisions are
manifestly illegal or arbitrary. The bar under Article 243ZG
aims to preserve the autonomy of the electoral process, but it
cannot be construed as a shield to protect mala fide or
unconstitutional actions. Judicial intervention in such cases
upholds the integrity of democratic governance and ensures
that constitutional safeguards are not rendered ineffective.
19. In Boddula Krishnaiah v. State Election Commission (1996)
and similar judgments, the courts have emphasised the
principle that “election matters should be resolved through
prescribed mechanisms” to preserve the sanctity and integrity
of the electoral process.
20. Article 243ZG (b) does not entirely eliminate the writ
jurisdiction under Article 226 of the Constitution. However,
courts have consistently observed that this jurisdiction must be
exercised with restraint in election matters and only in
exceptional circumstances.
21. These include: Violations of fundamental rights, situations
where the authority conducting the election lacks jurisdiction
entirely and cases involving manifestly illegal or arbitrary
actions that infringe upon basic constitutional values.
22. Therefore, the bar under Article 243 ZG (b) does not negate
the writ jurisdiction of High Courts under Article 226. Instead,
it establishes a strong presumption against its use in electoral
matters, especially during or before elections. This judicial
restraint aligns with constitutional principles and reinforces the
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democratic process by respecting the mechanisms specifically
designed for resolving electoral disputes.
23. On behalf of the appellant, it was contended that the matter of
encroachment has to be decided by a competent authority and
not by the Returning Officer. In the context of local body
elections in Uttarakhand, the Returning Officer (RO) is
responsible for overseeing the electoral process, which
includes scrutinising nomination papers submitted by
candidates. During this scrutiny, the RO verifies whether each
candidate meets the eligibility criteria as stipulated by the
relevant election laws and regulations.
24. While the RO does not have the authority to independently
declare an individual an “encroacher” on Nazul land, it is
empowered to reject a candidate’s nomination if it is
established through official records or legal determinations that
the candidate is ineligible due to such an encroachment. This
action is based on the premise that occupying government land
unlawfully may violate legal provisions, thereby disqualifying
the individual from contesting in the elections.
25. Therefore, if a candidate has been officially documented as an
encroacher on Nazul land, the RO can reject their nomination
based on this established ineligibility. However, the RO does
not possess the jurisdiction to declare someone as an
encroacher unilaterally; such determinations are typically
made by relevant land or municipal authorities prior to the
election process. In the present matter, there is no documented
fact that the Appellant is indeed an encroacher on Nazul land.
26. This court finds, therefore, that the Returning Officer
overstepped his authority by unilaterally declaring the
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petitioner an encroacher in the absence of any adjudication by
a competent authority. Such a declaration, made without the
due process of law, contravenes established legal principles.
As reiterated in Kuldeep Singh vs. State of Tamil Nadu (2004),
disqualifications cannot rest on unsubstantiated allegations or
administrative assertions unsupported by proper legal
adjudication. This overreach not only undermines the fairness
of the process but also violates the petitioner’s fundamental
right to a lawful and impartial determination.
27. The actions of the Returning Officer violated the principles of
natural justice and infringed upon the petitioner’s fundamental
rights guaranteed under Articles 14 and 21 of the Constitution.
By denying the petitioner a fair opportunity to present his case,
the Returning Officer failed to uphold the essential tenets of
fairness, equality, and due process. This denial compromised
the procedural integrity of the electoral process and the
petitioner’s constitutional rights to equality before the law and
protection of personal liberty.
28. The selective treatment of nominations demonstrated the
Returning Officer’s arbitrary and mala fide intentions,
contravening the principles of equality enshrined in Article 14
of the Constitution. By applying inconsistent standards to
similarly situated candidates, the Returning Officer exhibited
bias, violating the petitioner’s right to fairness and impartiality,
which are fundamental to maintaining trust in democratic
institutions.
29. Article 243 ZG, while imposing a bar on judicial interference
in electoral matters, cannot be invoked to shield arbitrary
actions, mala fide, or in violation of constitutional
principles. The sanctity of the electoral process relies on the
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bona fide and fair conduct of authorities entrusted with its
execution. Any deviation from these principles undermines the
integrity of the process and erodes public trust. Actions driven
by malice or arbitrariness fall outside the scope of protection
offered by Article 243ZG, as they contravene the foundational
values of fairness and justice that underpin democratic
governance. Judicial intervention in such cases is necessary to
uphold the Constitution and safeguard the democratic process.
30. In light of the extraordinary circumstances and the apparent
deprivation of the petitioner’s fundamental rights, this Court
finds it necessary to stay the order rejecting the petitioner’s
nomination. The petitioner’s nomination is reinstated, ensuring
his right to contest the election. Furthermore, any results
arising from the election shall remain subject to further judicial
orders, safeguarding the integrity of the judicial process and
ensuring fairness in the electoral outcome.
31. After a thorough examination of the records and arguments
presented, this Court holds that the appellant’s nomination is
reinstated, and his name shall appear on the ballot. However,
should the appellant secure the highest votes, the declaration of
the election results in his favour shall remain subject to further
judicial adjudication to ensure the fairness and integrity of the
process.
32. List it after vacations.
ASHISH NAITHANI, J.
16.01.2025
SPANO.08OF2025 (ASHISHNAITHANI, J)
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