Uttarakhand High Court
Seeta vs State Election Commissioner And … on 16 July, 2025
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI G. NARENDAR
AND
HON'BLE SRI JUSTICE ALOK MAHRA
16TH JULY, 2025
WRIT PETITION (MB) No. 532 OF 2025
Seeta .....Petitioner
Versus
State Election Commissioner and another. ...Respondents
Counsel for the petitioner. : Mr. Abhijay Negi, Ms. Snigdha Tiwari,
and Mr. Ayush Pokhriyal, learned
counsel.
Counsel for the respondent : Mr. Sanjay Bhatt, learned counsel.
ORDER :
Heard learned counsels for the petitioner, and
learned Standing Counsel for the respondent.
2. The calendar of events of the subject election is as
under:
Election Nomination Dates for Date for Date of Voting Counting
Cycle Details Scrutiny of withdrawal election Dates of votes
nomination of symbol and
papers Nomination allotment declaration
of results
1 2 3 4 5 6 7
First 02.07.2025 07.07.2025 10.07.2025 14.07.2025 24.07.2025 31.07.2025
Cycle to to and (from (04:00 AM (08:00 AM
05.07.2025 09.07.2025 11.07.2025 08:00 AM to 5:00 to end of
08:00 AM (from (08:00 AM till end of PM) work)
to 04:00 08:00 AM to 03:00 work)
PM) till end of Pm)
work)
Second -then- -then- -then- 18.07.2025 28.07.2025 -then-
Cycle (from (08:00 AM
08:00 AM to 05:00
till end of PM)
work)
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3. As there is ample time, we have taken up the writ
petition.
4. We have come across another shocking case of
sheer abuse of power, whereby, on the mere say of the
competing candidate that the ‘No Dues Certificate’ “seems” to
be a fake, the Returning Officer, during scrutiny, has rejected
the nomination of the petitioner. It is admitted that initially,
on the basis of the complaint the Returning Officer, raised an
objection that it is not issued by the Secretary of the Bank
and, hence, he would not be accepting the Certificate, though
neither any Rules, Regulations or instructions are placed
before the Court to demonstrate the same. It is also an
indisputable fact that upon receiving notice and upon coming
to know the opinion of the Returning Officer, the Petitioner,
has approached the Bank and the Bank has issued one more
Certificate stating that there is no loan granted to the
petitioner and hence, there are no amounts due from the
petitioner and the said Certificate has been issued by the
Secretary himself. Despite and after producing the said
Certificate, the nomination came to be rejected. As a result,
the objector remains the sole candidate.
5. Prima facie, it appears that the Returning Officer has
acted in an patently illegal manner, probably to influence the
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election of the other candidate. Despite the availability of thesaid Certificate and despite the production of a second
Certificate, even without an inquiry with the Co-operative
Bank, or any expert opinion, the Returning Officer has
blatantly and arbitrarily concluded that the Certificate is a fake
one. It is also further clarified by the learned counsel for the
petitioner that in fact, no order of rejection has been passed,
but merely the name of the petitioner has been placed in the
list of rejected candidates. To state that this is a clear case of
endangering democracy could be going little soft on the
Returning Officer. It appears that the Returning Officer has
apparently misused the authority vested in him to ensure the
election of the candidate.
6. In that prima facie view, we are of the opinion that
it is a fit case which requires to be investigated.
7. Be that as it may, it would be appropriate to afford
an opportunity to the Returning Officer and, thereafter for this
Court to give any further direction, but in the meanwhile to
prevent the apparent arbitrary action and illegality, it is just
and necessary that an interim order directing the Returning
Officer to allot the symbol to the petitioner and print the name
of the petitioner in the ballot paper is required to be issued.
8. A short while ago, we had also dealt with one more
classic case of gross abuse of power by the authority, wherein
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despite, the presence of a toilet, absence of which is adisqualification under sub-section (3) of Section 8, the
Returning Officer proceeded to contrive a reason by stating
that as it is 150 meters away, it does not comply with the
provisions of sub-section (3) of Section 8 and rejected the
nomination. The Court cannot turn a blind eye to these
apparent patent illegalities, which appear to be pre-meditated
and motivated and in utter disregard of the Law of the Land.
The observations of this Bench in paragraphs 10 to 15 of the
earlier writ petition (Writ Petition No. 527 of 2025) is squarely
applicable to the facts of this case also. The same reads as
under:
“10. The learned Standing Counsel for the
Commission would place reliance on the provisions
of Clause (b) of Article 243-O of the Constitution of
India. Clause (b) reads as under :
“(b) no election to any Panchayat 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.”
11. What is questioned in the present Writ Petition
is not the election of any candidate, but the per se
illegal rejection of the nomination of the petitioner,
for which there is no efficacious remedy. The relief
claimed is in furtherance of the elections and not in
detriment of the election. That apart, the law as
laid down by the Hon’ble Apex Court in Election
Commission of India (through Secretary) v.
Ashok Kumar and others; (2000) 8 SCC 216,
which stipulates the “dual test” principle, stipulating
the extent of interference by the Constitutional
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Courts (Para 34,32 & 29, 20), is a clear answer to
the above objection. A plain reading of Clause (b)
of Article 243-O of the Constitution of India makes it
apparent that the same is related to the questioning
of a Panchayat Election, in other words, where the
relief prayed, if granted would result in
postponement, putting off the elections or would
derail the election. The challenge being to the
rejection of the nomination of the petitioner, we are
of the, prima facie, view that the said bar does not
appear to operate in a case of instant nature.
12. It is further submitted by the learned counsel
for the Commission that there is a bar under the
provisions of Section 131H(1)(b) of the Uttarakhand
Panchayati Raj Act, 2016, which reads as under :
“131H. Application regarding election and their
revision – (1) ….
(a) ….
(b) that the result of the election has been
materially affected-
(i) by the acceptance or rejection of any nomination
in improper manner; or
(ii) by gross failure to comply with the provisions of
this Act or the rules framed there under.”
13. As noted supra, if it was a case of improper
rejection, this Court would have certainly applied
the above provision. Prima facie, the rejection
appears to be illegal. Material on record, more
particularly the inquiry ordered by the Returning
Officer himself, discloses the presence of a toilet.
Despite the same, the Returning Officer has
contrived to make out a case, which is not even the
case of the complainant.
14. In this regard we also place reliance on the
ruling of a Division Bench of the Karnataka High
Court, reported in ILR 1991 KAR 4421, wherein the
Division Bench has appreciated the distinction
between maintainability & entertainability of writ
petition u/A 226. Proceeding the Division Bench has
held that the relief of Election Petition is not an
“Efficacious Relief” as the candidate would have lost
the statutorily vested right to participate in what is
popularly known as “the dance of democracy”, and
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at most would only have the vicarious pleasure of
unseating the elected candidate. That apart, it
would also mean shear waste of public resources
including money, man-power, etc,. Reliance is
placed on paragraphs 11, 13, 14,16, 17 & 20.
15. Hence, there shall be a stay of the operation of
the order impugned in the Writ Petition. The
Returning Officer shall assign a symbol to the
petitioner, and print the name of the petitioner in
the ballot paper and permit the petitioner to
participate in the election process for electing the
Gram Pradhan for the Udvakhanda Gram
Panchayat.”
9. In that view, we are constrained to seek the
intervention of the State Election Commissioner with
immediate effect and to ensure that appropriate instructions
are issued to the Returning Officer to preempt any such
illegalities.
10. With regard to the objections of the Standing
Counsel to the jurisdiction of this Court to entertain such
petitions and to prevent the illegalities in the matter of
rejection of nomination, the same has been addressed by this
Court in the above connected petition.
11. As already held that if it was an improper rejection,
there would have been some substance in the objections
raised by the Standing Counsel. In the instant case, it is a
blatant illegality and an official act has been performed in
patently illegal manner.
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12. The maintainability of such petitions was considered
by a Division Bench of the High Court of Karnataka reported
in L. Ramakrishnappa vs. Presiding Officer reported in
ILR 1991 KAR 4421, and the Bench of the Karnataka High
Court has been pleased to hold that ‘intervention of the High
Court is sustainable in the event the violation is so blatant and
in order to prevent the abuse of power and waste of public
time and money’, and has further held that the alternative
remedy by way of elections petitions after the elections is not
an efficacious remedy. Paragraphs 11, 13, 14, 15 and 20 of
the judgment read as under:-
11. This position in law, is laid down by the
Supreme Court in HARI VISHNU KAMATH v. AHMED
ISHAQUE, . In the said case, the question that arose
before the Supreme Court was, as to whether the
High Court had the jurisdiction to entertain a Writ
Petition for the issue of a Writ of Certiorari against
the order of Election Tribunal constituted under
the Representation of People’s Act, 1951, as it stood
in 1955, deciding an election dispute. Placing
reliance on Article 329 of the Constitution, it was
contended before the Supreme Court that as an
election to the Parliament or State Legislature could
be challenged only by means of an Election Petition,
petition under Article 226 of the Constitution would
not lie before the High Court for the issue of a Writ
of Certiorari against the decision of the Election
Tribunal also. The Supreme Court negatived the
contention. In doing so, the Supreme Court pointed
out that the bar created under Article 329 of the
Constitution was against interfering in election
matters and the said Article did not curtail the
power of the High Court under Article 226 of the
Constitution to issue Writ of Certiorari to any7
Tribunal and the Election Tribunal was no exception.
The relevant portion of the Judgment reads:
“6. The first question that arises for decision in
this appeal is whether High Courts have
jurisdiction under Article 226 to issue Writs
against decisions of Election Tribunals. That
Article confers on High Courts power to issue
appropriate writs to any person or authority
within their territorial jurisdiction, in terms
absolute and unqualified, and Election Tribunals
functioning within the territorial jurisdiction of
the High Courts would fall within the sweep of
that power. If we are to recognise or admit any
limitation on this power, that must be founded
on some provision in the Constitution itself.”
(Underlining by us)
In the above paragraph, the Supreme Court has
emphatically laid down that any restriction on the
power of the High Court under Article 226 of the
Constitution, can be recognised only if it is
incorporated in any of the provisions of the
Constitution itself. In view of the above Decision of
the Constitution Bench of the Supreme Court, it is
clear that unless the jurisdiction of this Court
under Article 226 of the Constitution stands
curtailed by any other provision of the Constitution,
it cannot be said that a Petition under Article 226 of
the Constitution does not lie or this Court has no
jurisdiction to interfere in election matters.
13. A reading of both the observations together
make it clear that the Supreme Court had made a
distinction between the maintainability and
entertainability of Writ Petition in election matters.
The principle laid down by the Supreme Court is that
in respect of election matters, unless an
extraordinary case is made out in a given case, a
Petition under Article 226 of the Constitution should
not be entertained. This clearly means that a
Petition under Article 226 of the Constitution
challenging the legality of actions taken or orders
made in the course of an election to a local authority
or any other body on the ground of violation of law,
is maintainable but should not be entertained by the
High Court unless the violation of law made out is
such as would justify the interference under Article
226 of the Constitution immediately to prevent
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abuse of power and waste of public time and money
and the alternative remedy by way of Election
Petition after the elections is not an efficacious
remedy.
14. Another Decision of the Supreme Court, on
which reliance is placed is, in the case of S.T.
Muthuswami. That was a case in which the allotment
of symbol for an election to Panchayat was
challenged in a Writ Petition and the High Court had
interfered with it. The Supreme Court reversed the
Judgment of the High Court Strong reliance has
been placed on this Judgment to say that a Petition
under Article 226 of the Constitution is not
maintainable in matters relating to election to local
authority or any other body even if the election to
such body is governed by statutory provisions and
there has been flagrant violation of law. The
relevant portion of the Judgment reads:
“13. In the ultimate analysis, the Full Bench laid
down:
“12. There is no constitutional bar to the exercise of
Writ Jurisdiction in respect of elections to Local
Bodies such as. Municipalities. Panchayats and the
like. However, as it is desirable to resolve election
disputes speedily through the machinery of election
petitions, the Court in the exercise of its discretion
should always decline to invoke its Writ Jurisdiction
in an election dispute, if the alternative remedy of
an election petition is available. So, their Lordships
of the Supreme Court in Sangram Singh v. Election
Tribunal, Kotah stated:
“….though no legislature can impose limitations on
these constitutional powers, it is a sound exercise of
discretion to bear in mind the policy of the
legislature to have disputes about these special
rights decided as speedily as may be. Therefore,
Writ Petition should not be lightly entertained in this
class of cases.”
15. We are inclined to accept this view which lays
down a salutary principle.”
(Underlining by us) As can be seen from the above
paragraphs, the Supreme Court approved the Full
Bench Decision of the Madhya Pradesh High Court,
in which the Full Bench had held that in respect of
Municipal Elections, the petition under Article 226 of
the Constitution was maintainable but it should not
be entertained lightly. In Muthuswamy’s case, the
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allotment of symbols was challenged. It is a settled
principle in Election Law that in the case of any
violation of Rule regulating allotment of symbols an
election of candidate could be set aside if only it is
proved that the result of the election was materially
affected. Therefore, it cannot be said that in such a
case the illegality is such as would call for
interference under Article 226. To illustrate, in the
case of illegality in the allotment of symbols, it is
possible that a person who says that a symbol asked
for according to Rules, by him, was not given,
himself might get elected, in which event the
illegality does not adversely affect him at all.
Similarly, in case where the petitioner says that to a
contesting candidate a symbol which could not have
been allotted, was allotted, it is possible that such
candidate might be defeated in the election, in
which event the grievance does not survive. Even in
the case of defeat of such petitioner or election of
such contesting candidate, unless it is proved that
the result of the election was materially affected by
the non-allotment or allotment of symbol in violation
of the Rules, as the case may be, the election
cannot be set aside. Therefore, in all such cases the
High Court should decline to entertain Writ Petition,
is what the Supreme Court. has laid down. As far as
illegal rejection of nomination paper, which does not
involve any disputed question of fact, Division
Benches of this Court have consistently taken the
view that if the aggrieved party approaches this
Court in good time without delay, it is expedient to
interfere under Article 226, in order to give the
specific relief to the aggrieved candidate, that is, to
quash the order rejecting the nomination paper and
direct the Returning Officer to accept the nomination
and to proceed with the election and also to prevent
waste of public money and time and to avoid
inconvenience to the public institution concerned.
15. The ratio of these Decisions were followed even
during the period when Clause (3), inserted
into Article 226 by the 42nd Amendment, was in
existence, which took away the jurisdiction of this
Court under Clause (1), in cases where there was an
alternative statutory remedy. The case is that of
FAKIRAPPA v. DEPUTY COMMISSIONER, 1979(1)
KLJ 153. The said Writ Petition was filed challenging
the legality of rejection of the nomination at an
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election to Taluk Development Board constituted
under the Karnataka Village Panchayat and Local
Boards Act. An objection was raised to the effect
that this Court had no jurisdiction to entertain the
Petition as there was remedy by way of filing an
Election Petition under Section 106 of that Act, in
view of Clause (3) of Article 226 of the Constitution.
This was decided by one of us (Rama Jois, J). On an
elaborate consideration of the contention, the same
was negatived holding that the relief which can be
granted by this Court to a candidate; whose
nomination is illegally rejected, under Article 226,
could not be granted in an Election Petition and
therefore Clause (3) of Article 226 also did not
operate as a bar to the exercise of jurisdiction
under Article 226(1). The relevant portion of the
Judgment reads:
“4. I shall first take up W.P.5014/1978 in which the
petitioner is aggrieved by the rejection of his
nomination paper, Sri U.L Narayana Rao, learned
Counsel for the petitioner submitted that the
impugned order rejecting the nomination paper of
the petitioner is liable to be quashed in exercise of
the powers of this Court under Article 226(1)(b) of
the Constitution and consequential relief should be
granted. In support of this submission, he raised the
following contentions:
(1) The rejection of the nomination paper of the
petitioner is violative of Rule 8(3) and Rule 12(3) of
the Rules and therefore is illegal; and (2) The illegal
rejection of the nomination paper has resulted in
substantial injury to the petitioner.
As against the above contentions, Sri B.B.
Mandappa, learned High Court Government Pleader,
appearing for respondent-3, submitted as follows:
The petitioner has an alternative remedy against the
impugned order by way of presenting an election
petition under Section 106 of the Act and, therefore,
the Writ Petition under Article 226(1)(b) of the
Constitution is not maintainable in view of Clause
(3) of Article 226 and the Writ Petition is liable to be
rejected in limine.
XXX XXX XXX Article 226(1)(b) confers power on
the High Courts to issue appropriate Writ or order of
the redress of any injury of a substantial nature by
reason of the contravention of any other provision of
the Constitution or any provision of any enactment
11
or ordinance or any order, rule, regulation, bye-law
or other instruments made thereunder. The case of
the petitioner squarely falls under Article
226(1)(b) of the Constitution. Therefore, the
petitioner has a right to prevent the Writ Petition
praying for the quashing of the impugned order of
the Returning Officer rejecting his nomination paper
and also for the issue of a further direction directing
the Returning Officer to accept his nomination paper
and to proceed to take the poll. But the objection of
the respondents to the maintainability of the Writ
Petition is based on Clause (3) of Article
226. According to the said clause, no Writ Petition
for the redress of an injury in Sub-clauses (b) and
(c) of Clause (1) of Article 226 shall be entertained
if any other remedy for such redress is provided for
by or under any other law for the time being in
force. The contention of respondents 1 to 3 is that
the petitioner has an alternative remedy of
presenting an election petition after the election is
over as provided under Section 106 of the Act.
Learned Counsel for the petitioner, however,
submits that there is no alternative forum created
under the Act in which the petitioner can seek the
reliefs which he has sought for in this Writ Petition.
Elaborating this point, he submitted that in the Writ
Petition, the petitioner has prayed for quashing the
order of the Returning Officer rejecting his
nomination paper and also for further consequential
direction, namely, a direction to the Returning
Officer to accept his nomination paper and to
proceed to take the poll including the petitioner as a
candidate. He submitted that while this Court
under Article 226 can grant such a relief, the
election Court constituted under Section 106 of the
Act has no such power.
6. Article 226(1)(b) and (c) of the Constitution
provides an effective remedy to the citizens
aggrieved by the orders of the Government or any
authority, which results in substantial injury to
them, by the violation of any law or any provisions
having the force of law by seeking for the issue of
prerogative writs or orders of that nature. The
object of Clause (3) is to see if any other forum is
provided for, in any statutory provision through
which the petitioner can secure the same relief, as
can be granted under Article 226, then such an
12
aggrieved person should not be permitted to by-
pass that special forum and approach the High Court
directly under Article 226 of the Constitution. If the
law does not provide for such an alternative forum
wherein the petitioner can seek similar relief, the
jurisdictional bar created under Article 226(3) does
not operate and the citizen cannot be deprived of
the right to seek reliefs for his grievance
under Article 226(1)(b) and (c) of the Constitution.
It is a settled principle of interpretation that any
special provision which takes away or abridges the
jurisdiction of any Court which could be exercised
but for the ouster of jurisdiction by such special
provision should be construed strictly. Therefore, in
coming to the conclusion in a given case as to
whether a particular Court or tribunal, which has got
general jurisdiction, is barred by any specific
statutory provision which creates a special Court or
tribunal, the question required to be examined is
whether the particular relief is within the jurisdiction
of the special Court or tribunal so constituted. A
similar question was examined by the Supreme
Court in Co-operative Central Bank Ltd. v. Industrial
Tribunal, Hyderabad . In the said case the question
which came up for consideration before the
Supreme Court was whether Section 61 of the
Andhra Pradesh Co-operative Societies Act barred
the jurisdiction of the Industrial Tribunal to decide
the dispute relating to salary, scales and
adjustments between a co-operative society and its
employees. The Supreme Court held that having
regard to the power conferred on the Registrar
under Section 61 of the said Act, the Registrar could
not have granted the reliefs claimed by the parties
relating to salary, scales and adjustments, and,
therefore, the Industrial Tribunal had the jurisdiction
to decide the said issue. The relevant portion is
contained in para 7 at page 251, which reads as
follows:
“Applying these tests, we have no doubt at all that
the dispute covered by the first issue referred to the
Industrial Tribunal in the present cases could not
possibly be referred for decision to the Registrar
under Section 61 of the Act. The dispute related to
alteration of a number of conditions of service of the
workmen which relief could only be granted by an
Industrial Tribunal dealing with an industrial dispute.
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The Registrar, it is clear from the provisions of the
Act, could not possibly have granted the reliefs
claimed under this issue because of the limitations
placed on his power in the Act itself.”
Therefore, in coming to the conclusion, whether this
Court has jurisdiction or not to entertain the Writ
Petition, the important aspect for consideration is to
see as to what is the relief sought for by the
petitioner, and whether the election Court or
tribunal constituted under the Act has the power to
grant the same or substantially the same relief. If
the answer is ‘yes’, then this Court has no
jurisdiction to entertain this Writ Petition. Coming to
the present case, the Returning Officer rejecting the
nomination paper of the petitioner and for issue of a
direction to the Returning Officer to accept the
nomination paper of the petitioner and to take the
poll including the petitioner as one of the candidates
along with other candidates whose nomination
papers have already been accepted. It is not
disputed that this Court has the power to give such
reliefs under Article 226(1)(b) of the Constitution.
This takes me to the question as to whether the
election tribunal constituted under the Act has the
power to give this relief if an election petition to the
petitioner which could be presented by him after the
election is over. The Section which provides for
presenting of an election petition in “respect of
elections to a Taluk Development Board is Section
106 of the Act. The relevant portion of the Section
reads as follows:
“106. Determination of the validity of Elections: (1)
At any time within fifteen days after the declaration
of the result of an election, any candidate who stood
for election or any person qualified to vote at that
election, may apply, together with a deposit of one
hundred rupees as security for costs, to the Munsiff
having jurisdiction in the Taluk concerned for the
determination of the validity of the election.
(2) The Munsiff shall after such enquiry as he deems
necessary, pass an order confirming or amending
the declared result of the election or setting aside
the election. For the purposes of the said enquiry,
the Munsiff may exercise any of the powers of a
Civil Court. He may also awards costs in such
manner as he may deem fit and such costs shall be
recoverable as if they had been awarded in a suit14
under the Code of Civil Procedure 1908, (Central Act
V of 1908). If he sets aside an election, he shall
forthwith communicate the fact to the Deputy
Commissioner who shall take the necessary steps
for holding a fresh election.
(3) Subject to the provisions of Sub-section (2), (A)
if the Munsiff is of opinion
(a) (b)……
(c) that any nomination has been improperly
rejected; or,
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected.
(i) by the improper acceptance of any nomination
or,
(ii)(iii)(iv)…..
the Munsiff shall declare the election of all or any of
the returned candidates to be void and the
petitioner or any other candidate to have been duly
elected.”
From the wordings of the above provision, it is plain
and it is also not disputed by the learned Counsel
for respondents 1 to 3 that the only relief that can
be given by the election tribunal constituted
under Section 106 of the Act, in the event of coming
to the conclusion that any nomination paper has
been improperly rejected, is to set aside the election
of all the returned candidates in respect of the
concerned constituency and communicate the said
decision to the Deputy Commissioner, who is
required to take necessary steps for holding a fresh
election. Therefore, the result of the success in an
election petition presented by a candidate, whose
nomination paper had been illegally rejected, is the
setting aside of the election and the holding of a
fresh election. A fresh calendar of events has to be
issued. Fresh nominations have to be called for and
a fresh poll has to be taken. Under Section 106 of
the Act, even after coming to the conclusion that the
nomination paper of a candidate was illegally
rejected, the election Court has no power to direct
the Returning Officer to accept the nomination paper
which was illegally rejected and to take a fresh poll
only with the candidates who were already in the
field. This position is also not controverted on behalf
of respondents 1 to 3. Therefore, it is clear
that Section 106 of the Act gives no remedy to the
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petitioner to have a fresh poll on the basis of the
nomination paper which is found to be illegally
rejected along with the other candidates who were
contesting at the election which is set aside. The
right to contest on the basis of the nomination of
which the candidate was deprived by the illegal
rejection by the Returning Officer is lost for ever.
Holding of a fresh election by the issue of a fresh
calendar of events is not the same thing as the
restoration of the right which the petitioner is
seeking in this Writ Petition by praying for the
quashing of the impugned order of the Returning
Officer and for a further direction to the Returning
Officer to accept the petitioner’s nomination and to
take the poll. If the statute had provided a pre-
election remedy to challenge the illegal rejection of
a nomination paper before any prescribed authority
on whom the power is conferred to set aside an
order illegally rejecting the nomination paper to give
direction to the Returning Officer to accept the
nomination paper and proceed to take the poll, it
would have been the same as could be granted in a
Writ Petition. Even if the pre-election remedy was
not considered expedient, if at least the statute had
conferred the power on the election Court that in
cases where it comes to the conclusion that any
nomination paper was illegally rejected, not only to
pass an order setting aside an election but also to
direct the Returning Officer to accept the very
nomination paper which was rejected and to hold a
fresh poll along with only the other candidates, who
were already in the field, such a remedy would in
substance be the same as could be granted
under Article 226 of the Constitution, though
postponed to a post-election period. In both cases,
such a provision would have attracted the
jurisdictional bar created by Clause (3) of Article
226 of the Constitution. In this behalf it is necessary
to point out the words ‘such remedy’ used in Article
226(3) of the Constitution. It is only where the
Court comes to the conclusion that there is an
alternative forum in which the petitioner can seek
such remedy which he has sought for in the Writ
Petition, the jurisdiction of the High Court stands
excluded by operation of Clause (3) of Article 226 of
the Constitution. In the present case, as already
pointed out, the election Court is not invested with
16
the power to grant the relief which the petitioner
has sought for and which can be granted in the Writ
Petition.
7. Respondents 1 to 3, however, relied on some of
the Decisions in support of their contention. They
relied on the Decision of the Supreme Court
in Nanhoo Mal v. Hira Mal . The said appeal arose
out of a Decision rendered by the Allahabad High
Court in a Writ Petition under Article 226 of the
Constitution, as it stood before its amendment by
the Constitution (Forty-second Amendment) Act,
1976. In that Writ Petition the calendar of events
issued in connection with the election to the office of
the President of a Municipal Board was challenged.
As no stay order was granted by the High Court, the
election took place and the appellant before the
Supreme Court was declared elected. The election
was set aside in the Writ Petition. The Supreme
Court allowed the appeal. Referring to an alternative
remedy provided under the Act and Rules for
challenging the election of the President, the
Supreme Court observed that the High Court was
wrong in setting aside the election and should have
allowed the parties to resort to the remedy by way
of an election petition. The relevant observations on
which respondents 1 to 3 relied are contained in
para 5 of the Judgment which reads as follows:
“it follows that the right to vote or stand for election
to the office of the President of the Municipal Board
is a creature of the statute, that is, the U.P.
Municipalities Act and it must be subject to the
limitations imposed by it. Therefore, the election to
the office of the President could be challenged only
according to the procedure prescribed by that Act
and that is by means of an election petition
presented in accordance with the provisions of the
Act and no other way. The Act provides only for one
remedy, that remedy being an election petition to
be presented after the election is over and there is
no remedy provided at any intermediate stage.
These conclusions follow from the decision of this
Court in Ponnuswami’s case (supra) in its application
to the facts of this case. But the conclusions above
stated were arrived at without taking the provisions
of Article 329 into account. The provisions of Article
329 are relevant only to the extent that even the
remedy under Article 226 of the Constitution is17
barred as a result of the provisions, But once the
legal effect above set forth of the provision of law
which we are concerned with is taken into account,
there is no room for the High Courts to interfere in
exercise of their powers under Article 226 of the
Constitution. Whether there can be any
extraordinary circumstances in which the High
Courts could exercise their power under Article
226 in relation to elections, it is not now necessary
to consider. All the considerations applied in coming
to the conclusion that elections to the legislatures
should not be delayed or protracted by the
interference of Courts at any intermediate stage
before the results of the election are over apply with
equal force to elections to local bodies.”
The earlier part of the observations of the Supreme
Court no doubt support the contention of
respondents 1 to 3 to the effect that the High Courts
should not interfere with or set aside, the elections
in exercise of their power under Article 226 of the
Constitution. But on a careful reading of the above
para, it is clear that the said observations were
made in a case where the High Court had set aside
the election after it was held without directing the
parties to resort to an election petition provided
under the statute. As regards the bar of the High
Court under Article 226 of the Constitution to
entertain a Writ Petition in extraordinary
circumstances, in the same para the Supreme Court
has expressly left the said question open. The
penultimate sentence in para 5 aforesaid read as
follows:
“Whether there can be any extraordinary
circumstances in which the High Courts could
exercise their power under Article 226 in relation to
elections it is not now necessary to consider.”
This Court has consistently taken the view that once
the election is over, the only proper and effective
remedy for challenging the election is by means of
an election petition. As regards cases of improper
acceptance of nomination papers also this Court has
consistently refused to entertain Writ Petitions on
the ground that it causes no injury to a petitioner
who complains of such illegal acceptance of
nomination papers and also on the ground the
remedy provided under the Act is an alternative and
efficacious remedy. Further, this Court has always
18
treated cases of rejection of nomination papers by
patently illegal orders as cases of extraordinary
nature which results in irreparable injury to a person
whose nomination paper has been rejected.
8. After considering the Judgment of the Supreme
Court in the case of N.P. Ponnuswami v. The
Returning Officer , which is referred to in the
aforesaid Supreme Court Judgment, this Court in
Muddamallappa v. Election Officer and Revenue
Inspector took the view that cases of illegal
rejection of nomination papers call for interference
in exercise of the extraordinary jurisdiction of this
Court under Article 226 of the Constitution. The
relevant portion is at page 325 which reads as
follows:
“The principle that there should be no
interruption of an election while it is in progress
and that no attack should be made on the
validity of any proceeding relating to such
election until its completion is, as I understand
it, a sound principle of election law which,
ordinarily justifies the refusal of the exercise of
such jurisdiction. But to say that, is not the
same thing as saying that even in a case where
the impugned order of an Election Officer is so
plainly absurd or where the order made by him
cannot but be regarded as one which it was
impossible for him to make under the statutory
provisions under which he was functioning, we
should, nevertheless, even in such a case,
decline to exercise our jurisdiction. In cases
falling within that exceptional category, it is
clear that it would be our plain duty to correct
at the earliest stage such egregious errors,
which if the election is allowed to continue
unimpeded, would inevitably result in wasteful
expenditure of public time and money.”
On the same basis, this Court has always
entertained Writ Petitions under Article 226 of the
Constitution and interfered with the illegal rejection
of nomination papers in connection with the
elections to the local bodies. The other decisions
are Lakshminarayana Rao v. Deputy
Commissioner (1964-2 Mys.L.J. 438), D.R. Linge
Gowda v. State of Mysore (1969-1 Mys.L.J. 94),
Ramaiah v. State of Mysore (17 LR 528), Rajanna v.
Election Officer. Doddaballapur (17 LR 598), and P.
19
Nagaraju v. Tahsildar and Returning Officer (11 LR
461). In view of the series of Division Bench
Decisions of this Court in which it is held that cases
of rejection of nomination papers in plain
contravention of the statutory provisions are cases
which fall under the category of extraordinary cases
which falls for interference under Article 226 of the
Constitution and this question was specifically left
open by the Supreme Court in Namhoomal‘s case,
on which respondents 1 to 3 relied; therefore I do
not agree with the submission made on behalf of
respondents 1 to 3 that in view of the aforesaid
Supreme Court Judgment the petition cannot be
entertained,”
(Underlining by us)
20. To sum up, our conclusions on the two questions
of law arising for consideration, are as follows:
(1) Under Article 226 of the Constitution, this Court
has the jurisdiction to interfere with the illegality
committed in the course of holding election to the
offices of any authority/body which is regulated by
statutory provisions (other than election to the
Parliament and State Legislature), notwithstanding
the existence of an alternative remedy, by way of
filing Election Petition, if violation of law is
established. In other words, such a Writ Petition is
maintainable.
(2) However, the jurisdiction of this Court
under Article 226 being an extraordinary one, this
Court as a general rule, will not and should not
entertain a Petition in matters connected with such
elections even if any illegality is shown to have been
committed, if the law provides an effective
alternative remedy and the illegality is such in
respect of which adequate relief could be granted in
an Election Petition. In other words, this Court will
not and should not entertain Writ Petition lightly, as
held by the Supreme Court in the case of
Muthuswamy.
(3) In exceptional cases in which ‘the illegality
committed is patent and does not depend upon the
investigation of disputed questions of fact and
interference is called for to prevent, abuse of power
and the taking of advantage of such illegality by its
beneficiaries for some time, waste of public time
and money and to avoid inconvenience to the public20
institution concerned, this Court has not only the
power but also under a duty to interfere provided
the party aggrieved approaches this Court forthwith
and in good time.”
13. Accordingly there shall be a stay of the “Cancelled-
List” in so far as it relates to the Petitioner and further there
shall be an interim direction, directing the Returning Officer to
allot a symbol to the petitioner and print the name of the
petitioner in the ballot papers and permit him to participate in
the election process in respect of Ward No. 5 Bhutsi
Panchayat.
_______________
G. NARENDAR, C.J.
_____________
ALOK MAHRA, J.
Dt: 16th July, 2025
Rathour
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