THE HIGH COURT OF MEGHALAYA WP(C)No.272/201[SECTION] Shri. [ENTITY], S/o (L) Dian Pale, Pator/Chairman Raid Nongjngi, Village-Ionglwit, [ENTITY], West Jaintia Hills District, Meghalaya. Petitioner -Vs- 1. The [ENTITY] represented by the Secretary, District Council Affairs Department, Govt. of Meghalaya, Shillong. 2. The [ENTITY], represented by its Secretary to the Executive Committee, [ENTITY], Meghalaya. 3. Deputy Secretary, Executive Committee & Returning Officer, [ENTITY] Election 201[SECTION], Jaintia Hills Autonomous District Council, [ENTITY]. [SECTION]. The [ENTITY]. [SECTION]. Shri. [ENTITY], S/o Meshak Shadap, R/o Wahiajer, House No.[SECTION][SECTION], West Jaintia Hills District, Meghalaya, Pin-7931[SECTION]0. 6. Shri. [ENTITY], S/o (L) P Niang, Nongjngi Khliehshnong, Raid Nongjngi, Nongjngi [ENTITY], West Jaintia Hills District, Meghalaya. Respondents
BEFORE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioner : Mr. [ENTITY], Adv For the Respondents : Mr. [ENTITY], Sr. Adv Dr. [ENTITY], Sr. Adv Mr. [ENTITY], Adv for respdt. No.[SECTION] Mr. [ENTITY], Sr. Adv Mr. [ENTITY], Adv for respdt. No.6 None appears for the respdt.No.1 None appears for the respdt. No.[SECTION] Date of Hearing : 2[SECTION].11.201[SECTION] Date of Judgment & Order : 2[SECTION].11.201[SECTION] JUDGMENT AND ORDER(ORAL) Heard Mr. [ENTITY], learned counsel for the petitioner, Mr. [ENTITY], learned senior counsel assisted by Mr. [ENTITY], learned counsel appearing for the respondents No.2 & 3, Dr. [ENTITY], learned senior counsel assisted by Mr. [ENTITY], learned counsel appearing for the respondent No.[SECTION] and Mr. [ENTITY], learned senior counsel assisted by Mr. [ENTITY], learned counsel appearing for the respondent No.6. None appears for the respondents No.1 and [SECTION].
2. By this writ petition, the petitioner is assailing the list of the candidates for the election of [ENTITY], [ENTITY] declared by the [ENTITY] (for short 'JHADC'), [ENTITY]. It is admitted case of both the parties that the Deputy Secretary Executive Committee & Returning Officer, [ENTITY] Election, 201[SECTION], JHADC, [ENTITY] had issued Notification of the Election dated 09.06.201[SECTION], a copy of it is available at Annexure-3 to the writ petition. English translation of the said Election Notification dated 09.06.201[SECTION] is also available at page 16 to the writ petition. Learned counsel appearing for the parties are not disputing the translated copy of the said Election Notification dated 09.06.201[SECTION]. For easy reference, the said Notification dated 09.06.201[SECTION] is quoted hereunder:-
"TYPED COPY OFFICE OF THE JAINTIA HILLS AUTONOMOUS DISTRICT COUNCIL JOWAI.
N O T I C E DATED JOWAI THE 9TH JUNE, 201[SECTION] No.JHADC/POL/9/201[SECTION]/6:- By this Public Notice the Executive Committee, JHADC, [ENTITY] have decided to conduct election of [ENTITY] at the [ENTITY]. According to the dated Mention Below:-
16.06.201[SECTION]:- Publication of the Notification of the draft electoral roll at the office of the District Council and at the office of the Secretary of [ENTITY].
19.06.201[SECTION] to 2[SECTION].06.201[SECTION]} To receive the application form for enrollment of claim correction of name etc. of the voter's list an application form will be sold at Rs.[SECTION]/-
(five rupees) only at the office of the JHADC.
0[SECTION].07.201[SECTION]:- Publication of the final electoral roll and the selling at the rate of Rs.1[SECTION]0/- (Rupees one hundred and fifty) only.
21.07.201[SECTION] to 22.07.201[SECTION]} To receive the nomination paper of the candidate ([ENTITY]). The Nomination form will be sold at the office at the rate of Rs.[SECTION]0/- only.
23.07.201[SECTION]: Verification of the nomination papers withdrawal of name and distribution of symbols will be started from 11:00 AM.
19.08.201[SECTION]:- Date of voting will be started from 7:00 AM to [SECTION]:00 PM.
Deputy Secretary Executive Committee & Returning Officer, [ENTITY] Election, 201[SECTION], Jaintia Hills Autonomous District Council, [ENTITY].
Memo No.JHADC/POL/9/201[SECTION]/6-A, Dated [ENTITY], the 9th June, 201[SECTION] Copy to:-
1. [ENTITY].
2. [ENTITY].
3. [ENTITY].
[SECTION]. All the Department of JHADC, [ENTITY].
[SECTION]. Secretary/Chairman, [ENTITY].
6. All the Headman in the [ENTITY].
7. All the MDC, JHADC, [ENTITY].
8. Local MLA.
Deputy Secretary Executive Committee & Returning Officer, [ENTITY] Election, 201[SECTION], Jaintia Hills Autonomous District Council, [ENTITY]."
3. It is well settled that the election process started from the time of Notification of the election and ends on the declaration of the result. Any process between the time of Notification of the election and declaration of the result is an election process. The election process is not to be stopped at the middle, and the election process should be allowed to be completed in normal process and if anybody is aggrieved by the process of the election or/election, there is a remedy. [SECTION] of the [ACT] barred to interference by Courts in electoral matters. It would be more profitable to reproduce [SECTION] of the [ACT] as follows:-
"329. Bar to interference by Court in electoral matters - [Notwithstanding anything in this [ACT]]
(a) the validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies, made or purporting to be made under [SECTION] or [SECTION], 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."
[SECTION]. The [ACT] Bench of the Apex Court in celebrated case of [ENTITY] v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., & Ors: AIR (39) 19[SECTION]2 SC 6[SECTION] clearly defined the word "election" in the context of [SECTION] of the [ACT] and held that the law does not contemplate two attacks on matters connected with the election, one under [SECTION] of the [ACT] and another election petition under the [ACT], 19[SECTION]1. Paras 7, 9, 11 & 12 of the AIR in [ENTITY]'s case (Supra) read as follows:-
"7. These arguments appear at first sight to be quite impressive, but in my opinion there are weightier and basically more important arguments in support of the view taken by the High Court. As we have seen, the most important question for determination is the meaning to be given to the word "election"
in [SECTION]. That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected. In Srinivasalu v. Kuppuswami: AIR(1[SECTION]) 1928 Mad. 2[SECTION]3 at p.2[SECTION][SECTION] the learned Judges of the Madras High Court after examining the question, expressed the opinion that the term "election" may be taken to embrace the whole procedure whereby an "elected member" is returned, whether or not it be found necessary to take a poll. With this view, my brother, [ENTITY] J, expressed his agreement in Sat Narain v. Hanuman Prashad: AIR (33) 19[SECTION]6 Lah. 8[SECTION]; and I also find myself in agreement with it. It seems to me that the word "election" has been used in [SECTION] of the [ACT] in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression "conduct of elections" in [SECTION] specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in [SECTION] including [SECTION]. That the word "election" bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury's Laws of England in the following passage under the heading "Commencement of the Election":-
"Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is "reasonably imminent". Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when "the conduct and management of"
an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case."
The discussion in this passage makes it clear that the word election" can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.
9. The question now arises whether the law of elections in this country contemplates 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 [SECTION] of the [ACT] (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of [SECTION] of the [ACT] and the [ACT], which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. [SECTION] was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like [SECTION] and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the [ACT] could not have contemplated, one of them being that conflicting views may be ex- pressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.
11. The [ACT], 19[SECTION]1, which was passed by Parliament under [SECTION] of the [ACT], makes detailed provisions in regard to all matters and all stages connected with elections to the various legislatures in this country. That Act is divided into II parts, and it is interesting to see the wide variety of subjects they deal with. [SECTION] deals with "the qualifications and disqualifications for membership", [SECTION] deals with the notification of General Elections, [SECTION] provides for the administrative machinery for the conduct of elections, and [SECTION] makes provisions for the actual conduct of elections and deals with such matters as presentation of nomination papers requirements of a valid nomination, scrutiny of nominations, etc., and procedure for polling and counting of votes. [SECTION] deals with disputes regarding elections and provides for the manner of presentation of election petitions, the constitution of election tribunals and the trial of election petitions. [SECTION] outlines the various corrupt and illegal practices which may affect the elections, and electoral offences. Obviously, the Act is a self contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the rules made thereunder. The provisions of the Act which are material to the present discussion are [SECTION], [SECTION], [SECTION] and [SECTION], and the provisions of [SECTION] dealing with the form of election petitions, their contents and the reliefs which may be sought in them. [SECTION], which is drafted in almost the same language as [SECTION], provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Part". [SECTION], as we have already seen, provides for the grounds on which an election may be called in question, one of which is the improper rejection of a nomination paper. [SECTION] says that "every order of the Tribunal made under this Act shall be final and conclusive". [SECTION] provides that "no civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under this Act in connection with an election." These are the main provisions regarding election matters being judicially dealt with, and it should be noted that there is no provision anywhere to the effect that anything connected with elections can be questioned at an intermediate stage.
12. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for en- forcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by [ENTITY] J. in Wolverhampton New Water Works Co. v. Hawkesford:
(18[SECTION]9) 6 C.B. (N.S.) 336, at p. 3[SECTION]6 in the following passage:-
"There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Limited:
(1919) A.C. 368 and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co., 193[SECTION] A.C. [SECTION]32 and Secretary of State v. Mask & Co., [SECTION][SECTION] Cal. W.N. 709; and it has also been held to be equally applicable to enforcement of rights (see Hurdutrai v. Off.
Assignee of Calcutta, [SECTION]2 Cal. W.N. 3[SECTION]3, at 3[SECTION]9. That being so, I think it will be a fair inference from the provisions of the [ACT] to state that the Act provides for only 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."
[SECTION]. The Apex Court in [ENTITY] v. Charanjit Singh & Ors:
(200[SECTION]) 8 SCC 383 held that in an election matters, the High Court, even though, exercising a plenary jurisdiction under [SECTION] of the [ACT] should not exercise the power under jurisdiction under [SECTION] of the [ACT] in a case where there is an alternative remedy of election petition under the statue. Paras 7, 1[SECTION] & 1[SECTION] of the SCC in [ENTITY]'s case (Supra) read as follows:-
"7. A writ petition was filed by the respondents in the High Court of Punjab and Haryana alleging inter alia therein that the Returning Officer did not have the power to fix a date of the adjourned meeting to elect the Chairman of the Panchayat Samiti and only the State Election Commission is empowered therefor. Accepting the contention of the respondents, the High Court set aside the election of the petitioner as Chairman of the Panchayat Samiti. Aggrieved by the order of the High Court, the Appellant is before us.
1[SECTION]. It may be true that the respondent herein questioned the jurisdiction of the Deputy Commissioner and/or the Returning Officer in fixing a date for election but in his writ petition he had prayed inter alia for the following:
"(a) Issue a writ, order or direction quashing the entire process, manner and method adopted by respondent 3 in holding the election and for quashing the result declared by respondent 3 in declaring respondent [SECTION] elected as Chairman of the Block Samiti to be illegal and bad.
(b) Issue a writ, order or direction, quashing the action of respondent 3 in rejecting the valid vote cast in favour of the petitioner, the same being actuated with malice and motive and otherwise being arbitrary and illegal.
(c) Issue a writ, order or direction declaring the petitioner elected as Chairman of the Block Samiti on the basis of votes cast in his favour if necessary by calling for the records of the election and ballot papers and after examining the same.
(d) Issue a writ, order or direction commanding the respondents to restart the election process from the stage respondent 3 illegally adjourned and reassemble the meeting or, alternatively, to direct the respondent to hold a fresh election by following the process of law and the procedures and rules prescribed in the Act and the Rules.
(e) Issue a writ, order or direction quashing the order passed by DC on the representation filed by the petitioner, the same being illegal and in violation of the statutory provision.
(f) Dispense with service of advance notice on the respondents."
1[SECTION]. Prayers (b) and (c) aforementioned, evidently, could not have been granted in favour of the petitioner by the High Court in exercise of its jurisdiction under [SECTION] of the [ACT]. It is true that the High Court exercises a plenary jurisdiction under [SECTION] of the [ACT]. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious alternative remedy is available therefor. (See Hindustan Petroleum Corpn. Ltd.: (200[SECTION]) 8 SCC 2[SECTION]2: (200[SECTION]) 7 Scale
290)."
6. It is well settled law that the [ACT]al authority cannot do indirectly what is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge.
That would be clearly a fraud on the [ACT]al provisions. (Ref:- Dr. D.C. Wadhwa & Ors vs. State of Bihar & Ors: AIR 1987 SC [SECTION]79.)
7. On bare perusal of [SECTION] of the [ACT], it is crystal clear that the Courts are barred from interfering with the election process. Democratic process for election of the office of [ENTITY] of [ENTITY] is also not to be interfered with by the Court, save and except, in the manner provided under the statute. The election to the office of [ENTITY] of [ENTITY] is conducted under the provisions called "The United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 19[SECTION]9 (for short 'the said Act of 19[SECTION]9'). Mr. [ENTITY], learned counsel for the petitioner by referring to [SECTION] & [SECTION] of the said Act of 19[SECTION]9 strenuously contended that all the elections process for [ENTITY] should be in strict compliance with the procedures prescribed under the said Sections i.e. [SECTION] & [SECTION] of the said Act of 19[SECTION]9. Mr. [ENTITY], learned counsel for the petitioner further contended that the fundamental right of the petitioner guaranteed under the [ACT] is violated because of conducting the election of [ENTITY] of [ENTITY] in clear violation of the procedures prescribed under [SECTION] & [SECTION] of the said Act of 19[SECTION]9. [SECTION] & [SECTION] of the said Act of 19[SECTION]9 are quoted hereunder:-
"3. Elections and Appointment of Chief's and Headmen:-
Subject to the provision of this Act and the Rules made thereunder all elections and appointments of Chiefs or Headmen shall be in accordance with the existing customs prevailing in the Elaka concerned.
[SECTION]. Confirmation of Chief:- All appointments of Chiefs shall be subject to the approval of the District Council which may confirm such appointments under terms and conditions which it may by Rules from time to time adopt. Such terms and conditions shall, among others provide for -
(a) the duration of their office.
(b) their remuneration.
(c) Their relationship with the District Council and/or with the Elaka
(d) The manner in which the administration of the Elaka will be carried out by them;
(e) The manner in which the fund of the Elaka is to be managed by them;
(f) Their code of conduct.
Provided that pending the adoption of such terms and conditions the existing terms and conditions under which the existing Chiefs were appointed shall continue to be in force.
Provided further that the terms and conditions that may be adopted by the District Council under this Section shall immediately apply to all the existing Chiefs."
8. To the contra, senior counsel Mr. [ENTITY], learned senior counsel appearing for the respondents No.2 & 3, Dr. [ENTITY], learned senior counsel appearing for the respondent No.[SECTION] and Mr. [ENTITY], learned senior counsel appearing for the respondents 6 contended that there is a remedy provided under [SECTION] of the said Act of 19[SECTION]9, if the petitioner disputed the process of the said election, by filing an election petition. [SECTION] of the said Act of 19[SECTION]9 also reads as follows:-
"[SECTION]. Dispute regarding election of Chiefs:- If any dispute arises regarding any matter relating to, or connected with, the election of Chief, the dispute shall within 30 days after the publication of the result of the election be referred by the party or parties concerned to the Executive Committee for decision. An appeal against the decision of the Executive Committee shall lie to a tribunal constituted for the purpose by the District Council and the decision of the tribunal shall be final. Any appeal before the tribunal shall be filed within 30 days after the order of the Executive Committee is communicated to the party or parties concerned."
9. It is nobody's dispute that pursuant to the said Election Notification dated 09.06.201[SECTION], the election process had already been started and nomination of candidates had already been finalized and only casting of votes is yet to be held. In such circumstances, this Court is of the considered view that the election process had already been started and the Court shall not interfere with the election process as provided under [SECTION] of the [ACT]. However, any person is not to be left without remedy.
But in the present case, there is a remedy for the petitioner as provided under [SECTION] of the said Act of 19[SECTION]9, which had been quoted above in extenso. On conjoint reading of [SECTION], [SECTION] & [SECTION] of the said Act of 19[SECTION]9 and [SECTION] of the [ACT], this Court is of the considered view that the petitioner has the remedy in the form of election petition as provided under [SECTION] of the said Act of 19[SECTION]9. Learned senior counsel appearing for the respondents seriously disputed the questions of fact raised by the petitioner in the present writ petition. However, these disputed questions of fact are not deciding in the present writ petition.
10. In the above factual backdrop, this writ petition is disposed of by directing the petitioner to seek appropriate remedy as provided under [SECTION] of the said Act of 19[SECTION]9 by way of filing an election petition. Mr. [ENTITY], learned counsel for the petitioner however, contended that remedy is only after the election. When, a remedy is provided under the Act or statute, that remedy is to be pursued.
11. With the above observations and directions, this writ petition is closed.
12. Interim order dated 18.08.201[SECTION] also stands vacated.
JUDGE Lam