1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Ghisa Ram Saini Vs. The State of Rajasthan & Ors. (S.B. Civil Misc. Application No.4701/2010) In (S.B. Civil Writ Petition No.765/2010) Date of Order :- 28th January, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Sunil Kumar Singodiya, for the petitioner. Mr.S.N. Kumawat, AAG for the State. Mr.R.B. Mathur, for respondent No.5. An application has been filed under Section 226(3) of the Constitution of India by the respondent No.5, the Chief Election Officer & Secretary. Mr. R.B. Mathur, the learned counsel for the respondent No.5, has contended that according to Article 243-O of the Constitution of India, no election to any Panchayat shall be called in question except by an election petition presented before the appropriate authority. Similarly, according to Section 117 of the Rajasthan Panchayati Raj Act, 1994 ('the Act', for short), no election to Panchayati Raj Institution shall be called in question except by an election petition presented before the appropriate authority. Moreover, under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 ('the Election Rules', for short), if a person is aggrieved by the rejection of his nomination paper on the ground that they were rejected improperly, the only remedy, that he has, is to present an 2 election petition. These particular provisions of law try to prevent the needless meddling of the Court in the election process, as the election process is an arduous process and faces grave logistical problems. In order to ensure the smooth running of the election process, these particular provisions of the Constitution of India, the Panchayati Raj Act and the Election Rules have been created. Lastly, according to the learned counsel, the present case dealt with the alleged rejection of the nomination paper. Thus, the case is squarely covered by Rule 80(c) of the Election Rules. Hence, the petitioner has an alternate remedy of filing an election petition. Thus, the writ jurisdiction can not be invoked by him. The learned counsel has contended that the passing of the said order dated 20th January, 2010, is, thus, clearly in violation of the bar contained in Constitution of India, Panchayati Raj Act and the Election Rules thereunder. In order to buttress this contention, the learned counsel has relied upon the case of S.T. Muthusami Vs. K. Natarajan & Ors. [AIR 1988 SC 616] and on the case of Sundar Lal and Anr. Vs. State of Rajasthan and Ors. [S.B. Civil Writ Petition No.2424/2009, decided on 30th April, 2009]. Mr. Sunil Kumar Singodiya, the learned counsel for the petitioner, has contended that the bar contained under Article 243-O of the Constitution of India does not relate to the writ jurisdiction of this Court, which has been bestowed on this Court under Article 226 of the Constitution of India. Secondly, Rule 80 of the Election Rules comes into an operation only after the election results have been declared. Thus, the bar contained in Rule 80 of the Election Rules does not come into operation while the election process is continuing. 3 Similarly, Section 117 of the Act does not and cannot bar the power of judicial review contained in Article 226 of the constitution of India. In order to buttress this contention, the learned counsel has relied upon the case of Ratiram Vs. Devi Charan & Anr. [S.B. Civil Writ Petition No.7835/2006, decided on 18.01.2010]. Heard the learned counsel for the parties and perused the case law cited at the bar. The election, the heart of democracy, is a long drawn out process that commences with the declaration of election by the Government and ends with the declaration of the results by the Election Commissioner. In a country like India, which is the largest democracy in the world, the Election Commissioner has to undertake many steps before the election comes to a grinding hault with the declaration of the results. In order to prevent endless obstacle being created in the process, the Parliament, in its wisdom, had enacted Article 243-O of the Constitution of India. It is essential to note that Article 243-O is contained in part IX of the Constitution, a part which places the entire Panchayati Raj on a high Constitutional pedestal. Since the intention of the legislature was to ensure a smooth democratic election at the grass root level, i.e. at the Panchayat level, Article 243-O clearly imposed a bar by stating that no election to Panchayati Raj shall be called in question except by an election petition. Thus, it created an alternate remedy. The alternate remedy is reflected both in Section 117 of the Act which uses the verbatim expression as Article 243-O of the Constitution of India, as well as in Rule 80 of the Election Rules. 4 Rule 80 of the Election Rules is as under :- 80. Manner of challenging an election under the Act.- An election under the Act or under the Rules may be called in question by any candidate at such election by presenting a petition to the District Judge having jurisdiction within thirty days from the date on which the result of such election is declared, on any one or more of the following grounds :- (a) that on the date of election, a returned candidate was not qualified or was disqualified, for such election, or (b) that any corrupt practice was committed by a candidate or by any other person with the consent or connivance of the candidate, or (c) that any nomination was improperly rejected, or (d) that the result of the election in so far as it concerns the returned candidate was materially affected- (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the candidate by a person other than that candidate or by a person acting with the consent or connivance of such candidate, or (iii) by improper reception, refusal or rejection of any vote or the reception of any vote which was void, or (iv) by any non-compliance with the provisions of the Act or of these rules, or (e) that in fact the petitioner of some other candidate received a majority of the valid votes, or (f) that, but for votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes. A bare perusal of the Rule clearly reveals that it does cover the stage when nomination paper needs to be filed and needs to be scrutinized. In case a candidate is aggrieved by the fact that the nomination was improperly rejected, under Rule 80 of the Election Rules he can only file an election petition before the District Judge. 5 The interpretation being given by Mr. Singodiya that Rule 80 of the Election Rules comes into operation only after the election results have been declared is untenable as Rule 80 of the Election Rules clearly states that it deals with the stage when the nomination papers need to be filed. Of course, it is true that Rule 80 of the Election Rules prescribes the period of limitation for filing of the election petition. But merely because it prescribes a limitation period, the interpretation given by Mr. Singodiya cannot be accepted. In N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency & Ors. [AIR 1952 SC 64], the Apex Court observed as under : (a) Constitution of India, Article 329(b) – The word “election” is used to embrace the whole procedure of election and is not confined to final result thereof – Rejection or acceptance of nomination paper is included in the term. The word “election” has been used in Part XV of the Constitution 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 Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Article 329(b). The term “election” may be taken to embrace the whole procedure which consists of several stages and embraces many steps, whereby an “elected member” is returned, whether or not it be found necessary to take poll. It is not used in a narrow sense. Moreover as Rule 80 provides an alternate remedy, that too an efficacious alternate remedy, the writ jurisdiction of this Court cannot even be invoked. 6 Hence, the learned counsel for the respondents is justified in contending that the order dated 20th January, 2010 has been passed while ignoring the existence of Rule 80 of the Election Rules, Section 117 of the Act and Article 243-O of the Constitution of India. Therefore, the application is, hereby, allowed; and the order dated 20.01.2010 is, hereby, vacated. At this juncture both the learned counsel for the parties have requested this Court to decide the writ petition at this stage. Since the petitioner has an efficacious alternate remedy, this writ petition is not maintainable. Thus, the petition is, hereby, dismissed. However, liberty is given to the petitioner to pursue the efficacious alternate remedy which is provided to him under the law. (R.S.CHAUHAN)J. Manoj Solanki-