1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1. S.B. CIVIL WRIT PETITION NO.2579/09 Kedar Nath Gupta vs. State & Ors. 2. S.B. CIVIL WRIT PETITION NO.2519/09 Harish Sangtani vs. State & Ors. 3. S.B. CIVIL WRIT PETITION NO.2521/09 Dinesh Kumar vs. State & Ors. 4. S.B. CIVIL WRIT PETITION NO.2523/09 Niran Das vs. State Election Commission & Ors. Date of order : 5/3/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri S.P. Sharma ) Shri Lokesh Sharma ) Shri Laxmi Kant ) Shri Santosh Jaiman ) Smt. Sushma Sharma ) for the petitioner. Shri Pradeep Kalwania, Addl. Govt. Counsel for State. Shri R.B. Mathur) Shri Brij Sharma ) for respondent. Shri G.K. Garg ) Shri Madhav Mitra ) for applicants. ****** REPORTABLE All these writ petitions seek to challenge the order issued by the State Election Commission dated 26.2.2009 by which direction was issued for holding elections to the office of Chairmen of various Municipal Boards and the Mayor of the Municipal Corporation, Jaipur, in which vacancies caused for various reasons and 2 primarily due to the fact that incumbents elected thereto either died or were elected as Members of Legislative Assembly in the recently held general elections. Learned counsel for the petitioners have submitted that subject elections cannot be held because number of wards in each Municipalities are unrepresented. It is contended that consequential notification issued by various returning officers are not in conformity with Rule 10 of the Rajasthan Municipalities (Election) Rules, 1994 (for short-`Rules of 1994') and in fact they simply are notices of meeting issued under Rule 80 and not the notification. It is contended that the Rajasthan Municipalities Ordinance, 2008 by its Section 371 repealed the Rajasthan Municipalities Act, 1959 (for short- `Act of 1959') and in its clause (b) provided that the Rules framed under the Act of 1959 shall in so far as they are not inconsistent with the provisions of the Ordinance, be deemed to have been made under this Ordinance. Since the Rules of 1994 provided for indirect mode of election to the office of Chairman / Mayor and the 3 Ordinance of 2008 envisaged for direct election to such office, former being in conflict with the later, that part of the Rules of 1994 cannot be deemed to have been saved. Learned counsel referred to Rajasthan Municipalities Laws (Repeal and Revival) Ordinance of 2009 and argued that according to Section 3 of the Ordinance of 2009, what is saved is the rules made or deemed to have been made under the Rajasthan Municipalities Ordinance, 2008 in so far as they are inconsistent with the provisions of Rajasthan Municipalities Act, 1959 but there is no clause of saving regarding Election Rules of 1994. It was argued with reference to Section 6(1)(a) of the Rajasthan General Clauses Act, 1955, the effect of repeal of Ordinance of 2008 would be revival of only what was in force or existing at the time of its repeal took effect. When the Rules of 1994 were not saved and at least in the context of conflict between the Rules of 1994 and the Ordinance of 2008 in the mode of election to the office of Chairman / Mayor, they cannot at all be taken to have been revived. Learned counsel for the 4 petitioners argued that in spite of bar contained in Article 243ZG of the Constitution of India, this Court in appropriate cases in exercise of its power of judicial review under Article 226 of the Constitution of India can make interference. This bar in any case would not be attracted at the pre-election stage. Reliance is placed on the judgement of the Supreme Court in Election Commission of India vs. State of W.B. & Anr.-(2003) 11 SCC 698. Learned counsel cited number of orders passed by coordinate benches of this Court staying operation of notification for election to various Panchayati Raj Institutions on consideration of some of these arguments. Shri R.B. Mathur, learned counsel appearing for the State Election Commission argued that notification in each of these cases has been issued by the Returning Officers and with that, the process of election has commenced on 27.2.2009. In view of the bar contained in Article 243ZG of the Constitution of India, no interference can be made by this Court as the process of election has already started. Reliance in 5 this connection is placed on judgement of the Supreme Court in Jaspal Singh Arora vs. State of M.P. & Ors.-(1998) 9 SCC 594 and Gurdeep Singh Dhillon vs. Satpal & Ors.- (2006) 10 SCC 616 and of this Court in Shanti Lal & Anr. vs. State of Rajasthan & Ors.-1995 (3) WLC (Raj.) 580. It is argued that right to contest the election is only as legal right and it can be enforced only in terms of the provisions of the Statute concerned. Election of the Chairman / Mayor can be challenged only by way of filing election petition u/s. 66 of the Act of 1959. Learned counsel for the intervenors submit that the interim orders, which have been cited by the learned counsel for the petitioners, pertain to election to the office of Pradhan and Zila Pramukh under the Rajasthan Panchayati Raj Act, 1994 and that, the election to the office of President of Municipal Corporation after commencement of the process is not open to challenge in the writ petition as the same is barred by Article 243ZG of the Constitution. I have given my anxious consideration to 6 the rival submissions and perused the material on record. Article 243ZG of the Constitution in its clause (b) provides that notwithstanding anything contained in the Constitution, 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. Indisputably, Section 66 of the Act of 1959 provides that election of a chairman or vice-chairman under section 65 of the said Act shall not be called in question except by an election petition presented to the District Judge sitting at the place where the municipal office is situated; or where there is no such District Judge, the Civil Judge so sitting; or any other Judge specially appointed by the State Government for the purpose. It is thus obvious that in terms of provisions of Article 243ZG, election to the office of Chairman / Mayor as ordained by the Constitution can be called in question only “in such a manner as is provided for by or under any law made by 7 the Legislature of a State”, which in the present case is the Act of 1959. Contention that such a bar would not be attracted at pre-election stage, cannot be upheld in view of catena of judgements of Supreme Court where a pari materia provision contained in Article 329(b) of the Constitution has been interpreted to mean that such bar would be attracted even at pre-election stage and remedy of writ petition under Article 226 would not be available if the process of election has commenced. The only remedy available then would be by way of challenge to such election in an election petition as per the procedure provided under the Statute in question. Constitution Bench of Supreme Court in N.P. Ponnuswami vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Distt. & Ors.-AIR (39) 1952 SC 64 while interpreting the word `election' as used in Part XV of the Constitution while considering a similar argument held “that the word `election' has been used in Part XV of the Constitution in a wide sense, that is 8 to say, to connote the entire procedure to be gone through to return a candidate to the legislature.” Their Lordships held that this word has got a wider meaning and 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 was held that word `election' has not been used in a narrow sense. While interpreting the phraseology “no election shall be called in question”, it was held that the law of elections in this country does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on, by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution, the ordinary jurisdiction of the Courts having been expressly excluded and another, after they have been completed, by means of an election petition. Where a right or liability is created by a Statute, which gives a special remedy for enforcing it, the remedy provided by that Statute only 9 must be availed of. This issue again engaged attention of the Supreme Court in in Nanhoo Mal & Ors. vs. Hira Mal & Ors.-(1976) 3 SCC 211 wherein the Supreme Court while relying on its earlier judgement in N.P. Ponnuswami, supra, held that challenge to an election through a writ petition before the High Court is not permissible even on the ground of non compliance of statutory provisions, if the Statute provides for exclusive jurisdiction to the District Judge empowered to determine the material effect of such non-compliance. In Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors.- (1978) 1 SCC 405, the Supreme Court again reiterated the same view by holding that no litigative enterprise in the High Court or other Court should be allowed to held up the on-going electoral process. It was held that Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. Election in this 10 context is a very wide connotation commencing from the notification calling upon a electoral to elect and culminating into final determination of the returned candidate. The Supreme Court in S.T. Muthusami vs. K. Natarajan & Ors.-AIR 1988 SC 616 while dealing with the question whether it was appropriate for the High Court to interfere with the election process at an intermediate stage after the commencement of the election process and before the declaration of the result of the election to the office of the Chairman of a Panchayat Union under the provisions of the Tamil Nadu Panchayats Act, 1958 on the ground that there was an error in the matter of allotment of symbols to the candidates contesting such election. Reversing the judgment of High Court, the Supreme Court while relying on its Constitution Bench judgement in N.P. Ponnuswami, supra, held that the interference in exercise of its jurisdiction by the High Court under Article 226 of the Constitution was not justified. The parties who are aggrieved by the result of the 11 election, can question validity of election by an election petition, which is an effective alternative remedy. It may be noted that the bar similar to the one contained in Article 243ZG regarding election disputes to the Municipalities, is also created in Article 243O of the Constitution for such disputes concerning elections to Panchayati Raj Institutions, which are both in pari materia with the provisions contained in Article 329(b), supra. In subsequent judgements of Jaspal Singh Arora vs. State of M.P. & Ors.-(1998) 9 SCC 594 and Gurdeep Singh Dhillon vs. Satpal & Ors.-(2006) 10 SCC 616 and of this Court in Shanti Lal & Anr. vs. State of Rajasthan & Ors.-1995 (3) WLC (Raj.) 580 also it was held that the election to the office of President of Municipal Corporation is not open to challenge in the writ petition as the same is barred by Article 243ZG of the Constitution. It is trite law that right to elect or to be elected or to challenge an election, is neither a fundamental right nor a common law right but a statutory right and 12 therefore disputes relating to such right would be regulated by the conditions prescribed in the enactment in which such right is created. Reference in this connection may be usefully made to the judgement of the Supreme Court in C. Narayanaswamy vs. C.K. Jaffer Sharief & Ors.-1994 Supp (3) SCC 170 and Gajanan Krishnaji Bapat and Anr. vs. Dattaji Rathobaji Meghe and Ors.-(1995) 5 SCC 347. Even otherwise, the contention that their being conflict about the mode of election to the office of Chairman / Mayor between the provisions contained in the Ordinance of 2008 and the Election Rules of 1994, the Election Rules of 1994 to that extent cannot be taken to have been saved by virtue of saving clause contained in Section 371 of the said Ordinance and therefore what was not saved would not be revived by virtue of Section 3 of the Ordinance of 2009 read with Section 6 of the General Clauses Act, I do not find any substance in this submission either, because substantive provision contained in Section 65 of the Act of 1959 itself in its sub-section (2) provides that 13 “the Chairman shall be elected, in accordance with the Rules made by the State Government in that behalf, by the elected members of the Board from amongst themselves”. When the parent Act of 1959 itself provides for election to the office of Chairman by the elected members from amongst themselves, the so called conflict would hardly be of any significance so as not to save the Election Rules of 1994. In view of the aforesaid discussion, I do not deem it appropriate to make interfere in these matters as the process of election has already commenced. In the result, the writ petitions are dismissed. Cost made easy. (MOHAMMAD RAFIQ), J. RS/