1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 8518 of 2010 Decided on December 27, 2010 Nirmala Devi …Petitioner VERSUS State of HP & ors ….Respondents Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge Whether approved for reporting?1 For the Petitioner: Mr.Ajay K. Dhiman, Advocate. For the Respondents Mr. R.K. Sharma, Sr, Addl. Advocate General for respondents No. 1 and 3. Mr. Onkar Jairath, Advocate for respondent No.2. R.B.Misra, Judge In the present writ petition, preferred under Article 226 of the Constitution of India, petitioner has prayed for giving direction to the respondents to reject the order of Returning Officer, canceling the nomination of the petitioner to the post of Member Panchayat Samiti, Sadar Road Jaman No. 35 ( Majari, Dabat and Road Jaman) District Bilaspur, HP. 2. According to the petitioner, she belongs to OBC category and the place where she had filled up the nomination paper, was reserved for OBC candidate, but ignoring her certificate of OBC, Returning Officer has cancelled her nomination paper. Whether the reporters of the local papers maybe allowed to see the judgment? 2 3. Disputed question and a controversial matter of interpretation of alleged certificate is involved in present petition, more so, the matter pertains to election. 4. Sr. R.K. Sharma, learned Senior Additional Advocate General placed reliance on the following cases and has stated that in view of the decision of Supreme Court in N.P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and Ors AIR (39) 1952 SC 64, rejection or acceptance of a nomination paper is included in the term ‘election’. In view of decision of Supreme Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and ors, AIR 1955 SC 233, it has been held that in respect of any dispute regarding election as provided under Article 329 (b) of the Constitution, the writ petition is barred and for this purpose relevant paragraph -6 as referred by Sh.R.K. Sharma, is extracted as below: “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 recognize or admit any limitation on this power, that must be founded on some provision in the Constitution itself. The contention of Mr. Pathak for the first respondent is that such a limitation has been imposed, on that power by Article 329 (b), which is as follows : "Notwithstanding anything in this Constitution- 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". 3 Now, the question is whether a writ is a proceeding in which an election can properly be said to be called in question within the meaning of Article 329(b). On a plain reading of the Article, what is prohibited therein is the 'initiation' of proceedings for settings aside an election otherwise than by an election petition presented to such authority and in such manner as provided therein. A suit for setting aside an election would be barred under this provision. In - N. P. Ponnuswami v. Returning Officer, Namakkal Constituency', AlR 1952 SC 64 (A), it was held by this Court that the word "election" in Article 329(b) was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate, and that an application under Article 226 challenging the validity of any of the acts forming part of that process would be barred. These are instances of original proceedings calling in question an election, and would be within the prohibition enacted in Article 329(b). But when once proceedings have been in situated in accordance with Article 329(b) by presentation of an election petition, the requirements of that Article are fully satisfied. Thereafter when the election petition is in due course heard by a Tribunal and decided, whether its decision h open to attack, and if so, where and to what extent, must be determined by the general law applicable to decisions of Tribunals. There being no dispute that they are subject to the supervisory jurisdiction of the High Courts under Article 226, a writ of 'certiorari' under that Article will be competent' against decisions of the Election Tribunals also. “ 5. Mr. Sharma has also invited our attention to the provision of Article 243(O) of the Constitution, which reads as below: Bar to interference by courts in electoral matters. “Art.243-O. 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 243K, shall not be called in question in any court; 4 (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. 6. In view of the above observations, the principle and guidelines as applicable regarding bar and jurisdiction of Court in election matters of either house of Parliament or either house of Legislature as provided under Article 329 of the Constitution, shall be applicable in the matter of election of Panchayat as provided in Article 243 (O) of the Constitution. Any dispute regarding election under Panchayat could be questioned by way of election petition and no suit in such matter is permissible in view of Hari Vishnu Kamath (supra ). Acceptance or rejection of nomination paper by Returning Officer is also not the subject matter of suit or writ petition when any matter while the elections are in progress, e.g. at every stage from the time of the issuance of the notification appointing a date for nomination till the results are declared are also not within the scope of suit before civil court or writ jurisdiction in view of the observations made by Supreme Court in Mohinder Singh Gill Vs. Chief Election Commissioner, AIR 1978 SC 851 as well as observations made by Kerala High Court in Tirath Singh Narain Singh Vs. Bachitar Singh Mit Singh, AIR 1982 (265) and as well as in view of the decision of High Court of Patna in Shankar Vs. State of Bihar, AIR 1953 (47). 7. In the facts and circumstances since the election process has already started, therefore, in view of the observations made by the Supreme Court in Election Commission of India 5 through Secretary Vs. Ashok Kumar & ors (2000) 8 SCC 216, there is no occasion for any intervention by the High Court to entertain writ petition under article 226 for giving interim directions. Therefore, this court is not inclined to invoke its extraordinary discretionary jurisdiction under Article 226 of the Constitution of India. With above observation, writ petition is dismissed so also the pending application(s). ( R.B.Misra ), J. 27rd December, 2010 (Sanjay Karol), J. (sl) 6 7