HIGH COURT OF CHHATTmARH AT BIL-ASPUR Writ Appeal No.21 of 2010 Pt ' resen Shn S C Verma counsel forthe appellant Shn V V S Murthy, Deputy Advocate Genera! for the Stateirespondent Division Bench: Hon. Shri Dhire‘ndra Mishra &, I Hon. Shri Manindra Mohan Shrivasta‘ia JJI ORAL JUDGMENT a ' (23- -201o) “e i The foilowung judgment of the Court was delivered by Dhlrendra ishra, J .1. Th‘e appeilant’s writ petitionpfor‘quashing of the o'rder of Annexure-P/f Whereby nomination paper of the appellant for‘contesting ‘eleetion for. the post of Sarpanch has been rejected has been dis’miss'ed'With a observation that improper rejection of the nomination paper has been set out as a ground under Rule 21 (c) of the Chhattisgarh Panchayats (Election Petitions Corrupt. Practices and Disqualifcation ,or‘ @ M _ , n t f APPELLANT: (Petitioner) Rame‘sh Shanna s/o Kegu Ram Sharqna aged about 34 years R/o = Village Kesla Post —, Khan’a District Ramur (CG) i Versusv a ‘ RESPONDENTS: Thei State of Chhattisgarb,. Through The Secretary; Panchayat D K S Bhawah, .Mantralaya Ra:pur(CG) f The Chhattlsgarh State Electtdn Commission Near DKS Bhawan Mantralaya Ralpur (CG) The Returning Offoer/Tahsndar Tahsll Tilda District Raipur (CG) Membership) Rules 1995 (for short he Rules) for declanng the election to be voud Learned Single Judge has declined to entertain the wnt petition on the ,\ ground that It would not be mamtamabe as subject matter Is that of: election petmon x E . Shn‘ S;C. Verma, learned counsel for the appellant submitted that the nomination paper of the appellant has been rejected by a reference to r the provrsrons which do not exrst In statute Sub-section (7) of Sectron‘ ’17 of the Panchayat Ra] Evam Gram Swara} Adhlnryam 1993 (for short ‘the Act’) only provrdes that If a Sarpanch or Up-Sarpanch becomes Chairman or Vce-Charrman of any co-operatwe sacrety, then ' hershall deem to have vacated the ofl'ce lt nowhere provrdes that the j ‘ . persons holding the aforesaid post shall not be eligible to contest the: . electron. , Relying upon the judgment in the matter’of Hamek “Singh Versus , chiar'anjit Singh and others‘, he a‘rgugg that Article‘243-o or thé‘; Cohstitutionrmay, itselr’not per se bar judicial review under Article'226: of the Constitution, which is the basic structure of the' Constitution. y . Reliance is also placed in the matter of Mukesh Ram Chandani andv others etc Vs State of U P and Othersz and on the Full Bench decrsuon of the Andhra Pradesh High Court In the matter of. S Fakruddm and others etc Vs The Govt of AP and others y etc., . \ (2005) a soc 383 - r . Ala 1996 ALLAHABAD 219 \AIR 1996 ANDHRA PRADESH 37 6L n. We havé heard learned counsel for th appellant on admissio ?. ln ues Ram Chandani (Supra) while considering the rovisons" _conained in Article 243-ZG of the Constitution the DIVision Bench o he aabad High Court held that bar to challenge to any matt n M wy of ection petition is no absolute The immunity is conferred only if it is for furthering eection if the action of the authorities concerned is preventing a elecion and not promoting it and if the concept of furtherin a free an fair election is crippled in any manner by such act of the authoritie inerference may be made une Cd t i ,onSIering the facts of that case the respondents were directed no .to proceed With the election in pursuance of the notifications issued b ithe respondents and postpone the same until the defect painted out in t p rd l l Mkh pi t f t Alih er ' concering election to unicipality except by a et t l n t g d s t dr he rocedure was cue . ln s Fakruddin (Supra), the full Bench of the Andhra Pradesh Hih i ourt eld that bar contained in Article 243-0 of the Constitution is bar to ordinary jurisdiction of the Courts and not to extraordinay iurisdiction under Articles 226 and 136 of the onstiion i . I u o, ’b e Cort l onsderng the constitutional mandate uder Article f otituti h o i l ar jucial review‘ which is the basic structure of the Constit .. Wk y a g C h r Ctut n Harnek Singh (Spra) als the Honle suprme u whie cii n 243 O o the Cnson observed tat the afresaid provison itsef may not per se a b di ution, but i 10. The legal position propounded in the aforesaid judgments that the bal( contained in Article 243 O or 243 ZG of the Constitution of India against interference by this Court in connection with eiectorai matters of Panohayat and Municipality, is not, absolute and int appropriate : circumstances,‘ the Supreme Court and tr e High Courts can interfere in ' such matters in exercise of extraordinary} i jurisdiction under Article 22o and 136 of the Constitution is not disputfed. it is also settled that the rule of exclusion. of writ jurisdiction on'account of availability of ah . alternative remedy is a rule of discretion and not one of, compulsion. In W an appropriate case in spite of the availability of an altemative remedyr a writ court may still exercise its discretionary jurisdiction of judicial I k review’ in at least three contingencies, namely, (i) where the writ t petition seeks enforcement of any of the'fundamental rights‘ (ii) where there ts failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the Vires of an Act is t challenged. 11. in§the instant case, the grievance-of the appellant is thathis nomination ' form for contesting election for the post of Sarpanch has been wrongly rejected by erroneous interpretation of Section 17 (7) of the Act by the Returning Officer Learned Single Judge Without adverting to the merits of the case declined to entertain writ petition on the ground that the petitioner has an alternative remedy for redressai of his grievances « by tiling an election petitionunder the Act, as in, Rule 21 (c) rejection off . nomination paper has been set out as a ground for election petition. \ a 12. Keeping in viewthe above settled position of'iaw, we‘are not inclined to interfere withthe impugned order whenthe main question which was raised before.this Courtvis erroneous interpretation of Section 1717;) of 3, the Act, which is' also one of the grqunds for an election petition in , ‘ terms of Rule 21 (c) of the Rules particularly, when the procese of 1 election has already commenced and is at fnal stage and the appellant :1 "i has an efficacious alternative remedy of fling election petition against the returned candidate. 13 ln the result the appeal has no force the same deserves to be dismissed and it is hereby dismissed In Jimme lL_.. / f Sd/- Sd" Dhlrendra Mlshra Manindra Mohan Shrivastava T f Judge ' Judge VJ l /