Dismissed

Kedar Nath Gupta v. State of Raj and Ors.

Rajasthan HC5 Mar 2009CW/2579/2009

Case brief

AI extract

What is this about?

The Court dismissed four writ petitions challenging statements of issues for election to municipal offices. Relying on Article 243ZG and Supreme Court precedents, the Court held that once the election process has commenced, High Court interference under Article 226 is barred, and the exclusive remedy lies in an election petition under Section 66 of the Rajasthan Municipalities Act, 1959.

What did the court decide?

The writ petitions seeking to quash the election notifications or stay the election process were dismissed.

Kedar Nath Gupta Vs State of Raj and Ors. — Pension and Retirement Benefits | Rajasthan HC (2009)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

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1. S.B. CIVIL WRIT PETITION NO.2579/09
Kedar Nath Gupta vs. State & Ors.

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2. S.B. CIVIL WRIT PETITION NO.2519/09
Harish Sangtani vs. State & Ors.

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3. S.B. CIVIL WRIT PETITION NO.2521/09
Dinesh Kumar vs. State & Ors.

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4. S.B. CIVIL WRIT PETITION NO.2523/09
Niran Das vs. State Election Commission &
Ors.

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Date of order : 5/3/2009.

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HON'BLE MR.JUSTICE MOHAMMAD RAFIQ

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Shri S.P. Sharma )
Shri Lokesh Sharma )
Shri Laxmi Kant )
Shri Santosh Jaiman )
Smt. Sushma Sharma ) for the petitioner.

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Shri Pradeep Kalwania, Addl. Govt. Counsel
for State.
Shri R.B. Mathur)
Shri Brij Sharma ) for respondent.

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Shri G.K. Garg )
Shri Madhav Mitra ) for applicants.

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******

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REPORTABLE

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All these writ petitions seek to

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challenge the order issued by the State

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Election Commission dated 26.2.2009 by which
direction was issued for holding elections

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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

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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.

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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

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this Ordinance. Since the Rules of 1994
provided for indirect mode of election to
the office of Chairman / Mayor and the

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Ordinance of 2008 envisaged for direct

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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

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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

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what was in force or existing at the time of
its repeal took effect. When the Rules of

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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 /

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Mayor, they cannot at all be taken to have
been revived. Learned counsel for the

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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.

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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

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this connection is placed on judgement of

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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.

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Learned counsel for the intervenors

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submit that the interim orders, which have
been cited by the learned counsel for the
petitioners, pertain to election to the

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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.

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I have given my anxious consideration to

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the rival submissions and perused the
material on record.

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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

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the Legislature of a State”, which in the
present case is the Act of 1959.

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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

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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.

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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

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the word `election' has been used in Part XV
of the Constitution in a wide sense, that is

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to say, to connote the entire procedure to

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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

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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

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must be availed of.

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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

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context is a very wide connotation

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commencing from the notification calling
upon a electoral to elect and culminating
into final determination of the returned
candidate.

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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
candidatescontestingsuchelection.

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Reversing the judgment of High Court, the

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Supreme Court while relying on its
Constitution Bench judgement in N.P.
Ponnuswami,supra,heldthatthe

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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

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election, can question validity of election

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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.

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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

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law right but a statutory right and

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therefore disputes relating to such right

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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

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Rathobaji Meghe and Ors.-(1995) 5 SCC 347.

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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

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“the Chairman shall be elected, in

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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.

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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.

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In the result, the writ petitions are
dismissed. Cost made easy.

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 (MOHAMMAD RAFIQ), J.

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RS/

Kedar Nath Gupta v. State of Raj and Ors.

Case brief

What is this about?

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Kedar Nath Gupta v. State of Raj and Ors.

Case brief

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