Petitions challenging elections to the Municipal Council to be maintainable only through an election petition: Punjab and Haryana High Court

Any petitions challenging the election of certain candidates shall be maintainable only through an election petition. The Punjab High Court quorum of Jaswant Singh J. and Sant Parkash J. on a pristine reading of the Punjab State Election Commission Act, 1994 held that on account of any ongoing proceedings under an election petition, an extended writ petition challenging the said election is not maintainable. It was observed in the matter of Basant Kumar Goyal v State of Punjab [CWP No.9156 of 2021].

The facts of the case are that petitioners contested the election from Ward Nos.3 and 5 of Municipal Council, Lehra Gaga, District Sangrur, respectively and respondents were their rival candidates. The petitioners filed objections before the Returning Officer-respondent No.6 against the nomination papers of respondents on the ground that they were in unauthorized possession of the government land. However, respondent No.6 failed to act upon the complaints/objections made by the petitioners against respondents and subsequently, they were able to contest the election and ultimately elected from their respective wards. It is alleged in the petition that respondent No.6 blatantly misused her powers as Returning Officer in the elections.

It was contested on behalf of the petitioners that while allowing respondents No.7 to 8 to contest the election, respondent No.6 out-rightly ignored the fact that encroaching upon Municipal land is a criminal offence also. It was further submitted that a person who has encroached upon Municipal land can never be allowed to represent the residents of that area in the capacity of councilor.

The bench to give effect to the mandate of the provisions of the Constitution regarding bar to interference by Courts in electoral matters, observed that the Punjab State had promulgated the Punjab State Election Commission Act, 1994, which governed not only Municipality elections but also Panchayati elections in the State of Punjab. In this Act, there is a bar under Section 74 on challenging the elections by any other mode than filing an election petition.

In view of the above-said provisions contained in the Constitution as well as statutory provisions that there is a complete bar on the jurisdiction of any court to entertain any challenge to an election process, which includes improper rejection of nomination. The Hon’ble Supreme Court in Election Commission of India through Secretary Vs Ashok Kumar and others, 2000 (8) SCC 216 was referred to wherein it was held that the Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court was of the considered view that the controversy involved in the present case can only be gone into after evidence is led and not while adjudicating a writ petition. Thus, only an election petition would be maintainable and not a writ petition.

On the other paradigm, an election petition challenging the election of respondent, taking all the identical and similar pleas as taken in the present writ petition, had already been filed and was pending before the Competent Authority. In such a scenario, the said writ petition can be said to be not maintainable as the specific remedy available under law has already been availed.

The court thus ruled that, “However, learned counsel for the petitioners is trying to justify the claimed relief on the basis of order dated 12.03.2021 passed by this Court in CWP No.5876 of 2021. This submission of learned counsel for the petitioners is totally misplaced because in the said case, there was an inquiry report of General Election Observer regarding the malpractices and as such, the petitioners cannot be allowed to take the advantage of that order.
In this view of the matter, the present writ petition is not maintainable and is dismissed as such

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