H.K.K. Singh, J.
1. By this application under Article 226 of the Constitution of India, the petitioner has questioned the validity of the notification dated 8-7-97. by which his election as Pradhan of 7/18 Kairang Khomidok Gram Panchayat was cancelled and in his place the respondent No. 4 was declared elected.
2. This writ petition was heard by a learned single Judge and under order dated 9-5-97 the petition was dismissed as the learned single Judge was not inclined to intervene in the matter in view of the existence of a forum for alternative remedy. Against this decision of the single Bench, a writ appeal was filed. By an order dated 30-7-97 of a Division Bench passed in Writ Appeal No. 69/97 the Writ Appeal was disposed of by setting aside the aforesaid order of the learned single Judge and, further it was ordered that the Civil Rule No. 185/95 should be re-heard on merit by a single Bench of this Court. Therefore, this Civil Rule was placed for hearing before another learned single Judge and the learned single Judge passed an order on 4-9-97 for placing the matter before the Division Bench for a decision as to whether the present election dispute was to be heard by the Election Tribunal or by this Court. When the matter was again placed before the Division Bench, the Division Bench by an order dated 26-9-97 directed for placing the matter before the Hon'ble Chief Justice and the matter was placed before the Hon'ble Chief Justice. Thereafter, the Hon'ble Chief Justice passed an order/note on 16-11-97 that under the existing High Court Rules, the matter needs to be reconsidered and disposed of by the learned single Judge. Hence, this matter has come up before this Bench.
3. Bereft of the details, the necessary facts for the purpose of disposal of the present case are that both the writ petitioner and the respondent No. 4 along with 4 (four) other candidates contested in the election of Pradhan of Sheet No. 7/ 18 of Kairang Khomidok Gram Panchayat. The election was held on 31-1-97. It is stated by the Petitioner that the counting of vole started on 6-2-97 and concluded on the same day. The petitioner secured 60 votes more than the number of votes secured by his nearest candidate (Defendant No. 4). A certificate of election was issued on 6-2-97 by the Returning Officer (Annexure-A/1). Thereafter, a notification dated 8-2-97 (Annexure-A/2) was issued by the Returning
Officer, by which the election of the petitioner as Pradhan was cancelled and in his place the respondent No. 4 was declared elected. The aforesaid notification was published in a local daily. Hence, the petitioner approached this Court praying for quashing the notification (Annexure-A/2).
4. Mr. B.P. Sahu submitted that after the Certificate of election was issued on 6-2-97, the Returning Officer had no authority under law to cancel the said election. Thus, the order being void, the petitioner can approach this Court under Article 226 of the Constitution of India. It is also stated by Mr. Sahu that any alternative remedy provided under law will not be a bar for this Court to exercise the constitutional jurisdiction of this Court. As against this, both Mr. Raghumani Singh, learned counsel for the respondents 1 to 3 Mr. L. Sharat Sharma, learned counsel for the respondent No. 4 have submitted in the same tune that this Court may not interfere in the present case as Election Tribunal constituted by and under the relevant provisions of law is the only and correct forum for adjudicating the matter. Further, the learned counsel have also submitted that the matter involves adjudication on question of facts which is to be decided only by the special authority in accordance with the procedure provided for by law.
5. By 74th Constitutional Amendment Act. 1992, Part IX of the Constitution has been inserted. The relevant provision for the present case being Article 243-O. the same is extracted below :--
Article 243 O, Bar to interference by Courts in electoral matters.-- 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 243-K, shall not be called in question in any Court;
(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. Subsequently, the Parliament enacted the Munipur Panchayati Raj Act. 1994 (hereinafter referred to as the 'Act') to provide for the constitution and organisation of the Paychayats as
Units of local sell-Government in the rural areas of Manipur and for matters connected therewith and incidental thereto. The relevant provisions for the present matter are Sections 103 and 106 of the Act. They arc reproduced below :
103(1) The Government shall constitute Election Tribunal consisting of one member to be appointed by that Government to dispose of :
(i) all election petitions challenging elections to a Panchayat;
(ii) matters relating to disqualification of a member of the Panchayat; and
(iii) any other election matter, in such manner as may be prescribed.
(2) The Headquarter of the Tribunal shall be at such a place as may be notified.
(3) The decision of the Election Tribunal made under Sub-section (1) shall be final.
(Underlined is mine) '106. Notwithstanding anything in this Act--
(a) life validity of any law relating to the delimitation of constituencies or the allotment of seat to such constituencies, made or purporting to be made under the relevant provision of the Constitution of India shall not be called in question in any Court;
(b) no election to any Panchayat shall be called in question in any Court.'
(Underlined is mine)
Again, under the provisions of Section 105 of the said Act, the Rule being the Manipur Panchayat Raj (Election) Rules, 1995 (hereinafter referred to as the 'Rule') was framed. Part VI related to election dispute. It comprises of Rule 70 to Rule 82. Under Rule 70. elaborate and detailed provisions relating to filing of election petition, contents of the petition including verification thereto have been provided. We also find provisions regarding the applicability of the provisions of Code of Civil Procedure, 1908 (Rule 71). withdrawal of the petition (Rule 72), application of Indian Evidence Act. 1872 (Rule 73), election of any candidate may be declared us void (Rule 74), and in his place any other candidate may be declared as elected (Rule 75) besides others.
7. Article 243-O starts with a non obstante clause that 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 State. We also find a 'Finality Clause' under Section 103(3) of the Act that the decision of the Election Tribunal shall be final. Further, there is 'Ouster Clause' under Section 106(b) of the Act that no election of Panchayat shall be called in question in any Court.
8. In our present case, the question to be determined is as to whether the present writ petition challenging the election/cancellation of election of Pradhan of Gram Panchayat may be entertained by this Court or such a matter should be entertained only by the Election Tribunal, if an Election Tribunal has been constituted under the provisions of Manipur Panchayati Raj Act, 1994.
9. In the Counter-affidavit of the respondent No. 3 at para 5, it is stated that the counting of votes was not completed on 6-2-97 but it continued till 8-2-97. A complaint was made by the respondent No. 4 that 80 (eighty) votes at Table No. 2 of Sheet No. 1 were to be posted against his name (Respondent No. 4) but only 13 (thirteen) votes were posted in his name and 80 votes were wrongly posted against the name of one Md. Islamuddin whose name appeared at Sl. No. 3 of the counting sheet. Thus, after correcting the mistake the total number of votes secured by the respondent No. 4 was found to be 1007 whereas the total number of votes secured by the petitioner was only 995. Thereafter, the impugned notification cancelling the election of the petitioner was issued. It was also stated that the Certificate at Annexure-A/1 was prepared wrongly while counting was going on and before completion of the counting.
10. Learned counsel for the respondents have relied upon the decision of the Supreme Court in the case of Krishna Ballabh Prasad v. Sub-Division Officer Hilsa-cum-Returning Officer, reported in AIR 1985 SC 1746. This is a case arising out of a dispute in the Election of Bihar Legislative Assembly under the Representation of the People Act. The petitioner was earlier declared as elected and Certificate in Form 22 under Rule 66 of the Conduct of Election Rules, 1961 was granted. Subsequently, the Returning Officer issued a notice cancelling the election of the petitioner and the respondent was declared to be successful candidate and a fresh Certificate in Form 22 was issued. In this case the Supreme
Court held in para 5 of its judgment that :
'We are of opinion that the process of election came to an end only after the declaration in Form 21 -C was made and the consequential formalities were completed. The bar of Clause (b) of Article 329 of the Constitution came into operation only thereafter and an election petition alone was maintainable. The writ petition cannot be entertained.'
The said decision still holds the field.
11. As stated earlier, this reported case arose out of an Election to Bihar Legislative Assembly and our present case is regarding Election to Gram Panchayat. If we compare the provisions of Articles 329 and 243-O, we find that both the provisions are almost pan materia, except that Article 329 is in respect of election to House (s), Parliament and Legislature of States and Article 243-O, in respect of election to any Panchayat.
12. In Part IV of the Rules on COUNTING OF VOTES, the manner and procedure for counting of votes and various forms are also pre-scribed. Result Sheets are prepared in Form 23, declaration of result is made in Form 24 and Certificate of election is issued in Form 25. The Returning Officer in his counter-affidavit has stated that correction was made in Form 23, Respondent No. 4 in his counter has stated that the Certificate was prepared in Form 25 before the entry in the result sheet in Form 23 and also before making the declaration in Form 24 as provided under Rule 63 of the Rules. These arc the disputed question of facts which are to be decided by the Election Tribunal in accordance with and in the manner provided for by law in this regard. Again, the aforesaid decision cited by the Learned counsel for the respondents is relevant.
13. Mr. Sahu again submitted that in the
present case. Civil Rule was originally decided
by the learned single Judge on 9-5-97 but in the
Appeal the Division Bench ordered for rehearing
of the Civil Rules by the single Bench on merit
and finally the Hon'ble Chief Justice under order/note dated 6-11-97 directed that the matter
should be reconsidered and disposed of by the
single Judge. Thus, according to Mr. Sahu the
present case should be decided by the single
Judge on merit.
14. Writ Appeal is continuation of the original writ petition. As per judicial discipline and
comity of Court, the single Judge has to decide as per the order passed by the Division Bench and also the administrative order/note of the Hon'ble Chief Justice.
15. In our case the writ appellate Court passed the following order dated 30-7-97 which is extracted below :
'.....Admittedly Election Tribunal is not functioning in the State of Manipuras of today. In view of this it is expressed at the bar that instead of this matter pending before this Court, the writ petition should be decided on merit after re-hearing the matter. In this view of the matter this Writ Appeal is disposed of.
Order dated 9-5-97 passed in Civil Rule 185/ 97 is set aside.
Until further orders no person shall be administered the oath of office. List the matter for hearing tomorrow.'
The above order dated 30-7-97 of the Appellate Court indicates, that it was passed on the basis of some facts which existed at the relevant time. By then, the Election Tribunal though already constituted was not functioning. But it has been clearly admitted at the Bar that now the Election Tribunal has been constituted and one Officer of Manipur judicial Service Guide-1 has been functioning as the Presiding Officer. A copy of the notification dated 16-8-97 is also found in the record of this case. Thus, it is clear that the Division Bench remitted the matter to the single Bench for decision on merit on the ground that Election Tribunal was not functioning by then. Since, the Election Tribunal is now functioning, the order of the Division Bench may not be carried out. Court's decisions are binding unless the condition on which it was passed are to be fundamentally altered that the decision could not have been given in the altered circumstances (See (1997) 5 SCC 536).
16. Lastly, Mr. Sahu relying upon the landmark decision of the 7-Judges constitution Bench in the case of L. Chandrakumar v. Union of India, reported in AIR 1997 SC 1125, has submitted that in spite of any other provisions in any law, the jurisdiction of this Court under Article 226 of the Constitution may be exercised. It is true, the constitution Bench held that the power of judicial review over legislative action vested in the High Court under Article 226 and in the
Supreme Court under Article 32 is an integral and essential feature of the Constitution constituting part of its basic structure. It was also held that the power vested in the High Court to exercise judicial superintendence over the decision of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. Speaking for the Court, Chief Justice A.M. Ahmadi concluded as follows (at para 99 of the judgment) :
'Clause 2 (d) of Article 32A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional, Section 28 of the Act and the 'exclusion of jurisdiction' clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/ 227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will nevertheless continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.'
(Underline is mine)
I am not inclined to decide as to whether the aforesaid decision as regards Tribunals constituted under Articles 323A and 323B should be applicable in case of Election Tribunal constituted under Article 243-O. Besides, in our present
case the petitioner has not questioned the vires of the provision of any legislation; primary or subordinate. The petitioner has questioned only the legality of the order issued/passed by the Returning Officer. This matter regarding voidity of the order/notification at Annexure-A/2 may very well be decided by the Election Tribunal which is now functioning in the State.
17. Now the question is the proper order to be
passed. The petitioner approached this Court at
the earliest and the matter has been lingering here
for quite sometime. The time prescribed for filing of election petition is 30 days from the date of
declaration of result (Rule 70). Now, relying on
the recent decision of the Supreme Court in the
case of Danda Rajeshwari v. Bodavula
Hanumayamma, reported in (1996) 5. SCC 199 :
(AIR 1997 SC 1541). I am of the opinion that
still, the election petition can be filed before the
Election Tribunal within a time that may be fixed
by this Court and the Election Tribunal may
decide the election petition on merit without
going into the question of limitation.
18. In the result, the writ petition is dismissed
and there shall be no order as to costs. The
petitioner, if so advised, may approach the Election Tribunal within a period of 3 (three) weeks
from today. On receipt of the election petition,
the Election Tribunal shall entertain the same and
decide the matter in accordance with the provisions of law. It is clarified that the Tribunal shall
not reject the election petition on the ground of
limitation.
19. Interim order passed by this Court shall stand vacated on expiry of 3 (three) weeks from today or on the date of filing of the election petition before the Election Tribunal, whichever is earlier. However, the Election Tribunal shall be at liberty to pass any order it deems fit, according to law, uninfluenced by any earlier interim order passed by this Court.