Judgment:
Shivashankar Bhat, J.
1. All these appeals are by the contesting respondents in the Writ Petitions, whose elections as Pradhana or Upa-Pradhana of respective Mandal Panchayats (for short 'the Panchayats or the Panchayat') were set aside, with a direction to declare the results of the respective elections afresh, consequent upon quashing the nominations made to the Panchayats, by the Adhyakshas of Zilla Parishads, under Section 5(3) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (referred as 'the Act').
2. The main question to be decided is whether declaration of the result of an election to the Office of Pradhana or Upapradhana can be set aside in a Writ Petition, without the aggrieved party resorting to an Election Petition as provided by the Act and the relevant Rules called 'The Karnataka Mandal Panchayats (Election of Pradhana and Upapradhana) Rules, 1987' (for short as 'Election Rules').
3. The elections to Panchayats were held in January 1987. The Panchayat stands constituted immediately on publication of the elected members numbering two-thirds of the membership 9f Panchayat as per Section 5(8) of the Act. Section 5(3) of the Act, provides for nomination of two Members belonging to Backward classes, in case, no Member of the said class is elected as a Member of the Panchayat at the election. The Act also envisages the election ot Pradhana and Upapradhana, at the earliest, on the Panchayat coming into existence and the first meeting of the Panchayat has to be to elect the Pradhana. The first meeting is to be within four weeks of the Constitution of the Panchayat under Section 43.
4. In these cases it is the assertion of some of the Writ Petitioners that, in many Panchayats, the party in power in the State could not command majority of elected Members and in these cases before us, there were equality of strength or the Congress had a marginal majority. Therefore, elections to the Office of Pradhana and Upapradhana were not held, immediately, as envisaged by Sections 42 and 43 of the Act. The Adhyakshas of the respective Zilla Parishads are alleged to belong to the Ruling party; therefore, through such Adhyakshas nominations were made to these Panchayats purporting to be under Section 5(3), resulting in upsetting the respective strength of parties in these Panchayats. Thereafter, during third week of April 1987, meetings of the Panchayat Members were called to elect the Pradhana and Upapradhana. In all these cases, the persons declared as successful candidates, succeeded to the respective Offices only by virtue of the votes cast by the nominated Members and as such the results of these elections were materially affected by the participation of illegally nominated Members.
5. In the Writ Petitions, petitioners sought the quashing of these nominations as without jurisdiction and consequently sought the setting aside of the declarations of the results of the elections held to elect the Pradhana or Upapradhana. The Writ Petitions having been allowed, the affected respondents in the Writ Petitions have filed these appeals.
6. It was argued en behalf of the appellants, that-
(i) The election held under a Statute can be challenged only as provided by the Statute, in the forum created by it and therefore, Writ jurisdiction is not available to set at naught the result of such an election;
(ii) The grounds and jurisdiction to set aside an election are entirely statutory, being incidental to the right to contest the election created by the said statute.
(iii) By virtue of Section 55 of the Act, the proceedings in which the nominated Members participated will be valid and these 'nominated Members' cease to be Members only on the setting aside of the nominations by a competent Court, Tribunal or Authority,
(iv) There has been delay in approaching this Court and therefore the Writ jurisdiction should be denied to the petitioners.
(v) In case the results of the elections were materially affected by the votes of the illegally nominated Members, as a consequence, fresh elections should have been ordered, and the directions to alter the results of the elections already held by deleting the votes of these nominated Members, was not proper.
7. In NINGAPPA RAMACHANDRA GURAV v. STATE OF KARNATAKA : ILR1988KAR1348 etc. etc. decided on 14th September, 1987, a learned single Judge of this Court held that the nomination of Members under Section 5(3) is a power vested exclusively in the Zilla Parishad as a body and it cannot entrust the said power to its Adhyaksha; consequently the nominations made by the Adhyakshas were set aside. At para-27 of the said order, the elections of Pradhana and Upapradhana, elected at the meeting in which those nominated Members participated, were also set aside, with a direction to hold fresh elections. In Appeal, we affirmed the decision on the question of setting aside the nominations made by the Adhyakshas, in the decision reported in STATE OF KARNATAKA v. NINGAPPA RAMACHANDRA GURAV : ILR1988KAR1380 decided or 30th March, 1988. The effect of the participation by those nominated Members, in the election to elect the Pradhana and Upapradhana was not argued in those appeals.
8. The Panchayat is a statutory body as it is constituted and incorporated under the provisions of the Statute (the Act), The Act envisages the constituents of the Panchayat, to be duly elected, or to be lawfully nominated under circumstances stated in Section 5(3) and in the manner provided therein. Constituents of the Panchayat are its Members. As per Section 5(9) names of Members elected or nominated are published by the Deputy Commissioner. As per Section 5(8), the normal rule is, that, a Panchayat is deemed to have been duly constituted, when two-thirds of the total number of Members of the Panchayat are elected. Reading these two Sub-clauses of Section 5 together, it is clear that on publication of two-thirds of the total number of Members of the Panchayat, by the Deputy Commissioner, the Panchayat is deemed to have been constituted. As per Section 40, inter alia, the term of Office of a Member commences on the date of publication of his name under Section 5(9) and the Office is to be held for a period of five years as per Section 39 (except in the case of a Member who enters Office to any vacancy).
9. Sections 42 & 43 pertain to the elections of Pradhana and Upapradhana. Section 42 states that every Panchayat 'shall as soon as may be', choose two of its Members as Pradhana and Upapradhana. Section 43(1) directs the calling of the first meeting of the Panchayat, on its establishment, to be within four weeks from the date of commencement of the term of Office of the Members of Panchayat and the meeting 'shall proceed to elect the Pradhana.' In this first meeting to elect the Pradhana, the Prescribed Officer has to preside.
10. The scheme of the Act is to have the election of the Pradhana within four weeks of the commencement of the term of the Members of the Panchayat numbering atleast two-thirds of its total strength. This has been so provided, obviously because of the important functions entrusted to the Pradhana under the Act. The Panchayat shall meet atleast once a month, and at such time as the Pradhana may determine (vide Section 50). Some of the functions of the Pradhana are enumerated under Section 61 (in addition to those stated in Sections 53 and 54). Upapradhana has to discharge the functions of the Pradhana when Pradhana is absent. It is obvious that the Office of Pradhana is an essential functional organ of the Panchayat, without whom, the Panchayat cannot discharge its statutory duties and responsibilities. Provision is also made for an alternative functionary to take over during the absence of the Pradhana.
11. Chapter IV, commences with Section 56, enumerates the functions of the Panchayat. There is no doubt that it is the local Government at, what is popularly called, the grass-root level. Provision is also made to have a stable Pradhana, by inbuilt safeguards, against frequent changes in the person of Pradhana. Pradhana or Upapradhana is elected by a simple majority of those who were present at the meeting held for the said purpose. The term of Office of Pradhana or Upapradhana is co-extensive with the term of his Membership of the said Panchayat (Section 44). But, the Pradhana continues to carry on the current duties of his Office until such time as a new Pradhana is elected and takes over charge. Motion of no-confidence against a Pradhana or Upapradhana is provided under Section 47. The provision requires a written notice of intention to make the motion signed by not less than one-half of the total number of Members. The meeting has to be convened by the Deputy Commissioner as per Section 47(3) who shall preside over the meeting and the quorum for such meeting, shall be two-thirds of the total number of the Members of the Panchayat. The motion of no-confidence is carried only if it is supported by not less than two-thirds of the total number of Members of Panchayat. Thus a person elected as a Pradhana or Upapradhana, with the backing of a simple majority, cannot be removed by a simple majority. So long as he has the support of Members who constitute just above one-third number of Members of the Panchayat, he could continue as the Pradhana or Upapradhana. This statutory safeguard against the fluctuating loyalties of the Members of the Panchayat, resulting in destabilising the functioning of the institution, is a strong indication of the statutory objective, to have a continuity in the Office of Pradhana Upapradhana who is elected at the first meeting of the Panchayat, held as per Section 43 of the Act. From this scheme of the Act, inference is inevitable, that, a candidate who contests at the election for the Office of Pradhana or Upapradhana, held under Section 43, has a substantive statutory right accrued to him, that is to say, a success to get a simple majority of votes at the said meeting results in the candidate not only entering the Office of Pradhana or Upapradhana, but enables him to continue to hold the Office with stability. The success at this election depends on those who cast their votes. If persons who are patently ineligible to function as Members are allowed to participate in the election meeting as Members, and their voting materially affected the result of the election, it cannot be said that there was a valid election of the elected candidate.In other words, persons who claim themselves to be Members of the Panchayat, if cannot be statutorily permitted to be treated as Members when their assumption of Office as Members was void ab initio, the votes cast by them at the election meeting have to be ignored and the result of the election has to be re-done, by discarding those votes. It is only by this process, the situation envisaged by the Act, to have an early election of the Pradhan/Upapradhana under Section 43 of the Act read with other provisions referred to above, can be restored and the statutory objective be realised.
12. The question then will be, whether the declaration of such an election has to be undone, only as provided by the statute and if the statute is silent to cover the particular situation, whether this Court can be approached under Article 226 of the Constitution of India.
13. Before answering this question, two subsidiary questions having a bearing on the problem has to be considered) i.e., what is to be done if at the meeting held to elect a Pradhana or a Upapradhana, a person elected as a Member, participates and whose vote had a decisive effect on the result of the election, but his eligibility to be a Member either due to disqualification or due to election malpractices, is challenged? Is the position of an illegally, nominated Member same as the position of an elected Member for the purpose of considering the validity of the votes cast
In this regard we find a distinction, between, a person who gets elected to the Panchayat, and a person who is nominated as a Member under Section 5(3) of the Act. The eligibility of the person who contests the election, prima facie, is examined at the time of his nomination and acceptance of his nomination by the Returning Officer (vide The Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985. He undergoes the trial of an election and on the declaration of his election, prima facie, has the seal of approval of a substantial number of voters. Until his election is set aside as provided under Sections 14 to 18, he continues to be the Member. Acceptance of his nomination by the Returning Officer cannot be dubbed as an act without jurisdiction. If the candidate, at the election, indulges in malpractices, again, it cannot be held that the declaration of his election was without jurisdiction. Only on proof of the grounds enumerated in Section 18, the elected Member loses his Office. The statute has provided for challenging his election, by providing the forum under Section 14 (i.e., the Munsiff), the contents of an election petition and the relief that may be claimed (Section 15) and the grounds on which election can be challenged (Section 18). The statute has thus elaborately provided for the election, the eligibility governing the candidates and the circumstances under which the election of a Member can be nullified. The enforcement of the statutory rights and duties, are thus statutorily regulated. But the provisions governing a nominated Member are quite different. The nomination involves investigation into certain facts and choice of persons to be nominated. The statute has entrusted, the power to make the nomination, with the Zilla Parishad as a Body (which is also an elected body under the Act). The publication of the name of the nominated Member under Section 5(9) of the Act is a ministerial act of the Deputy Commissioner, who has no discretionary power to withhold the publication of the name sent on behalf of the Zilla Parishad. Unlike the provisions of Sections 14, 18 etc., where the eligibility of the elected Member and the validity of his election can be examined, no forum is found in the Act to examine the validity of the nomination of a Member by a person incompetent to nominate. An elected Member continues to function validly, until his election is set aside under the Act. But, the Act is silent as to the effect of an incompetent nomination of a Member under the Act and in such a situation, as will be presently explained, the incompetent nomination results in a void act, which cannot clothe the nominated Member with any legal status as a Member and cannot be treated as a 'Member' in the eye of the law.
RE. CONTENTIONS (i) & (ii):
14. An attempt was made by a few learned Counsel to bring the case within Section 43(2) read with Rule 10 of the Election Rules to establish that an effective forum was available under the Act to challenge the result of such an election held by the participation of illegally nominated Members. Though Section 43(2) creates a forum (without designating it) to resolve an 'election dispute', the grounds under which the election can be challenged are not enumerated. The State Government assumed a power in itself, to enumerate the grounds for an election petition, while making the Election Rules. Under Rule 10, the Munsiff can declare the election of the Returned candidate, invalid if the result of the election is materially affected, by the following factors:
(i) By the improper reception or refusal of a vote;
(ii) By non-compliance with the provisions of the Act or of any of the Election Rules.
It was contended that if the nomination under Section 5(3) was invalid, the case would fall under the clause 'non-compliance with the provisions of the Act or of any of the Election Rules' arid the votes cast by such nominated Members will have to be treated as having 'improperly received'. Thus, it was urged that an election petition lay, to challenge the results of the elections in these cases.
15. Scope of a similar provision under Section 100(1)(d) of the Representation of the People Act, 1951 came up before the Supreme Court, in a few decisions cited before us:
(i) In BAIDYANATH PANJIRA v. SITA RAM MATHO AND ORS : [1970]1SCR839 . the election to the Legislative Council from the Local Authorities Constituency was involved. Some of the voters were included by the Electoral Registration Officer in the Voters' list after the last date for making the nomination was over. Their votes tilted the result of the election. The unsuccessful candidate challenged the declaration of the result of the election by means of an Election Petition. Supreme Court held that, the provisions of the relevant statute did not permit the Registration Officer to amend, alter or modify the Voters list after the last date for filing the nomination paper. Therefore, the addition of names in the Voters' list after the said date was held to be without jurisdiction and hence the votes of those persons had to be excluded from being considered as validly cast. Consequently the result of the election was held as having been materially affected, by the counting of void votes.
This case supports the proposition that the Voters' list as stood before the last date for filing the nomination, has to be the legally recognised Voters' list; the amended list had to be ignored. There was no question of the Election Tribunal deciding the eligibility of the Voters, as Voters. The basic question pertained to the Voters' list that should have been acted upon. The list that came into existence after the prescribed date had no validity, as per Section 23(2) of the relevant Act involved there.
(ii) In NRIPENDRA BHADUR SINGH v. JAI RAM VERMA AND ORS : [1978]1SCR208 . again, the result of an election to the Legislative Council from the Local Authorities Constituency, was involved. The votes cast by a few persons whose names were found in the Voters' list, were sought to be excluded in the election petition, on the ground that those persons had, by that time ceased to be eligible to be included in the Voters' list. At para-20, the Supreme Court held, --
'It is not disputed that the persons whose names were recorded in the electoral roll and participated in the voting were not disqualified under Section 16 of the 1950 Act. That being the position it would have been wrong on the part of the Presiding Officer not to allow the voters whose names were recorded in the electoral roll of the constituency to participate in the voting, even though their names could have been earlier at the appropriate time legitimately excluded from the electoral roll. These voters are electors within the meaning of Section 2(1)(e) of the 1951 Act and were entitled to vote under Section 62 of the 1951 Act'.Then at para-25 Supreme Court concluded:
'Thus in a catena of cases this Court has consistently taken the view that the finality of the electoral roll cannot be Challenged in an election petition even it certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that dead line the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification under Section 16 of the 1950 Act.'The ratio of this decision is that the correctness of the inclusion of the name of a voter in the Voters' list before the last date for filing the nomination, cannot be questioned in the election petition.
(iii) In NARENDRA MADIVALAPPA KHENI v. MANIKRAO PATIL AND ORS : [1978]1SCR193 . the Supreme Court held that the inclusion of the name in the Voters' list after the last date was illegal. Here also, the fact situation and the proposition of law involved were substantially similar to the case decided in : [1970]1SCR839 (Baidyanath's case).
These decisions were based on the provisions of the Representation of the People Act and the relevant provisions of the Constitution. A wrong inclusion of a name in the Voters' list, within the prescribed date, would give the person so included a right to vote. The election process has to be carried on and concluded on the basis of the list finalised before the prescribed date. However, if the Voters' list is altered after the prescribed date and it is acted upon at the election, the Election Tribunal had competence to set at naught the result. These decisions read with other decisions of the Supreme Court such as PONNUSWAMI'S CASE : [1952]1SCR218 and Indrajit Barua's case, in clear terms bar, all jurisdictions to examine the validity of an election to Parliament or State Legislatures, except by way of an Election Petition under Representation of the People Act, 1950 and the grounds of challenge were held to be exhaustive as enumerated in the said enactment. In INDRAJIT BARUAS CASE : AIR1986SC103 Supreme Court referred to a passage from Halsbury's Laws of England, enunciating as to when the process of election commences; it reads, -
'Although the first formal step in every election is the issue of the Writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is 'reasonably imminent'. Neither the issue of the Writ for the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the Writ. The question when the election begins must be carefully distinguished from that as to 'when the conduct and management of' an election may be said to begin. Again the question as to when a particular person commences to be a candidate is a question to be considered in each case.'Thereafter, Supreme Court proceeded to say --'We are not prepared to take the view that preparation of electoral rolls is also a process of election. We find support for our view from the observations of Chandrachud, C.J., in Lakshmi Charan Sen's case- (AIR 1985 SC 1233) (supra) that 'it may be difficult, consistently with that view, to hold that preparation and revision of electoral roll is a art of 'election' within the meaning of Article 29(b).'
16. From the above decisions, it follows that, (i) the Election Tribunal cannot, set aside an election on the ground that the Voters' list was defective, and (ii) the preparation of the Voters' list is a process anterior to the commencement of the election process; and (iii) if the Voters' list is altered after the prescribed date, the said list cannot be acted upon and the election would be set aside if such reliance materially affected the result of the election.
17. L. SHIVANNA v. STATE OF KARNATAKA : ILR1988KAR2121 is a decision of a Division Bench of this Court. The question pertained to the validity of the electoral roll comprising of the Members of Zilla Parishad, Members of Legislature and of Parliament, prepared in connection with the election to the Legislative Council. While overruling the preliminary objection against the maintainability of the Writ Petition, the Division Bench concluded at page 2151, after referring to HARI PRASAD v. V.B. RAJU : [1974]1SCR548 thus:
'This decision makes it clear that the only course open to a vigilant citizen is to have the illegality rectified before the election and if not done, as far as the Election Tribunal is concerned, it had no jurisdiction to go into any question relating to the legality of the electoral roll.'
The Division Bench also held that the preparation of the electoral roll was not part of the election process and hence the legality of the electoral roll cannot be the subject matter of an election dispute. Hence Writ Petition was held maintainable.
18. Relying on the above principles, it was argued by the learned Counsel for the respondents that, the validity of the list of Members of the Panchayats caused by the publication under Section 5(9) of the Act cannot be gone into by the Munsiff under Rule 10 of the Election Rules, the said publication being anterior to the commencement of the election process to elect the Pradhana and Upapradhana. Therefore, a failure to act according to the mandate of the Statute, in the matter of nominating the Members under Section 5(3) will be entirely outside the purview of the Munsiff functioning under Rule 10. We find considerable force in this contention. The illegality in making the nominations under Section 5(3), is independent of the election process to elect the Pradhana and Upapradhana. The Act has not provided any remedy against any illegality committed in making the nomination under Section 5(3) of the Act. In the absence of any such statutory forum, High Court has to step in to keep the statutory authorities within their bounds and set at naught any ultra vires Act.
19. It was argued that the rights and remedies under an election law are interlinked and there cannot be any other forum to examine the validity or result of an election other than the one provided by the Statute. The decision of the Supreme Court in NANHOO MAL AND ORS. v. HIRA MAL AND ORS : [1976]1SCR809 . was referred in this connection with emphasis on the following observations at page 2142:
'Thus the only way by which the election of a President can be called in question is by means of an election petition presented in accordance with the provisions of this Act. The election itself can be questioned only on one of the three grounds mentioned above. The only ground in the present case on the basis of which the election of the appellant was questioned is that there was a non-compliance with the provisions or Rule 6, already referred to. Under the Act the non-compliance with any rule or order made under the Act or any provision of the Act does not ipso facto result in the election being set aside. That result can be set aside only if the Election Tribunal comes to the conclusion that the result of the election has been materially affected by such non-compliance. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge. In the circumstances there was no room for the High Court, exercising its powers under Article 226 in order to set aside the election. In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge.' : [1976]1SCR809
The facts; therein, were:
Steps were taken to fill up a casual vacancy in the Office of the Municipal Board, by holding an election. At this stage, Hiralal filed a Writ Petition in the High Court challenging the validity of the procedure adopted, on the ground that the procedure did not conform to the relevant statutory Rules. However, High Court did not stay the election and consequently election was held in which Nanhoo Mal was elected, and he was impleaded as a respondent. The Writ Petition was allowed by the High Court. This was challenged in appeal before the Supreme Court. Section 43-B of the relevant Act therein was as a negative language as --
'No election of the President shall be called in question except by an election petition presented in accordance with the provisions of this Act.'
In this background, Supreme Court proceeded to say the words extracted toy us already above to the effect that the only mode prescribed to challenge the election was by means of an election petition and all other means were barred. The Statute confined the grounds on which the election can be challenged. The observations in Ponnuswami's case was referred to the effect that 'all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted.' At Para-5, after stating that the right to contest an election is a statutory right and subject to all the limitations imposed by Statute, it was held:
'It follows that the right to vote or stand for election to the Office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the Office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswami's case : [1952]1SCR218 (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account; The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider. All the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of Courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies.'
It was argued that this decision, applies the principle stated in Ponnuswami's case to other kinds of elections and is an authority for the proposition that the election to any body held under a Statute can be challenged only under the Statute and in no other way; Writ jurisdiction cannot be extended over such matters.
20. This decision has to be understood in the background of the Statute involved and the stage at which the High Court was approached under Article 226 of the Constitution. The Statute categorically barred by express terms, any challenge to an election except by means of an Election Petition under grounds enumerated therein. The bar expressed in Section 43-B of the Statute involved, in substance reflected the same bar created by Article 329 of the Constitution, in respect of elections to the legislatures. In these cases, before us, such an express bar is not stated in Section 43(2) of the Act. It provides for a forum to decide an election dispute under certain circumstances, without barring any other remedy. Further, the Writ jurisdiction is not invoked in this case at any intermediate stage. Thirdly, grounds on which the election can be set aside, stated in Rule 10 is wholly insufficient to meet all the situations. In these cases, primary relief is against the nominations of the persons as Members under Section 5(3) of the Act by the Adhyakshas of Zilla Parishads and the relief regarding the election is only consequential thereto so far as the result of the election is concerned. The Act is entirely silent as to how the nominations can be questioned under the Act. Therefore, it has to be held that the Writ jurisdiction is the only forum to challenge the nominations.
21. A few more citations will have to be referred. S.T. MUTHUSWAMI v. K. NATARAJAN AND ORS : [1988]2SCR759 . pertained to the election to the Office of the Chairman of a Panchayat Union. The opening para of the Judgment of Supreme Court itself poses the question involved as 'whether it is appropriate for the High Court to interfere with an election process at an intermediate stage after the commencement of the election process and before the declaration of the result of the election held for the purpose of filling a vacancy in the Office of the Chairman of a Panchayat Union under the provisions of the Tamil Nadu Panchayat Act, 1958 on the. ground that there was an error in the matter of allotment of symbols to the candidates contesting at such election.
At para-3, the Supreme Court has quoted the relevant Rules, which is in prohibitive terms, stating that no election held under the Act involved therein, shall be called in question except by an election petition. Mistake in the allotment of symbol, if committed, was held to be a non-compliance with the provisions of the Act or the Rules and the election could be set aside only if the said mistake materially affected the result of the election. Hence, the appropriate forum was held to be the Election Tribunal constituted by the Act to be resorted to after the election. At para-5, Supreme Court refers to the power of the High Court under Article 226 of the Constitution, as the one which cannot be overridden by the State Government, but, it was observed:
'It may, however, be taken into consideration in determining whether it would be appropriate for the High Court to exercise its power under Article 226 of the Constitution of India in a case of this nature.'
Again, at para-7 after referring to Ponnuswami's case earlier, it is held:
'It is thus seen that in the above decision (which was rendered by the Full Court) this Court first laid down as a matter of general principle that interference with an election process between the commencement of such process and the stage of declaration of result by a Court would not ordinarily be proper and next laid down that Article 329(b) of the Constitution had the effect of taking away the jurisdiction under Article 226 of the Constitution also in respect of the disputes arising out of election during the said period.'
Subsequently at para-13, the observations of a Full Bench of Madhya Pradesh High Court was referred, which again Indicates that the election disputes should normally be resolved in the manner laid down by the law governing the said election and a passage from SANGRAM S1NGH v. ELECTION TRIBUNAL, KOTAH : [1955]2SCR1 is extracted which ends with the sentence - therefore, Writ Petitions should not be lightly entertained in this class of cases. The conclusion at para-15, is again, entirely on the facts of the case.
The above decision of Supreme Court in Muthuswami's case is not an authority for the proposition that, the High Court under no circumstances, should interfere with the result of an election under Article 226 of the Constitution of India. The principle derived from this decision, as in the case of Nanhoo Mal's case, is that, the High Court shall not interfere with the election process at an intermediate stage and if the Statute in question has provided an effective forum to resolve the election dispute, parties should be relegated to the said forum, existence of an effective statutory remedy should be considered to decline the discretionary Writ Jurisdiction.
22. THE ELECTION COMMISSION OF INDIA v. SHIVAJI AND ORS : [1988]1SCR878 . is, again, a case involving the exercise of Writ jurisdiction by the High Court, interfering at an intermediate stage, with the election process to the Legislative Council and the interference by the High Court was held to be unjustified.
23. Paras 91 to 93 in MOHINDER SINGH GILL AND ANR. v. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND ORS : [1978]2SCR272 . was also cited. Here Writ Petition was held as not maintainable in view of Article 329 of the Constitution and the availability of an effective remedy to challenge the election before the Election Tribunal. It was suggested by the learned Counsel for the respondents that, but for the bar under Article 329, the Writ Petition would have been entertained in the said case and that in a case where there is no remedy for an injury, this Court should entertain the petition to grant the relief.
24. K.K. SHRIVASTAVA etc. v. BHUPENDRA KUMAR JAIN AND ORS AIR 1977 SC 1203. was another decision cited on behalf of the appellants. High Court entertained a Writ Petition involving an election dispute in respect of an election held to the Bar Council. The Supreme Court held that the relevant law provided an effective forum to resolve the election dispute and therefore, High Court erred in entertaining the Writ Petition. On facts it was found that an election petition was also pending before the Tribunal constituted under the relevant Rules. At para-4, it was observed:
'It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a Writ Petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore a Writ Petition will lie, is a fallacious argument. It is important to notice what the High Court has overlooked is that the period of limitation prescribed by the Rules is 15 days and if Writ Petitions are to be entertained long afterwards it will stultify the statutory provision. Again in the present case an election petition covering the same subject-matter is actually pending. There is no foundation whatever for thinking that where the challenge is to an entire election then the Writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise.'
This decision requires the High Court not to interfere in an election dispute, directly under Articles 226 of the Constitution, if an effective alternative remedy is available.
25. BAR COUNCIL OF DELHI AND ANR. etc. etc. v. SURJEET SINGH AND ORS : [1980]3SCR946 . clearly illustrates that the Writ jurisdiction to interfere with the statutory elections is not at all barred. For the election to the Delhi Bar Council, a defective electoral roil was prepared under an illegal Rules. After the elections, they were successfully challenged by means of Writ Petitions. Repelling the plea against the maintainability of Writ Petitions, at paras 11 and 12 Supreme Court observed:
'The contesting respondents could not be defeated in their Writ Petitions on the ground of estoppel or the principle that one cannot approbate and reprobate or that they were guilty of laches. In the first instance some of the contesting respondents were merely voters. Even Shri Surjeet Singh in his Writ Petition claimed to be both a candidate and a voter. As a voter he could challenge the election even assuming that as a candidate after being unsuccessful he was estopped from doing so. But to be precise, we are of the opinion that merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be stopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation of the same time in such a case. A voter could come to the High Court even earlier before the election was held. But merely because he came to challenge the election after if was held it cannot be said that he was guilty of any laches and must be non-suited only on that account.'
'There is no substance in the last submission made on behalf of the appellants. The manner of resolving disputes as to the validity of election is provided for in Rule 34 of the Delhi Bar Council Election Rules. This is not an appropriate and adequate alternative remedy to defeat the Writ Petitioner on that account. Firstly, no clause of Rule 34 covers the challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid. Our attention was specifically drawn to Clause (8) of Rule 34 which says:-
'No petition shall lie on the ground that any nomination paper was wrongly rejected or the name of any voter was wrongly included in or omitted from the electoral roll or any error or irregularity which is not of a substantial character.'As we have said above, it is not a case where the name of any voter was wrongly omitted from the electoral roll but it is a case where the preparations of the whole electoral roll was null and void, because of the invalidity of the impugned proviso.'
Again at page 1621, it was held, --
'But if the nature and the ground of the challenge to the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of Writ Petition to challenge the whole election is still available.'
26. Therefore, if the statutory Tribunal is not competent to examine the legality of the declaration of the result of an election, the aggrieved persons cannot be denied relief by refusing the Writ jurisdiction. We have already noticed the language of Rule 10 of the Election Rules and its inadequacy to deal with the situation arisen in these cases before us. The Munsiff constituted as the forum to resolve the election dispute has no power to examine the validity of the nomination of Members purported to have been made under Section 5(3) of the Act. The voting's of the persons who clothed themselves as nominated Members, materially affected the declaration of the results in some of the elections of Pradhana or Upapradhana. In the circumstances, we are of the view, that, injustice will get perpetuated, if we decline to interfere in these proceedings and grant the relief sought in the Writ Petitions.
27. Consequently we hold that the Writ Petitions out of which these appeals have arisen, are maintainable and the petitioners are entitled to seek redress from this Court.
28. There is no dispute that the impugned nominations were made by the Adhyakshas and therefore, they were illegal. When a person lacking in authority to make the nomination, purports to exercise the said power and nominate the persons to be Members of Panchayats, such nominated Members, would not attain any legal status. The nominations are ultra vires acts and are void. Declaration of the invalidity of the nominations strikes at the root of the respective nominations, resulting in the declaration that the nominations were void ab initio. Therefore, those nominated persons had no legal status to participate in the elections to elect the Pradhana and Upapradhana and their votes will have to be excluded and fresh declarations of the results of the elections have to be made.
RE. CONTENTION (iii):
29. It was argued that Section 55 of the Act saves the validity of the proceedings of a Panchayat notwithstanding the disability or ineligibility of any Member participating in it. Section 55 reads thus:-
'55. Validity of proceedings:
(1) No disqualification of or defect in the election or appointment of any person acting as Member, or as the Pradhana or Member of a Committee of a Mandal Panchayat appointed under this Act shall be deemed to vitiate any act or proceeding of the Mandal Panchayat or any such Committee, as the case may be, in which such person has taken part whenever the majority who were parties to such act or proceeding were entitled to act.
(2) No resolution of a Mandal Panchayat or of any Committees of a Mandal Panchayat constituted under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any Member provided that the proceedings of the Mandal Panchayat or Committee were not prejudicially affected by such irregularity.
(3) Until the contrary is proved, every meeting of a Mandal Panchayat or of a Committee of a Mandal Panchayat constituted under this Act in respect of proceedings whereof a minute has been made and signed in accordance with this Act, shall be deemed to have been duly convened and held and all the Members of the meeting shall be deemed to have been duly qualified, and where the proceedings are the proceedings of a Committee, such Committee shall be deemed to have been duly constituted and to have had the power to deal with matters referred to in the minute.'
(A) During any vacancy in a Mandal Panchayat or Committee of a Mandal Panchayat, the continuing Members may act as if no vacancy had occurred.'
30. The participation in the election proceeding by persons who purport to be the Members by virtue of a void nomination under Section 5(3) cannot be equated to participation by Members. These persons cannot be treated as Members of the Panchayat at all, in view of the invalidity of their nominations, at the very inception. Hence this Section cannot be attracted. Already we have observed that there is a difference between a Member who is elected and as such continues to be a Member until his election is set aside by recourse to the provisions of the Act and a person who is nominated as a Member by an incompetent authority. When the nomination is declared by this Court as invalid, on the ground that the power under Section 5(3) was exercised by an incompetent person, the nomination becomes void ad initio and no nomination existed in the eye of the law. As Wade in his Administrative Law (5th Edition) states at page 310:
'Action which is ultra vires is unauthorised by law, outside jurisdiction, null and void, and of no legal effect.'
Earlier at page 39, the eminent Author states, --
'An act which is for any reason in excess of power (whatever) is often described as being 'outside jurisdiction.' 'Jurisdiction in this context, means simply 'power'....'. Any administrative act or order which is ultra vires or outside jurisdiction is void in law, i.e., deprived of legal effect. This is because in order to be valid it needs statutory authorisation, and if it is not within the powers given by the Act, it has no legal leg to stand on.'
Therefore, it is not possible to accept the plea of the appellants, based on Section 55 of the Act.
31. Our conclusions are:
(i) The Election Rules, do not provide for setting aside the nomination of Members made under Section 5(3) of the Act, since, nomination of a Member under Section 5(3) is anterior to the commencement of the election process. There is also no provision in the Act to challenge the validity of such nominations.
(ii) The nominations made by the Adhyaksha purporting to act under Section 5(3) of the Act, is an exercise of power not vested in the Adhyaksha and hence the nominations were void ab initio.
(iii) The votes, cast by the illegally nominated Members cannot be counted for the declaration of the result of an election to elect the Pradhana or Upapra-dhana, and therefore, the declaration of the result of such an election can be challenged by recourse to Article 226 of the Constitution of India, while challenging the nominations under Section 5(3). RE: CONTENTION (iv):
32. Some of the learned Counsel for the appellants questioned the maintainability of the Writ Petitions on the ground of delay. It was argued that the Writ Petitions were filed after the learned single Judge quashed the nominations in Ningappa's case (14th September, 1987). A perusal of the paper books filed in these Writ Appeals by the appellants, does not indicate that such a plea was taken in most of the Writ Petitions nor was the plea argued before the learned single Judge. Similarly the memorandum or appeals in most of these appeals, are silent as to this plea. Learned single Judge did not accept the plea of delay wherever it was argued in the Writ Petitions.
Delay, by itself is not a ground to reject a Writ Petition. It is not a case of a bar of limitation. Delay in approaching this Court, resulting in laches on the part of the petitioner, is not an absolute ground, to refuse the exercise of the discretionary Writ jurisdiction. In case, the conduct of the petitioner, in keeping quiet creates any equity in favour of the respondent or interest of third party is allowed to come into life or for such other similar reasons grant of relief to the petitioner will cause undue hardship or affect public interest, the procrastination of the petitioner in approaching this Court is a factor to deny the relief under Article 226 of the Constitution.
TILOKCHAND MOTICHAND v. H.B. MUNSHI : [1969]2SCR824 involved the question as to whether a petition under Article 32 could be rejected on the ground of delay. Since Article 32 itself is part of fundamental rights, it was argued that no petition can be rejected on the ground of delay, since, such a dismissal itself will be a negation of the fundamental right. This plea was rejected by the majority. Hidayatulla, C.J. observed at para-17:
'The party claiming Fundamental Rights must move the Court before other rights come into existence. The action of Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court.'
At para-10, the learned Chief Justice observed;
'If then there is no period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest Possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of 6 months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction.'
In SHRI VALLABH GLASS WORKS LTD. AND ANR. v. UNION OF INDIA AND ORS. : [1985]155ITR560(SC) , the question was whether refund of tax was grantable in view of the delay in seeking the relief under the Writ jurisdiction. At page 975, it is observed:
'There may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the Court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to be judged on its own facts and circumstances touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc.'
(Underlining is ours)
33. Question of delay was argued before the learned single Judge only in a few cases. In W.P.No. 15957/1987 (W.A.NO. 1160/88, without filing any statement of objections, Writ Petition was argued as belated. However, In the memorandum of Writ Appeal, no such plea is raised. In W.P.NO. 15633/1987 also no statement of objection was filed, and the ground urged was that Writ Petition was not the proper remedy to challenge the result of the election. Only in W.A.No. 1077 of 1988, plea of delay is raised; the Writ Petition was filed within about six months of the election. In the absence of a specific plea by the appellants in the Writ Petition, where they were contesting respondents, the contention now urged, has to be rejected as lacking in vitality. There is nothing in the conduct of the Writ Petitioners to negative the relief sought by them. Interest of third parties, has in no manner, intervened in the meanwhile, after the impugned elections, till date. It is also not shown as to how public interest would suffer by the grant of the reliefs. The plea, thus raised now by the appellants while arguing these appeals, is liable to be rejected. Accordingly it is rejected.
RE CONTENTION (v):
34. It has already been noticed that the voting pattern at the first meeting of Panchayat to eject the Pradhana has a decisive effect on the future continuance in Office of the person, even though he gets a simple majority of votes. The person who gets a simple majority of votes at the said meeting has an almost assured full term of Office, Therefore, if the declaration of the result of the election was affected by the voting of the non-Members (i.e., persons nominated as Members by a void action), the justice of the situation demands restoration of the prospects that would have prevailed on the date of the election. This can be achieved, by undoing the declaration of the results and by excluding the votes of those illegally nominated Members. A recounting of valid votes has to be done. The result of the elections will have to be declared afresh with reference to the valid votes cast for the respective candidates at the election meeting held already.
35. In W.A.No. 1040/1988, the locus standi of the Writ Petitioner is challenged. The Writ Petitioner is not a Member of the Panchayat. He is a voter at the election to the Membership of the Panchayat. The argument of Sri A.B. Patil, learned Counsel for the appellant (who was elected as the Pradhana on the basis of the votes cast by the impugned nominated Members) was, that, the Writ Petitioner had no locus standi to challenge the election of the Pradhana; his right is confined to challenge the nominations of the persons under Section 5(3) of the Act only.
36. We have already held that the Office of Pradhana constitutes an essential organ of the Panchayat. It is a public Office. A voter at the election to elect the Members of the Panchayat cannot be held as lacking in locus standi to seek the consequential relief of a fresh declaration of the result of the election of a Pradhana or Upapradhana when the nomination of Members under Section 5(3) of the Act is successfully challenged.
37. In the result, for the reasons stated above, these appeals fail and are dismissed. In the circumstances of the case, we make no order as to costs.