Recourse to Writ Jurisdiction in election matters not appropriate when statute provides an alternative machinery: Supreme Court

A PIL in the SC urging for a direction to allow the four death row convicts in the Nirbhaya case the option of donating their organs after their likely execution

In this case, the order of the Returning Officer who had accepted the nomination of a candidate for the elections of Gram Panchayat was challenged before the High Court which was partly allowed. In appeal before the Apex Court,it was contended that the order of acceptance of nomination papers could not be challenged in a writ petition in view of Article 243-O of the Constitution of India and in view of alternative efficacious remedy provided under the Maharashtra Village Panchayats Act.

Facts of the case

The challenge in the present appeal is to an order dated 10th December, 2018 passed by the learned Single Bench of the High Court of Judicature at Bombay dismissing the writ petition filed by the appellant against an order of disqualification under Section 14B of the Maharashtra Village Panchayats Act, 1959 on account of non-submission of election expenses within the period prescribed. The election of Gram Panchayat, Mugat, Taluk Mudkhed, District Nanded were held on 1st November, 2015. The results were declared on 4th November, 2015. The appellant was elected as a Member of Village Panchayat. The appellant was required to furnish election expenses within 30 days in the manner prescribed by the State Election Commission in terms of Section 14B of the 1959 Act. The appellant submitted expenses with delay of 15 days. The appellant was served with a show cause notice on 3rd March, 2016 as to why she should not be disqualified on account of failure to submit the election expenses. The appellant submitted her explanation that due to ill-health there was a delay of 15 days in furnishing of details of expenses and that delay may be condoned.The Collector as a delegate of the State Election Commission passed an order dated 9th August, 2018 disqualifying the appellant for a period of five years to be a member of Gram Panchayat only for the reason that the appellant has not submitted election expenses within time.

The appeal against such order was dismissed on 19th November, 2018 by the Additional Divisional Commissioner, Aurangabad for the reason that the medical certificate is not issued by the Competent Authority. Learned counsel for the appellant vehemently argued that the appellant was advised to take bed rest on account of hypertension and diabetes, which in fact caused unintended delay of furnishing of election expenses. It is also argued that the appellant is a duly elected member of Panchayat and that an order of disqualification can be passed if the candidate fails to show any good reason or justification for the failure to submit accounts. It is also submitted that there is no finding that the accounts furnished, though with delay of fifteen days, are not proper or not in accordance with applicable rules or instructions. The order of disqualifying her for five years, in fact, jeopardizes her right to contest election until 8th August. It is argued that since the appellant is a duly elected representative of Village Mugat and has been elected in a democratic process, the disqualification for a period of five years without taking into consideration the extent of default and the consequences of disqualification renders the order of disqualification as wholly disproportionate to the deficiency alleged against the appellant. It is argued that an order of disqualification should have been passed without delay and not nearly after 3 years of the elections. It is further argued that disqualification for a period of five years is the maximum period of disqualification whereas in terms of sub-section (2) of Section 14B of the 1959 Act, the disqualification can be for a period less than five years. Therefore, the authority was expected to consider the nature and extent of default and consequent period of disqualification, which should be commensurate with the default found by such authority. However, the question which arises is that whether delay of 15 days necessarily follows the disqualification for a period of five years. Learned counsel for the appellant submitted that the order of disqualification was passed by the Collector approximately 3 years after the election and there were only two dates of hearing for more than two years apart. Therefore, inordinate delay in pronouncing the disqualification order on the part of the Collector severely prejudices the appellant as the period of disqualification starts from the date of the order. 

Constitutional Provisions

The 73rd Constitutional Amendment inserted Part IX in the Constitution of India. Article 243-O of the Constitution of India as inserted provides that no election to any panchayats shall be called in question except by an election petition presented to such authority and in such manner as provided for by or under any law made under the legislature of the State. Article 243-O of the Constitution of India reads as under:

“243-O. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution-

  • 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;
  • “no election to any Panchayats 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.”

In terms of such constitutional provisions, Section 15A was inserted by Maharashtra Act No. 21 of 1994. The dispute in the present appeals does not pertain to election to either House of the Parliament but to a local body. The constitutional bar is contained in Article 243-O of the Constitution of India in furtherance of which Section 15A was inserted in the year 1994. Section 15A of the 1959 Act reads thus:-

“15A. Bar to interference by Court in electoral matters.-

No election to any Panchayat shall be called in question except in accordance with the provisions of Section 15; and no court other than the Judge referred to in that Section shall entertain any dispute in respect of such election.”

Order of the Court

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL

APPEAL NO. 1622 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 16837 OF 2019 LAXMIBAI …..APPELLANT(S)

VERSUS

THE COLLECTOR, NANDED & ORS. …..RESPONDENT(S)

It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference. Consequently, the order passed by the Collector on 3rd November, 2014 and subsequent orders in appeal and in the writ petition are set aside in part to the extent of prescribing disqualification for a period of five years and the matter is remitted to the Collector totake into consideration the nature of default, the purport for which the election expenses are sought to be furnished and that the order of disqualification operates from the date of the order including delay in passing the order of disqualification. The Collector shall pass the order afresh in respect of period of disqualification in accordance with law preferably within a period of one month from the date of receipt of copy of this judgment. The period of disqualification, if any, will be operative from the date of the order passed earlier by the Collector on 3rd November, 2014 and that any elections held as a consequence of the order of disqualification will abide the final order to be passed by the Collector.

……………………………J. (A.M. KHANWILKAR) 

 …………………………………J. (HEMANT GUPTA) 

……………………….J. (DINESH MAHESHWARI)  

NEW DELHI; February 14, 2020.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

SOMA SINGH
I am Soma Singh from Sharda University School of Law, my interest areas are Corporate law, jurisprudence and ADR. I describe myself as an ambivert. Enjoys reading mythological tales