JUDGMENT
B.L. Hansaria, C.J.
1. All these petitions are relatable to Grama Panchayat and Panchayat Samiti elections, the polling in which shall take place from 20-5-1992. The grievances relate to improper acceptance or improper rejection of nomination papers. We have to decide whether we can entertain these petitions.
2. The subject-matter is governed by the Grama Panchayat Act, 1964 (for short, ‘the Panchayat Act’), or Orissa Panchayat Samit Act, 1959 (hereinafter ‘the Samiti Act,). These are the statutes which have conferred the power of contesting the elections in questioh and have set up a machinery for deciding election disputes. As the relevant provisions to which we shall advert hereinafter are similarly worded in the two statutes which we are concerned, we would be referring to the language used in the Panchayat Act, Section 30 of the Panchayat Act reads as below :
“No election of a person as a member of the Grama Panchayat or as a Sarapanch or Naib-Sarapanch held under this Act shall be called in question except by an election petition presented in accordance with the provisions of this Chapter.”
Section 32 deals with the parties to the petition which states that the petition may be presented by any person who has filed his nomination. Section 39 specifies the grounds for declaring the election void, and Clause (c) of Sub. Section (1) is concerned with the ground relating to improper rejection or acceptance of nomination paper. The aforesaid provisions leave no manner of doubt that the Panchayat Act has provided a machinery for adjudicating the grievance of a person whose nomination has been improperly rejected or when a nomination paper is improperly accepted.
3. It is in this background that we have to decide about the question of entertainability of these petitions under Art. 226 of the Constitution. As is known, Art. 329 (6) of the Constitution has created an embargo in entertaining such petitions by stating that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be pro- vided for by or under any law made by the appropriate Legislature. A Constitution Bench of the apex Court had occasion to deal with this provision as early as 1952 in N.P. Ponnuswami v. Returning Officer Nimakkal. AIR 1952 SC 64, which has been described as a land-mark case in election laws by another Constitution Bench in Mohindar Singh Gill v. The Chief Election Commissioner, AIR 1978 SC 851. Ponnuswami’s case was one which attracted Art. 329 (b). The question is as to whether what was stated in Ponnuswami would apply to the elections at hand. Before we decide this question, it may be pointed out that the word ‘election’ appearing in Art. 329 (b) of the Constitution was stated to cover the entire procedure to be gone through to return a candidate. To put it more clearly, that was stated in Ponnuswami about the word ‘election’ was that in embraces the whole procedure which consists of several stages and many steps including the rejection or acceptance of nomination paper. This interpretation given to the word ‘election’ in Art. 329 (b) would seem to apply to other elections, as would appear from what has been stated by a three-Judge Bench of the apex Court in Nanhoo Mal v. Hira Mal. AIR 1975 SC 2140.
A. Now, we come to Nanhoo Mat, which is a case related to election to local body (Municipal Board in that case), and has relied heavily on what was stated in Ponnuswami. (This case having come to our notice, required the examination of the question of entertainabilitv). it was made clear in para 5 of this judgment that what was stated in Ponnuswami cannot be confined to elections attracting Art. 329. Though we do not find mention about the reason of taking this view, we would venture to think that the same was perhaps taken because in Ponnu- swami, after referring to certain observations made by Lord Cairns ( Lord Chancellor) in Theberge v. Laudry, (1876) 2 A. C. 102, in para 17. the Bench stated as below in para 18 :
“The points which emerge from this decision may be stated as follows : (1) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. (.2) Strictly speaking, it is the sole right of the Legislature to examine, and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.”
4-A. It was the above reading of Ponnuswami, which led the Nanhoo Wal Bench to state as below in para 5 :
“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 is to be presented after the election is over and there is no remedy provided at any intermediate stage……………”
4-B. To appreciate the ratio of Nanhoo Mal’s case fully, it would be necessary to note the facts of that case in detail which are very revealing. What happened there was that the District Magistrate had issued notices to the members of the Municipal Board informing that nomination papers to fill up a casual vacancy in the office of the President of the Board should be filed in his office by 26th September, 1974 and, if necessary, elections will take place on 1st October, 1974. The first respondent thereupon filed a petition under Art. 226 of the Constitution challenging the validity of the procedure adopted by the District Magistrate for holding the election and prayed for an order to the District Magistrate not to hold the election on 1st October, 1974.The objection to the procedure for election was based on the allegation that did not conform to the provisions of a concerned rule. The teamed Judges of the High Court, who admitted the writ petition, did not direct the District Magistrate not to hold the election on 1-10-1974, but stated that the election would be subject to the ultimate decision in the writ petition. Consequently, the election took place and the first appellant was declared elected. Thereafter, the first respondent filed an application for impleading the first appellant and the Municipal Board as parties and also claimed further relief of quashing the election proceedings that took place on 1st October, 1974. The learned Judges allowed the petition and set aside the entire election proceedings relating to the election of the first appellant as the President of the Municipal Board.
5. The High Court’s judgment was challenged in the Supreme Court, who set aside the same. It is pertinent to mention that the afore- said view was taken in Nanhoo Mal despite, the High Court having stated while admitting the petition that the result of the election would be subject to the ultimate decision in the writ petition. Even so, the apex Court took the view that the election of the President could not be challenged by any other way except invoking the provisions of the Act in question. We may with profit refer to what was the provision of challenging election in the case of Nanhoo Mal. There. Section 43-8 (1) of the concerned Act had stated that “(n) election of the President shall be called in question except by an election petition presented in accordance with the provisions of this Act”. It is thus clear that what finds place in Section 30 of Panchayat Act is in pari materia with what incorporated in Section 43-B (1) of the Act which had come up for consideration in Nanhoo Mal, The Court observed in paragraph 3 of that judgment that the jurisdiction to decide the validity of the election of the President is an exclusive one conferred on the District Judge (before whom the election petition was required to be presented by the Act in question). The Court further observed that in the circumstances, there was no room for the High Court exercising its power under Art. 226 in order to set aside the election. This apart, as the relevant statute had provided that in case of any non-compliance with the provisions of any Rule, election could be set aside if the result of the election had been materially affected, it was observed as below in paragraph 3 :
“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 Rula in question, In any case, that is a matter within the exclusive jurisdiction of the District Judge.”
(Emphasis ours)
6. In view of the aforesaid decision, ft has to be held by us that in cases of the present nature the only remedy to be available to an aggrieved person is to challenge the election by way of filing an election petition, and the approach to this Court under Art, 226 is not permissible. Ubi jus ibi remedlum is a known principle, which means there cannot be a” right without a remedy. In the present cases, remedy has been provided by the statute. The question is whether the statutory remedy alone is available or the extraordinary remedy under Art. 226 can be invoked. This matter has also been adverted to in Nanhoo Mal where the Court stated at page 2143 that “the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it”. It was thereafter observed that “it will be a fair inference that when the Act provides for only one remedy” that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage”, that remedy alone has to be taken recourse to. Even so, it was observed in paragraph 5 that “(w) whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Art. 226 in relation to elections is not now necessary to consider”. After stating so, the apex Court further observed in that paragraph that “(a) 11 the considerations applied (in Ponnuswami’s case) 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”,
7. In view of the aforesaid enunciation-of law in Nanhoo Mal, we have not felt it necessary to advert to those cases of the High Courts including that of ours to which our attention has been drawn, which had either been decided before the judgment in Nanhoo Mal saw the light of the day, or afterwards without making reference to Nanhoo Mal. That precisely is the position in so far as the- three decisions of this Court to which our attention has been drawn these being (1) Abhan Singh v. Election Officer, 57(1984) CLT 461, (2) Mahendra Prasad v. Election Officer, 41(1975) CUT 1017 (F.B); and (3) Bichitrananda Parija v. Collector, Cuttack (0. J. C. 1221 of 1992, disposed of on 20-2-1992).
8. We would now address ourselves on the question of alternative remedy. Shri Deepak Misra has taken pains in submitting that in S.T. Muthusami v. K. Natarajan, AIR 1988 SC 616, a two-Judge Bench of the Supreme Court after taking note of Nanhoo Mal cited in paragraph 13 the following observations finding place in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 ;
“…though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of cases.” In paragraph 14, the Court observed that” we ere inclined to accept this view which lays down a salutary principle”. By the time Sangram Singh’s case was decided, Nanhoo Mal was not even born. We may also point out that in paragraph 9 of this judgment, the view taken in Nanhoo Mal about the relevant conclusion in Ponnuswami’s case having been arrived at without taking the provisions of Art. 329 of the Constitution into account was cited with approval. Not only this, the following observations made in Nanhoo Mal at page 2141 were also quoted in paragraph 9 ;
“After the decision of this Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, (1952) 3 SCR 218 .=(AIR 1952 SC 64) there is hardly any room for Courts to entertain applications under Art. 226 of the Constitution in matters relating to elections.”
This observation had been made in Nanhoo Mal after stating that the whole approach of the learned Judges ot the High Court to the problem at hand was mistaken.
9. Despite the above, as in Nanhoo Mal itself it has been stated that Whether in extraordinary circumstances the High Court can interfere, we have to say that if a case of extraordinary circumstance comes to the Court, it may be open to examine this question. Nanhoo Mal has not ruled out approach under Art. 226 when extraordinary circumstances exists. In this connection Shri Misra has drawn our attention to K.K. Srivastava v. B. K. Jain, AIR 1977 SC 1703, and Gujarat University v. N. U. Rajguru, AIR 1988 SC 66, in which the word ‘exceptional’ was also used in paras 4 and 6 respectively, along with ‘extraordinary’, when justification may exist for by-passing the alternative remedy. We would accept that exceptional or extraordinary circumstances’ may provide a cause to approach this Court in such matters under Art. 226, But then, let it be pointed out that even in K. K. Srivastavas case, challenge” to the “entire election” to even a body like Bar Council was nut regarded as constituting ‘exceptional’ or ‘extraordinary’ circumstance because of which the exercise of the power by the High Court under Art. 226 was described as ‘misexercise’. May it be stated that in K. K. Srivasiavas case the High Court was approached not at any intermediate stage, but “after the entire election was over” even so, the exercise of the power was regarded as ‘mis-exercise’. In the Gujarat University’s case, where the challenge under Art. 226 was to the election of certain members to the “Court” of the University, it was held that the petition was not maintainable. It was observed in paragraph 6 :
“While considering an election dispute, it must be kept in mind that the right to vote, contest or dispute election is neither fundamental nor common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Art. 226 of the Constitution bypassing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify bypassing the alternative remedies. In the instant case there existed no circumstance justifying departure from the normal Rule as even the challenge to the validity of statute 10 was not pressed by the respondent before the High Court.”
(Emphasis ours)
10. In this connection it would be apposite to refer to Bar Council of Delhi v. Surjeet Singh, AIR 1980 SC 1612, in which challenge to the whole election of the Bar Council was entertained. But this was because of these reasons :-(1) The proviso to Rule 3(3), under which a large number of Advocates were debarred from voting, was held ultra vires, (2) the preparation of the electoral roll on the basis of the invalid proviso went to the root of the matter as it vitiated the electoral roll completely ; and (3) the Rule under which the election could be challenged did not cover all the grounds and the Tribunal could not have declared the Rule ultra vires. The alternative remedy was, therefore, regarded as no remedy in the eye of law, or in any event not adequate or efficacious. But then, the following observations finding place in paragraph 18 are pertinent;
“If the alternative remedy fully covers the challenge to the election, then, that remedy and that remedy alone must be resorted to even though it involves the challenge to the election of all the successful candidates……………….”
(Emphasis ours)
11. May it be stated that so far as the cases at hand are concerned, Section 39 of the Panchayat Act makes available an efficacious remedy inasmuch as an election held under the provisions of this Act can be challenged on the ground of improper acceptance or rejection of nomination papers, because of what has been stated in Section 39(1 )(c) of the Act.
12. Shri Misra has also drawn our attention to A.K.M. Hassan Uzzaman v. Union of India, (1932) 2 SCC 218, which incorporates the order passed by the apex Court in some transferred cases and Special Leave Petitions relating to challenge to the revision of electoral rolls for holding election to the Legislative Assembly in West Bengal. A perusal of the judgment rendered in these cases” as reported in Lakshmicharan Snn v. A.K.M. Hassan Uzzaman, AIR 1985 SC 1233, shows that the case related to pre-election activities (see the observations made in paragraph 26), and as such, is of no relevance for the purpose at hand, inasmuch as the steps relating to the rejection or acceptance of nomination paper has to be taken as a part of ‘election’, because of what has been stated in Ponnuswami, and affirmed in Mohinder Singh. Even so, as Shri Misra has referred to this case, may advert to one aspect of it, which is related to the anxiety of the apex Court in not delaying elections to Legislative Assemblies, which would have happened because of the stay order granted by the High Court. A perusal of paragraph 11 of the judgment shows that when Special Leave Petitions were filed in the apex Court against the interim order passed by the High Court, a Bench of there Judges, who took up the petitions on February 23, 1982 thought it fit and proper to request the High Court to complete the hearing of the writ petitions filed before it by 25th February. That order proceeded to say ;
“It is requested that the writ petition shall be placed on the board of the learned Judge on Wednesday, 24th February, 1982, and shall be heard and hearing completed and order pronounced before the expiry of Thursday, 25th February, 1982………….”
13. If in a pre-election case, the apex Court would like so much of expedition to avoid delay in holding of election to Legislative Assemblies, that consideration has to apply a fortiorari when the election process has been set in motion. The ugh the apex Court in the aforesaid case was concerned with election to Legislative Assemblies, the same view has to be taken regarding the election to local bodies, because of what has been stated in paragraph 5 of Nanhoo Mal.
14. Now, if in these cases we do not stay the elections and elections proceed, resulting in winning of some candidates in the election, Nanhoo Mal would prevent this Court in setting aside the election of the returned candidates in these proceedings. On the other hand, if stay is granted, the election process would definitely get delayed; because it would not be possible for this Court to deal with such petitions, whose number is large and would be larger if these petitions are entertained and stay granted because of the number of candidates contesting the Grama Parichayat and the Panchayat Samiti elections. (We are inclined to think that the total number of such candidates would not be less than 10,000, even on conservative estimation). If in our anxiety to dispose of these cases expeditiously to see that the election process is not delayed beyond a reasonable time, it is apparent that they shall have to be taken up for hearing on priority basis, and as the number of these cases may be in thousands, it is apparent that if these cases would be taken up for hearing on priority basis, hearing of the other cases, even important, pending in the Court for a long time would get even more delayed, which would not be in larger interest of the society ; and so these cases shall have to take their own turn, the result of which would be that the democratic process at the grass-root level will get delayed because of interference with the election process at an intermediate stage, to which this Court cannot be a party.
15. May we say that we are conscious that the question of improper rejection or acceptance of nomination papers should be decided as early as possible, so that there is no casting of votes in favour of a candidate whose nomination paper has been improperly accepted, or where an eligible candidate has been improperly kept out of the fray. This would save all concerned from spending of unnecessary time, money and energy in preparing for, and participating in the ultimate battle of ballots. But then, having noted that even in cases of elections to the august bodies like Parliament and Legislative Assembly remedy under Art. 226 is not available at any intermediate stage, (or for that matter, after the election is over), though fighting of those elections is much more costly and laborious, conferment of greater rights or greater elbow-rooms to persons like the petitioners who want to contest elections to Grama Panchayats or Panchayat Samities cannot be visualised or conceded.
16. We would now say a few words as -to whether improper rejection or improper acceptance of nomination papers can be regarded as an exceptional or extraordinary, circumstance permitting approach to a writ Court. Improper acceptance or improper rejection of nomination papers in an election is almost an inseparable part of the election process. There is nothing extraordinary or exceptional in this. May we remind that even challenge to the “entire election” was not regarded as an exceptional or extraordinary circumstance in K. K. Srivastav’s case; that is also the thinking in Bar Council of Delhi’s case. Whether whole- sale rejection of nomination papers, say of candidates belonging to a political party in opposition on pressure of ruling party or on other extraneous considerations about which mention has been made by Shri Misra, would be an exceptional or extraordinary circumstance is a point on which we do not propose to express final opinion as the same is not necessary for disposal of the cases at hand, though we are inclined to think that even in such a case remedy under Art. 226 may not be available because of highly disputed questions of fact, to resolve which taking of evidence may be deemed necessary, which a writ ‘Court may not like. We have, however, no doubt that acceptance or rejection of nomination papers in individual cases cannot ordinarily come within the ambit of the aforesaid expression. No strait-jacket formula can be devised to find out the content and import of this expression. Giving of illustrations is also not helpful or advisable. Even so, we would state that where there be real and genuine challenge to the vires of a provision having intimate connection with the holding of election, it should be permissible to approach a writ. Court, as such a challenge cannot be entertained by the statutory authority. But even in such a case, the forum would not be available before the election is over.
17. On the basis of what has been stated above, we reach the following conclusions :
(1) The right to stand for election is a creature of a statute, and so, must be subject to limitations imposed by it.
(2) If the statute provides only one remedy, that remedy being an election petition to be presented after the election is over, remedy at any intermediate stage would not be available.
(3) The word ‘election’ has to be understood as including the stage of rejection or acceptance of nomination paper.
(4) If the alternative remedy fully covers the challenge to election, that remedy alone must be resorted to, even though in the case challenge is to the election of all the successful candidates.
(5) There may exist exceptional or extraordinary circumstances under which a High Court can be approached to challenge an election like the one at hand; but improper acceptance or rejection of nomination papers in individual cases would not normally be such a circumstance.
(6) There would be hardly any room to entertain applications under Art. 226 of the Constitution in matters relating to elections, An exception can be when there is real and genuine challenge to the vires of provision having intimate connection with the holding of election. This too would be permissible after the election is over.
18. The aforesaid being the legal position, we would refuse to entertain these petitions first because, these have been filed at an intermediate stage and secondly because there exists no exceptional or extraordinary circumstance relating to them justifying their admission. May we add that each of these two reasons taken individually is sufficient not to entertain the petitions, which are therefore dismissed, as we lack jurisdiction.
K.C. Jagadeb Roy, J.
19. I agree.