Gauhati High Court
WP(C)/2202/2025 on 29 April, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/43
GAHC010087302025
2025:GAU-AS:5462
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT PETITION (C) No. 2178/2025
1. Sri Ranjan Gogoi, aged about - 44 years, Son
of Late Pradip Gogoi, resident of Village -
Buralikson Gaon P.O. - Kathalguri, P.S. -
Kamargaon, District - Golaghat, Assam.
2. Smti. Hiranmayee Gogoi, aged about 46
years, wife of Sri Sorat Gogoi, resident of
Village - Buralikson Gaon, P.O. - Kathalguri,
P.S. - Kamargaon, District - Golaghat,
Assam.
..................Petitioners
-Versus-
1. The State of Assam, represented by the
Commissioner/Secretary, Panchayat and
Rural Development Department, Govt. of
Assam, Dispur, Guwahati - 781006.
2. Assam State Election Commission,
represented by its Commissioner, Dispur,
Guwahati - 781006.
Page No. 2/43
3. District Election Officer, Golaghat - Cum -
Authorized Officer Kathalguri Gaon
Panchayat, Dist. - Golaghat, Assam.
4. Deputy Commissioner, Golaghat, District -
Golaghat, Assam, PIN - 785621.
5. Chief Executive Officer, Golaghat Zila
Parisad, P.O - Golaghat, P.S - Golaghat,
District - Golaghat, Assam, PIN - 785621.
6. Sri Chandan Gogoi, son of Sri Sambhu
Gogoi, resident of Village - Buralikson
Gaon, P.O - Kathalguri, P.S - Kamargaon,
District - Golaghat, Assam.
...................Respondents
WITH WRIT PETITION (C) No. 2186/2025
Noor Nahar Jiya, age: 44 years, W/o:
Abdul Wahab Ansar, R/o: Hahchari, P.O:
Kalatoli, District: Kamrup (R), Assam, Pin
– 781136.
………………Petitioner
-Versus-
1. The State of Assam, represented by
Chief Secretary to the Government of
Assam, Guwahati – 6.
2. The Assam State Election Commission,
Juripar, Panjabari, Guwahati – 781037,
represented by its Secretary.
Page No. 3/43
3. The Chief Electoral Officer, Assam State
Election Commission, Juripar, Panjabari,
Guwahati – 781037.
4. The District Commissioner / Election
Officer, Kamrup, Amingaon.
5. Asmina Haque Choudhury, W/o: Ajirul
Sarkar, R/o: Village – Jursimolu, P.O:
Tapar Pathar, P.S: Chhaygaon, District –
Kamrup (R), Assam, Pin – 781137.
……………….Respondents
WITH WRIT PETITION (C) No. 2202/2025
Pradip Biswas, aged about – 28 years, S/o
– Satis Biswas, resident of Village –
Garubandha, P.O – Raja Mayong, P.S –
Mayong, District – Morigaon, Assam.
………………Petitioner
-Versus-
1. The State of Assam represented by the
Principal Secretary to the Government of
Assam Panchayat and Rural Development
Department, Dispur, Gauhati – 6.
2. The Secretary to the Government of
Assam Panchayat and Rural Development
Department, Dispur, Gauhati – 6.
Page No. 4/43
3. The Commissioner, Panchayat and Rural
Development Department, Juripar,
Panjabari, Gauhati – 37.
4. The Assam State Election Commission,
represented by the Secretary, Assam
State Election Commission, Dispur,
Guwahati – 6.
5. The State Election Commissioner, Assam,
Panjabari, Gauhati – 37.
6. The District Election Commissioner,
Morigaon, District – Motigaon, Assam.
7. The District Commissioner, Morigaon,
District – Morigaon, Assam.
8. The authorized officer authorized by the
District Commissioner of the outlying Sub-
Division, Mayong, District – Morigaon,
Assam.
9. The Circle Officer, Mayong Revenue
Circle, Mayong, District – Morigaon,
Assam
10. The block Development Officer – Cum –
Executive Officer, Mayong Development
Block, Mayong, District - Morigaon,
Assam.
11. Sri. Yudistir Biswas, S/o - Jatin Biswas,
resident of Village - Garubandha, P.O -
Raja Mayong, P.S - Mayong, District -
Morigaon, Assam.
...................Respondents
Page No. 5/43
Advocates :
Petitioner : Mr. B. Halder, Mr. S.H. Sikdar & Mr. J.
Ahmed, Advocates.
Respondents : Mr. K. Konwar, Additional Advocate General,
Assam.
: Mr. R. Dubey, learned Standing Counsel,
Assam State Election Commission.
Date of Hearing : 29.04.2025
Date of Judgment & Order : 29.04.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
The three writ petitions have been preferred by the petitioners against rejection
of two nomination papers and acceptance of one nomination paper, submitted to
contest in the Assam Panchayat General Election, scheduled to be held in two
phases on 02.05.2025 and 07.05.2025 respectively.
2. All the three writ petitions, instituted under Article 226 of the Constitution of
India, involve similar nature of issues.
3. The learned counsel for the petitioners have expressed urgency and the learned
counsel for the contesting respondents have raised a preliminary point of non-
maintainability of the writ petitions. Therefore, all the three writ petitions are
taken up together first for consideration on the preliminary point, at the instance
of the learned counsel for the parties.
Page No. 6/43
4. Though facts pleaded in the writ petitions are not required to be narrated in detail
for considering the preliminary point, but, in order to appreciate the preliminary
point involved in the writ petitions, the relevant facts involved in each of the writ
petitions are required to be exposited, atleast briefly.
5. In the writ petition, W.P.[C] no. 2178/2025, two writ petitioners have joined
together to assail the acceptance of the nomination of the party-respondent no.
6, impleaded therein. The petitioners have projected that the petitioner no. 1 is a
former president of Kathalguri Gaon Panchayat and his tenure expired in
February, 2024. The petitioner no. 2 has aspired to be a Gaon Panchayat
Member from Ward no. 1 [Buralikson Gaon] under Kathalguri Gaon Panchayat
and for the purpose of contesting the election from the said ward, the
petitioner no. 2 submitted her nomination paper within the prescribed date of
submission of nomination paper before the Authorized Officer of Golaghat
district. As per the Notification dated 02.04.2025 published by the Assam State
Election Commission [ASEC], the last date of filing nominations, for the first
phase, was 11.04.2025. The date for scrutiny of nomination papers was fixed
on 12.04.2025. It is a case of the petitioners that the respondent no. 6 had
also submitted his nomination paper to contest the election from the same
ward as the petitioner no. 2. The petitioners have claimed that the nomination
paper of the respondent no. 6 ought not to have been accepted by the officer
authorized to accept the nomination papers. It is the case of the petitioners
that the respondent no. 6 suffers disqualification under Section 111[1][e] of
the Assam Panchayat Act, 1994, as amended [‘the Assam Panchayat Act‘, for
short], as he is an owner of an IMFL shop. The respondent no. 6 has been
running the IMFL shop after entering into an agreement with the Government
under the Assam Excise Act, 2000. In addition, the respondent no. 6 is also a
registered vendor under the Panchayat authorities to supply various materials.
With such projections, the writ petitioners have sought a writ in the nature of
certiorari to set aside the nomination paper of the respondent no. 6, accepted
Page No. 7/43
to contest the election for the post of Gaon Panchayat Member from Ward no.
1 [Buralikson Gaon] under 35 no. Kathalguri Gaon Panchayat, Golaghat.
6. In the writ petition W.P.[C] no. 2186/2025, the petitioner submitted her
nomination paper to contest election for the post of Member to the Goroimari
Zilla Parishad, District – Kamrup [Rural]. The petitioner has stated that her
nomination paper was duly accepted by the Officer appointed and authorized
to receive the nomination papers. The petitioner has contended that the
respondent no. 5 pursuant to the Notification dated to 02.04.2025 had also
submitted nomination paper to contest the election for the post of Member to
the Zilla Parishad from the same constituency. The petitioner’s contention is
that the nomination paper of the respondent no. 5 ought not to have been
accepted as she is a licensee of a Fair Price Shop [FPS] under M/s Goroimari
G.P.S.S. Limited. It is the further case of the petitioner that after coming to
know that the respondent authorities had accepted the nomination paper of
the respondent no. 5, the petitioner submitted a Representation before the
District Commissioner, Kamrup [Rural]/Election Officer on 12.04.2025 itself
requesting cancellation of the nomination of the respondent no. 5. As no
action was taken on the said Representation dated 12.04.2025, the petitioner
is before this Court by the instant writ petition seeking inter-alia a direction to
the respondent authorities to cancel the nomination of the respondent no. 5
and to prevent her from contesting the election to the post of Member to
Goroimari Zilla Parishad from the same constituency as like the petitioner.
7. The petitioner in the writ petition, W.P.[C] no. 2202/2025, has instituted the
writ petition being aggrieved by rejection of his nomination paper he had
submitted to contest as a Member to Pavakati Gaon Panchayat from Ward No.
4 Garubandha [Ka]. The petitioner has contended that he submitted his
nomination paper along with all the requisite certificates, School Certificate,
Admit Card, Gaonburah Certificate, Bakijai Clearance Certificate, Bank
Clearance Certificate from Gaon Panchayat, Caste Certificate, Debt Clearance
Page No. 8/43
Certificate from Morigaon Zilla Parishad, Passbook of Punjab National Bank,
Caste Certificate, Pan Card, Voter ID, Aadhar Card, Voter List 2024 including
the required affidavits, on 11.04.2025. The date, 12.04.2025 was fixed for
scrutiny of nomination papers and publication of list of the candidates, whose
nomination papers were found valid after scrutiny. Apart from the petitioner,
another candidate [the party-respondent no. 11] submitted nomination paper
to contest the election for the post of Gaon Panchayat Member from the same
constituency. The petitioner came to learn that the respondent no. 11
submitted a complaint before the Authorized Officer on 11.04.2025 against the
petitioner. On receipt of the complaint, the Authorized Officer issued a notice
on 12.04.2025 to the petitioner asking the petitioner to be present for a
hearing, scheduled on 12.04.2025 itself. It is the contention of the petitioner
that the Authorized Officer did not furnish a copy of the complaint to the
petitioner along with the notice and as such, the petitioner was not aware of
the reason for filing the complaint. The petitioner has contended that for not
receiving a copy of the complaint, the petitioner could not present his case
properly before the Authorized Officer in the hearing held on 12.04.2025.
When the list of validly nominated candidates was hanged on the 12.04.2025,
the petitioner, to his surprise, found that his nomination paper was not
accepted and in the list, only the name of the respondent no. 11 was shown
as a candidate whose nomination paper was found valid after scrutiny. As a
result, the respondent no. 11 would be declared as the elected candidate from
No. 4 Garubandha [ka] Gaon Panchayat constituency without contest. The
petitioner came to know from sources that the petitioner’s nomination paper
was rejected on the ground that the petitioner had no personal latrine and
there were discrepancies in his date of birth in the Aadhar Card and the
School Certificate. Challenging non-acceptance/rejection of his nomination
paper, the petitioner has instituted the writ petition.
8. From the facts narrated above, it can be seen that the writ petitions have
been preferred by the petitioners in W.P.[C] no. 2178/2025 and W.P.[C]
Page No. 9/43
2186/2025 against acceptance of the nomination papers of the private party-
respondents impleaded therein, whereas, the writ petition, W.P.[C] no.
2202/2025 has been preferred by the petitioner challenging non-
acceptance/rejection of his nomination.
9. I have heard Mr. B. Haldar, learned counsel for the petitioners in W.P.[C] no.
2178/2025; Mr. S.H. Sikdar, learned counsel for the petitioner in W.P.[C] no.
2186/2025; and Mr. J. Ahmed, learned counsel for the petitioner in W.P.[C]
no. 2202/2025; Mr. K. Konwar, learned Additional Advocate General, Assam &
Senior Standing Counsel, Panchayat & Rural Development [P&RD] Department
for the State respondents; and Mr. R. Dubey, learned Standing Counsel,
Assam State Election Commission [ASEC] for the respondent authorities in the
ASEC.
10. Part-IX of the Constitution of India titled ‘the Panchayat’ was inserted by the
Constitution [Seventy-Third Amendment] Act, 1992 w.e.f. 24.04.1993. Part-IX
of the Constitution contains Article 243 and Article 243A to Article 243O.
Article 243K has provided for elections to the Panchayats. As per Clause [1] of
Article 243K, the superintendence, direction and control of the preparation of
electoral rolls for, and the conduct of, all elections to the Panchayats is vested
in the concerned State Election Commission. As per Clause [4] of Article 243K,
the Legislature of a State may, by law, make provision with respect to all
matters relating to, or in connection with, elections to the Panchayat, subject
to the provisions of the Constitution.
11. After insertion of Part-IX in the Constitution by the Constitution [Seventy-
Third Amendment] Act, 1992, the Assam State Legislative Assembly enacted
the Assam Panchayat Act, 1994 [‘the Assam Panchayat Act‘, for short] to
amend and consolidate the laws relating to Panchayats in Assam to be in
conformity with the provisions of Part-IX. Section 114 of the Assam Panchayat
Act has provided that superintendence, direction and control of the proportion
Page No. 10/43
of Electoral Roll for and conduct of all election to the Panchayat shall be
vested in a State Election Commission consisting of a State Election
Commissioner to be appointed by the Governor.
12. In exercise of the rule making powers conferred by Section 141[1] of the
Assam Panchayat Act, the Assam Panchayat [Constitution] Rules, 1995 have
been framed.
13. The Assam State Election Commission in exercise of the powers conferred
under Article 243K of the Constitution and Section 114[1] of the Assam
Panchayat Act and Rule 15 and Rule 16 of the Assam Panchayat [Constitution]
Rules, 1995, issued a Notification on 02.04.2025 notifying the Schedule of
General Election to the Panchayats in the State of Assam. As per Notification
dated 02.04.2025, the General Election to the Panchayat in Assam would be
held in two phases as per the Schedule enclosed therein as Annexure-1.
14. For ready reference, the relevant excerpts from the Notification dated
02.04.2025 and Annexure-1 to the Notification are extracted hereinbelow :-
ASSAM STATE ELECTION COMMISSION
PANIABARI, GUWAHATI-781037Notification
Dated 2nd April, 2025
No. SEC. 63/2022/125 : In exercise of powers conferred under
Article 243K of the Constitution of India and Section 114 [1] of the
Assam Panchayat Act, 1994 [as amended up-to-date] and Rule 15
and Rule 16 of the Assam Panchayat [Constitution] Rules, 1995 [as
amended up-to-date] the Assam State Election Commission, on this
Page No. 11/432nd day of April, 2025 hereby notifies the Schedule of General
Election to the Panchayats in the State of Assam.
The General Election to the Panchayats in Assam will be held in 2
[two] phases as per the Schedule enclosed as Annexure-1 and the
names of districts indicating the phase in which the Panchayat
Election will be held therein have been notified as per Annexure-2[A]
and 2[B].
The respective District Commissioners shall publish Notice of
Election under Rule 16 [1] of the Assam Panchayat [Constitution]
Rules, 1995 [as amended] on date[s] as per the Election Schedule
enclosed herewith at the office of Block Development Officer[s]
concerned and at such other places as may be considered
necessary by the District Commissioner.
With this notification, the Model Code of Conduct has come into
force with immediate effect in the areas where Panchayat Elections
are notified to be held.
Annexure-1
Election Schedule of the Panchayat Election, 2025 :-
SI.. Event 1st Phase 2nd Phase
No.
1. Issue of Notice of
Election by District 03.04.2025 03.04.2025
Commissioners
2. Last date of filing 11.04.2025 11.04.2025
nominations (from 11.00 am to 3.00 (from 11.00 am to
pm) 3.00 pm)
3. Scrutiny of nomination 12.04.2025 12.04.2025
papers (from 10.30 am) (from 10.30 am)
4. Date of publication of list 12.04.2025 12.04.2025
Page No. 12/43
of validly nominated
candidates
5. Date of withdrawal of 17.04.2025 17.04.2025
candidature (upto 3.00 pm) (upto 3.00 pm)
6. Date of publication of list 17.04.2025 17.04.2025
of contesting candidates (after 3.00 pm) (after 3.00 pm)
7. Date and time of Poll 02.05.2025 07.05.2025
(7.30 am to 4.30 pm) (7.30 am to 4.30
pm)
8. Date and time of Re-poll 04.05.2025 09.05.2025
(if any) (7.30 am to 4.30 pm) (7.30 am to 4.30
pm)
9. Date of Counting 11.05.2025 11.05.2025
(From 8.00 am till (From 8.00 am till
completion of the completion of the
counting) counting)
ï‚· The nomination papers will be received on all working days
from 11.00 am to 3.00 pm excluding 6th April, 2025 being
Sunday.
ï‚· The Commission fixes the poll hours from 7.30 am to 4.30
pm on the day of poll and re-poll (if any).
ï‚· Concerned District Commissioners shall publish the Notice of
Election as per Rule 16(1) of the Assam Panchayat
(Constitution) Rules, 1995 (as amended) as given.
15. As the provisions of Rule 16 and Rule 22 of the Assam Panchayat
[Constitution] Rules, 1995 are of relevance and import in the cases in hand,
the same are quoted hereinbelow, for ready reference :-
16. Issue of Notice fixing the date of Election, Submission of Nomination
and Scrutiny and withdrawal thereof. –
[1] Not less than 30 [thirty] days before the date fixed for election under Rule
15 of these rules, the District Commissioner or the Officer as authorized by
District Commissioner, as the case may be, shall publish a notice in the
Page No. 13/43language of the region or in such other language or languages as may be
considered necessary for the purpose, stating –
[a] the date on which, the place at which, the hours between which and the
category of representatives for which nomination papers are to be
presented, an interval of seven clear days being allowed between the
date of publication of such notice and the date for presentation of
nomination papers :
Provided that the date for filing of nomination paper shall be fixed and
notified by the State Election Commission;
[b] the date on which, the place at which and the hours between which the
nomination papers may be taken up for scrutiny, such date being within
3 [three] days after the date of submission of nomination papers;
[c] the last date, place and time for withdrawal of candidature after the date
of scrutiny shall not be less than 15 [fifteen] days ahead of the date of
election :
Provided that the last date of withdrawal of candidature shall be fixed
and notified by the State Election Commission as under Section 114 of
the Act;
[d] the date on which and the polling station at which, the election of the
Gaon Panchayat, Anchalik Panchayat or the Zilla Parishad
Constituencies shall be held and hours during which the poll shall be
open.
[2] The notice prepared under sub-rule [1] shall be published by fixing it at the
office of the Block Development Officer concerned or at such other public
places as may be considered necessary by the District Commissioner or the
Officer as authorized by District Commissioner, as the case may be.
[3] The place for submission of nomination papers, scrutiny and withdrawal
thereof in case of the Member of Gaon Panchayat may be fixed at the office
Page No. 14/43of the Block Development Officer and in case of Member of Anchalik
Panchayat, and Zilla Parishad may be fixed at the office of the District
Commissioner or the Officer as authorized by the District Commissioner, as
the case may be.
22. Filling and Scrutiny of Nomination Paper Form IIA and IIB. –
[1] Any person whose name appears in the list of voters of any of the
Constituencies of a Gaon Panchayat or Zilla Parishad as published under
Rule 11 of these rules and who is not disqualified under Section 111 of the
Act, may be nominated as a candidate from the concerning Gaon Panchayat
or Zilla Parishad Constituency, as the case may be, for election as Member of
Gaon Panchayat and Member of Anchalik Panchayat and for election as
Member of Zilla Parishad from the Zilla Parishad Constituency in whose
jurisdiction the Gaon Panchayat, Anchalik Panchayat or the Zilla Parishad as
the case may falls, if he submits a nomination paper signed by any voter of
the Constituency as proposer and signed by the candidate in token of his
consent to stand as a candidate. The nomination paper shall be delivered
either by the candidate or by his proposer to the Officer authorized by the
District Commissioner or the Officer authorized by the District Commissioner,
as the case may be, for the purpose who shall be present on the date and at
the time and place notified for filling the same under sub-rule [3] of Rule 16 of
these rules and shall also have a copy of the Electoral Roll of the Gaon
Panchayat or the Zilla Parishad Constituencies, as the case may be, with him.
The nomination paper shall be in Form IIA or IIB as the case may be :
Provided that no person shall be nominated as a candidate for more than one
Constituency of a Gaon Panchayat or a Zilla Parishad Constituency as the
case be :
Page No. 15/43
Provided further that a candidate may be nominated by more than one
nomination paper.
[2] The Officer as may be authorised under sub-rule [1], shall not be below the
Gazetted rank and shall be appointed with prior approval of the State Election
Commission. Such Officer shall –
[a] examine the nomination papers on the date, time and place notified for
the purpose under the Rule;
[b] give the candidate or his proposer reasonable opportunity to examine
the nomination paper and shall decide on the spot, the objections, if
there be any, by summary enquiry. He may either on his own initiative or
an objection raised, reject any nomination on any of the following
grounds –
[i] that the candidate is not qualified under the provisions of the Act;
[ii] that he is disqualified from being chosen to fill the office or that he is
disqualified since requisite amount of security deposit has not been
paid;
[iii] that there has been failure to comply with any of the provisions of these
Rules; and
[iv] that the signature or thumb impression of the candidate or the proposer
is for candidate other than not genuine :
Provided that nothing in sub-clauses [iii] and [iv] above shall be deemed to
authorise the rejection of the nomination paper of any candidate on the
ground of irregularity in respect of a nomination paper, if the candidate has
duly nominated by means of other nomination paper in respect of which no
irregularity has been committed.
16. Any person whose name appears in the list of voters of any of the
constituencies of a Gaon Panchayat or Zilla Parishad published under Rule 11
Page No. 16/43of the Assam Panchayat [Constitution] Rules, 1995 and who is not
disqualified under Section 111 of the Assam Panchayat Act, can be
nominated as a candidate from the concerning Gaon Panchayat or Zilla
Parishad Constituency, as the case may be, for election as Member of Gaon
Panchayat and Member of Anchalik Panchayat and Member of Zilla Parishad
in whose jurisdiction the Gaon Panchayat, Anchalik Panchayat or the Zilla
Parishad, as the case may be, falls, if he submits a valid nomination paper
completing the requisite formalities. Such nomination paper is to be delivered
to the Authorized Officer appointed by the Government to receive such
nomination papers. Rule 16[1][b] has prescribed for publication of a notice
intimating the date on which, the place at which, the hours between which
the nomination papers would be taken up for scrutiny, such date being
within three days after the date of submission of nomination papers. In the
cases in hand, the date for scrutiny of nomination papers and publication of
list of contesting candidates was 12.04.2025. An intending candidate has to
submit his nomination paper before the Officer authorized by the District
Commissioner. As per Rule 22[2], the Officer authorized to accept the
nomination papers shall [a] examine the nomination papers on the date,
time and place notified for the purpose under the Rule; and [b] give the
candidate or his proposer reasonable opportunity to examine the nomination
papers and shall decide on the spot, the objections, if there be any, by
summary enquiry. From Rule 22[2], it is discernible that the Authorized
Officer has to examine any objection received by him as regards nomination
of any candidate on the spot by way of a summary enquiry.
17. In so far as the writ petitions, W.P.[C] no. 2178/2025 and W.P.[C] no.
2186/2025 are concerned, it is not the case of the petitioners that there was
any complaint/objection before the Authorized Officer objecting to the
nomination papers submitted by the private party-respondents therein before
the Authorized Officer on the date on which, the place at which, and the
hours between which the nomination papers were taken up for scrutiny. On
Page No. 17/43
the other hand, the private respondent impleaded as the party-respondent
no. 11 in W.P.[C] no. 2202/2025 appeared to have submitted a complaint
before the Authorized Officer against the nomination paper submitted by the
petitioner and it transpires from the statement of the writ petitioner himself,
that the Authorized Officer had accepted the complaint and had put the
petitioner on notice for a hearing by way of a notice dated 12.04.2025. A
hearing was scheduled on 12.04.2025 and thereafter, the hearing was held
on 12.04.2025 in presence of the writ petitioner. It, thus, transpires that the
Authorized Officer had decided on the matter of acceptance or non-
acceptance of the nomination paper of the petitioner on the spot by
conducting a hearing. The petitioner in W.P.[C] no. 2202/2025 has a
grievance that the reason for rejection of his nomination paper was not
informed to him in writing by the Authorized Officer.
18. The preliminary issue which has arisen for consideration is whether the
extra-ordinary and discretionary jurisdiction of this Court under Article 226
Constitution can be invoked to raise a grievance either as regards acceptance
of nomination paper of a candidate or rejection of nomination paper of a
candidate, submitted to contest in the election for the Member of a Gaon
Panchayat or a Zilla Parishad, in the light of the provisions contained in the
Part-IX of the Constitution of India and the Assam Panchayat Act.
19. The learned counsel for the parties have referred to a number of provisions
of Part-IX of the Constitution and the Assam Panchayat Act, especifically to
Article 243O of the Constitution and Section 129 of the Assam Panchayat Act.
20. Article 243O has created a bar to interference by court in electoral matters.
Similarly, Section 129 has created a bar to interference by courts in election
matters. Article 243O and Section 129 are, more particularly, similarly
worded. They read as under :-
Page No. 18/43
The Constitution of India
243O. 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 seals to such constituencies made or purporting to be
made under Article 243K, 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.
The Assam Panchayat Act
129. Bar to interference by Courts in election matters.
Notwithstanding anything contained in this Act –
[a] the validity of any law relating to the delimitation of constituencies on
the allotment of seats to such constituencies, made under Article 243 of
the Constitution of India shall not be called in question any court;
[b] no election to any Panchayat shall be called in question except by
an election petition presented within sixty days from the date of declaration
of election results to the Tribunal constituted under Section 127.
21. The cases in hand are clearly concerned with Article 243O[b] and Section
129[b]. Both the provisions are with a non-obstante clause. As per Article
243O[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
provided for by or under any law made by the legislature of a State. The
expression, ‘as is provided for by or under any law made by the legislature of
a State’, which appears in Clause [b] of Article 243O, leads the trial to the
Assam Panchayat Act. As per Clause [b] of Section 129, which is also with a
Page No. 19/43
non-obstante clause, no election to any Panchayat shall be called in question
except by an election petition presented within sixty days from the date of
declaration of election results to the Tribunal constituted under Section 127.
22. As per the provisions of Section 127 of the Assam Panchayat Act, the
Government shall constitute such Panchayat Election Tribunals as may be
necessary, on the recommendation of the High Court to dispose of all the
election petitions challenging elections under the Assam Panchayat Act. The
jurisdiction, powers and functions and the headquarters of the Tribunal shall
be decided by the Government in consultation with the High Court, except as
provided in Section 10 of the Panchayat Act. Section 10 of the Assam
Panchayat Act is for election of President and Vice-President of Gaon
Panchayats and it is not necessary for the purpose of consideration of this
batch of writ petitions.
23. Thus, it is evident that it is the State Government who has been given the
authority to constitute the Panchayat Election Tribunal on the
recommendation of the High Court. The jurisdiction, powers and functions of
such Panchayat Election Tribunals is required to be decided by the
Government in consultation with the High Court.
24. Article 243F of the Constitution mentions about disqualification of the
membership. Sub-clause [b] of Clause [1] of Article 243F has prescribed that
a person shall be disqualified for being chosen as, and for being, a member
of a Panchayat if so disqualified by or under any law made by the Legislature
of the State. Sub-clause [2] thereto has provided that if any question arises
as to whether a member of a Panchayat has become subject to any of the
disqualifications mentioned in clause [1], the question shall be referred for
the decision of such authority and in such manner as the Legislature of State
may, by law, provided.
Page No. 20/43
25. Chapter-VIII titled ‘Disqualification of the President, Vice-President and
Member of Zilla Parishad, Anchalik Panchayat and Gaon Panchayat’ of the
Assam Panchayat Act, has provided for disqualification of a person to be
elected or co-opted or remained as President, Vice-President or Member of
Zilla Parishad, Anchalik Panchayat and Gaon Panchayat. In the present writ
petitions, the petitioners’ contention regarding acceptance or non-acceptance
of the nomination papers are relatable to one or the other disqualifications
delineated in Section 111.
26. At this juncture, a reference can be made to a Notification bearing no.
PDA.277/2000/32 issued by the Panchayat and Rural Development [A]
Department, Government of Assam on 30.09.2000. By the Notification dated
30.09.2000, the Government of Assam in exercise of the power conferred
under Section 127 of the Assam Panchayat Act, and on the recommendation
of the High Court, had constituted twenty-one nos. of Panchayat Election
Tribunals with the District Judges within their respective territorial jurisdiction
to dispose of all direct elections challenging election under the Assam
Panchayat Act. The Panchayat Election Tribunals have the jurisdiction to
entertain and dispose of election petition filed before it by ‘any contesting
candidate’ in respect of validity or propriety of the election. A member
elected in a direct election to any of the three-tier Panchayat bodies, who
has incurred the disqualification under Section 111 of the Assam Panchayat
Act, can only held disqualified in a verdict rendered in an election petition
preferred by a contesting candidate and presented before the jurisdictional
Panchayat Election Tribunals.
27. A reading of the jurisdiction clause in the said notification makes it apparent
that the Panchayat Election Tribunals shall have jurisdiction only to entertain
and dispose of election petitions filed before it by ‘any contesting candidate’
in respect of validity or propriety of the election. A Tribunal assumes
jurisdiction on a particular matter when such jurisdiction to entertain a
Page No. 21/43
particular matter has been vested in such Tribunal. In other words, existence
of jurisdictional fact is sine qua non for any Tribunal to exercise jurisdiction in
a particular subject. If the jurisdiction on a particular subject is not vested in
a Tribunal and such Tribunal exercises its jurisdiction then such decision will
be void and non-est in law. To exercise its jurisdiction under a particular
subject-matter, such jurisdiction has to be conferred. The expression ‘to
entertain and dispose of election petition’ would mean the Panchayat
Election Tribunal would have jurisdiction to accept, adjudicate upon and
render its decision on an election petition but such election petition has to be
presented by only ‘any contesting candidate’ and none else.
28. Mr. Haldar, learned counsel for the petitioner in W.P.[C] no. 2178/2025 has
advanced a submission that the jurisdiction of the Panchayat Election
Tribunal to entertain is limited in the sense that the Panchayat Election
Tribunal has no jurisdiction to entertain and dispose of an election petition
filed before it by a voter, if the voter is not a contesting candidate. Thus,
even if a voter has a valid cause of grievance to agitate against the
acceptance of nomination paper of a person who is apparently disqualified to
contest an election and then, the voter would not be able to present an
election petition before the Panchayat Election Tribunal. Relying on a
decision of the Hon’ble Supreme Court in Smt. Bharati Reddy vs. State of
Karnataka and others, 2018 [12] SSC 61, [hererinafter referred to as
‘Bharati Reddy-I’, for the purpose of easy reference], he has submitted
that the petitioner no. 1 as a voter, cannot be left remediless and the writ
petition preferred by the petitioner no. 1 is maintainable and is to be
entertained, even if it is assumed that the petitioner no. 2 being a contesting
candidate, is to be relegated to the Panchayat Election Tribunal to contest
the acceptance of the nomination paper of the respondent no. 6. With such
contention, Mr. Haldar has submitted that the writ petition, W.P.[C] no.
2178/2025 is maintainable in so far as the petitioner no. 1 is concerned.
Page No. 22/43
29. Au contraire, Mr. Dubey, learned Standing Counsel, Assam State Election
Commission [ASEC] by referring to Bharati Reddy-I [supra], has contended
that the submission advanced by the learned counsel for the petitioner has
an inherent fallacy in the sense that in Bharati Reddy-I [supra], four voters
filed a writ petition before the High Court challenging the election of the
appellant on the ground that the appellant contested the election to the post
of Adyaksha of a Zilla Parishad on the basis of a false Caste Certificate. The
election to the post of Adyaksha was an indirect election and the appellant
was already elected as a Member of the concerned Zilla Parishad in direct
election. The High Court dismissed the writ petition on the ground of non-
maintainability in view of the bar contained in Clause [b] of Article 243O of
the Constitution. Mr. Dubey has referred to a subsequent decision titled
Bharati Reddy vs. State of Karnataka and others , [2018] 6 SCC 162,
[hererinafter referred to as ‘Bharati Reddy-II’, for easy reference], which
arose out of the previous decision in Bharati Reddy-I [supra], to argue that
even if a decision is reached that the writ petition, W.P.[C] no. 2178/2025 is
found to be maintainable at the instance of a voter like the petitioner no. 1,
still such writ petition is not to be entertained during the intermediate stage
when the Schedule of the Panchayat Election has been declared and the
dates of polling are very near.
30. At this juncture, it is apt to refer to two rights – the right to vote and the
right to contest – of a voter. These two rights – the right to vote and the
right to contest – of a voter are associated with the election of the
Panchayats. The two rights of the voter – the right to vote and the right to
contest – were considered by a three-Judge Bench of the Hon’ble Supreme
Court of India in Javed vs. State of Haryana, [2003] 8 SCC 369. It has
been held therein that the right to contest an election is neither a
fundamental right nor a common law right. It is a right conferred by a
statute and at the most, in view of Part-IX of the Constitution, a right to
contest election for an office in Panchayat may be said to be Constitutional
Page No. 23/43
right – a right originating in the Constitution and given shape by statute. But
even so, it cannot be equated with a fundamental right. A subsequent two-
Judge Bench in Rajbala and others vs. State of Haryana and others,
[2016] 2 SCC 445, following Javed [supra], has held that the right to vote at
and the right to contest in an election to a Panchayat are constitutional rights
subsequent to introduction of Part-IX in the Constitution and both the rights
can be regulated or curtailed by the appropriate legislature.
31. In order to appreciate the rival contentions made with regard to the
observations made in Bharati Reddy-I & II [supra], it is apposite to look
into the background facts therein. The appellant was elected as a Member of
Zilla Parishad, Bellary from a constituency, which was reserved for General
[Women] category in the Panchayat election held on 20.02.2016. The State
Government by a notification dated 15.04.2016, reserved the post of
Adyaksha of Bellary Zilla Parishad for Backward Class B [Woman]. The
appellant contested for the said office and was declared as elected as
Adyaksha. The respondent nos. 6 to 9 were residents of Bellary district and
were voters in the election to the Zilla Parishad, Bellary, instituted a writ
petition before the High Court challenging the election of the appellant as the
Adhyaksha mainly on the ground that she did not belong to Backward Class
B and she had contested that election on the basis of a false caste and
income certificate issued in her favour. The appellant raised objection as to
the maintainability of the writ petition having regard to the bar contained in
Clause [b] of Article 243O of the Constitution and it was contended that the
aggrieved party had to challenge the election by way of an election petition
before the jurisdictional Election Tribunal [District Judge]. The learned Single
Judge dismissed the writ petition on the ground of maintainability in view of
the bar containing Clause [b] of Article 243O of the Constitution and the
extant rules providing for the filling of an election petition before the
jurisdictional District Judge by an aggrieved party. The original writ
petitioners carried the matter before the Division Bench and the Division
Page No. 24/43
Bench set aside the order of the learned Single Judge by holding that the
writ petition was maintainable. The Division Bench remanded the matter to
the Single Judge for fresh disposal of the case, keeping open all other
questions. The appellant had challenged the legality and correctness of the
order of the Division Bench before the Hon’ble Supreme Court.
31.1. Before the Hon’ble Supreme Court, it was contended that the original writ
petitioners were voters and were not contesting candidates, and they could
not maintain an election petition. At the same time, they cannot be
remediless. The Hon’ble Supreme Court had examined the provisions of Part-
IX of the Constitution including the bar contained in Article 243O[b]. The
concerned Panchayat Act and the Panchayat Rules of the State of Karnataka
had inter-alia provided that any Member of Zilla Parishad, in whose
jurisdiction the Zilla Parishad lies, can question the election of the Adhyaksha
and Upadhyaksha before the jurisdictional District Judge within a period of
fifteen days from the date of declaration of election results with an election
petition. The Hon’ble Court took note of the fact that the statutory provisions
did not allow a non-member of the Zilla Parishad to maintain an election
petition. It is in that context, the Hon’ble Court has held that if a voter is
aggrieved by the election of a candidate to the office of the Adhyaksha of a
Zilla Parishad, he cannot challenge the election of such candidate to the
office of the Adhyaksha by filing an election petition in view of the statutory
provisions debarring a non-member of the Zilla Parishad to prefer an election
petition. The Hon’ble Court has proceeded to hold that a voter of a particular
Panchayat cannot be left remediless if he is aggrieved by the election of a
particular candidate to an office of that Panchayat. It has been held that a
voter cannot be denied an opportunity to challenge the election to the office
of a Panchayat under Article 226/227 of the Constitution and if a voter
prefers a writ petition before the High Court, the same would be
maintainable. However, it is left to the discretion of the Court exercising the
powers under Articles 226/227 to entertain the writ petition. Remanding the
Page No. 25/43
matters to the High Court, the learned Single Judge was requested to
dispose of the writ petition expeditiously.
31.2. One of the facts which have emerged from the decision in Bharati Reddy-I
[supra] is that the writ petitioners as the voters therein had instituted the
writ petition under Article 226 of the Constitution after the appellant therein
was elected as a Member of the concerned Zilla Parishad and thereafter,
elected as Adhyaksha of the Zilla Parishad, which post was reserved for
General [Women] category. The writ petitioners therein did not challenge the
election of the appellant as a Member of Bellary Zilla Parishad in direct
election. The Hon’ble Supreme Court while deciding the appeal in Bharati
Reddy [supra], has observed that a voter in a particular Panchayat cannot
be rendered remediless if he is aggrieved by election of a candidate to an
office of the Panchayat. If the statutory provisions of the concerned
Panchayat Act and rules prevent him from filing an election petition to
challenge the election of such a candidate, a remedy is open for such a voter
to prefer a writ petition. A question would still remain as regards the time
when such writ petition is to be entertained, as it is left to the discretion of
the High Court exercising the powers under Articles 226/227.
32. From the decision in Bharati Reddy-II [supra], it transpires that after the
remand, the writ petition was heard by a learned Single Judge on merits on
the controversy for grant of reliefs prayed in the writ petition including the
prayer for issuance of a writ of quo warranto. The learned Single Judge
allowed the writ petition in part by quashing the proceedings whereby the
appellant was the respondent no. 6 therein, was declared as Adhyaksha of
the Zilla Parishad. A writ of quo warranto was issued to the appellant to
vacate the office of the Adhyaksha of the Zilla Parishad. But the rest of the
prayers were rejected. The Division Bench thereafter, affirmed the conclusion
of the learned Single Judge both on factual and legal matters. The moot
question which arose before the Hon’ble Supreme Court was whether the
Page No. 26/43
High Court, in the facts of the case, was justified in invoking its extra-
ordinary jurisdiction to issue a writ of quo warranto. It is well settled that a
writ of quo warranto is a writ which lies against the person, who due to
ineligibility is not entitled to hold a public office, which he is holding, and is
only an usurper of the office. The Hon’ble Court found that the dispute
regarding the caste and income certificate of the appellant was pending
before the jurisdictional Caste Verification Committee at the relevant time. It
was found that the High Court merely on basis of prima facie suspicion about
the validity of the caste and income certificate of the appellant and without
quashing the said certificate and that too, pending consideration of its
validity by the Caste Verification Committee, could not have issued writ of
quo warranto. The Hon’ble Supreme Court after hearing, had allowed the
appeal preferred by the appellant. The principle seems to be emerging from
the subsequent decision in Bharati Reddy-II [supra] is that a writ petition
can be maintained only in a case where disqualification is established. Even
then too, the question of entertainability would be dependent upon many
factors, including the stage of the election process at which the writ petition
has been instituted. Resting this discussion here, it is necessary to move to
the other points urged by the parties.
33. Article 329 of the Constitution corresponds to Article 243O of the
Constitution. Article 329 of the Constitution is also with a non-obstante
clause like Article 243O. As per clause [b] of Article 329, 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 provided for by or under any
law made by the appropriate Legislature.
34. A question arose before a six-Judge Bench of the Hon’ble Supreme Court in
N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency and
others, reported in [1952] 1 SCC 94, to the effect that whether the law of
Page No. 27/43
elections in our county with a democratic Constitution, contemplates that
there should be two attacks in matters connected with election proceedings,
one by invoking the extra-ordinary jurisdiction of the High Court under Article
226 of the Constitution while election process is going on and another by
means of an election petition after election process has been completed. The
question was considered in the context of the provisions of Part-XV of the
Constitution which contains Article 329, and the Representation of the People
Act, 1951. After examining the question, the Hon’ble Supreme Court has held
that any matter which has the effect of protracting an election should be
brought up only at the appropriate stage in an appropriate manner before a
Special Tribunal and should not be brought up at an intermediate stage
before any court. While deciding, the Hon’ble Supreme Court has considered
the meaning of the word ‘election’ appearing in Article 329[b] both in the
wider sense and in the narrow sense. It has been observed that in the
narrow sense, the word, ‘election’ is used to mean the final selection of a
candidate which may embrace the result of the poll when there is polling or a
particular candidate being returned unopposed when there is no poll. In the
wide sense, the word ‘election’ is used to connote the entire process
culminating in a candidate being declared elected. The word ‘election’ has
been used in Part-XV of the Constitution in the wide sense, that is, to
connote the entire procedure to be gone through to return a candidate to the
legislature.
35. By similar analogy, the word ‘election’ appearing in Article 243O[b] of the
Constitution and Section 129B of the Assam Panchayat Act, in the wider
sense, is used to refer to the entire process right from the declaration of
election till the declaration of return of a candidate as elected to the
Panchayats at any of the three levels. Election, in the narrower sense, would
mean the final selection of a candidate with declaration of results after the
poll or of a particular candidate being returned unopposed when there is no
poll.
Page No. 28/43
36. The Hon’ble Supreme Court in Ponnuswami [supra] had also considered the
aspect centering around the meaning of the words ‘no election shall be called
in question except by an election petition’ appearing in Article 329[b] and
had observed that the point to be decided was whether the questioning the
action of the Returning Officer in rejecting a nomination paper can be said to
be comprehended within the words, ‘no election shall be called in question’.
37. The appellant’s case in N.P. Ponnuswami [supra] was that he was one of
the persons who filed nomination papers for election from a particular
Legislative Assembly. On 28.11.1951, the Returning Officer took up for
scrutiny the nomination papers filed by the prospective candidates and on
the same day, he rejected the appellant’s nomination paper on certain
grounds. The appellant thereafter, moved the High Court under Article 226
of the Constitution praying for a writ of certiorari to quash the order of the
Returning Officer rejecting his nomination paper and to direct the Returning
Officer to include his name in the list of valid nominations to be published.
The High Court dismissed the appellant’s application on the ground that it
had no jurisdiction to interfere with the order of the Returning Officer by a
reason of the provisions of Article 329[b] of the Constitution. The Hon’ble
Supreme Court in the above context, has observed as under :-
15. The question now arises whether the law of elections in this country
contemplates that there should be two attacks on matters connected with
election proceedings, one while they are going on by invoking the
extraordinary jurisdiction of the High Court under Article 226 of the
Constitution [the ordinary jurisdiction of the courts having been expressly
excluded], and another after they have been completed by means of an
election petition. In my opinion, to affirm such a position would be contrary
to the scheme of Part XV of the Constitution and the Representation of the
People Act, which, as I shall point out later, seems to be that any matter
Page No. 29/43which has the effect of vitiating an election should be brought up only at
the appropriate stage in an appropriate manner before a Special Tribunal
and should not be brought up at an intermediate stage before any court. It
seems to me that under the election law, the only significance which the
rejection of a nomination paper has consists in the fact that it can be used
as a ground to call the election in question. Article 329[b] was apparently
enacted to prescribe the manner in which and the stage at which this
ground and other grounds which may be raised under the law to call the
election in question, could be urged. I think it follows by necessary
implication from the language of this provision that those grounds cannot
be urged in any other manner, at any other stage and before any other
court. If the grounds on which an election can be called in question could
be raised at an earlier stage and errors, if any, are rectified, there will be
no meaning in enacting a provision like Article 329[b] and in setting up a
Special Tribunal. Any other meaning ascribed to the words used in the
Article would lead to anomalies, which the Constitution could not have
contemplated, one of them being that conflicting views may be expressed
by the High Court at the pre-polling stage and by the Election Tribunal
which is to be an independent body, at the stage when the matter is
brought up before it.
* * * * * * *
24. It may be pointed out that Article 329[b] must be read as
complementary to Clause [a] of that Article. Clause [a] bars the jurisdiction
of the courts with regard to such law as may be made under Articles 327
and 328 relating to the delimitation of constituencies of the allotment of
seats to such constituencies. It was conceded before us that Article 329[b]
ousts the jurisdiction of the courts with regard to matters arising between
the commencement of the polling and the final selection. The question
Page No. 30/43which has to be asked is what conceivable reason the legislature could
have had to leave only matters connected with nominations subject to the
jurisdiction of the High Court under Article 226 of the Constitution. If Part-
XV of the Constitution is a code by itself i.e. it creates rights and provides
for their enforcement by a Special Tribunal to the exclusion of all courts
including the High Court, there can be no reason for assuming that the
Constitution left one small part of the election process to be made the
subject-matter of contest before the High Courts and thereby upset the
time schedule of the elections. The more reasonable view seems to be that
Article 329 covers all ‘electoral matters’.
25. The conclusions which I have arrived at may be summed up briefly
as follows :
[1] Having regard to the important functions which the legislatures have
to perform in democratic countries, it has always been recognised to be a
matter of first importance that elections should be concluded as early as
possible according to time schedule and 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.
[2] In conformity with this principle, the scheme of the election law in this
country as well as in England is that no significance should be attached to
anything which does not affect the ‘election’; and if any irregularities are
committed while it is in progress and they belong to the category or class
which, under the law by which elections are governed, would have the
effect of vitiating the ‘election’ and enable the person affected to call it in
question, they should be brought up before a Special Tribunal by means of
an election petition and not be made the subject of a dispute before any
court while the election is in progress.
Page No. 31/43
* * * * * * *
29. 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.
38. The Hon’ble Supreme Court has resorted to the principle that where a right
or liability is created by a statute which gives a special remedy for enforcing
it, the remedy provided by that statute only must be availed of. It is held to
be a reasonable view that Article 329 covers all ‘electoral matters’. The
negative language in the form of the non-obstante clause in Article 329[b]
has also been considered. It has been observed that Article 329[b] is
primarily intended to exclude or oust the jurisdiction of all courts in regard to
electoral matters and to lay down the only mode in which an election could
be challenged. The Hon’ble Supreme Court has also affirmed the decisions of
eight High Courts that they have no jurisdiction under Article 226 of the
Constitution to entertain petitions regarding the improper rejection of
nomination papers.
39. The observations made and findings reached at in N.P. Ponnuswami
[supra] with regard to 329[b] applies, in the considered view of this Court,
on all fours also in respect of Article 243[b] of the Constitution read with
Section 129[b] of the Assam Panchayat Act.
Page No. 32/43
40. The decision in N.P. Ponnuswami [supra] rendered in respect of Article
329[b] vis-Ã -vis Article 226 of the Constitution of India was considered by a
Constitution Bench of five-Judges in Mohinder Singh Gill and another vs.
the Chief Election Commissioner, New Delhi and others, reported in
[1978] 1 SCC 405. The Constitution Bench has observed as under :-
30. The plenary bar of Article 329[b] rests on two principles : [1] The
peremptory urgency of prompt engineering of the whole election process
without intermediate interruptions by way of legal proceedings
challenging the steps and stages in between the commencement and the
conclusion. [2] The provision of a special jurisdiction which can be
invoked by an aggrieved party at the end of the election excludes other
form, the right and remedy being creatures of statutes and controlled by
the Constitution. Durga Shankar Mehta has affirmed this position and
supplemented it by holding that, once the Election Tribunal has decided,
the prohibition is extinguished and the Supreme Court’s overall power to
interfere under Article 136 springs into action. In Hari Vishnu this Court
upheld the rule in Ponnuswami excluding any proceeding, including one
under Article 226, during the on-going process of election, understood in
the comprehensive sense of notification down to declaration. Beyond the
declaration comes the election petition, but beyond the decision of the
Tribunal the ban of Article 329[b] does not bind.
41. Following the decision in Ponnuswami [supra], the Hon’ble Supreme Court
in Nanhoo Mal and others vs. Hira Mal and others, [1976] 3 SCC 211, held
in a matter of election to the office of the President of a municipality, that
challenge to an election through a writ petition before the High Court under
Article 226 of the Constitution is not permissible on the ground of non-
compliance with the statutory provision, if the statute provides for exclusive
jurisdiction to the Election Tribunal [the District Judge] to determine the
Page No. 33/43
material effect of such non-compliance in an election petition. It was noted
that the statute provided for only one remedy, that being an election petition
to be presented after the election was over. Apart from that remedy, there
was no other remedy provided for in the statute at any intermediary stage.
42. The issue whether it would be appropriate for the High Court to interfere
with a election process at an intermediate stage after the commencement of
the election process and before the declaration of the results of the election
to the office of the Panchayat came up for consideration before the Hon’ble
Supreme Court in S.T. Muthusami vs. K. Nataranjan, [1988] 1 SCC 572.
Interference was sought for as regards allotment of symbol to validly
nominated candidates. The Hon’ble Court had held that the interference by
the Division Bench of the High Court in exercise of its writ jurisdiction under
Article 226 of the Constitution was not justified. The parties who were
ultimately aggrieved by the result of the election can question the validity of
election by an election petition, which is an effective alternative remedy. The
decisions in Jaspal Singh Arora vs. State of M.P. and others, [1998] 9 SCC
594 and Gurdeep Singh Dhillon vs. Satpal, [2006] 10 SCC 616; are in
similar lines basing on Article 243ZG[b] of the Constitution, a provision
similarly worded like Article 329 [b] and Article 243O [b] of the Constitution.
43. In C. Subrahmanyam vs. K. Ramanjaneyullu, [1998] 8 SCC 703, a three-
Judge Bench of the Hon’ble Supreme Court observed that a writ petition
should not be entertained when the main question which left for decision
before the High Court was non-compliance with the provisions of the
concerned statute which can be one of the grounds for en election petition.
44. Thus, the consistent principle which has emerged is that the term, ‘election’
is interpreted broadly to include all steps and proceedings commencing from
the date of notification of election till the date of declaration of results. The
submission of nomination papers, scrutiny of nomination papers, acceptance
Page No. 34/43
of nomination papers and rejection of nomination papers are all intermediate
stages in an election process. Improper acceptance of nomination paper of a
candidate, who has ultimately been elected, would allow a rival contesting
candidate to present an election petition before the jurisdictional Election
Tribunal and the same may lead to setting aside of the result of the elected
candidate. Similarly, improper rejection of nomination paper of a candidate is
a ground to present an election petition for a contesting candidate. Once the
process of election starts in the wider sense, then it is of utmost priority that
the process of election is concluded according to the time-schedule. Any
controversy or dispute arising at the intermediate stages can be postponed
for decision till after the election process is over so as to ensure an
uninterrupted election adhering to the time-schedule and so that the process
of election is not protracted. Conduct of election to the Panchayats is of
paramount importance in a democracy and the process is arduous and time-
taking. There is involvement of huge manpower and resources. Interference
in the intermediate stages of the election process is not ordinarily called for
unless an exceptional case is made out, that too, when such interference is
called for to promote the election process. It is only in a case where the
wrong done during the intermediate stage cannot be undone after the end of
the election process, the court can examine the question taking primarily into
consideration the factors like the facts and circumstances of the case,
whether such interference would interrupt or postpone the ongoing process
of election or would facilitate a better process of election.
45. The above view is guided by the analysis done by the Hon’ble Supreme Court
in Election Commission of India vs. Ashok Kumar and others, reported in
[2000] 8 SCC 216, where the Hon’ble Court after analyzing the two
Constitution Bench decisions in Ponnuswami [supra] and Mohinder Singh
Gill [supra], has summed up to the effect that if an election [the term
election being widely interpreted so as to include all steps and entire
proceedings commencing from the date of notification of election till the date
Page No. 35/43
of declaration of result] is to be called in question and which questioning
may have the effect of interrupting, obstructing or protracting the election
proceedings in any manner, the invoking of judicial remedy has to be
postponed till after the completing of proceedings in elections.
46. The decision of the co-ordinate bench in Lila Sarma and others vs. State of
Assam and others, 2019 [1] GLT 302, was in a batch of writ petitions
wherein rejection of nominations of the petitioners for contesting the then
ensuing Panchayat Election in the State of Assam was challenged. Prayers
were made for quashing of such rejection of nomination papers and for
directing the respondents to allow the petitioners therein to contest the
Panchayat Election by treating their nomination papers as valid. The Court
framed following three issues which arose for consideration in the said batch
of writ petitions :-
[1] What is the meaning of the expression ‘election’? Whether rejection
of nomination would fall within the ambit of the said expression ‘election’?
[2] Whether in view of the bar under Article 243O of the Constitution and
under Section 129 [b] of the Panchayat Act, judicial review under Article
226 of the Constitution is totally excluded?
[3] Whether petitioners are entitled to the reliefs as claimed?
47. The meaning of the expression ‘election’ has already been deliberated above,
both in the narrower sense and in the wider sense and, thus, is not required
to be dilated upon. It has been held that acceptance or rejection of
nomination paper would certainly fall within the ambit of the expression,
‘election’. In so far as the other two issues are concerned, the co-ordinate
bench after a detail survey of the decisions in N.P. Ponnuswami [supra],
Mohinder Singh Gill [supra], Manda Jaganath vs. K.S. Rathnam, [2004]
7 SCC 492, Pratap Chandra Mehta vs. State Bar Council of M.P., [2011] 9
SCC 573, Boddula Krishnaiah vs. State Election Commissioner, A.P.,
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[1996] 3 SCC 416, and Shaji K. Josesh vs. V. Viswanath, [2016] 4 SCC
429; have answered the two issues, [2] and [3] in the following words : –
45. Thus, from a careful and conjoint analysis of the judgments of the
Supreme Court as above, what comes to the fore is that ordinarily a
challenge to an election has to be by way of an election petition as
provided under the statute. However, neither Article 329 nor Article 243O
totally ousts judicial review from an electoral process, so also the provision
of Section 129[b] of the Panchayat Act. If the decision of the Returning
Officer or the Election Officer is found to be erroneous which obstructs the
democratic process or which creates hurdles in the free flow of election or
which creates a situation where free and fair election is hampered, High
Court under Article 226 will certainly intervene and remedy the situation to
further the cause of the electoral process. But while doing so, the writ
Court would be extremely circumspect and slow in invoking its power of
judicial review. It is only when a full-proof case is made out in extraordinary
circumstances, High Court would invoke its writ jurisdiction under Article
226 of the Constitution. Question No. 2 is answered accordingly.
46. Coming to all important issue dealt with by question no. 3, Court is of
the view that election as per the schedule is just round the corner. Today is
28th of November and the first phase of election is just 7 days away.
Intervention by the writ Court at this stage would cause manifold
administrative problems for the State Election Commission besides
creating confusion in the minds of the electorate. The electorate must have
a clear picture before them while exercising their right of franchise.
Intervention by the Court at this eleventh hour would confuse the situation
which would not be in the interest of free and fair election. As a matter of
fact, a Division Bench of this Court in Writ Appeal No.330/2018, Jahanara
Begum vs. State of Assam, disposed of on 16.11.2018 has taken the view
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that when the election process has been set in motion, Court would not
interfere in such matters by issuing any direction.
47. In that view of the matter, Court is not inclined to entertain the writ
petitions. However, petitioners would have their remedy under Section
129[b] of the Panchayat Act which provides for filing of election petition
within 60 days from the date of declaration of result. As noticed above,
election results are scheduled to be declared on 12.12.2018. Petitioners
may avail their remedy under Section 129[b] of the Panchayat Act within
60 days from 12.12.2018 and if such election petitions are filed, concerned
Panchayat Election Tribunals shall expeditiously hear and decide the
election petitions if necessary on day-to-day basis. It may be pointed out
that under Section 86[7] of the Representation of the People Act, 1951,
every election petition is required to be tried as expeditiously as possible
and endeavour should be made to conclude the trial within six months from
the date on which election petition is presented.
47.1. That being the position, Panchayat Election Tribunals shall decide
the election petitions of the petitioners, if filed, as expeditiously as possible
and if necessary by holding day-to-day hearing and conclude the same
within a period of 6 months from the date of filing of the election petitions.
48. Having considered the bar embedded in Article 243O[b] of the Constitution
of India and Section 129[b] of the Assam Panchayat Act and the fact
situation obtaining in the cases in hand as regards acceptance or rejection of
the nomination papers of the petitioner or the respondents impleaded in this
batch of writ petitions, as the case may be, this Court fully subscribe to the
observations made by the co-ordinate bench in Lila Sarma [supra] in the
afore-quoted paragraphs 45, 46 and 47.
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49. It is settled that the right to elect, to be elected and to dispute an election
are neither fundamental rights nor common law rights. These rights are
subject to statutory limitations. An election petition is neither an action at
common law nor in equity, but is a statutory proceedings to which only
statutory rules apply. It is also pertinent to observe that if a person is
disqualified on the date of submission nomination paper, he cannot be
chosen as a candidate under the provisions of Part-IX of the Constitution of
India and the Assam Panchayat Act, more particularly, Section 111 thereof.
Even if the disqualification which subsisted on the date of filing nomination,
does not cease to subsist on the date the candidate is elected, the
disqualification attracted on the date of nomination would not be wiped out
retrospectively.
50. Clause [e] of Section 111 [1] of the Assam Panchayat Act has stipulated that
no person shall be elected or co-opted and remain as President, Vice-
President or Member of Zilla Parishad, Anchalik Panchayat and Gaon
Panchayat, if he or she holds any office of profit under Government or any
educational institution recognized and received grant from the Government,
or holds remunerated office under Zilla Parishad, Anchalik Panchayat and
Gaon Panchayat, or holds any contract under any of the aforesaid bodies or
under the Government. Reverting back to the facts of the cases in hand, the
question whether the party-respondent no. 6 impleaded in the writ petition,
W.P.[C.] no. 2178/2025 and the party-respondent no. 5 in the writ petition,
W.P.[C.] no. 2186/2025, who have not been heard in the present
proceeding, have incurred the disqualification under Section 111[1][e], as
alleged by the petitioners, or not are questions of fact which cannot be gone
into by this Court, at this stage, in the writ jurisdiction. The matters of the
said respondents’ disqualification or otherwise can be gone into appropriately
by the Panchayat Election Tribunal. For factual determination of these
questions of fact, evidence to be led by the parties are required to be
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appreciated. The same is clearly a ground which reinforces the view of this
Court that these writ petitions are not to be entertained at this stage.
51. It is already found that acceptance of nomination paper of a candidate who
is to be disqualified under Section 111 of the Assam Panchayat Act, or non-
acceptance of nomination paper of a candidate on untenable ground can be
a ground for a contesting candidate to prefer an election petition. As such
options are open to the petitioner no. 2 in W.P.[C.] no. 2174/2025; the
petitioner in W.P.[C.] no. 2186/2025; and the petitioner in W.P.[C.]
2202/2025, the same clearly gives rise for another ground not to entertain
their writ petitions.
52. The two writ petitions, W.P.[C] no. 2178/2025 and W.P.[C] 2186/2025
pertain to the 1st phase of the Panchayat Election, 2025. The writ petition,
W.P.[C] no. 2202/2025 pertains to the 2nd phase of the Panchayat Election,
2025. The date of polling for the 1st phase of Panchayat Election is scheduled
on 02.05.2025 and the 2nd phase of Panchayat Election is scheduled on
07.05.2025. The date of counting for both the phases is scheduled on
11.05.2025. Meaning thereby, the date of polling is hardly two days away for
the 1st phase and seven days away for the 2nd phase. It is well followed
proposition that the imminence of the electoral process is always a factor
which must guide and govern the passing of orders in the exercise of the
High Court’s writ jurisdiction. Intervention of the process of election at this
last hour, would cause a number of administrative and other problems for
the State Election Commission apart from clouding the minds of the large
populace who is going to vote.
53. If the writ petitions are not entertained at this stage, neither the rights of the
petitioner no. 2 in W.P.[C] no. 2178/202 nor the right of the petitioner in
W.P.[C] no. 2186/2025 would be extinguished to challenge the acceptance of
concerned nomination papers of their rival contesting candidate. Similarly,
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non-acceptance of nomination papers of the petitioner in W.P.[C] no.
2202/2025 would not extinguish his right to present an election petition. On
the other hand, entertaining the writ petitions would not be in the best
interest of the Panchayat Election being conducted all throughout the State
and passing orders thereon would cause injustice, hardship and
inconvenience to the huge number of voters who have a right to elect their
representatives to the Panchayats. Facilitation of expeditious completion of
the Panchayat Election and the right to elect of the huge number of voters to
elect their representatives far outweigh the interests of the petitioners in
these three writ petitions. Thus, this Court is of the unhesitant view that the
writ petitions are not to be entertained in view of the restrictions placed in
Article 243O[b] of the Constitution and Section 129[b] of the Assam
Panchayat Act. It is accordingly ordered. All the three writ petitions are,
therefore, dismissed.
54. Non-entertainment of the writ petitions shall not, however, preclude the
petitioners who are contesting candidates or had submitted nomination
paper to contest the Panchayat Election, to avail their remedy under Section
243O[b] of the Constitution and Section 129[b] of Assam Panchayat Act.
Other than the petitioner no. 1 in W.P.[C] no. 2178/2025, the other
petitioners would not, therefore, be precluded from filing election petitions
before the jurisdictional Panchayat Election Tribunal within the stipulated
period of limitation after declaration of the results. In so far as the petitioner
no. 1 in W.P.[C] no. 2178/2025 is concerned, he can explore the possibility
of filing a writ petition only after declaration of the results with regard to
party-respondent no. 6 if after declaration of the results of the Panchayat
Election, the party-respondent no. 6 gets elected, within the limited scope,
as observed in Bharati Reddy-II [supra].
55. The petitioner in the writ petition, W.P.[C.] 2202/2025 had sought to
exercise his right to get elected to an office of the Panchayat. But, his
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endeavour to get elected has got snapped in the mid-stream with non-
acceptance of his nomination paper by the Authorized Officer. In so far as
the grievance of the petitioner in W.P.[C] no. 2202/202 that he has not been
informed the reason for rejection of his nomination paper is concerned, Mr.
Ahmed, learned counsel for the petitioner has argued that if the nomination
of the petitioner was rejected for one reason or another, the petitioner at
least has the right to know the reason why his nomination has been rejected.
Such reason ought to have been provided to the petitioner by the Returning
Officer in writing. Only if the ground of rejection is known, he could be in a
position to present an effective election petition.
56. Mr. Dubey, learned Standing Counsel, ASEC has submitted that the Assam
State Election Commission is following the Guidelines laid down in the
Handbook for Returning Officer, 2023, published by the Election Commission
of India in matters of scrutiny of nomination papers and other ancillary
matters. He has referred to Clause 6.10.2 of the Handbook to submit that in
case an Authorized Officer rejects a nomination then he is required to record
the reasons for rejection of the nomination on the spot and supply a certified
copy of the order immediately to the candidate whose nomination has been
rejected by him. Mr. Dubey has fairly submitted that in case the reason for
rejection of the nomination has not been furnished to the petitioner in the
writ petition, W.P.[C] no. 2202/2025 by the Authorized Officer, then a
direction is called for to that effect.
57. As it is submitted by Mr. Dubey, learned Standing Counsel, ASEC that the
Authorized Officers appointed under Rule 22 of the Assam Panchayat
[Constitution] Rules, 1995 have been instructed by the Assam State Election
Commission to follow the guidelines in the Handbook for Returning Officer,
2023 published by the Election Commission of India, Clause 6.10.2 of the
Handbook is of relevance. Clause 6.10.2 is quoted hereinbelow for ready
reference :-
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Clause 6.10.2 : Returning Officer should invariably record the reasons for
rejecting a nomination paper on the spot and supply certified copies of
the order immediately in cases where the nomination papers filed by a
candidate have been rejected by him/her. This may be done even in the
absence of an application from a candidate and without payment. Where
one of the nomination papers of a candidate is accepted and the other
one is rejected on valid ground by Returning Officer, in that case, he/ she
shall supply a certified copy of his/her order mentioning the reason of
rejection of the other nomination paper to the candidate, if he applies for
it. It may be noted that if any of the nomination paper is found valid and
accepted, that candidate will be a validly nominated candidate even if the
other nomination papers are rejected.
58. From the afore-quoted Clause 6.10.2, it is discernible that a Authorized
Officer should invariably record the reasons for rejecting a nomination
paper on the spot and supply a certified copy of the order immediately in
case where the nomination paper filed by the candidate has been rejected
by him/her. It has further been stressed that a certified copy of the order
recording the reason is to be furnished to the candidate even in the
absence of an application from a candidate and without payment.
59. Having regard to the grievance raised by the petitioner in the writ petition,
W.P.[C] no. 2202/2025 and to the guidelines which are followed by the
Assam State Election Commission including the Authorized Officers
authorized under Rule 22 of the Assam Panchayat [Constitution] Rules,
1995, this Court is of the considered view that if the reason for rejection of
the nomination paper is not furnished by the Authorized Officer till date to
the petitioner in W.P.[C] no. 2202/2025, then the same should be
furnished to the petitioner by the Authorized Officer if the petitioner
approaches him. Therefore, the Authorized Officer who had scrutinized and
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rejected the nomination paper of this petitioner in W.P.[C.] no. 2202/2025,
is directed to furnish a certified copy of his order recording the reason[s]
for rejection of the nomination paper of the petitioner immediately on
submission of a certified copy of this Order to him by the petitioner in
W.P.[C.] no. 2202/2025.
60. The writ petitions are disposed in the afore-stated terms. There shall,
however, be no order as to costs.
JUDGE
Comparing Assistant
