Calcutta High Court (Appellete Side)
Ruksana Khatun vs The State Of West Bengal & Ors on 7 April, 2026
2026:CHC-AS:566
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
W.P.A. 15785 of 2023
Ruksana Khatun
versus
The State of West Bengal & Ors.
For the Petitioner : Mr. Samim Ahammed, Advocate
Mr. Arka Maiti, Advocate
Ms. Gulsanwara Pervin, Advocate
For the State : Mr. Lalit Mohan Mahata, Ld. AGP
Mr. Rudranil De, Advocate
For the State Election : Ms. Sonal Sinha, Advocate
Commission Ms. Shabnam Farooqi, Advocate
Heard on : 18.03.2025, 22.04.2025, 13.05.2025,
22.05.2025, 30.06.2025, 07.07.2025
Judgment on : 07.04.2026
Bivas Pattanayak, J.:-
1. In the present writ petition, the petitioner has sought for following
orders.
(i) Issue direction upon the State Election Commission to upload
the declaration of the candidate concerned as well as nomination
forms on its official website; and
(ii) For quashing the candidature of Anil Barnwal, a General
category candidate, elected in the constituency reserved for Other
Backward Class (in short, „OBC‟)
(iii) For setting aside the OBC certificate of Anil Barnwal;
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(iv) Issue direction for an independent and impartial investigation
into the State Election Commission's failure to take appropriate
steps despite receiving complaints of a General category
candidate contesting in a Reserved constituency as well as
sudden change of the candidate's category from General to OBC.
2. The petitioner contends as follows. The petitioner is an elector in the
Ukhra/XI-11 constituency under Ukhra Gram Panchayat, Andal
Block, Paschim Bardhaman. The aforementioned constituency is
reserved for OBC as per the delimitation order. On 17th June 2023,
the petitioner noticed in the official website of the West Bengal State
Election Commission (in short WBSEC) that a candidate belonging to a
General category namely private respondent no.7, Anil Barnwal was
listed as a contestant in the Reserved constituency. The State Election
Commission failed to upload the scanned copies of the candidates'
declarations and nomination forms as required. As a result of which,
the petitioner had no means to verify the actual reservation papers of
the candidates. The subject candidate namely, Anil Barnwal does not
belong to OBC category since the surname „Barnwal‟ is not listed in
the list of OBCs for the State of West Bengal. The petitioner made
complaints against the said candidate namely Anil Barnwal raising
concerns that a candidate belonging to General category is contesting
in the constituency reserved for OBC candidate. However, no action
was taken to cancel or quash the candidature of Anil Barnwal. On
30th June 2023, the category of Anil Barnwal was changed to OBC in
the official website which is a manipulative action purposefully made
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in favour the ruling political dispensation in the State. Being
aggrieved by and dissatisfied with the action of the respondent
authorities concerned, the petitioner has preferred the present writ
petition seeking for aforementioned reliefs.
3. The State-respondents filed an affidavit furnished by Sub-Divisional
Officer, Asansol (Sadar), Paschim Bardhaman in respect of issuance
of OBC Certificate to Anil Barnwal. It is stated therein that, as per the
available office records, an application was received through online
portal of Backward Classes Welfare Department. Subsequently, the
Caste Certificate Section of the office also received the hardcopy of the
application along with necessary documents. The said Anil Barnwal
did not submit his Electors Photo Identity Card (in short, „EPIC‟),
however, that is not a mandatory document for issuance of OBC
Certificate. Moreover, a person may register his/her name as elector
in any assembly constituency where he/she ordinarily resides. For
the purpose of issuance of OBC Certificate, the permanent residential
address of the concerned person is taken into consideration as per
memorandum issued by Backward Classes Welfare Department. The
said Anil Barnwal has made self-declaration by way of an affidavit
stating that his family members are permanent residents of Rajpara,
Ranigunj since the year 1993. On the basis of the above documents,
the OBC Certificate was issued in favour of the said person. The
application for issuance of OBC Certificate was made on 1st July,
2022 before the notification of Panchayat General Election. Thus, the
application for issuance of OBC Certificate was not processed for the
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purpose of election. Further no complaint is received challenging the
OBC Certificate issued to said Anil Barnwal.
4. The petitioner filed an affidavit-in-reply with the contention that the
signature of the candidate namely Anil Barnwal is forged one. Further
the affidavit before the Magistrate is obtained by fraud. The Aadhar
Card annexed to the report is a manufactured document. The Voters
Identity Card annexed to the report cannot be the EPIC card of his
father who died in the year 1994. The electoral roll of Ukhra Gram
Panchayat, Block Andal shows that at least from the year 2016 the
said candidate is a permanent resident of said Gram Panchayat. The
report does not demonstrate as to how the authority was satisfied
with the family tree. There is discrepancy in the name of the
grandfather of the said candidate. Moreover, the ration card and other
records would show that the candidate is a resident of village-Ukhra
within Sub-Division-Durgapur. Therefore, the authority of Asansol
Sub-Division did not have the jurisdiction to issue OBC Certificate in
his favour. The other members, which have been shown in the family
tree, are absolutely incorrect as those persons do not have any
connection with the family of Anil Barnwal. Accordingly, the entire
conspiracy needs to be revealed in order to ensure transparency in
the process and restore trust in the action of public authority.
5. Mr. Samim Ahammed, learned advocate for the petitioner submitted
that the writ petition has been filed with the allegation of fraudulent
procurement of OBC certificate by the concerned candidate,
inconsistency in the respondent's age and residence details as well as
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administrative negligence in issuing the OBC Certificate. The private
respondent no.7 has procured an OBC Certificate on the basis of
materially inconsistent and contradictory records. The Aadhaar Card
records the date of birth of the concerned candidate as 7th May, 1990,
but inexplicably states the age band as 40-50 years. The Voter Card
verification shows the respondent's age as 53 years, which is
inconsistent with the declared date of birth. The other official records
exhibit ages, namely 32, 45, 46, 48, and 53 years, clearly
demonstrating falsification of age-related documents. As regards the
residence details, there are also inconsistencies. While the OBC
certificate application claims residence at Raniganj under Asansol
Sadar, other records, including Voter Card and Ration Card, indicate
residence at Ukhra. The grandfather's name is alternately recorded as
Ganesh Mudi and Birendra Barnwal in official records, suggesting a
deliberate attempt to mislead authorities regarding caste and family
background. The respondent has also failed to comply with Clause 8
of Memo dated 27th July, 2015, which mandates that the applicant
must be an ordinary resident of the area concerned. The contradictory
residence records demonstrate non-compliance with this requirement.
The Sub-Divisional Officer (SDO), Asansol Sadar, issued OBC
certificate to the respondent candidate without verifying essential
records such as proof of citizenship namely Voter's Card or Ration
Card and inconsistent lineage details. This failure amounts to gross
administrative negligence and undermines the integrity of the
reservation policy. The election to the Ukhra/XI-11 constituency is
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reserved for the OBC candidates as per the delimitation order on
record. The private respondent no.7, belonging to General category,
has unlawfully procured an OBC certificate and contested the election
in violation of the reservation mandate. This act deprives genuinely
eligible candidates of their rightful opportunity, permitting ineligible
candidates to contest elections for reserved seats, directly subverting
the constitutional purpose of the reservation system, which seeks to
ensure equitable representation for marginalized communities.
Despite repeated complaints, neither the Block Development Officer
(BDO) nor the Sub-Divisional Officer (SDO) undertook any meaningful
investigation or corrective action. This administrative inaction
constitutes a clear dereliction of duty that warrants judicial
intervention. Further the respondent candidate claims to have
contested election in the year 1998. However, given the declared date
of birth of 7th May, 1990, the respondent would be only 8 years old at
that time. This claim is manifestly false. Additionally, the councillor's
certificate relied upon by the respondent is jurisdictionally defective
and fails to disclose the certifying councillor's identity, casting serious
doubt upon its authenticity. Documents produced in the
supplementary affidavit indicate that, in fact, the said certificate is a
fake and/or forged document. This Hon'ble Court has a constitutional
duty to protect the integrity of elections by ensuring that only duly
qualified candidates contest reserved seats. Judicial precedence
supports the annulment of fraudulent candidatures and mandates
inquiry into administrative lapses where misrepresentation is
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established. In light of his aforesaid submissions, he prayed for
appropriate orders for cancellation of the candidature of the
concerned candidate namely Anil Barnwal, respondent no.7 and for
issuance of directions for inquiry by independent authority.
6. Mr. Lalit Mohan Mahata, learned Additional Government Pleader
representing the State respondents, on the contrary, submitted that,
in the present writ the principle allegation is of alleged corrupt
practice in acceptance of nomination of a candidate during Panchayat
Election, belonging to General category against the constituency
reserved for OBC candidate. The allegations precisely deal with an act
relating to election matters. As per Article 243-O of the Constitution of
India, there is a clear bar of interference by the Courts in electoral
matters. The aforesaid Article clearly provides that no election to
Panchayat shall be called in question except by way of an election
petition presented to such authority and in such manner as is
provided for or under any law made by the legislature of a State.
Moreover, Section 80 of the West Bengal Panchayat Election Act, 2003
(hereinafter referred to as the Act of 2003) also provides that no
election to Panchayat shall be called in question except by way of an
election petition presented in accordance with the provisions of Part
VI of the Act. Further Section 93 clearly provides the grounds on
which the Court can declare the election to be void. Relying on the
decision of Hon'ble Supreme Court passed in N. P. Ponnuswami
versus The Returning Officer, Namakhal Constituency,
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Namakhal, Salem Dist. and Others1, he submitted that it is well
recognized 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. Clause (a) of Article 329 of the
Constitution of India bars the jurisdiction of the Courts with regard to
such law as may be made under Articles 327 and 328 relating to
delimitation of constituencies or the allotment of seats to such
constituencies. Article 329(b) ousts the jurisdiction of the Courts with
regard to the matters arising between the commencement of the
polling and the final selection. Part XV of the Constitution is a Code in
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. Article 329(b) is a blanket ban of litigative challenges to
electoral steps taken by Election Commission and its officers for
carrying forward the process of election to its culmination in the
formal declaration of the results. It is undisputed that an election can
be challenged only under the provisions of the Act. All the substantial
reliefs which the petitioner has sought in the writ petition including
quashing of the candidature of the candidate can be claimed in
election petition. Therefore, the High Court cannot exercise the
jurisdiction under Article 226 of the Constitution in case of a dispute
relating to election matters. To buttress his contention, he also relied
on the following decisions:
1 (1952) 1 SCC 94
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(i) Harnek Singh versus Charanjit Singh and Others2
(ii) West Bengal State Election Commission and Ors versus
Communist Party of India (Marxist) and Ors3.
(iii) Laxmibai versus The Collector, Nanded & Ors.4
(iv) Karmaveer Tulshiram Autade and Ors. versus The State
Election Commission and Ors.5
(v) The Block Development Officer & Anr. Versus Surajit
Pramanik & Ors.6
(vi) State Election Commission and Another versus Nimai Ray
alias Nimal Roy and Others7
7. Ms. Sonal Sinha, learned advocate appearing for the West Bengal
State Election Commission, submitted that in terms of the
provisions of Article 243K of the Constitution of India, the
superintendence, direction and control of the preparation of electoral
rolls and the conduct of all elections to the Panchayats in West
Bengal are vested in the State Election Commission. The State
Legislature, in pursuance of Article 243K of the Constitution of
India, has made the law and provisions with respect to all matters
relating to or in connection with elections to the Panchayats. In
terms of Article 243-O of the Constitution of India, no election to any
Panchayat shall be called into question except by an election petition
presented to such authority and in such manner as is provided for
2 (2005) 8 SCC 383
3 [2018] 18 SCC 141
4 (2020) 12 SCC 186
5 Writ Petition (ST.) No.26 of 2021 (Decision of Bombay High Court)
6 M.A.T. 1654 of 2023 (Decision of Calcutta High Court)
7 2024 SCC OnLine Cal 5410
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by or under the law made by the legislature of the State. Part VII of
the Act deals with disputes regarding election and in particular
Section 79 of the Act of 2003 provides for the procedure to present
election petition before the appropriate Judge of the district within
which the elections were held. Section 79 of the Act specifically
mandates that, if any dispute arises as to the validity of an election
under this Act, any person entitled to vote such election may within
30 days after the date of declaration of results of such elections, file
a petition calling in question such election on the grounds
mentioned in sub-section (1) of Section 93 and Section 94. Thus, it
is clear that the election to any seat of a Gram Panchayat may be
called into question only by an election petition filed before an
appropriate Judge in terms of Section 79 read with relevant Sections
including Sections 93 and 94 of the Act. Although Article 226 of the
Constitution of India empowers this Hon'ble Court to issue writs not
only for the enforcement of fundamental rights but also for any other
legal rights, there are several orders and judgments of this Court as
well as Hon'ble Apex Court wherein the Hon'ble Courts have denied
to interfere with the results of election and in unequivocal terms
have held that filing of election petition is the only appropriate
remedy in such cases. The issues raised in the instant writ petitions
can be raised only by an election petition presented to such
authority and in such manner as provided in the Act. In support of
her contentions, she relied on the decisions of Hon'ble Supreme
Court passed in Mohinder Singh Gill (supra), and Munsi Najbul Karim
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versus The West Bengal State Election Commission & Ors (Re: MAT
1339 of 2023) and Nimai Roy (supra) passed by the Hon'ble Division
Bench of this Court. In light of her above submissions, she prayed
for dismissal of the writ petition.
8. In reply to the contentions raised on behalf of the respective
respondents, Mr. Ahmed, learned advocate for the petitioner
submitted that the statutory election petition remedy provided under
Sections 80 to 83 is specifically directed against returned candidates
and is limited to the questions of declaring such elections void or
declaring another candidate elected. The scheme clearly
contemplates that the contest is inter se between candidates. By
contrast, the present writ petition seeks to examine the fraudulent
grant of an OBC Certificate by the administrative authorities and the
failure of election machinery to act on objections despite
documentary proof of fraud and ineligibility. The conduct of the
Election Commission or its officers in failing to scrutinize objections
or investigate ineligibility is not justiciable under the statutory
election petition procedure. Sections 81 to 83 make no provision for
impleading the State Election Commission or its officers as parties to
an election petition nor for obtaining relief in the nature or directions
against them. The statutory remedy is thus incomplete and
inadequate to address grievances about the conduct or inaction of
election officials, which are amenable to the writ jurisdiction of this
Hon'ble Court. It is a well-settled principle of law that where there is
no equally efficacious alternative remedy for addressing a grievance,
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such as administrative fraud, inaction or violation of statutory duties
by public authorities, a writ petition remains maintainable. In the
present case, the petitioner has specifically alleged fraudulent
procurement of an OBC Certificate, inconsistency in respondent's
age and residence details and administrative negligence in issuing
the OBC certificate. These matters cannot be adjudicated effectively
within the narrow confines of election petition between candidates as
envisaged under Sections 80 to 83. The provision of Section 80 of the
West Bengal Panchayat Elections Act, 2003, which restricts
challenges to the election by way of election petitions, cannot
override the constitutional jurisdiction of this Hon'ble Court under
Article 226 of the Constitution of India. The Act does not provide a
remedy for investigating the conduct of the Election Commission
adjudicating claims of administrative fraud in certification processes.
Relying on the decision of Hon'ble Supreme Court passed in
Resurgence India versus Election Commission of India8, he
submitted that transparency and integrity in elections are not
merely statutory expectations but constitutional mandates rooted in
the fundamental rights of voters. A voter has a right to know full
particulars of a candidate which is an essential facet of Article
19(1)(a) of the Constitution. Incomplete affidavits cannot be
considered valid nominations and that the returning officer is
constitutionally obligated to ensure that the information provided is
8 (2014) 14 SCC 189
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complete and accurate. In Anup Baranwal versus Union of India9,
the Hon'ble Supreme Court has laid down the clarity that Article 324
is a plenary provision which clothes the Election Commission with
entire responsibility to ensure free and fair elections. This power
though plenary is not absolute and it is bound by the rule of law,
fairness, and constitutional norms. Failing to apply even minimum
scrutiny to the respondent's fraudulent documents while ignoring
detailed objections, the returning officer has treated the parties with
manifest inequality and has discriminated against other candidates
and voters who relied on the integrity of the reservation policy. True
independence of the Election Commission is not unilateralism or
arbitrariness, but fidelity to constitutional values. Further the
constitutional remedies under Articles 226 and 32 form part of the
basic structure of the Constitution and cannot be ousted by
statutory bars. To buttress his contention, he relied on the decision
of Hon'ble Supreme Court passed in UT of Ladakh versus J&K
National Conference10. Thus, the writ petition is very much
maintainable before this Hon'ble Court.
9. Upon hearing the learned advocates for the respective parties, the
question which is to be determined at the very threshold is whether
the issues raised by the petitioner disputing the candidature of a
candidate in the Panchayat Election can be challenged before the
9 (2023) 6 SCC 161
10 2023 SCC OnLine SC 1140
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writ court exercising jurisdiction under Article 226 of the
Constitution of India?
10. In order to examine the aforesaid issue regarding Panchayat elections,
it would be profitable to reproduce the provisions of Article 243-O of
the Constitution of India which reads as hereunder:
"243-O -Bar to interference by Courts in electoral matters.-
Notwithstanding anything in this Constitution--
(a) the validity of any law relating to the delimitation of constituencies
or the allotment of 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."
11. The West Bengal State Legislature in compliance with the constitutional
mandate promulgated West Bengal Panchayat Elections Act, 2003. Under
the Act of 2003, West Bengal Panchayat Election Rules, 2006 have also
been framed. Sections 79, 80 and 93 of the Act of 2003 being relevant in
the present context is reproduced hereunder:
"79. Disputes as to elections._(1) If any dispute arises as to
the validity of an election under this Act, any person entitled to
vote at such election may, within thirty days after the date of
declaration of the results of such election, file a petition, calling
in question such election on one or more of the grounds
specified in sub-section (1) of section 93 and section 94--
(a) before the Civil Judge having jurisdiction where such
election is in respect of a Gram Panchayat or a Panchayat
Samiti,
(b) before the District Judge of the district, where such election
is in respect of a Zilla Parishad or the Siliguri Mahakuma
Parishad.
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(2) When filing a petition under sub-section (1), the petitioner
shall deposit in Court, as security for the costs likely to be
incurred,--
(a) five hundred rupees, where the petition is filed before the
Civil Judge,
(b) one thousand rupees, where the petition is filed before the
District Judge.
(3) Every petition shall be accompanied by as many copies
thereof as there are respondents mentioned in the petition
and every such copy shall be attested by the petitioner under
his own signature to be a true copy of the petition.
(4) The District Judge may transfer any petition filed before
him under sub-section (1) to any Judicial Officer subordinate
to him not below the rank of a Subordinate Judge.
(5) In dealing with a petition under sub-section (1), the Civil
Judge, the District Judge or the Judicial Officer to whom the
petition is transferred under sub-section (4) (hereinafter
referred to as the Judge) may hold such enquiry as he deems
necessary.
(6) The Judges shall have all the powers of a civil Court for
the purposes of receiving evidence, administering oath,
enforcing the attendance of witnesses and compelling the
discovery and production of documents.
(7) The decision of the Judge shall be final and shall not be
called in question in any Court.
80. Election petitions,- No election petitions to Panchayat
shall be called in question except by an election petition
presented in accordance with the provision of this Part.
93. Grounds for declaring election to be void.- (1) Subject
to the provisions of sub-section (2) if the Court is of opinion--
(a) that on the date of his election a returned candidate was
not qualified, or was disqualified, to be chosen to fill the seat
under this Act;
(b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any other
person with the consent of a returned candidate or his
election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected--
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the
returned candidate by an agent other than his election agent,
or
(iii) by the improper reception, refusal or rejection of any vote
or the reception of any vote which is void, or
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(iv) by any non-compliance with the provisions of this Act, or
of any rules made under this Act, the Court shall declare the
election of the returned candidate to be void.
(2) If in the opinion of the Court, a returned candidate has
been guilty by an agent, other than his election agent, of any
corrupt practice but the Court is satisfied--
(a) that no such corrupt practice was committed at the election
by the candidate or his election agent, and every such corrupt
practice was committed contrary to the orders, and without
the consent, of the candidate or his election agent;
(b) that the candidate and his election agent took all
reasonable means for preventing the commission of corrupt
practices at the election; and
(c) that in all other respects the election was free from any
corrupt practice on the part of the candidate or any of his
agents, then the Court may decide that the election of the
returned candidate is not void."
12. Upon bare reading of the aforesaid provisions of the Act of 2003 it
manifests as per section 79 of the Act of 2003 if any dispute arises
as to the validity of an election under the Act, any person entitled to
vote at such election may, within 30 days after the declaration of
the results of such election, file a petition calling in question such
election on one or more of the grounds specified in subsection (1) of
section 93 and section 94. Thus, the aforesaid provision is an
enabling one which permits a person entitled to vote in such
election to challenge and dispute as to elections by way of election
petition. Section 80 of the Act provides that no election to
panchayat shall be called in question except by an election petition
presented in accordance with the provisions of the Act. Section 93
provides the grounds for declaring election to be void. From the
aforesaid provisions it is clear that provisions have been set out in
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the Act of 2003 for challenging the election to the Panchayat by way
of an election petition.
13. The precise allegation of the petitioner is that Ukhra/XI-11
constituency under Ukhra Gram Panchayat, Andal Block, Paschim
Bardhaman is a constituency which is reserved for OBC candidate
as per the delimitation order. On 17th June 2023, the petitioner
noticed in the official website of the State Election Commission that
a candidate belonging to a General category namely private
respondent no.7, Anil Barnwal was listed as a contestant in the
Reserved constituency. The petitioner made complaints against the
said candidate namely Anil Barnwal raising concerns that a
candidate belonging to General category is contesting in the
constituency reserved for OBC candidate. However, no action was
taken to cancel or quash the candidature of Anil Barnwal. On 30th
June 2023, the category of Anil Barnwal was changed to OBC in the
official website which is a manipulative action purposefully made in
favour the ruling political dispensation in the State. In such
backdrop the petitioner has prayed for cancellation of candidature of
the concerned candidates, setting aside the OBC certificate of the
concerned candidate and for impartial investigation. Thus the
petitioner alleges of corrupt practices and manipulation in the
election process. The Panchayat election of the year 2023 was
declared on 9th June 2023. Admittedly, the disputes have been
raised by the petitioner after such date. Now the pertinent question
which arises at this juncture is whether such aspect can be
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examined in writ jurisdiction under Article 226 of the Constitution
after the declaration of the Panchayat Elections.
14. In N.P Ponnusawami (supra) , which is a landmark case in election
laws and deals with the scope, amplitude, rationale and limitations of
Article 329(b) of the Constitution of India, the factual matrix was that
the appellant's nomination for election to the Madras legislative
Assembly was rejected by the Returning Officer and so he hurried to
the High Court praying for a writ of certiorari to quash the order of
rejection, without waiting for the entire elective process to run its full
course and, at the end of it, when the results also were declared, to
move the election Tribunal for setting aside the result of election
conducted without his participation. The concerned candidate was of
the view that if the election proceeded without him, irreparable
damage would have been caused and therefore sought to intercept the
process of election by filing a writ petition. The High Court dismissed
it as unsustainable in view of Article 329(b) of the Constitution of
India. Against such order appeal was preferred before the Hon'ble
Supreme Court, and it would be profitable to reproduce paragraph
Nos. 25 of the decision of Hon'ble Supreme Court as follows.
"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
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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."
15. From the aforesaid proposition as laid down by the Hon'ble Supreme
Court it goes without saying that in a democratic setup it is well
recognised 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. The petitioner has raised disputes only after
the Panchayat elections were notified. The law as laid down by the
Hon'ble Apex court clearly stipulates that if any irregularities are
committed while election 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
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made the subject of a dispute before any court while the election is in
progress. Therefore, the disputes raised by the petitioner in the
present writ petition being election disputes cannot be entertained
under Article 226 of the Constitution of India while election is in
progress and should be brought before the forum prescribed under
the Act of 2003, by means of an election petition.
16. Further in N.P Ponnusawami (supra) the Hon'ble Supreme Court while
considering the effect of Article 329(b) of the Constitution of India
which provides that notwithstanding anything in the Constitution, " no
election to either House of the 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", also observed in paragraph nos. 14,15, 19 and 40 as
follows:
14. The next important question to be considered is what is
meant by the words "no election shall be called in question".
A reference to any treatise on elections in England will show
that an election proceeding in that country is liable to be
assailed on very limited grounds, one of them being the
improper rejection of a nomination paper. The law with which
we are concerned is not materially different, and we find that
in Section 100 of the Representation of the People Act, 1951,
one of the grounds for declaring an election to be void is the
improper rejection of a nomination paper.
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
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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 which 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.
19. It is now well recognised 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. This rule was stated with great clarity by Willes, J.
in Wolverhampton New Waterworks
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Co. v. Hawkesford [Wolverhampton New Waterworks
Co. v. Hawkesford, (1859) 6 CB NS 336 at p. 356 : 141 ER
486] in the following passage : [CB (NS) p. 356 : ER p. 495]
“… There are three classes of cases in which a liability may
be established founded upon statute. One is, where there was
a liability existing at common law, and that liability is
affirmed by a statute which gives a special and peculiar form
of remedy different from the remedy which existed at common
law : there, unless the statute contains words which
expressly or by necessary implication exclude the common
law remedy, and the party suing has his election to pursue
either that or the statutory remedy. The second class of cases
is, where the statute gives the right to sue merely, but
provides no particular form of remedy : there, the party can
only proceed by action at common law. But there is a third
class viz. where a liability not existing at common law is
created by a statute which at the same time gives a special
and particular remedy for enforcing it. … The remedy
provided by the statute must be followed, and it is not
competent to the party to pursue the course applicable to
cases of the second class. The form given by the statute must
be adopted and adhered to.”
The rule laid down in this passage was approved by the
House of Lords in Neville v. London Express Newspapers
Ltd. [Neville v. London Express Newspapers Ltd., 1919 AC
368 (HL)] and has been reaffirmed by the Privy Council
in Attorney General of Trinidad v. Gordon Grant & Co.
Ltd. [Attorney General of Trinidad v. Gordon Grant & Co. Ltd.,
1935 AC 532 (PC)] and Secy. of State v. Mask & Co. [Secy. of
State v. Mask & Co., (1939-40) 67 IA 222 : (1940) 44 CWN
709 : 1940 SCC OnLine PC 10] ; and it has also been held to
be equally applicable to enforcement of rights (see Hurdutrai
Jagadish Prasad v. Official Assignee of Calcutta [Hurdutrai
Jagadish Prasad v. Official Assignee of Calcutta, (1948) 52
CWN 343 at p. 349 : 1948 SCC OnLine Cal 19] ). That being
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so, I think it will be a fair inference from the provisions of the
Representation of the People Act to state that 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.
40. We are informed that besides the Madras High Court,
seven other State High Courts have held that they have no
jurisdiction under Article 226 of the Constitution to entertain
petitions regarding improper rejection of nomination papers.
This view is, in my opinion, correct and must be affirmed. The
appeal must, therefore, fail and is dismissed. In view of the
nature and importance of the points raised in this appeal,
there should be no order as to costs.”
17. In Mohinder Singh Gill (supra) the Constitution Bench of the Hon’ble
Supreme court following the decision in N.P Ponnusawami (supra) observed
as follows while dealing with the provisions of Article 329(b) of the
Constitution of India.
“126. The above being the legal position, Article 329(b) rules
out the maintainability of the writ application. Article 329(b)
provides that “notwithstanding anything in this Constitution
… no election to either House of Parliament . . . 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”. It is
undisputed that an election can be challenged only under the
provisions of the Act. Indeed Section 80 of the Act provides
that “no election shall be called in question except by an
Election petition presented in accordance with the provisions
of” Part VI of the Act. We find that all the substantial reliefs
which the appellants seek in the writ application, including
the declaration of the election to be void and the declaration of
Appellant 1 to be duly elected, can be claimed in the election
petition. It will be within the power of the High Court, as the
election Court, to give all appropriate reliefs to do complete
242026:CHC-AS:566
justice between the parties. In doing so it will be open to the
High Court to pass any ancillary or consequential order to
enable it to grant the necessary relief provided under the Act.
The writ application is therefore barred under Article 329(b) of
the Constitution and the High Court rightly dismissed it on
that ground.
127. In view of our conclusion that the High Court had no
jurisdiction to entertain the writ application under Article 226
of the Constitution, it will not be correct for us, in an appeal
against the order of the High Court in that proceeding, to enter
into any other controversy, on the merits, either on law or on
facts, and to pronounce finally on the same. The pre-eminent
position conferred by the Constitution on this Court under
Article 141 of the Constitution does not envisage that this
Court should lay down the law, in an appeal like this, on any
matter which is required to be decided by the Election Court
on a full trial of the election petition, without the benefit of the
opinion of the Punjab and Haryana High Court which has the
exclusive jurisdiction under Section 80-A of the Act to try the
election petition. Moreover, a statutory right to appeal to this
Court has been provided under Section 116-A, on any
question, whether of law or fact, from every order made by
the High Court in the dispute.”
18. In Harnek Singh (supra) the Hon’ble Supreme Court while dealing with
maintainability and scope of interference under Article 226 of the
Constitution of India observed as follows:
“16. Article 243-O of the Constitution mandates that all
election disputes must be determined only by way of an
election petition. This by itself may not per se bar judicial
review which is the basic structure of the Constitution, but
ordinarily such jurisdiction would not be exercised. There may
be some cases where a writ petition would be entertained but
in this case we are not concerned with the said question.
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17. In C. Subrahmanyam [(1998) 8 SCC 703] a three-Judge
Bench of this Court observed that a writ petition should not be
entertained when the main question which fell for decision
before the High Court was non-compliance with the provisions
of the Act which was one of the grounds for an election
petition in terms of Rule 12 framed under the Act.
18. Yet again in Jaspal Singh Arora [(1998) 9 SCC 594] this
Court opined: (SCC p. 595, para 3)
“3. These appeals must be allowed on a short ground. In view
of the mode of challenging the election by an election petition
being prescribed by the M.P. Municipalities Act, it is clear that
the election could not be called in question except by an
election petition as provided under that Act. The bar to
interference by courts in electoral matters contained in Article
243-ZG of the Constitution was apparently overlooked by the
High Court in allowing the writ petition. Apart from the bar
under Article 243-ZG, on settled principles interference under
Article 226 of the Constitution for the purpose of setting aside
election to a municipality was not called for because of the
statutory provision for election petition and also the fact that
an earlier writ petition for the same purpose by a defeated
candidate had been dismissed by the High Court.”
xxxxxxxx
22. In this view of the matter, we are of the opinion that it
was not a fit case where the High Court should have
exercised its writ jurisdiction.”
19. In Communist Party of India (Marxist) (supra) a three-judge Bench of
Hon’ble Supreme Court observed that any dispute regarding election has
to be pursued in the manner which is provided in Part VII of the Panchayat
Election Act. The Panchayat Election Act is a complete code in regard to
conduct of the poll and for the resolution of disputes concerning the
validity of the election. Article 243K entrusts the superintendence,
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direction and control over the conduct of all elections to the panchayats in
the State Election Commission. The discipline which is mandated by the
provisions of the Constitution and enforced by the enabling State law on
the subject must be maintained. Any dispute in regard to the validity of
the election has to be espoused by adopting a remedy which is known to
law namely through an election petition. It is at the trial of an election
petition that factual disputes can be resolved on the basis of evidence. It
observed that once the election process has commenced, it is trite law that
it should not be interdicted mid-stage.
20. In Laxmibai (supra) a three-judge Bench of the Hon’ble Supreme Court
observed as follows:
“43. Section 10-A of the 1959 Act and Section 9-A of the 1961
Act read with Articles 243-K and 243-O, are pari materia with
Article 324 of the Constitution of India. In view of the judgments
referred, we find that the remedy of an aggrieved person
accepting or rejecting nomination of a candidate is by way of an
election petition in view of the bar created under Section 15-A of
the 1959 Act. The said Act is a complete code providing
machinery for redressal to the grievances pertaining to election
as contained in Section 15 of the 1959 Act. The High Court
though exercises extraordinary jurisdiction under Article 226 of
the Constitution of India but such jurisdiction is discretionary in
nature and may not be exercised in view of the fact that an
efficacious alternative remedy is available and more so exercise
restraint in terms of Article 243-O of the Constitution of India.
Once alternate machinery is provided by the statute, the
recourse to writ jurisdiction is not an appropriate remedy. It is a
prudent discretion to be exercised by the High Court not to
interfere in the election matters, especially after declaration of
the results of the elections but relegate the parties to the remedy
272026:CHC-AS:566
contemplated by the statute. In view of the above, the writ
petition should not have been entertained by the High Court.
However, the order of the High Court that the appellant has not
furnished the election expenses incurred on the date of election
does not warrant any interference.”
21.Similarly the Full-bench of Hon’ble Bombay High Court in Karmaveer
Tulshiram Autade (supra) after considering various decisions of Hon’ble
Supreme Court including N.P Ponnuswami (supra) and Mohinder Singh Gill
(supra) has held that Article 243-O of the Constitution of India is a bar for
entertaining a writ petition under Article 226 of the Constitution of India
against an order of rejection passed by Returning Officer.
22. In Surajit Paramanik (supra) the Hon’ble Division Bench of this court has
acceded and adopted the aforesaid observation of the Full-Bench of
Hon’ble Bombay High Court and held that the rejection of nomination
paper give rise to an election dispute. Such dispute can be resolved only by
filing an election petition in accordance with the provisions of West Bengal
Panchayat Elections Act, 2003 read with rules framed thereunder. Under
Article 243-O of the Constitution, there is a constitutional bar to the
maintainability of any other form of legal proceeding for adjudicating an
election dispute. It is time that judicial review is part of the basic structure
of the Constitution and that power of High Court’s cannot be ousted by
any piece of legislation. However, it is a discretionary power, and it will be
a sound exercise of discretion to decline to exercise such power always
when an election dispute is sought to be made the subject matter of a writ
petition. Bearing in mind the aforesaid observation and reverting to the
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facts of this case it is found that the acceptance of nomination of the
concerned candidate after declaration of Panchayat Elections 2023, is
challenged in the present proceedings by way of filing a writ petition,
which is an election dispute and therefore can only be resolved by filing an
election petition in accordance with the provisions of Act of 2003 read with
rules framed thereunder.
23. Under similar circumstances the Hon’ble Division Bench of this Court
in Sanjay Mondal (supra), Nimai Ray alias Nimai Roy (supra) and Munsi
Najbul Karim (supra) has held that writ petition under Article 226 of the
Constitution of India is not maintainable in case of election disputes.
24. In view of the judgements referred, this court finds that the remedy of
an aggrieved person regarding acceptance or rejection of nomination of a
candidate, being an election dispute, lies by way of an election petition in
view of the bar created under section 80 of the Act of 2003. The said Act is
a complete code providing machinery for redressal of the grievances
pertaining to election in the Panchayats. The High Court though exercises
extraordinary jurisdiction under Article 226 of the Constitution of India
but such jurisdiction is discretionary nature and may not be exercised
where an efficacious alternative remedy is available and also bearing in
mind the provisions of Article 243-O of the Constitution of India which
pertains to Panchayat Elections putting bar to interference by courts in
electoral matters. Once alternate recourse is provided by the statute, the
recourse to writ jurisdiction is not appropriate. The only remedy available
to aggrieved party would be to raise the disputes as per provisions of the
Act of 2003. Thus, it appears that the law is well settled that any election
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dispute insofar as Panchayat election in the State are concerned must be
resolved by the forum prescribed under the Act of 2003 and the
jurisdiction of the writ court under Article 226 of the Constitution cannot
be invoked by an aggrieved party in that regard.
25. In Resurgence India (supra) the Hon’ble Supreme Court has the
occasion to deal with voters right to know candidate’s antecedents which is
a fundamental right under Article 19 (1)(a) of the Constitution of India and
provision of Section 33A of the Representation of People Act, 1951 which
was enacted to effectuate the right of voters. It held that acceptance of
nomination forms with blank particulars in affidavit directly violates the
fundamental rights. The case addresses the enforcement of affidavit
requirements for election candidates under the Representation of the
People Act, 1951 (in short RP Act), particularly Sections 33A, 36, and 125A.
Be that as it may, the said decision does not lay down any proposition that
election disputes can be entertained under writ jurisdiction.
26. The decision in Anoop Barnwal (supra) which is a landmark decision
by a five-judge Constitution Bench of the Hon’ble Supreme Court of India
addresses the appointment process for the Chief Election Commissioner
(CEC) and Election Commissioners (ECs), as essential to free and fair
elections, a cornerstone of Indian democracy. Thus, the decision is
distinguishable from the case at hand.
27. In view of the aforesaid, the writ petition being WPA 15785 of 2023 is
dismissed as not maintainable.
28. There shall be no order as to costs.
29. Interim order, if any, stand vacated.
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30. All connected applications, if any, stand disposed of.
31. It is made clear that this Court has not expressed any opinion on the
merits of the writ petitioner’s grievance as ventilated in the writ petition.
The petitioner will be at liberty to pursue the statutory remedy that is
available to her, in accordance with law, if she is still entitled to do so in
law.
32. Urgent photostat certified copy of the order if applied for be given to
the parties upon compliance of all necessary legal formalities.
(Bivas Pattanayak, J.)
