AMBABHAI POPATBHAI Vs. B A PANDEY

JUDGEMENT

(1.) This Letters Patent Appeal is against the order passed by the learned single Judge dismissing Special Civil Application No. 3862 of 1989. In the Special Civil Application the appellant herein has prayed for quashing the orders of the authorities concerned which are at Annexures A and B to the Special Civil Application and has prayed for accepting his nomination paper for the post of Sarpanch of Kapadiali Gram Panchayat. It is clear from the facts of the case that the election process has started and the Returning Officer has rejected the nomination paper of the appellant herein after scrutiny of nominations as per Rule 10 of the Gujarat Gram and Nagar Panchayats Election Rules 1962 The rejection is on the ground that the appellant has mentioned that his name is at Serial No. 107 of the Voters List while as a matter of fact it is at Serial No. 40. Thus it is clear from the facts alleged that the appellant wants to put forth his case on the ground that it is an improper rejection of his nomination paper. Section 24 of the Gujarat Panchayats Act 1961 (Gujarat Act No. VI of 1962) clearly states that the validity of the election of a member of the panchayat has to be determined by a Judge as per the procedure set up thereunder. Section 24(1) reads as follows:

(2.) Mr. Mishra the learned Counsel appearing for the appellant assails the order passed by the learned single Judge stating that the learned single Judge ought to have admitted the Special Civil Application in view of the decision in the case of Navuba v. Returning Officer reported in [1982 (2)] XXIII (2) GLR 397. In [1982(2)] XXIII (2) GLR 397 (supra) the nomination of the reserved seat for women swat rejected by the Returning Officer on the ground that on scrutiny of the nomination paper it was found that the candidate has not mentioned her number in voters list. Mr. Mishra on analogy states that this case will squarely apply to the facts of the present case and at such the learned single Judge ought to have admitted the Special Civil Application and granted the interim relief asked for therein. It will be interesting to extract the relevant portion of the judgment in [1982 (2) XXIII (2) GLR 397 (supra) in order to appreciate the arguments advanced by Mr. Mishra. The relevant portion reads as follows (at page No. 398 of GLR):

(3.) As far as the present case is concerned there is a candidate who has to be declared as elected since two other candidates nomination papers have been rejected. The third candidate who is in the field and whose nomination paper has been accepted will be automatically declared elected and if at all the other candidates whose nomination papers have been rejected have any grievance the remedy for them is by way of an election petition and not by invoking the jurisdiction of this High Court under Art. 226 of the Constitution of India. Both our High Court and the Supreme Court have in many decisions deprecated the interference in the process of election by Courts after election process has started. It has also been held that the only remedy available to an aggrieved candidate in such cases is by way of an election petition after the election is over and not to stall the election in the middle. It is unnecessary for us to quote the various decisions in this field since it is a settled principle that when there is an efficacious alternative remedy available for the appellant he cannot be permitted to come by way of a writ petition under Art. 226 of the Constitution of India. The learned single Judge has correctly appraised all these facts of the case and has dismissed the Special Civil Application. We are in complete agreement with the reasoning of the learned single Judge and accordingly this Letters Patent Appeal is dismissed Appeal dismissed.