PRITHVI RAJ Vs. STATE ELECTION COMMISSION, PUNJAB

JUDGEMENT

(1.) WE are called upon to answer, a reference, dated 30.6.2004, doubting, the correctness of the opinion, rendered by a Full Bench, in Lal Chand v. State of Haryana, 1998(3) RCR(Civil) 255 : 1998(1) PLJ 577.

(2.) IN order to place the present controversy in its correct perspective, it would be necessary to briefly recapitulate the facts leading to the present reference.

(3.) THE respondents raised a preliminary objection as to the maintainability of the petition by asserting that clause (b) of Article 243-ZG of the Constitution of India, states that notwithstanding anything contained in the Constitution no election to a Municipal Council shall be called in question except by an election petition and therefore the jurisdiction of the High Court to entertain a writ petition against the impugned order, was barred. It was further asserted that the State of Punjab, in obedience to the mandate of Articles 243K and 243ZA of Constitution, had enacted the Punjab State Election Commission Act, 1994 (herein after referred to as "Election Commission Act"). Article 243ZG(b) of the Constitution and Section 74 of the Election Commission Act provide that no election shall be called in question except by an election petition presented in accordance with the provisions of the Election Commission Act. Section 73 of the Election Commission Act envisages the setting of election tribunals to entertain election petitions. In the light of the above constitutional and statutory provisions, it was prayed that this Court had no jurisdiction to entertain the writ petition, as the petitioner's remedy was to file an election petition.