1. The petitioner herein challenges the order passed by the Additional District Judge, Pusad, whereby the Additional District Judge allowed an appeal filed by one Sandeep Laxmanrao Banginwar, respondent No. 18 herein, and directed that the nomination form of the petitioner should be rejected. Following facts will highlight the grievance of the petitioner.

2. Elections of the Wards of Digras Municipal Council were declared and in pursuance thereof the petitioner filled up a nomination form from Ward No. 16 for being elected as a ward member. On the date of scrutiny, i.e, on 14-11-1996, respondent No. 18 — Sandeep Laxmanrao Banginwar filed an objection contending that the petitioner was a defaulter and had not paid the octroi taxes on the cars bearing Registration Nos. MH 29 B 1575 and MHX 4755. It was contended in the objection that the petitioner was, thus, a defaulter and had disqualified himself from contesting the election for the ward member. The Returning Officer, on this objection, called for a report from the respondent No. 3.Municipal Council and was informed by the Municipal Council that the octroi tax was already paid. The objection raised by the respondent No. 18 was overruled by the Returning Officer and the nomination form of the petitioner was accepted. This acceptance caused respondent No. 18 to file an appeal, which was registered as Election Appeal No. 5/96 before the Additional District Judge, Pusad. The necessary formalities were completed and the Additional District Judge, Pusad, who decided the appeal, allowed the same, necessitating the present petition.

3. The main contention of the petitioner is that the order of the Additional District Judge is wholly incorrect on merits as under the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter called ‘the Act’ for the sake of brevity), it was necessary that the bill of the sum due from him should have been presented on him under clause (h) of section 16(1) of the Act and admittedly, in the absence of any bill, the petitioner could not have been declared to be a defaulter and thereby could not have been prevented from contesting the election. The petitioner has supported his contentions with number of documents suggesting that, firstly, the said octroi tax was not due and, secondly, no bill was ever presented to him and, therefore, there was no question of default to make the payment of the bill.

4. Shri J.N Chandurkar, learned Counsel appearing on behalf of the respondent No. 18, and Shri J.T Gilda, learned Government Pleader appearing on behalf of the State of Maharashtra and the Returning Officer, respondents Nos. 1 and 2 respectively, have raised a preliminary objection, where they have contended that the present writ petition itself is not maintainable in view of Article 243-ZG of the Constitution of India. The learned Counsel contend that under this Article, an election cannot be challenged except by an election petition or by a proceeding provided for by or under any law made by the Legislature of a State. The learned Counsel point out that because of the nan obstante clause in that Article, even present writ petition would amount to a challenge to the election. They point out that the nomination of the candidates is an integral process of election and, therefore, a challenge to the list of nominated candidates would amount to a challenge to an election, which would not be possible by way of the present writ petition. Secondly, learned Counsel urge that the election programme has already begun and in that view of the matter, it could not be feasible for this Court now to interfere in an election programme and for that purpose, this Court should be slow to use its power under Article 226 of the Constitution of India, even if it is held that the writ petition is tenable.

5. The preliminary objection is opposed by Shri S.A Bobde, learned Counsel appearing on behalf of the petitioner, on various grounds. According to him, the plain language of Article 243 ZG of the Constitution does not bar the constitutional powers of this Court, including the powers to issue writs under Article 226 of the Constitution of India. Shri Bobde submits that merely because the election process has started, that would not necessarily militate against the powers of this Court under Article 226 of the Constitution of India. According to the learned Counsel, the language of Article 243 ZG cannot be read so as to bar the remedy under Article 226 of the Constitution of India.

6. The learned Counsel for the respondents have relied mainly on the reported decision of the Apex Court in Election Commission of India v. Shivaji, (1988) 1 SCC 277 : AIR 1988 SC 61, and more particularly the observations in paragraph 6 therein. In that case, the Apex Court was considering the language of Article 329(b) of the Constitution of India, and on that basis, it came to the conclusion that the term ‘election’ in Article 329(b) connotes the entire process culminating in a candidate being elected and, therefore, High Courts' jurisdiction under Article 226 of the Constitution of India to entertain the petitions challenging the elections was taken away. In that case, the Election Commission had challenged the order passed by the Division Bench of this Court in respect of the elections to the Legislative Council of the State of Maharashtra from Osmanabad-cum-Latur-cum-Beed Local Authorities Constituencies. The petition was filed challenging the whole election process on the ground that Zilla Parishad of Osmanabad and Zill Parishad of Latur Districts, which were within the Constituency had not been constituted and Administrators were appointed to run the said Zilla Parishads. It was, therefore, contended that the members of the Zilla Parishads, who were otherwise entitled to take part in the said elections, had been deprived of their right to participate in the said election. Initially, the Division Bench of this Court had stayed the election, but ultimately the petition was dismissed. However, on review application, it was pointed out that there was some infraction of section 30 of the Representation of the People Act, 1951. The Division Bench again passed an order postponing the election, which order came to be challenged by the Election Commission before the Apex Court. The Apex Court found that Part XV of the Constitution provided that the superintendence, direction and control of the preparation of the electoral rolls lay with the Election Commission because of Article 324(1) of the Constitution of India. It was further found that Article 326 of the Constitution of India provided for the conduct of elections to the either House of Parliament, to the House or either House of the Legislature of each State, qualifications and disqualifications for membership of those Houses and other relevant matters. The Apex Court then relied upon Article 329(b) of the Constitution of India and found that the said Article provided that no election covered therein could 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. In paragraph 6 of this judgment, the Apex Court held that the election disputes in respect of the elections in question in that petition were required to be settled by the provisions contained in Part VI of the Representation of the People Act and section 80 thereof provided for an election petition. The Apex Court took note of the expression ‘election’ in section 2(d) of that Act and came to the conclusion that the dispute regarding the elections to the Legislative Council of the State could be raised only under the provisions contained in Part VI of the Representation of the People Act via section 80-A and the election petition had to be presented in accordance with section 81 of the said Act. There is a clear-cut expression by the Apex Court that by Article 329(b) of the Constitution of India and more particularly non obstante clause contained therein, the power of the High Court to entertain a petition under Article 226 of the Constitution of India questioning an election on whatever grounds were taken away. This how the Apex Court then proceeded to hold:

“The word ‘election’ has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and a narrow meaning. In the narrow sense it 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 is used to connote entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which Article 329(b) occurs.”

7. The Apex Court then proceeded to rely upon the law laid down in N.P Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 : AIR 1952 SC 64. In the same para the Apex Court goes on to hold 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. The Apex Court quotes:

“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 any dispute relating to the pre-polling stage. In the above decision this Court ruled that having regard to the important functions which the legislatures have to perform in democratic countries, it had 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 were over so that the election proceedings might not be unduly retarded or protracted. Hence, even if there was any ground relating to the non-compliance with the provisions of the Act and the Constitution on which the validity of any election process could be questioned, the person interested in questioning the elections has to wait till the election is over and institute a petition in accordance with section 81 of the Act calling in question the election of the successful candidate within forty-five days from the date of election of the returned candidate but not earlier than the date of election.”

8. The Supreme Court has, observed that this view has been accepted in other cases, viz., Lakshmi Charan Sen v. A.K.M Hassan Uzzaman, (1985) 4 SCC 689 : AIR 1985 SC 1233 and Inderjit Barua v. Election Commission of India, (1985) 1 SCC 21 : AIR 1984 SC 1911.

9. There is no dispute, therefore, that at least insofar as the elections which are covered in Part XV of the Constitution of India, Article 329 completely took away the jurisdiction of this Court even under Article 226 of the Constitution of India. It will be worthwhile to see the language of Article 329(b) which runs as under:—

“329. Notwithstanding anything in this Constitution.—

(a)………………………….;

(b) 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.”

10. It will have to be seen, however, as to whether these principles are applicable even to the language of Article 243 of the Constitution of India, which is included in Part IXA. Part IXA is introduced by Seventy Fourth Amendment and the Constitution makers exclusively provide for the Panchayats - in Part IX and Municipalities in Part IXA. The whole Part IXA provides exclusively for the elections of the Nagar Panchayats, Municipal Councils and Municipal Corporations. Article 243-R provides for composition of municipalities; Article 243-S provides for constitution and composition of ward committees; Article 243-T provides for reservation of the seats for Scheduled Castes and Scheduled Tribes. It also provides for reservation in favour of women generally and those belonging to the Scheduled Castes and Scheduled Tribes. Article 243-U provides for duration of Municipalities, while Article 243-V provides for disqualification for membership. Article 243-ZA provides for the elections to the Municipalities and suggests that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission almost on the line of Article 324. Article 243-ZE provides for continuance of existing laws and Municipalities and provides that any law inconsistent with the provisions of this Part shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier. It further provides that the municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Authority of that State. The language of Article 243-ZG, which creates a bar to the interference by Courts in electoral matters, is in following terms:

“243-ZG. Notwithstanding anything in this Constitution.—

(a) …………………;

(b) no election to any Municipality 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. It will be seen, therefore, that the language of Article 329(b) is almost identical with the language of Article 243-ZG. It is to be noted that Article 329(b) is a part of Part XV of the Constitution of India, which generally deals with the subject of elections and provides for an Election Commission. The whole Part XV deals with the electoral matters, regarding the elections either to the House of the Parliament or to the House of either House of the Legislature of a State. The newly introduced Parts IX and IXA have brought in Panchayats and Municipalities on the Constitution at scene and have exclusively provided for the elections to these institutions of local self-government. It will, therefore, be logical to hold that what applied to Article 329(b) of the Constitution of India, which is in respect of the elections to the either House of Parliament or either House of the Legislature of a State, has to apply with equal force to the elections of Municipalities and the Panchayats also. In respect of the Panchayats, it is identically provided for in Article 243-O which is in Part IX of the Constitution of India. Therefore, the elections to the Panchayats as also to the Municipalities have been brought in par with the elections to the either House of Parliament and to the either House of the State Legislature in this behalf. It will be therefore, only be logical to hold that, in view of the identical language of Article 329(b) with Article 243-ZG, the word ‘election’ will have to be used in the wider sense so as to include the whole election process and not in the narrower sense, as has been held by the Apex Court in the case of Election Commission of India v. Shivaji (cited supra).

12. In view of the above, the preliminary objection raised by the Counsel for the respondents, thus stands on a very firm footing.

13. Shri Bobde, however, tried to suggest that this was a case where rule 15 of the Maharashtra Municipal Council and Nagar Panchayats Election Rules, 1966 (hereinafter called ‘the Rules’ for the sake of brevity) has specifically provided for an appeal to the District Judge. His contention is that such appeal cannot be deemed to be an election petition within the meaning of clause (b) of Article 243-ZG of the Constitution of India. He, therefore, submits that rule 15 of the Rules will be revolting against the spirit of Article 243-ZG of the Constitution of India, as an appeal could not be equated with an election petition. He, therefore, contends that in the wake of language of Article 243-ZG of the Constitution of India, rule 15 of the Rules cannot stand and that rule will have to be invalidated, with the result, anything done under that rule, namely, the order passed by the Additional District Judge, will have to be termed as non est, and then the original order passed by the Returning officer would have to be given effect to and it will have to be held that it is only that order which stands. Shri Bobde contends that if it is held that rule 15 of the Rules which provided an appeal against the decision of the Returning Officer, accepting or rejecting a nomination paper, is held good, then this Court, while assessing the correctness or otherwise of the order of the Additional District Judge would not be interfering with the election process, in the sense a writ petition challenging the order passed by the District Judge in pursuance of rule 15 cannot amount to be an exercise of any “election being called in question.” The argument is clearly incorrect.

14. It will be seen that there is no question of unconstitutionality of rule 15 of the Rules raised in the writ petition. The Rules, which were in existence, have been extensively amended in terms of Article 243-ZF of the Constitution of India to remove any inconsistencies therein with the constitutional scheme provided in Part IXA of the Constitution of India. It is to be noted further that these amendments, which have been made after the introduction of Part IXA to the Constitution, have retained the original rule 15, as there was nothing in that rule which was inconsistent with Part IXA of the Constitution of India. The learned Counsel for the petitioner could not show anything in rule 15 which was inconsistent with either Article 243-ZG or, for that matter, any of the provisions in Part IX-A of the Constitution of India.

15. Shri Bobde laid a great stress on the language of clause (b) to suggest that an appeal under rule 15 which was provided against the order of the Returning Officer, rejecting or accepting the nomination paper, would be a challenge to the election and if it is not an election petition as contemplated by section 21 of the Act, then such appeal was clearly not contemplated and would militate against the command given under clause (b). For that reason, the learned Counsel reads the whole clause as providing for an election petition alone and no other proceedings then the election petition. His contention is that the election can be questioned only by an election petition presented to such authority and in such manner as is provided for by or under any law by the Legislature of a State. In that, the learned Counsel contends that since an appeal under rule 15 of the Rules is not an election petition, the whole rule 15 is liable to be struck off and the appeal is liable to be held to be not available at all.

16. In the first place, the reading of clause (b) on the part of the learned Counsel is incorrect. Clause (b) is divided in two parts. It not only provides an election petition for calling in question an election but also gives the power to the State Legislature to provide another modality. Similar such argument was raised in the reported decision in Ramakant Keshaorao v. Bhikulal Laxmichand, AIR 1959 MP 141. The question, which was raised in that decision was whether an appeal provided under section 116-A of the Representation of the People Act against the decision of the Election Tribunal was maintainable or not. It was suggested that in view of the express language of Article 329(b) of the Constitution of India, the election could have been called in question only by way of an election petition alone and, therefore, the further appeal under section 116-A of the Representation of the People Act, not being such an election petition, was not tenable at all. The Division Bench of the Madhya Pradesh High Court (consisting of M. Hidayatullah, C.J, as he then was and G.P Bhutt, J.) expressed in the following manner while disposing of the said objection:—

“Before we take up this question for consideration, we would dispose of the preliminary objection that has been raised to the maintainability of the appeal. It has been contended that section 116-A of the Act, in so far as it provides an appeal from the decision of an Election Tribunal, offends Article 329(b) of the Constitution of India, which empowers the appropriate Legislature to set up by law only one authority to decide an election dispute.

In our judgment, the words ‘in such manner as may be provided by or under any law made by the appropriate Legislature’ in Article 329(b) are governed by the word ‘except’ which precedes then, and, therefore, Parliament was also competent to provide an appeal for decision of the election dispute. The preliminary objection has also no force on another ground.

Since an appeal is only a continuation of the original lis, the power of the Parliament, under Article 329(b), would also extend to providing an appeal and also an authority to decide it, when it had the power to make a law for decision of an election petition by an Election Tribunal. The preliminary objection is accordingly overruled.”

(emphasis supplied)

17. It is, therefore, clear that the Division Bench of the Madhya Pradesh High Court has chosen to read the phraseology in Article 329 of the Constitution of India to suggest that the appropriate Legislature had the authority under that clause to create any other remedy besides the election petition, by an appropriate Legislation. There is a striking similarity of the language in Article 243-ZG of the Constitution of India which also suggest that the State Legislature could provide an additional method of challenging an election to the Municipalities besides the election petition.

18. Shri Bobde takes an exception to this ruling, on the ground that this ruling was given because it was found that an appeal under section 116-A of the Representation of the People Act was a continuity of the election petition. A plain reading of the ruling does not so suggest. On the other hand, the learned Judges have clearly held that the Parliament in that case had the power to create an additional remedy. The position would be no different in respect of the legislation which has been referred in Article 243-ZG of the Constitution of India. This inference gets buttressed because of the user of the word “and” in clause (b) of Article 329 of the Constitution of India. It would be seen that after “and” another compound clause is added, which is “in such manner as may be provided for by or under any law made….”. Shri Bobde's argument is that the clause after “and” only qualifies the words “election petition” and an additional remedy cannot be read because of that clause. If what falls from the learned Counsel is accepted, then the words after “and” - “in such manner” would be redundant and they would lose all their meaning. If these words “in such manner” have to be given their due meaning, it will have to be held that the State Legislature can provide for a methodology in addition to the election petition to challenge an election.

19. Shri Bobde then invited my attention to the observations in Gurudas Singh Badal v. The Election Commission of India, (1972) 1 ILR Punjab and Haryana 1. He has relied on paragraph 15. In this case, the Full Bench was considering the question as to whether a person is deemed to call an election in question within the meaning of Article 329(b) of the Constitution of India, by making an application to the Election Commission for inspection of documents referred to in rule 93(1) of the Rules. The learned Judges held that this application could not be said to be by way of an election petition, nor was it presented to an authority competent to try an election petition and was not filed in the manner provided for in sections 81 to 83 of the Representation of the People Act. Shri Bobde relied on the following observations in paragraph 15:—

“What then is the meaning of the expression ‘called in question’ in Article 329(b)? Great emphasis was laid by Mr. Sibal in this connection on the judgment of the Supreme Court in N.P Ponnuswami's case (supra). A writ petition impugning the validity of an order of the Returning Officer rejecting the nomination papers of Ponnuswami was held by the Supreme Court to be barred by Article 329(b) on the ground that the said Article was ‘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.”

20. The Court then went on to consider the facts and law laid down in Ponnuswami's case and the true interpretation of Article 329(b) of the Constitution of India. The Court then laid down four tests in paragraph 16 which runs as under:—

“A petition, application or proceedings would, in my opinion, be barred by clause (b) of Article 329 only if the following four conditions are fulfilled:—

(i) The application is other than an election petition, presented in the prescribed manner to the prescribed authority;

(ii) The attack is made in the application on matters connected with the election proceedings;

(iii) The attack is one on the decision of which the court competent to try an election petition can set aside the election or declare it to be void; and

(iv) Adjudication of the authority or the tribunal on the matter connected with the election proceedings referred to in clause (iii) above is invoked by the applicant, notwithstanding the fact whether the authority is or is not empowered to adjudicate upon the matter.”

21. Shri Bobde suggests that an appeal under rule 15 of the Rules would be clearly barred in view of the observations by the Full Bench in para 16. Now, in fact, nothing depends whether rule 15 is in existence or not. In fact, the petition is wholly silent about the attack on rule 15 regarding its constitutional validity. That apart, it has already been shown that rule 15 not being inconsistent with Part IX-A, has been retained by the Legislature when it sought to amend the Rules to remove the inconsistencies after the introduction of Part IX-A to the Constitution. Further, what has been observed by the Full Bench of Punjab and Haryana is in completely different context. It does not in, any manner touch the subject of the powers of a High Court under Article 226 of the Constitution to try the correctness or otherwise of the orders passed by the Additional District Judge, who is an appellate authority to the decision of the Returning Officer. Again, it is difficult to hold that an appeal under clause 15 is not in the nature of an election petition. If the term ‘election’ is to be broadly read as is held in Ponnuswami's case and in Shivaji's case (both cited supra), the terminology of election petition will also have to be suitably and widely read. In that view of the matter, the contention of the learned Counsel for the petitioner is clearly incorrect.

22. The reliance by the learned Counsel for the petitioner on the decision in Mulchand v. Jai Singh, AIR 1963 Rajasthan 219 is also uncalled for, as the observations in para 6 therein, though in respect of Article 329(b) of the Constitution of India, are in entirely different context. There, the learned Judges have observed as under:—

“Thus, although this article does not by itself refer to a particular authority or to a particular mode, it certainly requires that three conditions must be fulfilled, the first being that there should be an election petition, the second it should be presented to the appropriate authority and the third that it should be presented in the manner provided by law made by the appropriate legislature.”

23. Shri Bobde heavily relies upon these observations. However, these observations would be of no use to the learned Counsel, particularly because even if rule 15 of the Rules is demolished which is not possible even then what is being asked to be done by this Court in this writ petition is to interfere with and to entertain a challenge to the election. If that is clearly barred by Article 243-ZG of the Constitution of India, the petition will have to be held as not maintainable. In order to decide as to whether the petition is maintainable or not, I am afraid, the recourse cannot be had to rule 15 which is a provision for an appeal against the order of Returning Officer. Merely because an appeal is provided, that would not take the writ petition out of the ire of Article 243-ZG of the Constitution of India. This would be more clear because of the express language of the prayer clause wherein a prayer is sought for in para (c), which is as under:—

“(The Court) be further pleased to direct the Respondent No. 2 to allot the symbol and allow the petitioner to contest the elections for which he has submitted the nominations.”

24. This would be nothing but to demolish the earlier list of validly nominated candidates and a writ is prayed for to direct the respondent No. 2 to treat the petitioner as a validly nominated candidate. In the wake of a specific bar, such prayer cannot stand.

25. It will have to be, therefore, held that the preliminary objection raised by the respondents stands on the firm footing and has to be honoured. In that view of the matter, it will have to be held that the instant writ petition is not maintainable.

26. Shri Bobde then invited my attention to the utter illegality of the order passed by the Additional District Judge. I am afraid, it will not be possible for me to consider that illegality and the same will have to be taken care of only in a properly instituted election petition in terms of section 21 of the Act.

27. In result, the petition has no merits and it is dismissed but, under the circumstance without any orders as to costs.”

Petition dismissed.