Samvatsar, J.:— The petitioner Nannemiyan was a candidate at the election of the Gram Punchayat Hatod, which was scheduled to be held on 10-6-1956. The petitioner filed his nomination paper on the prescribed form before the Nirwachan Adhikari (Election Officer) on 31-5-1956. The nomination papers filed by the candidates were scrutinized by the said officer and on 1st June, 1956 the nomination paper of the petitioner was rejected by him as not being in accordance with law.

2. Aggrieved by this order, rejecting the nomination paper, the petitioner has filed this petition under Article 226 of the Constitution, for a writ of certiorari to quash it and for a direction to the opponents 1 and 2, namely, the State of Madhya Bharat and the Collector, District Indore, to postpone the election until this writ petition is decided or to hold fresh election. In the petition the petitioner has set out the grounds on which his nomination paper is rejected by the Nirwachan Adhikari. These are:

(a) that the number of the seconder was indistinct;

(b) that the thumb-mark of the seconder was Indistinct and appeared to have been affixed twice;

(c) that the thumb-mark was not verified;

(d) that objection was raised to the validity of the nomination paper;

(e) that there was no date at one place.

3. The petitioner contended that none of these grounds was covered by R. 18(1) of the Madhya Bharat Punchayat Rules S. 2008, under which the Nirwachan Adhikari had passed the order rejecting the nomination paper and that for this reason the order of the Nirwachan Adhikari was void and without jurisdiction.

4. The petitioner impleaded the State of Madhya Bharat, the Collector of District Indore, and the Nirwachan Adhikari, as opponents 1, 2 and 3. The other contesting candidates have been impleaded as opponents 4 and 5.

5. The opponents 1, 2 and 3 opposed the application. Opponent No. 3 submitted a separate return in which he maintained:

(i) that the nomination paper of the petitioner was properly rejected;

(ii) that the rules framed under the Punchayat Act do not provide for machinery to seek redress against the wrongful rejection of the nomination paper and that the petitioner had to pursue the remedy provided by the rules;

(iii) that the petitioner has an alternative and equally efficacious remedy available under the rules and he is therefore not entitled to seek relief by a petition under Article 226.

6. The opponents 1 and 2 adopted in their return all the contentions raised by opponent No. 3.

7. At the time of the argument, the learned Advocate General, who appeared for opponents 1, 2 and 3, raised two preliminary points. He submitted:

(1) that the right of election to the Panchayat is a creature of the Madhya Bharat Punchayat Act. Under that Act and the rules framed thereunder, election is one integrated process which is not Intended to be interrupted by a challenge at an intermediate stage;

(2) that the petitioner has an equally efficacious remedy in the form of an election petition under the provisions of R. 41 of the rules framed by the Government under the Madhya Bharat Punchayat Act Samvat 2006 and that, for this reason he is not entitled to claim relief by this petition.

8. I shall deal with these preliminary points first.

9. The Madhya Bharat Punchayat Vidhan, being Act No. 58 of 1949, came into force in Madhya Bharat with effect from 30-8-1949. The Act was passed with a view to introduce local-self government through the agency of the Punchayat in the rural areas. The provisions of the Act are applicable to the whole of Madhya Bharat excepting those areas which have municipal committees.

10. Under the scheme of the Act there are three types of Punchayats: the Gram Punchayat, the Kendra Punchayat, and the Mandal Punchayat. Some criminal and civil jurisdiction is also conferred on Punchayats and is exercised by a body called the Nyaya Panchayat.

11. Under Section 3 of the Act, the Government is empowered to form a Gram Punchayat for a village or group of villages in the State and the Government is given power under S. 4 to determine the number of Punchas who will be members of the Gram Punchayat, subject to the condition that the minimum number shall not be less than 5 and the maximum shall not exceed 15. The election of the Punchas to the Punchayat is to be held on the basis of adult franchise and every resident of the village who has attained the age of 21 is, subject to conditions contained in S. 7 of the Act, entitled to vote.

12. Section 8 prescribes the qualifications which a candidate must possess in order to be eligible at the election. Section 9 then provides that the election of the Gram Punchayat shall be conducted under the supervision of an officer appointed for that purpose in accordance with the rules in that behalf.

13. The machinery for conducting the election is not specifically provided in the Act but is left to be created by the rules which the Government is empowered to frame under S. 116 of the Act.

14. In exercise of this rule-making power the Madhya Bharat Government has framed rules known as the Madhya Bharat Punchayat Rules S. 2008. Chapter II of these rules deals with the machinery for election and includes Rules 3 to 45.

15. By R. 8, the Collector of the District is empowered to determine the Nirwachan Kshetra (electoral area) of a Gram Punchayat and the number of the Punchas to be elected from it. The rule also provides the basis on which the Collector should act in this behalf. Rule 10 deals with the preparation of the electoral rolls or voters' list for each Nirwachan Kshetra and Rules 11 to 15 deal with objections to the voters' lists and the manner in which they are to be disposed of by the election authority.

16. Rule 16(1) confers on the Collector the power to appoint a Nirwachan Adhikari (Election Officer) for each Nirwachan Kshetra. Rule 16(2) relates to the filing of the nomination paper and Rule 18(1) to the scrutiny and the grounds which have to be taken into account by the election officer in accepting or rejecting the nomination papers.

17. By this rule, it is provided that the election officer shall not reject a nomination paper merely on the ground of clerical or alphabetical mistakes and shall in rejecting or accepting the nomination paper, primarily consider (i) whether the names of the candidate, the proposer and the seconder, are in fact included in the list of voters and (ii) whether the candidate possesses the required qualification for being elected to the Punchayat.

18. This sub-rule finally lays down that the order of the election officer accepting or rejecting the nomination paper shall be final and shall not be liable to be challenged in any proceeding whatsoever.

19. Rules 22 and 23 deal with the declaration of names of the successful candidates and publication of the results of election. Rule 24 prescribes the manner and the procedure for election of the Sarpuncha and the Up-Sarpunch and with this the election to Gram Punchayat is complete. By Rule 25 the Collector is required to publish the names of the Punchas in the State Government Gazette.

20. Rules 41 and 44 relate to disputes arising out of the elections to the Punchayats. Rule 41 provides that any person aggrieved by the result of an election to a Punchayat may file a petition to the Collector within eight days from the date of publication of the result of the election. The rule also provides that in such petition the petitioner shall state the ground or grounds on which the validity of the election is challenged.

21. Under Rule 42 the Collector is required to issue a notice to the person whose election is challenged to show cause why the petition should not be accepted. Rule 43 deals with the procedure that has to be followed in the inquiry into the objections raised by the petitioner or in the written-statement by the opponent. Under R. 44(1) the Collector is empowered to dismiss the petition in case he is satisfied that there is no substance in the petition and no valid ground for accepting it.

22. Clause (2) of R. 44 authorizes the Collector to accept the petition if he is satisfied that the impugned election was the result of (a) use of force, (b) fraud or deceit, (c) deliberately giving false application or acceptance as gift of some valuable article or (d) some material irregularity. This rule also authorizes him to set aside the election and to declare the particular seat to be vacant or some other candidate duly elected for it, as may appear to him necessary in the circumstances of the case.

23. The Punchayats including the Gram Punchayat have thus been brought into existence for the first time under the provisions of the Punchayat Act of S. 2006 and a new right, namely, the right to vote at the election and to stand as a candidate for a seat in the Punchayat is conferred, on the citizens in the rural areas. This is not a right that can be claimed under the common law and does not exist apart from the Act under which it has come into existence.

24. It is well settled that when a new right is created by a statute or special law and the statute or the special law creating the right also provides a machinery for redress, the party complaining that his rights under the statute or the special law have been violated, must resort to the remedies provided by the statute or the special law.

25. The petitioner's main contention in this case is that the election officer by wrongly rejecting the nomination paper, has interfered with hiss right to be elected to the Panchayat. The point to be considered is, whether a challenge to the correctness of the impugned order at this stage and in the manner sought to be done by the petitioner is permissible according to the Panchayat Act or the rules framed thereunder.

26. In appreciating this point, it is necessary to bear in mind that the word ‘election’ has both a wider and a narrower meaning. In the narrower sense, the word ‘election’ means the final selection of the candidate by taking poll when polling is; necessary and without taking poll when the candidate is returned unopposed. In the wider sense; this word connotes the entire process culminating: in a candidate being declared elected. When we talk of elections in a democratic country, the word ‘election’ bears this wide meaning. See Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64 (A).

27. A perusal of the scheme of the Panchayat Election Rules also indicates that the word ‘election’ in these rules and in the Act is used in a wider sense. Chapter II of these rules which includes Rr. 3 to 45 is headed as Panchayat Nirwachan Niyam (Rules relating to election to Panchayats). From R. 8 to R. 15 there is a group of rules which are compiled under the heading ‘Preliminary proceedings for conducting an election’; Rules 16 to 25 deal with the conduct of election and include declaration and publication of the results of election and the names of the Panchas.

28. Rules 41 to 44 then deal with disputes arising out of elections and the manner of deciding them. It is thus clear that the rules contemplate the whole process of election as one complete process to be gone through in different stages commencing with the preparation of voters' list and ending with, the declaration of the names of successful candidates. The filing of the nomination paper its scrutiny and rejection or acceptance is a stage in this process and is an important stage. The election, officer is at this stage required to decide whether the nomination paper should be accepted or rejected bearing in mind the provisions of R. 18(1). The performance of this duty is a process in the election but it cannot by itself be treated as a completed act, namely, the election itself.

29. It is therefore necessary to see whether under the provisions of the law relating to election any challenge to the order of the election officer in regard to acceptance or rejection of the nomination paper is contemplated before the whole election is over. The learned counsel on both sides' are agreed that in view of the emphatic language of R. 18(1) of the Panchayat Rules no such challenge is permitted.

30. The learned Advocate-General contended that the Panchayat Act and Rules which confer on Page: 41the petitioner a right to be elected to the Panchayat, have by R. 41 of the Panchayat Rules of S. 2008, prescribed the machinery for redress of the grievance if the petitioner has any. He submitted that the scheme of the Act plainly indicated that the election to the Panchayats had to be completed expeditiously and without being delayed by any obstructions at an intermediate stage. The defeated candidates and persons aggrieved by the result of the election could challenge the validity of the elections only after the elections were complete and that too by an election petition under R. 41.

31. Mr. Pande learned counsel for the petitioner made a two-fold submission in the matter. He submitted firstly, that in view of the language of R. 18(1) the validity of the order of the election officer as regards the acceptance or rejection of the nomination paper was open to no challenge at any stage or in any proceeding whatsoever and that therefore if this Court refused to interfere the petitioner would be left without a remedy.

32. He secondly submitted that even if it is assumed that the question of the validity of the order of the election officer as regards the acceptance or rejection of the nomination paper could be raised by a petition under R. 41, it would be a post-election remedy and it would be no consolation to the petitioner to be told that he should wait until the election is over and then take chance at the fresh election when ordered. In support of his contention the learned counsel invited our attention to the view taken by this Court in Purushottamdas…Applicant; v. Collector Gird…Opponent., (S) AIR 1955 Madh-B 179 (B).

33. Rule 18 is no doubt very emphatically worded and indicates that the framers of this rule intended to exclude all challenge to it not only by an appeal but also by a civil suit or any other proceeding. I am afraid the Government have gone too far and in framing this rule have assumed to themselves legislative powers not possessed even by the Parliament.

34. For Article 245 of the Constitution which confers powers on the Parliament to legislate, authorizes it to make laws subject to the provisions of the Constitution. If therefore, the wide language used in R. 18 was intended to exclude a challenge to the validity of the order under all circumstances and before all tribunals including the High Court, it must be held to be ultra vires and void.

35. The learned Advocate-General however did not contend that the order of the election officer was altogether immune from any further challenge but submitted that its correctness could be examined only at the appropriate stage, namely, by an election petition under R. 41. His argument was that R. 18(1) should be read as ‘subject to Rr. 41 to 44’.

36. Rule 44(2) authorises the Collector in a proceeding commenced by an election petition to set aside the election when he is satisfied that it was the result of some material irregularity and I think it cannot be doubted that a wrongful rejection of nomination paper is a material irregularity within the meaning of this rule.

37. It has generally been recognized that a wrongful rejection of nomination paper has the effect of denying to the voters the right to vote for a candidate of their choice. A wrongful rejection of the nomination paper prejudicially affects the result of the election and to exclude a challenge to it at any stage would mean leaving the voters more or less to the mercy of the election officer. I do not think such a result was contemplated either by the Legislature or by the Government in framing this rule.

38. I am therefore of opinion that the portion of R. 18 which excludes a challenge to the correctness of the order in any proceeding whatsoever, is void and the petitioner is entitled to take up this point and to agitate it in a proceeding commenced under R. 41 of the election rules.

39. The next contention of Mr. Pande that the post-election remedy provided under R. 41 is not an efficacious remedy, is based on the observations of a Division Bench of this Court in (S) AIR 1955 Madh-B 179 (B). It was a case relating to elections under the provisions of the Madhya Bharat Municipal Rule. The petition Purushottamdas was a candidate for election to Dabra Municipal Committee.

40. He filed his nomination paper for being elected from Circle No. 2. At the scrutiny on the appointed day, the election officer accepted his nomination paper but rejected that of a rival candidate, one Badriprasad. The latter challenged the correctness of the order by a petition under R. 34 before the Collector Gird, that is the returning officer appointed for challenging the correctness of the order of the election officer. The petition was allowed and the Collector accepted the nomination paper of Badriprasad as valid.

41. The petitioner Purushottamdas applied to the High Court under Article 226 of the Constitution to quash the order of the Collector Gird and that petition was allowed. One of the contentions raised before the High Court on behalf of the opponent was that the petitioner had the remedy of challenging the decision of the election officer by filing an election petition under R. 130 and that the High Court should not grant him relief under Article 226 of the Constitution. The learned Judges of the Division Bench repelled this contention observing as follows:

“As to this it is sufficient to say that Rule 130 cannot take away the power and jurisdiction of this Court under Article 226 and that it is no consolation and remedy to a person complaining that a nomination paper has been improperly accepted to tell him that he must let the election go on and then have it set aside by an election petition and for a fresh election order. Such a post election remedy would in my opinion, be wholly inadequate.”

42. That was a case under the Municipal Act where perhaps a challenge to an order under R. 33(2) rejecting or accepting a nomination paper is permitted by law and the observation of the learned Judges may be correct in that context.

43. In AIR 1952 SC 64 (A) a somewhat similar question arose for consideration. The petitioner in that case was a candidate for election to the Madras Legislative Assembly from one of the constituencies in that State. He filed a nomination paper which was rejected by the nomination officer and he thereupon approached the High Court of Madras by a petition under Article 226. The High Court rejected the petition holding that the election could be challenged only in the manner laid down under Article 329 of the Constitution. The petitioner annealed to the Supreme Court. One of the points raised in that appeal was that the anomalies which would arise if the view of the High Court is accepted are so startling that the Court should lean in favour of construction against it.

44. It was held that what the appellant chose to call an anomaly could more appropriately be described as hardship or prejudice referred to by Wallace J. in his judgment in C. Sarvothama Rao v. The Chairman, Municipal Council, ILR 47 Mad 585 : (AIR 1923 Mad 475 (C)). Wallace J. had in that case used almost the same language that is used by the learned Judges of this Court in Purushottamdas…Applicant; v. Collector Gird…Opponent. (B). He held that, the post election remedy is wholly inadequate to Page: 42afford relief which the petitioner seeks. The material observation of Wallace J. in Sarvothama Rao v. Chairman (C), is to be found at page 600 (of ILR Mad): (at pp. 479-480 of AIR) of the report and is to the following effect:

“It is no consolation to tell him that he can stand for some other election, it is no remedy to tell him that he must let the election go on and then have it set aside by petition and have a fresh election ordered.”

45. The Supreme Court felt that this observation represented only one side of the picture and referred to the judgment of the same learned Judge in Y. Desi Chettiar v. J.K Chinnasami Chettiar, AIR 1928 Mad 1271 (D), as representing the other side. The material observations of Wallace J. in Y. Desi Chettiar v. J.K Chinnasami (D) are reproduced in the judgment of the Supreme Court and are as follows:

“The petitioner is not without his remedy. His remedy lies in an election petition which we understand he has already put in. It is argued for him that remedy which merely allows him to have set aside an election once held is not as efficacious as the one which would enable him to stop the election altogether; and certain observations at p. 600 of C. Sarvothama Rao v. The Chairman, Municipal Council (C), are quoted. In the first place, we do not see how the mere fact that the petitioner cannot get the election stopped and had his remedy only after it is over by an election petition will in itself confer on him any right to obtain a writ.

46. In the second place, these observations were directed to the consideration of the propriety of an injunction in a civil suit, a matter, with which we are not here concerned and finally it may be observed that these remarks were made some years ago when the practice of individuals coming forward to stop elections in order that their own individual interest may be safe-guarded was not so common…. It is clear that there is another side of the….question to be considered, namely, the inconvenience to the public administration of having elections and the business of Local Boards held up while individuals prosecute their individual grievances.

47. We understand the election for the elective seats in this Union has been held up since 31st May because of this petition, the result being that the electors have been unable since then to have any representation on the Board, and the Board is functioning, if indeed it is functioning with a mere nominated fraction of its total strength; and this state of affairs the petitioner proposes to have continued until his own personal grievance is satisfied.”

48. Their Lordships of the Supreme Court approved the latter view of Wallace J. as is apparent from the following observations of Fazl Ali, J. which are to be found at page 66 of the report:

“It does not require much argument to show that in a country with a democratic Constitution in which the legislatures have to play a very important role, it will lead to serious consequences if the elections are unduly protracted or obstructed. To this aspect of the matter, I shall have to advert later, but it is sufficient for the present purpose to state firstly that in England the hardship and inconvenience which may be suffered by an individual candidate has not been regarded as of sufficient weight to induce Parliament to make provision for immediate relief and the aggrieved candidate as to wait until after the election to challenge the validity of the rejection of his nomination paper……”

49. These observations of the Supreme Court are entitled to utmost respect. It seems that the decision of the Supreme Court in AIR 1952 SC 64 (A), was not brought to the notice of the learned Judges who decided Purushottamdas's case (B). In view of the observations of the Supreme Court, the view expressed by the learned Judges of the Division Bench in Purushottamdas's case (B) cannot be held to be conclusive. The post-election remedy of an election petition cannot under the circumstances be held to be an inadequate remedy.

50. The elections to the Panchayats are of utmost importance as they are the first step taken in the direction of introducing local self-Government in the rural areas. There are in this State 4099 Gram Panchayats and in all the numer of Panchas to be elected was stated to be 31557. Under the rules elections have to be completed expeditiously. It appears to me that the Legislature in conferring finality upon the order of the election officer under R. 18(1), intended that there should be no obstruction at the stage of scrutiny of nomination papers and that the validity of the elections, on the material grounds, should be challenged only by a petition under R. 41.

51. This however does not mean that this Court has no jurisdiction to entertain petitions like the one before us but it means that the Legislature did not intend that there should be any interruption in the election at an interlocutory stage and that the matter should be examined only after the election is over and proper proceedings are commenced for challenging its validity.

52. I am therefore of opinion that the petitioner has an alternative remedy under R. 41 and that cannot be held to be either inadequate or inefficacious. He must pursue that remedy and approach this Court if occasion arises after that remedy is exhausted. This is therefore not a fit case where appropriate relief could be given to the petitioner at this stage. The petition deserves to fail on this ground.

53. In the view I have taken it is unnecessary to consider the case on merits and express any opinion thereon.

54. Before closing this judgment, it is necessary to refer to one more contention raised by the learned Advocate-General. He argued that the petitioner had impleaded the State of Madhya Bharat and the Collector of Indore without assigning any reason for doing so. He also submitted that the Madhya Bharat Government had framed rules in exercise of the powers conferred upon it under Section 116 of the Panchayat Act, and was thereafter not concerned with the elections in any manner. The learned counsel went on to argue that the Government was absolutely disinterested in the election and was indifferent to the result of the election.

55. The rule relating to the joinder of the parties in a petition under Article 226 of the Constitution is laid down in Krishna Khandelwal v. Director of Land Hiring and Disposal, Eastern Command, AIR 1952 Cal 16 at p. 18 (E). It is held in that case that writs should be served on all persons interested in supporting the legal process which was the occasion for the petitioner's seeking relief under Article 226 of the Constitution. Mr. Pande, learned counsel for the petitioner, was unable to show how the Government was interested in the controversy raised by him in the petition or in supporting the order of the Nirwachan Adhikari rejecting the petitioner's nomination paper.

56. The validity of the rules framed by the Government has not been impeached in the petition and the Government have nothing to do with the rejection of the petitioner's nomination paper. He however submitted that the Collector was interested in supporting the impugned order for the reason that if the petitioner was allowed he will have Page: 43to consider whether there should be fresh elections held. I do not think that this is a sufficient ground for impleading either the State of Madhya Bharat or the Collector as parties to this petition.

57. It would have been different if the vires of the enactment or rule having the force of law were challenged in the petition; for, in that case, the Government is interested in supporting what is done by the Legislature and is usually allowed to intervene. This is not so in the present case. In my opinion the Government and the Collector, Indore, have been impleaded without there being sufficient reason for doing so.

58. On this view of the matter, I am of opinion that the petitioner should be made to pay the costs of the opponents 1 and 2. The result is that the petition fails and is dismisesd. The petitioner shall pay Rs. 100/- as costs to the opponents 1 and 2 and will bear his own costs of this petition. The opponents 3, 4 and 5 will bear their own costs.

Nevaskar, J.:— I agree entirely.

59. Petition dismissed.