# Smt. Durga v. Election Commissioner and others

- **Citation:** (2002) 1 ILRA 284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-03-08
- **Case number:** Civil Misc. (PIL) Writ Petition No. 9976 of 2002
- **Bench:** S.K. Sen, C.J. S.R. Alam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-durga-v-election-commissioner-and-others-39818
- **Pages:** 3

## Headnote

Constitution of India, Article 239 (b)
readwith- Representation of people Act
1951 Chapter II Section 80 A. 81 and
100-
Election
Petition-
validity
of
election can be challenged only by way
of election petition- writ petition not
maintainable.

Held- Para 7

We are of the view that it is well settled
by several decisions of the apex court
that there is no scope for granting relief
in such cases under Article 226 of the
Constitution and proper remedy for the
petitioner is to file an election petition
under the Act.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
284
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.3.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE S.R. ALAM, J.

Civil Misc. (PIL) Writ Petition No. 9976 of
2002

Smt. Durga

...Petitioner
Versus
Election Commissioner and others

 ...Respondents

Counsel for the Petitioner:
Sri Shitla Prasad Pandey

Counsel for the Respondents:
Sri Ranvijai Singh
S.C.

Constitution of India, Article 239 (b)
readwith- Representation of people Act
1951 Chapter II Section 80 A. 81 and
100-
Election
Petition-
validity
of
election can be challenged only by way
of election petition- writ petition not
maintainable.

Held- Para 7

We are of the view that it is well settled
by several decisions of the apex court
that there is no scope for granting relief
in such cases under Article 226 of the
Constitution and proper remedy for the
petitioner is to file an election petition
under the Act.

(Delivered by Hon'ble S.K. Sen, C.J.)

1. Heard Sri Shitla Prasad Pandey,
learned Advocate for the petitioner and
Sri Ranvijay Singh, learned standing
counsel for the respondents.

2. In this writ petition the petitioner
has prayed for holding fresh election in
two polling booth nos. 291 and 292 in
village Sisaura Kala Anshik situated in
221
Dhanapur
Vidhan
Sabha
Constitutency district Chandauli.

3. In our view the writ petition is not
maintainable in view of Article 329 (b) of
the Constitution of India, which is set out
herein below:

" 329 (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."

4. That apart, in our view,
appropriate remedy is to file an election
petition
under
Chapter
II
of
the
Representation of the People Act, 1951
(hereinafter referred to as the Act). The
relevant sections, i.e. Section 80, 80-A, 81
and 100, in the said Chapter are set out
herein below:

"80. Election Petitions - No election
shall be called in question except by an
election petition presented in accordance
with the provisions of this Part.
80A. High Court to try election
petitions
-
(1)
The
Court
having
jurisdiction to try an election petition
shall be the High Court.
(2)
Such
jurisdiction
shall
be
exercised ordinarily by a single Judge of
the High Court and the Chief Justice
shall, from time to time, assign one or
more Judges for that purpose:
1All] Smt. Durga V. Election Commissioner and others
285
Provided that where the High Court
consists only of one Judge, he shall try all
election petitions presented to that Court.
(3) The High Court in its discretion
may , in the interests of jusice or
convenience, try an election petition,
wholly or partly , at a place other than the
place of seat of the High Court.
81. Presentation of petitions - (1)
An election petition calling in question
any election may be presented on one or
more of the grounds specified in sub-
section (1) of Section 100 and Section 101
to the High Court by any candidate at
such election or any elector within fortyfive days from , but not earlier than the
date of election of the returned candidate
or if there are more than one returned
candidate at the election and dates of
their election are different, the later of
those two dates.
Explanation- In this sub-section, 'elector'
means a person who was entitled to vote
at the election to which the election
petition relates, whether he has voted at
such election or not.
(2)Omitted.
(3)Every election petition shall be
accompanied by as many copies thereof
there are respondents mentioned in the
petition and every such copy shall be
attested by the petitioner under his own
signature to be true copy of the petition.
100. Grounds for declaring election
to be void. (1) Subject to the provisions of
sub-section (2) if the High 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 the Constitution or this Act or
the Government of Union Territories Act,
1963 (20 of 1963) or,
(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
(iv) by any non-compliance with the
provisions of the Constitution or of this
Act or of any rules or orders made under
this Act, the High Court shall declare the
election of the returned candidate to be
void.

(2) If in the opinion of the High
Court, a returned candidate has been
guilty by an agent, other than his election
agent, of any corrupt practice but the
High 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) (Omitted).
(c) That the candidate and his
election agent took all reasonable means
for preventing the commission of corrupt
practices at the election, and
(d) That in all other respects the
election was free from any corrupt
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
286
practice on the part of the candidate or
any of his agents, then the High Court
may decide that the election of the
returned candidate is not void.

5. It is clear from the aforesaid
provisions of section 80 of the Act that no
election shall be called in question except
by an election petition. The High Court
under section 80A of the Act has been
empowered to try an election petition.
Under section 81 of the Act not only a
candidate but an elector also can present
an election petition. The petitioner being
elector or voter of the constituency in
question can file an election petition
under section 81 of the Act. So far as the
allegation made by the writ petitioner is
concerned that she was not allowed to
caste vote, we are of the view that section
100 (1)(d)(iv) of the Act shall apply in the
facts and circumstances of the case and
the petitioner has remedy of an election
petition.

6. Learned Advocate for the
petitioner has relied upon a judgment in
the case of Bar Council of Delhi and
another vs. Surjeet Singh and others
reported in (AIR 1980 SC 1612). This
decision relates to an election of Bar
Council, Delhi governing Advocates Act
and Bar Council of Delhi Election Rules.
In the facts and circumstances of the
present case this case does not have any
relevance. The other decision cited by the
learned Advocate for the petitioner in the
case
of
K.Venkatachalam
vs.
A.
Swamickan and another reported in (JT
1999 (3) SC 242) also does not apply to
the facts and circumstances of the present
case. It was specifically held by the
Supreme Court in paragraph 19 of the
said judgment that when the poll or repoll process is on for election to the
Parliament or Legislative Assembly, High
Court cannot exercise its jurisdiction
under Article 226 of the Constitution and
that remedy of the aggrieved parties is
under the Act read with Article 329 (b) of
the Constitution. The Act provides for
challenge to an election by filing the
election petition under section 81 on one
or more grounds specified in sub-section
(1) of Sections 100 and 101 of the Act.

7. We are of the view since it is well
settled by several decisions of the apex
court that there is no scope for granting
relief in such cases under Article 226 of
the Constitution and proper remedy for
the petitioner is to file an election petition
under the Act.

8. Accordingly the writ petition
stands dismissed being not maintainable.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.3.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE S. RAFAT ALAM, J.

Special Appeal No. 127 of 2002

R.C. Yadav

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Someshwari Prasad

Counsel for the Respondents:
Sri Sabhajeet Yadav
S.C.

Constitution
of
India,
Article
226-
Service
law-
Suspension
order-
challenged
as
no
formal
enquiry
pending-
complaint
of
corruption