- (1.) THESE are petitions under Article 226 of the Constitution. In each case the petitioner desired to stand for membership of a town area committee and he duly filed his nomination paper. In each case the nomination paper was rejected by the Returning Officer. The petitioners now come to this Court and each seeks a writ in the nature of 'certiorari' to quash the order made by the returning Officer.
(2.) THE first question is whether the petitioners can challenge the decision of the Returning officer by a petition under Article 226, or indeed in any manner other than by an election petition. In my opinion they cannot do so. The right to vote or to stand as a candidate for election to a town area committee is not a common law but a statutory right, and it is a well recognised rule that if in such a case the statute which creates the right provides also the means for enforcing it, the remedy of the person aggrieved is restricted to the statutory relief. This was laid down in -' wolverhampton New Water Works Co. v. Hawkes-ford', (1859) 6 CB (NS) 336 at p. 356 (A), a case which was approved by the Supreme Court in --'n. P. Ponnuswami v. Returning Officer namakkal' AIR 1952 SC 64 (B ).
(3.) NOW Sub-section (2) of Section 6-I of the U. P. Town Areas Act (as amended by U. P. Act V of 1953) provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Act", and by an order, called The U. P. Town Areas (Application of Provisions of U. P. Municipalities act, 1916) Order, 1953, made by the State Government under the provisions of Section 6h of that Act provision has been made for the determination by an election tribunal of disputes relating to elections. A specific remedy is therefore provided by the Act, and in view of the decision in --'ponnu-swami's case (B)', it appears to me no longer open to argument that 'election' as used in Section 6-I includes the rejection of a nomination paper. In -- 'pormuswami's case (B)', the Supreme Court repudiated the contention that the law of elections in this country -- the Court was of course considering parliamentary elections -- contemplated two attacks on matters connected with election proceedings, the one while they were going on by invoking the extraordinary jurisdiction of the High Court under Article 226 and another after they had been completed by means of election petition. In his judgment, with which the other members of the court concurred, Mr. Justice Fazl Ali summed up his conclusions in these words : "having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to the schedule and all controversial matters and all disputes, arising out of elections should be postponed till after the elections are over, so that the election proceedings should not be unduly retarded or protracted. In conformity with this principle, the scheme of the election law in this country as well as in england is that no significance should be attached to anything which does not affect the 'election'; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the 'election' and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not made the subject of a dispute before any Court while the election is in progress. ";