MAJID AHMAD Vs. ASST RETURNING OFFICER

JUDGEMENT

(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 :