HIGH COURT HAS NO JURISDICTION TO ENTERTAIN THIS CASE UNDER ARTICLE

243-O.

It is humbly submitted before the Honble Court that the High court has no jurisdiction over
this matter as this is the matter related to panchayat election and Article 243-O (b) specifically
mentions that no court will have Jurisdiction over the matters related to election except by
election petition. However, here in this suit no election petition has been filed by the
Respondent, hence it cannot directly file a suit under Article 226 before High court.

In N.P. Ponnuswami v. Returning Officer1 the Apex court held that if words similar to those
used in Article 329 (b) have been consistently treated in England as words apt to exclude the
Jurisdiction of the Courts including the High Court, the same consequence must follow from
the words used in Article 329 (b) of the constitution. The words Notwithstanding anything in
this constitution give to that Article the same wide and binding effect as a statute passed by a
sovereign legislature like the English Parliament.

The specific remedy and its procedure is provided in a statute, either Supreme Court or High
court has no occasion to issue writ under its extra ordinary Jurisdiction.2

In Durga Shankar v. Raghuraj Singh3, the Honble Apex Court held that the right of seeking
election and sitting in Parliament or in a State Legislature is a creature of the constitution and
when the constitution provides a special remedy for enforcing that right, no other remedy by
ordinary action in a court of law is available to a person in regard to election disputes

Similarly, in Hari Vishnu Kamnath v. Ahmad Ishaque4, the Supreme court held that an
application made under Article 226 challenging the validity of any of the acts forming part of
that process would be barred since these are the instances of original proceedings calling in
question an election, and would be within the prohibition mentioned under the respective
Article of Indian Constitution, 1950.

In kallo Adiwasi v. State Election commission of M.P5., the matter was related to wrongful
rejection of the nomination papers filed under the provision of section 122 of M.P. Panchayat
Raj adhiniyam, 1993 and the election petition under the provisions for assailing the election on

1
AIR 1952 SC 64
2
ibid
3
AIR 1954 SC 520 (B)
4
AIR 1955 (SC) 233:1955 (1) SCR 1104.
5
2015 (4) M.P.L.J.
the ground of rejection of nomination paper, the court held that it does not have jurisdiction
over the matters related to Article 243-O of Indian Constitution, 1950 as it clearly bars the
Jurisdiction of Court.

Similar view was taken in cases State of U.P. and others vs. Pradhan Sangh Kshettra Samiti
and others6, Anugrah Narain Singh and another vs. State of U.P. and others7, Jaspal Singh
Arora v. State of M.P8. and others and also in Gurdeep Singh Dhillon v. Satpal and others 9

Also, in case of Khumano Bhai v. State of M.P.,10 the issue was related to the certain
nominations were wrongly accepted, the court held that the petition is not maintainable in the
view of bar created under Article 243-O of the constitution and section 121 of Adhiniyam Act,
the election can only be challenged by the way of an election petition.

ARTICLE 329 IS PARI MATERIA TO ARTICLE 243-O

The counsel for the petitioner humbly submits that Article 329 is pari materia to Article 243-
O.11 Since, in many of the precedents the court is of the view that Article 329 is pari materia to
Article 243-O as they both bars the Jurisdiction of court in the matter related to elections, the
only exception is election petition, however, the only difference between both of them is that
one is related to Panchayats while other is related to Parliamentary Elections and also Article
243 (O) (a) is similar to Article 329(a) and Article 243 (O)(b) is similar to Article 329 (b) of
Constitution of India, 1950.12

In Ponnuswami v. Retuning officer, namakkal Constituency, Namakkal Salem Dist. and

others,13 and in that case the supreme court take into consideration that provisions of Article
329-B which is pari materia and similarly worded as Article 243 O(b). The similar thing was
held in Kallo Adiwasi v. State election Commission, Bhopal.14

Article 329 which is in pari materia with Article 243 O is a blanket ban on all manner of
questions which may have impact on the ultimate result of the election arising between the

6
1995 Supp. (2) SCC 305
7
1997 (1) MPLJ (S.C.) 45
8
(1998) 9 SCC 594
9
(2006) 10 SCC 616.
10
1995 (O) M.P.L.J 67
11
Hotilal v. State of U.P and ors., 2002 (3) AWC 1761.
12
Jameela Ibrahim and ors. v. the retuning officer and anr., AIR 1996 Ker. 100.
13
AIR 1952 SC 64.
14
2015 (4) M.P.L.J.
notification by the president calling for the election and declaration of the result by the
returning officer.15

In Bhagwan Singh and Others v. State of Bihar16, the court held that Article 243 O provides
that no election to any panchayat shall be called in question except by an election petition which
is similar to Article 329 (b) of the Indian Constitution, 1950.

THE PRINCIPLE OF NATURAL JUSTICE HAS NOT BEEN VIOLATED.

In the present case, the respondent has been given the opportunity of being heard and no
violation of principle of Natural Justice is there and hence the decision given by the Returning
office should be declared valid.

It is settled principle of law that natural Justice Principle should be followed and Audi altrem
Partem is the part of Natural Justice Principle, however there are some exceptions to Natural
Justice Principle out of which one such is condition is (a) Exclusion in case of Statutory
exception or necessity, (b)

(A)Exclusion in case of statutory exception or necessity

Disqualification on the ground of Bias against a person will not be applicable if he is only
person competent or authorised to decide that matter or take that action. 17If this exception is
not allowed there would be no other means for deciding that matter and the whole
administration would come to a grinding halt. But the necessity must be genuine and real.

In Charanlal Sahu v. Union of India18, the court followed the principle of necessity as the
government was the only authorised to perform such function.

In Ashok Kumar Yadav v. Haryana 19the court held that since substitution was not possible so
even if natural Justice Principle is not followed it will be valid. Similar decision was given in
the case of Election Commission of India v. Dr subramaniam Swamy20.

15
V. Kunhabdulla and Anr. v. State of Kerala, AIR 2000 Ker. 376.
16
AIR 2005 Pat. 109.
17
SP sathe, Administrative Law, 200 (Lexis Nexis, 2004)
18
1990 AIR 1480.
19
AIR 1987 SC 454
20
(1966) 4 SCC 104
Here, in the present matter under Article 243-K of Indian Constitution, 1950 only election
commissioner is authorised or person authorised by him is under obligation to solve the matter
related to election disputes, and since he is only person to solve the dispute so by applying the
above mentioned principle there was no need to follow the Principle of Natural Justice.