A writ petition seeking writ of mandamus to declare the rejection of the petitioner's nomination illegal was dismissed for lack of maintainability. The Court held that Article 329(b) of the Constitution creates a blanket bar on judicial interference in electoral steps, reserving remedies for election petitions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction)
THURSDAY, THE SECOND DAY OF APRIL TWO THOUSAND AND NINE
PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and
THE HON'BLE MR JUSTICE SANJAY KUMAR
WRIT PETITION NO : 6991 of 2009
Between:
Kurikala Ravinder, S/o. Late Janardhana Rao, R/o. 12-101, Parkal, Warangal District.
..... PETITIONER
AND
1 The Election Commissioner, Central Chief Election Commission, New Delhi. 2 The Election Commissioner, The State Election Commission, Hyderabad A.P. 3 The District Collector-cum-Returning Officer, Warangal. 4 The Returning Officer, Parkal, 104, Parkal LAC, PO, ITDA, Eturunagaram, Warangal District.
.....RESPONDENT(S)
Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a suitable writ order or direction more particularly one in the nature of Writ of mandamus by declaring that rection of the nomination form of the petitioner for 104 Parkala LA constituency as illegal, arbitrary and discriminatory and violative of Art. 14, 16 and 21 of constitution of India and violative of principles of natural justice and consequently direct the respondents to accept the nomination of the petitioner for the Election of MLA for 104 Parkal LA Constituency and pass
Counsel for the Petitioner:SMT.S.A.V.RATNAM
Counsel for the Respondent No.: MR.S.NIRANJAN REDDY
The Court made the following :
THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION NO.6991 OF 2009
ORDER:
The petitioner is a candidate fielded by the Lok Satta Party, an unrecognized registered political party, to contest the ensuing General Legislative Assembly Elections from 104-Parkal L.A. Constituency, Warangal. The petitioner’s nomination was found to be deficient inasmuch as it was not endorsed by the signatures of ten proposers, as prescribed. Admittedly, proposer No.7 did not affix his signature in the nomination, be it by oversight or otherwise. On this ground, the petitioner’s nomination was rejected on 31.03.2009. The petitioner claims to have made a representation to the concerned Returning Officer in this regard, duly accompanied by a rectified nomination. However, the same was not accepted leading to the filing of the present writ petition.
Sri S.Niranjan Reddy, learned counsel representing the respondents, raises a preliminary issue with regard to the maintainability of the writ petition, stating that Article 329(b) of the Constitution of India barred this Court from exercising jurisdiction under Article 226 of the Constitution in issues such as are raised in the present writ petition. He relied upon various Judgments in support of his contention.
Article 329(b) of the Constitution reads as under:
(a) … … …
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.”
The question sought to be raised presently is whether the above constitutional provision posits a bar to exercise of jurisdiction by this Court under Article 226 of the Constitution in matters pertaining to an assembly election and more specifically, in the matter of rejection of a candidate’s nomination.
The issue is hardly res nova. The law on this subject is well settled. In N.P.PONNUSWAMI v. THE RETURNING OFFICER, NAMAKKAL CONSTITUENCY, NAMAKKAL, SALEM DISTRICT AND OTHERS[1] , a six Judge Bench of the Supreme Court dealt with a similar fact situation where the Returning Officer had rejected a candidate’s nomination. The High Court had dismissed the candidate’s application seeking interference in the matter, stating that it had no jurisdiction in the light of the provisions of Article 329(b) of the Constitution. This view was assailed before the Supreme Court. Dealing with the issue, the Supreme Court observed that the word “election” has been used in Part-XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. As regards the subject issue, the Supreme Court, taking note of the fact that one of the grounds for challenging an election under Section 100 of the Representation of the People Act, 1951 (for brevity, ‘the Act of 1951’), was the improper rejection of a nomination paper, observed as follows:
“9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and an other after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the
only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question Article 329 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art. 329 (b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.”
With regard to the argument that the Act of 1951 cannot bar the jurisdiction of the High Court under Article 226 of the Constitution, the Supreme Court held that such an argument was completely shut out by reading the Act along with Article 329(b) of the Constitution of India, as it would be noticed that the language used in that Article and in Section 80 of the Act of 1951 is almost identical, with this difference only that the article is preceded by the words “Notwithstanding anything in this Constitution”. The Supreme Court observed that these words were quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress.
I n MOHINDER SINGH GILL AND ANOTHER v. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS[2] , a Constitution Bench of the Supreme Court reiterated that Article 329(b) of the Constitution of India is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and it’s Officers carrying forward the process of election to its culmination in the formal declaration of the result. The Court observed that under Article 329(b) the sole remedy for an aggrieved party is an Election Petition and this exclusion of all other remedies includes constitutional remedies like jurisdiction under Article 226 because of the non obstante clause.
In MANDA JAGANATH v. K.S.RATHNAM AND OTHERS[3] , the Supreme Court was dealing with the action of a Returning Officer in refusing to recognize a candidate as one set up by a particular party and his consequential refusal to allot him the official symbol of that party. The High Court interfered in the matter in exercise of Article 226 jurisdiction and directed the Returning Officer to treat the candidate as one set up by the party on the ground that the irregularity in the nomination was technical. It was contended before the Supreme Court that the High Court was not justified in entertaining a writ petition after issuance of the election notification because of the specific bar found in Article 329(b) of the Constitution. The Supreme Court pointed out that the view taken in PONNUSWAMI’s case had been quoted with approval in the subsequent Judgment in MOHINDER SINGH GILL’s case holding that the non obstante clause in Article 329 pushed out Article 226, where a dispute takes the form of calling in question an election. In this regard, the Supreme Court referred to certain observations in MOHINDER SINGH GILL’s case where the Supreme Court had spoken of situations which would warrant interference in exercise of jurisdiction under Article 226. The justification for such interference was stated to be that in such exceptional cases, the Commissioner would, in effect, be preventing an election and not promoting it and the Court’s review of the action would facilitate the flow and not stop the stream.
Continuing the above stream of thought, the Supreme Court in MANDA JAGANATH’s case held that only such errors of the Returning Officer which have the effect of interfering in the free flow of the scheduled election or hindered the progress of the election would be amenable to interference under Article 226 and in all other cases, the remedy lies in an election petition only. The observations of the Supreme Court in paragraph 23 of the Judgment throw further light on this aspect. Therein, the Court while dealing with the argument that the omissions found by the Returning Officer in the Form-B (nomination) under Section 36 of the Act of 1951 etc. were all curable irregularities not being defects of substantial
nature warranting rejection of the nomination, observed that such arguments based on the provisions of the statute, rules and orders are all arguments which could be addressed in a properly constituted election petition and could not be a ground for setting aside the order of the Returning Officer.
In the light of the firmly embedded legal principle aforestated, we are of the view that notwithstanding the validity or otherwise of the rejection of the nomination, any ground of attack against the same would be better suited for an election petition under Section 100 (1)(c) of the Act of 1951 and would not be sufficient ground to warrant exercise of our extraordinary jurisdiction under Article 226 of the Constitution, overlooking the clear bar mandated by Article 329(b) of the Constitution. Mere rejection of a nomination of a candidate does not have the effect of interfering in the free flow of the scheduled election or hindering its progress, which according to the Supreme Court, should be the paramount consideration while testing the waters to see whether writ jurisdiction can be exercised. The case on hand does not present itself as an exceptional case warranting deviation from the established principle that this Could would not interfere in matters of the present nature in view of the constitutional bar under Article 329(b) of the Constitution.
The writ petition fails on the ground of maintainability and is accordingly dismissed at the stage of admission. In the circumstances of the case, there shall be no order as to costs.
___________________ V.ESWARAIAH, J.
____________________ SANJAY KUMAR, J.
__________ April, 2009.
VGSR
[1] AIR 1952 SC 64 [2] (1978) 1 SCC 405 [3] (2004) 7 SCC 492
2 issues framed by the court
Whether Article 329(b) of the Constitution bars the High Court from exercising jurisdiction under Article 226 to interfere in the rejection of a candidate's nomination paper in an assembly election.
Whether the rejection of a nomination paper constitutes an election matter calling for an election petition under Section 100 of the Representation of the People Act, 1951 rather than a writ of mandam
Colour shows how this judgement treated each authority
N.P.PONNUSWAMI v. THE RETURNING OFFICER, NAMAKKAL CONSTITUENCYDistinguished¶28
AIR 1952 SC 64 · Who else cites this
MOHINDER SINGH GILL AND ANOTHER v. THE CHIEF ELECTION COMMISSIONERExplained¶32
(1978) 1 SCC 405 · Who else cites this
MANDA JAGANATH v. K.S.RATHNAM AND OTHERSExplained¶33
(2004) 7 SCC 492 · Who else cites this
3 provisions across 2 enactments
Kurikala Ravinder
The Election Commissioner, Central Chief Election Commission
The Election Commissioner, The State Election Commission
The District Collector-cum-Returning Officer
The Returning Officer, Parkal
V.ESWARAIAH
SANJAY KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
