Madras High Court
S.Kumar vs Election Commissioner Of India on 11 May, 2016
Bench: N.Kirubakaran, M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 11.05.2016
CORAM
THE HONOURABLE Mr. JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE Mr. JUSTICE M.V.MURALIDARAN
W.P.No.17900 of 2016
and WMP No.15599 of 2016
S.Kumar ... Petitioner
Vs.
1. Election Commissioner of India,
New Delhi.
2. The Chief Election Commissioner,
Secretariat, Chennai-600 009.
3. District Collector-cum-
District Election Officer,
Tiruvarur District.
4. The Returning Officer,
169, Nannilam Constituency,
Nannmilam,
Tiruvarur District.
5. R.Kamaraj ... Respondents
* * *
PRAYER : Writ Petition has been filed under Article 226 of the Constitution of India praying to issue Writ of Certiorarified Mandamus to call for the records of the impugned proceedings letter in Na.Ka.1766/2016/Ka-2, dated 30.04.2016, on the file of the fourth respondent and quash the same and direct the fourth respondent to accept the petitioner's nomination and allow the petitioner to contest as an independent candidate No.169, Nannilam Constituency.
* * *
For Petitioners : Mr.M.Suresh Kumar
For Respondents : Mr.Niranjan Rajagopal for RR 1 to 4
O R D E R
[Order of the Court was made by N.K.Kirubakaran, J.] The petitioner filed nomination to contest in the forthcoming Assembly Elections from Nannilam Constituency as an independent candidate on 28.04.2016. However, the petitioner's nomination has been rejected stating that two proposers who proposed the petitioner's nomination have retracted stating that they have not signed the forms and for some other reason. The said order has been challenged before this Court.
2. Heard the learned counsel for the petitioner and Mr.Niranjan Rajagopal, learned counsel appearing for the respondents 1 to 4.
3. Mr.Niranjan Rajagopal, learned counsel appearing for the respondents 1 to 4 relied on the judgment of the Apex Court in N.P.Ponnuswami V. Returning Officer, Namakkal, reported in AIR 1952 SC 64.
4. According to the petitioner, the fifth respondent is a present Minister and only at his instance, the petitioner's nomination has been rejected.
5. Though the petitioner contends that at the instance of the fifth respondent his nomination has been rejected, a perusal of the impugned order would show that for two reasons, the petitioner's nomination has been rejected, which are extracted hereunder :
"1. kDjhuh; mspj;Js;s kDtpy; gotk; 2Bapy; gf;fk; 2. gFjp II?y; Kd;bkhHpgthpd; gl;oaypy; thpir vz;/1 y; cs;s jpU/rutzd; kw;Wk; thpir vz;/3 y; cs;s jpU/Rjhfh; Mfpa ,UtUk; nehpy; M$uhfp. jh';fs; ntl;g[ kDtpy; ifbahg;gk; bra;atpy;iy vd;Wk;. j';fSf;F rk;ge;jk; ,y;iy vd;Wk; thf;FK:yk; mspj;Js;sjhYk;.
2. nkYk;. kDjhuh; mspj;Js;s gotk; 26 gFjp A. 2?y; rl;lkd;w thpir vz;/156 vd;Wk;. ghfk; vz;/776 vd;Wk;. kDjhuh; TLjyhf mspj;Js;s cWjpbkhHp gj;jpuj;jpy; 164 fPH;ntSh; (m/t/) bjhFjp vd;W jtwhf Fwpg;gpl;Ls;sjhYk;.
The Representation of the People Act (43 of 1951) 36(2)(C)-d; fPH; ,e;j kD epuhfhpf;fg;gLfpwJ/@
6. It is well-settled law that once election process is set in motion, till the declaration of election results, it cannot be stopped as per the judgment of the Apex Court in Mohinder Singh Gill and Another V. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 SC 851. It is relevant to extract paragraphs 121 and 122 of the said judgment as hereunder :
"121. As already pointed out, it is well-settled that election covers the entire process from the issue of the notification under Section 14 to the declaration of the result under Section 66 of the Act. When a Poll that has already taken place has been cancelled and a fresh poll has been ordered, the order therefor, with the amended date is passed as an integral part of the electoral process. We are not concerned with the question whether the impugned order is right or wrong or invalid on any account. Even if it is a wrong order it does not cease to be an order passed by a competent authority charged with the conduct of elections with the aim and object of completing the elections. Although that is not always decisive, the impugned order itself shows that it has been passed in the exercise of power under Article 324(1) and Section 153 of the Act. That is also the correct position. Such an order, relating, as it does, to election within the width of the expression as interpreted by this Court, cannot be questioned except by an election petition under the Act.
122. What do the appellants seek in the writ application ? One of their prayers is for declaration of the result on the basis of the Poll which has been cancelled. This is nothing short of seeking to establish the validity of a very important stage in the election process, namely, the poll which has taken place, and which was countermanded by the impugned order. If the appellants succeed, the result may, if possible, be declared on the basis-of that poll, or some other suitable orders may be passed. If they fail, a fresh poll will take place and the election will be declared on the basis of the fresh poll. This is, in effect, a vital issue which relates to questioning of the election since the election will be complete only after the fresh poll on the basis of which the declaration of the result will be made. In other words, there are no two elections as there is only one continuing process of election. If, therefore, during the process of election, at an intermediate or final stage, the entire poll has been wrongly cancelled and a fresh poll has been wrongly ordered, that is a matter which may be agitated after declaration of the result on the basis of the fresh poll, by questioning the election in the appropriate forum by means of an election petition in accordance with law. The appellants, then, will not be without a remedy to question every step in the electoral process and every order that has been passed in the process of the election including the countermanding of the earlier poll. In other words, when the appellants question the election after declaration of the result on the basis of the fresh poll, the election court will be able to entertain their objection with regard to the order of the Election Commission countermanding the earlier poll, and the whole matter will be at large. If, for example, the election court comes to the conclusion that the earlier poll has been wrongly cancelled, or the impugned order of the Election Commission is otherwise invalid, it will be entitled to set aside the election on the basis of the fresh Poll and will have power to breathe life into the countermanded poll and to make appropriate directions and orders in accordance with law. There is, therefore, no foundation for a grievance that the appellants will be without any remedy if their writ application is dismissed. It has in fact been fairly conceded by counsel for the other side that the election court will be able to grant all appropriate reliefs and that the dismissal of the writ petition will not prejudice the appellants."
7. From the above, it is clear that whatever be the reason, even if an illegal order has been passed by the Election Commission, that should be a ground to be taken in the Election Petition. If the petitioner is able to prove the alleged illegality, the election itself would be declared as null and void.
8. In view of the above well-settled position of law, this writ petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
[N.K.K., J.] [M.V.M., J.]
11.05.2016
Index : Yes/No
Internet : Yes
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To
1. Election Commissioner of India,
New Delhi.
2. The Chief Election Commissioner,
Secretariat, Chennai-600 009.
3. District Collector-cum-
District Election Officer,
Tiruvarur District.
4. The Returning Officer,
169, Nannilam Constituency,
Nannmilam,
Tiruvarur District.
N.K.KIRUBAKARAN , J.
AND
M.V.MURALIDARAN, J.
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W.P.No.17900 of 2016
11.05.2016