Bombay High Court
Vinod Pandurang Bharsakade vs Returning Officer And Anr. on 17 December, 2002
Equivalent citations: 2003(4)MHLJ359
Author: C. K. Thakker
Bench: C.K. Thakker, R.K. Batta
JUDGMENT C. K. Thakker, C.J.
1. A common question of law has been raised in all the petitions. To appreciate the controversy raised in the present group of petitions, few relevant facts in the first petition may be noted.
2. The petitioner of the first petition (Writ Petition No. 4060 of 2002) has approached this court by invoking Article 226 of the Constitution for an appropriate writ, direction or order, quashing and setting aside an order dated November 8, 2002 (Annexure-6) by which respondent No. 1, Returning officer, Balegoan, Tal. Akot, rejected the nomination form of the petitioner.
3. The case of the petitioner is that he is a bona fide resident of village Balegaon, Tal. Akot, District Akola since his birth. Village Balegaon has an independent gram panchayat consisting of three wards. The petitioner has two brothers, Devidas and Vilas. All the three brothers, however, reside separately in their respective houses. The petitioner's elder brother Devidas owns and resides in a house bearing No. 24, his brother Vilas owns and stays in a house bearing No. 25, whereas the petitioner stays in a house bearing No. 26. All the brothers are paying house taxes to the gram panchayat independently in their own names separately registered in the record of the gram panchayat. Necessary documents showing possession of the petitioner of House No. 26 is placed on record along with the petition.
4. The petitioner has stated that election of gram panchayat, Balegaon, was declared by the first respondent vide an election notification dated September 26, 2002. As per the election programme, the nomination forms were to be submitted between 24th October, 2002 and 7th November, 2002. The date of scrutiny was fixed as November 8, 2002 and November 11, 2002 was fixed for publication of list of final candidates. A copy of the election programme is also annexed to the petition at Annexure-3. The petitioner being resident in Ward No. 2 of village Balegaon, was eligible to contest the election. He submitted his nomination form as one of the candidates from the said ward on November 7, 2002 (Annexure-4).
5. Ramdas s/o Kisan Ghormade, Respondent No. 2 herein, who had also submitted his nomination form from Ward No. 2 as a contesting candidate against the petitioner raised an objection by filing an application on November 8, 2002 (Annexure-5), inter alia, contending that the petitioner was living in joint family in House No. 32 and he failed to pay tax due to the panchayat. His nomination, therefore, was required to be rejected. On the said objection raised by respondent No. 2, the Secretary of the gram panchayat was called. According to the petitioner, the Secretary categorically stated that there were no dues against the petitioner. Original record of the gram panchayat was also shown which disclosed that there were no dues against the petitioner. Despite, respondent No. 1, Returning Officer, rejected the nomination form of the petitioner by the impugned order dated November 8, 2002, which is challenged in the petition.
6. The petitioner has prayed to quash and set aside the order dated November 8, 2002, and to direct the first respondent to accept the nomination form submitted by the petitioner and to allow him to contest the election. Interim relief is also prayed against implementation of the order dated November 8, 2002.
7. The petition was filed on November 12, 2002. No caveat was filed by any of the respondents. On November 12, 2002, the vacation Judge issued notice before admission by making it returnable on November 20, 2002. The learned Assistant Government Pleader appeared and waived service for respondent No. 1 while Hamdast was allowed for respondent No. 2. On 21st November, 2002, the matter was placed before us and we had heard the arguments.
8. Similar question is raised in the remaining petitions and on one ground or the other, nomination forms submitted by the petitioners came to be rejected by the Returning Officer. Hence, all the matters have been taken up for hearing simultaneously.
9. We have heard the learned counsel for the petitioners as also the learned Assistant Government Pleader and learned counsel for contesting respondents.
10. The learned counsel for the petitioners raised several contentions. It was urged that by rejecting nomination forms illegally and unlawfully, the Returning Officer has committed an error of law as well as error of jurisdiction. He thereby acted arbitrarily and unreasonably. His decision, therefore, deserves to be quashed and set aside. Had the Returning Officer acted legally and in consonance with law, he would have accepted the nomination forms submitted by the petitioners and allowed them to contest election. By depriving the petitioners of their valuable right to contest election, the first respondent has acted contrary to law and his decision deserves interference. Since the petitioners are unable to contest the election, they were constrained to approach this Court by invoking extraordinary jurisdiction under Article 226 of the Constitution of India, at this stage. If no relief is granted to the petitioners in the present proceedings, serious prejudice will be caused to them and they will not be able to contest the election, even though the action of the first respondent is de hors the Act. The counsel also submitted that the petitioners have not prayed for staying of election process. A limited prayer is made to direct the Returning Officer to accept the nomination forms of the petitioners and to allow them to contest the election, subject to the final outcome of the writ petitions. No prejudice will be caused to the respondents, if interim relief sought by the petitioners is granted and the petitioners will be allowed to contest election. On the other hand, if interim relief is refused, irreparable loss will be caused to them inasmuch as though they are eligible to contest election and the action of the Returning Officer is illegal and improper, they will not be able to exercise the said right. In such cases, the only remedy available to the petitioners is to invoke Article 226 of the Constitution and accordingly they have approached this Court for appropriate relief. It was, therefore, submitted that this court may issue appropriate directions to the Returning Officer to permit them to contest the election by provisionally accepting the nomination forms submitted by them, subject to the final outcome of the petitions or further orders by this Court.
11. Mr. B. R. Gavai, learned Government Pleader, as also learned counsel for the contesting respondents raised a preliminary objection. According to them, the petitions filed by the petitioners at the stage of scrutiny and rejection of nomination forms are not maintainable. Article 226 of the Constitution cannot be invoked in such cases. The point has been finally settled by the Supreme Court as well as by this Court in many cases. One and only one remedy available to the petitioners is to wait till the election is over and result is declared. Thereafter they may file election petitions in accordance with law. On merits also, the action of rejection of nomination forms by the Returning Officer cannot be termed as illegal, unlawful or otherwise objectionable. It was, therefore, submitted that all the petitions deserve to be dismissed.
12. In our opinion, since the preliminary objection raised on behalf of the Government and contesting respondents is well founded and deserves to be upheld, we do not wish to enter into merits of the matters. Before we deal with and consider the relevant case law on the point, it is necessary to bear in mind the relevant statutory provisions.
13. It is an undisputed fact that the provisions of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as "the Act") and the Bombay Village Panchayats Election Rules, 1959 (hereinafter referred to as "the Rules") are applicable to all these cases. Whereas Section 9 of the Act provides for incorporation of panchayats, Section 10 speaks of constitution thereof. Section 11 enacts that the election of members to a panchayat shall be held on such date as the Collector may appoint in this behalf. Such election shall be conducted in the prescribed manner. "Prescribed" is defined as "prescribed by Rules". Thus, the election will be held in accordance with rules. Section 12 deals with list of voters and Section 13 with persons qualified to vote and to be elected. Section 14 and 14A enumerate disqualifications and Section 16 covers cases of disability from continuing as members of panchayat. Section 15 is a salutary provision dealing with determination of validity of elections, the relevant part thereof reads as under:--
"15. (1) If the validity of any election of a member of a panchayat is brought in question by any candidate at such election or by any person qualified to vote at the election to which such question refers, such candidate or person may, at any time within fifteen days after the date of the declaration of the result of the election, apply to the Civil Judge (Junior Division), and if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division) (hereinafter, in each case, referred to as "the Judge") having ordinary jurisdiction in the area within which the election has been or should have been held for the determination of such question.
(2) Any enquiry shall thereupon be held by the Judge and he may after such enquiry as he deems necessary pass an order, confirming or amending the declared result, or setting the election aside. For the purposes of the said enquiry the said Judge may exercise all the powers of a civil court, and his decision shall be conclusive. If the election is set aside, a date for holding a fresh election shall forthwith be fixed under Section 11.
(3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx (6) xxx xxx xxx
(7) If the validity of any election is brought in question only on the ground of an error made by the Officer charged with carrying out the rules made in this behalf under Section 176 read with Sub-section (2) of Section 10 and Section 11, or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election."
14. In exercise of powers conferred by Sub-section (1) and Clauses (iii) and (iv) of Sub-section (2) of Section 176 read with Sub-section (3) of Section 10 and Section 11 of the Act, the Government of Bombay framed rules known as Bombay Village Panchayats Election Rules, 1959. Rule 3 provides for maintenance and custody of list of voters. Rule 7 empowers an officer authorized by the State Election Commissioner to fix dates, etc. for holding an election. Rule 8 deals with nomination of candidates and reads as under :
"8. Nomination of candidates.-- (1) On the day appointed for the nomination of candidates, and during the hours appointed by an officer authorised by the State Election Commissioner under Rule 7 in this behalf, each candidate shall make an application in writing in Form 'A' signed by him and present it either in person or through a representative authorised in writing in this behalf by such candidate to the Returning Officer signifying his willingness to serve as a member of the Panchayat.
(2) On receiving a nomination paper under Sub-rule (1), the Returning Officer shall write on the nomination paper its serial number, and shall sign thereon a certificate stating the date on which and exact time at which the application was delivered to him.
(3) When an election is held at or about the same time for two or more wards in a village, one and the same person may stand for election in all or any number of such wards.
Explanation.-- A person who is unable to write his name shall be deemed to have duly signed the nomination paper if he has placed a mark or thumb impression in the presence of the Returning Officer or any other officer authorised by the Returning Officer in this behalf and such officer on being satisfied as to the identity of that person, has attested the marked or thumb impression as the mark or thumb impression of that person.
Rule 11 provides for scrutiny of nominations. It reads thus :
"11. Scrutiny of nominations.-- (1) At the time and place appointed for the scrutiny of nominations, intending candidates and any other person duly authorised in writing by such intending candidate shall alone be entitled to be present. The Returning Officer shall allow such persons reasonable facilities for examination the nomination papers of intending candidates.
(2) The Returning Officer shall examine the nomination papers and decide all objections which may be made before him to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he considers necessary, reject a nomination paper on any of the following grounds, namely :--
(i) that the candidate is disqualified or is not qualified under the Act or these rules for election; or
(ii) that the candidate has failed to comply with any of the provisions required by these rules or the Act.
(2A) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. (3) For the purpose of Sub-rule (1) the production of a certified copy of an entry made in the list of voters shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified."
Rule 12 relates to completion of scrutiny.
15. It may be profitable to refer at this stage to the provisions of Part IX (The Panchayats) as inserted by the Constitution (Seventy-third Amendment) Act, 1992. Part IX contains Articles 243 to 243-O and deals with Panchayats. It, inter alia, provides for constitution and composition of Panchayats, reservation of seats, duration of Panchayats, disqualification for membership, power, authority and responsibilities of Panchayats, etc. Article 243-O, which is material for the purpose of controversy raised in the present petition requires to be quoted in extenso :
"243-O. Bar to interference by courts in electoral matters.--
Notwithstanding anything in this Constitution --
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the legislature of a State."
16. With a view to give effect to the provisions of Part IX of the Constitution as inserted by the Constitution (Seventy-third Amendment) Act, 1992, the Bombay Village Panchayats Act was also amended. Accordingly, Section 15A was inserted by the Maharashtra Act, 1994 (Act 21 of 1994) creating a bar to interference by courts in electoral matters. The said section reads :
"15A. Bar to interference by courts in electoral matters.--No election shall be called in question except in accordance with the provisions of Section 15; and no court other than the Judge referred to in that section shall entertain any dispute in respect of such election".
17. In the light of the above statutory provisions under that Act, the Rules and also in Part-IX of the Constitution, we have to consider whether the petitions filed by the petitioners against rejection of nomination forms are maintainable under Article 226 of the Constitution of India at this stage. Both sides have referred to and relied upon several decisions of the Hon'ble Supreme Court as well as of this Court. We will refer to some of them.
18. The first leading decision of the Apex Court on the point is a Constitution Bench decision in N. P. Ponnuswami v. The Returning Officer, Namakkl Constituency, Namakkal, Salem Dist and Ors., . In that case, A filed a nomination paper for election to the Madras Legislative Assembly from Namakkal Constituency in Salem District. At scrutiny, the Returning Officer of the constituency rejected the nomination paper of A on certain grounds. A moved the High Court under Article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct him to include his name in the list of valid nominations to be published. The High Court, however, dismissed the petition on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Article 329(b) of the Constitution. Aggrieved A approached the Supreme Court.
19. Broadly, two questions were raised before the Supreme Court; (i) The conclusion arrived at by the High Court did not follow from the language of Article 329(b) of the Constitution; and (ii) the anomalies which would arise if the construction adopted by the High Court on Article 329(b) would be accepted were so startling that the Court should lean in favour of the construction that the High Court had power to interfere under Article 226.
20. The relevant part of Article 329 which came to be considered in N. P. Ponnuswami reads as under :
"329. Bar to interference by courts in electoral matters.--
Notwithstanding anything in the Constitution (a) xxx xxx xxx (b) no election to either House of Parliament or to the House or either
House of the Legislature of a State shall be called in 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."
21. Bare reading of the above provision makes it clear that Article 243-O, as inserted by the Constitution (Seventy-third Amendment) Act, 1992, is almost similar to Article 329(b). Keeping in mind the phraseology used in both the Articles, in our considered opinion, while dealing with and deciding the question raised in the present group of petitions, the ratio laid down in N. P. Ponnuswami by the Constitution Bench has to be kept in mind.
22. The Constitution Bench, interpreting Article 329(b) of the Constitution, held that the word election as used in that Article would mean what it normally and etymologically means, viz. all stages upto the result of polling and the final selection of a candidate. It was also observed that the fact that an election petition could be filed only after polling is over or after a candidate is declared elected would not make any difference and at the stage of rejection of nomination paper, an aggrieved party cannot invoke extraordinary jurisdiction of the High Court under Article 226 of the Constitution.
23. In that case also, it was contended by the petitioner that the action of the Returning Officer in rejecting nomination paper could be questioned under Article 226 of the Constitution. The reason put forward by the petitioner was that the scrutiny of nomination paper and rejection were governed by Section 36 of the Representation of the People Act, 1951. Parliament had made that provision in exercise of the powers conferred on it by Article 327 of the Constitution which was "subject to the provisions of the Constitution". Thus, the action of the Returning Officer was subject to the extraordinary jurisdiction of the High Court under Article 226.
24. Negativing the argument, however, Fazl Ali, J. observed :
"These arguments appear at first sight to be quite impressive, but in my opinion, there are weightier and basically more important arguments in support of the view taken by the High Court. As we have seen, the most important question for determination is the meaning to be given to the word "election" in Article 329(b). That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected."
25. Relying on a decision of the High Court of Madras in Srinivasalu v. Kuppuswami , the Supreme Court stated that the term "election" should be taken to embrace the whole procedure whereby an elected member is returned.
26. Fazl Ali, J. then stated :
"I also find myself in agreement with it. It seems to me 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. The use of the expression "conduct of elections" in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Article 329(b).
Referring to Halsbury's Laws of England, the Court stated that the word "election" can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.
27. The Court also considered whether in election matters two attacks were possible; before the election and after the election. It observed:
"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 Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another 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 Article 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."
The Court went on to state :
"I think that a brief examination of the scheme of Part XV of the Constitution and the Representation of the People Act, 1951 will show that the construction I have suggested is the correct one. Broadly speaking, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. Articles 327 and 328 deal with the first of these requisites, Article 324 with the second and Article 329 with the third requisite. The other two articles in Part XV, viz. Articles 325 and 326 deal with two matters of principle to which the Constitution framers have attached much importance. They are: (1) prohibition against discrimination in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste, sex or any of them; and (2) adult suffrage. Part XV of the Constitution is really a code in itself providing the entire ground-work for enacting appropriate laws and setting up suitable machinery for the conduct of elections."
28. Considering the scheme of the Representation of the People Act, 1951, the Court observed that the Act was a self-contained enactment so far as elections were concerned which meant that whenever a matter connected with elections would come before the Court, it had to look at the Act and the Rules made thereunder.
29. The Court also considered the well recognised principle of law that where a right or liability is created by a statute which provides a special remedy for enforcing it, the remedy provided by such statute only should be availed of. The contention that the Representation of the People Act was enacted subject to the provisions of the Constitution and hence it would not bar jurisdiction of the High Court under Article 226 of the Constitution was negatived on the ground that Article 329(b) completely shut out such interpretation.
30. It was also argued that the post election remedy was wholly inadequate to afford the relief which the petitioner sought, namely, staying of election or treating the nomination paper of the petitioner as legal and valid. For that, observations of Wallace, J. in Sarvothama Rao v. Chairman, Municipal Council, Saidapet, AIR 1923 Mad 475 were pressed in service. The Supreme Court noted that those observations were no doubt in favour of the petitioner. They, however, represented only one side of the picture and the same learned Judge (Wallace, J.) presented the other side of the picture in a subsequent decision in Desi Chettiar v. Chinnasami Chettiar, AIR 1928 Mad 1271. Though the observations were made in regard to election to local boards, if would apply with greater force to election to Legislatures because of the provisions of the Constitution, noted the Supreme Court.
31. The Court then summed up the conclusions as follows :--
"(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time-scheme 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 may not be unduly retarded or protracted.
(2) 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 be made the subject of a dispute before any Court while the election is in progress."
It was stated that the right to vote or to stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Likewise, strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.
32. It was also argued that if nomination would be considered as part of election which could be called in question only in accordance with the provisions of Article 329(b) of the Constitution by presentation of an election petition to an appropriate tribunal, the Returning Officer would have no jurisdiction to decide the matter and Section 36 of the Act would be ultra vires inasmuch as it conferred on the Returning Officer a jurisdiction which was conferred on the tribunal appointed in accordance with Article 329(b) of the Constitution.
33. Negativing the contention, the Supreme Court stated :
"This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal and I think it can be very shortly answered. Under Section 36, Representation of the People Act, 1951, it is the duty of the Returning Officer to scrutinize the nomination papers to ensure that they comply with the requirements of the Act and decide all objections which may be made to any nomination. It is clear that unless this duty is discharged properly, any number of candidates may stand for election without complying with the provisions of the Act and a great deal of confusion may ensue. In discharging the statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in the election process. It is one of the essential duties to be performed before the election can be completed, and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal, however, turns not on the construction of the single word "election", but on the construction of the compendious expression - "no election shall be called in question" in its context and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evidently, the argument has no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method."
34. Finally, the Court noted that many High Courts had also taken a similar view, Fazl Ali, J. said :
"We are informed that besides the Madras High Court, seven other State High Courts have held that they have no jurisdiction under Article 226 of the Constitution to entertain petitions regarding improper rejection of nomination papers. This view is in my opinion correct and must be affirmed"
35. From the law laid down and observations made in N.P. Ponnuswami, it is abundantly clear and there is no doubt in our mind that the Constitution Bench of the Supreme Court in no uncertain terms held that a petition under Article 226 of the Constitution against improper rejection of nomination form is not maintainable and the High Court has no jurisdiction to entertain such petition.
36. In a number of subsequent cases, N. P. Ponnuswami has been referred to, relied upon and reiterated.
37. In Nanhoo Mal and Ors. v. Hira Mal and Ors., , the Supreme Court applied N.P. Ponnuswami to an election under the local law, i.e. President of the Municipal Board under the U. P. Municipalities Act, 1916.
38. The Court stated;
"It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U. P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswami's case, (supra) in its application to the facts of this case. But the conclusion above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider. All the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of Courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies." (emphasis supplied)
39. In K. K. Shrivastava v. Bhupendra Kumar Jain and Ors., , speaking for the Apex Court, Krishna Iyer, J. said;
"It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore a writ petition will lie, is a fallacious argument. It is important to notice what the High Court has overlooked is that the period of limitation prescribed by the rules is 15 days and if writ petitions are to be entertained long afterwards it will stultify the statutory provisions. Again in the present case an election petition covering the same subject-matter is actually pending. There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise. It is unfortunate that an election petition, which probably might have been disposed of long ago, is still pending because the writ petition was pending in the High Court and later on special leave having been granted these appeals have been pending in this Court. How injurious sometimes the repercussions of entertaining writ petitions are where they should not be is illustrated by this very case."
40. In S. T. Muthusami v. K. Natarajan and Ors., , it was held that a writ petition under Article 226 of the Constitution at a stage after commencement of election process but before declaration of result was not maintainable. That petition was filed under the provisions of the Tamil Nadu Panchayats Act, 1958. It was argued that alternative and effective remedy by way of election petition under the Act would be no bar to the jurisdiction of the High Court under Article 226. The Court conceded that filing of an election petition would not have the effect of overriding the powers of the High Court under Article 226 of the Constitution but such remedy has to be taken into consideration in determining whether it would be appropriate for the High Court to exercise power under Article 226 of the Constitution. Since the High Court interfered at the stage of allotment of symbol, the court set aside the decision observing that the High Court had committed a serious error in issuing a writ under Article 226 of the Constitution. It may also be stated that this decision was prior to the Constitution (Seventy-third Amendment) Act, 1992.
41. In Boddula Krishnaiah and Anr. v. State Election Commissioner, A. P. and Ors., , the Court held that once an election process has been set in motion, the High Court would not be justified in interfering with such process and in giving direction to the election officer to stall proceedings or to conduct the election process afresh.
42. In V.S. Achuthanandan v. P.J. Francis and Anr., , the Supreme Court observed that the High Court of Allahabad in Ashraf Ali Khan v. Tika Ram and Ors., 20 ELR 470 (All) rightly explained the position of law thus :
"In the case of an election there are certain steps to be taken until the poll is taken. In the first place, there is an announcement about the holding of an election. This is followed by nomination of candidates. After the nominations are made, a scrutiny of the nomination is held. After the nominations are scrutinized a list of validly nominated candidates is prepared. After the list of validly nominated candidates is prepared, there is a stage of withdrawal enabling a candidate to withdraw his candidature. After the withdrawal, if any, a candidate may retire from contest, and finally, there is the poll. Indeed, an election is one continuous process involving these steps in this connection. I may refer to what has been pointed out in the case of Shankar v. Returning Officer, Kolaba. With regard to the expression election, it was stated as follows :
"The expression election in Article 329(b) of the Constitution of India bears a wider meaning than the very limited restricted meaning of the result of an election or the counting of votes. "Election" has the same meaning as the expression used in Articles 327 and 328 viz., matters relating to or in connection with election. Therefore, nomination of candidates, scrutinizing of nominations, and decisions as to whether a nomination paper is valid or not, are all part and parcel of an election.
Election is not merely the ultimate decision or the ultimate result. 'Election' is every stage from the time the notification is issued till the result is declared, and even perhaps if there is an election petition, till the decision of the Election Tribunal. It is one whole continuous integrated proceeding and every aspect of it and every stage of it and every step in it is, a part of the election, and what is prohibited by Article 329(b) is calling in question any one aspect or stage of the election. The expression except by an election petition, in the article does not point to the period when it can be called in question; it rather points to the manner and the mode in which it can be called in question; and Article 329(b) provides that the only way any matter relating to or in connection with an election can be called in question is by an election petition, which could be presented to such authority and in such manner as may be provided for by law passed by the appropriate Legislature." (emphasis supplied)
43. From the above cases, it is clear that normally, a High Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution would not entertain a petition, once election process has started. It is also clear that once a notification of election programme is published, election process can be said to have started.
44. It is, however, submitted on behalf of the respondents that it cannot successfully be contended that this court has no jurisdiction to entertain a petition under Article 226 of the Constitution before the election is over and the only remedy available to the petitioner is to file an election petition. It was argued that in S. T. Muthusami, the Court stated that election petition would not have effect of overriding powers of the High Court under Article 226 of the Constitution. Similar view was expressed in Boddula Krishnaiah.
45. Reference was also made to K. Venkatachalam v. A. Swamickan and Anr., . In that case, without taking recourse to an alternative remedy under the relevant statute, a petition was filed under Article 226 of the Constitution alleging that fraud on the Constitution was committed and a person got himself elected by impersonation. The returned candidate being not an elector in the electoral roll of the Legislative Assembly constituency, lacked basic qualification as required by Article 173(c) of the Constitution read with Section 5 of the Representation of the People Act, but contested the election to the State Legislative Assembly by impersonating himself to another person who was an elector of that constituency. The writ petition was held maintainable, relief was granted by the High Court and the decision was upheld by the Supreme Court.
46. In our opinion, the ratio laid down in K. Venkatachalam would not apply to the facts of the present case. In that case, a writ of quo warranto was sought after the election, inter alia, alleging that there was fraud on the Constitution and the person who got himself elected was not eligible and qualified to contest the election and yet he got himself elected by impersonation. The Court, therefore, held that the jurisdiction of the High Court under Article 226 of the Constitution was wide enough to cover all violations of law or the Constitution and it ought to exercise its extraordinary jurisdiction in such cases. It was also indicated that the returned candidate would be even criminally liable, as he filed his nomination on an affidavit impersonating himself. If, in such circumstances, he is allowed to sit and vote in the Assembly, his action would be fraud on the Constitution.
47. The Court said :
"Article 226 of the Constitution is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provisions of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one the bar of Article 329(b) will not come into play when the case falls under Articles 191 and 193 and the whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?"
48. Finally, in Election Commission of India v. Ashok Kumar and Ors. , after considering several leading decisions on the point, the Supreme Court laid down certain principles on entertaining petitions under Article 226 of the Constitution of India and in issuing interim directions after the commencement of electoral process.
49. The Court stated :
"For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove :
(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilities the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.
(5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilize the court's indulgence by filing petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
It may, however, be stated that the facts in Ashok Kumar were totally different. After dissolution of 12th Lok Sabha by the President of India in April, 1999, the Election Commission of India announced the programme for the general election to constitute 13th Lok Sabha. Polling in the State of Kerala was on 11th September, 1999. The counting was scheduled on 6th October, 1999. In exercise of the powers conferred by Rule 59-A of the Conduct of Election Rules, 1961, the Election Commission of India issued a notification which was stayed by the High Court in a writ petition under Article 226 of the Constitution of India and certain directions were issued. The Apex Court held that the Election Commission had power to issue notification and the High Court ought not to have made interim order "to intervene so as to take care of an alleged aberration and maintain the flow of election stream within its permissible bounds".
50. The learned counsel for the parties referred to some of the decisions of this Court. In Bhosale Deepak Manikrao and Ors. v. State of Maharashtra and Ors., 1998(2) ALL MR 546, a Division Bench of this court considered a similar question. In that case too, an order of rejection of nomination paper of several candidates was questioned by filing a writ petition under Article 226 of the Constitution. Those nomination papers were rejected. It was contended that rejection of the nomination papers was without valid reason and a writ of mandamus was sought directing the Returning Officer to accept the nomination papers and permit them to contest the election.
51. Relying on Sections 15 and 15A of the Act, Article 243-O of the Constitution and following N. P. Ponnuswami and other cases, the Court held that a petition would not be maintainable against an order rejecting a nomination paper. Legality or propriety of the election can be challenged only by filing an election petition. The Court observed that Section 15 confers very wide powers on the trial Judge to decide validity of an election, without specifying any grounds. Qualification or disqualification of an elected candidate, improper rejection or acceptance of a nomination paper, improper counting or commission of corrupt practice, etc. are some of the grounds for invalidating an election. Sub-section (7) of Section 15 prohibits setting aside of an election only on the ground of an error made by the Officer charged with carrying out the rules. It means that if there is an error which does not go to the root of the case and is only an infraction of a rule, that by itself will not entitle a person to challenge the election and get it set aside. But when Returning Officer accepts a nomination paper, which ought not to have been accepted, or rejects a nomination paper, which should not have been rejected, he adjudicates entitlement of a person to contest or not to contest the election. Sub-section (7) of Section 15 would, therefore, not prevent the judge from considering improper rejection or acceptance of nomination paper as a ground for setting aside the election of a returned candidate.
52. In Farook Ali Khan v. Maharashtra State Election Commission and Ors., 1998(2) Mh.L.J. 750, almost a similar question arose, though dealing with an election of Municipal Corporation under the Bombay Provincial Municipal Corporations Act, 1949. In Farook Ali Khan also, petitioners challenged an order passed by the Returning Officer rejecting or accepting nomination papers of certain candidates. Election notification was issued on August 18, 1997 and nomination papers were scrutinized on 28th August, 1997. The question before the Court was, whether at that stage a petition under Article 226/227 of the Constitution would lie and an order of rejection or acceptance of nomination paper could be challenged.
53. Considering Article 329(b)(b) and Article 243-ZG of the Constitution [which is in pari materia to Article 243-O(b)], the Court held that rejection or acceptance of a nomination paper is one of the stages in the election and such action cannot be challenged in a petition under Article 226/227 of the Constitution in the High Court and the only remedy is to file an election petition as provided by law.
54. In Maroti Sakharam Wasekar v. Tahsildar, Mul and Anr., 1999(2) Mh.L.J. 550, a nomination paper of the petitioner was rejected by the Returning Officer and the said action was challenged by filing a petition under Article 226 of the Constitution. The election programme was announced and nomination papers were filed on December 7, 1998. The election was scheduled to be held on December 26, 1998. On 12th December, 1998, at the time of scrutiny, the nomination paper was rejected. It was contended that nomination papers were rejected on the ground of non-payment of dues of the Panchayat, which was baseless and false as there was no default. The said order, therefore, required to be interfered with.
55. The Division Bench, however, considering Section 15 of the Act as also Article 243-O(b) of the Constitution and relying on Farook Ali Khan and other cases, held that writ petition under Article 226 of the Constitution challenging rejection of nomination papers was not maintainable. The Court observed that the filing of nomination paper, scrutiny and rejection or acceptance thereof will be a part of election process and a petition under Article 226 of the Constitution would not lie against acceptance or rejection of nomination paper.
56. No doubt, strong reliance was placed by the learned counsel for the petitioners on a recent decision of the Division Bench of this court in Anant Janardati Patil v. State of Maharashtra and Ors. , In that case, considering the provisions of Rules 8 and 11 (2-A) of the 1959 Rules, it was held that if the defect in the nomination paper is "not of a substantial character", the Returning Officer cannot reject it.
57. In Anant Janardan, the petitioner claimed to belong to Mahadeo-Koli, a notified Scheduled Tribe. It was his case that the Executive Magistrate, Uran, had issued necessary certificate in favour of the petitioner. The petitioner submitted his nomination form on October 9, 1997, as a Scheduled Tribe candidate. At the time of scrutiny, however, the nomination was rejected by the Returning Officer on the ground that the certificate was not in prescribed format. Keeping in mind the provisions of Rule 11(2A), which lays down that the Returning Officer cannot reject any nomination paper on the ground of any defect which is not of a substantial character and observing that there was no format prescribed under the Rules for submitting caste certificate, the Court held that the action of the Returning Officer in rejecting the nomination paper of the petitioner was contrary to law and such an order could be challenged by filing a petition under Article 226 of the Constitution.
58. It was contended on behalf of the respondents that the petition under Article 226 was not maintainable and only remedy available to the petitioner was to file an election petition. The Court, no doubt, considered the provisions of Article 243-O of the Constitution. In the peculiar facts of the case, however, that by way of an interim order passed by the Court on January 16, 1998, by which the Returning Officer was directed to accept the nomination paper of the petitioner and was further directed to scrutinise it in accordance with law and was asked not to reject the same on the ground of caste claim of the petitioner as Scheduled Tribe, the Court observed that it would not be proper thereafter to ask the petitioner to pursue the remedy under the election laws.
59. The Court stated :
"As noted above the petitioners nomination papers were accepted under the interim order of this court and petitioner was elected unopposed being sole contestant. In the circumstances remedy under election law is not available to him in challenging the order of Returning Officer rejecting his nomination papers and matter has to be examined by us under Article 226."
A similar view was taken by the High Court of Gujarat in Kalidas Karsanbhai Chavda v. Returning Officer, Vadodara Jilla Panchayat Elections and Anr., ; and in Smt. Navubha Gokaji Chavda, Mehsana and Ors. v. Returning Officer and Ors., , albeit before insertion of Article 243-O of the Constitution.
60. The learned counsel for the respondents contended that in Anant Janardan, the Division Bench has not considered several decisions including the leading decision of the Constitution Bench of the Supreme Court in N. P. Ponnuswami, wherein it had been unequivocally and explicitly held that at the stage of rejection of nomination paper, a petition under Article 226 of the Constitution would not lie. It was also held that there cannot be two attacks on matters connected with election proceedings, one while election process is going on by invoking extraordinary jurisdiction of the High Court under Article 226 of the Constitution and the other after the election is over Anant Janardan, therefore, is per in curium,
61. To us, the law appears to be well settled and it is that once the election process has started, it has to be over in accordance with the provisions of the relevant statute. Once an election notification is issued, the process can be said to have started. There are various stages of election. One of such stages is scrutiny of nomination papers. It is thus a part and parcel of election process. The law contemplates only one attack in election matters, and that too, after the election is over. A petition under Article 226 of the Constitution against rejection of nomination paper, therefore, cannot lie. Since, in the instant cases, nomination papers of the petitioner have been rejected, keeping in view the mandate of the Constitution in Article 243-O(b) and Sections 15 and 15-A of the Act, the remedy available to the petitioners is to file election petition in accordance with provisions of the Act and not to invoke extraordinary jurisdiction of this court under Article 226 of the Constitution.
62. It is, no doubt, contended that Section 15 of the Act provides for filing of an election petition without specifying any ground for setting aside such election. Improper rejection or acceptance of nomination paper is not made one of the grounds for setting aside the election. Hence, a remedy provided by Section 15 of the Act cannot be termed an alternative or equally efficacious remedy. In N. P. Ponnuswami, the Court considered the provisions of Section 100 of the Representation of the People Act, 1951, wherein one of the grounds for declaring an election void was improper rejection of a nomination paper. [Clause (c) of Sub-section (1) of Section 100].
63. We are not impressed by the above argument. In N.P. Ponnuswami itself, the Constitution Bench stated;
"The next important question to be considered is what is meant by the words "no election shall be called in question". A reference to any treatise on elections in England will show that an election proceeding in that country is liable to be assailed on very limited grounds, one of them being the improper rejection of a nomination paper."
64. Thus, in our judgment, improper rejection or acceptance of nomination paper can be said to be one of the grounds for setting aside the election particularly when no grounds have been specified by the Legislature in Section 15 of the Act. That apart, as already observed in earlier part of the judgment, in Bhosale Deepak Manikrao, a Division Bench of this court has held that Sub-section (7) of Section 15 of the Act would not prevent the Judge from considering improper rejection or acceptance of a nomination paper as a ground for setting aside the election of a returned candidate. We are in agreement with the above view and reject the contention raised by the learned counsel for the petitioners.
65. For the foregoing reasons, in our opinion, the petitions filed by the petitioners under Article 226 of the Constitution against rejection of nomination papers are not maintainable at this stage in the light of the provisions of Article 243-O(b) of the Constitution read with Sections 15 and 15A of the Act. The petitions are, therefore, liable to be dismissed and are accordingly dismissed, without observing anything on merits, however, with no order as to costs.