Karnataka High Court
Syed Yasin S/O Syed Mohiuddin vs The Chief Election Commissioner And Ors on 25 April, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 201340 of 2023
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 25TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO.201340 OF 2023 (LB-ELE)
BETWEEN:
SYED YASIN S/O SYED MOHIUDDIN
AGE 73 YEARS, R/AT 4-1-103 MANGALWARPET,
RAICHUR-584101
...PETITIONER
(BY SRI RAVINDRANATH KAMATH, SENIOR COUNSEL FOR
SRI R. KOTHWAL & DIVYATEJ H.N., ADVOCATES)
AND:
1. THE CHIEF ELECTION COMMISSIONER AND ELECTION
COMMISSIONERS, ELECTION COMMISSION OF INDIA
NIRVACHAN SADHAN, ASHOKA ROAD, NEW DELHI-
110001
2. THE CHIEF ELECTORAL OFFICER
Digitally signed
by SWETA STATE OF KARNATAKA (DPAR ELECTIONS) CENTRAL
KULKARNI
Location: High
COLLEGE, SESHADRI ROAD, AMBEDKAR VEEDHI,
Court of
Karnataka BENGALURU-560001
3. THE DISTRICT ELECTORAL OFFICER
RAICHUR DISTRICT, RAICHUR-584101
4. THE RETURNING OFFICER
RAICHUR-54, ASSEMBLY CONSTITUENCY,
RAICHUR-584101
...RESPONDENTS
(BY SRI D.P. AMBEKAR, ADV. FOR R1 AND 2;
SRI SHIVAKUMAR R. TENGLI, AGA FOR R3 AND R4)
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WP No. 201340 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
WRIT IN THE NATURE OF CERTIORARI QUASHING THE
IMPUGNED DECISION TAKEN BY THE RESPONDENT NO.4-
RETURNING OFFICER OF THE RAICHUR-54 ASSEMBLY
CONSTITUENCY IN REJECTING THE NOMINATION OF THE
PETITIONER VIDE ANNEXURE-D; AND ISSUE WRIT IN THE
NATURE OF MANDAMUS DIRECTING THE RESPONDENT
AUTHORITIES TO ACCEPT THE NOMINATION PAPER ALONG
WITH AFFIDAVIT SUBMITTED BY THE PETITIONER TO
CONTEST ELECTION FROM RAICHUR-54 ASSEMBLY
CONSTITUENCY DATED 20.04.2023 VIDE ANNEXURE-B.
THIS PETITION COMING ON FOR ORDER, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard learned Senior Counsel Sri Ravindranath Kamath for Sri R. Kothwal and Divyatej H.N., learned counsel for the petitioner, Sri D.P. Ambekar for respondent Nos.1 and 2 and Sri Shivakumar R. Tengli, learned Additional Government Advocate for respondent Nos.3 and 4. Perused the writ petition papers.
2. Learned Senior Counsel Sri Ravindranath Kamath would submit that the petitioner is before this court invoking the writ jurisdiction under Article 226 of the Constitution of India for a writ of -3- WP No. 201340 of 2023 certiorari to quash Annexure-D by which respondent No.4 - Returning Officer rejected the nomination of the petitioner to the Raichur-54 Assembly Constituency and for a writ of mandamus directing the respondent authorities to accept the nomination paper along with the affidavit submitted by the petitioner to contest election from Raichur-54 Assembly Constituency dated 20.04.2023.
3. Learned Senior Counsel Sri Ravindranath Kamath would contend that the nomination of the petitioner as could be seen from Annexure-D is rejected on the following three grounds:
"1. Rejected because Less than 10 proposes one proposes not tally with electoral roll.
2. Not filed nomination in the prescribed annexure 2B
3. Affidavit Col.3(iii) 5, 6, Part- B not filed."
According to Senior Counsel, the above grounds are flimsy grounds and on the said grounds the nomination of the petitioner could not have been rejected
4. Learned Senior Counsel further submit that this court under Article 226 of Constitution has power to correct or rectify the process of election. Since the petitioner is not seeking for an order -4- WP No. 201340 of 2023 to stall the election process, this court could exercise its power under Article 226 of Constitution of India. Further learned counsel would submit that the petitioner filed nomination on 20.04.2023 to the Raichur-54 Assembly Constituency and the same was rejected by respondent No.4 - Returning Officer on 21.04.2023 in terms of Annexure-D1. Learned Senior Counsel would invite attention of this court to page-78 of the writ petition i.e. Part-B of Form No.26 affidavit and states that the blank ought to have been filled up by the returning officer and it is not to be filled by the candidate. Thus, learned Senior Counsel would submit that there is no application of mind on the part of the respondent No.4 - Returning Officer in scrutinizing the nomination paper and rejection of nomination paper is the result of non-application of mind by the respondent No.4 - Returning Officer.
5. Learned Senior Counsel would place reliance on the decision of the Division Bench of this court in L. Ramakrishnappa vs. Presiding Officer reported in ILR 1991 KAR 4421 to contend that this court under Article 226 of the Constitution has jurisdiction to interfere with the illegality committed in the course of holding -5- WP No. 201340 of 2023 election notwithstanding the existence of an alternate remedy by way of filing election petition if violation of law is established.
6. The learned Senior Counsel for the petitioner would also places reliance on the decision of the Hon'ble Apex court in Mohinder Singh Gill and Anr. vs. The Chief Election Commissioner, New Delhi and Ors. reported in (1978) 1 SCC 405 to contend that the matter could be remanded to the respondent No.4 - Returning Officer for proper scrutiny of the nomination paper of the petitioner.
7. Learned Senior Counsel also would invite attention of this court to Annexure-E guidelines to the Returning Officer and submits that the Returning Officer shall not reject the nomination paper on a ground or defect which is not substantial. Hence on these grounds prayed to allow the petition.
8. Learned counsel Sri D.P. Ambekar for respondent Nos.1 and 2 on behalf of Election Commission would submit that the election process starts from the date of issuance of notification of election till results are announced. Learned counsel placing reliance on the decision of the Hon'ble Apex court in the case of -6- WP No. 201340 of 2023 N. P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. and others reported in AIR 1952 SC 64 submits that rejection of nomination is in the course of process of election and the course open for the candidate whose nomination is rejected is to file election petition. In that regard, learned counsel also invites attention of this court to Section 100(1)(c) of the Representative of the People Act, 1951 (for short, 'Act of 1951') and submits that rejection of nomination is one of the grounds for declaration of election to be void. Thus, he submits that the only remedy available to the petitioner is to challenge the rejection of the nomination paper in an election petition to be filed under Section 80 of the Act, 1951. Thus, he prays for dismissal of the writ petition.
9. Having heard the learned counsel for the parties and on perusal of the writ petition papers the only question falls for consideration is as to:
"Whether the writ petition under Article 226 of the Constitution of India would be maintainable against rejection of nomination paper of the petitioner to Raichur-54 Assembly Consistency in terms of Annexure-D dated 21.04.2023?"-7- WP No. 201340 of 2023
10. The answer to the above point would be in the Negative for the following reasons.
11. The Election Commission issued press note dated 29.03.2023 publishing schedule for the General Assembly Election to the Legislative Assembly of State of Karnataka. The petitioner filed his nomination paper to Raichur-54 Assembly Constituency on 20.04.2023 in terms of Annexure-B.
12. On scrutiny, the petitioner's nomination paper is rejected on the following three grounds:
"1. Rejected because Less than 10 proposes one proposes not tally with electoral roll.
2. Not filed nomination in the prescribed annexure 2B
3. Affidavit Col.3(iii) 5, 6, Part- B not filed."
13. It is an admitted fact that the nomination of the petitioner is rejected on the above grounds. Election would mean the process from the date of issuance of scheduled of General Assembly Election or Calendar of Events by the Election Commission till results are published. The Hon'ble Apex Court in N.P. Ponnuswami case (supra) has held that the word 'election' is -8- WP No. 201340 of 2023 used to embrace the whole procedure of election and is not confined to final result thereof-Rejection or acceptance of nomination paper is included in the term. Thus rejection of nomination is in the process of election.
14. Section 80 of 1951 Act provides for election petition questioning the election. Section 100 of Act 1951 provides for grounds for declaring election to be void. Section 100(1)(c) reads as follows:
"100. Grounds for declaring election to be void.-(1) Subject to the provisions of sub-section (2) if the High Court is of opinion-
(a) xxx
(b) xxx
(c) that any nomination has been improperly rejected; or"
15. As the rejection of nomination is also one of the grounds for declaring election to be void, it is for the petitioner to challenge the rejection of the nomination paper in a properly instituted election petition.
16. The Hon'ble Apex Court in the case of Manda Jaganath Vs. K.S. Rathnam and Ors. reported in (2004) 7 SCC 492 has held that Representation of People Act, 1950 provides a -9- WP No. 201340 of 2023 proper forum for adjudicating the election disputes and no forum other than one so constituted competent to decide the disputes. It has further observed that only those actions of the Returning Officer which have the effect of interfering in the free flow of scheduled elections or hinder the process of election, amenable to writ jurisdiction. In the instant case, it is not the case of the petitioner that the action of the Returning Officer would have effect on the free flow of scheduled election process or hinders the progress of the election.
17. The decision relied upon by the learned Senior Counsel in L. Ramakrishnappa (supra) and Mohinder Singh Gill (supra) would not assist the petitioner.
18. In L. Ramakrishnappa (supra), the Division Bench of this court at conclusion(1) has observed that this court under Article 226 of the Constitution has the jurisdiction to interfere with the illegality committed in the course of holding election to the offices of any authority/body which is regulated by statutory provisions and specifically excluded the election to the parliament and state legislature. In Mohinder Singh Gill (supra), the Hon'ble Apex Court was considering the power of the Election Commission
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WP No. 201340 of 2023under Article 324 and the scope of Article 329(b) of the Constitution of India, has observed that the Election Commission under Article 324 of Constitution would be responsible for free and fair election and responsibility would cover, powers, duties and functions of many sorts, administrative or other, depending upon the circumstances. The Hon'ble Apex Court placing reliance on the N. P. Ponnuswami (supra) has specifically made it clear that under Article 329(b) of Constitution the sole remedy for an aggrieved party, if he wants to challenge any election, is an election petition and this exclusion of all other remedies includes constitutional remedies like Article 226 because of the non-obstante clause. Thus, I am of the view that writ petition challenging the rejection of nomination to Raichur-54 Assembly Constituency would not be maintainable and the remedy for the petitioner is to file election petition in terms of Section 80 of 1951 Act. The contention that the Returning Officer shall not reject the nomination if defect is not substantial, cannot be gone into in this writ petition. This court under Article 226 of the Constitution would not be in a position to examine as to whether the grounds on which nomination is rejected is flimsy or whether it is substantial or not.
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WP No. 201340 of 2023Accordingly, the petition is disposed of as not maintainable.
Sd/-
JUDGE BL List No.: 2 Sl No.: 1