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2.17 The learned Counsel for the petitioner has relied on the judgment of the Hon'ble Supreme Court in the case of Election Commission of India v. Ashok Kumar & Ors., reported in 2000 (8) SCC 216 particularly Para 21 on page 228 which reads thus :

"A third category is not far to visualise. Under Section 81 of the Representation of the People Act, 1951, an election petition cannot be filed before the date of election, i.e., the date on which the returned candidate is declared elected. During the process of election something may have happened which would provide a good ground for the election being set aside. Purity of election process has to be preserved. One of the means for achieving this end is to deprive a returned candidate of the success secured by him by resorting to means and methods falling foul of the law of elections. But, by the time the election petition may be filed and judicial assistance secured, material evidence may be lost. Before the result of the election is declared assistance of Court may be urgently and immediately needed to preserve the evidence without in any manner intermeddling with or thwarting the progress of election. So also there may be cases where the relief sought for may not interfere or intermeddle with the process of the election, but the jurisdiction of the Court is sought to be invoked for correcting the process of election taking care of such aberrations as can be taken care of only at that moment failing which the flowing stream of election process may either stop or break its bounds and spill over. The relief sought for is to let the election process proceed in conformity with law and the facts and circumstances be such that the wrong done shall not be undone after the result of the election has been announced subject to overriding consideration that the Court's intervention shall not interrupt, delay or postpone the ongoing election proceedings. The facts of the case at hand provide one such illustration with which we shall deal with a little later. We proceed to refer a few other decided cases of this Court cited at the Bar."

In Paragraph No. 16 on page 15 the Court further observed as follows :

"Para 16 ...... Hence, the impugned decision of the Returning Officer must be held to be patently illegal and without jurisdiction. The illegality is so apparent on the face of the record that rejecting the petition at this stage and requiring the petitioner-society to file an election petition after the elections are over would not only be a travesty of justice, but also frustrate the letter and spirit of the democratic process. The very object of the self-imposed rule that the Courts shall not interfere with the election process when the election process has commenced is to ensure that the election process goes on. When the Returning Officer himself commits a patent illegality and rejects the resolution of the petitioner changing its delegate and this is done without any power or jurisdiction, this must be held to be one of the exceptional and extraordinary circumstances justifying the interference of this Court with the impugned decision of the Returning Officer."

3.4 He submitted that any action taken by this Court at this stage will thwart the election process and the Court should not do the same in this behalf. He has relied on the judgment of this Court in Special Civil Application Nos. 2132 to 2134 of 1999 decide on 1-11-1999 (Coram: M. S. Shah, J.). In these matters also Letters Patent Appeal was filed and the Division Bench (Coram: D. M. Dharmadhikari, C.J and C. K. Thakker, J.), in Para 9 of the judgment has observed as under :-

"We purposely avoid going into the merits of the contentions advanced in the Special Civil Application, because any opinion expressed by us might prejudice the case of either of the parties in the pending litigations. In our considered opinion, in view of the subsequent event of the society, which the petitioners represent, being characterised as Category "C" and the said action having been upheld by the Co-operative Tribunal, the learned single Judge in his discretion could have vacated the earlier ex-parte interim injunction order granted to the petitioners. Merely because we may hold a different view, we cannot upset the discretionary order of the learned single Judge. The discretion has been exercised by the learned single Judge judiciously, after examining the rival case of the parties. Learned single Judge was right in coming to the conclusion that, petitioners who are prima facie ineligible to contest cannot be allowed to function as office-bearers on the basis of previous election. We are also not impressed by the arguments advanced on behalf of the petitioners that, learned single Judge could have directed appointment of a custodian through the Registrar in accordance with the provisions of Section 74D of the Act. That power vests only in the Registrar and it was not open to the Court to issue any direction or mandate to the Registrar by way of any interim relief. After examining the case of the parties and looking to the balance of convenience, learned single Judge has vacated the ex pane interim order granted in favour of the petitioners. We find no error in the order of the learned single Judge so as to justify interference by us in this Intra-Court Appeal. Consequently, the appeal is dismissed, but in the circumstances without any order as to cost. Notice stands discharged."

4.2 In view of the provisions of the Act, the order passed by the District Registrar at Annexure-A dated 24-7-2001 rejecting the nomination of the petitioner cannot be sustained in the eye of law because the condition precedent for exercising the power under Rule 23 does not exist in this behalf.

4.3 In view of the judgment of this Court in Special Civil Application No. 5040 of 1999 (supra) the impugned decision of the Returning Officer must be held to be patently illegal and without jurisdiction. The illegality is so apparent on the face of the record that rejecting the petition at this stage and requiring the petitioner-society to file an election petition after the elections are over, would not only be a travesty of justice but also frustrate the letter and spirit of the democratic process. The very object of the self-imposed rule that the Courts shall not interfere with the election process when the election process has commenced is to ensure that the election process goes on. When the Returning Officer himself commits a patent illegality and rejects the nomination paper of the petitioner contrary to the statutory provisions or in any view of the matter condition precedent for exercising the power is lacking then the same is done without any power or jurisdiction. In my view the condition precedent for exercising the power under the provisions of the Act and Rules are lacking, and therefore, there is inherent lacking of jurisdiction in the order of respondent No. 1. This must be held to be one of the exceptional and extraordinary circumstances justifying the interference of this Court with the impugned decision of the Returning Officer.