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CASE NO.: Appeal (civil)  2489 of 2004

PETITIONER: Manda Jaganath   

RESPONDENT: K.S.Rathnam & Ors.

DATE OF JUDGMENT: 16/04/2004

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

(Arising out of SLP ) No.7457 of 2004)

SANTOSH HEGDE,J.

       Leave granted.

       Heard learned counsel for the parties.

       The first respondent herein filed his nomination to contest  elections to the Parliament from 28 Nagarkurnool (SC)  Constituency. On 2.4.2004 when the said nomination papers  were taken up for scrutiny, the Returning Officer found that  Form B submitted by the first respondent was blank in columns  2 to 7 and scratch line indicating scoring off the requirement of  the said columns was noticed. Following the guidelines found in  Handbook of Returning Officers issued by the Election  Commission of India, the said Returning Officer rejected Form  B filed by the first respondent herein and while accepting the  nomination of the first respondent as an independent candidate  he did not allot him the symbol reserved for the candidates of  Telangana Rashtra Samithi of which party the first respondent  claimed to be a candidate.         Being aggrieved by the said order of the Returning Officer  the first respondent and the Telangana Rashtra Samithi  represented by its President filed a writ petition under Article  226 of the Constitution of India before the High Court of  Judicature; Andhra Pradesh, Hyderabad praying inter alia for  issuance of a writ, order or direction in the nature of mandamus  declaring the action of the Returning Officer treating the first  respondent as an independent candidate and not as a candidate  set up by the Telangana Rashtra Samithi vide his order dated  2.4.2004 as illegal and further prayed for a direction to the said  Returning Officer to treat the first respondent as a candidate set  up by the said Telangana Rashtra Samithi political party and  allot the symbol of ’car’ to him. When the said writ petition  came up for preliminary hearing the High Court, while issuing  notice of admission and hearing learned counsel appearing for  the parties at the interlocutory stage, came to the conclusion that  the reason given by the Returning Officer for refusing to  recognise the first respondent as an official candidate of  Telangana Rashtra Samithi and consequential refusal to allot the  official symbol of that party, was not acceptable even at that  interlocutory stage because the errors pointed out by the  Returning Officer were due to inadvertence and there was no  other candidate set up by the said Telangana Rashtra Samithi in  the said Constituency for which the first respondent had filed his  nomination. It also took notice of  an affidavit filed by the

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President of the Telangana Rashtra Samithi stating inter alia that  the party had authorised him to issue B Form to the candidate set  up by that party in the ensuing Assembly and Parliamentary  elections and exercising said authority he had issued Form B to  the first respondent herein. Based on the above material the High  Court came to the conclusion that the irregularity, if any, found  in Form B was so technical and trivial that the same did not  justify the decision of the Returning Officer to treat the first  respondent as an independent candidate and not as a candidate  set up by the Telangana Rashtra Samithi, hence, issued the  impugned directions setting aside the decision of the Returning  Officer. It also came to the conclusion that the issue relating to  allotment of symbol by the Returning Officer at the time of  scrutiny of nomination papers is not one of the grounds on which  an election petition could be filed under the provisions of the  Representation of the People Act, 1951 (R.P.Act, 1951).          Being aggrieved by the interim order of the High Court, the  appellant has filed the above appeal which was listed on  8.4.2004 before us for mentioning for an early date of hearing  the SLP. Noticing the urgency of the matter and prima facie case  of lack of jurisdiction of the High Court to entertain a writ  petition after the election process had started, we took up the  matter on board and issued notice to the respondents. We also  considered it fit to suspend/stay the operation of the impugned  order.  Now, the parties are served with the court notice of this  petition and are represented through their respective counsel who  have requested us to finally dispose of the matter today because  of the urgency involved. Having heard the learned counsel, we grant leave in this  matter and proceed to dispose of this appeal. Ms. K. Amareshwari, learned senior counsel for the  appellant and Mr. S Muralidhar, learned counsel for the  Returning Officer assailed the order of the High Court primarily  on the ground that the High Court was not justified in  entertaining a writ petition after issuance of election notification  because of the specific bar found in Article 329(b) of the  Constitution of India read with the other provisions of the  Representation of the People Act, 1951. They also contended  that the High Court could not have directed the Returning  Officer to treat the first respondent as a candidate set up by the  Telangana Rashtra Samithi and further direct the Returning  Officer to allot the symbol of car which is reserved for the  official candidate of the said political party only. They also  submitted that in view of glaring defects and omissions found in  Form B filed by the first respondent which are in contravention  of the Representation of the People Act, the Rules and Orders  made thereunder, it was only the Returning Officer who was  competent to adjudicate on such issues and the High Court could  not have in a petition filed under Article 226 decided that issue.  They placed strong reliance on the provisions of Article 329(b)  of the Constitution as also the judgments of this Court in : 1.      N.P.Ponnuswami vs. The Returning Officer,  Namakkal Constituency, Namakkal, Salem  Dist., and Others  (AIR 1952 (39) SC 64); 2.      Mohinder Singh Gill & Anr. V. The Chief  Election Commissioner, New Delhi & Ors.  (1978 1 SCC 405); 3. Election Commission of India v. Shivaji & Ors.  (1988 1 SCC 277); and  4.Ram Phal Kundu v. Kamal Sharma (2004 2  SCC 759).  

Dr. Rajeev Dhawan, learned senior counsel appearing for  the respondents before us who was the writ petitioner before the

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High Court, however, supported the judgment of the High Court  stating that the bar found in Article 329(b) of the Constitution is  only in regard to the defects which are not of substantial nature  and not a bar to correct errors arising out of irregularities and  omissions which have no material bearing on the election or  rights of parties. He placed strong reliance on the proviso to  Rule 4 of the Conduct of Elections Rules, 1961. He also  submitted that the defects pointed out by the Returning Officer  were of a very trivial nature and from a complete reading of the  nomination papers filed in different forms, it was clear that the  first respondent was a candidate proposed  by the Telangana  Rashtra Samithi and in such circumstances an omission to fill  up clauses 2 to 7 in Form B can never be treated as a fatal  omission. He also contended that there being no substantial  defect and there being no other nomination paper filed on behalf  of that political party, the High Court was justified in rectifying  that error of the Returning Officer but for which his client  would have suffered great hardship and might have had to suffer  a prolonged legal battle at a subsequent stage. He also submitted  that since the appellant herein was not a candidate claiming  either as a nominee of the Telengana Rashtra Samithi or  claiming the official symbol of the said party he would not be in  any manner prejudiced by the order of the High Court which  would only further the interest of justice in facilitating the  ongoing election process which is the main object of Article 329  of the Constitution of India.  He also relied on certain passages found in Mohinder  Singh Gill’s case (supra) as also Ponnuswami’s case (supra) to  support his contention. Learned counsel also placed strong  reliance on section 36 of the Representation of the People Act as  also clause 30 of the Election Symbols (Reservation and  Allotment) Order, 1968 to show that any error in Form B filed in  regard to the allotment of the symbol would not be a defect of  substantial nature.  It is an admitted fact that so far as the Elections to  Parliament from Constituency No.28 Nagarkurnool (SC)  Parliamentary Constituency in Andhra Pradesh is concerned, the  process of election had already started not only by issuance of  the notification by the President of India but also by issuance of  a notification fixing the calendar of events by the Election  Commission. It is only pursuant to said notification that the first  respondent filed his nomination before the Returning Officer on  the last date of filing of nominations. It is an admitted fact that in  Form A filed by the appellant, he had asked for the symbol of a  car on the ground that he is a candidate proposed by the  Telengana Rashtra Samithi. His candidature has also been  properly proposed and seconded as a candidate for the election  to the House of People from Nagarkurnool (28) Parliamentary  Constituency, but in Form B which is also a statutory form  required to be filed by the first respondent for claiming a  reserved symbol of a particular party at Part III in column (b)(ii)  of the said form the candidate is required to give the particulars  of the political party represented by him. Though in this column  the respondent has stated that he is a candidate set up by the  Telangana Rashtra Samithi party which is a registered  unrecognised political party, alternate printed words that he is  contesting this election as an independent candidate is also  retained. This column requires the candidate to strike out what is  not applicable therein but the first respondent has failed to strike  out the part that he is contesting that election as an independent  candidate thus giving room for a doubt whether really he was a  candidate representing Telengana Rashtra Samithi political party  or he is contesting the election as an independent candidate. The  more important and more glaring error that was noticed by the  Returning Officer was the lack of particulars in columns 2 to 7

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of the said form which is the requisite notice required to be given  by the political party setting up the candidate in proof of the fact  that the candidate named therein has been set up by and entitled  to the reserved symbol of that party. From a reading of the  various clauses of Form B it is clear that only that person whose  name and other particulars are furnished in columns 2 to 4 in the  said form, can be treated as a representative or a candidate  proposed by the said political party. As noticed by the Returning  Officer we also see that except column 1 which mentions the  name of the Constituency no other column which requires name  of the approved candidate, name of father/mother/husband of the  approved candidate, postal address of the approved candidate has  been filled up to indicate that it is the first respondent who is the  official candidate of that party and entitled to the symbol. On the  contrary these columns are struck off as if this Form B was not  given to any one. Clause 2 of the said form requires a declaration  to be made by the authorised person as to whom this Form B is  being given. Even in this column the name of the first  respondent is not mentioned. Clause 3 of the said form also  requires a certificate that the candidate whose name is mentioned  above is a member of that political party and his name is duly  borne on the rolls of that party. None of these information is  provided in the said clause of Form B.

In our opinion, whether the Returning Officer is justified in  rejecting this Form B submitted by the first respondent herein or  not, is not a matter for the High Court to decide in the exercise of  its writ jurisdiction. This issue should be agitated by an  aggrieved party in an election petition only.  It is to be seen that under Article 329(b) of the  Constitution of India there is a specific prohibition against any  challenge to an election either to the Houses of Parliament or to  the Houses of Legislature of the State except by an election  petition presented to such authority and in such manner as may  be provided for in a law made by the appropriate legislature.  The parliament has by enacting the Representation of People  Act, 1951 provided for such a forum for questioning such  elections hence, under Article 329(b) no forum other than such  forum constituted under the R.P.Act can entertain a complaint  against any election. The word ’election’ has been judicially defined by various  authorities of this Court to mean any and every act taken by the  competent authority after the publication of the election  notification.  In Ponnuswami (supra) this Court held :  "The law of elections in India does  not contemplate 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 another after  they have been completed by means of an  election petition."

The above view of this Court in Ponnuswami’s case has  been quoted with approval by the subsequent judgment in M.S.  Gill (supra) wherein this Court after quoting the passages from  said judgment in Ponnuswami’s case held that there is a non- obstante clause in Article 329 and, therefore, Article 226 stands  pushed out where the dispute takes the form of calling in question  an election, except in special situations pointed out but left

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unexplored in Ponnuswami’s case. It is while considering the  above unexplored situations in Ponnuswami (supra) in M.S.  Gill’s case (supra) this Court held thus :  "This dilemma does not arise in the  wider view we take of Section  100(1)(d)(iv) of the Act. Sri Rao’s attack  on the order impugned is in substance  based on alleged non-compliance with a  provision of the Constitution viz., Article  324 but is neatly covered by the widely- worded, residual catch-all clause of  Section 100. Knowing the supreme  significance of speedy elections in our  system the framers of the Constitution  have, by implication postponed all  election disputes to election petitions and  tribunals. In harmony with this scheme  Section 100 of the Act has been  designedly drafted to embrace all  conceivable infirmities which may be  urged. To make the project fool-proof  Section 100(1)(d)(iv) has been added to  absolve everything left over. The Court  has in earlier rulings pointed out that  Section 100 is exhaustive of all  grievances regarding an election."  

In the very same paragraph this Court, however, demarcated  an area which is available for interference by the High Court and  the same is explained as follows:  "But what is banned is not anything  whatsoever done or directed by the  Commissioner but everything he does or  directs in furtherance of the election, not  contrarywise. For example, after the  President notifies the nation on the holding  of elections under Section 15 and the  Commissioner publishes the calendar for  the poll under Section 30, if the latter  orders returning officers to accept only one  nomination or only those which come from  one party as distinguished from other  parties or independents, is that order  immune from immediate attack. We think  not. Because the Commissioner is  preventing an election, not promoting it  and the Court’s review of that order will  facilitate the flow, not stop the stream.  Election, wide or narrow be its  connotation, means choice from a possible  plurality, monolithic politics not being our  genius or reality, and if that concept is  crippled by the Commissioner’s act, he  holds no election at all."

       Of course, what is stated by this Court herein above is not   exhaustive of a Returning Officer’s possible erroneous actions  which are amenable to correction in the writ jurisdiction of the  courts. But the fact remains such errors should have the effect of  interfering in the free flow of the scheduled election or hinder the  progress of the election which is the paramount consideration. If  by an erroneous order conduct of the election is not hindered then  the courts under Article 226 of the Constitution should not  interfere with the orders of the Returning Officers remedy for  which lies in an election petition only.

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       In Election Commission of India v. Shivaji (supra) this  Court while considering a challenge to the election notification  which included certain Zila Parishads within a notified  constituency, held following the judgment in Ponnuswami  (supra) that even if there was any ground relating to the non- compliance with the provisions of the Act and the Constitution on  which the validity of any election process could be questioned,  the person interested in questioning the election has to wait till  the election is over and institute a petition in accordance with  Section 81 of the Act calling in question the election of the  successful candidate.           Learned counsel for the writ petitioner before the High  Court had relied upon a judgment of this Court in S.T.  Muthusami v. K. Natarajan & Ors. (1988 1 SCC 572) wherein  this Court had held following the judgment in Ponnuswami’s case  (supra) that entertaining of a writ petition by the High Court  under Article 226 of the Constitution cannot be supported and  consequently it set aside the judgment of the Division Bench of  the High Court and dismissed the writ petition filed in the High  Court. In that case the question involved was a dispute between  two candidates claiming the official symbol of a political party.  This judgment came to be distinguished by the High Court on the  basis of facts though the law laid down there was squarely  applicable against the maintainability of the writ petition. Learned senior counsel for the respondent candidate  contended that case of the first respondent before the High Court  came within the exceptions noted by this Court in M.S. Gill’s  case (supra) which permits filing of a writ petition under Article  226 of the Constitution in certain exceptional cases. He  contended that the facts in this case also show that but for the  intervention of the High Court the progress in the election would  have been stalled. With due respect to learned counsel we do not  agree with this argument because by not allotting a symbol  claimed by the first respondent the Returning Officer has not  stalled or stopped the progress of the election. Said respondent  has been treated as an independent candidate and he is permitted  to contest with a symbol assigned to him as an independent  candidate, and consequently there is no question of stalling the  election. His grievance as to such non- allotment of the symbol  will have to be agitated in an election petition (if need be) as held  in S.T.Muthuswami (supra).             Learned counsel then contended that non-allotment of a  symbol which the first respondent was legally entitled to would  not be a ground of challenge available to him in the election  petition under section 100 of the Representation of the People  Act, 1951 therefore the High Court is justified in entertaining the  petition. We do not think this argument of learned counsel is  correct because as has been held by this Court in M.S. Gill’s case  (supra) sub-clause 4 of section 100(1)(d) of the Representation of  the People Act, 1951 is widely worded residual clause which this  Court in the said judgment of M.S. Gill case termed as "catch all  clause". It is further stated in the said judgment that the said  section has been added to absolve everything left over and the  same is exhaustive of all grievances regarding an election, hence,  in our opinion this argument of learned counsel for the first  respondent should also fail.         The next argument of learned counsel for the respondent is  that as per the provisions of section 36 of the R.P. Act, Rule 4 of  the Conduct of Elections Rules, 1961 and Clause 30 of the  Election Symbols (Reservation and Allotment) Order, 1968, the  omissions found by the Returning Officer in Form B filed by the  respondent herein are all curable irregularities and are not defects  of substantial nature, calling for rejection of the nomination  paper. We think these arguments based on the provisions of the  statutes, Rules and Orders are all arguments which can be

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addressed in a properly constituted election petition, if need be,  and cannot be a ground for setting aside the order of the  Returning Officer which is prima facie just and proper in our  opinion.         We are not recording any conclusive opinion in regard to  the applicability of the above statute, Rules and Orders because,  as stated above, it is a matter to be decided in an election petition.  Suffice it to say that the High Court on facts of this case, could  not have interfered with the decision of the Returning Officer to  reject Form B filed by the first respondent.  

         For the reasons stated above, this appeal succeeds and the  same is allowed, setting aside the impugned order of the High  Court.          In view of the above decision of ours, we think nothing  survives in the Writ Petition No. 6653/2004 titled K.S.Rathnam  & Anr. Vs. The Returning Officer pending before the High Court,  hence, we dismiss the same also.