MANDA JAGANATH v. K.S. RATHNAM AND ORS

Citation: [2004] SUPP. 1 S.C.R. 204

Court: Supreme Court of India

Bench: N. SANTOSH HEGDE, B.P. SINGH

Case summary

MANDA JAGANATH v. K.S. RATHNAM AND ORS.pdf

Judgment text

MANDAJAGANATH V. K. S. RATHNAM AND ORS. APRIL 16, 2004 [N. SANTOSH HEGDE AND B. P. SINGH, JJ. ] Constitution ofIndia,1950: Articles 226 and 329(b)-Election to Parliament- -Allotment ofsymbol- Rejection by Returning Officer ofform 'B' submitted by a candidate- Nomination accepted as an independent candidate-Writ petition challenging order of Returning Officer-Maintainability of-Held, the issue should be agitated by aggrieved party in an election petition only and it is not a matter for High Court to decide in exercise . ofits writ jurisdiction-Representation ofthe People Act,1951-s. JOO(J)(d)(4). Words an arliament 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 ofthe Courts having been expressly excluded)" and another after they have been compl~ted 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 MS. 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 ofcalling in question an election, except in special situations pointed out but left unexplored in Ponnuswami 's case. It is while considering the above unexpfored situations. in Ponnuswami (supra) in MS. Gi/l 's case (supra) this Court held thus : "This dilemma does not arise in the wider view we take ofSection IOO(l)(d)(iv) of the Act. Sri Rao's attack on the order impugned is in substance based on alleged non-compliance with a provision ofthe Constitution viz:, Article 324 but is neatly covered by the widelyworded, residual catch-all clause ofSection 100.

Knowing the supreme significance of ,speedy elections in our system the framers of the Constitution haJe, by implication postponed all election disputes to election petitions and tribunals. In harmony with this scheme Section I00 ofthe Act has been designedly drafted to embrace all conceivable infirmities which may be urged. To make the project fool-proof Section IOO(l)(d)(iv) h~s been added to absolve everything left over. The Court has in earlier rulings pointed out that Section I00 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, ifthe 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. " ' MANDA JAGANATH v. K. S. RATHNAM [HEGDE, J.

] 213 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. lfby an erroneous order conduct ofthe 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. 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 noncompliance 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 0 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 and 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 mvolved was a dispute between two candidates claiming the official symbol of a political party. This judgment came to be distinguished by the p ·. 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 ofthe first respondent before the High Court came within the exceptions noted by this Court in MS. Gill's case (supra) which permits filing of a writ petition under Article 226 ofthe Constitution in certain exceptional c1ses.

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. Wi. th 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 pennitted 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 nonallotment of the symbol will have to be agita! ed in an ,election petition (if need be) as held in S. T. Muthuswami (supra).

Learned counselthen contended that non-allotment of a symbol which the first respondent was legally entitled to would not be a ground ofchallenge available to him in the election petition under section 100 ofthe 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 MS. Gill's case (supra) sub-clause 4 of section IOO(l){d) of the Representation of tile People Act, 1951 is widely worded residual clause which this Court in the said judgment of MS. Gill case tenned 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 Fonn B filed by the respondent herein are all curable irregularities and are not defects ofsubstantial nature, calling for rejection ofthe nomination paper. We think these arguments based on the provisions of the statutes, Rules and Orders are all arguments which can be 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 \n 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 ~ay that the High Court on facts ofthis case, could not have interfered with the decision ofthe Returning Officer to reject Fonn 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 A Writ Petition No. 6653/2004 titled K. S. Rathnam and Anr. v. The Returning Officer pending before the High Court, hence, we dismiss the same also. R. P. Appeal allowed.