The petitioner has sought a direction in the nature of mandamus commanding the respondents to consider his nomination paper for the forthcoming elections to the 16th Lok Sabha in relation to the 08, Sambhal Lok Sabha Election Constituency as valid.
On 25 March 2014, the Returning Officer notified that the scrutiny of the nominations would take place on 27 March 2014 between 11:00 a.m. and 3:00 p.m. The nomination paper of the petitioner was rejected on 27 March 2014 on the ground that the name of the petitioner was not found at Serial No. 800 in the electoral rolls of the constituency. The Returning Officer has observed that the petitioner was absent though he was informed that the scrutiny will commence at 11:00 a.m. on 27 March 2014. The petitioner filed an application for making a correction in the nomination paper. This application has been rejected by the Returning Officer for the reason that once the nomination paper had been rejected, a review of the order was not permissible in law.
According to the petitioner, the scrutiny was to take place between 11:00 a.m. and 3:00 p.m. on 27 March 2014 and at 2:40 p.m. on 27 March 2014, he submitted the application to the Returning Officer for correcting an error in the nomination paper. The petitioner stated that in his nomination paper, he had incorrectly stated that his name appears at Serial No. 800 of the electoral rolls whereas, in fact, his name appears at Serial No. 802.
Learned counsel appearing on behalf of the petitioner submits that the Returning Officer having stated that the scrutiny would take place between 11:00 a.m. and 3:00 p.m., he would not be justified in rejecting the nomination paper despite the receipt of the application at 2:40 p.m. Moreover, it has been submitted, relying upon the provisions of Section 33 (4) and Section 36 (4) of The Representation of People Act, 1951, that the nomination paper ought not to have been rejected on the ground of a defect which is not of a substantial character. Finally, it has been urged that the jurisdiction of the Court under Article 226 of the Constitution is not entirely barred though the election process has commenced in view of the decision of the Supreme Court in Election Commission of India through Secretary vs. Ashok Kumar & others1 Article 329 (b) of the Constitution provides as follows:
"(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."
It is well settled that the entire process from the issuance of a notification under Section 14 of The Representation of People Act, 1951 to the declaration of the results under Section 66 is comprehended within the expression 'election' in Article 329 of the Constitution.
Once the election process has begun, the interference of this Court is clearly not warranted. Moreover, under Section 100 (1) (c), an improper rejection of a nomination is a ground on which the election of a returned candidate can be assailed.
The decision of the Supreme Court in Election Commission of India vs. Ashok Kumar (supra) arose from a judgement of the Karala High Court which by an interim order had stayed a notification issued by the Election Commission of India containing directions in regard to the counting of votes and had made directions on its own on the subject. The Supreme Court set aside the order of the High Court and allowed the appeal by the Election Commission of India holding that the Election Commission will have the power to supervise and direct the manner of counting of votes. It was in that context that the Supreme Court while formulating the governing principles of law held that anything which is done towards completing or in furtherance of the election proceedings, cannot be described as questioning the election. The Supreme Court held that judicial intervention would be available if assistance of the Court has been sought merely to correct or smoothen the progress of the election proceedings, to remove obstacles or to preserve a vital piece of evidence which may otherwise be lost or destroyed.
On the other hand, where a nomination paper has been rejected, we are of the view that the interference of the Court under Article 226 of the Constitution would not be warranted since the bar under Article 329 (b) would clearly apply. The only manner in which the election can be challenged is by means of presenting an election petition after the declaration of the results where, as we have already noted, one of the grounds can be that a nomination paper has been improperly rejected.
A Constitution Bench of the Supreme Court in N.P. Ponnuswami vs. Returning Officer and others2 held that the jurisdiction of the High Court under Article 226 of the Constitution should not be invoked to question the election to either House of Parliament and the observations are as follows:
"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."
This decision was followed by the Supreme Court in Manda Jaganath vs. K.S. Rathnam and others3 and the observations of the Supreme Court are thus:
"12. 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.
13. 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. Parliament has by enacting the Representation of the 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 RP Act can entertain a complaint against any election.
14. 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.
.....................
23. The next argument of learned counsel for the respondent is that as per the provisions of section 36 of the Representation of the People Act, Rule 4 of the Conduct of Elections Rules, 1961 and clause 13 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 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."
For these reasons, we are not inclined to entertain the petition. The petition is, accordingly, dismissed. There shall be no order as to costs.