JUDGMENT Jagdish Bhalla, J.
1. This writ petition is directed against the order dated 15th September, 1999 passed by the Returning Officer, 26 Suitanpur Parliamentary Constituency, opposite party No. 2 contained in Annexure-1 to the writ petition, rejecting the nomination of the petitioner.
2. Heard learned counsel for the parties. Learned counsel for the respondents has raised a preliminary objection with regard to maintainability of the writ petition. It has been submitted that in case any nomination of the candidate has been improperly rejected, the remedy available to him is by filing an election petition and not the writ petition. In support of his argument, learned counsel for the respondents has relied upon paragraphs 9 and 11 to 13 of the case of N. P. Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem Distt. and others, AIR 1952 SC 64, wherein it has been held as under :
"(9) The question now arises whether the law of elections in this country contemplates 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 Article 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. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up an intermediate stage before any Court, it seems to me that under the election law, the only significance which the rejection of a nomination paper consists is the fact that it can be used as a ground to call the election In question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. Tf the grounds on which an election can be called in question could be raised an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special Tribunal. Any other meaning ascribed to the words used In the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election Tribunal, which is to be an independent body, at the stage when the matter is brought up before it."
3. In para 11 the Court further observed as under :
"The Representation of People Act. 1951, which was passed by Parliament under Article 327 of the Constitution, makes detailed provisions in regard to all matters and all stages connected with elections to the various Legislatures in this country. That Act is divided into 11 parts, and it is interesting to see the wide variety of subjects they deal with. Part II deals with 'the qualifications for membership.' Part III deals with the notification of General Elections. Part IV provides for the administrative machinery for the conduct of elections, and Part V makes provisions for the actual conduct of elections and deals with such matters as presentation of nomination papers, requirements of a valid nomination, scrutiny of nominations etc., and procedure for polling and counting of votes. Part VI deals with disputes regarding elections and provides for the manner of presentation of election petitions, the constitution of election Tribunals and the trial of election petitions. Part VII outlines the various corrupt and illegal practices which may affect the elections, and electoral offences. Obviously, the Act is a self-contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the rules made thereunder. The provisions of the Act which are material to the present discussion are Sections 80, 100, 105 and 170, and the provisions of Chapter II of Part IV dealing with the form of election petitions, their contents and the reliefs which may be sought in them. Section 80, which is drafted in almost the same language as Article 329(b), provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Part." Section 100, as we have already seen provides for the grounds on which an election may be called in question, one of which is the improper rejection of a nomination paper. Section 105 says that "every order of the Tribunal made under this Act shall be final and conclusive." Section 170 provides that "no civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under this Act in connection with an election." These are the main provisions regarding election matters being judicially dealt with, and it should be noted that there is no provision anywhere to the effect that anything connected with elections can be questioned at an intermediate stage."
4. In paras 12 and 13 of the report the Hon'ble Apex Court held as under :
"(12) It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.... I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.
(13) It was argued that since the Representation of People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to Issue writs under Article 226 of the Constitution. This argument, however, is completely shut out by reading the Act along with Article 329(b). It will be noticed that the language used in that Article and in Section 80 of the Act is almost identical, wtth this difference only that the Article is preceded by the words "notwithstanding anything in this Constitution." I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress."
5. The second case relied upon by the learned counsel for the respondent is the Election Commission of India v. Shivaji and others, AIR 1988 SC 61. In this case, the validity of the notification issued by the Election Commission on 18th September, 1987 was challenged by filing a writ petition under Article 226 of the Constitution before the Bombay High Court on the ground that the notification was invalid because the Zila Parishads of Latur district which were within the constituency had not been constituted and the Administrators were appointed to run the said Zila Parishad and therefore the members of the said Zila Parishads who were entitled to take part in the said election had been deprived of their right to participate in the said election. The last date for withdrawal of nomination papers was 28th September, 1987. On 26th September, 1987 learned single Judge of the Bombay High Court (Aurangabad Bench) passed an Interim order ex parte directing the postponement of the last date of withdrawal of the candidatures from 28th September. 1987 to October 1. 1987. Thereafter a Division Bench of the Bombay High Court heard the writ petition on 1st October, 1987 and dismissed the same on the same day. Thereafter the Election Commission notified fresh dates. The Bombay High Court on a review petition filed in the earlier writ petition stayed the election till further orders and fixed 26th October, 1987 for hearing. On (hese facts the Hon'ble Supreme Court observed as under :
"We are very much disturbed by the manner In which the High Court of Bombay (Aurangabad Bench) has interfered not once but twice wtth the process of election which was being held under the provisions of the Representation of the People Act, 1951 (hereinafter referred to as the Act) to the Legislative Council of the State of Maharashtra from the Osmanabad-cum-Latur-cum-Beed Local Authorities Constituency."
In para 6 the Hon'ble Court further observed as under:
"Having thus dismissed the petition on 1.10.1987 the Court committed a serious error in entertaining a review petition in the very same writ petition on 16.10.1987 which had been" earlier fixed for 18.10.1987 till further orders. Looking to the mandatory provisions of Section 30 of the Representation of the People Act the High Court failed to recall to Its mind that it was not Its concern under Article 226 of the Constitution to rectify any error even if there was an error committed in the process of election at any stage prior to the declaration of the result of the election notwithstanding the fact that the error in question related to a mandatory provision of the statute relating to the conduct of the election."
6. In para 7 the Hon'ble Court further observed as under :
"The High Court was in error in thinking that it alone had the exclusive power to protect the democracy. The success of democracy is dependent upon the co-operation of the Legislature, the Executive, the Judiciary, the Election Commission, the Press. the political parties and above all the citizenry and each of them discharging the duties assigned to it. Every member of the body politic should play his legitimate role for the success of the democracy. Some times the success of democracy also depends upon the observance of restraint on the part of the constitutional functionaries."
7. According to the learned counsel for the respondents under Section 100 of the Representation of People Act, 1951 (hereinafter referred to as the Act), the grounds have been indicated for declaring election to be void and precisely Section 100(c) deals with any nomination which has been improperly rejected. It has been submitted that against the rejection of nomination it is not open for the incumbent to approach the High Court under Article 226 of the Constitution and the only remedy available is by way of election petition. In support the learned counsel for the respondent has further referred to the constitutional provision given in Part XV which deals with the election process. He has also placed reliance on Article 329(b) of the Constitution as well as Section 80 of the Act, and submitted that in view of the above provisions of law and the case law this petition under Article 226 of the Constitution is not maintainable and is liable to be dismissed.
8. While replying to the preliminary objection regarding maintainability of the writ petition, the learned counsel for the petitioner, Sri Shashi Prakash Singh, has submitted that Section 36 of the Act deals with the scrutiny of the nominations. While placing reliance on the provisions of Section 36(4) of the Act he has submitted that the Returning Officer acted beyond jurisdiction and arbitrarily while rejecting the nomination paper of the petitioner merely on technical ground which does not constitute substantial character of the defect, and accordingly the Returning Officer committed gross misconduct. He has further submitted that according to clause 13 (b) of the Hand Book for Returning Officers a notice in writing, in Form B to the effect that a candidate has been set up by a political party has to be delivered to the Returning Officer of the constituency or the Chief Electoral Officer of the State not later than 3.00 p.m. on the last date for making nominations, and since the petitioner had submitted the Form B before the Chief Electoral Officer of the State within time therefore it was not open for the Returning Officer to reject the nomination of the petitioner on that ground. The provisions of clause 13 of the Hand Book are as under :
"13. When a candidate shall be deemed to be set up fay a political party.--For the purposes of this Order, a candidate shall be deemed to be set up by a political party if. and only if-
(a) the candidate has made a declaration to this effect in his nomination paper :
(b) a notice in writing, in Form B to that effect has. not later than 3 p.m. on the last date for making nominations, been delivered to the Returning Officer of the constituency and the Chief Electoral Officer of the State :
(c) the said notice is signed by the President, the Secretary or any other office bearer of the parly and the President. Secretary or such other office bearer is authorised by the party to send such notice ;
(d) the name and specimen signature of such authorised person are communicated to the Returning Officer of the constituency and to the Chief Electoral Officer of the State, in Form A not later than 3 p.m. on the last date for making nominations ; and
(e) Forms A and B are signed, In ink only, by the said office bearer authorised by the party :
Provided that no facsimile signature or signature by means of rubber stamp, etc., of any such office bearer shall be accepted and no form transmitted by fax shall be accepted."
9. It has been pressed on behalf of the petitioner that on the ground of non-filing of Form B the nomination could only be rejected at the time of allotment of symbols and not before that. Further the Returning Officer erred in not treating the petitioner as an independent candidate.
10. It has been contended on behalf of the petitioner that it was a bona fide mistake and is curable because one of such Form B was submitted before the Chief Electoral Officer of the State before 3,00 p.m. on the last date for making nominations. It has been further submitted that non-filing of Form B before the Returning Officer neither amounts to disqualification nor is It a defect of substantial character. It has also been submitted that in case interference Is not shown under extraordinary writ jurisdiction under Article 226 the petitioner will suffer Irreparable loss and injury as he would be a mere spectator insplte of the fact that he has won the election three times and is also hopeful of winning the same against but has been deprived of contesting the same on mere technical ground and, therefore, the impugned rejection order is liable to be quashed. In support the learned counsel for the petitioner has placed reliance on the case of K. Venkatachalam v. A. Swamickan and another, (1999) 4 SCC 526, wherein according to him, it has been held that the High Court has power under Article 226 of the Constitution to exercise its extraordinary jurisdiction and interfere with the election matter and the bar of Article 329(b) of the Constitution would not come into play. This was a case in which the returned candidate did not even have the essential qualifications for being a candidate for the election of Member of Legislative Assembly Lalgudi, Tamil Nadu, since he was not an elector in the electoral roll of the assembly constituency for the general elections in question. he impersonated him for another person of the same name and had sworn a false affidavit that he was an elector of that constituency. The prescribed limit of 45 days for filing election petition as provided in Section 81 of the Act had also expired. The High Court allowed the writ petition declaring the election to be void. The Apex Court after considering the definition of "elector" as defined in Section 2(e) of the Act, the qualifications mentioned in Section 16 of the Representation of the People Act, 1950. the qualifications as provided in Article 173 of the Constitution and the disqualifications for membership as prescribed in Article 191 of the Constitution dismissed the appeal.
11. In its decision the Apex Court observed as under :
"Article 226 of the Constitution is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Courts its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and mhen recourse cannot be had to the prouisions of the Act for the appropriate relief. In circumstances like the present one the bar of Article 329(b) loill not come into play when the case falls under Articles 191 and 193 and the whole of the election process is over. Consider a case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution."
(Para 28)." We are. in view therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a Member of the Legislative Assembly."
12. It has been submitted by the learned counsel for the respondent that the argument of the learned counsel for the petitioner based on the words "and the Chief Electoral Officer of the State" occurring in the above provisions goes since the words relied upon by him stand deleted by means of the "Addenda to the Hand Book For Candidates, 1997 (As on 15.7.1999)" Issued by the Election Commission of India, and now It is only the Returning Officer of the constituency to whom the Form B is to be submitted not later than 3.00 p.m. on the last date for making nominations. It is the admitted case of the petitioner that he could not submit the Form B before the Returning Officer upto 3.00 p.m. on the last date for making nominations, i.e., 14th September, 1999 and the same was submitted after expiry of the stipulated time, i.e., at 5.20 p.m. on 14th September, 1999. The relevant portion of the deletion clause is quoted below :
"The words "and (he Chief Electoral Officer of the State" occurring in line 4 of the para shall be deleted."
13. Learned counsel for the petitioner submitted that the Returning Officer was not Justified by not allowing him time to file affidavit to substitute that he is an authorised candidate of the Bhartlya Janta Party. Had the Returning Officer afforded opportunity to him he would have proved his case. In support he relied upon the case of Rakesh Kumar v. Sunil Kumar. (1999) 2 SCO 489, wherein according to the learned counsel there was similar situation and the Apex Court held that the Returning Officer would have been Justified in rejecting the nomination paper of the respondent had the respondent not sought opportunity to rebut the objection within the time allowed by the Returning Officer. The Hon'ble Court held as under : (page 500, para 21).
"The Returning Officer would have been justified in rejecting the nomination paper of the respondent, had the respondent not sought an opportunity to rebut the objection raised by the Returning Officer or was unable to rebut the objection within the time allowed by the Returning Officer. Since the respondent had by his written application (supra), filed at the time of scrutiny of the nomination paper itself claimed to be the official candidate set up by the B.J.P., which claim was not disputed by anyone else during the scrutiny, and had sought time of 24 hours to provide relevant material in support of his submission. It was obligatory on the part of the Returning Officer to allow time to him to rebut the objection suo motu raised by the Returning Officer. He could have given him any time to do so "within 24 hours" but to deny him such an opportunity, in the facts and circumstances of the case, was neither fair nor proper or justified."
14. While analytically examining the preliminary objection, the appreciation of the provisions of the Act, the Constitution of India and the case law is desirable. The chronological appreciation is as under.
15. Article 329 of the Constitution of India also puts a bar to Interference by Courts In electoral matters as under :
"329. Bar to Interference by Courts in electoral matters. Notwithstanding any thing in this Constitution :
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any Court ;
(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 prescribed for by or under any law made by the appropriate Legislature."
Section 36(4) of the Act provides as under :
"36. (4). The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of substantial character."
Section 80 of the Act provides as under:
"80. Election petitions.--No election shall be called in question except by an election petition presented in accordance with the provisions of this Part."
16. Section 100(c) of the Act provides for filing an election petition on the ground of improper rejection of nomination paper, as under :
"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) .....
(b) .....
that any nomination has been improperly rejected.
17. The Apex Court has considered the question of maintainability of writ petition in the matters relating to elections or Its process in various judgments right from 1952 till recently. The first landmark judgment in this connection Is of N. P. Ponnuswami (supra), wherein the Hon'ble Supreme Court arrived at the following conclusions :
"16. The conclusions which 1 have arrived at may be summed up briefly as follows :
(1) Having regard to the important functions which the Legislatures have to perform in democratic countries. It has always been recognised to be a matter of first Importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election" and if any irregularities are committed while it is in progress and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special Tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress."
18. The provision of Section 100(1)(c) of the Act read with the provisions of Sections 80 and 80A of the Act, the remedy available to the petitioner is by way of filing election petition in accordance with Sections 80 and 80A and other relevant provisions of the Act and not a writ petition under Article 226 of the Constitution.
19. The Apex Court has considered this matter In a number of decisions right from the case of N. P. Portnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem Distt. and others (supra) followed by the Constitution Bench in the case of Mohinder Singh Gill and another v. Chief Election Commissioner [supra], Election Commission of India v. Shivaji and others (supra) and K. Venkatachalam v. A. Swamtckan (supra) and others. In Dharti Pakar Madan Lal Agarwal v. K. R. Narayanan, (1997) 8 SCO 766, it has been held by the Hon'ble Supreme Court that even a composite petition described as election petition-cum-writ petition is not maintainable.
20. In the case of Mohinder Singh Gill (supra), one of the questions raised before the Apex Court was : The jurisdiction of the High Court to entertain writ petition relating to election matters has been dealt with in detail by the Constitution Bench of the Apex Court, in the case of Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851. In this case the counting of ballot papers from the ballot boxes had been completed and the postal ballots were being counted when the process of counting was aborted by mob violence, the ballot papers were destroyed, the ballot boxes were also done away with and the Returning Officer was terrified in to postponing the declaration of the result. The Election Commission thereafter cancelled the election of the whole constituency and directed for repoll. Aggrieved against the said order of the Election Commission one of the candidates approached the High Court by filing a writ petition contending, inter alia, therein that had the election not been cancelled he would have been elected and thus he had been deprived of hts hard-won victory by the arbitrary action of the Commission. The High Court dismissed the writ petition on the ground that such a proceeding is constitutionally out of bounds for any Court, having regard to the mandatory embargo in Article 329(b). In that case one of the questions raised before the Apex Court was :
"Is Article 329(b) a blanket ban on all manner of questions which may have impact on the ultimate result of the election, arising between two temporal termini, viz., the notification by the President calling for the election and the declaration of the result by the Returning Officer? is Article 26 also covered by this embargo and ff so, is Section 100 broad enough to accommodate every kind of objection, constitutional. legal or factual, which may have the result of invalidation of an election and the declaration of the petitioner as the returned candidate and direct the organization of any steps necessary to give full relief"
The Apex Court held as under :
"The plenary bar of Article 329(b) rests on two principles : (1) The peremptory urgency of prompt engineering of the whole election process without intermediate Interruptions by way of legal proceedings challenging the steps and stages In between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of stautes and controlled by the Constitution."
21. The Apex Court while placing reliance on the case of N. P. Ponnuswami v. Returning Officer Namakkal (supra) dismissed the appeal and observed as under :
"91. For this limited purpose, we set down our holdings :
(a) Article 329(b) is a blanket fcan on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result.
(b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate."
"93. We conclude stating that the bar of Article 329(b) is as wide as the door of Section 100 read with Section 98."
22. In the case of Anugrah Narain Singh and another v. State of U. P. and others, (1996) 6 SCO 303. the Hon'ble Supreme Court held that in terms of Article 243-ZG of the Constitution there is complete and absolute bar in considering the matter relating to municipal election on any ground whatsoever after the publication of the notification for holding municipal election. The bar imposed by Article 243-ZG is two-fold. Validity of laws relating to delimitation and allotment of seats made under Article 243-ZA cannot be questioned in any Court. No election to a municipality can be questioned except by an election petition. Moreover, it is well-settled by now that if the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done no election will ever take place because someone or the other will always find some excuse to move the Court and stall the elections.
23. In the case of Lakshmi Charon Sen and others v. A. K. M. Hassan Uzzaman and others, AIR 1985 SC 1233 (para 20) :
".....the fact that certain claims and objections are not finally disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the Legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations."
24. In the case of Si T. Muthusami v. K. Natrajan, (1988) 1 SCO 572 : AIR 1988 SC 616, a writ petition was entertained by the High Court with regard to election process wherein the Returning Officer received information by 12.00 noon showing the appellant as the official candidate of Indian National Congress (1) under the signature of the President of the Tamil Nadu Congress (1) Committee. A similar tetter was handed over by respondent No. 6 at 12.45 p.m. on that date showing that he was also the official candidate of the Indian National Congress (1). That letter also appeared to have been signed by the President of the Tamil Nadu Congress (1) Committee. Having found that two persons were claiming to be the official candidate of the same party the Returning Officer declined to grant the symbol "hand" to any one of them. These two candidates, i.e., the appellant and the respondent No. 6 then gave in writing their choice of symbols belonging to the unreserved category giving three alternative choices. Accepting the first choice of each of them the Returning Officer allotted symbols at 4.30 p.m. on 3.2.1986. The Returning Officer then proceeded to publish the list of the candidates nominated as per rules 17 (2) of the Rules with the symbols allotted to each of the three candidates whose nomination papers had been found to be valid. Immediately after publication of the said list of nominated candidates the President of the Tamil Nadu Congress (1) Committee who was alleged to have signed both the letters given to the Returning Officer representing that the appellant and the respondent No. 6 were both official candidates. wrote to the Director of the Rural Development Department, respondent No. 3. who was the election authority as well as Secretary to the Government Rural Development Department, Government of Tamil Nadu on 4.2.1986 stating that he had not given his approval to respondent No. 6 being an official Congress (1) candidate and that the authorised candidate of the Congress (1) Party was the appellant. S. T. Muthusami. On receipt of the said letter the Director of Rural Development Department, the Election Authority sent a telex message to the Collector of Coimbatore to treat the appellant as the official candidate of the Indian National Congress (1) Party and to assign the symbol "hand" to him. The Collector communicated this message to the Returning Officer on 6.2.1986 and the Returning Officer issued an Errata Notification in form VI assigning the symbol "hand" which had been reserved for the Indian National Congress (1) to the appellant. Aggrieved by this order, the respondent No, 6 challenged the said order under Article 226 of the Constitution. A single Judge of the High Court dismissed the writ petition but a Division Bench allowed the same and quashed the notification on the basis of the symbols originally allotted. The Hon'ble Apex Court held that the Division Bench of the High Court committed error in quashing the notification allotting the symbol "hand" to the appellant. Though Rule 1 (1) of the Rules framed under Section 178 (2) (ii) of the T. N. Panchayats Act, 1958 made for the settlement of election disputes which provides that an election can be questioned only by an election petition, cannot have the effect of overriding the powers of the High Court under Article 226, but it may be taken into consideration in determining whether it would be appropriate for the High Court to exercise its powers under Article 226 in a particular case. Taking into consideration all the aspects of the present case including the fact that the person who filed the writ petition before the High Court was not one of the candidates nominated by the Indian National Congress (1) and the fact that the President of the T. N. Congress (1) Committee had written that he had authorised the appellant to contest as the candidate on behalf of his party and he had not given his approval to respondent No. 6 to contest as a candidate on behalf of his party, the exercise of the jurisdiction by the High Court in this case under Article 226 cannot be supported. The parties who are aggrieved by the result of the election can question the validity of election by an election petition which is an effective alternative remedy.
25. In the case of Danda Rajeshwari v. Bodcavula. Hanumnyamma, (1996) 6 SCC 199, the Hon'ble Supreme Court in the election matter arising out of the refusal to interfere under Article 226 by the High Court, held that the High Court rightly directed filing of the election petition within three weeks from the date of disposal of the writ petition.
26. With respect to the argument of the learned counsel for the petitioner that rejection of nomination by the Returning Officer is arbitrary and was not justified, we find that it is the admitted case of the petitioner that he had submitted Form B at 5.20 p.m. instead of filing it before 3.00 p.m. It was incumbent upon the petitioner to bring on record and to substantiate that the petitioner was the official candidate do the B.J.P. in accordance with the Act. We are of the considered opinion that if a candidate fails to substantiate his claim that he has been set up by a political party to contest the election, then definitely it amounts to defect of substantial character. The petitioner has relied upon the case of Rakesh Kumar v. Sunil Kumar (supra). This is an appeal arising out of the election petition wherein it was held that opportunity by the Apex Court that opportunity should have been given However, as far as the present case is concerned, it is the admitted case of the petitioner that he had filed Form B before the Returning Officer at 5.20 p.m. whereas the time for filing the same was till 3.00 p.m. Form B has statutory force according to para 13 (b) (c) and (e) and 13A of the Election Symbols [Reservation and Allotment Order, 1968). There Is no provision in the Act to condone the delay. Therefore the mistake of non-filing of Form B is of substantial character and cannot be rectified by filing affidavit or by filing the same after the expiry of the scheduled time.
27. Much reliance has been placed by the learned counsel for the petitioner on the case of K. Venkatachalam v. A. Sivamickan and another (supra). From a perusal of the said judgment of the Apex Court we find that it is in conformity with the Constitutional Bench. None of the judgment right from N. P. Ponnuswami's case (supra), followed by M. S. Gill's case (supra) and others has been distinguished by the latest judgment of the Apex Court. The Hon'ble Court in the case of K. Venkatachalam (supra) has held as under :
"It is true that when the poll or repoll process is on for election to Parliament or a Legislative Assembly, the High Court cannot exercise its jurisdiction under Article 226 and that remedy of the aggrieved parties is under the Act read with Article 329(b) of the Constitution. The Acl provides for challenge to an election by filing the election petition under Section 81 on one or more grounds specified in sub-section (1) of Sections 100 and 101 of the Act.
But in the present case the appellant lacked the basic qualification under clause (c) of Article 173 of the Constitution read with Section 5 of the R. P. Act which mandated that a person to be elected from an Assembly constituency has to be an elector of that constituency. The appellant was disqualified for being an M.L.A. of Tamil Nadu. He in his nomination form impersonated another person. He would be even criminally liable as he filed his nomination on an affidavit impersonating himself. He knew he was disqualified. Yet he sat and voted as an M.L.A. He is liable to penally of five hundred rupees in respect of each day on which he so sits or votes and that penalty Is recoverable as a debt due to the State. There has not been any jurisdiction under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. The appellant is liable to penalty nevertheless. In such circumstances he is allowed to continue to sit and vote in the Assembly his action would be a fraud on the Constitution, (Para 28) We are. therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a Member of the Legislative Assembly."
28. The spirit of the Constitution of India, the intention of the Legislature and the object to have the elections within time schedule is the essence of democracy and if we do not adhere to it then time is not far off when the elections can be stalled on one or the other issues. We find that Article 329(b) of the Constitution puts complete bar on the jurisdiction of the Courts with regard to electoral matters. Under Section 80 of the Act there is provision for filing election petition. The consistent view of the Hon'ble Supreme Court is that in the matters relating to election or election process the remedy is the election petition and not a petition under Article 226 of the Constitution. The law laid down by the Hon'ble Supreme Court is also binding under Article 141 of the Constitution. In view of the above discussion we are of the considered opinion that the High Court has no jurisdiction under Article 226 to Interfere in the electoral matters and the proper forum for the petitioner is to file election petition if he so desires, at the appropriate time.
29. It is the statutory duty of the petitioner to bring Form B on the record and if he fails to submit it within the time prescribed then it is incurable. We are of the considered opinion that filing of Form B before the Returning Officer is mandatory, otherwise it can lead to chaos. For example, if a candidate files nomination as an official candidate of a political party and not as an independent candidate but does not file Forms A and B before the Returning Officer but claims that he has already filed Forms A and B before the Chief Electoral Officer of the State and if his plea is accepted and at the time of scrutiny of nomination papers his nomination is accepted but thereafter on the date of allotment of symbols it is found that the Forms A and B submitted by the candidate before the Chief Electoral Officer were not in accordance with law and were liable to be rejected, then there would be innocuous position and chaos would be created as the nomination paper of the candidate has already been accepted as an official candidate of a political party but he has not been allotted by party symbol and further he cannot contest the election as an independent candidate for the reason that he had not filed his nomination paper by ten electors as required under the Act. Such a situation cannot be justified to be allowed under any provision of law and such defect cannot be brushed aside on the ground of mere technical defect. We find such a defect to be a defect of substantial character.
30. In premise, we hold as under:
(1) Filing of Forms A and B before the Returning Officer Is a statutory obligation and not filing the same Is a defect of substantial character which is not curable. Such defect is neither clerical nor technical and its consequences are far reaching.
(2) The judgment of the Hon'ble Supreme Court in the case of K. Venkatachalam v. A. Swamickan and another, (1999) 1 SCO 526, does not distinguish its earlier judgments on the subject right from N. P. Ponnuswami v. Returning Officer. AIR 1952 SC 6 4, followed by the Constitutional Bench in the case of Mohinder Singh Gill v. Chief Election Commissioner. AIR 1978 SC 851.
(3) Article 329(b) of the Constitution and Section 80 of the Representation of People's Act. 1951, impose blanket ban on the Courts in the matters of litigation regarding elections or election process.
(4) The views taken by the Constitutional Bench of the Apext Court are binding upon the Courts.
(5) The essence of democracy is to complete the elections according to time schedule.
31. In view of the above the writ petition directed against the order of the Returning Officer dated 15th September, 1999, rejecting the nomination of the petitioner is not maintainable under Article 226 of the Constitution of India and the only remedy available to the petitioner is by way of filing election petition at the appropriate time.
32. The writ petition is dismissed. Costs easy.
We would like to clarify that the observations, if any, made by us on the facts of the case, would not prejudice the merit of the election petition of the petitioner, if any.