Jameela Ibrahim vs Returning Officer

K.J. Joseph, J.—The petitioners in this original petition seek to issue a writ of mandamus directing the 1st respondent to accept the nomination papers submitted by the petitioners for election to Ward Nos. VI, VII & VIII respectively of the Kanjirappally Grama Panchayath. They have also prayed in the alternative issue a writ of mandamus directing the respondent to adjourn the election and to re-notify the election to the above wards. I heard the learned counsel for the petitioners and the learned Advocate. General appearing on behalf of the State on notice.

It is the case of the petitioners that the nominations submitted by them were illegally rejected by the Returning Officer. It is their further case that the Returning Officer has granted time to cure some clerical mistakes that occurred in their nominations. After curing the defects, the nomination papers were not received by the Returning Officer is the case of the petitioners before this Court in this petition. Therefore the petitioners seek for the above reliefs referred to earlier.

Taking notice on this original petition on behalf of the 1st respondent, a counter affidavit has been filed wherein a preliminary objection regarding the maintainability of the original petition before this Court has been taken. In paragraph 9 of the counter affidavit it is stated that this Court has no jurisdiction to entertain a petition of this nature in the light of the prohibition contained in Article 243 (O) of the Constitution of India. In the counter affidavit it is also stated that the facts stated by the petitioners are not correct. It is further stated that there is no question of not accepting the nominations of the petitioners after curing the defects because of the fight that had happened on the date fixed for scrutiny of nominations. Article 243 (O) of the Constitution is extracted below:

Bar to interference by courts in electoral matters - Notwithstanding anything 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 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

A similar provision is also contained in the Constitution under Article 329 of the Constitution of India which reads as follows :

Bar to interference by courts in electoral matters -- Notwithstanding anything 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 provided for by or under any law made by the appropriate Legislature.

Both these Articles in the Constitution deal with bar of interference by courts in election matters.

Art. 243 (O) (a) is similar to Art. 329 (a) and Art. 243 (O) (b) is similar to Art. 329 (b) of the Constitution. Therefore the preliminary question that has to be considered is whether this Court has jurisdiction to interfere with the matter in the light of the provision contained in Art. 243 (O)(b) of the Constitution of India. It is specifically provided in the Constitution that no election to any Panchayath shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of the State. Admittedly, the State has provided for an election petition before competent Court against the rejection of the nomination paper under the Panchayath Raj Act, 1994. Then the further question that has to be considered is whether rejection of a nomination paper by the Returning Officer would come under Article 243 (O) (b) of the Constitution.

Interpreting a similar provision contained in Art. 329 (b) of the Constitution, the Supreme Court had occasion to consider whether the rejection of a nomination would come under the provision contained in Article 329 (b) and the word ''election'' made mention in Art. 329 (b) of the Constitution would take in the rejection of nomination paper submitted by a proposed candidate. The Supreme Court in the decisions reported in N.P. Ponnuswamy v. Returning Officer, Namakkal (1952 S.C. 64) and in Election Commission of India v. Shivaji and Others (1988 S.C. 61) has held that the election process commences from the date of issue of the election notification by the Election Commissioner and in that sense it includes the filing of the nomination also. Moreover the non-obstanti clause contained in Art. 243 above, namely notwithstanding anything contained in the Constitution, would positively take away this Court''s jurisdiction under Arts. 226 and 227 of the Constitution in election matters. In the light of the above constitutional inhibition contained in Article 243 (O) of the Constitution. I see no jurisdiction to interfere in the matter. A similar view has been taken by a learned Single Judge of this Court in the common judgment in O.P. No. 14206/95 and connected cases. Therefore, this Court is not justified in interfering with the matter and the O.P. is devoid of merits and the same is dismissed. But it is perfectly open for the petitioners to challenge the validity of the election as well as rejection of their nominations in appropriate proceedings before appropriate authorities as contemplated under law and dismissal of the original petition shall not stand in the way of the petitioners in moving appropriate authorities for redress of their grievance.

The O.P. is dismissed.