Kotha Dass Goud vs Returning Officer and Another

D. Redeppa Reddi, J.—One of the contesting candidates, viz., Sri Kotha Doss Goud, from 41-Nalgonda Parliamentary Constituency, the election of which is scheduled to be held on 22nd February, 1998 is the petitioner herein. Admittedly, he was convicted for offences under Sections. 450, 395, 397, 326, 324 r/w Section 149 of the Indian Penal Code and sentenced to undergo two years imprisonment. He was released from jail on 17-12-1994 after serving out the sentence, yet, he filed his nomination before the first respondent, the Returning Officer of the above referred constituency, on 28-1-1998, suppressing the fact of hjs conviction and undergoing imprisonment for a period of two years in the affidavit and the proforma for furnishing information u/s 8 of the Representation of People Act, 1951 (for short ''the Act'') he has signed and filed along with his nomination papers. The scrutiny of all the nominations filed was conducted on 29-1-1998. However, for want of information about the conviction of the petitioner and on the basis of information furnished by him the first respondent included his name in the list of contesting candidates and allotted him ''Arrow'' symbol. Subsequently, she received information from the Commissioner of Police, Hyderabad about the petitioner''s conviction. Thereupon, in consultation with and as per the directions of the second respondent, viz., Election Commission of India, she caused a notice dated 3-2-1998 on the petitioner to show cause why his nomination paper should not be treated as invalid and rejected as he suffered disqualification under sub-section (3) of Section 8 of the Act at 11 a.m. on 7-2-1998. It is stated that the petitioner submitted his explanation through his agent on 7-2-1998. But, it does not appear to have been received by the 1st respondent. Therefore, she recorded that the petitioner failed to appear before her at the time and date specified in the show cause notice and passed the order in proceedings No. C4/1119/98 ordering rejection of petitioner''s nomination and removal of his name from the list of contesting candidates from 41 Nalgonda Parliamentary Constituency. Even before the receipt of the said order, the petitioner filed this writ petition on 9-2-1998. and it came up for admission on 10-2-1998. After hearing the preliminary arguments, we adjourned the matter to 11-2-1998, ordering notice to the learned Advocate General. Then, the matter was heard at length on 11-2-1998.

Sri M V. Ramana Redfy, the learned senior Counsel appearing for the petitioner, is fair enough to admit that the petitioner suffers disqualification prescribed u/s 8(3) of the Act. Yet, he strenuously contends that once a candidate''s name is included in the list of contesting candidates the respondents have no power whatsoever to delete his or her name from the list of contesting candidates or reject his or her nomination paper. According to him, there is no provision either in the Constitution of India or in the Act and the Rules made thereunder, conferring such power on the respondents. In opposition, it is contended by the learned Advocate General that the provisions of Article 324(1) of the Constitution of India confer such power on the respondents. It is also his submission that there is embargo upon this court to entertain this writ petition in view of the provisions of Article 329(b) of the Constitution of India. Sri C.P. Sarathy, learned senior Counsel, appearing for the respondents supplemented the arguments of the learned Advocate General by placing before us a copy of the order of Division Bench of Allahabad High Court in W.P.Nos.2990(MB)/1996 and 3015(MB)/1996. In view of these rival contentions, the questions that arise for our consideration may be formulated as under:

Whether the Election Commission of India in exercise of its powers conferred under Article 324(1) of the Constitution of India has the power to order deletion of name of a candidate from the list of contesting candidates notified as per rules by rejecting his nomination; and

Whether the provisions of Article 329(b) of the Constitution of India place an embargo on the power of this court to interfere into the matters pertaining to the conduct of elections after the process of election has been set into motion consequent on issuance of an election notification.

Both the questions are not longer res integra in view of the law declared by the Apex Court in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, and Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, .

In Ponnuswamy ''s case (supra) Fazal Ali, J, speaking for the Constitution Bench, referring to various decisions and Halsbury''s Law of England as to the meaning to be given to the word ''election'' as used in Article 329(b) observed as under;

".....That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected. In A.V. Srinivasalu Reddy and Another Vs. S. Kuppuswami Goundar, at Page 255 the learned Judges of the Madras High Court after examining the question, expressed the opinion that the term ''election'' may be taken to embrace the whole procedure whereby an ''elected member'' is returned, whether or not it be found necessary to take a poll. With this view, my brother, Mahajan, J. expressed his agreement in Sat Narain v. Hamanan Prasad, AIR 1946 Lah. 85; and I also find myself in agreement with it. It seems to me that the word ''election'' has been used in Part XI of the Constitution in the wide sense that is to say, to connote the entire procedure to be gone through to return a candidate to the Legislature. The use of the expression'' conduct of elections'' in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Article 329(b). That the word ''election'' bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted it, when the election begins. The subject is dealt with quite concisely in Halsbury''s Law of England in the following passage see P.237 of Halsbury''s Laws of England, Edn. 2, Vol. 12 under the heading "commencement of the Election":

''Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is ''reasonably imminent''. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date what an election begins from this point of view. Nor, again, does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when ''the conduct and management of, an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case."

The discussion in this passage makes it clear that the word ''election'' can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process." (Para 7)

In Mohinder Singh ''s case (supra) the Apex Court declared:

"Article 324(1) vests in the Election Commission the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and Vice-President held under the Constitution. Article 324(1) is thus couched in wide terms....."(Para 113)

".....It is true that in exercise of powers under Article 324(1) the Election Commission cannot do something impinging upon the power of the President in making the notification u/s 14 of the Act. But after the notification has been issued by the President, the entire electoral process is in the charge of the Election Commission and the Commission is exclusively responsible for the conduct of the election without reference to any outside agency. We do not find any limitation in Article 324(1) from which it can be held that where the law made under Article 327 or the relevant rules made thereunder do not provide for the mechanism of dealing with a certain extra-ordinary situation, the hands of the Election Commission are tied and it cannot independently decide for itself what to do in a matter relating to an election. We are clearly of opinion that the Election Commission is competent in an appropriate case to order re-poll of an entire constituency where necessary. It will be an exercise of power within the ambit of its functions under Article 324." (Para 119)

In view of the above, we have no hesitation to conclude that in the facts and circumstances of this case the respondents acted well within their power in ordering deletion of petitioner''s name from the list of contesting candidates by rejecting his nomination.

On the next question also, the law is clear and categorical. In Ponnuswami''s case (supra) this question is answered in the following terms:

"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 an other 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 at 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 has consists in 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. If the grounds on which an election can be called in question could be raised at 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." (Para 9)

The same view was reiterated in Mohmder Singh ''s case (supra) in the following terms :

"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 statutes and controlled by the Constitution....."(Para 30)

"Diffusion, even more elaborate discussion, tends to blur the precision of the conclusion in a judgment and so it is meet that we synopsize the formulations. Of course, the condensed statement we make is for convenience, not for exclusion of the relevance or attenuation of the bringing impact of the detailed argumentation. For this limited purpose, we set down our holdings :

l(a) Article 329(b) is a blanket ban on litigative challenges to electral 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."

In the decision of the Division Bench of Allahabad High Court referred to supra, the facts are almost similar. There were also cases where the Returning Officer eliminated the candidates from contesting election by rejecting their nominations after their names were found to be valid and symbols were allotted to them. However, following the dicta laid down in Ponimswami ''s case (supra) and Mohmder Singh''s case (supra) the Bench dismissed the writ petitions, with the following prelude:

"One would have thought that after the decision of a Constitutional Bench of Hon''ble Supreme Court in the case of N.P.Ponnuswami v. Returning Officer, Naniakkal Constituency and others (Union of India and State of Madhya Bharat (Interveners) reported in Supreme Court Reports Vol. III 1952 Page 218, amplified in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, such writ petitions would not have been filed".

In the light of the about discussion, we have no option but to dismiss the writ petition as not maintainable. It is, accordingly, dismissed. No costs.