Judgment

Fazl Ali, J. - This is an appeal from an order of the Madras High Court dismissing the petition of the appellant praying for a writ of certiorari.

2. The appellant was one of the persons who had filed nomination papers for election to the Madras Legislative Assembly from the Namakkal Constituency in Salem district. On 28-11-1951, the Returning Officer for that constituency took up for scrutiny the nomination papers filed by the various candidates and on the same day he rejected the appellant s nomination paper on certain grounds which need not be set out as they are not material to the point raised in this appeal. The appellant thereupon moved the High Court under Art. 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be published. The High Court dismissed the appellant s application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Art. 329 (b) of the Constitution. The appellant s contention in this appeal is that the view expressed by the High Court is not correct, that the jurisdiction of the High Court is not affected by Art. 329 (b) of the Constitution and that he was entitled to a writ of certiorari in the circumstances of the case.

3. Broadly speaking, the arguments on which the judgment of the High Court is assailed are two fold:-

(1) that the conclusion arrived at by the High Court does not follow from the language of Art. 329 (b) of the Constitution, whether that Article is read by itself or along with the other Articles in Part XV of the Constitution; and

(2) that the anomalies which will arise if the construction put by the High Court on Art. 329 (b) is accepted, are so startling that the Courts should lean in favour of the construction put forward on behalf of the appellant.

4. The first argument which turns on the construction of Art. 329 (b) requires serious consideration, but I think the second argument can be disposed of briefly at the outset. It should be stated that what the appellant chooses to call anomaly can be more appropriately described as hardship or prejudice and what their nature will be has been stated in forceful language by Wallace J. in Sarvothama Rao, v. Chairman, Municipal Council, Saidapet, 47 Mad. 585 at p. 600 in these words :

"I am quite clear that any post election remedy is wholly inadequate to afford the relief which the petitioner seeks, namely, that this election, now published, be stayed, until it can be held with himself as a candidate. It is no consolation to tell him that he can stand for some other election. It is no remedy to tell him that he must let that election go on and then have it set aside by petition and have a fresh election ordered. The fresh election may be under altogether different conditions and may bring forward an array of fresh candidates. The petitioner can only have his proper relief if the proposed election without him is stayed until his rejected nomination is restored, and hence an injunction staying this election was absolutely necessary, unless the relief asked for was to be denied him altogether in limine. In most cases of this kind no doubt there will be difficulty for the aggrieved party to get in his suit in time before the threatened wrong is committed; but when he has succeeded is so doing, the Court cannot stultify itself by allowing the wrong which it is asked to prevent to be actually consummated while it is engaged in trying the suit."

These observations however represent only one side of the picture and the same learned Judge presented the other side of the picture in a subsequent case (Desi Chettiar v. Chinnasami Chettiar), A. I. L. (15) 1928 Mad. 1271 at p. 1272 in the following passage:

"The petitioner is not without his remedy. His remedy lies in an election petition which we understand he has