(Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ order or direction more particularly in the nature of writ of Mandamus declaring the action of the 2nd respondent in rejecting the nomination of petitoner for 198, Vijayawada West Assembly Segment within the 29 Vijayawada Parliamentary Constituency for the A.P. Assembly Elections 2009 without giving opportunity of hearing to the petitioner as arbitrary illegal, capracious and violative of all cannons of law and justice and consequently direct the respondent to re-consider the nominations of the petitioner forthwith and pass)

The petitioner filed his nomination seeking to contest in the ensuing General Legislative Assembly Elections as the candidate fielded by the Praja Santhi Party from 198-Vijayawada West Legislative Assembly Constituency. The petitioner’s nomination was rejected by the Returning Officer on the ground that the serial numbers furnished by the proposers 1, 7 and 10 did not tally with those in the voters list of the constituency, and thereby the number of proposers fell below the required number of ten as prescribed by the first proviso under Section 33(1) of the Representation of the People Act, 1951 [for brevity, ‘the Act of 1951’). The petitioner assails the rejection of his nomination on the ground that the defects pointed out by the Returning Officer were of curable nature and did not constitute defects of a substantial character warranting rejection of the nomination.

The learned counsel for the petitioner drew our attention to Section 33(4) proviso of the Act of 1951 which states to the effect that the Returning Officer shall permit any inaccurate description or clerical, technical or printing error in the nomination or electoral roll to be corrected and where necessary, direct that any such misnomer or inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked. Placing reliance on the above provision, the learned counsel contended that the Returning Officer ought to have overlooked the mistake in the petitioner’s nomination with regard to the serial numbers furnished by the proposers as to their position in the voters list of the constituency.

On the other hand, the learned counsel representing the respondent raised a preliminary issue with regard to the maintainability of the writ petition, stating that Article 329(b) of the Constitution of India barred this Court from exercising jurisdiction under Article 226 of the Constitution in issues such as are raised in the present writ petition. He relied upon various Judgments in support of his contention.

Article 329(b) of the Constitution reads as under:

“329. Bar to interference by courts in electoral matters.–– Notwithstanding anything in this Constitution

(a) … … …

(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.”

The question sought to be raised presently is whether the above constitutional provision posits a bar to exercise of jurisdiction by this Court under Article 226 of the Constitution in matters pertaining to an assembly election and more specifically, in the matter of rejection of a candidate’s nomination.

The issue is hardly res nova. The law on this subject is well settled. In N.P. Ponnuswami V. The Returning Officer, Namakkal Constituency, Namakkal, Salem District And Others AIR 1952 SC 64, a six Judge Bench of the Supreme Court dealt with a similar fact situation where the Returning Officer had rejected a candidate’s nomination. The High Court had dismissed the candidate’s application seeking interference in the matter, stating that