The disqualification of a candidate based on a criminal conviction should be considered at the time of deciding the election petition, and the Returning Officer does not have the power of review unless conferred by the legislature.

( 1 ) THIS writ petition has been filed for quashing the order dated 8-4-2004 rejecting the nomination papers of the petitioner for contesting the election of the Parliament and declaring him disqualified for a period of six years from the date of his release from the jail.

( 2 ) THE facts and circumstances giving rise to this case are that petitioner was elected as an MLA in 1989, in 1991, and again in bye-election in 1993. He also remained the Minister of Forest and Small scale Industries in U. P. During the said period, he was tried in a Criminal Case under section 302/304, IPC in Police Station hazrat Ganj, Lucknow. The competent Court convicted and sentenced him for life imprisonment vide judgment and order dated 17/18-11-2000 and a fine of Rs. 20,000/- was also imposed. The Appellate Court granted him bail and suspended the sentence also by a further order dated 9-1-2002. The petitioner filed the nomination papers before the Returning Officer, Azamgarh on 5-4-2004, for contesting the election from 41 parliament Constituency. The Returning Officer rejected his nomination papers vide order dated 8-4-2004 in view of the provisions of Section 8 of the Representation of the people Act, 1951 (hereinafter called the Act 1951) on the ground of sentence and conviction, and further by the aforesaid impugned order the Returning Officer debarred the petitioner from contesting election for a period of six years from the date of his release on bail. Hence this petition.

( 3 ) THIS Court heard the matter on 10-5-2004 and Shri U. N. Sharma, learned Senior Counsel appearing for the petitioner restricted his case only to the competence of the Returning Officer to make a declaration of disqualification for a period of six years. This Court issued notice to the respondents only on the said limited issue. The affidavits have been exchanged and the matter is heard finally at admission stage with the consent of the counsel of the parties.

( 4 ) SHRI B. N. Singh, learned Senior Counsel appearing for respondents has raised preliminary objection regarding the maintainability of the writ petition contending that it is an election dispute and in view of the provisions of Article 329 (b) of the Constitution, cannot be agitated in writ jurisdiction, as the only mode of adjudication of all such disputes is by filing election petition. In order to fortify his submission, he has placed reliance upon a large number of judgments of the Honble Supreme Court, particularly, in N. P. Ponnuswami v. The returning Officer, AIR 1952 SC 64; Durga shankar Mehta v. Raghuraj Singh, AIR 1954 sc 520; Hari Vishnu Kamath v. Ahmad ishaque, AIR 1955 SC. 233; Brundaban nayak v. Election Commission of India, AIR 1965 SC 1892; Mohinder Singh Gill v. Chief election Commissioner, AIR 1978 SC 851 ; krishna Ballabh Prasad Singh v. Sub Divisional officer, Hilsa-cum-Returning Officer, air 1985 SC 1746; Election Commission of india v. Shivaji, AIR 1988 SC 61; and Manda jaganath v. K. S. Rathnam, AIR 2004 SC 360.

( 5 ) WE have considered the submissions made by Shri B. N. Singh but we do not find the same worth entertaining, for the reason that in exceptional circumstances, where the facts are not in dispute, the controversy regarding eligibility/qualification/ disqualification etc. can also be agitated in writ jurisdiction. (Vide K. Venkatachalam v. A. Swamickan, AIR 1999 SC 1723 and Lal chand v. State of Haryana, AIR 1999 P and H 1 (FB); Manda Jaganath (supra) and Harnek singh v. Charanjit Singh, (2005) 8 SCC 383 : (AIR 2006 SC 52), Shri. U. N. Sharma, learned senior counsel, appearing for the petitioner, has restricted his case to the competence of the Returning Officer to declare the petitioner disqualified for a period of six years from the date of release from jail and his grievance is not against rejection of his nomination paper.

( 6 ) THE controversy lies in a very narrow compass, as to whether the Returning Officer could declare that petitioner was disqual