ORDER:

(Per the Hon’ble the Chief Justice Alok Aradhe)

Mr. Baglekar Akash Kumar, learned counsel for the petitioner.

Mr. Avinash Desai, learned Senior Counsel representing Mr. Mohammed Omer Farooq, learned Standing Counsel for the Election Commission of India.

2. Heard on the question of admission.

3. In this writ petition, the petitioner has assailed the validity of the order dated 26.04.2024 passed by the Returning Officer, by which nomination paper submitted by the petitioner has been rejected.

4. Facts giving rise to filing of this writ petition briefly stated are that the petitioner is a resident of 07-Malkajgiri Parliamentary Constituency. The petitioner filed nomination paper on 25.04.2024 as an independent candidate for 07-Malkajgiri Parliamentary Constituency. The nomination paper submitted by the petitioner has been rejected by the Returning Officer by an order dated 26.04.2024, inter alia, on the ground that the name of the proposer at serial No.6 does not tally with the voters list. The petitioner, therefore, has challenged the validity of the aforesaid order in this writ petition.

5. Learned counsel for the petitioner submitted that the order of the Returning Officer is not in consonance with the proviso to Section 33(4) of the Representation of the People Act, 1951 (hereinafter referred to as “the 1951 Act”) and the Returning Officer has the power to overlook the aforesaid discrepancy. It is further submitted that the dispute raised by the petitioner does not amount to calling in question the election and the petitioner is entitled to contest in the elections. It is also urged that the order dated 26.04.2024 is arbitrary.

6. On the other hand, learned Senior Counsel for the Election Commission of India has invited the attention of this Court to the proviso to Section 33(1) of the 1951 Act. It has been submitted that the nomination paper is not in consonance with the requirement of the proviso as the details of one of the proposers do not tally with the electoral roll. It is also submitted that in view of the bar contained in Article 329(b) of the Constitution of India, no interference is called for in this writ petition. In support of the aforesaid submission, reliance has been placed on N.P.Ponnuswami vs. Returning Officer, Namakkal Constituency1.

7. We have considered the rival submissions made on both sides and have perused the record. Before proceeding further, it is apposite to take note of the relevant provisions of the Constitution of India and the 1951 Act.

1 (1952) 1 SCC 94

8. Article 329 of the Constitution of India deals with bar to interference by Courts in electoral matters. Article 329(b)

is extracted below for the facility of reference:

“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.”

9. Section 33 of the 1951 Act deals with presentation of nomination paper and requirements for a valid nomination. The relevant extract of Section 33(1) with proviso and Section 36 of the 1951 Act are extracted below:

“33. Presentation of nomination paper and requirements for a valid nomination.--(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:

Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election form a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:

…”

“36. Scrutiny of