2024 Supreme(Online)(TS) 9650

THE HON’BLE THE CHIEF JUSTICE ALOK ARADHE

AND

THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI

WRIT PETITION No.11778 of 2024

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

Mr. M.V.Praveen 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.

The petitioner is an elector/voter registered in 57-

Musheerabad Assembly Segment of 08-Secunderabad

Parliamentary Constituency. The petitioner submitted

nomination papers for contesting as Member of Parliament

from 13-Nalgonda Lok Sabha Constituency in the ensuing

General Elections which are scheduled to be held on

13.05.2024 as an independent candidate.

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4.

The aforesaid nomination paper was scrutinised on

26.04.2024 and the same was rejected, inter alia, on the

ground that the petitioner is an elector of different

constituency and submitted certified extract of electoral

roll with the signature of Assistant Electoral Registration

Officer, who is not the competent authority and the form

submitted by him is not in the format prescribed by the

Election Commission of India, which is a substantial defect

in the nomination process.

5.

The petitioner thereupon has filed this writ petition in

which the validity of the order dated 26.04.2024 passed by

the Returning Officer has been assailed primarily on the

ground that the same is violative of Section 33(4) of the

Representation of the People Act, 1951 (hereinafter referred

to as “the 1951 Act”).

6.

Learned counsel for the petitioner submitted that the

defect in the nomination paper is not of substantial

character and therefore the nomination paper of the

petitioner has been rejected in contravention of Section

33(4) of the 1951 Act. It is submitted that the Assistant

3

Electoral Registration Officer is the competent authority

under Section 22 of the 1951 Act and the dispute raised in

the petition is not an election dispute. It is further

submitted that the order rejecting the nomination paper

suffers from the vice of non-application of mind and is

arbitrary.

7.

On the other hand, learned Senior Counsel for the

Election Commission of India has invited the attention of

this Court to the mandate contained in Section 33(5) of the

1951 Act and has submitted that the nomination paper

was in violation of the mandate contained in Section 33(5)

of the 1951 Act. Attention of this Court has been invited to

the nomination paper to point out that the nomination

paper does not contain the details and vital particulars

have been mentioned as blank. Learned Senior Counsel

for the Election Commission of India has placed on record

the format of the extract of the electoral roll and has

submitted that the extract of the electoral roll submitted by

the petitioner is in variation with the format. It is also

submitted that at the time of scrutiny, neither the

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petitioner nor his representative were present. 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.

8.

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.

9.

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.”

1 (1952) 1 SCC 94

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10.

Section 33 of the 1951 Act deals with presentation of

nomination paper and requirements for a valid nomination.

Section 33(5) mandates that where the candidate is an

elector of a different Constituency, a copy of the electoral

roll of that Constituency or of the relevant part thereof or a

certified copy of the relevant entries in such roll, unless it

has been filed along with the nomination paper, be

produced before the Returning Officer at the time of

scrutiny. Section 36 of the 1951 Act deals with scrutiny of

nominations. Section 33(5) and Section 36 of the 1951 Act

are extracted below:

“33(5). Where the candidate is an elector of a

different constituency, a copy of the electoral roll of that

constituency or of the relevant part thereof or a certified

copy of the relevant entries in such roll shall, unless it

has been filed along with the nomination paper, be

produced before the returning officer at the time of

scrutiny.

...

36. Scrutiny of nominations. (1) On the date

fixed for the scrutiny of nominations under section 30,

the candidates, their election agents, one proposer of

each candidate, and one other person duly authorised in

writing by each candidate, but no other person, may

attend at such time and place as the returning officer

may appoint; and the returning officer shall give them

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all reasonable facilities for examining the nomination

papers of all candidates which have been delivered

within the time and in the manner laid down in section

33.

(2) The returning officer shall then examine the

nomination papers and shall decide all objections which

may be made to any nomination and may, either on

such objection or on his own motion, after such

summary inquiry, if any, as he thinks necessary, reject

any nomination on any of the following grounds:

(a) that on the date fixed for the scrutiny of nominations

the candidate either is not qualified or is disqualified for

being chosen to fill the seat under any of the following

provisions that may be applicable, namely:

Articles 84, 102, 173 and 191,

Part II of this Act and sections 4 and 14 of the

Government of Union Territories Act, 1963 (20 of 1963);

or

(b) that there has been a failure to comply with any of

the provisions of section 33 or section 34; or

(c) that the signature of the candidate or the proposer on

the nomination paper is not genuine.

(3) Nothing contained in clause (b) or clause (c) of

sub-section

(2)

shall

be

deemed

to

authorise

the rejection of the nomination of any candidate on the

ground of any irregularity in respect of a nomination

paper, if the candidate has been duly nominated by

means of another nomination paper in respect of which

no irregularity has been committed.

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(4) The returning officer shall not reject any

nomination paper on the ground of any defect which is

not of a substantial character.

(5) The returning officer shall hold the scrutiny on

the date appointed in this behalf under clause (b) of

section 30 and shall not allow any adjournment of the

proceedings

except

when

such

proceedings

are

interrupted or obstructed by riot or open violence or by

causes beyond his control:

Provided that in case an objection is raised by the

returning officer or is made by any other person the

candidate concerned may be allowed time to rebut it not

later than the next day but one following the date fixed

for scrutiny, and the returning officer shall record his

decision on the date to which the proceedings have been

adjourned.

(6) The returning officer shall endorse on each

nomination paper his decision accepting or rejecting the

same and, if the nomination paper is rejected, shall

record in writing a brief statement of his reasons for

such rejection.

(7) For the purposes of this section, a certified

copy of an entry in the electoral roll for the time being in

force of a constituency shall be conclusive evidence of

the fact that the person referred to in that entry is an

elector for that constituency, unless it is proved that he

is subject to a disqualification mentioned in section 16

of the Representation of the People Act, 1950 (43 of

1950).

(8) Immediately after all the nomination papers

have been scrutinised and decisions accepting or

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rejecting the same have been recorded, the returning

officer shall prepare a list of validly nominated

candidates,

that

is

to

say,

candidates

whose

nominations have been found valid, and affix it to his

notice board.”

11.

In N.P.Ponnuswami (supra), the petitioner filed

nomination papers for election to Madras Legislative

Assembly and the nomination paper of the petitioner

therein was rejected. Thereupon, the petitioner in the said

case filed a writ petition which was dismissed in the light of

mandate contained in Article 329(b) of the Constitution of

India. Thereupon, the Supreme Court dealt with the scope

and ambit of Article 329(b) of the Constitution of India. In

paragraphs 12, 14 and 15, it was held as under:

“12. It seems to me that the word “election” has

been used in Part XV 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

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in most of the books on the subject and in several

cases dealing with the matter, one of the

questions mooted is, when the election begins.

(13)

xx xxx

14. The next important question to be considered

is what is meant by the words “no election shall

be called in question”. A reference to any treatise

on elections in England will show that an election

proceeding in that country is liable to be assailed

on very limited grounds, one of them being the

improper rejection of a nomination paper. The law

with which we are concerned is not materially

different, and we find that in Section 100 of the

Representation of the People Act, 1951, one of the

grounds for declaring an election to be void is the

improper rejection of a nomination paper.

15. 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 another 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

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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.”

12.

The law laid down in N.P.Ponnuswami (supra) was

referred to subsequently by the Supreme Court in Ram

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Phal Kundu (supra) and in paragraph 24, it was held as

under:

“24. It may be noticed that the petition by Kamal

Sharma was filed on 6-2-2000 and the same was allowed

by the Election Commission the very next day i.e. on 7-

2-2000 by which a direction was issued to the Returning

Officer to hold a fresh scrutiny. There is nothing on

record to indicate nor it appears probable that before

passing the order, the Election Commission issued any

notice to Bachan Singh. Apparently, the order was

passed behind his back. The order of the Election

Commission to the effect that the Returning Officer

shall take further consequential steps as may

become necessary, by treating all earlier proceedings

in relation to the said candidates, as void ab initio

and redraw the list of validly nominated candidates,

could not have been passed without giving an

opportunity of hearing to Bachan Singh. That apart,

it has been held by a catena of decisions of this

Court that once the nomination paper of a candidate

is rejected, the Act provides for only one remedy,

that remedy being by an election petition to be

presented after the election is over, and there is no

remedy provided at any intermediate stage. (See N.P.

Ponnuswami v. Returning Officer [(1952) 1 SCC 94 :

AIR 1952 SC 64], Mohinder Singh Gill v. Chief

Election Commissioner [(1978) 1 SCC 405 : AIR 1978

SC

851]

and Election

Commission

of

India

v. Shivaji [(1988) 1 SCC 277 : AIR 1988 SC 61].)

Therefore,

the