2024 Supreme(Online)(TS) 17708

THE HON’BLE THE CHIEF JUSTICE ALOK ARADHE

AND

THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI

WRIT PETITION No.11941 of 2024

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

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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.

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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

4

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

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duly nominated for election form a constituency unless

the nomination paper is subscribed by ten proposers

being electors of the constituency:

…”

“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

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

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(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.

(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

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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

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.”

10.

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

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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

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

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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

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

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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.”

11.

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

referred to subsequently by the Supreme Court in Ram

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

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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