IMPORTANT POINT
The question whether the Returning Officer is justified in rejecting Form B submitted by a candidate or not is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only.

Headnote:Representation of the People Act, 1951-Section 36-Constitution of India-Article 329(b)-Conduct of Elections Rules, 1961-Rule 4-Election Symbols (Reservation and Allotment) Order, 1968-Clause 30-Omissions in Form B-Decision of Returning Officer to reject Form B filed by 1st respondent-Challenged-1st respondent filed his nomination to contest elections to Parliament as a candidate set up by Telangana Rashtra Samithi-Returning Officer finding Form B submitted as blank in columns 2 to 7, accepted nomination of 1st respondent as an independent candidate-Order challenged as illegal-Writ petition-Directions issued setting aside decision of Returning Officer-Whether High Court was justified in entertaining writ petition after issuance of election notification-(No)-Whether the Returning Officer is justified in rejecting Form B herein or not, is not a matter for the High Court to decide in the exercise of its writ jurisdiction-This issue should be agitated by an aggrieved party in an election petition only.
       Held : It is an admitted fact that so far as the Elections to Parliament from Constituency No. 28 Nagarkurnool (SC) Parliamentary Constituency in Andhra Pradesh is concerned, the process of election had already started not only by issuance of the notification by the President of India but also by issuance of a notification fixing the calendar of events by the Election Commission. It is only pursuant to said notification that the first respondent filed his nomination before the Returning Officer on the last date of filing of nominations. It is an admitted fact that in Form A filed by the appellant, he had asked for the symbol of a car on the ground that he is a candidate proposed by the Telengana Rashtra Samithi. His candidature has also been properly proposed and seconded as a candidate for the election to the House of People from Nagarkurnool (28) Parliamentary Constituency, but in Form B which is also a statutory form required to be filed by the first respondent for claiming a reserved symbol of a particular party at Part III in column (b)(ii) of the said form the candidate is required to give the particulars of the political party represented by him. Though in this column the respondent has stated that he is a candidate set up by the Telangana Rashtra Samithi party which is a registered unrecognised political party, alternate printed words that he is contesting this election as an independent candidate is also retained. This column requires the candidate to strike out what is not applicable therein but the first respondent has failed to strike out the part that he is contesting that election as an independent candidate thus giving room for a doubt whether really he was a candidate representing Telengana Rashtra Samithi political party or he is contesting the election as an independent candidate. The more important and more glaring error that was noticed by the Returning Officer was the lack of particulars in columns 2 to 7 of the said form which is the requisite notice required to be given by the political party setting up the candidate in proof of the fact that the candidate named therein has been set up by and entitled to the reserved symbol of that party. (Para 10)
       In our opinion, whether the Returning Officer is justified in rejecting this Form B submitted by the first respondent herein or not, is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only. It is to be seen that under Article 329(b) of the Constitution of India there is a specific prohibition against any challenge to an election either to the Houses of Parliament or to the Houses of Legislature of the State except by an election petition presented to such authority and in such manner as may be provided for in a law made by the appropriate legislature. The parliament has by enacting the Representation of People Act, 1951 provided for such a forum for questioning such elections hence, under Article 329(b) no forum other than such forum constituted under the R.P. Act can entertain a complaint against any election. (Paras 11 and 12)

JUDGMENT

Santosh Hegde, J.-Leave granted.

Heard learned counsel for the parties.

2. The first respondent herein filed his nomination to contest elections to the Parliament from 28 Nagarkurnool (SC) Constituency. On 2.4.2004 when the said nomination papers were taken up for scrutiny, the Returning Officer found that Form B submitted by the first respondent was blank in columns 2 to 7 and scratch line indicating scoring off the requirement of the said columns was noticed. Following the guidelines found in Handbook of Returning Officers issued by the Election Commission of India, the said Returning Officer rejected Form B filed by the first respondent herein and while accepting the nomination of the first respondent as an independent candidate he did not allot him the symbol reserved for the candidates of Telangana Rashtra Samithi of which party the first respondent claimed to be a candidate.

3. Being aggrieved by the said order of the Returning Officer the first respondent and the Telangana Rashtra Samithi represented by its President filed a writ petition under Article 226 of the Constitution of India before the High Court of Judicature; Andhra Pradesh, Hyderabad praying inter alia for issuance of a writ, order or direction in the nature of mandamus declaring the action of the Returning Officer treating the first respondent as an independent candidate and not as a candidate set up by the Telangana Rashtra Samithi vide his order dated 2.4.2004 as illegal and further prayed for a direction to the said Returning Officer to treat the first respondent as a candidate set up by the said Telangana Rashtra Samithi political party and allot the symbol of car to him. When the said writ petition came up for preliminary hearing the High Court, while issuing notice of admission and hearing learned counsel appearing for the parties at the interlocutory stage, came to the conclusion that the reason given by the Returning Officer for refusing to recognise the first respondent as an official candidate of Telangana Rashtra Samithi and consequential refusal to allot the official symbol of that party, was not acceptable even at that interlocutory stage because the errors pointed out by the Returning Officer were due to inadvertence and there was no other candidate set up by the said Telangana Rashtra Samithi in the said Constituency for which the first respondent had filed his nomination. It also took notice of an affidavit filed by the President of the Telangana Rashtra Samithi stating inter alia that the party had authorised him to issue B Form to the candidate set up by that party in the ensuing Assembly and Parliamentary elections and exercising said authority he had issued Form B to the first respondent herein. Based on the above material the High Court came to the conclusion that the irregularity, if any, found in Form B was so technical and trivial that the same did not justify the decision of the Returning Officer to treat the first respondent as an independent candidate and not as a candidate set up by the Telangana Rashtra Samithi, hence, issued the impugned directions setting aside the decision of the Returning Officer. It also came to the conclusion that the issue relating to allotment of symbol by the Returning Officer at the time of scrutiny of nomination papers is not one of the grounds on which an election petition could be filed under the provisions of the Representation of the People Act, 1951 (R.P. Act, 1951).

4. Being aggrieved by the interim order of the High Court, the appellant has filed the above appeal which was listed on 8.4.2004 before us for mentioning for an early date of hearing the SLP. Noticing the urgency of the matter and prima facie case of lack of jurisdiction of the High Court to entertain a writ petition after the election process had started, we took up the matter on board and issued notice to the respondents. We also considered it fit to suspend/stay the operation of the impugned order.

5. Now, the parties are se

Click Here to Read the rest of this document

2004 Supreme(SC) 490

IMPORTANT POINTThe question whether the Returning Officer is justified in rejecting Form B submitted by a candidate or not is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only.

Cases Referred (4)

IMPORTANT POINT
The question whether the Returning Officer is justified in rejecting Form B submitted by a candidate or not is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only.