Delhi High Court
Mr. Kiran Pal Singh Tyagi And Ors. vs State Of Nct Of Delhi And Ors. on 28 January, 2020
$~82 & 94
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 28.01.2020
+ W.P.(C) 1032/2020 & CM APPL. 3347-48/2020 & & CM
APPL. 3346/2020
MR. KIRAN PAL SINGH TYAGI AND ORS. ..... Petitioners
versus
STATE OF NCT OF DELHI AND ORS. ..... Respondents
+ W.P.(C) 1060/2020 & CM APPL. 3498-99/2020
SUNIL KUMAR ..... Petitioner
versus
CHIEF ELECTION OFFICER (GNCT OF DELHI)
AND ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Viplav Sharma, Advocate (W.P.(C) 1032/2020)
Mr. Veerpal Singh, Advocate (W.P.(C) 1060/2020)
For the Respondents: Mr. Shadan Farasat, ASC with Mr. Bharat Gupta, Advocate
for R-1-GNCTD (W.P.(C) 1032/2020)
Mr. Jasmeet Singh, CGSC for R-2 (W.P.(C) 1032/2020)
Mr. Sidhant Kumar, Advocate for R-3 (W.P.(C)
1032/2020)
Mr. P.R. Chopra, Advocate for R-4 & 5 (W.P.(C)
1032/2020) and for R-1 & 2 (W.P.(C) 1060/2020)
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
W.P.(C) 1032/2020 & 1060/2020 Page 1 of 23
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioners, in these petitions, inter-alia impugn the rejection,
by the Returning Officer, of their nomination papers for the ensuing
election to the legislative assembly of the National Capital Territory
of Delhi.
2. The contention of the petitioners is that their nomination papers
have been incorrectly rejected.
3. Mr. Sidhant Kumar, learned counsel appearing for the Election
Commission of India raises a preliminary objection as to the
maintainability of the present petitions.
4. Learned counsel contends that in terms of Article 229(b) of the
Constitution of India and Sections 80 and 100 of the Representation of
Peoples Act, 1951 (hereinafter referred to as the Act), subject petitions
are barred. It is contended that a writ petition under Article 226 of the
Constitution of India impugning the rejection of the nomination paper
would not lie and the only remedy available for the alleged incorrect
rejection of nomination papers would be by way of an election
petition post declaration of the result of the election.
5. Reliance is placed on the judgment of the Constitution Bench of
the Supreme Court in 'N.P. Ponnuswami Vs. Returning Officer &
Ors.' 1952 SCR 218, as also to the Constitution Bench judgment of
the Supreme Court in 'Mohinder Singh Gill Vs. Chief Commissioner'
AIR 1978 SC 851, and the judgment of a Coordinate Bench of this
Court in Sandeep Srivastava Vs. Election Commission of India & Anr.
dated 26.04.2019 in W.P. (C) No. 4416/2019 wherein the coordinate
bench has relied on the judgment of the Division Bench of this Court
dated 25.04.2011 in LPA No. 383/2011 titled 'Braj Kishore Bhagat
Vs. Chief Election Commissioner'.
6. Mr. Viplav Sharma, Learned counsel for the petitioner contends
that the case is not covered by the said judgments, in as much as, the
Constitution Bench of the Supreme Court in N.P. Ponnuswami
(supra) has not noticed the provisions of Section 100 of the Act in its
entirety and since the provisions of the Act have not been noticed, the
judgment would not be an embargo on the right of the petitioners to
challenge the rejection of their nomination papers under Article 226 of
the Constitution of India.
7. It is further contended by learned counsel for the petitioners that
the consequences of challenge post an election are far serious than
entertaining a petition under Article 226 of the Constitution of India
prior to the polling. It is contended by learned counsel for the
petitioners that in case the petitions of the petitioners were allowed
before voting is held and petitioners are permitted to participate, there
would be no impediment in the conduct of the election as per the
notified Schedule and on the other hand, in case the election is set
aside on an election petition filed after the election is held, the
consequences would be far greater and lot of inconvenience would be
caused not only to the candidates but also to the voters and it would
also lead to a loss to the exchequer.
8. Further it is contended that the judgment in N.P. Ponnuswami
(Supra), has been passed on a concession given by the counsel that a
challenge to rejection of nomination paper would lie post the election
by an election petition. It is contended that reliance in the said
judgment has been placed on the legal position as existing in England
and post the enactment of the Constitution, the Rules and Laws of
England would not be applicable and because the judgment in N.P.
Ponnuswami (Supra) refers to the laws of England, same would not be
binding and the petitions of the petitioners would be maintainable
under Article 226 of the Constitution of India.
9. Learned counsel for the petitioner further submits that an
election petition is not an efficacious remedy and disposal of an
election petition may take considerable time and the returned
candidate, in the meantime, would continue to hold the elected office
till the election petition is allowed and election is declared void.
10. Since the question on the maintainability has been raised at the
outset by learned counsel appearing for the Election Commission of
India, the merits of the contentions of the petitioners with regard to
the rejection of their nomination papers are not been considered in
these petitions and these petitions are being disposed of solely on the
preliminary objection raised as to its maintainability.
11. Article 329 of the Constitution of India reads as under:
"329. Bar to interference by courts in electoral matters:-
Notwithstanding anything in this Constitution
(a) the validity of any law relating to the delimitation
of constituencies or the allotment of seats to such
constituencies, made or purporting to be made
under Article 327 or Article 328, shall not be
called in question in any court;
(b) 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.
12. Article 329 of the Constitution begins with a non obstante
clause "Notwithstanding anything contained in this Constitution....".
Article 329 (2) stipulates that no election to either House of
Parliament or to the House or either House of the Legislature of a
State would be called in question except by way of an election petition
presented to such authority and in such manner as may be provided
for by or under any law made by the State Legislature.
13. The Law as contemplated under Article 329 of the Constitution
of India is the Representation of Peoples Act 1951.
14. Section 80 of the Representation of Peoples Act 1951 provides
as under: -
"80. Election petitions.--No election shall be called in
question except by an election petition presented in
accordance with the provisions of this Part."
15. In terms of Section 80 of the Act, no election can be called in
question except by way of an election petition provided in accordance
with provisions of Part-VI of the Act.
16. Section 2(1)(d) of the Act defines "election" to mean an
election to fill a seat or seats in either House of Parliament or in the
House or either House of the Legislature of a State.
17. Section 100 of the Representation of Peoples Act 1951 provides
as under: -
100. Grounds for declaring election to be void.--
(1) Subject to the provisions of sub-section (2) if the
High Court is of opinion--
(a) that on the date of his election a returned
candidate was not qualified, or was disqualified, to
be chosen to fill the seat under the Constitution or
this Act or the Government of Union Territories
Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any
other person with the consent of a returned
candidate or his election agent; or
(c) that any nomination has been improperly rejected;
or
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected--
(i) by the improper acceptance or any
nomination, or
(ii) by any corrupt practice committed in the
interests of the returned candidate by an
agent other than his election agent, or
(iii) by the improper reception, refusal or
rejection of any vote or the reception of any
vote which is void, or
(iv) by any non-compliance with the provisions
of the Constitution or of this Act or of any
rules or orders made under this Act,
the High Court shall declare the election of the
returned candidate to be void.
(2) If in the opinion of the High Court, a returned
candidate has been guilty by an agent other than his
election agent, of any corrupt practice but the High
Court is satisfied--
(a) that no such corrupt practice was committed at the
election by the candidate or his election agent, and
every such corrupt practice was committed
contrary to the orders, and without the consent, of
the candidate or his election agent;
(b) (omitted)
(c) that the candidate and his election agent took all
reasonable means for preventing the commission
of corrupt practices at the election; and
(d) that in all other respects the election was free from
any corrupt practice on the part of the candidate
or any of his agents, then the High Court may
decide that the election of the returned candidate
is not void."
18. Section 100 of the Act provides for the grounds on which an
election can be declared to be void. Sub-section (1) of section 100 of
the Act makes the said provisions subject to the provisions of sub-
section (2) of Section 100 of the Act.
19. One of the grounds enumerated in Section 100 (1) of the Act
for declaring an election of the returned candidate as void is ground
(c) i.e. "that any nomination has been improperly rejected".
20. Ground (d) (iv) of Section 100(1) of the Act enlists non-
compliance with the provisions of the Constitution or the Act or of any
Rules or Orders made under this Act, which has materially affected
the result of the returned candidate as one of the grounds for
declaration of election of the returned candidate to be void.
21. In N.P. Ponnuswami (Supra), the Constitution Bench of the
Supreme Court was considering an appeal challenging an order of the
High Court, whereby the Writ Petitions filed by the appellant under
Article 226 of the Constitution of India, seeking quashing of order of
the Returning officer rejecting the nomination paper and for a
direction to the Returning Officer to include his name in the list of
valid nomination, was dismissed by the High Court.
22. The High Court in the said case had dismissed the petition of
the appellant therein, under Article 226 of the Constitution of India,
on the ground that it had no jurisdiction to interfere with the order of
the Returning Officer by reasons of provisions of Article 329 (b) of
the Constitution of India.
23. The arguments raised by the appellant therein was that the
conclusion arrived at by the High Court did not follow from the
language of Article 329 (b) of the Constitution, whether that Article
was read by itself or along with other Articles in Part-XV of the
Constitution.
24. One of the other contentions raised by the appellant therein and
as considered by the Supreme Court in N.P. Ponnuswami (Supra),
was also; that questioning something which had happened before a
candidate is declared elected is not the same as questioning an
election. It was also contended therein that the action of the Returning
Officer in rejection of the nomination could be questioned under
Article 226 of the Constitution of India.
25. The Supreme Court in N.P. Ponnuswami (Supra) with regard to
the contention of the Counsel for the Appellant "(4) That the action of
the Returning Officer in rejecting a nomination paper can be
questioned before the High Court under Article 226 of the
Constitution for the following reason: Scrutiny of nomination papers
and their rejection are provided for in Section 36 of the
Representation of the People Act, 1951. Parliament has made this
provision in exercise of the powers conferred on it by Article 327 of
the Constitution which is "subject to the provisions of the
Constitution". Therefore, the action of the Returning Officer is subject
to the extraordinary jurisdiction of the High Court under Article
226." held as under (@pages 226 to 229 of the report 1952 SCR
218):-
"These arguments appear at first sight to be quite
impressive, but in my opinion there are weightier and
basically more important arguments in support of the
view taken by the High Court. As we have seen, the most
important question for determination is the meaning to
be given to the word "election" in Article 329(b). That
word has by long usage in connection with the process of
selection of proper representatives in democratic
institutions, acquired both a wide and a narrow meaning.
In the narrow sense, it is used to mean the final selection
of a candidate which may embrace the result of the poll
when there is polling or a particular candidate being
returned unopposed when there is no poll. In the wide
sense, the word is used to connote the entire process
culminating in a candidate being declared elected.
In Srinivasalu v. Kuppuswami [(1928) AIR Mad 253 at
255] , the learned Judges of the Madras High Court after
examining the question, expressed the opinion that the
term "election" may be taken to embrace the whole
procedure whereby an "elected member" is returned,
whether or not it be found necessary to take a poll. With
this view, my brother, Mahajan, J. expressed his
agreement in Sat Narain v. Hanuman Prasad [(1945)
AIR Lah. 85] ; and I also find myself in agreement with
it. 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. The
subject is dealt with quite concisely in Halsbury Laws of
England in the following passage [See page 237
of Halsbury's Laws of England, 2nd Edn. Vol. 12] under
the heading Commencement of the Election":
"Although the first formal step in every election is
the issue of the writ, the election is considered for
some purposes to begin at an earlier date. It is a
question of fact in each case when an election
begins in such a way as to make the parties
concerned responsible for breaches of election
law, the test being whether the contest is
'reasonably imminent'. Neither the issue of the
writ nor the publication of the notice of election
can be looked to as fixing the date when an
election begins from this point of view. Nor, again,
does the nomination day afford any criterion. The
election will usually begin at least earlier than the
issue of the writ. The question when the election
begins must be carefully distinguished from that as
to when 'the conduct and management of' an
election may be said to begin. Again, the question
as to when a particular person commences to be a
candidate is a question to be considered in each
case."
The discussion in this passage makes it clear that the
word "election" can be and has been appropriately used
with reference to the entire process which consists of
several stages and embraces many steps, some of which
may have an important bearing on the result of the
process.
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.
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 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 ex- pressed 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."
(underlining supplied)
26. In N.P. Ponnuswami (Supra), the Constitution Bench thereafter
considered the provisions of the Act, inter-alia, Sections 80, 100, 105
and 170 and the provisions of Chapter-II of Part-IV dealing with
forms of election petitions, their contents and relief which may be
sought and held as under (@pages 230 to 231 of the report 1952 SCR
218): -
"The Representation of People Act, 1951, which was
passed by Parliament under article 327 of the
Constitution. makes detailed provisions in regard to all
matters and all stages connected with elections to the
various legislatures in this country. That Act is divided
into II parts, and it is interesting to see the wide variety
of subjects they deal with. Part II deals with "the
qualifications and disqualifications for membership",
Part III deals with the notification of General Elections,
Part IV provides for the administrative machinery for
the conduct of elections, and Part V makes provisions
for the actual conduct of elections and deals with such
matters as presentation of nomination pa- pers.
requirements of a valid nomination, scrutiny of
nominations, etc., and procedure for polling and
counting of votes. Part VI deals with disputes regarding
elections and provides for the manner of presentation of
election petitions, the constitution of election tribunals
and the trial of election petitions. Part VII outlines the
various corrupt and illegal practices which may affect
the elections, and electoral offences. Obviously, the Act
is a self contained enactment so far as elections are
concerned, which means that whenever we have to
ascertain the true position in regard to any matter
connected with elections, we have only to look at the Act
and the rules made thereunder. The provisions of the
Act which are material to the present discussion
are sections 80, 100, 105 and 170, and the provisions of
Chapter II of Part IV dealing with the form of election
petitions, their contents and the reliefs which may be
sought in them. Section 80, which is drafted in almost
the same language as article 329 (b), provides that "no
election shall be called in question except by an
election petition presented in accordance with the
provisions of this Part". Section 100, as we have
already seen, provides for the grounds on which an
election may be called in question, one of which is the
improper rejection of a nomination paper. Section
105 says that "every order of the Tribunal made under
this Act shall be final and conclusive". Section
170 provides that "no civil court shall have jurisdiction
to question the legality of any action taken or of any
decision given by the Returning Officer or by any other
person appointed under this Act in connection with an
election." These are the main provisions regarding
election matters being judicially dealt with, and it
should be noted that there is no provision anywhere to
the effect that anything connected with elections can be
questioned at an intermediate stage.
It is now well-recognized that where a right or liability
is created by a statute which gives a special remedy for
enforcing it, the remedy provided by that statute only
must be availed of.
(underlining supplied)
27. In N.P. Ponnuswami (Supra), the Supreme Court has
specifically held that where a right or liability is created by a Statute
which gives a special remedy for enforcing it, the remedy provided by
that statute only must be availed of. The invocation of the extra
ordinary jurisdiction under Article 226 of the Constitution of India,
when the election process is ongoing, has specifically been held to be
excluded.
28. Further the arguments that the Representation of People Act
was enacted subject to the provisions of the Constitution and it could
not bar the jurisdiction of the High Court under Article 226 of the
Constitution of India was also negated by the Supreme Court by
holding as under (@page 232 to 234 of the report 1952 SCR 218): -
"It was argued that since the Representation of the
People Act was enacted subject to the provisions of the
Constitution, it cannot bar the jurisdiction of the High
Court to issue writs under article 226 of the
Constitution. This argument however is completely shut
out by reading the Act along with article 329 (b). It will
be noticed that the language used in that article and
in section 80 of the Act is almost identical, with this
difference only that the article is preceded by the words
"notwithstanding anything in this Constitution". I think
that those words are quite apt to exclude the jurisdiction
of the High Court to deal with any matter which may
arise while the elections are in progress.
It may be stated that section 107(1) of the
Representation of People Act, 1949 (12 & 13 Geo. 6, c.
68) in England is drafted almost in the same language
as article 329(b). That section runs thus :-
"No parliamentary election and no return to
Parliament shall be questioned except by a
petition complaining of an undue election or
undue return (hereinafter referred to as a
parliamentary election petition) presented in
accordance with this Part of this Act."
It appears that similar language was used in the earlier
statutes, and it is noteworthy that it has never been held
in England that the improper rejection of a nomination
paper can be the subject of a writ of certiorari or
mandamus. On the other hand, it was conceded at the
bar that the question of improper rejection of a
nomination paper has always been brought up in that
country before the appropriate tribunal by means of an
election petition after the conclusion of the election. It is
true that there is no direct decision holding that the
words used in the relevant provisions exclude the
jurisdiction of the High Court to issue appropriate
prerogative writs at an intermediate stage of the
election, but the total absence of any such decision can
be accounted for only on the view that the provisions in
question have been generally understood to have that
effect. Our attention was drawn to rule 13 of the rules
appended to the Ballot Act of 1872 and a similar rule in
the Parliamentary Elections Rules of 1949, providing
that the decision of the Returning Officer disallowing an
objection to a nomination paper shall be final, but
allowing the same shall be subject to reversal on a
petition questioning the election or return. These rules
however do not affect the main argument. I think it can
be legitimately stated that if words similar to those used
in article 329 (b) have been consistently treated in
England as words apt to exclude the jurisdiction of the
courts including the High Court, the same consequence
must follow from the words used in article 329 (b) of the
Constitution. The words "notwithstanding anything in
this Constitution" give to that article the same wide and
binding effect as a statute passed by a sovereign
legislature like the English Parliament.
It may be pointed out that article 329 (b) must be read as
complimentary to clause (a) of that article. Clause (a)
bars the jurisdiction of the courts with regard to such
law as may be made under articles 327 and 328 relating
to the delimitation of constituencies or the allotment of
seats to such constituencies. It was conceded before us
that article 329 (b) ousts the jurisdiction of the courts
with regard to matters arising between the
commencement of the polling and the final selection. The
question which has to be asked is what conceivable
reason the legislature could have had to leave only
matters connected with nominations subject to the
jurisdiction of the High Court under article 226 of the
Constitution. If Part XV of the Constitution is a code by
itself, i.e., it creates rights and provides for their
enforcement by a special tribunal to the exclusion of all
courts including the High Court, there can be no reason
for assuming that the Constitution left one small part of
the election process to be made the subject-matter of
contest before the High Courts and thereby upset the
time-schedule of the elections The more reasonable view
seems to be that article 329 covers all "electoral
matters".
(underlining supplied)
29. One of the cardinal questions considered by the Constitution
Bench of the Supreme Court in Mohinder Singh Gill versus Chief
Election Commissioner (Supra) was "Is Art. 329 (b) a blanket ban on
all manner of questions which may have impact on the ultimate result
of the election, arising between two temporal termini viz., the
notification by and the declaration of the result by the returning
officer? Is Art. 226 also covered by this embargo and, if so, is S. 100
broad enough to accommodate every kind of objection, constitutional,
legal or factual, which may have the result of invalidation of an
petition as the returned candidate and direct the organisation of any
steps necessary to give full relief?"
30. The Constitution Bench in Mohinder Singh Gill versus Chief
Election Commissioner (Supra) once again considered the bar
imposed by Article 329 (b) of the Constitution and Section 100 of the
Act and held the same to be a barrier created by Article 329(b) as
under:-
"20. Right at the forefront stands in the way of the
appellant's progress the broad-spectrum ban of Art. 329
(b) which, it is claimed for the respondents, is
imperative and goal-oriented. Is this Great Wall of
China set up as a preliminary bar, so impregnable that
it cannot be bypassed even by Art. 226? That, in a sense,
is the key question that governs the fate of this appeal.
Shri P.P. Rao for the appellant contended that, however
wide Art. 329 (b) may be, it does not debar proceedings
challenging, not the steps promoting, election but
dismantling it, taken by the Commission without the
backing of legality. He also urged that his client, who
had been nearly successful in the poll and had been
deprived of it by an illegal cancellation by the
Commission, would be left in the cold without any
remedy since the challenge to cancellation of the
completed poll in the entire constituency was not
covered by S. 100 of the Act. Many subsidiary pleas also
were put inter-related submissions bearing on Art. 329
(b) and S. 100 and search for a solution. The problem
may seem prickly but an imaginative application of
principles and liberal interpretation of the Constitution
and the Act will avoid anomalies and assure justice. If
we may anticipate our view which will presently by
explained, Sec. 100 (1) (d) (iv) of the Act will take care
of the situation present here, being broad enough, as a
residual provision, 'non-compliance', every excess,
transgression, breach or omission. And the span of the
ban under Art. 329 (b) is measured by the sweep of S.
100 of the Act."
***** ***** *****
"30. The plenary bar of Art. 329 (b) rests on two
principles: (1) The peremptory urgency of prompt
engineering of the whole election process without
intermediate interruptions by way of legal proceedings
challenging the steps and stages in between the
commencement and the conclusion, (2) The provision of
a special jurisdiction which can be invoked by an
aggrieved party at the end of the election excludes other
form, the right and remedy being creatures of statutes
and controlled by the Constitution. Durga Shanker
Mehta (1955(1) SCR 267: (AIR 1954 SC 520) has
affirmed this position and supplemented it by holding
that, once the Election Tribunal has decided, the
prohibition is extinguished and the Supreme Court's
over all power to interfere under Art. 136 springs into
action. In Hari Vishnu (1955-1 SCR 1104): (AIR 1955
SC 233) this Court upheld the rule in Ponnuswami (AIR
1952 SC 64) excluding any proceedings, including one
under Art. 226, during the on-going process of election,
understood in the comprehensive sense of notification
down to declaration. Beyond the declaration comes the
election petition, but beyond the decision of the Tribunal
the ban of Art. 329 (b) does not bind."
(underlining supplied)
31. The Supreme Court in Election Commission of India through
Secretary Vs. Ashok Kumar & Ors. (2000) 8 SCC 216, relying on the
Judgments of the Constitution Bench of the Supreme Court in N.P.
Ponnuswami (supra) and Mohinder Singh Gill (Supra) held as under:
"30. To what extent Article 329(b) has an overriding
effect on Article 226 of the Constitution? The two
Constitution Benches have held that Representation of
the People Act, 1951 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. The non obstante clause with
which Article 329 opens, pushes out Article 226 where
the dispute takes the form of calling in question an
election (see para 25 of Mohinder Singh Gill
case [(1978) 1 SCC 405 : AIR 1978 SC 851] ). The
provisions of the Constitution and the Act read together
do not totally exclude the right of a citizen to approach
the court so as to have the wrong done remedied by
invoking the judicial forum; nevertheless the lesson is
that the election rights and remedies are statutory, ignore
the trifles even if there are irregularities or illegalities,
and knock the doors of the courts when the election
proceedings in question are over. Two-pronged attack on
anything done during the election proceedings is to be
avoided -- one during the course of the proceedings and
the other at its termination, for such two-pronged attack,
if allowed, would unduly protract or obstruct the
functioning of democracy."
(underlining supplied)
32. The law is clearly settled by the Constitution Bench of the
Supreme Court of India in N.P. Ponnuswami (supra) and Mohinder
Singh Gill (Supra) that there cannot be a two-pronged attack to an
election; one during the proceedings of the election process and
secondly; post declaration of the result of the election. The invocation
of the extraordinary jurisdiction of the High Court under Article 226
of the Constitution of India, when the election process is ongoing, is
prohibited.
33. The submission of learned counsel for the petitioners that the
Constitution Bench of the Supreme Court in N.P. Ponnuswami
(supra) has not noticed the provisions of Section 100 of the Act in its
entirety is contrary to record, as evidenced from the relevant portions
of the Judgment extracted hereinabove and is also a complete
incorrect reading of the Judgment by learned counsel for the
petitioners.
34. Further submission of the learned counsel for the petitioner that
the decision in N.P. Ponnuswami (supra) is not applicable as said
judgment has been passed on a concession given by the counsel that a
challenge to rejection of nomination paper would lie post the election
by an election petition and said concession has been given based on
the legal position as existing in England is also contrary to record and
is also a complete incorrect reading of the Judgment. The reference to
the English law has been made only to show as to how the law in
England, which is similar to the law in India, has developed and
interpreted.
35. Further, it may be seen that after noticing the submissions of
the counsel in the said case, the Supreme Court has very elaborately
considered Article 329 of the Constitution and Section 100 of the Act
and thereafter interpreted the same. Said submissions of learned
counsel for the petitioner are completely without any merit.
36. In view of the above, it is held that the petitions filed by the
petitioners are not maintainable at this stage and there is merit in the
preliminary objection raised by the respondent - Election Commission
of India that the petitioners cannot challenge the rejection of their
nomination papers or any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made under this
Act by way of a petition under Article 226 of the Constitution of
India.
37. In view of the above finding, the petitions are held to be not
maintainable in view of the bar under Article 329 (b) of the
Constitution of India and Section 100 of the Act and are accordingly
dismissed.
38. As noticed above, this Court has neither considered nor
commented upon the merits of the allegations of the petitioners with
regard to the rejection of their nomination papers or the alleged non
compliance with the provisions of the rules or orders made under the
Act.
39. Order dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
JANUARY 28, 2020
'rs'
