MANDA JAGANATHversusK.S. RATHNAM AND ORS.

A                                MANDAJAGANATH
                                            V.

                              K.S. RATHNAM AND ORS.

                                    APRIL 16, 2004

B                   [N. SANTOSH HEGDE AND B.P. SINGH, JJ.]


            Constitution of India,1950:

            Articles 226 and 329(b)-Election to Parliament- -Allotment ofsymbol-
C Rejection by Returning Officer of form 'B' submitted by a candidate-
      Nomination accepted as an independent candidate-Writ petition challenging
      order of Returning Officer-Maintainability of-Held, the issue should be
      agitated by aggrieved party in an election petition only and it is not a matter
      for High Court to decide in exercise .of its writ jurisdiction-Representation
D     of the People Act,1951-s.JOO(J)(d)(4).

           Words an<! Phrases: 'Election' as occurring in Representation of the
      People Act, 1951-Meaning of-Explained

         Respondent no.1 filed his nomination to contest election to the
E Parliament from a Parliamentary constituency. Form 'B' submitted by
  him was rejected by the Returning Officer as Columns 2 to 7 thereof were
  left blank with a scratch line indicating scoring off the requirement of the
  said columns. Nomination of Respondent No. 1 was accepted as an
  independent Candidate and he was not allotted the symbol reserved for
  the candidates of the political party of which he claimed to be a candidate.
F The order was challenged in a w.rit petition before the High Court, which
  set aside the order of the Returning Officer holding that the issue relating
  to allotment of symbol by the Returning Officer at the time of scrutiny of
  nomination papers was not one of the grounds on which an election
  petition could be filed under the provisions of the Representation of the
G People Act,1951.
            In the appeal filed before the Supreme Court it was contended for
      the appellant that in view of the specific bar as laid down under Article
      329(b) of the Constitutfon read with the provisions of the Representation
      of the People Act, the High Court was not justified in entertaining the
I-I                                        204
                      MANDA JAGANATH v. K.S. RA THNAM                      205
    writ petition and directing the Returning Officer to treat the respondent A
    as a candidate set up by the political party as claimed by him and to allot
    him the symbol reserved for the candidates of the said party. It was
    submitted that it was only the Returning Officer who was competent to
    adjudicate on such issues and the High Court could not have in a petition
    under Article 226 of the Constitution decided the issue.
                                                                                   'B
         Allowing the appeal, the Court

          HELD: 1.1. Whether the Returning Officer was justified in rejecting
    Form B submitted by the first respondent or not, is not a matter for the
    High Court to decide in the exercise of its writ jurisdiction. This issue      'C
    should be agitated by an aggrieved party in an election petition only. On
    facts, the High Court could not have interfered with the decision of the
    Returning Officer. (211-C)

          1.2. Under Article 329(b) of the Constitution of India there is a
    specific prohibition against any challenge to an election either to the        D
    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.       E
    Act can entertain a complaint against any election. [211-D-E)

         N.P. Ponnuswami v. The Returning Officer, Namakka/ Constituency,
    Namakkal, Salem Dist., and Ors., AIR (1952) 39 SC 64; Mohinder Singh Gill
    and Anr. v. The Chief Election Commissioner, New Delhi and Ors., [1978) 1
    SCC 405; Election Commission of India v. Shivaji and Ors., [1988) 1 SCC        F
    277 and S. T. Muthusami v. K. Natarajan and Ors., [1988) 1 SCC 572 relied
    on.

         Ram Phal Kundu v. Kamal Sharma, [2004) 2 SCC 759, cited.

          2. The word 'election' has been judicially defined by various            G
    authorities of this Court to mean any and every act taken by the competent
    authority after the publication of the election notification. In the instant
    case, admittedly process of election to Parliament from the Parliamentary
•   Constituency concerned had already started not only by issuance of the
    notification by the President of India but also by issuance ofa notification   H
    206                     SUPREME ~OURT REPORTS [2004) SUPP. 1 S.C.R.

A   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.
                                                                (210-B-C; 211-F)

          3.1. If by an erroneous order of the Returning Officer, conduct of
B the election is not hindered then the courts under Article 226 of the
    Constitution should not interfere with the orders of the Returning Officers,
    remedy for which lies in an election petition only. [213-B)

          3.2. By notallotting the symbol.claimed by the first respondent the
    Returning Officer has not stalled or stopped the progress of the election.
C   The said respondent has been treated as an independent candidate and
    he is permitted to contest with the symbol assigned to him as an
    independent candidate, and consequently there is no question of stalling
    the election. (213-H; 214-A]

          4. It cannot be said that non-allotment of a symbol which the first
                                                                                         I
D   respondent claims was legally entitled to would not be a ground of               )

    challenge available to him in the election petition under section 100 of the
    Representation of the People Act,1951. Sub-clause (4) of section lOO(l)(d)
    of the Act, is a widely worded residual_ clause which has been termed as
    "catch all clause". (214-B-C)

E        Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New
    Delhi and Ors., (1978) 1 SCC 405, relied on.

          5. The arguments that the omissions found by the Returning Officer
    iit Form B filed by the first respondent are all curable irregularities and
    are not defects of substantial nature, calling for rejection of the nomination
F   paper can be addressed in a properly constituted election petition, if need
    be, and cannot be a ground for setting aside the order of the Returning
    Officer which is prima facie just and proper. (214-E-F]

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2489 of2004.

G        From the Judgment and Order dated 5.4.2004 of the Andhra Pradesh
    High Court in W.P.S.R. ~O. 34603 of 2004.

         Ms. K. Amareshwari, Guntur Prabhakar and Ms. T. Anamika for the
    Appellants.

H         Dr. Rajeev Dhawan, R. Santhana Krishnan, G. Sateesh, D. Mahesh
             MANDAJAGANATHv. K.S.RATHNAM [HEGDE,J.]                        207
Babu and S. Muralidhar for the Respondent.                                         A
      The Judgment of the Court was delivered by

      SANTOS~ HEGDE, J. Leave granted.

      Heard learned counsel for the parties.                                       B
      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         C
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        :0
a candidate.

        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    E
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 tre.at the first respondent as a candidate set up    F·
by the said Telangana Rashtra S;lmithi 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 notiee of admission and hearing learned counsel
appeating for the parties at the interlocutory stage, came to the conclusion
that the reason given by the Returning Officer for refusing to recognise the       G
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   H
    208                     SUPREME COURT REPORTS [2004] SUPP. 1 S:C.R.

A   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
B   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 Samhhi, hence, issued the impugned direction~ setting
    aside the decision of the Returning Officer. It also came to the conclusion
    that the issue relati!J.g to allotment of symbol by the Returning Officer at the
C   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).

           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
D   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.

E         Now, the parties are served with the court notice of this petition and are
    represented through their respective counsel who have requested us to finally
    dispose of the matter today because of the urgency involved.

         Having heard the learned counsel, we grant leave in this matter and
F   proceed to dispose of this appeal.

          Ms. K. Amareshwari, learned senior counsel for the appellant and Mr.
    S Muralidhar, learned counsel for the Returning Officer assailed the order of
    the High Court primarily on the ground that the High Court was not justified
    in entertaining a writ petition after issuance of election notification because
G   of the specific bar found in Article 329(b) of the Constitution of India read
    with the other provisions of the Representation of the People Act, 1_951.
    They also contended that the High Court could not have directed the Returning
    Officer to treat the first respondent as a candidate set up by th~ Telangana
    Rashtra Samithi and further direct the Returning Officer to allot the symbol
    of car which is reserved for the official candidate of the said political party
H   only. They also submitted that in view of glaring defects and omissions
             MANDAJAGANATHv. K.S.RATHNAM [HEGDE,J.]                      209

found in Fonn B filed by the first respondent which are in contravention of      A
the Representation of the People Act, the Rules and Orders made thereunder,
it was only the Returning Officer who was competent to adjudicate on such
issues and the High Court could not have in a petition filed under Article 226
decided that issue. They placed strong reliance on the provisions of Article
329(b) of the Constitution as also the judgments of this Court in :
                                                                                 B
       I.    N.P.Ponnuswami v. The Returning Officer, Namakkal
             Constituency, Namakkal, Salem Dist., and Ors., AIR (1952) 39
             SC 64;
       2.    Mohinder Singh Gill and Anr. v. The Chief Election
             Commissioner, New Delhi and Ors., [1978] 1 SCC 405;                 C
       3.    Election Commission of India v. Shivaji and Ors., [1988) I SCC
             277; and
        4.   Ram Phal Kundu v. Kamal Sharma, [2004] 2 SCC 759.

      Dr. Rajeev Dhawan, learned senior counsel appearing for the respondents D
before us who was the writ petitioner before the High Court, however,
supported the judgment of the High Court stating that the bar found in Article
329(b) of the Constitution is only in regard to the defects which are not of
substantial nature and not a bar to correct errors arising out of irregularities
and omissions which have no material bearing on the election or rights of E
parties. He placed strong reliance on the proviso to Rule 4 of the Conduct of
Elections Rules, 1961. He also submitted that the defects pointed out by the
Returning Officer were of a very trivial nature and from a complete reading
of the nomination papers filed in different fonns, it was clear that the first
respondent was a candidate proposed by the Telangana Rashtra Samithi and
in such circumstances an omission to fill up clauses 2 to 7 in Fonn B can F
never be treated as a fatal omission. He also contended that there being no
substantial defect and there being no other nomination paper filed on behalf
of that political party, the High Court was justified in rectifying that error of
the Returning Officer but for which his client would have suffered great
hardship and might have had to suffer a prolonged legal battle at a subsequent
stage. He also submitted that since the appellant herein was not a candidate G
claiming either as a nominee of the Telangana Rashtra Samithi or claiming
the official symbol of the said party he would not be in any manner prejudiced
by the order of the High Court which would only further the interest of
justice in facilitating the ongoing election process which is the main object
of Article 329 of the Constitution of India.                                      H
    210                      SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A         He also relied on certain passages found in Mohinder Singh Gill's case
    (supra) as also Ponnuswami's case (supra) to support his contention. Learned
    counsel also placed strong reliance on section 36 of the Representation of the
    People Act as also clause 30 of the Election Symbols (Reservation and
    Allotment) Order, 1968 to show that any error in Form B filed in regard to
B   the allotment of the symbol would not be a defect of substantial nature.
                                        ,.~·.'.,   .
           It is an admitted fact that ·so far as the Elections to Parliament from
    Constituency No.28 Nagarkumool (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
C   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 Telangana
    Rashtra _Samithi. His candidature has also been properly proposed and
D   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
E   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 ~
    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
F   election as an independent candidate thus giving room for a doubt whether
    really he was a candidate representing Telangana 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
G   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. From a reading of
    the various clauses o( Form B it .is clear that only that person whose name
    and other particulars are_ furnished in columns 2 to 4 in the said form, can
    be treated as a representative 0r a candidate proposed by the said political
H   party. As noticed by the Returning Officer we also see that except column
             MANDAJAGANATHv. K.S. RATHNAM [HEGDE,J.]                        211

   which mentions the name of the Constituency no other column which A
requires name of the approved candidate, name of father/mother/husband of
the approved candidate, postal address of the approved candidate has been
filled up to indicate that it is the first respondent who is the official candidate
of that party and entitled to the symbol. On the contrary these columns are
struck off as if this Form B was not given to any one. Clause 2 of the said
form requires a declaration to be made by the authorised person as to whom B
this Form Bis being given. Even in this column the name of the first respondent
is not mentioned. Clause 3 of the said form also requires a certificate that the
candidate whose name is mentioned above is a member of that political party
and his name is duly borne on the rolls of that party. None of these information
is provided in the said clause of Form B.                                           c
      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 J>arliament 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          E
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.

       The word 'election' has been judicially defined by various authorities       F
of this Court to mean any and every act taken by the competent authority
after the publication of the election notification.

      In Ponnuswami (supra) this Court held :

             "The law of elections in India does not contemplate that there         G
        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 Art. 226 of the Constitution (the ordinary
        jurisdiction of the Courts having been expressly excluded)" and another
        after they have been compl~ted by means of an election petition."
                                                                                    H
    212                     SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A         The above view of this Court in Ponnuswami 's case has been quoted
    with approval by the subsequent judgment in MS. Gill (supra) wherein this
    Court after quoting the passages from said judgment in Ponnuswami 's case
    held that there is a non-obstante clause in Article 329 and, therefore, Article
    226 stands pushed out where the dispute takes the form of calling in question
B   an election, except in special situations pointed out but left unexplored in
    Ponnuswami 's case. It is while considering the above unexpfored situations.
    in Ponnuswami (supra) in MS. Gi/l 's case (supra) this Court held thus :

                 "This dilemma does not arise in the wider view we take of Section
            IOO(l)(d)(iv) of the Act. Sri Rao's attack on the order impugned is
c           in substance based on alleged non-compliance with a provision of the
            Constitution viz:, Article 324 but is neatly covered by the widely-
            worded, residual catch-all clause of Section 100. Knowing the supreme
            significance of ,speedy elections in our system the framers of the
            Constitution haJe, by implication postponed all election disputes to
            election petitions and tribunals. In harmony with this scheme Section
D           I 00 of the Act has been designedly drafted to embrace all conceivable
            infirmities which may be urged. To make the project fool-proof Section
            IOO(l)(d)(iv) h~s been added to absolve everything left over. The
            Court has in earlier rulings pointed out that Section I 00 is exhaustive
            of all grievances regarding an election."

E         In the very same paragraph this Court, however, demarcated an area
    which is available for interference by the High Court and the same is explained
    as follows:

               "But what is banned is not anything whatsoever done or directed
           by the Commissioner but everything he does or directs in furtherance
F          of the election, not contrarywise. For example, after the President
           notifies the nation on the holding of elections under Section 15 and
           the Commissioner publishes the calendar for the poll under Section
           30, ifthe latter orders returning officers to accept only one nomination
           or only those which come from one party as distinguished from other
G          parties or independents, is that order immune from immediate attack.
           We think not. Because the Commissioner is preventing an election,
           not promoting it and the Court's review of that order will facilitate
           the flow, not stop the stream. Election, wide or narrow be its
           connotation, means choice from a possible plurality, monolithic politics
           not being our genius or reality, and if that concept is crippled by .the
H          Commissioner's act, he holds no election at all."                      '
             MANDA JAGANATH v. K.S. RATHNAM [HEGDE, J.]                    213

       Of course, what is stated by this Court herein above is not exhaustive     A
of a Returning Officer's possible erroneous actions which are amenable to
correction in the writ jurisdiction of the courts. But the fact remains such
errors should have the effect of interfering in the free flow of the scheduled
election or hinder the progress of the election which is the paramount
consideration. lfby an erroneous order conduct of the election is not hindered    B
then the courts under Article 226 of the Constitution should not interfere with
the orders of the Returning Officers remedy for which lies in an election
petition only.

       In Election Commission of India v. Shivaji (supra) this Court while
considering a challenge to the election notification which included certain       C
Zila Parishads within a notified constituency, held following the judgment in
Ponnuswami (supra) that even if there was any ground relating to the non-
compliance with the provisions of the Act and the Constitution on which the
validity of any election process could be questioned, the person interested in
questioning the election has to wait till the election is over and institute a
petition in accordance with Section 81 of the Act calling in question the         0
election of the successful candidate.

      Learned counsel for the writ petitioner before the High Court had relied
upon a judgment of this Court in S. T. Muthusami v. K. Natarajan and Ors.,
[1988] 1 SCC 572 wherein this Court had held following the judgment in
Ponnuswami's case (supra) that entertaining of a writ petition by the High        E
Court under Article 226 of the Constitution cannot be supported and
consequently it set aside the judgment of the Division Bench of the High
Court and dismissed the writ petition filed in the High Court. In that case the
question mvolved was a dispute between two candidates claiming the official
symbol of a political party. This judgment came to be distinguished by the        p ·.
High Court on the basis of facts though the law laid down there was squarely
applicable against the maintainability of the writ petition.

       Learned senior counsel for the respondent candidate contended that
case of the first respondent before the High Court came within the exceptions
noted by this Court in MS. Gill's case (supra) which permits filing of a writ     G
petition under Article 226 of the Constitution in certain exceptional c1ses. He
contended that the facts in this case also show that but for the intervention
of the High Court the progress in the election would have been stalled. Wi.th
due respect to learned counsel we do not agree with this argument because
by not allotting a symbol claimed by the first respondent the Returning Officer   H
    214                      SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A has not stalled or stopped the progress of the election. Said respondent has
    been treated as an independent candidate and he is pennitted to contest with
    a symbol assigned to him as an independent candidate, and consequently
    there is no question of stalling the election. His grievance as to such non-
    allotment of the symbol will have to be agita!ed in an ,election petition (if
B   need be) as held in S. T. Muthuswami (supra).

           Learned counselthen contended that non-allotment of a symbol which
    the first respondent was legally entitled to would not be a ground of challenge
    available to him in the election petition under section 100 of the Representation
    of the People Act, 1951 therefore the High Court is justified in entertaining
C   the petition. We do not think this argument of learned counsel is correct
    because as has been held by this Court in MS. Gill's case (supra) sub-clause
    4 of section IOO(l){d) of the Representation of tile People Act, 1951 is
    widely worded residual clause which this Court in the said judgment of MS.
    Gill case tenned as "catch all clause". It is further stated in the said judgment
    that the said section has been added to absolve everything left over and the
D   same is exhaustive of all grievances regarding an election, hence, in our
    opinion this argument of learned counsel for the first respondent should also
    fail.

          The next argument of learned counsel for the respondent is that as per
    the provisions of section 36 of the R.P. Act, Rule 4 of the Conduct of
E   Elections Rules, 1961 and Clause 30. of the Election Symbols (Reservation
    and Allotment) Order, 1968, the omissions found by the Returning Officer in
    Fonn B filed by the respondent herein are all curable irregularities and are
    not defects of substantial nature, calling for rejection of the nomination paper.
    We think these arguments based on the provisions of the statutes, Rules and
F   Orders are all arguments which can be addressed in a properly constituted
    election petition, if need be, and cannot be a ground for setting aside the
    order of the Returning Officer which is prima facie just and proper in our
    opinion.

          We are not recording any conclusive opinion \n regard to the applicability
G of the above statute, Rules and Orders because, as' stated above, it is a matter
    to be decided in an election petition. Suffice it to ~ay that the High Court on
    facts of this case, could not have interfered with the decision of the Returning
    Officer to reject Fonn B filed by the first respondent.

          For the reasons stated above, this appeal succeeds and the same is
H allowed, setting aside the impugned order of the High Court.
            MANDAJAGANATHv. K.S. RATHNAM [HEGDE, J.]                    215
      In view of the above decision of ours, we think nothing survives in the   A
Writ Petition No. 6653/2004 titled K.S. Rathnam and Anr. v. The Returning
Officer pending before the High Court, hence, we dismiss the same also.

R.P.                                                        Appeal allowed.