Full Judgment Text
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PETITIONER:
S.T. MUTHUSAMI
Vs.
RESPONDENT:
K. NATARAJAN & ORS.
DATE OF JUDGMENT20/01/1988
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
SEN, A.P. (J)
CITATION:
1988 AIR 616 1988 SCR (2) 759
1988 SCC (1) 572 JT 1988 (1) 159
1988 SCALE (1)149
ACT:
Tamil Nadu Panchayats Act, 1958-Whether High Court
could interfere with an election process at an intermediate
stage after commencement of election process and before
declaration of result of election held for filling vacancy
in the office of Chairman of a Panchayat Union under
provisions-Thereof.
HEADNOTE:
%
The question for consideration in this case was whether
it was appropriate for the High Court to interfere with an
election process at an intermediate stage after its
commencement and before the declaration of the result of the
election held for filling up a vacancy in the office of the
Chairman of a Panchayat Union under the Tamil Nadu
Panchayats, Act, 1958 (The Act), on the ground that there
was an error in the matter of allotment of symbols to the
contesting candidates.
The appellant. the respondent No. 1, the respondent
No.6 and two others were nominated as candidates at the
election held to the office of the Chairman. Panchayat
Union, Madathukkulam. On scrutiny of the nomination papers,
the nomination papers of the appellant, respondents Nos. 1
and 6, and the two others were found to be laid by the
Returning officer. Under rule 17(1 ) of the Tamil Nadu
Panchayats (Conduct of Election of Chairman of Panchayat
Union Councils & Presidents and members of Panchayats) Rules
1978.(The Rules), the Returning officer was directed by the
State Government to assign to the candidates of the National
and State parties the symbols reserved by the Chief Election
Commissioner. The symbol reserved for the Indian National
Congress (I) was ’hand’. Under the procedure prescribed by
the Government, intimation was received by the Returning
officer showing the appellant as the candidate of the Indian
National Congress (I) under the signatures of the President
of the Tamil Nadu Congress (I) Committee on the 3rd
February, 1986. A similar letter was handed over by
respondent No. 6 on that date showing that he was also the
official candidate of the Indian National Congress (I)
Committee. That letter also appeared to have been signed by
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the President of the Tamil Nadu Congress (I) Committee.
Faced with two persons claiming to be the official
candidates of the same party, the Returning officer declined
to
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assign the symbol ’hand’ to either of the two. These two
candidates, i.e., the appellant and respondent No. 6, then
gave in writing their choice of symbols belonging to the
unreserved category. The Returning officer allotted the
symbol of ’glass tumbler’ to the appellant and the symbol
’fish’ to respondent No. 6. The Returning officer then
published the list of the candidates nominated with the
symbols allotted to each of the three candidates whose
nomination papers had been found to be valid. Immediately,
on publication of the said list, the President of the Tamil
Nadu Congress (I) Committee, who was alleged to have signed
the letters in favour of both the appellant and respondent
No. 6 as the official candidates, wrote to the respondent
No. 3, the Election Authority as well as the Secretary to
the Government, Rural Development Department, Government of
Tamil Nadu, on 4.2.86 stating that he had not given his
approval to respondent No. 6 being the official Congress (I)
candidate, and the authorised candidate of the Congress (I)
Party was the appellant. On receipt of the letter, the
respondent No. 3 sent a message to the Collector of
Coimbatore to treat the appellant as the official candidate
of the Indian National Congress (I) Party and to assign the
symbol ’hand’ to him. The Collector communicated this
message to the Returning officer on 6.2.86. The Returning
officer issued, in accordance with that direction, an Errata
Notification in Form IV assigning the symbol ’hand’ reserved
for the Indian National Congress (I) to the appellant on
that date itself and sent copies of the said Notification to
all the contesting candidates. This action of the Returning
officer was challenged by respondent No. I a validly
nominated candidate with ’bow and arrow’ as his symbol, by a
writ petition in the High Court, contending that the issuing
of the Errata Notification was an abuse of power on
extraneous and irrelevant considerations and there was undue
interference with the actual conduct of the election, and
praying that the Errata Notification dated 6.2.86 should be
quashed and the election, directed to be proceeded with in
accordance with the Notification issued on 3.2.86 under
which the ’glass tumbler’ symbol had been allotted to the
appellant. The High Court (Single Judge) dismissed the writ
petition holding that the petitioner respondent No. I could
not be considered as an aggrieved party and that the dispute
could be, if at all, between the appellant and respondent
No. 6. The respondent No. I filed an appeal before the High
Court. A Division Bench allowed the appeal, quashed the
Errata Notification issued by the Returning officer and
directed him to hold the election on the basis of the
symbols originally allotted, treating ’glass tumbler’ as the
symbol of the appellant, etc. Aggrieved by the order of the
Division Bench, the appellant filed this appeal by special
leave.
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Allowing the appeal, the Court,
^
HELD: The appellant contended that the Division Bench
was in error in setting aside the Errata Notification issued
by the Returning officer in exercise of its jurisdiction
under Article 226 of the Constitution of India before the
declaration of the result of the election in view of an
alternative remedy under the Rules framed under section
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178(2)(iii) of the Act, entitled "Decision of Election
Disputes Relating to Panchayat Union Councils". [766A-B]
Rule 5 of the Rules provided that subject to the
superintendence, direction and control of the Election
Authority the Returning officer should be responsible for
the proper conduct of the election under the Rules. The
instructions issued by the Election Authority to the
Returning officer regarding the allotment of the symbols
could not, therefore, be construed as interference with the
election process by an authority unconnected with the
process of election. Even if there was any mistake committed
by either the Election Authority or the Returning officer in
the allotment of symbol to the appellant the said mistake
could not amount to a non-compliance with the provisions of
the Act or the Rules made thereunder. It was clear from
clause (c) of rule II of the Rules made for the purpose of
providing a machinery for the decision of the election
disputes relating to panchayat union councils that every
action amounting to such non-compliance with the provisions
of the Act and the Rules made thereunder would not
automatically vitiate an election. It was only when the
election court on a consideration of the entire material
placed before it at the trial of an election petition came
to the conclusion that the result of the election had been
materially affected by such non-compliance with any of the
provisions of the Act or the Rules made thereunder the
election of the returned candidate could be declared void.
Rule I of the said Rules provided that an election held
under the Act whether of a member or Chairman or Vice-
Chairman of a Panchayat Union Council could be called in
question only by an election petition and not otherwise, but
the rule could not have the effect of overriding the powers
of the High Court under Article 226 of the Constitution of
India [767H:768A-F]
In N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency and Ors., 11952] S.C.R. 213 (decided by the
Full Court) this court first laid down as a matter of
general principle that interference with an election process
between the commencement of such process and the stage of
declaration of the result by a court would not ordinarily be
proper, and next laid down that Article 329 (b) of the
Constitution
762
had the effect of taking away the jurisdiction under Article
226 of the Constitution also in respect of the dispute
arising out of election during the said period. The view of
this Court in the above case laid down a salutary principle.
[770A-B]
Taking into consideration all the aspects of the
present case. including the fact that the person who filed
the writ petition before the High Court was not one of the
candidates nominated by the Indian National Congress (I) and
the fact the President of the Tamil Nadu Congress (I)
Committee had written that he had authorised the appellant
to contest as the candidate on behalf of his party and had
not given his approval to respondent No. 6 contesting as a
candidate on behalf of his party, the exercise of the
jurisdiction by the High Court under Article 226 of the
Constitution in this case could not be supported. The
parties who were aggrieved by the result of the election
could question the validity of the election by an election
petition which was an effective alternative remedy. [775D-F]
The Division Bench of the High Court committed a
serious error in issuing a writ under Article 226 of the
Constitution quashing the Errata Notification allotting the
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symbol ’hand’ to the appellant. Judgment of the Division
Bench was set aside writ petition filed in the High Court
was dismissed and the Returning officer was directed to
proceed with the election in accordance with law from the
stage at which it was interrupted by the order of the High
Court. [775G-H]
N. P. Ponnuswami v. Returning officer, Namakkal
Constituency and Ors., [1952] S.C.R. 213; Nanhoo Mal & Ors.
v. Hira Mal & Ors., [1976]1 S.C.R. 809; Malam Singh v. The
Collector, Sehore, M.P. & Ors., A.I.R, 1971 M .P. 195,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No 1722 of
1986.
From the Judgment and order dated 8 4 ]986 of the
Madras High Court in W A. No. 173 of 1986.
T.S Krishnamurthy Iyer, M.N. Krishnamani and V.
Balachandran for the Appellant.
Kailash Vasudev for the Respondents.
The Judgment of the Court was delivered by
763
VENKATARAMIAH, J. The question for consideration in
this case is whether it is appropriate for the High Court to
interfere with an election process at an intermediate stage
after the commencement of the election process and before
the declaration of the result of the election held for the
purpose of filling a vacancy in the office of the Chairman
of a Panchayat Union under the provisions of the Tamil Nadu
Panchayats Act, 1958 (Act XXXV of 1958) (hereinafter
referred to as ’the Act’) on the ground that there was an
error in the matter of allotment of symbols to the
candidates contesting at such election.
The appellant - S.T. Muthusami, respondent No. 1-K.
Natarajan, respondent No. 6-M. Thangavelu and two others
were nominated as candidates at the election held to the
office of the Chairman, Panchayat Union, Madathukkulam,
Udamalpet Taluk, Coimbatore District in the State of Tamil
Nadu. The date of scrutiny of the nomination papers was 31st
January, 1986 and the last date for withdrawal of
nominations was 3rd February, 1986. The election was to take
place on the 23rd February, 1986. On the date of the
scrutiny of the nomination papers, the nomination papers of
the appellant, respondent No. 1. respondent No. 6 and of two
others were found to be valid by the Returning officer,
respondent No. 5. As regards the allotment of symbols to the
candidates the order made by the State Government on
8.1.1986 in exercise of the powers under rule 17(1) of the
Tamil Nadu Panchayats (Conduct of Election of Chairmen of
Panchayat Union Councils and Presidents and members of
Panchayats) Rules, 1978 (hereinafter referred to as ’the
Rules’) directed that the Returning officer shall assign to
the candidates set up by the National and the State parties
the symbols reserved for the purpose by the Chief Election
Commissioner. The symbol reserved for the Indian National
Congress (I) was ’hand’. Similarly the symbols were also
reserved for the All India Anna Dravida Munnetra Kazhagam
and Dravida Munnetra Kazhagam. 15 other symbols were also
notified by the Returning officer which could be assigned to
the independent candidates contesting the elections. Under
the procedure prescribed by the Government where a candidate
was set up by a national party who could claim the symbol
which was reserved for such national party, the said
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national party had to send an intimation to the State
Election Authority, namely, the Director of the Rural
Development, Madras (respondent No. 3) intimating in Form
’A’ annexed to the order of the Government the names and the
specimen signatures of not more than two representatives of
the party who had been authorised to send intimations of the
names of the candidates set up by the party in respect of
the election to the office of the Chairmen of the Panchayat
Union
764
Councils and the Presidents of Town Panchayats. These
representatives of the parties, whose names were intimated
to the Director of the Rural Development were then either
singly or generally required to intimate the names of the
persons, whom the party concerned had authorised to contest
as its official candidates in order of priority in Form ’B’
annexed to the Government order. If the support to a
candidate was withdrawn an intimation was required to be
sent to the Returning officer not later than 3.00 P.M. On
the last date fixed for withdrawal of the nomination papers.
If no intimation was received before 3.00 PM. On the last
date fixed for withdrawal the Returning officer was directed
not to consider any candidate as a candidate set up by the
political party and not to assign the symbol for which the
priority was given to the concerned party. This order also
stated that symbols should be assigned only by drawing lots
when there were conflicting claims between two or more
candidates and that no priority could be given to any
candidate. In the case before us intimation was received by
the Returning officer showing the appellant as the official
candidate of Indian National Congress (I) under the
signature of the President of the Tamil Nadu Congress (I)
Committee by 12.00 noon on the 3rd of February, 1986. A
similar letter was handed over by respondent No. 6 at 12.45
P.M. On that date showing that he was also the official
candidate of the Indian National Congress (I). That letter
also appeared to have been signed by the President of the
Tamil Nadu Congress (I) Committee. Having found that two
persons were claiming to be the official candidates of the
same party, the Returning officer declined to grant the
symbol ’hand’ to any one of them. These two candidates,
i.e., the appellant and respondent No. 6 then gave in
writing their choice of symbols belonging to the unreserved
category giving three alternative choices. Accepting the
first choice of each of them, the Returning officer allotted
at 4.30 P.M. On 3.2.1986 the symbol ’glass tumbler’ to the
appellant and the symbol ’fish’ to respondent No. 6. The
Returning officer then proceeded to publish the list of the
candidates nominated as per rule 17(2) of the Rules with the
symbols allotted to each of the three candidates, whose
nomination papers had been found to be valid. Immediately
after the publication of the said list of the nominated
candidates, the President of the Tamil Nadu Congress (I)
Committee who was alleged to have signed both the letters
given to the Returning officer representing that the
appellant and respondent No. 6 were both official candidates
wrote to the Director of The Rural Development Department,
respondent No.3, who was the Election Authority as well as
the Secretary to the Government, Rural Development
Department, Government of Tamil Nadu on 4.2.1986 stating
that he had not given his approval to respondent
765
No. 6 being an official Congress (I) candidate and that the
authorised candidate of the Congress (I) Party was the
appellant, S.T. Muthusami. On receipt of the said letter
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respondent No. 3-the Director of the Rural Development
Department, the Election Authority sent a telex message to
the Collector of Coimbatore to treat the appellant as the
official candidate of the Indian National Congress (I) Party
and to assign the symbol ’hand’ to him. The Collector
communicated this message to the Returning officer by
sending telex message on 6.2.1986. In accordance with that
direction the Returning officer issued an Errata
Notification in Form VI assigning of the symbol ’hand’ which
had been reserved for the Indian National Congress (I) to
the appellant on that date itself and the copies of the said
Errata Notification were sent by him to all the contesting
candidates through special messengers. This action of the
Returning officer was challenged by respondent No. 1-K.
Natarajan, who was a validly nominated candidate with ’bow
and arrow’ as his symbol by filing a petition in Writ
Petition No. 1178 of 1986 on the file of the High Court of
Madras under Article 226 of the Constitution of India
contending that the issuing of the Errata Notification was
an abuse of power committed on extraneous and irrelevant
considerations and there was undue interference with the
actual conduct of the election. He prayed before the High
Court that the Errata Notification dated 6.2.1986 should be
quashed and the election should be directed to be proceeded
with in accordance with the notification issued on 3.2.1986
under which the ’glass tumbler’ symbol had been allotted to
the appellant. The above Writ Petition came up for
consideration before the learned Single Judge of the High
Court on 17.2.1986. The learned Single Judge dismissed the
Writ Petition holding that respondent No. 1-K. Natarajan,
who had filed the Writ Petition, could not be considered as
an aggrieved party since he did not claim to be the
candidate sponsored by the Indian National Congress (I) and
that the dispute could be, if at all, between the appellant
and respondent No. 6. Aggrieved by the order of the learned
Single Judge, respondent No. 1 filed an appeal in Writ
Appeal No. 173 of 1986 before the High Court of Madras. The
said appeal was heard by a Division Bench and it was allowed
on 8.4.1986. The Division Bench quashed the Errata
Notification issued by the Returning officer and directed
him to hold the election on the basis of the symbols
originally allotted, treating ’glass tumbler’ as the symbol
of the appellant and ’fish’ as the symbol of respondent No.
6. The Returning officer was further directed to proceed
immediately with the election process from that stage as
provided by the Rules. Aggrieved by the order of the
Division Bench, the appellant has filed this appeal by
special leave.
766
In this appeal there is no dispute about the tacts
which have been set out above. The point urged by the
appellant before us is that the Division Bench was in error
in setting aside the Errata Notification issued by the
Returning officer in exercise of its jurisdiction under
Article 226 of the Constitution of India before the
declaration of the result of the election in view of the
existence of an alternative remedy under the Rules framed
under section 178(2)(ii) of the Act entitled Decision of
Election Disputes Relating to Panchayat Union Councils’ have
provided a machinery for the settlement of the election
disputes relating to Panchayat Union Councils. The relevant
parts of rule ] and rule 11 of the said Rules read thus:
"I(1) Save as otherwise provided, no election
held under the T.N Panchayats Act, 1958 whether of
a member, chairman or vice-chairman of a panchayat
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union council shall be called in question except
by an election petition presented in accordance
with these rules to an election court as defined
in sub-rule (2) by any candidate or elector
against the candidate who has been declared to
have been duly elected (hereinafter called the
returned candidate) .
(2) The election court shall be-
(i) except in cases falling under clause (ii)
in the case of districts other than the Nilgiris,
the District Munsif having territorial
jurisdiction over the place in which the office of
the panchayat union council is situated, or if
there is more than one such District Munsif,
elections governed would and in the case of
Nilgiris district the Subordinate Judge,
Ootacamund: and
(ii) where the Government so direct, whether
in respect of panchayat union councils generally
or in respect of any class of panchayat union
councils or in respect of panchayat union councils
in the same district or taluk, such (’ officer or
officers of Government as may be designated by the
Government in this behalf by name or by virtue of
office:
Provided that an election petition may, on
application, be transferred-
767
(a) if presented to a District Munsif under
clause (i), by the District Judge concerned to
another District Munsif within his jurisdiction;
and
(b) if presented to an officer of Government
under clause (ii), by the Government to another
officer of Government:
Provided further that where an election
petition is transferred to any authority under the
foregoing proviso, such authority shall be deemed
to be the election court.
..................................................
11.-If in the opinion of the election court-
..................................................
(c) the result of the election has been
materially affected by any irregularity in respect
of a nomination paper or by the improper reception
or refusal of a nomination paper or vote or by any
non-compliance with the provisions of the Act or
the rules made thereunder, the election of such
returned candidate shall be void.
................................................
The Government order No 1677 L.A. dated 8. 10. 1960
provides that for all the purposes of the Act, the District
Collector and the Division Development officer in respect of
panchayat constituted under the said Act under the area
within their respective jurisdiction, the District Collector
in respect of every panchayat union council constituted
under the Act in the District under his charge and the
Additional Development Commissioner, Madras in respect of
every said panchayat union council under the said Act shall
be the election authorities. The expression ’election
authority’ is defined by section 2(9) of the Act as such
authority? not being the president or vice president or a
member of the panchayat or the chairman or vice chairman or
a member of the panchayat union council as may be
prescribed. Rule 5 of the Rules provides that subject to the
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superintendence, direction and control of the election
authority the Returning officer shall be responsible for the
proper conduct of the election
768
under the rules. Instructions issued by the Election
Authority to the Returning officer regarding the allotment
of the symbols cannot, therefore, be construed as
interference with the election process by an authority
unconnected with the process of election. Even if there is
any mistake committed by either the election authority or
the Returning officer in the allotment of symbol to the
appellant the said mistake can only amount to a non-
compliance with the provisions of the Act or the Rules made
thereunder. It is clear from clause (c) of rule 11 of the
Rules made for the purpose of providing a machinery for the
decision of election disputes relating to panchayat union
councils that every action amounting to such non-compliance
with the provisions of the Act and the Rules made thereunder
would not automatically vitiate an election. It is only when
the election court on a consideration of the entire material
placed before it at the trial of an election petition comes
to the conclusion that the result of the election has been
materially affected by such non-compliance with any of the
provisions of the Act or the Rules made thereunder the
election of the returned candidate can be declared void.
Rule 1 of the said Rules provides that an election held
under the Act whether of a member or chairman or vice-
chairman of a panchayat union council can be called in
question only by an election petition and not otherwise. In
these circumstances it has to be seen whether the Division
Bench of the High Court was justified in setting aside the
Errata Notification issued by the Returning officer with
regard to the allotment of symbols.
It is no doubt true that rule (1) of the Rules made for
the settlement of election disputes which provides that an
election can be questioned only by an election petition
cannot have the effect of overriding the powers of the High
Court under Article 226 of the Constitution of India. It
may, however, be taken into consideration in determining
whether it would be appropriate for the High Court to
exercise its powers under Article 226 of the Constitution of
India in a case of this nature.
In N.P. Ponnuswami v. Returning officer, Namakkal
Constituency and others, [1952] S.C.R. 218 dealing with the
question whether a writ petition was a proper remedy which
can be availed of by (, a person aggrieved by any
irregularity in the conduct of an election before the result
of the election is declared, Fazal Ali, J. On a
consideration of the nature of litigation in respect of
elections observed thus at page 234:
"The conclusions which I have arrived at may
be summed up briefly as follows:
769
(1) Having regard to the important functions
which the legislatures have to perform in
democratic countries, it has always been
recognized to be a matter of first importance that
elections should be concluded as early as possible
according to time schedule and all controversial
matters and all disputes arising out of elections
should be postponed till after the elections are
over, so that the election proceedings may not be
unduly retarded or protracted.
(2) In conformity with this principle, the
scheme of the election law in this country as well
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as in England is that no significance should be
attached to anything which does not affect the
’election’; and if any irregularities are
committed while it is in progress and they belong
to the category or class which, under the law by
which elections are governed would have the effect
of vitiating the ’election’ and enable the person
affected to call it in question, they should be
brought up before a special tribunal by means of
an election petition and not be made the subject
of a dispute before any court while the election
is in progress."
Having laid down the above principles, the Court
further held that Article 329(b) of the Constitution of
India had the effect of ousting the jurisdiction of the
courts with regard to the matters arising between the
commencement of the polling and the final selection.
Repelling the argument that Article 329(b) of the
Constitution ousted the jurisdiction of the courts only with
regard to matters arising between the commencement of the
polling and the final selection and that questions relating
to nominations could be agitated under Article 226 of the
Constitution this Court observed thus:
"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
770
329 covers all ’electoral matters."’
lt is thus seen that in the above decision (which was
rendered by the Full Court) this Court first laid down as a
matter of general principle that interference with an
election process between the commencement of such process
and the stage of declaration of result by a court would not
ordinarily be proper and next laid down that Article 329(b)
of the Constitution had the effect of taking away the
jurisdiction under Article 226 of the Constitution also in
respect of the disputes arising out of election during the
said period.
Following the above decision in N. P. Ponnuswami’s case
(supra) in Nanhoo Mal & Ors. v. Hira Mal & Ors., [1976] 1
S.C R. 809 this Court held that the right to vote or stand
for election to the office of the President of a Municipal
Board is a creature of the statute, that is the U.P.
Municipalities Act and it must be subject to the limitations
imposed by it. Accordingly, this Court held that the
election to the office of the President of the Municipal
Board could be challenged only according to the procedure
prescribed by that Act and that is by means of an election
petition presented in accordance with the provisions of that
Act and in no other way. The Court further held that the
said Act provided only for one remedy, that remedy being an
election petition to be presented after the election was
over and there was no remedy provided at any intermediate
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stage. Referring to the decision in N.P. Ponnuswami’s case
(supra) this Court observed in the above decision at page
814 thus:
"These conclusions follow from the decision
of this Court in Ponnuswami’s case (supra) in its
application to the facts of this case. But the
conclusions above stated were arrived at without
taking the provisions of Article 329 into account.
The provisions of Article 329 are relevant only to
the extent that even the remedy under Article 226
of the Constitution is barred as a result of the
provisions. But once the legal effect above set
forth of the provision of law which we are
concerned with is taken into account there is no
room for the High Courts to interfere in exercise
of their powers under Article 226 of the
Constitution. Whether there can be any
extraordinary circumstances in which the High
Courts could exercise their power under Article
226 of the Constitution in relation to elections
it is not now necessary to consider. All the
considerations applied in coming to the conclusion
that elections to the legislatures
771
should not be delayed or protracted by the
interference of A Courts at any intermediate stage
before the results of the election are over
applied with equal force to elections to local
bodies."
In the above passage this Court clarified that the
conclusions in N.P. Ponnuswami’s case (supra) had been
arrived without taking the provisions of Article 329 of the
Constitution into account and that the provisions of Article
329 of the Constitution were relevant only to the extent
that even the remedy under Article 226 of the Constitution
was barred as a result of the provisions. Earlier in the
course of the decision in Nanhoo Mal ’s case (supra) this
Court observed at page 811:
"After the decision of this Court in N P.
Ponnuswami v. Returning officer, Namakkal
Constituency & Ors. there is hardly any room for
Courts to entertain applications under Article 226
of the Constitution in matters relating to
elections.
A Full Bench of the High Court of Madhya Pradesh
expressed the same view in the year 1971 earlier in Malam
Singh v. The Collector, Sehore, M.P. and others, AIR 1971 MP
195. In the above decision the High Court of Madhya Pradesh
was called upon to consider the controversial question
whether it was proper that the High Court should exercise
its powers under Article 226 of the Constitution in election
matters arising under the Madhya Pradesh Panchayats Act,
1962 at intermediate stages, that is, to interfere with
individual orders passed during the process of election and
thus impede that process or should it decline to exercise
that power and leave the parties to their remedy of an
election petition to be presented after the election was
over. The provision that fell for consideration before the
Full Bench of the Madhya Pradesh High Court in that case was
section 375(1) of the Madhya Pradesh Panchayats Act, 1962,
the language of which was identically the same as that of
section 80 of the Representation of the People Act, 1951. It
was pointed out that the Court in N.P. Ponnuswami’s case
(supra), having regard to the words ’Notwithstanding
anything in this Constitution’ used in Article 329(b) held
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that they G were sufficient to exclude jurisdiction of the
High Court to deal with any matter which may arise while the
elections are in progress Nevertheless, the decision of the
Court in N.P. Ponnuswami’s case (supra) did not entirely
turn on the language of Article 329(b) of the Constitution
but the Court also enunciated certain well-settled
principles applicable to election cases in general. In
particular, the Court H
772
interpreted section 80 of the Representation of the People
Act, 1951. The Full Bench observed that though it was not
concerned with Article 329(b) of the Constitution, it was
bound by the principles laid down in N.P. Ponnuswami’s case
(supra). In delivering the judgment of the Full Bench, one
of us (Sen, J.) observed:
"9. First of all, their Lordships rejected
the contention that the post-election remedy of an
election petition was inadequate to afford the
relief which the petitioner sought. On the
strength of the observations of Wallace, J., in
Sarvothama Rao v. Chairman, Municipal Council,
Saidapet, ILR 47 Mad 585 AIR 1923 Mad 475, it was
urged before them that to drive him to that remedy
would be an anomaly, which their Lordships more
appropriately described as hardship or prejudice.
It was further urged that the Court could not
stultify itself by allowing the wrong which it was
asked to prevent to be actually consummated. While
rejecting the contention, their Lordships noticed
with approval the following observations of
Wallace, J. in Desi Chettiar v. Chinnasami
Chettair, AIR 1928Mad 1271:
The petitioner is not without his
remedy. His remedy lies in an election
petition which we under stand he has already
put in. It is argued for him that remedy
which merely allows him to have set aside an
election once held is not an efficacious as
the one which would enable him to stop the
election altogether and certain observations
at page 600 of ILR 47 Mad 585 (AIR 1923 Mad
475) (supra), are quoted. In the first place,
we do not see how the mere fact that the
petitioner cannot get the election stopped,
and has his remedy only after it is over by
an election petition, will in itself confer
on him any right to obtain a writ. In the
second place, these observations were
directed to the consideration of the
propriety of an injunction in a civil suit, a
matter with which we are not here concerned.
And finally, it may be observed that these
remarks were made some years ago when the
practice of individuals coming forward to
stop elections in order that their own
individual interest may be safeguarded was
not so common. It is clear that there is
another side of the question to be
considered, namely, the inconvenience to the
public
773
administration of having elections and the
business of A Local Boards held up while
individuals prosecute their individual
grievances.
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These observations of Wallace, J. were made
in regard to elections to Local Boards. It thus
follows that the alternative remedy of an election
petition is not less convenient beneficial and
effectual."
It was then observed:
"Next, their Lordships re-stated the
principle that the right to vote or stand as a
candidate for election is not a civil right but is
a creature of statute or special law and must be
subject to the limitations imposed by it. Their
Lordships relied on the dictum of Willes, J.,
which has become classical:
It is now well-recognised 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. This rule was stated with
great clarity by Willes, J., in Wolverhampton
New Water Works Co. v. Hawkesford, [1859] 6
CB (NS) 336, at p. 356, in the following
passage: E
There are three classes of cases in
which a liability may be established founded
upon statute. One is, where there was a
liability existing at common law, and that
liability is affirmed by a statute which
gives a special and a peculiar form of remedy
different from F the remedy which existed at
common law; there, unless the statute
contains words which expressly or by
necessary implication exclude the common law
remedy, the party suing has his election to
pursue either that or the statutory remedy.
The second class of cases is, where the
statute gives the right to sue merely, but
provides no particular form of remedy; there,
the party can only proceed by action at
common law. But there is a third class, viz.,
where a liability not existing at common law
is created by a statute which at the same
time gives a special and particular remedy
for enforcing it ...... The
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remedy provided by the statute must be
followed, and A it is not competent to the
party to pursue the course applicable to
cases of the second class. The form given by
the statute must be adopted and adhered to
The rule laid down by this passage was
approved by the House of Lords in Neville v.
London Express News paper Ltd., i 1919] AC 368,
and has been reaffirmed by the Privy Council in
Attorney General of Trinidad and Tobago v. Gordon
Grant & Co., 119351 AC 532 and Secy. Of State v.
Mask & Co., 44 Cal. WN 709 AIR 1940 PC 105, and it
has also been held to be equally applicable to
enforcement of rights (see Hurdutrai v. Off.
Assignee of Calcutta, [1948] 52 Cal WN 343 at p.
349.
Further it was observed:
"Lastly, their Lordships stated that the law
of election in this country does not contemplate
that there should be two attacks on matters
connected with election proceedings, in the
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following passage:
In my opinion, to affirm such a position
would be contrary to the scheme of .. 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 be
fore 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."
In the ultimate analysis, the Full Bench laid down:
" 12. There is no constitutional bar to the
excise of writ jurisdiction in respect of
elections to Local Bodies such as, Municipalities,
Panchayats and the like. However, as it is
desirable to resolve election disputes speedily
through the machinery of election petitions, the
Court in the exer-
775
cise of its discretion should always decline to
invoke its writ jurisdiction in an election
dispute, if the alternative remedy of an election
petition is available. So, their Lordships of the
Supreme Court in Sangram Singh v. Election
Tribunal, Kotah, AIR 1955 SC 425 stated:
.... though no legislature can impose
limitations on these constitutional powers it is a
sound exercise of discretion to bear in mind the
policy of the legislature to have disputes about
these special rights decided as speedily as may
be. Therefore, writ petitions should not be
lightly entertained in this class of cases."
We are inclined to accept this view which lays down a
salutary principle.
The Division Bench of the High Court against whose
decision the present appeal by special leave is filed was of
the view that the issuing of the Errata Notification by the
Returning officer amounted a very serious breach and
interference under Article 226 of the Constitution of India
was called for. Taking into consideration all the aspects of
the present case including the fact that the person who
filed the writ petition before the High Court was not one of
the candidates nominated by the Indian National Congress (I)
and the fact that the President of the Tamil Nadu Congress
(I) Committee had written that he had authorised the
appellant to contest as the candidate on behalf of his party
and he had not given his approval to respondent No 6
contesting as a candidate on behalf of his party, we feel
that the exercise of the jurisdiction by the High Court in
this case under Article 226 of the Constitution cannot be
supported. The parties who are aggrieved by the result of
the election can question the validity of election by an
election petition which is an effective alternative remedy.
We are of the view that the Division Bench of the High
Court committed a serious error in issuing a writ under
Article 226 of the Constitution quashing the Errata
Notification allotting the symbol ’hand’ to the appellant by
its judgment under appeal. We, therefore, set aside the
judgment of the Division Bench of the High Court and dismiss
the writ petition filed in the High Court. The Returning
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officer shall proceed with the election in accordance with
law from the stage at which it was interrupted by the order
of the High Court. The appeal is accordingly allowed. No
costs.
S.L. Appeal allowed.
776