Decided on June 01,1983



B.C.Ray, J. - (1.) The subject-matter of challenge in this writ application is the validity of the rejection of the nomination paper filed by the petitioner by the Returning Officer by the purported order dated 13th May 1983, on the ground that the nomination paper was illegally rejected in utter violation if the provisions of Section 33, Representation of the People Act, 1951. It has also been prayed for in the petition that a writ of mandamus should be issued commanding the respondents to show cause as to why the bye-election should not be allowed to be held and pending disposal of the Rule interim order to that effect should not be made.
(2.) It has been urged by the learned counsel Mr. Dutta Majumdar that though there is a provision for filing election petition under Section 80, Representation of the People Act, 1951, still then this Court is not powerless to interfere in an appropriate case like the present one by issuance of appropriate writ and interim order. It has been further contended in this connection by Mr Dulta Majumdar that at least an interim order should be made directing the Election Commissioner not to publish the result of the election even if the bye-election is allowed to be held. Mr. Dutta Majumdar further submitted referring to Article 329 (b) of the Constitution that it does not create any embargo on the part of this court to exercise its writ jurisdiction under Article 226 of the Constitution.
(3.) Mr. Advocate General has, on the other hand, joined issue and drew the attention of this court to the provisions of Article 329 Clause (b) of the Constitution which provides that election to either House of Parliament or to the State Legislature shall not 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. Mr. Acharya, learned Advocate General, in support of his submission has further submitted that the word 'election' as used in the said Arti-cle of the Constitution does not mean or contemplate the actual holding of election but it includes the entire election process after the scrutiny of the nomination papers and publication of the names of the candidates till the completion of election by holding election. In support of his submission the learned Advocate General has cited some decisions at the Bar. It has been submitted that as the election process has already started and the election is going to be held on coming Sunday, 5th June, 1983, this application should not be entertained. The petitioner has his relief or other appropriate relief by taking recourse to election petition as envisaged in Section 80, of the Representation of the People Act, 1951.;

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