SHANKAR NANASAHEB KARPE Vs. RETURNING OFFICER KOLABA DISTRICT

JUDGEMENT

(1.) THIS is a petition for a writ under Article 223 of the Constitution against the Re. turning Officer of the Kolaba District, alleging that the Officer has wrongfully rejected the nomination paper of the petitioner for the ensuing election to the State Assembly, and for an order upon him directing him to include the petitioner's name in the list of valid nominations. The Advocate General who appears for the Returning Officer has taken a preliminary objection and the objection is that this Court has no jurisdiction to entertain this petition.

(2.) IN order to understand and appreciate the objection raised it is necessary, to look at the Representation of the People Act, 1951, which deals with elections to all the Legislatures in the Union of India. Under Section 17 notifications for elections to State Legislative Assemblies had to be issued by the Governor of the State, Under Section 20 Returning Officer for each constituency had to be appointed by the Election Commission in consultation with the Government of the State in which the constituency is situated. Section 30 lays down a time schedule for making nominations, scrutiny of nominations, withdrawal of candidatures and the dates on which the poll should take place. Section Section 3 lays down the requirements for a valid nomination. Section 86 deals with scrutiny of nominations, and Sub-section (2) provides that the Returning Officer shall examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion after each sum-may inquiry, if any, as he thinks necessary refuse any nomination on the various grounds which are set out in that Sub-section; and Sub-section (4) provides that the Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character; and Sub-section (6) provides that the Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same, and, if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection. Section 37 deals with withdrawal of candidature, and Section 38 deals with publication of nominations and it casts a duty upon the Returning Officer, immediately after the expiration of the period within which candidatures may be withdrawn under sub section (1) of Section 37, to prepare and publish a list of valid nominations in such manner as may be proscribed. Part VI deals with disputes regarding elections, and chap. III of that part deals with trial of election petitions, and Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of this Part. Section 84 lays down that a petitioner may claim any one of the following declarations : (a) that the election of the returned candidate is void ; (b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected ; (c) that the election is wholly void. Section 100 lays clown the grounds for declaring election to be void, and the material ground which we have to consider in this case is the ground set out in Sub-clause (c) which is that the result of the election has been materially affected by the improper acceptance or rejection of any nomination. If the Tribunal is of the opinion that any of the grounds set out in the section exists, then the Tribunal shall declare the election to be wholly void. The section also empowers the Tribunal to declare the election of the returned candidate to be void on the grounds set out in Sub-section (2 ). Section 105 makes the orders of the Tribunal final and conclusive ; and Section 170 ousts the jurisdiction of the civil Courts and provides that no civil Court shall have jurisdiction to question the legality to any action taken or of any decision given by the Returning Officer or by any other person appointed by this Act in connection with an election. Therefore, the scheme of the Act is to give a sort of finality to different stages of the election and to provide that all matters arising during the election and all disputes relating to the election should be determined and adjudicated upon after the election is over by means of an election petition to be decided by an Election Tribunal.

(3.) NOW, it is perfectly clear that Section 170 by itself would not oust the jurisdiction of this Court to issue writs under Article 226 of the Constitution. The right of this Court to issue writs is conferred upon it by the Constitution, and as long as the Constitution itself does not provide to the contrary and so long as Article 295 is not amended or altered, no legislation either of Parliament or of the State Legislature can affect the jurisdiction of this Court to issue writs under Article 226. Therefore, we must turn to the Constitution to see whether there is any provision there which prevents this Court from issuing a writ of mandamus if a proper case has been made out on this petition for the issue of a writ, Turning to the Constitution, matters in relation to election are dealt with in Part XV of the Constitution Article 324 provides for the appointment of an Election Commission in which are to be vested superintendence, direction and control of elections. Article 325 deals with the preparation of a general electoral roll for every territorial constituency. Article 326 deals with adult suffrage, and then we come to Article 327 which provides : "subject to the provisions of this Constitution Parliament may from time to time by law make provision with respect to all matters relating to or in connection with election to either HOUSE of Parliament or to the House or either House of the Legislature to a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. " and Article 328 confers similar power upon the Legislature of a State in so far as provision in that behalf hag not boon made by Parliament. Then we come to the last article in that chapter, Article 329, which provides that ''notwithstanding anything in this Constitution -- (and the material clause is Sub-clause (b), -- no election to either House of Parliament or to the Home 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. " therefore, the obvious object of enacting (Article 329 (b) was to exclude the jurisdiction of civil Courts with regard to matters enumerated in that Sub-clause, and the jurisdiction of Courts is excluded notwithstanding anything in the Constitution. Therefore, if the subject falls under Article 329 (b), then this the Court would have no jurisdiction to issue a writ under Article 226 with regard to that subject-matter, because Article 226 is controlled by Article 329, and to the extent that the Constituent Assembly has excluded the jurisdiction of Courts in election matters referred to in Article 329 (b), the power of the High Court to issue writs has been taken away. Undoubtedly, to the extent that Article 329 (b) ousts the jurisdiction of Courts it must be strictly construed. But in cons, truing it strictly we must not lose sight of the relationship that article has to the other articles that appear in the same chapter, viz. , Part XV of the Constitution. It is rather significant that although in Schedule VII, legislative competence was conferred upon Parliament by Entry 72 of List I with regard to elections and upon State Legislatures by Entry 37 of List II, Parliament though, it necessary expressly to confer legislative power upon Parliament and State Legislature with regard to elections in Articles 327 and 328. The reason for so doing is to find a place in the Constitution for a series of articles which deal with elections in all their aspects, and Part XV constitutes a self, contained Code dealing with election matters, Therefore, Arts, 327 and 328 leave it to Parliament and to State Legislature to legislative with respect to all matters relating to or in connection with elections, and then we come to Article 329 which excludes the jurisdiction of civil Courts.