* THE HON'BLE SRI JUSTICE B KRISHNA MOHAN

+ WRIT PETITION No.10137 of 2024

% 29.04.2024

Between:

# Hanumantha Rao Desaisetty,

S/o. Ganapathi Rao Desaisetty,

Age:66 years, Occ: Advocate,

R/o. Door No.23-2-29, Ramesh

Reddy Nagar, Nellore-524003,

SPSR Nellore District,

Andhra Pradesh.

…Petitioner

Versus

$ The Election Commission of India, Rep. by its

Chief Election Officer, Nirvachan Sadan, Ashoka

Road, New Delhi-110001 and 6 others.

...Respondents

! Counsel for the petitioner : Aishwarya Nagula

^ Counsel for the respondents: 1. D.S.Siva Darshan for the

Respondent Nos.1, 2, 5 and 6.

2. GP for General Administration.

3. D. Srinivas, Senior Counsel

<Gist:

>Head Note:

? Cases referred:

1. (1952) 1 SCC 94

2. (1978)1 SCC 405

3. (2004) 2 SCC 759

4. (2023) 6 SCC 161

5. (2014) 14 SCC 189

6. W.P.No.31864 of 2023

7. W.P.No.7040 of 2009

2

* THE HON'BLE SRI JUSTICE B KRISHNA MOHAN

+ WRIT PETITION No.10137 of 2024

Between:

# Hanumantha Rao Desaisetty,

S/o. Ganapathi Rao Desaisetty,

Age:66 years, Occ: Advocate,

R/o. Door No.23-2-29, Ramesh

Reddy Nagar, Nellore-524003,

SPSR Nellore District,

Andhra Pradesh.

…Petitioner

Versus

$ The Election Commission of India, Rep. by its

Chief Election Officer, Nirvachan Sadan, Ashoka

Road, New Delhi-110001 and 6 others.

….Respondents

DATE OF ORDER PRONOUNCED 29.04.2024.

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE B KRISHNA MOHAN

1. Whether Reporters of Local newspapers may

be allowed to see the Order? Yes/No

2. Whether the copies of order may be marked

to Law Reporters/Journals? Yes/No

3. Whether Your Lordships wish to see the fair

Copy of the Order? Yes/No

_________________________

JUSTICE B KRISHNA MOHAN

APHC010203772024

IN THE HIGH COURT OF ANDHRA PRADESH

(Special Original Jurisdiction)

MONDAY ,THE TWENTY NINETH DAY OF APRIL

TWO THOUSAND AND TWENTY FOUR

THE HONOURABLE SRI JUSTICE B KRISHNA MOHAN

WRIT PETITION NO:

Between:

Hanumantha Rao Desaisetty,

The Election Commission Of India and Others

Counsel for the Petitioner:

1.

AISHWARYA NAGULA

Counsel for the Respondent(S):

1.

2.

GP FOR GENERAL ADMINISTRATION

The Court made the following Order:

Heard the learned Senior Counsel for the petitioner, the learned Senior

Counsel for the respondent Nos.1 to 6 and the learned Senior Counsel for the

respondent No.7.

2. This Writ Petition is filed questioning the action of the

in not rejecting the nomination of the 7

Assembly Constituency in the ensuing 2024 Legislative Assembly Elections,

3

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

MONDAY ,THE TWENTY NINETH DAY OF APRIL

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE B KRISHNA MOHAN

WRIT PETITION NO: 10137/2024

Hanumantha Rao Desaisetty,

...PETITIONER

AND

The Election Commission Of India and Others

...RESPONDENT(S)

Counsel for the Petitioner:

AISHWARYA NAGULA

Counsel for the Respondent(S):

GP FOR GENERAL ADMINISTRATION

made the following Order:

Heard the learned Senior Counsel for the petitioner, the learned Senior

Counsel for the respondent Nos.1 to 6 and the learned Senior Counsel for the

This Writ Petition is filed questioning the action of the respondent No.6

in not rejecting the nomination of the 7

th

respondent to the 117-Nellore City

Constituency in the ensuing 2024 Legislative Assembly Elections,

IN THE HIGH COURT OF ANDHRA PRADESH

[3233]

THE HONOURABLE SRI JUSTICE B KRISHNA MOHAN

...PETITIONER

...RESPONDENT(S)

Heard the learned Senior Counsel for the petitioner, the learned Senior

Counsel for the respondent Nos.1 to 6 and the learned Senior Counsel for the

respondent No.6

Nellore City

Constituency in the ensuing 2024 Legislative Assembly Elections,

4

for not furnishing the details of his second wife Smt. Ponguru Indira and her

properties in Form-26 filed along with his nomination on the ground of

suppression and misrepresentation of the material facts, pursuant to the

Objection Petition filed by the petitioner dated 26.04.2024 along with the

supporting documents and overruling the objections raised by the petitioner

vide order dated 26.04.2024 in Rc.A.54/2024/RO.

3. The learned Senior Counsel for the petitioner submits that the 7

th

respondent submitted Form-26 affidavit to be filed by the candidate along with

the nomination paper before the Returning Officer for Election to Andhra

Pradesh Legislative Assembly 2024 from 117-Nellore City Assembly

Constituency. In the column of the “name of the spouse” he only mentioned

the first wife’s name Smt. Ponguru Ramadevi with PAN.No.ACSPP8838K, but

he did not mention about his second wife and her assets in the list of

particulars to be furnished in the said Form-26. In the lease deed dated

28.06.2008 it was clearly mentioned about the other wife of the 7

th

respondent

as Ponguru Indira husband of Ponguru Narayana. The sale deed dated

30.10.2000 also stands in her name. The rectification deed dated 13.10.2022

also stands in her name. Thus some of the properties are also standing in her

name who is said to be the second wife of the 7

th

respondent.

4. The Section 33-A of the Representation of the People Act, 1951 reads

as under:-

33A. Right to information:- (1) A candidate shall, apart from

any information which he is required to furnish, under this

5

Act or the rules made there under, in his nomination paper

delivered under sub-section (1) of section 33, also furnish

the information as to whether:-

(i) He is accused of any offence punishable with

imprisonment for two years or more in a pending case in

which a charge has been framed by the court of competent

jurisdiction;

(ii) He has been convicted of an offence [other than any

offence referred to in sub-section (1) or sub-section (2), or

covered in sub-section (3), of section 8] and sentenced to

imprisonment for one year or more.

(2) The candidate or his proposer, as the case may be,

shall, at the time of delivering to the returning officer the

nomination paper under sub-section (1) of section 33, also

deliver to him an affidavit sworn by the candidate in a

prescribed form verifying the information specified in sub-

section (1).

(3) The returning officer shall, as soon as may be after the

furnishing of information to him under sub-section (1),

display the aforesaid information by affixing a copy of the

affidavit, delivered under sub-section (2), at a conspicuous

place at his office for the information of the electors relating

to a constituency for which the nomination paper is

delivered.

5. The candidate shall deliver an affidavit sworn by him in a prescribed

form verifying the information furnished in sub-section (1) of the said Section.

6. The Section 80 of the Representation of the People Act, 1951 deals

with the Election Petition which reads 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.

7. The Section 100 of the Representation of the People Act, 1951 reads

as under:-

6

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,

(ii) or 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,

(iv) or by any non-compliance with the provisions of the

Constitution or of this Act or of any rules or orders made

under this Act.

8. The learned counsel for the petitioner further submits that though the

petitioner and the other raised objections with respect to the nomination of the

7

th

respondent as stated above, the said objections were mentioned in the

impugned proceedings of the 6

th

respondent dated 26.04.2024 but they were

not considered except saying that the said objections are overruled against

the 7

th

respondent in accordance with the guidelines issued under Section 36

of RPA, 1951 and Chapter 6 of ECI issued handbook for the Returning

Officer, 2023. It was observed that for the purpose of scrutiny, the Form-26

Affidavit shall be fully filled, notarized and filed. All these conditions have been

7

satisfied in the case of the Affidavit filed by the 7

th

respondent and as such his

nomination cannot be rejected on the ground that it contains false information

allegedly.

9. It was also observed that all the columns of the affidavit were filled by

the candidate/7

th

respondent and as such the objection that the candidate has

suppressed certain facts with respect to the properties owned by him was not

considered as an objection of sustainable character.

10. In view of the above said impugned proceedings of the 6

th

respondent

dated 26.04.2024, the Writ Petitioner prayed for indulgence of this Court in

this Writ Petition under Article 226 of the Constitution of India.

11. On the other hand, the learned Senior Counsel appearing for the

respondent Nos.1 to 6 submits that there is a Constitutional Bar in these

matters under Article 329(b) of the Constitution of India which reads as

under:-

329. Bar to interference by courts in electoral matter-

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.

8

12. According to it no Election shall be called in question under Article 226

of the Constitution of India except by filing an Election Petition before the

appropriate authority as prescribed under law by the appropriate legislature.

He also refers to the decisions of the Hon’ble Supreme Court of India as

under:-

13. In N.P. Ponnuswami vs Returning Officer, Namakkal Constituency

and others

1

, the then Constitutional Bench of the Hon’ble Supreme Court

held at Para Nos.15, 37, 38, 39 and 40 as under:-

15. 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 d 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

1

(1952) 1 SCC 94

9

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 expressed 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.

37. And now a word as to why negative language was

used in Article 329(b). It seems to me that there is an

important difference between Article 71(1) and Article

329(b). Article 71(1) had to be in an affirmative form,

because it confers special jurisdiction on the Supreme

Court which that Court could not have exercised but for

this article. Article 329(b), on the other hand, was primarily

intended to exclude or oust the jurisdiction of all courts in

regard to electoral matters and to lay down the only mode

in which an election could be challenged. The negative

form was therefore more appropriate, and, that being so, it

is not surprising that it was decided to follow the pre-

existing pattern in which also the negative language had

been adopted.

38. Before concluding. I should refer to an argument which

was strenuously pressed by the learned counsel for the

appellant and which has been reproduced by one of the

learned Judges of the High Court in these words:

"It was next contended that if nomination is part of election,

a dispute as to the validity of nomination is a dispute

relating to election and that can be called in question only

in accordance with the provisions of Article 329(b) by the

presentation of an election petition to the appropriate

Tribunal and that the Returning Officer would have no

jurisdiction to decide that matter, and it was further argued

that Section 36 of Act 43 of 1951 would be ultra vires

inasmuch as it confers on the Returning Officer a

jurisdiction which Article 329(b) confers on a tribunal to be

appointed in accordance with the article."

39. This argument displays great dialectical ingenuity, but it

has no bearing on the result of this appeal and I think it

can be very shortly answered. Under Section 36 of the

Representation of the People Act, 1951, it is the duty of the

Returning Officer to scrutinise the nomination papers to

ensure that they comply with the requirements of the Act

and decide all objections which may be made to any

nomination. It is clear that unless this duty is discharged

10

properly, any number of candidates may stand for election

without complying with the provisions of the Act and a

great deal of confusion may ensue. In discharging the

statutory duty imposed on him, the Returning Officer does

not call in question any election. Scrutiny of nomination

papers is only a stage, though an important stage, in the

election process. It is one of the essential duties to be

performed before the election can be completed, and

anything done towards the completion of the election

proceeding can by no stretch of reasoning be described as

questioning the election. The fallacy of the argument lies in

treating a single step taken in furtherance of an election as

equivalent to election. The decision of this appeal however

turns not on the construction of the single word "election",

but on the construction of the compendious expression-"no

election shall be called in question" in its context and

setting, with due regard to the scheme of Part XV of the

Constitution and the Representation of the People Act,

1951. Evidently, the argument has no bearing on this

method of approach to the question posed in this appeal,

which appears to me to be the only correct method.

40. We are informed that besides the Madras High Court,

seven other State High Courts have held that they have no

jurisdiction under Article 226 of the Constitution to entertain

petitions regarding improper rejection of nomination

papers. This view is, in my opinion, correct and must be

affirmed. The appeal must, therefore, fail and is dismissed.

In view of the nature and importance of the points raised in

this appeal, there should be no order as to costs.

14. In Mohinder Singh Gill and another

2

, the then Constitutional Bench of

the Hon’ble Supreme Court held at Para Nos.29 to 34 as under:-

29. Thus, there are two types of decisions, two types of

challenges. The first relates to proceedings which interfere

with the progress of the election. The second accelerates

the completion of the election and acts in furtherance of an

election. So, the short question before us, in the light of the

illumination derived from Ponnuswami, is as to whether the

order for re-poll of the Chief Election Commissioner is

"anything done towards the completion of the election

proceeding" and whether the pro ceedings before the High

Court fecilitated the election process or halted its progress.

The question immediately arises as to whether the relief

2

(1978) 1 SCC 405

11

sought in the writ petition by the present appellant

amounted to calling in question the election. This, in turn,

revolves round the point as to whether the cancellation of

the poll and the reordering of fresh poll is part of election'

and challenging it is 'calling it in question'.

30. The plenary bar of Articic 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 Shankar Mehta (supra) 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 Article 136 springs into action. In Hari

Vishnu (supra) this Court upheld the rule in Ponnuswami

excluding any proceeding, including one under Article 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 be

decision of the Tribunal the ban of Article 329 (5) does not

bind.

31. If 'election' bears the larger connotation, if 'calling in

question' possesses a semantic sweep in plain English, if

policy and principle are tools for interpretation of statutes,

language permitting, the conclusion is irresistible, even

though the argument contra may have emotional impact

and ingenious appeal, that the catch-all jurisdiction under

Article 226 cannot consider the correctness, legality or

otherwise of the direction for cancellation integrated with

re-poll. For, the prima facie purpose of such a re-poll was

to restore a detailed poll process and to complete it

through the salvationary effort of a re-poll. Whether, in fact

or law, the order is validly made within his powers or

violative of natural justice can be examined later by the

appointed instrumentality, viz., the Election Tribunal. That

aspect will be explained presently. We proceed on the

footing that re-poll in one polling station or in many polling

stations, for good reasons, is lawful. This shows that re-poll

in many or all segments, all-pervasive or isolated, can be

lawful. We are not considering whether the act was bad for

other reasons. We are concerned only to say that if the

12

regular poll, for some reasons, has failed to reach the goal

of choosing by plurality the returned candidate and to

achieve this object a fresh poll (not a new election) is

needed, it may still be a step in the election. The

deliverance of Dunkirk is part of the strategy of counter-

attack. Wise or valid, is another matter.

32. On the assumption, but leaving the question of the

validity of the direction for re-poll open for determination by

the Election Tribunal, we hold that a writ petition

challenging the cancellation coupled with re-poll amounts

to calling in question a step in 'election' and is therefore

barred by Article 329 (b). If no re-poll had been directed

the legal perspective would have been very different. The

mere cancellation would have then thwarted the course of

the election and different considerations would have come

into play. We need not chase a hypothetical case.

33. Our conclusion is not a matter of textual interpretation

only but a substantial assurance of justice by reading

Section 100 of the Act as covering the whole basket of

grievances of the candidates. Sri P. P Rao contended that

the Court should not deny relief to a party in the area of

elections which are the life-breaths of the democracy and

people's power. We agree.

34. This dilemma does not arise in the wider view we take

of Section 100(1) (d) (iv) of the Act. Sri Rao's attack on the

order impugned is in substance based on alleged non-

compliance with a pro- vision 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 Constitu- tion have, by implication

postponed all election disputes to election petitions and

tribunals. In harmony with this scheme Section 100 of the

Act has been designedly drafted to embrace all

conceivable infirmities which may be urged. To make the

project fool-proof Section 100(1) (d) (iv) has been added to

absolve everything left over. The Court has in earlier

rulings pointed out that Section 100 is exhaustive of all

grievances regarding an election. But what is banned is

not anything whatsoever done or directed by the

Commissioner but everything he does or directs in

furtherance of the election, not contrarywise.

13

15. In Ram Phal Kundu vs Kamal Sharma

3

, the then three Judges of the

Hon’ble Supreme Court held at Para No.24 as under:-

24. It may be noticed that the petition by Kamal Sharma

was filed on 6-2-2000 and the same was allowed by the

Election Commission the very next day ie. on 7-2-2000 by

which a direction was issued to the Returning Officer to

hold a fresh scrutiny. There is nothing on record to indicate

nor it appears probable that before passing the order, the

Election Commission issued any notice to Bachan Singh.

Apparently, the order was passed behind his back. The

order of the Election Commission to the effect that the

Returning Officer shall take further consequential steps as

may become necessary, by treating all earlier proceedings

in relation to the said candidates, as void ab initio and

redraw the list of validly nominated candidates, could not

have been passed without giving an opportunity of hearing

to Bachan Singh. That apart, it has been held by a catena

of decisions of this Court that once the nomination paper of

a candidate is rejected, the Act 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. (See N.P. Ponnus

Returning Officer, Mohinder Singh Gill v. Election Chief

Commissioner and Election Commission of India v. Shivaji.

a. Therefore, the order passed by the Election

Commission a on 7-2-2000 was not only illegal but was

also without jurisdiction and the respondent Kamal Sharma

can get no advantage from the same. The inference drawn

and the findings recorded by the High Court on the basis of

the order of the Election Commission, therefore, cannot be

sustained.

16. Following the above said decisions, the Hon’ble Division Bench of the

Telangana High Court passed an order in W.P.No.31864 of 2023 dated

18.11.2023 holding at Para Nos.3, 11, 16, 17 and 18 as under:-

3. The petitioner is a resident of Rajendranagar

Constituency. The petitioner filed nomination paper on

09.11.2023 as a candidate for the Legislative Assembly of

Rajendranagar Constituency from Alliance of Democratic

3

(2004) 2 SCC 759

14

Reforms Party for the ensuing Assembly Elections. The

aforesaid nomination paper was scrutinised on 13.11.2023

and was rejected on the ground that the names of the

proposers entered in the nomination paper filed by the

petitioner do not tally with the names entered in electoral

roll. The petitioner thereupon has filed this writ petition

questioning the validity of order dated 13.11.2023 passed

by the Returning Officer primarily on the ground that same

is violative of section 33(4) of the Representation of People

Act, 1951 (hereinafter referred to as 'the Act').

11. The law laid down in N.P. Ponnuswami (supra) was

referred to in a subsequent decision in Ram Phal Kundu

(supra) and in paragraph 24, it was held as under:

24. It may be noticed that the petition by Kamal

Sharma was filed on 6-2-2000 and the same was allowed

by the Election Commission the very next day i.e. on 7-2-

2000 by which a direction was issued to the Returning

Officer to hold a fresh scrutiny. There isdirection was

ressord to indicate nor it appears probable that before

passing the order the Election Commission issued any

notice to Bachan Singh. Apparently, the order was passed

behind his back. The order of the Election Commission to

the effect that the Returning Officer shall take further

consequential steps as may become necessary, by

treating all earlier proceedings in relation to the said

candidates, as void ab initio and proceedings in relationly

nominated candidates, could not have been passed

without giving an opportunity of hearing to Bachais Singh.

That apart, it has been held by a catena of decisions of this

Court that once the basination paper of a candidate is

rejected, the Act provides for tome nominatioedy 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. (See N.P. Ponnus Returning

Officer [MANU/SC/0049/1952: (1952) 1 SCC 94: AIR 1952

SC 64], Mohinder Singh Gill v. Election Chief

Commissioner [MANU/SC/0209/1977: (1978) 1 SCC 405:

AIR 1978 SC 851 and Election Commission of India v.

Shivaji (MANU/SC/0379/1987 : (1988) 1 SCC 277 : AIR

1988 SC 61]). Therefore, the order passed by the Election

Commission on 07.02.2000 was not only illegal but was

also without Jurisdiction and the respondent Kamal

Sharma can get no advantage from the same. The

inference drawn and the findings recorded by the High

Court on the basis of the order of the Election Commission,

therefore, cannot be sustained.

15

(emphasis supplied)

Thus, it is evident that in the aforesaid decision, it has

been held that once the nomination paper of a candidate is

rejected, the Act only provides for one remedy, that is the

remedy by way of an election petition to be presented after

the election is over and there is no remedy provided at any

intermediate stage. Therefore, no case for interference is

made out.

16. Therefore, the action taken by the Returning Officer in

rejecting the nomination of the petitioner is in consonance

with the law and does not call for interference of this Court

at this point of time.

17. It is clarified that the findings recorded in this order are

only for the purposes of deciding the controversy involved

in the instant writ petition and the petitioner shall be at

liberty to take recourse to the remedy of election petition

provided to him in law.

18. With the aforesaid observations, the writ petition is

dismissed.

17. He further submits that the scope of scrutiny of nomination papers is

summary in nature and the objections raised by the petitioner falls in the relm

of taking evidence and the Returning Officer cannot go into those objections

and the decision of the Returning Officer accepting the nomination of the 7

th

respondent cannot be gone into in this Writ Petition under Article 226 of the

Constitution of India as it is specifically barred under Article 329(b) of the

Constitution of India and in view of the above said Constitutional Judgments

of the Hon’ble Supreme Court of India. The only remedy available for the

petitioner is to approach the Election Tribunal by way of an Election Petition at

an appropriate stage under Sections 80 and 100 of the Representation of the

People Act, 1951.

16

18. He also refers to the order passed by the then Division Bench of the

erstwhile High Court of Andhra Pradesh in W.P.No.7040 of 2009 dated

02.04.2009 wherein the Judgments of the Hon’ble Supreme Court of India

viz., N.P.Ponnuswami’s case, Mohinder Singh Gill’s case and Ram Phal

Kundu’s case were followed and it was held at Para Nos.23 and 24, as

under:-

23. In the light of the deeply entrenched aforestated legal

position, we are of the view that notwithstanding the

validity or otherwise of the rejection of the nomination, any

ground of attack against the same would be better suited

for an election petition under Section 100(1)(c) of the Act of

1951 and would not be sufficient ground to warrant

exercise of our extraordinary jurisdiction under Article 226

of the Constitution, overlooking the clear bar mandated by

Article 329(b) of the Constitution. Mere rejection of the

nomination of a candidate does not have the effect of

interfering in the free flow of the scheduled election or

hindering its progress, which according to the Supreme

Court, should be the paramount consideration while testing

the waters to see whether writ jurisdiction can be

exercised. On the other hand, interference in the matter at

this stage would invariably have the effect of interrupting

the election process, requiring the election machinery to

review the entire eligibility process. The case on hand does

not present itself as an exceptional case warranting

deviation from the established principle that this Court

would not interfere in matters of the present nature in view

of the constitutional bar under Article 329(b) of the

Constitution.

24. The writ petition fails on the ground of maintainability

and is accordingly dismissed at the stage of admission. In

the circumstances of the case, there shall be no order as

to costs.

19. In reply, the learned Senior Counsel for the petitioner refers to the

decision of the Hon’ble Supreme Court of India in the case of Anoop

17

Baranwal vs. Union of India (Election Commission Appointments)

4

, in

which it was held at Para Nos.211 and 212 as under:-

211. Article 329(b) declares as follows:

329. (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."

212. Regarding the impact of Article 329(b), a Bench of

three learned Judges after an exhaustive review of the

earlier case law has set down the following summary of

conclusions in Election Commission of India v. Ashok

Kumar 62: (SCC pp. 232-33, paras 31-33)

"31. The Founding Fathers of the Constitution have

consciously employed use of the words "no election shall

be called in question" in the body of Article 329(b) and

these words provide the determinative test for attracting

applicability of Article 329(b). If the petition presented to

the Court "calls in question an election" the bar of Article

329(b) is attracted Else it is not.

32. For convenience sake we would now generally sum up

our conclusions by partly restating what the two

Constitution Benches have already said and then adding

by clarifying what follows therefrom in view of the analysis

made by us hereinabove:

(1) If an election, (the term election being widely

interpreted so as to include all steps and entire

proceedings commencing from the date of notification of

election till the date of declaration of result) is to be called

in question and which questioning may have the effect of

Interrupting, obstructing or protracting the election

proceedings in any manner, the invoking of judicial remedy

has to be postponed till after the completing of

proceedings in elections.

(2) Any decision sought and rendered will not amount to

"calling in question an election" if it subserves the progress

4

(2023) 6 SCC 161

18

of the election and facilitates the completion of the

election. Anything done towards completing or in

furtherance of the election proceedings cannot be

described as questioning the election.

(3) Subject to the above, the action taken or orders issued

by Election Commission are open to judicial review on the

well-settled parameters which enable judicial review of

decisions of statutory bodies such as on a case of mala

fide or arbitrary exercise of power being made out or the

statutory body being shown to have acted in breach of law.

(4) Without interrupting, obstructing or delaying the

progress of the election proceedings, judicial intervention is

available if assistance of the court has been sought for

merely to correct or smoothen the progress of the election

proceedings, to remove the obstacles therein. or to

preserve a vital piece of evidence if the same would be lost

or destroyed or rendered irretrievable by the time the

results are declared and stage is set for invoking the

jurisdiction of the court.

(5) The court must be very circumspect and act with

caution while entertaining any election dispute though not

hit by the bar of Article 329(b) but brought to it during the

pendency of election proceedings. The court must guard

against any attempt at retarding, interrupting, protracting or

stalling of the election proceedings. Care has to be taken

to see that there is no attempt to utilise the court's

indulgence by filing a petition outwardly innocuous but

essentially a subterfuge or pretext for achieving an ulterior

or hidden end. Needless to say that in the very nature of

the things the court would act with reluctance and shall not

act, except on a clear and strong case for its intervention

having been made out by raising the pleas with particulars

and precision and supporting the same by necessary

material.

20. As a rejoinder the learned counsel appearing for the Election

Commission submits that the said judgment was held in the matter of

appointments of Election Commission and it does not dilute the earlier

judgments of the Hon’ble Supreme Court of India. For the facts of this case,

the observations made in the said judgment cannot be extended and applied

19

as it was only observed that “any decision sought and render will not amount

to “calling in question an Election”, if it subserves the progress of the Election

and facilitates the completion of the Election, anything done towards

completing or in furtherance of the Election proceedings cannot be described

as questioning the Election”. But, the case of the petitioner herein is that the

acceptance of the nomination of the 7

th

respondent by the Returning Officer is

improper and as such it squarely falls within the scope of the Election Petition.

21. The learned Senior Counsel appearing for the 7

th

respondent while

adopting the submissions made by the learned counsel appearing for the

respondent Nos.1 to 6, he further adds the decision of the Hon’ble Supreme

Court of India in the case of Resurgence India vs. Election Commission of

India and another

5

wherein it was held at Para Nos. 8, 24, 29 as under:-

8. On 9-2-2007, the petitioner Organization made a

representation to the Election Commission of India

regarding large number of non-disclosures in the affidavits

filed by the contestants in the State of Punjab and poor

level of scrutiny by the Returning Officers. Vide Letter

dated 20-2-2007, the Election Commission of India

expressed its inability in rejecting the nomination, papers of

the candidates solely due to furnishing of false/incomplete

information in the affidavits in view of the judgment in

People's Union for Civil Liberties.

24. We also clarify the extent that in our coherent opinion

the above power of rejection by the Returning Officer is not

barred by para 73 of People's Union for Civil Liberties

which reads as under: (SCC p. 451)

"73. While no exception can be taken to the insistence of

affidavit with regard to the matters specified in Assn. for

Democratic Reforms case, the direction to reject the

nomination paper for furnishing wrong information or

5

(2014) 14 SCC 189

20

concealing material information and providing for a

summary enquiry at the time of scrutiny of the nominations,

cannot be justified. In the case of assets and liabilities, it

would be very difficult for the Returning Officer to consider

the truth or otherwise of the details furnished with

reference to the 'documentary proof'. Very often, in such

matters the documentary proof may not be clinching and

the candidate concerned may be handicapped to rebut the

allegation then and there. If sufficient time is provided, he

may be able to produce proof to contradict the objector's

version. It is true that the aforesaid directions issued by the

Election Commissiori are not under challenge but at the

same time prima facie it appears that the Election

Commission is required to revise its instructions in the light

of directions issued in Assn. for Democratic Reforms case

and as provided under the Representation of the People

Act and its third Amendment."

The aforesaid paragraph, no doubt, stresses on the

importance of filing of affidavit, however, opines that the

direction to reject the nomination paper for furnishing

wrong information or concealing material information and

providing for a summary inquiry at the time of scrutiny of

the nominations cannot be justified since in such matters

the documentary proof may not be clinching and the

candidate concerned may be handicapped to rebut the

allegation then and there. This Court was of the opinion

that if sufficient time is provided, the candidate may be in a

position to produce proof to contradict the objector's

version. The object behind penning down the aforesaid

reasoning is to accommodate genuine situation where the

candidate is trapped by false allegations and is unable to

rebut the allegation within a short time.

29. What emerges from the above discussion can be

summarised in the form of the following directions:

29.1. The voter has the elementary right to know full

particulars of a candidate who is to represent him in

Parliament/Assemblies and such right to get information is

universally recognised. Thus, it is held that right to know

about the candidate is a natural right flowing from the

concept of democracy and is an integral part of Article

19(1)(a) of the Constitution.

29.2. The ultimate purpose of filing of affidavit along with

the nomination paper is to effectuate the fundamental right

of the citizens under Article 19(1)(a) of the Constitution of

India. The citizens are supposed to have the necessary

21

information at the time of filing of nomination paper and for

that purpose, the Returning Officer can very well compel a

candidate to furnish the relevant information.

29.3. Filing of affidavit with blank particulars will render the

affidavit nugatory.

29.4. It is the duty of the Returning Officer to check

whether the information required is fully furnished at the

time of filing of affidavit with the nomination paper since

such information is very vital for giving effect to the "right to

know" of the citizens. If a candidate fails to fill the blanks

even after the reminder by the Returning Officer, the

nomination paper is fit to be rejected. We do comprehend

that the power of the Returning Officer to reject the

nomination paper must be exercised very sparingly but the

bar should not be haid so high that the justice itself is

prejudiced.

29.5. We clarify to the extent that para 73 of People's

Union for Civil Liberties case will not come in the way of

the Returning Officer to reject the nomimation paper when

the affidavit is filed with blank particulars.

29.6. The candidate must take the minimum effort to

explicitly remark as "NIL" or "Not Applicable" or "Not

known" in the columns and not to leave the particulars

blank.

29.7. Filing of affidavit with blanks will be directly hit by

Section 125-A(1) of the RP Act. However, as the

nomination paper itself is rejected by the Returning Officer,

we find no reason why the candidate must be again

penalised for the same act by prosecuting him/her.

22. It is not the case of the petitioner that the 7

th

respondent submitted

nomination papers along with the affidavit with blank particulars rendering the

affidavit nugatory. Since, the 7

th

respondent duly filled Form-26 with required

particulars and information, the same was accepted by the 6

th

respondent.

The Returning Officer has no power to review or re-consider his own decision

as per the Election Notification and the time for withdrawal of nomination is

already over and the symbols are also allotted to the contestants.

22

23. In view of the above said facts and circumstances, the rival submissions

made by the respective counsels and upon consideration of the above said

decisions of the Constitutional Courts it is to be seen that according to the

petitioner this is a case of questioning the acceptance of the nomination

papers filed by the respondent No.7 improperly by the respondent No.6

without considering the objections of the petitioner. As seen above, the settled

legal position and in view of the specific bar under Article 329(b) of the

Constitution of India and enabling provisions under Sections 80 and 100 of the

Representation of the People Act, 1951, the petitioner is directed to approach

the Election Tribunal through an Election Petition, if so aggrieved at

appropriate stage in accordance with law as no indulgence can be shown at

this stage with respect to the acceptance of the nomination of the respondent

No.7 by the respondent No.6 in this Writ Petition.

24. Accordingly, this Writ Petition is dismissed. No costs.

As a sequel, Miscellaneous Petitions pending, if any, shall stand closed.

_________________________

JUSTICE B KRISHNA MOHAN

29.04.2024

PNS

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