Research › Browse › Judgment

Kerala High Court · body

1951 DIGILAW 137 (KER)

John Mathai v. Fakkrudhin Shah

1951-11-13

KUNHI RAMAN, SUBRAMONIA.IYER

body1951
Judgment :- These two petitions are presented to question the validity of the rejection of the nomination paper of a candidate for election to the House of the People from the Parliamentary Constituency of Kottayam in the Travancore-Cochin State. The first of these petitions is filed by the proposer of the candidate and the 2nd by the candidate himself. The averments in both the petitions are to the effect that the rejection of the nomination paper by the Returning Officer was made by him while he was acting in a quasi judicial capacity, that the order made by him was without jurisdiction or in excess of jurisdiction, and that there is an error in law which is one of the substance on the face of the order. It is not necessary to mention any other aspect at this stage. The prayers in both the petitions are for a writ of certiorari under Art.226 of the Indian Constitution calling for the records of the case from the Returning Officer and quashing the order of rejection and for the issue of a writ of mandamus directing the Returning Officer to include the petitioner's name in the list of valid nominations to be prepared and published by him. The 1st respondent in both these petitions ins the Returning Officer. The remaining three respondents are the rival candidates who also had submitted nomination papers to the Returning Officer which have been accepted by him as valid. The 2nd respondent has, however, since withdrawn his candidature. 2. The learned Advocate General of the State appears for the Returning Officer in both these petitions. He is the main contesting respondent. The other respondents are supporting the contentions of the 1st respondent, the 4th respondent being represented by Mr. T.K. Joseph. 3. The main objection raised on behalf of the respondent relates to the jurisdiction of this Court to entertain and deal with these petitions. According to the learned Advocate General, Art.329 of the Constitution read with S.170 of the Representation of the People Act, XLIII of 1951, makes it clear that it is only the Election Tribunal contemplated by the Act aforesaid that can deal with the questions raised in these petitions. The jurisdiction of a Civil Court is expressly taken away by these relevant provisions. The jurisdiction of a Civil Court is expressly taken away by these relevant provisions. According to Art.329: Notwithstanding anything contained 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 Art.327 or Art.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". It is contended that Cl. (b) of this Article refers to the constitution of the authority which alone has power to deal with elections to either House of Parliament or to either House of Legislature of the States and that the law contemplated therein is the Representation of the People Act, XLIII/1951, duly passed by the Parliament. 4. The question has been very ably argued by learned counsel appearing in this case. The petitioners have had the advantage of securing the services of Sir Noshirwan Engineer who has presented the case for the petitioners very forcibly. He, however frankly concedes that if the case is covered by Cl. (b) of Art.329 of the Constitution, the petitioners will be out of Court. The argument addressed relates to the wording of Cl. (b) according to which the power of this Court is taken away only in case an election to either House of the Parliament etc. is called in question. Learned counsel contends that in the present case the election has not yet taken place and he is not calling in question any election. He is basing the applications on the alleged error in the order made by the Returning Officer in rejecting the nomination paper. This according to him does not amount to calling in question any election. The argument, therefore, is that Cl.(b) will not apply to the present case. The learned Advocate general, on the other hand, contends that the word 'election' as used in this clause must be understood in a comprehensive sense. It is not restricted to the polling at the end of the proceedings for conducting an election. It begins at a much earlier stage. The learned Advocate general, on the other hand, contends that the word 'election' as used in this clause must be understood in a comprehensive sense. It is not restricted to the polling at the end of the proceedings for conducting an election. It begins at a much earlier stage. The presentation and scrutiny of the nomination papers by the Returning Officer from part of the election under this clause and consequently this Court has no jurisdiction to deal with these petitions. There is a special tribunal provided for by the Representation of People Act, 1951. According to the relevant sections of the Act, that Tribunal alone has jurisdiction to deal not only with the irregularities at the actual polling, but irregularities of the kind complained of in the present petitions in respect of the disposal of the nomination paper by the Returning Officer. 5. On considering the various aspects of the case presented to the Court by learned Counsel we have reached the conclusion that the contentions of the learned Advocate General are well founded. Both the Constitution and the provisions of the Representation of the People Act, 1951 expressly exclude the jurisdiction of this Court to entertain applications like the present. 6. Dealing first with the provisions of Art.329(b), the question that arises for determination is the scope and signification of the word "election" as used in this clause. Arguments on behalf of the petitioners are addressed on the basis of the difference in the wording of Art.329(b) on the one hand and Art.327 and 328 on the other. The latter two articles make special mention of all matters relating to or in connection with elections, whereas Art.329(b) refers only to election to either House of Parliament. The question then is whether this difference in wording can be regarded as excluding the stage at which nomination papers are scrutinised by Returning Officers from the scope of Art.329(b). In our view, this has to be determined by reference to the nature and scope of the petition by which an election can be called in question under that clause. This will be considered at the appropriate place. In Parker's Election Agent and Returning Officer, 5th Edition, at page 120, an endeavour is made to explain what is meant by the term'election', which according to the learned author, has not been defined by the legislature or by any Judicial Tribunal. This will be considered at the appropriate place. In Parker's Election Agent and Returning Officer, 5th Edition, at page 120, an endeavour is made to explain what is meant by the term'election', which according to the learned author, has not been defined by the legislature or by any Judicial Tribunal. According to the learned author "an election is a process ending in a single valid and recognised return of a duly qualified candidate" (Dungardan 5 P.R. & d. 308). The learned author also points out that there is no definition of the time at which an election is to be deemed to have commenced and he asserts that the election judges have almost invariably declined to lay down any principle from which the commencement of the election may be determined. Indeed, in one of the cases quoted in the book, a learned judge had expressed his opinion that it was not possible to define the starting point for this purpose. It is also pointed out that the question has to be determined on the facts of each particular case. It is laid down as a safe proposition that an election shall be deemed to have commenced as soon as any definite step is taken in respect of the candidature. This in our view may be taken as an accurate estimate of the situation for the purpose of this case. As already stated, the answer to the question when the election shall be deemed to have begun will depend on the facts of each case. For example, in a case relating to election expenses or corrupt practices alleged against a candidate, the election may be deemed to commence much earlier than the stage at which the nomination of the candidate for election takes place. There cannot be any doubt that an election commences at any rate when a candidate is duly proposed and seconded and his nomination paper is filed with the Returning Officer. The act of the Returning Officer in scrutinising the nomination paper and arriving at a decision on the question whether the nomination was proper or not, therefore, took place after the commencement of the election and as a part of it. 7. The act of the Returning Officer in scrutinising the nomination paper and arriving at a decision on the question whether the nomination was proper or not, therefore, took place after the commencement of the election and as a part of it. 7. The Representation of the People Act XLIII/1951 was passed in the exercise of the power conferred upon the Central Legislature by Art.327 of the Constitution according to which "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 elections to either House of Parliament 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". The relevant provisions of the Act throw light on the controversy that has arisen in the present case. There is an attempt at definition of "election" in S.2(d) of the Act which reads as follows: "In this Act unless the context otherwise requires (d) election means an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State other than the State of Jammu and Kashmir and includes a primary election." This definition is not helpful on the question that has to be decided in the present case relating to the applicability of Art.329(b). Ss. 7 and 8 of the Act specify the circumstances in which a person may become disqualified for membership of Parliament or of a State Legislature and the circumstances in which certain kinds of disqualification may be got rid of. S.30 empowers the appropriate authority to fix the dates for making nominations for scrutiny of nominations, for withdrawal of candidatures and for a poll, if necessary, by publishing a notification in the official gazette. S.36 deals with the scrutiny of nominations and specifies the persons who may attend at the time and place fixed by the Returning Officer for scrutiny of nominations. On the dates so fixed, the Returning Officer shall examine the nomination papers and decide all objections that may be made to the nomination. The case in which he may refuse any nomination is specified in Cls. (a) to (e) of sub-s. (2). On the dates so fixed, the Returning Officer shall examine the nomination papers and decide all objections that may be made to the nomination. The case in which he may refuse any nomination is specified in Cls. (a) to (e) of sub-s. (2). According to sub-s. (6), the Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same. Where he has rejected the nomination paper, it is incumbent upon him to record in writing a brief statement of his reasons for such rejection. According to S.38, immediately after the expiry of the period within which candidature may be withdrawn under S.37, the Returning Officer shall prepare and publish a list of valid nominations in the prescribed manner. The next Section of importance is S.80 according to which no election shall be called in question except by an election petition presented in accordance with the provisions of this Act. Such a petition has to be presented to the Election Commission by a candidate or an elector in the prescribed form and within the time fixed. Provision is made for this in S.81 of the Act. S.83 deals with the contents of the petition. S.84 refers to the reliefs that can be claimed by the petitioner and S.100 which is the next important Section prescribes the grounds for declaring an election to be void. It is this Section that clarifies the position with regard to objections that can be taken. According to the relevant part of the Section which is contained in sub-s. (1). "If the Tribunal is of opinion ........................................................................ ....................................................................... (c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination the Tribunal shall declare the election to be wholly void". This last clause of the Section makes it abundantly clear that the method of raising the question against the improper rejection of a nomination paper by the Returning Officer is by presenting an election petition and if the Election Tribunal is satisfied that the result of the election has been materially affected by the improper acceptance or rejection of a nomination then it is incumbent upon the Tribunal to declare the election to be wholly void. The appropriate stage at which the question can be raised is after the result of the election is published and not at an earlier stage. The appropriate stage at which the question can be raised is after the result of the election is published and not at an earlier stage. S.170 of the Act expressly excludes the jurisdiction of Civil Courts in relation to this matter. According to this Section, no Civil Court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under this act in connection with an election. There cannot be any doubt that this Section is comprehensive in its wording and includes the act of the Returning Officer in recording his decision as to whether the nomination of a candidate is acceptable or not. This being an act passed in the exercise of the powers expressly conferred on the Legislature by Art.327 of the Constitution, in view of the provisions of the Article, notwithstanding anything in the Constitution the validity of any such law made or purporting to be made under it shall not be called in question in any Court. Nor was any such objection raised before us. Whatever may be the effect or inconvenience caused by the provisions of the Representation of the People Act, the Constitution expressly excludes the jurisdiction of a Court of law to question the validity of its provisions and the opening words of Art.329 that this is notwithstanding anything contained in the Constitution make it abundantly clear that no power, that is reserved in the High Court or in the Supreme Court can be exercised in contravention of its provisions. 8. In view of Cl. (b) of Art.329, it is clear that in the present case the act of the Returning Officer cannot be called in question except by the presentation of an Election Petition under the Representation of the People Act, XLIII of 1951. Such a petition can be presented only after the result of the election or poll, if any, is announced and not at an earlier stage. Therefore, it is not open to the petitioners in these two cases to apply to this Court for the issue of the writs mentioned in the two petitions. 9. Apart from this fundamental provisions which puts the petitioners out of court, we may also mention other obstacles which would stand in the way of the petitioners getting the reliefs which they are asking for. 9. Apart from this fundamental provisions which puts the petitioners out of court, we may also mention other obstacles which would stand in the way of the petitioners getting the reliefs which they are asking for. In the first place it has to be borne in mind that writs of certiorari and mandamus mentioned in the prayers in the petitions are high prerogative writs under the English Law. The issue of the writ is discretionary with the court that is approached by the litigant. One of the fundamental principles is that being a high prerogative writ, once it is issued, the result must be final and must not be subject to interference by any other authority or tribunal. In the present case, the relevant provisions of the Representation of the People Act which provide for the stage at which an election petition can be presented in which exception can be taken to the alleged improper rejection of a nomination paper, make it clear that if the petitioners succeed in obtaining a writ, the subject matter of the writ can be open to reconsideration by the Election Tribunal. The membership of this Tribunal is open to District Judges and it is invested with jurisdiction to give a final decision on the question as to whether the nomination paper is improperly rejected. This means that the tribunal can sit in judgment over a writ which may be issued by a High Court and they would be competent to finally dispose of the matter. This is opposed to the very principle on which the granting of the writ is based. 10. Another question to be considered in deciding whether a writ should be issued or not is as to whether the authority whose act is called in question by the petitioners had acted in the exercise of a jurisdiction vested in him by law or in excess of the jurisdiction so vested. A writ of certiorari will be granted only if an authority exercising a judicial or quasi judicial power acts without or in excess of its jurisdiction and not when in the exercise of its jurisdiction it has arrived at a decision which is criticised as erroneous. A writ of certiorari will be granted only if an authority exercising a judicial or quasi judicial power acts without or in excess of its jurisdiction and not when in the exercise of its jurisdiction it has arrived at a decision which is criticised as erroneous. What has happened in the present case is that the Returning officer in rejecting the nomination paper of the candidate on the ground of disqualification was acting in the exercise of a jurisdiction vested in him. Whether that decision is right or wrong, it would not be open to this Court to issue a writ except when the officer has acted mala fide. No such case of mala fides is urged on behalf of the petitioners. 11. Yet another point to be borne in mind is that writ of the nature asked for in the present case, will not be granted if it will not be effective. Here, the first prayer is for calling for the records of the case from the Returning Officer and quashing his proceedings by issuing a writ of certiorari. After this is done, the petitioners want that a writ of mandamus should be issued. After quashing the proceedings by certiorari in the writ of mandamus the only direction that can be given to the Returning Officer is to do his duty and decide whether the nomination of the candidate is acceptable or not. It is not open to this Court nor will it be in the proper exercise of its jurisdiction to give any specific directions as to the manner in which the duty should be discharged by the Returning Officer. Therefore, after these proceedings are quashed by a writ of certiorari, there is nothing to prevent the Returning Officer from arriving at the same conclusion namely that the nomination paper should be rejected. It is thus clear that the remedy asked for will not be effective by issuing such a writ. 12. We are mentioning these features of the application because this, so far as we are able to gather, is the first case which has come up before a High Court in India where the question about the tenability of an application for a writ to quash an order of a Returning Officer rejecting a nomination paper is raised under the New Constitution. We do not wish to express any opinion on the merits of this application. We do not wish to express any opinion on the merits of this application. To make this judgment complete we should express our view on yet another objection raised on behalf of the Returning Officer by the learned Advocate General. It was contended that the right to stand for an election is not recognised as a fundamental right by the Constitution, and that, therefore, it is not open to this Court to grant relief by issuing a writ. But it will be seen that according to Art.32 it is only in the case of the Supreme Court that there is a restriction imposed by the Constitution that it can issue a writ only in enforcement of fundamental rights. In the case of High Courts, wider powers are conferred by the Constitution. This is clear from the wording of Art.226 according to which the High Courts have got the power of issuing writs not only for the enforcement of rights which are recognised as fundamental rights by the Constitution, but also "for any other purpose". Therefore, this objection raised on behalf of the Returning Officer by the learned Advocate General cannot be upheld. 13. We hold in the present case that Art.329(b) read with the provisions of the Representation of the People Act, XLIII of 1951, expressly excludes the jurisdiction of this Court to issue the writs asked for, and therefore, the prayers in the petitions cannot be granted. 14. Before leaving these cases, we must advert to the material inconvenience that will be caused to the State and to the parties as a result of the legislation on the subject of elections. The learned counsel for the petitioners has pointed out that there are as many as 600 polling booths in the constituency for which the name of the petitioner in O.P. No. 128 of 1951 has been proposed and there are as many as four lakhs of voters in this constituency. The provisions of the Representation of the People Act and Art.329 of the Constitution prevent a person in the position of the petitioner in the present case asking for relief from the decision recorded by the Returning Officer at a stage earlier than the stage at which an election petition can be presented by him. By the time such a petition is presented the election must have terminated. By the time such a petition is presented the election must have terminated. Rival candidates whose nominations have been held to be proper and the State, would have incurred very great trouble and inconvenience, not to speak of expense, in connection with the election. After they have gone through all these tribulations, should an election petition presented by the present petitioners be successful, the result would be that the election would be declared void. We, therefore, strongly feel that in fairness, adequate provision should be make by the Legislature for enabling a proper tribunal or court to consider the legality of the decision of a Returning Officer rejecting or accepting a nomination as in the present case, at a stage before the poll. If such a provision is made, considerable expense and inconvenience to parties and the State can be avoided and we trust that the authorities concerned will apply their minds to this aspect of the case. 15. The next question we have to consider is with regard to costs. Seeing that the question has arisen for the first time under our new Constitution and consequently there are no prior decisions on the point, we consider that in the interests of justice it will be sufficient if nominal costs are awarded to the respondents. Only two of them are represented by counsel. In dismissing these two petitions we therefore direct the petitioner in each cases to pay as advocate's fee Rs. 25/- each to respondent 1 and 4 in the two cases. 16. The petitions having been dismissed the interim injunction already granted shall be dissolved and the fact intimated to the Returning Officer without any delay. 17. After the judgment was pronounced, an oral application is made by Mr.. M.S. Menon learned counsel appearing for the petitioner in O.P. No. 128/1951 and Mr. P.I. Simon learned counsel appearing for the petitioner in O.P. 119/1951 for a certificate under Art.132(1) of the Constitution. The question involved in this case is a substantial question of law as to the interpretation of the Constitution and therefore we have no hesitation in granting the certificate asked for. Dismissed.