Shankar Rao Ramaji v. State of Madhya Bharat — 1951 DIGILAW 99 (MP)

ORDER : We have before us two applications one (No. 92 of 1951) and the other (No. 93 of 1951) arising out of proceedings relating to the forthcoming general elections. The first mentioned application is made by Shankar Rao Ramaji Masde who is a candidate for election to Madhya Bharat Legislative Assembly from Dapalpur Constituency. He alleges that he belongs to the Scheduled Caste and is a candidate for one out of the two seats which is reserved for the members of that caste. The other application is made by Shri U.M. Trivedi of Nee-much. He is a candidate for election to the House of People from Mandsaur Constituency in Madhya Bharat. Both the petitioners complained that their nomination papers which were duly filed have been wrongly rejected by the Returning Officers concerned. The learned counsel for Mr. Trivedi contended that in rejecting the nomination paper of his client the Returning Officer acted mala fide. The first of these applications was presented before a Division Bench yesterday. As for obvious reasons it was a matter which required speedy disposal Mr. Justice Mehta and Mr. Justice Dixit who composed the Bench directed it to be fixed for hearing to-day. Mr. Trivedi's application was presented only this afternoon. It was directed that as one of the questions which arose in both these applications was of general public importance, they should be heard by a Full Bench. This has been done accordingly. 2. It was considered proper to issue notice of the first of these applications to the Advocate General as one of the questions which came up for consideration related to the interpretation of Article 329 of the Constitution. 3. We entertained a doubt whether this Court has the jurisdiction to entertain these applications and grant the relief asked for in view of the provisions of Article 329 of the Constitution. 3. We entertained a doubt whether this Court has the jurisdiction to entertain these applications and grant the relief asked for in view of the provisions of Article 329 of the Constitution. We have heard the learned counsel for the applicants and the Advocate General and have come to the conclusion that as no election to either House of Parliament or to the House or either House of the Legislature of a State can 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, and Parliament has by enacting Representation of the People Act, 1951 made provision for dealing with all such matters this Court has no jurisdiction to entertain these applications. 4. In our opinion the word 'election' as used in Article 329(b) of the Constitution of India should not be so interpreted as to confine it only to the result of an election but it covers the entire process whereof the declaration of a candidate as duly elected is the result. 5. The applications are therefore rejected. 6. We have dictated this short order in view of the desirability of giving a speedy decision in all such matters. We will give detailed reasons for the view taken by us later. 7. DIXIT, J. :- In these two applications under Article 226 of the Constitution, the petitioners who are candidates seeking elections from two different constituencies in Madhya Bharat to the House of People and the Madhya Bharat State Legislative Assembly, challenge the decisions of the Returning Officers in rejecting their nominations for elections. 8. The petitioner in Miscellaneous case 92 of 51 is one Shankar Rao Masade. 8. The petitioner in Miscellaneous case 92 of 51 is one Shankar Rao Masade. He states that as his name was omitted from the electoral roll, he made an application on 8-11-1951 in accordance with Rule (20), (2) of the Representation of the People (Preparation of Electoral Rolls), Rules, 1950 to the Election Commission for the inclusion of his name in the electoral roll for the constituency from which he sought election; that on 20-11-51 he presented to the Returning Officer for the Dapalpur Constituency of the Madhya Bharat Legislative Assembly, a nomination form for his election to fill one of the seats which is reserved for the Scheduled Castes that the nomination was in the prescribed form accompanied by a receipt of the Election Commission of his application for the registration of his name in the electoral roll, and was in order, but the Returning Officer refused to accept the nomination paper on the ground that the petitioner's name was not included in the electoral roll and returned it to the applicant, some two hours after its presentation with an endorsement thereon as to the date and time of the presentation. The petitioner prays that a direction in the nature of a writ of mandamus be issued to the Returning Officer to stay the proceedings in connection with the general election in the constituency and accept the nomination form of the petitioner. 9. The applicant, in the other case Uma Shankar Trivedi sought election to the House of People from a constituency comprising of Mandsaur District and Jaora Tehsil of Ratlam District. His averment is that on 17-11-51 before the appointed date and time, he presented to the Returning Officer for the constituency two nomination papers for his election to the House of People from that constituency; that on 23-11-51, that is, on the date fixed for the scrutiny of the nomination papers, the Returning Officer departing from the procedure he followed in the case of nomination papers of other candidates, considered the petitioner's nomination forms together instead of separately and rejected both of them inter alia on the ground of misdescription of the constituency, saying that the constituency mentioned in the nomination papers is 'Mandsaur' whereas it should have been "6 Mandsaur M.B.". The petitioner alleges that the Returning Officer acted mala fide in rejecting his nomination. The petitioner alleges that the Returning Officer acted mala fide in rejecting his nomination. He prays that the Returning Officer's orders accepting the nomination papers of all other candidates and rejecting his nomination papers be quashed and the petitioner be declared to be duly and validly nominated. 10. The petition filed by Shankar Rao Masade was first put up for hearing before a Division Bench consisting of my brother Mehta and myself. As the petition raised an important question as to the jurisdiction of this Court to enquire into the correctness of the order passed by the Returning Officer and as to the interpretation of Article 329 of the Constitution, we issued a notice to the Advocate General and directed that the papers be put up before my Lord the Chief Justice for the constitution of a Full Bench to hear the application. Accordingly, a Full Bench was constituted. While the hearing of this petition was on before before the Full Bench, Mr. Trivedi presented his application. It was also heard by the Full Bench as it raised the same preliminary question. At the conclusion of the arguments of the learned Counsel for the petitioners and of the learned Advocate General, the Court delivered a brief order expressing the opinion that Article 329 of the Constitution barred the jurisdiction of this Court to entertain the petitions and stating that detailed reasons for this conclusion would be given afterwards. Accordingly, I am now stating my reasons in this order. 11. The main question that arises for determination is whether in view of the provisions of Article 329 of the Constitution, this Court has the jurisdiction to entertain any application under Art. 226 challenging the order of a Returning Officer rejecting the nomination of a person seeking election. 12. In order to appreciate the precise question for determination and the contentions of the petitioners thereon, it seems to me necessary to refer to the relevant provisions of the Constitution and of the Representation of the People Act, 1951. 13. Part XV of the Constitution contains provisions relating to elections. Article 327 gives to the Parliament the power to make provision by law with respect to all matters relating to, or in connection with elections to the Parliament or State Legislatures. 13. Part XV of the Constitution contains provisions relating to elections. Article 327 gives to the Parliament the power to make provision by law with respect to all matters relating to, or in connection with elections to the Parliament or State Legislatures. Article 328 empowers State Legislatures to make provision by law with respect to all matter relating to, or in connection with elections to State Legislatures in so far as provision in that behalf is not made by Parliament and subject to the provisions of the Constitution. Article 329 which is very material to the question before us is as follows : "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 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." 14. In July, 1951, Parliament enacted the Representation of the People Act, 1951 (Act No. XLIII of 51) to provide inter alia for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State and for the decision of doubts and disputes arising out of or in connection with such elections. Section 2 of this Act is the definition section. By S. 2 (d) it is provided that the term "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". 15. Section 17 requires that for the purpose of constituting the Legislative Assembly of a State under the Constitution, the Governor or the Raj Pramukh as the case may be of the State shall, by one or more notification, call upon all the Assembly Constituencies to elect members in accordance with the provisions of the Act and of the rules and orders made thereunder before the appointed date or dates. In exercise of the powers conferred by this section, the Raj Pramukh issued a notification (Notification No. 187 J.L. 226/51 published in the Extra-ordinary Gazette on 10-11-51) calling upon the Legislative Assembly constituencies in this State to elect members before 15-2-52. 16. Section 30 of the Act provides that as soon as the notification calling upon a constituency to elect a member or members is issued under the Act, the appropriate authority, which in the present case is the Raj Pramukh, shall, notify in the Gazette, the last date for making nominations; the date for the scrutiny of nomination; the last date for the withdrawal of candidatures; and the date or dates on which a poll shall, if necessary, be taken. Accordingly, on 10-11-51, the Raj Pramukh issued a notification No. 188 VIII-J.L. 226/51 appointing, (a) the 20th November, 51 as the last date for making nominations. (b) 23-11-1951 as the date for scrutiny of nominations, and (c) 26-11-51 as the last date for the withdrawal of candidatures. 17. Sections 32 and 33 of the Act deal with the nomination of candidates for election, and presentation of nomination paper and requirements for a valid nomination. 18. Under S. 35 of the Act, the Returning Officer, is required on receiving the nomination paper under S. 33 (1), to inform the person delivering the nomination paper of the date, time and place fixed for the scrutiny of nominations and to endorse on the nomination paper the date on which and the hour at which it was delivered to him. 19. Section 36 of the Act lays down the procedure to be followed at the scrutiny of the nominations and gives to the Returning Officer the power to refuse any nomination on any of the grounds mentioned in that section. Subsection 3 of this section prohibits the refusal of the nomination of any candidate on the ground of any irregularity in respect of any nomination paper if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. Sub-section 4 prescribes that the Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. 20. Sections 56 to 63 of the Act deal with the poll, manner of voting at elections and method of voting. Sub-section 4 prescribes that the Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. 20. Sections 56 to 63 of the Act deal with the poll, manner of voting at elections and method of voting. Sections 64 to 67 deal with the counting of votes and declaration of results. Secs. 71 to 75 speak of the publication of the results of elections. 21. Part VI of the Act contains provisions about disputes regarding elections. Briefly stated, the provisions are to the effect that an election petition calling in question any election may be presented in the prescribed form on one or more of the grounds specified in S. 100 or 101 by any candidate or any elector, and the trial of the petition shall be by an Election Tribunal constituted in accordance with S. 86 of the Act. Clause (c) of sub-section 1 of S. 100 lays down that if the Tribunal is of opinion : "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. 22. Section 105 says that every order of the Tribunal made under the Act shall be final and conclusive. Section 170 of the Act reads as follows : "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." 23. Mr. Ojha, learned Counsel appearing for the petitioner Shankar Rao Masade contended that under Ss. 33 and 35 of the Representation of the People Act 1951, the Returning Officer was bound to receive the nomination paper of the petitioner delivered to him and to inform him the date, time and place fixed for the scrutiny of the nominations, and that he acted contrary to the provisions of these sections in returning it before the date fixed for the scrutiny of the nominations to the petitioner on the ground that his name was not included in the electoral roll for the constituency. Mr. Mr. Ojha further, said that Art. 329 of the Constitution did not bar him from seeking redress under Art. 226 from this Court, as in asking this Court to issue a direction in the nature of a writ of mandamus to the Returning Officer to receive the petitioner's nomination, he was not calling in question any election which is yet to be held. Mr. Rege's contention on behalf of the petitioner Uma Shankar Trivedi is that under S. 36 (3) of the Representation of the People Act, the Returning Officer should have considered separately the two nomination papers filed by the petitioner and that in rejecting these nomination papers jointly on the grounds, he did, the Returning Officer acted male fide and deliberately misinterpreted perfectly clear provision of law with the object of depriving the petitioner of his lawful right to be nominated to stand as a candidate in the election. Mr. Rege maintained that the right of being nominated as a candidate for election to the House of People is a right conferred by the Constitution and if that right is infringed, the petitioner is entitled to invoke the jurisdiction of this Court under Art. 226 to enforce that right. According to Mr. Rege, the word election in the expression "no election" as used in Art. 329 (b) means the actual act of choosing by the casting of votes of one or more persons from a number and that, therefore, Art. 329 does not take away from the petitioner the remedy provided by Art. 226 to enforce his right of being nominated as a candidate for election to fill a seat in the constituency. 24. The learned Advocate-General argues that the term "election" as used in the beginning of Art. 329 (b) means the whole process whereby a candidate is returned and that as the Representation of the People Act, 1951, prescribes a procedure for the presentation of election petitions, and their trial by a tribunal constituted thereunder, Art. 329 (b) completely shuts out the petitioners from challenging before this Court by way of a petition under Art. 226, the orders of the Returning Officers rejecting their nomination papers. In the alternative, it was further said by the learned Advocate-General that even if this Court has jurisdiction to interfere in the orders of a Returning Officer passed in the course of election, a direction of the nature prayed for should not be issued by this Court as the petitioners have the alternative remedy under the Representation of the People Act, 1951, of attacking the orders of the Returning Officers by presenting election petitions to the Election Commission. 25. On a careful consideration of Art. 329 of the Constitution, of the provisions of the Representation of the People Act, 1951, and the arguments of the learned Counsel I do not find myself able to hold that this Court can under Art. 226 entertain and decide on merits any petition against an order of a Returning Officer rejecting a nomination paper. That the right of being nominated to stand as a candidate for election to the Parliament or to the State Legislatures is a right conferred by the Constitution, and subject to its provisions, cannot, I think admit of doubt. But before it follows that Art. 226 gives a remedy for the infringement of the right, we have to note whether the Constitution which creates this right, itself contains provisions for the setting up of a Tribunal for trying cases for the infringement of the right and for the exclusion of this Court's jurisdiction to deal under Art. 226 with such an infringement. If there are such provisions, then, clearly this Court can have no jurisdiction to entertain the present petitions. It is settled law that where a statute creates a right and provides for the constitution of a special Tribunal for determining questions as to that right and the special tribunal functions then except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. As observed by Willes, J., in 'WOLVERHAMPTON NEW WATER WORKS CO. v. HAWKESFOR', (1859) 7 WR 464 : "There are three classes of cases in which a liability may be established founded upon statute. As observed by Willes, J., in 'WOLVERHAMPTON NEW WATER WORKS CO. v. HAWKESFOR', (1859) 7 WR 464 : "There are three classes of cases in which a liability may be established founded upon statute. One is, where there was liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from 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 the statute which at the same time gives a special and particular remedy for enforcing it. The presented case falls within this latter class, if any liability at all exists. The remedy provided by the statute must be followed, and 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." 26. We have, therefore, to see whether the Constitution contemplates a special procedure and a remedy for giving effect to the petitioners' right to be nominated to stand as candidates in the elections. 27. Now, leaving aside for the moment the question as to the meaning of the word "Election" in the expression "no election shall be called in question" it is clear that Art. 329 (b) of the Constitution prohibits an election being 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. The law contemplated by the Clause is clearly the Representation of the People Act 1951 enacted by the Parliament in the exercise of the power conferred under Art. 327. The law contemplated by the Clause is clearly the Representation of the People Act 1951 enacted by the Parliament in the exercise of the power conferred under Art. 327. Part VI of this Act prescribes the procedure for the presentation of a petition challenging any election, for the constitution of a Tribunal to try the petition and the procedure to be followed by the Tribunal in the trial, and specifies the grounds on which the tribunal may declare the election to be wholly void, or declare the election of the returned candidate to be void. Under this part an election petition may be presented by any candidate or any elector on one or more of the grounds specified in Ss. 100 and 101 of the Act. One of the grounds stated in S. 100, (1), (c) on which the Tribunal is authorised to declare an election to be wholly void is that: "the result of the election has been materially affected by the improper acceptance or rejection of any nomination." I do not read the words "the result of the election has been materially affected" as giving to the Tribunal on finding in the case of a petition presented by a person whose nomination paper has been improperly rejected, that it was so rejected the freedom to declare whether by this irregularity the result of the election has been materially affected. In such a case a Tribunal would appear to have no option but to hold that the result of the election has been materially affected and to declare the election to be wholly void. The words "the result of the election has been materially affected" have been used, in my opinion, to cover the cases of those election petitions where the person whose nomination paper has been improperly rejected, is himself not the petitioner and is not aggrieved by the order of the returning officer rejecting his nomination paper or is not interested in having the election declared void so as to enable him to stand as a candidate in a fresh election. A remedy is, therefore, provided to a person whose nomination paper has been improperly rejected to have the election declared void by the special Tribunal on the ground of the improper rejection of the nomination. Sections 105 and 170 of the Act make the orders of the Tribunal and the Returning Officer final and not subject. A remedy is, therefore, provided to a person whose nomination paper has been improperly rejected to have the election declared void by the special Tribunal on the ground of the improper rejection of the nomination. Sections 105 and 170 of the Act make the orders of the Tribunal and the Returning Officer final and not subject. The scheme of the Act is to set up a Special Tribunal for the trial of election disputes, confer a special jurisdiction upon that Tribunal and oust the jurisdiction of ordinary Civil Courts. It is quite true that Ss. 105 and 170 of the Representation of the People Act, 1951, or any other provision of that Act cannot by themselves in any way affect the jurisdiction of the High Court to issue writs under Art. 226 of the Constitution. But the jurisdiction of the High Court to enquire under Art. 226 into the validity of any election is taken away not by the Representation of the People Act but by Art. 329 itself. The opening words of this Article are "Notwithstanding anything in this Constitution". As was recently pointed out by the Supreme Court in the case of 'STATE OF SERAIKELLA v. UNION OF INDIA,' AIR (38) 1951 SC 253, the expression "Notwithstanding anything in this Constitution" overrides all provisions of the Constitution. The jurisdiction of the High Court is as defined in Arts. 225, 226, 227 and 228 of the Constitution. Article 329 means that notwithstanding anything contained in those articles and other articles of the Constitution, no election shall be called in question by invoking the powers of the High Court under those Articles. But for the opening words of the Art. 329, I would have had no hesitation in entertaining these petitions and in giving to the applicants substantially the relief they seek; it could not have been refused to the petitioners on the ground that they had a remedy under the Representation of the People Act, 1951. It is no consolation and remedy to a person whose nomination paper has been improperly rejected to tell him that he must let the election go on and then have it set aside by an election petition and have a fresh election ordered. It it obvious that such a post-election remedy would be wholly inadequate. It is no consolation and remedy to a person whose nomination paper has been improperly rejected to tell him that he must let the election go on and then have it set aside by an election petition and have a fresh election ordered. It it obvious that such a post-election remedy would be wholly inadequate. In seeking the remedy under the Representation of the People Act, the person would necessarily be put to trouble and expense and if he succeeds he would be required to meet the prospect of a fresh election under altogether different conditions and with an array of fresh candidates. 28. Learned counsel for the petitioners do not dispute that Art. 329 controls the operation of Art. 226 of the Constitution. Their main contention is that the word "election" should not be construed as including a stage at which a nomination paper is presented to the Returning Officer, under S. 33 of the Representation of the People Act, or the stage at which it is rejected or accepted after the scrutiny of nomination under S. 36 of the Act. The question for consideration, therefore, ultimately resolves itself into one of the meaning of the term "election" as used in Art. 329 (b) of the Constitution. Counsel for the petitioner Masade said that it meant the result of election. Mr. Rege for the petitioner Trivedi sought to restrict the meaning of the term of the actual act of the choosing of the candidates by the casting of ballots. I am not disposed to accept the construction put on the word by the learned counsel for the petitioners. The term "election" is not defined in the Constitution. The definition of the term given in the Representation of the People Act, 1951, is not very helpful in answering the question before us. In its ordinary or etymological meaning the term means some act of choosing specially by votes. To say that "No election shall be called into question" means that the result of no election shall be called in question, is to ignore the fact that when the validity of any election is challenged, the attack is not directed against the purely isolated fact of the result but it is directed against the whole procedure and process which led to that result. Again the definition suggested by Mr. Again the definition suggested by Mr. Rege learned counsel for the petitioner Trivedi, does not take account of an uncontested election where a person is declared as duly elected to fill a seat without a poll being taken. 29. It is stated in Halsbury's "Law of England" Vol. 12 (Hailsham Edition) at pages, 232, 237 and 238 that "the first step towards an election of a member of the Parliament is the issue of a writ put of the Crown Office in Chancery . . . . it is a question of fact in each case when an election begins in such a way as to make a party concerned responsible for breaches of election law, the test being whether the contest is "reasonably imminent". Neither the issue of a writ nor the publication of the Notice of election can be looked to as fixing a date when an election begins from this point of view." It seems to me that the meaning of the term "election" as used in Art. 329 (b) must, therefore, be determined on a consideration of the whole procedure whereby a person is elected to the Parliament or to a State Legislature in accordance with the provisions of the Representation of the People Act, 1951. The effect of these provisions is that the election is held in the case of a State Legislative Assembly in pursuance of the notification or notifications issued under S. 17 of the Act by Raj Pramukh or the Governor, as the case may be, for the constitution of the Assembly. After the issue of this notification, dates for the filing of nomination papers, for their scrutiny and for the withdrawal of candidatures are fixed under S. 30. Nomination papers of candidates for election are then presented to the Returning Officers; they are scrutinised and after scrutiny, a list of valid nominations is published in the prescribed manner. Thereafter, if the number of candidates duly nominated is more than the number of seats to be filled, a poll is taken, if the number of candidates is equal to the number of seats to be filled, the candidates are declared to be duly elected to fill those seats without a poll being taken; and if the number of candidates is less than the number of seats to be filled, the procedure laid down in S. 53(3) of the Act is followed. The next step when a poll is taken is the counting of votes and when the counting is completed, the Returning Officer declares the result of the election and makes a report of the result in the manner provided by the Act. Lastly, the results of the election are published in accordance with S. 74 of the Act. A close examination of these provisions leads me to the conclusion that from the point of view of the question before us, the election commences when a nomination paper of the person seeking election is presented to the Returning Officer and ends when the Returning Officer declares the result of the election. The act of the Returning Officer, therefore, in refusing to receive a nomination paper, or in accepting or rejecting a nomination paper after scrutiny is clearly a matter which forms a part of the election. 30. During the course of his arguments Mr. Ojha drew our attention to the difference in the wording of Art. 329 (b) on the one hand and Arts. 327 and 323 on the other and sought to emphasise the point that inasmuch as in Arts. 327 and 328, the words "with respect to all matters relating to, or in connection with the ejection" have been used to enlarge the field of legislation of the Parliament and the State Legislatures, the word "election as used in these Articles and Art. 329(b) can only be taken as bearing the meaning contended by him. This argument cannot be accepted. I do not propose to enter into an examination of the meaning and scope of the word "election" as used in Arts. 327 and 328 or in item 72 of list I and in item 37 of list II of the seventh schedule. But it seems to me necessary to point out that the object of Arts 327 and 328 and the use of the words therein, namely, "with respect to all matters relating to, or in connection with the elections" is to enlarge the scope of the powers of Legislation of the Parliament and the State Legislatures beyond the limits expressed in Art. 246 of the Constitution which gives to the Parliament the power to make laws with respect to matters enumerated in list I and to the State Legislatures with respect to matters enumerated in List II. The necessity for the use of the words referred to above in Arts. 327 and 328 becomes obvious when one remembers the observations of Sulaiman, J., in 'UNITED PROVINCES v. ATIQA BEGAM', AIR (28) 1941 FC 16, that the words "with respect to" as used in S. 100 of the Government of India Act, 1935 are not necessarily the exact equivalent of 'relating to' or 'connected with'. These words may not include a case where the subject of legislation is only remote related or very indirectly connected with the matters mentioned in the categories. An act may principally be with respect to some other subject and yet it may incidentally relate to one under consideration. The mere fact that there is a slight, remote or indirect relation or connection, would not be sufficient to answer the affirmative the question whether it is with respect to such subject. It is not enough that it should be in its working somehow overreach that subject. It has to be seen whether it appertains to such matters substantially and directly, and not only whether it should in actual operation affect any such matter in an indirect way". I do not think that the words "with respect to all matters relating to, or in connection with" used in Arts. 327 and 328 can be taken to have been used because the meaning of 'election' is restricted to the result of the election or to the actual casting of votes. 31. In my view, the term "election" as used in Art. 329(b) seems to cover the whole procedure that takes place after the issue of a notification calling upon the constituencies concerned to elect members in accordance with the provisions of the Representation of the People Act, 1951, and whereby a person is returned whether or not it be found necessary to take a poll. It follows, therefore, that the refusal of a Returning Officer to receive a nomination paper, or to accept or reject a nomination paper after scrutiny is a matter in the course of an election and this Court has no jurisdiction to entertain the petitions challenging the acts done by the Returning Officers in the present two cases. 32. It follows, therefore, that the refusal of a Returning Officer to receive a nomination paper, or to accept or reject a nomination paper after scrutiny is a matter in the course of an election and this Court has no jurisdiction to entertain the petitions challenging the acts done by the Returning Officers in the present two cases. 32. Indeed, to hold otherwise is to ignore all the difficulties and anomalies arising out of a conflict of jurisdiction between the High Court and the Special Tribunals contemplated by the Constitution and the Representation of the People Act, 1951, to enquire into and determine election disputes. I find it difficult to believe that the farmers of the Constitution and the Parliament while contemplating that special tribunal should be seized of disputes regarding elections, intended that the High Court should also have concurrent jurisdiction with the Tribunal. If they wanted not to bar the jurisdiction of the High Court and not to give exclusive jurisdiction to the Tribunals, nothing would have been easier than to give an expression to such an intention by express words in the Constitution. The inconvenience and difficulties that would result by giving this Court concurrent jurisdiction with the Tribunal can better be imagined than described. If the High Court was to have concurrent jurisdiction, one would have expected provisions in the Constitution and the Representation of the People Act, 1951, concerning these difficulties. 33. It may be mentioned that the device of having election disputes determined by Special Tribunals to the exclusion of High Courts and other Civil Courts is not a new or special feature in our Country. It existed under the Government of India Act, 1915, and the subsequent Act of 1935. In many countries, the Courts decline to make an order in the nature of a writ of mandamus for the holding of a Parliamentary election or in relation to any dispute regarding the election on the ground that it would constitute an intrusion under the Constitution of the country upon the functions and privileges of the Legislature of that country. (See 'WILLIAM TEMPLE v. BULMER', (1943) Canada LR (SC) 265, in England, an election to the House of Commons can be challenged under the Parliamentary Elections Act, 1868, by presenting a petition to the King's Bench Division of the High Court of Justice. (See 'WILLIAM TEMPLE v. BULMER', (1943) Canada LR (SC) 265, in England, an election to the House of Commons can be challenged under the Parliamentary Elections Act, 1868, by presenting a petition to the King's Bench Division of the High Court of Justice. The trial of the petition is conducted by two Judges of the High Court. The determination of the Court is reported to the Speaker and is entered upon the journals of the House of Commons. This method has obviously been adopted to preserve the matter of election disputes as a privilege of the House and at the same time to avoid the adjudication of election petitions by a House susceptible to party passions. Into the reasons which impelled the framers of our Constitution and the Parliament to exclude the jurisdiction of Courts in relation to elections, it is purposeless to enter here. They have in their wisdom provided a special procedure and tribunals for the determination of election disputes. It is not the business of this Court to improve the provisions giving the special remedy but only to interpret and apply them. In making the above observations and in holding that this Court has no jurisdiction to entertain these petitions, I wish to guard myself against being understood as expressing any opinion on the question whether a decision of the election tribunal or any proceedings of the tribunal could be challenged before this Court by way of a petition under Art. 226 or 227. The question may have to be decided at the proper time when it comes before this Court, and I reserve my opinion thereon. 34. There remains one contention advanced on behalf of the applicant Masade, which I must notice, before concluding this judgment. Learned Counsel appearing for Masade said that the refusal to receive the nomination paper of the petitioner was not a part of the election, as in doing so the Returning Officer failed to exercise the jurisdiction vested in him by S. 33 of the Representation of the People Act, 1951. According to the learned Counsel, the position would have been different if the Returning Officer had received the nomination paper and rejected it after scrutiny on the day fixed for it. It was, therefore, argued that this Court could direct the Returning Officer to exercise the jurisdiction conferred on him under S. 33. There is no substance in this contention. According to the learned Counsel, the position would have been different if the Returning Officer had received the nomination paper and rejected it after scrutiny on the day fixed for it. It was, therefore, argued that this Court could direct the Returning Officer to exercise the jurisdiction conferred on him under S. 33. There is no substance in this contention. I have already pointed out that the refusal of a Returning Officer to receive a nomination paper is as much a part of election as its rejection after scrutiny. It makes no difference whether a nomination paper is refused by the Returning Officer or rejected by him after scrutiny. In either case, it is rejected. To my mind, the question, here, is not whether the Returning Officer has failed to exercise the jurisdiction vested in him by law or has erroneously exercised that jurisdiction. It is whether this Court has the authority under Art. 226 to correct any action or decision of an erring Returning Officer who fails to carry out his statutory obligations, however arbitrary and despotic the order or decision may be. As I have said before, the Constitution and the Representation of the People Act, 1951, provide a remedy against such actions and the decisions of the Returning Officers by way of an election petition after the election is over. 35. For the above reasons, I am constrained to hold that our jurisdiction to entertain these petitions is excluded. I use the word "constrained" deliberately, because I appreciate the feelings and the disappointment of the petitioners, in being required to wait until the elections are over for seeking redress of their grievances. But on a reasonable construction of Art. 329(b) and of the relevant provisions of the Representation of the People Act, to carry into effect the plain intention of the framers of the Constitution and of the Parliament, the conclusion cannot be any other than we have already reached. 36. The petitions must, therefore, be dismissed. In view of the nature and importance of the points raised by the petitions, there should be, in my opinion, no order as to costs in these petitions. 37. KAUL, C.J. :- I agree and have nothing to add. 38. MEHTA, J. :- I entirely agree with my learned brother Dixit, J. Petitions dismissed.