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2014 DIGILAW 453 (KAR)

J. Joseph Solomon v. Chief Election Commissioner

2014-04-08

C.R.KUMARASWAMY

body2014
Judgment :- 1. This writ petition is filed praying to quash Annexure-'F', the internet / web extract of the rejection of the nomination paper dated 27.03.2014. 2. Annexure-'F' indicates that Sri.J.Joseph Solomon - candidate for contesting election as an independent has been rejected. Feeling aggrieved by the same, the petitioner has preferred this writ petition. 3. Heard the learned counsel for the petitioner as well as learned counsel for the respondents. 4. Learned counsel for the petitioner submits as under: The Returning Officer i.e., the second respondent has not offered any reason for rejecting the nomination paper of the petitioner. He has been denied the opportunity to contest the election. Therefore, he seeks for Court's indulgence to quash Annexure-'F'. 5. Learned counsel for respondent Nos. 1 and 2 submits as under: Whenever, a nomination paper of a candidate is rejected, then, he has to file an election petition. He cannot seek the relief under Articles 226 and 227 of the Constitution of India. 6. In support of his contention, he relies on the rulings reported in Manda Jaganath Vs.K.S.Rathnam and Others reported in (2004) 7 SCC 492 . Attention of this Court was invited to Para Nos. 13, 14, 15 and 19 of the said ruling which reads as under: Para 13: It is to be seen that under Article 329(b) of the Constitution of India there is a specific prohibition against any challenge to an election either to the Houses of Parliament or to the Houses of Legislature of the State except by an election petition presented to such authority and in such manner as may be provided for in a law made by the appropriate legislature. Parliament has by enacting the Representation of the People Act, 1951 provided for such a forum for questioning such elections hence, under Article 329(b) no forum other than such forum constituted under the RP Act can entertain a complaint against any election. Para 14: The word "election" has been, judicially defined by various authorities of this Court to mean any and every act taken by the competent authority after the publication of the election notification. Para 15: In Ponnuswami this Court held: (AIR p. 68, para 9) The law of elections in India does not contemplate that there should be two attacks on matters connected. Para 15: In Ponnuswami this Court held: (AIR p. 68, para 9) The law of elections in India does not contemplate 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 have been expressly excluded), and another after they have been completed by means of an election petition. Para 19: In Election Commission of India v. Shivaji this Court while considering a challenge to the election notification which included certain Zila Parishads within a notified constituency, held following the judgment in Ponnuswami that even if there were any ground relating to the non-compliance with the provisions of the Act and the Constitution on which the validity of any election process could be questioned, the person interested in questioning the election has to wait till the election is over and institute a petition in accordance with Section 81 of the Act calling in question the election of the successful candidate. 7. Petitioner intends to contest election as an independent candidate for Lok Sabha seat. His nomination paper is rejected by the Returning Officer without assigning any reason. Right to contest election is not a fundamental right. It is right created by Statute and governed by statutory limitation. The only remedy open to the petitioner is through an election petition as contemplated under Article 329(b) of the Constitution of India after the election process is over Paramount consideration is c completion of election process. For the reasons stated above, besides applying the principles laid down in the above mentioned decision, in my view, this writ petition lacks merit. Accordingly, I pass the following: ORDER i) Writ petition is dismissed. ii) In case, if the petitioner intends to file an election petition, he is permitted to do so.