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TMI Blog1988 (1) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... miss the writ petition filed in the High Court. The Returning officer shall proceed with the election in accordance with law from the stage at which it was interrupted by the order of the High Court - Civil Appeal No 1722 of 1986 - - - Dated:- 20-1-1988 - SEN, A.P. AND VENKATARAMIAH, E.S., JJ. For the Appellant : T.S Krishnamurthy Iyer, M.N. Krishnamani and V. Balachandran For the Respondent: Kailash Vasudev JUDGMENT VENKATARAMIAH, J. The question for consideration in this case is whether it is appropriate for the High Court to interfere with an election process at an intermediate stage after the commencement of the election process and before the declaration of the result of the election held for the purpose of filling a vacancy in the office of the Chairman of a Panchayat Union under the provisions of the Tamil Nadu Panchayats Act, 1958 (Act XXXV of 1958) (hereinafter referred to as 'the Act') on the ground that there was an error in the matter of allotment of symbols to the candidates contesting at such election. The appellant - S.T. Muthusami, respondent No. 1-K. Natarajan, respondent No. 6-M. Thangavelu and two others were nominated as candidates at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 'B' annexed to the Government order. If the support to a candidate was withdrawn an intimation was required to be sent to the Returning officer not later than 3.00 P.M. On the last date fixed for withdrawal of the nomination papers. If no intimation was received before 3.00 PM. On the last date fixed for withdrawal the Returning officer was directed not to consider any candidate as a candidate set up by the political party and not to assign the symbol for which the priority was given to the concerned party. This order also stated that symbols should be assigned only by drawing lots when there were conflicting claims between two or more candidates and that no priority could be given to any candidate. In the case before us intimation was received by the Returning officer showing the appellant as the official candidate of Indian National Congress (I) under the signature of the President of the Tamil Nadu Congress (I) Committee by 12.00 noon on the 3rd of February, 1986. A similar letter was handed over by respondent No. 6 at 12.45 P.M. On that date showing that he was also the official candidate of the Indian National Congress (I). That letter also appeared to have been signed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed candidate with 'bow and arrow' as his symbol by filing a petition in Writ Petition No. 1178 of 1986 on the file of the High Court of Madras under Article 226 of the Constitution of India contending that the issuing of the Errata Notification was an abuse of power committed on extraneous and irrelevant considerations and there was undue interference with the actual conduct of the election. He prayed before the High Court that the Errata Notification dated 6.2.1986 should be quashed and the election should be directed to be proceeded with in accordance with the notification issued on 3.2.1986 under which the 'glass tumbler' symbol had been allotted to the appellant. The above Writ Petition came up for consideration before the learned Single Judge of the High Court on 17.2.1986. The learned Single Judge dismissed the Writ Petition holding that respondent No. 1-K. Natarajan, who had filed the Writ Petition, could not be considered as an aggrieved party since he did not claim to be the candidate sponsored by the Indian National Congress (I) and that the dispute could be, if at all, between the appellant and respondent No. 6. Aggrieved by the order of the learned Single Judge, respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any class of panchayat union councils or in respect of panchayat union councils in the same district or taluk, such (' officer or officers of Government as may be designated by the Government in this behalf by name or by virtue of office: Provided that an election petition may, on application, be transferred- (a) if presented to a District Munsif under clause (i), by the District Judge concerned to another District Munsif within his jurisdiction; and (b) if presented to an officer of Government under clause (ii), by the Government to another officer of Government: Provided further that where an election petition is transferred to any authority under the foregoing proviso, such authority shall be deemed to be the election court. 11.-If in the opinion of the election court- .................................................. (c) the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any non-compliance with the provisions of the Act or the rules made thereunder, the election of such returned candidate shall be void. ............The Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition and not otherwise. In these circumstances it has to be seen whether the Division Bench of the High Court was justified in setting aside the Errata Notification issued by the Returning officer with regard to the allotment of symbols. It is no doubt true that rule (1) of the Rules made for the settlement of election disputes which provides that an election can be questioned only by an election petition cannot have the effect of overriding the powers of the High Court under Article 226 of the Constitution of India. It may, however, be taken into consideration in determining whether it would be appropriate for the High Court to exercise its powers under Article 226 of the Constitution of India in a case of this nature. In N.P. Ponnuswami v. Returning officer, Namakkal Constituency and others, [1952] S.C.R. 218 dealing with the question whether a writ petition was a proper remedy which can be availed of by (, a person aggrieved by any irregularity in the conduct of an election before the result of the election is declared, Fazal Ali, J. On a consideration of the nature of litigation in respect of elections observed thus at page 234: "The conclusions which I have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s The more reasonable view seems to be that Article 329 covers all 'electoral matters."' lt is thus seen that in the above decision (which was rendered by the Full Court) this Court first laid down as a matter of general principle that interference with an election process between the commencement of such process and the stage of declaration of result by a court would not ordinarily be proper and next laid down that Article 329(b) of the Constitution had the effect of taking away the jurisdiction under Article 226 of the Constitution also in respect of the disputes arising out of election during the said period. Following the above decision in N. P. Ponnuswami's case (supra) in Nanhoo Mal Ors. v. Hira Mal Ors., [1976] 1 S.C R. 809 this Court held that the right to vote or stand for election to the office of the President of a Municipal Board is a creature of the statute, that is the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Accordingly, this Court held that the election to the office of the President of the Municipal Board could be challenged only according to the procedure prescribed by that Act and that is by means of an election pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Collector, Sehore, M.P. and others, AIR 1971 MP 195. In the above decision the High Court of Madhya Pradesh was called upon to consider the controversial question whether it was proper that the High Court should exercise its powers under Article 226 of the Constitution in election matters arising under the Madhya Pradesh Panchayats Act, 1962 at intermediate stages, that is, to interfere with individual orders passed during the process of election and thus impede that process or should it decline to exercise that power and leave the parties to their remedy of an election petition to be presented after the election was over. The provision that fell for consideration before the Full Bench of the Madhya Pradesh High Court in that case was section 375(1) of the Madhya Pradesh Panchayats Act, 1962, the language of which was identically the same as that of section 80 of the Representation of the People Act, 1951. It was pointed out that the Court in N.P. Ponnuswami's case (supra), having regard to the words 'Notwithstanding anything in this Constitution' used in Article 329(b) held that they G were sufficient to exclude jurisdiction of the High Court to deal with any matter which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der that their own individual interest may be safeguarded was not so common. It is clear that there is another side of the question to be considered, namely, the inconvenience to the public administration of having elections and the business of A Local Boards held up while individuals prosecute their individual grievances. These observations of Wallace, J. were made in regard to elections to Local Boards. It thus follows that the alternative remedy of an election petition is not less convenient beneficial and effectual." It was then observed: "Next, their Lordships re-stated the principle that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Their Lordships relied on the dictum of Willes, J., which has become classical: It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J., in Wolverhampton New Water Works Co. v. Hawkesford, [1859] 6 CB (NS) 336, at p. 356, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e election in question." In the ultimate analysis, the Full Bench laid down: " 12. There is no constitutional bar to the excise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities, Panchayats and the like. However, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the Court in the exercise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if the alternative remedy of an election petition is available. So, their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 stated: .... though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of cases." We are inclined to accept this view which lays down a salutary principle. The Division Bench of the High Court against whose decision the present appeal by special leave is filed was of the view that the issuing of the Errata N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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