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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 ..... ection held to the office of the Chairman, Panchayat Union, Madathukkulam, Udamalpet Taluk, Coimbatore District in the State of Tamil Nadu. The date of scrutiny of the nomination papers was 31st January, 1986 and the last date for withdrawal of nominations was 3rd February, 1986. The election was to take place on the 23rd February, 1986. On the date of the scrutiny of the nomination papers, the nomination papers of the appellant, respondent No. 1. respondent No. 6 and of two others were found to be valid by the Returning officer, respondent No. 5. As regards the allotment of symbols to the candidates the order made by the State Government on 8.1.1986 in exercise of the powers under rule 17(1) of the Tamil Nadu Panchayats (Conduct of Election of Chairmen of Panchayat Union Councils and Presidents and members of Panchayats) Rules, 1978 (hereinafter referred to as 'the Rules') directed that the Returning officer shall assign to the candidates set up by the National and the State parties the symbols reserved for the purpose by the Chief Election Commissioner. The symbol reserved for the Indian National Congress (I) was 'hand'. Similarly the symbols were also reserved for the All India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident of the Tamil Nadu Congress (I) Committee. Having found that two persons were claiming to be the official candidates of the same party, the Returning officer declined to grant the symbol 'hand' to any one of them. These two candidates, i.e., the appellant and respondent No. 6 then gave in writing their choice of symbols belonging to the unreserved category giving three alternative choices. Accepting the first choice of each of them, the Returning officer allotted at 4.30 P.M. On 3.2.1986 the symbol 'glass tumbler' to the appellant and the symbol 'fish' to respondent No. 6. The Returning officer then proceeded to publish the list of the candidates nominated as per rule 17(2) of the Rules with the symbols allotted to each of the three candidates, whose nomination papers had been found to be valid. Immediately after the publication of the said list of the nominated candidates, the President of the Tamil Nadu Congress (I) Committee who was alleged to have signed both the letters given to the Returning officer representing that the appellant and respondent No. 6 were both official candidates wrote to the Director of The Rural Development Department, respondent No.3, who was the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 filed an appeal in Writ Appeal No. 173 of 1986 before the High Court of Madras. The said appeal was heard by a Division Bench and it was allowed on 8.4.1986. The Division Bench quashed the Errata Notification issued by the Returning officer and directed him to hold the election on the basis of the symbols originally allotted, treating 'glass tumbler' as the symbol of the appellant and 'fish' as the symbol of respondent No. 6. The Returning officer was further directed to proceed immediately with the election process from that stage as provided by the Rules. Aggrieved by the order of the Division Bench, the appellant has filed this appeal by special leave. In this appeal there is no dispute about the tacts which have been set out above. The point urged by the appellant before us is that the Division Bench was in error in setting aside the Errata Notification issued by the Returning officer in exercise of its jurisdiction under Article 226 of the Constitution of India before the declaration of the result of the election in view of the existence of an alternative remedy under the Rules framed under section 178(2)(ii) of the Act entitled Decision of Election Disputes Relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order No 1677 L.A. dated 8. 10. 1960 provides that for all the purposes of the Act, the District Collector and the Division Development officer in respect of panchayat constituted under the said Act under the area within their respective jurisdiction, the District Collector in respect of every panchayat union council constituted under the Act in the District under his charge and the Additional Development Commissioner, Madras in respect of every said panchayat union council under the said Act shall be the election authorities. The expression 'election authority' is defined by section 2(9) of the Act as such authority? not being the president or vice president or a member of the panchayat or the chairman or vice chairman or a member of the panchayat union council as may be prescribed. Rule 5 of the Rules provides that subject to the superintendence, direction and control of the election authority the Returning officer shall be responsible for the proper conduct of the election under the rules. Instructions issued by the Election Authority to the Returning officer regarding the allotment of the symbols cannot, therefore, be construed as interference with the election process by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age 234: "The conclusions which I have arrived at may be summed up briefly as follows: (1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the 'election'; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed would have the effect of vitiating the 'election' and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of that Act and in no other way. The Court further held that the said Act provided only for one remedy, that remedy being an election petition to be presented after the election was over and there was no remedy provided at any intermediate stage. Referring to the decision in N.P. Ponnuswami's case (supra) this Court observed in the above decision at page 814 thus: "These conclusions follow from the decision of this Court in Ponnuswami's case (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 329(b) held that they G were sufficient to exclude jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress Nevertheless, the decision of the Court in N.P. Ponnuswami's case (supra) did not entirely turn on the language of Article 329(b) of the Constitution but the Court also enunciated certain well-settled principles applicable to election cases in general. In particular, the Court H interpreted section 80 of the Representation of the People Act, 1951. The Full Bench observed that though it was not concerned with Article 329(b) of the Constitution, it was bound by the principles laid down in N.P. Ponnuswami's case (supra). In delivering the judgment of the Full Bench, one of us (Sen, J.) observed: "9. First of all, their Lordships rejected the contention that the post-election remedy of an election petition was inadequate to afford the relief which the petitioner sought. On the strength of the observations of Wallace, J., in Sarvothama Rao v. Chairman, Municipal Council, Saidapet, ILR 47 Mad 585 AIR 1923 Mad 475, it was urged before them that to drive him to that remedy would be an anomaly, which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 following passage: E There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and a peculiar form of remedy different from F 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 a statute which at the same time gives a special and particular remedy for enforcing it ...... The remedy provided by the statute must be followed, and A it is not competent to the party to pursue the course applicable to cases of the second class. The form given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Notification by the Returning officer amounted a very serious breach and interference under Article 226 of the Constitution of India was called for. Taking into consideration all the aspects of the present case including the fact that the person who filed the writ petition before the High Court was not one of the candidates nominated by the Indian National Congress (I) and the fact that the President of the Tamil Nadu Congress (I) Committee had written that he had authorised the appellant to contest as the candidate on behalf of his party and he had not given his approval to respondent No 6 contesting as a candidate on behalf of his party, we feel that the exercise of the jurisdiction by the High Court in this case under Article 226 of the Constitution cannot be supported. The parties who are aggrieved by the result of the election can question the validity of election by an election petition which is an effective alternative remedy. We are of the view that the Division Bench of the High Court committed a serious error in issuing a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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