LawDistill
Supreme Court of India

S.T. MUTHUSAMI vs K. NATARAJAN & ORS on 20 January, 1988

Cites 4 provisionsCites 3 judgmentsCited by 7
Official PDFBench Ananda Prakash Sen, Engalaguppe Seetharamiah Venkataramiah
PETITIONER:
S.T. MUTHUSAMI
Vs.
RESPONDENT:
K. NATARAJAN & ORS.
DATE OF JUDGMENT20/01/1988
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
SEN, A.P. (J)
CITATION:
1988 AIR 616 1988 SCR (2) 759
1988 SCC (1) 572 JT 1988 (1) 159
1988 SCALE (1)149
ACT:
Tamil Nadu Panchayats Act, 1958-Whether High Court
could interfere with an election process at an intermediate
stage after commencement of election process and before
declaration of result of election held for filling vacancy
in the office of Chairman of a Panchayat Union under
provisions-Thereof.
HEADNOTE:
%
The question for consideration in this case was whether
it was appropriate for the High Court to interfere with an
election process at an intermediate stage after its
commencement and before the declaration of the result of the
election held for filling up a vacancy in the office of the
Chairman of a Panchayat Union under the Tamil Nadu
Panchayats, Act, 1958 (The Act), on the ground that there
was an error in the matter of allotment of symbols to the
contesting candidates.
..................................................
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 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 an authority
unconnected with the process of election. Even if there is
any mistake committed by either the election authority or
the Returning officer in the allotment of symbol to the
appellant the said mistake can only amount to a non-
compliance with the provisions of the Act or the Rules made
thereunder. It is clear from clause (c) of rule 11 of the
Rules made for the purpose of providing a machinery for the
decision of election disputes relating to panchayat union
councils that every action amounting to such non-compliance
with the provisions of the Act and the Rules made thereunder
would not automatically vitiate an election. It is only when
the election court on a consideration of the entire material
placed before it at the trial of an election petition comes
to the conclusion that the result of the election has been
materially affected by such non-compliance with any of the
provisions of the Act or the Rules made thereunder the
election of the returned candidate can be declared void.
Rule 1 of the said Rules provides that an election held
under the Act whether of a member or chairman or vice-
chairman of a panchayat union council can be called in
question only by an election petition 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 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 court while the election
is in progress."
Having laid down the above principles, the Court
further held that Article 329(b) of the Constitution of
India had the effect of ousting the jurisdiction of the
courts with regard to the matters arising between the
commencement of the polling and the final selection.
Repelling the argument that Article 329(b) of the
Constitution ousted the jurisdiction of the courts only with
regard to matters arising between the commencement of the
polling and the final selection and that questions relating
to nominations could be agitated under Article 226 of the
Constitution this Court observed thus:
"The question which has to be asked is what
conceivable reason the legislature could have had
to leave only matters connected with nominations
subject to the jurisdiction of the High Court
under Article 226 of the Constitution. If Part XV
of the Constitution is a code by itself i.e., it
creates rights and provides for their enforcement
by a special tribunal to the exclusion of all
courts including the High Court, there can be no
reason for assuming that the Constitution left one
small part of the election process to be made the
subject-matter of contest before the High Courts

CIVIL APPELLATE JURISDICTION: Civil Appeal No 1722 of 1986.

From the Judgment and order dated 8 4 ]986 of the Madras High Court in W A. No. 173 of 1986.

T.S Krishnamurthy Iyer, M.N. Krishnamani and V. Balachandran for the Appellant.

Kailash Vasudev for the Respondents.

The Judgment of the Court was delivered by

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 the election 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 Anna Dravida Munnetra Kazhagam and Dravida Munnetra Kazhagam. 15 other symbols were also notified by the Returning officer which could be assigned to the independent candidates contesting the elections. Under the procedure prescribed by the Government where a candidate was set up by a national party who could claim the symbol which was reserved for such national party, the said national party had to send an intimation to the State Election Authority, namely, the Director of the Rural Development, Madras (respondent No. 3) intimating in Form ’A’ annexed to the order of the Government the names and the specimen signatures of not more than two representatives of the party who had been authorised to send intimations of the names of the candidates set up by the party in respect of the election to the office of the Chairmen of the Panchayat Union Councils and the Presidents of Town Panchayats. These representatives of the parties, whose names were intimated to the Director of the Rural Development were then either singly or generally required to intimate the names of the persons, whom the party concerned had authorised to contest as its official candidates in order of priority in Form ’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 the President 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 Election Authority as well as the Secretary to the Government, Rural Development Department, Government of Tamil Nadu on 4.2.1986 stating that he had not given his approval to respondent No. 6 being an official Congress (I) candidate and that the authorised candidate of the Congress (I) Party was the appellant, S.T. Muthusami. On receipt of the said letter respondent No. 3-the Director of the Rural Development Department, the Election Authority sent a telex message to the Collector of Coimbatore to treat the appellant as the official candidate of the Indian National Congress (I) Party and to assign the symbol ’hand’ to him. The Collector communicated this message to the Returning officer by sending telex message on 6.2.1986. In accordance with that direction the Returning officer issued an Errata Notification in Form VI assigning of the symbol ’hand’ which had been reserved for the Indian National Congress (I) to the appellant on that date itself and the copies of the said Errata Notification were sent by him to all the contesting candidates through special messengers. This action of the Returning officer was challenged by respondent No. 1-K. Natarajan, who was a validly nominated 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, respondent 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 to Panchayat Union Councils’ have provided a machinery for the settlement of the election disputes relating to Panchayat Union Councils. The relevant parts of rule ] and rule 11 of the said Rules read thus:

"I(1) Save as otherwise provided, no election

held under the T.N Panchayats Act, 1958 whether of

a member, chairman or vice-chairman of a panchayat

union council shall be called in question except

by an election petition presented in accordance

with these rules to an election court as defined

in sub-rule (2) by any candidate or elector

against the candidate who has been declared to

have been duly elected (hereinafter called the

returned candidate) .

(2) The election court shall be-

(i) except in cases falling under clause (ii)

in the case of districts other than the Nilgiris,

the District Munsif having territorial

jurisdiction over the place in which the office of

the panchayat union council is situated, or if

there is more than one such District Munsif,

elections governed would and in the case of

Nilgiris district the Subordinate Judge,

Ootacamund: and

(ii) where the Government so direct, whether

in respect of panchayat union councils generally

or in respect 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 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 an authority unconnected with the process of election. Even if there is any mistake committed by either the election authority or the Returning officer in the allotment of symbol to the appellant the said mistake can only amount to a noncompliance with the provisions of the Act or the Rules made thereunder. It is clear from clause (c) of rule 11 of the Rules made for the purpose of providing a machinery for the decision of election disputes relating to panchayat union councils that every action amounting to such non-compliance with the provisions of the Act and the Rules made thereunder would not automatically vitiate an election. It is only when the election court on a consideration of the entire material placed before it at the trial of an election petition comes to the conclusion that the result of the election has been materially affected by such non-compliance with any of the provisions of the Act or the Rules made thereunder the election of the returned candidate can be declared void. Rule 1 of the said Rules provides that an election held under the Act whether of a member or chairman or vicechairman of a panchayat union council can be called in question only by an election petition 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 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 court while the election

is in progress."

Having laid down the above principles, the Court further held that Article 329(b) of the Constitution of India had the effect of ousting the jurisdiction of the courts with regard to the matters arising between the commencement of the polling and the final selection. Repelling the argument that Article 329(b) of the Constitution ousted the jurisdiction of the courts only with regard to matters arising between the commencement of the polling and the final selection and that questions relating to nominations could be agitated under Article 226 of the Constitution this Court observed thus:

"The question which has to be asked is what

conceivable reason the legislature could have had

to leave only matters connected with nominations

subject to the jurisdiction of the High Court

under Article 226 of the Constitution. If Part XV

of the Constitution is a code by itself i.e., it

creates rights and provides for their enforcement

by a special tribunal to the exclusion of all

courts including the High Court, there can be no

reason for assuming that the Constitution left one

small part of the election process to be made the

subject-matter of contest before the High Courts

and thereby upset the time schedule of the

elections 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 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

extraordinary circumstances in which the High

Courts could exercise their power under Article

226 of the Constitution in relation to elections

it is not now necessary to consider. All the

considerations applied in coming to the conclusion

that elections to the legislatures

should not be delayed or protracted by the

interference of A Courts at any intermediate stage

before the results of the election are over

applied with equal force to elections to local

bodies."

In the above passage this Court clarified that the conclusions in N.P. Ponnuswami’s case (supra) had been arrived without taking the provisions of Article 329 of the Constitution into account and that the provisions of Article 329 of the Constitution were relevant only to the extent that even the remedy under Article 226 of the Constitution was barred as a result of the provisions. Earlier in the course of the decision in Nanhoo Mal ’s case (supra) this Court observed at page 811:

"After the decision of this Court in N P.

Ponnuswami v. Returning officer, Namakkal

Constituency & Ors. there is hardly any room for

Courts to entertain applications under Article 226

of the Constitution in matters relating to

elections.

A Full Bench of the High Court of Madhya Pradesh expressed the same view in the year 1971 earlier in Malam Singh v. 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 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 their Lordships more

appropriately described as hardship or prejudice.

It was further urged that the Court could not

stultify itself by allowing the wrong which it was

asked to prevent to be actually consummated. While

rejecting the contention, their Lordships noticed

with approval the following observations of

Wallace, J. in Desi Chettiar v. Chinnasami

Chettair, AIR 1928Mad 1271:

The petitioner is not without his

remedy. His remedy lies in an election

petition which we under stand he has already

put in. It is argued for him that remedy

which merely allows him to have set aside an

election once held is not an efficacious as

the one which would enable him to stop the

election altogether and certain observations

at page 600 of ILR 47 Mad 585 (AIR 1923 Mad

475) (supra), are quoted. In the first place,

we do not see how the mere fact that the

petitioner cannot get the election stopped,

and has his remedy only after it is over by

an election petition, will in itself confer

on him any right to obtain a writ. In the

second place, these observations were

directed to the consideration of the

propriety of an injunction in a civil suit, a

matter with which we are not here concerned.

And finally, it may be observed that these

remarks were made some years ago when the

practice of individuals coming forward to

stop elections in order 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 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

the statute must be adopted and adhered to

The rule laid down by this passage was

approved by the House of Lords in Neville v.

London Express News paper Ltd., i 1919] AC 368,

and has been reaffirmed by the Privy Council in

Attorney General of Trinidad and Tobago v. Gordon

Grant & Co., 119351 AC 532 and Secy. Of State v.

Mask & Co., 44 Cal. WN 709 AIR 1940 PC 105, and it

has also been held to be equally applicable to

enforcement of rights (see Hurdutrai v. Off.

Assignee of Calcutta, [1948] 52 Cal WN 343 at p.

349. Further it was observed:

"Lastly, their Lordships stated that the law

of election in this country does not contemplate

that there should be two attacks on matters

connected with election proceedings, in the

following passage:

In my opinion, to affirm such a position

would be contrary to the scheme of .. the

Representation of the People Act, which as I

shall point out later, seems to be that any

matter which has the effect of vitiating an

election should be brought up only at the

appropriate stage in an appropriate manner be

fore a special tribunal and should not be

brought up at an intermediate stage before

any Court. It seems to me that under the

election law, the only significance, which

the rejection of a nomination paper has,

consists in the fact that it can be used as a

ground to call the 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 exer-

cise 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 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 under Article 226 of the Constitution quashing the Errata Notification allotting the symbol ’hand’ to the appellant by its judgment under appeal. We, therefore, set aside the judgment of the Division Bench of the High Court and dismiss 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. The appeal is accordingly allowed. No costs. S.L. Appeal allowed.