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
TS Krishnamurthy Iyer MN Krishnamani and V Balachandran for the Appellant
Kailash Vasudev for the Respondents
The Judgment of the Court was delivered by 763 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 ST 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 811986 in exercise of the powers under rule 171 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 764 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 300 PM
On the last date fixed for withdrawal of the nomination papers
If no intimation was received before 300 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 1200 noon on the 3rd of February 1986
A similar letter was handed over by respondent No 6 at 1245 PM
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 ie 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 430 PM
On 321986 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 172 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 No3 who was the Election Authority as well as the Secretary to the Government Rural Development Department Government of Tamil Nadu on 421986 stating that he had not given his approval to respondent 765 No 6 being an official Congress I candidate and that the authorised candidate of the Congress I Party was the appellant ST 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 621986
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 621986 should be quashed and the election should be directed to be proceeded with in accordance with the notification issued on 321986 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 1721986
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 841986
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
766 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 1782ii 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 I1 Save as otherwise provided no election held under the TN 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 767 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 LA 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 29 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 768 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 NP Ponnuswami vs Returning officer Namakkal Constituency and others  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 769 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 329b 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 329b 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 ie 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 770 329 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 329b 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
vs Hira Mal  Ors  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 UP 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 NP 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 771 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 NP 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 vs 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 vs The Collector Sehore MP 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 3751 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 NP Ponnuswami s case supra having regard to the words Notwithstanding anything in this Constitution  used in Article 329b 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 NP Ponnuswami s case supra did not entirely turn on the language of Article 329b of the Constitution but the Court also enunciated certain well settled principles applicable to election cases in general
In particular the Court H 772 interpreted section 80 of the Representation of the People Act 1951
The Full Bench observed that though it was not concerned with Article 329b of the Constitution it was bound by the principles laid down in NP 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 vs Chairman Municipal Council Saidapet ILR  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 vs 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 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 773 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 vs Hawkesford   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 774 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 vs London Express News paper Ltd i  and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago vs Gordon Grant  Co 119351 AC 532 and Secy
Of State vs 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 vs Off
Assignee of Calcutta 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 775 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 vs Election Tribunal Kotah  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
SL Appeal allowed


Summary:
 As a result of the order passed by the High Court proceedings under section 442a of the West Bengal Estates Acquisition Act 1953 were re opened by the Special Revenue officer and final orders were passed on 921982
The Ist respondent preferred an appeal against this order before the 9th Additional District Judge the competent authority to hear an appeal
On 11283 the Ist respondent obtained an opinion of the Advocate General regarding the aforesaid proceedings and filed that opinion with an application
The Additional District Judge passed an order on 25286 rejecting the prayer of the Ist respondent that the appeal be disposed of in accordance with the opinion of the Advocate General but observed that the opinion of the Advocate General could only be looked into as the ground of appeal on behalf of the Ist respondent
The date of hearing of the appeal was fixed on 19486 to suit the convenience of the Advocates of the parties
A petition under article 227 was filed in the High Court against the 818 aforesaid order by the Ist respondent
The High Court treated this petition as a revision application challenging the order passed by the Additional District Judge on 25286 and held that the Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General and quashed the proceedings under Section 442a as well as the appeal that was pending hearing before the Additional District Judge
Allowing the Appeal by the State this Court  HELD l
The High Court lost sight of the fact that the only grievance against the order of the 9th Additional District Judge was that he refused to decide the appeal in accordance with the opinion of the Advocate General and that he did not give an early date of hearing
The question about the suo moto proceedings under section 442a and the validity of the Amendment Act 1969 and its effect were not considered by the appellate authority and in fact the appeal was still pending before the 9th Additional District Judge which was yet to be heard and disposed of
823G H 2
The High Court after examining the legal aspect without having been raised before it decided the matter so that neither appeal remains nor any proceedings remain and in doing so the High Court went on without there being proper grounds before it and without giving an opportunity to the appellant State of West Bengal to have their say in this matter
824A B 3
The order passed by the High Court dated 20587 is therefore completely without jurisdiction and on matters which were not before it and also without giving adequate opportunity of hearing and therefore deserves to be quashed and is quashed
824B c 4
The appeal that was filed by the Ist respondent before the 9th Additional District Judge was pending when the High Court passed the impugned order revives
It could not be said that the appeal is disposed of as observed by the High Court
It is directed that the appeal which was pending before the 9th Additional District Judge shall be heard by the Additional District Judge in accordance with law
824C D