THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.11979 OF 2011 DATED: 30.04.2011 Between: 1. Y.S. Jagan Mohan Reddy, S/o. Late Y.S. Rajasekhara Reddy, 38 years, Presently residing at Pulivendula, YSR Kadapa District., and another .. Petitioners And 1. The Returning Officer & District Election Officer, 38- Kadapa Parliamentary Constituency, Kadapa, YSR Kadapa District., and another. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.11979 OF 2011 ORDER : The 2nd respondent – Election Commission of India has published a Notification in the A.P. Gazette, dated 11.04.2011 for the bye-election to the House of the People from 38-Kadapa Parliamentary Constituency. The 1st petitioner, who is a contesting candidate in the said election, submitted Form-8 to the 1st respondent – Returning Officer -appointing the 2nd petitioner herein as his Election Agent. The said Form-8 was returned by the 1st respondent by proceedings dated 20.04.2011 and aggrieved by the same, the present writ petition is filed. A perusal of the impugned proceedings dated 21.04.2011 shows that the Form-8 submitted by the 1st petitioner was returned without approval for the following reasons: “(1) Form 8 is not submitted in duplicate as required by law. (2) Form 8 does not have the photograph of the Election Agent, affixed on the top right side as required by law. (3) The Election Commission of India, vide its letter No.464/INST/2008/EPS, dated 14.10.2008 has intimated that: “The Commission keeping in view of all the relevant factors in this regard, has decided that henceforth no sitting Minister of Union Government or of a State Government, Sitting Member of Parliament, sitting Member of Legislative Assembly/Legislative Council or any other person having security cover provided by the State (both Union and State Govts.) will be allowed to act as Election Agent, Polling Agent or Counting Agent of any candidate during an election. Also any person having security cover will not be allowed to surrender his security cover to act as such Agent of a candidate during an election.” The Superintendent of Police, vide his letter No.C.No.16/Election Cell/2011, dt. 12.04.2011 has brought to my notice that the proposed Election Agent, that is, Sri P. Ravindranath Reddy is having security cover, provided by the State.” It is pleaded by the petitioners that though the objections raised by the 2nd respondent were not tenable, in order to avoid any controversy, the 1st petitioner had resubmitted the Form-8 on 21.04.2011 duly filling in Form-8 in duplicate along with the photographs of the election agent. Alleging that the 1st respondent did not accept the same, the present writ petition was filed on 25.04.2011 seeking a declaration that the action of the 1st respondent in issuing the proceedings dated 20.04.2011 and in not accepting the Form-8 dated 21.04.2011 is arbitrary and illegal. After filing the writ petition, the 2nd respondent by letter dated 24.04.2011 informed the 1st petitioner that the appointment of the 2nd petitioner as election agent could not be approved as per the instructions of the Election Commission of India, dated 14.10.2008 as the 2nd petitioner was having security cover provided by the State Government. Having regard to the said subsequent events, the petitioners got the prayer in the writ petition amended seeking a further declaration that the proceedings of the 1st respondent dated 24.04.2011 are arbitrary and illegal and to direct the 1st respondent to receive Form-8 dated 21.04.2011 and approve the appointment of the 2nd petitioner as election agent of the 1st petitioner. When the matter was listed for admission on 26.4.2011, Sri S. Niranjan Reddy, who accepted notice for the respondents sought time for getting instructions and therefore the matter was adjourned to 28.4.2011. On 28.04.2011 it was represented by Sri S. Niranjan Reddy, the learned counsel for the respondents that there was no need for counter-affidavit and he would make his submissions based on the instructions received from the respondents. Sri E. Manohar, the learned Senior Counsel appearing for the petitioners contended that the impugned proceedings issued by the 1st respondent are without jurisdiction since none of the provisions under the Representation of the People Act, 1951 (for short, ‘the Act’) nor the Rules made thereunder disqualified a person having security cover from acting as election agent. So far as the letter dated 14.10.2008 of the Election Commission directing that no person having security cover shall be allowed to act as election agent is concerned, the learned Senior Counsel contended that the Election Commission cannot legislate and provide for additional disqualification which is not provided in Section 41 of the Act. It is also submitted in view of the prohibition of going armed to or near a polling station under Section 134-B of the Act, that there is no threat perception to the 2nd petitioner even if the security is not permitted along with him. In support of his submissions, the learned Senior Counsel relied upon A.C. JOSE v. SIVAN PILLAI AND OTHERS[1] and LAKSHMI CHARAN SEN AND OTHERS v. A.K.M. HASSAN UZAMAN AND OTHERS[2]. Sri S. Niranjan Reddy, the learned counsel appearing for the respondents at the outset raised an objection as to the maintainability of the writ petition in view of the bar provided under Article 329 (b) of the Constitution of India. In support of his submission, the learned counsel has relied upon the decisions in MOHINDER SINGH GILL v. CHIEF ELECTION COMMISSIONER[3] and MANDA JAGANATH v. K.S. RATHNAM[4]. In view of the preliminary objection raised by the learned counsel for the respondents, the first question that arises for consideration is whether the petitioners can invoke the jurisdiction of this Court under Article 226 of the Constitution of India for redressal of their grievance. Article 329 (b) of the Constitution of India prohibits any challenge to an election either to the Houses of Parliament or to the House or either of Legislature of a State except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The term ‘election’ employed in Article 329 (b) has been defined by the Courts in a catena of decisions as any and every act taken by the competent authority after the publication of the election notification till its culmination in the declaration of the returned candidate. The question whether Article 329 (b) has an overriding effect on Article 226 of the Constitution of India has been extensively considered by the two Constitution Benches in N.P. PONNUSWAMI v. RETURNING OFFICER, NAMAKKAL[5] and MOHNDER SINGH GILL’S case (3 supra). Having regard to the non-obstante clause with which Article 329 opens, it was held in the above decisions that the right of a citizen to approach the Court invoking the jurisdiction under Article 226 is excluded where the dispute takes the form of calling in question an election. The legal principles were summed up in the later Constitution Bench decision in MOHINDER SINGH GILL’S case (3 supra) as under: “(1) (a) Article 329 (b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result.(b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.(2)(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the 'Election Commission. This responsibility may cove powers, duties and functions of many sorts, administrative or other, depending on the circumstances. (b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act inconformity with, not in violation of. such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz.. elections. Fairness does import an obligation to see that no wrongdoer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total repoll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the tribunal's adjudication.(3) The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress453although it is postponed to the postelection stage and procedure as predicated in Article 329(b) and the 1951 Act. The Election tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other thing necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law.” In the light of the ratio laid down by the two Constitution Benches in N.P. PONNUSWAMI’S case (5 supra) and MOHINDER SINGH GILL’S case (3 supra), the learned Counsel for the respondents contended that the decision of the 1st respondent cannot be questioned by the petitioners by invoking the writ jurisdiction under Article 226 of the Constitution of India. However, the learned Senior Counsel appearing for the petitioners, while relying upon a later decision of a three-Judge Bench of the Supreme Court in ELECTION COMMISSION OF INDIA THROUGH SECRETARY v. ASHOK KUMAR AND OTHERS[6] contended that the action taken by the 1st respondent is open to judicial review since the decision sought by the petitioners neither interrupts nor protracts the election proceedings, but on the other hand sub-serves the progress of the election and facilitates the completion of the election. It is also contended by the learned Senior Counsel that the impugned order on the face of it being beyond the scope of Sections 40 & 41 of the Representation of the People Act, 1951 is arbitrary and in breach of law and therefore the same is amenable to judicial review under Article 226. The relevant passage from ASHOK KUMAR’S case (6 supra) upon which the learned Senior Counsel has placed much reliance, may be extracted hereunder: “For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove :- 1) If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. 2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. 3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. 4 ) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. 5 ) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.” It is true that in ASHOK KUMAR’S case (6 supra), while clarifying the two Constitution Bench decisions, it was opined that the provisions of the Constitution and the Representation of People Act read together did not totally exclude the right of a citizen to approach the Court so as to have the wrong done remedied by invoking the judicial forum, however in the said decision itself it was made clear that such judicial intervention is permissible only in exceptional circumstances. In para- 21 of the said judgment, it was explained as under: “… … Under Section 81 of the Representation of the People Act, 1951 an election petition cannot be filed before the date of election, i.e., the date on which the returned candidate is declared elected. During the process of election something may have happened which would provide a good ground for the election being set aside. Purity of election process has to be preserved. One of the means for achieving this end is to deprive a returned candidate of the success secured by him by resorting to means and methods falling foul of the law of elections. But by the time the election petition may be filed and judicial assistance secured material evidence may be lost. Before the result of the election is declared assistance of Court may be urgently and immediately needed to preserve the evidence without in any manner intermeddling with or thwarting the progress of election. So also there may be cases where the relief sought for may not interfere or intermeddle with the process of the election but the jurisdiction of the Court is sought to be invoked for correcting the process of election taking care of such aberrations as can be taken care of only at that moment failing which the flowing stream of election process may either stop or break its bounds and spill over. The relief sought for is to let the election process proceed in conformity with law and the facts and circumstances be such that the wrong done shall not be undone after the result of the election has been announced subject to overriding consideration that the Court's intervention shall not interrupt, delay or postpone the ongoing election proceedings. .. ..” In my considered opinion, no such exceptional circumstances could be made out by the petitioners warranting interference in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India during the pendency of election proceedings. At the outset, it is to be noticed that the petitioners did not chose to challenge the guidelines of Election Commission, dated 14.10.2008 and what is challenged in this writ petition is only the order passed by the 1st respondent in compliance with the said guidelines. I do not find any substance even in the contention of Sri E. Manohar, the learned Senior Counsel that the said guidelines of the 2nd respondent being wholly ultra vires the 1st respondent – Returning Officer – is not bound by the same and ought not to have relied upon it for refusing the approval of Form-8. As held by the Supreme Court in MOHINDER SINGH GILL’S case (3 supra), it is always open to the Election Commission in exercise of its powers under Article 324 to act for pushing forward a free and fair election with expedition. Having regard to the nature of the functions of the election agent, the 2nd respondent was justified in deciding not to allow any person having security cover provided by the State to act as election agent. The said decision of the Election Commission, dated 14.10.2008 cannot be held to be contrary to Section 41 on any ground whatsoever. In my considered opinion, the said decision is well within the power of the Election Commission to act to sub-serve the progress of the election. In similar circumstances in MANDA JAGANATH’S case (4 supra) the Supreme Court held that the High Court had no jurisdiction to entertain the writ petition after the election process had started. In the said case, the 1st respondent therein filed his nomination to contest elections to Parliament from 28-Nagarkurnool Constituency. When the said nomination papers were taken for scrutiny, the Returning Officer found that Form-B submitted by him was blank in Columns 2 to 7 and scratch line indicating scoring of the requirement of the said columns was noticed. Following the guidelines found in the Handbook of Returning Officers issued by Election Commission of India, the Returning Officer rejected Form-B filed by the 1st respondent therein and while accepting the nomination of the 1st respondent as an independent candidate he did not allot him the symbol reserved for the candidates of Telangana Rashtra Samithi of which party the 1st respondent claimed to be a candidate. Aggrieved by the said order of the Returning Officer, the 1st respondent filed a writ petition and this Court while holding that the errors pointed out by the Returning Officer were due to inadvertence and that the refusal to allot the official symbol of Telangana Rashtra Samithi to the 1st respondent therein was not acceptable set aside the decision of the Returning Officer. It was also concluded by this Court that the issue relating to allotment of symbol by the Returning Officer at the time of scrutiny of nomination papers was not one of the grounds on which an election petition could be filed under the provisions of the Representation of the People Act, 1951. However, on appeal, the Supreme Court set aside the order passed by this Court holding that whether the returning officer was justified in returning Form-B submitted by the 1st respondent therein or not was not matter for the High Court to decide in exercise of its writ jurisdiction and that it should be agitated by an aggrieved party in an election petition only. Though it was contended that the case of the 1st respondent therein came within the exceptions noted in MOHINDER SINGH GILL’S case (3 supra) which permits filing of a writ petition under Article 226 of the Constitution of India in certain exceptional cases, the Supreme Court did not agree observing that by not allotting a symbol claimed by the 1st respondent, the returning officer had not stalled or stopped the progress of the election and that the grievance of the respondent as to non-allotment of the symbol would have to be agitated in an election petition. As could be seen, the facts in the present case are identical and the issue involved is squarely covered by the ratio laid down in MANDA JAGANATH’S case (4 supra). By not accepting the Form- 8 submitted by the 1st petitioner for appointment of the 2nd petitioner as his election agent, the 1st respondent has not stalled or stopped the progress of the election. In fact, it is always open to the 1st petitioner to choose some other election agent in compliance with the guidelines issued by the Election Commission of India. At any rate, the grievance of the 1st petitioner as to non-acceptance of the 2nd petitioner as his Election Agent, if necessary, can be agitated in an election petition. For the aforesaid reasons, the interference by this Court is not warranted and accordingly the Writ Petition is dismissed. No costs. However, it is made clear that this shall not preclude the 1st petitioner to submit fresh Form-8 appointing an election agent other than the 2nd petitioner. ______________ G. ROHINI, J. Dt. 30.04.2011 gbs [1] AIR 1984 SC 921 [2] AIR 1985 SC 1233 [3] (1978) 1 SCC 405 = AIR 1978 SC 851 [4] (2004) 7 SCC 492 [5] AIR 1952 SC 64 [6] AIR 2000 SC 2979