IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 7198 of 2009 Between: Dupati Siva nageswara Rao, S/o. Krishnaiah, R/o. D.No.1-29/A, Koruthadiparru Village, Amarthalur Mandal, Guntur Distrift. ..... PETITIONER AND 1 The Election Commissioner of India, Rep by the Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New Delhi. 2 The Chief Electoral Officer, Government of Andhra Pradesh, Secretariat, Hyderabad. 3 The State Election Commission, 3rd Floor, Buddha Bhavan, Secunderabad. 4 The Returning Officer for Legislative Assembly, 208-Vemuru (SC) Constituency,. Vemuru, Village and Mandal, Guntur District. 5 Merugu Nagarjuna, S/o. Koteswara Rao, R/o. H.No.7-1-621/369/2RT, S.R.Nagar, Khairatabad, HYderabad 500018 .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ of Mandamus or any otehr appropriate Writ, order or direction declaring the impugned action official respondents particularly the 4th Respndent in not even accepting petitoenr representation dated 03.04.2009 as illegal, arbitrary and violative of principles of natural justice etc and consequently direct the Respondents particularly 4th Respondent to accept petitioner representation dated 03.04.2009 and consider the same at the time of scrutiny and pass THE HONOURABLE SRI JUSTICE V.ESWARAIAH AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.7198 OF 2009 O R D E R The petitioner, being a voter from Vemuru (S.C) Constituency, Guntur District, filed the present writ petition seeking to attack the candidature of Merugu Nagarjuna, fifth respondent herein, who is contesting in the ensuing General Legislative Assembly Elections from the said constituency. It is the case of the petitioner that the fifth respondent furnished incorrect information with regard to his involvement in a criminal case and had also filed an affidavit that was signed subsequent to its notarization. According to the petitioner, such an improperly verified affidavit amounted to non-filing of the required affidavit as per the prescribed procedure and warranted disqualification of the fifth respondent. The petitioner claims to have made a representation on 03.04.2009 as regards the same to the Returning Officer, fourth respondent herein. The grievance of the petitioner is that the Returning Officer refused to accept the representation on the ground that the petitioner had no locus to file it. The said action is assailed by way of this writ petition. It is a matter of record that the election notification covering the subject constituency was issued on 28.03.2009. As per the law laid down by the Supreme Court, ‘election’ in Article 329 of the Constitution encompasses the entire process commencing from the issuance of the notification upto the declaration of the result. Article 329(b) of the Constitution posits a clear bar against exercise of jurisdiction by this Court under Article 226 of the Constitution in any petition which has the effect of calling in question ‘an election’. The Supreme Court has also laid down in N.P.PONNUSWAMI V/s. THE RETURNING OFFICER, NAMAKKAL CONSTITUENCY, NAMAKKAL, SALEM DISTRICT AND OTHERS[1], MOHINDER SINGH GILL AND ANOTHER V/s. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS[2] and ELECTION COMMISSION OF INDIA V/s. ASHOK KUMAR[3], that any ground of attack on the basis of the statute should be reserved for an election petition under the Representation of the People Act, 1951 (for brevity, ‘the Act of 1951’) and does not call for interference under Article 226, at the intermediate stage during the election. It is relevant to note that under Section 100(1)(d)(i) of the Act of 1951, an election can be challenged in so far as it concerns a returned candidate, as being materially affected by the improper acceptance of a nomination. Thus, the ground urged in the present writ petition can well be raised by way of an election petition. The Supreme Court, in MANDA JAGANATH V/s. K.S.RATHNAM AND OTHERS[4], held that unless the action of the Returning Officer has the effect of interfering in the free flow of the election or hindering its progress, interference by this Court under Article 226 of the Constitution would not be called for. The facts of the present case do not constitute an exceptional situation warranting invocation of our extraordinary jurisdiction, inasmuch as mere acceptance of a nomination, even if irregular or invalid, does not have the effect of interfering in the free flow of, or hindering the progress of, the election process. Further, as stated supra, once the statute viz., the Act of 1951 postulates the improper acceptance of a nomination as a specific ground for attacking an election under Section 100(1)(d)(i) thereof, the necessary corollary would be that the same ground could not be urged by way of a writ petition at the intermediate stage, during the election. The writ petition is therefore bereft of merit and is accordingly dismissed. There shall be no order as to costs. -------------------------- V.ESWARAIAH, J. ---------------------------- SANJAY KUMAR, J. 6th APRIL, 2009. PGS [1] AIR 1952 SC 64 [2] (1978) 1 SCC 405 [3] (2000) 8 SCC 216 [4] (2004) 7 SCC 492