IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND 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 : 6987 of 2009 Between: Anantha Udaya Bhaskar Rao S/o. Anantha Chakra Rao R/o. Yellavaram Village, Addateegala Mandal, East Godavari District. ..... PETITIONER AND 1 Election Commission of India, Nirvachan Sadhan, Ashoka Rao, New Delhi, rep. by its Secretary. 2 The Chief Electoral Officer & E.O. Prl. SEcretary to Government, General Admn. (Election-D) Department, Government of A.P., Hyderabad. 3 The District Collector & District Election Officer, East Godavari District at Kakinada. 4 The Returning Officer, 172-Rampachodavaram (ST), Assembly Constituency, Rampachodavaram, East Godavari District. 5 Mr. K. Manickraj, I.A.S., Returning Officer, 172-Rampachodavaram (ST), Assembly Constituency, Rampachodavaram, East Godavari District. 6 The Tahsildar, Mandal Revenue Officer, Addateegala Mandal, E.G. District. .....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 or order or direction more particularly one in the nature of Writ of Mandamus declaring the proceedings in Ref.B.66/2009, dated 31.03.2009 of the 4th respondent as illegal, arbitrary and unjust, malafide and contrary to Section 21 of the Andhra Pradesh (SCs., STs., and BCs.,) Regulation of Issue of Community, Nativity and Date of Birth Certificates Act, 1993 read with Rules 21 of the A.P. (Scheduled Castes, Scheduled Tribes & Backward Classes) Issue of Community, Nativity and Date of Birth Certificate Rules 1997 and violative of orders dated 29.12.2009 in W.P.No.28299/2008 of this Honourable Court and pass Counsel for the Petitioner:MR.D.V.NAGARJUNA BABU Counsel for the Respondent No.: MR.S.NIRANJAN REDDY The Court made the following : THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.6987 OF 2009 ORDER: The petitioner claims to belong to ‘Konda Kapu’ community, a Scheduled Tribe. Details of his family’s lineage and recognition of community status are furnished in the affidavit filed in support of the writ petition. It is stated that the District Collector, East Godavari District, by proceedings dated 17.05.2005 held that the petitioner’s mother, paternal uncle and others belong to ‘Kapu/Telaga’ community and not ‘Konda Kapu’ community. An appeal was preferred against this order by the petitioner’s mother and paternal uncle under Section 7 of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993. The said appeal was dismissed on the ground of limitation leading to the filing of a writ petition before this Court in W.P.No.18536 of 2006, which is stated to be pending. It is the case of the petitioner that the District Collector, East Godavari District, had passed the proceedings dated 17.05.2005 owing to the invalidation of the petitioner’s father’s election as President, Mandal Praja Parishad, Addateegala on the ground that he did not belong to ‘Konda Kapu’ community and was a member of ‘Kapu/Telaga’ community. The petitioner claims that he was treated as a ‘Konda Kapu’ community through out his education and was issued community certificates to that effect. Thereafter, he was elected as a Member of Doramamidi/Konalova Mandal Parishad Territorial Constituency and subsequently, as the President of Mandal Praja Parishad, Addateegala from the seats reserved for Scheduled Tribe candidates. The petitioner was issued Show Cause Notice dated 10.06.2008 by the Chief Executive Officer, Zilla Parishad, East Godavari District, asking him to show cause as to why he should not cease to hold the office of M.P.T.C. Member and Mandal Praja Parishad President on the ground that the social status of his mother and paternal uncle was held to be other than Scheduled Tribe. This Show Cause Notice was challenged in W.P.No.14149 of 2008 and this Court suspended the same pending disposal of the writ petition. While so, the District Collector, East Godavari District, passed orders in pursuance of the Show Cause Notice by way of proceedings dated 01.07.2008. Challenging the same, the petitioner filed W.P.No.15136 of 2008 before this Court and the said proceedings were suspended pending disposal of the writ petition. Thereafter, the District Collector, East Godavari District, by proceedings dated 09.09.2008 cancelled the petitioner’s caste certificate, on the basis of the proceedings dated 17.05.2005 which were passed earlier with regard to the petitioner’s mother and paternal uncle. Aggrieved thereby, the petitioner filed W.P.No.28299 of 2008 before this Court and by order-dated 29.12.2008 the aforestated proceedings of the District Collector, East Godavari District, were suspended. The writ petition is said to be pending disposal on the file of this Court. It is stated that W.P.No.15136 of 2008 was allowed by this Court. The petitioner filed his nomination on 29.03.2009 as an Independent candidate contesting the ensuing Legislative Assembly Elections from 172-Rampachodavaram (ST) Assembly Constituency. The Returning Officer, the fourth respondent herein, rejected the petitioner’s nomination vide proceedings dated 31.03.2009, placing reliance on the Order dated 09.09.2008 passed by the District Collector, East Godavari District, whereby the caste certificate of the petitioner was cancelled. It is argued that once the cancellation proceedings embodied in the Order dated 09.09.2008 stood suspended by the order of this Court in W.P.No.28299 of 2008, the petitioner continued to be entitled to be treated as a member belonging to the Schedule Tribe community for all purposes and therefore, the action of the fourth respondent in rejecting the petitioner’s nomination is illegal. The proceedings dated 31.03.2009 of the Returning Officer rejecting the petitioner’s nomination reflect that the Returning Officer followed the instructions of the Election Commission in its letter dated 02.07.2008 with regard to allegations/suspicion about the genuineness of a caste certificate. The Returning Officer sought the assistance of the Tahsildar, Addateegala, who was the competent authority to issue the community certificate. The Tahsildar informed the Returning Officer that the permanent caste certificate obtained by the petitioner from the In-charge Mandal Revenue Officer on 12.02.2005 was not valid as the then Mandal Revenue Officer (In-charge) was not the competent authority to issue a permanent caste certificate. Basing upon the report of the Tahsildar, Addateegala, the Returning Officer rejected the petitioner’s nomination. Sri S.Niranjan Reddy, learned counsel representing the respondents, raises a preliminary issue with regard to the maintainability of the writ petition, stating that Article 329(b) of the Constitution of India barred this Court from exercising jurisdiction under Article 226 of the Constitution in issues such as are raised in the present writ petition. He relied upon various Judgments in support of his contention. The learned counsel for the petitioner contended that Article 329(b) of the Constitution of India is not a bar to exercise of jurisdiction by this Court under Article 226 in exceptional cases. He placed reliance upon the Judgment of the Supreme Court in MANDA JAGANATH v. K.S.RATHNAM AND OTHERS[1], wherein it was held to the effect that where the error of Returning Officer had the effect of interfering in the free flow of the scheduled election or hindered the progress of the election, exercise of jurisdiction under Article 226 of the Constitution would not be barred. Drawing support from the said observation, the learned counsel asserted that the present case, where the petitioner in spite of being protected by the interim order of this Court in W.P.No.28299 of 2008 was denied his community status and consequently, an opportunity of contesting the election from 172- Rampachodavaram (ST) Assembly Constituency, was an eminently fit case warranting the interference by this court under Article 226 of the Constitution. The learned counsel submitted that this injustice to the petitioner constituted an exceptional case requiring exercise of its extraordinary jurisdiction by this court. Article 329(b) of the Constitution reads as under: “329. Bar to interference by courts in electoral matters.–– Notwithstanding anything in this Constitution (a) … … … (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question 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 question sought to be raised presently is whether the above constitutional provision posits a bar to exercise of jurisdiction by this Court under Article 226 of the Constitution in matters pertaining to an assembly election and more specifically, in the matter of rejection of a candidate’s nomination. The issue is hardly res nova. The law on this subject is well settled. In N.P.PONNUSWAMI v. THE RETURNING OFFICER, NAMAKKAL CONSTITUENCY, NAMAKKAL, SALEM DISTRICT AND OTHERS[2], a six Judge Bench of the Supreme Court dealt with a similar fact situation where the Returning Officer had rejected a candidate’s nomination. The High Court had dismissed the candidate’s application seeking interference in the matter, stating that it had no jurisdiction in the light of the provisions of Article 329(b) of the Constitution. This view was assailed before the Supreme Court. Dealing with the issue, the Supreme Court observed that the word “election” has been used in Part-XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. As regards the subject issue, the Supreme Court, taking note of the fact that one of the grounds for challenging an election under Section 100 of the Representation of the People Act, 1951 (for brevity, ‘the Act of 1951’), was the improper rejection of a nomination paper, observed as follows: “9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and an other after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and 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 before 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 Article 329 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art. 329 (b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.” With regard to the argument that the Act of 1951 cannot bar the jurisdiction of the High Court under Article 226 of the Constitution, the Supreme Court held that such an argument was completely shut out by reading the Act along with Article 329(b) of the Constitution of India, as it would be noticed that the language used in that Article and in Section 80 of the Act of 1951 is almost identical, with this difference only that the article is preceded by the words “Notwithstanding anything in this Constitution”. The Supreme Court observed that these words were quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress. In MOHINDER SINGH GILL AND ANOTHER v. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS[3], a Constitution Bench of the Supreme Court reiterated that Article 329(b) of the Constitution of India is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and it’s Officers carrying forward the process of election to its culmination in the formal declaration of the result. The Court observed that under Article 329(b) the sole remedy for an aggrieved party is an Election Petition and this exclusion of all other remedies includes constitutional remedies like jurisdiction under Article 226 because of the non obstante clause. I n MANDA JAGANATH’s case, the Supreme Court was dealing with the action of a Returning Officer in refusing to recognize a candidate as one set up by a particular party and his consequential refusal to allot him the official symbol of that party. The High Court interfered in the matter in exercise of Article 226 jurisdiction and directed the Returning Officer to treat the candidate as one set up by the party on the ground that the irregularity in the nomination was technical. It was contended before the Supreme Court that the High Court was not justified in entertaining a writ petition after issuance of the election notification because of the specific bar found in Article 329(b) of the Constitution. The Supreme Court pointed out that the view taken in PONNUSWAMI’s case had been quoted with approval in the subsequent Judgment in MOHINDER SINGH GILL’s case holding that the non obstante clause in Article 329 pushed out Article 226, where a dispute takes the form of calling in question an election. In this regard, the Supreme Court referred to certain observations in MOHINDER SINGH GILL’s case where the Supreme Court had spoken of situations which would warrant interference in exercise of jurisdiction under Article 226. The justification for such interference was stated to be that in such exceptional cases, the Commissioner would, in effect, be preventing an election and not promoting it and the Court’s review of the action would facilitate the flow and not stop the stream. Continuing the above stream of thought, the Supreme Court in MANDA JAGANATH’s case held that only such errors of the Returning Officer which have the effect of interfering in the free flow of the scheduled election or hindered the progress of the election would be amenable to interference under Article 226 and in all other cases, the remedy lies in an election petition only. The observations of the Supreme Court in paragraph 23 of the Judgment throw further light on this aspect. Therein, the Court while dealing with the argument that the omissions found by the Returning Officer in the Form-B (nomination) under Section 36 of the Act of 1951 etc. were all curable irregularities, not being defects of substantial nature, warranting rejection of the nomination, observed that such arguments based on the provisions of the statute, rules and orders are all arguments which could be addressed in a properly constituted election petition and could not be a ground for setting aside the order of the Returning Officer. In the light of the firmly embedded legal principle aforestated, we are of the view that notwithstanding the validity or otherwise of the rejection of the nomination, any ground of attack against the same would be better suited for an election petition under Section 100 (1)(c) of the Act of 1951 and would not be sufficient ground to warrant exercise of our extraordinary jurisdiction under Article 226 of the Constitution, overlooking the clear bar mandated by Article 329(b) of the Constitution. Mere rejection of a nomination of a candidate does not have the effect of interfering in the free flow of the scheduled election or hindering its progress, which according to the Supreme Court, should be the paramount consideration while testing the waters to see whether writ jurisdiction can be exercised. The case on hand does not present itself as an exceptional case warranting deviation from the established principle that this Could would not interfere in matters of the present nature in view of the constitutional bar under Article 329(b) of the Constitution. The contention of the petitioner that the action of the Returning Officer, in ignoring and overlooking the protection afforded to the petitioner by this Court so far as his community status is concerned, placing the present case in the exceptional category warranting interference under Article 226, does not commend itself to acceptance. If it is the case of the petitioner case that his constitutional rights have been violated by this action of the Returning Officer, an efficacious remedy is available to him under the Act of 1951. Under Section 100(1)(d)(iv) of the Act of 1951, an election can be called in question for non-compliance with the provisions of the Constitution or of the Act of 1951 or of any Rules or Orders made thereunder. The writ petition fails on the ground of maintainability and is accordingly dismissed at the stage of admission. In the circumstances of the case, there shall be no order as to costs. ___________________ V.ESWARAIAH, J. ____________________ SANJAY KUMAR, J. __________ April, 2009. VGSR [1] (2004) 7 SCC 492 [2] AIR 1952 SC 64 [3] (1978) 1 SCC 405