*THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY + WRIT PETITION No.15905 of 2006 % Dated 31-8-2010 # Sri Manganellore Veeraraghavan … Petitioner Vs. $ District Collector, Nellore, Nellore District & others. … Respondents ! Counsel for the petitioner: Sri S.R Ashok, Senior Counsel for Sri S Chakrapani ^ Counsel for respondents 1-3: AGP for Panchayat Raj Counsel for respondent No.4: Sri V.V. Prabhakar Rao Counsel for respondent No.5: Sri Vedula Venkataramana Senior Counsel for Sri V. Sudhakara Redy <Gist: >Head Note: ? Cases referred: 1. 1995 (3) ALT 217 (D.B.) 2. 2001 (4) ALD 839 (FB) 3. 2004 (6) ALD 587 (FB) 4. AIR 1952 SC 64 5. AIR 1995 SC 1512 6. (1996) 6 SCC 303 7. (1970) Vol.75 Income Tax Reports 646 8. AIR 1966 SC 1164 9. AIR 1978 SC 851 10. (2004) 7 SCC 492 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY TUESDAY, THE THIRTY FIRST DAY OF AUGUST, TWO THOUSAND TEN WRIT PETITION No.15905 of 2006 Between: Sri Manganellore Veeraraghavan … Petitioner And District Collector, Nellore, Nellore District & others. … Respondents Counsel for the petitioner: Sri S.R Ashok, Senior Counsel for Sri S Chakrapani Counsel for respondents 1-3: AGP for Panchayat Raj Counsel for respondent No.4: Sri V.V. Prabhakar Rao Counsel for respondent No.5: Sri Vedula Venkataramana Senior Counsel for Sri V. Sudhakara Redy This Court made the following: JUDGMENT:- The action of respondent No.3 in allowing respondent No.5 to remain in fray for election to the office of Sarpanch, Illupuru Gram Panchayat, Sullurpet Mandal, Nellore District, is called in question in this writ petition by the petitioner. The brief background leading to the filing of this writ petition is as follows: Respondent No.1 issued Notification dated 09.07.2006 for holding elections to the Gram Panchayats in the Nellore District. Illupuru Gram Panchayat, Sullurpet Mandal is one such Gram Panchayat covered by the said notification. Respondent No.3 was appointed as election officer for conducting elections for the said Gram Panchayat. As per the notified schedule, 19.07.2006 was fixed as last date for receipt of nominations, 20.07.2006 as publication of valid list of nominations after scrutiny, 23.07.2006 as withdrawal of nominations and 06.08.2006 was fixed for poll, if need be. The petitioner, respondent No.5 and five others filed their nominations. Respondent No.5 filed two sets of nominations, one as “K. Munivelu Kopani” and another as “Kopani Munivelu”. On 20.07.2006, a list of valid nominations was published with eight persons including the petitioner and respondent No.5. Both the nominations of respondent No.5 were shown at Sl.Nos.1 and 2. All five other contestants have withdrawn their nominations on the scheduled date. Respondent No.5 has withdrawn one of his two nominations. On 23.07.2006, respondent No.3 has notified the list of the contestants in Form-9, wherein the name of respondent No.5 as “Kopani Munivelu” and the petitioner are shown at Sl.Nos.1 and 2 respectively. Feeling aggrieved by the action of respondent No.3 in permitting respondent No.5 to remain in contest, the petitioner made representations to respondent Nos.1 and 4. Respondent No.4 vide his communication dated 26.07.2006 informed the District Panchayat Officer, Nellore District, that as the returning officer has already published the list of contesting candidates, the election process cannot be interdicted. The petitioner, however, persisted with his objection by making another representation dated 26.07.2006. As this attempt of the petitioner did not fructify any result, he filed the present writ petition. This Court, by order dated 04.08.2006, stayed the election scheduled to be held on 06.08.2006. As a consequence, elections for the said Gram Panchayat could not be held. At the hearing, Sri S.R. Ashok, learned Senior Counsel appearing for the petitioner, has advanced the following two submissions: 1) Respondent No.3 has committed serious illegality in permitting respondent No.5 to contest the election despite withdrawal of his candidature; and 2) Even if the bar under Article 243-O(b) of the Constitution of India is operative on granting the relief, as claimed by the petitioner in this writ petition, the same will not come in the way of this Court in giving a direction to respondent No.3 to follow the ratio laid down in the Division Bench Judgment of this Court in Kandru Venkateswarlu and others vs. Government of A.P., rep., by its Secretary for Panchayat Raj Wing, Hyderabad and others[1] by rectifying the illegality committed by him. Seriously opposing the above submissions of the learned counsel for the petitioner, Sri Vedula Venkataramana, learned Senior Counsel representing respondent No.5, submitted that the bar under Article 243-O of the Constitution is absolute in all respects and, therefore, the present Writ Petition is not maintainable and no relief can be granted to the petitioner, as the election petition is the only remedy for him in the event he feels aggrieved by the result of the election to be held. In support of his submission, the learned Senior Counsel placed reliance on two Full Bench judgments of this Court in Guttakonda Kanaka Durga vs. State Election Commissioner, Government of A.P., and others[2] and Kalla Ramakrishna vs. State Election Commission, Hyderabad and others[3]. I have given my earnest consideration to the above submissions of the learned counsel. In Kandru Venkateswarlu (1 supra) an identical situation fell for consideration of the Division Bench of this Court. In that case, respondent Nos.5 and 6 filed two valid nominations each and have withdrawn one nomination each. However, the returning officer has allowed respondent Nos.5 and 6 to remain in fray on the strength of one set of nominations, which were not withdrawn. When this action was questioned by way of a writ petition, the Division Bench, on interpretation of Rules 9, 10 and 11 of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules 1994 (for short, “the Rules”) held that withdrawal by a candidate relates not to any one of his nominations, but his candidature as a whole and that once the withdrawal option is exercised, the list of valid nominations are to be published without the names of the candidates, who have withdrawn. The Division Bench further held that if the election officer finds that there is only one validly nominated candidate, there would not be any question of allotment of symbols under Rule 11(3) as no poll would be necessary and the single candidate is to be declared unanimously elected. In arriving at these conclusions, the Division Bench placed reliance on the phrase ‘candidature’ in Rules 10 and 11 and also in Form 6. As regards the bar contained in Article 243-O(b) of the Constitution, the Division Bench held that the said bar does not disentitle this Court to entertain a writ petition where the election officer or other authorities exceed their jurisdiction in seeking to hold the election as such an action does not fall within the meaning of ‘election’, as envisaged under Article 243-O(b) or under the provisions of the Andhra Pradesh Panchayat Raj Act, 1994 (for short, “the Act”). But this judgment is not the final word on the subject. The above Division Bench judgment was considered by the Full Bench in Guttakonda Kanaka Durga (2 supra) on the issue of maintainability of the writ petition. The Full Bench declined to follow the said judgment by holding that the observations made by the Division Bench “were not apposite inasmuch as therein all aspects of the matter had not been taken into consideration”. The Full Bench thereafter considered the scope of Article 243-O with reference to the judgments of the Supreme Court in N.P. Ponnuswamy vs. Returning Officer, Namakkal[4], State of U.P. vs. Pradhan Sangh Kshettra Samiti[5] and Anugrah Narain Singh vs State of U.P.[6], while declining to entertain the writ petition and invalidate the action of the election officer in accepting the nominations of respondent Nos.4 and 5 therein. Another Full Bench in Kalla Ramakrishna (3 supra) has taken a similar view in refusing to entertain a writ petition filed against an order of the Revenue Divisional Officer, Peddapuram, dismissing the writ petitioner’s appeal filed against rejection of his nomination. The Full Bench, while interpreting the word ‘election’ in Article 243-O(b), followed the ratio in N.P. Ponnuswamy (4 supra), which dealt with a pari materia provision in Article 329 (b) and held that the election covers the gamut of election process commencing from the issue of notification under the relevant legislation to the declaration of the result and that having regard to the legislative object of conduct of elections as per schedule, the persons interested in questioning the elections have to wait till they are completed before instituting a petition in accordance with law before the competent forum, calling in question the election of the successful candidate. Sensing that his client is up against the weight of the authorities of the Apex Court and the Larger Bench judgments of this Court, which have smothered the precedential value of the Division Bench judgment in Kandru Venkateswarlu (1 supra), the learned Senior Counsel appearing for the petitioner has taken one last chance by advancing the alternative submission noted as the second submission (supra). In support of his submission, the learned Senior Counsel relied on the judgments of the Apex Court in Income Tax Officer, Lucknow vs. S.B. Singar Singh and Sons and another[7] and The Sub-Divisional Officer (Compensation Officer) Mirzapur and others vs. Raja Srinivasa Prasad Singh[8]. Purporting to rely on these judgments, the learned Senior Counsel made an effort to persuade this Court that respondent No.3, who has admitted his mistake of permitting respondent No.5 to remain in contest in his counter affidavit, should be directed to retrace his steps by rectifying the admitted mistake. Attractive though, as it looks peripherally, on a deeper consideration, it is not possible to accept this submission. I n N.P. Ponnuswamy (4 supra), the Supreme Court lucidly explained the principle behind the bar of interference in election matters underlying Article 329 (b) of the Constitution by concluding as under: “(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.” The Supreme Court also interpreted the expression ‘Election’ in Article 329 and observed: “That word has by long usage in connection with the process of selection of proper representatives in domestic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected. . . . . it seems to me 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. . . . . That the word "election" bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins?” N.P. Ponnuswamy (4 supra) was considered by another Constitution Bench in Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others[9]. Krishna Iyer, J., in his illuminating opinion analyzed the meaning of ‘election’ and the philosophy behind the bar in conformity with N.P. Ponnuswamy (4 supra), but in his own inimitable style as under: “The rainbow of operations, covered by the compendious expression 'election', thus commences from the initial notification and culminates in the declaration of the return of a candidate. The paramount policy of the Constitution-framers in declaring that no election shall be called in question except the way it is provided for in Article 329 (b) and the Representation of the People Act, 1951, compels us to read, as Fazal Ali, J. did in Ponnuswami, the Constitution and the Act together as an integral scheme. The reason for postponement of election litigation to the post-election stage is that elections shall not unduly be protracted or obstructed. The speed and promptitude in getting due representation for the electors in the legislative bodies is the real reason suggested in the course of judgment.” The learned Judge went on to add the following: “The plenary bar of Article 329 (b) rests on two principles: (1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution. Durga Shankar Mehta (1955 (1) SCR 267: (AIR 1954 SC 520) has affirmed this position and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme court's overall power to interfere under Article 136 springs into action. In Hari Vishnu (1955-1 SCR 1104): (AIR 1955 SC 233) this Court upheld the rule in Ponnuswami (AIR 1952 SC 64) excluding any proceeding, including one under Article 226, during the on-going process of election, understood in the comprehensive sense of notification down to declaration. Beyond the declaration comes the election petition, but beyond the decision of the Tribunal the ban of Article 329 (b) does not bind. If 'election' bears the larger connotation, if 'calling in question' possesses a semantic sweep in plain English, if policy and principle are tools for interpretation of statutes, language permitting, the conclusion is irresistible, even though the argument contra may have emotional impact and ingenious appeal, that the catch-all jurisdiction under Article 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a detailed poll process and to complete it through the salvationary effort of a re-poll. Whether, in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz., the Election Tribunal. That aspect will be explained presently. We proceed on the footing that re-poll in one polling station or in many polling stations, for good reasons, is lawful. This shows that re-poll in many or all segments, all pervasive or isolated, can be lawful. We are not considering whether the act was bad for other reasons. We are concerned only to say that if the regular poll, for some reasons, has failed to reach the goal of choosing by plurality the returned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election. The deliverance of Dunkirk is part of the strategy of counter-attack. Wise or valid, is another matter.” One crucial aspect which the Supreme Court in Mohinder Singh Gill (9 supra) delineated from Article 329 (b) and its earlier judgment in N.P. Ponnuswamy (4 supra) is that the bar of jurisdiction does not apply to anything whatsoever done or directed by the Commissioner, but everything he does or directs in furtherance of the elections, not contrarywise. Their Lordships held that if an action is taken by the election authority for preventing an election and not prompting it, the judicial review is available to question such an action and an order can be passed “to facilitate the flow, not to stop the stream”. The judgment in Mohinder Singh Gill (9 supra) thus carved out the exception to the bar on interference with the election process where judicial review is sought against the action, which had the effect of impeding the process of the election and an order is passed by the Court to facilitate holding of election. These two judgments of the Apex Court were considered in Manda Jaganath vs. K.S. Rathnam and others[10] by a two Judge Bench of the Supreme Court. While dealing with the exception to the bar it held: “But, the fact remains such errors should have the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration. If by an erroneous order conduct of the election is not hindered then the Courts under Article 226 of the Constitution should not interfere with the orders of the returning officers, remedy for which lies in an election petition only.” (Emphasis added) In Manda Jaganath (10 supra), a Division Bench of this Court directed the returning officer to allot symbol of a registered political party to a candidate. The said order was the subject matter of SLP before the Supreme Court. While defending the said order, the learned counsel appearing for the party, who succeeded in this Court, inter alia, contended that the direction given by this Court would only further the interest of justice in facilitating the on-going election process, which is the main object of Article 329 of the Constitution of India. This submission was rejected in no uncertain terms by the Apex Court in the above-reproduced passage. The ratio that could be culled out from the judicial precedents discussed above is that the word ‘election’ has a far wider connotation than mere final result of the election and it takes within its sweep the entire process of election commencing from the election notification till declaration of the results, that once the election process is commenced, individual interests should yield to larger public interest of completing the election process as per the schedule, relegating the party raising the disputes pertaining thereto to a properly constituted election petition and that no Court, including the High Court and the Supreme Court, can interfere even where the authority concerned passes erroneous orders except where such erroneous orders have the effect of impeding or hindering the process of election. In the light of these firmly established legal principles, this writ petition is not maintainable because acceptance of nomination of respondent No.5, even if illegal, has not hindered the process of election, but, it is a step to further the election by conducting poll. In this process, even if respondent No.3 has committed a patent illegality, the petitioner shall have to wait till the completion of the election before availing his remedy under Article 243-O(b) read with Section 233 of the Act by presenting an election petition before the authority concerned. Coming to the two judgments cited by the learned senior counsel for the petitioner, I do not find either of them of any help to the petitioner. I n Income Tax Officer, Lucknow (7 supra), the Division Bench of Allahabad High Court was dealing with a case where the Income Tax Tribunal, while disposing of an appeal arising under Excess Profits Tax Act, 1940, failed to deal with the specific plea raised by the assessee regarding adjustment of standard profits. The assessee filed review applications, which were dismissed by the Tribunal on the ground that it was not conferred with the specific power of review. A Writ Petition filed by the assessee was allowed by the learned single Judge. While dealing with the appeal filed against the said judgment, the Division Bench held that a Court or a Tribunal has inherent jurisdiction to rectify a wrong committed by itself when that wrong causes prejudice to a party for which that party is not responsible. In Sub-Divisional Officer (Compensation Officer) (8 supra), the action of the Compensation Officer appointed under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1951, determining compensation without notice to the State Government, was the subject matter of the Constitution Bench of the Supreme Court. When a learned single Judge of the High Court did not interfere with the decision of the Compensation Officer to entertain the application of the State Government for revising his earlier order on the ground of lack of notice, a Division Bench reversed the said judgment on the ground that the Compensation Officer is not vested with the power to revise his own order. While reversing the Division Bench judgment, the Supreme Court held that every Court and Tribunal is entitled to reopen a proceeding which has preceded ex parte, not because a party has failed to appear but because a notice has not been sent to a necessary party. It is further held that a decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such a party and the Court may in such a case reopen the proceeding to give the party a chance to state its case. These two judgments, recognized the power of a Court or Tribunal to recall its own order, which were found to be passed either in violation of principles of natural justice or suffers from a patent error causing manifest injustice to one of the parties. In my opinion, these two judgments do not have any relevance in dealing with the present case, because a Returning Officer cannot be equated to the status of a Court or a Tribunal and, more so, when he is required to act strictly in accordance with the power conferred on him by the Rules. In the face of the constitutional bar of interference with the conduct of elections and within the limited parameters of judicial review available to this Court in examining the orders passed by the functionaries dealing with the elections, it is not possible for this Court to issue any Mandamus to the Returning Officer to rectify his mistake. As held in the catena of decisions referred to above, the only remedy available to the petitioner is to approach the Election Tribunal in the event such a necessity arises after completion of the election process and declaration of the results. For all the abovementioned reasons, the writ petition is dismissed. As a sequel to dismissal of the Writ Petition, WPMP Nos.19833 of 2006, 10326 of 2007 and WVMP No.858 of 2007 are dismissed as infructuous. ____________________________ C.V.NAGARJUNA REDDY, J Date: 31-08 -2010 ES/MNR Note: LR copies to be marked. (BO) MNR [1] 1995 (3) ALT 217 (D.B.) [2] 2001 (4) ALD 839 (FB) [3] 2004 (6) ALD 587 (FB) [4] AIR 1952 SC 64 [5] AIR 1995 SC 1512 [6] (1996) 6 SCC 303 [7] (1970) Vol.75 Income Tax Reports 646 [8] AIR 1966 SC 1164 [9] AIR 1978 SC 851 [10] (2004) 7 SCC 492