In the matter of: Chinta Subba Rao

Kondaiah, C.J.—The application of the petitioner under Article 226 of the Constitution of India is to declare that the acts and conduct of the Returning Officers of Secunderabad, Kakinada and Rajahmundry Parliamentary Constituencies (respondents 1 to 3) in the recent Mid Term Poll to the House of People are prejudicial and against his interests and their conducting the elections on the due dates without counter acting and undoing the publications of telegrams is bad and the elections held by them are bad in law.

2.The fourth respondent is the Chief Election Officer of the State of Andhra Pradesh, whereas the fifth respondent is the Election Commission, Union of India. The Sixth respondent is one Sri Katari Narayana Rao, who is said to have issued a telegram. Respondents 7 to 9, Sarvasri M. S. Sanjeeva Rao, S. B. P. Patabhi Rama Rao and P. Shivashankar are the candidates who were declared to have been elected in the three constituencies referred to above. Respondent No. 10 is the President of the Andhra Pradesh High Court Advocates'' Association, Hyderabad and respondents 11 to 14 are the advocates of the Andhra Pradesh High Court.

The main grievance of the applicant is that the election authorities have derelicted their duties in the conduct of proper elections and consequently, the elections conducted by them for three Parliamentary Constituencies referred to above are illegal and void. It is averred in the affidavit filed in support of the application that he attended the High Court of Andhra Pradesh on 16-1-1980 and he heard a rumour in the High Court Advocates'' Association that there was a talk about the applicant''s death before polling in the polling stations of the aforesaid constituencies. He was informed by some Advocates on 17-1-1980 about the rumour and remark floated in the polling stations that candidate with symbol of elephant died and a telegram was received to the effect that he had died before polling. Two or three days later, the President of the Bar Association informed the petitioner the news of the telegram was received by him to the effect that the petitioner was dead before polling and it was stated so in Congress I Workers'' Conference of meeting in Congress I Office in Hyderabad. The Petitioner''s grievance is that on account of such false rumours, he did not secure majority votes and was defeated. Consequently, the conduct of elections by the Returning Officers was in substance illegal, void and has to be declared so in this Writ Petition. This in substance is the Writ petition.

4.The Writ petition was originally filed with a court fee of Rs. 2/-. The Office raised an objection that a court fee of Rs. 100/- has to be paid in a Writ Application. To the same effect is the order of our learned brother Raghuvir, J., on 7-3-1980, on the office objection, correctness of which was sought to be challenged by the applicant. thereafter the petitioner paid the deficit court fee. The office had further raised the question of maintainability of the Writ Petition. The learned Judge had directed the office to number the Writ Petition if the requisite deficit court fee was paid in a week and observed that the maintainability of the writ petition would be considered by the Writ Admission Court. The Writ Petition has been directed by our learned brother, P. A. Choudary, J., before whom it came up for admission to be posted before a Division Bench and that is how this has come up before us.

The main point that has to be decided before considering the question of merits is about the maintainability of an application under Article 226 of the Constitution of India. In short, the question is whether the objection raised by the office as to the maintainability is or is not sustainable. The contention of Sir Chinta Subbarao, the applicant who is also an Advocate is three fold.

Firstly, it is contended that the scheme and provisions of the Representation of the People Act, 1951 or the amended provisions thereof are incomplete in so far as the facts of the present case are concerned. Alternately, he pleaded that the set of facts dealt with in this Writ petition are not covered by the Representation of the People Act, and therefore, the petitioner''s case is governed by the general law only and the Writ Petition is maintainable. Secondly, it is contended that Article 329 of the Constitution is repugnant and cuts across the laudable mission of democratic experiment in this country. Thirdly, it is contended that in any event, the provisions of Article 329(b) of the Constitution and Section 80 of the Representation of the People Act are not applicable to the case on hand.

Though the question has been split into three different pleas, the sum and substance of the petitioner''s contention is that the provisions of Section 80 of the Representation of the People Act and the procedure laid down therein for the entertainment and disposal of an election to the House of Parliament are not attracted and the provisions of Article 329(b) of the Constitution are not a bar to challenge the validity of an election to the Parliament in the set of facts of the instant case.

8-9. Suffice it to state that the provisions of Ss. 80 to 116 of the Representation of the People Act provided for the presentation, trial and disposal of an election petition. Section 80 of the Representation of the People Act, 1951 prohibits the challenge of any election except by an election petition presented in accordance with the provisions of that part of the Act. That apart, Art. 329 of the Constitution bars interference of Courts in election matters. We may notice Art. 329(b) which is relevant and material for the present case.

"Article 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".

Article 329 (b) makes it abundantly clear that no election to either House of Parliament 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. It is also necessary to notice the non obstante clause with which this Article begins; "Notwithstanding anything in this Constitution". This power contemplated by Article 329(b) would also prevail over the provisions of Article 226 whereunder this Court can issue writs in appropriate cases provided therefore. The expression "election" used in Article 329(b) is of wide import which would take in not only the final result of the election, but the entire process and procedure of an election including the rejection or acceptance of a nomination paper. This view has been upheld by the Supreme Court as early as on January 21, 1952, in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, . The learned Fazl Ali, J., speaking on behalf of the Court ruled at page 68 thus:

"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. The use of the expression "conduct of elections" in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Art. 329(b). 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 beings ......... is, when the election" can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps some of which may have an important bearing on the result of the process".

It is further held that this court under Article 226 of the Constitution is not empowered to exercise ordinary original civil Jurisdiction in respect of an election petition. The challenge to any election has to be considered only in accordance with the provisions of the Representation of the People Act, 1951. At page 69, it is observed:

"... I think it will be a fair inference from the provisions of the Representation of the people Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.

It was argued that since the Representation of the people Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under Article 226 of the Constitution. This argument however is completely shut out by reading the Act along with Article 329(b). It will be noticed that the language used in that article is preceded by the words "notwithstanding anything in this Constitution". I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress". This view has been reiterated by the subsequent decision of the Supreme Court while considering the provisions of Article 71 of the Constitution in Narayan Bhaskar Khare Vs. The Election Commission of India, . Till today, this is not disputed to be the correct position of law. The aforesaid decisions of the Supreme Court and the provisions of Article 329(b) of the Constitution read with Section 80 of the Representation of the People Act, 1951 would be a complete answer to reject the petitioner''s claim that an application under Article 226 of the Constitution is maintainable to declare an election to Indian Parliament as illegal and void. The grievance of the petitioner in substance is that some rumour by the issuance of a false telegram has been raised in the minds of the voters in the three Parliamentary constituencies, viz., Kakinada, Rajahmundry and Secunderabad Parliamentary Constituencies in the recent mid term Parliamentary elections that the man with elephant symbol which represents the applicant who was one of the contestants was dead before the polling date and consequently, the conduct of elections to these three Parliamentary Constituencies was illegal, improper and not in accordance with the provisions of law and he therefore requires them to be declared invalid and void. In short, what has been alleged in the application of the writ petition relates to the conduct of the every election to the three Parliamentary Constituencies. This is indicated by the petitioner in para 20 of his application which reads thus:

"I have my grievance against the conduct of election under the circumstances not against the contesting candidates whatsoever".

What exactly he seeks is to declare the elections held by respondents 1 to 3, Returning Officers declaring respondents 7 to 9 as successful candidates for the Parliamentary Constituencies of Kakinada, Rajahumundry and Secunderabad, as bad in law. The writ petition squarely falls within the principle laid down by the Supreme Court in Ponnuswami''s case referred to earlier and the writ petitions is not maintainable and is barred specifically by Article 329(b) of the Constitution of India read with Section 80 of the Representation of the People Act, 1951. For the reason stated above, the writ petition is held to be not maintainable and has to be dismissed on that short ground. In this view, it is unnecessary to state anything relating to the merits of the application.

In the result, the Writ petition is dismissed as not maintainable. Immediately after the pronouncement of the judgment the applicant, Sri Chinta Subbarao, Adv. As party in person prayed by an oral application for grant of leave to appeal to the Supreme Court against our decision. We are unable to find any substantial question of law of general importance which, in our opinion, requires to be decided by the Supreme Court and therefore, we reject his prayer for granting leave to appeal to the Supreme Court.

Petition dismissed.