Gaddala Vinay Kumar V. The Election Commission of India

WP/12827/2024

AI Insights

The case revolves around the rejection of the petitioner's nomination papers for contesting the Lok Sabha elections from Peddapalli Constituency. The petitioner, Gaddala Vinav Kumar, filed a writ petition challenging the rejection of his nomination papers by the Returning Officer on the grounds of incomplete documentation. The court examined the procedural adherence and the substantive requirements under the Representation of the People Act, 1951, particularly focusing on the completeness of Form No.26 and the accompanying documents like income tax returns. The court referenced Article 329(b) of the Constitution, which restricts judicial interference in electoral matters, and supported its decision with precedents that discourage pre-election judicial intervention in such cases.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 726526 (HC-TELANGANA)
• Appeal Type: Others
• Pronouncement Date: 03-05-2024
• Assessment Year: misc
• Other Referred Cases: N.P.Ponnuswami vs. Returning Officer, Namakkal Constituency, Ram Phal Kundu vs. Election Commission of India
• Laws Referred To: Article 226 of the Constitution of India, Section 151 CPC, Representation of the People Act, 1951
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: MOHAMMED OMER FAROOQ; P SUDHEER RAO; GP FOR REVENUE
• Assessee Lawyers: K ANNAPURNA REDDY
• Keywords: Arbitrary rejection; Election Commission; High Court; Writ Mandamus; Nomination Papers; Returning Officer
• Section: 151; 226; 36; 33; 329

Judgement Text

"HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRD DAY OF MAY TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE AND THE HONOURABLE SHRI JUSTICE ANIL KUMAR JUKANTI WRIT PETITION NO: 12827 OF 2024 [ 33e3 ] ...PETITIONER Between: AND 1 Gaddala Vinav Kumar, S/o Premaiah, Aged 66 Years, Occ Service Rlio H' No i-q-ae., farimhagar Road Peddapalli Town, Mandal and District5O5172 2 The Election commission of lndia, Rep. by chief Election commission Nirvachan Bhavan, New Delhi The Telangana State Election Commission, Rep by the Chief Election s\"ireiJ,v, Enx.n ehrrr.t,-ii\"k sl\"d' Adarsh Nagar Hyderabad - 500063 3. The District Collector, Peddapalli District 4. The District Election Officer, Peddapalli District 5. The Returning Officer, Peddapalli District ...RESPONDENTS Petition under Article 226 of the constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High court may be pleased to issue writ order or orders one in the nature of writ Mandamus declaringthehighhandednessoftherespondentsinissuingthelmpugned Procs.No.CTtSTTl2o24dated26.o4.2024reject.ngthenominationpapersofthe petitioner that submitted on 22.04.2024 for contesting of the Lok sabha Member fromPeddapalliConstituency(ReservedforSC)asanlndependentcandidate as illegal, arbitrary, unjust and consequently direct the respondents to receive the nomination papers of the petitioner for contesting the election lor 2024. lA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to declare the high handedness of the respondents in issuing the lmpugned Prccs. No. C7157712024 dated 26-04.2024 rejecting the nomination papers of the petitioner that submitted on 22.04.2024 for contesting of the Lok Sabha Member from Peddapalli Constituency (Reserved for SC) as an lndependent Candidate as illegal, arbitrary, unjust and consequently direct the respondents to receive the nomination papers of the petitioner for contesting the election for 2024. Counsel for the Petitioner: M/s. K.ANNAPURNA REDDY Counsel forthe Respondent No.1: SRI MOHAMMED OMER FAROOQ, SC FOR ECI Counsel for the Respondent No.2, 4 & 5: SRI P.SUDHEER RAO Counsel for the Respondent No.3: GP FOR REVENUE The Court made the following: ORDER THE HON'BLE THE CHIEF JUSTTCE ALOKARADHE AIYD THE HON'BLE SHRI JUSTICE AI{IL KTJMAR JT'KANTI WRIT PETITION No.r2A27 of,2024 ORDER: (Per the Hon'bte the ChieJ Jusdce Abk Aradhe) Ms. K.Annapurna Reddy, Iearned counsel for the peutioner. Mr. Mohammed Omer Farooq' learned Standing Counsel for the Election Commission of India for respondent No. 1. 2. Heard on the question of admission. 3. In this writ petifion, the petitioner has assailed the validity of the order dated 26'04.2024 passed by the Returnlng OIIicer, by which nomination paper of the petidoner has been rejected. 4. Facts giving rise to filing of this writ petifon briefly stated are that the petitioner is a resident of 2 Peddapalli District. The petitioner had fi,led the nomination paper on 22.04.2024 as an independent candidate from Peddapalli Constituency. The nomination paper submitted by the petiiloner was rejected by the Returning Officer by arr order dated 26.04.2024 tnter alia on tl.e ground that the petitioner had not annexed the income tax returns for all the five years and Form No.26 has not been filed. The petiuoner in this petition has assailed t] e validitv of the said order. 5. Learned counsel for the pefiUoner submitted that the petitioner had submitted the nomination form for Peddapa,lli Parliamentar5r Constituency on 22.04.2024. However, initially with the nomination form, Form No.26 which comprises of 14 pages was filed. However, the petitioner annexed income tax returns for a period of only one year. Thereafter, on a defect being pointed out, ttre petitioner fi_led 3 pages of Form No.26 along w.ith income tax returns on 24.04.2024 which has been duly acknowledged by the Returning Officer. It is therefore submitted that the action of Returning Officer in rejecting -.) 3 the nomination paper is arbitrary. It is also submitted that the petiUoner has been deprived of his statutory right to contest the election. It is also urged that tJre provisions of Section 36(5) of the Representation of the People Act' I95I (hereinafter referred to as \"the 1951 ActJ have been violated ln as much as the petitioner though not present on the date of scrutiny, was present on the next date' but the office of the Returning Oflicer was locked' It is therefore urged that the order dated 26.04.2024 be quashed' 6. On the ottrer hand, learned Standing Counsel for Election Commission of India on instructions submitted that admittedly the petitioner filed Form No'26 along with all the 14 pages and annexed the income tax retums of only one year. Thereafter on deficiency being pointed out' the petitioner produced ttrree pages of Form No'26 on 24.04.2024 along with the income tax returns' It is therefore submitted that the Form No'26 was not produced in the entirety in as much as all 14 pages were not presented. Therefore, the nomination paper has rightly been rejected. It is alSb trged that no interference in this 4 writ pe[tion is ca-lled for at ttris stage of the process of election which has a,lready commenced. In support of the aforesaid submission, reliance has been placed on N.P.Ponnuswarnl vs. Returnlng Ofrlcer, Namakkal Constltuencyr. 7. We have considered the rival submissions made on botJl sides and have perused the record. Before proceeding further, it is apposite to take note of the relevant provisions of the Constitution of India and the l95l Act. 8. Article 329 of the Constitution of India deals with bar to interference by Courts in electoral matters. Article 329(b) is extracted below for the facility of reference: \"No election to either House of parllament or to the House or either House of the t€gislature of a State shall be called in question except by an election petition presented to such authority and in such mamer as may be provided for by or under any law made by the appropriate Legislature.\" ' (19s2) 1 scc a4 t 5 9. Section 33 of ttre 1951 Act deals with presentaUon of nomination paper and requirements for a va-lid nomination. The relevant extract of Section 33(l) wit]l proviso and Section 36 of the 1951 Act are extracted below: \"33, Presentatlon of aomlnation paper and requirements for a valld sornlaatlon.--[1) On or before the date appolnted under clause (a) of section 3O each candtdate shall, either in person or by hts proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the aftemoon deliver to the retuming offi.cer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by arl elector of the constituency as proPoser: Provided that a candtdate not set up by a recognised political party, shall not be deemed to be duly nominated for election form a constltuency unless the nomination paper is subscribed by ten proposers being electors of the constituency: '36. Scrutiny of nomlnations. (1) On the date flxed for the scrutiny of nominations under sec on 3O, the candldates, their election agents, one proposer of each candidate, and one other person duly authorised in writlng by each candidate, but no other person, may d 6 attend at such time and place as the returning officer may appoint: alld the retuming officer shall give them all reasonable facilities for examining the nomination papcrs of all candidates which have been delivered within the time and in the manner laid down in section (2) The retuming officer shall then examine the nomination papers and shall decide all objections which may be made to any nominatlon and may, either on such objection or on his own mouon, after such su nary inqurry, if any, as he thinks necessary, reject any nomination on any of the following grounds: (a) that on the date fixed for the scrutiny of nomlnations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that nlay be applicable, namely: Articles 84, lO2, 173 and 19I, Part II of this Act and sectlons 4 and 14 of the Govemment of Union Territories Act, I963 (20 of 1963); or (b) that there has been a failure to comply u.ith any of the provisions of section 33 or secUon 34; or (c) that the signature of the candldate or the proposer on the nomination paper is not genuine. (3) Nothing contained in clause (b) or clause (c) of sub-section (21 shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomlnation paper, if the candldate has been duly nominated by means of another nomination paper in respect of whtch no irregularity has been cornrnitted. 7 (4) The returning officer shall not reject any nominatton paper on the ground of any defect which is not of a substantial character. (5) The returning officer shall hold tlte scrutlny on the date appointed in this behalf under clause (b) of section 30 ancl shall not allow any adjoumment of the proceedings except when such proceedlngs are lnterrupted or obstructed by riot or open vlolence or by causes beyond his control: Provlded that in case an objectlon ls raised by the retuming officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one followtng the dat'e fixed for scrutiny, and the retumlng officer shall record his decision on the date to whtch the proceedings have b€en adjoumed. (6) The retumlng officer shall endorse on each nomination paper his decislon accepttng or rejecting the same and, if the nomination paper ls rejected, shall record ln wdting a brief statement of his reasons for such rqectlon. (7) For the purposes of this section' a certified copy of an entry in the electoral roll for the time being ln force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it ls proved that he is subject to a disqualification mentloned in section 16 of the Representation of the People Act, 1950 (43 of 1950). (8) Immediately after all the nomlnation papers have been scrutinised and decisions accepting or .'t ( , ' 1 8 rejecting the same have been recorded. the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.\" 10. In N.P.Ponnuswami (supra), the petitioner ffled nomination papers for election to Madras Irgisla ve Assembly and the nomination paper of the petitioner therein was rejected. Thereupon, the petitioner in the said case filed a writ pe[tion which was dismissed in the light of mandate contained in Article 329(b) of the Constitution of India. Thereupon, the Supreme Court dealt with the scope and ambit of Article 329(b) of the Constitution of lndia. In paragraphs 12, 14 and 15, it was held as under: '12. It seems to me that the word \"elec on\" has been used in Part XV of the Constitution tn the wide sense, that ls to say, to connote the enure procedure to be gone through to retum a candidate to the legislature. The use of the expression 'conduct of electtons\" tn Article 924 speciftcally points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in part XV including Article 329(b). That the word 'elecuon\" bears this wide meaning whenever we talk of elections in a r' / ./ 9 democratlc country, is bome out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questtons mooted is, when the electton begins. (13) )o( )oc( 14. The next lrnportart question to be considered is what is miant by the words \"no election shall be called ln question\". A reference to any treatise on elections in England will show that an election proceeding in that country is liable to be assailed on very limited grounds, one of them belng the improper rejectlon of a nominatlon paper. The law wlth which we are concerned is not materially different, and we flnd that in SecUon 1OO of the Representation of the People Act' l95l,oneofthe grounds for decladng an election to be void is the tmproper rejecuon of a nominatlon paper. 15, The question now arlses whether the law of elections ln this country contemplates that there should be two attacks on matters connected tr'lth election proceedtngs, one whlle they are golng on by invoking the extraordinary Jurlsdtction of the High Court under Artlcle 226 of trre Consututlon (the ordinary jurisdiction of the courts having been expressly excluded), and another a-fter they have been completed by means of an electlon petltion. In my opinlon, to aJfirm such a Posltlon would be contrary to the scheme of Part XV of the Constltutlon and the Representation of the People Act, which, as I shall polnt out later, seems to be that any matter which }jras flrc effect of vitiat'ing -/ i i ::10:: 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 elecuon lau/, the only significance which the rejection of a nominauon paper has consists in the fact that it can be used as a ground to call the elecuon in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground a-nd other grounds which may be raised under the law to call the election in question, could be urged. I thtnk it follows by necessary irnplication 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 arr election can be called in questlon could be raised at an earller stage and errors, if any, are recttfied, there wtll be no meaning in enacting a provision like Arttcle 329(b) and in setttng up a Special Tribuna-I. Any other mearning ascribed to the words used in the arucle would lead to anomalles, which the Constitution could not have contemplated, one of them being that conJlicting views may be expressed by the High Court at the pre-polling stage and by the Election Tfibunal which is to be an independent body, at the stage when the rnatter is brought up before tt.\" ::11:: 11. The law laid down in N.P.Ponnuswaml (supra) was referred to subsequently by the Supreme Court in Ram Phal Kundu (supra) and in paragraph 24, it was held as under: \"24, lt may be notlced that the petluon by Kamal Sharma was flled on 6-2-2OOO and the same was allowed by the Electton Corunlsslon the very next day i.e. on 7- 2-2OO0 by which a directlon was issued to the Returning Ofllcer to hold a fresh scrutiny. There is nothing on record to indtcate nor it appears probable that before passlng the order, the Election Cornmission issued arty notice to Bachan Singh. Apparen0y, the order was passed behlnd his back. The order of the Electlor Commlsglon to the effect that the RetnrDlng Ofrcer shall take further consequentlal stePs as Eay become Decessary, by treatlug all earller proceedlngs ln relatlon to the eald candldates, as vold ab lnttio a.ud redraw the llst of validly nomlnated caadldeteg' could not have been passed wlthout gtvlng al opportudty of hearlng to Bachan Slngh. That apart' It has bcea held by a catera of declslone of thls Court thet once the aoEinatlon paper of a candldate ls reJcctcd, the Act provldes for oaly oae reucdy, that rcmedy belag by a.u electioa petltloa to be preseated after the electlon ls over, a.nd there ls Eo remedy provlded at a.ny intermedlatc atage. (Slee IV.P. .Fonnusnrcmi v. Return,fir.g Olficer l1l952l 1 SCC 94 : AIR 1952 SC 64l, Mohinder Singh Gill v. ChieJ Electiott Commissioner (f978) 1 SCC 4O5 : AIR 1978 r- z,l2,i SC 8511 alnd, Election Commission oJ Ind.ia v. Shiuaji (1988) r S,CC 277 : AIR 1988 SC 611.) Therefore, thc order passed by the Electlon Commlsslon on 7-2-2OOO was not only tllegal but was also wlthout Jurlsdlction and the respondent Kanal Sharma ca[ get no adva.ntage from the sane. The lnference drawn and the Andl'|gs recorded by the High Court on the basls of the order of the Electlon Com,.mlsslon, therefore, caanot be rustahed. \" (emphasis supplied) Thus, the ratio of the aforesaid decisions is that once the nomination paper of a candidate is rejected, the 1951 Act only provides for one remedy, that is the remedy by way ofarl elecuon petition to be presented after the election is over ard there is no remedy provided at any intermediate s tage. 12. However, as the contention that the order rejecung the nominauon paper daLed 26.04.2O24 has been termed as arbitrary, we may advert to the issue of validity of the order. The question whether the defecl. in the nomination paper is of substantial character or not would depend on the facts of each case. ::13:: 13. At this stage, we may advert to the issue whether the order dated 26.04.2024 reiecflng tl.e nomination paper of the petitioner is arbitrary. L4. Before proceeding further, it is aPposite to take note of the Handbook for Returning Officer, lssued by the Election Commission ..,/ ::16:: adducing forged documentary evidence before him.\" 15. Admittedly, the petitioner on objection being raised has not presented all the 14 pages of Form No.26 but has only filed ttree pages along with income tax returns for a period of five years on 24.04.2024. Therefore, the action of the Returning Oflicer cannot be termed as arbitrary warranting interference of this Court in this writ petiuon at this point of Ume. 16. It is clarified that the findings have been recorded in this order only for the purpose of deciding the controversy involved in the instant writ petition and the pedfioner shall be at liberty to take recourse to the remedy of election petition available to him under the law. In case the petitioner resorts to such a remedy, the findings recorded in this order shall not have an impact on the merits of the case of the petitioner. 17. Accordingly, the Writ PeUUon is dismissed with the aforesaid liberty. l To, :.:.lTzz As a sequel, miscellaneous petitions, pending if any' stand closed. There shall be no order as to costs. SD/- T. TIRUMALA D vt ASSISTANT REGI R //TRUE COPY// SECTION OFFICER One CC to M/s. K.ANNAPURNA REDDY, Advocate [OPUC] One CC to SRI P.SUDHEER RAO, Advocate [OPUC] One CC to SRI MOHAMIVIED OMER FAROOQ, SC FOR ECI IOPUC] Two CCs to GP FOR REVENUE, High Cou( for the State of Telangana at Hyderabad [OUTI Two CD Copies 1 2 .7 4 5 BSR GJP + HIGH COURT DATED: 0310512024 ORDER WP.No.12827 of 2024 DISMISSING THE WRIT PETITION, WITHOUT COSTS ( 1Y{E S fa7 € STATC o t J c o 0 6 JUN 2024 DE 6-'i ,_, t )o "