RAJEEBEN KALIDAS SENMA Vs. ELECTION OFFICER

JUDGEMENT

(1.) The only question, which is placed in focus, in this petition, is as to whether this Court, in exercise of its power under Article 226 of the Constitution of India, can examine the merits of the disputed question of rejection of nomination form, to which our unambiguous, evident and positive reply is in the negative, after having taken into consideration the entire factual profile as well as the relevant proposition of law and after consideration of the submissions advanced before us and also bearing in mind that the petitioner can raise this issue after the elections are over by way of Election Petition, wherein full-fledged inquiry could be gone into for the purpose of finding out truth about the disputed question.

(2.) During the course of hearing, Mr.P.R Nanavati, learned Advocate appearing for the Returning Officer, Kutch, has placed reliance on a decision of the Constitutional Division Bench of the Hon'ble Apex Court in N.P.Ponuuswami Vs. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. and Ors., AIR 1952 SC 64, wherein it has been held that in view of the provisions of Article 329 (b) of the Constitution of India, the expression "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 expression, "conduct of election" 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 of Article 229 (b). Thus, it has been clearly held that the expression, "election" may be taken to embrace the whole procedure, which consists of several stages and embraces many steps, whereby the "elected member" is returned, whether or not, it be found necessary to take poll. It is not used in a narrow sense. It is, also, further held that law does not contemplate two attacks on matters connected with election; on one hand, under Article 226, during the process of election, and on the other, when it is completed by Election Petition, under Representation of the People Act and that the rejection or acceptance of nomination paper cannot be called in question under Article 226.

(3.) Section 100 of the Representation of the People Act, 1951 deals with the grounds for declaring the elections to be void. In clause (c) of sub-section (1) of Section 100, it is clearly prescribed statutorily that any nomination that has been improperly rejected will be a ground for declaring election to be void. It is a settled proposition of law that ordinarily Courts, much less the Writ Courts, will be at lot at the eleventh hour to intercept the process of election, mainly, on the ground that the election process, once commenced, ordinarily, should not be prevented by judicial fiat and secondly, there is an alternative efficacious remedy available, wherein such questions can be raised by filing an Election Petition and rejection of nomination improperly is one of the grounds for declaring election to be void.