PASUPATI NATH SINGH Vs. N K SINGH

JUDGEMENT

(1.) This purports to be an application under Articles 226 and 227 of the Constitution against the order of the returning officer dated the 21st January, 1967, in Dumraon Legislative Assembly Constituency for the coming elections, rejecting the nomination of the petitioner as a candidate for the said election on the ground that he did not take the necessary oath before the scrutiny of the nomination paper.

(2.) A preliminary objection was raised by the respondents to the maintainability of this application relying on the well-known judgment of the Supreme Court in N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency, AIR 1952 SC 84. In that case, their Lordships held on construction of Article 329(b) of the Constitution that the powers of the High Court under Article 226 cannot be invoked for the purpose of challenging the order of the Returning Officer rejecting the nomination of a candidate while the process of election was still going on and that the only remedy provided under the Constitution was by way of an election petition as provided in the Representation of the People Act. This decision was re-affirmed in a later decision of the Supreme Court in H. V. Kamath v. Ahmad Ishaque, AIR 1955 SC 233, where it was pointed out that after election petitions had been filed and Election Tribunals had begun to exercise their functions, the High Court's jurisdiction under Article 226 may in appropriate cases be exercised.

(3.) Mr. Ghosh for the petitioner quite properly did not challenge the aforesaid view but urged that the law must be deemed to have undergone slight change in view of the recent amendment to the Representation of the People Act brought about by the Representation of the People (Amendment) Act, 1966 (by Section 80A) by which the High Court has been given exclusive jurisdiction to try election petitions. When Mr. Ghosh's attention was drawn to the provisions of Sections 81, 82 and 83 of that Act for the purpose of ascertaining what was the true meaning to be given to the expression "election petition" as mentioned in S. 80A, he quits fairly conceded that the election petition, whose trial is required to be done by the High Court under Section 80A, must be a petition filed after the process of election is concluded and the results are declared This is made clear in Section 81 of that Act where it is stated that the election petition shall not be filed earlier than the date of the election of the returned candidate. Thus, the election petition referred to in Section 80A cannot obviously be filed before the election results are declared