Delhi High Court
Pradeep Kumar vs Election Commission Of India And Ors on 24 January, 2025
Author: Jyoti Singh
Bench: Jyoti Singh
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision:24th January, 2025
+ W.P.(C) 935/2025
PRADEEP KUMAR .....Petitioner
Through: Mr. Pushpendu Shukla, Mr. Ashok
Kumar Mishra, Ms. Sudha Mishra and Mr.
Santosh Panday, Advocates.
versus
ELECTION COMMISSION OF INDIA AND
ORS .....Respondents
Through: Mr. Ankit Agarwal, Standing Counsel
with Ms. Viyushti Rawat and Mr. Ashish Shukla,
Advocates for R-1/ECI.
Mr. Amit Sharma, Mr. Dipesh Sinha and Ms.
Aparna Singh Adv for Respondent No. 2
Mr. Rajeev Sharma and Mr. Vinayak Sharma,
Advocates also for R-2.
Mr. Ripu Daman Bhardwaj, Advocate for R-4.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J. (ORAL)
CM APPL. 4559/2025
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
W.P.(C) 935/2025
3. This writ petition is preferred on behalf of the Petitioner under Article
226 of the Constitution of India seeking the following relief:
“i) to issue a writ of mandamus or any other appropriate writ, order or
direction against the respondents jointly & severally to accept the
nomination paper of the petitioner to contest the election for the ac-23,Signature Not Verified
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Karol Bagh, New Delhi and entered his name in the list of contesting
election and take all necessary actions to allow him as an contestant from
the AC-23 Karol Bagh, in the interest of justice.”
4. Learned counsel for Respondent No.1 objects to the maintainability of
this writ petition under Article 226 of the Constitution of India on the
ground that there is a Constitutional bar for entertaining the present writ
petition and in this context, refers to Article 329(b) of the Constitution of
India which reads as: “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.” It is urged that by virtue of Article 329(b) of the
Constitution and Sections 80, 81 and 100(1)(c) of Representation of People
Act, 1951 (‘1951 Act’), the only remedy available with the Petitioner is to
file an Election Petition. In support of the preliminary objection, learned
counsel relies on the judgment of the Supreme Court in N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency and Others, (1952) 1 SCC 94
and judgment of a Coordinate Bench of this Court in Vijay Pal Singh v.
Union of India and Others, 2019 SCC OnLine Del 8371.
5. Having heard learned counsel for the parties, I find merit in the
preliminary objection raised by counsel for Respondent No.1. In N.P.
Ponnuswami (supra), the Constitution Bench of the Supreme Court was
considering an appeal against an order of the High Court, whereby the writ
petition in which there was a challenge to the order of the Returning Officer
rejecting the nomination paper and a direction was sought to the Returning
Officer to include Petitioner’s name in the list of valid nominations, was
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dismissed by the High Court on the ground that it had no jurisdiction to
interfere with the order of the Returning Officer in light of Article 329(b) of
the Constitution. Examining Article 329(b) and provisions of 1951 Act, the
Supreme Court observed that where a right or a liability is created by a
statute which gives a special remedy for enforcing it, the remedy provided
by that statute only must be availed of and invocation of writ jurisdiction
during the ongoing election process was excluded. Relevant paragraph from
the judgment is as follows:
“17. The Representation of the People Act, 1951, which was passed by
Parliament under Article 327 of the Constitution, makes detailed
provisions in regard to all matters and all stages connected with elections
to the various legislatures in this country. That Act is divided into 11
parts, and it is interesting to see the wide variety of subjects they deal
with. Part II deals with “the qualifications and disqualifications for
membership”, Part III deals with the notification of General Elections,
Part IV provides for the administrative machinery for the conduct of
elections, and Part V makes provisions for the actual conduct of elections
and deals with such matters as presentation of nomination papers,
requirements of a valid nomination, scrutiny of nominations, etc., and
procedure for polling and counting of votes. Part VI deals with disputes
regarding elections and provides for the manner of presentation of
election petitions, the constitution of Election Tribunals and the trial of
election petitions. Part VII outlines the various corrupt and illegal
practices which may affect the elections, and electoral offences.
Obviously, the Act is a self-contained enactment so far as elections are
concerned, which means that whenever we have to ascertain the true
position in regard to any matter connected with elections, we have only to
look at the Act and the Rules made thereunder.
18. The provisions of the Act which are material to the present discussion
are Sections 80, 100, 105 and 170, and the provisions of Chapter II of
Part IV dealing with the form of election petitions, their contents and the
reliefs which may be sought in them. Section 80, which is drafted in almost
the same language as Article 329(b), provides that “no election shall be
called in question except by an election petition presented in accordance
with the provisions of this Part”. Section 100, as we have already seen,
provides for the grounds on which an election may be called in question,
one of which is the improper rejection of a nomination paper. Section 105Signature Not Verified
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says that “every order of the Tribunal made under this Act shall be final
and conclusive”. Section 170 provides that:
“170. Jurisdiction of civil courts barred.–No civil court shall have
jurisdiction to question the legality of any action taken or of any
decision given by the Returning Officer or by any other person
appointed under this Act in connection with an election.”
These are the main provisions regarding election matters being judicially
dealt with, and it should be noted that there is no provision anywhere to
the effect that anything connected with elections can be questioned at an
intermediate stage.
19. It is now well recognised that where a right or liability is created by a
statute which gives a special remedy for enforcing it, the remedy provided
by that statute only must be availed of. This rule was stated with great
clarity by Willes, J. in Wolverhampton New Waterworks Co. v.
Hawkesford [Wolverhampton New Waterworks Co. v. Hawkesford, (1859)
6 CB NS 336 at p. 356 : 141 ER 486] in the following passage : [CB (NS)
p. 356 : ER p. 495]
“… There are three classes of cases in which a liability may be
established founded upon statute. One is, where there was a liability
existing at common law, and that liability is affirmed by a statute
which gives a special and peculiar form of remedy different from the
remedy which existed at common law : there, unless the statute
contains words which expressly or by necessary implication exclude
the common law remedy, and the party suing has his election to
pursue either that or the statutory remedy. The second class of cases
is, where the statute gives the right to sue merely, but provides no
particular form of remedy : there, the party can only proceed by
action at common law. But there is a third class viz. where a liability
not existing at common law is created by a statute which at the same
time gives a special and particular remedy for enforcing it. … The
remedy provided by the statute must be followed, and it is not
competent to the party to pursue the course applicable to cases of the
second class. The form given by the statute must be adopted and
adhered to.”
The rule laid down in this passage was approved by the House of Lords in
Neville v. London Express Newspapers Ltd. [Neville v. London Express
Newspapers Ltd., 1919 AC 368 (HL)] and has been reaffirmed by the
Privy Council in Attorney General of Trinidad v. Gordon Grant & Co. Ltd.
[Attorney General of Trinidad v. Gordon Grant & Co. Ltd., 1935 AC 532
(PC)] and Secy. of State v. Mask & Co. [Secy. of State v. Mask & Co.,
(1939-40) 67 IA 222 : (1940) 44 CWN 709 : 1940 SCC OnLine PC 10] ;
and it has also been held to be equally applicable to enforcement of rights
(see Hurdutrai Jagadish Prasad v. Official Assignee of Calcutta
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[Hurdutrai Jagadish Prasad v. Official Assignee of Calcutta, (1948) 52
CWN 343 at p. 349 : 1948 SCC OnLine Cal 19] ). That being so, 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.
20. 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 and in Section 80 of the Act is almost identical, with this
difference only that the 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.
21. It may be stated that Section 107(1) of the Representation of the
People Act, 1949 (12 & 13 Geo. 6, c. 68) in England is drafted almost in
the same language as Article 329(b). That section runs thus:
“No parliamentary election and no return to Parliament shall be
questioned except by a petition complaining of an undue election or
undue return (hereinafter referred to as a parliamentary election
petition) presented in accordance with this Part of this Act.”
22. It appears that similar language was used in the earlier statutes, and it
is noteworthy that it has never been held in England that the improper
rejection of a nomination paper can be the subject of a writ of certiorari
or mandamus. On the other hand, it was conceded at the Bar that the
question of improper rejection of a nomination paper has always been
brought up in that country before the appropriate tribunal by means of an
election petition after the conclusion of the election. It is true that there is
no direct decision holding that the words used in the relevant provisions
exclude the jurisdiction of the High Court to issue appropriate prerogative
writs at an intermediate stage of the election, but the total absence of any
such decision can be accounted for only on the view that the provisions in
question have been generally understood to have that effect.
23. Our attention was drawn to Rule 13 of the Rules appended to the
Ballot Act of 1872 and a similar rule in the Parliamentary Elections Rules
of 1949, providing that the decision of the Returning Officer disallowing
an objection to a nomination paper shall be final, but allowing the same
shall be subject to reversal on a petition questioning the election or return.
These Rules however do not affect the main argument. I think it can be
legitimately stated that if words similar to those used in Article 329(b)
have been consistently treated in England as words apt to exclude the
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jurisdiction of the courts including the High Court, the same consequence
must follow from the words used in Article 329(b) of the Constitution. The
words “notwithstanding anything in this Constitution” give to that article
the same wide and binding effect as a statute passed by a sovereign
legislature like the English Parliament.
24. It may be pointed out that Article 329(b) must be read as
complementary to clause (a) of that article. Clause (a) bars the
jurisdiction of the courts with regard to such law as may be made under
Articles 327 and 328 relating to the delimitation of constituencies or the
allotment of seats to such constituencies. It was conceded before us that
Article 329(b) ousts the jurisdiction of the courts with regard to matters
arising between the commencement of the polling and the final selection.
The question which has to be asked is what conceivable reason the
legislature could have had to leave only matters connected with
nominations subject to the jurisdiction of the High Court under Article 226
of the Constitution. If Part XV of the Constitution is a code by itself i.e. it
creates rights and provides for their enforcement by a Special Tribunal to
the exclusion of all courts including the High Court, there can be no
reason for assuming that the Constitution left one small part of the
election process to be made the subject-matter of contest before the High
Courts and thereby upset the time schedule of the elections. The more
reasonable view seems to be that Article 329 covers all “electoral
matters”.”
6. The Constitution Bench of the Supreme Court in Mohinder Singh
Gill and Another v. Chief Election Commissioner, New Delhi and Others,
(1978) 1 SCC 405 again considered the bar imposed by Article 329(b) of the
Constitution and Section 100 of 1951 Act and held as follows:
“20. Right at the forefront stands in the way of the appellant’s progress the
broad-spectrum ban of Article 329(b) which, it is claimed for the
respondents, is imperative and goal-oriented. Is this Great Wall of China,
set up as a preliminary bar, so impregnable that it cannot be bypassed
even by Article 226? That, in a sense, is the key question that governs the
fate of this appeal. Shri P.P. Rao for the appellant contended that,
however, wide Article 329(b) may be it does not debar proceedings
challenging, not the steps promoting, election but dismantling it, taken by
the Commission without the backing of legality. He also urged that his
client, who had been nearly successful in the poll and had been deprived
of it by an illegal cancellation by the Commission, would be left in the cold
without any remedy since the challenge to cancellation of the completed
poll in the entire constituency was not covered by Section 100 of the Act.
Many subsidiary pleas also were put forward but we will focus on the twoSignature Not Verified
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interrelated submissions bearing on Article 329(b) and Section 100 and
search for a solution. The problem may seem prickly but an imaginative
application of principles and liberal interpretation of the Constitution and
the Act will avoid anomalies and assure justice. If we may anticipate our
view which will presently be explained, Section 100(1)(d)(iv) of the Act
will take care of the situation present here, being broad enough, as a
residual provision, to accommodate, in the expression “non-compliance”,
every excess, transgression, breach or omission. And the span of the
ban under Article 329(b) is measured by the sweep of Section 100 of the
Act.
xxx xxx xxx
30. 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 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 this Court
upheld the rule in Ponnuswami 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.”
7. Relying on the aforesaid judgments, the Supreme Court in Election
Commission of India through Secretary v. Ashok Kumar and Others,
(2000) 8 SCC 216, held as follows:
“30. To what extent Article 329(b) has an overriding effect on Article 226
of the Constitution? The two Constitution Benches have held that
Representation of the People Act, 1951 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. The non
obstante clause with which Article 329 opens, pushes out Article 226
where the dispute takes the form of calling in question an election (see
para 25 of Mohinder Singh Gill case [(1978) 1 SCC 405 : AIR 1978 SC
851] ). The provisions of the Constitution and the Act read together do not
totally exclude the right of a citizen to approach the court so as to have the
wrong done remedied by invoking the judicial forum; nevertheless theSignature Not Verified
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lesson is that the election rights and remedies are statutory, ignore the
trifles even if there are irregularities or illegalities, and knock the doors of
the courts when the election proceedings in question are over. Two-
pronged attack on anything done during the election proceedings is to be
avoided — one during the course of the proceedings and the other at its
termination, for such two-pronged attack, if allowed, would unduly
protract or obstruct the functioning of democracy.”
8. Two Co-ordinate Benches of this Court in Vijay Pal Singh (supra)
and in Kiran Pal Singh Tyagi and Others v. State (NCT of Delhi) and
Others, 2020 SCC OnLine Del 421, have dismissed the writ petitions under
Article 226 of the Constitution relegating the parties to the remedy of filing
Election Petition, if so advised. In Vijay Pal Singh (supra), following the
dicta of the Supreme Court, it was observed that “election” means all steps
and entire proceedings from the date of election till declaration of the results
and the only way to challenge any step is by way of an Election Petition.
Courts have time and again cautioned that there cannot be two-pronged
attack on matters connected with elections, i.e. one during the course of
elections by invoking extraordinary jurisdiction of the High Courts under
Article 226 of the Constitution and second after elections have concluded,
by way of filing an Election Petition. Therefore, the remedy of the Petitioner
in the present case lies in filing an Election Petition and this writ petition
cannot be entertained.
9. Accordingly, this writ petition is dismissed as not maintainable giving
liberty to the Petitioner to take recourse to appropriate remedies, if
aggrieved and if so advised. It is made clear that this Court has neither
entered into nor expressed any opinion on the merits of the case.
10. Pending application also stands disposed of.
JYOTI SINGH, J
JANUARY 24, 2025/shivam
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Signing Date:24.01.2025
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