1. Shri B. R. Mandlekar, counsel for the petitioner. Shri S.B. Sen, counsel for respondent No. 1 and Shri M.L. Shrivastava, counsel for respondents 3 and 9 present. Arguments completed.
2. We proceed to pronounce our decision at the request of Shri Mandlekar. He says that reasons for our decision may be given later. We are of opinion that the petition is not maintainable in view of the provisions of Article 329(b) of the Constitution which is as follows:--
'Notwithstanding anything in this Constitution ..... (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,' and the decision of the Supreme Court in N. P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64 (A).
3. The petition is dismissed with costs. Counsel's fee Rs. 100 if certified. The outstanding amount of security shall be refunded to the petitioner.
4. We shall give full reasons in support of our decision later.
5. This is a petition under Article 226 of the Constitution of. India, by Shri. Shanti Swamp Sharma, challenging the order of the Returning Officer rejecting his nomination paper. We dismissed the petition on 19th February 1957. In our order we had stated that we would give our reasons later. We do so now.
6. The petitioner is an employee of the Pench Valley Coal Company, Limited. The Managing Agents of this Company, the Amalgamated Coal Fields Limited and the Rewa Coal Fields Limited are Messrs. Shaw Wallace Company, Limited. There is a dispute as to whether the Vindhya Pradesh Government held any share in the Rewa Coal Fields, Limited. The case of the petitioner is that the Government did not have any share, while, according to respondent No. 9, it held more than 25 per cent shares in that Company.
7. The petitioner is a member of the Madhya Pradesh Legislative Assembly, having been elected from the Parasia constituency in the district of Chhindwara. He is a candidate in the coming election to the Madhya Pradesh Legislative Assembly from the same constituency. He filed his nomination paper on 18th January 1957 in the Office of the Deputy Commissioner, Chhindwara (respondent No. 1), who is the Returning Officer. Respondents 2 to 9 were also the candidates and had filed nomination papers. The date of scrutiny of the nomination papers was fixed for 1st February 1957. The petitioner was also a candidate for the Chhindwara Parliamentary constituency and filed his nomination paper which was scrutinised on 1st February 1957.
The Returning Officer had written that the nomination paper was valid. After the nomination papers were scrutinised, the Returning Officer proceeded to scrutinise the nomination papers for the Para-sia constituency. Shri Guru Prasad, respondent No. 9, raised an objection to the candidature of the petitioner on the ground of his disqualification under Section 7(e) of the Representation of the People Act, 1951, (hereinafter called the 'Act'). His statement on solemn affirmation was recorded by the Returning Officer in which he, inter alia, stated:
'In the Rewa Coal Fields, the State Government owns more than twenty-five per cent shares. Two of the Ministers were on the Board of Directors of this Company..... He has also audited accounts of the Rewa Coal Fields Ltd. Therefore he is not eligible for the membership of the Legislative Assembly as he is holding an office of profit un- der the Government.'
The objection was supported by the affidavit of Shri Kashiprasad Verma (respondent No. 3).
8. The Returning Officer recorded the statement of the petitioner also on solemn affirmation, in which he denied that he held any office of profit with the Rewa Coal Fields, Ltd. After affording an opportunity to the petitioner to meet the objection of respondent No. 9 and hearing the parties, the Returning Officer rejected the nomination paper of the petitioner. The material portion of the order (Annexure D) is as follows:
'It is undisputed that the Shaw Wallace and Co., Ltd., being the Managing Agents of the Rewa Coal Fields, Ltd., have a vital financial interest in the affairs of that Company..... Had Shri Sharma confined his activities only to the Pench Valley Coal Co., Ltd., it would have been a debatable point whether his post is an office of profit, but under the order of the Shaw Wallace Co., Ltd., which holds financial interest in the Rewa Coal Fields, Ltd., he has audited the accounts of the last named Company as well and he has also represented the employers of this Co. before the Industrial Tribunals, as stated in the affidavit of Shri Kashiprasad Verma.
In view of this, the office of Shri Sharma is one to which some power or patronage is attached as far as the Rewa Coal Fields, Ltd., are concerned. Being their auditor, he exercises executive functions and holds an office of dignity or honour in respect of that Company which is confirmed by the very fact that he has represented the employers of the Rewa Coal Fields, Ltd., before the Industrial Tribunal. In view of this, I have no other alternative but to declare Shri Sharma as a person who is holding an office of profit under the Government, and as such his nomination paper is declared invalid.'
9. The relevant provision relating to disqualification may conveniently be reproduced here:
'A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly.....
(e) if he is a director or managing agent of, or holds any office of profit under any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share.'
The argument of learned counsel for the petitioner is on these lines: The appropriate Government does not hold any share or financial interest in the Rewa Coal Fields, Ltd., within the meaning of Section 7(e) of the Act. Assuming that the Government does hold not less than twenty-five per cent share in the Rewa Coal Fields, Ltd., the petitioner cannot be disqualified on that ground as he does not hold any office of profit under the Company. He is neither a director nor the managing agent of that particular Company. He is also not a paid employee of that Company. He is in the service of the Pench Valley Coal Company, Limited, and did not receive any remuneration from the Rewa Coal Fields, Ltd.
The mere fact that he had audited the accounts of the Company would not make him paid employee. The audit was made on the instructions of Messrs. Shaw Wallace and Co., Ltd. On the point of maintainability of the petition the contention is that Article 329(b) of the Constitution does not operate as a bar. An election petition is not maintainable at the present moment. Such a petition can only be filed under Section 100(c) of the Act after the result of election is declared. The expression 'election' in Article 329(b) does not include the process of rejection of a nomination paper. The intention underlying Article 329(b) is that after poll has been taken and a candidate haw been declared elected, an election can only be challenged by a petition to the Election Commissioner under Section 81 of the Act.
The election cannot be questioned by a petition under Article 226 of the Constitution. The position, however, is different when election has not taken place, and any illegality committed by the Returning Officer before election is liable to be corrected by the High Court in exercise of its powers under Article 226 of the Constitution. It is also urged that the remedy of an election petition on the ground of improper rejection of nomination papers is more or less illusory. The Tribunal has to be satisfied that the result of the election has been materially affected by the rejection of the nomination papers and it is very difficult to produce evidence to that effect.
10. The petition has been opposed by the Returning Officer and respondent No. 9, who have filed their returns. Documents have also been filed on behalf of respondent No. 9 to show that in the Rewa Coal Fields Ltd., the Vindhya Pradesh Government had shares exceeding 25 per cent. The petitioner has given up respondent No. 2 and respondents Nos. 4 to 8.
11. The contention of learned counsel that this Court has power to interfere when a nomination paper has been illegally rejected and that Article 329(b) of the Constitution does not operate as a bar is similar to that advanced in 1952 SCR 218: (AIR 1952 SC 64) (A). In that case the nomination paper of the appellant for election to the Madras Legislative Assembly from the Namakkal constituency in Salem district was rejected by the Returning Officer.
Thereupon he moved the High Court under Article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper. The High Court held that it had no jurisdiction to interfere with the order of Returning Officer and dismissed the petition. The appellant preferred an appeal to the Supreme Court, which was dismissed. In repelling the contention on the point of jurisdiction, Fazl Ali, J., who delivered the judgment, observed as follows:
'Now, the main controversy in this appeal centers round the meaning of the words 'no election shall be called in question except by an election petition' in Article 329(b), and the point to be decided is whether questioning the action of the Returning Officer in rejecting a nomination paper can be said to be comprehended within the words, 'no election shall be called in question'.....
These arguments appear at first sight to be quite impressive, but in my opinion there are weightier and basically more important arguments in support of the view taken by the High Court. As we have seen, the most important question for determination is the meaning to be given to the word 'election' in Article 329(b). That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there, is no poll. In the wide sense, the word is used to connote the entire process Culminating in a candidate being declared elected.
X X X X X XX X X X X X The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition.
In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that any matter which has the effect of vitiating 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 election law, the only significance which the rejection of a nomination paper has consists in the fad that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground and other grounds which may be raised under the law to call the election in question, could be urged.'
In the concluding paragraph, it was stated:
'We are informed that besides the Madras High Court, seven other State High Courts have held that they have no jurisdiction under Article 226 of the Constitution to entertain petitions regarding improper rejection of nomination papers. This view is in my opinion correct and must be affirmed.'
12. This decision was affirmed by the Supreme Court in Durga Shankar Mehta v. Raghuraj Singh, 1955 SCR 267: (AIR 1954 SC 520) (B), with the following observation:
'As regards the decision of this Court in Ponnuswami v. Returning Officer, Namakkal, (A) (supra), to which reference has been made by the learned counsel, we would only desire to point out that all that this case decided was that the High Court had no jurisdiction, under Article 226 of the Constitution, to interfere by a writ of certiorari, with the order of Returning Officer who was alleged to have wrongly rejected the nomination paper of a particular candidate.
It was held that the word 'election' in Article 329(b) of the Constitution had been used in the wide sense to connote the entire process, culminating in a candidate's being declared elected and that the scheme of Part XV of the Constitution was that all matters which had the effect of vitiating election should be brought up only after the election was over and by way of an election petition.''
13. The decision in Ponnuswami's case (A) (cit. sup.) is a complete answer to the argument of Shri Mandlekar bearing on the interpretation of Article 329(b). Shri Mandlekar, however, contended that the view expressed in Ponnuswami's case (A) must be held to have been revised by the later decision of the Supreme Court in Hari Vishnu Kamath v. Ahmad Isak, 1955 SCR 1104: ((S) AIR 1955 SC 233) (C). We are unable to agree.
In Kamath's case (C), an election petition has been filed. After the dismissal of the election petition, the High Court was moved under Articles 226 and 227 of the Constitution. The petition was dismissed by the High Court in accordance with the majority opinion. A certificate was granted under Article 132 and the matter was thereafter taken to the Supreme Court in appeal. Objection was raised on behalf of the respondent to the effect that the High Court had no power to issue a writ against the decision of the Election Tribunal by reason of Article 329(b) oi the Constitution. Reliance was placed on the decision in Ponnuswami's case (A) (cit. sup.). The objection was rejected and the scope of the said decision explained in the following passage:
'Now, the question is whether a writ is a proceeding in which an election can properly be said to be called in question within the meaning of Article 329(b). On a plain reading of the article, what is prohibited therein is the initiation of proceedings for setting aside an election otherwise than by an election petition presented to such authority and in such manner as provided therein. A suit for setting aside an election would be barred under this provision.
In Ponnuswami v. Returning Officer, Namakkal, (A), it was held by this Court that the word 'election' in Article 329(b) was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate, and that an application under Article 226 challenging the validity of any of the acts forming part of that process would be barred. These are instances of original proceedings calling in question an election, and would be within the prohibition enacted in Article 329(b). But when once proceedings have been Instituted in accordance with Article 329(b) by presentation of an election petition, the requirements of that article are fully satisfied.'
We are clear that the judgment in Kamath's cass (C) has not modified the rule laid down in Ponnuswami's case (A). It is not open to the High Court to exercise powers under Article 226 in a matter of rejection of a nomination paper by the Returning Officer.
14. The decision in Raj Krushna Boss v. Binod Kanungo, 1954 SCR 913: (AIR 1954 SC 202) (D), cited by Shri Mandlekar does not assist the petitioner, as the facts therein are distinguishable. The question of the power of the High Court to interfere with the order of a Returning Officer rejecting a nomination, paper did not arise for consideration. The appellant's election was quashed by the Election Tribunal on the ground that the proposer and seconder of the appellant were Government servants.
This constituted a major corrupt practice according to the Tribunal. The appellant petitioned to the High Court under Article 226 of the Constitution. The petition was dismissed. The Supreme Court set aside the decision of the Election Tribunal and remitted the case to the Election Commission with certain directions. It held that Section 123(6) of the Act did not take away from Government servants that which Section 33(2) gives to them. The observations at p. 918 (of SCR): (at p. 204 of AIR):
'Our power to make such an order was not questioned but it was said that when the Legislature states that the orders of a tribunal under an Act like the one here shall be conclusive and final (Section 105), then we should not interfere. It is sufficient to say that the powers conferred on us by Article 136 of the Constitution and on the High Court under Article 226 cannot be taken away or whittled down by the Legislature. So long as these powers remain, our discretion and that of the High Courts is unfettered.'
have to be read in the context of the facts of the case. They do not furnish any authority for the learned counsel's interpretation pf Article 329(b). In that case that article did not arise for consideration.
15. Shri Mandlekar strongly relied on the decision of Chagla, C. J. and Tendolkar, J., in S.C. Prashar v. Vasantsen Dwarkadas, (S) AIR 1956 Bom 530 (E). This decision does not bear on the power of the High Court under Article 226 vis-a-vis Article 329(b) of the Constitution. It related to the validity of a notice under Section 34 of the Income-tax Act. We may, however, point out that the learned Chief Justice and Gajendragadakar, J., in Shankar v. Returning Officer, Kolaba, AIR 1952 Bom 277 (F), had held:
'The High Court has no jurisdiction to issue a writ under Article 226 of the Constitution of India, against an order of Returning Officer rejecting a nomination paper of a candidate under Section 36(2) of the Representation of the People Act, 1951.'
16. The decisions in Bhikulal Balbhadrasao v. The State of Madhya Pradesh, ILR 1953 Nag 245: (AIR 1953 Nag 125) (G), Jawaharlal v. Deputy Commissioner, Amravati, ILR 1955 Nag 679 (H), Mahenderjee v. Ram Naidu, AIR 1957 Hyd 27 (I) and Burmah Shell and Storage and Distributing Co. of India, Ltd., Madras v. Labour Appellate Tribunal of India, Madras, AIR 1957 Mad 60 (J), relied on by Shri Mandlekar have no application as they do not involve, any question relating to the interpretation of Article 329(b) of the Constitution. No decision has been brought to our notice in which the High Court had exercised power under Article 226 at the stage after rejection of a nomination paper and before declaration of the result of election in a case regarding election to Parliament or Legislative Assembly.
17. We do not agree that the petitioner would have no remedy after election. We may refer to Section 81 read with Section 100(c) of the Act.
18. OUR conclusion, is that we have no power under Article 226 of the Constitution to set aside the order rejecting the nomination paper of the petitioner. In view of this conclusion, it is not necessary to pronounce any opinion on the question of the alleged disqualification of the petitioner under Section 7(e) of the Act. We wish to make it clear that the dismissal of the petition does not imply our affirmation of the decision of the Returning Officer.