1. At the conclusion of the hearing of this petition on 1-9-1953, we intimated our decision to the parties and took time to formulate our reasons for our order. I now proceed to set out the reasons for dismissing the petition.
2. The petitioners, four in number, are residents of Berhampur Municipality in Ganjam district and were registered as voters in the electoral roll prepared in the year 1950. At the general election held in January 1952, two candidates were returned to the Orissa State Legislative Assembly from the Berhampur Constituency, but their election was set aside on 17-3-1953, by an order of the election tribunal, in Election Case No. 4 of 1952. A by election was directed to be held under Section 150, Representation of the People Act, 1950 (Act 43 of 1950) and 7-5-1953 was fixed as the last date for receiving nominations and 14-6-1953, for conducting the poll. On the 7th May one Sri Gadi Narayanamurti, an Advocate of Berhampur whose name had been registered in the electoral roll of 1950 filed nomination paper, but the Returning Officer, Berhampur Constituency, who is the opposite party No. 1 in these proceedings, rejected the nomination paper on the ground that his name was not found in the new electoral roll prepared in 1952.
On 20-5-1953, the petitioners filed this petition under Article 226 of the Constitution impleading the Returning Officer who was also the Electoral Registration Officer for the Berhampur Constituency, as opposite party No. 1 and the other candidates whose nomination has been accepted, as opposite parties 2 to 6. The petitioners have prayed for the issuance of a writ
'in the nature of mandamus or any other order directing opposite party No. 1 to treat the first-prepared roll of 1950 as the existing electoral roll for the purpose of the by election, and direct him not to conduct the election on the basis of the illegal electoral roll prepared in 1952.'
3. The contention on behalf of the opposite party No. 1 is that on 7-8-1952, a press note was published informing the public that a new electoral roll for the Orissa State Legislative Assembly was being draft-published, and that objections were invited from electors whose names might have been omitted from the roll. It is further stated that a fresh roll was prepared after a house to house enquiry in the Berhampur Municipality as it wasnot possible to prepare a mere list of additions and amendments, owing to the fact that there had been a complete re-distribution of the several municipal wards since the preparation of the last electoral roll in 1950; and that a new electoral roll, incorporating the additions and amendments, was draft-published on 7-8-1952 in a single roll superseding the previous electoral roll of the year 1950. The final publication of this new electoral roll was made on 31-1-1953.
4. It is contended for the petitioners that the preparation of a new electoral roll in 1952, superseding the earlier roll of 1950, is illegal and contrary to the provisions contained in the Rules framed under the Representation of the People Act, 1950 (Act 43 of 1950) and that accordingly the old electoral roll should be deemed to be still in force. It is, therefore, prayed that the elections should be held on the basis of the electoral roll of the year 1950, and the Returning Officer should be directed, by a writ of mandamus to conduct the election on the basis of the roll.
5. For a clear appreciation of the contentions raised on either side, it is necessary to quote the relevant Articles of the Constitutions, as also the relevant Rules framed under the Representation of the People Act with regard to the preparation, of electoral rolls.
6. Part 15 of the Constitution deals with Elections and the law relating to elections is contained in Arts. 324 to 329 of the Constitution (in that part).
Article 324 runs as follows :
' '324' (1) The superintendence, direction and control of the preparation of the electoral rolls, for, and the conduct of elections to Parliament and to the Legislature of every State and of elections to the offices of the President and Vice-president held under this constitution, including the appointment of election tribunals for the decision of doubts and disputes arising out of, or in connexion with elections to Parliament and to the Legislatures of States, shall be vested in a Commission (referred to in this constitution as the Election Commission.)
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and the other Election Commissioners shall, subject to the provision of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State and before each biennial election to the Legislative Council of each State having such Council, the President may also appoint, after consultation with the Election Commission, such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by Clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may, by rule, determine;
Provided that the Chief Election Commissioner shall not be removed from his office except inlike manner and on the like grounds, as a Judge of the Supreme Court; and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor or Rajpramukh of a State, shall when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1).'
Then comes Article 326 which reads as follows :
'326 : 'Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage'. The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than 21 years of age, on such date as may be fixed in that behalf; by or under any law made by the appropriate Legislature, and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.'
Article 327 says :
'327: 'Power of Parliament to make provision with respect to elections to Legislatures. Subject to the provisions of this Constitution, Parliament may from time to time by law make provisions with respect to all matters relating to, or in connexion with, election to either House of Parliament or to the House or either House of the Legislature of the State including the preparation electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.'
Next comes Article 328 :
'328 : 'Power of Legislature of a State to make provisions with respect to election to such Legislature'. Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to or in connection with, the elections to the House or either House of the Legislature of the State including preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.'
Finally comes Article 329 which is in the following terms :
'329 : Bar to interference by Courts in electoral matters. Notwithstanding anything in this Constitution :
(a) the validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies, made or purport ing to be made under Article 327 or Article 328, shall not be called in question in any Court;
(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.'
7. It will be seen that the superintendence, direction and control of the preparation of the electoral rolls is vested in the Election Commission under Article 324. Under Article 325 every adult person is entitled to be registered as a voter. Under Article 326 Parliament is vested with the power to make laws with respect to all matters relating to elections including the preparation of electoral rolls, the delimitation of constituencies all other matters necessary for the due constitution of House of Legislature. Article 328 vests a, similar power on the State Legislature to make provisions by law with respect to electoral matters, if the parliament has not done so. Article 329 bars interference by Courts in electoral matters generally and Article 329(b) specifically bars interference with an election except by an election petition in such manner as is provided by law.
8. The Representation of the People Act 1950 (Act 43 of 1950) was passed by Parliament, in, order to provide for the allocation of seats in and the delimitation of constituencies for the purpose of elections to the House of the People and the Legislatures of States, the qualifications of voters at such elections, and the preparation of electoral rolls and all matters connected therewith. Part III of the Act deals with registration of Parliamentary electors and Part IV with the registration of electors for the State Legislatures. Section 26 deals with the preparation of electoral rolls for the Assembly constituencies and lays down that the provisions of Sections 15 to 25 shall apply in relation to the Assembly constituencies as they apply in relation to Parliamentary Constituencies.
Section 15 says that for every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of this Act under the superintendence, direction and control of the Election Commission, and Section 23 says that the electoral roll for each constituency shall be prepared every year in the prescribed manner by reference to the qualifying date : Provided that it shall not be necessary to prepare any roll during the year 1951.
Section 24 says that the electoral roll first prepared under this Act shall remain in force until the 30th day of September 1952 and every electoral roll subsequently prepared shall come into force on the 1st day of October next, after the qualifying date by reference to which that roll is prepared, and shall remain in force until the 30th of September next following.
9. A set of rules, known as the Representation of the People (Preparation of Electoral Rolls Rules, 1950, was published on the 26th July 1950 prescribing how the rolls are to be prepared. Rule 22 deals with the annual preparation of electoral rolls, and reads as follows:
'22. -- 'Annual preparation of Electoral roll' -
(i) After the electoral rolls list prepared under the Act have been published under Rule 19, the Election Commission may, for the purpose of any subsequent annual preparation of the electoral roll for any constituency under Section 23 of the Act, direct the preparation of a list of amendments to the electoral roll for such constituency for the time being in force, for its publication under Rule 9, and the provisions of Rules 3 to 8 (both inclusive) shall, so far as they are applicable, apply in the case of such preparation of the list of the electoral rolls.
(ii) When any such list of amendments to an electoral roll for a constituency has been soprepared, the electoral roll for such constituency for the time being in force, together with the list of amendments thereto so prepared, shall be published under Rule 2, & shall be deemed to be the electoral roll prepared for that constituency, and the provisions of rules 10 to 19 (both, inclusive) shall, so far as they are applicable apply in the case of every such roll (including the list of amendments) in like manner as they apply in the case of electoral rolls first prepared under the Act.
(iii) When a list of amendments is prepared for any constituency under the foregoing provisions of this Rule, it shall not be necessary to re-print the entire roll, but the list of amendments need only be printed; Provided that the Election Commission may, if he deems it expedient so to do direct that the entire roll along with the list of amendments shall be printed as a single roll.'
10. The petitioner's contention is that theelectoral roll draft-published on 7-8-1952, is onlya list of amendments contemplated in Rule 22 (1)quoted above and this list of amendments shouldhave been published, along with the first electoral roll prepared in 1950, and that roll, together with this list of amendments, should be deemed to be the electoral roll prepared for the constituency in 1952 as laid down in Rule 22(2).
It is further submitted that a list of amendments only need have been printed as contemplated in Sub-rule (3) of Rule 22 and that the revised roll which was draft-published on 7-8-1952 (as a single roll) has not been prepared in compliance with the rules and as such is illegal.
The contention of opposite party No. 1, on the other hand, is that the Election Commission, acting under the proviso to Sub-rule (3) of Rule 22 directed that the entire roll, together with the amendments, should be printed as a single roll. The very language of Rule 22 gives a discretion to the Commission to adopt either of the two methods in preparing the electoral rolls. He may either direct the preparation of only a list of amendments under Rule 22(1) and cause it to be published along with the old prepared roll under Rule 22 (2)--in such a case he may only cause a list of the amendments to be printed under Rule 22 (3) or he may direct that the entire roll along with the amendments shall be printed and published as a single roll under the proviso to Rule 22(3). The contention of opposite party No. 1 is that it was the latter course that had been adopted by the Election Commission and this contention appears to me to bewell founded in fact.
11. The following press note was issued on 7-8-1952 intimating that the electoral roll was being draft published and, inviting objections and claims to be registered thereunder. It will be useful to quote it here.
'HOME (ELECTIONS) DEPARTMENT
7th August, 1952,
It is notified for general information that the electoral rolls for the State of Orissa are being draft-published throughout the State on the 7th August 1952. The complete electoral roll of a constituency will be published formally at the office of the Electoral Registration Officer of the constituency concerned; and relevant portions of the rolls will be informally published at important rural centres within the constituency. Any person whose name is not included in the electoral roll of constituency and who is entitledto be registered therein may apply, in formVI, to the revising authority of the constituency or to any other office authorised in this behalf, for the inclusion of his name in the roll. A voter of a particular constituency may file objection in Form VIII to the inclusion of any other name not entitled to be an elector in the same constituency, with the officer or officers concerned. Claims & objection will be received by the abovementioned officer on any day within 21 days from the date of publication of the electoral rolls, that is, from the 7th August 1952 to the 28th August 1952. ................'
The position was further made clear by an order of the Election Commission dated 17th January 1953 which also I quote below:
'No. 125/6/52 -- Elec. I.
No. 1 Aurangazeb Road, New Delhi, Jan., 53.ORDER.
In exercise of the powers conferred by sub-rule (3) of Rule 22 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1950, the Election Commission hereby directs that the 'entire electoral roll along with the lists of amendments' pertaining to each of the areas specified in the table below 'shall be printed as a single roll'.
1. Ganjam District -- (i) Berhampur Municipal area.
(ii) Aska and Surada Panchayat Board area.
(iii) Russellkonda Panchayat Board area.
Sd/- P. S. Subramanian.
OFFICER ON SPECIAL, DUTY.'
There can thus be no controversy that the Election Commission acted under the proviso to Sub-rule (3) of Rule 22 and directed the entire electoral roll of the year 1950 to be brought up-to-date by incorporating all changes since the preparation of that roll, and caused it to be printed as a single roll. This was perfectly within the Commission's power to do, as I have already pointed out above. The choice is given to the Commission under the rules either to have the entire old roll, together with the amendments, printed and published as a single roll as has been done in this case, or to prepare only a list of the amendments and publish it along with the original roll. No question of illegality can therefore arise.
12. The next question that arises is whether the petitioners took steps, subsequent to the draft publication of the electoral roll on the 7th August, 1952, to have their names included into. Rule 10 of the Representation of the People (Preparation of Electoral Rolls) Rules 1950 lays down that simultaneously with the draft publication of the electoral roll, a notice shall be published calling upon the persons entered in the roll to lodge any objection that they may have to make to the roll as published and calling upon persons claiming to be entered on the roll, to lodge their claim in the prescribed manner.
It is admitted that the petitioners did not comply with the requirements of this rule. If such a claim had been preferred the revising authority appointed under the rules would have included the names of the petitioners in the revised roll and may have then also considered the propriety or otherwise of preparing and publishing fresh roll. In that case the Electoral Registration Officer may have modified the roll, if he was satisfied that the objection or claim made by the petitioners was valid. There was also another remedy open to the petitioners under Sub-rule (2) of Rule 20. This enables a person whose name is not included inthe electoral roll of a constituency and who is entitled to be registered thereunder, to apply to the Election Commission for amending the roll, by including his name therein.
The petitioners did not take recourse to either of the remedies provided under the Rules, and by their own obstinacy they have lost a sound case by pursuing a wrong remedy. The only argument laboriously addressed to us is that the Election Commission was not right in directing the preparation of a fresh roll for this constituency and as such the petitioners, on their part, were not bound to adopt the remedies prescribed under the Rules. This contention appears to me to be ill-founded.
13. Section 23, Representation of the People Act (Act 43 of 1950) says that the electoral roll for each constituency shall be prepared every year in the prescribed manner by reference to the qualifying date. The rules prescribe the manner in which this has to be done. It may be done in two ways : either by merely preparing lists of amendments (additions alterations or omissions) and publishing it along with the original roll; or by preparing an altogether fresh roll, and publishing it as a single roll, after incorporating all the amendments therein.
The necessity for this is obvious. In the rural areas all that can be done is merely to prepare lists of amendments to the roll every year as it is not practicable to find suitable machinery for conducting a house to house search in every village. In urban areas, where there are municipalities, Panchayat Boards, etc., the preparation of a new roll is not only feasible but may also be necessary in some cases. In this particular case it is said that there was a complete re-distribution of wards and complete change in ward numbers and house numbers in the Berhampur municipality, and the revising authority therefore found it difficult to prepare only a list of amendments to the electoral roll of 1950 which had been prepared on the basis of the old ward numbers & houses.
The statement of opposite party No. 1 shows that, alter obtaining the previous sanction of the Election Commission, house to house enquiry was conducted within the municipality and a new roll was prepared as directed by the Commission. In these circumstances, it is not open to the petitioners to refuse to adopt the procedure laid down in the Act, and the rules made thereunder, for getting their names included in the roll, and to insist on saying that their rights have been violated and that they are entitled to the protection of this Court.
14. Article 326 of the Constitution entitles a person over 21 years of age, to be registered as a voter, and Section 62, Representation of the People Act, 1951 says that:
'No person who is not, and except as expressly provided by this Act, every person who is, for the time being, entered in the roll of any constituency, shall be entitled to vote in that constituency.'
The right to be registered as a voter should be distinguished from the right to vote at an election. The Representation of the People Act, 1950, has been enacted by Parliament in exercise of the powers conferred by Article 327, and that Act prescribes the manner in which a person entitled to be registered as a voter can get himself so registered. If a person chooses not to avail himself or herself of the procedure prescribed by the Act to get himself registered as a voter, then he loses the right to vote conferred by Section 62, Representation of the People Act, 1951. It is wellsettled that where a new right is created by statute and a remedy is provided, by statute, the remedy so provided, and no other remedy, shall be available.
The principle is stated in the well known passage in the judgment of Lord Tenterdon in --'Doe d' Bishop of Rochester v. Bridges', (1831) 1 B and Ad. 847 (A);
'Where an Act creates an obligation and enforces performance in a specific manner we take it to be a general rule that the -performance cannot be enforced in any other manner. If an obligation is created but no mode of enforcing its performance is ordained, the common law may in general find a mode suited to the particular nature of the case.'
The rule 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 followed, is also brought out with great force and clearness in -- 'Wolverhampton New Water Works Co. v. Hawkesford', (1859) 6 CB NS 336 (B) :
'There are three classes of cases in which liability may be especially founded upon statute. One is, where there was a liability existing at common law and that liability is affirmed by the 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, 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 proceed by an action at common law.
But there is a third class, namely, 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 ...... there, the remedy provided by the statutemust 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 above principle has been adopted by the Judicial Committee in --'Attorney-General of Trinidad & Tobago v. Gordon Grant & Co. Ltd., 1935 AC 532 (C) and in the -- 'Secretary of State v. Mask and Co.', AIR 1940 PC 105 (D). Lately, it has also been followed by the Supreme Court in -- 'Ponnu-swami v. Returning Officer, Namakkal', AIR 1952 SC 64 (E).
I am, therefore, satisfied that the petitioners are not entitled to any relief in the form of a writ in exercise of our power, under Article 223 of the Constitution as they did not pursue the remedy provided, the Representation of the People Act and the Rules made thereunder, for getting their names registered in the electoral roll. They cannot exercise the right 'mode et forma', according to their wishes, and according to their own understanding of the rules. They had the opportunity of exercising it without let or hindrance, in accordance with rule.
15. But this is not the only hurdle in the way of the petitioner's success in this petition. It is pointed out by opposite party No. 1 that this petition is not a bona fide one, and that the petitioners have been set up by the candidate whose nomination has been rejected; and that the real issue in this petition is whether the nomination paper of Sri Narayanamurty should have been accepted on the ground that his name was Included in the original roll of 1950.
The simple question, therefore, is, whether the action of the Returning Officer in rejecting the nomination paper of Sri Narayanamurty is liable to be questioned at this stage by a writ issued by this Court in exercise of the powers vested under Article 226 of the Constitution. It is further pointed out that the petitioners were candidates neither at the previous election nor at the subsequent one and that their only right, if any which can be said to have been infringed at all is the right to have their names included in the new electoral roll prepared in 1952, that they may exercise their right of franchise -- a right conferred by the Constitution of India.
The claim put forward on behalf of the petitioners is that Article 326 gives them a right to exercise their franchise and that this right cannot be taken away arbitrarily. The inclination of my mind is that no such right is conferred unless the petitioners first get themselves registered as voters in the electoral rolls in accordance with the procedure prescribed by law. The right to elect a person follows only after getting one's name registered as an elector. The grievance ventilated in this petition is that oh account of the omission of their names in the electoral roll the petitioners have been deprived of the right to exercise their franchise, that is, to get the proper person elected to the State Assembly. They say that the rejection of the nomination paper of Sri Narayanamurty itself amounts to a denial of their right of franchise. This complaint is as fanciful as it is curious. The rejection by the Returning Officer of the nomination paper of Sri Narayanamurty appears to me to be too remote a consequence of the omission of the petitioners names from the electoral roll, and does not constitute by any stretch of imagination a denial of the petitioner's so called right.
16. If the petitioner's contention were to be accepted, then no election can possibly be held, as there are always bound to be some errors or omissions in the electoral rolls prepared for the several constituencies which, in a Country like ours, are spread over vast areas. In order that democratic institutions may function properly and to ensure that the Legislatures are not deprived of proper representation from the various constituencies, it is necessary that the process of election should be expeditious. The laws of Western Countries, particularly England, therefore, provide for all such grievances to be ventilated only by means of an election petition, after the elections are over; and give the stamp of finality to the electoral rolls prepared by the administrative machinery before the process of election begins.
Article 329 of the Constitution of India, accordingly, creates a bar to 'interference by Courts in electoral matters generally. The opening words of that Article expressly override the extraordinary powers conferred upon High Courts under Article 226. The expression 'Notwithstanding anything in this Constitution' indicates that in spite of the power conferred on High Courts under Article 228 the validity of any law made, or purporting to be made, under Article 328 shall not be called in question.
17. The Representation of the People Act, 1950, purports to be an enactment providing for the allocation of seats in, and the delimitation of constituencies for the purpose of elections, the preparation of electoral rolls and matters connected therewith. Elections to Parliament is mentioned in Entry 72 of the Union list (List I of Schedule 7). This comprises not only the delimitation of constituencies and allocation of seats, but also prepa-ration of electoral rolls and all other matters necessary for securing the due constitution of the Legislature. The mafginal note to Article 329 shows that Courts cannot interfere in 'electoral Matters' generally.
It is pointed out, however, that Article 329(a) mentions only 'delimitation of constituencies or allotment of seats' and does not make any specific reference to preparation of electoral rolls. The question whether a law relating to delimitation of constituencies would also include the preparation of electoral rolls and whether any challenge to the validity of such a law would be barred from the cognizance of my court does not arise for direct decision in this case, as the matter has gone beyond that stage. That question may have to be decided on a future occasion if and when it arises directly for decision.
18. The opposite party further contends that the electoral roll is prepared 'under the superintendance, direction and control of the Election Commission' and that this petition cannot be enquired into, in the absence of the Election Commission which, is not impleaded as a party to these proceedings. Even if this Court were to invoke its special powers under Article 226, on the ground of any illegality committed by the Commission any writ that we may issue will be ineffective as against the Commission which is beyond our reach. This contention is not without force.
Any writ issued by us can run only through the territories which are within the jurisdiction of this Court. It has recently been held by the Supreme Court in the -- 'Election Commission, India v. Saka Venkata Rao', AIR 1953 SC 210 (F), that the Election Commission cannot be regarded as functioning within the territorial limits of all the High Courts. As such it is not amenable to the jurisdiction of this Court under Article 226. We cannot direct the Commission to include the petitioner's name in the electoral roll or to withdraw the new roll prepared under its direction.
19. But opposite party No. 1 rests his case on an even more solid foundation and relies on Article 329(b) which bars the jurisdiction to issue a writ even under Article 226. That article already quoted, says that no election to the Legislature of a State shall be called in question except by an election petition. The question for consideration is whether there has been an 'election' in this case which attracts the provisions of Article 329(b). The word 'election' has been used in a very wide and comprehensive sense in the Constitution. Part XV of the Constitution is intituled 'Elections' and deals with elections generally, the preparation of electoral rolls, franchise, and laws to be made by Parliament with respect to elections. In one sense an election may be said to commence with canvassing by a candidate after the final publication of the electoral rolls, if it is imminent.
The following passage from Halsbury, Vol. 12, Edn. 2, page 237, is instructive :
'Although the first formal step is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is reasonably immenent. Neither the issue of a writ, nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination afford any criterion. The election will usually begin at least earlier than the issue of a writ.'
The proper interpretation of the above Article was considered by the Supreme Court in --'Ponnuswami's case (E)' and it has been ruled by a Full Bench of that Court that the word 'election' has been used in a wide sense to connote the entire process culminating in a candidate being declared elected. In that case the appellant was a candidate for election to the Legislative Assembly of the State of Madras, and his nomination was rejected by the Returning Officer. The High Court of Madras declined to issue a writ of certiorari to quash the order of the Returning Officer and direct him to include the appellant's name in the list of valid nominations to be published. The Supreme Court, agreeing with the view of the Madras Judges, held that the High Court had no jurisdiction to interfere with the order of the Returning Officer. The facts of the instant case are identical with those that were considered by the Supreme Court.
The same view has been adopted by several other High Courts. See: --In re Dr. John Matthai', AIR 1952 Trav C 1 CG); -- 'Shankar v. Returning Officer, Kolaba', AIR 1952 Bom 277 (H); -- 'Sukar Gope v. State of Bihar', AIR 1953 Pat 47 (I). The consensus of opinion among the High Courts thus is that no writ can issue to a Returning Officer with a view to quash his order rejecting or accepting a nomination paper, and that his decision can be questioned only by means of an election petition after the election is completed. Article 329(b) thus constitutes a bar to a Court's interference because the process of election has already commenced, and the petitioners are not entitled to any relief under Article 226.
20. It has been further urged, on behalf of the opposite party that no writ should issue as the petitioners have come up to this Court nearly ten months after the draft-publication of the electoral rolls in August 1952. This inordinate delay in seeking remedy is itself a good ground for rejecting their prayer as the Court will not be inclined in favour of a party who has been admittedly guilty of laches.
21. All the points raised on behalf of opposite party No. 1 are well founded. The petition is accordingly dismissed with costs of opposite party No. 1 which we assess at Rs. 150/- (Rupees one hundred fifty only). None of the other opposite parties, except Opposite Party No. 3 appeared in this Court, but Opposite Party No. 3 did not take part in the hearing. We would not, therefore, allow costs to him.
22. On 7-8-1952, the revised electoral roll of Berhampur constituency was draft-published in the prescribed manner and notice was given to all concerned to file their claims or objections, if any, within twenty one days from the date of draft-publication. Persons whose names were not included in the draft electoral roll and who were entitled to be registered therein were also informed that they may apply in the prescribed form to the revising authority. Though the petitioners' names were not found in the draft electoral roll they did not care to file any claim or objection against the preparation of the roll on the ground that the provisions of Rule 22 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1950 were contravened nor did they care to apply for the registration of their names on the said roll.
The draft electoral roll was finally published in, the prescribed manner on 31-1-53. Under Rule 20 of the said Rules even after final publication per-sons whose names were not included in the roll could apply to the prescribed authority for registering their names. Admittedly the petitioners did not care to avail of the provisions of this rule either. It is true that at that time they could not anticipate that the Election Tribunal who was then sitting to hear the petition filed against the election of Sri Ramachandra Misra and Sri Dandapani Das from the said constituency would set aside their election. But it was well-known that the election of the aforesaid two gentlemen was under challenge before the competent Tribunal and if the petitioners felt really aggrieved by the deprivation of their right of franchise on account of the non-inclusion of their names in the revised electoral roll they could have approached the competent authority in time. They, however, kept quiet even after 17-3-53 when the said Tribunal set aside the election of the aforesaid two gentlemen.
A fresh election was then ordered to be held in the constituency and the 7th of May was fixed as the date for receiving nominations. Even after the notification of the aforesaid date for the purpose of fresh election the petitioners did not care to move the authorities concerned for the inclusion of their names in the electoral roll. It was only when the nomination of Sri Gadi Narayanamurty was rejected by the Returning Officer on the 7th May that the petitioners suddenly became alive to the fact that the electoral roll was not published in the prescribed manner. The petition under Article 226 of the Constitution was filed before this Court on the 20-5-1953.
23. I am not satisfied about the bona fides of this petition. Sri Gadi Narayanamurty's nomination was rejected by the Returning Officer on, the 7th May on the ground that his name was not included in the revised electoral roll of the constituency. The recent decision of the Supreme Court in -- 'AIR 1952 SC 64 (E)', has concluded the question whether an application under Article 226 would lie against an order of the Returning Officer rejecting the nomination of a candidate. Their Lordships of the Supreme Court held that such an application would not lie in view of the provisions of Article 329(b) of the Constitution. Sri Gadi Narayanamurty could not, therefore, directly challenge before this Court the correctness of the order of the Returning Officer rejecting his nomination. The present petition appears to be nothing else but a colourable device to indirectly challenge that order.
The petitioners admitted that according to their belief Sri Gadi Narayanamurty was a fit candidate to represent them in the State Assembly, that he had been selected by the Utkal Provincial Congress Committee and that by the rejection of his nomination paper on illegal grounds the petitioners have been deprived of their right to send their representative to the State Assembly and from, exercising their franchise. These admissions coupled with the complete silence of the petitioners to take any steps to challenge the validity of the revised electoral roll till the rejection of the nomination of Sri Gadi Narayanamurty leave no room for doubt that the primary purpose of the present petition is to get the order of the Returning Officer set aside indirectly on the ground that the revised electoral roll itself was not validly prepared.
It is true that as citizen of India the petitioners may have their right to exercise their franchise provided their names are found in the electoral roll of their constituency. If they are deprived of this right the Representation of the People (Preparation of Electoral Rolls) Rules prescribe the necessary procedure for rectifying the omission. But the petitioner's right to vote for a particular candidate in the ensuing elections depends on whether that candidate is validly nominated. When that candidate's nomination is rejected by a competent authority and Article 329(b) as construed by their Lordships of the Supreme Court in the decisions referred to above says clearly that the decision of the Returning Officer is not liable to challenge before any Court, the petitioners cannot reasonably contend before us that they have been deprived of their right to vote for a particular candidate. This deprivation is brought about by the inaction on the part of that candidate (Sri Gadi Narayana-murty) in getting his name registered as a voter in the electoral roll of the constituency.
24. An, ingenious attempt was made to get round the aforesaid decision of the Supreme Court by urging that the petitioners were not in any way challenging the decision of the Returning Officer rejecting the nomination of Sri Gadi Nara-yanamurty but that they were challenging the revised electoral roll in contravention of the provisions of R. 22 of the Representation of the People (Preparation of Electoral Rolls) Rules.
This argument cannot, however, bear scrutiny. The time for challenging the validity of the revised electoral roll had expired long ago. The prayer of the petitioners in the present petition was for the issue of a writ of Mandamus directing the Returning Officer to treat the old electoral roll of 1950 as the valid electoral roll for the purpose of holding the by-election and directing him not to conduct the by-election on the basis of the revised electoral roll of 1952. However cleverly the petition might have been worded there can be no doubt that in essence, the prayer of the petitioners, if allowed, would amount to setting aside the order of the Returning Officer rejecting the nomination of Sri Gadi Narayanamurty. The process for holding the by-election in the said constituency had already commenced some months ago and any direction that may be issued to the Returning Officer now as to whether the old electoral roll or the revised electoral roll should be considered to be the valid electoral roll for the constituency would amount to interfering with the conduct of the elections and would thus amount to a contravention by this Court of Article 329(b) of the Constitution as construed by the Supreme Court.
The petitioners are not without any remedy. If elections are held under the revised electoral roll such elections could perhaps be called into question later On before the Election Tribunal on the ground that the entire election became invalid due to the invalidity of the revised electoral roll on the basis of which it was held.
25. I would, therefore, agree with my Lord that the petition should be dismissed with costs.