1952 Jan.
21. 218 SUPREME COURT REPORTS N. P. PONNUS\VAMI ti. RETURNING OFFICER, NAMAKKAL CONSTITUENCY and OTHERS [1952J UNION OF INDIA and STATE OF MADHYA BHARA T-INTERVENERS. [PATANJALI SAsTRr C.J., FAZL Au, MEHR CHAND MAHAJAN, MuKHERJEA, DAs and CHANDRASEKHARA ArYAR JJ.J Constitution of India Arts. 226, 324 to 329-Representation of the People Act, 1951, ss. 36, 80--Election to Legislatures-Rejection of nomination paper-Applicati-on to High Court for writ of certiorari -Maintainability-..furisdiction of High Court-Meaning of "election" and "questioning election"-Poli"cy of Legislature with regard to elections-Special remedies.
Article 329 (b) of the Constitution of India provides that "no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in ques- tion 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." The Representation of the People Act, 1951, which made detailed provisions for election to the various Legislatures of the country also contains a· provi~ sion (sec. 80) that no election shall be called in question except by an election petition presented in accordance with the provi~ sions of the Act.
The appellant\ who was a candidate for election to the Legis- lative Assembly of the State of Madras_ and whose nomination paper was rejected by the Returning Officer, applied to the High Court of Madras under article. 226 of the Constitution for a writ of certiorari' to quash the order of the Returning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be pub- lished: Held by the Full Court (PATANJALI SASTRI, C.
J., FAZL Au, MAHAJAN, MuKHERJEA, DAS and CHANDRASEKHAR.A AiYAR JJ.) that in view of the provisions of articles 329 (b) of the Constitu- tion and sec. 80 of the Representation of the People Act, 1951, the High Court had no jurisdiction to interfere with the order of the Returning Officer. The word uelection" 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 ,_ '· 4' . .. S.~.R. SUPREME COURT REPORTS 219 narrow sense it is used to mean the final selection of a candidate ·1952 which may embrace the. ·result of the poll when there is polling or a particular candidate being returned unopposed when there is N. P. Ponnu- no poll. In the wide sense, the word is used to connote the entire f.Wam1 process culminating in a candidate being declared elected and it" .v. is in this wide sense that the word is used in Part XV of the Returmng Officer, Constitution in which article 329 (b) occurs.
Namak,k,al Constituency a1ld The scheme of Part XV of the Constitution and the Repre- Others. sentation of the People Act, 1951,' 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 be- fore a special tribunal and should not be brought up at an inter- mediate stage before any court. Undl:r the election law, the only significance which the rejection of a nomination paper has, consists in the fact that it can be used as a ground to call the election in question. _Article 329 (b) was apparently enacted to preS<:ribe the manner in which and the stage at which this ground, anel other grounds which inay be raised under. the \aw to call the election in question., could be urged.
It follows by neces- sary implication from the language of this provision that those grounds cannot be urged in any .other manner, at any other stage and before any other court. If tl1e grounds oh .which. an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like article 329 (b) and in setting up · a special tribunal.
Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution col,lld not have contemplated, one of them being that canflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal whicli is to be an independent body, at the stage when the matter is brought up before it. Therefore, questioning the rejection of a nomination paper is "questioning. the election" within the meaning of article 329 (b) of the Constitu- \ tion and sec. 80 of the Representation of the People Act, 1951.
Having regard to the important functions which tlie legis- latures have to perform in democratic countries, it has always been recognized to be a matter of first importance tliat elections should be concluded as early as possible according to time S<:hedule and all controversial matters and all disputes arising out of elec- tions should be postponed till after tlie elections are over, . so tliat the election proceedings may not be unduly retarded or protracted.
In conformity with this principle, the sclieme of the election law in this country as well as in England is that no significance should be attaclied to anything which does not affect the "election"; and if any irregularities are committed while, it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the persons . affected · rn 8:.....3 S.
C. India/71 ~ 220 SUPREME COURT REPORTS [1952] 1952 call it in qu~stion, they should be brought up before a special tribunal by means of an election petition and not be made the N. P: Ponnu· subject of a dispute before any court while the election is in swami progress. Returning Of/k.r, Th . h J d"d f 1 · ·e rig t to vote or stan as a can i ate or e ection ts not a N, v.kkal civil right but is a creature of statute or specjal law and n1ust be Co ::a c an J subject to the limitations imposed by it.
Strictly speaking, it ns ~,:; Y ' is the sole right- of the Legislature to examine and determine all 'S. matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. 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.
Wolverhampton New Water 'Works Co. v. Hawkesford [6 C. B. -(N. S.) 336], Neville v. London Express Newspaper Limited ([1919] A. C. 368), Attorney-General of Trinidad and Tobago v. Gordon ·Grant & Co. ([1935] A. C. 532), Secretary of State v. Mask & Co. ( 44 C. W. N. 709), Hurdutrai v. Official Assignee of Calcutta (52 C. W. N. 343), Theberge v. Laudry (1876, 2 App. Cas. 102) referred to. Judgment of the l-Iigh Court of Madras affirmed.
CIVIL APPELLATE JuRISDICTioN : Case No. 351 of 1951. Appeal under article 132 of the Constitution from the Judgment and Order of the High Court of Judicature at Madras (Subba Rao and Venkatarama Ayyar JJ.) dated 11th December, 1951, in Writ Peti- tion No. 746 of 1951. The facts of the case and argu- ments of the counsel are set out in detail in the judg- ment. N. Rajagopal Iyengar, for the appellant.
R. Ganapathi Iyer, for the 1st respondent. M. C. Setalvad, Attorney-General for India ( G. N. Joshi, with him) for the Union of India. K. A. Chiklle, Advocate-General of Madhya Bharat. -(G. N. foshi; with him) for the State of Madhya Bharat. 1952. January 21. Faz! Ali J. delivered as follows. Patanjali Sastri C. J."Mahajan, Das and Chandrasekhara Aiyar JJ. agreed. .Ali J. Judgment Mukherjea, with Faz! - ..
S.C.R. SUPREME COURT REPORTS 221 FAZL Au J.-This is an appeal from an order of the Madras High Court dismissing the petition of the .appellant praying for a writ of certiorari. The appellant was one of the persons who had filed nomination papers for election to the Madras Legislative Assembly fro111 the Namal<lkal Constituency in Salem district.' On the 28th November, . 1951, .the Returning Officer for that constituency took ·up ·for scrutiQy the nomination papers filed by the various candidates and on the same day he rejected the· appellant's nomina- tion paper on certain groun~s w~ich 1 need' not be set out as they are .not material to the point raised in this aweal. .
The appellant thereupon moved the High Court under article 226 of the Constitution praying for a writ of certiorari to quash the order of the Re- turning Officer rejecting his nomination paper and to dim:t the Returning Officer to include his name in the list of valid nominations to be published. The High Court dismissed the appellant's application on the. ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the pro- visions of article 329(b) of the Constitution.
The :appellant's contention in this appeal is that the view .expressed by the High Court is not correct, that the jurisdiction of the High Court is not affected by article 329 (b) of the Constitution and that he was entitled to a writ o£ certiorari in the circumstances of the case. Broadly speaking, the arguments on whi~h the judgment of the High Court is assailed are two-fold :- (1) that the concl~sion 'arrived at by the High Court does not follow from the language of article 329 (b) of the Constitution, whether that article is . read by itself or along with the other articles in Part XV of the Constitution : anrl (2) that the anomalies which will arise if the con- struction put by the High Court on article 329 (b) is accepted, are so startling that the courts should lean in favour of the construction put forward on behalf of the appellant. · 29 1952 N.
P. Ponnu· swami v. -Returning Officer, Namakkfd Constituency and . Others. Fazl Ali f. 222 SUPREME COURT REPORTS [1952J 1952 The first argument which turns on the con~truction of article 329(b) requires serious consideration, but I N. P. Ponnu- think the secon.d argument can be disposed of briefly Jtuami T. at the outset. It should be stated that what the appel- Returning Officer, !ant chooses to call anomaly can be more appropriately Namakkal described as hardship or prejudice and what their Constituency and nature will be has been stated in forceful language by Otlii:rs.
Faz/ Ali /. · Wallace J. in Sarvothama Rao v. Chairman, Municipal Council, Saidapet(') in these words :- ' "I am quite clear that any post-election remedy is wholly inadequate to afford the relief which the peti- tioner seeks, namely, that. this election, now published be stayed, until it can be held with himself as ~ candi- date. It is no consolation to tell him that he can stand for some other election.
It is no remedy to tell him that he must let the election go on and then have it set aside by petition and have a fresh election ordered. The fresh election may be under altogether different conditions and may bring forward an array of fresh candidates. The petitioner can only have his proper relief if the proposed election without him is stayed until his rejected nomination is restored, and hence an injunction staying this election was absolutely neces- sary, unless the relief asked for was to be denie<l him altogether in limine.
In most cases of this kind no doubt there will be difficulty for the aggrieved party to get in his suit in time before the threatened wrong is committed ; but when he has succeeded in so doing, the Court cannot stultify itself by allowing the wrong which it is asked to prevent to be actually consummat- ed while it is engaged in trying the suit." These observations however represent only one side of the picture and the same learned Judge presented the other side of the picture in a subsequent case [Desi Chettiar v.
Chinttasami Chett1ar( 2 )] in the following passage:- "The petitioner is not without his remedy. His remedy lies in an election. petition which we under- stand he has already put in. It is argued for him (1) (1924) IL.R. 47 Mad.
585. at 600. (2) (1928) A.I.R. Mad. 1271 at 1272. - ... S.C.R. SUPREME COURT REPORTS 223 that that remedy which 'merely allows him to have set .aside an election once held is not as efficacious as the one which .would enable him to stop the. election alto- gether'; and certain observations at p. 600 of Sar-- voihama Rao v.
Chairman, Municipal Council, Saida- pet(1) are quoted. In the first place, we · do not see how the mere fact that thi: petitioner cannot get the election stopped and has his remedy · only after it is· -0ver by an election petition, will in itself confer on him any right to obtain a writ. In the second place, these observations were directed to the consideration Qf the propriety of an injunction in a civil suit, a matter with which we are not here concerned.
And finally it may be observed that these remarks were made some years ago when the practice of individuals coming forward to · stop elections in order that their own individual interest may be safeguarded was not so common. It is clear that there is another side of the question to be considered, namely, the i inconvenience to the public administration of having elections and the business of "Local Boards held up while individuals prosecute their individual grievances.
We understan~ the election for the elective seats in this Union has been held up since 31st May because of this petition, the result being that the electors have been unable since then to have any representation on the Board, and .the Board is functioning, if indeed it is function- ing, . with a mere nominated fraction of its total strength; and this state of affairs the petitioner pro- poses to have continued until his own personal griev- ;;mce is' satisfied." These obser¥ations which were made in regard to e1ections to Local Boards will apply with greater force to elections to legislat\Jres, because it does not require much argument to show that in a country with ·a Aemocratic constitution in which the legislatures have to play a very important role, 1t will lead to serious consequences if the elections are unduly protracted or obstructed ..
To this. aspect of the matter I shall have to .adv~rt later, but , it .is sufficient for the present purpose (1) ( 1924) I.L.R. 47 Mad. 585 at 600. 1952 N. P. Ponnu- swami v. Returning Officer, · Namakkal . Constituency and Others. Fazl Ali /. \ / 1952 N. P. Ponnu- swami v. Returnint Of!icet, Namakkal Constituency and Others. Faz/ Ali/. 224 SUPREME COURT REPORTS [1952} to state firstly that in England the hardship and inconvenience which rnay be suffered by an individual candidate has not been regarded as of sufficient weight to induce Parliament to make provision for immediate relief and the aggrieved candidate has tc> wait_ until after the election to challenge the validity of the rejection of his nomination paper, and secondly, that the question of hardship or inconvenience is after all . only a secondary question, because if the construc- tion put by the High Court on article 329 (b) of the Constitution is found to be correct, the fact that such construction will lead to hardship and inconvenience becomes irrelevant.
Article 329 is the last article in Constitution the heading of which it runs as follows :- Part XV of the is "Elections", and· "Notwithstanding anything in this Constitution-- ( a) the validity of any law relating to the delimi- tation of constituencies or the allotment of seats to such constituencies made or purporting 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." In construing this article, reference was made by both parties in the course of their arguments to the other articles in the same Part, namely, articles 324, 325, 326, 327 and 328.
Article 324 provides for the constitution and appointment of an Elecetion Commis- sioner to superintend, direct and control elections to the legislatures ; article 325 prohibits discrimination against electors on the ground of religion, race, ca<te or sex ; article 326 provides for adult suffrage ; article 327 empowers Parliament to pass laws making pro- vision with respect to all matters relating to, or in connection with, elections to the legislatures, subject • S.C.R.
SUPREME COURT REPORTS 225 to the provisions of the Constitution ; and article 328 is a complementary article giving power to the State Legislature to make provisions with respect to all matters relating to, or in connection with, elections to the State Legislature. A notable difference in the language used in articles 327 and 328 -on the one hand, and · article 329 on the other, is that while the first two articles begin with the words "subject to the pro. visions of this Constitution", the last article begins with -the words "nothwithstanding anything in this Constitution." It was conceded at the bar that the effect of this difference in language is that whereas any law made by Parliament under article 327, or by the State Legislatures' under article 328, cannot exclude _ the jurisdiction of the High Court under article 226 of the Constitution, that jurisdiction is excluded in regard to matters provi<}ed Jor in article 329.
Now, the main controversy in this appeal centres 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 whet~er questioning the action of the Returning Officer in re- jecting a nomination paper can be said to be compre- hended within the words, "no election shall be called in question." The appellant's case is that questioning something which has happened before a candidate is dedared elected is not the same thing as questioning an election, and the arguments advanced on his be- balf in support of this construction were these :- (1) That the word "election" as used in article 329(b) means what it normally · and etymologically means, namely, the result of polling or ~he final selec- tion of a candidate ; • (2) That the fact that an election petition can be filed only after polling is over or after a candidate is declared elected, and what is nor- mally called in question by such petition is the final result, bears out the contention that the word · "election" can have no other meaning in article 329 (b) than the result of polling or the final selection of a candidate ; ·- 1952 N.
P. Ponnu- swami v. Returning Otficn-, Namakkal Constituency and Others. Fnl Ali/. 226 SUPREME COURT REPORTS [1952] 1952 (3) That the words "arising out of or in connection with" which are used in article 324(1) and the words N. P. Ponnu- "with respect to all matters relating to, or in connec-swam1 tion with" which are used in articles 327 and 328,v. Returning Officer, show that the framers of the Constitution knew that it Namakkal was necessary to use different languages when referring Constituency and respectively to matters which happen prior to and Others. · after the result of polling, and if they had intended Fazl Ali /. to include the rejection of a nomination paper within the ambit of the prohibition contained in article 329 (b) they would have used similar language in that article ; and ( 4) That the action of the Returning Officer in re- jecting a nomination paper can be questioned before the High Court under article 226 of . the Constitution for the following reason :-Scrutiny of nomination papers and their rejection .are provided for in section 36 of· the Representation of the People Act, 1951.
Parlia- ment has made this provision in exercise of the powers c0nferred on it ·by article 327 of the Constitutio11 which is "subject to the provisions of the Constitution". Therefore, the action of the Returning Officer is subject to the extraordinary jurisdiction of the High Court under article 226. These arguments appear .a~ first sight to be quite impressive, but in my opm1on 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 <:onnection 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 '\ I J l -( :S.C.R. SUPREME COURT ~EPORTS 227 1952 N. P. Ponnu- swami v. ·elected. In Srinivasalu v. 1;..uppuswami(1), the learned Judges of the Madras High Court after examining the question, expressed· the opinion that : the term "elec- tion" may be taken to· embrace the whole procedure where by an "elected member" is returned, whether or not it · be found necessary to take a poll.
With this ·view, my brother, Mahajan J. expressed his agreement .in Sat Narain v. Hanuman Pramd(2) ; and I also find myself iJ1 agreement with it. It seems to me that the word "election" has been used in Part XV of the ·Constitution in the wide sense, that is to say, to con- .note the entire procedure to be gone through to return .a candidate to the legislature. The use of the expres- Returning Officer, Namakkal Constituency and Othe1·s. .. sion "conduct of elections" in article 324 specifically points to the wide meaning, and that meaning can also ·be read consistently into tile other provisions which •occur in Part XV including article 329 (b).
That the ·word "election" ·bears this wide meaning whenever we · :talk, of elections in a democratic country, is borne out by the fact that in most of the books on the subject :and in several cases dealing .with the matter, one of the questions mooted is, when the election begins. The -subject is dealt with quite concisely in Ha1sbury's Laws of England in the following passage(3) under the .beading "Commencement of the Election" :- "Although the first formal step in every election is the issue of the writ, the election is considered for some · _purposes to begin at an earlier date.
It is a question d 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 imminent". Neither the issue of :the 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 day· afford any criterion.
The election. will usually begin at least earlier than the issue of the writ. 'The question when the election begins .must be care- ( 1) (1928) A.LR. Mad. 253 at 255. (2) (1945) A.LR. Lah.
85. (3) See page 237 of Halsbury's Laws of England, 2nd edition, Volume 12. Faz/ Ali f. 1952 N. P. Ponnu- JWami v. Returning Officer, Namak._k._al ( onstituency and Ot,hers. Fazl Ali ]. 228 SUPREME COURT REPORTS [1952] fully distinguished from that as to when "th~ conduct and management of" an election may be said to begin.
Again, the question as to when a particular person commences to be · a candidate is a question to be con- sidered in each case." The discussion in this passage makes it clear that the word "election" can be and has been appropriately used with reference to the entire process which consists. of several stages and embraces many steps, some of which may have an important bearing on the result of the process.
The next important question to be considered 1s what is meant by the words "no election shall be called in question". A reference to any treatise on elections in England will show that an election pro- ceeding in that country is liable to be assailed on very limited grounds, one of them being the improper rejec- tion of a nomination paper. The law with which we are concerned is not materially different, and we find that in section 100 of the Representation of the People Act, 1951, one of the grounds for declaring an election to be void is the improper rejection of a nomination· paper.
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 extraordi- nary 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 elec-· tion 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 lateq 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 elec-· tion law, the only significance which the rejection of ,. - ' \ -~ I ' ·' S.C.R. SUPREME COURT REPORTS 229 a nominatiorl: paper . has consists in the fact that it 1952 can be used as a ground to call the election m question. Article 329(b) was apparently enacted to N. ~~::riu·· prescribe the manner in which and the stage at which v. this ground, and other. grounds which may be raised Returning Office1', under the law to call the electio11 in question, N~makkal d could be urged.
I think it follows by necessary im- Consigu;ncyan plication from the language of this provision 1 ers. that those grounds cannot be urged in any other Faz/ dli /,· manner, at any other stage and before any other court.- If the grounds on which an election can be called .irr question could be raised at an earlier stage and errors,, if any, are rectified, there will be no meaning in enact-' ing a provision like article 329(b) and in setting' up a special tribunal.
Any other meaning ascribed to the words used' in the article would lead to anomalies, which the Constitution could not have ·contemplated,, one of them being that conflicting views may be expres- sed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it. I think that a brief examination of the scheme of Part XV of the Constitution and the Representation. of the People Act, 1951, will show that the construc- tion I have suggested is the correct one.
Broadly speaking, before an election machinery can be brought into operation, there are three requisites which ,requii;-e to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating . to, or ·in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections.
Articles 327 and 328 deal with the first of these requisites, article 324 with the second ai1d article 329 with the third requisite. The other two articles in Part . XV, viz., articles 325 and 326, deal with two matters of principle to which the Consti~u tion-fotmers have attached much importance. They 30 230 SUPREME COURT REPORTS - (1952] ·1952 are :-( 1) prohibition against discrimination in the preparation of, or eligibility for inclusion m, the N.
P. Ponnu- electoral rolls, on grounds of religion, race, caste, sex swatnt v. or any of them ; and (2) adult suffrage. Part XV of Returning Officer, the Constitution is really a code in itself providing Namakkal the entire ground-work for enacting appropriate laws Constituency and and setting up suitable machinery for the conduct of Others. Faz/ Ali f. elections. 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 divicjed 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 adminis- trative 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 nomina- tion, scrutiny of nominations, etc., and procedure for polling and counting of votes.
Part VI deals with disputes regarding elections and provide~ for the manner of presentation of election petitions, the con- stitution of election tribunals and the trial of ekction petitions. Part VII outlines the various corrupt and illegal practices which may affect the elections, and electqral offenc·es. Obviously, the Act is a self-con- tained 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.
The provisions of the Act which are material to the present discussion are sectioru 80, 100, 105 and 170, and the provisions of Chapter I.I 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 m question except by an election '• .. \..
S.C.R. SUPR~ME COURT REPORTS 231 1952 N. P. Ponnu- swami v. petition presented in accordance with the provisions of this Part". Section 100, as we have already seen, pro- vides for the grounds on which an election may be ,called in question, one of which is the imriroper rejec- tion of a nomination paper. Section 10) says that "every order 'of the Tribunal made under this Act shall be final and conclusive".
Section 170 provides that "no civil court shall have jurisdiction to question the legaiity 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 elec- tion." These are the roam provisions regarding elec- tion 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 Returning Officer~ N11mak,k,al Constituency and Others. · questioned at an intermediate stage.
It is now well-recognized that where a right of lia- bility 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 WoltJerhampton -New Water Works Co. v. Hawkesford( 1 ) in the follow- ing passage :- "There are three dasses of cases in which a liability may b~ 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 co,nimon 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 only proceed by action . at com- mon law. But there is a third class, tJiz,, 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 (l) 6 C.B. (N.S.) 336, 356.
Fazl Ali/. 1952 N. P. Ponnu- stvami v. 232 SUPREME COURT REPORTS [1952] competent to the party t~ pursue the course appli- cable to cases of the second class. The form given by the statute must be adopted and adhered to." /.?.<turning Officer, Namakkal l~'(Jnstztuency and Other;. The rule laid down in this passage was approved by the House of Lords in Neville v. London Ex- press Newspaper Limited(') and has been reaffirmed by the Privy Council in Attorney-General of Tri- nidad and Tobago v.
Gordon Grant & Co.(') and Secretary of State v. Mask & Co.( 3 ) ; and it has also been held to be equally applicable to enforcement of rights : see Hurdutrai v. Official Assignee of Calrntta(•). 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. .Fa~I Ali f.
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 1:his difference only that the article is preceded by the words "notwithstanding anything in this Constitu- tion".
I think that those words are quite apt to ex- clude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress. It may be stated that section 107(1) of the Repre- sentation of 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 Par- liament shall be questioned except by a petition com- plaining of <tll undue election or undue return (herein- after referred to as a parliamentary election petition) '.Presented in accordance with this Part of this Act." . (1) [1919] A.C.
368. (3) (1940) 44 C.W.N.
709. {?) [1935] A.C.
532. ( 4) (1948) 52 C.W.N. 343, 349. ,.. + t • • ':S.C.R.- SUPREME COURT REPORTS 233 . 1$52 N.
P. Ponnu-· swami v. 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 re- jection 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 dedsfon holding ·that the words used in the' relevant provisions exclude the jurisdiction of the High Court to issue ap- _propriate 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 provi- ::1ions in question have been generally understood'to have that effect. Our attention .was drawn to rule 13 ot 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 <lisallowing 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 re- turn.
These rules however do not affect the main argument. I think it can be Iegitim_ately ·stated that 1f words similar to those used in article 329 (b) have .been consistently treated in England as words apt to exclude the jurisdiction of the CQJtrts including the High Court, the same consequence must follow from the words used in article 329(b) of the Constitution. fhe words "notwithstanding anything in this Constitution" give to that article the same wide and binding effect as a statute passed by a sovereign legis- lature like the English Parliament.
Returning Officer, Namakkal Constituency and Others: It may be pointed out that article 329(b) must be . read as complimentary to clause (a) of that ;μ-tide. 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 Fflzl Ali /. 234 SUPREME COURT REPORTS [1952]. 1952 ansmg between the commencement of the polling and the final selection.
The question which has to be asked N. ~~::.?nu- is what conceivable reason the legislature could have v. had to leave only m:itters connected with nominations Returning Officer, subject to the jurisdiction of the High Court under Namak/r..ol article 226 of the Constitution. If Part XV of the Constituency and Constitution is a code by itself, i.e., it creates rights. Others. d "d f h . fo b . lan prov1 es or t e1r en rcement y a specia .
Fazl Ali /. tribunal to the exclusion of all courts includ:ng the High Court, there can be no reason for assuming that the Constitution left one small part of the election pro- cess 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". The conclusions which I have arrived at may be summed up briefly as follows : - ( 1) Having regard to the important functions. which the legislatures have to perform in democratic countries, it has always been recognized to be a: matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme of the election law in this country as well as in Eng- land is that no significance should be attached to any- thing which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable· the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.
It will be useful at this stage to refer to the decision of the Privy Council in Theberge v. Laudry('). The . (1) (1876) 2 App. Cas.
102. - -( . ... -KC.R. SUPREME COURT REPORTS 235 petitioner in that case having been declared duly elected a member to represent an electoral district in the Legislative Assembly of the Province of Quebc:c, his election was afterwards, on petition, declared null and void by judgment of the Superior Court, under the Quebec Controverted Elections Act, 1875, and himself declared guilty of corrupt practices, both personally and by his agents.
Thereupon, he applied for special leave to appeal to Her Majesty in Council, but i