Vishvanath Agarwal v. Election Commission of India and Ors.

1. Allowed, subject to all just exceptions.

2. Application stands disposed of. W.P.(C) 765/2025 and CM APPL.4365/2025

3. This writ petition is preferred on behalf of the Petitioner under Articles 226/227 of the Constitution of India seeking the following reliefs: “i. allow the Writ Petition; ii. Declare the action of the No. 3 is unconstitutional in as much, as not allowing/ accepting nomination form from candidate who reached before or at 3 PM on 17-01-2025, last day of nomination. iii. Set aside the nomination procedure adopted by the returning Officer AC-40 (new Delhi); iv. direct the Respondents to consider and allow the Petitioner's representation dated 19.01.2025 and consider the nomination form of petitioner; v. Injunct the State Election Commissioner or any the Respondent authority to declare the date of election schedule till pendency of this Writ Petition. vi. Impose exemplary cost on the RO AC-40 of new Delhi Assembly of causing disruption to good governance of Delhi; Assembly and halting the development process and prospects in NCT of Delhi.”

4. Learned counsel for Respondent No.1 objects to the maintainability of this writ petition under Article 226 of the Constitution of India on the ground that there is a constitutional bar for entertaining the present writ petition and in this context, refers to Article 329(b) of the Constitution of India which reads as: “no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.” It is urged that by virtue of Article 329(b) of the Constitution and Sections 80, 81 and 100(1)(c) of Representation of People Act, 1951 (‘1951 Act’), the only remedy available with the Petitioner is to file an Election Petition. In support of the preliminary objection, learned counsel relies on the judgment of the Supreme Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others, (1952) 1 SCC 94 and judgment of a Coordinate Bench of this Court in Vijay Pal Singh v. Union of India and Others, 2019 SCC OnLine Del 8371.

5. Having heard learned counsel for the parties, I find merit in the preliminary objection raised by counsel for Respondent No.1. In N.P. Ponnuswami (supra), the Constitution Bench of the Supreme Court was considering an appeal against an order of the High Court, whereby the writ petition in which there was a challenge to the order of the Returning Officer rejecting the nomination paper and a direction was sought to the Returning Officer to include Petitioner’s name in the list of valid nominations, was dismissed by the High Court on the ground that it had no jurisdiction to interfere with the order of the Returning Officer in light of Article 329(b) of the Constitution. Examining Article 329(b) and provisions of 1951 Act, the Supreme Court observed that where a right or a liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of and invocation of writ jurisdiction during the ongoing election process was excluded. Relevant paragraph from the judgment is as follows:

Part IV dealing with the form of election petitions, their contents and the reliefs which may be sought in them. Section 80, which is drafted in almost the same language as Article 329(b), provides that “no election shall be called in question except by an election petition presented in accordance with the provisions of this Part”. Section 100, as we have already seen, provides for the grounds on which an election may be called in question, one of which is the improper rejection of a nomination paper. Section 105 says that “every order of the Tribunal made under this Act shall be final and conclusive”. Section 170 provides that:

These are the main provisions regarding election matters being judicially dealt with, and it should be noted that there is no provision anywhere to the effect that anything connected with elections can be questioned at an intermediate stage.

19. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CB NS 336 at p. 356: 141 ER 486] in the following passage: [CB (NS) p. 356: ER p. 495] “… There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. … The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.” The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. [Neville v. London Express Newspapers Ltd., 1919 AC 368 (HL)] and has been reaffirmed by the Privy Council in Attorney General of Trinidad v. Gordon Grant & Co. Ltd. [Attorney General of Trinidad v. Gordon Grant & Co. Ltd., 1935 AC 532 (PC)] and Secy. of State v. Mask & Co. [Secy. of State v. Mask & Co., (1939-40) 67 IA 222: (1940) 44 CWN 709: 1940 SCC OnLine PC 10]; and it has also been held to be equally applicable to enforcement of rights (see Hurdutrai Jagadish Prasad v. Official Assignee of Calcutta [Hurdutrai Jagadish Prasad v. Official Assignee of Calcutta, (1948) 52 CWN 343 at p. 349: 1948 SCC OnLine Cal 19] ). That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.

20. It was argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under Article 226 of the Constitution. This argument however is completely shut out by reading the Act along with Article 329(b). It will be noticed that the language used in that article and in Section 80 of the Act is almost identical, with this difference only that the article is preceded by the words “notwithstanding anything in this Constitution”. I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress.

21. It may be stated that Section 107(1) of the Representation of the People Act, 1949 (12 & 13 Geo. 6, c. 68) in England is drafted almost in the same language as Article 329(b). That section runs thus: “No parliamentary election and no return to Parliament shall be questioned except by a petition complaining of an undue election or undue return (hereinafter referred to as a parliamentary election petition) presented in accordance with this Part of this Act.”

22. It appears that similar language was used in the earlier statutes, and it is noteworthy that it has never been held in England that the improper rejection of a nomination paper can be the subject of a writ of certiorari or mandamus. On the other hand, it was conceded at the Bar that the question of improper rejection of a nomination paper has always been brought up in that country before the appropriate tribunal by means of an election petition after the conclusion of the election. It is true that there is no direct decision holding that the words used in the relevant provisions exclude the jurisdiction of the High Court to issue appropriate prerogative writs at an intermediate stage of the election, but the total absence of any such decision can be accounted for only on the view that the provisions in question have been generally understood to have that effect.

23. Our attention was drawn to Rule 13 of the Rules appended to the Ballot Act of 1872 and a similar rule in the Parliamentary Elections Rules of 1949, providing that the decision of the Returning Officer disallowing an objection to a nomination paper shall be final, but allowing the same shall be subject to reversal on a petition questioning the election or return. These Rules however do not affect the main argument. I think it can be legitimately stated that if words similar to those used in Article 329(b) have been consistently treated in England as words apt to exclude the jurisdiction of the courts including the High Court, the same consequence must follow from the words used in Article 329(b) of the Constitution. The words “notwithstanding anything in this Constitution” give to that article the same wide and binding effect as a statute passed by a sovereign legislature like the English Parliament.

24. It may be pointed out that Article 329(b) must be read as complementary to clause (a) of that article. Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under Articles 327 and 328 relating to the delimitation of constituencies or the allotment of seats to such constituencies. It was conceded before us that Article 329(b) ousts the jurisdiction of the courts with regard to matters arising between the commencement of the polling and the final selection. The question which has to be asked is what conceivable reason the legislature could have had to leave only matters connected with nominations subject to the jurisdiction of the High Court under Article 226 of the Constitution. If Part XV of the Constitution is a code by itself i.e. it creates rights and provides for their enforcement by a Special Tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject-matter of contest before the High Courts and thereby upset the time schedule of the elections. The more reasonable view seems to be that Article 329 covers all “electoral matters”.”