1 APHC010077892025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3329] WEDNESDAY ,THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION NO: 3998/2025 Between: M Srivani ...PETITIONER AND The Election Commission Of India and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. THOTA RAMAKOTESWARA RAO Counsel for the Respondent(S): 1. D S SIVADARSHAN The Court made the following: 2 O R D E R: 1. This writ petition is filed under Article 226 of the Constitution of India, seeking the following reliefs: “To issue writ of mandamus declaring the action of the 3rd respondent in rejecting application of the petitioner for nomination of MLC Constituency East and West Godavari Graduates constituency as illegal arbitrary In violation of principles of natural justice and set aside the same and consequently direct the respondents to permit the petitioner to contest in the election by allowing the nomination application” 2. Heard Sri T. Ramakoteswara Rao, learned counsel for the petitioner and Sri D.S. Siva Darshan, learned Standing Counsel for Respondent Nos.1 & 2. 3. Learned counsel for the petitioner submits that the petitioner submitted her nomination pursuant to the notification for conducting election to the Member of A.P. Legislative Council from the East-West Godavari Graduates‟ Constituency. The petitioner filed her nomination with requisite documents and her nomination papers were scrutinized by the respondent on 11.02.2025. After conducting scrutiny, the nomination of the petitioner was rejected on the ground that, out of the 10 proposed voters as required, the third name/voter is not matching to serial number as assigned at voter list. Learned counsel for the petitioner submits that the Scrutiny Officer has not pointed out the said defect in the check list and passed the application mechanically, as such, the 3 petitioner was under the impression that the application filed by her was in order. 4. Learned counsel for the petitioner also submits that, failure of the petitioner to mention the serial number from the voter list of graduate constituency, the same cannot be fatal to the petitioner‟s nomination, inasmuch as the said error is not of a substantial character or mandatory in nature. Therefore, the Scrutiny Officer shall not reject any nomination paper on the ground of any defect which is not of substantial in nature or mandatory compliance. 5. Learned counsel for the petitioner assets that, on presentation of a nomination paper, the Returning Officer shall satisfy himself and the names of the electoral roll numbers of the candidates and his/her proposer(s) as entered in the nomination paper are the same as those entered in the electoral roll or if any discrepancy, the third respondent should have permitted the petitioner to make good after the said clerical or technical error in the nomination paper to make valid nomination, even if the said error in the nomination form was found at the time of scrutiny. He submits that the third respondent rejected the application of the petitioner without providing any opportunity to her to satisfy the Returning Officer even though there was no defect in the nomination paper of petitioner in substantial nature. 6. The nomination of the petitioner was rejected erroneously on the ground that the petitioner had furnished 9 valid proposers only. If it is a rectifiable 4 mistake on the part of the petitioner, the third respondent should have allowed the petitioner to rectify the said mistake. But, contrary to the mandatory procedure, the third respondent did not allow the petitioner for such rectification and rejected the nomination of the petitioner which is nothing but an infringement of Fundamental Right Guaranteed under Article 19 of the Constitution of India apart from violation of principle of free and fair elections is the foundation of democracy. Hence, the present writ petition. 7. On the other hand, learned Standing Counsel for the respondent submits that, any dispute or rejection of nomination after issuance of election schedule is liable to be resolved by way of Election Petition only and the election process cannot be interdicted, in view of the ratio laid down by the Hon‟ble Apex Court in N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency and others1 and this Court cannot exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. 8. The Hon‟ble Apex Court in N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency and others (supra) succinctly held that the Courts cannot interdict the process of election by any orders. Clause (b) of Article 329 of the Constitution of India excludes the jurisdiction of the Courts to entertain any matter relating to „election‟ which can be questioned only by an election petition under the law prescribed by the appropriate Legislature i.e Chapters II-III of the Act. Hence, a suit for setting aside an election would not lie. 1 (1952) 1 Supreme Court Cases 94 5 „Election Process‟ in this context means the entire process culminating in a candidate being declared elected and is not confined to the final result. By reason of this clause, the following matters cannot, therefore, be challenged by a suit; the only remedy would be an election petition, which includes acceptance or rejection of a nomination paper by a Returning Officer, any matter which arises while the elections are in progress i.e. at every stage from the time of the issue of the notification appointing a date for nomination till the results are declared and correctness of the electoral roll, except on the ground of contravention of Article 173 of the Constitution. 9. In Mohinder Singh Gill v. Chief Election Commissioner2 the Apex Court (5 Judges) held that, Article 324 of Constitution of India deals with Constitution of Election Commission and its role. Election Commission having power of superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and Vice-President held under the Constitution. Therefore, the Election Commission is entitled to issue necessary directions in contingency. The words “superintendence, direction and control” empowers the “Election Commission to act in contingencies not provided for by law and to pass necessary orders for the conduct of the election.”. The power conferred on Election Commission under Article 324 (1) of Constitution of India is a residuary power relating to electoral process, in areas unoccupied by 2 AIR 1978 SC 851 6 legislation, which empowers the Commission to issue all directions necessary for the purpose of conducting smooth, free and fair elections. The opening words “superintendence…………..conduct of all elections” include powers as well as duties. Apart from powers conferred by the Representation of the People Act and the Rules made thereunder the Election Commissioner has ample powers under Article 324(1) itself, to make appropriate orders as to conduct of election i.e. cancellation of poll and ordering repoll, according to exigencies in particular areas. 10. Maintainability of writ petition under Article 226 of the Constitution of India is also discussed by the Apex Court in the above judgment, and held that, Article 329(b) is a blanket ban on legal proceedings including a petition under Article 226 to challenge electoral steps taken by the Election Commission and its officers for carrying forward the process of election starting from the notification by the President under Section 14 of the Act to its culmination in the formal declaration of the result of the election. The only remedy to challenge the legality of such steps is an election petition to be presented after the election is over, „calling in question the election‟. No remedy is provided at any intermediate stage, even though the dispute relates to a step anterior to the holding of the election, such as nomination. Hence, even though an error of law relating to a mandatory provision is committed in the election process at any stage prior to the declaration of the result, the High Court under Article 226 cannot interfere with the process of election; the remedy to rectify such error, at that stage, lies before the Election 7 Commission. The Supreme Court also made it clear that, if the petitioner seeks any remedy which would not be available in the election petition, a petition under Article 226 might possibly lie after the completion of the election. 11. Therefore, in view of the law declared by the Constitutional Bench of the Hon‟ble Apex Court in the judgments referred supra, including the decisions relied on by the learned counsel for the petitioners, non-compliance of Section 25 of the Representation of the Peoples Act (hereafter „the Act‟) r/w Rule 15 of the Rules is a ground to question the election under Section 100(1)(d)(iv) of the Act. In such case, the mistake, if any committed is only during the progress of the election process and that would give rise to an election petition and consequently the writ petition under Article 226 is not maintainable, in view of the law declared by the Apex Court in the judgments referred supra. In the case in hand also, the rejection of nomination is an act anterior to the date of election but during the progress of the election process and after election notification. Therefore, this Court cannot grant any relief to interdict the process of election which was set in motion, in view of the election notification. 12. In view of my foregoing discussion, this Court do not find any ground to grant relief to the petitioner. Consequently, the petition is liable to be dismissed. However, the petitioner is at liberty to challenge the subject 8 election after completion of election process by way of election petition, in accordance with law. 13. In the result, the writ petition is dismissed. No costs. 14. Consequently, miscellaneous applications pending if any, shall stand dismissed. ________________________________ VENKATESWARLU NIMMAGADDA,J Date: 19.02.2025 SP 9 THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION NO: 3998/2025 Date: 19.02.2025 W SP