Erroneous Order Of Returning Officer That Do Not Hinder Conduct Of Election Should Not Be Interfered With By Courts U/A 226: Calcutta High Court

A Bench of Chief Justice Thottathil B. Radhakrishnan and Justice Aniruddha Roy said,

"possible erroneous actions of Returning Officer which could be considered as amenable to correction in the writ jurisdiction are only such errors which would have the effect of interfering in the free flow of the scheduled election or hinder the progress of the election."

Relying on the Supreme Court's decision in Manda Jaganath v. KS Rathnam & Ors., (2004) 7 SCC 492, the Bench further said,

"if by an erroneous order, conduct of the election is not hindered, then the courts under Article 226 of the Constitution should not interfere with the orders of the Returning Officer, remedy for which lies in an Election Petition only."

Background

In the instant case, the Division Bench was hearing an appeal filed by the Chief Election Commissioner, against an order of the Single Judge of the High Court— allegedly interfering with the "noting of defects" on a candidate's nomination for the upcoming Bengal elections.

The ground for challenge was that a writ petition was not maintainable in electoral matters, in view of the bar imposed under Article 329(b) of the Constitution of India. The provision states that no election to either the Parliament or to the State Legislature shall be called in question except by an "election petition".

The EC also contended that the order impugned was issued without notice to the statutory authorities under the Representation of Peoples Act, including the Returning Officer.

Findings

The Court noted that the impugned order was passed while the nomination papers of the candidate were at the scrutiny stage.

It noted that Section 36 of the RP Act provides for Scrutiny of nominations. It enables the Returning Officer to examine the nomination papers and decide all objections which may be made to any nomination.

Sub-clause 4 thereof cautions that the Returning Officer shall not reject any nomination paper on the ground of any defect, which is not of a "substantial character".

The Court further explained that the result of such scrutiny under Section 34, is available for adjudication by the Court only in terms of Section 100 (1)(c) of the RP Act which makes "improper rejection" of nomination as a ground to declare the election to be void.

In the backdrop of such legislative framework, the Bench opined,

"Trying to draw a line between the phrase 'improperly rejected' in Section 100(1)(c) of the RP Act and the rejection of 4 nomination paper on the ground of any defect which is not of a "substantial character" as occurring in Section 36(4) of the RP Act, it would be so thin that it always swings in favour of having that issue open for consideration in the Election Petition."

This is because, the Court said,

"any rejection of the nomination paper by the returning officer on the ground of any defect and the question whether such defect is of a 'substantial character' or not, as well as the question whether such rejection amounts to improper rejection for the purpose of Section 100(1)(c) of the RP Act are essentially mixed questions of facts and law."

Case Title: Chief Election Commissioner & Ors. v. Ujjwal Kumar & Anr.

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