# Hurr Mehdi Baqri v. Chief Election Commission of India & Ors

- **Citation:** (2014) 2 ILRA 597
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-02
- **Case number:** Civil Misc. Writ Petition No. 19028 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hurr-mehdi-baqri-v-chief-election-commission-of-india-ors-42835
- **Pages:** 4

## Headnote

Constitution of India, Art.-329(b)- Rejection
of nomination-Lok Sabha election-rejected
on
ground
in
electoral
roll-name
of
petitioner found no place-review rejected in
absence
of statutory provision-petition
against rejection-held-not maintainableonce election notified except election
Tribunal-
Court
ceased
with
every
jurisdiction-petition dismissed.

Held: Para-9
On the other hand, where a nomination
paper has been rejected, we are of the
598 INDIAN LAW REPORTS ALLAHABAD SERIES
view that the interference of the Court
under Article 226 of the Constitution
would not be warranted since the bar
under Article 329 (b) would clearly
apply. The only manner in which the
election can be challenged is by means
of presenting an election petition after
the declaration of the results where, as
we have already noted, one of the
grounds can be that a nomination paper
has been improperly rejected.

## Text

2 All] Hurr Mehdi Baqri Vs. Chief Election Commission of India & Ors.
597
respondents in not paying his post
retirement dues considering him not
retired from the post of Manager
Marketing and Economic Investigator can
not be sustained merely because vide
order dated 3.1.2001 the Court directed
that aspect of the matter may be
considered by the appointing authority in
accordance with rules, which does not
give handle to the respondents to
discriminate the petitioner and decide the
matter which can not be approved in law.

31. It has come on record that the
promotion of P.C. Jain and 13 other
juniors to the petitioner was treated to be
an approval from the State Government
on the post of Manager Marketing and
Economic Investigator and they were paid
their post-retirement benefits for the said
post. Therefore, even on this ground also
the petition is liable to be allowed.

32. We do not find any force in the
arguments of the learned counsel for the State
that as a result of dismissal of the writ petition,
the petitioner would be treated to have retired
from the post of Senior Investigator as he was
not legally promoted on the post of Manager
Marketing and Economic Investigator. We
also find that the petitioner had not received
any excess payment during his "litigious
employment" for the reason he had worked on
the post of Manager Marketing and Economic
Investigator and continued on the basis of the
Court's order. It was not the case where he had
received any excess payment by working on
the post of Manager Marketing and Economic
Investigator. Since the petitioner had been
appointed after advertisement and following
the procedure for recruitment, his case is
clearly distinguishable from the case of
Chandi Prasad Uniyal and Surinder Prasad
Tiwari (Supra) wherein the bonafide mistake
had been committed by the State Government
in calculating their pay-scale resulting in
excess payment.

33. For all these aforesaid reasons, the
writ petition is allowed. Since the petitioner
has actually worked on the post of
Manager(M & E-I) till his superannuation,
no recovery from him shall be made from
him for working on the said post and he shall
be paid his dues of the post of Manager(M &
E-I) on this basis.

34. No orders as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 19028 of 2014

Hurr Mehdi Baqri... Petitioner
Versus
Chief Election Commission of India &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Prakash Chandra Srivastava

Counsel for the Respondents:
Bhupendra Nath Singh

Constitution of India, Art.-329(b)- Rejection
of nomination-Lok Sabha election-rejected
on
ground
in
electoral
roll-name
of
petitioner found no place-review rejected in
absence
of statutory provision-petition
against rejection-held-not maintainableonce election notified except election
Tribunal-
Court
ceased
with
every
jurisdiction-petition dismissed.

Held: Para-9
On the other hand, where a nomination
paper has been rejected, we are of the
598 INDIAN LAW REPORTS ALLAHABAD SERIES
view that the interference of the Court
under Article 226 of the Constitution
would not be warranted since the bar
under Article 329 (b) would clearly
apply. The only manner in which the
election can be challenged is by means
of presenting an election petition after
the declaration of the results where, as
we have already noted, one of the
grounds can be that a nomination paper
has been improperly rejected.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. The petitioner has sought a
direction in the nature of mandamus
commanding the respondents to consider
his nomination paper for the forthcoming
elections to the 16th Lok Sabha in relation
to the 08, Sambhal Lok Sabha Election
Constituency as valid.

2. On 25 March 2014, the Returning
Officer notified that the scrutiny of the
nominations would take place on 27 March
2014 between 11:00 a.m. and 3:00 p.m. The
nomination paper of the petitioner was
rejected on 27 March 2014 on the ground
that the name of the petitioner was not found
at Serial No. 800 in the electoral rolls of the
constituency. The Returning Officer has
observed that the petitioner was absent
though he was informed that the scrutiny will
commence at 11:00 a.m. on 27 March 2014.
The petitioner filed an application for making
a correction in the nomination paper. This
application has been rejected by the
Returning Officer for the reason that once the
nomination paper had been rejected, a review
of the order was not permissible in law.

3. According to the petitioner, the
scrutiny was to take place between 11:00
a.m. and 3:00 p.m. on 27 March 2014 and
at 2:40 p.m. on 27 March 2014, he
submitted the application to the Returning
Officer for correcting an error in the
nomination paper. The petitioner stated
that in his nomination paper, he had
incorrectly stated that his name appears at
Serial No. 800 of the electoral rolls
whereas, in fact, his name appears at
Serial No. 802.

4. Learned counsel appearing on behalf
of the petitioner submits that the Returning
Officer having stated that the scrutiny would
take place between 11:00 a.m. and 3:00 p.m.,
he would not be justified in rejecting the
nomination paper despite the receipt of the
application at 2:40 p.m. Moreover, it has been
submitted, relying upon the provisions of
Section 33 (4) and Section 36 (4) of The
Representation of People Act, 1951, that the
nomination paper ought not to have been
rejected on the ground of a defect which is not
of a substantial character. Finally, it has been
urged that the jurisdiction of the Court under
Article 226 of the Constitution is not entirely
barred though the election process has
commenced in view of the decision of the
Supreme Court in Election Commission of
India through Secretary vs. Ashok Kumar &
others1

5. Article 329 (b) of the Constitution
provides as follows:

"(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."

6. It is well settled that the entire
process from the issuance of a notification
under Section 14 of The Representation of
People Act, 1951 to the declaration of the
2 All] Hurr Mehdi Baqri Vs. Chief Election Commission of India & Ors.
599
results under Section 66 is comprehended
within the expression 'election' in Article
329 of the Constitution.

7. Once the election process has begun,
the interference of this Court is clearly not
warranted. Moreover, under Section 100 (1)
(c), an improper rejection of a nomination is
a ground on which the election of a returned
candidate can be assailed.

8. The decision of the Supreme
Court in Election Commission of India vs.
Ashok Kumar (supra) arose from a
judgement of the Karala High Court
which by an interim order had stayed a
notification
issued
by
the
Election
Commission
of
India
containing
directions in regard to the counting of
votes and had made directions on its own
on the subject. The Supreme Court set
aside the order of the High Court and
allowed the appeal by the Election
Commission of India holding that the
Election Commission will have the power
to supervise and direct the manner of
counting of votes. It was in that context
that the Supreme Court while formulating
the governing principles of law held that
anything
which
is
done
towards
completing or in furtherance of the
election proceedings, cannot be described
as questioning the election. The Supreme
Court held that judicial intervention
would be available if assistance of the
Court has been sought merely to correct
or smoothen the progress of the election
proceedings, to remove obstacles or to
preserve a vital piece of evidence which
may otherwise be lost or destroyed.

9. On the other hand, where a
nomination paper has been rejected, we
are of the view that the interference of the
Court
under
Article
226
of
the
Constitution would not be warranted since
the bar under Article 329 (b) would
clearly apply. The only manner in which
the election can be challenged is by
means of presenting an election petition
after the declaration of the results where,
as we have already noted, one of the
grounds can be that a nomination paper
has been improperly rejected.

10. A Constitution Bench of the
Supreme Court in N.P. Ponnuswami vs.
Returning Officer and others2 held that
the jurisdiction of the High Court under
Article 226 of the Constitution should not
be invoked to question the election to
either House of Parliament and the
observations are as follows:

"The law of elections in India does
not contemplate that there should be two
attacks on matters connected with election
proceedings, one while they are going on
by invoking the extraordinary jurisdiction
of the High Court under Art. 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 election
petition."

11. This decision was followed by
the Supreme Court in Manda Jaganath vs.
K.S. Rathnam and others3 and the
observations of the Supreme Court are
thus:

"12. In our opinion, whether the
Returning Officer is justified in rejecting
this Form B submitted by the first
respondent herein or not, is not a matter
for the High Court to decide in the
exercise of its writ jurisdiction. This issue
should be agitated by an aggrieved party
in an election petition only.
600 INDIAN LAW REPORTS ALLAHABAD SERIES

13. It is to be seen that under Article
329(b) of the Constitution of India there is
a
specific
prohibition
against
any
challenge to an election either to the
Houses of Parliament or to the Houses of
Legislature of the State except by an
election
petition
presented
to
such
authority and in such manner as may be
provided for in a law made by the
appropriate legislature. Parliament has by
enacting the Representation of the People
Act, 1951 provided for such a forum for
questioning such elections hence, under
Article 329(b) no forum other than such
forum constituted under the RP Act can
entertain a complaint against any election.

14. The word "election" has been
judicially defined by various authorities
of this Court to mean any and every act
taken by the competent authority after the
publication of the election notification.

..................... 23. The next argument of
learned counsel for the respondent is that as
per the provisions of section 36 of the
Representation of the People Act, Rule 4 of
the Conduct of Elections Rules, 1961 and
clause
13
of
the
Election
Symbols
(Reservation and Allotment) Order, 1968,
the omissions found by the Returning Officer
in Form B filed by the respondent herein are
all curable irregularities and are not defects
of substantial nature, calling for rejection of
the nomination paper. We think these
arguments based on the provisions of the
statutes, rules and orders are all arguments
which can be addressed in a properly
constituted election petition, if need be, and
cannot be a ground for setting aside the order
of the Returning Officer which is prima facie
just and proper, in our opinion."

12. For these reasons, we are not
inclined to entertain the petition. The
petition is, accordingly, dismissed. There
shall be no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2014

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No.19288 of 2014

Shambhoo Narain Yadav & Anr. Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.M. Misra

Counsel for the Respondents:
C.S.C., Sri B.P. Singh, Sri Shiv Nath
Singh,Sri Rajesh Kumar

Societies Registration Act, 1860-Section
25(i)- Power of prescribed authority-to
decide
controversy-through
summary
proceeding and take final decision-no
authority to pass interim order-in absence
of statutory provision-order granting stayheld-without jurisdiction-quashed.

Held: Para-16
In the present case reference was made
under section 25(1) of the 'Act 1860' by a
member. The Prescribed Authority on the
reference itself has passed an exparte and
cryptic order staying the operation of the
order passed by the Assistant Registrar
dated 23.1.2014 and 6.3.2014. In absence
of power to grant an interim order, the
order of the Prescribed Authority is without
jurisdiction. It is liable to be set aside.
Accordingly, it is set aside.

Case Law discussed:
1982 UPLBEC 82; (1994) 4 SCC 225.

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)