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1993 DIGILAW 380 (GUJ)

Madhubhai Jaliabhai Bhai v. T. N. Sheshan

1993-08-16

A.P.RAVANI, C.V.JANI

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A. P. RAVANI, J. ( 1 ) THE petitioners are members of the Stale Legislative Assembly of gujarat and they are voters for the purpose of biennial election to the Council of State (Rajya Sabha) from the State of Gujarat. The pelitioners challenge the legality and validity of notification annexure-A dated August 2, 1993 issued by the Election commission of India by which the date of biennial election to the Council of States of members from the State of Gujarat is changed. By the said notification the date of poll- 6th August, 1993 - has been shifted to 18th December, 1993, and the date of completion of election which was 10th August, 1993 has been shifted to 22nd December, 1993. The petitioners also pray that the order dated 2nd August, 1993 passed by the Election commission of India, produced at annexure-H to the petition, in which detailed reasons for issuing the notifications have been mentioned be also quashed and set aside. The petitioners pray that the provisions of section 39 and section 153 of the Representation of the People Act, 1951 be declared unconstitutional and ultra vires being violative of articles 14 and 19 of the Constitution of India. ( 2 ) ON August 5, 1993 the petition was moved by way of urgent circulation. This court ordered to issue Rule and furhter directed to issue notice to the other side as to hearing of interim relief. The notice was made returnable on August 7, 1993. On August 7, 1993 hearing of interim relief took place. This Court heard the learned advocates appearing for the parties, and after taking into consideration the pursis submitted by the state Government of Gujarat arid after taking into consideration other relevant facts and circumstances of the case requested the Election Commission to reconsider its decision of shifting the date of poll from 6th August, 1993 to 18th December. 1993 and the date of completion of election from 10th August, 1993 of 22nd December, 1993 The Court further requested that the schedule of election be refixed so as to complete the election process latest by August 17, 1993. The Court made it clear that the request made to respondents No. 1 and 2 was not to be treated as a relevant circumstance while considering the question about the jurisdiction of this Court to entertain the petition under Article 226 of the Conslitiution of India. The Court made it clear that the request made to respondents No. 1 and 2 was not to be treated as a relevant circumstance while considering the question about the jurisdiction of this Court to entertain the petition under Article 226 of the Conslitiution of India. The question with regard to the maintainability of the petition under Article 226 of the Constitution of India was kept open and it was to be decided by the Court without in any way being infludenced by the said order. ( 3 ) THEREAFTER, the petition was called out on August 9,1993. At the request of the learned counsel appearing for respondents No. 1 and 2. i. e. the Chief Election commissioner of India and the Election Commission of India, hearing of the petition was adjourned to August 16,1993. ( 4 ) TODAY when the petition came up for hearing, learned counsel for the petitioners has placed on record a copy of the order passed by the Honble Supreme Court of India in writ petition No. 60s of 1993 and other companion matters. It appears that the Election commission of India had preferred a transfer petition before the Honble Supreme Court of India as arising out of the order passed by this Court on August 7,1993 in this petition. The Honble Supreme Court has observed as follows:"vii. Transfer petition No. (unnumbered ). . /93 (Arising out of the order dated 7th August, 1993 in SCA No. 7881 of 1993 of the High Cort of Gujarat: by this transfer petition the Election Commission seeks to have SCA No. . 7881 of 1993 on the file of the High Court of Gujarat - (Madhu Bhai vs. T. N. Seshan) Withdrawn to this Court. We have perused the orders made by the High Court of Gujarat in the wirt petition. The High Court, if we may say so with respect, has acted with great restraint and cricumspection. It has requested the Election Commission, in view of its high constitutional position, to resolve the matter in a satisfactory manner. There is an equally reassuring response from the Election Commission that ti would endeavour to resolve the matter before the 13th August, 1993 and make an appropriate submission before the High Court. In view of the way the matter is preceded with by the High Court, there is no justification, for interference with the proceedings before the High Court. There is an equally reassuring response from the Election Commission that ti would endeavour to resolve the matter before the 13th August, 1993 and make an appropriate submission before the High Court. In view of the way the matter is preceded with by the High Court, there is no justification, for interference with the proceedings before the High Court. Parties may make further submissions in this behalf before the High Court. We dismiss the Transfer Petition. " ( 5 ) LEARNED counsel for the respodnets No. 1 and 2 has placed on record a notification dated August 11,1993 issued by the Election Commission of India. In this notification it is inter alia stated as follows:"and AWHEREAS, the High Court of Judicature at Ahmedabad, in special Civil Application. No. 7881 of 1993 (Madhubhai Jaliabhia Bhoi and others vs. Shri T. N. Sheshan and others), has Vide its order dated 7th August, 1993 observed that it was of the opinion that it could be better to request respondent No. l and 2 to reconsider the. decision of substituting 6th August, 1993 by 18th December, 1993 and 10th August, 1993 by 22nd December, 1993 in the Commissions notification dated 20th July, 1993; and WHEREAS the Commission vide its communication No. 509/72/93-J. S. I. . decision of substituting 6th August, 1993 by 18th December, 1993 and 10th August, 1993 by 22nd December, 1993 in the Commissions notification dated 20th July, 1993; and WHEREAS the Commission vide its communication No. 509/72/93-J. S. I. . , dated 8th August 1993 informed its Advocate at Ahmedabad that it may be prayed before the High Court of Gujarat that it may be pleased to adjourn the matter to 14th August, 1993 or such later date, as may be convenient to the High Court; and WHEREAS, the High Court adjourned on the 9th August, 1993 the hearing to 16th August, 1993 ; and WHEREAS, the Honourable High Court has heard the case on three occasions and has been pleased not to pass any interim order; and WHEREAS, the Election Commission has moved a Transfer petition before the Honble Supreme Court on 10th August, 1993 ; and WHEREAS, the Election Commission has on 10th August, 1993 filed writ petition No. 606 of 1993 (Election Commission of India vs. Union of India and others) before the Supreme Court seeking final and binding decision of the Supreme Court oil the issue raised in the Commissions aforesaid order dated 2nd August, 1993 relating to tis powers under Article 324 of the Constitution read with section 13a and section 13cc of the representation of the People Act, 1950 and section 28a of the Representation of the People Act, 1951 in the matter of availability of staff, including Central and State police forces, to it for discharge of its constitutional functions and its disciplinary control over such staff and other connected matters ; and WHEREAS, the Supreme Court has been pleased to admit the said writ petition No. 606 of 1993 and issue notice to the Advocates general of all States; and WHEREAS, notice on the Transfer petition moved by the election Commission have been issued by the Suprme Court on 10th August, 1993; and WHEREAS, in view of the fact that no order has been passed by any court so far, interfering with the Commissions notification No. 318/gj/93 (1) dated 2nd August, 1993 the Commissions Notification No. 318/gj/93 (1) dated 20th July, 1993 is in force and consequently the poll for the said biennial election to the Council of States by elected members of the gujarat Legislative Assembly thus stands scheduled to be taken on the 18th december 1993; and WHEREAS, it is and has always been the endeavour of the election Commission to hold all elections to Parliament and to the Legislature of every State as expeditiously as possible so that the electors, are enabled to choose their representatives to the Houses concerned with least unavoidable delay; and WHEREAS, in keeping with its above avowed intention, the election Commission has decided to advance the date of poll from 18th december, 1993 to an earlier date; and WHEREAS, while so advancing the date of poll, the commission has to provide reasonable time to the contesting candidates and political parties to conduct thier election campaigns effectively, and also to the resturning Officer and other authorities concerned for making the required arrangements for conducting peaceful, free and fair election; now, THEREFORE, the Election Commission has, after taking into account all relevant considerations, decided that the poll for the said biennial election to the council of states by members of the Gujarat Legislative assembly shall be taken on the 17th August, 1993, instead of 18th December, 1993, and consequently the Commission hereby-- -. (a) rescinds its notification No. 318/gj/93/ (1) dated 2nd August, 1993 ; and (2) directs that in its notification No. 318/gj/93 (1) dated the 20th July, 1993, for clauses (d) and (e) the following clauses shall be respectively substituted:- " (d) 17th August, 1993 (Tusesday), as the date on which a poll shall, if necessary, be taken; and (e) 21st August, 1993 (Saturday), as the date before which the election shall be completed. " ( 6 ) IN view of the aforesaid developments, learned counsel for the petitioner seeks permission to withdraw the petition. Permission granted. Disposed of as withdranw Rule discharged. .