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2000 DIGILAW 1168 (RAJ)

O. P. Gupta* v. Union of India

2000-09-14

A.R.LAKSHMANAN, P.P.NAOLEKAR

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Honble LAKSHMANAN, CJ.–The appellant is presently working as Branch Manager, Industrial Estate, State Bank of Bikaner and Jaipur at Bharatpur. He filed the present writ petition; (a) to call for the records and to issue direction to the respondent No.4 to implement the D.O. letter/communication/Circular dated 24.8.1992 and 24.2.1993; (b) to declare the respondents No. 5 to 8 as ineligible to contest and participate in election for the post of office bearers in Triennial Election 2000 - 2003 of Associate Banks Officers Association Unit State Bank of Bikaner and Jaipur; (c) to declare the election Circular No. 2/2000 dated, 3.8.2000 and list of final nomination received on 10.8.2000, as illegal, arbitrary and to quash the same and for other consequential reliefs. (2). It is the case of the appellant-petitioner that the contesting respondents are not entitled to file nomination and the contest to election for Triennial Election, 2000-2003. He has also raised other contentions questioning the election. The appellant states that the entire election process is totally illegal and in such circumstances, the entire election is liable to be vitiated, quashed and set aside. (3). Reply was filed on behalf of respondent No. 8 to the Writ Petition. The respondents questioned the maintainability of the writ petition under Article 228 of the Constitution of India and that respondent No. 4, who is a Returning Officer in the matter of election of Associate Banks Officers Associations, Unit State Bank of Bikaner and Jaipur, is not a statutory authority nor an authority or State functionary and, therefore, no writ petition under Article 226 is maintainable. It is also submitted that the election dispute cannot be a subject matter of writ petition and that the person aggrieved by an election process starting from the notification calling upon the Association to elect office bearers and culminating in the candidate being elected, is required to wait till the result is declared and then the election of the returned candidate could be avoided by a civil action by filing a suit or an election petition. It is also submitted that proper and necessary parties have not been impleaded as party to the writ petition and that the petitioner having participated in the election process is not competent to challenge the election and the election process and he is thus, estopped to make any grievance through the Writ Petition: (4). It is also submitted that proper and necessary parties have not been impleaded as party to the writ petition and that the petitioner having participated in the election process is not competent to challenge the election and the election process and he is thus, estopped to make any grievance through the Writ Petition: (4). The writ petition was heard and dismissed by the learned Single Judge of this Court on 29.8.2000. Being aggrieved, the writ petitioner filed the above Civil Special Appeal. (5). Learned counsel appearing for the appellant reiterated the contentions raised in the appeal. Mr. Paras Kuhad, learned counsel appearing for the respondents, in the arguments questioned the maintainability of the writ petition at the instance of the petitioner-appellant who participated in the election process. According to Mr. Kuhad, the appellant is estopped to make any grievance through the writ petition. (6). Mr. Kuhad, learned counsel for the respondents, is right in his submission. The writ petition has been directed against respondent No. 4 to implement the D.O. letter/communication dated 24.8.92 and 24.2.93, whereby it has been prayed that a direction be issued to respondent No. 4 to implement the said D.O. letter/communication as pointed out by the learned counsel for the respondents; respondent No. 4 is not a statutory authority and is merely a Returning Officer and an ordinary person against whom no writ petition under Article 226 of the Constitution is maintainable. (7). It is seen from the record that the writ petition has been filed with reference to an election of an Association, a Trade Union registered under the Trade Union registered under the Trade Unions Act. It is settled by a catena of decisions that an election of an Association is a matter of internal management of Association wherein no fundamental right or legal right of the appellant-petitioner is involved and consequently, the appellant petitioner cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India. It is also settled by many rulings of the Apex Court that the word `election comprehends the entire process starting from the notification calling upon the Association to elect the office bearers and culminating in the candidate being declared elected. A person aggrieved by any election process is expected to wait till the election results are announced and then challenge the same by filing a suit or an election petition. A person aggrieved by any election process is expected to wait till the election results are announced and then challenge the same by filing a suit or an election petition. This proposition of law has been laid down by the Honble Supreme Court in the case of N.P. Ponnuswami vs. The Returning Officer Namakkal Constituency, Mamakkal, Salem (1). In the said decision, the Supreme Court has held: ``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. (8). It was held that the provisions of the Representation of People Act provides for only remedy and that remedy being an election petition to be presented after election is over and there is no remedy provided at any intermediate stage. (9). In Election Commission of India vs. Shivaji and others (2), the meaning of the word ``election, process of election etc. were construed by the Supreme Court. The Supreme Court held that in view of the non-obstante clause contained in Article 329 of the Constitution, the power of the High Court to entertain a petition questioning an election on whatever grounds under Article 226 of the Constitution is taken away. The word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which Article 329 (b) occurs. Relying on the judgment in N.P. Ponnuswamis case (supra), the Supreme Court held that the scheme of Part-XV of the Constitution and the Act seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court. (10). In our view, if there was any ground relating to the non- compliance with the provisions of the Election Regulations of the Bank on which the validity of any election process could be questioned, the appellant-petitioner, who claims to be interested in questioning the election, has to wait till the election is over and institute a petition in accordance with the Regulations calling in question the election of the successful candidate but not earlier than the date of election. (11). (11). Our above view has also been re-affirmed by the Supreme Court in Lakshmi Charan Sen vs. A.K.M. Hassan Uzzaman (3). If there was any such error committed in the course of the election process the Election Commission had the authority to set it right by virtue of the power vested in them. (12). In the State of Karnataka and Others vs. Gunjahalli Nagappa and others (4), the Supreme Court has held that, once the calendar of events in published and the election process has begun, it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. (13). In a very recent pronouncement, the Honble Supreme Court has interpreted the term ``election to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result and that 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 by such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The bench comprising of Honble Chief Justice Dr. A.S. Anand, Honble Mr. Justice R.C. Lahoti and Honble Mr. Justice K.G. Balakrishnan has pointed out that, if an election is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of `judicial remedy by writ petition has to be postponed till after the completing of proceedings in an election. The Bench has further observed that, ``any decision sought and rendered will not amount to `calling in question an election if it subserves the progress of the election and facilitate the completion of the election and anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election, the Bench added. (14). Speaking for the Bench, the Honble Mr. Justice R.C. Lahoti set aside an interim order made by the Kerala High Court which directed the Election Commission of India and the Chief Election Officer to make directions in such a way that `counting of the votes was `conducted booth-wise consistently with the guidelines. (15). (14). Speaking for the Bench, the Honble Mr. Justice R.C. Lahoti set aside an interim order made by the Kerala High Court which directed the Election Commission of India and the Chief Election Officer to make directions in such a way that `counting of the votes was `conducted booth-wise consistently with the guidelines. (15). In the above case, the Kerala High Court passed the impugned order on two related writ petitions challenging a notification made by the Election Commission which excepted two parliamentary constituencies where poll was done with the aid of voting machines in the manner of counting of votes by mixing of ballot papers. The Apex Court on a plea from the Election Commission stayed the impugned order of the High Court and ultimately, on scrutiny of the pleadings, had observed that the petitioners had failed to make out a case for intervention by the High Court amidst the progress of election proceedings and hence, the Court ought not to have made the interim order under appeal though the impugned order did not have the effect of retarding, protracting, delaying or stalling the counting of votes or the progress of election proceedings. Referring to the pre-cautions to be taken by the High Courts, the Supreme Court has observed that care has to be taken to see that there is no attempt to utilise the Courts indulgence by filing a petition out-wardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. (16). In view of above discussion, the Special Appeal fails and is hereby dismissed. No order as to costs.