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2000 DIGILAW 899 (ALL)

RAVINDRA PAL v. STATE OF UTTAR PRADESH

2000-07-11

R.P.NIGAM, S.H.A.RAZA

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S. H. A. RAZA AND R. P. NIGAM, JJ. ( 1 ) THE main grievance of the petitioner appears to be is that although his nomination was accepted for the general seat and he contested the election and thereafter, votes were counted, but before declaration of the result, the election was countermanded by the State Election commissioner. ( 2 ) SRI R. C. Gupta, learned counsel appearing on behalf of State Election Commission submitted that the seat was for which the nomination of the petitioner was accepted was a reserved seat and the petitioner could have not filed his nomination for that seat, as he belonged to forward caste and for that reason, the election was countermanded. ( 3 ) THE superintendence, direction and control of the preparation of the electoral rolls for, and conduct of, all elections of the panchayat is vested only in the State Election Commission, consisting of State Election Commissioner as provided under Article 243k of the Constitution of india. ( 4 ) SIMILARLY superintendence, direction and control of the preparation of the electoral rolls for, and conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution is vested in the election Commission under Articles 324 of the Constitution of India. ( 5 ) A bare perusal of both the Articles would indicate that the language and tenor of both the articles are identical. The Election Commissioner under the scheme of the Constitution is vested with vast power in all the matters pertaining to conduct of the election. His decision cannot be assailed, if he has acted in accordance with the provisions of the Constitution or any law framed by the Legislature. If he transgresses his authority against the law, enacted by Legislature or acts in colourable exercise of power, the Court may interfere. In no other case, his decision can be called in question. In Mohinder Singh Gill and another v. Chief Election Commissioner and others. AIR 1978 SC 851 , while dealing with the power of the Chief Election Commissioner, honble Supreme Court held that the Election Commission is competent in any appropriate case to order re-poll of the entire constituency were necessary. It will be an exercise of power within the ambit of function, under Article 324 of the Constitution of India. AIR 1978 SC 851 , while dealing with the power of the Chief Election Commissioner, honble Supreme Court held that the Election Commission is competent in any appropriate case to order re-poll of the entire constituency were necessary. It will be an exercise of power within the ambit of function, under Article 324 of the Constitution of India. ( 6 ) IT was vehemently argued by Sri B. N. Shriwal an eminent lawyer of this Court that the constituency from which the petitioner contested was declared as a general seat, but said order was not circulated. The argument of Shriwal is that revolves around the proposition that if the authorities have acted illegally and they prepeturated certain illegalities and irregularities, even then the State Election Commissioner was bound to declare the result and should not have countermanded the election. The argument is misconceived, for the reason that when the constitution has vested vide power to the State Election Commissioner, he could countermand the election and order for re-poll situation. Any challenge against the order passed by the State election Commissioner by means of present writ petition cannot be sustained. In that regard, the constitutional Bench in Mohinder Singh Gill and another v. Chief Election Commissioner and others, laid down the following proposition in para 112 of the report which is reproduced as under : "112. The important question that arises for consideration is as to the amplitude of powers and the width of the functions which the Election Commission may exercise under Article 324 of the constitution. According to Mr. Rao, appearing on behalf of the appellants, there is no question of exercising any powers under Article 324 of the Constitution which, in terms, refers to "functions" under sub-article (6 ). We are, however, unable to accept this submission since functions include powers as well as duties (see Strouds Judicial Dictionary, P. 1196 ). It is incomprehensible that a person or body can discharge any functions without exercising powers. Powers and duties are integrated with function. It is further observed in para 113 of the report :"that the Article 324 (1) vests in the Election Commission the 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. Article 324 (1) is thus couched in wide terms. Power in any democratic set-up, as is the pattern of our policy, is to be exercised in accordance with law. That is why Articles 327 and 328 provide for making of provisions with respect to all matters relating to or in connection with elections for the Union Legislatures and for the State legislatures respectively. When appropriate laws are made under Article 327 by Parliament as well as under Article 328 by the State Legislature the Commission has to act in confirmity with those laws and the other legal provisions made thereunder. Even so, both Articles 327 and 328 are "subject to the provisions" of the Constitution which Include Article 324 and Article 328. " since the conduct of all elections to the various legislative bodies and to the offices of the president and the Vice-President is vested under Article 324 (1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the commission, in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen, or anticipated with precision. That is why there is no hedging in Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules. That seems to be the raison detre for the opening clause in Articles 327 and 328 which leave the exercise of power under Article 324 operative and effective when it is reasonably called for in a vacuous area. There is, however, no doubt whatsoever that the Election Commission will have to conform to the existing laws and rules in exercising its power and performing its manifold duties for the conduct of free and fair elections. The Election Commission is a high powered and independent body which is irremovable from office except in accordance with the provisions of the Constitution relating to the removal of judges of the Supreme Court and is intended by the framers of the Constitution to be kept completely free from any pulls and pressures that may be brought through political influence in a democracy run on party system. Once the appointment is made by the President, the Election commission remains insulted from extraneous influences, and that cannot be achieved unless it has an amplitude of powers in the conduct of elections of course in accordance with the existing laws. But where these are absent, and yet a situation has to be tackled, the Chief Election commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently, in all matter relating to the conduct of elections, and see that the election process is completed properly, in a free and fair manner. "an express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty. That which is clearly implied is as much a part of a law as that which is expressed. " ( 7 ) THE provisions of Article 324 of the Constitution and under Article 243k of the Constitution cover the same field, hence power which the Election Commissioner can exercise can also be exercised by the State Election Commissioner, on receiving various report or complaints from the Returning Officer, etc. If the State Election Commissioner has countermanded the election, this Court cannot substitute its own opinion in place of view which has taken by the State election Commissioner, we are definitely of the opinion that the impugned order of the State election Commissioner cannot be subjected to Judicial Scrutiny of review. ( 8 ) IN view of these facts we are not Inclined to interfere, this writ petition, is accordingly, dismissed.