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2000 DIGILAW 900 (ALL)

SHIV SHANKAR DUBEY v. STATE ELECTION COMMISSION

2000-07-12

B.K.ROY, LAKSHMI BIHARI

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( 1 ) THE prayer of the petitioner is to quash the order dated 1-7-2000 passed by the State Election Commission, Uttar Pradesh (Respondent No. 1) deciding recounting of ballots of entire Ward No. 1, Sant Ravi Das Nagar under the supervision of the District Magistrate/district Election Officer (Panchayat), Sant Ravi Das Nagar, Observer of the Election Commission and Additional Collector/returning Officer, Sant Ravi Das Nagar. ( 2 ) A number of contentions were made by Sri A. Kumar, learned counsel appearing in support of the prayers made in this writ petition whereas on behalf of Respondent No. 5 Sri V. K. S. Chaudhary, learned Senior Counsel, apart from refuting those contentions contended that in view of the provision as contained in Article 243-O (b) of the Constitution of India this writ petition is not maintainable and be dismissed as such. In order to buttress this submission he placed strong reliance on a Division Bench decision of the Supreme Court in Anugrah Narain Singh v. State of U. P. , (1996) 6 SCC 303 holding Article 243-ZG as an absolute bar to entertainment of a petition under Article 226 of the Constitution of India and that Article 243-O being exactly word to word same as Article 243-ZG with an exception of use of the word panchayat in place of municipality and this declaration of law by the Supreme Court is binding on us. Sri B. D. Mandhyan, learned counsel appearing on behalf of the Election Commission also adopted the preliminary objection of Sri Chaudhary and relied upon on a Five Judges Bench decision of the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, AIR 1978 SC 851 . ( 3 ) SRI Kumar in reply contended that this writ petition is maintainable relying upon the Judgments in Mohinder Singh Gill (Supra) and K. Venkatachalam v. V. A. Swamickan, AIR 1999 SC 1723 . ( 4 ) IN our view the real question is as to whether this writ petition is maintainable in view of the bar created by Article 243-O of the Constitution of India? ( 4 ) IN our view the real question is as to whether this writ petition is maintainable in view of the bar created by Article 243-O of the Constitution of India? ( 5 ) ARTICLE 243-O of the Constitution of India reads thus :-"243-O. Bar to interference by Courts in electoral matters:- Notwithstanding anything in this Constitution- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-K, shall not be called in question in any Court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. (Emphasis supplied) ( 6 ) ARTICLE 243-ZG of the Constitution of India reads thus :-"243-ZG-BAR to interference by Courts in electoral matters:- Notwithstanding any thing in this Constitution- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made Article 243-ZA shall not be called in question in any Court; (b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. " (Emphasis supplied) ( 7 ) ON a bare perusal of the aforementioned two Articles it is crystal clear that they are pari materia with only this exception that the word panchayat has been substituted by the word municipality in the latter Article. Thus, the declaration of law made by the Supreme Court in relation to the subsequent Article shall govern the issue. ( 8 ) IT goes without saying that counting/recounting is a process of any election. Thus, the declaration of law made by the Supreme Court in relation to the subsequent Article shall govern the issue. ( 8 ) IT goes without saying that counting/recounting is a process of any election. In Anugrah Narain Singh v. State of U. P. , (1996) 6 SCC 303 (supra) while considering Article 226 of the Constitution vis-a-vis Article 243-ZG of the Constitution when the Principal Bench of our Court ordered stopping the election process of the Municipal Corporations it was held as follows :-"in terms of Article 243-ZG of the Constitution there is complete and absolute bar in considering any matter relating to municipal election on any ground whatsoever after the publication of the notification for holding municipal election. . . . . . . No election to a Municipality can be questioned except by an election petition. "we find that a similar view was taken by another Division Bench of the Supreme Court in Jaspal Singh Arora v. State of M. P. , (1998) 9 SCC 594 wherein the bar under Article 243-ZG (b) was upheld when the Madhya Pradesh High Court had proceeded to allow a writ petition. The repeated declarations by the Supreme Court interpreting Article 243-ZG are binding hand and foot on us. ( 9 ) THE judgments relied upon by Sri A. Kumar in Mohinder Singh Gills case ( AIR 1978 SC 851 ) and two Judges Division Bench judgment of the Supreme Court in K. Venkatachalams case ( AIR 1999 SC 1723 ) are no authority in not accepting the preliminary objection raised by Sri Chaudhary and Sri Mandhyan. So far as the judgment in K. Venkatachalam (Supra) relied upon by Sri Kumar is concerned, we do not find that the earlier two judgments of the Supreme Court in Anugrah Narain Singh ( 1996 (6) SCC 303 ) (Supra) and Jaspal Singh Arora ( 1998 (9) SCC 594 ) (Supra) were referred to therein. So far as the judgment in K. Venkatachalam (Supra) relied upon by Sri Kumar is concerned, we do not find that the earlier two judgments of the Supreme Court in Anugrah Narain Singh ( 1996 (6) SCC 303 ) (Supra) and Jaspal Singh Arora ( 1998 (9) SCC 594 ) (Supra) were referred to therein. ( 10 ) WE are thus of the considered view that in view of the provisions as contained in Article 243-O (b) of the Constitution of India the only remedy of the petitioner is to ventilate his grievances through an Election Petition and/or to move the Election Commission itself alleging violation of principles of natural justice or otherwise to satisfy the Election Commission that its order is fit to be revoked and/or rescinded in the interest of justice and not through this writ petition. ( 11 ) CONSEQUENTLY, we dismiss this writ petition as not maintainable. ( 12 ) BEFORE parting we clarify that we have deliberately not referred to the arguments on merits made by Sri Kumar and strongly refuted by Sri Chaudhary as according to us this writ petition had to be dismissed for the reason aforementioned. ( 13 ) NO cost. .