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Allahabad High Court · body

2001 DIGILAW 295 (ALL)

ATIQUE AHMAD v. ELECTION COMMISSION OF INDIA

2001-03-28

JAGDISH BHALLA, S.K.SEN

body2001
S. K. SEN, C. J. ( 1 ) IN the instant writ petition, the writ petitioner who is a sitting M. L. A. and is detained in Central Jail Naini, District Allahabad, had prayed for following reliefs :1. Issue a suitable writ order or direction calling for records and quashing the notification for election schedule to be held on 7/04/2001 for Legislative Assembly U. P. from Hydergarh Constituency in District Barabanki. ORAlternatively suitable arrangement by means of order or direction in the nature of writ be issued so that the petitioner may contest the election as a candidate from the aforesaid Hydergarh Constituency in District Barabanki. ii. to issue any other writ order or direction to which this Honble Court may deem fit and proper in the circumstances of the case. iii. To award cost of the petition to the petitioner. ( 2 ) THE short facts involved in this writ petition, inter alia, are that on 17/03/2001 the petitioner submitted his application through Superintendent, Central Jail Naini, Allahabad to the Chief Judicial Magistrate, Allahabad that he may be permitted to file his nomination paper as a Candidate from the Hydergarh Assembly Constituency and necessary arrangements in this connection may be made well within time, so that he may be in a position to file his nomination paper within the time fixed by the Election Commission. It is the contention of the petitioner that the facts mentioned in the report of the district Magistrate addressing to the Chief Judicial Magistrate, Allahabad were communicated to him at 11. 30 a. m. on 19th March, 2001 in the Jail through Superintendent, Central Jail Naini, Allahabad wherein it was mentioned that according to the Election Laws of Legislative Assembly, it is not necessary for any candidate to be personally present before the Returning Officer for filing his nomination paper and it can be filed through his election agent. It was also mentioned in the said report that the declaration or affidavit which is required to be filed in the process of nomination can be performed before the Superintendent, Central Jail Naini, Allahabad and, therefore, it is not necessary that the petitioner should be sent to Hydergarh for filing nomination paper. It was also mentioned in the said report that the declaration or affidavit which is required to be filed in the process of nomination can be performed before the Superintendent, Central Jail Naini, Allahabad and, therefore, it is not necessary that the petitioner should be sent to Hydergarh for filing nomination paper. It has also been averred in the writ petitioner that the petitioner again requested to the District Magistrate, Allahabad through Superintendent, Central Jail Naini that he should be transported to Hydergarh so that he may be in a position to complete the necessary formalities and present his nomination paper before the Returning Officer and Assistant Returning Officer Hydergarh Assembly Constituency before 1500 hours on 19th March, 2001. On 19th March, 2001 on the petitioners application, the Chief Judicial Magistrate, Allahabad passed an order to the effect that the District Magistrate should make arrangements so that the petitioner may be in a position to file his nomination paper in accordance with the provisions of Election Law within the time prescribed. In the said order, it was also mentioned that the said date being the last date, it was practically not possible for the petitioner to reach Hydergarh before the specified time for filing the nomination paper, the District Administration may make arrangements for taking steps for filing nomination paper. It was also mentioned that it would not be possible for the proposers to reach Central Jail Naini, Allahabad by that time from Hydergarh. ( 3 ) MR. Daya Shanker Mishra, and Mr. S. M. A. Kazmi, learned Advocates for the petitioner, vehemently contended that the petitioner had moved application through the Superintendent, Central Jail, Naini, Allahabad to the Chief Judicial Magistrate, Allahabad, who is the competent authority, and the District Magistrate, Allahabad should have made all arrangements for filing nomination papers so that the same could have been filed by the writ petitioner on 19th March, 2001 itself which was the last date for filing nomination paper but because of the failure of the Administration, the petitioner should not be made to suffer. It has been strenuously contended by the learned Advocates for the writ petitioner that the petitioner has a legal obligation to file affidavit but he was not given opportunity sparing him to file his nomination paper. It has been strenuously contended by the learned Advocates for the writ petitioner that the petitioner has a legal obligation to file affidavit but he was not given opportunity sparing him to file his nomination paper. Being aggrieved, as the petitioner has no other alternative remedy, he filed this writ petition under Article 226 of the Constitution of India. ( 4 ) MR. R. P. Goel, learned Advocate General on behalf of the State of U. P. has raised the question of maintainability of this writ petition referring Article 239 of the Constitution of India and submitted that since the election process has already started the same shall not be called in question except by an election petition as there is bar for interference by Courts in electoral matters. ( 5 ) SRI Ashok Nigam, learned Advocate appearing for Election Commission of India, respondent No. 1, has also raised question of maintainability of this writ petition and citing various decisions, submitted that in the facts and circumstances of the case, this writ petition is not maintainable. He has also submitted that for submitting nomination paper it is not necessary for the writ petitioner to be present at the place from where he intends to contest the election. He could file his nomination paper through his election agent or any one authorised by him. He has also referred Section 33 of the Representation of the People Act, 1951 and has also referred to Clause 2 (a) of the notification issued by the Election Commission of India, New Delhi dated 18/03/1968, which is as under :"2. Notwithstanding anything contained in paragraph 1, in pursuance of clause (a) of the said Section 4, the election Commission hereby also authorises as the person before whom the candidate may make and subscribe the said oath or affirmation. (a) Where the candidate is confined in a prison, the Superintendent of the prison. " ( 6 ) WE have considered the submissions made by learned Advocates on behalf of the petitioner and learned Advocates for respondents. ( 7 ) THERE cannot be any dispute that the election process has already started with the publication of the notification. The Notification was issued on 12/03/2001, last date for filing nomination paper was 19th March, 2001 and the last date for withdrawal of nomination was 22/03/2001 etc. ( 7 ) THERE cannot be any dispute that the election process has already started with the publication of the notification. The Notification was issued on 12/03/2001, last date for filing nomination paper was 19th March, 2001 and the last date for withdrawal of nomination was 22/03/2001 etc. It is well settled that if the election process has started the only course open is to file an election petition, and the Court has no power to interfere with the election process. In this connection Article 329 of the Constitution of India may be taken noote of which is set out hereinbelow :"329. 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 327 or Article 328, shall not be called in question in any Court; (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. " ( 8 ) WE also take note of the following decisions in this connection : (i) AIR 1952 SC 64 (N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem distt. wherein it has been held as under :-" (9) The question now arises whether the law of elections in this country contemplates 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 Article 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. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, 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 an intermediate stage before any Court. It seems to me that under the election law, the only significance which the rejection of a nomination paper consists is the fact that it can be used as a ground to call the election in question. Article 329 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art. 329 (b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the constitution could not have contenplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it. "honble Supreme Court arrived at the following conclusions :-"16. The conclusions which I have arrived at may be summed up briefly as follows :-1. Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. 2. 2. In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election" and if any irregularities are committed while it is in progress and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress. " (ii) AIR 1978 SC 851 (Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi ). In this case the counting of ballot papers from the ballot boxes had been completed and the postal ballots were being counted when the process of counting was aborted by mob violence, the ballot papers were destroyed, the ballot boxes were also done away with and the returning officer was terrified in to postponing the declaration of the result. The Election Commission thereafter cancelled the election of the whole constituency and directed for repoll. Aggrieved against the said order of the Election Commission, one of the candidates approached the High Court by filing a writ petition contending, inter alia, therein that had the election not been cancelled he would have been elected and thus he had been deprived of his hard-won victory by the arbitrary action of the Commission. The High Court dismissed the writ petition on the ground that such a proceeding is constitutionally out of bounds for any Court, having regard to the mandatory embargo in Art. 329 (b ). In that case one of the questions raised before the Apex Court was (Paras 17 and 30) :"is Article 329 (b) a blanket ban on all manner of questions which may have impact on the ultimate result of the election, arising between two temporal termini, viz. , the notification by the President calling for the election and the declaration of the result by the Returning Officer. , the notification by the President calling for the election and the declaration of the result by the Returning Officer. Is Article 26 also covered by this embargo and if so, is Section 100 broad enough to accommodate every kind of objection, constitutional, legal or factual, which may have the result of invalidation of an election and the declaration of the petitioner as the returned candidate and direct the organization of any steps necessary to give full relief?the Apex Court held as under :-"the plenary bar of Article 329 (b) rests on two principles: (1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other forum, the right and remedy being creatures of statutes and controlled by the Constitution. "the Apex Court while placing reliance on the case of N. P. Ponnuaswami v. Returning Officer Namakkal (supra) dismissed the appeal and observed as under :-"91. For this limited purpose, we set down our holdings : (a) Article 329 (b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. (b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate. " (emphasis supplied ). " (iii) In the case of Lakshmi Charan Sen v. A. K. M. Hassan Uzzaman, AIR 1985 SC 1233 (para 20 ). ". . . . . . . . . . . . . . . . . . the fact that certain claims and objections are not finally disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. " (iv) AIR 1988 SC 81 (The Election Commission of India v. Shivaji ). The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. " (iv) AIR 1988 SC 81 (The Election Commission of India v. Shivaji ). In this case the validity of the notification issued by the Election Commission on 18/09/1987 was challenged by filing a writ petition under Article 226 of the Constitution before the Bombay High Court on the ground that the notification was invalid because the Zila Parishads of Latur district which were within the constituency had not been constituted and the Administrators were appointed to run the said Zila Parishad and therefore the members of the said Zila Parishads who were entitled to take part in the said election had been deprived of their right to participate in the said election. The last date for withdrawal of nomination papers was 28/09/1987. On 26/09/1987 learned single Judge of the Bombay High Court (Aurangabad Bench) passed an interim order exparte directing the postponement of the last date of withdrawal of the candidatures from 28/09/198 7/10/1987. Thereafter a Division Bench of the Bombay High Court heard the writ petition on 1/10/1987 and dismissed the same on the same day. Thereafter the Election Commission notified fresh dates. The Bombay High Court on a review petition filed in the earlier writ petition stayed the election till further orders and fixed 26/10/1987 for hearing. On these facts the Honble Supreme Court observed as under :-"we are very much disturbed by the manner in which the High Court of Bombay (Aurangabad Bench) has interfered not once but twice with the process of election which was being held under the provisions of the Representation of the People Act, 1951 (hereinafter referred to as the Act) to the Legislative Council of the State of Maharashtra from the Osmanabad-cum-Latur-cum-Beed Local Authorities Constituency. ""in para-6 the Honble Court further observed as under :-Looking to the mandatory provisions of S. 30 of the Representation of the People Act the High Court failed to recall to its mind that it was not its concern under Art. 226 of the Constitution to rectify any error even if there was an error committed in the process of election at any stage prior to the declaration of the result of the election notwithstanding the fact that the error in question related to a mandatory provision of the statute relating to the conduct of the election. "in para -7 the Honble Court further observed as under :-"the High Court was in error in thinking that it alone had the exclusive power to protect the democracy. The success of democracy is dependent upon the co-operation of the Legislature, the Executive, the Judiciary, the Election Commission, the Press, the political parties and above all the citizenry and each of them discharging the duties assigned to it. Every member of the body politic should play his legitimate role for the success of the democracy. Sometimes the success of democracy also depends upon the observance of restraint on the part of the constitutional functionaries. " (v) " (1996) 6 SCC 303 , Anugrah Narain Singh v. State of U. P. In this case the Honble Supreme Court held that in terms of Article 243-ZG of the Constitution there is complete and absolute bar in considering the matter relating to municipal election on any ground whatsoever after the publication of the notification for holding municipal election. The bar imposed by Article 243-ZG is twofold. Validity of laws relating to delimination and allotment of seats made under Article 243-ZA cannot be questioned in any Court. No election to a municipality can be questioned except by an election petition. Moreover, it is well settled by now that if the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done no election will ever take place because someone or the other will always find some exccuse to move the Court and stall the elections. Moreover, it is well settled by now that if the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done no election will ever take place because someone or the other will always find some exccuse to move the Court and stall the elections. "" (vi) In Dharti Pakar Madan Lal Agarwal v. K. R. Narayanan, (1997) 8 SCC 766 : ( AIR 1998 SC 1462 ) it has been held by the Honble Supreme Court that even a composite petition described as election petition-cum-writ petition is not maintainable. " ( 9 ) CONSIDERING the decisions noted above, we have no hesitation in holding that the instant writ petition is not maintainable. That apart, we are of the view that the writ petition has no merit also. It is not necessary for the writ petitioner to be present personally for filing nomination paper but what is more important is that the proposer has to be nominate the candidate in terms of Form 2b and Rule 4 Schedule of Conduct of Elections Rules, 1961. The writ petitioner being not a representative of a recognised political party, requires ten proposers to fill up the FORM. There is no averment in the writ petition disclosing the names of the proposers who have filled up such forms. Section 33 (1) of Representation of the People Act, 1951 provides as under :33. Presentation of nomination paper and requirements for a valid nomination - (1) On or before the date appointed under clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the house of election Oclock in the forenoon and three Oclock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the Constituency as proposer :provided that a Candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency :provided further that no nominatin paper shall be delivered to the Returning Officer on a day which is a public holiday. Provided also that in the case of local authorities constituency, graduates constituency or teachers constituency, the reference to an elector of the constituency as proposer shall be construed as a reference to ten percent of the electors of the constituency or ten such electors, whichever is less as proposers.) ( 10 ) IT is clear from the said Section 33 of the Representation of the People Act, 1951 that a candidate either in person or by his proposer on or before the date appointed under clause (a) of Section 30, within the period specified in the said subscription of sub-section (1) of Section 38 may deliver to the returning officer at the place specified, in this behalf in the notice issued under Section 31, a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. It was, therefore, not necessary for the writ petitioner to personally reach the place and to fill up the nomination paper. The nomination paper could have been filed through his proposer. On the question of affidavit, which was required to be filed, it is clear from the notification issued by Election Commission of India dated 18/03/1968 that where a candidate for election is confined in a prison he may make and subscribe the oath or affirmation in the prescribed form set out for the purpose before the Superintendent of the Prison. Therefore, in our view, there was really no difficulty for the writ petitioner to file his nomination paper according to law on the date specified in the Gazette dated 18/03/2001 whrerein it was fixed 19th March, 2001 as the last date for filing of nomination paper. ( 11 ) IN the result, we do not find any merit in the writ petition. The writ petition fails, both on the grounds of maintainability as well as on merit. ( 12 ) THE writ petition is accordingly dismissed. However, there shall be no order as to costs. Petition dismissed.