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2008 DIGILAW 438 (ALL)

P. C. SHARMA v. LALOO PRASAD YADAV

2008-02-26

PRADEEP KANT, RAJIV SHARMA

body2008
JUDGMENT Honble Pradeep Kant, J.—This petition by four petitioners, of whom three are the Advocates, have been filed in the nature of Public Interest Litigation (PIL) for issuance of a writ in the nature of quo warranto asking respondent No.1, Laloo Prasad Yadav, to explain under which authority he is holding the office of the Minister in the Union Government and also for quashing his appointment as such, after summoning the same from Union of India. A writ of prohibition has also been prayed restraining the respondent No.1 from functioning as Minister. Later on, by means of an amendment, a prayer for issuing a writ in the nature of mandamus commanding the respondents to restrain from giving effect to the provisions of Section 33 and Section 70 of the Representation of the People Act, 1951 and declare the same as unconstitutional, void and inoperative, on the ground that Parliament has no jurisdiction to enact these provisions, has been made. 2. The facts,which have given rise to the filing of the writ petition, are that after issuance of the notification for holding General Elections of House of the People, the respondent No.1 filed his nomination papers from two Lok Sabha constituencies, namely, Madhepura and Chhapra, both falling in the State of Bihar. The polling for these seats were held on 26.4.04. However, on the basis of some complaints of mass rigging and booth capturing in Chhapra constituency, the Election Commission of India countermanded the election of Chhapra constituency but the counting of votes of Madhepura took place and the respondent No. 1 was declared elected by the Election Officer, defeating his nearest rival Sri Sharad Yadav. The result was notified by the Election Commission of India on 17th May, 2004 in the official Gazette in which respondent No.1 was declared elected from Madhepura. 3. After declaration of the aforesaid result, respondent No.1 was appointed and administered oath of office and secrecy as a Minister by the President Sri A.P.J. Abdul Kalam on 22nd May, 2004, and was administered the oath of office of Member of Parliament from Madhepura. 4. The countermanded election of Chhapra Lok Sabha constituency was held on 31.5.2004 in which the respondent No. 1 was again declared elected on 2.6.2004 defeating his nearest rival Sri Rajiv Pratap Rudi. 4. The countermanded election of Chhapra Lok Sabha constituency was held on 31.5.2004 in which the respondent No. 1 was again declared elected on 2.6.2004 defeating his nearest rival Sri Rajiv Pratap Rudi. He was administered the oath as Member of Parliament from Chhapra Lok Sabha constituency on 15.6.04 and on the same day he resigned from Madhepura Lok Sabha seat and retained the Chhapra seat. 5. The argument of the petitioners is that the election of respondent No. 1 from Chhapra constituency is void ab initio, as on the date when he contested the election and when the result was declared, he was already a Member of Parliament from Madhepura Lok Sabha seat and was also administered the oath as Member of Parliament from Madhepura seat and was also appointed Minister on the aforesaid ground and was also administered the oath of office and secrecy. Further argument is that since respondent No.1 resigned his Madhepura seat and his election from Chhapra being void ab initio, he has no right or authority to continue as either Minister or a Member of Parliament from Chhapra constituency. 6. Article 101 of the Constitution deals about the disqualification of the Members and says that no person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other. 7. Sub-clause (2) of Article 101 says that no person shall be a member both of Parliament and of a House of the Legislature of a State and if a person is chosen a member both of Parliament and of a House of the Legislature of a State,then,at the expiration of such period as may be specified in rules, made by the President, that persons seat in Parliament shall become vacant, unless he has previously resigned his seat in the Legislature of the State. 8. 8. Article 102 deals with the disqualification from membership and lays down as under : "Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament— (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent Court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. [Explanation.—For the purposes of this clause] a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule." 9. Article 103 provides that if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final. Sub-clause (2) says that before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion. Since the Representation of the People Act, 1951 which was passed by the Parliament in 1950 did not contain all the provisions relating to elections but merely provided for the allocation of seats in and the determination of constituencies for the purpose of elections to the House of People and Legislature of States, the qualifications of voter at such election and the preparations of electoral rolls. Provisions for the actual conduct of the elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications for the membership of these Houses, the corrupt and illegal practices and other election offences and the decision of the election disputes were all left to be made in a subsequent measures, in order to provide for these provisions, the Representation of the People Act, 1951 was enacted. Section 33(6) says that nothing in this section shall prevent any candidate from being nominated by more than one nomination paper; provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency ;whereas sub-section (7) read with clause (a) says that notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election in case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies. 10. The petitioners challenge the vires of the aforesaid clause (a) of Section 37 and Section 70 saying that the Parliament was not having any legislative competence to enact the aforesaid law giving right to any candidate to file nomination for more than one constituency i.e. two Parliamentary constituencies while contesting the election of House of the People and, therefore, the provision is ultra vires the Constitution. 11. Section 70 of the Representation of the People Act,1951 says as under : "If a person is elected to more than one seat in either House of Parliament or in the House or either House of the Legislature of a State, then, unless within the prescribed time he resigns all but one of the seats by writing under his hand addressed to the Speaker or Chairman, as the case may be, or to such other authority or officer, as may be prescribed, all the seats shall become vacant." 12. The submission is that the Constitution does not recognise such a scheme for conducting the election of the House of the People and that if such a law is protected, it would mean that all persons, who are contesting the election for House of the People may file nomination from two constituencies and if they succeed from both the constituencies, they will naturally vacate one of the seats and then requiring the Election Commission to hold fresh elections for the seats that is left. It has been argued that, if for all the seats, the elections are held in this manner, there may be a situation in an extreme case that only half of the seats are filled in, in the general election, and the remaining seats are required to be filled in in a bye-election, which is not the requirement of the constitutional provisions nor the Representation of the People Act. The elections have to be given due sanctity and the will of the people cannot be ignored or left to the discretion of the persons contesting the election either to accept it or not. Besides, every election involves huge expenditure from public exchequer and,therefore, repeated elections for the same constituency are not befitting to the health of the democracy. 13. Sri Ritu Raj Awasthi, appearing for the Union of India, has submitted that the writ petition itself is not maintainable at Lucknow, as none of the elections of respondent No.1 have been held in the State of U.P. muchless under the territorial jurisdiction of this Court at Lucknow. His argument is that in substance, the petitioners are challenging the election of respondent No.1 from Chhapra constituency, which election cannot be set aside or declared void in the present proceedings, which have been initiated at Lucknow, as no cause of action or part thereof has arisen within the territorial jurisdiction of this Court. 14. On the plea of issuing of writ of quo warranto he has submitted that the quo warranto would not lie and for which he relies on the following cases : (1) B.Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees Association and others, (2006) 11 SCC 73. (2) High Court of Gujarat and another v. Gujarat Kisan Mazdoor Panchayat and others, (2003) 4 SCC 712. 15. (2) High Court of Gujarat and another v. Gujarat Kisan Mazdoor Panchayat and others, (2003) 4 SCC 712. 15. In regard to the challenge to the vires of Section 33(7)(a) and Section 70 of the Representation of the People Act, the submission is that under Entry 72 of the Union List, the Parliament is empowered to enact laws with respect to the election of Parliament, office of the President and Vice President, as such all matters relating to the election of Parliament or Legislature of the State are within the purview of the Parliament and within the legislative competence unless the enacted law is in conflict with any constitutional provision laying down essential eligibility for contesting the election for a seat in the House of the People or it violates any of the Fundamental Rights guaranteed under the Constitution, the same cannot be declared to be unconstitutional. 16. Further submission is that the Constitution having prescribed disqualification of a person from being a Member of the either House in Articles 101 and 102 and the authority to decide as to whether such a Member has incurred any disqualification have been provided under Article 103, no disqualification otherwise having been prescribed, can be read in the said provisions so as to carve out any disqualification, which has not been enumerated in the Constitution or in any other enactment. The submission, therefore, is that there is no provision in the Constitution which prohibits contesting of election from two constituencies of Lok Sabha and such a candidate does not incur any disqualification within the meaning of Articles 101 and 102 and, therefore, the Court would not declare any such election void. 17. The submission, therefore, is that there is no provision in the Constitution which prohibits contesting of election from two constituencies of Lok Sabha and such a candidate does not incur any disqualification within the meaning of Articles 101 and 102 and, therefore, the Court would not declare any such election void. 17. Sri Ritu Raj Awasthi further says that Article 101 of the Constitution also provides and gives power to the Parliament to make a law for the vacation of a seat if a person is chosen in one House or the other, which means that if a person has been chosen as a Member of a House from two constituencies in one House or he has been chosen in one House and also in other House, then he has to resign from one of the seats, as may be provided by law and, therefore, the provisions of Section 33(7) as well as Section 70 of the Representation of the People Act are perfectly within the legislative competence of the Parliament and the law enacted does not suffer from vires of excessive delegation or legislative incompetence. 18. However, Sri Ashok Pandey argued that Article 101 only takes into account the election of a person in two different Houses of Parliament and does not confer any such power to make law with respect to a person who has been elected from two different constituencies (two seats) in one and the same House,namely, House of the People. 19. The question raised above do not require any answer from us, as we are of the view that in substance it is a challenge to the election of respondent No. 1 from Chhapra constituency and though the said election is said to be void but it requires declaration to that effect by the Court. Even for considering the prayer of declaration aforesaid, territorial jurisdiction has to be of the Court concerned. The respondent No. 1 is not the resident of the State of Uttar Pradesh; he has not contested the election from any constituency within the State of Uttar Pradesh; the petitioners are not the voters in the said election, since they belong to the State of Uttar Pradesh and not the State of Bihar nor to the constituency from which the election was contested by respondent No.1. 20. 20. In the facts and circumstances of the case, this Court will not get territorial jurisdiction, even by challenging the vires of certain provisions of the Representation of the People Act. 21. Even assuming that the petitioners could not file the election petition, they could have chosen the right forum, may be in Patna or Delhi, but the Court sitting at Lucknow will not have any jurisdiction to entertain such a petition. While making the aforesaid observation, we may clarify that we have not addressed ourselves on the merits of the pleas raised by the petitioners as well as respondents but we have only discussed and narrated the arguments raised only for the purpose of determining our jurisdiction in the matter. 22. We, for the reasons stated above, dismiss the writ petition for want of jurisdiction. No order as to costs. ————