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2011 DIGILAW 2604 (ALL)

UMLESH YADAV v. ELECTION COMMISSION OF INDIA

2011-11-17

ASHOK BHUSHAN, BHARATI SAPRU

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JUDGMENT Hon’ble Ashok Bhushan, J.—This writ petition has been filed by the petitioner praying for quashing the order dated 20.10.2011, passed by the Election Commission of India. A writ of mandamus has also been sought, directing the respondents to treat the petitioner as duly elected member of Legislative Assembly from 24-Bisauli Assembly constituency, District Budaun and to admit her to the privileges and perquisites attached to such office. Alongwith the writ petition, Stay application has been filed, praying for suspension of the impugned order dated 20.10.2011, passed by Election Commission of India declaring the petitioner disqualified for being a member of U.P. Legislative Assembly under Section 10A of the Representation of the People Act, 1951 for a period of three years from the date of passing of the order. 2. Before we proceed to consider the submissions raised by Sri Ravi Kant, learned Senior Advocate appearing for the petitioner for stay of the order, it is necessary to note the brief facts leading to passing of the order by the Election Commission of India. The petitioner was elected as a member of the U.P. State Legislative Assembly from 24-Bisauli Assembly constituency, District Budaun in the year 2007. The respondent No. 2, who was also one of the contesting candidates, submitted a complaint before the Press Council of India against the two Hindi daily news-papers namely; ‘Amar Ujala’ and ‘Dainik Jagaran’ referring to two publications made in the news-papers on 17.4.2007, after close of the campaigning, a day before the date of poll. The allegation in the complaint was that the aforesaid two news-papers in violation of norms of Journalist conduct, published onesided news item in the form of advertisement in favour of the petitioner by taking huge amount of money. The allegation was that news reports in favour of the petitioner was published appending advertisement in the small box at the right bottom marking “ADVT” to give a colour as if the entire publications were advertisements. The Press Council of India issued notice to the news-papers and after inquiry, held that news-papers were guilty of ethical violations, and adopting the observations of the Inquiry Committee, cautioned the media to refrain from publishing news masquerading as advertisements and vice versa. The Press Council of India issued notice to the news-papers and after inquiry, held that news-papers were guilty of ethical violations, and adopting the observations of the Inquiry Committee, cautioned the media to refrain from publishing news masquerading as advertisements and vice versa. The Press Council of India also decided to send the adjudication alongwith all the case papers to the Election Commission of India for such action as deemed fit by the Election Commission of India. The Election Commission of India thereafter called upon specific information from the Chief Electoral Officer, U.P. vide its letter dated 4.5.2010 about the expenditure incurred by Smt. Umlesh Yadav, a candidate of Rashtriya Parivartan Dal from 24-Bisauli Assembly Constituency on publishing the news item dated 17.4.2007. The District Election Officer, Budaun reported to the Commission that expenditure for the above referred advertisement published on 17.4.2007, was not clear from the account of the election expenditure submitted by Smt. Umlesh Yadav. The Commission thereafter issued notice dated 22.6.2010 to the petitioner to show-cause as to why she had not reflected the expenditure incurred on the aforesaid advertisement in the election expenditure account filed by her under Section 78 of the Representation of the People Act, 1951; and why the account filed by her should not be treated as having not been filed in the manner required under law. The petitioner was also asked to explain as to why she should not be disqualified under Section 10A of the said Act for a period of three years for not lodging the true account of her election expenses. The petitioner in response to the said notice, submitted her reply dated 18.7.2010, taking the plea that articles published in the news-papers were neither ordered by her nor her election agent nor she spent any amount for publication of the said advertisement. Election Commission of India also asked the news-papers; Dainik Jagaran and Amar Ujala to send copies of the bills pertaining to the aforesaid news/advertisement. Both the news-papers submitted copy of the bills and the receipt issued in the name of D.P. Yadav, the husband of the petitioner. Election Commission of India also asked the news-papers; Dainik Jagaran and Amar Ujala to send copies of the bills pertaining to the aforesaid news/advertisement. Both the news-papers submitted copy of the bills and the receipt issued in the name of D.P. Yadav, the husband of the petitioner. The Commission after giving personal hearing to the petitioner, held that the petitioner did not maintain a correct and true account of her election expenditure under Section 77 and by filing incorrect account of her election expenses, she failed to lodge her account of election expenditure in the manner required by law. The Commission also held that she had no good reason or justification for the said failure as instead of admitting her failure, she denied to had filed an incorrect account and defended her act of having filed an incorrect account. On the aforesaid findings, the Commission disqualified the petitioner for a period of three years under Section 10A of the Representation of the People Act, 1951 (hereinafter referred to as ‘1951 Act’). 3. Sri Ravi Kant, learned Senior Advocate, appearing for the petitioner, submitted that the order passed by the Election Commission of India deserves to be stayed by this Court since the said order is clearly void and beyond jurisdiction of the Election Commission of India. The principal submission pressed by learned counsel for the petitioner is that after declaring a member of Legislative Assembly disqualified, the question has to be referred for the decision of the Governor and no order declaring the petitioner disqualified can be passed by the Election Commission of India. Learned counsel for the petitioner referred to and relied on provisions of Articles 191 and 192 of the Constitution of India and has placed reliance on the judgments of the Apex Court in Brundaban Nayak v. Election Commission of India, AIR 1965 SC 1895 and Consumer Education And Research Society v. Union of India and others, (2009) 9 SCC 648 . He further submitted that the return filed by the petitioner was within the limit of Rs. 10,00000/- hence, the Election Commission of India could not have declared her disqualified. It is further submitted that the Commission failed to advert to the provisions of Section 10A(b) of the 1951 Act. He further submitted that the return filed by the petitioner was within the limit of Rs. 10,00000/- hence, the Election Commission of India could not have declared her disqualified. It is further submitted that the Commission failed to advert to the provisions of Section 10A(b) of the 1951 Act. It is further submitted that no report was submitted by the District Election Officer under Rule 89 of Conduct of Election Rules, 1961 hence, the Commission could not have passed the order under Section 10A. 4. Sri B.N. Singh, learned counsel appearing for the Election Commission of India, refuting the submissions of the learned counsel for the petitioner, submitted that the order passed by the Election Commission of India is well within the jurisdiction of the Election Commission of India. He submits that the Election Commission of India, while taking the decision has placed reliance on the judgment of the Apex Court in the case of L.R. Shivaramagowda and others v. T.M Chandrashekar and others, AIR 1999 SC 252 : (1999) 1 SCC 666 . He submits that the petitioner is not entitled for any interim order in the present writ petition since grant of any interim order shall be akin to granting final relief to the petitioner at the interim stage. It is further submitted that present is not a case, which requires reference of the question of disqualification for the decision of the Governor as contemplated under Article 192 of the Constitution of India. 5. The submissions raised by learned counsel for the parties need scrutiny. 6. We are of the view that for deciding the issues raised, it is just and proper to give opportunity to the respondents to file their reply and the issues be decided after hearing the parties. Although the respondent No. 1, Election Commission of India is represented by Sri B.N. Singh, Advocate but the respondent Nos. 2 and 3, who are not represented, need to be issued notices. 7. Issue notice to the respondent Nos. 2 and 3 fixing 7.12.2011. 8. Steps for service be taken within three days. The respondents are allowed two weeks’ time to file counter-affidavit. Rejoinder-affidavit be filed by the date fixed. Looking to the issues raised in the writ petition, it is made clear that the writ petition itself may be finally decided on the date fixed. 9. 2 and 3 fixing 7.12.2011. 8. Steps for service be taken within three days. The respondents are allowed two weeks’ time to file counter-affidavit. Rejoinder-affidavit be filed by the date fixed. Looking to the issues raised in the writ petition, it is made clear that the writ petition itself may be finally decided on the date fixed. 9. Sri Ravi Kant, learned counsel for the petitioner contended that in view of the above submissions as noted above, the petitioner is entitled for an interim order, staying the operation of the order passed by Election Commission of India. We thus, proceed to consider the submissions raised by learned counsel for the petitioner for a limited purpose as to whether the present is such a case, in which the petitioner is entitled for an ex parte interim order. Our consideration of the submissions are only for the purpose of deciding the Stay Application and shall not be treated as any concluded expression of opinion or findings at the time of final decision of the writ petition. 10. The principal submission of learned counsel for the petitioner is that the order of the Election Commission of India is without jurisdiction since the question of disqualification for membership of Legislative Assembly is required to be referred for the decision of the Governor and without there being any decision of the Governor, the petitioner cannot be held to be disqualified. He has referred to Articles 191,192 of the Constitution of India which are quoted as below: “191. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State— (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State 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 acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parilament. 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 specified in the First Schedule 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 the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule. 192. Decision on questions as to disqualifications of members.—(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.” 11. The Election Commission of India has exercised the powers under Section 10A of the 1951 Act in the present case. Section 10A of the 1951 Act is quoted below: “Section 10A - Disqualification for failure to lodge account of election expenses.—If the Election Commission is satisfied that a person— (a) has failed to lodge an account of election expenses, within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order” 12. Learned counsel for the petitioner in support of his submissions has relied on the judgment of the Apex Court in the case of Brundaban Nayak v. Election Commission of India (supra) and Consumer Education and Research Society v. Union of India and others (supra). In the case of Brundaban Nayak v. Election Commission of India, the appellant was elected as a member of Legislative Assembly of Orissa in the year 1961. The respondent No. 2 applied to the Governor of Orissa alleging that appellant had incurred a disqualification subsequent to his election under Article 191(1)(e) of the Constitution of India read with Section 7 of the Representation of the People Act, 1951. The respondent No. 2 applied to the Governor of Orissa alleging that appellant had incurred a disqualification subsequent to his election under Article 191(1)(e) of the Constitution of India read with Section 7 of the Representation of the People Act, 1951. The Chief Secretary to the Government of Orissa forwarded the said complaint to the Election Commission of India under instruction of the Governor. Election Commission of India issued notice to the appellant for the purpose of holding an inquiry in the allegations made by the respondent No. 2 so as to give its opinion on the Governor reference. The appellant appeared before the Election Commission of India and raised the question of maintainability of the proceedings and submitted that the inquiry, if any, can be held only by the Governor. The preliminary objection was rejected by the Election Commission of India, against which writ petition under Article 226 was filed, praying for quashing the proceedings before the Election Commission of India, which writ petition was summarily dismissed on 6.1.1965. Thereafter Special Leave petition was filed in the Apex Court. The Apex Court rejected the submission of the appellant that Election Commission of India was not entitled to hold an inquiry. The arguments of the appellant were rejected and followings were laid down by the Apex Court in paragraphs 15 and 16 : “15. The next point which Mr. Setalvad has raised is that even if a question is held to have arisen under Article 192(1), it is for the Governor to hold the enquiry and not for the Election Commission. He contends that Art. 192(1) requires the question to be referred to the Governor for his decision and provides that his decision shall be final. It is a normal requirement of the Rule of law that a person who decides should be empowered to hold the enquiry which would enable him to reach his decision, and since the Governor decides the question, he must hold the enquiry and not the Election Commission. That, in substance, is Mr. Setalvad’s case. He concedes that Art. 192(2) requires that the Governor has to pronounce his decision in accordance with the .opinion given by the Election Commission; that is a Constitutional obligation imposed on the Governor. That, in substance, is Mr. Setalvad’s case. He concedes that Art. 192(2) requires that the Governor has to pronounce his decision in accordance with the .opinion given by the Election Commission; that is a Constitutional obligation imposed on the Governor. He, however, argues that the Election Commission which has to give an opinion, is not competent to hold the enquiry, but it is the Governor who should hold the enquiry and then forward to the Election Commission all the material collected in such an enquiry to enable it to form its opinion and communicate the same to the Governor. 16. We are satisfied that this contention also is not well founded. The scheme of Article 192(1) and (2) is absolutely clear. The decision on the question raised under Article 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Art. 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself; he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, “he shall act according to such opinion”. In regard to complaints made against the election of members to the Legislative Assembly the jurisdiction to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the Election Commission. Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvad’s contention that the enquiry must be held by the Governor. If this scheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvad’s contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission. the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof. “ 13. The above case arose out of the complaint submitted by respondent No. 2 to the Governor for disqualifying the appellant and the Governor under Article 192 of the Constitution of India, asked for the opinion of the Election Commission of India as required by Article 192(2). In the said case, the question which has arisen in the present case as to whether the Election Commission of India in exercise of powers under Section 10A of the 1951 Act can disqualify a member, was not under consideration nor any ratio from the said judgment is deducible that the Election Commission of India, who has been specifically empowered under Section 10A to disqualify a member on the conditions as mentioned in the said Section, cannot pass an order disqualifying a member and the question for such disqualification has to be necessarily referred to the Governor under Article 192. 14. The next judgment which has been relied by learned counsel for the petitioner in Consumer Education and Research Society v. Union of India and others (supra), was a case in which the Constitutional validity of Parliament (Prevention of Disqualification) Amendment Act, 2006 was under challenge. By Amendment Act, 2006, clause (ad) was inserted in Section 3 of the Principal Act namely; Parliament (Prevention of Disqualification) Act, 1959, which was made retrospective in operation. The Apex Court had occasion to consider Articles 101, 102,103,104 of the Constitution of India in the above context. Reliance has been placed on paragraphs 55 and 60 which are quoted as below: “55. The Apex Court had occasion to consider Articles 101, 102,103,104 of the Constitution of India in the above context. Reliance has been placed on paragraphs 55 and 60 which are quoted as below: “55. The words “if any question arises as to whether a Member of either House of Parliament has become subject to any disqualifications” conclusively show that the question of whether a Member has become subject to any disqualification under clause (1) of Article 102 has to be decided only by the President. Such a question would of course be a mixed question of fact and law. The Constitution provides the manner in which that question is to be decided. We are of the view that it is only after such a decision is rendered by the President, that the seat occupied by an incumbent MP becomes vacant. The question of a person being disqualified under Article 102(1) and the question of his seat becoming vacant under Article 101(3)(a) though closely interlinked, are distinct and separate issues. 60. Thus we find that for a vacancy to occur under Article 101(4), there should be a declaration by the House, for a vacancy to occur under Article 101(3)(b) there should be acceptance of resignation by the Chairman or the Speaker of the House and under Article 101(2) the vacancy arises automatically on the expiry of 15 days after the point of time that the particular MP became a Member of the State Legislature. However, the vacancies contemplated in Article 101(3)(a) will arise only when the disqualification is decided upon and declared by the President under Article 103(1) or declared by the Chairman or the Speaker of the House under Para. 6(1) of Tenth Schedule. Therefore in the case of vacancy under Article 101(3)(a), the vacancy of the seat is not automatic consequent upon incurring the disqualification but would occur only upon a declaration of the disqualification by the designated authority. For example, if a Member gives up membership of a political party or votes or abstains from voting in the House in a manner that is contrary to the directions issued by his/her political party, Para. 2 of Tenth Schedule provides that the said Member of the House shall be disqualified. For example, if a Member gives up membership of a political party or votes or abstains from voting in the House in a manner that is contrary to the directions issued by his/her political party, Para. 2 of Tenth Schedule provides that the said Member of the House shall be disqualified. However, the vacancy of his/her seat does not become operative on the day he/she gives up membership of the political party or when he/she votes or abstains from voting in a manner that is contrary to the directions issued by his/her political party. With regard to disqualification on the ground of defection, the vacancy of the seat would become operative only when a decision is rendered by the Chairman or the Speaker of the House as the case may be declaring his disqualification. Similarly in respect of the disqualification on the ground of holding an office of profit, the vacancy of the seat would become operative only when the President decides the issue on the subject of the alleged disqualification and declares that a particular Member has incurred the same. Such a decision may be made either on the basis of an adjudication where the question is disputed, or on the basis of an admission by the Member concerned.” 15. The Constitutional scheme as delineated by Articles 101 to 104 clearly indicates that parliamentary seat becomes vacant only after adjudication of case falling under Article 101(3) (a), whereas the seat become vacant without adjudication on the happening of specified events in respect of vacancies arisen under Article 101 (2), 101(3) (b) and 101(b). The scheme of the above Articles which relates to parliament, is the same as contained under Articles 190,191,192 and 193. Before the Apex Court in the Consumer Education and Research Society v. Union of India and others (supra), the question of ordering disqualification under Section 10A by the Election Commission of India, was not in issue. 16. In the present writ petition, the vires of Section 10A of the 1951 Act is not under challenge nor any contention can be entertained that Section 10A of the 1951 Act is ultra vires to Constitutional provisions. 17. 16. In the present writ petition, the vires of Section 10A of the 1951 Act is not under challenge nor any contention can be entertained that Section 10A of the 1951 Act is ultra vires to Constitutional provisions. 17. Section 10A has been inserted in the Statute for a specific purpose and object empowering the Election Commission of India to disqualify a candidate for a period of three years, who failed to lodge an account of election expenses within the time and in the manner required by or under 1951 Act. A three Judges Bench in L.R. Shivaramgowda v. T.M. Chandrashekar (supra) had occasion to consider Section 10A and the provisions of the Rules 86 to 89 of the Conduct of Elections Rules, 1961 as well as the provisions of Section 123(6) of the Representation of the People Act, 1951. The Apex Court held in the said judgment that non compliance of Section 77(1) and (2) cannot be said to fall within the scope of Section 123(6). It was held that corrupt practice defined in Section 123(6) can relate only to Sub-section (3) of Section 77 i.e. incurring or authorising of expenditure in excess of the amount prescribed. In the above context Section 10A was also considered and following was laid down in paragraph 22: “22. It was argued by learned counsel for the first respondent that the aforesaid view would enable any successful candidate at an election to snap his fingers at the law prescribing the maximum limit of expenditure and escape from the provisions of Section 77(3) by filing false accounts. According to him, if the aforesaid construction of Sections 77 and 123(6) is to be adopted, there will be no sanction against a candidate who incurs an expenditure exceeding the maximum prescribed limit. Referring to Section 10(A) of the Act, which enables the Election Commission to disqualify a person who had failed to lodge an account of election expenses within the time and in the manner required by or under the Act and had no good reason or justification for the failure, he contended that the said Section provides only for a situation arising out of failure to lodge an account and not a situation arising from a failure to maintain true and correct accounts. We are unable to accept this contention. We are unable to accept this contention. In our opinion, Sub-section (a) of Section 10(A) takes care of the situation inasmuch as it provides for lodging an account of election expenses in the manner required by or under the Act. Section 77(2) provides that the accounts shall contain such particulars as may be prescribed. Rule 86 of the conduct of Election Rules provides for the particulars to be set out in the account. The said Rule prescribes that a voucher shall be obtained for every item of expenditure and for lodging all vouchers alongwith the account of TC election expenses. Rule 89 provides that the District Election Officer shall report to the Election Commission, the name of each contesting candidate, whether such candidate has lodged his account of election expenses and if so the date on which such account has been lodged and whether in his opinion such account has been lodged within the time and in the manner required by the Act and the rules. That Rule enables the Election Commission to decide whether a contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act after adopting the procedure mentioned therein. If an account is found to be incorrect or untrue by the Election Commission after enquiry Under Rule 89, it could be held that the candidate had failed to lodge his account within the meaning of Section 10(A) and the Election Commission may disqualify the said person. Hence, we do no find any substance in the argument of learned counsel for the first respondent.” (Underling is ours) 18. The Apex Court clearly held in the above case that, if an account is found to be incorrect or untrue by the Election Commission of India after inquiry under Rule 89, it can be held that candidate has failed to lodge his account within the meaning of Section 10A and the Election Commission of India, and it may disqualify the said person. No such submission was even made or noted that for exercise of power under Section 10A by the Election Commission of India, the question has also to be referred to Governor for his decision. 19. No such submission was even made or noted that for exercise of power under Section 10A by the Election Commission of India, the question has also to be referred to Governor for his decision. 19. Learned counsel for the petitioner has also referred to an interim order dated 3.11.2000, passed by the Apex Court in Special Leave to Appeal (Civil) No. 29882 of 2011 Ashok Shankarrao Chavan v. Madhavrao Kinkhalkar and others by which order the Apex Court has stayed the further proceedings before the Election Commission of India in the matter, where the Commission has embarked upon an inquiry under Section 10A. The Special Leave to appeal was filed against the judgment of the Delhi High Court dated 30.9.2011, passed in writ petition No. 2511 of 2011 Ashok Shankarrao Chavan v. Madhavrao Kinhalkar, which writ petition challenged the decision of the Election Commission of India in which the Election Commission of India has expressed the view that it has jurisdiction under Section 10A to embark upon an inquiry. The said writ petition was dismissed. The Apex Court has stayed the further proceedings in the said case before the Election Commission of India since no final orders were passed by the Election Commission of India. However, in the present case, the Election Commission of India has already passed the final order disqualifying the petitioner. 20. Prima facie, we being satisfied that the order of the Election Commission of India cannot be said to be without jurisdiction and further the stay of the order of the Election Commission of India shall amount to granting of the final relief in the writ petition, which may be available at the time of final decision of the writ petition, we are not persuaded to stay the operation of the order dated 20.10.2010, passed by the Election Commission of India. The other submissions made by Sri Ravi Kant as noticed above, shall be considered after reply is filed to the writ petition, as directed above. 21. In view of the foregoing discussions, we are of the view that no case has been made out for grant of an ex parte interim order, staying the operation of the order of Election Commission of India dated 20.10.2011. The application for interim relief is thus, rejected. 22. As directed above, list this writ petition for admission/final disposal on 7.12.2011. —————