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2013 DIGILAW 313 (ALL)

MAHESH SINGH v. STATE OF U. P.

2013-01-28

S.P.MEHROTRA, ZAKI ULLAH KHAN

body2013
JUDGMENT By the Court.—We have heard Shri H.R. Mishra, learned Senior Counsel assisted by Shri Dinesh Kumar Chaubey, learned counsel for the petitioner, Shri Abhishek Mishra, learned counsel for the respondent No. 5 and the learned Standing Counsel appearing for respondent Nos. 1, 2, 3 and 6. 2. The present Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, praying for quashing the Determination of Constituencies published in the Daily Newspaper “Amar Ujala” dated 12.1.2013 on the ground that the mistakes have been committed in the determination of the constituencies. 3. Raising a preliminary objection, the learned Standing Counsel appearing for respondent Nos. 1, 2, 3 and 6 and Shri Abhishek Mishra, learned counsel for the respondent No. 5 submit that the election process has already commenced and the elections are scheduled to take place on 29.1.2013, and in the circumstances, no interference is called for by this Court in exercise of its Writ Jurisdiction under Article 226 of the Constitution of India. 4. Shri H.R. Mishra, learned Senior Counsel assisted by Shri Dinesh Kumar Chaubey, learned counsel for the petitioner submits that as illegalities have been committed in the determination of constituencies, which is the foundation for the entire exercise of holding election, this Court may interfere in exercise of its Writ Jurisdiction under Article 226 of the Constitution of India. 5. Shri H.R. Mishra, learned Senior Counsel appearing for the petitioner has placed reliance on the following decisions in support of his submission: 1. Parmeshwar Mahaseth and others v. State of Bihar and others, AIR 1958 Pat 149 . 2. Umakant Singh and others v. Binda Choudhary and others, AIR 1965 Pat 459 . 3. The Chief Commissioner of Ajmer and another v. Radhey Shyam Dani, AIR 1957 SC 304 . 4. K.K. Shrivastava v. Bhupendra Kumar Jain and others, AIR 1977 SC 1703 . 5. Bar Counsel of Delhi and another v. Surjeet Singh and others, AIR 1980 SC 1612 . 6. We have considered the submissions made by the learned counsel for the parties. 7. From perusal of the Writ Petition and Annexures thereto, it is evident that the election process has already started, and the elections are due to take place on 29.1.2013 and 30.1.2013. 8. 6. We have considered the submissions made by the learned counsel for the parties. 7. From perusal of the Writ Petition and Annexures thereto, it is evident that the election process has already started, and the elections are due to take place on 29.1.2013 and 30.1.2013. 8. In our opinion, as the election process has already commenced, it will not be appropriate for this Court to exercise its Writ Jurisdiction under Article 226 of the Constitution of India so as to create hindrance in the ongoing election process. 9. It is note worthy that Rule 444-C of the U.P. Co-operative Societies Rules, 1968 framed under the U.P. Co-operative Societies Act, 1965 provides as under: “444C (1) The election in a co-operative society shall not be called in question either by arbitration or otherwise except on the ground that : (a) the election has not been a fair election by reasons that corrupt practice, bribery or undue influence has extensively prevailed at the election, or (b) the result of the election has been materially affected - (i) by improper acceptance or rejection of nomination, or (ii) by improper reception, refusal or rejection of voters, or (iii) by gross failure to comply with the provisions of the Act, the rules or the bye-laws of the society. Explanation.—For the purpose of this rule corruption, bribery or undue influence shall have the meaning assigned to each under Section 123 of the Representation of the People Act, 1951. (2) A dispute relating to election shall be referred by the aggrieved party within forty-five days of the declaration of the result.” 10. In view of the provisions of the above-quoted Rule, it is evident that after conclusion of the election, it will be open to the petitioner to challenge the election in the Co-operative Society on the grounds mentioned in the Rule. 11. One of the grounds for questioning the election in a Co-operative Society is that the result of the election has been materially affected by gross failure to comply with the provisions of the U.P. Co-operative Societies Act, 1965, the Rules framed thereunder or the bye-laws of the Society. 12. Proviso to sub-section (1) of Section 70 of the U.P. Cooperative Societies Act, 1965 shows that dispute relating to an election may be referred to the Registrar after the declaration of the result of such election. 13. 12. Proviso to sub-section (1) of Section 70 of the U.P. Cooperative Societies Act, 1965 shows that dispute relating to an election may be referred to the Registrar after the declaration of the result of such election. 13. Hence, in our opinion, after the elections are over, it will be open to the petitioner to pursue such remedy as may be available to him under law before appropriate forum for seeking appropriate reliefs for redressel of his alleged grievances, as raised in the Writ Petition. 14. In Parmeshwar Mahaseth case (supra), the Writ Petition was filed raising the question of validity or otherwise of the elections of the Commissioners of the Darbanga Municipality held on the 6th and 7th September, 1956. It was held by the Patna High Court that what was challenged in the case was not the election of a particular candidate, but the validity of the entire municipal election, because of the violation of the essential provisions of the Bihar and Orissa Municipal Act, 1922 and the Bihar Municipal Elections and Election Petitions Rules, 1953 framed under the said Act. 15. Thus, it will be noticed that the Writ Petition in Parmeshwar Mahaseth case was filed after the election was over, and the validity of the entire election was challenged by filing Writ Petition under Article 226 of the Constitution of India. The facts of the present case are not similar as in the present case the election is yet to take place. The decision in Parmeshwar Mahaseth case (supra) is, therefore, not applicable to the facts and circumstances of the present case. 16. In Umakant Singh case (supra), the election of the representatives of the different Co-operative Societies in the different Blocks by the Secretaries thereof from amongst themselves to the various Panchayat Samitis held under clause (iii) of Section 5 of the Bihar Panchayat Samitis and Zila Parishads Act, 1961, was challenged on various grounds. It was held by the Patna High Court that if the entire election was challenged as having been held under statutes or statutory rules which were invalid or by committing illegalities which made the entire election void, it could be quashed by grant of a writ in the nature of certiorari. 17. It was held by the Patna High Court that if the entire election was challenged as having been held under statutes or statutory rules which were invalid or by committing illegalities which made the entire election void, it could be quashed by grant of a writ in the nature of certiorari. 17. Thus in Umakant Singh case also, the challenge to the election was made by filing Writ Petition under Article 226 of the Constitution of India after the election was over. The facts of the present case are different as the election is yet to take place. The decision in Umakant Singh case is, therefore, not applicable to the facts and circumstances of the present case. 18. In The Chief Commissioner of Ajmer case (supra), by an order dated March 12, 1953, the Ajmer Municipal Committee had been suspended and that suspension was to continue till September 11, 1955. In view of the impending elections after the period of suspension was over, the Chief Commissioner, Ajmer framed the Ajmer State Municipalities Election Rules, 1955 in exercise of the powers conferred by Section 43 of the Ajmer-Merwara Municipalities Regulation 1925 (VI of 1925) and published them in the Government Gazatte dated August 4, 1955. On August 8, 1955, he notified an election programme. Elections and poll were to be held on September 9, 1955. 19. The respondent (Radhey Shyam) filed nomination paper which was rejected on August 17, 1955. The respondent (Radhey Shyam) filed application for rectification of the mistake in the Parliamentary Electoral Roll which was rejected on August 18, 1955. 20. The respondent (Radhey Shyam) thereupon filed Writ Petition in the Court of the Judicial Commissioner of Ajmer. 21. The Judicial Commissioner, inter alia, held that Rule 7 of the aforesaid Election Rules was not in consonance with and was in contradiction of Section 30, sub-section (2) of the aforesaid Regulation and was in excess of the rule-making power conferred upon the Chief Commissioner, Ajmer, and the elections proposed to be held on September 9, 1955, were not lawful. The Judicial Commissioner, therefore, directed the District Magistrate, Ajmer, to refrain from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955. 22. The Judicial Commissioner, therefore, directed the District Magistrate, Ajmer, to refrain from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955. 22. The Chief Commissioner, Ajmer (appellant) filed appeal with special leave before the Supreme Court challenging the judgment of the Judicial Commissioner, Ajmer, restraining the District Magistrate, Ajmer, from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955. 23. When the appeal came up before the Supreme Court, September 9, 1955 had already passed. 24. Their Lordships of the Supreme Court noted that the appeal had become academic, but proceeded to consider the appeal on merits in view of the submission made on behalf of the appellant that the pronouncement of the Judicial Commissioner regarding validity of Rule 7 of the aforesaid Election Rules be examined. Their Lordships of the Supreme Court observed as under (paragraph 6 of the said A.I.R.). “(6) At the outset we pointed out to the learned counsel for the appellant that the appeal had become academic. The appellant had in fact reconstituted the Ajmer Municipal Committee by a proper notification under Section 8(1) of the Regulation and the date on which the elections and the poll to the Ajmer Municipal Committee were to be held, viz., September 9, 1955, had also passed. The learned counsel for the appellant, however, urged before us that the pronouncement of the learned Judicial Commissioner to the effect that Rule 7 of the Election Rules was not in consonance with and was in contradiction to Section 30, sub-section (2) of the Regulation and was in excess of the rule-making power conferred upon the appellant was a stumbling block in the way of the appellant holding further elections on the basis of the electoral roll as it had been authenticated and published by him on August 8, 1955. If that pronouncement stood, it would be incumbent on the appellant to authenticate and publish another electoral roll and incur the expenses which were inevitable in that process. He, therefore, pressed upon us that we should set aside that pronouncement so that the Municipal elections may be held hereafter without straining the attenuated finances of the Municipality.” 25. Their Lordships of the Supreme Court further held as under (paragraphs 12 and 14 of the said A.I.R.). He, therefore, pressed upon us that we should set aside that pronouncement so that the Municipal elections may be held hereafter without straining the attenuated finances of the Municipality.” 25. Their Lordships of the Supreme Court further held as under (paragraphs 12 and 14 of the said A.I.R.). “(12) It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective.” “(14) In the view which we hold, it is not necessary to consider whether, in the event of an inconsistency between Section 30, sub-section (2) of the Regulation and the Rules framed by the Chief Commissioner in exercise of the power conferred under Section 43 of the Regulation, the section would prevail or the Rules. Suffice it to say that the electoral roll of the Ajmer Municipality which was authenticated and published by the Chief Commissioner on August 8, 1955 was not in conformity with the provisions of Section 30, sub-section (2) and the relevant provisions of the Regulation and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee.” 26. In view of the above, the Supreme Court dismissed the appeal. 27. It will thus be noticed that the facts of The Chief Commissioner of Ajmer case (supra) were different from those of the present case. The date of elections and poll had already passed when the appeal was heard before the Supreme Court. The Supreme Court noted that the appeal had become academic. 27. It will thus be noticed that the facts of The Chief Commissioner of Ajmer case (supra) were different from those of the present case. The date of elections and poll had already passed when the appeal was heard before the Supreme Court. The Supreme Court noted that the appeal had become academic. However, in view of the submission made on behalf of the appellant, the Supreme Court examined the question of validity of electoral rolls in the light of the relevant statutory provisions. The Supreme Court emphasized the importance of maintenance of proper electoral rolls. 28. The question regarding the maintainability of the Writ Petition under Article 226 of the Constitution of India was not considered in the above decision in The Chief Commissioner of Ajmer Case (supra). Thus, the said decision does not help the learned Senior Counsel appearing for the petitioner in the present case. 29. In K.K. Shrivastava case (supra), the election to the Bar Council of Madhya Pradesh took place under the Indian Advocates Act. There were rules framed by the Bar Council of Madhya Pradesh with the approval of the Bar Council of India regulating the disputes regarding election. There was specific provision regarding the constitution of Election Tribunals, the period of limitation within which election petitions should be filed and other connected matters. 30. Two voters (one of whom was a defeated candidate) moved the Madhya Pradhesh High Court under Articles 226 and 227 of the Constitution of India challenging the validity of the election. The High Court noticed the decision which laid down that when there was an appropriate or equally efficacious remedy the Writ Jurisdiction should not be exercised, but still the High Court proceeded to interfere in the matter. The reasoning which prevailed with the High Court was expressed by it as under: “We are of the view that where the entire election is challenged an election petition would not be an appropriate remedy. In any case, it cannot be considered as an equally efficacious remedy.” 31. The Supreme Court allowed the appeal filed against the judgment of the Madhya Pradesh High Court and held that the High Court fell into an error in entertaining the petitions. Their Lordship of the Supreme Court observed as under (paragraph 4 of the said A.I.R.): “4. In any case, it cannot be considered as an equally efficacious remedy.” 31. The Supreme Court allowed the appeal filed against the judgment of the Madhya Pradesh High Court and held that the High Court fell into an error in entertaining the petitions. Their Lordship of the Supreme Court observed as under (paragraph 4 of the said A.I.R.): “4. It is well-settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well-settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore a writ petition will lie, is a fallacious argument. It is important to notice what the High Court has overlooked is that the period of limitation prescribed by the rules is 15 days and if writ petitions are to be entertained long afterwords it will stultify the statutory provision. Again in the present case an election petition covering the same subject-matter is actually pending. There is no foundation whatever for thinking that where the challenge is to an “entire election” then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise. It is unfortunate that an election petition, which probably might have been disposed of long ago, is still pending because the writ petition was pending in the High Court and later on special leave having been granted these appeals have been pending in this Court. How injurious sometimes the repurcussions of entertaining writ petitions are where they should not be is illustrated by this very case.” (Emphasis supplied) 32. How injurious sometimes the repurcussions of entertaining writ petitions are where they should not be is illustrated by this very case.” (Emphasis supplied) 32. Supreme Court thus laid down that there was no foundation whatever for thinking that where the challenge was to an “entire election” then the Writ Jurisdiction would spring into action. Thus this negatives the submission made by Shri H.R. Mishra, learned Senior Counsel appearing for the petitioner. 33. It is also note-worthy that in K.K. Shrivastava case (supra), the Writ Petitions were filed after the election had taken place. 34. The decision in K.K. Shrivastava case (supra), therefore, does not help the learned Senior Counsel appearing for the Petitioner. 35. In Bar Council of Delhi case (supra), the election of members to the Bar Council of Delhi was held on 17.11.1978. The Writ Petitions were filed in the Delhi High Court challenging the election on various grounds. One of the main grounds was that proviso to Rule 3(j) of the Bar Council of Delhi Election Rules, 1968, on the basis of which the names of about 2000 Advocates were excluded from the Electoral Roll, was invalid and ultra vires. 36. The Writ Petitions were allowed by the Delhi High Court, inter alia, holding that the proviso to Rule 3(j) of the Bar Council of Delhi Election Rules, 1968, was in excess of the rule-making power of the Bar Council of Delhi. 37. Appeals were thereupon filed before the Supreme Court. 38. Their Lordships of the Supreme Court dismissed the appeals filed against the judgment of the Delhi High Court. Their Lordships of the Supreme Court observed as under (paragraphs 12 and 18 of the said A.I.R.): “12. There is no substance in the last submission made on behalf of the appellants. The manner of resolving disputes as to the validity of election is provided for in R. 34 of the Delhi Bar Council Election Rules. This is not an appropriate and adequate alternative remedy to defeat the writ petitioner on that account. Firstly, no clause of Rule 34 covers the challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid. This is not an appropriate and adequate alternative remedy to defeat the writ petitioner on that account. Firstly, no clause of Rule 34 covers the challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid. Our attention was specially drawn to clause (8) of R.34 which says : “No petition shall lie on the ground that any nomination paper was wrongly rejected or the name of any voter was wrongly included in or omitted from the electoral roll or any error or irregularity which is not of a substantial character.” As we have said above, it is not a case where the name of any voter was wrongly omitted from the electoral roll but it is a case where the preparations of the whole electoral roll was null and void because of the invalidity of the impugned proviso.” “18. Reliance was placed for the appellants upon the decision of this Court in K.K. Shrivastava v. Bhupendra Kumar Jain, AIR 1977 SC 1703 , that because of Rule 34(8) of the Delhi Bar Council Election Rules the writ petition ought to have been held to be not maintainable, it would be noticed from the facts of that case that an election petition had already been filed. About four months later a writ petition was also filed to challenge the election. At page 1704, column I Krishna Lyer J., speaking for the Court said : “One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms.” But he added : “While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court shall still refuse to entertain a writ petition.” Finally the view expressed in K.K. Shrivastava’s case is: “There is is no foundation whatever for thinking that where the challenge is to an “entire election” then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise.” We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to R. 3(3) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in R. 34(8) was no remedy at all.” 39. It will thus be seen that the facts of Bar Council of Delhi case (supra) were different from those of the present case. The Supreme Court examined the question as to whether the proviso to Rule 3(j) of the Bar Council of Delhi Election Rules, 1968 was valid or ultra vires. The Supreme Court concluded that the said proviso was ultra vires and invalid, and the electoral roll prepared by the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2000 Advocates from the said roll was not valid in law (paragraph 9 of the said A.I.R.). As regards the maintainability of Writ Petition, it was pointed out that the Election Tribunal would not be competent to declare any provision of the Election Rules ultra vires and invalid. As regards the maintainability of Writ Petition, it was pointed out that the Election Tribunal would not be competent to declare any provision of the Election Rules ultra vires and invalid. The Supreme Court distinguished the decision in K.K. Shrivastava case (supra) on the ground that the remedy before the Election Tribunal in Bar Council of Delhi case was not an appropriate and adequate remedy. 40. It will also be noticed that in Bar Council of Delhi case (supra), the elections were held and thereafter the Writ Petitions were filed. In the present case, the elections are yet to take place. Thus the decision in Bar Council of Delhi case (supra) is not applicable in the present case. 41. We may further refer to the decision of the Supreme Court in Shri Sant Sadguru Janardan Swami v. State of Maharasthra and others, AIR 2001 SC 3982 . 42. Their Lordships of the Supreme Court noted the decision in Bar Council of Delhi case (supra) and certain other decisions, and distinguished the said decisions observing (paragraphs 11 to 14 of the said A.I.R.): “ 11. In the aforesaid case, this Court held that a writ petition under Article 226 of the Constitution should not be rejected on account of an alternative remedy by way of election petition where, firstly, the challenge is not a ground under the Act or Rules for filing an election petition and, secondly, where the validity of a rule is challenged being ultra vires and invalid. It is true that a tribunal being a creature of an Act or the Rules has a limited jurisdiction and it is not open to a tribunal to decide the validity of the Act and the Rules. But, that is not the case here and, therefore, the decision in the case of Bar Council of India and others v. Surjeet Singh and others (supra) is of no help to the case of the appellant. In the case of Ramchandra Ganpat Shinde and another v. State of Maharashtra and others (supra), the parties to a writ petition obtained a collusive order by applying fraud on the Court and such an order was made basis of the election. In the case of Ramchandra Ganpat Shinde and another v. State of Maharashtra and others (supra), the parties to a writ petition obtained a collusive order by applying fraud on the Court and such an order was made basis of the election. In that context, it was held that so long as the order of the High Court continues, the tribunal would be bound by that order of the High Court and, therefore, the writ petition was maintainable and the same cannot be thrown out on the ground of an alternative remedy. Again, that is not the case of the appellant and, therefore, the same is distinguishable. In Shri Shreewant Kumar Choudhary v. Shri Baidyanath Panjiar (supra), it was held that it was not open to the tribunal to go behind the entry in an electoral roll. This was in the context of the provisions of Representation of Peoples Act, 1950 and 1951. It may be borne in mind that there is a distinction between the scheme of the provisions of the Representation of Peoples Act, 1950 and the Representation of Peoples Act, 1951. The Representation of Peoples Act, 1950 provides for the delimitation of constituencies and allocation of seats for purposes of election to, the House of the People and the Legislatures of States and preparation of the electoral roll, whereas, Representation of Peoples Act, 1951 provides for conduct of election. Under Section 100 of the Representation of Peoples Act, 1951 one of the grounds amongst other is an election can be challenged where there is non-compliance of the provisions of the Constitution or of the said Act and the rules or orders made thereunder-meaning thereby that breach of the Representation of Peoples Act, 1950 cannot be called in question in an election petition filed under 1951 Act. In that view of the matter, the decision relied upon by the appellant is distinguishable. 12. In view of our finding that preparation of the electoral roll is being an intermediate stage in the process of election of the managing committee of a specified society and the election process having been set in motion, it is well-settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellant to challenge the election of returned candidate, if aggrieved, by means of an election petition before the election tribunal. 13. In that view of the mastter, we are in agreement with the view taken by the High Court that the appellant having an alternative remedy, the writ petition deserved dismissal. 14. For the aforesaid reasons, we do not find any merit in the appeal. The appeal is, accordingly, dismissed. There shall be no order as to costs.” (Emphasis supplied) 43. This decision thus supports the conclusion drawn by us in the earlier part of this judgment. 44. In view of above discussion, the Writ Petition filed by the petitioner is liable to be dismissed, and the same is accordingly dismissed.