Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2151 (ALL)

DILIP RAI BALWANI v. UNION OF INDIA

2014-07-21

DILIP GUPTA, MAHESH CHANDRA TRIPATHI

body2014
JUDGMENT By the Court.—This petition seeks the quashing of the order dated 25 April 2014 passed by the Returning Officer whereby the objection filed by the petitioner for rejecting the nomination of respondent No. 5 that had been filed for contesting the 74, Machhli Sahar, Parliamentary Constituency in District Jaunpur for the 2014 Lok Sabha Election reserved for a Scheduled Caste candidate, has been rejected. 2. An Amendment Application has been filed for adding two more reliefs. The said application has been allowed by order of date. The additional reliefs that have claimed are as follows : “i. to issue a writ, order or direction in the nature of Quo Waranto against the respondent No. 5 as is not entitled to hold the membership of Parliament from the reserve seat of 74-Machli Shahar Parliamentary Constituencies of District Jaunpur, which is only meant for scheduled caste category. ii. to declare the respondent No. 5 as not entitled to continue as member of Parliament from the reserve seat of 74-Machli Shahar Parliamentary Constituencies of District Jaunpur.” 3. The petitioner and respondent No. 5 had submitted their nomination papers as candidates belonging to the Scheduled Castes. The petitioner objected to the filing of the nomination paper by respondent No. 5 as a candidate belonging to the Scheduled Caste on the ground that he did not actually belong to the Scheduled Caste. The Returning Officer rejected the objection filed by the petitioner by an order dated 25 April 2014. The Returning Officer found that the Tehsildar, Seelampur had issued a Scheduled Caste certificate in favour of respondent No. 5 on 20 December 2007. Verification was sought and he was informed that a certificate had been issued but what was also stated was that some complaints had been filed regarding the caste of respondent No. 5 and an inquiry was being conducted. The Returning Officer, therefore, concluded that the nomination of respondent No. 5 could not be rejected since an enquiry was only pending and the caste certificate had not been cancelled. 4. Sri Anil Tiwari, learned counsel for the petitioner has submitted that a show-cause notice dated 21 March 2014 was issued to respondent No. 5 by the Tehsildar, Seelampur requiring him to show-cause as to why the caste certificate issued on 20 December 2007 may not be cancelled. 4. Sri Anil Tiwari, learned counsel for the petitioner has submitted that a show-cause notice dated 21 March 2014 was issued to respondent No. 5 by the Tehsildar, Seelampur requiring him to show-cause as to why the caste certificate issued on 20 December 2007 may not be cancelled. At the same time, respondent No. 5 was also directed to surrender the said certificate and not to use it for any benefit meant for the persons belonging to the Scheduled Castes. It is, therefore, his submission that the Returning Officer committed an illegality in rejecting the objections filed by the petitioner against the acceptance of nomination paper of respondent No. 5. Learned counsel also submitted that though an Election Petition could be filed if the nomination paper of respondent No. 5 had been improperly accepted but in view of the decision of the Supreme Court in K. Venkatachalam v. A. Swamickan and another, (1999) 4 SCC 526 , this Court can entertain this petition as the nomination paper of respondent No. 5 could not have been accepted under any circumstances in view of the directions contained in the notice dated 21 March 2014 that had been issued to respondent No. 5 by the Tehsildar, Seelampur. 5. Learned A.S.G.I. Has, however, submitted that in view of the provisions of Article 329(b) of the Constitution, the Court should decline to entertain this petition as the petitioner could have filed an Election Petition. 6. We have considered the submissions advanced by learned counsel for the parties. Article 329 (b) of the Constitution provides as follows: “(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.” It is well-settled that the entire process from the issuance of a notification under Section 14 of The Representation of People Act, 1951 to the declaration of the results under Section 66 is comprehended within the expression ‘election’ in Article 329(b) of the Constitution. Once the election process has begun, the interference of this Court under Article 226 of the Constitution is clearly not warranted. Once the election process has begun, the interference of this Court under Article 226 of the Constitution is clearly not warranted. Under Section 100(1)(d) of the Act, the High Court can declare the election of the returned candidate to be void if in the opinion of the High Court the result of the election, insofar as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination. 7. A Constitution Bench of the Supreme Court in N.P. Ponnuswami v. Returning Officer and others, AIR 1952 SC 64 , held that the jurisdiction of the High Court under Article 226 of the Constitution should not be invoked to question the election to either House of Parliament and the observations are as follows : “The law of elections in India does not contemplate 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 Art. 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.” 8. This decision was followed by the Supreme Court in Manda Jaganath v. K.S. Rathnam and others, (2004) 7 SCC 492 and the observations of the Supreme Court are thus : “12. In our opinion, whether the Returning Officer is justified in rejecting this Form B submitted by the first respondent herein or not, is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only. 13. It is to be seen that under Article 329(b) of the Constitution of India there is a specific prohibition against any challenge to an election either to the Houses of Parliament or to the Houses of Legislature of the State except by an election petition presented to such authority and in such manner as may be provided for in a law made by the appropriate legislature. Parliament has by enacting the Representation of the People Act, 1951 provided for such a forum for questioning such elections hence, under Article 329(b) no forum other than such forum constituted under the RP Act can entertain a complaint against any election. 14. Parliament has by enacting the Representation of the People Act, 1951 provided for such a forum for questioning such elections hence, under Article 329(b) no forum other than such forum constituted under the RP Act can entertain a complaint against any election. 14. The word “election” has been judicially defined by various authorities of this Court to mean any and every act taken by the competent authority after the publication of the election notification. ..................... 23. The next argument of learned counsel for the respondent is that as per the provisions of Section 36 of the Representation of the People Act, Rule 4 of the Conduct of Elections Rules, 1961 and clause 13 of the Election Symbols (Reservation and Allotment) Order, 1968, the omissions found by the Returning Officer in Form B filed by the respondent herein are all curable irregularities and are not defects of substantial nature, calling for rejection of the nomination paper. We think these arguments based on the provisions of the statutes, rules and orders are all arguments which can be addressed in a properly constituted election petition, if need be, and cannot be a ground for setting aside the order of the Returning Officer which is prima facie just and proper, in our opinion.” 9. In fact, for these reasons, a Division Bench of this Court had declined to entertain writ petitions bearing Nos. 19028 of 2014, Hurr Mehdi Baqri v. Chief Election Commission of India, decided on 2 April, 2014 and 25151 of 2014, Om Prakash v. Chief Election Commission of India and others, decided on 2 May, 2014, that had been filed to assail orders of the Returning Officer rejecting the nomination paper of the petitioners therein. 10. The contention of learned counsel for the petitioner is that the nomination to respondent No. 5 could not under any circumstances have been accepted in view of the directions contained in the show-cause notice dated 21 March 2014 issued by the Tehsildar, Seelampur. 11. There is nothing on the record to indicate that this notice was actually filed before the Returning Officer nor could the learned counsel appearing for the petitioner substantiate this fact. In fact even the objections that were filed by the petitioner before the Returning Officer against the improper acceptance of the nomination have not been placed on the record. 11. There is nothing on the record to indicate that this notice was actually filed before the Returning Officer nor could the learned counsel appearing for the petitioner substantiate this fact. In fact even the objections that were filed by the petitioner before the Returning Officer against the improper acceptance of the nomination have not been placed on the record. It clearly transpires from the order passed by the Returning Officer that all that was urged by the petitioner was that an inquiry was pending regarding the Scheduled Caste certificate issued in favour of respondent No. 5 and so the nomination of respondent No. 5 should be rejected. 12. Learned counsel for the petitioner has, however, placed reliance upon paragraphs 20, 21 and 25 of the decision of the Supreme Court in K. Venkatachalam. The said paragraphs are reproduced below : “20. In all these cases there is a common message that when the poll or re-poll process is on for election to the Parliament or Legislative Assembly, High Court cannot exercise its jurisdiction under Article 226 of the Constitution and that remedy of the aggrieved parties is under the Act read with Article 329(b) of the Constitution. The Act provides for challenge to an election by filing the election petition under Section 81 on one or more grounds specified in Sub-Section(l) of Sections 100 and 101 of the Act. There cannot be any dispute that there could be a challenge to the election of the appellant by filing an election petition on the ground improper acceptance of his nomination inasmuch as the appellant was not an elector on the electoral roll of Lalgudi Assembly Constituency and for that matter also by any non-compliance with the provisions of the Constitution or of the Act. If an election petition had been filed under Section 81 of the Act High Court would have certainly declared the election of the appellant void. It was, therefore, submitted that respondent could not invoke the jurisdiction of the High Court under Article 226 of the Constitution in view of Article 329(b) of the Constitution read with Sections 81 and 100 of the Act and only an election petition was maintainable to challenge the election of the appellant. That right the respondent certainly had to challenge the election of the appellant. That right the respondent certainly had to challenge the election of the appellant. The election petition under Section 81 of the Act had to be filed within forty-five days from the date of election of the returned candidate, that is the appellant in the present case. This was not done. There is no provision under the Act that an election petition could be filed beyond the period of limitation prescribed under Section 81 of the Act. That being so the question arises if the respondent is without any remedy particularly when it is established that the appellant did not have the qualification to be elected to the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. 21. Mr. Balakrishnamurthy, learned counsel for the first respondent submitted that in such circumstances where the appellant lacked basic and fundamental qualification to be elected as required by the Constitution, it could not be said that a petition under Article 226 of the Constitution was not maintainable. Here jurisdiction under Article 226 is sought to be exercised after declaration of the election of the appellant. He referred to Article 193 of the Constitution which provides for penalty for sitting and voting when a person is not qualified to be a Member of the Legislative Assembly. ........................ 25. In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a Member from that constituency. How could a person who is not an elector from that constituency represent the constituency? He lacked the basic qualification under clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be elector of that constituency. The appellant in the present case is certainly disqualified for being a Member of the Legislative Assembly of Tamil Nadu. His election, however, was not challenged by filing an election petition under Section 81 of the Act. The appellant knows he is disqualified. Yet he sits and votes as a Member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as a debt due to the State. The appellant knows he is disqualified. Yet he sits and votes as a Member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as a debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. The appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law.” (emphasis supplied) 13. This decision of the Supreme Court does not help the petitioner. The facts of the case would indicate that an election petition had been filed under Article 226 of the Constitution for a declaration that Venkatachalam, who had been declared elected, was not qualified to be a member of Tamil Nadu Legislative Assembly since he was not an elector in the electoral roll of that constituency. The writ petition was dismissed on the ground that there was a complete bar under Article 329(b) when a remedy was available under the Act. A writ appeal was filed which was allowed. Venkatchalam then approached the Supreme Court. The Supreme Court observed that there cannot be any dispute that a challenge could be made to the election of Venkatachalam by filing an election petition on the ground of improper acceptance of his nomination but when Venkatachalam lacked the basic qualification under Article 173(c) of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly Constituency has to be an elector of that constituency, a writ petition under Article 226 could be filed. 14. In the instant case, in view of what has been stated earlier, it cannot be said that respondent No. 5 lacked the basic qualification for contesting the election. What is also important is that under Section 100(1)(d), it is only when the High Court is of the opinion that the result of the election, insofar as it concerns a returned candidate, has been materially affected by the improper acceptance of any nomination, that the High Court shall declare the election of the returned candidate to be void. What is also important is that under Section 100(1)(d), it is only when the High Court is of the opinion that the result of the election, insofar as it concerns a returned candidate, has been materially affected by the improper acceptance of any nomination, that the High Court shall declare the election of the returned candidate to be void. Such an opinion can be formed in an election petition and not in proceedings under Article 226 of the Constitution. We, therefore, decline to entertain this petition. The petition is, accordingly, dismissed. There shall be no order as to costs. —————