Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 252 (ORI)

Madhaba Chandra Pradhan v. State of Orissa

2015-04-15

A.K.RATH

body2015
JUDGMENT A.K. RATH, J. 1. In this writ application, the petitioner has prayed, inter alia, to quash the notification no.1858/SEC., dated 31st March, 2015 issued by the State Election Commission, Odisha, vide Annexure-7. By the said notification, the State Election Commission cancelled the earlier notification no.1024/SEC dated 3.3.2015 in respect of Ranpur Notified Area Council (hereinafter referred to as “NAC”) of Naygarh district and appointed the dates and time afresh relating to the said election. 2. Bereft of unnecessary details, the short facts of the case of the petitioner are that the Additional District Magistrate, Nayagarh in exercise of power under Section 12(3-A) of Odisha Municipal Act, 1950 read with Rule 2-A(1) of Odisha Municipal (D.W.R.S. & C.E.) Rules, 1994 (hereinafter referred to as “the Act and Rules) invited objections and suggestions on the proposed delimitation of wards and reservation of seats by enclosing therein the draft notification dated 26.8.2014 for conducting election of NAC, Ranpur. A copy of the said notification was affixed on the notice board of NAC. Simultaneously, a copy of the same was also submitted to the Director of Municipal Administration. In the said draft notification, reservation of seats for different categories of citizens had been mentioned. Since no objection was filed to the said draft notification, final notification was made. Thereafter some persons filed appeal challenging the said final notification issued by the Additional District Magistrate, Nayagarh. The petitioner was not a party to the said appeal. The appellate authority by order dated 24.10.2014 modified the final notification and the same was communicated on 27.10.2014 to the District Magistrate, Nayagarh. Thereafter, the District Magistrate, Nayagarh divided the area of Ranapur NAC into fifteen wards. Ward No.9 was reserved for B.C.C. (Women). In the earlier notification, this ward was reserved for B.C.C. candidates. Thereafter, the Election Officer, Ranpur notified the election programme on 10.3.2015 as per the notification dated 3.3.2015 of the State Election Commission. The petitioner filed nomination by depositing the required fees. He was allotted a symbol of ladder (Nishuni). The date of election was fixed to 7.4.2015. In the earlier notification, this ward was reserved for B.C.C. candidates. Thereafter, the Election Officer, Ranpur notified the election programme on 10.3.2015 as per the notification dated 3.3.2015 of the State Election Commission. The petitioner filed nomination by depositing the required fees. He was allotted a symbol of ladder (Nishuni). The date of election was fixed to 7.4.2015. While the matter stood thus, on 31.3.2015, the District Magistrate, Nayagarh reported that the Election Officer of Ranpur NAC has published the reservation statement of wards wrongly to the State Election Commission, whereafter the State Election Commission cancelled the notification dated 3.3.2015 in respect of Ranpur NAC and fixed a date and time afresh for holding election for the Ranpur NAC, vide Annexure-7. The grievance of the petitioner is that earlier the ward was reserved for B.C.C. candidates, but subsequently the same is reserved for B.C.C. (Women) for which he has been debarred from contesting the election. 3. Heard Mr.S.K.Samantaray-2, learned counsel for the petitioner and Mr.B.P.Pradhan, learned Additional Government Advocate for the State-opposite party. 4. Learned counsel for the petitioner submits that there is no reason or rhyme to cancel the notification no.1024/SEC dated 3.3.2015 issued by the State Election Commission. Pursuant to the earlier notification, the petitioner filed his nomination paper with requisite fees. Thereafter, a symbol was allotted to him. At this juncture, the State Election Commission by notification dated 31.3.2015, vide Annexure-7, cancelled the earlier notification basing on the letter of the District Magistrate, Nayagarh. By letter dated 31.3.2015, the District Magistrate reported that the Election Officer of Ranpur NAC has published the reservation status of wards wrongly in notice issued by him on 10.3.2015 for which the election process has been vitiated. He further submits that in the latter notification, the ward has been reserved for B.C.C. (Women). The petitioner has been debarred from contesting the election for all time. 5. Learned counsel for the State submits that since the process of election has been set into motion, the writ petition is not maintainable. 6. The seminal point that hinges for consideration of this Court is as to whether this Court in exercise of its power under Article 226 of the Constitution can intervene to stop election in the midway when the process of as the process of election has been set into motion. 7. 6. The seminal point that hinges for consideration of this Court is as to whether this Court in exercise of its power under Article 226 of the Constitution can intervene to stop election in the midway when the process of as the process of election has been set into motion. 7. Before proceeding further, it is apposite to quote Article 243ZG of the Constitution. (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZA shall not be called in question in any court; (b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” 8. The Constitution Bench of the Supreme Court in N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency, Namakkal, AIR 1952 SC 64 held that the right to vote or stand as a candidate for election is not a civil right, but is a creature of statute or special law and must be subject to the limitations imposed by it. It was further held that 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 Article 226 of the Constitution and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up at an intermediate stage before any Court. 9. The same view was echoed in Nanhoo Mal and others vs. Hira Mal and others, AIR 1975 SC 2140 . It was held that after the decision of the Supreme Court in N.P. Ponnuswami (supra), there is hardly any room to entertain the application under Article 226 of the Constitution in matters relating to election. In both the cases, the Supreme Court had occasion to deal with the provisions of the Representation of the People Act. 10. In Anugrah Narain Singh and another vs. State of UP “243ZG. In both the cases, the Supreme Court had occasion to deal with the provisions of the Representation of the People Act. 10. In Anugrah Narain Singh and another vs. State of UP “243ZG. Bar to interference by courts in electoral matters.-Notwithstanding anything in this Constitution and others, (1996) 6 SCC 303 , the Supreme Court on interpretation of 243-ZG of the Constitution, which pertains to stay of election to the Municipal Corporation, held that once the process of election has been set into motion, the Court should not intervene to stop election in the mid way. In the case of Election Commission vs. Ashok Kumar and others, AIR 2000 SC 2979 , a detailed consideration has been made with regard to the power exercised by the Court. In paragraph-32 of the said report, the general principles have been summarized in the following manner:- “32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove; (1) If an election, (the terms election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to “calling in question an election” if it sub-serves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court. (5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329 (b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilize the court’s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the every nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.” 11. In view of the bar contained in Article 243ZG of the Constitution and authoritative pronouncement of the apex Court in the decisions cited supra, a conclusion is irresistible that when the election process has been set into motion, the High Court in exercise of its jurisdiction under Article 226 of the Constitution should not interfere with the process of election. 12. As the election process has been set in motion, this Court is not inclined to entertain the writ application. Accordingly, the same is dismissed.