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2016 DIGILAW 1023 (ORI)

Assaf Ali Khan v. State of Odisha

2016-11-03

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : VINEET SARAN, J. The petitioner has filed this writ petition in the nature of public interest litigation to ensure transparency and fairness in the election of Gram Panchayats and Zilla Parishads to be held in the month of February, 2017 with the following prayers: (i) To facilitate the submission of nomination of candidates through online mode for contesting for all the posts of the Panchayat and Zilla Parishad in the official website of Odisha State Election Commission; (ii) To upload the manually submitted nomination and affidavit of all candidates contesting for all the posts of all local bodies, in the official website of the Odisha State Election Commission, immediately; (iii) To take necessary and appropriate steps for compulsory usage of Electronic Voting Machines by the 4th Respondent, in the election for all posts of Rural Local Bodies besides Urban Local Bodies in the State of Odisha, in the forthcoming Election. (iv) To install CCTV and monitors both inside and outside the restrict areas of polling booths, counting booths and also ballot boxes security room. (v) To ensure 50% reservation for women candidates for contesting in the elections for all the posts; (vi) To ensure the ability to read and write Oriya for all the candidates contesting for any post whatsoever. (vii) To ensure the declaration of election result of all the Zilla Parishads, Panchayats and local bodies in one day; (viii) To ensure uniform principle of not more than 2 children in respect of all the candidates to all the State polls. 2. The factual matrix of the case in hand is that the petitioner, who is the State Convenor of Rajiv Gandhi Panchayatraj Sangathan, Congress Committee, Orissa contends that the election for Urban Local Bodies and Rural Local Bodies in State of Odisha are to be conducted in accordance with the Acts and Rules governing the field. The Orissa State Election Commission is the competent authority to conduct free and fair elections for all posts of local bodies both in urban and rural areas. To ensure transparency in the election, State Election Officers and Returning Officers of the respective local bodies for both urban and rural areas are to function in consonance with the provisions of law. The Orissa State Election Commission is the competent authority to conduct free and fair elections for all posts of local bodies both in urban and rural areas. To ensure transparency in the election, State Election Officers and Returning Officers of the respective local bodies for both urban and rural areas are to function in consonance with the provisions of law. It is stated that there is every chance that the District Collectors and officials working under the control of the State Government run by the ruling party may abuse its power to influence them to act in their favour during the forthcoming local body election. Therefore, necessary impartial officers be deputed to conduct the ensuing elections in free and fair manner and, as such, no District Collectors should be allowed to act District Election Officers and independent observer is to be deputed for each district from other States equal to the rank of District Collectors. They must be given all monitoring powers for the entire district concerned in the local body election related matters to ensure free and fair elections. 3. Mr. S.K. Purohit, learned counsel for the petitioner strenuously urged that this Court should exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India to ensure free and fair election in the ensuing Gram Panchayat and Zilla Parishad elections to be held in the month of February, 2017. It is urged that the petitioner apprehends that as a citizen, he apprehends that there is every likelihood that the election will not be conducted in free and fair manner. Therefore, he has approached this Court by filing the present writ petition. Reliance has also been placed an order of the High Court of Judicature at Madras in G. Kumar v. The Secretary and others, (W.P. No. 32092 of 2016, disposed of on 14.09.2016). 4. Mr. B.P. Pradhan, learned Addl. Govt. Advocate strenuously urged that the writ petition is not maintainable in apprehension and, as such, there is no cause of action surviving at the moment so as to exercise the power under Article 226 of the Constitution of India. More so, on perusal of the pleadings, no materials have been furnished by the petitioner to substantiate the contention raised in the writ petition and basis of apprehension has not been established by providing the materials on record. More so, on perusal of the pleadings, no materials have been furnished by the petitioner to substantiate the contention raised in the writ petition and basis of apprehension has not been established by providing the materials on record. Therefore, the writ petition is premature and the same deserves to be dismissed. 5. The matter has been taken up at the fresh admission stage, therefore no notice has been issued to opposite party no.2. We have heard the learned counsel for the petitioner and learned Addl. Govt. Advocate appearing for opposite parties no. 1, 3 and 4. 6. On perusal of the pleadings available on record, it appears that no material has been produced to substantiate the allegation made in the writ petition. Rather, the pleadings have been made in a general manner without producing any material to appreciate the allegations and to substantiate the same. 7. The pleadings and particulars are required to enable the Court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the Court in narrowing the controversy involved and to inform the parties concerned to the questions in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that “as a rule relief not founded on the pleadings should not be granted.” Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties, may it be a public interest litigation. 8. In Narmada Bachao Andolan v. State of Madhya Pradesh, AIR 2011 SC 1989 , the apex Court held that it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas. 9. In Guroovayoor Devaswom Committee v. C.K. Rajan, (2003) 7 SCC 546 , the apex Court held that public interest litigation is not adversarial in nature and strict rules of pleadings may not apply. Nevertheless, the general principles of pleadings apply to PIL also and all necessary and material facts must be placed before the Court and on the basis of such facts, decision ought to be taken by the Court. Nevertheless, the general principles of pleadings apply to PIL also and all necessary and material facts must be placed before the Court and on the basis of such facts, decision ought to be taken by the Court. Similar view has also been taken S.P. Anand v. H.D. Dewe Gouda, (1996) 6 SCC 734 and Mahesh Chand v. Union of India, AIR 1999 SC 1575 . 10. In view of the aforesaid law laid down by the apex Court and from perusal of the prayer in the writ petition mentioned above, it is clear that the prayers made in this writ petition are general in nature. It is submitted by learned counsel for the petitioner that there is apprehension of irregularities and malpractices being committed in the conduct of Panchayat elections in case the said prayers are not allowed. But, on scrutiny of pleadings and also the prayers made in the writ petition, it appears that the petitioner has claimed for certain act to be done which is essentially within the domain of legislature, who frames the law within their legislative competency. 11. In Supreme Court Employees’ Welfare Association v. Union of India, AIR 1990 SC 334 , the apex Court observed as follows:- “There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority…..[But] if the rules framed by the Chief Justice of India and approved by the President of India relating to the salaries, allowances, leave or pensions offend against Articles 14 and 16, the same may be struck down by the Court.” 12. In State of H.P. v. Umed Ram Sharma, (1989) 2 SCC 68, the apex Court held that even though the right to life under Article 21 of the Constitution embraces in it not only physical existence but the quality of life and for residents of hilly areas, access to road and, therefore, the residents of hilly areas have locus standi to move the High Court for such a facility, the High Court cannot issue a direction to the Legislature to legislate nor to the Government to spend a particular amount for a particular project. 13. 13. Applying the above law laid down by the apex Court to the present context, this Court is of the considered view that it has no jurisdiction to issue any direction to the legislature to enact a particular law in a particular manner, as prayed for in the writ petition. 14. Learned counsel for the petitioner has laid stress on the first and second prayers, which are for direction to the opposite parties to make it compulsory that the submission of nomination of candidates be made through online mode for all the posts of the Panchayat and Zilla Parishad in the official website of Odisha State Election Commission. It is submitted that because of manual submission of the nomination papers, there are chances of irregularities which can be ruled out, if the same is made online. In our view, no writ petition can be filed on the basis of mere apprehension. There is no evidence to show that by filing the nomination papers manually, there are irregularities being committed. 15. With regard to third prayer for taking steps for usage of electronic voting machine compulsory in the elections for all posts of Rural Local Bodies, it is not for Courts to issue any such direction, but for the Election Commission or the authorities concerned to take appropriate decision in the matter, as it is for them to consider whether the electronic voting machine could be made available and whether the same would be appropriate for conduct of elections of the nature in question. 16. As regards the other prayers for installation of CCTV cameras, reservation of 50% for women candidates or to ensure the ability of the candidates to read and write Odia, we are of the opinion that it is for the legislature to take a decision in this regard and not the Court. Prayer no. (vii) deals with declaration of result of all the Zilla Parishads, Panchayats and local bodies in one day, which also is a matter to be considered by the Election Commission and not by the Court. 17. As regards prayer no. (viii), the principle of allowing only such candidates to contest the election, who do not have more than two children, is already applicable in the case of Panchayats for which this petition has been filed. 17. As regards prayer no. (viii), the principle of allowing only such candidates to contest the election, who do not have more than two children, is already applicable in the case of Panchayats for which this petition has been filed. The prayer to ensure this principle to be applied uniformly to all elections in the State cannot be looked into in the writ jurisdiction, especially when the Election Commission of India, which is to hold State level elections, is not even a party. As such, we are of the view that such prayer also does not deserve to be granted. 18. From the reliance placed on G. Kumar mentioned supra, it appears that no law has been laid down by the High Court of Judicature at Madras. Since no ratio has been decided in the said case, the same has no precedential value. 19. The writ petition is accordingly dismissed. However, the dismissal of the writ petition will not come in the way of the petitioner in approaching the appropriate authorities for redressal of his grievance. No order to cost.