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Allahabad High Court · body

2016 DIGILAW 1812 (ALL)

MANOJ KUMAR v. STATE OF U. P.

2016-05-11

KRISHNA MURARI, VINOD KUMAR MISRA

body2016
JUDGMENT By the Court.—Heard learned counsel for the petitioner and learned Standing Counsel representing the respondents No. 1, 2 and 3. Notice on behalf of respondent No. 4 has been accepted by Sri Tarun Agrawal. Petitioner was one of the persons who had filed his nomination for bye-election to 30 Bilari Legislative Assembly Constituency Moradabad. Bye-election was being held on account of vacancy caused due to death of sitting MLA in an accident. The returning officer for the constituency took up the scrutiny of the nomination papers on 30.4.2016 filed by various candidates. On scrutiny, the nomination paper filed by the petitioner was rejected on the same day on certain grounds, which need not be set out as they have no material to the issue being raised in this petition. 2. It is contended that the impugned order rejecting the nomination paper of the petitioner is illegal, unjustified and arbitrary and is liable to be quashed. 3. Learned counsel appearing for the respondents submits that in view of Article 329 of the Constitution, there is a complete bar on the powers of the Court to interfere in the electoral matters except by way of election petition. Article 329 (b) reads as under: 329. Bar to interference by Courts in electoral matters.—Notwithstanding anything in this Constitution (a) ......... (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.” 4. The question posed before us as to whether the High Court will have power to interfere with an order passed by returning officer rejecting the nomination paper in exercise of extra ordinary jurisdiction conferred by Article 226 of the Constitution is no longer res integra. In identical facts and circumstances, the question came up for consideration before the Constitution Bench of Hon’ble Apex Court in celebrated case of N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64 . In the said case, nomination paper of the appellant for election to Madras Legislative Assembly was rejected by the returning officer after scrutiny. In identical facts and circumstances, the question came up for consideration before the Constitution Bench of Hon’ble Apex Court in celebrated case of N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64 . In the said case, nomination paper of the appellant for election to Madras Legislative Assembly was rejected by the returning officer after scrutiny. Appellant moved the High Court under Article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be published. The High Court dismissed the writ petition on the ground that it had no jurisdiction to interfere with the order of Returning Officer in view of the provisions of Article 329 (b) of the Constitution. The judgment was challenged by the appellant before the Hon’ble Apex Court. After considering the existing law on the subject as also the words “no election shall be called in question” used in Article 329 (b), the Hon’ble Apex Court in paragraphs 8 and 9 of the reports observed as under : “8.The next important question to be considered is what is meant by the words “no election shall be called in question”. A reference to any treatise on elections in England will show that an election proceeding in that country is liable to be assailed on very limited grounds, one of them being the improper rejection of a nomination paper. The law with which we are concerned is not materially different, and we find that in Section 100 of the Representation of the People Act, 1951, one of the grounds for declaring an election to be void is the improper rejection of a nomination paper. “9. The question now arises whether the law of elections in this country contemplates 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. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to be that 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. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art. 329 (b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it. The argument advanced before the Hon’ble Apex Court in the said case that since the Representation of the People Act was enacted subject to the provisions of Constitution, it cannot bar the jurisdiction of the High Court to issue writs under Article 226 of the Constitution was rejected by making following observations : “This argument however is completely shut out by reading the Act alongwith Art. 329 (b). It will be noticed that the language used in that article and in Section 80 of the Act is almost identical, with this difference only that the article is preceded by the words “notwithstanding anything in this Constitution”. It will be noticed that the language used in that article and in Section 80 of the Act is almost identical, with this difference only that the article is preceded by the words “notwithstanding anything in this Constitution”. I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress. “ Conclusions arrived at after detail analysis were summarised as under : “Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the “election”; and if any irregularities are committed while, it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the “election” and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress.” 5. The issue came to be reaffirmed by another Constitution Bench of Apex Court in the case of Mohinder Singh Gill and anoher v. The Chief Election Commissioner, New Delhi and others, (1978) I SCC 405. The matter was placed before the Constitution Bench on a reference by two Judge Bench as it found substantial questions of law have arisen as to the interpretation of the Constitution particularly in respect of Articles 324 and 329 (b) of the Constitution. The matter was placed before the Constitution Bench on a reference by two Judge Bench as it found substantial questions of law have arisen as to the interpretation of the Constitution particularly in respect of Articles 324 and 329 (b) of the Constitution. One of the questions framed for consideration by the Constitution Bench was as under : Is Article 329 (b) a blanket ban on all manner of questions which may have impact on the ultimate result of the election, arising between two temporal termini viz., the notification by the President calling for the election and the declaration of the result by the returning officer ? Is Article 226 also covered by this embargo and. if so, is Section 100, Representation of People Act, 1951, broad enough to accommodate every kind of objection, constitutional, legal or factual, which may have the result of invalidation of an election and the declaration of the petitioner as the returned candidate and direct the organisation of any steps necessary to give full relief ? Hon’ble Krishna Iyer, J. speaking for himself, Hon’ble M.H. Beg, C. J. and Hon’ble P. N. Bhagwati, J. observed as under : “The invulnerable barrier of Article 329 (b). 20. Right at the forefront stands in the way of the appellant’s progress the broad-spectrum ban of Article 329 (b) which, it is claimed for the respondents, is imperative and goal- oriented. Is this Great Wall of China, set up as a preliminary bar, so impregnable that it cannot be by passed even by Article 226 ? That, in a sense, is the key question that governs the fate of this appeal. Shri P. P. Rao for the appellant contended that, however, wide Article 229 (b) may be, it does not debar proceedings challenging, not the steps promoting election but dismantling it, taken by the Commission without the backing of legality. He also urged that his client, who had been nearly successful in the poll and had been deprived of it by an illegal cancellation by the Commission, would be left in the cold without any remedy since the challenge to cancellation of the completed poll in the entire constituency was not covered by Section 100 of the Act. Many subsidiary pleas also were put forward but we will focus on the two inter-related submissions bearing on Article 329 (b) and Section 100 and search for a solution. Many subsidiary pleas also were put forward but we will focus on the two inter-related submissions bearing on Article 329 (b) and Section 100 and search for a solution. The problem may seem prickly but an imaginative application of principles and liberal interpretation of the Constitution and the Act will avoid anomalies and assure justice. If we may anticipate our view which will presently be explained, Section 100 (1) (d) (iv) of the Act will take care of the situation present here, being broad enough, as a residual provision, to accommodate, in expression ‘non-compliance’, every excess, transgression, breach or omission. And the span of the ban under Article 329 (b) is measured by the sweep of Section 100 of the Act.” “21. We have to proceed heuristically now. Article 329 (b) reads: Notwithstanding anything in this Constitution.- “(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.” Let us break down the prohibitory provision into its components. The sole remedy for an aggrieved party, if he wants to challenge any election, is an election petition. And this exclusion of all other remedies includes constitutional remedies like Article 226 because of the non-obstante clause. If what is impugned is an election the ban operates provided the proceeding ‘calls it in question’ or puts it in issue; not otherwise.” 6. The law on the issue was crystallized in paragraphs 92, 93 and 94 of the Reports which reads as under : “92. Diffusion, even more elaborate discussion, tends to blur the precision of the conclusion in a judgment and so it is meet that we, synopsize the formulations. Of course, the condensed statement we make is for convenience, not for exclusion of the relevance or attenuation of the binding impact of the detailed argumentation. For this limited purpose, we set down our holdings. (1) (a) Article 329 (b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. For this limited purpose, we set down our holdings. (1) (a) Article 329 (b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. (b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.. (2) (a) The Constitution, contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances. (b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law, relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of such, provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so- far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz., elections. Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full penoply but in flexible practicability. Whether it has been compiled with is left open for the Tribunal’s adjudication. (3) The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage and procedure as predicated in Article 329 (b) and the 1951 Act. (3) The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage and procedure as predicated in Article 329 (b) and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other thing necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law.” “93. In sum, a pragmatic modus vivendi between the Commission’s paramount constitutional responsibility vis-a-vis elections and the rule of law vibrant with fair acting by every authority and remedy for every right breached, is reached.” “94. We conclude stating that the bar of Article 329 (b) is as wide as the door of Section 100 read with Section 98. The writ petition is dismissible but every relief (given factual proof) now prayed for in the pending election petition is within reach. On this view of the law ubi jus ibi remeditum is vindicated, election injustice is avoided, and the constituency is allowed to speak effectively. In the light of and conditioned by the law we have laid down, we dismiss the appeal. Where the dispute which spirals to this Court is calculated to get a clarification of the legal calculus in an area of national moment, the parties are the occasion but the people are the beneficiaries, and so costs must not be visited on a particular person. Each party Will bear his own costs. Concurring with the view expressed by Hon’ble Krishna Iyer, J., Hon’ble P. K. Goswami J. for himself and Hon’ble P. N. Singhal, J. observed in paragraph 125 and 126 of the Reports as under : “125. It is submitted by Mr. Rao that in Ponnuswami (supra) the question was of improper rejection of nomination paper which is clearly covered by Section 100 (1) (c) of the Act. It is submitted by Mr. Rao that in Ponnuswami (supra) the question was of improper rejection of nomination paper which is clearly covered by Section 100 (1) (c) of the Act. Counsel submits that the only ground which can be said to be raised in the election petition, in the present case, is Section 100 (d) (iv), namely, non-compliance with the provisions of the Constitution or of the Representation of the People Act, 1951, or of any rules or orders made under that Act. According to counsel, there is no non-compliance with Article 324 of the Constitution as the Election Commission has no power whatsoever to pass the impugned order under Article 324 of the Constitution. That, according to him, is not “non-compliance with the provisions of the Constitution” within the meaning of Section 100 (1) (d) (iv). We are unable to accept this submission for the reasons already given. The Election Commission has passed the order professedly under Article 324 and Section 153 of the Act. We have already held that the order is within the scope and ambit of Article 324 of the Constitution. It, therefore, necessarily follows that if there is any illegality in the exercise of the power under Article 324 or under any provision of the Act, there is no reason why Section 100 (1) (d) (iv) should not be attracted to it. If exercise of a power is competent either under the provisions of’ the Constitution or under any other provision of law, any infirmity in the exercise of that power is, in truth and substance, on account of non-compliance with the provisions of law, since law demands of exercise of power by its repository, as in a faithful trust, in a prope,. regular, fair and reasonable manner. (See also Durga Shankar Mehta v. Thakur Raghueraj Singh).” “126. The above being the legal position, Article 329 (b) rules out the maintainability of the writ application. Article 329 (b) provides that “notwithstanding anything in this Constitution...... no election to either House of Parliament...... 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 undisputed that an election can be challenged only under the provisions of the Act. no election to either House of Parliament...... 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 undisputed that an election can be challenged only under the provisions of the Act. Indeed Section 80 of the Act provides that “no election shall be called in question except by an election petition presented in accordance with the provisions of” Part VI of the Act. We find that all the substantial reliefs which the appellants seek in the writ application, including the declaration of the election to be void and the declaration of appellant 1 to be duly elected, can be claimed in the election petition. It will be within the power of the High Court, as the election Court, to give all appropriate reliefs to do complete justice between the parties. In doing so it will be open to the High Court to pass any ancillary or consequential order to enable it to grant the necessary relief provided under the Act. The writ application is therefore barred under Article 329 (b) of the Constitution and the High Court rightly dismissed it on that ground. 7. The aforesaid view taken by two constitution Benches that Article 329 (b) operates as a complete bar to challenge any of the steps from start to finish of the election process and the only remedy available is by way of election petition has been constantly followed till date. In view of the settled legal proposition, this writ petition challenging the rejection of the nomination paper of the petitioner is not liable to be entertained being barred and the same accordingly stands dismissed.