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2019 DIGILAW 529 (UTT)

Ajay Kumar v. State Election Commission

2019-09-27

ALOK KUMAR VERMA, RAMESH RANGANATHAN

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JUDGMENT : Ramesh Ranganathan, J. 1. The objection of the registry is that a certified copy of the order has not been filed. Since a copy of the order has been filed, we see no reason not to entertain this Special Appeal. The objection raised by the Registry is overruled. 2. Heard Mr. Aditya Singh, learned counsel for the appellant-writ petitioner and Mr. Sanjay Bhatt, learned Standing Counsel for the State Election Commission. 3. This intra-court appeal is preferred by the appellant writ petitioner against the interlocutory order passed by the learned Single Judge, in WPMS No. 2930 of 2019 dated 25.09.2019, to the extent the learned Single Judge had refused to grant the interim relief sought for i.e. to direct the respondents to accept the petitioner's nomination to contest elections to the post of Member, Block Development Committee of Jaspur khurd, in Udham Singh Nagar District. The petitioner was, hitherto, a member of the Block Development Committee during the five period 2014 to 2019. His term of office came to an end on 15.07.2019. He was disqualified from contesting the ensuing election by the order passed by the State Election Commission dated 18.04.2015, on the ground that he had not submitted information regarding the election expenditure incurred by him. The petitioner invoked the writ jurisdiction of this Court filing WPMS No. 2564 of 2019. By his order dated 12.09.2019, the learned Single Judge quashed the order passed by the State Election Commission dated 18.04.2015, and directed the respondents to consider the petitioner's reply within ten days. Pursuant thereto, the State Election Commission issued a show cause notice on 13.09.2019, the petitioner submitted his reply thereto by his letter dated 19.09.2019 and the State Election Commission passed an order on 20.09.2019. The appellant-writ petitioner invoked the jurisdiction of this Court, under Article 226 of the Constitution of India, on 23.09.2019 without questioning the order of State Election Commission dated 20.09.2019. He, however, amended his prayer in the writ petition to include a challenge to the validity of the said order dated 20.09.2019. 4. The appellant-writ petitioner invoked the jurisdiction of this Court, under Article 226 of the Constitution of India, on 23.09.2019 without questioning the order of State Election Commission dated 20.09.2019. He, however, amended his prayer in the writ petition to include a challenge to the validity of the said order dated 20.09.2019. 4. In the order under appeal dated 25.09.2019, the learned Single Judge observed that the last date of nomination had expired on 24.09.2019, the word 'Election' was of a very wide import; the Election started from the date of the notification which had already commenced; and interference under Article 226 of the Constitution of India would not be proper in the light of the judgments of the Constitution Bench of the Supreme Court in N.P. Ponnuswami vs. The Returning Officer, Namakkal and Others, (1952) AIR SC 64 and in Mohinder Singh Gill vs. Chief Election Commissioner and Others, (1978) 1 SCC 405 . 5. On taking note of the fact that larger issues had been raised in the case as to whether the State Election Commission was authorized to prescribe any such disqualification in as much as the law only gave such an authority to the State legislature, the Learned Single Judge observed that these aspects necessitated further examination. Granting three weeks' time to the respondents to file their counter-affidavit, the writ petition was directed to be listed after three weeks. Aggrieved thereby, the present appeal. 6. Mr. Aditya Singh, learned counsel for the petitioner, would submit that the impugned order dated 20.09.2019 is ex-facie illegal; reliance is placed therein on the earlier order dated 18.04.2015 which has been quashed by this Court by its order dated 12.09.2019; the bar prescribed under Article 243-O(b) of the Constitution contemplates availing the remedy of an election petition; no Rules have been made so far prescribing any procedure for filing an election petition; the earlier Rules, made under the U.P. Panchayati Raj Act, 1947, has already been repealed by the Uttarakhand Panchayati Raj Act, 2016 and since the remedy of an election petition before the Tribunal is not available to the petitioner, he has no other remedy except to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. 7. 7. While examining the aforesaid submissions, it must be borne in mind that the Writ Petition is still pending on the file of the learned Single Judge, and hearing of the Writ Petition has merely been deferred by three weeks to enable the respondents to file their counter affidavit. Our jurisdiction, under Chapter VIII Rule 5 of the Allahabad High Court Rules, has been invoked against the interlocutory order dated 25.09.2019 declining to grant the petitioner the interim relief sought for by him i.e. for his nomination to be accepted and for him to be allowed to participate in the ensuing elections. 8. As has been noted by the learned Single Judge, in the interlocutory order under appeal, an election notification has been issued, and the election process has already commenced. The election notification was issued, by the State Election Commission, on 13.09.2019, a day after the earlier WPMS No. 2564 of 2019, filed by the appellant-writ petitioner earlier, was disposed of by the learned Single Judge by his order dated 12.09.2019. The election notification dated 13.09.2019 prescribed the period of nomination to commence from 20.09.2019 and to expire by 24.09.2019. In the order under appeal dated 25.09.2019, the learned Single Judge has noted that the last date for filing nomination had expired a day before on 24.09.2019. 9. As held by the Supreme Court, both in N.P. Ponnuswami vs. The Returning Officer, Namakkal and Others, (1952) AIR SC 64 and in Mohinder Singh Gill vs. Chief Election Commissioner and Others, (1978) 1 SCC 405 , the term 'Election' is of very wide import, and commences from the date on which an election notification is issued and continues till the election results are declared. The object of inserting Article 243 O(b) is to permit the election process to proceed unhindered, and not to interdict it mid-stream. That is the reason why the said provision specifically provides for a post election remedy of filing an election petition. 10. In the aforesaid judgments of the Supreme Court and in West Bengal State Election Commission vs. Communist Party of India (Marxist), (2018) AIR SC 3964 the Supreme Court has held that the High Court would not, in the exercise of its jurisdiction under Article 226 of the Constitution of India, interfere with the process of election mid-stream i.e. after an election notification is issued, and till the election results are declared. While the jurisdiction of this Court under Article 226 of the Constitution of India may not be barred, since the power of the High Court under Article 226 of the Constitution of India has been held to form a part of the basic structure of the Constitution, in which event, such a power cannot be negated or circumscribed even by amendment to the Constitution, much less by legislation-plenary or subordinate, the High Court exercises jurisdiction within self-imposed limitations, one of which is that the jurisdiction under Article 226 of the Constitution of India would not be exercised contrary to law. 11. In the present case, besides the law laid down in Part IX of the Constitution, and by State legislature in the Uttarakhand Panchayati Raj Act, the law declared by the Supreme Court in the aforesaid judgments would also constitute a law binding on the High Court under Article 141 of the Constitution of India. Even if we were to presume that the petitioner does not have the remedy of filing an the election petition, the learned Single Judge has adequately safeguarded the petitioner's interests by entertaining the writ petition, albeit without granting him any interim relief. 12. The elections scheduled to be held shortly would, undoubtedly, be subject to the result of the writ petition. In case the petitioner were to succeed, it would always be open to the learned Single Judge, at that stage, to consider the nature of relief to be granted to him. 13. The learned Single Judge is not a Court subordinate, as both he and the Division Bench exercise the very same jurisdiction under Article 226 of the Constitution of India. As long as the view taken by the learned Single Judge is a plausible view, even if the Division Bench is satisfied that the other view canvassed before it, on behalf of appellant, is more attractive, even then no interference is called for. It is only if the view of learned Single Judge is not even a possible view would interference be justified. We are satisfied that the order under appeal does not suffer from any such infirmity. 14. The Special Appeal fails and is, accordingly, dismissed. No costs.