Boddula
Krishnaiah & Anr Vs. State Election Commissioner, A.P. & Ors [1996] INSC
426 (20 March 1996)
Ramaswamy,
K.Ramaswamy, K.Bharucha S.P. (J) Paripoornan, K.S.(J)
CITATION:
1996 AIR 1595 1996 SCC (3) 416 JT 1996 (4) 156 1996 SCALE (3)301
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
We
have heard the counsel on both sides.
The
controversy relates to election to the Gram Panchayat Nalgonda District of
Andhra Pradesh. The Notification was issued on June 7, 1995 to conduct elections to the Gram Panchayat under the Andhra
Pradesh Panchayat Raj Act. (No. 13 of 1994) 1994 (For short the 'Act'] . The
electoral rolls of the Gram Panchayat were required to be finalised 30 days
prior to the poll. It would appear that in the draft roll prepared by the
competent authority, names of about 94 persons find their place but later their
names were deleted. Consequently, they filed Writ Petition No. 3060/95 in the
High Court including respondent No, 6-42 in this case. The elections were held
on 27th June,1995. By an order dated 26th June, 1995
the High Court, by an interim order directed to allow 94 persons to participate
in the election but on the date of the poll they could not exercise their
franchise. Subsequently, in WPMP No. 16901/95 the respondent No. 6-42 sought
direction to permit them to exercise their franchise. By an interim order dated
July 6, 1995 , the direction was issued by the
High Court not to declare the result of the election of the Gram Panchayat. The
appellant and pro form respondent No. 43 filed WVMP No. 2478/95 to vacate the
direction issued by the High Court on July 6, 1995. On November 8, 1995, the High Court directed the Revenue Divisional Officer
(RDO), Nalgonda to scrutinize the claims of respondent Nos. 6-42 and ascertain
whether they are residing in the village. By proceedings dated December 2, 1995, the RDO found that only 20 persons
were eligible to be included in the voters list as they were found living in
the village, during the enquiry. On these facts, the High Court by the impugned
order dated December 22, 1995 directed that 20 persons out of respondent
Nos.6-42, who were found eligible to vote should be allowed to participate in
the election, Thus, these appeals by special leave.
The
only question is whether the High Court would be justified in giving the
direction for participating the 20 persons who are found to be eligible to vote
for exercising their franchise separately when the poll was already over.
Shri
P.P. Raot the learned senior counsel appearing for the appellant contended that
once the election process was set in motion, by operation of Article 243(o) of
the Constitution, the High Court was not justified in directing 20 persons to
participate in the election. The appropriate remedy would be by way of an
election petition. The object of the Act, the Rules made thereunder and Article
243 [0] is to see that the election process to the Gram Panchayats once is set
in motion, the process should be culminated in the declaration of the result of
election and any dispute in relation to the conduct of the election would be
subject matter of an election dispute and would be dealt with by the
appropriate Tribunal in accordance with law. The High Court, therefore, was not
justified in giving the aforesaid direction. Shri K. Madhava Reddy, learned
senior counsel appearing for the respondents contended that the respondents
have filed the writ petition in January 1995 much earlier than the election
process notified questioning deletion of their names from the draft Electoral
rolls. It is found as a fact that though their names were appearing in the
draft electoral rolls, they were deleted without giving an opportunity to the
residents of village Narayanpur. In the enquiry, names of as many as 20
eligible persons were found and yet they were denied the exercise of their
right to franchise when the order passed by the High on June 26, 1995 in Writ
Petition No.3060/95 which was allowed to become final. The direction to allow
them to participate in the election was frustrated by preventing them to exercise
their franchise which is in the teeth of the Court's order.
Therefore,
the High Court was justified in giving direction in the writ petition. It is
also contended that the High Court, pending the writ petition, gave the
direction and it being discretionary, this Court would be slow to interfere
with the order under Article 136 of the Constitution.
Having
given our anxious consideration to the respective contentions the question that
arises for our consideration is whether the High Court would be justified in
giving direction, firstly, that respondent Nos.6-42, in particular 20 persons
be allowed to participate in the process of election after the election process
was completed and consequently whether the High Court would be justified in
interfering with the election process.
Section
33 of the Act envisages that no election held under this Act shall be called in
question except by an election petition presented to such authority in
accordance with such rules as may be made In this behalf. In exercise of the
rule-making power under the Act, the Andhra Pradesh Panchayat Raj Election
Tribunals in respect of Gram panchayats, Mandal Parishads and Zila Parishads
Rules, 1994 [for short, the 'Rules'] were made. Under Rule 2 [1] provides that
[S]ave as otherwise provided, no election held under the Act, whether of a
member, Sarpanch or Upa-Sarpanch of Gram Panchayat, President [and
Vice-President] of mandal Parishad and member of Mandal Parishad. Territorial
Constituencies and Chairman, [Vice-Chairman] of Zila Parishad and members of Zila
Parishad Territorial Constituencies thereof, shall be called in question except
by an election petition presented in accordance with the Rules to the Election
Tribunals as defined in sub-rule C2] by any candidate or elector against the
candidate who has- been declared to have been duly elected [hereinafter called
the returned candidate] or if there are two or more returned candidates against
all or any such candidates.
Rule
12 [d] (iii)of the Rules provides the grounds to set aside the elections which
reads as under:
"If
in the opinion of the Election Tribunal 5 the result of the election, insofar
as it concerns a Returned Candidate, has been materially affected by any
improper reception refusal or rejection of any vote or the reception of any
vote which is void, the Election Tribunal shall declare the election of the
Returned Candidate to be void".
Article
243 [0] of the Constitution envisages bar on interference by courts in election
matters. Notwithstanding anything contained in the Constitution, under
sub-clause (b) "no election to any Panchayat 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'.
Thus there is a constitutional bar on interference with the election process
except by an election petition, presented to an Election Tribunal as may be
made by or under law by the competent legislature and in the manner provided thereunder,
Power of the court granting stay of the election process is no longer res integra
In N.P. Punnuswami v. Returning Officer, Namakkal Constituency & Ors. [1952
SCR 218] a Constitution Bench of this Court had held that 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 the
principle, the scheme of the election law 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. The same principle
was laid down in Lakshmi Charan Sen and Ors. etc. v. A.K.M. Hassan Uzzaman
& Ors. etc.[(1985) Supp. 1 SCR 493] . In this case where the election
process was set in motion the High Court granted ad-interim injunction of the
further proceedings of the election to the State Legislature. A Constitution
Bench of this Court had held thus:
The
High Court acted within its jurisdiction in entertaining the writ petition and
in issuing a Rule Nisi upon it, since the petition questioned the vires of the
laws of election. But it was not justified in passing the interim orders dated
February 12, and 19, 1982 and in confirming those orders by its judgment dated February 25, 1982.
Firstly,
the High Court had no material before it to warrant the passing of those
orders. The allegations in the Writ Petition are of a vague and general nature
on the basis of which no relief could be granted. Secondly, though the High
Court did not lack the jurisdiction to entertain the Writ Petition and to issue
appropriate directions therein, no high Court in the exercise of its power
under Article 226 of the Constitution should pass any orders, interim or
otherwise, which has the tendency or effect of postponing an election, which is
reasonably imminent and in relation to which its writ jurisdiction is invoked.
The
High Courts must observe a self-imposed limitation on their power to act under
Article 226, by refusing to pass orders or given directions which will
inevitably result in an indefinite postponement of elections to legislative
bodies, which are the very essence of the democratic foundation and functioning
of our Constitution. That limitation ought to be observed irrespective of the
fact whether the preparation and publication of electoral rolls are a part of
the process of 'election' within the meaning of Article 329 [b] of the
Constitution " At page 497 it was further held that:
"Even
assuming, that the preparation and publication of electoral rolls are not a
part of the process of 'election' within the meaning of Article 329 [b], the
High Court ought not to have passed the impugned interim orders, whereby it not
only assumed control over the election process but, as a result of which, the
Section to the Legislative Assembly stood the risk of being postponed
indefinitely.
The
same principle was reiterated when the election to the Gram Panchayat was
sought to be stalled in State of U.P. & Ors. v. Pradhan, Sangh Kshettra
Samiti & Ors. [(1995) Supp. 2 SCC 305 at 331]. The Court observed thus:
"What
is more objectionable in the approach of the High is that although clause [a]
of Article 243 [O] of the constitution enacts a bar on the interference by the
courts in electoral matters including the questioning of the validity of any
law relating to the delimitation of the constituencies or the allotment of seats
to such constituencies made or purported to be made under Article 243-K and the
election to any panchayat, the High Court has gone into the question of the
validity of the delimitation of the constituencies and also the allotment of
seats to them. We may, in this connection, refer to a decision of this Court in
Meghraj Kothari v. Delimitation Commission [(1967) 1 SCR 400 : AIR 1967 SC
669]. In that case, a notification of the Delimitation Commission whereby a
city which had been a general constituency was notified as reserved for the
Scheduled Castes. This Court held that the impugned notification was a law
relating to the delimitation of the constituencies or the allotment of seats to
such constituencies made under Article 327 of the Constitution, and that an
examination of Sections 8 and 9 of the Delimitation Commission Act showed that
the matters therein dealt with were not subject to the scrutiny of any court of
law. There was a very good reason for such a provision because if the orders
made under Sections 8 and 9 were not to be treated as final, the result would
be that any voter, if he so wished, could hold up an election indefinitely by
questioning the delimitation of the constituencies from court to court.
Although
an order under Section 8 or Section 9 of the Delimitation Commission Act and
that same position as a law made by Parliament itself which could only be made
by it under Article 327. If we read Articles 243-C, 243-K and 243-0 in place of
Article 327 and Sections 2 [kk], II-F published under Section 10 [4] of Act
puts such an order in the and 12-BB of the Act in place of Sections 8 and 9 of
the Delimitation Act, 1950, it will be obvious that neither the delimitation of
the panchayat area nor of the constituencies in the said areas and the allotments
of seats to the constituencies could have been challenged nor the court could
have entertained such challenge except on the ground that before the
delimitation no objections were invited and no hearing was given. Even this
challenge could not have been entertained after the notification for holding
the elections was issued. The High Court not only entertained the challenge but
has also gone into the merits of the alleged grievances although the challenge
was made after the notification for the election was issued on 31-8-1994.
Thus,
it would be clear that once an election process has been set in motion, though
the High Court may entertain or may have already entertained a writ petition,
it would not be justified in interfering with the election process giving
direction to the election officer to stall the proceedings or to conduct the
election process afresh in particular when election has already been held in
which the voters were allegedly prevented to exercise their franchise.
As
seen, that dispute is covered by an election dispute and remedy is thus
available at law for redressal, Under these circumstances, we hold that the
order passed by the High Court is not correct in law in giving direction not to
declare the result of the election or to conduct fresh poll for 20 persons,
though the writ petition is maintainable. The High Court, pending writ
petition, would not be justified in issuing direction to stall the election
process. It is made clear that though we have held that the respondents are not
entitled to the relief by interim order, this order does not preclude any
candidate including defeated candidate to canvass the correctness of the
election. They are free as held earlier, to seek remedy by way or an election
petition as provided in the Act and the Rules.
The
appeals are allowed accordingly, but, in the circumstances, without costs.
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