Andhra HC (Pre-Telangana)
Guttakonda Kanaka Durga vs State Election Commissioner, Govt. Of ... on 11 July, 2001
Equivalent citations: AIR2001AP519, 2001(4)ALT476, AIR 2001 ANDHRA PRADESH 519, (2001) 4 ANDH LT 476 (2001) 4 ANDHLD 839, (2001) 4 ANDHLD 839
Author: S.B. Sinha
Bench: S.B. Sinha, Bilal Nazki
ORDER
S.B. Sinha, CJ
1. The petitioner herein is a candidate for the post of Member, Pedakurapadu Zilla Parishad Territorial Constituency. She and respondents 4 and 5 herein filed nomination papers. The nomination papers filed by respondents 4 and 5 were accompanied by demand drafts of the prescribed amount drawn on Canara Bank. The third respondent purported to have entertained a doubt as to whether such a deposit is valid one and referred the matter to the first respondent herein for his opinion. However, according to the petitioner, without waiting for the opinion of the first respondent, the third respondent accepted the nomination of respondents 4 and 5 herein.
2. Mr. T. Suryakaran Reddy, learned Counsel appearing on behalf of the petitioner submitted that having regard to the provisions contained in Rule 7 of the Andhra Pradesh Panchayat Raj (Conduct of Elections of Members and Sarpanch of Gram Panchayat, Members of Mandal Parishad and Members of Zilla Parishad) Rules, 1994. Such deposit being not a valid deposit, the nominations of respondents 4 and 5 could not have been accepted and in what in view of the matter no election is required to be held. In a situation of this nature, contends the learned Counsel, writ petition will be maintainable. In support of the said contention, strong reliance has been placed upon a Division Bench decision of this Court in K. Venkateswarlu v. Government of A.P., . As two of us have doubted the correctness of the said decision, the matter has been referred to Full Bench.
3. Mr. Suryakaran Reddy vehemently submits that in this writ petition no disputed question of fact arises for consideration. In a situation of this nature, this Court should not ask the petitioner herein to take recourse to alternative remedy as provided for under Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994 read with Rule 12(d)(i) of the Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995. In support of the said contention, strong reliance has been placed on the decisions of Apex Court in Hari Vishnu v. Ahmad Ishaque, , Sangram Singh v. Election Tribunal, Kotah, , and Boddula Krishnaiah v. State Election Commissioner, . In this writ petition, a counter-affidavit has been filed on behalf of respondent No.4 wherein, inter alia, it has been contended that having regard to the fact that the date of poll has been fixed by reason of a notification issued by the first respondent herein as 12-7-2001 and as the election process has already commenced, this Court should not entertain writ petition keeping in view the provisions of Article 243-O of the Constitution of India. It has been contended that the acceptance or rejection of a nomination paper cannot be questioned by way of writ petition in the midst of election process and in any event the instructions given by the first respondent herein cannot be said to be conclusive. The respondent would contend that having regard to the fact that Rule 7 requires interpretation by a Court, this Court should not entertain a writ application.
4. There cannot be any doubt whatsoever, as has been held by the Apex Court in Hari Vishnu as also Sangram Singh (supra), that by reason of a Central or State Act, the jurisdiction of the High Court under Article 226 of the Constitution of India cannot be taken away. The Court exercises a rule of self-restraint in such matters having regard to the fact as to whether the extraordinary jurisdiction should be exercised in the fact situation obtaining in each case.
5. It has not been disputed that exercise of this Court's jurisdiction is discretionary. Whether in a case of this nature, the Court can exercise its extraordinary jurisdiction or not will depend upon the fact situation of each case. But while doing so, the Court has to apply its mind to the constitutional provisions contained in Article 243-O, as also Section 233 of the Panchayat Raj Act, and Rule 12(d)(i) of 1994 Rules.
6. In K. Venkateshwarlu's case (supra) a Division Bench of this Court was dealing with the old rules. The observations made by the Division Bench as regards the Court's power in entertaining a writ petition, in our opinion, were not opposite inasmuch as therein all aspects of the matter had not been taken into consideration.
7. Article 243(O) of the Constitution of India reads thus:
"Bar to interference by Courts in electoral mailers :--Notwithstanding anything in this 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 243-K, shall not be called in question in any Court;
(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."
8. By reason of the said provision, a bar has been created in the matter of interference by Courts in electoral matters. Although as noticed herein before, such a bar may not, in true sense, apply to constitutional remedies but it is now well settled that the Court while making an exception to the said provision of entertaining an application must, inter alia, be satisfied that the action on the part of respondents is wholly without jurisdiction. In N.P. Ponnuswamy v. Returning Officer, Namakkal, , it has been held:
"As we have seen, the most important question for determination is the meaning to be given to the word "election" in Article 329(b). That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected."
9. In the said decision, Mahajan, J., upheld the judgment of the Lahore High Court in Sat Narain v. Hanuman Parshad, AIR 1946 Lahore 85, wherein it has been observed:
"It seems to me that the word 'election' has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of expression "conduct of elections" is Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Article 329(b). That the word "election"
bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election beings."
10. This aspect of the matter has also been considered in V. Narayana v. Election Officer, Alwal Municipality, , and Ch. Ramachandra Rao, v. State of A.P.,, which have been noticed by a Division Bench of this Court in Writ Petition No. 13489 of 2001 disposed of on 5-7-2001.
11. In Boddula Krishnaiah (supra), the Apex Court itself observed that when election process has been set in motion the High Court would not be justified in interfering with the same giving direction to the Election Officer to stall the proceedings or to conduct election process afresh in particular when election has already been held.
12. The matter must be considered from another angle. In the event this writ petition is allowed, the Court will not put a final seal as regards the interpretation of Rule 7 vis-a-vis the opinion of the first respondent. Respondents 4 and 5 herein, having regard to the provisions contained in Rule 12(d)(i), would be entitled to file election petitions and in the event they succeed therein a fresh election has to be held; whereas in the event the election process, which was set in motion, is allowed to be continued and the election is held pursuant thereto and in the event the petitioner herein is not elected, she has a remedy to file an application for setting aside the election in terms of the said rules. We cannot lose sight of another aspect of the matter; if this writ petition is allowed, respondents 4 and 5 herein will be deprived of a statutory remedy available to them in terms of Section 233 of the Gram Panchayat Act read with Rule 12(d)(i).
13. Further more, improper acceptance of nomination by itself is not a ground to set aside an election. Rule 12(d) provides that an Election Tribunal may declare an election of a returned candidate void only when the result of election, insofar as it concerns a returned candidate, has been materially affected by reason of improper acceptance of any nomination and not otherwise. This aspect of the matter, thus, has to be gone into only when election is held and not prior thereto. We may notice the decision in Stale of U.P. v. Pradhan Sangh Kshettra Samiti, , wherein the Apex Court observed:
"What is more objectionable in the approach of the High Court 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 seals to them."
14. Yet again in Anugrah Narain Singh v. State of UP., , the Apex Court has held:
"12. .....The bar imposed by Article 243-ZG is twofold. Validity of laws relating to delimitation and allotment of seats made under Article 243-ZA cannot be questioned in any Court. No election to a municipality can be questioned except by an election petition. Moreover, it is well settled by now that if the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the elections. There were ten petitioners in the main writ petition and several others in connected writ petitions, who had questioned the fairness of the action of the authorities concerned in publication of the notifications dated 11-10-1995 and 13-10-1995 pursuant to which the elections to the Municipal Corporations throughout the State of U.P were to be held. The Slate Government and also the Election Commission took the stand before the High Court after that the publication of the notification for holding municipal elections, the High Court under Article 226 of the Constitution could not interfere with the election process. On the other hand, the writ petitioners' contention was that the election was being held in a farcical manner and the confidence of the people had been shaken in the electoral process and the constitutional guarantee regarding constitution and composition of the municipalities had been thrown to the winds. In this situation, Article 243-ZG could not be treated as an absolute bar to doing justice under Article 226 of the Constitution."
15. Although it is not necessary but we may notice that in M. Karunanidhi v. H.V. Handa, , the Apex Court observed that the procedure, which had been followed in making such deposit, may be held to be valid. In any event, having regard to the fact that the election is going to be held tomorrow wherefor elaborate arrangements must have been made, in our opinion, it is not a fit case in which we should exercise our jurisdiction. However, there cannot be any doubt whatsoever that in the event any occasion arises either for the petitioner or respondents 4 and 5 to file an election petition, the Tribunal shall consider the same without, in any way, being influenced by any observations made herein.
16. The writ petition is dismissed with the afore-mentioned observations.