Andhra HC (Pre-Telangana)
Majji Dharma Rao vs Goutu Syamasundar Sivaji And Others on 22 January, 1996
Equivalent citations: AIR1996AP354, AIR 1996 ANDHRA PRADESH 354, (1996) 2 ANDHLD 451 (1996) 2 ANDHWR 265, (1996) 2 ANDHWR 265
ORDER
1. The petitioner is challenging the election of the first respondent as a member of the Andhra Pradesh Legislative Assembly from Sompeta 12 Assembly Constituency held on December 5, 1994. The petitioner is an elector from Makharajwala village of Sompeta Assembly Constituency. The Election Commission has issued a notification wherein the last date for filing nominations was fixed to November 8, 1994, scrutiny of nominations on November 9 and the date of election was December 5, 1994. Results were published on December 12,1994 declaring the first respondent as the returned candidate.
2. The first respondent filed his nomination on November 8,1994 as a Telugu Desam Party candidate; while the second respondent filed his nomination on November 5, and respondents Nos. 3 to 8 have also filed their nominations on November 8, 1994. At the time of scrutiny of nominations on November 9, 1994, an objection was raised for accepting the nomination of the first respondent on the ground that he had incurred disqualification as he defected and joined the Telugu Desam Party without resigning as an independent member from the IX Legislative Assembly. The first respondent was earlier elected to the IX Legislative Assembly as an independent candidate with an independent symbol 'Elephant'. Later he, along with other independent members constituted a Democratic Peoples Front and continued as such. However, he obtained 'B' Form from the President of the Telugu Desam Party and filed his nomination as a Telugu Desam Party candidate on November 8, 1994 without resigning as an independent member. He also secured the reserved party symbol 'Cycle' belonging to the Telugu Desam Party. Being an independent candidate in the IX Legislative Assembly, the first respondent has incurred disqualification on the date of filing nomination on Novembers, 1994 as a Telugu Desam Party candidate under Article 191 (2) of the Constitution of India. The written objection filed on November 9, 1994 before the 9th respondent was illegally rejected on November 10,1994 on the ground that the list of disqualified candidates supplied by the Election Commission does not contain the name of the first respondent. The second respondent sent his objection petition dated November 9, 1994 to the Chief Election Commission of India which was also not considered by the said authority.
3. The second respondent was allotted the symbol 'Flaming Torch'. Sompeta Constituency consists of more than 80 per cent illiterate rural voters. Suprisingly the ballot papers got printed by the 9th respondent did not contain was sympbol 'Flaming Torch', but what the printed on the ballot paper was only a bud which does not have the following features viz., a handle, a burner at one end and flame emanating from the burner. The 9th respondent under the influence of the first respondent has wilfully and with a mala fide intention to cause loss to the second respondent printed the ballot papers as stated above; while the first respondent's symbol 'Cycle' was printed clearly and in a big size. Due to this, the illiterate voters of Sompeta Constituency were not only misleid, but were also deprived of casting their vote in favour of the second respondent. Therefore, the election held is vitiated and as the second respondent was disqualified, the election of the first respondent should be set aside and the second respondent should be declared to have been duly elected.
4. The first respondent in his written statement while denying the material allegations contained in the election petition, stated that to prevent unhealthy trend of defections, Clause (2) has been added to Articles 102 and 191 of the Constitution, apart from incorporating 10th Schedule in the Constitution. The procedure and mechanism to ascertain whether there is any defection or not, the Speaker/Chairman is empowered to take action and even if any disqualification is incurred by a member of one political party, the same comes to an end, the moment the house is dissolved/The last Session of the IX Assembly came to an end prior to the nomination of the first respondent. Apart from Article 212 of the Constitution, Paras 6 & 7 to the 10th Schedule clearly mandate that no Court shall have jurisdiction in respect of any matter relating to disqualification of a member except the Speaker/Chairman and his decision shall be final and the same cannot be called in question in any Court of law. Admittedly, the first respondent was never disqualified by the Speaker. It is true the first respondent was elected to the IX Assembly as an independent candidate. In order to have an identity in the IX Legislative Assembly and to elect one as leader of the independent candidates, they formed as a group in the name of 'Democratic Peoples Front'. The said front is neither a political party nor functioned as a political party. It was a simple group of likeminded independent members of the Assembly without any political party identity. Even assuming that he suffered any disqualification on that count, there is no bar for him to contest in X Legislative Assembly Elections.
5. Regarding the allotment of symbol, it is stated that the second respondent himself has chosen the symbol 'Flaming Torch' and entered the election fray and after the elections are over, the petitioner is raising a dispute on behalf of the second respondent that his symbol was printed on the ballot paper as a bud and not a 'Flaming Torch' which is incorrect. Printing of ballot papers is the exclusive function of the election authority with which none of the candidates is concerned. The allegation that the 9th respondent has been influenced by this respondent is false. Hence the election petition is devoid of merits and has to be dismissed.
6. The second respondent in his written statement more or less takes the similar pleas as that of the petitioner.
7. The Returning Officer also filed his written statement denying the allegations in the election petition. In his written statement he states that as far as the contention of the petitioner that the first respondent has not resigned as an independent M.L.A. of the IX Legislative Assembly before joining Telugu Desam Party, or before filing his nomination is concerned, the earlier status of the first respondent as an independent M.L.A. has nothing to do with the filing of the nomination for the X Legislative Assembly elections. Para 2 of the 10th Schedule specifies the grounds of defection for purpose of disqualification. Sub-para (2) of Para 2 of the Schedule makes it clear that a member of the house who has been elected as such, otherwise than as a candidate set up by any political party shall be disqualified for being a member of the house if he joins any political party after such election. Therefore during the term of that house if a member belonging to one political party joins any other political party he suffers disqualification and the disqualification comes to an end, the moment the house is dissolved. It is for the Speaker/ Chairman to consider the dispute about the disqualification and his decision is final.
8. Regarding the allegation of printing of symbol, it is stated that the type, size of the symbol was designed, approved and communicated by the Election Commission of India and in accordance with the guidelines the printing of ballot papers was done under the close supervision of technical officers in the Government printing press, Vijayawada in pursuant to the orders issued by the Chief Electoral Officer, Andhra Pradesh, Hyderabad. On the day of poll, neither the second respondent nor the petitioner had filed any complaint regarding the manner of printing of symbol on ballot papers. Therefore, it is clear that this contention is only an afterthought having lost the election. There is no truth in the allegations levelled against the 9th respondent since he acted in accordance with the rules and within the ambit of the directions and guidelines of the Election Commission of India. In fact elections were conducted impartially and he even received a commendation communicated by the Chief Election Officer through his D.O.Lr. No. 685 /ELEC/94-1 dated 19-12-1994 for conducting free and fair election.
9. Sri Manik Prabhu, the learned counsel for the petitioner urged that the second respondent being a sitting independent M.L.A. cannot contest as a T.D.P. candidate without resigning from membership of the Assembly. It is also further contended that in view of the same, the second respondent has suffered disqualification under X Schedule of the Constitution.
10. Sri Satya Prasad, the learned Counsel appearing for the second respondent countered these arguments and contended that the second respondent has not incurred any disqualification for contesting the election on behalf of the Telugu Desam Party.
11. Before answering this contention, it is necessary to notice a few relevant provisions.
Article 191(2) reads as follows:
"A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule"
Sub-paragraph (2) of paragraph 2 of the Tenth Schedule reads as follows:
"An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election."
Sub-paragraph (1) of paragraph 6 reads as follows:
"If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final."
In view of the above Constitutional provisions, the learned Counsel for the petitioner contends that the first respondent who was a sitting independent member could not have contested on behalf of the Telugu Desam Party without resigning his membership.
12. However, the learned Counsel for the first respondent raised a preliminary objection that there is a bar to the jurisdiction of the High Court under Art. 226 of the Constitution and the Speaker alone can go into this question. I cannot accept this contension. The bar contemplated under the said proviso only relates to the irregularities in procedure. This Para 6 had been the subject-matter of consideration by the apex Court in a number of decisions. In a recent decision reported in Kihota Hollohon v. Zachilhu, , the Supreme Court has observed as follows (Paras 70 and 72):
"It is settled that such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity. Accordingly, sub-paragraph (1) alone is insufficient to exclude the extraordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court."
.....
That being so, the matter falls within the ambit of clause (1) only of Articles 122 and 212 as a result of which it would be vulnerable on the ground of illegality and perversity and, therefore, justiciable to that extent."
In view of this binding decision, it is clear that there is no absolute bar of jurisdiction of this Court under Article 226 of the Constitution. But this Court is not exercising powers under Article 226 of the Constitution while hearing an election petition filed under the Representation of the People Act, 1951. Perhaps it can be said that there is no absolute immunity under Article 212 from judicial scrutiny in view of the decisions of the Supreme Court provided the Speaker has exercised power under Paragraph 6(1) of the Tenth Schedule, and such a decision can be challenged under Art. 226 on certain limited ground.
13. The question then is, whether this Court exercising its original jurisdiction under the Representation of the People Act, can go into the alleged disqualification of a member of the Legislative Assembly. R. W. 2 who contested unsuccessfully against the first respondent has stated in his evidence that the first respondent has suffered disqualification under Anti-defection laws. He filed an-objection questioning the validity of the nomination filed by the first respondent before the Returning Officer. He has also sent copies of the said representation to the Chief Election Commission, State Election Commissioner and the Speaker of the Legislative Assembly and the postal receipts of those repesentations are marked as Exs. B-1 to B-3, but no action was taken by them so far.
14. The learned Counsel for the first respondent submits that it is only the Speaker under Paragraph (6) of the Tenth Schedule to take a decision on the question of disqualification on the ground of defection. But since in this case as the IX Assembly of which the first respondent was an independent member was already dissolved on 10-12-1994 by a notification, no useful purpose would be served by conducting any enquiry by the Speaker, the competent authority in this behalf.
15. Paragraph (8) of the Tenth Schedule empowers the Speaker of the House to make Rules for giving effect to the provisions of the said Schedule. Accordingly, the Members of Andhra Pradesh Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 were framed. Rule 3 enjoins a duty on the Leader of each Legislative Party, other than a Legislative Party consisting of only one member, to furnish a statement containing the names of members of such Legislative Party in prescribed form. Under sub-rule (2) of Rule 3, where a Legislative Party consisting of only one member, such a member shall also furnish information to the Speaker. Passing of information to the Speaker and also for taking a decision by him, elaborate procedure is prescribed, including the prescribed forms to be filed under the signature of the Leader of the Party as well as by the members. The first respondent was an independent member in the IX Legislative Assembly, whose term expired by 10-12-1994. R.W. 1, the returned candidate has stated in his evidence that he did not submit resignation from the membership of the IX Legislative Assembly being an independent member before filing nomination, but the leader of the Telugu Desam Party, Mr. N. T. Rama Rao informed the Speaker that he has joined the Telugu Desam Party as an Associate member. He also stated that he does not know whether any order was passed by the Speaker on the information furnished by the leader of the Telugu Desam Party about his joining the Telugu Desam Party. After he joined Telugu Desam Party, the leader of the Telugu Desam Party announced the same and the media also telecast the same and neither the petitioner nor anybody objected to the same before the Speaker. R.W. 2 who is the unsuccessful candidate, stated in his evidence that he is not aware whether the first respondent became an Associate member of the Telugu Desam Party in November, 1994. He did not also send any objection to the Speaker about this. He seems to have filed nomination on behalf of the Telugu Desam Party also without 'B' form nominating him on behalf of the said party. He was hoping to secure the 'B' Form from the Telugu Desam Party and with that hope he has filed nomination on behalf of the Telugu Desam Party also. As the 'B' form was not given to him by the Telugu Desam Party, but to the first respondent, he contested the elections as independent candidate. Be that as it may, the second respondent or the petitioner did not dispute the statement of the first respondent that he became an Associate Member of the Telugu Desam Party in the month of November, 1994. No suggestion was put to this witness, R.W. 1 that he did not join the Telugu Desam Party before 8-11-1994. No material is placed by the petitioner as to whether any dispute was raised before the Speaker regarding joining of the first respondent in Telugu Desam Party before 8-11-1994, and if so, any decision taken by the Speaker concerned. The petitioner has not taken any steps calling for the records relating to the intimation given by the leader of the Telugu Desam Party and the decision thereon. In view of the insufficient material it would not be proper for me to venture into a decision thereon for the purpose of this petition suffice it to say that the petitioner has not placed sufficent material before me. This conclusion is reached by me since it is primarily the jurisdiction of the Speaker to go into these matters and the decision of the Speaker, if, any can only be challenged in this Court under Articles 226 and 227 of the Constitution of limited grounds. Therefore, without knowing whether any objection was raised before the Speaker on the joining of the first respondent in Telugu Desam Party, and whether any decision was taken by the Speaker, and whether the first respondent was continuing as independent member on the date of filing of nomination, and whether such conduct is objectionable under Anti-Defection Law, it would be presumptuous on the part of this Court to record a finding on this aspect.
16. The learned Counsel for the first respondent alternatively contended that even assuming that the first respondent has incurred disqualification, the said question cannot be gone into at this stage. In any event, the learned Counsel contends that the disqualification would come to an end with the termination of the IX Legislative Assembly. To put it in a different way, the argument is, even if a member of the Legislative Assembly is disqualified on the ground of Anti-Defection Laws, the disqualification can only operate during the term of the said Assembly and it cannot operate beyond the tenure of the said Assembly, and therefore, it can under no circumstance operate as a disqualification of the member to contest in the subsequent elections after the dissolution of the earlier Assembly. I see force in this argument. There is no warrant to suppose to the contrary in the absence of any specific provision to that effect. The power to disqualify a sitting member is different from disqualifying a candidate from contesting in the election. The power of the Speaker to disqualify a member under the Anti-Defection Laws cannot travel beyond the tenure of the Assembly of which he was the Speaker. Therefore, even assuming that the first respondent has incurred any disqualification from being a member of the IX Legislative Assembly, the Speaker cannot disqualify him from contesting in the next election as he has no such power. In a nutshell, the question here is whether the first respondent is disqualified from being chosen to fill the seat in the X Legislative Assembly, but not whether he was disqualified from membership to the IX Legislative Assembly. Strictly speaking no useful purpose will be served by examining the issue whether the first respondent is disqualified in the IX Legislative Assembly unless it has a bearing on the question of disqualification from being chosen as a member in the next Assembly. The scope, ambit, relevancy of these two aspects are entirely different. The question of disqualification of the first respondent for the IX Legislative Assembly has no significance since the same does not operate as disqualification for contesting the next elections after the earlier Assembly was dissolved. Hence, I cannot accept that the so-called disqualification incurred by the first respondent continues beyond the term of the IX Legislative Assembly. Therefore, in any case accepting the contention of the petitioner, I cannot hold that the Returning Officer has accepted the nomination of the first respondent illegally, but only consequently hold that he cannot be disqualified from being elected as a member of the Legislative Assembly on behalf of the Telugu Desam Party. Suffice it to say that the respondent No. 9 before whom an objection was raised, has verified the list of disqualified candidates supplied by the Election Commission, and found that the first respondent is not disqualified. Whether he has jurisdiction to go into the disqualification under Anti-Defection Laws, or not, there is no material before me to reach a decision that the first respondent is disqualified. Therefore, I cannot interfere with the decision taken by the respondent No. 9. The contention of the petitioner in this regard is that the date of scrutiny of nominations was fixed on 9-11-1994 and on 9-11-1994, the second respondent filed his objection to the validity of the nomination of the first respondent, the Returning Officer without conducting enquiry on 9-11-1994, but announced his decision on 10-11-1994 which is contrary to the election programme. This objection also in my view has no force. An objection regarding the validity of the nomination of the first respondent was filed on 9-11-1994, the respondent No. 9 has endorsed on the said objection petition, Ex. B-6 on 9-11-1994 that decision is adjourned to the next day. On 10-11-1994 the Returning Officer accepted the nomination of the first respondent overruling the objection under endorsement, Ex. B-7. On 11-11-1994, he published a list of valid nominations. Therefore, I do not find any valid objection to the procedure adopted by the respondent No. 9. For all these reasons, I cannot accept the contention of the petitioner that the first respondent has been disqualified from contesting as a member of the Legisaltive Assembly on behalf of Telugu Desam Party.
17. The learned Counsel for the petitioner relied on a decision of the Supreme Court reported in A. R. Antulay v. R. S. Nayak, , and contends that a decision taken by the Returning Officer on the objection filed by the second respondent is erroneous, and therefore, the said order is clearly per incuriam. As I have already held that the decision taken by the respondent No. 9 is unassailable. This decision has no application to the facts of the case. He further relied on Luis Proto Barbosa v. Union of India, , wherein the Supreme Court held that the resignation by the Speaker from his post to which he was elected does not give him immunity from incurring disqualification as M.L.A. and the enquiry into disqualification cannot be stalled. This decision has no bearing on the facts of this case. The learned Counsel also raised another contention that the Returning Officer has admitted that he had consulted his higher authorities before taking action on the objection petition about the nomination of the first respondent and relied on Fakruddin v. State of A.P. rep. by its Secretary, 1971 A.P. High Court Notes 269 for the proposition that consulting higher authorities is bad, and therefore, his decision is vitiated. I cannot accept this contention. The Returning Officr has stated that he had consulted the Revenue Divisional Officer for a copy of the Anti-Defection Law as he was. not having such a copy. Therefore, it is clear that the Returning Officer has not sought the advice of the Revenue Divisional Officer as to the decision he should take on the objection petition. Therefore, the decision taken by the Returning Officer cannot be said to be vitiated.
18. The next contention urged by the learned Counsel for the petitioner is that the symbol which was printed on the ballot paper does not look like a flaming torch, but it looks like a bud, therefore, the illiterate voters were misled which materially affected the result of the election of the petitioner.
19. P. W. 1 is a voter who stated that he is a semilliterate and he has cast his vote after reading the name of the second respondent on the ballot paper written in Telugu. He also admitted that he did not submit any complaint about non-printing of the symbol 'flaming torch' in the ballot paper to anybody. Therefore, his evidence does not disclose that the second respondent has suferred loss of votes on account of printing of the alleged symbol. The second respondent himself was examined as R.W. 2. He stated that he had visited several rural places on the date of poll and people from rural areas have complained that they did not find the symbol 'flaming torch' on the ballot paper. In Sompet constituency, 70 per cent of the voters are illiterates. The model symbol, 'flaming torch' shown by the Returning Officer contains the particulars like a handle, a burner and flame at the top, but the symbol printed on the ballot paper does not contain them. He dented that the Returning Officer has supplied a sheet containing independent symbols out of which he selected the symbol, 'flaming torch'. He also denied that Pslasa Cashew Labour Union, which supported him got printed his photo and the symbol for enlisting the support of the voters. The said publication is marked as Ex. A-4. The second respondent could not deny that the symbol on Ex. A-1 and Ex. B-4 are similar. He also admitted that he did not file any objection for non-printing of the symbol properly on the baltotpaper on the date of election. A look at Ex. A-1 and Ex. B-4 shows that the symbol is identical. The Returning Officer who was examined as R.W. 3 also states that he has shown the symbols meant for independent candidates and out of them the second respondent has chosen his symbol 'flaming torch' and there is no difference between the specimen symbol shown to the second respondent and the symbol 'flaming torch' printed on the ballot paper. He has further stated that he has not received any complaint about the defective printing of the symbol 'flaming torch' allotted to the second respondent from any quarter. Therefore, from the evidence of the Returning. Officer, it is clear that he has shown the model symbols for independent candidates and the second respondent has selected the symbol 'flaming torch'. It is also further clear that there is no difference between the model symbol shown to the second respondent and the symbol printed on the ballot paper. This view is further supported by Ex. B-4 which is a publication made by Palasa Cashew Workers Union, made in the newspaper for enlisting support to the second respondent from the voters. It is surprising that neither the second respondent, nor his election agents have filed any objection before the returning officer or other officials bringing to their notice that the ballot paper does not contain the symbol 'flaming torch', but what was printed was only a bud. Had there been such a serious defect in ballot paper, as contended now, the second respondent and his election agents would not have failed to raise this objection during the course of election before the Returning Officer or other officials, particularly when complaints were made to them by voters in this regard. That apart the second respondent has himself raised objection about the disqualification of the first respondent before the Returning Officer under Ex.A-6. Curiously even in the said written objection, the second respondent never stated that the symbol 'flaming torch' was not properly printed which misled the voters materially affecting the result of the election. Therefore, this contention of the petitioner that the election symbol of the second respondent was not printed, but instead of a bud was printed in the ballot paper at the instance of the first respondent cannot be accepted. Even the 'evidence of PW 2 who is the election petitioner also does not advance his case on this aspect. Not even a single illiterate voter was examined in support of this contention that they were misled. The Returning Officer also denied that the ballot papers of Sompet constituency were printed at Srikakulam and that he has any part in such printing. He also stated that he is not concerned with allotment of space, size of the symbols or printing of the ballot papers. The petitioner has not produced any material in support of his contention that the Returning Officer in collusion with the first respondent got printed the ballot in such a way without printing the symbol 'flaming torch' properly which materially affected the result of the election. Therefore, this contention that the ballot papers are printed with defective symbol of the second respondent has no force.
20. For the foregoing reasons, the election petition is devoid of merits and is accordingly dismissed with costs. Advocate's fee Rs.2500/-.
21. Petition dismissed.