Andhra HC (Pre-Telangana)
K. Vishnuvardhan Reddy vs District Collector, Kurnool And ... on 1 October, 1999
Equivalent citations: 2000(1)ALD187, 1999(6)ALT217
ORDER
M.S. Liberhan, CJ
1. In these two writ petitions, the petitioners who have contested in the General Election pertaining to 185-Nandikotkur Assembly Constituency as independent candidates have sought for a mandamus to the respondents to permit the counting agents on their behalf in the counting hall at the time of counting of votes on 6-10-1999 in respect of the said constituency, on the apprehension that they will not be permitted to take the counting agents.
2. Curiously, no order rejecting the representations of the petitioners has been produced. Further, the counting is scheduled to be held on 6-10-1999. The Returning Officer, being the administrative head for the supervision and conduct of elections of the constituency, taking into account the exigencies such as space available, number of counting agents to be allowed in the counting hall and other aspects, will take appropriate decision regarding the grant of permission to allow the counting agents in the counting hall. The Returning Officer has not taken any such decision in the matter and there is still time for taking decision in the matter.
3. The learned Counsel for the petitioners has vehemently argued that the statutory Act provides for permitting the counting agents and the petitioners cannot be debarred from having the facility of appointing the counting agents on their behalf. As already stated, there is nothing on record to show that the petitioners have been debarred from appointing the counting agents by any order of the election authority. Even assuming that any order was passed declining to give such permission, this Court, in exercise of the power under Article 226 cannot take over the superintendence and day-to-day administrative work of the Returning Officer. The Returning Officer being under the supervision of the Election Commission who will take appropriate decision in the light of the statutory provisions and in accordance with the guidelines of the Election Commission.
There is no gainsaying that election law is a statutory law and there is no equitable right vested in any person or it is a right where equities can be gone into in exercise of the powers of this Court under Article 226. Conduct of free, fair and independent elections is the basic concept for any democratic set up and the violation of by the Legislature by providing statutory provisions and regulations which will have to be strictly followed by the election authorities who are empowered to deal with them. It is the responsibility of the election authorities to see that elections are conducted freely, fairly and independently and in case where violation of any rights or irregularities which are grave in nature and which has adversely affected the result of any contesting candidate are noticed, then, in such cases only appropriate directions can be issued by the Courts including setting aside the election. No directions can be issued like for deployment of army or police or to permit such number of persons as counting agents or arranging of the counting table in a particular manner etc., or any other facility which is administrative in character.
4. The learned Counsel for the petitioners very vehemently relied upon the decision of the Supreme Court in K. Venkalachalam v. A. Swamickan, , in order to contend that there is no bar under Article 226 of the Constitution to challenge the action of the election authority and that unless there is clear bar to jurisdiction of the High Court, the power under Article 226 can be exercised when there is any violation of statutory provision or constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. He contended that since Section 47 of the Representation of the People Act, 1951 empowers the contesting candidates to appoint counting agents and since such a permission was not given to the petitioners by the election authority, this Court can entertain the writ petitions and issue appropriate directions. We are unable to agree with the contention of the learned Counsel for the petitioners. The decision relied upon by the learned Counsel for the petitioners has no application to the case on hand. The facts of the said case are that the appellant therein was not an elector in electoral roll of a particular Assembly Constituency for general elections in the State of Tamil Nadu and he filed his nomination on affidavit impersonating himself for another person of same name in the electoral roll and, therefore, he lacked the basic qualification under clause (c) of Article 173 of the Constitution read with Section 5 of Representation of People Act. His election was not challenged by filing an election petition under the Act. However, a petition was filed under Article 226 and a learned single Judge of the High Court of Tamil Nadu dismissed the writ petition on the ground of maintainability. However, a Division Bench of the High Court declared that the appellant was not qualified to sit as a member of the Legislative Assembly as he did not possess the basic qualification prescribed by law. The Hon'ble Supreme Court found that the appellant knows he is not qualified for membership of the Legislative Assembly and yet acted contrary to law. In such circumstances, the Apex Court held that the High Court can exercise jurisdiction under Article 226 declaring that the appellant is not qualified to be member of the Legislative Assembly. It was further held by the Supreme Court that Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court, its powers under Article 226 can be exercised when there is any act which is against any provision pf law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. The observations made by the Supreme Court are applicable in the facts and circumstances of that case wherein a person who was not qualified to sit in the Assembly was debarred from sitting in the Assembly in exercise of the power under Article 226. There is no provision in the Representation of People Act for issuance of any direction or relief debarring an unqualified person from sitting in the Assembly and that therefore the power under Article 226 was invoked. The case on hand is entirely different in nature. The power under Article 226 cannot be exercised for all apprehensions-factual, imaginary or even in matters where there is infraction of any rule or legality which does not result in injustice muchless substantial injustice which is the fundamental principle on which the power under Article 226 has been conferred on the High Courts. It is well established principle that power under Article 226 cannot be exercised to set right all the illegalities and substitute for all remedies unless it is shown that substantial injustice has been caused to the person. The Courts cannot take over the administrative functioning from the election authorities or the Returning Officer who are the constitutional authorities as well as the statutory authorities vested with the power in matters of election. If the discretionary jurisdiction under Article 226 is permitted to be exercised in such election matters liberally, then it will not permit the Election Commission and the election authorities to conduct the elections freely and fairly and the matters will always be in the Courts for removing one apprehension or the other. We may hasten to add that the power under Article 226 is not totally ousted. But, it has to be invoked sparingly when it is established that the apprehension made by the party is justified and where the Court is satisfied that there is serious threat for conduct of free, fair and independent election and where it is established that sufficient safeguards have not been taken by the election authorities. A reading of the entire material produced on record leaves us with no doubt that the present petitions are based on apprehension and imaginary grounds. There is no order by the Returning Officer debarring the appointing of counting agents on behalf of the petitioners. There is a presumption under law that the administrative authorities conferred with statutory powers would work and conduct themselves in accordance with the statutory and constitutional provisions. The learned Counsel appearing for the respondents submitted that appropriate orders wilt be passed before the scheduled date of counting and we have no hesitation that the respondents will pass appropriate orders in accordance with the statutory provisions.
5. For the reasons aforesaid, we are of the view that the writ petitions are premature and based only on apprehension. Article 226 cannot be invoked to remove any such apprehensions.
6. Since we have heard the petitions on merits, we sustain the objections taken by the registry. Consequently, the petitions are rejected as not maintainable.