Patna High Court
Om Prakash Tiwari And Ors. vs The Election Commission on 26 April, 2002
Equivalent citations: 2002(2)BLJR1057
Author: R.S. Garg
Bench: R.S. Garg
ORDER R.S. Garg, J.
1. This order shall dispose of the present writ Application and C.W.J.C. No. 4843/2002 Raj Kumars v. State Election Commission, C.W.J.C. No. 5031/2002 Nilam Devi v. State Election Commission, C.W.J.C. No. 4050/2002 Bibha Kumari v. State Election Commission, C.W.J.C. No. 4289/2002 Baljeet Singh v. State Election Commission, C.W.J.C. No. 4414/2002 Indrani Gope v. State Election Commission, C.W.J.C. No. 4528/2002 Smt. Rupa Devi v. State of Bihar, C.W.J.C. No. 4934/2002 Shivbrat Mahto and Anr. v. State of Bihar and Ors. C.W.J.C. No. 5216/2002, Indu Devi v. State of Bihar and Ors. C.W.J.C. No. 5238/2002 Surendra Prasad v. State of Bihar and Ors. C.W.J.C. No. 3686/2002 Sharda Singh v. The State Election Commissioner, Patna and Ors. C.W.J.C. No. 3896/2002 Prem Nath Mishra v. State Election Commission, Patna and Ors. C.W.J.C. No. 3925/2002 Shailendra Kumar v. State of Bihar and Ors. C.W.J.C. No. 4022/2002 Dasrath Prasad Yadav v State of Bihar and Ors. C.W.J.C. No. 4310/2002 Smt Shakuntla Shahi v. State of Bihar and Ors. C.W.J.C. No. 4471/ 2002 Ruplal Mahto v. The Election Commission, Bihar and Ors. C.W.J.C. No. 4475/2002 Rajendra Kumar Singh and Anr. v. State of Bihar and Ors. C.W.J.C. No. 4565/2002 Ranjit Kumar v. State of Bihar and Ors. BUR 2002 (1) 288, C.W.J.C. No. 4606/2002 Bhupendra Prasad Singh v. Bihar State Election Commission, Patna and Ors. C.W.J.C. No. 4982/2002 Prakash Chand v. State of Bihar and Ors. C.W.J.C. No. 5054 of 2002 Kalawati Devi and Anr. v. State of Bihar and Ors. and C.W.J.C. No. 5149/2002 Arvind Kumar v. State of Bihar and Ors.
2. The petitioner of each of the case is making a complaint of epidemic caused by vires of illegal acts of the Election Officers and Returning Officers. The petitioner's case in different petitions are that nominations have been illegally rejected, names of the voters have not been included in the list or after publication of the final list, the names of the voters have been deleted from the electoral roll. The list supplied by the Municipal authorities shows the names of the petitioner, his proposer and seconder in a particular ward but it has been later on found that the proposer and seconder are not recorded in the electoral roll of the sad ward and list of the wrong ward has been supplied by the Municipal authorities, the Election Commission changed the Rules of the game after commencement of the game by issuing certain directions in relation to Additional Government Pleaders or Assistant Government Pleaders and the disqualification Clause has been wrongly applied. The choral argument in support of the petitions are that ordinarily the High Court may not interfere in an election matter but when the illegality is writ large, the violation of the Rules, regulations and law is manifest and the arbitrariness, whims and caprices of the Officers is floating on the surface of the record, the High Court to maintain the purity of the elections and to put a control over the Returning/Election Officers must exercise its jurisdiction in these election matters irrespective of Article 243-ZG of the Constitution of India.
3. To jettison this argument, learned Counsel for the State and the learned Counsel for the State Election Commission have placed their strong reliance on the language of Article 243-ZG and are submitting that the language employed in the said Article is identical to the language used in Article 329 of the Constitution of India and as the Supreme Court while interpreting Article 329 has made it clear that in the election matters the High Court would have no jurisdiction to interfere, this Court should not interfere and leave the aggrieved party to the course of Election Petition as provided under the concerned statute. It is also contended that the present petitions are, in fact, causing hindrances in the smooth and proper functioning of the elections and any interference by this Court would not be to sub-serve the cause of the election and its proper functioning, this Court should not interfere. It is further contended that the question relating to the jurisdiction of the High Court is not res integra rather is chose-judge, i.e., a settled matter. It is further contended that in the days of dynamic law no static approach can be allowed and as the laws clearly provide that the High Court would have no jurisdiction, this Court must dismiss the writ petitions at the threshold.
4. The thesis of the argument of the petitioners is that this Court can interfere while the anti thesis raised by the respondents is that the High Court has no jurisdiction at this stage. I am required to explicit what is implicit in the laws and the Constitution of India. I have to come to a synthesis, i.e., a combination of separate elements of thoughts and record a finding that the High Court has or does not have the jurisdiction to interfere in these matters at this stage.
5. Before coming to the core question, it would be necessary to refer to certain Sections of the Bihar Municipal Act, 1922. Section 17 has now been amended under Ordinance No. 2 of 2001. The amended Section provides for the disqualification. It reads as under:
17. Disqualification for membership.-(1) A person shall be disqualified for being elected as and for being a member of a Municipality-
(a) if he is so disqualified by or under any law for the time being in force for the purpose of election to the Legislature of the State:
Provided that no person shall be disqualified on the ground that he is less than 25 years of age if he has attained the age of 21 years;
(b) if he has not paid all taxes due by him to the Municipality at the end of the financial year immediately preceding that in which the election is held ;
(c) if he is so disqualified by or under any law made by the Legislature of the State.
(2) If any question arises as to whether a member of a Municipality has become subject to any of the disqualifications mentioned in Sub-section (1), the question shall be decided by such authority and in such manner as may be prescribed by rule.
Section 18(A) of the Act was inserted by Act No. 2 of 1995 and provides that an Election in Municipality can only be called in question in an Election Petition. It reads as under:
18-A. Election Petition. No election in Municipality shall be called in question except by Election Petition filed in case of election to a ward in the Municipality, before the Munsif and in case of election of Chairman in the Municipality before the Sub-judge under whose jurisdiction the Ward or, as the case may be, Municipality is situated.
Section 19 was also substituted by Act No. 2 of 1995 and it reads as under:
19. Election to the Municipalities.The superintendence, direction and Control of the preparation of the electoral rolls for, and the conduct of all elections to the Municipality in the State under this Act and the Rules made thereunder shall vest in State Election Commission.
6. By Ordinance No. 2 of 2001 i.e., the Bihar Municipal (Amendment) Ordinance, 2001, Section 19-A has been inserted in the statute. The same reads as under:
19-A. Notification of Election. Subject to the provisions of the Act and Rules made thereunder, the State Government on the recommendation of the State Election Commission for constituting the Municipality fix date or dates through notification published in the State Gazette and it shall be expected that the electors may elect the office bearers of the Municipality in accordance with the provisions of this Act:
Provided that no such notification shall be issued prior to six months before the date fixed for election.
7. From a perusal of Section 18-A, it would clearly appear that no election in municipality shall be called in question except by Election Petition filed in case of election to a ward. For a proper appreciation of Section 18-A it would be necessary to refer to Article 243-ZG of the Constitution of India, Article 243-ZG reads as under.
243-ZG. Bar to interference by Courts in electoral matters.Notwithstanding anything in the Constitution:
(a) the validity of any law elating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made Article 243-ZA shall not be called in question in any Court;
(b) no election to any Municipality 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. From a perusal of Article 243ZG, it would clearly appear that it provides for two contingencies. Firstly in relation to the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies, and, election to any municipality shall not be called in question except by an Election Petition.
9. At this stage, it would be apt and appropriate to refer to Article 329 of the Constitution of India. It reads as under:
329. Bar to interference by Courts in electoral matters.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 327 or Article 328 shall not be called in question in any Court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
10. A comparison of Article 243ZG and Article 329 would make it clear that Article 243ZG, in fact, is a true copy and a replica of Article 329 of the Constitution of India. Article 329 which relates to the Parliamentary and Legislative Assembly Elections also provides that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purported to be made under Article 327 or Article 328, shall not be called in question in any Court. It further provides that election to the either House of Parliament or to the House of the legislature of a State shall not be called in question except by an Election Petition.
11. In my opinion, Article 243ZG would have the same effect and cannot be interpreted beyond Article 329 of the Constitution of India. If Article 329 of the Constitution of India has been interpreted in a particular manner then any parimateria provision or identical provision must be interpreted in the same manner, if it finds place in the same statute and relates to the very same subject. The basic principles of the interpretation are that if a particular phrase has been used in relation to a particular subject then the said phrase or interpretation cannot be applied to another part of the same statute or at another statute if the subject matters are different but if the same phrases are used and the language employed in two different parts of the same statute relating to the same subject then interpretation of one would be guiding factor in interpreting another one.
12. The question relating to interference in the election matters and what particular steps are included in the election or the election process came up. for consideration before the Supreme Court in the matter of N.P. Ponnuswami v. Returning Officer . Their Lordships of the Supreme Court very categorically observed that the word 'election' has been used in Para 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. Their Lordships further observed that the term 'election' may be taken to embrace the whole procedure which consists of several stages and embraces many steps, whereby an "elected member" is returned, whether or not it be found necessary to take poll and the term is not used in a narrow sense. Their Lordships very candidly observed that rejection or acceptance of a nomination paper is included in the term 'election'. Their Lordships in the matter of N.P. Ponnaswami further observed:
The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. Under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribed the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. It follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the Article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.
13. From the above judgment of the Supreme Court, it would clearly appear that two attacks to the election are not permissible. One cannot be allowed to challenge the election process or what is otherwise covered under the election process under Article 226 of the Constitution of India through the process of the election and challenge the final outcome of the election under an election petition as provided under the statute,
14. Paras 9, 12, 15 and 25 of the said judgment would be material in relation to the jurisdiction of the Court and the right of an aggrieved party. I am not quoting the said paragraphs to avoid unnecessary burdening of this judgment.
15. The matter again came up for consideration before the Supreme Court in the matter of Mohinder Singh GUN. Chief Election Commissioner 1978 (1) SCC 405 and the Constitution Bench held that the High Court would have no jurisdiction to interfere in an election matter because of the absolute bar imposed under Article 329 of the Constitution of India. I am tempted to quote paras 2 and 3 of the said judgment.
2. Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words:
16. At the bottom of all tributes paid to democracy is the little man, walking into a little boot, with a little pencil, making a little cross on a little bit of paper- no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.
17. If we may add, the little large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by me 'dressed in little, brief authority'. For 'be you ever so high, the law is above you.
3. The moral may be stated with telling terseness in the words of William Pitt: 'Where laws end, tyranny begins'. Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of Power best expressed by Benjamin Disraeli:
I repeat... that all power is a trust-that we are accountable for its exercise-that, from the people and for the people, all springs, and all must exist.
Aside from these is yet another, bearing on the play of natural justice, its nuances, non-applications, contours, colour and content. Natural justice is no mystic testament of Judge-made juristics but the pragmatic, yet principled, requirement of fairplay in action as the norm of a civilized justice-system and minimum of good Government-crystallized clearly in our jurisprudence by a catena of cases here and elsewhere.
18. In the said matter their Lordships observed that Article 324(1) vests in the Election Commission the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections of Parliament and to the Legislature of every State and the elections to the high offices held under the Constitution. Their Lordships further observed that election has a very wide connotation commencing from calling upon the electorate to elect a candidate culminating in the final declaration of the returned candidate. It was also observed that every step from start to finish (emphasis supplied, of the total process constitutes 'election' not merely the conclusion or culmination. The rainbow or covered by the compendious expression 'election' commences from the initial notification and culminates in the declaration of the returned candidate.
19. In paragraph 92 of the said judgment, the Supreme Court observed that Article 329(b) is a blanket ban of litigative challenges to electoral steps taken by the Election Commission and its Officers for carrying forward the process of election to its culmination in the formal declaration of the result. Their Lordships were pleased to observe that under Article 329(b) the same remedy for an aggrieved party, if he wants to challenge an election, as an election petition, and this exclusion of all other remedies includes constitutional remedies like Article 226 because of the non-obstante clause. The Supreme Court was pleased to observe that the writ application challenging the cancellation coupled with re-poll amounts to calling in question a step in election and is, therefore, barred by Article 329(b) of the Constitution of India.
20. In the matter of A.K.M. Hassan Uzzaman and Ors. v. Union of India and Ors. , the question for consideration was whether the High Court should interfere in election matter on the allegations of irregularities in electoral rolls and whether there is a presumption in favour of the constitutional institutions and functionaries that they act bona fide in lawful discharge of functions. The majority of the Constitution Bench observed that the presumption is always of the existence of bona fides in the discharge of Constitutional and statutory functions by the constitutional institutions and functionaries such as Election Commission, Chief Electoral Officer or Electoral Registration Officers and until that presumption is displaced, it would not be just and proper to act on preconceived notions and to prevent public authorities from discharging functions which are clothed upon them. Baharul Islam, J. (as he then was) in this minority judgment observed that the Court was not satisfied that all the Electoral Officers concerned and all the staff working under them were beyond reproach in their conduct in implementing the relevant provisions of the Constitution and the other statutes/rules relating to the elections. In my opinion the majority judgment certainly would bind me but the minority judgment, in fact, was projecting the prophetic words. These days the elections are a quest for E1-dorado. Everybody wants to contest and occupy a seat. The assurances given in the election campaign would materialise or not would be altogether a different thing but the assurances are to be floated. The manner in which the nominations are rejected, the names of the voters are changed from one electoral roll to another electoral roll and for the reasons best known to the Election/Returning Officers, the objections are upheld and rejected, the recount is allowed or refused and so on would certainly give strength to the minority feeling that there is no presumption in favour of all Officers.
21. The matter again came up for consideration before the Supreme Court in the matter of Lakshmi Charan Sen and Ors. v. A.K.M. Hassan Uzzaman and Ors. AIR 1985 SC 1233. In the said matter, the question was in relation to right of a person to be included in electoral roll and to challenge inclusion of any name in the roll. The Supreme Court in underlying words observed that the right to be included in the electoral roll or to challenge the inclusion of any name in the roll is a right conferred upon an individual and not upon any political party. It must be emphasised that election laws do not recognize political parties except in Rule 11(c) of the Registration of Electoral Rules, 1960, the election symbols (Reserved and Allotment) Order, 1968 and Explanation 1 to Section 77(1) of 1951 Act. The majority observed that the fact that certain claims for inclusion of names in electoral rolls and objections relating to inclusion of certain names therein are not finally disposed of, even assuming that they are filed in accordance with law cannot arrest the process of election to the legislature. The Supreme Court was pleased to observe that the election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. From this authoritative dictum of the Supreme Court, it would become manifest that even if certain objections relating to inclusion or exclusion are pending consideration even then the pendency of such application shall not have the effect of arresting the election and the election will have to be held on the basis of the electoral roll which is in force on the last date for making the nomination. Their Lordships also observed that in a case of inclusion and exclusion of names in the electoral rolls when affected persons are not named then a mandamus cannot be issued.
22. In relation to a challenge the direction of the Election Commission to have the re-poll at certain places, the matter went to the Supreme Court in the matter of Election Commission of India v. Shivaji and Ors. (1998) 1 SCC 277. The Supreme Court in unambiguous terms observed that process of election to either House of Parliament or State Legislature can be challenged only by filing Election Petition and not by filing writ Petition under Article 226 of the Constitution of India. It was further observed that the High Court has no jurisdiction under Article 226 to interfere with the election process by issuing interim orders. Following the earlier judgments of the Supreme Court, it was observed that the word 'election' has by long usage in connection with the process of selection of representatives in democratic institutions acquired both a wide and a narrow meaning. In the narrow sense it is used to mean to 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 have been declared elected and it is in this wide sense that the word is used in Article 329 (b).
23. Article 243ZG and jurisdiction of the High Court under Article 226 came up for consideration before the Supreme Court in the matter of Anugrah Narain Singh v. State of Uttar Pradesh and Ors. . The Supreme Court showing its great concern to the municipal elections which were to be held in the State of Uttar Pradesh after 10 years observed that the High Court should not have interfered in such a matter. The Supreme Court also observed that in terms of Article 2432G of the Constitution of India there is complete and absolute bar in considering any matter relating to municipal election on any ground whatsoever after the publication of the notification for holding municipal election. It was also observed that the bar imposed by Article 243ZG is two-fold, validity of laws relating to delimination and allotment of seats made under Article 243 ZA cannot be questioned in any Court and the election to the municipality cannot be questioned except by an election petition. The Supreme Court also observed that in relation to the preparation of the electoral roll the judicial review is not permissible and a writ petition under Article 226 of the Constitution of India would not be maintainable. The Supreme Court categorically observed that in view of the language employed in Article 243ZG putting a ban on the jurisdiction of the Courts, the High Court would have no jurisdiction to entertain a writ petition under Article 226 of the Constitution of India or interfere in the election process.
24. A question relating to re-poll was again considered by the Supreme Court in the matter of C. Subrahmanyam v. K. Ramanjaneyulla and Ors. . The Supreme Court observed that a writ petition under Article 226 of the Constitution of India should not have been entertained, because the question posed for consideration was in relation to non-compliance of a provision of the Act which is a ground for an election petition.
25. In a three Judges Bench in the matter of Election Commission of India v. Ashok Kumar and Ors. , the Supreme Court interpreted the laws little liberally and observed that the words "superintendence, direction and control" have a wide connotation so as to include therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion. The term 'election' as occurring in Article 329 has been held to mean and include the entire process from the issue of the notification under Section 14 of the Representation of People Act, 1951 to the declaration of the result under Section 66 of the Act. The Supreme Court, however, observed that the High Court would be entitled to interfere in the matter during the process of the Election if the High Court is satisfied of the dual test- (i) the order sought from the Court did not have the effect of retarding, interrupting, protracting or stalling the counting of votes and the declaration of the results as only that much part of the election proceedings had remained to be completed at that stage, (ii) a clear case of mala fides on the part of Election Commission inviting intervention of the Court was made out, that being the only ground taken in the petition. The Supreme Court further observed that if an election is called in question and the question may have the effect of interrupting, obstructing or protracting the election proceedings, in any manner, the involving of judicial remedy has to be postponed till after the completing of proceedings in elections. Rule is ignore such things as do not materially affect the result of the election unless the requirement of satisfying the test of material effect has been dispensed with by the law; even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postpone the adjudication of such dispute till the election proceedings are over so as to achieve, in larger public interest, the goal of constituting a democratic body without interruption or delay. While providing the dual tests firmly, the Supreme Court observed that any decision sought and rendered will not amount to 'calling in question an election' if it sub-serves the progress of the election and facilitates the completion of the election. Anything done towards completing or any furtherance of the election proceedings cannot be described as questioning the election.
26. Following the said judgment of the Supreme Court in relation to inclusion of the names of certain persons in the electoral roll, an Hon'ble Single Judge in the matter of Sri Chand Prasad and Ors. v. State of Bihar and Ors. 2001 (2) PLJR 227, interfered in the matter and issued directions to the Election Commission/Election Officer that name of particular persons be included in the list observing that the inclusion of the said names would in fact sub-serve the election. The Hon'ble Single Judge observed that not only there was scope for this Court to issue appropriate directions to correct the grave errors in the election process but in the facts and circumstances an occasion had arisen to issue necessary directions. The correctness of the said judgment was questioned before the High Court in a Letters Patent Appeal by the State Election Commissioner. In the judgment reported in 2001 (3) PLJR 677, after consideration of the relevant provisions of the Bihar Panchayat Raj Act, 1993 and the other judgments of the Supreme Court, the Division Bench observed that paragraph 32 in the judgment of the Supreme Court in the matter of Election Commission of India v. Ashok Kumar , could not be taken any assistance of for interfering in the election process. The Division Bench observed that once the process of election has started, any interference by the Court under Article 226 of the Constitution with the process of election on the ground of beach of statutory provisions in preparation of the voters list is not permissible in law. Setting aside the judgment delivered by the Hon'ble Single Judge, this Court in the Division Bench observed that any interference by this Court on the said ground will interrupt or delay the election which is being hold after 22 years in the State of Bihar.
27. Sri Kanth, learned Senior Counsel placing his strong reliance on the judgment of the Supreme Court in the matter of N. P. Ponnuswami (supra) has submitted that Article 243ZG (b) provides that the election shall be questioned only in an election petition presented to such an authority and in such a manner as provided for by the State law. According to him, the rules have not been framed by the State Legislature but have been made in the name of the Governor. His case is that as the rules have not been framed by the State Legislature, the rules are bad and the election petition would not be an alternative remedy to the petitioners. In the opinion of this Court, the argument has been raised in vacuum. In none of the petitions the pleadings to that effect have been raised nor the stage for considering the said argument has arrived. Such an argument would be available to a defendant to the election petition and not to a person, who is pressing to file an election petition. The argument does not hold any foundation and deserves to and is rejected at this stage.
28. In C.W.J.C. No. 4050/2002, it has been contended that the petitioner's name is Bibha Kumari while in the electoral roll her name is shown as Uma Kurnari. According to her, this misnomer can be corrected by the Election Officer and by not doing so, the Election Officer has failed to exercise the jurisdiction vested in him by law. Referring to Rules 74, 75 and Rule 2(d) of Bihar Election and Election Petition Rules, 1953, it is contended that the petitioner would not be allowed to file an election petition because the petitioner is not a duly nominated candidate. The basic question for consideration is that petitioner's nomination has been rejected. The rejection of the nomination can certainly be raised in a duly constituted election petition. The petitioner of this writ petition would certainly be entitled to raise all these questions in a duly constituted election petition.
29. In C.W.J.C. No. 3896/2002, it has been contended that by letter No. 707 dated 9.3.2002 issued by the Election Commission, the petitioner's nomination could not be rejected. As already observed, the rejection of the nomination, even if it is on illegal ground, would be a ground for election petition and would not give an authority to the High Court to interfere with the election process. Rule 76(c) and Rule 78 have been pressed into service. A Supreme Court judgment reported in 1993 Vol. 1 SCC 216, has also been pressed into service to say that the questions raised by the petitioner are beyond the scope of election petition, therefore, this Court must interfere in the matter. In the opinion of this Court, the rejection of the nomination would certainly be a ground available to the petitioner for the election petition. Any interference by this Court would not be in the furtherance of the smooth progress of the election but would interfere and interrupt the election process.
30. In C.W.J.C. No. 4022/2002, it is contended that the definition of political offence has not been provided under the Act and as the petitioner is making the allegations that because of political rivalry, he was framed, the disability to contest does not apply in his case. In the opinion of this Court, the petitioner has not been convicted for raising certain political grievances but in fact has been convicted for certain offences under the Indian Penal Code. Even otherwise, the question of rejection of the nomination paper can be raised in the election petition.
31. The endeavour of the learned Counsel for the petitioners was to place reliance upon certain observations made by the Supreme Court in their earlier judgments to contend that the judgment , (the Election Commission) has not laid down the correct law. In the opinion of this Court, the argument is misconceived. When earlier judgments of the Supreme Court are interpreted by latter Bench of the Supreme Court, no Court can go contrary to the said interpretation. The interpretation made by the subsequent Bench would hold field so long as the said judgment is not overruled or reconsidered by the Supreme Court. In the matter of Election Commission of India v. Ashok Kumar and Ors. , the Supreme Court after taking into consideration the earlier judgments of the Supreme Court has provided certain guidelines in paragraph 32 of their judgment. From the judgment in the matter of Election Commission of India v. Ashok Kumar and Ors. (supra), it would clearly appear that the High Court shall be entitled to interfere in the matters, if the interference is to subserve the election, election process and not to interrupt or interfere with the election or the election process.
32. True it is that the order, somehow or the other it prima fade may appear to be illegal or bad but if the aggrieved party has a remedy of election petition then interference by the High Court in view of the above discussions is not permissible. Right to vote and contest is created by the statute. It is expected of every authority that they understand law and pass orders in accordance with law. True it is that it can be argued against an authority that contrary to the rule or law it has passed the order but the question still would be that the High Court should interfere or not. It has been submitted that from the judgment of the Supreme Court it does not appear that in what circumstances, the High Court can interfere to sub-serve the election or the election process. In my opinion, the cases where the assistance against booth capturing is sought, where the assistance of the Court is sought to avaid political violence or the assistance of the Court is sought against the State Government that the State should be fair to all and myriad other situations, the Court can interfere. In such cases, the interference would be to take the election process to its logical end and would not hamper the election process.
33. In C.W.J.C. No. 5216/2002, the complaint is that the respondent is a voter at two places. In C.W.J.C. No. 4471/2002, the complaint is that the location of preexisting booths has been changed at the behest at the political party. In C.W.J.C. No. 4528/2002, the complaint is that voters of one ward have been shifted in the list to another ward. It has also been submitted that names of number of the persons have been shifted from one ward to another.
34. In C.W.J.C. No. 4843/2002, the rejection of the nomination has been challenged on the ground that the petitioner was shown to be a member of the concerned ward but later on his name was shown to be appearing in another ward. The grievance is that a wrong list was supplied. Similar is the complaint in C.W.J.C. No. 4289/2002. Identical complaint has been made in C.W.J.C. No. 4414/2002.
35. In C.W.J.C. No. 3925/2002, the. complaint is that No Objection Certificate was issued in favour of the petitioner but on a complaint of the sitting M.L.A., the No Objection Certificate was recalled and petitioner's nomination was rejected in absence of such recall of the No Objection Certificate. As the election of the nomination of the petitioner can be challenged in the election petition, I would leave him to persuade his remedy under the ordinary law but looking the conduct of the said Officer, who had recalled the No Objection Certificate, I am of the opinion that the State Government must make the inquiry into the conduct of the Officer, who under the pressures of the sitting MLA recalled or cancelled the No Objection Certificate. The State Government is hereby reminded that the MLAs cannot coerce the Election Officers or the Officers of the local body nor can they ask such officers to dance to their tunes. The complaint of the MLA may or may not be illegal but the action of the said Officer of Rajgir Municipal Area exhibits the conduct of not becoming an honest Officer.
36. In C.W.J.C. No. 3686/2002, the complaint is that the wrong voters, list was supplied to the petitioners. In cases where wrong lists have been supplied, the Election Commission has come out with a case that correct lists were supplied to the Municipal Corporation but some Officers at the Corporation level either because of inadvertence or because of designed foul play supplied the wrong lists to the candidates. In these matters of supply of wrong lists I am deeply concerned. In such cases where the wrong lists have been supplied, this Court must issue certain directions against such Offices in view of the statements made by the Counsel for the Municipal Corporation.
37. Learned Counsel for the Corporation has said that when the list of the wards were received, on the outer cover of such lists, ward numbers were mentioned, but inside the list ward numbers were not mentioned. On being asked by this Court, he simply said that outer covers are not available with the Corporation. When this Court further asked that if the ward numbers were not printed on the particular list, why instructions were not sought from the Election Commission/Returning Officer that which list was of a particular ward ? Learned Counsel for the Corporation simply submits that this was a small wrong on the part of the Officer, who had supplied the list to the applicant.
38. It is hereby directed that the Election Commission shall hold an enquiry into the matter of supply of ward list to the Municipal Corporation, Patna. It shall be obliged to make an inquiry into the fact that whether correct ward lists were supplied through the agency of the Election Commission to the Municipal Corporation, Patna, or some mistake was committed at their end, or the correct ward lists were supplied and somebody at the Municipal Corporation played mischief and supplied wrong lists to the persons, who applied for the voters' list/electoral roll. After such an inquiry, the Election Commission shall be obliged to make a report to the police in relation to such election offence committed either b the Offices or the employees of the Election Commission or the person engaged by the Election Commission or the Officers and employees of the Municipal Corporation.
39. The Division Bench judgment of this Court in the matter of Ram Ballav Singh v. State of Bihar and Ors. L.P.A No. 261 of 2001, decided on 21.3.2001 has been pressed into service by the petitioners. In the said matter ,the learned Single Judge had dismissed the writ petition filed by the appellant challenging the order passed by the Returning Officer rejecting the nomination paper filed by the appellant. The Division Bench observed that non-interference will result in injustice and is unconscionable. The Division Bench, further observed that there was complete non-application of this mind on the part of the Returning Officer. On the basis of this judgment, it is sought to be argued that in a given case of absolute illegality and absolute non-application of mind and patent breach of the provisions of law, the High Court must interfere. I am unable to conceive to the said argument. In the matter of Ram Ballav Singh's case, the Division Bench did not consider the earlier Division Bench judgment of this Court in the matter of State Election Commission 2001 (3) PLJR 677. I do not think that the present cases are case of any dilemma. The earlier judgment of the Division Bench in the matter of State Election Commission (supra) is in line with the earlier judgments of the Supreme Court and I would prefer to follow the said judgment instead of following the order of the Division Bench in the matter of Ram Ballav Singh (supra). From the judgment of the Supreme Court, it would clearly appear that a patent legality in the order passed by the Election Officer or Returning Officer or Election Commission or a latent defect in the procedure cannot be challenged before the High Court under Article 226 of the Constitution of India, if interference by High Court thwarts or interferes with the election. The gamut of the petitioners argument is that in case of illegality or a patent illegality floating on the surface of the record, the same should be corrected under Article 226 of the Constitution of India by the High Court, cannot be accepted. True it is that Article 243ZG was brought in the Constitution considering that Indian citizens are living in a Utopian condition, while in fact, we are in a state of dystopia where everything is bad and perilously bordering to anarchism. The quibble i.e. to evade the question by a play upon the words as projected by the petitioners runs contrary to the judgments of the Supreme Court. The objections raised by the Counsel for the State and the State Election Commission are irrecusably and the same cannot be rejected. As a sequel to the above discussions I have no hesitation in holding that the jurisdiction of the High Court under Article 226 is ousted at this stage looking to the nature of the complaints and the reliefs claimed in the petitions.
40. The petitions are dismissed. The petitioners shall be free to raise all these questions in the duty constituted Election Petition, if the law permits them.
41. In some of the writ petitions certain interim orders have been granted in favour of the petitioners. As I am dismissing the writ applications, the interim orders granted earlier are also vacated.