Gujarat High Court
Prafulbhai Ladhabhai Raiyani vs State Of Gujarat & 6 on 26 November, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/19068/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 19068 of 2015
With
SPECIAL CIVIL APPLICATION NO. 19069 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 19071 of 2015
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PRAFULBHAI LADHABHAI RAIYANI....Petitioner(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
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Appearance:
MR SANDEEP R LIMBANI, ADVOCATE for the Petitioner(s) No. 1
MR RONAL RAVAL, AGP for the Respondent(s) No. 1 - 2 , 5
MR MEHUL H RATHOD, ADVOCATE for the Respondent(s) No. 7
MR YATIN SONI, ADVOCATE for the Respondent(s) No. 3
MS ROOPAL R PATEL, ADVOCATE for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 3 , 6
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 26/11/2015
COMMON ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These are petitions involving similar question.
We may therefore note facts of Special Civil Application No.19068 of 2015
2. The petitioner has challenged an order dated 14.11.2015 passed by the Returning Officer of Gondal Page 1 of 17 HC-NIC Page 1 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER Municipality Ward No.7 rejection petitioner's objection to the nomination of respondent No.7. The petitioner is one of the candidates at the ensuing election to Gondal Nagarpalika, polling for which is scheduled on 29.11.2015. The State Election Commission declared the programme for elections to the Municipalities, Taluka and District Panchayats in the State of Gujarat publishing following election programme:-
Date of declaration of election : 23.10.2015 Date of notice/publication of notification : 05.11.2015 Date of notice to be issued by election officers : 05.11.2015 Last date for accepting nominations : 10.11.2015 Date for scrutiny of nominations : 14.11.2015 Last date for withdrawal of candidature : 16.11.2015 Date and time for polling : 29.11.2015 between 8 a.m. to 5 p.m. Date for re-polling, if needed : 01.12.2015 Date of counting of votes : 02.12.2015
3. The petitioner, desirous of contesting such election in Gondal Municipality, filed his nomination, which has been duly accepted. Respondent No.7 also filed nomination papers. The petitioner raised an objection on 14.11.2015 during scrutiny to the nomination of Page 2 of 17 HC-NIC Page 2 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER respondent No.7 on the ground that the said respondent has not paid the dues of the Municipality, which occasioned on account of an order passed by the competent authority holding that the said respondent had, as a Councilor in the past, caused loss to the Municipality on account of his conduct. The Returning Officer, however, by the impugned order dated 14.11.2015, rejected such objection on the ground that no special notice as required under Section 70 of the Gujarat Municipalities Act is issued. The liability to make payment would arise after three months of service of such notice.
4. From the days of judgment of the Supreme Court in case of N.P.Ponnuswamy v. Returning Officer, Namakkal reported in AIR 1952 64 by Constitution Bench, the inherent restrictions on exercise of writ jurisdiction in election matters are recognized. In the said decision, the Supreme Court held that the word election is used to embrace the whole procedure of election and is not confined to final result thereof. It was held and observed that rejection or acceptance of nomination paper is part of the election process. The Constitution Bench further held that law does not contemplate two attacks on matters connected with election, one under Article 226 during the process of election and the other when it is completed by election petition under Representation of Page 3 of 17 HC-NIC Page 3 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER the People Act. It was held that rejection or acceptance of nomination paper cannot be called in question under Article 226 of the Constitution of India.
This decision of the Supreme Court was followed in a number of decisions. In case of Mohinder Singh Gill v.
Chief Election Commissioner reported in (1978) 1 SC 405, the Constitution Bench of the Supreme Court held and observed as under:
30. The plenary bar of Art. 329 (b) rests on two principles : (1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution. Durga Shankar Mehta(1) has affirmed this position and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme Court's over-all power to interfere under Art. 136 springs into, action. In Hari Vishnu(2) this Court upheld the rule in Ponnuswami excluding any proceeding, including one under Art. 226, during the on- going process of election, understood in the comprehensive sense of notification down to declaration. Beyond the declaration comes the election petition, but beyond the decision of the Tribunal the ban of Art. 329(b) does not bind.
32. On the assumption, but leaving the question of the validity of the direction for re-poll soon for determination by the Election Tribunal, we hold that a writ petition challenging the cancellation coupled with re- poll amounts to calling in question a step in Page 4 of 17 HC-NIC Page 4 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER 'election! and is there, fore barred by Art. 329(b). If no re-poll had been directed the legal perspective would have been very different. The mere cancellation would have then thwarted the course of the election and different considerations would have come into play. We need not chase a hypothetical case.
34. This dilemma does not arise in the wider view we take of s.100 (1) (d) (iv) of the Act. Sri Rao's attack on the order impugned is in substance based on alleged non-compliance with a provision of the Constitution viz., Art.324 but is neatly covered by the widely-worded, residual catch-all clause of s.100. knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by implication, postponed all election disputes to election petitions and tribunals. In harmony with this scheme s. 100 of the Act has been designedly drafted to embrace all conceivable infirmities which may be urged. To make the project fool-proof s. 100(1) (d) (iv) has been added to absolve everything left over. The Court has in earlier rulings pointed out that s. 100 is exhaustive of all grievances regarding an election. But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election, not contrariwise. For example, after the President notifies the nation on the holding of elections under s. 15 and the Commissioner publishes the calendar for the poll under s. 30, if the latter orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We think not. Because the Commissioner is preventing an election, not promoting it and the courts review of that order will facilitate the flow, not stop the stream. Election, Wide or narrow be its connotation, means choice from a possible plurality monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all.
35. A poll is part-a vital part-of the election but with the end of the poll the whole election Page 5 of 17 HC-NIC Page 5 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER IS not over. Ballots have to be assembled, scrutinised, counted recount claims considered and result declared. The declaration determines the election. The conduct of the election thus ripens into the elector's choice only when processed, screened and sanctified, every escalatory step upto the formalised finish being unified in purpose, forward in movement, fair and free in its temper. Article 329(b) halts judicial intervention during this period, provided the act possesses the pre- requisites of 'election' in its semantic sweep. That is to say, immunity is conferred only if the act impeached is done for the apparent object of furthering a free and fair election and the protective armour drops down if the act challenged is either unrelated to. or thwarts or taints the course of the election.
5. It can thus be seen that while reiterating the principles stated in the Constitution Bench judgment in case of Ponnuswamy (supra) in Mohinder Singh Gill (supra), the Supreme Court opened a small window by suggesting that if the Election Commission had merely cancelled the election without ordering re-poll, this would have thwarted the course of election and different considerations may apply.
6. In Ashok Kumar (supra), three-Judge Bench of the Supreme Court further elaborated the observations in case of Mohinder Singh Gill (supra) and observed as under:
22. In Lakshmi Charan Sen Vs. A.K.M. Hassan Uzzaman (AIR 1985 SC 1233) writ petitions under Article 226 of the Constitution were filed before the High Court asking for the writs of mandamus and certiorari, directing that the instructions issued by the Election Commission should not be implemented by the Chief Page 6 of 17 HC-NIC Page 6 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER Electoral Officer and others; that the revision of electoral rolls be undertaken de novo; that claims, objections and appeals in regard to the electoral roll be heard and disposed of in accordance with the rules; and that, no notification be issued under S.15(2) of the Representation of the People Act, 1951 calling for election to the West Bengal Legislative Assembly, until the rolls were duly revised.
The High Court entertained the petitions and gave interim orders. The writ petitioners had also laid challenge to validity of several provisions of Acts and Rules, which challenge was given up before the Supreme Court. The Constitution Bench held though the High Court was justified in entertaining the writ petition and issuing a rule therein since, the writ petition apparently contained a challenge to several provisions of Election Laws, it was not justified in passing any order which would have the effect of postponing the elections which were then imminent.
Even assuming, therefore, that the preparation and publication of electoral rolls are not a part of the process of election within the meaning of Article 329(b), we must reiterate our view that the High Court ought not to have passed the impugned interim orders, whereby it not only assumed control over the election process but, as a result of which, the election to the Legislative Assembly stood the risk of being postponed indefinitely.
23. In Election Commission of India Vs. State of Haryana - AIR 1984 SC 1406 the Election Commission fixed the date of election and proposed to issue the requisite notification. The Government of Haryana filed a writ petition in the High Court and secured an ex-parte order staying the issuance and publication of the notification by the Election Commission of India under Sections 30, 56 and 150 of the Representation of the People Act, 1951. This Court deprecated granting of such ex-parte orders. During the course of its judgment (vide para 8) the majority speaking through the Chief Justice observed that it was not suggested that the Election Commission could exercise its discretion in an arbitrary or mala fide manner;
Page 7 of 17HC-NIC Page 7 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER arbitrariness and mala fide destroy the validity and efficacy of all orders passed by public authorities. The minority view was recorded by M.P. Thakkar, J. quoting the following extract from A.K.M. Hassan Uzzaman (1982) 2 SCC 218 :-
The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Courts writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution.
and held that even according to Hassans case the Court has the power to issue an interim order which has the effect of postponing an election but it must be exercised sparingly (with reluctance) particularly when the result of the order would be to postpone the installation of a democractic elected popular Government.
24. In Digvijay Mote Vs. Union of India & Ors.
- (1993) 4 SCC 175 this Court has held that the powers conferred on the Election Commission are not unbridled; judicial review will be permissible over the statutory body, i.e., the Election Commission exercising its functions affecting public law rights though the review will depend upon the facts and circumstances of each case; the power conferred on the Election Commission by Article 324 has to be exercised not mindlessly nor mala fide nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation.
25. Anugrah Narain Singh and Anr. Vs. State of U.P. & Ors. - 1996 (6) SCC 303 is a case relating to municipal elections in the State of Uttar Pradesh. Barely one week before the voting was scheduled to commence, in the writ petitions complaining of defects in the electoral rolls and de-limitation of constituencies and arbitrary reservation of Page 8 of 17 HC-NIC Page 8 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER constituencies for scheduled castes, scheduled tribes and backward classes the High Court passed interim order stopping the election process. This Court quashed such interim orders and observed 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 some one or the other will always find some excuse to move the Court and stall the elections. The importance of holding elections at regular intervals cannot be over- emphasised. If holding of elections is allowed to stall on the complaint of a few individuals, then grave injustice will be done to crores of other voters who have a right to elect their representatives to the democratic bodies.
26. In C. Subrahmanyam Vs. K. Ramanjaneyullu and Ors. - (1998) 8 SCC 703 this Court has held that non-compliance of a provision of the Act governing the elections being a ground for an election petition, the writ petition under Article 226 of the Constitution of India should not have been entertained.
27. In Mohinder Singh Gills case (supra) the Election Commission had cancelled a poll and directed a re-polling. The Constitution Bench held that a writ petition challenging the cancellation coupled with repoll amounted to calling in question a step in election and is therefore barred by Article 329 (b). However, vide para 32, it has been observed that had it been a case of mere cancellation without an order for repoll, the course of election would have been thwarted (by the Election Commission itself) and different considerations would have come into play.
28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over-
Page 9 of 17HC-NIC Page 9 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
"29. Section 100 of the Representation of the People Act, 1951 needs to be read with Article 329 (b), the former being a product of the later. The sweep of Section 100 spelling out the legislative intent would assist us in determining the span of Article 329 (b) though the fact remains that any legislative enactment cannot curtail or override the operation of a provision contained in the Constitution. Section 100 is the only provision within the scope of which an attack on the validity of the election must fall so as to be a ground available for avoiding an election and depriving the successful candidate of his victory at the polls. The Constitution Bench in Mohinder Singh Gills case (vide para 33) asks us to read Section 100 widely as covering the whole basket of grievances of the candidates. Sub-clause (iv) of clause (d) of sub-section (1) of Section 100 is a residual catch-all clause. Whenever there has been non-compliance with the provisions of the Constitution or of the Representation of the People Act, 1951 or of any rules or orders made thereunder if not specifically covered by any other preceding clause or sub-clause of the Section it shall be covered by sub-clause (iv). The result of the election insofar as it concerns a returned candidate shall be set aside for any such non- compliance as abovesaid subject to such non- compliance also satisfying the requirement of the result of the election having been shown to have been materially affected insofar as a returned candidate is concerned. The conclusions which inevitably follow are: in the field of election jurisprudence, 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 on account of any Page 10 of 17 HC-NIC Page 10 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination.
30. To what extent Article 329 (b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non-obstante clause with which Article 329 opens pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gills case, supra). The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the Court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two-pronged attack on anything done during the election proceedings is to be avoided ___ one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.
31. The founding fathers of the Constitution have consciously employed use of the words no election shall be called in question in the body of Section 329 (b) and these words provide the determinative test for attracting applicability of Article 329 (b). If the petition presented to the Court calls in question an election the bar of Article 329 (b) is attracted. Else it is not.
32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:-
1.If an election, (the term election being widely interpreted so as to include all steps and Page 11 of 17 HC-NIC Page 11 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2.Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election.
Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3.Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4.Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of Page 12 of 17 HC-NIC Page 12 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.
7. Thus, in case of Ashok Kumar (supra), the Supreme Court set the tone for interference in election matters through exercise of writ jurisdiction when, without calling in question an election, if directions are issued which subserves the progress of election and facilitates completion of election. It was observed that without interrupting, obstructing or delaying the progress of election proceedings, judicial intervention is available, if assistance of the Court was sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared. It was, however, reiterated that if questioning the election has the effect of interrupting, obstructing or protracting the election, then invoking the judicial remedy is to be postponed till after the completion of the election process.
8. We are conscious that the above-noted decisions of the Supreme Court in cases of Ponnuswamy, Mohinder Singh Gill and Ashok Kumar (supra) were rendered in the Page 13 of 17 HC-NIC Page 13 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER background of elections to legislative bodies for which Election Tribunal is envisaged under the provisions contained in Art.329-B of the Constitution of India.
However, even elections to local bodies now enjoy constitutional status and Art. 243-ZG provides that, notwithstanding anything in the Constitution, validity of any law relating to delimitation of constituencies or allotment of seats to such constituencies, made or purporting to be made under Art.243ZF shall not be called in question in any Court, and further that 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.
9. Full Bench of this Court in Jabir Hussain Nasir Ahmed Boga v. State of Gujarat reported in 2006 (1) GLR 10 held that process of election is deemed to have commenced from the date on which order of delimitation of Wards is made by the State Election Commission and further held that the bar imposed by Art.243-ZG is absolute and that the resolution of any dispute pertaining to an election which has the effect of interrupting, obstructing or protracting the election shall be postponed until after the completion of the election.
10. In case of Thakore Shanabhai Gedabhai v. State Page 14 of 17 HC-NIC Page 14 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER Election Commission reported in 2005 (3) GLH 686, petitioner had challenged the decision of the Returning Officer rejecting his nomination for election to Panchayat. The Division Bench held that Court would not entertain a writ petition questioning the decision. The only remedy available would be to file an election petition under the law enacted by the State Legislature.
The decisions of the Supreme Court in Ponnuswamy, Mohinder Singh Gill and Ashok Kumar (supra) were noted.
11. From such decisions, it can be seen that interference by the Court in exercise of writ jurisdiction during an intermediate stage of election to the local bodies is a rare and exceptional phenomena.
Only in a given case as highlighted by the Supreme Court in case of Ashok Kumar (supra), decision of the Election Commission is found to be male fide, judicial review would be open. There too, interference would not permit derailing, delaying or protracting the ensuing election.
Power can be exercised for facilitating the process of free and fair election.
12. In view of such legal position, we are not inclined to entertain this petition at this intermediate stage. Counsel for the petitioner however submitted that it is always open for the Court to interject when it is found that the acceptance of the nomination is not Page 15 of 17 HC-NIC Page 15 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER according to Rules. Even if such a view were to be accepted, interference by the High Court would be extremely rate and in exceptional circumstances and not in a routine manner merely because some prima facie arguable point being pointed out by the petitioner. In the present case, Counsel for the petitioner argued that there was no requirement of any special being issued once the final order was passed by the authority. In this context, Counsel relied on the decision of Division Bench of this Court in case of Chinubhai Khodidas Patel Vs. Election Officer-Mehsana Nagarpalika and Special Land & Ors., reported in 2008 (2) GLH, page No.785. Counsel invited our attention to para-8 of the said judgment wherein the Bench observed that Had it been a case where there was final decision by the Director of Municipality under Section 70 of the Act for fastening of the financial liability and non-payment thereof by the petitioner, it might stand on a different consideration.
Such once sentence cannot be picked out of context from entire judgment as to contend that the same lays down ratio of the decision. In any case, any such arguable point would not be sufficient to interfere with the decision of the Election Officer accepting nomination of a candidate. All such questions can be examined in properly instituted election petition once the election is over and result of the election is declared. With Page 16 of 17 HC-NIC Page 16 of 17 Created On Wed Dec 02 00:03:38 IST 2015 C/SCA/19068/2015 ORDER these observations, the petitions are dismissed.
13. We have not expressed any opinion on the rival contentions.
(AKIL KURESHI, J.) (MOHINDER PAL, J.) SHITOLE Page 17 of 17 HC-NIC Page 17 of 17 Created On Wed Dec 02 00:03:38 IST 2015