Karnataka High Court
L. Shivanna vs State Of Karnataka on 30 June, 1988
Equivalent citations: ILR1988KAR2121
ORDER Rama Jois, J.
1. In the first Writ Petition presented by a Member of the Zilla Parishad, Chickmagalur, the following important question of law arises for consideration;
Whether a person who is not an elected member of the Zilla Parishad in terms of the provisions of Sub-section (1) of Section 139 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983, but who being a member of the State Legislative Assembly or State Legislative Council or a Member of Parliament or a President of District Central Cooperative Bank, is given the right to participate in the proceedings/meetings of a Zilla Parishad under Sub-sections (2) and (3) of Section 139, can be regarded as a member of the Local Authority for the purpose of Article 171(3)(a) of the Constitution of India, entitled to vote in the concerned Local Authorities Constituency, in the election to the Karnataka State Legislative Council?
In the second Writ Petition presented by the General Secretary of the District Janatha Party, Chitradurga, the following important question of law arises for consideration:
Whether the inclusion of the names of respondents-7 to 246 who are nominated members of different Mandal Panchayats in the District in the electoral roll of Chitradurga Local Authorities Constituency for election to the State Legislative Council after the last date and time fixed for the receipt of nomination papers is illegal and if so, whether an order should be made to delete their names from the electoral roll?
In both these petitions, in view of the preliminary objection raised by the learned Advocate General, appearing for respondents 1 and 2 the following common question of law arises for consideration:
Whether Clause (b) of Article 429 of the Constitution of India constitutes a bar to the maintainability of the two Writ Petitions?
2. The facts of the case in the first Writ Petition, in brief, are as follow:
The Zilla Parishad is a Local Authority constituted under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 ('the Act' for short). According to Clause (1) of Section 139 of the Act every Zilla Parishad consists of such number of elected members, as is determined under Section 140. Sub-section (2) of Section 139 provides that the President of the District Central Cooperative Bank would be an Associate Member who shall be entitled to take part in the proceedings of a Zilla Parishad, but without right of vote and the right to be elected as Adhyaksha or Upadhyaksha. Sub-section 3(a) provides that Members of Parliament and State Legislatures representing a part or whole of the districts would have the right to take part in the proceedings of the Zilla Parishad and to vote at the meetings of the Parishad. Subsection 3(b) confers on such members of State Legislatures, the rights of the members of the Zilla Parishad. Respondent No. 3 to the petition is the President of the D.C. Bank, Chickmagalur District. Respondent No. 4 is the Member of the Loka Sabha from Chickmagalur Constituency. Respondent No. 5 is a Legislative Council Member and also Deputy Chairman of the Legislative Council. Respondent No. 6, 8, 9 and 14 are also Members of the Legislative Council. Respondent No. 7 and 10 to 13, Respondent No. 13 are Members of the State Legislative Assembly from different constituencies in the District. Their names have been included in the electoral roll required to be prepared for the Chickmagalur Local Authorities Constituency for purpose of election to the Karnataka Legislative Council in terms of Article 171(3)(a) of the Constitution and Section 27 of the Representation of the People Act, 1950 (hereinafter referred to as 'the 1950 Act').
3. The petitioner has challenged the legality of the inclusion of the names of respondents-3 to 14 in the electoral roll on the ground that they are not the members of Zilla Parishad and therefore they are not eligible to be voters in the local authorities constituency. In support of this contention he relies on Article 171 of the Constitution and Section 27(2) of the 1950 Act according to which the members of local authorities in the State constitute the electorate for election to the Legislative Council from the Local Authorities Constituency. The contention of the petitioner is that respondents-3 to 14 are not members of Zilla Parishad, but they are persons on whom the right to take part in the proceedings of the Parishad only is conferred and therefore they are not eligible to be registered in the electoral roll for the Local Authorities Constituency.
4. In the second Writ Petition, the plea of the petitioner is that the names of respondents-7 to 246 who are nominated members of the Mandal Panchayat were included after 3 p.m. on 3-6-1988 which was the last date and time fixed for the receipt of nomination papers for the election to the Legislative Council scheduled to be held on 3-7-1988 and their inclusion in the electoral roll was in plain transgression of the prohibition incorporated in Section 27(3) of the 1950 Act.
5. Sri A.K. Subbaiah and Sri H.K. Vasudeva Reddy, learned Counsel for the petitioners, Sri Santosh Hegde, the learned Advocate General appearing for the Electoral Registration Officer and the learned Senior Central Government Standing Counsel, appearing for the Election Commission of India, and Sri N.Y. Hanumanthappa, the learned Counsel for some of the respondents in the second petition have addressed arguments on the important questions of law arising for consideration.
6. We shall now proceed to consider the first question arising for consideration. Article 171 of the Constitution and the relevant part of Section 27 of the Representation of People Act read :
Article 171 : Composition of the Legislative Councils:
xxx xxx (2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in Clause (3).
(3) Of the total number of members of the Legislative Council of a State -
(a) As nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other Local Authorities in the State as Parliament may by law specify."
xxx xxx Section 27 of the R.P. Act, 1950 : Preparation of electoral roll for Council constituencies :- xxx xxx
(2) For the purpose of election to the Legislative Council of a State in any Local Authorities Constituency -
(a) The electorate shall consist of members of such Local Authorities exercising jurisdiction in any place or area within the limits of that constituency as are specified in relation to that State in the Fourth Schedule ;
(b) Every member of each such Local Authority within a Local Authorities' Constituency shall be entitled to be registered in the electoral roll for that constituency."
According to Clause (a) of Article 171(3), as nearly as may be, one-third of the total number of members of the Legislative Council is required to be elected by electorate consisting of Members of Municipalities, District Boards and such other local authorities in the State as the Parliament may by law specify. It is common ground that after the Zilla Parishads and Mandal Panchayats were established under the Act, by the Representation of the People (Amendment) Act, 1987 (Act 31 of 1987) Zilla Parishads and Mandal Panchayats have been specified as Local Authorities for the purposes of Article 171(3)(a) of the Constitution. Further, having regard to the language of Article 171(3)(a) and Section 27 of the 1950 Act, the electorate for the purpose of election from the local authorities constituencies consist of only the Members of local authorities, is also not in dispute. The controversy, however, is as to whether respondents-3 to 14 are members of Zilla Parishad. According to the petitioner they are not members.
7. Though none among respondents-3 to 14, have put in appearance and chosen to contest the challenge to their eligibility to be the electors, the learned Advocate Genera! appearing for the Electoral Registration Officer justified his action in including their names. He also submitted that the officer had secured the concurrence of the Election Commission. The learned Counsel for for the Commission admitted that concurrence had been given by the Commission.
8. The expression 'Member' of Local Authority is not defined in the Constitution or in the 1950 Act or in the General Clauses Act. The expression 'Local Authority' is also not defined in Article 466. But in view of Article 467, the definition of 'Local Authority' given in the General Clauses Act applies for the interpretation of the expression in the Constitution. It is definedin the General Clauses Act thus:
"3(31) "Local Authority" shall mean a Municipal Committee, District Board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund."
9. It is the members of local authorities specified by law made by Parliament, who constitute the electorate. Therefore the answer to the question depends upon the true meaning of the expression 'Member'. The rule of interpretation, for the purpose of finding out the true meaning of an expression used in a statute is laid down by the Supreme Court in the case of NEW INDIA SUGAR MILLS v. COMMISSIONER OF SALES TAX, thus :
".....It is a recognised rule of interpretation of statutes that the, expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature."
In the light of the above principle, we proceed to ascertain the meaning of the expression 'Member' of local authorities used in Article 171(3)(a) and Section 27 of the 1950 Act. Prior to the commencement of the Constitution Local Authorities established under the laws providing for their establishment for the purpose of local administration of Towns and Cities or Districts were in existence in all parts of the Country. Some of them were Municipalities and District Boards. The members who constituted Municipal Council or a District Board under all these laws were required to be elected in the manner and by the electorate as prescribed in the law concerned. After the commencement of the Constitution many of those laws have been amended or replaced. These laws provide for election of members to constitute a local authority on the basis of adult suffrage. There were and there are and there could be provision in such laws for nomination of members under certain circumstances such as the failure on the part of the Constituency to elect or under any other circumstances as provided in the law concerned. For instance, Section 11 of the Karnataka Municipalities Act, 1964, provides that all the Members/Councillors shall be chosen by direct election in the prescribed manner. Section 12 of that Act provides for appointment of Councillors by the Government in the event of failure to elect. It reads:
"12. Appointment by Government when Councillor not elected :- Any vacancy due to failure to elect the full number of Councillors and any vacancy due to failure to elect a Councillor under Section 19, may, notwithstanding anything contained in this Act, be filled up by appointment by the Government."
There can be no doubt that a person elected or nominated to be a Member/Councillor of local authority would be a member of the local authority and in our opinion it is in this sense, the word 'Member' is generally understood and is used in Article 171(3)(a) and Section 27 of the 1950 Act.
10. The whole intendment and object of Article 171(3)(a) and of Section 27 of the Act which give effect to the Article, is to provide representation to the people in the area of local authorities, in the Legislative Council by indirect election, the electors being those elected to the local authority concerned. In other words, they represent the interest of the local authorities. Therefore, Article 171(3)(a) provides that members of a local authority constitute the electorate to elect their representatives to the Legislative Council. Having regard to the intendment and object of the Article, it appears to us, that the expression 'member' used in Article 171(3)(a) and Section 27 of the 1950 Act means elected members of local authorities and if the law concerned provides for nomination under certain contingency, the expression includes such members also. It is on this basis we have to consider as to whether respondents-3 to 14 are members of Zilla Parishad for purposes of Article 171(3)(a) and Section 27 of the 1950 Act.
11. Section 139 of the Act provides for composition of Zilla Parishad. It reads:
"139. Composition of Zilla Parishad:
(1) Every Zilla Parishad shall consist of elected members as is determined under Section 140.
(2)(a) The Chairman or President of the District Central Cooperative Bank shall be an associate member of the Zilla Parishad.
(b) An associate member shall be entitled to take part in the proceedings of a Zilla Parishad but shall not have the right of vote. He shall not be entitled to hold the office of Adhyaksha or Upadhyaksha.
(3)(a) Subject to the provisions of Clause (b), the members of the State Legislative Assembly and the State Legislative Council and members of Parliament representing a part or whole of the District whose constituencies lie within the jurisdiction of the Zilla Parishad and the members of the State Legislative Council not elected from territorial constituencies and ordinarily resident in the district shall be entitled to take part in the proceedings of and to vote at the meetings of the Zilla Parishad.
(b) The members of the State Legislative Assembly and the Legislative Council referred to in Clause (a) shall have the rights and be subject to the liabilities of the members of the Zilla Parishad except the right to hold the office of the Adhyaksha or Upadhyaksha.
(4) Notwithstanding anything contained in this Section or Sections 140, 141, 142 and 143, but subject to any general or special orders of the Government where two thirds of the total number of members of any Zilla Parishad required to be elected have been elected the Zilla Parishad shall be deemed to have been duly constituted under this Act."
Section 140 reads:
"140. Elected Members :- The elected members of the Zilla Parishad shall consist of persons, elected from the Taluks in the District, the number of members to be elected from each Taluk being fixed in accordance with the scale of one member for (twenty eight thousand) or part thereof of the population except for Kodagu District where it shall be one member for (twelve thousand) or part thereof of the population."
A plain reading of the two Sections would bring forth the. following aspects.
(1) Zilla Parishad consists of elected members, whose number is to be fixed in accordance with per member - population ratio prescribed in Section 140.
(2) The President of the District Central Co-operative Bank would only be an associate member with a right to participate in the proceedings of the Zilla Parishad, but without right of vote and without being eligible to become an Adhyaksha or Upadhyaksha [vide Sub-section 2(a) and (b)] (3) A Member of Parliament representing a part or whole of the area of the District concerned, is entitled to take part in the proceedings of Zilla Parishad and also to vote at the meetings [vide Sub-section 3(a)].
(4) A Member of State Legislative Assembly elected from territorial constituencies in the district and members of Legislative Council, not elected but ordinarily resident in the district:
(i) have the right to take part in the proceedings of Zilla Parishad and to vote at the meeting of the Zilla Parishad [vide Sub-section 3(a)] and
(ii) have the rights and subject to the liabilities of the members of the Zilla Parishad but without right to hold the office of Adhyaksha and Upadhyaksha [vide Sub-section (3)(b)].
12. Thus the provision makes a clear distinction between members, who are required to be elected, and others on whom certain rights and privileges of members is conferred in view of their holding the specified offices. In other words, in the composition of the Zilla Parishad, in addition to the elected members who constitute the Zilla Parishad, and who alone are entitled to be elected as Adhyaksha or Upadhyaksha, there are a few others who are specified in Sub-sections (2) and (3) on whom the rights available to the members under the Act are conferred to the extent indicated in the provisions. These provisions do not make the holder of the offices specified therein, members of Zilla Parishad and they cannot also be regarded as nominated members. A comparison of the provision of Section 5 of the Act which provides for the constitution of the Mandal Panchayats under the Act would make this point clear. Relevant part of it reads:
"5. Constitution of Mandal Panchayat :-
(1) The Mandal Panchayat shall consist of such number of elected members as may be notified from time to time by the Government, at the rate of one member for every (four hundred) population or part thereof of the Mandal as ascertained at the last preceding census of which the relevant figures are published.
xxx xxx xxx (3) Where no person belonging to Backward Classes is elected to a Mandal Panchayat, the Zilla Parishad shall nominate two persons belonging to the said classes to the Mandal Panchayat."
As can be seen from the wording of Section 5(1) it provides that Mandal Panchayat shall consist of elected members. Sub-section (3) provides for nomination of two persons on the happening of the contingency indicated therein. Once the persons are nominated under Section 5(3) to a Mandal Panchayat they become full-fledged members of the Mandal Panchayat concerned. The position of holder of offices specified in Sub-sections (2) and (3) of Section 139 is not equivalent to that of members nominated under Section 5(3) of the Act. There is also intrinsic material in a few Sections of the Act itself which throw considerable light on the existence of such a difference. It is not disputed those provisions are not applicable to persons specified in Sub-sections (2) and (3) of Section 139 of the Act. Those provisions are :-
(i) Section 155 :- This is a provision relating to disqualification of members. Section 155(1)(d) reads :
"155. Disqualification of members -
(1) If any member of a Zilla Parishad, -
xxx xxx
(d) Absents himself, from more than two consecutive ordinary meetings of the Zilla Parishad unless leave so to absent himself, which shall not exceed six months, had been granted by the Zilla Parishad, or absents himself for over three consecutive months from the meetings of the Zilla Parishad, his seat shall be deemed to be or to have become, - as the case may be, vacant."
As can be seen from the above provision, if any member of the Zilla Parishad absents himself from more than two consecutive ordinary meetings of the Zilla Parishad, in the absence of having secured permission to absent himself, his seat is deemed to be or to have become, as the case may be, vacant. This condition is inapplicable to persons named in Sub-sections (2) and (3) of Section 139.
(ii) Section 162 :- This Section pertains to the topic of resignation of members of Zilla Parishad. it reads:
"162. Resignation of Members :- A member of a Zilla Parishad may resign his membership in writing under his hand addressed to the Adhyaksha of the Zilla Parishad and his seat shall become vacant on the expiry of fifteen clear days from the date of such resignation, unless within the said period of fifteen days, he withdraws such resignation by writing under his hand addressed to the Adhyaksha."
This Section is inapplicable to the persons named in Subsection (2) of Section 139.
(iii) Section 163 provides for removal of members for misconduct. It reads :
"163. Removal of members for misconduct :- The government if it thinks fit on the recommendation of the Zilla Parishad may remove any member after giving him an Opportunity of being heard and after such enquiry as it deems necessary if such member has been guilty of misconduct, in the discharge of his duties or of any disgraceful conduct, or has become incapable of performing his duties as a member."
This again is not applicable to the persons named in Subsections (2) and (3) of Section 139 of the Act.
(iv) Section 164 of the Act reads :-
"164. Casual Vacancies how to be filled up :- A casual vacancy of a member of a Zilla Parishad shall be filled up, as soon as conveniently may be, by the election of a person thereto who shall hold office so long only as the member in whose place he is elected could have held office if the vacancy had not occurred."
According to the above provision, a casual vacancy of a member of a Zilla Parishad shall be filled up by election at the earliest. This Section also indicates that vacancy caused by the determination of tenure of office of a person, holding an office specified in Sub-sections (2) and (3) of Section 139, is not regarded as a casual vacancy of a member and the vacancy caused by the vacating of office of a person holding any of the offices specified in Subsections (2) and (3) of Section 139, cannot at all be filled up under any of the provisions of the Act. It is only when a person gets elected to the offices named in Sub-sections (2) and (3) of the Act, providing for such election he becomes entitled to participate in the proceedings. Further, what is of significance is Sections 162, 163 and 164 of the Act aforesaid speaks of members of Zilla Parishad and not of elected members, which means only elected members are members of Zilla Parishad, and to all of them the provisions of Sections 162, 163 and 164 apply.
(v) In addition to the indication available in the aforesaid Sections there is Sub-section (4) of Section 139, which throws considerable light on the point arising for consideration. As can be seen from the said provision, extracted earlier, it is only when the names of at least two-thirds of the elected members in respect of a Zilla Parishad is published, the Zilla Parishad stands constituted. It is not disputed that for the purpose of computing two-thirds of the number of members for the purpose of valid constitution of a Zilla Parishad, the persons eligible to participate in the proceedings of Zilla Parishad by virtue of Sub-sections (2) and (3) of Section 139 cannot be taken into account. In other words, neither the existence nor non-existence of the persons to whom the right to participate in the proceedings of the Zilla Parishad is given, has any bearing on the bringing into existence i.e. the constitution of the Zilla Parishad. It is only after a Zilla Parishad is constituted, by elected members, persons referred to in Sub-sections (2) and (3) of Section 139, are assigned a role. Therefore, it would only be correct to say that they are not members, but are persons on whom certain rights of members are conferred. Sub-section 3(b) expressly states that the members of State Legislative Assembly and the Legislative Council shall have the rights of members of Zilla Parishad, which means they are not members, but are deemed to be members for the purpose of having the rights and privileges of members. This is nothing but a legal fiction, created for purposes of the Act and that too only to the extent indicated in Sub-sections (2) and (3) of Section 139. Such a deemed provision or legal fiction created in an enactment cannot be extended beyond the purposes of that Act, or even for the purposes of that Act beyond the purpose for which it is created, is the settled rule of interpretation as laid down by the Supreme Court in BRAITHWAITE & CO. v. E.S.I. CORPORATION, which reads:
".....It appears to us that the High Court committed an error in applying this legal fiction, which was meant for Sections 40 and 41 of the Act only, and extending it to the definition of wages, when dealing with the question of payment in the nature of Inam under the Scheme started by the appellant. The fiction in the Explanation was a very limited one and it only laid down that wages were to be deemed to include payment to an employee in respect of any period of authorised leave, lock-out or legal strike. It did not lay down that other payments made to an employee under other circumstances were also to be deemed to be wages. A legal fiction is adopted in law for a limited and definite purpose only and there is no justification for extending it beyond the purpose for which the legislature adopted it."
In our opinion the effect of Sub-sections (2) and (3) of Section 139, is that the persons named therein are deemed to be the members of the Zilla Parishad, for the purposes of the Act and to the extent indicated therein and that fiction cannot be extended beyond the purpose for which it is created. Therefore they cannot be regarded as members of Zilla Parishad i.e., of a local authority, within the meaning of that expression in Article 171(3)(a) and Section 27 of the 1950 Act.
13. The learned Advocate General relied on a Division Bench decision of this Court in DIGAMBARA RAO v. STATE OF KARNATAKA, in which it was held that the persons named in Sub-section (3) of Section 139 were to be regarded as members entitled to vote at the election to the office of Adhyaksha and Upadhyaksha of a Zilla Parishad. That decision only gave effect to the express provision of the Act by holding that having regard to the provisions contained in Clauses (a) and (b) of Sub-section (3) of Section 139 of the Act, which gave them the right to participate in the proceedings of the Zilla Parishad and to vote, they had the right to vote at an election to the office of the Adhyaksha and Upadhyaksha, as it was also a proceeding of the Zilla Parishad. The Court held that for the purpose of voting at the election of Adhyaksha and Upadhyaksha of a Zilla Parishad, they were members both having regard to Section 139(3) of the Act and the definition of 'member' under Rule 2(b) of the Karnataka Zilla Parishads (Election of Adhyaksha and Upadhyaksha) Rules, 1987, which regulate election to the office of Adhyaksha and Upadhyaksha though they were not members for contesting the election to the two offices.
14. In this behalf, we may also refer to the provisions of Article 88 and 177 of the Constitution. Under Article 88, the Attorney General of India and a Minister who is not a Member of Parliament are entitled to participate in the proceedings of either House of Parliament, but without right to vote. Similar is the provision under Article 177, according to which the Advocate General of a State as also a Minister who are not members of the State Legislature are entitled to participate in the proceedings of the Legislative Assembly without right to vote. It is not disputed that by virtue of that Article they cannot be regarded as the members of the Parliament or State Legislature as the case may be. Further, at the election to the State Legislative Council, from the Legislative Assembly, neither the Advocate General nor a Minister who is not a member of the Assembly is entitled to be a voter. The position of the person named in Sub-section (2) of Section 139, namely, of the D.C.C. Bank President is exactly the same. Similar is also the position of the Members of Parliament and State Legislators referred to in Sub-section (3), in that though they are not members of Zilla Parishad they are given the right to vote in the proceedings of the Zilla Parishad. The absurdity resulting from the construction suggested for the respondents is best demonstrated in the case of the President of the District Central Co-operative Bank. Even under the provisions of the Act he has no right to vote in the proceedings of the Zilla Parishad or in the election to the office of Adhyaksha or Upadhyaksha of the Parishad, but his name is included in the electoral roll and thereby the right to vote in the election to the Legislative Council from the Local Authority constituency is conferred. We are, therefore, clearly of the view that respondents-3 to 14 are not members of Zilla Parishad and therefore cannot be electors in the Local Authorities constituency as that right is conferred only on the members of Local Authorities under Article 171(3)(a) of the Constitution and Section 27 of the 1950 Act.
15. The learned Advocate General submitted that before including the names of respondents-3 to 14 in the electoral roll, the Chief Electoral Officer of the State had consulted the Election Commission of India and the latter had given concurrence to include the names of persons covered by Sub-sections (2) and (3) of the Act in the electoral roll of the concerned Local Authorities constituency. The learned Senior Standing Counsel for the Central Government appearing for the Election Commission, admitted that such concurrence had been given. We asked him as to the reason or basis on which the direction or decision was given by the Election Commission. He was not in a position to furnish any reason or basis for the decision. Having given due weight to the opinion of the Election Commission also we are unable to take the view that respondents-3 to 14 are the members of the Zilla Parishad, for the reasons set out earlier.
16. For the aforesaid reasons, we answer the second question arising for consideration, as follows:
"A person who is not an elected member of the Zilla Parishad in terms of the provisions of Sub-section (1) of Section 139 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983, but who being a member of the State Legislative Assembly or State Legislative Council or a Member of Parliament or a President of District Cooperative Central Bank, is given certain limited right to participate in the proceedings/meetings of a Zilla Parishad under Sub-sections (2) and (3) of Section 139, cannot be regarded as a member of the Local Authority for the purpose of Article 171(3)(a) of the Constitution of India, entitled to vote in the concerned Local Authorities constituency in the election to the Karnataka State Legislative Council."
17. We shall now take up the third question for consideration. The learned Advocate General submitted that Article 429(b) of the Constitution provides that 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 and this Article puts a total bar to the maintainability of both the Writ Petitions. In view of this Clause, he maintained that no Writ Petition questioning the legality of any action taken in relation to an election to either House of Parliament or to the State Legislature can be entertained by this Court. In support of this submission, he relied upon the Judgment of the Supreme Court in INDERJIT BARUA v. ELECTION COMMISSION OF INDIA, . The relevant portions of the said Judgment reads:
"2. In the first place. Article 429(b) of the Constitution bars any challenge to the impugned elections by a Writ Petition under Article 226 as also on the ground that the electoral rolls on the basis of which the impugned elections were held were invalid. The petitioners sought to escape from the ban of Article 429(b) by contending that they are challenging the impugned elections as a whole and not any individual election and that the ban of Article 429(b) therefore does not stand in the way of the Writ Petitions filed by them challenging the impugned elections. But, we do not think this escape route is open to the petitioners. There is in the Representation of the People Act, 1951 no concept of elections as a whole. What that Act contemplates is election from each constituency and it is that election which is liable to be challenged by filing an election petition. It may be that there is a common ground which may vitiate the elections from all the constituencies, but even so it is the election from each constituency which has to be challenged though the ground of challenge may be identical. Even where in form the challenge is to the elections as a whole, in effect and substance what is challenged is election from each constituency and Article 429(b) must therefore be held to be attracted.
3. We are of the view that once the final electoral rolls are published and elections are held on the basis of such electoral rolls, it is not open to any one to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective. That is not a ground available for challenging an election under Section 100 of the Representation of the People Act, 1951. The finality of the electoral rolls cannot be assailed in a proceeding challenging the validity of an election held on the basis of such electoral rolls vide Kabul Singh v. Kundan Singh, . Article 429(b) in our opinion clearly bars any Writ Petition challenging the impugned elections on the ground that the electoral rolls of 1979 on the basis of which the impugned elections were held were invalid."
He also relied on the Judgment of the Supreme Court in MOHINDER SINGH v. CHIEF ELECTION COMMISSIONER, . The relevant portions of the Judgment, in particular, reads:
"There is a non obstante clause in Article 429 and, therefore, Article 226 stands pushed out where the dispute takes the form of calling in question an election, except in special situations pointed out but left unexplored in Ponnuswami ."
xxx xxx xxx "The rainbow of operations, covered by the compendious expression 'election' thus commences from the initial notification and culminates in the declaration of the return of a candidate. The paramount policy of the Constitution-framers in declaring that no election shall be called in question except the way it is provided for in Article 429(b) and the Representation of the People Act, 1951, compels us to read, as Fazal Ali, J. did in Ponnuswami the Constitution and the Act together as an integral scheme. The reason for postponement of election litigation to the post-election stage is that elections shall not unduly be protracted or obstructed. The speed and promptitude in getting due representation for the electors in the Legislative bodies is the real reason suggested in the course of Judgment."
xxx xxx
30. The plenary bar of Article 429(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 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 overall power to interfere under Article 136 springs into action. In Hari Vishnu this Court upheld the rule in Ponnuswami excluding any proceeding, including one under Article 226, during the ongoing 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 Article 429(b) does not bind."
He also relied on the Judgment of the Supreme Court in INDERJIT BARUA v. ELECTION COMMISSION OF INDIA, AIR 1986 SC 106. The relevant portion of the Judgment on which he relied reads:
"6. These are clear authorities - and the position has never been assailed - in support of the position that an election can be challenged only in the manner prescribed by the Act. In this view of the matter, we had concluded that Writ Petitions under Article 226 challenging the election to the State Legislature were not maintainable and election petitions under Section 81 of the Act had to be filed in the High Court. The Act does not contemplate a challenge to the election to the Legislature as a whole and the scheme of the Act is clear. Election of each of the returned candidates has to be challenged by filing of a separate election petition. The proceedings under the Act are quite strict and clear provisions have been made as to how an election petition has to be filed and who should be parties to such election petition. As we have already observed, when election to a Legislature is held it is not one election but there are as many elections as the legislature has members. The challenge to the elections to the Assam Legislative Assembly by filing petitions under Article 226 of the Constitution was therefore not tenable in law."
These decisions emphatically lay down that in view of Article 429(b) of the Constitution, the challenge to an election either to the Loka Sabha or Rajya Sabha or to the Legislative Council or to the Legislative Assembly of any State can only be through an election petition. This Article being a provision of the Constitution itself, the jurisdiction of this Court under Article 226 of the Constitution stands curtailed to that extent.
18. But the answer of Sri A.K. Subbaiah, the learned Counsel for the petitioner were two :
(i) The preparation of electoral roll is not a part of the election process, challenge to which is barred otherwise than by means of an election petition by Article 429(b);
(ii) The legality of the inclusion of the names of persons ineligible to vote at the election in the electoral roll is not a ground which can be raised in an election petition as the Election Tribunal has no jurisdiction to entertain and decide such a plea. Therefore, the bar created under Article 429(b) of the Constitution does not operate to this petition in which the petitioner is challenging only the legality of the inclusion of the names of respondents 3 to 14 who are not members of the local authorities in the electoral roll and the petitioner is not at all challenging the legality of any step taken pursuant to the notification issued under Section 16 of the Representation of the People Act, 1951 ('the 1951 Act' for short).
19. In the light of the rival submissions made by the learned Counsel, the first point for our consideration is:
Whether the preparation of the electoral roll is a part of the election process so as to attract the bar of Article 429(b) of the Constitution?
In support of the submission that the preparation of electoral roll is not a part of the election process, the learned Counsel for the petitioner relied on the decision of the Supreme Court in LAKSHMICHARAN SEN v. A.K.M. HASSAN UZZAMAN, AIR 1985 SC 1233. The relevant portions of the Judgment reads:
"24. The only question which remains outstanding is whether the preparation and publication of electoral rolls are a part of the process of 'election' within the meaning of Article 429(b) of the Constitution.
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26. We have expressed the view that preparation and revision of electoral rolls is a continuous process, not connected with any particular election. It may be difficult, consistently with that view, to hold that preparation and revision of electoral roll is a part of the 'election' within the meaning of Article 429(b). Perhaps, as stated in Halsbury in the passage extracted in Ponnuswami , the facts of each individual case may have to be considered for determining the question whether any particular stage can be said to be a part of the election process in that case. In that event, it would be difficult to formulate a proposition which will apply to all cases alike."
20. The above view has been reiterated by the Supreme Court in the case of Inderjit Barua, AIR 1986 SC 106 thus :
"We are not prepared to take the view that preparation of electoral rolls is also a process of election. We find support for our view from the observations of Chandrachud, C.J. in Lakshmi Charan Sen's case (AIR 1985 SC 1233) that "it may be difficult consistently with that view, to hold that preparation and revision of electoral roll is a part of 'election' within the meaning of Article 429(b)."
Right from the earliest Judgment of the Supreme Court in PONNUSWAMY'S CASE, the Supreme Court in all its decisions on the point has laid down that the preparation of the electoral roll is not a process of election. Therefore, it is impossible to hold that any illegal omission to include the names of persons who are entitled to be included inspite of their application for inclusion made in the prescribed manner and within the prescribed time or illegal inclusion in the electoral roll of the names of persons who are not eligible to be included, is a part of the election process and therefore cannot be a subject matter of challenge in an election petition contemplated under Article 429(b) of the Constitution read with Section 100 of the 1951 Act. This aspect is laid down by the Supreme Court in NRIPENDRA v. JAI RAM VERMA, . That was a case in relation to an election to the Legislative Council of the State of Uttara Pradesh. In the electoral roll prepared for the concerned Local Authorities constituency, the names of persons who had ceased to be members of the Local Authority and consequently ineligible to be electors in the election, were included. After the election, the petitioner therein challenged the legality of the election in an election petition. One of the grounds raised was the illegality in the preparation of the electoral roll. The High Court accepted the contention and set aside the election. The Supreme Court reversed the Judgment of the High Court holding that the illegality in the electoral roll cannot be challenged in an election petition and that the election Tribunal had no jurisdiction to adjudicate upon such a question, reiterating similar view taken in HARI PRASAD v. V.B. RAJU, . The Supreme Court concluded thus:
"27. It is true, the result is that with a small margin the appellant landed first as the victor in the election and even the balance might have tilted in favour of the respondent if the so-called invalid votes were to be excluded. But this uncanny consequence cannot be helped on the law laid down by this Court and for very good reasons impregnated in the electoral provisions demanding constant awareness on the part of all and above all of the citizenry."
This decision makes it clear that the only course open to a vigilant citizen is to have the illegality rectified before the election and if not done, as far as the Election Tribunal is concerned, it had no jurisdiction to go into any question relating to the legality of the electoral roll.
21. The learned Advocate General fairly and frankly submitted that in the light of the declaration of law by the Supreme Court in the decisions on which the petitioners relied, he could neither say that the preparation of the electoral roll was a part of the election process nor that the inclusion of ineligible persons in the electoral roll, even if it were to tilt the result of an election, can be a subject matter of challenge, in an election petition. He also submitted that a Writ Petition under Article 226 questioning the legality of the inclusion of names of ineligible persons or non-inclusion of names of eligible persons inspite of their application for inclusion made in the prescribed manner, and seeking appropriate relief was maintainable if presented before the issue of notification calling upon the constituency to elect and if decided also before the said date.
22. As far as maintainability of a Writ Petition under Article 226 seeking redressal of the grievance in the preparation of the electoral roll is concerned, as rightly conceded by the learned Advocate General, it is maintainable. This position is evident from the wording of Article 429 itself. In order to bring home this point, we shall refer to Articles 327 and 329. They read :
"327. Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses."
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329. 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 427 or Article 428, 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."
Article 428 empowers the Parliament, inter alia, to make laws on the following topics:
(1) with respect to all matters relating to or in connection with elections to Parliament and State Legislature;
(2) the preparation of electoral roll, and (3) the delimitation of constituencies.
Clause (a) of Article 429 imposes a total bar on the jurisdiction of all the Courts; which certainly includes the High Court exercising jurisdiction vested in it under the Constitution; to go into the validity of any law relating to the delimitation of constituencies. Clause (b) of Article 429 imposes a similar bar, but only regarding the challenge to an election and further provides that it can be challenged only in an election petition. Neither Clause (a) nor Clause (b) bars a challenge to the electoral roll in a petition under Article 226 of the Constitution. If the intention of the founding fathers of the Constitution was to curtail the jurisdiction of all Courts to adjudicate upon the legality of electoral roll, such a bar would have been incorporated in Article 429(b). Therefore, to hold that the jurisdiction of the High Court under Article 226 is barred by Article 429, even regarding adjudicating the legality of electoral roll, would amount to the expanding of the bar created by Article or to the imposition of a bar, which the Constitution itself does not impose. In this behalf, it is necessary to refer to Section 30 of the 1950 Act. It reads :
"30. JURISDICTION OF CIVIL COURTS BARRED:
No Civil Court shall have jurisdiction -
(a) to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency; or
(b) to question the legality of any action taken by or under the authority of an electoral registration officer, or of any decision given by any authority appointed under this Act for the revision of any such roll."
But for the above provision, any Civil Court would have had the jurisdiction to adjudicate upon questions relating to the validity of electoral roll prepared under the 1950 Act. In fact it is the bar to the jurisdiction of the Civil Court in the matter created by Section 30, which has been held to extend to the Election Tribunal also, by the Supreme Court in the case of Hariprasad, .
23. For these reasons, we are of the view that the bar imposed by Article 429(b) does not extend to the adjudication of questions relating to the legality of an electoral roll. To put it in a nut shell, our conclusion is - the doors of the High Court under Article 226 is closed if the doors of the Election Tribunal is open, and not closed if the doors of the Election Tribunal is not open. Any view to the 'contrary would lead to disastrous result, in that, even if inclusion of names or non-inclusion of the names of persons in the electoral roll is patently illegal, there would be no remedy at all. Rule of law being one of the basic structures of our Constitution, any interpretation which leads to such a result, that is, no remedy for the redressal of a legal injury must be held to be not envisaged by the provisions of the Constitution. An indication in this regard is available in the Judgment of the Supreme Court in Mohinder Singh, of the Judgment in which the conclusion is incorporated, reads:
"93. We conclude stating that the bar of Article 429(b) is as wide as the door of Section 100 read with Section 98. The Writ Petition is dismissible but every relief (given factual proof) now prayed for in the pending election petition is within reach. On this view of the law ubi jus ibi remedium is vindicated election in justice is avoided and the constituency is allowed to speak effectively. In the light of and conditioned by the law we have laid down, we dismiss the appeal. Where the dispute which spirals to this Court is calculated to get a clarification of the legal calculus in an area of national moment, the parties are the occasion but the people are the beneficiaries, and so costs must not be visited on a particular person. Each party will bear his own costs."
(Underlined by us) As can be seen from the above paragraph, in that case the Court held that the Writ Petition was not maintainable, for the reason the ground on which the said Writ Petition was presented, could be raised in an election petition and therefore the Supreme Court observed that the principle of ubi Jus ibi remedium' stood vindicated in that case, though the remedy stood postponed to a date after the election, which postponement was on sound public policy and the necessity of utmost expedition in the matter of holding election to the Parliament and State Legislature which is the very essence of a democratic system. Applying the same principle it should be held that in a case of this type in which the challenge is to the inclusion of ineligible persons in the electoral roll, as the same cannot be adjudicated after election in an election petition, the remedy under Article 226; the only remedy available under the Constitution; is available to an aggrieved citizen.
24. An indication to this effect is also available in the judgment of the Supreme Court in Inderjit Barua, AIR 1986 SC 106. In that case after holding that preparation of electoral roll was not a process of election, the Supreme Court said thus:
"....In a suitable case challenge to the electoral roll for not complying with the requirements of the law may be entertained subject to the rule indicated in Ponnuswami's case . But the election of a candidate is not open to challenge on the score of the electoral roll being defective."
As the challenge to electoral roll is barred before election Tribunal, the challenge can be only in a Writ Petition.
25. In view of the above decisions, for the reasons stated earlier, we are persuaded to take the view that the first Writ Petition is maintainable and that Article 429(b) constitutes no bar to the maintainability of the petition.
26. The learned Counsel for the petitioner also invited our attention to the Judgment of the Full Bench of the Kerala High Court in A.K. NAIR v. THE ELECTION COMMISSIONER OF INDIA, which fully supports his contention. Mathew, J, (as he then was) speaking for the majority, stated thus:
".....That being so, if a person cannot question a material irregularity in the preparation of the electoral rolls in a proceeding under Article 226 for failure to comply with the provisions of the Representation of People Act 1950 or the Rules, the position would be that it cannot be questioned either before or during the progress of or after the election. Now it is difficult to uphold such a position unless compelled by some clear provision of the law, as that would be sanctioning the vesting of uncontrolled power in an agency bound to act in accordance with the provisions of the Representation of the People Act 1950 in the matter of preparation of electoral roll.
Non-compliance with a mandatory provision of the Representation of the People Act 1950 may make the proceeding for preparation of electoral rolls null and void. In such a case even the Draconian words of Section 30 of the Representation of People Act 1950 may not bar a suit for declaration that the proceedings are a nullity, let alone a petition under Article 226, a constitutional remedy, which it is beyond the power of any legislature to take away.
xxx xxx xxx It is obvious from this observation that if the electoral rolls are illegal no election on their basis can proceed or be allowed to stand. If this be so, we think that in a proper case it might be open to this Court in a Writ application to give a declaration that the electoral rolls have been prepared in substantial violation of the material provisions of the Representation of the People Act 1950 and give appropriate consequential directions."
The Full Bench took the view that Section 30 would not bar even the jurisdiction of Civil Courts in the matter. The view to this extent stands overruled by the Judgment of the Supreme Court in the case of Hariprasad, wherein Mathew, J, speaking for the Supreme Court held that bar of Section 30 extends to election Tribunal also, though question relating to constitutional validity of Section 30 was left open (see : paragraph 23 of the Judgment). As far as the view of the Full Bench that the jurisdiction of the High Court under Article 226 is not barred by Article 429(b) in respect of challenge to the electoral rolls is concerned, it holds the field. We are in respectful agreement with the view taken by the Full Bench of Kerala High Court. In the result, on the third question we hold that Writ Petition No. 8888 of 1988 in which the legality of the inclusion of the names of respondents 3 to 14 in the electoral roll, for Chickmagalur local authorities constituency is challenged, is maintainable.
27. It is appropriate at this stage to consider the submission of the learned Advocate General which was also adopted by the learned Counsel for the Election Commission that presentation of a Writ Petition challenging the legality of electoral rolls, is maintainable if only presented before the date on which the notification calling upon the constituency to elect is issued under the relevant provisions (Sections 12 to 16) of the 1950 Act and also decided before that date. We find no merit in the submission. Once it is held that the legality of electoral rolls can be a subject matter of Writ Petition, its maintainability does not depend on the date of its presentation or its hearing. Therefore, whether it is presented before the date of notification calling upon the constituency to elect or thereafter, is immaterial. In fact the submission made by the learned Advocate General regarding maintainability is really a question relating to entertainability. It is for the High Court to decide as to whether a Writ Petition presented just before or after the issue of notification calling upon the constituency to elect should be entertained or not. In doing so, the High Court must take into account all the weighty reasons assigned in the various Judgments of the Supreme Court regarding the bar created by Article 429(b) on the jurisdiction of ail Courts in matters relating to election to the Parliament and State Legislature. Therefore, the entertaining of a petition should not have the result of staying or postponing the election. The Court has also no jurisdiction to make any interim or final order which has the effect of upsetting the calendar of events. Therefore, it is only in cases where the Court finds that an illegality committed in the preparation of electoral rolls is such as would justify the interference and also finds that it is practicable to give relief, the petition can be entertained and decided.
28. This case, in our opinion, is one in which the illegality committed in the preparation of electoral rolls is such as would call for our interference and the relief sought for by the petitioner can be granted without causing any hindrance to the holding of elections according to the calendar of events. While answering the first question, we have held that respondents 3 to 14 are ineligible to be voters and therefore we should make an order in the Writ Petition declaring that the inclusion of their names as illegal and invalid and to make a consequential order to the effect that their names stand struck off from the electoral rolls.
29. The election is scheduled to take place on 3-7-1988 and there are only two days more. In order to ensure, in the event of our order being taken in appeal before the Supreme Court and the Supreme Court taking a view different from the view which we have taken, there should be no practical difficulty, notwithstanding our order declaring respondents 3 to 14 ineligible for voting, we consider it expedient to make an order giving liberty to respondents-3 to 14 to cast their votes in the election if they so desire, and if they do so, to direct respondent-2 to keep the ballot papers on which they cast their vote in separate sealed covers and to keep all of them in a sealed box.
Re.W.P. No. 9012/1988 :
30. What we have stated, in answering question No. 3 in favour of the petitioner in W.P. No. 8888 of 1988 is in our opinion sufficient to answer the same question against the petitioner in this Writ Petition. As stated earlier, in this Writ Petition the challenge is to the inclusion of names of respondents-7 to 246 in the electoral roll after 3.00 p.m. on 3-6-1988, which was the last date and time for the receipt of the nomination papers according to the notice of election. In the endorsement given by the Electoral Registration Officer, who is also the Deputy Commissioner of the District, to the petitioner, he has stated that the electoral roll, after including the names of respondents-7 to 246, was pasted on the notice board of his office at 8.55 p.m. In view of this endorsement, the learned Counsel for the petitioner contends that the inclusion of the names was after 3.00 p.m. and therefore the inclusion is unlawful and a nullity, as held by the Supreme Court in NARENDRA v. MANIK RAO, .
31. Sri N.Y. Hanumanthappa, the learned Counsel for some of the respondents, however, submitted that actually a direction to include the names were made before 3.00 p.m. but only the clerical action, that is, of typing and publishing of the electoral roll on the notice board had taken place after 3.00 p.m. and that does not render the inclusion illegal as there was no requirement to publish.
32. Thus, there is a disputed question of fact to be decided. However, even on the basis that the names of respondents 7 to 246 were included in the electoral rolls after 3.00 p.m. on 3-6-988 and therefore the inclusion is a nullity, in view of Section 23(3) of the Act which prohibits inclusion or deletion or alteration in the electoral roll after the last date and time fixed for the receipt of nomination paper, as held by the Supreme Court in the case of Narendra, on which the petitioner relied, that Judgment itself constitutes a basis for rejecting this Writ Petition. As may be seen from the Judgment in the said case the Supreme Court has held that if the names of any persons were included in the electoral rolls after the last date and time fixed for the receipt of the nomination papers and the said persons cast their votes in the election, that would be a case of improper reception of votes and it would constitute a valid ground for challenging the election in an election petition in view of Section 100 of the 1950 Act. As held by us, if a ground of challenge is available in an election petition and consequently the doors of election Tribunal is open, then the doors of this Court under Article 226 stands closed, whatever might have been the illegality committed. The remedy would be only after the election. We express no opinion on any other question raised in the petition.
33. Before parting with the case, it is necessary to observe that we were told that the names of persons similarly situated like those of respondents 3 to 14 in W.P. No. 8888/1988 have been included in all other local authorities constituencies. If that is so, it is open for the Election Commission to issue a direction similar to the one made by us in the Writ Petition, in relation to such inclusion in the electoral rolls of all other constituencies.
34. In the result, we make the following order:
W.P. No. 8888/1988:
(1) Rule made absolute;
(2) The Writ Petition is allowed;
(3) It is hereby declared that respondents Nos.3 to 14 are not eligible to be voters at the election to the Karnataka Legislative Council from Chickmagalur Local Authorities constituency and that the inclusion of their names in the electoral roll is illegal and invalid and therefore their names shall stand struck off from the Electoral Roll of Chickmagalur Local Authorities constituency;
(4) A direction shall also issue to the respondents to strike off the names of respondents-3 to 14 in the Electoral Roll of Chickmagalur Local Authorities constituency;
(5) Respondents Nos.3 to 14 shall, however, be at liberty to cast their votes at the election on 3-7-1988. But if they do so, the 2nd respondent, the Returning Officer, is directed to keep all the ballot papers, on which all or any of them cast their votes, in sealed covers in a separate sealed box and shall not open them at the time of counting and shall declare the result of the election without reference to those votes. (6) No order as to costs.
In W.P. No. 9012/1988 :
(1) Rule discharged;
(2) The petition is dismissed;
(3) No order as to costs.