Madhya Pradesh High Court
Arun Yadav vs Madhya Pradesh Rajya Nirvachan Ayog on 19 January, 2015
Equivalent citations: AIR 2015 MADHYA PRADESH 46, (2015) 3 MPLJ 104
Author: S.K. Gangele
Bench: S.K. Gangele
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 22 of 2015
Arun Yadav
- V/s -
MP Rajya Nirvachan Ayog and Another
Writ Petition No : 673 of 2015
Anurag Modi
Vs.
MP State Election Commission
Writ Petition No : 816 of 2015
Neeraj Singh Thakur
Vs.
State of MP and others
Present : Hon'ble Shri Justice Rajendra Menon.
Hon'ble Shri Justice S.K. Gangele.
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Shri Mrigendra Singh, Senior Advocate, with Shri
Ajay Gupta, Shri Hitendra Singh, Shri Raghvendra
Kumar, Shri Rajeev Mishra & Shri Shekhar Sharma,
Counsel for the petitioner.
Shri P.K. Kaurav with Shri Sidharth Seth, Counsel
For the State Election Commission.
Shri Swapnil Ganguly, Government Advocate,
for the respondent.
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Whether approved for reporting: Yes / No.
ORDER
19/01/2015 2 Writ Petition Nos. 22/2015, 673/2015 & 816/2015 Per : Rajendra Menon, J:-
As common questions are involved in these three petitions are with regard to conducting elections to the Panchayats, all these petitions are being heard analogously. For the sake of convenience, pleadings and documents available in the record of Writ Petition No. 22/2015 are being referred to in this order.
2- Challenging the Notifications - Annexures P/1, P/3 and P/4 dated 15.12.2014, 20.12.2014 and 24.12.2014, issued by the MP State Election Commission in the matter of conducting elections to the Gram Panchayat, Janpad Panchayat and Zila Panchayat in the State of Madhya Pradesh in three phases, on various dates as are indicated therein, all these writ petitions have been filed.
3- During the course of hearing of the matter, the only grievance pointed out by learned counsel for the petitioners were with regard to counting of votes for the elections to the Zila Panchayat that has been held on 13.1.2015. It is the case of the petitioners that initially the elections to the Panchayats in the State of Madhya Pradesh was notified by the State Election Commission on 15.12.2014, and a three phase election programme vide Annexure P/1 was notified. It is stated that the manner in which the election programme has been notified indicates that polling for electing members of the Janpad Panchayat and the Zila Panchayat of a single District are not being completed in a single phase. It is being spread over in two or three different phases. It is stated that the petitioners, including the petitioner in Writ Petition No. 22/2015, who happens to be the State President of a political party namely - MP Congress Committee, objected to the manner in which the election was to be conducted in these phases and submitted a representation on 19.12.2014 vide Annexure P/2. Accordingly, an amended notification - Annexure P/3 was issued on 20.12.2014, curing various defects that were pointed out by the petitioners. Subsequently, another notification - Annexure P/4 has been issued on 24.12.2014, 3 Writ Petition Nos. 22/2015, 673/2015 & 816/2015 again making certain further amendments in the election process to be held.
4- However, inspite of the amended notification issued, the only grievance of the petitioners now are that for the elections to the Janpad Panchayat and the Zila Panchayat that have been held on 13.1.2015, counting of votes is to take place on 16.1.2015, but the results will not be declared. The results will be declared only on 25.2.2015.
They do not have any objection with regard to postponing declaration of results, but their only objection is even if the counting of votes is held on 16.1.2015, the secrecy of the elections would be disturbed. The counting agents and others persons of the media, who would be present at the time of counting, will know as to who is elected as member of the Janpad Panchayat and thereby the elections to be held subsequently to the Zila Panchayat and the Janpad Panchayat, particularly to the Zila Panchayat would be adversely effected. It is stated that by phasing the elections in the manner done for the same District in different phases, an adverse affect would be caused on the election. Accordingly, contending that even counting of the votes for elections already held should be postponed and should be undertaken after all the polling is held after the third and final phase, these petitions have been filed under Article 226 of the Constitution.
5- In all the petitions, the only adverse affect due to the impugned process as is indicated hereinabove, is pointed out by contending that if the counting of votes for the elections already held with regard to election of Janpad Members and Zila Panchayat Members are undertaken before completing the second and third phase of polling for the same Janpad Panchayat and the Zila Panchayat, this would adversely influence the voters in the next phase of polling for electing the remaining Members of the same Janpad Panchayat or the Zila Panchayat.
6- Placing reliance on a judgment of the Supreme Court in the case of D.K. Thakur Vs. Union of India, Writ Petition (C) No.207/2014, it is stated that when the Supreme Court has prohibited 4 Writ Petition Nos. 22/2015, 673/2015 & 816/2015 publication of exit poll and opinion poll before all the polling in an election is completed, then even counting of votes polled for the elections if permitted would have the same effect as declaration of results or atleast knowing of the results by various persons and this be prohibited.
7- Keeping in view the urgency of the matter, the case was taken up for hearing on 15.1.2015 and on preliminary hearing, this court found that the Election Commission should be granted an opportunity to point out the administrative difficulties, if any, in the matter of postponing even counting of the votes till conclusion of all the phases of the election. Accordingly, a detailed affidavit indicating various administrative difficulties has been filed by the office of the Election Commission. Even though learned counsel for the petitioners tried to say that they should be granted some time to give their counter-affidavit, for the present we are of the considered view that looking to the urgency of the matter and the legal question with regard to jurisdiction of this Court to interfere in the matter at this stage, the same is not required. That apart, the Election Commission had agreed that counting of votes will not be undertaken on 16.1.2015 till hearing is held today, and as counting of votes is withheld on such undertaking given, it is necessary to consider the various aspects of the matter and take a decision as to whether the petitions should be entertained or not? As during the course of hearing serious objections were raised by Shri P.K. Kaurav to the maintainability of this petition itself, once the process of election has commenced. Accordingly, we propose to deal with the matter. 8- A serious preliminary objection has been raised by the respondents to say that this writ petitions under Article 226 of the Constitution of India, is not maintainable for the present. Placing reliance on the following judgments: NP Ponnuswami Vs. Returning Officer, Namakkal Officer, AIR 1952 SC 64; Election Commission Vs. Shivaji and others, (1988) 1 SCC 277; Anugrah Narain Singh and another Vs. State of UP and others, (1996) 6 SCC 303; Election Commission Vs. Ashok Kumar and others, (2000) 8 SCC 216;
5Writ Petition Nos. 22/2015, 673/2015 & 816/2015 Manda Jaganath Vs. K.S. Rathnam (2004) 7 SCC 492; Kishansing Tomar Vs. Municipal Corporation of the City of Ahmedabad and others, (2006) 8 SCC 352; and, Karnataka State Election Commission Vs. H.C. Yatheesh Kumar and others, (2006) 9 SCC 181, and by taking us through in detail the principle of law laid down in the cases of NP Ponnuswami (supra), Anugrah Narain Singh (supra) and Ashok Kumar (supra) so also certain observations made in the case of Kishansing Tomar (supra) and the Bombay High Court in the case of Moreshwar Ghaisas Vs. State of Maharashtra, (2009) 5 Bom CR 889, Shri P.K. Kaurav argued that at this stage when the election process has already commenced, interference into the matter cannot be made by this Court, and the petitions itself are not maintainable. Learned counsel took us through various observations made by the Supreme Court in the judgments as relied upon by him hereinabove, in support of his contentions.
9- On the contrary Shri Mrigendra Singh, Senior Advocate, and Shri Ajay Gupta alongwith him and other counsel referred to the principle and the observations made by the Supreme Court in paragraph 32 of the judgment in the case of Ashok Kumar (supra), to rebut the contentions and say that in the facts and circumstances of the case and the nature of dispute involved in the matter, the writ petitions are maintainable.
10- That apart, in the detailed affidavit filed, the office of the State Election Commission has tried to indicate various administrative reasons and practical problems which according to them are ground sufficient enough to demonstrate administrative difficulties, which should be taken note of for the purpose of considering the question of interference with the election process at this stage. 11- Before adverting to consider various question that have been posed before us, the moot question which warrants consideration by us for the present is as to whether the extra-ordinary jurisdiction available with the High Court under Article 226 of the Constitution should be exercised at this stage when the election process has already 6 Writ Petition Nos. 22/2015, 673/2015 & 816/2015 commenced and the first phase of polling has already been held on 13.1.2015 and the second and third phase of elections are now scheduled to be held on 31.1.2015 and 19.2.2015. The question is should the High Court interfere into the matter at this stage.
12- To answer the aforesaid question, it is necessary for us to go through the principle of law laid down by the Supreme Court in various cases. For the first time, the question of interfering into an election matter once the process of election has been set into motion was considered by a Constitution Bench of the Hon‟ble Supreme way back in the year 1952, in the case of N.P. Ponnuswami (supra) and the Constitution Bench of the Supreme Court in the aforesaid case has laid down the principle that once the process of election has been set into motion, the High Court under Article 226 of the Constitution should not interfere.
13- It has been held by the Supreme Court in the aforesaid case that the scheme contemplated under Part XV of the Constitution and the Statutory Act is to the effect that if the complaint made has the effect of vitiating an election the same should be taken up at an appropriate stage in an appropriate manner before a Special Tribunal and should not be brought up at an intermediate stage before any Court. It has been held by the Supreme Court that this is the meaning of the Scheme under the Constitution and any other meaning ascribed to the words appearing under Article 329 of the Constitution, particularly the word „election‟ would lead to anomalies which the Constitution would not have contemplated. This includes disputes relating to pre-polling stages also. It has been held by the Supreme Court that having regard to the important functions which the Legislature has to perform in democratic countries, it has always been recognized as a matter of first importance that elections should be conducted as early as possible according to the time schedule and all controversial matters and disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. It has been observed by the Supreme Court in the aforesaid case that even if 7 Writ Petition Nos. 22/2015, 673/2015 & 816/2015 there are any ground relating to non-compliance with the provisions or the constitution on which validity of the election process could be questioned, the persons interested in questioning the election has to wait till the election is over and institute an election petition. 14- This judgment of the Supreme Court was subsequently followed and the same principle reiterated in the case of Shivaji (supra). In the case of Anugrah Narain Singh (supra), again the same principle has been reiterated and in paragraph 11, after considering the provisions of Article 243-ZG of the Constitution pertaining to staying an election to the Municipal Corporation which is para materia to the provision as contained in the Constitution pertaining to Panchayat Election i.e... Article 243-O. In paragraph 12, it has been held that once the process of election has been set into motion, the Court should not intervene to stop election in the mid way. The question was again considered in various other cases and finally, in the case of Ashok Kumar (supra) a detailed consideration has been made with regard to the power to be exercised by the Court and the principle laid down in the case of Ashok Kumar (supra) is also to the effect that in the field of election jurisprudence, ignoring the law laid down in various cases interference by the Courts is prohibited. In paragraph 32 of the said judgment, the general principles have been summarized in the following manner:
"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 there from in view of the analysis made by us hereinabove:
(1) If an election, (the terms election being widely interpreted so as to include all steps and 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 8 Writ Petition Nos. 22/2015, 673/2015 & 816/2015 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 court's 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 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. "9
Writ Petition Nos. 22/2015, 673/2015 & 816/2015 15- Subsequently, the same principle has been followed and reiterated by the Supreme Court recently in cases of Ashok Shankarrao Chavan Vs. Madhavrao Kinhalkar and others, (2014) 7 SCC 99; Ajay Maken Vs. Adesh Kumar Gupta and another, (2013) 3 SCC 489; and, Harnek Singh Vs. Charanjit Singh and others, (2005) 8 SCC 383. A combined reading of all these judgments go to show that settled principle of law is to the effect that a High Court exercising jurisdiction under Article 226 should be slow in interfering in election matters.
16- If the principle of law laid down in the aforesaid cases is applied in the facts and circumstances of the present case, we have no iota of doubt that once the election process has been put into motion and part of the election process has been completed, interference by us is not called for.
17- Shri Mrigendra Singh, learned Senior Advocate, and Shri Ajay Gupta invited our attention to Rule 77(c)(3) of the MP Panchayat Nirvachan Niyam, 1995 and tried to make out a case to say that by detaching the „detachable memory module‟ from the control unit even before declaration of the result, the provisions of sub-rule (3) of Rule 77(c) is being violated and as a statutory violation is writ large, the counting of votes be stayed.
18- We are of the considered view that on such ground we cannot stay the election process or the counting process for the simple reason that under the MP Panchayats (Election Petitions, Corrupt Practices and Disqualification of Membership) Rules, 1995, conduct of an election by non-compliance of the Act or the Rules framed thereunder is a ground to declare the election as void by the Election Tribunal in an Election Petition under Section 122 of the MP Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. That being so, this ground is available to be taken in an election petition and, therefore, on such consideration we are not inclined to interfere into the matter.
19- During the course of hearing Shri Ajay Gupta, learned counsel for the petitioner, inviting our attention to the principle 10 Writ Petition Nos. 22/2015, 673/2015 & 816/2015 laid down by the Supreme Court in paragraph 32(3) of the judgment rendered in the case of Ashok Kumar (supra) tried to emphasize that by procuring some additional electronic machines, the problem could be resolved and by adopting an arbitrary method, the State Election Commission is refusing to do so. He argued that in view of principles as indicated in para graph 32(3), this Court can issue directions to take steps for procuring additional electronic voting machine and then proceed with the election as prayed for by the petitioners.
20- We have considered this aspect of the matter in the backdrop of various administrative exigencies pointed out by the counsel for the Commission, various technical aspects are involved in the matter and we do not have the expertise to go into all these aspects of the matter and come to an evitable conclusion that this is possible. That apart, we have to take note of one exonerating circumstances which was brought on record and it is that the Higher Secondary and High School Certifica te Examination are to commence in the State of Madhya Pradesh from 2 nd March, 2015. It is said that if the elections are postponed and if the dates are required to be changed for making further arrangement, the entire schedule for examination would be adversely effected as the election process and various aspects connected with the election are being undertaken in various premises of the school throughout the State of Madhya Pradesh. In view of all this, at this stage we do not deem it appropriate to exercise our discretion in the matter as prayed for by Shri Ajay Gupta.
21- Once we have come to the conclusion that at this stage interference into the matter in a writ petition is not permissible, it is not necessary for us to go into various factual aspects of the matter which were highlighted before us at the time of hearing to say that there are various administrative difficulties in conducting the election and the petitioners tried to refute the aforesaid.
11Writ Petition Nos. 22/2015, 673/2015 & 816/2015 22- However, we may take note of one fact which has some bearing on the matter and that is in the elections to the Panchayats held in the State of Madhya Pradesh in the years 1994, 1995, 2004 and 2009, similar process of election was conducted and nothing is brought to our notice on the basis of which it can be held that due to conduct of the election by the process as impugned in this writ petition, any prejudice or illegality was committed in the last 20 years when the elections were held following the same process.
23- Even though Shri Mrigendra Singh, learned Senior Advocate, tried to emphasize that during the last 20 years whenever elections were held even though in three phases, but for one Zila Panchayat, elections were held in one phase and there was no distribution of election into different phases in the particular Zila Panchayat. However, Shri P.K. Kaurav appearing for the Election Commission has produced a chart before us with regard to the elections held in the year 2009-10, wherein it is seen that in various districts in the State of MP, elections even for the same Zila Panchayat have been held in three or four phases. For example, in the Elections to the Zila Panchayat Morena, held in the year 2009-10, elections were held in three phases. Similar statement with regard to various other Districts have been produced to say that in various Zila Panchayats in the year 2009-10 also and even much prior to that held from the year 1994, elections have been held in three to four phase and the petitioners have been unable to demonstrate before us as to what prejudice or illegalities were committed or caused in holding the election in different phases during the last 20 years.
24- That being so, after taking note of the totality of the circumstances, particularly the legal principle of law as is detailed hereinabove, we see no reason to interfere into the matter at this stage, when the election process has already commenced and the first phase of voting has already been concluded.
12Writ Petition Nos. 22/2015, 673/2015 & 816/2015 25- Accordingly, finding no ground to interfere into the matter at this interlocutory stage, when the election process has already commenced, all these petitions are dismissed ( RAJENDRA MENON ) ( S.K. GANGELE ) JUDGE JUDGE Aks/-