the press note dated 02-06-2015 issued by the Election Commission of India (for short the EC) proposing to hold biennial elections to the Andhra Pradesh Legislative Council from Local Authorities Constituencies (for short the Election).
THE HONBLE THE ACTING CHIEF JUSTICE SRI DILIP B.BHOSALE AND THE HONBLE SRI JUSTICE S.V.BHATT
W.P.Nos.15921 OF 2015 and batch
10-06-2015
The Yuvajana Sramika Rythu Congress Party & others Petitioners
The Election Commission of India & others Respondents
Counsel for Petitioners:Sri S.Srinivas Reddy
Sri Ch.Siva Reddy
Sri P.Sudhakar Reddy
Counsel for Respondents:Sri Avinash Desai
Sri V.V.Prabhakar Rao
Learned G.P. for Law &
Legislative Affairs (AP)
Sri G.Subba Rao
<GIST:
>HEAD NOTE:
?Cases referred :1) [ (2000) 8 SCC 216 ]
2) [ AIR 2002 A.P. 307 ]
3) [ AIR 1952 SC 64 ]
4) [ AIR 1978 SC 851 ]
5) [ (1988) 1 SCC 277 ]
6) [ (2011) 1 SCC 370 ]
THE HON'BLE THE ACTING CHIEF JUUSTICE SRI DILIP B.BHOSALE
AND
THE HONBLE SRI JUSTICE S.V.BHATT
W.P.Nos.15921,16147 and 15928 of 2015
ORAL JUDGMENT: (per Hon'ble The Acting Chief Justice Dilip B.Bhosale)
The petitioners, in these writ petitions under Article 226 of
the Constitution of India, seek similar reliefs, based on the press
note dated 02-06-2015 issued by the Election Commission of
India (for short the EC) proposing to hold biennial elections to
the Andhra Pradesh Legislative Council from Local Authorities
Constituencies (for short the Election).
2) In the first petition (W.P.No.15921 of 2015),
petitioner No.1 is a political party registered under Section 29-A
of the Representation of The People Act, 1951 (for short the
Act), and the second petitioner is its Secretary. They are
challenging the action of the EC in issuing the press note
dated 02-06-2015, declaring to conduct separate elections to the
posts of members of the A.P. Legislative Council (for short the
Council), to fill up two vacancies each from Krishna and
Visakhapatnam Local Authorities Constituencies as arbitrary,
illegal, unjust, discriminatory and violative of fundamental rights
guaranteed under the Constitution of India. According to the
petitioners, holding of an election, in the manner in which it is
proposed, is contrary to Article 171 of the Constitution, Section
27 of the Act and the provisions of Delimitation of Council
Constituencies (Andhra Pradesh) Order, 2006, (for short the
delimitation order). They are also seeking a direction to the EC
to conduct single election to fill up two vacancies each from
Krishna and Visakhapatnam Local Authorities Constituencies.
3) In the second petition (W.P.No.16147 of 2015) the
petitioner, who desires to contest the said elections, is an
individual and former member of the Legislative Assembly. He
also seeks the similar relief as prayed for in the first petition.
4) In the third petition (W.P.No.15928 of 2015) also,
the petitioner is an individual who seeks to challenge the very
same press note stating that the decision of the EC to hold
elections for only one vacancy though there exists two vacancies
in one territorial constituency of Chittoor District i.e. Local
Authorities Constituency as illegal, arbitrary, discriminatory and
contrary to Article 171 (4) of The Constitution.
5) The impugned press note was issued by the EC on
02-06-2015. The writ petitions, though, it appears, were filed
on 05.06.2015, were mentioned before the Court for urgent
hearing on 08-06-2015. On this date the Court directed learned
counsel for the petitioners to give notice to the EC and other
respondents and kept the petitions for admission on 09-06-2015.
In the meanwhile, a notification was published in the Andhra
Pradesh Gazette on 09-06-2015 declaring the biennial elections
to the Andhra Pradesh Legislative Council from the Local
Authorities Constituencies stating that the seats of 11 members
of the Legislative Council of the State of Andhra Pradesh elected
by the members of the Local Authorities have fallen vacant on
the retirement of sitting members on the expiration of their term
of the office. The details, as given in the notification, namely,
name of the retired members, name of the Local Authorities
Constituencies, number of members to be elected and date of
their retirement read thus:-
Name of the State Andhra Pradesh
Sl.
No.
Name of members
Name of LAC
Number of
Members
to be
elected
Date of
Retirement
(1)
(2)
(3)
(4)
(5)
1.
Yellareddigari Sivarami Reddy
Anantapur Local Authorities
1
29.03.2013
2.
Yallamanchili Venkata Babu
Rejendra Prasad
Krishna Local Authorities
1
29.03.2013
3.
China Rajappa Nimmakayala
East Godavari Local
Authorities
1
01.05.2013
4.
5.
Dr.Rayapati Srinivas
Thelukutla Gopala Venkata
Krishna Reddy
Guntur Local Authorities
2
01.05.2013
6.
Vasireddy Varada Rama Rao
Vizianagaram Local
Authorities
1
01.05.2013
7.
Dadi Veerabhadra Rao
Vishakhapatnam Local
Authorities
1
01.05.2013
8.
K.Jayachandra Naidu
Chittoor Local Authorities
1
01.05.2013
9.
Ilapuram Venkaiah
Krishna Local Authorities
1
29.03.2015
10.
D.V.Suryanarayana Raju
Visakhaparnam Local
Authorities
1
01.05.2015
11.
Pothula Rama Rao
Prakasam Local Authorities
1
01.05.2015
5.1) The following portion of the notification issued by the
Governor of Andhra Pradesh is also relevant:-
AND WHEREAS, Biennial election to fill up 8 seats in the year
2013 could not be then conducted as the Constituent Local
Bodies/Electors were not in existence at that time and while in
the year 2014, the Constituent Local Bodies/Electors with their
members came into existence but the State of Andhra Pradesh
was bifurcated into two States, namely, Andhra Pradesh and
Telangana by the Andhra Pradesh Reorganization Act, 2014 and there
was inconsistency in the Act, regarding the number of seats in respect
of Local Authorities Constituencies allocated to Andhra Pradesh, viz.,
as per Section 23 of the Andhra Pradesh Reorganization Act, 2014, 17
seats were allocated to the Andhra Pradesh Legislative Council in
respect of Local Authorities Constituencies but under the Third
Schedule to the said Act, 20 members were allocated to these
Constituencies;
AND WHEREAS, it was decided by the Commission that before
conducting the elections for filling the above mentioned vacancies
occurred in 2013 as well as in 2015, it was necessary to remove
the above said inconsistency;
AND WHEREAS, in terms of Section 108 of the said Act, this
inconsistency was referred to the Central Government (Ministry of
Home Affairs) for removing the said inconsistency;
AND WHEREAS, the said inconsistency has now been removed by
order of Ministry of Home Affairs, dated 29.04.2015, read with Andhra
Pradesh Reorganization (Amendment) Act, 2015, dated 30.03.2015,
whereby the total number of seats to the Andhra Pradesh Legislative
Council has been increased to 58 from 50 and the seats in respect of
Local Authorities Constituencies has been kept as 20;
AND WHEREAS, a biennial election has thus, to be held for the
purpose of filling all the above mentioned eleven vacancies so arisen;
AND WHEREAS, It is clarified that the election to fill the two
vacancies from Guntoor Local Authorities Constituency which
arose on 1.5.2013 will be held as single election, whereas
elections to fill the remaining 9 vacancies will be held as
separate elections to fill one vacancy each;
NOW, THEREFORE, as recommended by the Election Commission of
India in pursuance of section 16 read with Section 15A of the
Representation of the People Act, 1951 (43 of 1951), the Governor of
the State of Andhra Pradesh is hereby pleased to call upon each of the
Local Authorities Constituencies of the State mentioned in column (2)
of the table given in the Annexure to elect the number of Members as
indicated in column (4) of the table against each of the corresponding
Constituencies, for the purpose of filling the above vacancies, in
accordance with the provisions of the said Act and of the rules and
orders made thereunder.
E.S.L.NARASIMHAN,
Governor of Andhra Pradesh
(emphasis supplied)
5.2) The election programme was also declared along
with the notification dated 09-06-2015, which reads as follows:-
(A) appoints, with respect to the said election in each of the
constituencies,-
(a) the 16th June, 2015 (Tuesday), as the last date for
making nominations;
(b) the 17th June, 2015 (Wednesday), as the date for the
scrutiny of nominations;
(c) the 19th June, 2015 (Friday), as the last date for the
withdrawal of candidatures;
(c) the 3rd July, 2015 (Friday), as the date on which a
poll shall, if necessary, be taken; and
(e) the 10th July, 2015 (Friday), as the date before which
the election shall be completed; and
(B) fixes the hours from 8.00 A.M. to 4.00 P.M., as the hours
during which the poll shall, if necessary, be taken on the date specified
above for the election.
6) The election programme was declared by the EC vide
Notification dated 09.06.2015 under the orders of the Principal
Secretary to the Election Commission of India and by the Chief
Electoral Officer, Andhra Pradesh, in pursuance of Sections 30
and 56 of the Act. The notifications dated 09.06.2015, declaring
the election, could not have been challenged in these petitions,
which were filed before the date of notification, nor the learned
counsel for the parties subsequently sought leave of this Court to
challenge the said notification.
7) Mr.C.V.Mohan Reddy, the learned Senior Counsel
appearing for the petitioners in the first writ petition, at the
outset, submitted that the EC ought to have declared to conduct
single election to fill up two vacancies each from Krishna and
Visakhapatnam Local Authorities Constituencies as they
proposed to hold single election for two vacancies in Guntur
Local Authorities Constituency. In other words, he submitted
that it is not only improper and discriminatory but also illegal to
hold separate elections for filling up two vacancies from same
territorial Constituency contrary to the mandate contemplated by
Article 171 of the Constitution. This Article, he submitted,
contemplates single election in a single territorial constituency in
accordance with the system of proportional representation by
means of the single transferable vote. He further submitted that
in any case it was wrong on the part of the EC to discriminate
between the election to fill up two vacancies from one territorial
constituency i.e. Guntur Local Authorities Constituency and for
two vacancies each from two territorial constituencies, namely,
Krishna and Visakhapatnam Local Authorities Constituencies. He
submitted that merely because the term of the seats for which
the elections are being held expired in the year 2013 and 2015
in Krishna and Visakhapatnam Local Authorities Constituencies
that cannot be the ground for holding separate elections. He
submitted that there is absolutely no rational in holding separate
elections for two vacancies from one territorial constituency
when the relevant provisions of the Act and Article 171 clearly
mandates single election in accordance with the system of
proportional representation by means of the single transferable
vote. In support of his contention he placed reliance on the
judgment of the Supreme Court in Election Commission of
India v. Ashok Kumar and others( ).
8) Mr.Ch.Siva Reddy, the learned counsel appearing for
the petitioner in the second petition (W.P.No.16147 of 2015),
repeated the submissions advanced by Mr.C.V.Mohan Reddy,
learned Senior Counsel. We are, therefore, not making specific
reference to his submissions since the challenge in both the
petitions is identical. Mr.Ch.Siva Reddy, in support of his
submissions, placed reliance on the judgment of this Court in
Kayathi Jayapal Reddy v. State Election Commission and
another( ).
9) Mr.Ponnavolu Sudhakar Reddy, learned counsel
appearing for the petitioner in the third petition (W.P.No.15928
of 2015), submitted that it was wrong, illegal, discriminatory and
contrary to Article 171 of the Constitution, apart from it being
violative of Article 14 of the Constitution and the Election Rules
of 1961, to hold election for only one vacancy when admittedly
there exists two vacancies in the territorial constituency of
Chittoor District. In short, he submitted that the EC has
committed grave error of law in holding election from Local
Authorities Constituencies for only one vacancy out of two
vacancies in Chittoor District.
10) On the other hand, Mr.Avinash Desai, learned
counsel appearing for the EC, at the outset, invited our attention
to Article 329 of the Constitution of India and Section 100 of the
Act and submitted that these writ petitions cannot be
entertained since the notification declaring the election has
already been issued. He submitted that it is not open to the
petitioners to call in question the election except by an election
petition. He submitted that grounds, on which the petitioners
have challenged the press note declaring the instant election,
are available under Section 100 of the Act, to challenge the
election after the process is complete. On merits, he submitted
that in case of Krishna and Visakhapatnam Local Authorities
Constituencies, the EC has decided to hold separate elections
since the election is for two vacancies which occurred at two
different points of time, i.e. in 2013 and 2015, while in Guntur
Local Authorities Constituency both the vacancies arose in 2013
i.e., on 01-05-2013. He submitted that the notification is issued
to fill up eight(8) seats since in the year 2013 biennial election
could not be then conducted as the Constituent Local
Bodies/Electors were not in existence at that time and while in
the year 2014, the Constituent Local Bodies/Electors with their
members came into existence but the State of Andhra Pradesh
was bifurcated into two States and since there was inconsistency
in the A.P. Reorganization Act, 2014, regarding the number of
seats in respect of Local Authorities Constituencies. He
submitted that the vacancies occurred in 2013 as well as in
2015, are though proposed to be filled by holding election on the
same day, those vacancies cannot be conducted by single
election. In the case of Guntur Local Authorities Constituency,
he submitted, the EC is holding single election since both the
vacancies occurred on the same day in 2013. He submitted that
in A.K.Walia v. Union of India and others [C.W.132/94
decided by a Division Bench presided over by Justice P.K.Bahri
and Justice Vijender Jain on 14.01.1994] identical challenge was
raised before the Delhi High Court. It was in respect of three (3)
seats of Rajya Sabha from the Electoral College comprising of
members of the Legislative Assembly of Delhi wherein the Delhi
High Court dismissed the petition. He also placed notification,
published in The Andhra Pradesh Gazette, Part-V, on record for
our perusal. Iin support of his submissions, he placed reliance
upon the following Judgments: N.P.Ponnuswami V. The
Returning Officer, Namakhal Constituency and others( );
Mohinder Singh Gill and another V.The Chief Election
Commissioner, New Delhi and others( ); Election
Commission of India V. Shivaji and others( ) and Election
Commission of India V. Telangana Rastra Samithi and
Another( )
11) In this back drop, it would be advantageous to
reproduce the relevant portion of Article 171 of the Constitution
for better appreciation of the averments advanced by the
learned counsel for the parties, which reads thus:-
171. Composition of the Legislative Councils.- (1)
The total number of members in the Legislative Council of a State
having such a Council shall not exceed [one-third] of the total
number of members in the Legislative Assembly of that State:
Provided that the total number of members in the
Legislative Council of a State shall in no case be less than forty.
(2) .
(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;
(b) as nearly as may be, one-twelfth shall be elected by
electorates consisting of persons residing in the State who have
been for at least three years graduates of any university in the
territory of India or have been for at least three years in
possession of qualifications prescribed by or under any law made
by Parliament as equivalent to that of a graduate of any such
university;
(c) as nearly as may be, one-twelfth shall be elected by
electorates consisting of persons who have been for at least three
years engaged in teaching in such educational institutions within
the State, not lower in standard than that of a secondary school,
as may be prescribed by or under any law made by Parliament;
(d) as nearly as may be, one-third shall be elected by the
members of the Legislative Assembly of the State from amongst
persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor in
accordance with the provisions of clause (5).
(4) The members to be elected under sub-clauses (a), (b) and
(c) of clause (3) shall be chosen in such territorial constituencies
as may be prescribed by or under any law made by Parliament,
and the elections under the said sub-clauses and under sub-clause
(d) of the said clause shall be held in accordance with the system
of proportional representation by means of the single transferable
vote.
11.1) Similarly, Article 329 of the Constitution of India and
Section 100 of the Act are also relevant. Article 329 of the
Constitution reads thus:
329. Bar to interference by courts in electoral matters.-
[Notwithstanding anything in this Constitution]
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under
article 327 or 328, shall not be called in question in any
court;
(b) no election to either House of Parliament or to the House
or either House of the Legislature of a State shall be
called in question except by an elected petition
presented to such authority and in such manner as may
be provided for by or under any law made by the
appropriate Legislature.
11.2) Section 100 of the Act reads thus:
100. Grounds for declaring election to be void:- (1)
Subject to the provisions of sub-section (2), if [the High Court] is of opinion-
-
(a)
(b)
(c)
(d) That the result of the election, in so far as it concerns a returned
candidate, has been materially affected--
(i) ..
(ii) ..
(iii) ..
(iv) By any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made
under this Act,
[the High Court] shall declare the election of the returned
candidate to be void.
12) A glance at Article 329 of the Constitution, for our
purpose, would show that no election to either House of the
Legislature of a State shall be called in question except by an
Election Petition. Whether a ban under this Article is a blanket
ban and whether Article 226 is also covered by this embargo,
and if so, Section 100 is enough to accommodate every kind of
objection, constitutional, legal or factual which may have the
result of invalidation of election, were the questions considered
by the Supreme Court, among many other issues/questions in
Mohinder Singh Gill (supra). After having considered several
judgments of the Supreme Court and some English Judgments it
was held that Article 329(b) is a blanket ban on litigative
challenges to electoral steps taken by the Election Commission
and its Officers for carrying forward the process of election to its
culmination in the formal declaration of the result.
13) Section 100 of the Act provides grounds for declaring
election to be void. It states that subject to the provisions of
sub-section (2), if the High Court is of opinion that the result of
election, insofar as it concerns a returned candidate, has been
materially affected by any non-compliance with the provisions of
the Constitution or of this Act or of any Rules or Orders made
under this Act, the High Court shall declare the election of the
returned candidate to be void. Thus, from a bare reading of this
Section, it is clear that Section 100(1)(d)(iv) of the Act takes
care of the situation present in the instant writ petition. Having
regard to the ground of challenge, based on Article 171, as
contended by the learned counsel for the parties, in our opinion,
is undoubtedly available to the petitioners after the election to
call in question the election of the returned candidate on the
ground of non-compliance with the said provisions of the
Constitution. In other words, the sole remedy for an aggrieved
party, if he wants to challenge any election, is an Election
Petition, in particular when the ground of challenge can be raised
in election petition under section 100 of the Act. The exclusion
of all other remedies, including the constitutional remedy like a
writ petition under Article 226 of the Constitution, is because of
non abstante clause in Article 329 of the Constitution. Section
100, as we have already seen, provides for the ground on which
an election may be called in question, one of which is non-
compliance of the provisions of the Constitution. We are not
expressing any opinion on the question whether, in the present
case, the Election Commission failed to comply with the
provisions of the Constitution including Article 171. Our
observations are only in respect of grounds raised by the
petitioners for challenging the press note, whereby the EC
declared to hold biennial elections to the A.P. Legislative Council
from the Local Authorities Constituencies.
13.1) In N.P.Ponnuswami (supra) the Seven Judge
Bench of the Supreme Court dealt with the appeal from an order
of Madras High Court dismissing the petition of the appellant
praying for a Writ of Certiorari. The challenge in the writ was to
the rejection of nomination paper for the election to the Madras
Legislative Assembly. While dealing with the question, as
aforementioned, the observations made by the Supreme Court in
paragraph 9 of the report are relevant for our purpose, which
read thus:-
9. The question now arises whether the law of elections in this
country contemplates that there should be two attacks on matters
connected with election proceedings, one while they are going on
by invoking the extraordinary jurisdiction of the High Court under
Art.226 of the Constitution (the ordinary jurisdiction of the Courts
having been expressly excluded), and an other after they have
been completed by means of an election petition. In my opinion,
to affirm such a position would be contrary to the scheme of Part
XV of the Constitution and the Representation of the People Act,
which as I shall point out later, seems to be that any matter which
has the effect of vitiating an election should be brought up only at
the appropriate stage in an appropriate manner before a special
tribunal and should not be brought up at an intermediate stage
before any Court. It seems to me that under the election law, the
only significance which the rejection of a nomination paper has
consists in the fact that it can be used as a ground to call the
election in question Article 392 (b) was apparently enacted to
prescribe the manner in which and the stage at which this ground,
and other grounds which may be raised under the law to call the
election in question, could be urged. I think it follows by
necessary implication from the language of this provision that
those grounds cannot be urged in any other manner, at any other
stage and before any other Court. If the grounds on which an
election can be called in question could be raised at an
earlier stage and errors, if any, are rectified, there will be
no meaning in enacting a provision like Art.329 (b) and in
setting up a special tribunal. Any other meaning ascribed
to the words used in article would lead to anomalies, which
the Constitution could not have contemplated, one of them
being that conflicting views may be expressed by the High
Court at the pre-polling stage and by the election tribunal,
which is to be an independent body, at the stage when the
matter is brought up before it.
(emphasis supplied)
14) In Shivaji (supra) the Supreme Court while dealing
with the judgment of the Bombay High Court in appeal, wherein
the High Court had interfered with the process of election twice,
observed that even if there was any ground relating to the non-
compliance with the provisions of the Act and the Constitution on
which the validity of any election process could be questioned,
the person interested in questioning the election has to wait till
the election is over and institute a petition in accordance with
Section 81 of the Act calling in question the election of the
successful candidate within 45 days from the date of election of
the returned candidate but not earlier than the date of election.
[Also see Lakshmi Charan Sen v. A.K.M.Hassan Uzzaman
(1985) 4 SCC 689 and Inderjit Barua v. Election
Commission of India (1985) 4 SCC 722].
15) In Ashok Kumar (supra) an interim order passed by
the High Court in exercise of its writ jurisdiction under Article
226 of the Constitution of India, during the currency of the
process of election, whereby the High Court had stayed the
notification issued by the Election Commission of India, the
Constitution Bench of the Supreme Court, in appeal, summed up
its conclusions by partly restating what the Two Constitution
Benches had already said, and then added, by clarifying what
follows therefrom, in view of the analysis made by them,
observed as follows:-
32. .
(1) If an election, (the term 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 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)
(4)
(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 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.
15.1) We have reproduced only relevant
conclusions/observations made by the Supreme Court.
16) In the backdrop of the law laid down by the Supreme
Court, we have no hesitation in holding that the challenge raised
in these writ petitions must fail mainly on three grounds viz.,
first, the notification has already been issued and the election
process is set in motion; second, Article 329 bars every
challenge to any election including the election process which
commences from the date of notification in the official gazette,
except by way of election petition under the Act; and third, the
grounds of challenge in the instant petitions, as raised by
learned counsel for the parties, are available to call in question
the election of the returned candidate, by way of election
petition under Section 100 of the Act, once the election process
is complete. The extraordinary jurisdiction of the High Court
under Article 226 of the Constitution, insofar as the grounds of
challenge raised in these petitions are concerned, in view of the
provisions of Article 329 of the Constitution, cannot be invoked
and on this ground alone the instant writ petitions must fail. The
grounds, as observed earlier, on which an election can be called
in question cannot be raised at an early stage and the errors, if
any, are rectified, there will be no meaning in enacting a
provision like Article 329(b) and in setting up a special tribunal.
On this ground alone, the first two writ petitions deserve to be
dismissed. Order accordingly. In view thereof, we refrain from
entering into merits of the case and leave it open to the
petitioners, if they so desire, to challenge the election after the
results are declared. We are keeping all the contentions of the
petitioners on merits open to be raised and considered in the
Election Petition, if instituted, as contemplated by Section 100 of
the Act.
17) Insofar as the third writ petition is concerned, at the
outset, we would like to refer the judgment of the Supreme
Court in Telangana Rastra Samithi (supra). In this judgment,
the Supreme Court was dealing with an appeal arising from the
order passed by the High Court in a writ petition involving the
holding of bye-elections to casual vacancies in the State
Legislative Assembly. The writ petition was allowed by the High
Court by applying the literal rule of interpretation. The Supreme
Court in this appeal in paragraph 46 observed thus:
46. We are, therefore, of the firm view that the introduction of
Section 151-A in the Constitution did not alter the position as far
as the provisions of Section 84 and consequently Sections 98 (c)
and 101 (b) of the 1951 Act are concerned, since although a
casual vacancy may have occurred within the meaning of
Section 150 of the 1951 Act, those vacancies in which
election petitions had been filed and were pending cannot
be held to have become available for the purposes of being
filled up within the time prescribed under Section 151-A of
the 1951 Act. Article 190 (3) (b) of the Constitution merely
indicates that if a Member of a House of a Legislature of a
State resigns his seat by writing to the Speaker and such
resignation is accepted, his seat shall become vacant. It
does not introduce any element of compulsion on the
Election Commission to hold a bye-election ignoring the
provisions of Section 84 of the Act. In such cases, we have
little hesitation in holding that such casual vacancies are not
available for being filled up and the Commission will have to wait
for holding elections in such constituencies until a decision is
rendered in regard to the latter part of Section 84 of the 1951 Act
during the life of the House. The view expressed by the High
Court that a case has to be decided in accordance with the laws as
existing on the date of adjudication, while salutary in principle, are
not attracted to the facts of this case in view of the provisions of
Section 84 of the 1951 Act.
(emphasis supplied)
18) From the above judgment, it is clear that although a
casual vacancy may have occurred within the meaning of
Section 150 of the Act, such vacancies in which election petitions
had been filed and were pending cannot be held to have become
available for the purposes of being filled up within the time
prescribed under Section 151-A of the Act.
19) In the instant case, it is not in dispute that though sitting
member of the Legislative Council resigned in the year 2014,
before the resignation, his election was challenged by the
defeated candidate in Election Petition No.1 of 2011 in this High
Court with a prayer to declare him as elected by setting aside
the election of 1st respondent therein. In view of such prayer,
the election petition cannot be stated to have rendered
infructuous in view of the resignation of the 1st respondent in the
said petition. Thus, we do not find any reason to interfere with
the election process in respect of the territorial Constituency in
Chittoor District, viz., Local Authorities Constituency, whereby
election for only one vacancy is declared. Thus, the third
petition fails and dismissed as such also on this ground.
20) Accordingly, all the writ petitions are dismissed. No
order as to costs.
21) Miscellaneous petitions pending in the writ petitions,
if any, also stand disposed of.
_________________
Dilip B.Bhosale, ACJ
__________
S.V.Bhatt, J
10th June, 2015.
W.P.Nos.15921 OF 2015 and batch
10-06-2015
The Yuvajana Sramika Rythu Congress Party & others Petitioners
The Election Commission of India & others Respondents
Counsel for Petitioners:Sri S.Srinivas Reddy
Sri Ch.Siva Reddy
Sri P.Sudhakar Reddy
Counsel for Respondents:Sri Avinash Desai
Sri V.V.Prabhakar Rao
Learned G.P. for Law &
Legislative Affairs (AP)
Sri G.Subba Rao
<GIST:
>HEAD NOTE:
?Cases referred :1) [ (2000) 8 SCC 216 ]
2) [ AIR 2002 A.P. 307 ]
3) [ AIR 1952 SC 64 ]
4) [ AIR 1978 SC 851 ]
5) [ (1988) 1 SCC 277 ]
6) [ (2011) 1 SCC 370 ]
THE HON'BLE THE ACTING CHIEF JUUSTICE SRI DILIP B.BHOSALE
AND
THE HONBLE SRI JUSTICE S.V.BHATT
W.P.Nos.15921,16147 and 15928 of 2015
ORAL JUDGMENT: (per Hon'ble The Acting Chief Justice Dilip B.Bhosale)
The petitioners, in these writ petitions under Article 226 of
the Constitution of India, seek similar reliefs, based on the press
note dated 02-06-2015 issued by the Election Commission of
India (for short the EC) proposing to hold biennial elections to
the Andhra Pradesh Legislative Council from Local Authorities
Constituencies (for short the Election).
2) In the first petition (W.P.No.15921 of 2015),
petitioner No.1 is a political party registered under Section 29-A
of the Representation of The People Act, 1951 (for short the
Act), and the second petitioner is its Secretary. They are
challenging the action of the EC in issuing the press note
dated 02-06-2015, declaring to conduct separate elections to the
posts of members of the A.P. Legislative Council (for short the
Council), to fill up two vacancies each from Krishna and
Visakhapatnam Local Authorities Constituencies as arbitrary,
illegal, unjust, discriminatory and violative of fundamental rights
guaranteed under the Constitution of India. According to the
petitioners, holding of an election, in the manner in which it is
proposed, is contrary to Article 171 of the Constitution, Section
27 of the Act and the provisions of Delimitation of Council
Constituencies (Andhra Pradesh) Order, 2006, (for short the
delimitation order). They are also seeking a direction to the EC
to conduct single election to fill up two vacancies each from
Krishna and Visakhapatnam Local Authorities Constituencies.
3) In the second petition (W.P.No.16147 of 2015) the
petitioner, who desires to contest the said elections, is an
individual and former member of the Legislative Assembly. He
also seeks the similar relief as prayed for in the first petition.
4) In the third petition (W.P.No.15928 of 2015) also,
the petitioner is an individual who seeks to challenge the very
same press note stating that the decision of the EC to hold
elections for only one vacancy though there exists two vacancies
in one territorial constituency of Chittoor District i.e. Local
Authorities Constituency as illegal, arbitrary, discriminatory and
contrary to Article 171 (4) of The Constitution.
5) The impugned press note was issued by the EC on
02-06-2015. The writ petitions, though, it appears, were filed
on 05.06.2015, were mentioned before the Court for urgent
hearing on 08-06-2015. On this date the Court directed learned
counsel for the petitioners to give notice to the EC and other
respondents and kept the petitions for admission on 09-06-2015.
In the meanwhile, a notification was published in the Andhra
Pradesh Gazette on 09-06-2015 declaring the biennial elections
to the Andhra Pradesh Legislative Council from the Local
Authorities Constituencies stating that the seats of 11 members
of the Legislative Council of the State of Andhra Pradesh elected
by the members of the Local Authorities have fallen vacant on
the retirement of sitting members on the expiration of their term
of the office. The details, as given in the notification, namely,
name of the retired members, name of the Local Authorities
Constituencies, number of members to be elected and date of
their retirement read thus:-
Name of the State Andhra Pradesh
Sl.
No.
Name of members
Name of LAC
Number of
Members
to be
elected
Date of
Retirement
(1)
(2)
(3)
(4)
(5)
1.
Yellareddigari Sivarami Reddy
Anantapur Local Authorities
1
29.03.2013
2.
Yallamanchili Venkata Babu
Rejendra Prasad
Krishna Local Authorities
1
29.03.2013
3.
China Rajappa Nimmakayala
East Godavari Local
Authorities
1
01.05.2013
4.
5.
Dr.Rayapati Srinivas
Thelukutla Gopala Venkata
Krishna Reddy
Guntur Local Authorities
2
01.05.2013
6.
Vasireddy Varada Rama Rao
Vizianagaram Local
Authorities
1
01.05.2013
7.
Dadi Veerabhadra Rao
Vishakhapatnam Local
Authorities
1
01.05.2013
8.
K.Jayachandra Naidu
Chittoor Local Authorities
1
01.05.2013
9.
Ilapuram Venkaiah
Krishna Local Authorities
1
29.03.2015
10.
D.V.Suryanarayana Raju
Visakhaparnam Local
Authorities
1
01.05.2015
11.
Pothula Rama Rao
Prakasam Local Authorities
1
01.05.2015
5.1) The following portion of the notification issued by the
Governor of Andhra Pradesh is also relevant:-
AND WHEREAS, Biennial election to fill up 8 seats in the year
2013 could not be then conducted as the Constituent Local
Bodies/Electors were not in existence at that time and while in
the year 2014, the Constituent Local Bodies/Electors with their
members came into existence but the State of Andhra Pradesh
was bifurcated into two States, namely, Andhra Pradesh and
Telangana by the Andhra Pradesh Reorganization Act, 2014 and there
was inconsistency in the Act, regarding the number of seats in respect
of Local Authorities Constituencies allocated to Andhra Pradesh, viz.,
as per Section 23 of the Andhra Pradesh Reorganization Act, 2014, 17
seats were allocated to the Andhra Pradesh Legislative Council in
respect of Local Authorities Constituencies but under the Third
Schedule to the said Act, 20 members were allocated to these
Constituencies;
AND WHEREAS, it was decided by the Commission that before
conducting the elections for filling the above mentioned vacancies
occurred in 2013 as well as in 2015, it was necessary to remove
the above said inconsistency;
AND WHEREAS, in terms of Section 108 of the said Act, this
inconsistency was referred to the Central Government (Ministry of
Home Affairs) for removing the said inconsistency;
AND WHEREAS, the said inconsistency has now been removed by
order of Ministry of Home Affairs, dated 29.04.2015, read with Andhra
Pradesh Reorganization (Amendment) Act, 2015, dated 30.03.2015,
whereby the total number of seats to the Andhra Pradesh Legislative
Council has been increased to 58 from 50 and the seats in respect of
Local Authorities Constituencies has been kept as 20;
AND WHEREAS, a biennial election has thus, to be held for the
purpose of filling all the above mentioned eleven vacancies so arisen;
AND WHEREAS, It is clarified that the election to fill the two
vacancies from Guntoor Local Authorities Constituency which
arose on 1.5.2013 will be held as single election, whereas
elections to fill the remaining 9 vacancies will be held as
separate elections to fill one vacancy each;
NOW, THEREFORE, as recommended by the Election Commission of
India in pursuance of section 16 read with Section 15A of the
Representation of the People Act, 1951 (43 of 1951), the Governor of
the State of Andhra Pradesh is hereby pleased to call upon each of the
Local Authorities Constituencies of the State mentioned in column (2)
of the table given in the Annexure to elect the number of Members as
indicated in column (4) of the table against each of the corresponding
Constituencies, for the purpose of filling the above vacancies, in
accordance with the provisions of the said Act and of the rules and
orders made thereunder.
E.S.L.NARASIMHAN,
Governor of Andhra Pradesh
(emphasis supplied)
5.2) The election programme was also declared along
with the notification dated 09-06-2015, which reads as follows:-
(A) appoints, with respect to the said election in each of the
constituencies,-
(a) the 16th June, 2015 (Tuesday), as the last date for
making nominations;
(b) the 17th June, 2015 (Wednesday), as the date for the
scrutiny of nominations;
(c) the 19th June, 2015 (Friday), as the last date for the
withdrawal of candidatures;
(c) the 3rd July, 2015 (Friday), as the date on which a
poll shall, if necessary, be taken; and
(e) the 10th July, 2015 (Friday), as the date before which
the election shall be completed; and
(B) fixes the hours from 8.00 A.M. to 4.00 P.M., as the hours
during which the poll shall, if necessary, be taken on the date specified
above for the election.
6) The election programme was declared by the EC vide
Notification dated 09.06.2015 under the orders of the Principal
Secretary to the Election Commission of India and by the Chief
Electoral Officer, Andhra Pradesh, in pursuance of Sections 30
and 56 of the Act. The notifications dated 09.06.2015, declaring
the election, could not have been challenged in these petitions,
which were filed before the date of notification, nor the learned
counsel for the parties subsequently sought leave of this Court to
challenge the said notification.
7) Mr.C.V.Mohan Reddy, the learned Senior Counsel
appearing for the petitioners in the first writ petition, at the
outset, submitted that the EC ought to have declared to conduct
single election to fill up two vacancies each from Krishna and
Visakhapatnam Local Authorities Constituencies as they
proposed to hold single election for two vacancies in Guntur
Local Authorities Constituency. In other words, he submitted
that it is not only improper and discriminatory but also illegal to
hold separate elections for filling up two vacancies from same
territorial Constituency contrary to the mandate contemplated by
Article 171 of the Constitution. This Article, he submitted,
contemplates single election in a single territorial constituency in
accordance with the system of proportional representation by
means of the single transferable vote. He further submitted that
in any case it was wrong on the part of the EC to discriminate
between the election to fill up two vacancies from one territorial
constituency i.e. Guntur Local Authorities Constituency and for
two vacancies each from two territorial constituencies, namely,
Krishna and Visakhapatnam Local Authorities Constituencies. He
submitted that merely because the term of the seats for which
the elections are being held expired in the year 2013 and 2015
in Krishna and Visakhapatnam Local Authorities Constituencies
that cannot be the ground for holding separate elections. He
submitted that there is absolutely no rational in holding separate
elections for two vacancies from one territorial constituency
when the relevant provisions of the Act and Article 171 clearly
mandates single election in accordance with the system of
proportional representation by means of the single transferable
vote. In support of his contention he placed reliance on the
judgment of the Supreme Court in Election Commission of
India v. Ashok Kumar and others( ).
8) Mr.Ch.Siva Reddy, the learned counsel appearing for
the petitioner in the second petition (W.P.No.16147 of 2015),
repeated the submissions advanced by Mr.C.V.Mohan Reddy,
learned Senior Counsel. We are, therefore, not making specific
reference to his submissions since the challenge in both the
petitions is identical. Mr.Ch.Siva Reddy, in support of his
submissions, placed reliance on the judgment of this Court in
Kayathi Jayapal Reddy v. State Election Commission and
another( ).
9) Mr.Ponnavolu Sudhakar Reddy, learned counsel
appearing for the petitioner in the third petition (W.P.No.15928
of 2015), submitted that it was wrong, illegal, discriminatory and
contrary to Article 171 of the Constitution, apart from it being
violative of Article 14 of the Constitution and the Election Rules
of 1961, to hold election for only one vacancy when admittedly
there exists two vacancies in the territorial constituency of
Chittoor District. In short, he submitted that the EC has
committed grave error of law in holding election from Local
Authorities Constituencies for only one vacancy out of two
vacancies in Chittoor District.
10) On the other hand, Mr.Avinash Desai, learned
counsel appearing for the EC, at the outset, invited our attention
to Article 329 of the Constitution of India and Section 100 of the
Act and submitted that these writ petitions cannot be
entertained since the notification declaring the election has
already been issued. He submitted that it is not open to the
petitioners to call in question the election except by an election
petition. He submitted that grounds, on which the petitioners
have challenged the press note declaring the instant election,
are available under Section 100 of the Act, to challenge the
election after the process is complete. On merits, he submitted
that in case of Krishna and Visakhapatnam Local Authorities
Constituencies, the EC has decided to hold separate elections
since the election is for two vacancies which occurred at two
different points of time, i.e. in 2013 and 2015, while in Guntur
Local Authorities Constituency both the vacancies arose in 2013
i.e., on 01-05-2013. He submitted that the notification is issued
to fill up eight(8) seats since in the year 2013 biennial election
could not be then conducted as the Constituent Local
Bodies/Electors were not in existence at that time and while in
the year 2014, the Constituent Local Bodies/Electors with their
members came into existence but the State of Andhra Pradesh
was bifurcated into two States and since there was inconsistency
in the A.P. Reorganization Act, 2014, regarding the number of
seats in respect of Local Authorities Constituencies. He
submitted that the vacancies occurred in 2013 as well as in
2015, are though proposed to be filled by holding election on the
same day, those vacancies cannot be conducted by single
election. In the case of Guntur Local Authorities Constituency,
he submitted, the EC is holding single election since both the
vacancies occurred on the same day in 2013. He submitted that
in A.K.Walia v. Union of India and others [C.W.132/94
decided by a Division Bench presided over by Justice P.K.Bahri
and Justice Vijender Jain on 14.01.1994] identical challenge was
raised before the Delhi High Court. It was in respect of three (3)
seats of Rajya Sabha from the Electoral College comprising of
members of the Legislative Assembly of Delhi wherein the Delhi
High Court dismissed the petition. He also placed notification,
published in The Andhra Pradesh Gazette, Part-V, on record for
our perusal. Iin support of his submissions, he placed reliance
upon the following Judgments: N.P.Ponnuswami V. The
Returning Officer, Namakhal Constituency and others( );
Mohinder Singh Gill and another V.The Chief Election
Commissioner, New Delhi and others( ); Election
Commission of India V. Shivaji and others( ) and Election
Commission of India V. Telangana Rastra Samithi and
Another( )
11) In this back drop, it would be advantageous to
reproduce the relevant portion of Article 171 of the Constitution
for better appreciation of the averments advanced by the
learned counsel for the parties, which reads thus:-
171. Composition of the Legislative Councils.- (1)
The total number of members in the Legislative Council of a State
having such a Council shall not exceed [one-third] of the total
number of members in the Legislative Assembly of that State:
Provided that the total number of members in the
Legislative Council of a State shall in no case be less than forty.
(2) .
(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;
(b) as nearly as may be, one-twelfth shall be elected by
electorates consisting of persons residing in the State who have
been for at least three years graduates of any university in the
territory of India or have been for at least three years in
possession of qualifications prescribed by or under any law made
by Parliament as equivalent to that of a graduate of any such
university;
(c) as nearly as may be, one-twelfth shall be elected by
electorates consisting of persons who have been for at least three
years engaged in teaching in such educational institutions within
the State, not lower in standard than that of a secondary school,
as may be prescribed by or under any law made by Parliament;
(d) as nearly as may be, one-third shall be elected by the
members of the Legislative Assembly of the State from amongst
persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor in
accordance with the provisions of clause (5).
(4) The members to be elected under sub-clauses (a), (b) and
(c) of clause (3) shall be chosen in such territorial constituencies
as may be prescribed by or under any law made by Parliament,
and the elections under the said sub-clauses and under sub-clause
(d) of the said clause shall be held in accordance with the system
of proportional representation by means of the single transferable
vote.
11.1) Similarly, Article 329 of the Constitution of India and
Section 100 of the Act are also relevant. Article 329 of the
Constitution reads thus:
329. Bar to interference by courts in electoral matters.-
[Notwithstanding anything in this Constitution]
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under
article 327 or 328, shall not be called in question in any
court;
(b) no election to either House of Parliament or to the House
or either House of the Legislature of a State shall be
called in question except by an elected petition
presented to such authority and in such manner as may
be provided for by or under any law made by the
appropriate Legislature.
11.2) Section 100 of the Act reads thus:
100. Grounds for declaring election to be void:- (1)
Subject to the provisions of sub-section (2), if [the High Court] is of opinion-
-
(a)
(b)
(c)
(d) That the result of the election, in so far as it concerns a returned
candidate, has been materially affected--
(i) ..
(ii) ..
(iii) ..
(iv) By any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made
under this Act,
[the High Court] shall declare the election of the returned
candidate to be void.
12) A glance at Article 329 of the Constitution, for our
purpose, would show that no election to either House of the
Legislature of a State shall be called in question except by an
Election Petition. Whether a ban under this Article is a blanket
ban and whether Article 226 is also covered by this embargo,
and if so, Section 100 is enough to accommodate every kind of
objection, constitutional, legal or factual which may have the
result of invalidation of election, were the questions considered
by the Supreme Court, among many other issues/questions in
Mohinder Singh Gill (supra). After having considered several
judgments of the Supreme Court and some English Judgments it
was held that Article 329(b) is a blanket ban on litigative
challenges to electoral steps taken by the Election Commission
and its Officers for carrying forward the process of election to its
culmination in the formal declaration of the result.
13) Section 100 of the Act provides grounds for declaring
election to be void. It states that subject to the provisions of
sub-section (2), if the High Court is of opinion that the result of
election, insofar as it concerns a returned candidate, has been
materially affected by any non-compliance with the provisions of
the Constitution or of this Act or of any Rules or Orders made
under this Act, the High Court shall declare the election of the
returned candidate to be void. Thus, from a bare reading of this
Section, it is clear that Section 100(1)(d)(iv) of the Act takes
care of the situation present in the instant writ petition. Having
regard to the ground of challenge, based on Article 171, as
contended by the learned counsel for the parties, in our opinion,
is undoubtedly available to the petitioners after the election to
call in question the election of the returned candidate on the
ground of non-compliance with the said provisions of the
Constitution. In other words, the sole remedy for an aggrieved
party, if he wants to challenge any election, is an Election
Petition, in particular when the ground of challenge can be raised
in election petition under section 100 of the Act. The exclusion
of all other remedies, including the constitutional remedy like a
writ petition under Article 226 of the Constitution, is because of
non abstante clause in Article 329 of the Constitution. Section
100, as we have already seen, provides for the ground on which
an election may be called in question, one of which is non-
compliance of the provisions of the Constitution. We are not
expressing any opinion on the question whether, in the present
case, the Election Commission failed to comply with the
provisions of the Constitution including Article 171. Our
observations are only in respect of grounds raised by the
petitioners for challenging the press note, whereby the EC
declared to hold biennial elections to the A.P. Legislative Council
from the Local Authorities Constituencies.
13.1) In N.P.Ponnuswami (supra) the Seven Judge
Bench of the Supreme Court dealt with the appeal from an order
of Madras High Court dismissing the petition of the appellant
praying for a Writ of Certiorari. The challenge in the writ was to
the rejection of nomination paper for the election to the Madras
Legislative Assembly. While dealing with the question, as
aforementioned, the observations made by the Supreme Court in
paragraph 9 of the report are relevant for our purpose, which
read thus:-
9. The question now arises whether the law of elections in this
country contemplates that there should be two attacks on matters
connected with election proceedings, one while they are going on
by invoking the extraordinary jurisdiction of the High Court under
Art.226 of the Constitution (the ordinary jurisdiction of the Courts
having been expressly excluded), and an other after they have
been completed by means of an election petition. In my opinion,
to affirm such a position would be contrary to the scheme of Part
XV of the Constitution and the Representation of the People Act,
which as I shall point out later, seems to be that any matter which
has the effect of vitiating an election should be brought up only at
the appropriate stage in an appropriate manner before a special
tribunal and should not be brought up at an intermediate stage
before any Court. It seems to me that under the election law, the
only significance which the rejection of a nomination paper has
consists in the fact that it can be used as a ground to call the
election in question Article 392 (b) was apparently enacted to
prescribe the manner in which and the stage at which this ground,
and other grounds which may be raised under the law to call the
election in question, could be urged. I think it follows by
necessary implication from the language of this provision that
those grounds cannot be urged in any other manner, at any other
stage and before any other Court. If the grounds on which an
election can be called in question could be raised at an
earlier stage and errors, if any, are rectified, there will be
no meaning in enacting a provision like Art.329 (b) and in
setting up a special tribunal. Any other meaning ascribed
to the words used in article would lead to anomalies, which
the Constitution could not have contemplated, one of them
being that conflicting views may be expressed by the High
Court at the pre-polling stage and by the election tribunal,
which is to be an independent body, at the stage when the
matter is brought up before it.
(emphasis supplied)
14) In Shivaji (supra) the Supreme Court while dealing
with the judgment of the Bombay High Court in appeal, wherein
the High Court had interfered with the process of election twice,
observed that even if there was any ground relating to the non-
compliance with the provisions of the Act and the Constitution on
which the validity of any election process could be questioned,
the person interested in questioning the election has to wait till
the election is over and institute a petition in accordance with
Section 81 of the Act calling in question the election of the
successful candidate within 45 days from the date of election of
the returned candidate but not earlier than the date of election.
[Also see Lakshmi Charan Sen v. A.K.M.Hassan Uzzaman
(1985) 4 SCC 689 and Inderjit Barua v. Election
Commission of India (1985) 4 SCC 722].
15) In Ashok Kumar (supra) an interim order passed by
the High Court in exercise of its writ jurisdiction under Article
226 of the Constitution of India, during the currency of the
process of election, whereby the High Court had stayed the
notification issued by the Election Commission of India, the
Constitution Bench of the Supreme Court, in appeal, summed up
its conclusions by partly restating what the Two Constitution
Benches had already said, and then added, by clarifying what
follows therefrom, in view of the analysis made by them,
observed as follows:-
32. .
(1) If an election, (the term 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 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)
(4)
(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 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.
15.1) We have reproduced only relevant
conclusions/observations made by the Supreme Court.
16) In the backdrop of the law laid down by the Supreme
Court, we have no hesitation in holding that the challenge raised
in these writ petitions must fail mainly on three grounds viz.,
first, the notification has already been issued and the election
process is set in motion; second, Article 329 bars every
challenge to any election including the election process which
commences from the date of notification in the official gazette,
except by way of election petition under the Act; and third, the
grounds of challenge in the instant petitions, as raised by
learned counsel for the parties, are available to call in question
the election of the returned candidate, by way of election
petition under Section 100 of the Act, once the election process
is complete. The extraordinary jurisdiction of the High Court
under Article 226 of the Constitution, insofar as the grounds of
challenge raised in these petitions are concerned, in view of the
provisions of Article 329 of the Constitution, cannot be invoked
and on this ground alone the instant writ petitions must fail. The
grounds, as observed earlier, on which an election can be called
in question cannot be raised at an early stage and the errors, if
any, are rectified, there will be no meaning in enacting a
provision like Article 329(b) and in setting up a special tribunal.
On this ground alone, the first two writ petitions deserve to be
dismissed. Order accordingly. In view thereof, we refrain from
entering into merits of the case and leave it open to the
petitioners, if they so desire, to challenge the election after the
results are declared. We are keeping all the contentions of the
petitioners on merits open to be raised and considered in the
Election Petition, if instituted, as contemplated by Section 100 of
the Act.
17) Insofar as the third writ petition is concerned, at the
outset, we would like to refer the judgment of the Supreme
Court in Telangana Rastra Samithi (supra). In this judgment,
the Supreme Court was dealing with an appeal arising from the
order passed by the High Court in a writ petition involving the
holding of bye-elections to casual vacancies in the State
Legislative Assembly. The writ petition was allowed by the High
Court by applying the literal rule of interpretation. The Supreme
Court in this appeal in paragraph 46 observed thus:
46. We are, therefore, of the firm view that the introduction of
Section 151-A in the Constitution did not alter the position as far
as the provisions of Section 84 and consequently Sections 98 (c)
and 101 (b) of the 1951 Act are concerned, since although a
casual vacancy may have occurred within the meaning of
Section 150 of the 1951 Act, those vacancies in which
election petitions had been filed and were pending cannot
be held to have become available for the purposes of being
filled up within the time prescribed under Section 151-A of
the 1951 Act. Article 190 (3) (b) of the Constitution merely
indicates that if a Member of a House of a Legislature of a
State resigns his seat by writing to the Speaker and such
resignation is accepted, his seat shall become vacant. It
does not introduce any element of compulsion on the
Election Commission to hold a bye-election ignoring the
provisions of Section 84 of the Act. In such cases, we have
little hesitation in holding that such casual vacancies are not
available for being filled up and the Commission will have to wait
for holding elections in such constituencies until a decision is
rendered in regard to the latter part of Section 84 of the 1951 Act
during the life of the House. The view expressed by the High
Court that a case has to be decided in accordance with the laws as
existing on the date of adjudication, while salutary in principle, are
not attracted to the facts of this case in view of the provisions of
Section 84 of the 1951 Act.
(emphasis supplied)
18) From the above judgment, it is clear that although a
casual vacancy may have occurred within the meaning of
Section 150 of the Act, such vacancies in which election petitions
had been filed and were pending cannot be held to have become
available for the purposes of being filled up within the time
prescribed under Section 151-A of the Act.
19) In the instant case, it is not in dispute that though sitting
member of the Legislative Council resigned in the year 2014,
before the resignation, his election was challenged by the
defeated candidate in Election Petition No.1 of 2011 in this High
Court with a prayer to declare him as elected by setting aside
the election of 1st respondent therein. In view of such prayer,
the election petition cannot be stated to have rendered
infructuous in view of the resignation of the 1st respondent in the
said petition. Thus, we do not find any reason to interfere with
the election process in respect of the territorial Constituency in
Chittoor District, viz., Local Authorities Constituency, whereby
election for only one vacancy is declared. Thus, the third
petition fails and dismissed as such also on this ground.
20) Accordingly, all the writ petitions are dismissed. No
order as to costs.
21) Miscellaneous petitions pending in the writ petitions,
if any, also stand disposed of.
_________________
Dilip B.Bhosale, ACJ
__________
S.V.Bhatt, J
10th June, 2015.
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