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Bholanath Srivastava Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectElection;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 597 of 1962
Judge
Reported inAIR1963All363
ActsConstitution of India - Articles 73, 83, 226 and 329
AppellantBholanath Srivastava
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateS.N. Misra, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
.....of india - whether high court's jurisdiction can be invoked for acceptance or rejection of an election nomination paper - held, cannot be invoked. (ii) functioning of house of people - articles 73 and 83 of constitution of india - notification issued under article 73 - new house do not get dissolved - effect of proviso to article 73 - existing house continue to function even after notification - new house will start functioning after dissolution of existing house. - - he, therefore, prays for a writ of certiorari quashing the notifications issued by the president of india and the election commission as well as the order of the returning officer rejecting his nomination paper. venkata rao, air 1953 sc 210 the supreme court clearly laid down that the high court of madras could not..........the same time. the constitution contemplates of only one such house. there is a duly constituted house existing at present. till that house is dissolved no proceedings can be started for the election of another house. it is true that the constitution contemplates of only one house of the people at one time. but there is nothing in the constitution which required continuity of the house. nor has anything been pointed out to me under which steps can be taken for the election of a new house only after the existing house has been dissolved. a time lag between the dissolution of the existing house and the due constitution of a new house is possible but is not necessary. i, therefore, find nothing in the constitution which can debar the government from taking steps for getting a new house.....
Judgment:
ORDER

A.P. Srivastava, J.

1. This petition was heard on 12-2-62 and was dismissed. Detailed reasons for the decision were to be given later. I now proceed to give the reasons.

2. The petition has been filed under Article 226 of the Constitution. The petitioner was a candidate for election to the Parliament from the constituency known as No. 57 Allahabad Parliamentary Constituency. He filed his nomination paper for the constituency before the Returning Officer but on an objection being raised the Returning Officer by an order dated 22-1-62 rejected the petitioner's nomination as invalid on the ground that the petitioner had not made the necessary deposit as required by Section 34(1)(a) of the Representation of the People Act 1951. The notification calling upon all Parliamentary constituencies, including the constituency in question, to elect members was issued under Section 14(2) of Representation of the People Act 1951 and was published; in the Government Gazette dated 13-1-62. The consequential notification appointing the various dates in connection with the election was issued by the Election Commission and published in the Gazette of India dated 13-1-62.

3. By the present petition the petitioner seeks to raise two points. He urges in the first place that as there is already a duly constituted Parliament in existence which has not yet been dissolved it is not permissible under the provisions of the constitution to direct the election of a new Parliament and on that account the notifications issued by the President of India and the Election Commission are invalid. His second point is that the provision of Section 34 of the Representation of the People Act 1951 which required each candidate who wants to be nominated for a parliamentary constituency to make a deposit of Rs. 500/- by way of security is invalid and ultra vires. The ground that is urged in support of this contention is that the Constitution sets out the qualifications which each candidate for a seat in the Parliament must possess and also prescribes the disqualifications on account of which a member cannot be chosen or remain as a member of the Parliament. He urges that by providing for an additional qualification of making a deposit of Rs. 500/- by way of security Section 34 of the Representation of the People Act really adds a qualification to the various qualifications mentioned in the Constitution and that is not permissible. His case is that as Section 34 was invalid non-compliance with it could not be made a ground for rejecting his nomination paper and that rejection is, therefore, liable to be quashed. He, therefore, prays for a writ of certiorari quashing the notifications issued by the President of India and the Election Commission as well as the order of the Returning Officer rejecting his nomination paper. He also prays for a writ of prohibition directing the Union of India and the Election Commission not to hold the general elections in pursuance of the notifications abovementioned and also wants a mandamus to be issued to the Returning Officer to declare his nomination to the 57 Allahabad Parliamentary Constituency as valid.

4. The respondents impleaded in the petition are the Union of India, the Election Commission of India, the Returning Officer, the Chief Election Officer and the remaining three candidates whose nominations for the constituency have been found to be valid.

5. So far as the first two respondents are concerned, no writ can be issued to them by this Court as they are not amenable to the jurisdiction of this Court, their principal seat of business, according to the petition itself, being New Delhi.

6. In Election Commission, India v. S. Venkata Rao, AIR 1953 SC 210 the Supreme Court clearly laid down that the High Court of Madras could not issue a writ under Article 226 of the Constitution to the Election Commission whichhad its office permanently located at New Delhi.The view was reiterated subsequently in K. S. Rashid and Son v. Inome-tax Investigation Commission, AIR 1954 SC 207 where one of the two limitations placed upon the exercise of the writ-jurisdiction on a High Court was laid down as 'The other limitation is that the person or authority to whom the High Court is empowered to issue writs 'must be within those territories' and this implies that they must be amenable to its jurisdiction either by residence or location within those territories. (The territories in relation to which the High Court exercises its jurisdiction.') Out of the two points raised in connection with the merits of the petition the second point may be taken up first. The grievance of the petitioner is that his nomination paper has been wrongly rejected by the Returning Officer and he, therefore, Wants that order to be quashed. The nomination paper has been rejected on the ground that the petitioner had not complied with Section 34 of the Representation of the People Act, 1951. The contention is that the provisions of that section were not valid and compliance with them ought not, therefore, to have been insisted upon.

7. The Supreme Court has laid down more, than once that in view of Article 329 of the Constitution the High Courts in India should not in exercise of their powers under Article 226 of the Constitution interfere with elections which term includes the rejection or acceptance of a nomination paper. The question arose first in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64. In that case also the nomination paper of the petitioner to an Assembly Constituency had been rejected. The Supreme Court laid down that:

'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 Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. 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 329(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 couldbe raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.'

The view was reiterated in Durga Shanker Mehta v. Raghuraj Singh, AIR 1954 SC 520 at p. 523 and again in Hari Vishnu Kamath v. Ahmad Ishaque, (S) AIR 1955 SC 233. If, therefore, the petitioner wants to question the correctness of the decision of the Returning Officer his only remedy lies in an election petition. He cannot invoke the jurisdiction of this Court under Article 226 of the Constitution.

8. Learned counsel urged that because in the present case the petitioner was questioning the Vires of Section 34 of the Representation of the People Act, 1951 the question could be raised in these proceedings; but in my opinion the ground on which the order rejecting the nomination paper is being challenged is not material. Whatever may be the ground of challenge the challenge must be made in the way provided by the statute, i.e. in an election petition. The second point urged on behalf of the petition cannot, therefore, be accepted. In this view of the case it is not necessary to go into the question whether Section 34 of the Representation of the People Act, is, in fact, valid or not.

9. The first point urged also appears to be unacceptable. The contention is that there can be no two Houses of People at the same time. The Constitution contemplates of only one such House. There is a duly constituted House existing at present. Till that House is dissolved no proceedings can be started for the election of another House. It is true that the Constitution contemplates of only one House of the People at one time. But there is nothing in the Constitution which required continuity of the House. Nor has anything been pointed out to me under which steps can be taken for the election of a new House only after the existing House has been dissolved. A time lag between the dissolution of the existing House and the due constitution of a new House is possible but is not necessary. I, therefore, find nothing in the Constitution which can debar the Government from taking steps for getting a new House elected even before the existing House is dissolved. Article 83 of the Constitution provides for the duration of the Houses of Parliament. Under Article 83(2),

'The House of the People, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House:

Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.'

The period during which the House of the People is to function is, therefore, fixed by the Constitution itself. The only thing necessary is that before one House is dissolved another should not start functioning. It thus appears to be permissible while the present House is functioning to do everything in connection with the constitution of the new House so that it may start functioning as soon as the existing House is dissolved. The contention that till the existing House is dissolved no notification requiring the election of a new House can be issued and the Election Commission cannot fix dates in connection with the election does not, therefore, appear to be correct.

10. The existing House of the People has not yet been dissolved and is still to function for some time. After the new House is elected a notification will have to be issued under. Section 73 of the Representation ,of the People Act, 1951. which provides:

'Where a general election is held for the purpose of constituting a new House of the People or a new State Legislative Assembly, there shall be notified by the appropriate authority in the Official Gazette, as soon as may be after the date originally fixed for the completion of the election under Section 30(e), the names of the members elected for the various constituencies by that date together with the names of persons, if any, nominated by the President, Governor or Rajpramukh to that House or Assembly, as the case may be; and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted:

Provided that the issues of such notification shall not be deemed:

(a) X X X X

(b) to effect the duration of the House of the People or the State Legislative Assembly, if any, functioning immediately before the issue of the said notification.'

In view of this provision after the elections are held and the names of the people elected are notified the House of the People shall be deemed to be duly constituted. But on that account it shall not necessarily start functioning. The statutory period of its duration will start under Article 83 of the Constitution from the date appointed for its Erst meeting. The proviso makes it clear that the notificafion shall not affect the duration of the existing House of the People, which is functioning at present. The effect of this provision is that the newly elected House of the People does not automatically start functioning only by virtue of the notification under Section 73. The existing House can Continue to function even after the notification. The newly elected House will start functioning from the date appointed for its first meeting and that date will naturally be fixed after the duration of the existing House comes to an end by its dissolution or by the expiry of the period provided for in Article 83 of the Constitution. Everything in connection with the Constitution of a new House, can, therefore, be done while the present House is functioning so that the new House may start functioning soon after the dissolution of the existing House is ordered.

11. Learned counsel urged that it is possible that the elections may be held and the new Houseduly constituted by a notification but the President may extend the time of the existing House under the Proviso to Article 83 and that may postpone the functioning of the newly elected House for some time. Even if that be so, on that basis it cannot be said that the election of the new House will become invalid or that steps cannot be taken to arrange for that election,

12. I have, therefore, not been able to appreciate the argument that the notifications issued by the Government or by the Election Commission for having a new House of the People elected are vitiated because of contravention of any provision of the Constitution or the Representation of the People Act, 1951.

13. Both the points urged in the petition were, therefore, untenable. It was for these reasons that the petition was dismissed.


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