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Dhabai Sua Lal Yadav Vs. Smt. Indira Nehru Gandhi and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil (Special) Appeal No. 50 of 1978
Judge
Reported inAIR1979Raj130
ActsConstitution of India - Articles 226 and 329
AppellantDhabai Sua Lal Yadav
RespondentSmt. Indira Nehru Gandhi and ors.
Advocates: S.D. Sharma, Adv.
DispositionAppeal dismissed
Excerpt:
- - (j) pass any further or other order, make any further or other direction, or issue any order or further suitable writ order or direction as this hon'ble court may deem fit in this exceptional and extraordinary matter of national and international importance as also a matter of every individual concerned......act, 1961 to the extent they are contrary and inconsistent with article 19(g), sub-clause (6) of article 19, article 29, article 31c article 39 read with article 37 of the constitution and sections 7 and 29 of the police act, 1861 as also against the proviso of article 309 and the rules framed thereunder;(iii) provisions of rules 14, 16, 19 of the rajasthan civil services (classification, control and appeal) rules 1958, framed under the proviso of article 309 of constitution to the extent they are contrary and inconsistent with the provisions of articles 13, 14, 16, 19(a), 19(g), 31c, 39 read with section 37, police act, 1861. (b) declaring the provisions of section 5(i)(d) of the p. c. act, 1947 and sections 7 and 29 of the police act 1861, to be valid every way in comparison to that.....
Judgment:

G.M. Lodha, J.

1. This special appeal arises from the judgment of the single bench in S. B. Civil Writ Petition No. 726 of 1978, dated 24-10-1978 by which the writ petition has been dismissed. Mr. Sharma has prayed that in this special appeal the petitioner-appellant may be allowed the following reliefs:--

'(a) declaring the following provisions of laws to be void ab initio, or ultra vires.

(i) Sections 4, 8, 8A, 9, 11, 33(3) and 146 of the Representation of the People Act, 1951 to the extent they are contrary and inconsistent with the provisions of Articles 13, 14, 16, 19(a), 19(g), Sub-clause (6) of Article 19, 31C Article 39 read 'with Article 39 (sic) Articles 102, 103, 105, 122 and the preamble of the Constitution as argued above;

(ii) Sections 24 and 25 of the Advocates Act, 1961 to the extent they are contrary and inconsistent with Article 19(g), Sub-clause (6) of Article 19, Article 29, Article 31C Article 39 read with Article 37 of the Constitution and Sections 7 and 29 of the Police Act, 1861 as also against the proviso of Article 309 and the Rules framed thereunder;

(iii) Provisions of Rules 14, 16, 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules 1958, framed under the proviso of Article 309 of Constitution to the extent they are contrary and inconsistent with the provisions of Articles 13, 14, 16, 19(a), 19(g), 31C, 39 read with Section 37, Police Act, 1861.

(b) declaring the provisions of Section 5(i)(d) of the P. C. Act, 1947 and Sections 7 and 29 of the Police Act 1861, to be valid every way in comparison to that of the laws enacted after appellant's appointment that is 10-2-1948, contrary to his service conditions originally entered into, parallel to the provisions of Articles 221 and 218 of the Constitution, in the light of Article 14 and preamble of the Constitution,

(c) declaring politics a profession within the meaning of Article 19(g) read with Sub-clause (6) (a) of Article 19 of the Constitution so far as respondent No. 1 and other persons of her category are concerned,

(d) declaring Respondent No. 1 to be public servant within the meaning of Section 21 I. P. C. read with Section 2 of the P. C. Act, 1947 for the purposes of treating her at par within the framework of Constitution with all other public servants either employed in the affairs of the Union or in the affairs of the State,

(e) declaring the pre-determinations of the Rajasthan University Authority (Res. No. 9) under annexure 1 of the writ petition, and Bar Council of Rajasthan and Bar Council of India (Res. Nos. 8 and 8 (sic)) under annexure 'G' and 'H' of the said petition to be void to the extent they go against the principles of imposition of reasonable restrictions under the Constitution of India,

(f) restraining non-petitioner No. 1 Shrimati Indira Nehru Gandhi Ex-Prime Minister of India, not to contest By-election of Chikmagalur M. P. Constituency, Karnataka for which she has filed nomination form on 6th October, 1978 till she stands duly tried by a competent Criminal Court of law for her prima facie proved Criminal Charges and till Chief Election Officer conferred on him under Section 146 of the Representation of the People Act, 1951, read with Articles 102, 103, 192 of the Constitution of India;

(9) Restraining Non-petitioner No. 2 not to declare non-petitioner No. 1 as a competent said election candidate with references to Sections 4, 8, 8A, 9, 11, 13 and 146 of the Representation of the People Act, 1951 read with Articles 102(e) and 103 of the Constitution of India;--

(h) Require non-petitioners Nos. 3, 4, 5 and 6 of this writ petition by an order or direction to deal with non-petitioner No. 1 in accordance with the common and ordinary law of the land without discriminating her from the petitioner or any other citizen of India.

(i) Require non-petitioner Nos. 7, 8, 9 and 10 of this petition to deal with the petitioner in accordance with the common and ordinary law of the land without discriminating him from any of the non-petitioners in matters of professing a profession specified by Article 19(g) of the Constitution.

(j) Pass any further or other order, make any further or other direction, or issue any order or further suitable writ order or direction as this Hon'ble Court may deem fit in this exceptional and extraordinary matter of national and international importance as also a matter of every individual concerned.'

2. The appellant prays that the non-petitioner No. 1 Smt. Indira Gandhi, Ex Prime Minister of India be restrained by this Court from contesting by-election of Chikmagalure constituency for which she has filed nomination paper on 6-10-1978 till she stands duly tried by competent criminal court of law for her prima facie proved criminal charges and till Chief Election Officer completes enquiry by exercising his powers conferred on him under Sec. 146 of the Representation of the People Act, 1951 be declared void ab initio and ultra vires. In this Special Appeal, he has prayed that various sections of Advocates Act be declared ultra vires. Another relief prayed is that various rules of the Rajasthan Civil Services (Classification, Control and Appeal) Rules may be struck down being ultra vires. A prayer for declaring various provisions of the P. C. Act, 1947 and the Police Act to be valid in every way in comparison to that of the laws enacted after appellants appointment that is 10-2-1948, contrary to his service conditions originally entered into, parallel to the provisions of Articles 221 and 218 of the Constitution in the light of Article 14 and preamble of the Constitution. It is also prayed that this Court should declare the politics as profession so far as respondent No, 1 and other persons of the category are concerned. Another prayer has been made that the University of Rajasthan and the Bar Council of Rajasthan and Bar Council of India's orders which are various annexures should be declared void various other prayers have been made,

3. The petitioner claims himself to be Ex Public servant and has given chequered history of his career which has ultimately terminated in dismissal from service as police Sub-Inspector and that order according to Mr. Sharma is under challenge in a Special Appeal (No. 9/1977) pending before this Court. His principal grievance is that where as on account of his dismissal, he has been refused admission in the Law College in LL.M. classes and also his application for enrolment as an Advocate has been rejected by the Bar Council, respondent No. 1 Smt. Indira Gandhi who according to the petitioner is guilty of serious excesses during emergency which may result ultimately in her trial and conviction, is allowed to contest the elections under the provisions of the Representation of the People Act and, therefore, various provisions under the Representation of the People Act, Advocates Act, R.C.C.A. Rules, Prevention of Corruption Act and Police Act are violative of Article 14 of the Constitution.

4. After hearing the petitioner at length, learned single Judge rejected the writ application on various grounds which are contained in an elaborate order passed by the single bench. Before us, Mr. Sharma argued the case at length and raised the same contentions as mentioned above. We are of the opinion that the writ petition is misconceived because various causes of action have been joined together and it is impossible to consider the validity of the various orders passed by the Bar Council, the University and other authorities qua the petitioner and then compare them with the provisions of the Election Law contained in Representation of the People Act, 1951 for the purpose of deciding the important question of law raised that they are discriminatory being violative of Article 14 of the Constitution of India. In our opinion the proper course for the petitioner would have been to challenge the validity of the orders of the Bar Council and the University if so advised separately on the basis of whatever permissible grounds if any were or are available to him. In fairness to all concerned, it is not possible to decide the validity of all the provisions of law mentioned above taken together and jumbled up in this writ petition. We do not find any lack of competence in the legislature so far as its plenary powers for enacting the various laws mentioned above, are concerned.

5. Mr. Sharma submitted that there is no provision under the Advocates Act for challenging the orders for refusing the enrolment for a person as an Advocate. It may be so, but so far as the challenge on the ground of validity of the law is concerned, it can certainly be made under Article 226 of the Constitution, if in a given case a person can show that the impugned order is violative of any of the provisions of the Constitution or any of the laws as contemplated by Article 226(1)(a)(b) or (c) as the case may be.

6. In view of what we have said above, it is not necessary for us to go into details regarding the correctness of the various reasons given by the single Judge. In our opinion the writ petition deserves to be dismissed on a simple ground that it suffers from a serious infirmity of mis-joinder of causes of actions and parties.

7. It will not be out of place to mention that in Article 329, there is a blanket prohibition for interfering during the process of election as an election can only be challenged in the manner and before the authorities provided for it by law, by an election petition, after the result is announced. Therefore, also we are not competent to issue any restraint order for restraining respondent No. 1 Smt. Indira Gandhi from contesting the election at Chikmagalur for the membership of the Parliament as prayed by the appellant in this case.

8. The Special Appeal is, therefore, dismissed.


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