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PETITIONER: BODDULA KRISHNAIAH & ANR.

       Vs.

RESPONDENT: STATE ELECTION COMMISSIONER, A.P. & ORS.

DATE OF JUDGMENT:       20/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. BHARUCHA S.P. (J) PARIPOORNAN, K.S.(J)

CITATION:  1996 AIR 1595            1996 SCC  (3) 416  JT 1996 (4)   156        1996 SCALE  (3)301

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted. We have heard the counsel on both sides.      The  controversy   relates  to  election  to  the  Gram Panchayat  Nalgonda   District  of   Andhra   Pradesh.   The Notification was issued on June 7, 1995 to conduct elections to the Gram Panchayat under the Andhra Pradesh Panchayat Raj Act. (No.  13 of  1994) 1994  (For short  the ’Act’]  .  The electoral rolls  of the  Gram Panchayat  were required to be finalised 30 days prior to the poll. It would appear that in the draft roll prepared by the competent authority, names of about 94 persons find their place but later their names were deleted. Consequently,  they filed Writ Petition No. 3060/95 in the  High Court  including respondent  No, 6-42  in  this case. The elections were held on 27th June,1995. By an order dated 26th  June, 1995  the High  Court, by an interim order directed to  allow 94 persons to participate in the election but on  the date  of the  poll they could not exercise their franchise. Subsequently, in WPMP No. 16901/95 the respondent No. 6-42  sought direction  to permit them to exercise their franchise. By  an interim  order dated  July 6,  1995 ,  the direction was  issued by  the High  Court not to declare the result of  the election of the Gram Panchayat. The appellant and pro  form respondent  No. 43  filed WVMP  No. 2478/95 to vacate the  direction issued  by the  High Court  on July 6, 1995. On  November 8,  1995, the  High  Court  directed  the Revenue Divisional Officer (RDO), Nalgonda to scrutinize the claims of  respondent Nos.  6-42 and  ascertain whether they are residing  in the  village. By proceedings dated December 2, 1995, the RDO found that only 20 persons were eligible to be included  in the voters list as they were found living in the village,  during the  enquiry. On  these facts, the High Court by the impugned order dated December 22, 1995 directed that 20  persons out  of respondent Nos.6-42, who were found eligible to  vote should  be allowed  to participate  in the

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election, Thus, these appeals by special leave.      The only  question is  whether the  High Court would be justified in  giving the  direction for participating the 20 persons who  are found to be eligible to vote for exercising their franchise  separately when  the poll was already over. Shri P.P.  Raot the learned senior counsel appearing for the appellant contended  that once  the election process was set in  motion,   by  operation   of  Article   243(o)  of   the Constitution, the  High Court was not justified in directing 20 persons  to participate  in the election. The appropriate remedy would  be by  way of an election petition. The object of the Act, the Rules made thereunder and Article 243 [0] is to see that the election process to the Gram Panchayats once is set  in motion,  the process  should be culminated in the declaration of  the result  of election  and any  dispute in relation to  the conduct  of the  election would  be subject matter of an election dispute and would be dealt with by the appropriate Tribunal in accordance with law. The High Court, therefore,  was   not  justified  in  giving  the  aforesaid direction. Shri  K. Madhava  Reddy, learned  senior  counsel appearing for the respondents contended that the respondents have filed  the writ  petition in  January 1995 much earlier than the  election process  notified questioning deletion of their names from the draft Electoral rolls. It is found as a fact that  though their  names were  appearing in  the draft electoral  rolls,   they  were  deleted  without  giving  an opportunity to  the residents  of village Narayanpur. In the enquiry, names  of as many as 20 eligible persons were found and yet  they were  denied the  exercise of  their right  to franchise when the order passed by the High on June 26, 1995 in Writ  Petition No.3060/95  which was  allowed  to  become final. The  direction to  allow them  to participate  in the election was frustrated by preventing them to exercise their franchise which  is in  the  teeth  of  the  Court’s  order. Therefore, the  High Court was justified in giving direction in the  writ petition.  It is  also contended  that the High Court, pending  the writ petition, gave the direction and it being discretionary,  this Court  would be slow to interfere with the order under Article 136 of the Constitution.      Having  given   our  anxious   consideration   to   the respective contentions  the question  that  arises  for  our consideration is  whether the  High Court would be justified in giving  direction, firstly,  that respondent Nos.6-42, in particular 20  persons be  allowed  to  participate  in  the process of election after the election process was completed and consequently  whether the  High Court would be justified in interfering with the election process.      Section 33  of the  Act envisages that no election held under this  Act shall  be called  in question  except by  an election petition  presented to such authority in accordance with such  rules as  may be made In this behalf. In exercise of the  rule-making power  under the Act, the Andhra Pradesh Panchayat  Raj   Election  Tribunals   in  respect  of  Gram panchayats, Mandal  Parishads and Zila Parishads Rules, 1994 [for short,  the  ’Rules’]  were  made.  Under  Rule  2  [1] provides that [S]ave as otherwise provided, no election held under the Act, whether of a member, Sarpanch or Upa-Sarpanch of Gram  Panchayat, President [and Vice-President] of mandal Parishad  and   member  of   Mandal  Parishad.   Territorial Constituencies  and   Chairman,  [Vice-Chairman]   of   Zila Parishad  and   members   of   Zila   Parishad   Territorial Constituencies thereof,  shall be  called in question except by an  election petition  presented in  accordance with  the Rules to  the Election  Tribunals as defined in sub-rule C2] by any  candidate or  elector against the candidate who has-

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been declared  to have been duly elected [hereinafter called the returned candidate] or if there are two or more returned candidates against all or any such candidates.      Rule 12  [d] (iii)of  the Rules provides the grounds to set aside the elections which reads as under:      "If in  the opinion of the Election      Tribunal  5   the  result   of  the      election, insofar  as it concerns a      Returned   Candidate,    has   been      materially affected by any improper      reception refusal  or rejection  of      any vote  or the  reception of  any      vote which  is void,  the  Election      Tribunal shall declare the election      of the  Returned  Candidate  to  be      void".      Article 243  [0] of  the Constitution  envisages bar on interference by  courts in election matters. Notwithstanding anything contained in the Constitution, under sub-clause (b) "no election  to any  Panchayat shall  be called in question except by  an election  petition presented to such authority and in  such manner  as is  provided for by or under any law made by  the Legislature  of  a  State’.  Thus  there  is  a constitutional bar on interference with the election process except by  an election  petition, presented  to an  Election Tribunal as  may be  made by  or under  law by the competent legislature and  in the manner provided thereunder, Power of the court granting stay of the election process is no longer res integra      In  N.P.  Punnuswami  v.  Returning  Officer,  Namakkal Constituency &  Ors. [1952  SCR 218] a Constitution Bench of this Court  had held  that having  regard to  the  important functions  which   the  legislatures   have  to  perform  in democratic countries,  it has always been recognized to be a matter  of   first  importance   that  elections  should  be concluded as  early as  possible according  to time schedule and all  controversial matters  and all disputes arising out of elections  should be  postponed till  after the elections are over  so that the election proceedings may not be unduly retarded or  protracted. In  conformity with  the principle, the scheme  of the  election law  is  that  no  significance should be  attached to  anything which  does not  affect the "election"; and if any irregularities are committed while it is in  progress and  they belong  to the  category or  class which under  the law  by which elections are governed, would have the  effect of vitiating the "election"; and enable the person affected  to call  it in  question,  they  should  be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while  the election is in progress. The same principle was laid  down in Lakshmi Charan Sen and Ors. etc. v. A.K.M. Hassan Uzzaman & Ors. etc.[(1985) Supp. 1 SCR 493] . In this case where  the election  process was set in motion the High Court  granted   ad-interim  injunction   of   the   further proceedings of  the election  to the  State  Legislature.  A Constitution Bench of this Court had held thus:      The High  Court  acted  within  its      jurisdiction  in  entertaining  the      writ petition and in issuing a Rule      Nisi upon  it, since  the  petition      questioned the vires of the laws of      election. But  it was not justified      in passing the interim orders dated      February 12,  and 19,  1982 and  in      confirming  those   orders  by  its

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    judgment dated  February 25,  1982.      Firstly,  the  High  Court  had  no      material before  it to  warrant the      passing  of   those   orders.   The      allegations in  the  Writ  Petition      are of  a vague  and general nature      on the  basis of  which  no  relief      could be  granted. Secondly, though      the High  Court did  not  lack  the      jurisdiction to  entertain the Writ      Petition and  to issue  appropriate      directions therein,  no high  Court      in the  exercise of its power under      Article  226  of  the  Constitution      should pass  any orders, interim or      otherwise, which  has the  tendency      or   effect    of   postponing   an      election,   which   is   reasonably      imminent and  in relation  to which      its writ jurisdiction is invoked.           The High Courts must observe a      self-imposed  limitation  on  their      power to  act under Article 226, by      refusing to  pass orders  or  given      directions  which  will  inevitably      result     in     an     indefinite      postponement   of    elections   to      legislative bodies,  which are  the      very  essence   of  the  democratic      foundation and  functioning of  our      Constitution. That limitation ought      to be  observed irrespective of the      fact whether  the  preparation  and      publication of  electoral rolls are      a part of the process of ’election’      within the  meaning of  Article 329      [b] of the Constitution "      At page  497 it  was  further  held      that:           "Even   assuming,   that   the      preparation  and   publication   of      electoral rolls  are not  a part of      the process  of  ’election’  within      the meaning of Article 329 [b], the      High Court ought not to have passed      the   impugned    interim   orders,      whereby it not only assumed control      over the election process but, as a      result of which, the Section to the      Legislative Assembly stood the risk      of being postponed indefinitely.      The same  principle was reiterated when the election to the Gram Panchayat was sought to be stalled in State of U.P. & Ors.  v. Pradhan,  Sangh Kshettra  Samiti &  Ors.  [(1995) Supp. 2 SCC 305 at 331]. The  Court observed thus:           "What is more objectionable in      the   approach of  the High is that      although clause  [a] of Article 243      [O] of  the constitution  enacts  a      bar  on  the  interference  by  the      courts   in    electoral    matters      including the  questioning  of  the      validity of any law relating to the      delimitation of  the constituencies      or the  allotment of  seats to such

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    constituencies made or purported to      be made under Article 243-K and the      election to any panchayat, the High      Court has gone into the question of      the validity of the delimitation of      the  constituencies  and  also  the      allotment of seats to them. We may,      in  this  connection,  refer  to  a      decision of  this Court  in Meghraj      Kothari v.  Delimitation Commission      [(1967) 1  SCR 400  : AIR  1967  SC      669]. In  that case, a notification      of  the   Delimitation   Commission      whereby a  city which  had  been  a      general constituency  was  notified      as  reserved   for  the   Scheduled      Castes. This  Court held  that  the      impugned  notification  was  a  law      relating to the delimitation of the      constituencies or  the allotment of      seats to  such constituencies  made      under   Article    327    of    the      Constitution,    and     that    an      examination of  Sections 8 and 9 of      the  Delimitation   Commission  Act      showed  that  the  matters  therein      dealt with  were not subject to the      scrutiny of any court of law. There      was a  very good  reason for such a      provision  because  if  the  orders      made under  Sections 8  and 9  were      not to  be treated  as  final,  the      result would  be that any voter, if      he so  wished,  could  hold  up  an      election      indefinitely       by      questioning the delimitation of the      constituencies from court to court.      Although an  order under  Section 8      or Section  9 of  the  Delimitation      Commission  Act   and   that   same      position   as   a   law   made   by      Parliament itself  which could only      be made by it under Article 327. If      we read  Articles 243-C,  243-K and      243-0 in  place of  Article 327 and      Sections  2  [kk],  II-F  published      under Section  10 [4]  of Act  puts      such an  order in  the and 12-BB of      the Act  in place of Sections 8 and      9 of the Delimitation Act, 1950, it      will be  obvious that  neither  the      delimitation of  the panchayat area      nor of  the constituencies  in  the      said areas  and the  allotments  of      seats to  the constituencies  could      have been  challenged nor the court      could   have    entertained    such      challenge except on the ground that      before    the    delimitation    no      objections  were   invited  and  no      hearing  was   given.   Even   this      challenge  could   not  have   been      entertained after  the notification      for  holding   the  elections   was      issued. The  High  Court  not  only

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    entertained the  challenge but  has      also gone  into the  merits of  the      alleged  grievances   although  the      challenge  was   made   after   the      notification for  the election  was      issued on 31-8-1994.      Thus, it  would be  clear that once an election process has been  set in motion, though the High Court may entertain or may  have already  entertained a  writ petition, it would not be  justified in  interfering with  the election process giving direction  to  the  election  officer  to  stall  the proceedings or  to conduct  the election  process afresh  in particular when  election has already been held in which the voters were allegedly prevented to exercise their franchise. As seen,  that dispute is covered by an election dispute and remedy is thus available at law for redressal,      Under these  circumstances,  we  hold  that  the  order passed by the High Court is not correct in law in giving direction  not to  declare the result of the election or to  conduct fresh  poll for  20 persons,  though the writ petition is  maintainable.  The  High  Court,  pending  writ petition, would  not be  justified in  issuing direction  to stall the  election process. It is made clear that though we have held  that the  respondents are  not  entitled  to  the relief by  interim order,  this order  does not preclude any candidate  including   defeated  candidate  to  canvass  the correctness of  the election. They are free as held earlier, to seek remedy by way or an election petition as provided in the Act and the Rules.      The  appeals  are  allowed  accordingly,  but,  in  the circumstances, without costs.