THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
WRIT PETITION (SR) Nos.33269 of 2021 AND
W.P. (PIL) Nos.142 and 143 OF 2021
COMMON ORDER: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
Regard being had to the similitude in the
controversy involved in the present cases, the writ
petitions were analogously heard and by a common
order, they are being disposed of by this Court. Facts
of the Writ Petition (SR) No.33269 of 2021 are narrated hereunder.
The petitioner before this Court has filed the present petition being aggrieved by an order dated 18.10.2021 passed by the Election Commission of India deferring 'Dalit Bandhu Scheme' in poll bound 31-
Huzurabad Assembly Constituency.
The facts of the case reveal that the Election Commission of India has issued a Notification to conduct bye-election in respect of 31-Huzurabad Assembly Constituency on 28.09.2021 and after announcement of the election, a Government Order was issued on 01.10.2021 for implementation of 'Telangana Dalit Bandhu Programme'. As per the Government 2 Order, the eligible family will receive Rs.9,90,000/-
(Approximately Rs.10 lakhs) from the State Government. Paragraphs 2 and 5 (i) (ii) and (iii) of the Government Order, dated 01.10.2021 are reproduced as under:-
"2. The Government decided to implement the scheme in Huzurabad Assembly Constituency as a pilot, on saturation mode covering all Scheduled Caste households in the constituency to understand the modalities and pitfalls in implementing the program before scaling it across the State.
5. The Government after careful examination hereby issue the following guidelines for taking the Dalit Bandhu Scheme forward:
i. After the list of beneficiaries is verified, reduplicated and finalised, the Collector shall identify the best suited bank for each Mandal and get the special 'Dalit Bandhu' account opened in the name of the head of each beneficiary family.
ii. The Collector shall ensure that the passbooks of the special account are handed over to each of the beneficiary families duly highlighting the special nature of the account and the scheme.
iii. The Collector shall then proceed to get the funds to an extent of Rs.9,90,000/- per eligible family credited directly into the beneficiary account."
The election in the Huzurabad Assembly Constituency is scheduled to be held on 30.10.2021.
The Election Commission of India has passed an order on 18.10.2021 and the same is reproduced as under:-
3"Election Commission of India Nirvachan Sadan, Ashoka Road, New Delhi - 110 001 No.100/TEL-1A/2/SOU3/2021 Dt.18th October, 2021 To The Chief Electoral Officer, Telangana, Hyderabad.
Sub : Bye-election to 31 - Huzurabad AC - Application of MCC - Deferment of the 'Dalit Bandhu Scheme' - Regarding.
Sir,
I am directed to refer to your letter
No.3077/Elec.A/A1/2021-43, dated 08.10.2021 on the subject cited above and to state that the Commission has deliberated the 'Dalit Bandhu Scheme' in poll bound 31- Huzurabad AC of Telangana scheduled to be held on 30th October, 2021 and directed that DBT covering the scheme shall be deferred in the AC in all its forms till completion of bye-election in the AC.
A compliance report to be furnished to the Commission by 2 PM on 19th October, 2021.
Yours faithfully, (Avinash Kumar) Principal Secretary"
The learned counsel for the petitioner has vehemently argued before this Court that 'Dalit Bandhu Scheme' was started much prior to the Notification issued by the Election Commission of India for holding election in the Huzurabad Assembly Constituency and 4 therefore, as the Scheme is to help people belonging to the Scheduled Castes who are suffering, the Scheme could not have been stopped by the Election Commission of India. He has placed heavy reliance upon the Judgment delivered by the Kerala High Court in the case of Rajaji Mathew Thomas v. the Election Commission of India (W.P. (C) No.8178 of 2011), decided on 23.03.2011 and the contention is that in similar circumstances, wherein the Order of Election Commission of India was challenged, by which a rice scheme was put on hold, was set aside by the Kerala High Court. The judgment has been enclosed along with the writ petition.
Various grounds have been raised before this Court and the learned counsel for the Election Commission of India has straight away drawn the attention of this Court towards Article 324 of the Constitution of India and the same is reproduced as under:-
"324. Superintendence, direction and control of elections to be vested in an Election Commission.-
(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
5(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1)."
The learned counsel for the Election Commission of India has argued before this Court that when once the Code of Conduct is in force, no Scheme could have 6 been announced in any manner and method, which is being done in the present case. Instructions Serial No.5 of the Code of Conduct was brought to the notice of this Court and the same is reproduced as under:-
"Instruction Sl.No.5 Election Commission's letter No.464/INST/2007- PLN-1, dated 07.01.2007 addressed to the Chief Secretaries and the Chief Electoral Officers of all States and Union Territories.
Subject: CODE OF CONDUCT - Dos and 'DON'T's The Commission has issued various instructions on observance of code of conduct from time to time. Important aspects of the code of conduct are reiterated below:
On welfare schemes and governmental works:
1. Announcement of new projects or programme or concessions or financial grants in any form or promises thereof or laying of foundation stones, etc., which have the effect of influencing the voters in favour of the party in power is prohibited.
2. These restrictions apply equally to new schemes and also ongoing schemes. But it does not mean that in the case of national, regional and State utility schemes, which have already been brought up to the stage of completion, their utilisation or functioning in public interest should be stopped or delayed. The coming into force of the Model Code of Conduct cannot be given as an excuse for not commissioning such schemes or allowing them to remain idle. At the same time, it should be ensured that the commissioning of such schemes is done by civil authority and without associating political functionaries and without any fanfare or ceremonies whatever, so that no impression is 7 given or created that such commissioning has been done with a view to influencing the electorate in favour of the ruling party, if in doubt, a clarification should be obtained from Chief Electoral Officer/Election Commission of India.
3. It is further clarified that simply because a budget provision has been made for any particular scheme or the scheme has been sanctioned earlier or a reference to the scheme was made in the address of the Governor or the budget speech of the Minister it does not automatically mean that such schemes can be announced or inaugurated or otherwise taken up after the announcement of elections while the Model Code of Conduct is in operation, since they will clearly be intended to influence the voters. Such actions if undertaken will be considered a violation of the model code of conduct.
4. No fresh sanctions for governmental schemes should be made. Review by political executive (Ministers etc.) and processing of beneficiary oriented schemes, even if ongoing, should be stopped till completion of elections. No fresh release of funds on welfare schemes and works should be made or contract for works awarded in any part of the state where election is in progress without prior permission of the Commission. This includes works under the Member of Parliament (including Rajya Sabha members) Local Area Development fund or MLAs/MLCs Local Area Development Fund, if any such scheme is in operation in the state.
5. No work shall start in respect of which even if work orders have been issued before the model code came into effect, if the work has actually not started in the field. These works can start only 8 after the completion of election process. However, if a work has actually started, that can continue.
6. There shall be no bar to the release of payments for completed work(s) subject to the full satisfaction of the concerned officials.
7. Commission does not refuse approval for schemes undertaken for tackling emergencies or unforeseen calamities like providing relief to people suffering from drought, floods, pestilences, other natural calamities or welfare measures for the aged, infirm etc. In these matters, however, prior approval of the Commission should be taken and all ostentatious functions should be strictly avoided and no impression should be given or allowed to be created that such welfare measures or relief and rehabilitation works are being undertaken by the Government in office so as to influence the electors in favour of the party in power which at the same time will adversely affect the prospects of the other parties."
The learned counsel for the Election Commission of India has stated before this Court that the Judgment of the Kerala High Court relied upon by the petitioner has been stayed by the Hon'ble Supreme Court of India by an Order dated 30.03.2011 in the case of Election Commission of India v. Rajaji Mathew Thomas (Petition for Special Leave to Appeal (Civil) No.8891 of 2011). In all fairness, the Order of the Supreme Court of India should have been brought to the notice of this Court by the learned counsel for the petitioner.
9The Supreme Court in the case of S.Subramaniam Balaji v. State of Tamil Nadu1 in paragraph 86 held as under:-
"86. As observed in the earlier part of the judgment, this Court has limited power to issue directions to the legislature to legislate on a particular issue. However, the Election Commission, in order to ensure a level playing field between the contesting parties and candidates in elections and also in order to see that the purity of the election process does not get vitiated, as in past been issuing instructions under the Model Code of Conduct. The fountainhead of the powers under which the Commission issues these orders is Article 324 of the Constitution, which mandates the Commission to hold free and fair elections. It is equally imperative to acknowledge that the Election Commission cannot issue such orders if the subject-matter of the order of the Commission is covered by a legislative measure."
This Court has carefully gone through the writ petition and heard the learned counsel for the parties appearing in all these matters.
Undisputedly, the Code of Conduct has come into force and the Government Order, which has been issued after the Code of Conduct has come into force, on 01.10.2021 provides for implementation of Scheme in Huzurabad Assembly Constituency as a pilot project.
Each eligible family is going to get Rs.9,90,000/-
1(2013) 9 SCC 659 10 (Rupees nine lakh and ninety thousand only). This Court is not at all commenting upon the Scheme in any manner.
In the considered opinion of this Court, keeping in view the Judgment of the Supreme Court of India delivered in the case of S.Subramaniam Balaji (supra) and also keeping in view the Article 324 of the Constitution of India, which mandates the Election Commission to hold free and fair elections, this Court does not find any reason to stay and quash the operation of the impugned order passed by the Election Commission of India.
The prayer for grant of relief in W.P. (SR) No.33269 of 2021 and W.P. (PIL) No.142 of 2021 is rejected.
Insofar as W.P. (PIL) No.143 of 2021 is concerned, the petitioner prays for a direction to the Election Commission of India to consider his representation dated 27.08.2021, wherein he has requested the Election Commission of India to defer the 'Rythu Bandhu Scheme' or any other Scheme till the voting day is over.
In the considered opinion of this Court, in view of the Order dated 18.10.2021 passed by the Election 11 Commission of India deferring 'Dalit Bandhu Scheme' till completion of bye-election in Huzurabad Assembly Constituency, the grievance of the petitioner is redressed and therefore, the cause in W.P. (PIL) No.143 of 2021 does not survive.
Resultantly, W.P. (SR) No.33269 of 2021 and W.P.
(PIL) No.142 of 2021 are dismissed and W.P. (PIL) No.143 of 2021 is dismissed as infructuous.
Miscellaneous petitions, pending if any, shall stand dismissed. There shall be no order as to costs.
__________________________________ SATISH CHANDRA SHARMA, CJ _____________________________ A.RAJASHEKER REDDY, J 28.10.2021 Pln