Smt. Umlesh Yadav vs Election Commission Of India And ...
2013 Latest Caselaw 1638 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
RESERVED ON 02.04.2013.
 
DELIVERED ON 03.05.2013.
 

 
Case :- WRIT - C No. - 63965 of 2011
 

 
Petitioner :- Smt. Umlesh Yadav
 
Respondent :- Election Commission Of India And Others
 
Petitioner Counsel :- Arvind Mishra,Ravi Kant
 
Respondent Counsel :- B.N. Singh,A,S,G.I.,A.B. Saran,Ashok.Nigam,B.N.Mishra,S.C.,S.K.Misra.
 
 			_________
 

 

 
Hon'ble Ashok Bhushan,J.

Hon'ble Bharati Sapru,J.

(Delivered by Hon'ble Ashok Bhushan, J.)

By this writ petition the petitioner has prayed for a writ of mandamus declaring section 10A of the Representation of People Act, 1951 to be unconstitutional and void. A writ of certiorari has also been prayed for quashing the order dated 20.10.2011, passed by the Election Commission of India declaring the petitioner disqualified under section 10A of the Representation of People Act, 1951 for a period of three years.

A counter affidavit has been filed by Union of India as well as Election Commission of India to which rejoinder affidavit has been filed by the petitioner. The Election Commission of India has also filed three supplementary counter affidavits to which rejoinder affidavits have also been filed. Notices were issued to the respondents no. 2 and 3, was held to be sufficient, however, no one has appeared on behalf of respondents no. 2 and 3.

The brief facts giving rise to the writ petition are; that the petitioner was a candidate from 24-Bisauli Assembly Constituency, U.P. in the general Assembly elections of 2007 from a party namely Rashtriya Parivartan Dal. The respondent no. 2 was also a contesting candidate from the said constituency. The polling in the constituency was scheduled to take place on 18.4.2007. One day before the date of polling, a publication was made in the newspaper Amar Ujala dated 17.4.2007 mentioning that there is wave in favour of the petitioner in the election and the voters have made up their mind to support the petitioner. Similar publication was also made in the newspaper Dainik Jagaran dated 17.4.2007. Polling took place on 18.4.2007 and the petitioner was declared elected as a member of the U.P. Legislative Assembly. On 27.4.2007, a complaint was submitted by the respondent no. 2 to the Press Council of India that newspapers, Amar Ujala and Dainik Jagaran, in violation of journalistic conduct have published one sided news item in the form of advertisement in favour of the petitioner by taking huge sum on 17.4.2007, after close of the campaigning and a day before the poll. On 12.5.2007, the petitioner submitted account of his election expenses before the District Election Officer as required by sections 77 and 78 of the Representation of People Act, 1951. The Press Council of India issued notice to both the newspapers on 9.8.2007. Both the newspapers submitted reply before the Press Council of India that publication was not a news item but an advertisement. It was stated in the reply that at the bottom word "ADVT" was appended. It was further stated by the newspapers that the material which was published was material given to the Press on behalf of the petitioner and was not any material collected by the correspondent of the newspaper. Press Council of India decided the complaint by order dated 31.3.2010. It was held by the Press Council of India that publication though camouflaged as news item but in reality was an advertisement. It was further held that Amar Ujala and Dainik Jagaran were guilty of ethical violation. Adjudication along with all case papers were forwarded to the Election Commission of India for such action as it deem fit. After receiving the order dated 31.3.2010 from the Press Council of India along with all relevant materials, the Election Commission of India vide letter dated 4.5.2010 called for a report from Chief Electoral Officer, U.P. regarding expenditure on advertisement dated 17.4.2010. Chief Electoral Officer vide his letter dated 10.5.2010 forwarded the report dated 9.5.2010 of District Electoral Officer. The District Electoral Officer in his report stated that expenditure is not clear fro the return submitted by the petitioner. The Election Commission of India issued a notice dated 22.6.2010 to the petitioner stating that in the account of the election expenses, the expenditure incurred for two advertisements dated 17.4.2007 published in the Amar Ujala and Dainik Jagaran are not reflected which attract disqualification under section 10A for three years. The petitioner was asked to show cause within seven days. On 1.7.2010, the respondent no. 2 also filed an application before the Election Commission of India for being impleaded and given hearing as one of the parties in the matter. The petitioner submitted a reply dated 18.7.2010 to the Election Commission of India stating that publication of above items in the newspaper on 17.4.2007 was neither ordered by the petitioner or by her election agent nor the petitioner has spent any amount for publication of advertisement in the newspapers. On 19.8.2010, the Election Commission of India asked the newspapers to send copies of all relevant documents pertaining to publication dated 17.4.2007. On 6.1.2011 Election Commission of India again wrote to the petitioner stating that account of election expenses lodged by the petitioner does not reflect proper and correct expenditure of the petitioner. Hearing was fixed for 4.2.2011. On 25.3.2011, the Election Commission of India gave hearing to the petitioner and the respondent no. 2. On 4.4.2011, the petitioner wrote to the Election Commission of India that publication in the newspaper dated 17.4.2007 are news item and not an advertisement. It was stated that advertisement has been given by her party only in small boxe size 7X6 centimeters for which amount of Rs. 840/- was paid to the Daily 'Amar Ujala' vide bill dated 17.4.2007. The Election Commission of India vide order dated 20.10.2011 disqualified the petitioner for period of three years exercising the power under section 10A of the Representation of People Act, 1951. The writ petition was filed on 5.11.2011 challenging the order of Election Commission of India. The application for interim relief was heard and rejected by order dated 17.11.2011. General Election 2012 was notified in January, 2012. The Assembly Election 2012 was held and new Assembly has been constituted. An application filed by the petitioner seeking liberty to file her nomination paper and contest election was dismissed as withdrawn on 4.5.2012. The petitioner was permitted to amend the petition by adding a prayer of issuing a writ of mandamus declaring section 10A of the Representation of People Act, 1951 as unconstitutional and void. Following are the prayers (as amended) which have been made in the writ petition :

"(a) issue a writ, order or direction in the nature of certiorari quashing the two impugned order dated 20.10.2011 (Annexure-13 to the writ petition) passed by the Election Commission of India, respondent No. 1;

(b) issue a writ, order or direction in the nature of mandamus directing the respondents to treat the petitioner as duly elected member of legislative assembly from 24-Bisauli assembly constituency, District Budaun and to admit her to the privileges and perquisites attached to such office;

(b-2) issue a writ, order or direction in the nature of mandamus declaring Section 10-A of the Representation of People Act, 1951 to be unconstitutional and void."

We have heard Sri Ravi Kant learned Senior Advocate assisted by Sri Arvind Misra for the petitioner. Sri S.K. Misra learned standing counsel has been heard for Union of India. Sri B.P. Singh learned Senior Advocate assisted by Sri B.N. Singh has been heard for the respondent no. 1.

Sri Ravi Kant, learned Senior Advocate appearing for the petitioner submitted that power to disqualify a member of the State Legislative Assembly inheres only in the Governor of the State under Article 192 of the Constitution of India. Under section 10A of the Representation of People Act, 1951, it is the Election Commission of India, which is clothed with such power. There is direct conflict between Article 192 of the Constitution of India and section 10A of the Representation of People Act, 1951 which conflict is irreconcilable. The Constitution of India being supreme, section 10A of the Representation of People Act, 1951 has to give way to it. Section 10A which clothes the Election Commission of India also with the power to disqualify a member of Legislative Assembly being repugnant to Article 192 is unconstitutional. It is submitted that Election Commission of India cannot initiate any proceeding under section 10A of the Representation of People Act, 1951 on a complaint of third party or on the basis of the order of the Press Council of India dated 31.3.2010. It is submitted that Rule 89 of the Conduct of Elections Rules, 1961 provides a procedure for initiating proceedings under section 10A. According to Rule 89, the proceedings can be initiated only when District Election Officer submits a report to the Election Commission of India that there is non compliance of Sections 77 and 78 by a candidate. The proceedings initiated by Election Commission of India is thus, without jurisdiction. The Rules having provided a particular procedure for initiating action for default in submission of return of expenses, the impugned order of the Election Commission of India on the basis of reference made by Press Council of India, is without jurisdiction. The publication dated 17.4.2007 was a news item and not an advertisement and the advertisement dated 17.4.2007 for which a bill of Rs. 840/- was raised got published by the political party Rashtriya Parivartan Dal of which the petitioner was a candidate. The expenses for publication of a news item/advertisement cannot be deemed to have been incurred by the petitioner or her election agent. The disqualification under section 10A being based on twin grounds as specified in Section 10A and the Election Commission of India having failed to focus its attention to the other grounds i.e. reasonable cause or justification for such non submission of return of its expenses, the order suffers from manifest error of law. The Election Commission of India did not afford adequate opportunity to the petitioner since, the copy of the order of Press Council of India as well as statements of the newspapers were not supplied to the petitioner, which is denial of opportunity to defend and violates the principle of natural justice. The Election Commission of India can inquire about the disqualification only when reference is made to the Election Commission of India by Governor of the State. The Election Commission of India could not itself have passed any order of dis-qualification since the power vests only with the Governor. At best, the Commission could have conducted the inquiry and forwarded the opinion to the Governor. When Constitution lays down a manner of doing a thing, the said thing should be done in that manner alone. The statements made before the Press Council of India were relied by Election Commission of India, whereas no statement was made before the Election Commission of India. Several observations made by the Election Commission of India in the impugned order are irrelevant. The matter could not have been taken cognizance after four years. The Commission has not adverted to the reply submitted by the petitioner. The petitioner's return was of about Rs. 6,00000/- and since the limit is Rs. 10 lacs, it could have very well included the bill of Rs. 8000/- also, which was allegedly raised by Amar Ujala .

Sri S.K. Misra, learned counsel for the union of India refuting the submissions of learned counsel for the petitioner contended that Article 191(1) (e) confers power to the Election Commission of India under section 10A of Representation of People Act, 1951 which is a law made by Parliament. The provisions of Section 10A has to be harmoniously construed with the Constitutional provisions of Article 192. The declaration made by the Election Commission of India under section 10A is a declaration under Article 191(1)(e) of the Constitution of India. There is no infirmity in Section 10A. The decision of the Governor under Article 192 is final provided such dispute comes before the Governor. Section 10A deals with situation where a person may or may not be member of the House. It has been contended that constitutionality of the provisions of Section 10A has to be presumed and the provision is to be interpreted in a manner to save constitutionality of the provision. Constitutionality of a statute has not to be readily inferred. Invalidating a Statute is a grave step which must be taken in a very rare exceptional circumstances.

Sri B.P. Singh, learned Counsel for the Election Commission of India submitted that disqualification under Article 191 (1) (e) is a disqualification, which may be relevant at the time of choosing of the candidate i.e. at the time of election. Disqualification which has arisen in the present case is not a disqualification which was covered by Article 191 (1)(e). The Parliament has enacted section 10A to give effect to the Constitutional provision of Article 324. The argument of learned counsel for the petitioner that every disqualification is to be referred to the Governor is misconceived. There is no proof that political party has incurred the expenses. The advertisement's expenditure having not been shown in the return of the petitioner, the return of the petitioner was not true return and the Commission has rightly exercised the power under section 10A. Ample opportunity was given to the petitioner by the Election Commission of India and all materials including the order of Press Council of India were supplied to the petitioner. The petitioner was also given personal hearing and no such grievance was raised at the time of personal hearing. The petitioner is not entitled for any relief.

Learned counsel for the parties have relied on various judgments of the apex Court and of this Court which shall be referred to while considering the submissions in detail.

From the submissions of learned Counsel for the parties following issues arise for consideration:

1. Whether Section 10A of the Representation of People Act, 1951 is unconstitutional?

2. Whether Election Commission of India can disqualify a member of Legislative Assembly exercising power under Representation of People Act, 1951 without there being a reference made by Governor under Article 192 of the Constitution?

3. Whether the proceedings under Section 10A of the Representation of People Act, 1951 can be initiated only when a report under Rule 89 of the 1961 Rules is sent by the District Election Officer?

4. Whether the account of expenditure submitted by the petitioner was in accordance with Section 77 of the Representation of People Act, 1951?

5. Whether the conditions for passing an order disqualifying the petitioner under Section 10A were fulfilled in the facts of the present case?

6. Whether principles of natural justice violated?

Whether Section 10A of the Representation of People Act, 1951 is unconstitutional?

Sri Ravi Kant, leaned Senior Advocate appearing for the petitioner has vehemently submitted that section 10 A of the Representation of People Act, 1951 being inconsistent with Article 192 of the Constitution of India is ultra-vires to the Constitution. He submits that the power to pronounce a decision on a question as to whether a Member of Legislative Assembly has earned disqualification within the meaning of Article 191(1)(e) of the Constitution of India is vested with the Governor of the State who after obtaining opinion of the Election Commission of India has to decide the question regarding disqualification. The Election Commission of India cannot be clothed with power to pronounce that a Member has earned disqualification under section 10A of the Representation of People Act, 1951. Section 10A being a Parliamentary law has to give way to the Constitutional law which is supreme.

It is relevant to have a look on the Constitutional Scheme as contained in the Constitution of India as well as relevant provisions of the Representation of People Act, 1951. Before Articles 190 to 193 of the Constitution of India heading 'Disqualifications of Members' has been appended. Article 190 provides for Vacation of Seats. Various circumstances have been enumerated in Article 190 when a seat become vacant. Article 191 provides for disqualification of members. The article provides that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State. Among the various disqualifications one of the disqualifications is provided in sub-clause (e) of Sub Article (1) of the Article 191 that if he is so disqualified by or under any law made by Parliament. Article 191 (2) provides that a person shall be disqualified for being a member if he is so disqualified under the Tenth Schedule. Article 192 provides for decision on questions as to disqualifications of members and Article 193 provides for Penalty for sitting and voting before making oath or affirmation under article 188 or when not qualified or when disqualified. Articles 190 to 193 of the Constitution of India for ready reference are quoted as below:

"Article 190 - Vacation of seats.- (1) No person shall be a member of both Houses of the Legislature of a State and provision shall be made by the Legislature of the State by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other.

(2) No person shall be a member of the Legislatures of two or more States specified in the First Schedule and if a person is chosen a member of the Legislatures of two or more such States, then, at the expiration of such period as may be specified in rules1made by the President, that person's seat in the Legislatures of all such States shall become vacant, unless he has previously resigned his seat in the Legislatures of all but one of the States.

(3) If a member of a House of the Legislature of a State--

(a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of article 191; or

(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be,

his seat shall thereupon becomes vacant:

Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.

(4) If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant:

Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.

191 - Disqualifications for membership.- (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

Explanation. For the purposes of this clause,] a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.

(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.

192 - Decision on questions as to disqualifications of members.-.

(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.

(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.

193 - Penalty for sitting and voting before making oath or affirmation under article 188 or when not qualified or when disqualified.- If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State."

One of the disqualifications enumerated under Article 191 (1) (e) is "if he is so disqualified by or under any law made by Parliament" List I-Union List of the Seventh Schedule Entry No. 72 provides as follows:

"72. Elections to Parliament, to the Legislatures of States and to the offices of President and Vice-President; the Election Commission"

The Parliamentary Act made by the Parliament provides for the disqualifications or qualifications for the membership to the House of People and Legislatures of States. Chapter III of the 1951 Act contains a heading "Disqualifications for Membership of Parliament and State Legislatures". Section 8 relates to Disqualification on conviction for certain offences. Various sub clauses of Section 8 enumerate conviction under various Acts which is a disqualification for membership. Section 8A provides for "Disqualification on ground of corrupt practices" Section 8A provides that the case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted to the President for determination of the question as to whether such person shall be disqualified and if so, for what period. Section 9A again contains a provision for Disqualification for Government contracts, etc. Section 10 provides for Disqualification for office under Government company, Section 10A provides for Disqualification for failure to lodge account of election expenses. Present case relates to Section 10A. Section 10A is quoted as below:

"10A. Disqualification for failure to lodge account of election expenses. --If the Election Commission is satisfied that a person-

(a ) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act; and

(b ) has no good reason or justification for the failure,

the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order."

Whether Section 10A is inconsistent to Article 192 of the Constitution of India is the question to be answered. For considering the submissions, it is relevant to find out the Constitutional schemes as delineated under Articles 190 to 193 of the Constitution of India.

Article 191(1)(e) itself provides that a person shall be disqualified if "he is so disqualified by or under any law made by the Parliament". The disqualification by or under any law of Parliament is contemplated by the Constitution of India itself. Provisions of Sections 8,9,10 and 10A are the laws made by the Parliament providing for disqualification of members. Thus, the provisions of Section 10A of Representation of People Act, 1951 is a law made by the Parliament as contemplated by Articles 191 (1)(e) and is clearly in consonance with the provisions of Article 191(1)(e). In Article 191 , the phrases "so declared" "so disqualified" have been used at more than one places. The words "so disqualified" clearly contemplate disqualification in accordance with law. The Constitutional provisions contemplate a disqualification which is earned under law made by the Parliament. Similarly in Article 191(1)(b), the words used are "so declared by competent court". This contemplate such declaration by the competent Court. Article 191 (2) provides that a person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule of the Constitution of India. Clause 2 contains disqualification on the ground of defection. Thus, disqualification earned by member is to be in accordance with the Tenth Schedule. Use of words "so disqualified" occurring in Article 191 clearly indicate that the act of disqualification is earned in accordance with law made by Parliament or Tenth Schedule and action of disqualification does not require any further declaration. The submission of learned Counsel for the petitioner is that the power to take decision in accordance with disqualification is with the Governor, which has to be given finality hence, the Election Commission of India cannot exercise powers under section 10A of the Representation of People Act, 1951 to disqualify a member. It is submitted that power given to the Election Commission of India under Section 10A of the Representation of People Act, 1951 is in the teeth of Constitutional provisions of Article 192. Had the framers of the Constitution of India intended that disqualification shall be earned only when a decision is taken by the Governor under Article 192, the framers of the Constitution would not have used the words "so disqualified by or under any law made by the Parliament". To accept the submission of learned Counsel for the petitioner, we have to read in Article 191 "so disqualified under Article 192". No inconsistency can be accepted in Article 191 and Article 192 of the Constitution of India. Disqualification by Election Commission of India under section 10A operates under the Parliamentary enactment as contemplated by Article 191(1)(e) and is not in conflict or inconsistent to Constitutional scheme. Article 192 begins with words "If any question arises" as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor. Article 192 is attracted when a question arises. Article 192 provides for remedy and forum for determining any such question. The disqualification earned by member as contemplated by Article 191 (1) is neither suspended nor arrested even when a question is referred to Governor for his decision. There is no conflict between the law made by Parliament disqualifying a member and Article 192. Disqualification earned by member under the provisions of Representation of People Act, 1951 is independent and separate consequence from the proceedings which are undertaken under Article 192, referring a question for the decision of the Governor.

The provisions of Articles 190 to 193 as well as Articles 101 to 104 which are similar provisions relating to members of both the Houses of Parliament have come for consideration before the apex court on several occasions. The first judgment which is to be noted is the judgment of the Constitution Bench of the Supreme Court reported in AIR 1953 S.C. 210 Election Commission, India Vs. Saka Venkata Subba Rao. The above case arose from a judgment of Single Judge of Madras High Court by which judgment a writ of prohibition restraining the Election Commission of India was issued. A writ petition was filed by the respondent against whom the Election Commission of India issued notice for submitting an opinion to the Governor regarding his disqualification which was earned by the member under section 7(b) of Representation of People Act, 1951 by virtue of a conviction of 7 years rigorous imprisonment in the year 1942. The apex Court had considered the schemes of Articles 191 to 193 in the aforesaid judgment. Whether Article 192 was attracted with regard to a pre-existing qualification was a question which was answered by the apex Court. Referring to Articles 193 and 192, the apex Court held that the above two articles provide remedy when a member incurs disqualification after he is elected as member. It is useful to quote following observations made by the apex Court in paragraph 14:

"14. The Attorney-General argued that the whole fasciculus of the provisions dealing with "disqualifications of members", viz., articles.190 to 193, should be read together, and as articles 191 and 193 clearly cover both preexisting and supervening disqualifications, articles 190 and 192 should also be similarly understood as relating to both kinds of disqualification. According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided. The use of the word "become" in articles 190 (3) and 192 (1) is not inapt, in the context, to include within its scope preexisting disqualifications also, as becoming subject to a disqualification is predicated of "a member of a House of Legislature", and a person who, being already disqualified, gets elected, can, not inappropriately, be said to "become" subject to the disqualification as a member as soon as he is elected. The argument is more ingenious than sound. Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member, and article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both pre existing and supervening disqualifications; but it does not necessarily follow that articles 190 (3) and 192 (1) must also be taken to cover both. Their meaning must de end on the language used which, we think, is reasonably plain. In our opinion these two articles go together and provide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words " becomes subject" in article 190(3) and "has become subject" in article 192(1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in article 190(3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfetched construction and cannot be accepted. The Attorney-General admitted that if the word " is " were substituted for "becomes" or " has become ", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used."

The next important case in which the apex court again considered the Constitutional scheme is Constitution Bench judgment reported in AIR 1965 S.C. 1892 Brundaban Nayak vs Election Commission Of India. In the above case while considering the Constitutional scheme under Articles 190 to 192, the apex Court held that no person who had incurred any of the disqualifications under Article 191 is entitled to continue as the member of the Legislative Assembly. Hence, any citizen is entitled to make a complaint to the Governor. It was observed that Article 192 provides a remedy on the aforesaid cases. It is useful to quote paragraph 14 of the judgment which is to the following effect:

"14. It is true that Art. 192(2) requires that whenever a question arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion. It is conceivable that in some cases, complaints made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Art. 192 is plain. No person who has incurred any of the disqualifications specified by Art. 191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Art. 190(3)(a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in Art. 191 (1) and should, therefore, vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Art. 192(2). Therefore, we must reject Mr. Setalvad's argument that a question has not arisen in the present proceedings as required by Art. 192(1)."

The next judgment which needs to be considered is again a Constitution Bench Judgement reported in AIR 1978 SC 1609 Election Commission Of India vs N.G. Ranga And Ors. Section 10A as well as Articles 101,102,103 and 104 fell for consideration in the above case. The respondent N.G. Ranga was elected to the Lok Sabha. Election Commission of India issued notice to the respondents to show cause why he should not be disqualified for failure to lodge the account of his election expenses within the time and in the manner required by law . The explanation submitted by the respondent was accepted and delay in filing the return was condoned. A voter submitted a petition to the President of India under Articles 84, 101,102,103 and 104 of the Constitution alleging that respondent had become subject to the disqualification mentioned in Article 102(1). The President sought opinion of the Election Commission of India, who issued a notice to respondent. A writ petition was filed by the respondent. High Court allowed the writ petition and issued a writ of prohibition. The apex Court observed that by Section 10A of the Act Election Commission of India has power to declare a person disqualified, if he is satisfied that he failed to lodge election expenses within the time in the manner as required by or under the Act. It was further held that declaration of disqualification under section 10A is a declaration made by the Election Commission of India under law made by the Parliament. Following was laid down in paragraph 9:

"9. The High Court misdirected itself in reaching the conclusion that the appellant acted beyond its jurisdiction in issuing the notice to respondent 1 calling upon him to submit his explanation in regard to the allegations made by respondent 2 in his petition to the President. According to the High Court, "facts leading to disqualification under section 10A" of the Act, "cannot be the subject matter of inquiry and decision under Article 103 of 'the Constitution'?. It is impossible to accept this statement of law in view of the express provision contained in Article 103(1) (a) that if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Article 102(1), the question shall be referred for the decision of the President. Article 102(1) provides by sub-clause (e) that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament. By section 10(A) of the Act, the Election Commission has the power to declare a person to be disqualified if it is satisfied that he has failed to lodge an account of election expenses within the time and in the manner required by or under the Act and has no good reason or justification for the failure. A declaration of disqualification made in pursuance of power conferred by section 10(A) is a declaration made by the Election Commission under a law made by Parliament. It, therefore, attracts Article 102(1)(e) and consequently Article 103(1) of the Constitution."

(Emphasis supplied)

Section 10A of the Representation of People Act, 1951 again came for consideration before the apex court in (1999) 1 SCC 666 L.R. Shivaramagowda, Etc. vs T.M. Chandrashekar Etc. It was held that if an account submitted by a candidate under sections 77 and 78 of Representation of People Act, 1951 is found to be incorrect and untrue, the Election Commission of India may disqualify the person. Following was observed in paragraph 22:

"22. Referring to Section 10(A) of the Act, which enables the Election Commission to disqualify a person who had failed to lodge an account of election expenses within the time and in the manner required by or under the Act and had no good reason or justification for the failure, he contended that the said Section provides only for a situation arising out of failure to lodge an account and not a situation arising from a failure to maintain true and correct accounts. We are unable to accept this contention. In our opinion, Sub-section (a) of Section 10(A) takes care of the situation inasmuch as it provides for lodging an account of election expenses in the manner required by or under the Act. Section 77(2) provides that the accounts shall contain such particulars as may be prescribed. Rule 86 of the conduct of Election Rules provides for the particulars to be set out in the account. The said Rule prescribes that a voucher shall be obtained for every item of expenditure and for lodging all vouchers along with the account of TC election expenses. Rule 89 provides that the District Election Officer shall report to the Election Commission, the name of each contesting candidate, whether such candidate has lodged his account of election expenses and if so the date on which such account has been lodged and whether in his opinion such account has been lodged within the time and in the manner required by the Act and the rules. That Rule enables the Election Commission to decide whether a contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act after adopting the procedure mentioned therein. If an account is found to be incorrect or untrue by the Election Commission after enquiry Under Rule 89, it could be held that the candidate had failed to lodge his account within the meaning of Section 10(A) and the Election Commission may disqualify the said person. Hence, we do no find any substance in the argument of learned counsel for the first respondent."

As observed above, the disqualification earned by a member as referred to in Article 191(1)(e) takes effect when the disqualification is earned under any of the Sections from 8 to 10A of Representation of People Act, 1951 and order passed by the Election Commission of India under section 10A declaring a person disqualified is an order referable to Article 191(1)(e) of the Constitution of India. The exercise of power under section 10A is an independent exercise of power by the Election Commission of India under the Representation of People Act, 1951 and Constitutional provisions of Article 192 in no manner prohibits exercise of power by the Election Commission of India under section 10A of the Representation of People Act, 1951. The Constitutional scheme provided under Article 192 is for different purpose and object. Article 192 provides for a remedy and forum for raising any question which has arisen. It is not necessary that in all cases where disqualification is earned, a question is raised before the Governor. There may be cases where after earning disqualification by a member no question is raised by any one. When no issue is raised under Article 192, whether disqualification earned shall remain suspended? The answer to the question is obviously 'No'. A Constitution Bench of the apex Court has held that reference to the President under Article 103 shall be made, if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102. It has been further held that If it is not disputed that a member has incurred a disqualification mentioned in clause (1) of Article 102, the matter does not go to the President and the member ceases to be a member on the date when he incurred the disqualification. It has been clearly held that it would not operate from the date on which the decision has been taken but relate back from the date on which disqualification has been earned. The judgment was delivered by the Constitution Bench of the apex Court in the case of P.V. Narsimha Rao vs State (1998) 4 SCC 626. Justice S.C. Agrawal delivered opinion for himself and Anand J. In paragraph 93 of the judgment following was laid down:

"93. ... In respect of a Member of Parliament the Constitution does not confer on any particular authority the power to remove him. Clause (1) of Article 103 lays down that if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred to the decision of the President and his decision shall be final. The said function of the President is in the nature of an adjudicatory function which is to be exercised in the event of a dispute giving rise to the question whether a Member o either House of Parliament has become subject to any of the disqualification mentioned in clause (1) of Article 102 being raised. If the President holds that the member has become subject to a disqualifications mentioned in clause (1) of Article 102, the member would be treated to have ceased to be member on the date when he became subject to such disqualification. If it is not disputed that a member has incurred a disqualification mentioned in clause (1) of Article 102, the matter does not go to the President and the member ceases to be a member on the date when he incurred the disqualification. The power conferred under Article 103(1) cannot, therefore, regarded as a power of removal of a Member of Parliament..."

(Emphasis supplied)

Another opinion was delivered by Bharucha, J. for himself and for Rajendra Babu, J. where similar proposition has been laid down. It is useful to quote paragraph 180 of the judgment:

"180. The question for our purposes is whether, having regard to the terms of Article 101, 102 and 103, the President can be said to be the authority competent to remove a Member of Parliament from his office. It is clear from Article 101 that the seat of a member of Parliament becomes vacant immediately upon his becoming subject to the disqualifications, mentioned in Article 102, without more. The removal of a member of Parliament is occasioned by operation of law and is self operative. Reference to the President under Article 103 is required only if a question arises as to whether a member of Parliament has earned such disqualification; that is to say, if it is disputed. The President would then have to decide whether the Member of Parliament had become subject to the automatic disqualification contemplated by Article 101. His order would not remove the Member of Parliament from his seat or office but would declare that he stood disqualified. It would operate not with effect from the date upon which it was made but would relate back to the date upon which the disqualification was earned. Without, therefore, having to go into the connotation of the word "removal" in service law, it seems clear that the President cannot be said to be the authority competent to remove a member of Parliament from his office."

(Emphasis supplied)

In (2009) 9 SCC 648 Consumer Education and Research Society Vs. Union of India and others, the apex Court has considered the provisions of Articles 101,102 and 103 in context of Parliament (Prevention of Disqualification) Amendment Act, 2006 by which amendment Act certain offices were added in the Parliament (Prevention of Disqualification) Act, 1959. The apex Court in the said judgement in paragraph 62 made following observations marked page 88 three lines.

" Therefore, even though the occurrence of a vacancy is an automatic consequence of incurring a disqualification, the same would arise only after the disqualification is declared by the decision of the appropriate authority (President, Speaker, or Chairman of the House as the case may be)."

The apex Court was considering the question in the above case as to when vacancy would arise. The issue in the present case is the issue as to whether Section 10A of the Representation of People Act, 1951 is ultra-vires to Article 192 of the Constitution of India. As noted above, the Constitution Bench judgment in P.V. Narsimha Rao's case (supra) has held that the decision of President under Article 102 shall take effect from the date the disqualification was incurred. This Court is bound by the law as declared by the Constitution Bench of the apex Court in P.V. Narsimha Rao's case and the aforesaid view of the Constitution Bench supports our view that there is no inconsistency between Section 10A of the Representation of People Act, 1951 and Article 192 of the Constitution of India. The judgment of the apex Court in Consumer Education Research Society (supra) was considering different issue and does not help the petitioner in the present case.

Thus, from the above Constitution Bench judgment in P.V. Narsimha Rao's case two propositions are deducible; (a) Reference to President in Article 103 is required only when a question arise as to whether a member of Parliament has earned disqualification i.e. to say if it is disputed. (b) The decision by the President would operate not from the date on which it was made but would relate back to the date on which the disqualification was earned.

From the above, it is clear that operation of decision given under Article 103/192 operates in different field for different purpose whereas disqualification earned under section 10A of the Representation of People Act, 1951 read with Article 191(1)(e) operates in different field. There is no inconsistency between the powers exercised by the the Election Commission of India under section 10A and the powers exercised by the Governor under Article 192 for giving a decision after obtaining an opinion from the Election Commission of India regarding disqualification of a member. This clearly demolishes the submission of the petitioner that Section 10A is inconsistent with the Constitutional Scheme as delineated under Article 192 of the Constitution of India. Jagdish Swarup's Constitution of India 2nd Edition commentary on Article 103 expresses following view:

"Decision on question of disqualification of member. - It is clear from Article 101 that the seat of a Member of Parliament becomes vacant immediately upon his becoming subject to the disqualifications mentioned in Article 102, without anything more. The removal of a Member of Parliament is occasioned by operation of law and is self-operative. Reference to the President under Article 103 is required only if a question arises as to whether a Member of Parliament has earned such disqualification; that is to say, if it is disputed. The President would then have to decide whether the Member of Parliament had become subject to the automatic disqualification contemplated by Article 101. His order would not remove the member of Parliament from his seat or office but would declare that he stood disqualified. It would operate not with effect from the date upon which it was made but would relate back to go the date upon which the disqualification was earned."

Reference to the President under Article 103 is required only if a question arises as to whether a member of Parliament has earned such disqualification.

The above view is re-enforced by taking into consideration another aspect of the matter. Article 193 of the Constitution of India casts an obligation on a person not to sit or vote as Member of Legislative Assembly when he knows that he is disqualified for membership thereof. A penalty of Rs. 500/- of each day is also contemplated under Article 193. Article 193 is injunction against a person, who is not qualified or disqualified not to sit or vote in the Assembly. This is with object that a person who is not qualified or disqualified should not take part in the proceedings. If the submission of learned Counsel for the petitioner is accepted that disqualification operates only from the date a decision is taken by the Governor under Article 192, a member who knows that he is disqualified has to only submit a petition under Article 192 and can continue to sit and participate in the assembly without attracting any penalty. The injunction and obligation as contained under Article 193 continue to operate even if question is referred under Article 192. Sitting or voting in the assembly by a member with regard to whose disqualification the matter is referred under Article 192 is at his own risk. Article 192 cannot be used as a shield or refuge by members of Legislative Assembly to ward of disqualification earned under a Parliamentary enactment. It is a remedy provided to every citizen who alleges that a member has become disqualified or to a member who says that he is not so disqualified. If a member with regard to whom reference has been made under Article 192 regarding his disqualification, sits and vote in the assembly and ultimately it is found that member has earned disqualification under Article 191(1)(e), he shall be clearly liable for penalty as contemplated under Article 193 from the date when he earned the disqualification.

Constituent assembly debate on the Article 192 of the Constitution of India corresponding to Article 167A of draft Constitution throws considerable light. The Constituent Assembly debates on Article 167 A of the Draft Constitution were held on 14.6.1949. K. Sanathnam participating in the debate referring to draft Article 168 corresponding to Article 193 of the Constitution of India has said following (page 864 Book no. 3 vol. 8 Constituent Assembly Debates Fifth Reprint, published by Lok Sabha Secretariat):

"Another point has been raised that under article 168 when a decision on disqualification of membership is pending for a long time a member who attends the House may be put to very heavy penalties. It is quite true. But there is nothing which compels a Member who is charged with disqualification to attend the House. He attends at his own risk. If he is absolutely certain that he is not disqualified he is certainly entitled to take the risk and attend. But if he does attend while a charge of disqualification is pending and if finally it is proved that he is actually disqualified, then he has taken a deliberate and calculated risk and he must pay the penalty. I do not think he deserves so much sympathy. I think the clause as it has been moved by my honourable Friend Mr. T.T. Krishnamachari ought to be supported."

The apex Court in (1999) 4 SCC 526 K. Venkatachalam Vs.

A Swamickan and Another had occasion to consider Article 190,191,192 and 193 of the Constitution of India. In the aforesaid case, K. Venkatachalam was declared elected as member of Legislative Assembly in Tamil Nadu although he did not possess the basic qualification prescribed under Clause (c) of Article 173 of the Constitution read with Section 5 of Representation of the People Act, 1951. No election petition was filed challenging his election. The writ petition was filed against the elected candidate which was dismissed by Single Judge. However, Division Bench allowed the writ appeal and declared K. Venkatachalam disqualified to sit as member of Legislative Assembly, in the appeal before the apex Court following was laid down in paragraph 25:

"25. In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a member from that constituency. How could a person who is not an elector, from that constituency could represent the constituency? He lacked the basic qualification under Clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be elector of that constituency. The appellant in the present case is certainly disqualified for being a member of the Legislative Assembly of Tamil Nadu. His election, however, was not challenged by filing an election petition under Section 81 of the Act. Appellant knows he is disqualified. Yet he sits and votes as a member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. Appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law."

The apex court held in the said case that liability of penalty under Article 193 is attracted against such member who knows that he is disqualified and there is no adjudication regarding his disqualification which was earned prior to his election. Thus, the object and purpose of Article 193 is to prohibit any disqualified person to sit or vote in the assembly, if he knows that he is disqualified. The penalty under Article 193 cannot be treated to be suspended in case reference has been made under Article 192 and is pending. This clearly re-enforces our view that disqualification earned by a member under section 10A of the Representation of People Act, 1951 operates by virtue of powers given to Election Commission of India and is not in conflict with Article 192 or a decision taken by the Governor under Article 192. It is obvious that in event a decision is taken by the Governor that a member does not suffer from disqualification, the decision of the Governor is final.

From the above discussions, we are of the view that Section 10 A of the Representation of People Act, 1951 is not inconsistent with any of the provisions of Article 192 of the Constitution of India. The submission of learned Counsel for the petitioner that Section 10A is ultra-vires to the Article 192 has to be rejected.

Whether Election Commission of India can disqualify a Member of Legislative Assembly without there being reference under Article 129 of the Constitution?

We while considering the first issue has already come to the conclusion that Section 10A of the Representation of People Act, 1951 is not ultra vires to Article 192 of the Constitution of India. Section 10A of the Representation of People Act, 1951 is an independent jurisdiction conferred on Election Commission of India to disqualify a person who has failed to lodge account of election expenses within the time and in the manner required by Section 77 of the Representation of People Act, 1951 and has no good reason or justification for the failure. It is relevant to note that Election Commission of India can exercise jurisdiction under Section 10A of the Representation of People Act, 1951 not only against an elected Member of the Parliament and Legislative Assembly, but the said power can be exercised against any candidate who is obliged by Section 77 of the Representation of People Act, 1951 to submit an account of election expenses. Section 78 of the Representation of People Act, 1951 requires "Every contesting candidate at an election shall lodge with the District Election Officer an account of his election expenses". Thus the obligation is on every contesting candidate. This is with an object and purpose to ensure that any individual or any political party, howsoever small, may be able to contest an election on footing of equality with any other individual or political party, howsoever rich and well financed and no individual or political party should be able to secure an advantage over others by reason of its superior financial strength. The object further is to eliminate the influence of big money in the electoral process. Thus the object and purpose of Section 10A of the Representation of People Act, 1951 is entirely different. Learned counsel for the petitioner submitted that power under Section 10A of the Representation of People Act, 1951 can be exercised only when a reference under Section 192 of the Constitution is made by the Governor of the State. We have noted above that reference under Article 192 is to be made by the Governor when a question arises i.e. a dispute arises regarding disqualification of a Member. There may be large number of cases where no dispute is raised by any one, can it be said that in those cases the Election Commission of India cannot proceed under Section 10A till a reference is made by the Governor, the answer obviously is "no". This can be illustrated by an example. Take a case where a Member of Legislative Assembly is convicted by a competent Court for an offence under Section 376 of I.P.C. and the candidate does not within three months files an appeal challenging the conviction order and does not raise any question with regard to his conviction. Whether the Election Commission of India should wait for a reference under Article 192, the answer obviously is "no". The jurisdiction of the Election Commission of India under Section 10A of the Representation of People Act, 1951 and power of the Governor under Article 192 of the Constitution are separate and for different purpose and object. We thus are of the view that Election Commission of India can exercise its jurisdiction under Section 10A of the Representation of People Act, 1951 without there being any reference under Article 192 of the Constitution of India.

Whether the proceedings under Section 10A of the Representation of People Act, 1951 can be initiated only when a report under Rule 89 of the 1961 Rules is sent by the District Election Officer?

Sri Ravi Kant, learned counsel for the petitioner has emphatically submitted that Election Commission of India could not have initiated the proceedings under Section 10A of the Representation of People Act, 1951 after receipt of the order dated 31st March, 2010 of the Press Council of India. He submits that no report under Rule 89 of the 1961 Rules was submitted by the District Election Officer that petitioner has not filed his return as required by Section 77 of the Representation of People Act, 1951, hence the Election Commission of India had no jurisdiction to issue show cause notice dated 22nd June, 2010.

Before we answer the above question, it is relevant to notice the relevant statutory scheme of the Representation of People Act, 1951. Section 10A of the Representation of People Act, 1951 begins with the words "If the Election Commission is satisfied...". The words used in Section 10A provides that Election Commission of India can disqualify for a period of 3 years if it is satisfied that a person has failed to lodge an account of election expenses within the time in the manner and has no good reason or justification of the failure. The word 'satisfied' has been used in Section 10A in context of an order of disqualification which is contemplated in the said section. Section 10A of the Representation of People Act, 1951 does not contain any limitation for exercise of power as contended by learned counsel for the petitioner. Sri Ravi Kant submits that the 1961 Rules, which have been framed, provides the manner and procedure for exercise of power under Section 10A and unless report, as contemplated by Rule 89 of the 1961 Rules, is not submitted by the District Election Officer, the Election Commission of India has no jurisdiction to proceed. He further submits that things required by the statute to be done in a particular manner, has to be done in the said manner or not at all.

It is useful to look into Rule 89 of the 1961 Rules which contemplates report by the District Election Officer. Rule 89, which is relevant in the present case, is quoted below:-

"89. Report by the district election officer as to the lodging of the account of election expenses and the decision of the Election Commission thereon.-(1) As soon as may be after the expiration of the time specified in section 78 for the lodging of the accounts of election expenses at any election, the district election officer shall report to the Election Commission-

(a) the name of each contesting candidate;

(b) whether such candidate has lodged his account of election expenses and if so, the date on which such account has been lodged; and

(c) whether in his opinion such account has been lodged within the time and in the manner required by the Act and these rules.

(2) Where the district election officer is of the opinion that the account of election expenses of any candidate has not been lodged in the manner required by the Act and these rules, he shall with every such report forward to the Election Commission the account of election expenses of that candidate and the vouchers lodged along with it.

(3) Immediately after the submission of the report referred to in sub-rule (1) the district election officer shall publish a copy thereof affixing the same to his notice board.

(4) As soon as may be after the receipt of the report referred to in sub-rule (1) the Election Commission shall consider the same and decide whether any contesting candidate has failed to lodge the account of election expenses within the time and in the manner required by the Act and these rules.

(5) Where the Election Commission decides that a contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act and these rules it shall by notice in writing call upon the candidate to show cause why he should not be disqualified under section 10A for the failure.

(6) Any contesting candidate who has been called upon to show cause under sub-rule (5) may within twenty days of the receipt of such notice submit in respect of the matter a representation in writing to the Election Commission, and shall at the same time send to district election officer a copy of his representation together with a complete account of his election expenses if he had not already furnished such an account.

(7) The district election officer shall, within five days of the receipt thereof, forward to the Election Commission the copy of the representation and the account (if any) with such comments as he wishes to make thereon.

(8) If, after considering the representation submitted by the candidate and the comments made by the district election officer and after such inquiry as it thinks fit, the Election Commission is satisfied that the candidate has no good reason or justification for the failure to lodge his account, it shall declare him to be disqualified under section 10A for a period of three years from the date of the order, and cause the order to be published in the Official Gazette."

It is true that Rule 89 of the 1961 Rules contemplates sending of report by the District Election Officer after expiration of the time specified in Section 78 of the Representation of People Act, 1951 for lodging of the account of election expenses. Rule 89 has been made for the purpose that Election Commission of India may have information regarding compliance of the provisions of Section 77 and 78 of the Representation of People Act, 1951. Rule 89(2) further provides that "where the District Election Officer is of the opinion that the account of election expenses of any candidate has not been lodged in the manner required by the Act..." Thus the District Election Officer is to report to the Election Commission of India when he is of the opinion that account of election expenses of any candidate has not been lodged in the manner required by the Act. The report submitted by the District Election Officer is on the basis of his opinion. In case the argument of the petitioner's counsel is accepted that unless the report is sent by the District Election Officer to the Election Commission of India, the Election Commission of India has no jurisdiction to take any action under Section 10A of the Representation of People Act, 1951, then the power and jurisdiction of the Election Commission of India shall be fettered by the opinion of the District Election Officer. The Election Commission of India may differ in its opinion with the opinion of the District Election Officer. In a case where the District Election Officer does not report any non compliance of Sections 77 and 78, the Election Commission of India cannot be held to be powerless to take any action under Section 10A of the Representation of People Act, 1951. Accepting the submission of the petitioner's counsel shall be to shackle and restrict the jurisdiction of the Election Commission of India under Section 10A of the Representation of People Act, 1951 which cannot be held to be legislative intention. Section 10A of the Representation of People Act, 1951 by taking its plain and simple meaning does not contemplate any such restriction. The 1961 Rules have been framed to implement and carry forward the purpose and object of the Representation of People Act, 1951. The rules cannot be read in a manner to restrict or limit the exercise of power under the Act.

Rule 89 of the 1961 Rules cast a public duty on the District Election Officer to submit a report whenever he is of the opinion that there has been breach of Sections 77 and 78 of the Representation of People Act, 1951. In case he fails in performance of his duty, it cannot be said that the Election Commission of India is powerless to take any action. To accept the submission of the petitioner's counsel shall be to permit the object of Section 10A of the Representation of People Act, 1951 to be defeated. It is well settled that when a statute enjoins performance of public duty and there are no control on performance of the said duty by public in general, the said performance of duty is directory. In Maxwell on the Interpretation of Statutes, 10th Edn. at page 381, following has been said:-

"On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them."

The Privy Council in the case of Montreal Street Rly. Co. vs. Normandin reported in AIR 1917 PC 142 had laid down the proposition in following words:-

"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice go persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."

Before the Federal Court in the case of Vishvanath Khemka vs. Emperor reported in AIR 1945 FC 67, a question arose as to whether grant of magisterial powers without consultation of the Chief Presidency Magistrate shall vitiate the appointment of Magistrate in a case where no consultation with the Chief Presidency Magistrate was made. In the said case the District Magistrate was not consulted before the appointment as required by Section 256. The Federal Court relying on on the judgment of the Privy Council in Montreal Street Rly. Co. vs. Normandin case (supra) rejected the submission in following words:-

"We are further of the opinion that the direction laid down in Section 256 is directory and not mandatory and that non-compliance with it would not render an appointment otherwise regularly and validly made ineffective or inoperative. It seems to us that any other view would lead in many cases to results which could not have been intended by Parliament and would entail general inconvenience and injustice to persons who have no control over those entrusted with the duty of making recommendations for the grant of magisterial powers: see Montreal Street Railway Co. v. Normandin (17)4 AIR 1917 P.C. 142."

The Apex Court had occasion to consider the principles of statutory interpretation in the case of T.V. Usman vs. Food Inspector, Tellicherry Municipality, Tellicherry reported in (1994)1 SCC 754. In the aforesaid case Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 came for consideration. The said rule required submission of report by the Public Analyst within a period of 45 days. The issue was as to whether the requirement of rule are mandatory and whether in no circumstances full rigour of of the said rule should be permitted to be relaxed. In the above context following was laid down by the Apex Court in paragraphs 8, 9, 10 and 14 of the said judgment:-

"8. In Maxwell on Interpretation of Statutes, Eleventh Edition, at page 362 it is suited as under:

'Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained as to the intention; that is to say, such a requirement would be imperative.'

It is further stated on page 364 that:

'The general rule is, that an absolute enactment mast be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.

XXX XXX XXX

When a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative.'

In Craies' Statute Law, Seventh edition at page 62 it is stated thus:

'When a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory.'

9. At page 250 it is further states thus:

'The question whether the provisions in a statute are directory or imperative has frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at.... When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious general inconvenience or injustice to persons who/have no control over the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable not affecting the validity of acts done.'

10. In Dattatraya v. State of Bombay it was held as under:

'Generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only; the neglect of them not affecting the validity of the acts done.'

14. In Craies' Statute Law, VIII Edn. at page 262 it is stated thus:

'It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.... That in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory.'"

The Conduct of Election Rules, 1961 have been framed under Section 169 of the Representation of People Act, 1951. The Rules have been made for carrying out the purposes of the Act. The Rules are made with intent and object to give effect to the purpose of the Act. The Rules have to be interpreted in a manner which may advance the object and purpose of the Act. The Rules cannot be interpreted in a manner which may limit the scope of statutory power given in the Act. In several decisions the Apex Court has clearly laid down that procedural enactments should be construed liberally and in such a manner so as to render the enforcement of a substantive right effectively. In the case of N.T. Veluswami Thevar vs. G. Raja Nainar and others, reported in A.I.R. 1959 SC 422 following was laid down by the Apex Court in paragraph 8:-

"8. ........It is a sound rule of construction that procedural enactments should be construed liberally and in such manner as to render the enforcement of substantive rights effective. Readings s. 100(1)(c) in the context of the whole enactment, we think that an enquiry before the Tribunal must embrace all the matters as to qualification and disqualification mentioned in s. 36(2), and that it cannot be limited to the particular ground of disqualification which was taken before the returning officer."

Again in the case of Mahadev Govind Gharge and others vs. Special Land Acquisition Officer reported in 2011(6) SCC 321, the Apex Court had occasion to consider a procedural provision of Code of Civil Procedure. The Apex Court laid down following in paragraphs 17, 18 and 37 of the said judgment:-

"17. In the case of Sardar Amarjit Singh Kalra (dead) by LRs., v. Pramod Gupta (Smt.) (dead) by LRs. and others [2003 (3) SCC 272], a Constitution Bench of this court held:

'26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice.'

18. Similar views are also expressed by this Court in the case of The State of Punjab and another v. Shamlal Murari and another [(1976) 1 SCC 719] where the Court held as under:-

"8...We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities.'

37. Procedural laws, like the Code, are intended to control and regulate the procedure of judicial proceedings to achieve the objects of justice and expeditious disposal of cases. The provisions of procedural law which do not provide for penal consequences in default of their compliance should normally be construed as directory in nature and should receive liberal construction. The Court should always keep in mind the object of the statute and adopt an interpretation which would further such cause in light of attendant circumstances. To put it simply, the procedural law must act as a linchpin to keep the wheel of expeditious and effective determination of dispute moving in its place. The procedural checks must achieve its end object of just, fair and expeditious justice to parties without seriously prejudicing the rights of any of them."

In view of the above Rule 89 of the 1961 Rules cannot be interpreted in a manner so as to restrict the power of the Election Commission of India under Section 10A of the Representation of People Act, 1951 and make it dependent only on submission of report under Rule 89 of the 1961 Rules. The Election Commission of India under Article 324 of the Constitution of India has been entrusted superintendence, direction and control of election. The constitutional provision entrusts the power of superintendence, direction and control of election on the Election Commission of India and making it dependent on the report of District Election Officer shall be defeating the very purpose and object of the Act for which the Election Commission of India has been entrusted with such wide power. As noted above, Section 10A of the Representation of People Act, 1951 does not contain any restriction on exercise of power. We are of the view that power under Section 10A of the Representation of People Act, 1951 can be exercised by the Election Commission of India on the basis of any information received from any other person or authority or the power can be exercised suo motu by the Election Commission of India. If the argument of the petitioner's counsel is accepted that Election Commission of India can exercise its power only on the report of the District Election Officer, the Commission can also not exercise power suo motu. It is well settled that when an authority is entrusted with a power and jurisdiction under the Act it can exercise the said power suo motu unless there is any provision to the contrary. Thus we are of the view that submission of petitioner's counsel that Election Commission of India can exercise power only on the report of District Election Officer cannot be accepted. The Election Commission of India was well within its jurisdiction to initiate proceeding under Section 10A of the Representation of People Act, 1951 after receipt of the order by the Press Council of India by letter dated 31st March, 2010.

There is one more reason due to which the submission of the petitioner's counsel cannot be accepted. The Election Commission of India after receipt of the order of the Press Council of India dated 31st March, 2010 called for a report from the Chief Electoral Officer vide its letter dated 4th May, 2010. The Election Commission of India in its supplementary counter affidavit-II has filed the copy of the letter dated 4th May, 2010 calling for a report from the Chief Electoral Officer. Following information was solicited from the Chief Electoral Officer:-

"I am directed to state that following information may please be sent to the Commission urgently:-

1.Expenditure incurred by Smt. Umesh Yadav, candidate of Rashtriya Parivartan Dal from 24 -Bisauli Assembly Constituency of Uttar Pradesh Legislative Assembly on advertisement in the newspapers dated 17/4/2007 (Amar Ujala, Dainik Jagran), copies of press cuttings enclosed.

2.Whether any intimation U/S 127A of Representation of People Act, 1951 was received in respect of above mentioned advertisement or not."

The Chief Electoral Officer in turn called a report from the District Election Officer, Budaun about the aforesaid information. The District Election Officer, Budaun vide his letter dated 9th May, 2010 forwarded his report on the above subject to the Chief Electoral Officer. The report of the District Election Officer dated 9th May, 2010 was forwarded by the Chief Electoral Officer, Lucknow to the Election Commission of India by letter dated 10th May, 2010. The letter dated 10th May, 2010 as well as the report of the District Election Officer dated 9th May, 2010 have been brought on record as Annexure SCA-2 to the supplementary counter affidavit of the Election Commission of India. The Election Commission of India issued notice to the petitioner under Section 10A of the Representation of People Act, 1951 on 22nd June, 2010 which notice has been filed as Annexure-7 to the writ petition. It is, thus, clear that before issuing the notice the Election Commission of India called for the report from the Chief Electoral Officer who forwarded the report of the District Election Officer to the Election Commission of India by letter dated 10th May, 2010. The District Election Officer reported in his report dated 9th May, 2010 that "Thus expenditure for referred advertisement published on 17.4.2007 is not clear as per Account of Election expenditure submitted by candidate". The exercise of power by the Election Commission of India in issuing notice dated 22nd June, 2010 was after receiving the report of the District Election Officer, hence we do not find any infirmity in the proceeding initiated by the Election Commission of India under Section 10A of the Representation of People Act, 1951.

Whether the account of expenditure submitted by the petitioner was in accordance with Section 77 of the Representation of People Act, 1951?

Whether the conditions for passing an order disqualifying the petitioner under Section 10A were fulfilled in the facts of the present case?

The Issue Nos.4 and 5 being related issues, are taken together for consideration. Section 77 of the Representation of People Act, 1951, which is relevant in the present case, is quoted below:-

"77. Account of election expenses and maximum thereof.--(1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between 2[the date on which he has been nominated] and the date of declaration of the result thereof, both dates inclusive.

[Explanation 1.--For the removal of doubts, it is hereby declared that--(a) the expenditure incurred by leaders of a political party on account of travel by air or by any other means of transport for propagating programme of the political party shall not be deemed to be the expenditure in connection with the election incurred or authorised by a candidate of that political party or his election agent for the purposes of this sub-section.

(b) any expenditure incurred in respect of any arrangements made, facilities provided or any other act or thing done by any person in the service of the Government and belonging to any of the classes mentioned in clause (7) of section 123 in the discharge or purported discharge of his official duty as mentioned in the proviso to that clause shall not be deemed to be expenditure in connection with the election incurred or authorised by a candidate or by his election agent for the purposes of this sub-section.

Explanation 2.--For the purposes of clause (a) of Explanation 1, the expression "leaders of a political party", in respect of any election, means,--

(i) where such political party is a recognised political party, such persons not exceeding forty in number, and

(ii) where such political party is other than a recognised political party, such persons not exceeding twenty in number, whose names have been communicated to the Election Commission and the Chief Electoral Officers of the States by the political party to be leaders for the purposes of such election, within a period of seven days from the date of the notification for such election published in the Gazette of India or Official Gazette of the State, as the case may be, under this Act:

Provided that a political party may, in the case where any of the persons referred to in clause (i) or, as the case may be, in clause (ii) dies or ceases to be a member of such political party, by further communication to the Election Commission and the Chief Electoral Officers of the States, substitute new name, during the period ending immediately before forty-eight hours ending with the hour fixed for the conclusion of the last poll for such election, for the name of such person died or ceased to be a member, for the purposes of designating the new leader in his place.

(2) The account shall contain such particulars, as may be prescribed.

(3) The total of the said expenditure shall not exceed such amount as may be prescribed."

It is relevant to note that Section 77 was amended by the Parliament by several amendments including amendment by Act No.58 of 1974 and Act No.46 of 2003. Section 77, as quoted above, is the provision which was in force at the relevant date. Explanation-I and II to sub-section (1) of Section 77 were first added by Act No.58 of 1974. Section 77 of the Representation of People Act, 1951 was elaborately considered by the Apex Court in the case of Kanwar Lal Gupta vs. Amarnath Chawla and others reported in AIR 1975 SC 308. While explaining the purpose and object of Section 77 following was laid down in paragraphs 9 and 10 of the said judgment:-

"9. ..... The object of the provision limiting the expenditure is two- fold. In the first place, it should be open to individual or any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and well financed it may be, and no individual or political party should be able to secure an advantage over others by reason of its superior financial strength. It can hardly be disputed that the way elections are held in our country, money is bound to play an important part in the successful prosecution of an election campaign. Money supplies "assets for advertising and other forms of political solicitation that increases the candidate's exposure to the public." Not only can money buy advertising and canvassing facilities such as hoardings, posters, handbills, brochures etc. and all the other paraphernalia of an election campaign, but it can also provide the means for quick and speedy communications and movements and sophisticated campaign techniques and is also "a substitute for energy" in that paid workers can be employed where volunteers are found to be insufficient. The availability of large funds does ordinarily tend to increase the number of votes a candidate will receive. If, therefore, one political party or individual has larger resources available to it than another individual or political party, the former would certainly, under the present system of conducting elections, have an advantage over the latter in the electoral process. The former would have a significantly greater opportunity for the propagation of its programme while the latter may not be able to make even an effective presentation of its views. The availability of disproportionately larger resources is also likely to lend itself to misuse or abuse for securing to the political party or individual possessed of such resources, undue advantage over other political parties or individuals. Douglas points out in his book called Ethics in Government at page 72, "if one party ever attains overwhelming superiority in money, newspaper support, and (government) patronage, it will be almost impossible, barring an economic collapse, for it ever to be defeated." This produces anti-democratic effects in that a political party or individual backed by the affluent and wealthy would be able to secure a greater representation than a political party or individual who is without any links with affluence or wealth. This would result in serious discrimination between one political party or individual and another on the basis of money power and that in its turn would mean that "some voters are denied an 'equal' voice and some candidates are denied an "equal chance". It is elementary that each and every citizen has an inalienable right to full and effective participation in the political process of the legislatures and this requires that each citizen should have equally effective voice in the election of the members of the legislatures. That is the basic requirement of the Constitution. This equal effective voice--equal opportunity of participation in the electoral process-would be denied if affluence and wealth are to tilt the scales in favour of one political party or individual as against another. The democratic process can function efficiently and effectively for the benefit of the common good and reach out the benefits of self-government to the common man only if it brings about a participatory democracy in which every man, howsoever lowly or humble he may be, should be able to participate on a footing of equality with others. Individuals with grievances, men and women with ideas and vision are the sources of any society's power to improve itself. Government by consent means that such individuals must eventually be able to find groups that will work with them and must be able to make their voices heard in these groups and no group should be insulated from competition and criticism. It is only by the maintenance of such conditions that democracy can thrive and prosper and this can be ensured only by limiting the expenditure which may be incurred in connection with elections, so that, as far as possible, no one single political party or individual can have unfair advantage over the other by reason of its larger resources and the resources available for being utilised in the electoral process are within reasonable bounds and not unduly disparate and the electoral contest becomes evenly matched. Then alone the small man will come into his own and will be able to secure proper representation in our legislative bodies.

10. ..... The small man's chance is the essence of Indian democracy and that would be stultified if large contributions from rich and affluent individuals or groups are not divorced from the electoral process. It is for this reason that our Legislators, in their wisdom, enacted a coiling on the expenditure which may legitimately be incurred in connection with an election. This background must inform the court in the interpretation of this vital and significant provision in the election law of our country.

When earlier Explanation-I was added after the judgment of the Apex Court in Kanwar Lal Gupta's case (supra) in Section 77 it was provided that any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any other association or body or person or by any individual shall not ever been deemed to have been, expenditure in connection with the election incurred or authorised by the candidate. Explanation-I added by Act No.58 of 1974 with effect from 19th October, 1974, was as follows:-

Explanation 1.- Notwithstanding any judgment, order or decision of any Court to the contrary, any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual (other than the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorised by the candidate or by his election agent for the purpose of this sub-section:"

The Apex Court in the case of Common Cause A registered Society vs. Union of India and others reported in (1996)2 SCC 752 had occasion to consider the provisions of Section 77 of the Representation of People Act, 1951 while considering public interest litigation filed under Article 32 of the Constitution of India. The contention raised before the Apex Court in the above public interest litigation was that mandatory provisions of law are being violated by political parties with impunity. Following was laid down by the Apex Court in paragraph 23 of the said judgment:-

23. ..... There can be no dispute that the expenditure incurred by a candidate himself would squarely fall under Section 77(1) of the RP Act. There can also be no dispute with the proposition that the expenditure actually incurred and spent by a political party in connection with the election of a candidate cannot be treated to be the expenditure under Section 77(1) of the Act. The questions however, for determination is what rule of evidence is to be followed to attract the provisions of Explanation I to Section 77 of the RP Act? The said Explanation is in the nature of an exception to sub- Section I of Section 77. A candidate in the election who wants to take the benefit of Explanation 1 to Section 77 of the RP Act - in any proceedings before the Court - must prove that the said expenditure was in fact incurred by the political party and not by him. Any expenditure in connection with the election of a candidate which according to him has been incurred by his political party shall be presumed to have been authorized by the candidate or his election agent. But the presumption is rebuttable. The candidate shall have to show that the said expenditure was in fact incurred by a political party and not by him. The candidate shall have to rebut the presumption by the evidentiary - standard as applicable to rebuttable presumptions under the law of evidence. An entry in the books of account of a political party maintained in accordance with Section 13A of the Income Tax Act showing that the party has incurred expenditure in connection with the Section of a candidate may by itself be sufficient to rebut the presumption. On the other hand, the ipse-dixit of the candidate or writing at the bottom of the pamphlet, poster, cut-out, hoarding, wall painting, advertisement and newspaper etc. that the same were issued by the political party may not by itself be sufficient to rebut the presumption. We, therefore, hold that the expenditure (including that for which the candidate is seeking protection under Explanation I to Section 77 of RP Act) in connection with the election of a candidate - to the knowledge of the candidate or his election agent shall be presumed to have been authorized by the candidate or his election agent. It shall, however, be open to the candidate to rebut the presumption in accordance with law and to show that part of the expenditure or whole of it was in fact incurred by the political party to which he belongs or any other association or body of persons or by an individual (other than the candidate or his election agent)...."

The ultimate directions, which are relevant for the present case, were issued by the Apex Court in paragraph 28(6) which is quoted below:-

"26. We, therefore, hold and direct as under:

..........

6. That the expenditure, (including that for which the candidate is seeking protection under Explanation to Section 77 of the RP Act) in connection with the election of a candidate - to the knowledge of the candidate or his election agent - shall be presumed to have been authorized by the candidate or his election agent. It shall, however, be open to the candidate to rebut the presumption in accordance with law and to show that part of the expenditure or whole of it was in fact incurred by the political party to which he belongs or by any other association or body of persons or by an individual (other than the candidate or his election agent). Only when the candidate discharges the burden and rebuts the presumption he would be entitled to the benefit of Explanation 1 to Section 77 of the RP Act.

After the judgment of the Apex Court, the Representation of People Act, 1951 was again amended in the year 2003 by Act No.46 of 2003. After noticing the statutory provisions, let us look into the facts of the present case and pleadings on the record relating to account of expenses filed by the petitioner.

As noted above, the main issue before the Election Commission of India was as to whether the expenditure expenses incurred for publishing two advertisements on 17th April, 2007 in the newspapers 'Amar Ujala' and 'Dainik Jagaran' were shown in the account of expenses submitted by the petitioner under Section 78 of the Representation of People Act, 1951. There is no dispute between the parties that advertisement was published on 17th April, 2007 in the aforesaid two newspapers. Copy of the advertisements have been filed as Annexure-1 and 2 to the writ petition. The Election Commission of India has specifically considered the advertisement published in the newspaper 'Dainik Jagaran' on 17th April, 2010. The advertisement in the newspaper is in a block and in the bottom of the block the word 'Advt' has been mentioned. However, the advertisement has been disguised as a news item and the newspaper publication mentions that leaning of voters of Bisauli constituency is in favour of Smt. Umlesh Yadav, the petitioner. In the advertisement name of petitioner has been mentioned in several places and also the names of large number of persons have been mentioned quoting their view that they are in favour of the petitioner. The said publication mentions that voters have now decided to elect Smt. Umlesh Yadav, the petitioner. The details of publishing the said news item in the newspaper 'Dainik Jagaran' was called by the Election Commission of India. Both before the Press Council of India and the Election Commission of India, the newspaper 'Dainik Jagaran' stated that aforesaid news publication was an advertisement for which a bill of Rs.21,250/- in the name of Pramod Mishra was issued and client name was mentioned as D.P. Yadav and the amount was paid in cash. Similar advertisement was published in the newspaper 'Amar Ujala' on 17th April, 2007 which advertisement was also in a block. The advertisement although was disguised as a news item but was in a block. In the bottom of the block there was another small block with the heading 'Appeal' and in the bottom the word 'Advt.' was mentioned. The newspaper was submitted before the Election Commission of India as well as Press Council of India stating that the same was advertisement in the newspaper for which a bill of Rs.8,000/- in the name of D.P. Yadav was issued and paid. Both the newspapers have submitted that materials for publication of advertisement was provided on behalf of the petitioner and the material was not collected by correspondents of the newspapers. The petitioner's case before the Election Commission of India was that only an appeal was published by the party from which the petitioner was contesting on 17th April, 2007 for which an amount of Rs.840/- was paid and bill was also issued by the newspapers of Rs.840/-. Petitioner's case is that the said bill was drawn in the name of D.P. Yadav, the husband of the petitioner who was also the President of Rashtriya Parivartan Dal. The petitioner in this writ petition has come with specific plea that aforesaid two news publications were published by the party i.e. the Rashtriya Parivartan Dal and the expenditure of the aforesaid news publication was paid and borne by the party. Paragraph 6 of the writ petition which contains the said pleading is quoted below:-

"6. That at this juncture, it may be stated here that the aforesaid two news publications were published by the Party, which the petitioner belong to, viz., Rashtriya Pariwartan Dal and the expenditure for the aforesaid news publications were paid and borne by the Party. The photostat copies of the aforesaid two news publications as published in 'Amar Ujala' and 'Dainik Jagaran' dated 17.04.2007 are being annexed herewith and marked as Annexure - 1 and 2, respectively, to this writ petition."

In the writ petition, the petitioner has now having come with the plea that advertisements were got published by Rashtirya Parivartan Dal and the payment of publication was borne by the party, now the question to be considered is as to whether expenses incurred by the party for publishing the advertisement can be held to be expenses incurred or authorised by the petitioner.

As noted above, Section 77 of the Representation of People Act, 1951, as amended from time to time, Explanation-I which was added by Act No.58 of 1974 provides that expenditure incurred by a political party was not to be deemed to be expenditure incurred or authorised by the candidate. While considering Explanation-I, as it existed after amendment made in the year 1974, the Apex Court had laid down that even if the expenses are claimed by a party, the presumption shall be that expenses had been incurred or authorised by the candidate which presumption, however, is rebuttable. The petitioner having come up with the case himself that expenses were borne by the political party, let us examine as to whether the said expenses can be treated to be expenses incurred or authorised by the candidate.

Section 77 of the Representation of People Act, 1951, as amended by Act No.46 of 2003, Explanation-I, clearly provides that expenditure incurred by the leaders of political party on account of travel by air or by any other means of transport for propagating programme of the political party shall not be deemed to be expenditure in connection with the election incurred or authorised by a candidate of that political party. Thus now expenses of only limited category incurred by political party is not treated as expenses incurred or authorised by the candidate. The present is not a case which can be said to be covered by Explanation 1(a) of Section 77 of the Representation of People Act, 1951. Thus the expenses incurred for publishing the advertisement in the newspapers on 17th April, 2007 are expenses which have to be treated to be incurred or authorised by the candidate by virtue of Section 77 of the Representation of People Act, 1951 and the expenses are not covered by exception as engrafted in Explanation-I. The Election Commission of India, after considering all materials on the record, has recorded a finding that the expenses were required to be shown in the account of expenditure of the candidate. The petitioner has filed the account of expenditure as Annexure-5 to the writ petition. In the account of expenditure submitted by the petitioner neither it is claimed that amount incurred in the above advertisement was shown by the petitioner in her account of expenditure nor it is even claim that expenditure was incurred by the petitioner. The petitioner's clear case is that the aforesaid expenditure was incurred by the political party of which petitioner was a candidate. As per the law laid down by the Apex Court in the abovenoted cases and the pleadings on the record, it is clear that the aforesaid expenses cannot be treated to be expenses which were not required to be shown in the account of expenditure of the petitioner. The petitioner, thus, has to be held to have incurred/authorise the expenses for publication of the aforesaid advertisement which having not been shown in her account, the account of expenditure submitted by the petitioner is clearly untrue and breach was committed by the petitioner of Section 77 of the Representation of People Act, 1951.

Learned counsel for the petitioner has also referred to several judgments of the Apex Court on Section 77 of the Representation of People Act, 1951. The first judgment relied by the counsel for the petitioner is in the case of Ram Dayal vs. Brij Raj Singh and others reported in AIR 1970 SC 110. In the said case it was laid down that unless it is established that the expenditure was incurred in connection with the election by the candidate or by his election agent or was authorised by him, it is not liable to be included under Section 77 of the Representation of People Act, 1951. In the said case issue was as to whether canvassing activities carried on by the Maharaja and the Rajmata with the candidature of Brijraj Singh can be treated to be expenditure incurred by Brijraj Singh. Following was laid down by the Apex Court in paragraph 18 of the said judgment:-

"18. In the absence of any connection between the canvassing activities carried on by the Maharaja and the Rajmata with the candidature of Brijraj Singh, it is impossible to hold that any expenditure was incurred for Brijraj Singh which was liable to be included in the election expenses of the first respondent. Under s. 123(6) of the Representation of the People Act, 1951, the incurring or authorizing of expenditure in contravention of S. 77 is -a corrupt practice and s. 77 provides, insofar as it is material "(1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.

(2) * * * * * * *

(3) The total of the said expenditure shall not exceed such amount as may be prescribed." Unless it is established that the expenditure was incurred in connection with the election by the candidate or by his, election agent or was authorised by him it is not liable to be included under s. 77 of the Representation of the People Act. We agree with the High Court that under s. 77(1) only the expenditure incurred or authorised by the candidate himself or by his election agent is required to be included in the account or return of election expenses and thus expenses incurred by any other agent or person without any- thing more need not be included in the account or return, as such incur-ring of expenditure would be purely voluntary. Assuming that expenditure was incurred by the Maharaja and the Rajmata for the purpose of canvassing votes against Raja Pancham Singh, in the absence of any evidence to show that the Maharaja and the Rajmata of Gwalior acted as election agents of Brijraj Singh or the expenditure was authorised by Brijraj Singh it was not liable to be included in the account of the election expenses."

The Apex Court in the said case held that even if it is assumed that expenditure was incurred by the Maharaja and the Rajmata for the purpose of canvassing but without there being any evidence to show that Maharaja and Rajmata acted as election agent of Brijraj Singh or the expenditure was authorised by Brijraj Singh, it was not liable to be included in the account of election expenses. There cannot be any dispute to the proposition laid down by the Apex Court in the said judgment. The said judgment is clearly distinguishable and has no application in facts of the present case.

Learned counsel for the petitioner has also relied on another judgment of the Apex Court in the case of Magraj Patodia vs. K. Birla and others reported in A.I.R. 1971 SC 1295. In the said case the Apex Court laid down that expenses incurred by any other agent or person without anything more need not be included in the account or return as such incurring of expenditure would be purely voluntary.

Further reliance has been placed by the learned counsel for the petitioner on the judgment of the Apex Court in the case of Gajanan Krishnaji Bapat and another vs. Dattaji Raghobaji Meghe and others reported in (1995)5 SCC 347 wherein referring to earlier judgment in Magraj Patodia's case (supra), following was laid down in paragraph 21:-

"21. In Magh Raj Patodia Vs R.K. Birla, [AIR 1971 SC 1295] after referring to a catena of authorities even before the inclusion of Explanation I to Section 77 of the Act by the Amendment Act 58 of 1974, it was emphasised that to prove the corrupt practice of incurring or authorising expenditure beyond the prescribed limit, it is not sufficient for the petitioner to merely prove that the expenditure beyond the prescribed limit had been incurred in connection with the election of the returned candidate, but he must go further and prove that the excess expenditure was authorised or incurred with the consent of the returned candidate or his election agent....."

The Election Commission of India has returned a finding that expenditure on the publication of news item in 'Dainik Jagaran' on 17th April, 2007 shall be deemed to have been authorised by the petitioner as it was incurred by her party i.e. Rashtriya Parivartan Dal.

Sri Ravi Kant, learned counsel for the petitioner has further contended that Election Commission of India in any view of the matter has not adverted to Section 10A(b) of the Representation of People Act, 1951. He submits that two conditions should have been satisfied before declaring a person disqualified. Firstly, he has failed to lodge an account required by the Representation of People Act, 1951 and secondly has no good reason or justification for failure. Sri Ravi Kant submits that Election Commission of India has not adverted to requirement as provided in Section 10A(b) of Representation of People Act, 1951. The submission of the learned counsel for the petitioner cannot be accepted in view of the fact that Election Commission of India has recorded a categorical finding that petitioner has no good reason for not filing the true return. It is useful to quote the finding of the Election Commission of India in the order impugned which is to the following effect:-

"28. Thus, having due regard to the totality of the facts and circumstances and the law on the subject contained in section 10A read with sections 77 and 78 of the Representation of People Act, 1951, the Commission is of the considered opinion, and accordingly holds, that Smt. Umlesh Yadav did not maintain a correct and true account of her election expenditure under section 77 in connection with her election to the Uttar Pradesh Legislative Assembly from 24-Bisuali Assembly Constituency held in April, 2007 and by filing such incorrect account of her election expenses with the District Election Officer, Badayun on 8th June, 2007 under section 78, she failed to lodge her account of election expenditure in the manner required by law within the meaning of section 10A of the said Act. The Commission is also satisfied that she has no good reason or justification for the said failure as, instead of admitting her failure, she has denied to have filed an incorrect account and defended her act of having filed an incorrect account..."

The Election Commission of India considered the entire facts and circumstances of the present case, the reply submitted by the petitioner on 22nd July, 2011 as well as the supplementary reply dated 4th April, 2011 and has rightly exercised its jurisdiction under Section 10A of the Representation of People Act, 1951 declaring the petitioner disqualified for three years. All the conditions for exercise of power under Section 10A of the Representation of People Act, 1951 were fully satisfied and we do not find any infirmity in the order of the Election Commission of India dated 20th October, 2011 which may warrant any interference by this Court in exercise of discretionary jurisdiction.

6. Whether principles of natural justice violated?

The last submission pressed by Sri Ravi Kant, counsel for the petitioner, is that petitioner was not given adequate opportunity by the Election Commission of India. He submits that the order of the Press Council of India dated 31st March, 2010 was not supplied to the petitioner as well as the statements which were given by the newspapers 'Amar Ujala' and 'Dainik Jagaran' before the Press Council of India. While noticing the facts of the present case, we have noted that Election Commission of India after receipt of the order of the Press Council of India dated 31st March, 2010, report dated 4th May, 2010 of the Chief Electoral Officer and also the report of the District Election Officer dated 9th May, 2010, has issued show cause notice to the petitioner on 22nd June, 2010. The notice dated 22nd June, 2010 is a very elaborate notice referring to the order of the Press Council of India and enclosing copy of the advertisement published on 17th April, 2007 and asked the petitioner to show cause. Following was the observation in the show cause notice:-

"Whereas, the Press Council of India vide their order no.14/58-59/-7-08 ECI (copy enclosed) forwarded a copy of the adjudication dated 31st March, 2010 wherein the Council held that 'on perusal of record and the report of the Inquiry Committee held the respondent newspapers Amar Ujala and Dainik Jagran guilty of ethical violations and adopting the observations of the Inquiry Committee. It cautioned the media to refrain from publishing news masquerading as advertisements and vice versa. It also decided that the adjudication along with all the case papers may be sent to the Election Commission of India for such action as deemed fit by them.

And whereas on perusal of order of Press Council of India, it is found that the news papers i.e. Amar Ujala and Dainik Jagran have submitted to the Press Council of India, in response to show cause notice dated 09.08.2007 that the publications dated 17.4.2007 in their news papers (copies enclosed) were your advertisements and not press reports, and they further admitted that the materials/information contained in the said advertisements were not collected by the journalists but furnished by the advertiser i.e. you and

Whereas on the perusal of your account of election expenses, it is observed that the expenditure incurred or release of these advertisements in the said news papers has not been reflects in the accounts filed by you; and

Whereas, the account so filed by you under Section 78 of Representation of People Act, 1951 appears to be not filed in the manner required by law, as actual expenditure incurred/authorised by you during election has not been truly reflected in the accounts so filed and this attracts disqualification U/s 10A of the said Act for a period of 3 years from the date of order of the Commission."

The petitioner replied the notice on 18th July, 2011. It was mentioned in the reply that copy of the order of the Press Council of India has not been received by the petitioner and the copy was not enclosed along with the notice, therefore, she has no knowledge of the contents. The Election Commission of India thereafter issued another letter dated 6th January, 2011 by which order of the Press Council of India dated 31st March, 2010 was forwarded. In the letter dated 6th January, 2011, the letter received from 'Dainik Jagaran' dated 12th September, 2010 and the letter dated 1st September, 2010 received from 'Amar Ujala' were also enclosed. Following was mentioned in the letter dated 6th January, 2011:-

"Please refer to you reply dated 22nd July, 2010 in response to the Commission's Notice No.491/EN/2010 dated 22nd June, 2010, I am directed to forward herewith the adjudication order of Press Council of India dated 31st March, 2010 on the complaint of Shri Yogendra Kumar, Ex-MLA and the candidate from Bisauli Assembly Constituency.

2. The Commission has gone through the Adjudication order of Press Council of India 31st March, 2010 and replies received from the Editor, Dainik Jagran, dated 12th September, 2010 and Amar Ujala publication ltd. dated 01.09.2010 (Copies enclosed) vis-a-vis account lodged by you U/s 78 of the R.P. Act, 1951 before District Election Officer, Badayaun in respect of the above mentioned election. It appears that the account lodged by you does not reflect true and correct disclosure of election expenditure."

The petitioner was thus given full opportunity by the Election Commission of India by giving detail show cause notice and supplying copy of the order of the Press Council of India dated 31st March, 2010 and the letters received from the newspapers 'Amar Ujal' and 'Dainik Jagaran'. Thus the submission of the petitioner's counsel that petitioner did not get adequate opportunity is without any substance.

One more relevant fact is to be noticed in this context. The allegation against the petitioner was that expenses incurred for publication of the advertisements in the newspapers dated 17th April, 2007 were not shown in her account of expenditure. The notice was issued to the petitioner for taking action under Section 10A of the Representation of People Act, 1951. The burden was on the petitioner to show that the expenditure towards aforesaid publication was added in the expenditure which was required to be shown by the petitioner in her account of expenditure. The advertisements were disguised as an news item which is apparent from a bare reading of contents of the newspaper publications dated 17th April, 2007 enclosed as Annexures-1 and 2 to the writ petition. A sharp practice was adopted to mislead the voters. The petitioner wanted to distant herself from the aforesaid misleading publication, hence she never claimed publication of advertisement. The expenditure of the aforesaid advertisement has to be held to be incurred or authorised by the petitioner. Learned counsel for the petitioner in support of his submission that principles of natural justice was violated, has relied on the judgment of the Apex Court in the case of Natwar Singh vs. Director of Enforcement Directorate and another reported in (2010)13 SCC 255. In the aforesaid case it was laid down that adverse materials are to be disclosed. Following was laid down in paragraph 29 and 48 of the said judgment:-

"29. It is thus clear that the extent of applicability of principles of natural justice depends upon the nature of inquiry, the consequences that may visit a person after such inquiry from out of the decision pursuant to such inquiry.

48. On a fair reading of the statute and the Rules suggests that there is no duty of disclosure of all the documents in possession of the Adjudicating Authority before forming an opinion that an inquiry is required to be held into the alleged contraventions by a noticee. Even the principles of natural justice and concept of fairness do not require the statute and the Rules to be so read. Any other interpretation may result in defeat of the very object of the Act. Concept of fairness is not a one way street. The principles of natural justice are not intended to operate as roadblocks to obstruct statutory inquiries. Duty of adequate disclosure is only an additional procedural safeguard in order to ensure the attainment of the fairness and it has its own limitations. The extent of its applicability depends upon the statutory framework. Hegde, J. speaking for the Supreme Court propounded: "In other words, they (principles of natural justice) do not supplant the law of the land but supplement it" [see A.K. Kraipak Vs. Union of India14]. Its essence is good conscience in a given situation; nothing more but nothing less [see Mohinder Singh Gill Vs. Chief Election Commissioner].

In facts of the present case, we are of the view that petitioner was disclosed the relevant materials. The relevant materials in the inquiry under Section 10A of the Representation of People Act, 1951 were publication of advertisement in the newspapers and the return which was submitted by the petitioner herself under Section 78 of the Representation of People Act, 1951. The petitioner has failed to prove any non compliance of principles of natural justice.

In view of the aforesaid, none of the submissions of the learned counsel for the petitioner has any substance. The writ petition lacks merit and is dismissed.

The parties shall bear their own costs.

Date: 3rd May, 2013.

Liyakat/Rakesh