D.C. Saxena vs Union Of India And Ors.
1993 Latest Caselaw 391 Del

JUDGMENT

D.P. Wadhwa, J.

(1) The petitioner says this petition is in the nature of public interest litigation. There are seven respondents. They are respectively Union of India through the Secretary in the Ministry of Home Affairs; Chief Election Commissioner; Shri Dinesh Singh, Minister for Foreign Affairs; Dr. Manmohan Singh, Minister for Finance; Mr.S.R.Bommai, President,JanataDal; Mr.R.K. Dhawan, MemberofParliament;andElectoral Registration Officer, Haryana. The petitioner has prayed as follows :-

(A)Writ, Order or Direction especially in the nature of Mandamus directing and commanding the Chief Election Commissioner, Respondent No.2, from taking any further steps including declaration of the election to Rajya Sabha from any seat representing the State of Haryana;

(B)Writ, Order or Direction in the nature of Quo Warrant to declaring the election of Respondents Nos. 3 to 6 to various seats in the Rajya Sabha to be null and void abinitio and prohibiting them from acting as Members of the Rajya Sabha and enjoying their rights and privileges pertaining thereto;

(C)Direction or Order to Respondent No.2 for taking appropriate action for grave dereliction of statutory duties in respect of nomination papers and inclusion as 'elector' of the Respondent Nos. 3 to 6, against Electoral Registration Officers of the States of Haryana, Assam, Andhra Pradesh and Orissa, and the respective Returning Officers;

(D)Direction that apart from being disqualified why the Respondents Nos. 3 to 6 should not be punished under Section 31 of the Representation of Peoples Act, 1950? and

(E)Award of exemplary costs against Respondents 3 to 6 to be paid to the petitioner.

(2) With the petition an application seeking interim relief was also filed. Here the petitioner sought an ad interim ex-parte order restraining the second respondent from taking any further steps for declaring the election to Rajya Sabha from Haryana; for sealing of all records pertaining to the proposed election of the third respondent including the record of the entering of the name of the third respondent in the electoral rolls of the constituencies in the State of Haryana where the third respondent had filed his nomination paper and it was accepted by the Returning Officer; and for issuing show cause notice to the seventh respondent as to why he should not be prosecuted under section 32 of the Representation of the People Act, 1950('Actof 1950' for short).

(3) When this petition was filed we issued notice to show cause to the respondents as to why rule nisi be not issued and also issued notice on the application for interim relief limited to respondents 1, 2, 3 and 7. Respondent No. 5 has not so far been served. None of the respondents filed their respective answers to show cause notice or replies to the application. They, however, submitted that it was not necessary to file any reply as they were raising a preliminary objection about the maintainability of the petition itself. We, therefore, heard the parties on this question.

(4) The petitioner alleged that Rajya Sabha, i.e., the Council of States, was envisaged as a chamber which would represent the interests of the States, and section 19 of the Act of 1950 laid down that for being an elector in any constituency in a State and by virtue of that-for election to the Rajya Sabha from that State, a person must be "ordinarily resident" in a constituency in that State. Section 20 of this Act spelled out as to who would be a person who would be ordinarily resident. Petitioner says that provisions of section 19 and 20 of the Act of 1950 as well as the provisions of the Representation of the People Act, 1951 ('Act of 1951' for short) have been violated and certain defeated and discredited politicians had been seeking berths to Rajya Sabha from States with which they were not even remotely connected. Petitioner pointed out that some of the respondents are even Ministers in the Central Cabinet whose oath of office itself enjoins upon them to uphold the Constitution and the Laws, but the petitioner states that they have no such moral compunction in seeking safe berths in the Rajya Sabha. Then the petitioner pointed out that in a leading National daily of the country an editorial was written titled "Devaluing Rajya Sabha". In the petition the petitioner referred to Article 51A of the Constitution which prescribes fundamental duties for every citizen of India. Petitioner said the respondents 3,4,5 and 6 could not, therefore, validly represent the States from which they had been elected to the Rajya Sabha. Apart from seeking the abovementioned reliefs, the petitioner also sought a writ of quo warranto against them on the ground that their election was null and void abinitio.

(5) This petition was filed on 5 July 1993 and came up for admission on the following day when we issued notice for this day. At the outset it was pointed out to us that a declaration under sub-section(2)of section 53of the Act of 1951 had been issued on 3 July 1993 declaring that the third respondent had been duly elected to the Rajya Sabha. "The address of the third respondent in this notification is given as House No. 108/1, Village and Post Office Dhankot, Tehsil and District Gurgaon (Haryana). Petitioner said this was a fraudulent act and notification was issued to make the present writ petition infructuous. We do not think that to be so. Notification under section 39 of the Act of 1951 for holding of election in the case of third respondent for filling up seat in the Rajya Sabha from the State of Haryana was issued on 23 June 1993, the date for nomination was 30 June 1993, scrutiny was to be on 1 July 1993 and 3July 1993 was the date of with drawal. Since the third respondent was the only person whose papers were validly filed, declaration electing him- was issued on 3July 1993 itself, It was stated in the notification dated 23 June 1993 that in case it was necessary poll, if any, will be held on 12 July 1993. That contingency, however, never arose as the third respondent was the only candidate. We, therefore, do not find any error in the declaration of result of his election under sub-section (2) of section 53 of the Act of 1951. At this stage we may also note that fourth, fifth and sixth respondents were elected to the Rajya Sabha respectively on 26 September 1991, 18 June 1992 and 22 March 1990. Result, therefore, is that in case of all these four respondents who had been elected to the Rajya Sabha present writ petition has been filed challenging the same. The main 'ground of attack is that none of these respondents was ordinarily resident in the State from which they had been elected.

(6) The learned Attorney General referred to the provisions of Articles 80(I)(b), 84, 173 and 329(b) of the Constitution to contend that the present petition was not maintainable. He said even election petition could not have been filed on the averments made in the petition, but we do not think we need consider this argument. Learned Attorney General also referred to three decisions of the Supreme Court in support of his arguments and these being ( 1) Indrajit Barua and others v. Election Commission of India and others ; (2) Pampakavi Rayappa Belagali v. B.D. Jatti and others (AIR 197l Supreme Court 348 =[1971] 2 Scr 611), and (3) Hari Prasad Mulshankar Trivedi v. V.B. Raja and others .

(7) Counsel appearing for other respondents also referred to certain other decisions of the Supreme Court, namely, Rama Kant Pandey v. Union of India ; Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, ; and N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others, . A Bench decision of the Allahabad High Court (Lucknow Bench) in Dharmendra Sankhyadhar v. State of Uttar Pradesh, Lucknow and others, 1984 Allahabad Law Journal 1052, was also relied upon. , . . .

(8) Main arguments were concerned in the case of the third respondent. It was not disputed that the name of the third respondent had been entered in the electoral roll in a constituency in the State of Haryana and that he was an elector within the meaning of clause (e) ofsub-section( I ) of section 2 of the Act of 1951. The petitioner contended that this was all illegal. He said the third respondent was not ordinarily resident in any constituency in the State of Haryana. He said the claim that the third respondent was ordinarily resident was a fraud on the constitution and the laws, and the jurisdiction of this Court was wide enough to strike down any such unconstitutional or illegal act. He referred to a decision of the Supreme Court in Smt. Shanno Devi v. Mangal Sain, , as to what is meant by "ordinarily resident". We do not think we need go into the meaning of the words "ordinarily resident''as that is given in section 20 of the Act of 1950. Part Iii of this Act deals with preparation of electoral rolls. Under section 16, a person shall be disqualified for registration in an electoral roll if he - (a) is not a citizen of India, or (b)isofunsound mind and stands so declared by a competent court, or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. Under section 17, no person shall be entitled to be registered in the electoral roll for more than one constituency. Section 19 prescribes conditions for registration' in the electoral roll for a particular constituency. There are two conditions- (1) the person shall not be less than-eighteen years of age on .the qualifying date, and (2),he is ordinarily resident in a constituency. Section 20 gives the meaning of "ordinarily resident". Under sub-section (7) of section 20, if in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with, reference to all the facts of the case and to such rules as may be made in this behalf by .the Central Government in consultation with the Election Commission. Then sections 21,22, 23 deal with the preparation and revision of electoral rolls, correction of entries in,electopal. rolls, and inclusion of names in electoral rolls. Under section 24, appeal lies within such tune and in such manner as may be prescribed to the Chief Electoral Officer from any orde.r.of the Electoral Registration Officer passed under section 22 or section 23. Registration of Electors Rules, 1960, have been framed prescribing in detail the procedure for preparation of electoral rolls. Then there are Conduct of Election Rules, 1961. Petitioner. admits that he has not challenged the inclusion of the name of the third respondent or for that matter any of other respondents for inclusion of their names in the electoral rolls. Thus, Under sections of the Act of 1951 third respondent was qualified to be-chosen as representative of the State of Haryana in Rajya Sabha.so long as his name existed as a elector for a parliamentary constituency in that State. Article 80 of the Constitution gives the composition of the Rajya Sabha. Apart from 12 members to be nominated by the President, not more than 238 representatives of the States and of the Union Territories are to compose the Rajya Sabha. UnderArticle84,a person shall not be qualified to be chosen to fill a seat in the Rajya Sabha unless he is a citizen of India and is not less than 30 years of age, and "possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament". The petitioner said that being an ordinarily resident for being entitled to be registered in the electoral roll in that particular constituency was the qualification prescribed under Article 84 of the Constitution by virtue of the Act of 1950. That would appear to be correct, but then what we find is, as noted above, the petitioner has not chosen to challenge the inclusion of the name of the third respondent in the electoral roll of the concerned constituency as per procedure prescribed. Whether he could or he could not do that is not for us to consider in these proceedings. A great deal of stress was laid on the provisions of clause (b) of Article 329 of the Constitution which is as under :- "329.Notwithstanding anything in this Constitution - (a) xx xx xx xx (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. "

(9) It is a non-obstante clause, but the petitioner said this Court could nevertheless exercise jurisdiction under Article 226 of the Constitution. He said he had no sufficient time to challenge the inclusion of the name of the third respondent in the electoral roll of the constituency. But then he could challenge the election by means of an election petition under the provisions of the Act of 1951 if that remedy is available to him and he is competent to file the petition.

(10) It is not necessary for us to analyze various judgments cited before us, or to quote in extenso relevant provisions of the Constitution and the laws referred to in these judgments. It is well settled that in view of Article 329(b) writ petition to challenge an election is not maintainable and challenge can only be by means of an election petition as provided in the Act of 1951. In the present case, however, the basic question which has been raised is if the respondents 3 to 6 were entitled to be registered in the electoral rolls of the constituencies on the basis of which they have been elected as representatives of the States in the Rajya Sabha. Preparation of electoral rolls has to be in consonance with the rules made in this regard. In a given case if the challenge is to registration of a name in non- compliance with the Act or rules made there under in that behalf, then certainly this Court can exercise its jurisdiction in Article 226 of the Constitution in appropriate cases. But then the election of a candidate once elected is not open to challenge on the ground of electoral roll being defective. Detailed procedure has been prescribed under the law to challenge the inclusion of the name of a person in electoral roll of a constituency which procedure the petitioner has not availed.

(11) We may also note that in none of the cases referred to us there has been a challenge to the election of a candidate to the Rajya Sabha. A wider question may arise. A representative of the State must necessarily be ordinarily resident of that State, and could such be a qualification prescribed by or under any law made by the Parliament? This question, however, does not arise for consideration in the present petition.

(12) We would, therefore, dismiss the petition in liming.