Rajesh Ranjan @ Pappu Yadav vs The Election Commission Of India ...
1995 Latest Caselaw 46 Del

JUDGMENT

M. Jagannatha Rao, C.J.

(1) This writ petition has been filed for issue of a writ of mandamus quashing the order passed by the Election Commission of India (respondent No.1) on 21st May, 1991 and 15th June, 1991. A further mandamus is sought directing the Election Commission to re-consider the matter and order re-polling in such segments of the constituency which have been effected by electoral malpractices as communicated in the reports of the Electoral Officers of the constituency and the Central Government.

(2) The writ petition was filed in June, 1991. Notice was ordered on 30th July, 1991. The subject matter of the writ petition is covered by a judgment a Full Bench of this Court, according to the petitioner. The Full Bench delivered judgment on 13th May, 1993 in C.W.P. No.1976 of 1991 entitled Amar Pal Singh Vs. The Chief Election Commissioner of India . There is no dispute that the point arising in the present petition before us is the same as was decided by the Full Bench in Amar Pal Singh's case.

(3) The Full Bench decision was subject matter of two appeals before the Supreme Court of India, one at the instance of the Election Commission in Civil Appeal No.2911/93 and another at the instance of the writ petitioner in Full Bench case, viz., Amar Pal Singh in Civil Appeal No.4220/93. The Supreme Court decided the Civil Appeals by judgment dated 12th April, 1994.

(4) Before this Lordships at the Supreme Court, the matter was decided by the consent of parties. The order relating to the consent is extracted in the judgment of the Supreme Court and towards the end of the judgment, their Lordships mentioned as follows : "THE two appeals are disposed in terms of the above agreement. The Full Bench judgment of the High Court shall accordingly stand modified to the extent of the agreement as noticed above. The interpretation of various provisions of the 1951 Act including Section 58-A (2)(b) and of the provisions of the Constitution of India in their operation in the light of those provisions of the 1951 Act are left open to be decided in an appropriate case at an appropriate time.

(5) In our view, the effect of the Supreme Court judgment is that the judgment given by the Full Bench of this Court in Amar Pal Singh's case stands modified by consent. But the words, ".....are left open to be decided in an appropriate case at an appropriate time" are, in our view, referable to a situation that might arise in future in the Supreme Court when same questions come up before their Lordships for consideration. In other words, the Election Commission of India would not be precluded from raising these questions in any other case when such issues come before the Supreme Court of India.

(6) Learned counsel for the Election Commission has, however, contended that the above said words"......are left open to be decided in an appropriate case at an appropriate time" are referable to the Delhi High Court and the issues, even so far as Delhi High Court is concerned, are not governed by the Full Bench. Learned Counsel also makes a request for re-consideration of the judgment of Full Bench but we are not inclined to do so.

(7) In this connection, apart from the above passage, we may do refer to another passage in the judgment of the Supreme Court which reads as under : WE need not, however, detain ourselves to refer to all those arguments and consider the correctness of the judgment of the Delhi High Court."

(8) Taking both the passages extracted above together, we are of the view that decision of the Full Bench of this Court in Amar Pal Singh Vs. The Chief Election Commission of India, dated 13th May, 1993 rendered in C.W.P. No.1976 of 1991 continues to be a precedent of this Court and has not been set aside or reversed by the Supreme Court. On merits, it was only modified by consent. What was left open for consideration was if the questions arise again in the Supreme Court. The observations in the first extract above are not referable to the Delhi High Court. Hence the Full Bench still governs us as a precedent. Even otherwise, we are not persuaded that the Full Bench is wrong. If that be so, we do not find any reason as to why we should not follow the said judgment in the case before us.

(9) The next question is as to what is the direction to be issued by us on the basis of the decision of the Full Bench in Amar Pal Singh's case. Learned counsel for the petitioner submits that in view of the decision of the Full Bench, a direction should be issued to the Election Commission to consider the question whether the poll has to be set aside in any particular segment or it should be set aside as a whole in view of irregularities in some of the segments.

(10) Learned Counsel for the Election Commission submits that in view of the Full Bench decision, the direction that should be issued by this Court should be conduct entire re-polling in all the segments, however, keeping the earlier notification still in operation.

(11) There are also applications of interveners (C.Ms. 5109 to 5111 of 1991) which we hereby allow and the counsel for the interveners submit that they accept the decision of the Full Bench. He, however, submits that re-polling should be ordered in all the segments.

(12) In the light of the contentions referred to above, we are of the view that proper direction which should be given in the present case is to leave it to the Election Commission to decide whether on the facts and circumstances of the case, there should be re-polling in all the segments or in any particular segments of the constituency. So far as this direction is concerned, the petitioner consents to it and counsel submits that he would not raise any objections to the said direction of it is implemented by the Election Commission.

(13) We, therefore, issue the aforesaid direction and dispose of the petition accordingly.

(14) In view of the fact that the petition is of 1991 and the earlier Full Bench decision is of 13th May, 1993, we direct the Election commission to take decision in the matter expeditiously, but not later than six weeks from today. It is clarified that the poll will have to be conducted with the same set of candidates and same set of electoral rolls which was in force at the relevant time when the poll tool place earlier.