Phool Chand Paliwal vs Union Of India
2021 Latest Caselaw 1573 MP

                                                              WP No.8755/2021
                                      [1]


         THE HIGH COURT OF MADHYA PRADESH


                           W.P. No. 8755/2021
         (Phool Chand Paliwal and others vs. Union of India and others)
2
Jabalpur, Dated: 26.04.2021

         Heard through Video Conferencing.

         Petitioners - Shri Phool Chand Paliwal and Shri Umesh Trivedi,

Advocates appeared in person through video conferencing.

         Mr. J.K. Jain, Assistant Solicitor General for the respondent

No.1-Union of India.

Mr. P.K. Kaurav, Advocate General for the respondent No.2-

State.

Mr. Siddharth Seth, Advocate for the respondent Nos.3 and 4 -

Election Commission of India & State Election Commission, M.P.

The petitioners have submitted that action be taken against the

Election Commission of India and State Election Commissions for

conducting elections for the Legislative Assembly of Damoh (Madhya

Pradesh) and so also for conducting elections for the State Legislative

Assemblies of West Bengal, Assam, Tamil Nadu, Pondicherry and

Kerala, during the ongoing second wave of Covid-19 by violating the

Covid protocol and guidelines. A prayer has also been made in the

writ petition that proper directions be issued for stopping the door to

door election campaigns and election meetings and gatherings. It is

also prayed that the respondents be commanded to take immediate

steps to prevent the spread of Coronavirus and take action for its

eradication.

WP No.8755/2021 [2]

Mr. Siddharth Seth, learned counsel appearing for the

respondent Nos.3 and 4 - Election Commission of India and State

Election Commission, MP respectively submitted that insofar as the

election in other States is concerned, the said issue would not fall

within the territorial jurisdiction of this Court. Regarding by-election

for State Legislative constituency Damoh (Madhya Pradesh), his

submission is that polling has already taken place on 17.04.2021 and

counting shall take place on 02.05.2021. Learned counsel further

submitted that all other issues with regard to the spread of

Coronavirus and steps required to be taken therefor, a detailed order

has already been passed by this Court in W.P. No.8914/2020 [In

Reference (Suo Motu) vs. Union of India and others) on 19.04.2021

and compliance of the directions issued is being monitored by this

Court, therefore, this writ petition need not be entertained.

The petitioner - Shri Umesh Trivedi, relying upon the judgment

of the Supreme Court in Mohinder Singh Gill and another vs. The

Chief Election Commissioner, New Delhi and others (AIR 1978 SC

851), submitted that the election process commences from the date of

issue of initial notification and concludes with the declaration of

result. Therefore, as the result of the election of Damoh constituency

has not been declared so far, the process of election should be taken as

continuing one and the writ petition can be entertained by this Court

even now to nullify the entire process, since the entire process of

election is marred by number of illegalities. It is argued that since

several political workers, leaders and passengers were going to and

coming from West Bengal, Assam, Tamil Nadu, Pondicherry and WP No.8755/2021 [3]

Kerala by various trains, by air and by road, part cause of action

should be taken to have arisen within the territorial jurisdiction of this

Court even in respect of other States. It is also argued that the State

Government is not taking effective steps for preventing the spread of

Coronavirus, inasmuch as, various medicines including Remdesivir,

are being sold in market at a very high price and weaker sections of

societies especially Scheduled Castes and Scheduled Tribes are worst

hit and dying due to Coronavirus.

Having heard Mr. Umesh Trivedi (petitioner No.2 herein), Mr.

P.K. Kaurav, learned Advocate General for the State and Mr.

Siddharth Seth, learned counsel for the Election Commission of India

and State Election Commission, M.P. and on perusing the aforesaid

judgment, we find that the ratio of the relied judgment does not have

any application to the present fact situation. The Constitution Bench

of the Supreme Court in Mohinder Singh Gill (supra) do indeed held

that amplitude of powers and width of functions to be exercised by

Election Commission under Article 324 of the Constitution of India

confers the power on the Election Commission to cancel the poll in

the entire constituency. The Supreme Court in that case relied on the

earlier Constitution Bench judgment in N.P. Ponnuswami vs.

Returning Officer, Namakkal (AIR 1952 SC 64) and observed that its

ratio has been consistently followed in subsequent judgments of the

Supreme Court. While interpreting Article 329(b) of the Constitution

of India, which provides that "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 WP No.8755/2021 [4]

presented to such authority and in such manner as may be provided

for by or under any law made by the appropriate Legislature" held

that "every step from start to finish of the total process constitutes

'election', not merely the conclusion or culmination". The Supreme

Court further held that there is non-obstante clause under Article 329

of the Constitution of India and, therefore, Article 226 of the

Constitution stands pushed out where the dispute takes the form of

polling in question and election except in special situations pointed at

but left unexplored in N.P. Ponnuswami (supra). Ratio of the

aforesaid judgment cannot be applied to Damoh by-election which in

any case has already taken place on 17.04.2021 and it rather mandates

that no interference be made by this Court during the process of

election.

We do not want to entertain the present dispute in respect of the

elections which had taken place in the other States on the specious

plea that mere travel of political leaders, party activists or passengers

by trains, by air or even by road, to and from, those States would

confer territorial jurisdiction of the dispute upon this Court.

However, while disposing of the writ petition, we direct the

respondents including Collector, Damoh to ensure that the guidelines

of the Central Government as well as the State Government with

regard to the Coronavirus for maintaining the norms of social

distancing, use of masks and sanitizers shall be strictly adhered to by

all those, who take part in the process of counting and that no crowd,

at or near the counting centre, shall be allowed to assemble, inasmuch

as, no political party or candidate, shall be allowed to carry out any WP No.8755/2021 [5]

victory procession in the crowd, either on foot or by vehicles rally,

and that special care shall be taken to ensure that no such political

activity takes place on account of the declaration of the result on the

day of counting which may, in any manner, contribute to or have the

effect of spreading the Coronavirus.

Insofar as the situation of Coronavirus in the State is concerned,

this Court had already initiated suo motu proceeding in W.P.

No.8914/2020 during the first wave of pandemic of Covid-19 and in

that matter has already passed detailed orders giving various

directions to the State Government vide order dated 19.04.2021 in the

aforesaid petition along with several other petitions. The matter has

been heard separately today and posted on 28.04.2021 seeking

response of the State Government on various suggestions given by the

learned Amicus Curiae and the intervenors and the State Government

has been called upon to file its action taken report. In view whereof,

we do not wish to entertain the present writ petition on that aspect

either.

In view of the foregoing reasons, the present writ petition is

disposed of with however the aforesaid directions. There shall be no

order as to costs.

                                          (Mohammad Rafiq)                      (Atul Sreedharan)
                                            Chief Justice                             Judge
                                S/


Digitally signed by SACHIN CHAUDHARY
Date: 2021.04.27 16:08:04 +05'30'