Deputy Commissioner vs Smt. N. Latha and Others

J.S. Khehar, C.J.—Mr. Basavaraj Kareddy, learned Prl. Government Advocate for the appellant, Mr. B.K. Manjunath, learned Counsel for respondent Nos. 1 to 3.

We have heard the learned Counsel for the rival parties.

The order passed by the learned Single Judge on 20.07.2010, whereby the preliminary objection in respect of maintainability of W.P. Nos. 18323-325/2010 was over-ruled, is subject matter of challenge at the hands of the appellant herein In order to substantiate the validity of the preliminary objection raised at the hands of the appellant, reference has been made to Article 243(O) of the Constitution of India.

Article 243(O) is being extracted hereunder:

243O. Bar to interference by courts in electoral matters:

Notwithstanding anything in this Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

Based on Article 243(O), it has been the submission of the learned Counsel for the appellant, that the reservation of Joladal Grama Panchayath for women candidates belonging to B.C.(A) category by the notification dated 05.06.2010 was not justified specially when the Office of the Vice President of the aforesaid Joladal Grama Panchayath was allowed to be kept open for general category candidates.

In order to press the preliminary objection of maintainability, learned Counsel for the appellant has invited our attention to the legal position declared by the Supreme Court in State of U.P. and Ors. etc. v. Pradahan Sangh Kshettra Samiti and Ors. AIR 1895 SC 1512 wherein the Apex Court observed as under:

What is more objectionable in the approach of the High Court is that although Clause (a) of Article 243O of the Constitution enacts a bar on the interference by the Courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari Vs. Delimitation Commission and Others, ; Meghraj Kothari Vs. Delimitation Commission and Others, . In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of Sections 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any Court of law. There was a very good reason for such a provision because if the orders made under Sections 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from Court to Court. Although an order u/s 8 or 9 of the Delimitation Commission Act and published u/s 10(1) of that Act is not part of an Act of Parliament, its effect is the same. Section 10(4), of that Act puts such an order in the same position as a law made by the Parliament itself which could only be made by it under Article 327. If we read Articles 243C, 243K and 243O in place of Article 327 and Section 2(kk), of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged or the Court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31st August, 1994.

In addition to the observation recorded by the Supreme Court in the judgment referred to hereinabove, reference was also made to a decision rendered by a Full Bench of Punjab and Haryana High Court in Lal Chand Vs. State of Haryana and Others, . The Full Bench having followed the aforementioned judgment rendered in the case of State of U.P. supra, held the writ petition as not maintainable.

In order to repudiate the submissions advanced by the learned Counsel for the appellant, the learned Counsel for the respondents has invited our attention to the judgment rendered by the Apex Court in Election Commission of India Through Secretary Vs. Ashok Kumar and Others, , and more particularly to the following conclusions recorded therein;

The founding fathers of the Constitution have consciously employed use of the words "no election shall be called in question" in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court "calls is question an election" the bar of Article 329(b) is attracted. Else it is not.

For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:

(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of court.

(5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court''s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretest for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.

Having perused the conclusion rendered in the decision relied upon by the learned Counsel for the respondents and more particularly, conclusion 4 in para 32 (extracted above), we are satisfied that W.P. Nos. 18323-325/2010 filed at the hands of the respondents before the election process had commenced hearing it would have interrupted, disturbed or delayed the progress of the election. Thus, we are of the view, that under Article 243(O) of the Constitution of India, the objection raised by the appellant herein during the course of proceedings in W.P. Nos. 13323-325/2010 was fully justified. The contrary conclusion drawn by the learned Single Judge is accordingly liable to be set aside. The same is therefore hereby set aside.

The instant writ appeals are, accordingly allowed.