Mohammed Sultan & Anr vs Election Commission Of India & Anr

RAJENDRA MENON, CJ

CM APPL. 36383/2018(exemption) Allowed, subject to just exceptions.

The application stands disposed of.

W.P.(C) No.9390/2018

Petitioner, a practising Advocate, has filed this petition in public interest invoking the extraordinary jurisdiction of this Court inter alia contending that

in the 14th Gujarat Legislative Assembly Election that was held on 9th and 14th of December, 2017 in the election campaign that preceded the

elections there has been violation of the Model Code of Conduct declared by the Election Commission of India, various illegalities were committed in

the process of election and in spite of these violations being brought to the notice of the Election Commission of India no action has been taken.

Further, certain allegations have been made with regard to the manner in which the election campaign preceded and it is indicated that the same

amounts to violation of the Model Code of Conduct inter alia contending that various representations pointing out these illegalities have not been

addressed in the right perspective or not even considered, this petition has been filed in public interest and the prayer made in the writ petition reads as

under:

“a. To issue a writ of mandamus or any appropriate writ, order or directions to direct the Election Commission of India to enquire the irregularities

revealed in the representation and take appropriate actions against the erring candidates/members of the political parties.

b. To pass such other order(s) as it may deem fit and proper in the facts and circumstances of the case and in the interest of justice.â€​

Having heard learned counsel appearing for the petitioner and after taking note of the various averments made in the writ petition, we find that the

allegations made in the writ petition even though termed as violation of the Modal Code of Conduct amounts to illegalities, irregularities or misconduct

in the conduct of election in question by various candidates and these would come within the purview of corrupt practices as contemplated under Part

VII Chapter I of the Representation of the People Act, 1951 and would also be an electoral offence within the meaning of the aforesaid statutory

provision.

That being the position, the remedy available for these illegalities are challenging the election by invoking the jurisdiction of the Election Tribunal by

way of an Election Petition and now after conduct of the election and after the statutory period for challenging the election is over, we are not inclined

to invoke our extraordinary jurisdiction under Article 226 of the Constitution of India and interfere, that also in a Public Interest Litigation. Mere

direction to the Election Commission to look into the matter would also be not in the interest of justice for the simple reason that we would be directing

the Election Commission to callan enquiry with regard to an allegation which, in our considered view, for the present, after declaration of the election

would not be permissible in law. The only remedy in such cases is to challenge the election on account of corrupt practices being exercised in the

election in accordance with the procedure contemplated under the statute.

Accordingly, finding no ground to interfere, the petition stands dismissed.