Hon'ble Mahendra Dayal,J.
Yesterday, an urgency in the matter has been made by Mr. Ashok Pandey, Advocate and as such, on considering the urgency in the matter, we granted permission to take up the matter today, i.e. 26.3.2014. Subsequently, learned Counsel for the petitioner preferred an application dated 25.3.2014 addressed to Hon'ble the Chief Justice/Senior Judge. Hon'ble the Chief Justice, vide order dated 25.3.2014, has been pleased to direct to list the case before the Bench presided by one of us (Hon'ble Rajiv Sharma, J.) at 10.00 A.M. today. Accordingly, Registry has placed the instant case before this Court.
As per direction of Hon'ble the Chief Justice, the Court sat at 10.00 A.M. but neither Mr. Ashok Pande, Counsel for the petitioner is present nor there is any request for passing over or adjournment of the case even in the second round.
However, looking to the urgency in the matter, we pass over the case and direct the Bench Secretary to take up the case at the bottom of the list.
When the case was called out again, Mr. Ashok Pande, learned counsel for the petitioner and Mr. Manish Mathur, learned Counsel for the Election Commission of India are present.
Supplementary affidavit filed by the petitioner is admitted to record.
Through the instant writ petition, the petitioner prays for the following reliefs:-
"(a) issue a writ of Mandamus thereby directing the respondent concerned to cancel the election held for choosing the Member of State Legislature (Vidhan Parishad) from Lucknow Division Graduate Constituency held at Polling Booths at Kunda, Kala Kankar, Baghrai falling in Kunda Tahsil of Pratapgarh District and to hold a fresh polling in respect of these booths.
(b) Issue any other order or direction as this Hon'ble Court may deem fit in the circumstances of the case."
The petitioner, who is one of the prospective candidate, has contested the election of the Member of State Legislature (Vidhan Parishad) from Lucknow Division Graduate Constituency. The nomination for contesting the election was filed by the petitioner on 4.3.2014 and the election for seven districts, namely, Lucknow, Hardoi, Sitapur, Lakhimpur Khiri, Barabanki, Rai Bareli and Pratapgarh, took place on 23.3.2014, as per schedule. According to the petitioner, 45% voters came forward to cast their vote at Lucknow.
The petitioner has averred in the writ petition that there are five Tahsils in district Pratapgarh. Out of five Tahsils, in four Tahsils, about 40% voters cast their votes, but in respect of fifth Tahsil Kunda, the voting percentage is very high in four Polling Stations. He has further avered that the voting percentage at Kunda polling station is about 93%, at Baghrai about 87%, at Kalakankar about 85% and at Babaganj about 79%.
Learned Counsel for the petitioner has submits that such high percentage creates suspicion about the holding of poll in fair manner. In support of his submissions, he has relied upon the Circular dated 12.3.2014 issued by the Election Commission of India, which reads as under:-
"The polling station wise election results available in Form 20 with reference to the past general election shall be analyzed. All such Polling Stations where percentage of votes polled was more than 90% and where than 75% of votes have been polled in favour of one candidature shall be identified as critical Polling Stations."
He further submits that as per dictum of Election Commission of India, videography was done. If it is checked and verified by the Election Commission, the real picture will emerge. He further submits that the petitioner preferred complaint before the Chief Election Officer, Uttar Pradesh dated 23.3.2014, contained in Annexure No.1 to the writ petition. A copy of the same has been sent to the Chief Election Commission of India, Commissioner, Lucknow Division, District Magistrate, Pratapgarh and Superintendent of Police, Pratapgarh. The copies of the said complaint have been sent by fax at about 2.45 P.M. followed by another complaint on the same day. In these circumstances, he prays for cancellation of election, as stated here-in-above.
Mr. Manish Mathur, who has accepted notice on behalf of opposite party no.1, raises a preliminary issue that in view of the provisions of Article 329 (b) of the Constitution of India, the instant writ petition is not maintainable. Further, he, on the basis of instructions, submits that as the petitioner has already approached the Chief Election Commissioner, by means of complaint, the Commissioner/Returning Officer has ordered for submissions of report. After scrutinizing the complaint and after obtaining the reports from the concerned Centres, he has submitted a report. The report so submitted by the Commissioner/Returning Officer, Lucknow has placed before the Court for its perusal and the perusal of the same reflects that there was no booth capturing by any person as alleged and as such, he submits that the writ petition is liable to be dismissed, to which learned Counsel for the petitioner submits that according to provisions of Section 58-A of the Representation of the People Act, 1950, there is a procedure for adjournment of poll or countermanding of election on the ground of booth capturing. As there is high percentage of votes cast in four polling booth of Tahsil Kunda, the election may be cancelled.
Considered the submissions made by the parties' counsel and perused the record. In order to adjudicate the matter, it is necessary to peep into the provisions of Article 329 (b) of Constitution of India, which reads as under:-
"329. 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 327 or article 328, shall not be called in question in any Court;
(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."
Any irregularity or illegality taking place in the course of an election cannot be called in question till the election is over and even then it can be called in question only by an election petition challenging an election, as has been held by the Apex Court in AIR 1952 SC 64.
The Apex Court in AIR 1979 Raj 130 held that in Article 329 there is blanket prohibition for interfering during the process of election as an election can only be challenged by an election petition after the result is announced.
In the matter of AIR 1978 SC 851, the Apex Court held that election covers the entire process from the issue of the notifications under Section 14 of Representation of people Act to the declaration of the results under Section 66 of the Act.
Yet in another case, the Apex Court in AIR 1976 Guj 66 held that the provisions of Sections 33, 34 and 158 of the Representation of the People Act are matters pertaining to the conduct of election and are beyond the challenge under Article 329 (b) of the Constitution of India.
One of the principles underlying the plenary bar on judicial proceedings in election matters created by Article 329 (b) is the urgency of prompt engineering of the whole process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion as has been held by the Apex Court in AIR 2000 SC 3000.
Since the relevant Article and Rules are totally covered by the aforesaid citations of the Apex Court, we find force in the submissions of Mr.Mansih Mathur, learned Counsel for the opposite party No.1 as the writ petition is not maintainable.
Even otherwise, as much relevance has been placed by the counsel for the petitioner on Section 58-A of the Representation of the People Act, we deem it appropriate to reproduce it as under:-
"58-A. Adjournment of poll or countermanding of election on the ground of booth capturing -
(1) If at any election, -
(a) booth capturing has taken place at a polling station or a place fixed for the poll (hereafter in this section referred to as a place) in such a manner that the result of the poll at that polling station or place cannot be ascertained;"
Admittedly, the complaint preferred by the petitioner has been addressed to the Chief Election Officer, Uttar Pradesh. At the bottom of the complaint, it has been endorsed that the said complaint has also been sent to the Chief Election Commission of India, New Delhi; Divisional Commissioner, Lucknow Mandal, Lucknow; District Magistrate, Pratapgarh and Superintendent of Police, Pratapgarh. A perusal of the memo of writ petition and annexures theretoshows that the complaint has been sent by fax to the Chief Election Officer, Uttar Pradesh. A copy of the receipt which has also been enclosed alongwith the complaint and marked as Annexure No.1 makes it clear that none of the officers in whose favour endorsement has been made at the bottom of the complaint were sent either by fax or any other mode.
However, the complaint so preferred by the petitioner has been thoroughly scrutinized and the Commissioner/Returning Officer, Lucknow has submitted the report. Relevant extract of the report reads as under:-
"mDr funsZ'k ds dze esa dq.Mk] fcgkj] ckckxat rFkk dkykdkadj ernku dsUnzksa ds ihBklhu vf/kdkfj;ksa] ekbdzks vkCtoZj] lsDVj eftLVz~sV rFkk tksuy eftLVz~sV ds :i esa rSukr dqy 24 vf/kdkjh fnukad 24-03-2014 dks fjVfuZax [email protected];qDr] y[kuÅ e.My ds dk;kZy; esa vk;s layXud&5A bu vf/kdkfj;kssa esa ls dqN ls O;fDrxr :i ls] fQj lewgksa esa vkSj fQj ,d lkFk fjVfuZax [email protected];qDr] y[kuÅ e.My] y[kuÅ rFkk fuokZpd izs{kd Mk0 vuUr dqekj flag }kjk ckr dh x;h vkSj ernku ds fnu mijksDr Lfkyksa ij gq, ernku izfdz;k ds lEcU/k esa foLrkj ls tkudkjh izkIr dh x;hA mijksDr lHkh vf/kdkfj;ksa dk ;g dFku Fkk fd ernku ds nkSjku lHkh ernku dsUnzksa ij ernku 'kkfUriw.kZ ,oa lqpk:
mijksDr fooj.k ds vuqlkj fjVfuZax [email protected];qDr] y[kuÅ e.My] y[kuÅ rFkk Hkkjr fuokZpu vk;ksx }kjk fu;qDr izs{kd }kjk O;fDrxr :i ls leLr lqlaxr vfHkys[kksa dk fujh{k.k ,oa ernku izfdz;k ls tqM+s gq, LkeLr vf/kdkfj;ksa ls O;kid iwNrkN ds vk/kkj ij ;g fu"d"kZ fudyk gS fd mijksDr pkjksa ernku dsUnzksa ij fuokZpu lqpk: :i ls] fu"i{k rFkk 'kkfUr iwoZd lEiUu gqvk gS vkSj f'kdk;r esa mfYyf[kr rF;ksa dh iqf"V ughas gqbZ gSA"
Furthermore, Section 57 of Representation of the People Act deals with adjournment of poll in emergencies, which reads as under:-
"57. Adjournment of poll in emergencies - (1) If at an election the proceedings at any polling station provided under Section 25 or at the place fixed under sub-section (1) of Section 29 for the poll are interrupted or obstructed by any riot or open violence, or if at an election it is not possible to take the poll at any polling station or such place on account of any natural calamity, or any other sufficient cause, the presiding officer for such polling station or the returning officer presiding over such place, as the case may be, shall announce an adjournment of the poll to a date to be notified later, and where the poll is so adjourned by a presiding officer, he shall forthwith inform the returning officer concerned.
(2)Whenever a pol is adjourned under sub-section (1), the returning officer shall immediately report the circumstances to the appropriate authority and the Election Commission, and shall, as soon as may be, with the previous approval of the Election Commission, appoint the day on which the poll shall recommence, and fix the polling station or place at which, and the hours during which, the poll will be taken, and shall not count the votes cast at such election until such adjourned poll shall have been completed.
(3)In every such case as aforesaid, the returning office shall notify in such manner as the Election Commission may direct the date, place and houses of polling fixed under sub-section (2)."
Admittedly, no such complaint has been sent to the Presiding Officer or Returning Officer, but it has been addressed to the Chief Election Officer, U.P. Lucknow. Therefore, the petitioner fails to prove that any exigencies as enumerated in Section 57 of the Act had attracted for adjournment of the poll.
Accordingly, the writ petition, being not maintainable, is dismissed.
At this stage, learned Counsel for the petitioner requests for filing the S.L.P. before the Hon'ble Supreme Court.
As no substantial question of law is involved and the points raised by the petitioner have already been settled by the Apex Court, we decline the prayer of the petitioner.
Dt. 26.3.2014 Muk