Decided on January 03,1969

N.G.PANGA Appellant


Kumarayya, J. - (1.)This is a petition, for issue of a writ of prohibition to the Election Commission directing it to forbear from proceeding further with the notice dated 6th June, 1968, issued by it on a reference made by the President of India under Article 103 of the Constitution of India. It raises points involving interpretation of some of the provisions of the Constitution.
(2.)The facts, which are to the most part admitted at all hands, are these. In the bye-election held on 24th April, 1967, for returning a candidate to the house of the people from Srikakulam Constituency, the writ petitioner was declared elected on 28th April, 1967. He lodged his account of election expenses before the District Election Officer in time but the account was found to be defective in certain respects. The said officer made a report to that effect under rule 89 (1) and (2) of the Conduct of Election Rules of 1961 to the Election Commission. The Election Commission purporting to act under rule 89 (5) called upon the writ petitioner to show cause why he should not be disqualified for three years for his failure to comply with the provisions of section 78 of the Representation of the People Act. It gave 20 days time for sending his representation in writing, directing him also to rectify the defects in the accounts already lodged, within that period. The petitioner accordingly submitted his representation in writing. The Election Commission, after consideration of his representation, accepted his explanation and decided not to take any further action against the petitioner. This decision was communicated to the petitioner under letter dated 16th August, 1967, copies of which were sent also to the District Election Officer and the Chief Electoral Officer. Evidently, the Election Commission was satisfied that there was reason or justification for the failure of the petitioner to lodge the account in the manner required by the Representation of the People Act and the Rules framed thereunder. That is why the Commission did not declare him to be disqualified. Thereafter, the third respondent, who was the only contesting candidate in the bye-election, called in question the election of the petitioner by an election petition duly filed. That matter is now pending in appeal before the Supreme Court. Meanwhile, the second respondent, Sarpanch, Gram Panchayat, Chittivalasa resolved to reopen the question of defects in the account of election expenses filed by the writ petitioner which in his estimation was sufficient to disqualify him even though the Election Commission, as already noticed, had declared otherwise. With that object in view he presented before the President of India a petition praying for a decision under Article 103 (1) and (2) of the Constitution of India that the writ petitioner herein has become disqualified under Article 102 (I) read with section 10-A of the Representation of the People Act. He set out in the petition the defects in the accounts of the election expenses filed and action taken by the Election Commission on the report of the District Election Officer and also referred to the depositions of certain witnesses examined in the election petition. He alleged therein that the return of election expenses submitted by the petitioner was no return at all in the eye of law, that likewise the explanation given by him on 14th July, 1967, in response to the nolice of the Election Commission was no explanation at all, much less an explanation or representation, contemplated by rule 89 (6) on the basis of which the Election Commission could exercise the jurisdiction under rule 89 (8) read with section 10-A of the Representation of the People Act. At any rate, as the petitioner did not in fact give any good reason or justification for failure to lodge accounts of expenses in the manner required by or under the Representation of the People Act and the rules made thereunder, the consequence thereof cannot be avoided and is therefore liable to be declared as disqualified under section 10-A of the Representation of the People Act. This petition was referred to the Election Commission by the President of India and the Election Commission issued notice to the petitioner informing him that the Election Commission proposed to enquire into the question before it tenders its opinion to the President of India and called upon him to submit on or before 1st July, 1968 the written statement in reply to the allegations contained in the petition supported by proper affidavits, It was made clear that if no reply was received by that time, it would be deemed that he had nothing to say in the matter. He was further required to indicate whether he wishes to be heard in person or through his duly recognised legal representative in the matter. It is this notice that has given rise to this writ petition.
(3.)The writ petitioner contends that he can incur no disqualification under section 10-A unless the Election Commission has already declared by its order published in the Official Gazette that he is disqualified. That it has not done but on the other hand it has refused to declare him so being satisfied with the explanation that he gave in writing in response to the notice given to him. His further contention is that once the Election Commission has considered his case by following the due procedure and given its decision which is final, the matter cannot be reopened especially when power of review is not conferred on it by any law or the provisions of the Constitution. In these circumstances, it is urged, the question that the petitioner has become subject to disqualification does not arise within the meaning of Article 103 and there is, therefore, no occasion to exercise power under Article 103 of the Constitution. To this claim of the petitioner the 2nd respondent has filed a counter-affidavit which has been adopted by the third respondent. It was contended therein that notwithstanding that the Election Commission has condoned the defects which decision has been communicated to the petitioner it has still power and jurisdiction on reference made by the President of India to inquire into and tender its opinion. At any rate the standing right of a citizen to move the President by a petition under Article 103 of the Constitution is not affected by an earlier decision of the Election Commission under section 10-A of the P epresentation of the People Act. Nor is the Election Commission precluded by its earlier decision to tender its opinion even when a reference is made by the President. It was further urged that before moving the Court the petitioner ought to have submitted his objections before the Election Commission and that the cause of action by reason of the residence of the respondent having arisen in Delhi the writ petition could properly be filed in Delhi.

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