Shamsher Bahadur, R.S.Narula, JJ. - (1.) THIS petition under Articles 226 and 227 of the Constitution of India by Rattan Singh was admitted yesterday by the Motion Bench of Chief Justice and Sarkaria J., and has been placed for disposal on account of its extreme urgency before us today.
(2.) THE petitioner, who is a member of the Punjab Legislative Assembly, challenges two notifications both issued on March 7, 1969, by the Election Commission of India under the signature of 'K. S. Rajagopalan, Secretary to the Election Commission of India" and published in the Punjab Government Gazette Extraordinary of the same date. These two notifications are issued in pursuance of subsection (1) of section 147 of the Representation of the People Act calling upon the elected members of the Legislative Assembly of the State of Punjab to fill by election two vacancies caused in the Council of States by the deaths of Shri Uttam Singh and Shri Anup Singh. In pursuance of two impugned notifications, election programme has been fixed separately in respect of the two vacancies, the only difference in the concerned dates being the date of polling which in the case of election for the vacancy of Shri Uttam Singh is 25th March, 1969 and in the case of Shri Anup Singh 26th March, 1939; the remaining dates, 14th March, 1969 for making nominations, 15th March, 1969 for Scrutiny of nominations, 17th March, 1969 as the last date for withdrawal of candidature and 28th March, 1969 before which the election "shall be completed" being identical in both cases. Briefly put, the attack on the notifications is that the fixing of two different dates for poll is illegal and without jurisdiction being hit by the provisions of clause (4) of Article 80 of the Constitution of India which says : 80(4). The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote." It is suggested that if the elections for the two vacancies are held simultaneously in the Legislative Assembly the principle of proportional representation would enable the return of both the majority and minority party candidates: while two separate elections would ensure the victory of the candidates of the majority party only. The system adopted in the two notifications is stated to be destructive of the underlying motive of proportional representation by single transferable vote "and the rights of a minority party in the State Legislature to which the petitioner belongs.
(3.) THE learned Advocate -General submits by way of preliminary objection which, in our opinion, must succeed, that the petition is barred by clause (b) of Article 329 of the Constitution which says: 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.;