ELECTION COMMISSION OF INDIA Vs. SHIVAJI

JUDGEMENT

(1.) We are very much disturbed by the manner in which the High Court of Bombay (Aurangabad Bench) has interfered not once but twice with the process of election which was being held under the provisions of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') to the Legislative Council of the State of Maharashtra from the Osmanabad-cum-Latur-cum-Beed Local Authorities Constituency. The Governor of Maharashtra by a notification dt. 18th Sept. 1987 issued under S. 16 of the Act called upon six local authorities constituencies in the State of Maharashtra to elect one member from each of the said constituencies in order to fill the vacancies in the Maharashtra Legislative Council which had been caused by the retirement of the members representing the said constituencies on the expiration of their terms of office. On the same day the Election Commission of India, the appellant herein, issued a notification under S. 30 of the Act fixing the calendar of events for the purpose of holding the elections accordingly. Osman abad-cum-Latur-cum-Beed Local Authorities Constituency was one of the six constituencies referred to above. According to the notification issued by the Election Commission the last date for making nominations was 25th Sept. 1987. The date for the scrutiny of nominations was 26th Sept. 1987. The last date for the withdrawal of candidatures was 28th Sept. 1987 and the date on which the poll, if necessary, was to be taken was 18th Oct. 1987. The entire election process had to be completed within 21st Oct:1987. Respondents 1 to 5 Shivaji son of Vishwanath Gangane, Prof. K. S. Shinde, Prabhakar son of Bapurao Pudale, Shankarrao Madhavrao Mane and Ashok son of Rangnath Magar filed a writ petition under Art. 226 of the Constitution in Writ Petition No. 1459 of 1987 on Sept. 26, 1987 before the High Court of Bombay (Aurangabad Bench) challenging the validity of the notification issued by the Election Commission on 18th Sept. 1987 on the ground that the notification was invalid because the Zilla Parishad of Osmanabad and the Zilla Parishad of Latur district which were within the constituency had not been constituted and the Administrators were appointed to run the said Zilla Parishads and therefore the members of the said Zilla Parishads; who were entitled to take part in the said elections had been deprived of their right to participate in the said election. Along with the writ petition an application was made for an interim order and the counsel who moved the said application just prayed for the postponement of the last date for withdrawal of candidatures from 28th Sept. 1987 to 1st Oct. 1987. It is not clear why such a prayer was made. The learned single Judge before whom the writ petition came up for consideration however passed an order on Sept. 26, 1987 issuing notice on the writ petition and passing an interim order ex parte directing the postponement of the last date of withdrawal of candidatures from 28th Sept. 1987 to Oct. 1, 1987. A Division Bench of the High Court which was presided over by the learned single Judge who had issued the interim order earlier heard the writ petition on Oct. 1, 1987 and dismissed it by the order passed on the same day. In the course of its order the Division Bench relied on the decision in Inderjit Barua v. Election Commission of India, (1985) 3 Suppl. SCR 225, which had laid down that the validity of an election process under the Act could be challenged only in an election petition filed under the Act as provided by Art. 329(b) of the Constitution. While dismissing the writ petition the High Court did not make any observation as to the effect of the interim order passed by it earlier on the election programme. 18 candidates withdrew their candidatures by 1st Oct. 1987 which was the last date for withdrawal of candidatures as per the interim order passed by the High Court. In the circumstances the Election Commission considered it fair to postpone the date of poll from l8th Oct. 1987 (as originally notified) to some later date in order to secure compliance with the spirit underlying S. 30(d) of the Act which contemplated an interval of 20 days between the last date for withdrawal of candidatures and the date of poll. Ordinarily a week's postponement would have been in the opinion of the Election Commission adequate in the present case but as the postponement of one week would have led to the date of poll falling during the festival season the Election Commission revised the date of poll as 1st Nov. 1987 and notified the change of the date of poll in the Official Gazette on 15th Oct. 1987. The Election Commission also notified under the same notification the date before which the election had to be completed as 4th November, 1987 instead of 21st Oct. 1987 which was the date fixed for that purpose originally. But on 16-10-1987 respondents 1 to 5 filed a Review Petition in Civil Application for Review No. 2035 of 1987 before the High Court seeking a direction to the effect that the election programme might be renotified on the ground that clear 20 days' interval was not there between the last date of withdrawal of candidatures and the date of poll which had been originally fixed as l8th Oct. 1987. The said Review Petition came, up for consideration on the l6th Oct. 1987 before the very same Bench which had dismissed the Writ Petition earlier on 1st Oct. 1987. On that occasion it is alleged that it was brought to the notice of the High Court by the learned counsel appearing for the State of Maharashtra, Collector, Osmanabad and the Returning Officer for the Osmanabad-Latur-Beed Local Authority Constituency and the District Returning Officer for Maharashtra Legislative Council Constituency No. 26, Osmanabad-Latur-Beed Local Authority Constituency, Osmanabad, that the Election Commission had on 15-10-1987 already postponed the date of poll from l8th Oct. 1987 to the 1st Nov. 1987. Despite the above submission made by the said counsel the High Court was pleased to make the following order on l6th Oct. 1987:

(2.) The case was adjourned to Oct. 26, 1987 for hearing. Aggrieved by the interim order passed in the writ petition postponing the last date of withdrawal of the candidatures from 28th Sept. 1987 to Oct. 1, 1987 and by the interim order passed on Oct. 16, 1987 in the Review Petition the Election Commission has filed this appeal by special leave.

(3.) The Special Leave Petition filed in the above case came up for hearing on Oct. 27, 1987. On that date this Court directed issue of notice on the Special Leave Petition and also ordered stay of the operation of the stay order which had been passed by the High Court. The Election Commission was permitted to proceed with the election process. The contesting respondents took notice of the petition in the Court through their counsel. The case was adjourned to 30th Oct. 1987 for final hearing. On 30th Oct. 1987 the case was heard and the Court passed the following order: