SURENDRA PAL RATWAL Vs. SHAMIM AHMAD

JUDGEMENT

(1.) This Judgment will dispose of election petition No. 1 of 1984, election petition No. 2 of 1984 and election petition No. 3 of 1984. Election petitions Nos. 1 and 3 of 1984 have been filed by the defeated, candidates while election petition No. 2 of 1984 has been filed by an elector. The main question, which requires consideration in all these petitions, is whether the Notifications issued under S. 12 of the Representation of the People Act by the President to fill in two different vacancies which arose by reason of retirement in 1980 and 1982 contravene the provisions of Art. 80(1) of the Constitution and Ss. 12 and 27(h) of the Representation of the People Act.

(2.) The facts are not in dispute. It is alleged that on 1-11-1983, the President of India issued a Notification under S. 12 of the Representation of the People Act 1951 (here in after referred to as "the Act") calling upon the Members of the Metropolitan Council of Delhi to elect a Member for the seat in the Council of States which fell vacant on 15-4-1980 due to the retirement of Shri. Khurshid Alam Khan on the expiry of his term in the office. On the same day, the President issued another Notification under S. 12 of the Act calling upon the Members of the I Metropolitan Council of Delhi to elect another member to the Council of States for the seat which fell vacant due to the retirement of Shri Charanjit Channa on 2-4-1982. In pursuance of these Notifications the Election Commission issued Notifications also on 1-11-1983 which gave time-table for the completion of the election purpose. It is not disputed that both the vacancies in the Council of States I were regular vacancies where the Members elected were to enjoy the full term of six years in office. It is alleged that Arts. 80(4) and 80(5) of the Constitution read with S. 27H of the Act lays down that the election to the seats allotted to each Union Territory in the Council of States shall be filled in by the persons elected by the Members of Electoral College for that territory in accordance with the system of proportional representation by means of a single transferable vote. According to the petitioners the constitutional mandate of proportional representation requires that the system of election as far as possible should be so as to allow each group in the Electoral College to elect Members to the Council of States in proportion to their strength in the Electoral College. This constutitional mandate could only be fulfilled by holding joint elections for two seats which were vacant at the time of Notifications calling for the impugned elections.

(3.) It is further alleged that the Bhartiya Janata Party made a representation to the Election Commission against the said separate elections on the ground that they would be unconstitutional and bad in law. The Election Commission, after notice to the Congress (I) Party and the nominated candidates, heard representations of the Bhartiya Janata Party and finally rejected the same mainly on the ground that since the vacancies had arisen on different dates separate elections could be held to fill those vacancies. Thereafter separate elections were held to fill in the two vacancies on 18-11-1983 which resulted in the Congress (I) Party candidates getting both the seats. The Congress (I) candidates got 31 votes each and both the Bhartiya Janata Party candidates got 22 votes each. According to the allegations in the petition if a joint election had been held to fill both the seats, according to the system of proportional representation by means of a single transferable vote, the Bhartiya Janata Party would have got one seat and the Congress (I) would have got the other. The election has been challenged on the ground that the manner in which the elections have been held i.e. issue of two separate Notifications, the same is violative of the requirements imposed by Art. 80(5) of the Constitution and S. 27-H of the Act.