CHANDRAN M Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) These two original petitions are being heard and disposed of by a common order at the admission stage itself. O.P. No. 6344/93 is treated as the main petition and the fate of the other petition (O.P. 6460/ 93) will depend upon the outcome of the main petition, namely, O.P. 6344/93.

(2.) As already noted, the election to 8-Ottapalam (S. C.) Parliamentary Constituency was originally proposed to be held on 19-5-1993 as per Notification No. 100/KL-HP/1/92(1), dt. 19-4-1993 issued by the Commission under S.149 of the Representation of the People Act. Thereafter, the third respondent Chief Secretary to the Govt. of Kerala vide his letter No. 22779/SSA3/93/ Home dt. 17th April, 1'993 addressed to the Commission stated that the holding of bye election in Ottapalam Parliamentary Constituency pursuant to the notification dt. 19th April, 1993 is likely to trigger off communal clashes in the constituency and other parts of the State and requested that the bye election may be held only after the communal situation returns to normalcy. The Commission vide its letter No. 100/KL-HP/1/92/93B dated 20-4-1993 intimated the third respondent that the Commission carefully considered the request made by the third respondent and found no justification to postpone the bye election and the request was accordingly rejected. The third respondent Chief Secretary as per his letter No. 22779/ SSA3/93/Home/5593 dated 5-5-1993 again brought to the notice of the Commission the report on law and order incidents from the Inspector General of Police (Intelligence) according to which, in the aftermath of the Ayodhya issue, a number of communal incidents have taken place in the Ottapalam (SC) Parliamentary Constituency and nearby places and according to the said report, frequent clashes between the Rashtriya Swayamsevak Sangh / Bharatiya Janatha Party and Communist Party of India (Marxist) have also taken place in the constituency and during the past four months alone eight serious cases either of political or communal nature have taken place including two under S.307, I.P.C. and the Hindu Muslim divide has widened after the communal rioting and would have wide ramifications in Ottapalam, Pattambi, Thrithala and Wadakkanchery areas which have a sizeable Muslim population. In view of the assessment made by the Director General of Police (Intelligence) the third respondent State of Kerala requested the Commission that the election to 8-Ottapalam (SC) Parliamentary Constituency which was scheduled to be held on 19-5-1993 be postponed. On a consideration of the request of the third respondent and also considering the D.O. Letter No. 1802/SS(CS)/93 dt. 7th May, 1993 of the Ministry of Home Affairs, Govt. of India intimating the Commission that the third respondent is of opinion that the conditions obtaining in Ottapalam (SC) Parliamentary Constituency may not be conducive for holding a peaceful, free and fair poll and that the information available through other sources with the Ministry of Home Affairs also confirms these perception and the Govt. of India therefore reiterated the State Government's perception that it will be in the public interest to postpone the bye election to 8-Ottapalam (SC) Parliamentary Constituency and also after considering certain complaints about various aspects of elections including violations of the Model Code in the constituency and after having satisfied that after the formal notification of elections to 8-Ottapalam (SC) Parliamentary Constituency, there has been a deterioration in the law and order situation with consequent implications on the possibility of conducting a peaceful, free and fair poll reflecting the true choice of the people's representative, the Commission was of opinion that there is no alternative but to postpone the poll in 8-Ottapalam (SC) Parliamentary Constituency in Kerala scheduled to be held on 19-5-1993 to 19-8-1993. The challenge in this original petition is against Ext. P1 notification postponing the poll from 19-5-1993 to 19-8-1993.

(3.) Learned counsel for the petitioner Shri M. K. Damodaran contended inter alia that the Commission has no jurisdiction to issue Ext. P1 notification postponing the date of poll of the entire constituency when there are specific provisions under the Representation of the People Act to postpone the polling date by the Returning Officer - in this connection he brought to my notice S.57 of the Representation of the People Act which empowers the Returning Officer to adjourn the poll at a polling station under certain situations, - that the impugned notification has been issued with mala fides and in clear violation of the principles of natural justice. He has a further contention that the grounds mentioned in Ext. P1 for postponing the election from 19-5-1993 to 19-8-1993 is a pretext and such grounds do not exist in reality. Learned counsel Shri C. N. Radhakrishnan appearing -for the Commission contended inter alia that the instant writ petition is not maintainable as the petitioner has got an efficacious alternative remedy by way of election petition under S.80 of the Representation of the People Act and further, by virtue of the bar created by Art.329(b) of the Constitution of India the instant petition is not maintainable. The learned Addl. Advocate General Shri V. K. Beeran appearing for the State of Kerala and Shri George C. P. Tharakan appearing for the Union of India have reiterated the aforesaid contentions and submitted that the original petition may be dismissed.