UMLESH YADAV Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) This writ petition has been filed by the petitioner praying for quashing the order dated 20.10.2011, passed by the Election Commission of India. A writ of mandamus has also been sought, directing the respondents to treat the petitioner as duly elected member of Legislative Assembly from 24-Bisauli Assembly constituency, District Budaun and to admit her to the privileges and perquisites attached to such office. Along with the writ petition, Stay application has been filed, praying for suspension of the impugned order dated 20.10.2011, passed by Election Commission of India declaring the petitioner disqualified for being a member of U.P. Legislative Assembly under Section 10A of the Representation of the People Act, 1951 for a period of three years from the date of passing of the order.

(2.) Before we proceed to consider the submissions raised by Sri Ravi Kant, learned Senior Advocate appearing for the petitioner for stay of the order, it is necessary to note the brief facts leading to passing of the order by the Election Commission of India. The petitioner was elected as a member of the U.P. State Legislative Assembly from 24-Bisauli Assembly constituency, District Budaun in the year 2007. The respondent no. 2, who was also one of the contesting candidates, submitted a complaint before the Press Council of India against the two Hindi daily newspapers namely; 'Amar Ujala' and 'Dainik Jagaran' referring to two publications made in the newspapers on 17.4.2007, after close of the campaigning, a day before the date of poll. The allegation in the complaint was that the aforesaid two newspapers in violation of norms of Journalist conduct, published onesided news item in the form of advertisement in favour of the petitioner by taking huge amount of money. The allegation was that news reports in favour of the petitioner was published appending advertisement in the small box at the right bottom marking ?ADVT? to give a colour as if the entire publications were advertisements. The Press Council of India issued notice to the newspapers and after inquiry, held that newspapers were guilty of ethical violations, and adopting the observations of the Inquiry Committee, cautioned the media to refrain from publishing news masquerading as advertisements and vice versa. The Press Council of India also decided to send the adjudication along with all the case papers to the Election Commission of India for such action as deemed fit by the Election Commission of India. The Election Commission of India thereafter called upon specific information from the Chief Electoral Officer, U.P. vide its letter dated 4.5.2010 about the expenditure incurred by Smt. Umlesh Yadav, a candidate of Rashtriya Parivartan Dal from 24-Bisauli Assembly Constituency on publishing the news item dated 17.4.2007. The District Election Officer, Budaun reported to the Commission that expenditure for the above referred advertisement published on 17.4.2007, was not clear from the account of the election expenditure submitted by Smt. Umlesh Yadav. The Commission thereafter issued notice dated 22.6.2010 to the petitioner to show cause as to why she had not reflected the expenditure incurred on the aforesaid advertisement in the election expenditure account filed by her under section 78 of the Representation of the People Act, 1951; and why the account filed by her should not be treated as having not been filed in the manner required under law. The petitioner was also asked to explain as to why she should not be disqualified under section 10A of the said Act for a period of three years for not lodging the true account of her election expenses. The petitioner in response to the said notice, submitted her reply dated 18.7.2010, taking the plea that articles published in the newspapers were neither ordered by her nor her election agent nor she spent any amount for publication of the said advertisement. Election Commission of India also asked the newspapers; Dainik Jagaran and Amar Ujala to send copies of the bills pertaining to the aforesaid news/advertisement. Both the newspapers submitted copy of the bills and the receipt issued in the name of D.P. Yadav, the husband of the petitioner. The Commission after giving personal hearing to the petitioner, held that the petitioner did not maintain a correct and true account of her election expenditure under section 77 and by filing incorrect account of her election expenses, she failed to lodge her account of election expenditure in the manner required by law. The Commission also held that she had no good reason or justification for the said failure as instead of admitting her failure, she denied to had filed an incorrect account and defended her act of having filed an incorrect account. On the aforesaid findings, the Commission disqualified the petitioner for a period of three years under section 10A of the Representation of the People Act, 1951 (hereinafter referred to as '1951 Act').

(3.) Sri Ravi Kant, learned Senior Advocate, appearing for the petitioner, submitted that the order passed by the Election Commission of India deserves to be stayed by this Court since the said order is clearly void and beyond jurisdiction of the Election Commission of India. The principal submission pressed by learned counsel for the petitioner is that after declaring a member of Legislative Assembly disqualified, the question has to be referred for the decision of the Governor and no order declaring the petitioner disqualified can be passed by the Election Commission of India. Learned counsel for the petitioner referred to and relied on provisions of Articles 191 and 192 of the Constitution of India and has placed reliance on the judgments of the apex Court Brundaban Nayak Vs. Election Commission of India, 1965 AIR(SC) 1892 and in Consumer Education And Research Society Vs. Union of India and others, 2009 9 SCC 648. He further submitted that the return filed by the petitioner was within the limit of Rs. 10,00000/-hence, the Election Commission of India could not have declared her disqualified. It is further submitted that the Commission failed to advert to the provisions of Section 10A(b) of the 1951 Act. It is further submitted that no report was submitted by the District Election Officer under Rule 89 of Conduct of Election Rules, 1961 hence, the Commission could not have passed the order under section 10A.