UMLESH YADAV Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) By this writ petition the petitioner has prayed for a writ of mandamus declaring section 10A of the Representation of People Act, 1951 to be unconstitutional and void. A writ of certiorari has also been prayed for quashing the order dated 20.10.2011, passed by the Election Commission of India declaring the petitioner disqualified under section 10A of the Representation of People Act, 1951 for a period of three years.

(2.) A counter affidavit has been filed by Union of India as well as Election Commission of India to which rejoinder affidavit has been filed by the petitioner. The Election Commission of India has also filed three supplementary counter affidavits to which rejoinder affidavits have also been filed. Notices were issued to the respondents no. 2 and 3, was held to be sufficient, however, no one has appeared on behalf of respondents no. 2 and 3.

(3.) The brief facts giving rise to the writ petition are; that the petitioner was a candidate from 24-Bisauli Assembly Constituency, U.P. in the general Assembly elections of 2007 from a party namely Rashtriya Parivartan Dal. The respondent no. 2 was also a contesting candidate from the said constituency. The polling in the constituency was scheduled to take place on 18.4.2007. One day before the date of polling, a publication was made in the newspaper Amar Ujala dated 17.4.2007 mentioning that there is wave in favour of the petitioner in the election and the voters have made up their mind to support the petitioner. Similar publication was also made in the newspaper Dainik Jagaran dated 17.4.2007. Polling took place on 18.4.2007 and the petitioner was declared elected as a member of the U.P. Legislative Assembly. On 27.4.2007, a complaint was submitted by the respondent no. 2 to the Press Council of India that newspapers, Amar Ujala and Dainik Jagaran, in violation of journalistic conduct have published one sided news item in the form of advertisement in favour of the petitioner by taking huge sum on 17.4.2007, after close of the campaigning and a day before the poll. On 12.5.2007, the petitioner submitted account of his election expenses before the District Election Officer as required by sections 77 and 78 of the Representation of People Act, 1951. The Press Council of India issued notice to both the newspapers on 9.8.2007. Both the newspapers submitted reply before the Press Council of India that publication was not a news item but an advertisement. It was stated in the reply that at the bottom word "ADVT" was appended. It was further stated by the newspapers that the material which was published was material given to the Press on behalf of the petitioner and was not any material collected by the correspondent of the newspaper. Press Council of India decided the complaint by order dated 31.3.2010. It was held by the Press Council of India that publication though camouflaged as news item but in reality was an advertisement. It was further held that Amar Ujala and Dainik Jagaran were guilty of ethical violation. Adjudication along with all case papers were forwarded to the Election Commission of India for such action as it deem fit. After receiving the order dated 31.3.2010 from the Press Council of India along with all relevant materials, the Election Commission of India vide letter dated 4.5.2010 called for a report from Chief Electoral Officer, U.P. regarding expenditure on advertisement dated 17.4.2010. Chief Electoral Officer vide his letter dated 10.5.2010 forwarded the report dated 9.5.2010 of District Electoral Officer. The District Electoral Officer in his report stated that expenditure is not clear fro the return submitted by the petitioner. The Election Commission of India issued a notice dated 22.6.2010 to the petitioner stating that in the account of the election expenses, the expenditure incurred for two advertisements dated 17.4.2007 published in the Amar Ujala and Dainik Jagaran are not reflected which attract disqualification under section 10A for three years. The petitioner was asked to show cause within seven days. On 1.7.2010, the respondent no. 2 also filed an application before the Election Commission of India for being impleaded and given hearing as one of the parties in the matter. The petitioner submitted a reply dated 18.7.2010 to the Election Commission of India stating that publication of above items in the newspaper on 17.4.2007 was neither ordered by the petitioner or by her election agent nor the petitioner has spent any amount for publication of advertisement in the newspapers. On 19.8.2010, the Election Commission of India asked the newspapers to send copies of all relevant documents pertaining to publication dated 17.4.2007. On 6.1.2011 Election Commission of India again wrote to the petitioner stating that account of election expenses lodged by the petitioner does not reflect proper and correct expenditure of the petitioner. Hearing was fixed for 4.2.2011. On 25.3.2011, the Election Commission of India gave hearing to the petitioner and the respondent no. 2. On 4.4.2011, the petitioner wrote to the Election Commission of India that publication in the newspaper dated 17.4.2007 are news item and not an advertisement. It was stated that advertisement has been given by her party only in small boxe size 7X6 centimeters for which amount of Rs. 840/- was paid to the Daily 'Amar Ujala' vide bill dated 17.4.2007. The Election Commission of India vide order dated 20.10.2011 disqualified the petitioner for period of three years exercising the power under section 10A of the Representation of People Act, 1951. The writ petition was filed on 5.11.2011 challenging the order of Election Commission of India. The application for interim relief was heard and rejected by order dated 17.11.2011. General Election 2012 was notified in January, 2012. The Assembly Election 2012 was held and new Assembly has been constituted. An application filed by the petitioner seeking liberty to file her nomination paper and contest election was dismissed as withdrawn on 4.5.2012. The petitioner was permitted to amend the petition by adding a prayer of issuing a writ of mandamus declaring section 10A of the Representation of People Act, 1951 as unconstitutional and void. Following are the prayers (as amended) which have been made in the writ petition :