V P MALVIYA Vs. STATE OF M P

JUDGEMENT

(1.) THE petitioner is an Advocate and a Journalist. He has filed this writ petition under Article 226/227 of the Constitution of India as a Public Interest Litigation. He has stated in the writ petition that the respondent No. 6 Shri Shiv Raj Singh Chouhan contested the election of Lok Sabha from Vidisha Constituency in the year 2004 and having succeeded in the said election, took oath as a Member of Lok Sabha as per Article 99 of the Constitution of India and he has not vacated his seat in the Lok Sabha and continues to be a Member of Lok Sabha and yet has become the Chief Minister of the Madhya Pradesh on 29. 11. 2005 and has also taken oath under Article 166 of the Constitution of India as Chief Minister of Madhya Pradesh. The petitioner has further stated that the respondent No. 7 Shri Rajendra Singh was elected as member of the Legislative Assembly from Budhani Constitutency in the year 2004 and after such election, has taken oath as per Article 188 of the Constitution of India but the respondent No. 7 resigned as Member of the Legislative Assembly (for short 'mla' ) of Budhani Constituency on 14. 2. 2006 to accommodate the respondent No. 6 and the respondent No. 6 is now contesting the election from the said Budhani Legislative Assembly Constituency of the State of Madhya Pradesh. The petitioner has stated that both respondents No. 6 and 7 have committed breach of their respective duties as Member of Lok Sabha and Member of Legislative Assembly respectively. The petitioner's case is that although under the oath taken by them in the prescribed format in the 3rd Schedule of the Constitution of India they have undertaken to faithfully discharge the duties upon which they were about to enter as such member of Lok Sabha- and as such Member of legislative Assembly of M. P. , they have not faithfully discharged their duties and instead have abandoned their seats in their respective Houses. The petitioner has further alleged that in the election of the Lok Sabha from Vidisha Constitutency, crores of rupees were spent by the contesting parties as well as the Government of India and that resigning from Vidisha Seat of the Lok 'sabha by the respondent No. 6 will render the entire exercise of election of respondent No. 6 as Member of Lok Sabha totally futile and the expenditure of approximately Rs. ten crores on a parliamentary election would be a waste. The petitioner has further alleged that the mutual arrangement between the respondents No. 6 and 7 by which the respondent No. 7 has vacated his seat of Budhani Constituency of Legislative Assembly of the Madhya Pradesh to accommodate the respondent No. 6 from the said Budhani Constituency of the Legislative Assembly is a mockery of the Constitution of India. The petitioner has prayed for a direction to restrain the respondents from permitting the respondent No. 6 to contest the election of Member of Legislative Assembly from Budhani Constituency while continuing to occupy the seat in the Lok Sabha for Vidisha and for a direction to the respondents to inflict a heavy pecuniary penalty on the respondent No. 7 for resigning from MLA seat in flagrant violation of his oath under Article 188 of the Constitution of India and also a directions to the respondents No. 6 and 7 to personally bear all the pecuniary losses worth crores of rupees in the by-election.

(2.) IN so far as the first prayer is concerned, the High Court, in exercise of its power under Article 226 of the Constitution of India, cannot restrain the respondents from permitting the respondent No. 6 to contest the election of MLA from Budhani Constituency while continuing to occupy the seat of Member of Lok Sabha from Vidisha Constituency. This is because of Article 329 (b) of the constitution of India, which provides that 'notwithstanding anything in this Constitution', no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. The non-obstante clause in Article 329 'notwithstanding anything in this Constitution' will include also Article 226 of the Constitution of India. This has been held by the Supreme Court in several decisions including the decision in The Election Commission of India v. Shivaji and Ors. AIR1988 SC 61 , JT1987 (4 )SC 298 , 1987 (2 )SCALE996 , (1988 )1 SCC277 , [1988 ]1 SCR878 , relevant portion of which is quoted herein below: In view of the non-obstante clause contained in Article 329 of the Constitution, the power of the High Court to entertain a petition questioning an election on whatever grounds under Article 226 of the Constitution is taken away. The word 'election' has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling, or a particular candidate being returned unopposed when there is no poll, In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in part XV of the Constitution in which Article 329 (b) occurs. In N. P. Ponnuswami v. Returning Officer, Namakkal Constituency AIR1952 SC 64 , [1952 ]1 SCR218 , this Court held that the scheme of Part XV of the Constitution and the Act seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up at an intermediate stage before any Court. Any other meaning ascribed to the word used in the Article would lead to anomalies, which the Constitution could not have contemplated, one of them. being any dispute relating to the pre-polling stage. In the above decision, this Court ruled that having regard to the important functions, which the legislatures have to perform in democratic countries, it had always been recognised to be a matter of first importance that elections should be concluded as earlier as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections were over so that the election proceedings might not be unduly retarded or protracted. Hence, even if there was any ground relating to the non-compliance with the provisions of the Representation of People Act and the Constitution on which the validity of any election process could be questioned, the person interested in questioning the elections has to wait till the election is over and institute a petition in accordance with Section 81 of the E. P. Act calling in question the election of the successful candidate within forty five days from the date of election of the return candidate but not earlier than the date of election. This view has been reaffirmed by this Court in Laxmi Charan Sen v. A. K. M. Hassan Uzzaman 1985 Suppl. (1) SCR 493 : AIR 1985 SC 1233 and in Inderjeet Barua v. Election Commission of India AIR1984 SC 1911 , 1984 (2 )SCALE441 , (1985 )1 SCC21 , 1985 (17 )UJ180 (SC ) (supra ). It will be clear from the judgment quoted above that in N. P. Ponnuswani v. Returning Officer, Namakkal Constituency AIR1952 SC 64 , [1952 ]1 SCR218 , the Supreme Court has held that even if there was any ground relating to the non-compliance with the provisions of the Representation of People Act and the Constitution on which the validity of any election process could be questioned, the person interested in questioning the elections has to wait till the election is over and institute a petition in accordance with Section 81 of the Representation of People Act, 1951, calling in- question the election of the successful candidate within forty five days from the date of election of the returned candidate but hot earlier than the date of election. In view of aforesaid law laid down by the Apex Court right from 1952, this Court in exercise of its power under Article 226 of the Constitution of India cannot restrain the respondents from permitting the respondent No. 6 to contest the election of MLA from Budhani Constituency while continuing to occupy the seat in the Lok Sabha from Vidisha Constituency.

(3.) COMING to 2nd relief to direct the respondents to inflict a heavy pecuniary penalty, we fail to appreciate as to under which law the respondent No. 7 would be liable for such pecuniary penalty for flagrant violation, if any, of his oath taken under Article 188 of the Constitution of India. Unless the law clearly provides for imposition of penalty for any specific conduct, obviously the Court cannot direct the authority to impose such penalty because any such imposition of penalty will be without the authority of law. Mr. N. S. Ruprah, learned counsel appearing for the petitioner has not been able to show any provision of the Constitution or any other law under which Member of Legislative Assembly is liable for penalty if he resigns from the seat of Member of Assembly in violation of his oath under Article 188 of the Constitution of India.