MANAGING COMMITTEE SHRI BHAWANI NIKETAN SHIKSHA SAMITI Vs. DISTRICT RETURNING OFFICER (COLLECTOR JAIPUR)

JUDGEMENT

(1.) The petitioner has challenged the orders of requisitioning dtd. 9/10/2023 and 25/10/2023, passed by the respondents under Sec. 160 of the Representation of Peoples Act, 1951 (for short "the Act of 1951 ") by the District Election Officer (Collector), Jaipur by which certain parts of the premises of the petitioner have been requisitioned for election activities of the Rajasthan Legislative Assembly General Election, 2023.

(2.) Learned counsel for the petitioner submits that the petitioner is an educational institution and imparting education to the students and in all eleven educational institutions are running in the same campus and more than eight thousand students are studying in the premises of the petitioner's campus. Counsel submits that by way of passing order dtd. 9/10/2023, the respondents are taking possession of 19 rooms for conducting the election activities of the forthcoming Rajasthan Legislative Assembly General Election, 2023. Counsel submits that the order dtd. 9/10/2023 passed by the District Election Officer is not in consonance with the provisions contained under Sec. 160 of the Act of 1951. Counsel submits that as per the amendment, contained under Sec. 160 of the Act of 1951, the premises can be taken only for the purpose of polling station or for the purpose of counting, but here in the instant case, the respondents are bent upon to use the premises of the petitioner for other election activities. Counsel further submits that under Sec. 160 of the Act of 1951, it is only the State Government, who is competent to pass such orders, but in the instant case, the District Election Officer has passed the order, without any competence. Counsel submits that as per Sec. 166 of the Act of 1951, the State Government may, by notification in the Official Gazette, direct that any power conferred or any duty imposed on the Government by virtue of the provisions of Sec. 160 to 165 of the Act of 1951 shall be specified in the direction, can be exercised or discharged, but here, in the instant case, the powers have not been delegated by the State, upon the District Election Officer to take the premises of the petitioner reportedly for other election activities. Counsel submits that on earlier occasions also, the respondents have taken the premises of the petitioner for conducting the election activities, hence, aggrieved by the said action of the respondents, the petitioner approached this Court by way of filing S. B. Civil Writ Petition No. 4507/2001 (Shri Bhawani Niketan Shiksha Samiti Vs. District Returning Officer) and the same was disposed of by the Co-ordinate Bench of this Court vide order dtd. 10/2/2015 by which a direction was issued to the respondents that in case, in future, the respondents require to requisition of the premises, then they shall as far as possible not to take over the building of the running school or college and shall take only limited number of rooms for the purpose of training of their staff in consultation with the Secretary of the petitioner and shall provide compensation at par with what is being paid to the Rajasthan College or Commerce College, as per the prescribed rates. Counsel submits that the aforesaid order passed by the Single Bench of this Court was assailed by the respondent by way of filing D.B. Special Appeal (Writ) No. 591/2015 (District Returning Officer (Collector), Jaipur and Anr. Vs. Shri Bhawani Niketan Shiksha Samiti, Jaipur and Ors.) and the said appeal was dismissed by the Division Bench of this Court vide order dtd. 24/11/2015. Counsel submits that several other institutions and campuses are available in the City, which can be used by the respondent, for conducting election activities. Counsel further submits that the practical and theory examination of the students are going to commence in the month of November and December, 2023 and by way of the act of the respondent not only their studies would be disturbed but also their career would also be jeopardized. Counsel submits that under these circumstances, interference of this Court is warranted. In support of his contention, counsel has placed reliance upon the judgment passed by the Allahabad High Court in the case of Maa Bhagwati Nirashrit Samaj Sewa Sansthan through Manager vs. Election Commission of India & 2 others reported in 2014 (SCC) (OnLine) All. 5460 and judgment passed by the High Court of Bombay in the case of Panvel Agriculture Produce Market Committee vs. State of Maharashtra reported in 2010(1) Maharashtra Law Journal 489.

(3.) Per contra, learned Advocate General as well as learned Additional Advocate General opposed the arguments raised by the counsel for the petitioner and submitted that a big chunk of land measuring around 555 bighas was allotted to the petitioner by the State free of cost and the respondents are utilizing only 19 rooms and the same land is situated in the campus of the petitioner. Counsel submitted that conducting election process is a sovereign function of the State and an adequate amount is always paid to the petitioner, as compensation, in terms of Sec. 161 of the Act of 1951. Counsel submitted that once the election process has started as per the Articles 324 & 329 of the Constitution of India, the same should not be interfered or stopped by this Court by exercising its writ jurisdiction, contained under Article 226 of the Constitution of India. Counsel submitted that commencement of the election process starts the moment, the notification is issued by the Election Commission of India and in the instant case the notification has been issued on 9/10/2023 and thereafter the election activities have started and by way of issuing the order dtd. 9/10/2023, the District Election Officer has directed to take certain rooms of the petitioner-institution for election activities for departure and arrival of the polling parties for collection of Electronic Voting Machines (for short 'EVMs') etc. The remedy lies with the petitioner to challenge the action in a separate proceedings after the completion of the election process. Counsel submitted that in the earlier round of litigation also, this Court has permitted the respondent to use the limited number of premises of the petitioner, subject to taking prior consent of the Secretary of the petitioner-Society. Counsel submitted that no restriction was imposed by this Court, while deciding the earlier petition, filed by the petitioner. Counsel submitted that under these circumstances, the interference of this Court is not warranted. In support of their contentions, counsel placed reliance upon the following judgments:-