[2010(9) ADJ 753 (DB)(LB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : UMA NATH SINGH AND VIRENDRA KUMAR DIXIT, JJ.
OM PRAKASH AND ANOTHER .....Petitioners
Versus
STATE OF U.P. AND OTHERS .....Opposite parties
(Writ Petition Nos. 9866 (MB), 9821, 9827, 9816, 9828, 9926, 9931, 9939, 9940, 9947, 9945, 9957, 9801, 9809, 9822, 9850, 9862, 9864, 9868, 9870, 9678 (MB) of 2010, decided on 5th October, 2010)
(B) Constitution of India, 1950—Article 226—Election petition—Challenging of rejection or acceptance of nomination paper—Maintainability of—The rejection or acceptance of nomination paper cannot be called in question under Article 226, such matter be brought only at appropriate stage in an appropriate manner before a Special Tribunal. [Paras 6, 7 and 8]
Result; Order Accordingly.
By the Court.—This bunch of writ petitions impugns four set of grievances, namely (i) illegal addition or deletion of the names of voters in electoral rolls, (ii) shifting or non-shifting of polling booths, (iii) rejection/acceptance of nomination papers and (iv) non-issuance/cancellation of caste certificates required for filing nomination papers in respect of reserved constituencies. Thus these writ petitions in bunch are being disposed of by this common order.
2. As regards the first set of grievance relating to addition or deletion of the names in voters’ lists, learned counsel for petitioners, Sri C.B. Pandey, referred to the judgment of 5 Judges Bench in the case of Indrajit Barua and others v. Election Commission of India and others, AIR 1986 SC 103. Para 12 of the aforesaid judgment which appears to have a direct bearing on this issue reads as:
“12. From the materials placed by the parties and the Election Commission, we have come to the conclusion that the Election Commission did not give directions contrary to the requirements of Section 16 of the Act and the revision of the 1979 electoral rolls could not be undertaken for reasons beyond the control of the Election Commission. As pointed out by us in our order of September 28, 1984, there was no dispute to the electoral roll of 1977 nor was any challenge advanced against the election of 1978 to the State Legislature held on the basis of such rolls. Admittedly, the 1979 rolls were the outcome of Intensive revision of the rolls of 1977. That being the position and in view of the proviso to sub-section (2) of 8 21 which we have extracted above the electoral rolls of 1979 were validly in existence and remained effective even though the process contemplated in sub-section (2) for revision had not either been undertaken or completed. It has been Indicated by a Constitution Bench decision of this Court in Lakshmi Charan Sen and others v. A.K.M. Hassan Uzzaman and others, C.As. 739-741/82 decided on 8.5.1985, that preparation and revision of electoral rolls is a continuous process not connected with any particular election but when an election is to be held, the electoral roll which exists at the time when election is notified would form the foundation for holding of such election. That is why Sub-section (3) of Section 23 provides for suspension of any modification to the electoral roll after the last date of modification of nominations for an election and until completion of the election. We had, therefore, come to the conclusion that the electoral rolls of 1979 were not invalid and could provide the basis for holding of the elections in 1983. Whether preparation and publication of the electoral rolls are a part of the process of election within the meaning of Article 329(b) of the Constitution is the next aspect to be considered. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and others, (1952) 1 SCR 218 , this Court had to decide the amplitude of the term “election”. Fazal Ali, J. speaking for the Constitution Bench indicated :
“It seems to me that the word ‘election’ has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be go through to return a candidate to the legislature. The use of the expression “conduct of elections” in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Article 329(b). That the word “election” bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury’s Laws of England in the following passage under the heading “Commencement of the Election”:
‘Although the first formal step in every election is the issue of the writ, t
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