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Narottam Mishra v. Election Commission Of India And Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
The Election Commission of India (respondent No. 1) issued a show-cause notice dated 16/8/2013 to the appellant under sub-rule (5) of Rule 89 of the Conduct of Elections Rules, 1961, directing the appellant to explain why he should not be disqualified under Section 10A of the Representation of the People Act, 1951, for alleged falsity of account relating to 42 instances of "paid news." The appellant had earlier submitted a reply to a notice dated 15/1/2013.
The appellant challenged the issuance of the notice by filing a writ petition under Article 226 of the Constitution. On 29/8/2013 the Writ Court granted interim relief staying Annexure P/1 (the 16/8/2013 notice) until the next date of hearing. An intervenor filed an application (I.A. No. 7510/2013) seeking vacation of that stay, contending that the Supreme Court in SLP (Civil) No. 29882/2011 (Ashok Shankarrao Chavan v. Madhavrao Kinhalkar) had modified an earlier stay and permitted the Election Commission to proceed with the complaint and pass a final order, albeit that the final order should not be pronounced or given effect to. The intervenor alleged that this modification by the Supreme Court was not disclosed to the Writ Court and that the appellant had obtained the interim order by concealing material facts.
The Writ Court found that the appellant had misled the Court and consequently vacated the interim stay order dated 29/8/2013. The appellant then filed this writ appeal against the Writ Court's order dated 9/10/2013. The appeal was argued at length, counsel for the respondents appeared on advance notice, and with the consent of all counsel the High Court disposed of the appeal finally.
Legal Issues Presented
- Whether the Election Commission of India had jurisdiction to issue the notice under Section 10A of the Representation of the People Act, 1951 and sub-rule (5) of Rule 89 of the Conduct of Elections Rules, 1961 to disqualify the returned candidate.
- Whether, in light of the Supreme Court's modified order in SLP (Civil) No. 29882/2011 (Ashok Shankarrao Chavan v. Madhavrao Kinhalkar), the Writ Court should have passed a similar order (i.e., permitted the Election Commission to proceed and pass a final order which shall not be pronounced or given effect to).
- Whether the writ appeal was maintainable in view of the Full Bench decision in Arvind Kumar Jain v. State of M.P., 2007 (3) MPHT 376, on the ground that the impugned order was final in nature and might affect the appellant's rights.
Arguments of the Parties
Appellant's Arguments
- The appellant challenged the jurisdiction of the Election Commission to issue a notice for disqualification under Section 10A and sub-rule (5) of Rule 89, contending that the Commission had no power to issue such a notice.
- The appellant submitted that the question regarding the Election Commission's power under Section 10A and Rule 89(5) was pending before the Supreme Court in an SLP and that the Supreme Court had passed an interim order in that SLP that the final order of the Election Commission shall not be pronounced and shall not be given effect to; thus, the Writ Court ought to have passed a similar order.
- The appellant relied on the Full Bench decision in Arvind Kumar Jain v. State of M.P. to contend that the present writ appeal was maintainable because the impugned order was final in nature and could affect his rights.
Election Commission (Respondent No. 1) and Respondents' Arguments
- The Election Commission submitted that the appellant had deliberately concealed the modification of the Supreme Court's earlier order in the relevant SLP and had thereby misled the Writ Court; on that basis, the appellant was not entitled to relief and the Writ Court correctly vacated the interim stay.
- Learned counsel for the Election Commission strongly opposed the appellant's prayer and maintained that the Writ Petition under Article 226 deserved to be dismissed because of the alleged concealment.
Intervenor's Arguments
- The intervenor urged vacation of the Writ Court's stay, pointing out that the Supreme Court had modified its earlier order in Ashok Shankarrao Chavan by permitting the Election Commission to proceed with the complaint and pass a final order which would not be pronounced or given effect to, and that this modification pre-dated the Writ Court's interim order.
- The intervenor contended that the appellant had not brought the Supreme Court's modification to the Writ Court's attention and therefore had obtained the interim order by concealment of facts; on that basis the intervenor sought vacation of the stay.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ashok Shankarrao Chavan v. Madhavrao Kinhalkar (SLP (Civil) No. 29882/2011) — order of the Supreme Court | The Supreme Court modified an earlier stay and allowed the Election Commission to proceed with the complaint and to pass a final order, but directed that such final order "shall not be pronounced and shall not be given effect to" and the final order be kept in a sealed envelope until the SLP is heard and disposed of. | The High Court held that, because the facts in the present case were almost similar to those in the Ashok Shankarrao Chavan matter, the principle established by the Supreme Court's order should be followed. Accordingly, the High Court modified the impugned writ court order to permit the Election Commission to continue proceedings and to pass a final order, subject to the same restriction that the final order shall not be pronounced and shall not be given effect to. |
| Arvind Kumar Jain v. State of M.P., 2007 (3) MPHT 376 (Full Bench) | The Full Bench decision was cited for the proposition that an appeal is maintainable where the impugned order is final in nature and may affect the rights of a party. | The High Court relied on this Full Bench decision to conclude that the present writ appeal was maintainable because the impugned order by the Writ Court was in the shape of a final order that could affect the appellant's rights. |
Court's Reasoning and Analysis
The High Court's analysis proceeded in several connected steps derived from the material before it:
- The Court examined the Supreme Court's order in the Ashok Shankarrao Chavan SLP and noted that the Supreme Court had specifically allowed the Election Commission to proceed with the complaint and to pass a final order, with the explicit limitation that such final order would not be pronounced or given effect to and would be kept in a sealed envelope until the SLP's final disposal.
- Observing that the facts in the present case were "almost similar" to those in the Ashok Shankarrao Chavan matter, the Court applied the principle of precedent: it would be "just and proper" to pass a similar order in the present case so that the Election Commission could continue proceedings consistent with the Supreme Court's direction in the analogous matter.
- The Court also addressed maintainability. It found that the impugned order passed by the Writ Court was "in the shape of final order" and therefore could affect the appellant's rights. Relying on the Full Bench decision in Arvind Kumar Jain, the Court concluded that the present writ appeal was maintainable.
- Balancing the parties' positions, the Court modified the Writ Court's order so as to permit the Election Commission and respondent No. 2 to continue the proceedings and even pass a final order, but imposed the same restriction as the Supreme Court's order — that any final order shall not be pronounced and shall not be given effect to. The Court explicitly made this modification subject to any subsequent order that might be passed by the Supreme Court in the pending SLP.
- The Court clarified the scope of its modification: the direction was interim in nature, would not affect the final adjudication of the writ petition, and did not decide the merits of the underlying case. It further left the Writ Court free to decide the writ petition on its merits and allowed the Election Commission to approach the Supreme Court for modification of the order if so advised.
The Court's reasoning is anchored on the Supreme Court's modified order in the cited SLP and on the Full Bench precedent regarding maintainability; the Court did not resolve the merits of the underlying challenge to the Election Commission's jurisdiction under Section 10A and Rule 89(5).
Holding and Implications
Holding:
The appeal was disposed of with modification of the impugned order.
The High Court modified the writ court's impugned order dated 9/10/2013 to the following effect:
- The proceedings before respondents No. 1 and 2 (the Election Commission and related respondents) shall continue, and the respondents are at liberty to pass a final order; however, any such final order shall not be pronounced and shall not be given effect to. This direction is interim and subject to modification if the Supreme Court subsequently passes any order in the pending SLP.
- The learned Writ Court is at liberty to decide the writ petition on its merits; the High Court did not express any view on the merits of the case.
- The Election Commission and respondents remain at liberty to approach the Supreme Court for modification of the order.
- No order as to costs was made.
Implications:
- The direct effect is that the Election Commission may proceed with its fact-finding and may pass a final order in the disciplinary/disqualification proceedings against the appellant, but any final order is to remain unpronounced and without effect until further direction, consistent with the Supreme Court's practice in the similar SLP.
- The modification is expressly interim and does not preclude final adjudication by the Writ Court on merits; the High Court did not decide the substantive legal question of the Election Commission's jurisdiction under Section 10A and Rule 89(5).
- The opinion does not purport to establish any new legal precedent beyond applying the Supreme Court's direction in the cited SLP and the Full Bench's rule on maintainability; it confines itself to the direct adjustments of the Writ Court's order in this case and leaves open further appellate recourse to the Supreme Court.
This appeal has been filed against the order dated 9/10/2013 passed in Writ Petition No. 6023/2013. Learned counsel for the respondents appeared on advance notice. The case is argued at length, hence, with the consent of counsel for the appellant as well as counsel for respondents, the appeal is disposed of finally.
The Election Commission of India-Respondent No. 1 issued a notice to the appellant dated 16/8/2013. By the aforesaid notice the appellant was directed to show-cause that earlier notice dated 15/1/2013 issued to the appellant under sub-rule (5) of Rule 89 of the Conduct of Elections Rules, 1961 (hereinafter referred to as “the Rules of 1961”) for falsity of account (42 cases of paid news) that why the appellant be not disqualified under Section 10A of the Representation of People Act, 1951 (for brevity “Act of 1951”). The appellant submitted reply of notice dated 15/1/2013.
The appellant questioned issuance of notice Annexure P/1 in regard to disqualifying the appellant in exercise of power under Section 10A of the Representation of the People Act, 1951 in a writ petition under Article 226 of the Constitution of India before this Court. The Writ Court on 29/8/2013 passed the following order on interim relief:-
“Learned counsel for the petitioner submits that in similar matter in the case of Ashok Shankar Rao Chavan v. Madhavrao Kinhalkar the Apex Court by order dated 3.11.2011 has stayed the similar notice. Shri Bhardwaj by drawing attention of this Court on letter dated 29th April, 2011 (Annexure P/5) para 3 submits that as per this letter of Election Commission it is crystal clear that subject matter of show cause notice in Ashok Shankar Rao Chavhan (Supra) and the present case is exactly similar, yet the respondent commission has started action by issuing Annexure P/1. In addition, it is submitted that earlier by note sheet dated 17.09.2009 (page 48) the Commission decided not to proceed with the matter. He submits that there is no justification in proceeding and issuing the order dated 16 August, 2013 when the similar proceedings has been stayed by Supreme Court. In addition, it is submitted that interim relief is also granted in WP No. 3512/2011 on 30.05.2011 (Annexure P/7).
Considering the aforesaid, till next date of hearing Annexure P/1 shall remain stayed.” and also issued notice to the respondents.
Intervenor filed an application before the Writ Court which was registered as I.A No. 7510/2013 for vacation of the stay order passed by the Court on 29/8/2013. The intervenor pleaded that the Hon'ble Supreme Court in the Special Leave Petition (Civil) No. 29882/2011 (Ashok Shankarrao Chavan v. Madhavrao Kinhalkar) modified the earlier order dated 3/11/2011 and permitted the Election Commission of India to proceed with the complaint. The Hon'ble Supeme Court further ordered that the final order passed by the Election Commission shall not be pronounced and shall not be given effect to. It is further pleaded by the intervenor that the Apex Court passed the modified order on 2/5/2013 prior to three months of passing of the interim order by the Court dated 29/8/2013, however, this fact was not brought to the notice of the Court and the appellant had obtained the interim order by concealment of facts, hence, the interim order is liable to be vacated. The learned Writ Court observed that the appellant had misled the Court and consequently vacated the interim stay order dated 29/8/2013.
The learned senior counsel appearing on behalf of the appellant has contended that the question in regard to exercise of power of Election Commission under Section 10A of the Act of 1951 and Rule 89 of the Rules of 1961 in regard to disqualifying the Returned Candidate is pending for consideration before the Hon'ble Supreme Court and the Hon'ble Supreme Court has passed an interim order in the SLP that the final order of the Election Commission shall not be pronounced and shall not be given effect to, hence, it was obligatory on the part of the learned Writ Court to pass similar order in this case also. The learned senior counsel has further submitted that because the order impugned is final in nature, hence, in view of the judgment passed by the Full Bench of this Court in the case of Arvind Kumar Jain v. State of M.P, 2007 (3) MPHT 376, this Writ Appeal is maintainable.
Learned counsel for the Election Commission has strongly opposed the prayer made by learned senior counsel for the appellant and has submitted that the appellant is not entitled for any relief from the Court because the appellant had deliberately concealed the vital fact in regard to modification of the interim order passed by the Hon'ble Supreme Court in the SLP and because the appellant concealed the facts and misled the Court, hence, his writ petition filed under Article 226 of the Constitution of India deserves to be dismissed and the Writ Court has rightly vacated the interim order. The same arguments have been advanced by the learned counsel for the intervenor, Mr. Pratip Visoriya.
The appellant challenged the jurisdiction of the Election Commission in regard to issuance of notice under Section 10A of the Act of 1951 and the appellant also challenged sub-rule (5) of the Rules of 1961. He specifically pleaded that the Election Commission had no power to issue notice in regard to disqualification. The matter is subjudice before the Hon'ble Supreme Court and as admitted by the learned counsel for the Election Commission also the Hon'ble Supreme Court passed the following order in the SLP, which is pending before the Hon'ble Supreme Court:-
“UPON hearing counsel the Court made the following
ORDER
I.A No. 1 of 2012, has been filed in the special leave petition, inter alia, for an order to vacate the stay granted on 3rd November, 2011, or to direct the Election Commission of India to proceed further in the matter and pass a final order, but the same be kept in a sealed envelope.
Mr. Bhaskar P. Gupta, learned senior counsel appearing for the respondent No. 1 and also in support of the application, submits that the Chief Election Commissioner is to retire on 10 June, 2012, and that in the event the proceedings under Section 10(A) of the Representation of Peoples Act, 1951, continues to be stayed, the hearing conducted prior to the passing of the order of stay, would be rendered meaningless.
We have heard Mr. Gopal Subramaniam, learned senior counsel appearing for the petitioner, Ashok Shankarrao Chavan, as also Ms. Meenaksh Arora, learned counsel appearing for the Election Commission of India. We have also considered the submissions made by Ms. Pinky Anand, learned senior counsel appearing for the respondent Nos. 2 and 3.
Having considered the submissions made, we are not inclined to vacate the stay order passed on 3 November, 2011, but we modify the same by allowing the Election Commission of India to proceed with the complaint, which had been filed by the respondent Nos. 1 and 2, and to even pass a final order, which shall, however, not be pronounced and shall not be given effect to. The same shall be kept in a sealed envelope, till the special leave petition is heard and disposed of by this Court.
Let the special leave petition, which is appearing as Item No. 9 in today's list, be listed tomorrow (03.05.2012) at 2.00 p.m, for final hearing.
In addition to the above, the allegations, which have been made in the said interlocutory application against the learned senior counsel, are most inappropriate and we deprecate such intemperate pleadings. Let the same be treated as expunged wherever they appear in the application.
The parties will be at liberty to raise all contentions taken before us when the matter is taken up for hearing by the Election Commission of India.
The interlocutory application is disposed of with the aforesaid directions.”
From the order passed by the Hon'ble Supreme Court, it is clear that the Hon'ble Supreme Court has clearly observed that the Election Commission of India had liberty to proceed with the complaint which had been filed by the respondents and even pass a final order, which shall, however, not be pronounced and shall not be given effect to. When in the similar matter the Hon'ble Supreme Court has passed an order, then, in our opinion, it would be just and proper to pass a similar order in this case also because on the basis of principle of precedents the order passed by the Hon'ble Supreme Court in the similar matter has to be followed by the High Court. The facts of the present case are almost similar and not different to the case pending before the Hon'ble Supreme Court bearing SLP (Civil) No. 29882/2011.
Admittedly, the impugned order passed by the Writ Court is in the shape of final order, which may affect the rights of the appellant, hence, in view of the Full Bench decision of this Court in the case of Arvind Kumar Jain (supra) the present appeal is maintainable. Hence, the appeal is disposed of with the following directions:-
i. The impugned order passed by the learned Writ Court dated 9/10/2013 is modified to the extent that the proceedings before the respondents No. 1 and 2 shall continue and the respondents are at liberty to pass a final order, however, that order shall not be pronounced and shall not be given effect to. It is hereby further clarified that this order is subject to modification, if subsequently the Hon'ble Supreme Court passes any order in the aforesaid SLP pending before the Hon'ble Supreme Court. It is further clarified that this order is interim in nature and would not affect the final adjudication of the Writ Petition.
ii. The learned Writ Court is at liberty to decide the Writ Petition on merits. It is further clarified that this Court has not passed any order in regard to merits of the case. The Election Commission-respondents No. 1 and 2 are also at liberty to approach the Hon'ble Supreme Court in regard to modification of the order.
Iii. No order as to costs.
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