Saturday, February 4, 2023

Allahabad High Court dismisses petition questioning continuance of Yogi Adityanath as Chief Minister

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The Lucknow Bench of the Allahabad High Court has dismissed a petition questioning Yogi Adityanath’s continuance as Chief Minister.

The Division Bench of Justice Attau Rahman Masoodi and Justice Om Prakash Shukla passed this order while hearing a petition filed by Dr M Ismail Faruqui.

The prayer made in the writ petition reads as under:-

(i) Issue a writ quo warranto to the respondent very kindly questioning his continuance as Chief Minister of State of Uttar Pradesh with effect from 25.09.2022.

(ii) To pass any other appropriate order as the circumstances of the case may require; and

(iii) To allow the writ petition.

The Petitioner has admitted that he is neither an Elector nor a candidate at the election of 322- Gorakhpur Urban Legislative Assembly constituency, from which the Respondent stands elected.

It is also available from the Writ Petition that the petition has come to be filed on the ground that (a) the respondent is a usurper of office of Chief Minister of State of Uttar Pradesh with effect from 25.09.2022 and (b) Allegedly the Respondent was not qualified to contest the election for the current legislative assembly of State of Uttar Pradesh due to violation of provisions of Rule 4 A of the Conduct of Election Rules, 1961.

Thus, it has been prayed by the Petitioner for issuance of Writ of Quo Warranto against the Respondent for his continuation as Chief Minister of State of Uttar Pradesh with effect from 25.09.2022.

The petitioner has also relied upon a judgment passed by the Kerala High Court in the case of Shaiju J Kooran & Etc V/s State Election Commission, Thiruvananthapuram and Ors (AIR 2003 Kerala 246), wherein election as municipal councillors and panchayat member under the Kerala Municipality Act was under challenge.

The court, having given a thoughtful consideration to the issue in hand, finds the petition to be very amusing.

The Court noted that the  petitioner filed an identical petition praying  for the same relief which was dismissed as withdrawn.

Apparently, no leave nor any liberty had been sought by the Petitioner to file the Petition. A constitutional Bench of the Supreme Court way back in the year 1990 has held that the principles of res judicata are applicable to writ petitions in the case of Direct recruit class II engineering officers Association V/s State of Maharashtra, (1990) 2 SCC 715, however the court without testing the writ petition on the premise of res-judicata, grants the concession of considering the writ petition.

The Court further noted that,

Section 80 of the Representation of People’s Act, 1951 interalia states that no election shall be called in question except by an Election Petition presented in accordance with the provisions of this part.

Essentially, the sum & substance of the relief being sought by the Petitioner is on the basis of an attack to the alleged affidavit filed by the Respondent in terms of the provisions of Rule 4 A of the Conduct of Election Rules, 1961.

It is the case of the petitioner that since the said affidavit was not as per the provisions of the said rules, the election of the respondent as a Member of the Legislative Assembly was not legal and consequently, even if, the respondent had been appointed as a Chief Minister of the state of Uttar Pradesh, his continuation cannot be confirmed as per law in view of Article 164(4) of the Constitution of India, which prescribes that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

In the first blush, the argument of the petitioner seems to be very attractive, but on a deep enquiry it is apparent that the petitioner is drawing the aforesaid analogy by presuming that the election of the Respondent is not proper. The petitioner besides drawing attention of this court to the Affidavit filed by the respondent in terms of Rule 4A of the Conduct of Election Rules, 1961 has not been able to show a single document which would show that the election of the respondent has been found by any competent authority to be not proper. Having said so, this court finds that the Petitioner under the garb of the petition is actually seeking to challenge the election of the Respondent from 322 – Gorakhpur Urban Legislative Assembly.

However, the Court found that the said challenge to the election can be made only by filing an Election Petition before this court as per the conditions provided in the Representation of Peoples Act, 1951. Any challenge to an election is a statutory right and is available to a person as has been prescribed under the statute only. The Petitioner has for obvious reasons not filed the Election Petition in the case & has chosen to file the Writ Petition which is not permissible under the statute. In fact the Petitioner by filing the Writ Petition is trying to do something indirectly which the law prohibits him to do directly.

The Court said that the Petitioner claims that the provisions of Article 329 of the Constitution of India and Section 80 of the Act are not applicable herein as no Election Petition could have been filed, if at all, preferred by the Petitioner questioning the election of the Respondent on the grounds mentioned in the Writ Petition. First and foremost as already held that the relief being sought by the Petitioner could have been granted in Election Petition only, however the court finds that the Supreme Court in case of Krishna Ballabh Prasad Singh vs Sub – Divisional Officer Hilsa- CumReturning Officer & Ors (1985) 4 SCC 194 has held that the process of Election comes to an end after the declaration in Form 21–C was made and the consequential formalities were completed, the bar of clause D of Article 329 of the Constitution of India came into operation thereafter and an Election Petition alone was maintainable thus the Supreme Court held in that case that the Writ Petition cannot be entertained. Thus, the reliance placed by the petitioner in the Shaiju J Kooran case as mentioned supra is misplaced.

The Court further found it profitable to quote the observation made by the Supreme Court relating to the filing of the Petition under section 226 of the Constitution of India inter-alia challenging the election to the state legislature which has been sought to be similarly done in the case. The petition is also liable to be rejected in as much as the Petitioner does not have any locus for filing the petition. As to who can prefer an Election Petition, section 81 of the Representation of People Act, 1950 provides that an Election Petition may be presented by (a) any elector or; (b) any candidate at such election. Further the explanation to section 81 provides that an elector means a person who was entitled to vote at the election to which the Election Petition relates. In the case, the Petitioner has admitted that he is not an elector registered in the 322 – Gorakhpur Urban Legislative Assembly.

Therefore, the Court also found that the petitioner does not have any locus for filing the writ petition as has also been held in the case of Tej Bahadur vs Narendra Modi (2020) SCC Online SC 951, wherein the Apex court held that the locus for filing an Election Petition depends entirely on the question whether a particular person is an elector of the constituency or is a candidate or can claim to be a duly nominated candidate. The Petitioner fails to fall in any of the categories to make the petition maintainable.

“The courts have also from time to time held that no litigant has a right to unlimited draught on the court time and public money in order to get his affairs settled in a manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions.

The court cannot be oblivious to the fact that today people rush to Courts to file cases in profusion under this attractive name of public interest.

Further, the petitioner has failed to show from records as to how the appointment or the continuation of the respondent in the Chief Minister post is not in accordance with law.

Recently the bench of HMJ D.Y Chandrachud & HMJ Hima Kohli in the case of “State of West Bengal Vs Anindya Sundar Das” ………., while referring to various judgments including Bharati Reddy v State of Karnataka (2018) 6 SCC 162, observed that the issue is no longer res integra relating to the settled position that the writ of quo warranto can be issued only where an appointment has not been made in accordance with the law”, the Court observed.

“For all the aforesaid reason the present petition is dismissed, however since valuable time has been spent by the court on at least two occasions, therefore this court finds it appropriate to impose an exemplary cost of Rs 11,000/- on the petitioner, which shall be paid to State legal Services Authority Within four weeks “, the order reads.

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