# Prabuddha Nagrik Chetna Manch Gonda [PIL] v. Union of India & Anr

- **Citation:** (2015) 2 ILRA 838
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-13
- **Case number:** Misc. Bench No. 6051 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabuddha-nagrik-chetna-manch-gonda-pil-v-union-of-india-anr-43207
- **Pages:** 4

## Headnote

Representation of People Act, 1951-Section
33(7) Nomination of Candidate-validity of
such provision-being contrary to Rule 101ultravires-held-'No' embargo in contesting
more
than
one
constituency-but
the
candidate having largest vote-shall be
declared.
Held: Para-8
Following the view which has already been
expressed by the Division Bench with which
we respectfully concur, we see no reason to
entertain the challenge to Section 33 (7)
which is lacking in substance.

## Text

838
 INDIAN LAW REPORTS ALLAHABAD SERIES
by the appellate authority and the order of
cancellation of fair price shop license dated
16.07.2007 are hereby quashed. Needless to
say that this order shall not preclude the
competent
authority
from
passing
appropriate order in accordance with law.
18. The writ petition stands allowed
in above terms.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.07.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
HON'BLE SHRI NARAYAN SHUKLA, J.
Misc. Bench No. 6051 of 2015
Prabuddha Nagrik Chetna Manch Gonda
[PIL]
 ...Petitioner
Versus
Union of India & Anr.
...Respondents
Counsel for the Petitioner:
Hari Ram Shukla
Counsel for the Respondents:
A.S.G., Manish Mathur
Representation of People Act, 1951-Section
33(7) Nomination of Candidate-validity of
such provision-being contrary to Rule 101ultravires-held-'No' embargo in contesting
more
than
one
constituency-but
the
candidate having largest vote-shall be
declared.
Held: Para-8
Following the view which has already been
expressed by the Division Bench with which
we respectfully concur, we see no reason to
entertain the challenge to Section 33 (7)
which is lacking in substance.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The petition invoking the
jurisdiction in public interest seeks two
reliefs in regard to the law pertaining to
elections to Parliament and the State
legislature. The first relief is in respect of
Rule 64 of the Conduct of Election Rules,
19611 under which a candidate to whom
the largest number of valid votes have
been given, is to be declared to be elected
under Section 66 of the Representation of
the People Act, 19512. The petitioner
seeks a mandamus by this Court to refrain
from giving effect to the expression "to
whom the largest number of valid votes
have been given".
2. The contention of the petitioner is
that Sections 14 and 15 of the Act of 1951
contain no provision under which a
candidate with the largest number of votes
is to be declared to be elected. Section 14
provides for a notification of a general
election to the House of the People. Subsection (2) of Section 14 empowers the
President by notification to call upon all
Parliamentary constituencies to elect
members
in
accordance
with
the
provisions of the Act on such dates as
may be recommended by the Election
Commission. A similar provision is
contained in Section 15 in relation to the
State Legislative Assembly.
3. Rule 64 adopts the first past the
post principle since a candidate with the
largest number of valid votes is to be
declared as elected. The petitioner has not
challenged the constitutional validity of
Rule 64. But, technicalities apart, there is
no reasonable basis for this Court to come
to the conclusion that the provision is
ultra vires. The manner in which elections
have to be held and results computed and
declared is a matter of legislative policy.
Rule 64 provides an acceptable mode for
2 All] Prabuddha Nagrik Chetna Manch Gonda [PIL] Vs. Union of India & Anr.
839
declaration of results in a democracy by
postulating that a candidate with the
largest number of valid votes would be
declared to be elected. This does not
either infringe the provisions of the parent
legislation or for that matter of the
Constitution. Hence we see no substance
in the challenge.
4. The petitioner has also challenged
the validity of Section 33 (7) of the Act of
1951. Under clauses (a) and (b) of Section
33 (7), a person cannot be nominated as a
candidate for an election for more than
two constituencies at a general election to
the House of the People or, as the case
may be, the Legislative Assembly of the
State.
5. Article 101 of the Constitution
provides as follows:
"101. Vacation of seats.-- (1) No
person shall be a member of both Houses
of Parliament and provision shall be made
by Parliament by law for the vacation by a
person who is chosen a member of both
Houses of his seat in one House or the
other.
(2) No person shall be a member
both of Parliament and of a House of the
Legislature of a State, and if a person is
chosen a member both of Parliament and
of a House of the Legislature of a State,
then, at the expiration of such period as
may be specified in rules made by the
President, that person's seat in Parliament
shall become vacant, unless he has
previously resigned his seat in the
Legislature of the State.
(3) If a member of either House of
Parliament--
(a) becomes subject to any of the
disqualifications mentioned in clause (1)
or clause (2) of Article 102, or
(b) resigns his seat by writing under
his hand addressed to the Chairman or the
Speaker, as the as may be, and his
resignation is accepted by the Chairman
or the Speaker, as the case may be,
his seat shall thereupon become
vacant:
Provided that in the case of any
resignation referred to in sub clause (b), if
from information received or otherwise
and after making such inquiry as he thinks
fit, the Chairman or the Speaker, as the
case may be, is satisfied that such
resignation is not voluntary or genuine, he
shall not accept such resignation.
(4) If for a period of sixty days a
member of either House of Parliament is
without permission of the House absent
from all meetings thereof, the House may
declare his seat vacant:
Provided that in computing the said
period of sixty days no account shall be
taken of any period during which the
House is prorogued or is adjourned for
more than four consecutive days.
6. The constitutional validity of
Section 33 (7) has been upheld by a
Division Bench of this Court in Raja John
Bunch vs. Union of India & others3 in a
judgment delivered on 28 April 2014. The
Division Bench observed as follows:
"Article 101 does not contain any
prohibition or restriction on a person
contesting an election or filing a nomination
from more than one constituency. Clause (1)
of Article 101 provides that a person shall
not be a member of both the Houses of
Parliament. Clause (2) of Article 101
provides that no person shall be a member of
Parliament and of a House of the Legislature
of a State. If such an eventuality occurs, then,
upon the expiry of the period specified in the
rules made by the President, the seat held in
840
 INDIAN LAW REPORTS ALLAHABAD SERIES
Parliament would become vacant, unless the
person has previously resigned his seat in the
Legislature of the State.
Sub-clause (b) of Clause (3) of
Article 101 allows a member of either
House of Parliament to resign his seat by
writing under his hand addressed to the
Chairman or the Speaker, as the case may
be. The seat becomes vacant upon the
acceptance of the resignation by the
Chairman or the Speaker.
Consequently, a plain reading of Article
101 would indicate that it does not place any
restriction on the number of constituencies
from which a person may file his/her
nomination during the course of a general
election. Such a restriction is imposed in subsection (7) of Section 33 of the Representation
of the People Act, 1951. There is nothing
inconsistent between Article 101 and Section
33 (7). Under Section 70, if a person is elected
to more than one seat in either House of
Parliament or of the Legislature of a State, he
has to resign from all but one of the seats
within the prescribed time failing which all the
seats shall become vacant.
The submission is that the provision by
which a candidate may contest or file his
nomination from more than one seat (subject
to a maximum of two) results in a situation
where
the
constituency
would
be
unrepresented once the candidate resigns
from the seat. This circumstance would not,
in
our
view,
render
a
provision
unconstitutional. A seat may fall vacant for a
variety of reasons including, amongst them,
the disqualifications which are contained in
Article 102 of the Constitution. The seat
which falls vacant has to be filled up in
accordance with law.
As a matter of fact, Article 101 (3)
(b) contemplates that a seat would
become vacant when the resignation of a
member of either House of Parliament
from his seat is accepted by the Chairman
or the Speaker, as the case may be."
7. The Division Bench observed that
the Election Commission of India in 2004
suggested amendments to the law to
provide that a person cannot contest from
more than one constituency at a time.
However, the Division Bench noted that
these are matters of legislative policy. The
Division Bench held as follows:
"In a cases pertaining to the enactment of
a particular law or policy, the Court would not
be justified in issuing a writ of mandamus
directing that the law should be amended. A
mandamus to that effect cannot be issued by
the High Court under Article 226 of the
Constitution. No direction can be issued to a
legislative body to enact a law or to amend an
existing law. The alternate reliefs which have
been sought in the petition are all basically
matters of legislative policy. The Election
Commission of India, which is vested with the
authority under Article 324 of the Constitution
of superintendence, direction and control over
elections, has formulated its suggestions for
electoral reforms. The matter must rest there,
insofar as this Court is concerned. We find no
reason to entertain the petition or to accept the
submission that Section 33 (7) and Section 70
of the Representation of the People Act, 1951
are contrary to Article 101 of the Constitution.
We also decline to entertain the other reliefs
which have been pressed in the alternate."
8.
Following the view which has
already been expressed by the Division
Bench with which we respectfully concur,
we see no reason to entertain the challenge to
Section 33 (7) which is lacking in substance.
9. For these reasons, there is no merit in
the petition which is, accordingly, dismissed.
There shall be no reason as to costs.
--------
2 All] Smt. Rina Kumari Vs. State of U.P. & Ors.
841
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2015
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHASHI KANT, J.
Criminal Misc. Writ Petition No. 10792 of
2015
Smt. Rina Kumari
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Rohit Pandey
Counsel for the Respondents:
A.G.A.
Constitution of India, Art.-226-Petitioner
seeking transfer of investigation from Civil
Police to CBCID-offence under Section 452,
376, 506 IPC read with Section 3 (i)Xii
SC/ST-conduct of Police from stage of
lodging FIR-even supporting the FIR version
u/s 161 Cr.P.C.-submitting final report
without statement of 164 Cr.P.C.-learned
Magistrate while rejecting final reportpassing structure against I.O.-considering
conduct of I.O.-state government to transfer
investigation to CBCID-petition allowed.
Held: Para-42, 43
42.
We direct Chief Secretary, U.P.
Government; Principal Secretary (Home),
U.P.
Government;
and,
Secretary
(Appointment),
U.P.
Government
to
immediately look into the matter, take
appropriate steps and finalize scheme(s) so
as to make U.P. Police Force, a real law and
order enforcing machinery which should
appear to be working and bring confidence
of people, back. It should also reflect upon
the steps taken by aforesaid officials in
respect of matters of non-registration of
reports
by
police
officials
whenever
information of occurrence of a cognizable
offence is conveyed. The steps taken shall
also show, how aforesaid officials have
ensured compliance of directions given by
this Court as well as Apex Court in Roop
Ram Vs. State of U.P. (supra) and Lalita
Kumari Vs. Government of U.P. (supra). In
case of lapses on the part of concerned
police officials, how steps would be taken to
punish the guilty officials should also be a
part of the scheme. They shall also submit a
progress report, on expiry of six months
from the date of delivery of this judgment,
showing steps taken by them in this regard
and the consequences thereof. They shall
make inquiry and inform the Court about
the officers who have disobeyed Court's
order
regarding
registration
of
first
information
report
so
that
separate
proceeding of contempt may be drawn
against them.
43. In the present case since conduct of
Investigating Officer is suspicious and
lacks independence and fairness, we
direct the State Government to transfer
inquiry to C.B.C.I.D., who shall proceed
with investigation and complete the
same within a period of three months.
Case Law discussed:
2009 (5)ADJ 707; 2014 (2) SCC 1; (1991) 4
SCC 406; (1980) 3 SCC 526; (1995) 3 SCC
757; (2004) 5 SCC 26.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This writ petition under Article 226
of the Constitution of India has been filed by
Smt. Rina Kumari seeking a mandamus
commanding
respondent
no.
2,
i.e.,
Superintendent of Police, Rampur to transfer
investigation of Case Crime no. 278-C/2014,
under Sections 452, 376, 506 I.P.C. and
3(1)XII SC/ST Act, Police Station Milak,
District
Rampur
from
the
present
Investigating Officer, Dr. Tej Veer Singh,
Circle Officer, Milak, Rampur to any other
officer and to direct a fair investigation.
2. The facts, in brief, are that the
petitioner fell victim to criminal act of