# Raja John Bunch v. Union of India & Ors

- **Citation:** (2014) 2 ILRA 635
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-28
- **Case number:** Civil Misc. Writ (P.I.L) Petition No.24206 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raja-john-bunch-v-union-of-india-ors-42870
- **Pages:** 6

## Headnote

Constitution of India, Art.-226- Public
Interest Litigation-petitioner seeking to
quash the provisions of section 33(7) and
section 70 of Representation of people Act
1951 contrary to provisions of Art. 101 of
constitution-held-if a person elected as M.P.
Or
MLA
has
vacate
on
seat-within
prescribed period-otherwise both shall be
deemed vacated-considering such clear
provision-no interfere on called far-petition
can not be entertained-nor mandamus can
be issued to the legislative body to enact
particular law sole-wisdom of legislaturepetition dismissed.

Held: Para-14&15

## Text

2 All] Raja John Bunch Vs. Union of India & Ors.
635
none other than a judgment of this Court
and the correctness of which has not been
doubted by the learned counsel for the
parties, further, when there is no dispute
of it having attained finality. In such
circumstances, there is no shadow of
doubt that the prosecution of the applicant
would be an exercise in futility and waste
of precious time of the court. Holding of
trial now, when the fundamental issue has
already been decided by this Court in
favour of the applicant (accused), would
be travesty of justice. Accordingly, this
Court considers it to be a fit case where
the proceedings deserve to be quashed.

12. For the reasons stated here-inabove, the application is allowed. The
proceedings of criminal case no.1595 of
2012,
arising
out
of
charge-sheet
submitted by the police, under Section
420 IPC, in case crime no.464 of 2012,
police station Kotwali, district Ballia,
pending in the Court of Chief Judicial
Magistrate, Ballia, are hereby quashed.

13. There shall be no order as to
costs.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ (P.I.L) Petition No.24206
of 2014

Raja John Bunch ...Petitioner
Versus
Union of India & Ors. ...Respondents
Counsel for the Petitioner:
Sri Tanveer Ahmad Siddiqui, Sri Bidhan
Chandra Rai

Counsel for the Respondents:
A.S.G.I., Sri Bhoopendra Nath Singh, Sri
Krishna Agrwal

Constitution of India, Art.-226- Public
Interest Litigation-petitioner seeking to
quash the provisions of section 33(7) and
section 70 of Representation of people Act
1951 contrary to provisions of Art. 101 of
constitution-held-if a person elected as M.P.
Or
MLA
has
vacate
on
seat-within
prescribed period-otherwise both shall be
deemed vacated-considering such clear
provision-no interfere on called far-petition
can not be entertained-nor mandamus can
be issued to the legislative body to enact
particular law sole-wisdom of legislaturepetition dismissed.

Held: Para-14&15
14. These, in our view, are matters of
legislative policy. What the Election
Commission of India has observed is
undoubtedly a matter which must be
attributed
the
greatest
weight
and
deference but that would not result in an
existing provision of law being rendered
unconstitutional or arbitrary.

15. 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,
636 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. This petition has been filed in the
public interest. The petitioner is an RTI activist
and is a life member of the National Campaign
for People's Right to Information. The
petitioner challenges the constitutional validity
of the provisions of Section 33 (7) of the
Representation of the People Act, 1951 on the
ground that these provisions are inconsistent
with Article 101 of the Constitution. The
petitioner also seeks a writ of mandamus to
implement the recommendation which was
made by the Election Commission of India to
restrict a candidate from contesting an election
from more than one constituency in a particular
election. The petitioner further seeks a
mandamus to recover the entire expenses
incurred in a constituency in which a seat gets
vacated as a consequence of a candidate
resigning his seat. Finally, the petitioner seeks
that guidelines be framed to debar every
member from contesting an election for a
stipulated duration upon resigning his or her
seat.

2.

Section
33
(7)
of
the
Representation of the People Act, 1951
provides as follows:

"(7)
Notwithstanding
anything
contained in sub-section (6) or in any
other provisions of this Act, a person shall
not be moninated as a candidate for
election,--

(a) in the case of a general election to
the House of the People (whether or not
held
simultaneously
from
all
Parliamentary constituencies), from more
than two Parliamentary constituencies;

(b) in the case of a general election to
the Legislative Assembly of a State
(whether or not held simultaneously from
all Assembly constituencies), from more
than two Assembly constituencies in that
State;

(c) in the case of a biennial election
to the Legislative Council of a State
having such Council, from more than two
Council constituencies in the State;

(d)in the case of a biennial election
to the Council of States for filling two or
more seats allotted to a State, for filling
more than two such seats;

(e) in the case of bye-elections to the
House of the people from two or more
Parliamentary constituencies which are
held simultaneously, from more than two
such Parliamentary constituencies;

(f) in the case of bye-elections to the
Legislative Assembly of a State from two
or more Assembly constituencies which
are held simultaneously, from more than
two such Assembly constituencies;

(g) in the case of bye-elections to the
Council of States for filling two or more
seats allotted to a State, which are held
simultaneously, for filling more than two
such seats;

(h) in the case of bye-elections to the
Legislative Council of a State having such
Council from two or more Council
constituencies
which
are
held
simultaneously, from more than two such
Council constituencies.
2 All] Raja John Bunch Vs. Union of India & Ors.
637

Explanation.--For the purposes of
this sub-section, two or more byeelections shall be deemed to be held
simultaneously where the notification
calling such bye-elections are issued by
the Election Commission under sections
147, 149, 150 or, as the case may be, 151
on the same date."

3. Section 70 makes the following
provisions:

"70. Election to more than one seat
in either House of Parliament or in the
House or either House of the Legislature
of a State--If a person is elected to more
than one seat in either House of
Parliament or in the House or either
House of the Legislature of a State, then,
unless within the prescribed time he
resigns all but one of the seats by writing
under his hand addressed to the Speaker
or Chairman, as the case may be, or to
such other authority or officer as may be
prescribed, all the seats shall become
vacant."

4. Under clauses (a) and (b) of
Section 33 (7), it is provided that a person
shall not be nominated as a candidate for
an
election
from
more
than
two
constituencies at a general election to the
House of the People or, as the case may
be, to the Legislative Assembly of a State.
In the case of bye-elections to the House
of the People, a candidate cannot be
nominated
from
more
than
two
Parliamentary constituencies. In the case
of
bye-elections
to
the
Legislative
Assembly of a State, a candidate cannot
be nominated from more than two
Assembly constituencies in that State.

5. The submission before the Court
is that the provisions of Section 33 (7) are
contrary to and inconsistent with Article
101 of the Constitution.

6. Article 101 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
638 INDIAN LAW REPORTS ALLAHABAD SERIES
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"

7. 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 Parliament would become vacant,
unless the person has previously resigned
his seat in the Legislature of the State.

8. 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.

9. 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 sub-section (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.

10. 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.

11. 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.

12. The Election Commission of
India had, in its Proposals for Electoral
Reforms of 2004, suggested that the law
should be amended to provide that a
person cannot contest from more than one
constituency at a time. In the alternate, it
was suggested that if the provision
facilitating a candidate to contest from
two constituencies is to be retained, an
2 All] Raja John Bunch Vs. Union of India & Ors.
639
express provision should be made in law
to deposit, with the Government, an
appropriate amount of money being the
expenditure for holding the bye-election.
The observations in the report of the
Election Commission of India are of
significance and read as follows:

"RESTRICTION
ON
THE
NUMBER OF SEATS FROM WHICH
ONE MAY CONTEST

As per the law as it stands at present
[Sub-Section (7) of Section 33 of the
Representation of the People Act, 1951], a
person can contest a general election or a
group
of
bye-elections
or
biennial
elections from a maximum of two
constituencies.

There have been several cases where
a person contests election from two
constituencies, and wins from both. In
such a situation he vacates the seat in one
of
the
two
constituencies.
The
consequence is that a bye-election would
be
required
from
one
constituency
involving
avoidable
labour
and
expenditure on the conduct of that byeelection.

The Commission is of the view that
the law should be amended to provide that
a person cannot contest from more than
on constituency at a time.

The Commission will also add that in
case the legislature is of the view that the
provision facilitating contesting from two
constituencies as existing at present is to
be retained, then there should be an
express provision in the law requiring a
person who contests and wins election
from two seats, resulting in a bye-election
from one of the two constituencies, to
deposit in the government account an
appropriate amount of money being the
expenditure for holding the bye-election.
The amount could be Rs.5,00,000/- for
State Assembly and Council election and
Rs.10,00,000/- for election to the House
of the People."

13. To the same effect, is a
Background Paper on Electoral Reforms
published by the Legislative Department
of the Ministry of Law and Justice,
Government of India. The suggestion in
the Background Paper is thus:

"6.5 Restriction on the number of
seats which one may contest.

Section 33 of the Representation of the
People Act, 1951, a person can contest a
general election or a group of bye-elections
or biennial elections from a maximum of two
constituencies. There have been several cases
where a person contests election from two
constituencies, and wins from both. In such a
situation he vacates the seat in one of the two
constituencies. The consequence is that a
bye-election would be required from one
constituency which apart from involving
avoidable labour and expenditure on the
conduct of that bye-election.

* Recommendations

The Election Commission is of the
view that the law should be amended to
provide that a person cannot contest from
more than one constituency at a time."

14. These, in our view, are matters of
legislative
policy.
What
the
Election
Commission of India has observed is
undoubtedly a matter which must be attributed
the greatest weight and deference but that
would not result in an existing provision of law
being rendered unconstitutional or arbitrary.
640 INDIAN LAW REPORTS ALLAHABAD SERIES

15. 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.

16. The petition is, accordingly,
dismissed. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2014

BEFORE
THE HON'BLE AMRESHWAR PRATAP
SAHI, J.
THE HON'BLE VIVEK KUMAR BIRLA, J.

Civil Misc. Writ Petition No. 24469 of 2012

Satish Kumar Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Akhilesh Kumar Sharma, Sri U.N.
Sharma
Counsel for the Respondents:
C.S.C., Sri M.C. Chaturvedi, Sri Piyush
Shukla

Urban Planning Development Act-1973Section
13-petitioner
representationrejected on ground-the plot in question
ermarked for park-after inviting objectionpublished under public notice-petitioner did
not choose to file any objection-after 6
years representation about alteration duly
approved-can not be entertained-petition
dismissed.

Held: Para-9
Sri Sharma is correct to this extent and
location or relocation cannot be altered
without any procedure being followed in
this regard, but in the instant case the
alteration which is permissible under the
provisions of 1973 Act has been carried out
after due public notice in the newspapers.
The petitioner claims to be ignorant about
such
notice.
A
public
notice
in
the
newspapers cannot be discarded as such
allegations. Admittedly, the petitioner did
not file any objection in relation to the
proposed alteration in the Master Plan.

Case Law discussed:
AIR 1991 SC 1902; AIR 1993 Allahabad 57.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Dr. Akhilesh Kumar
Sharma, learned counsel for the petitioner
and perused the counter affidavit filed by
the respondent-authority.

2. The petitioner has come up
questioning the order passed by the Agra
Development
Authority,
Agra
dated
3.4.2012 whereby his representation has
been rejected on the ground that the land in
dispute over which the petitioner alleges to
have
raised
constructions,
has
been
earmarked as a park and also for other