# Suresh Jaiswal v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 1257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-20
- **Case number:** Writ C No. 53941 of 2015
- **Bench:** Mrs. Sunita Agarwal, Mahesh Chandra Tripathi, Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-jaiswal-v-state-of-u-p-anr-45158
- **Pages:** 15

## Headnote

A. Constitution of India - Article 243-O -
Bar to interference by courts in electoral
matters - Allahabad High Court Rules'
1952 - scope of Chapter V Rule 6 -
Reference to a larger Bench - held -
reference cannot be made for the mere
necessity of creating a precedent - an
issue being of importance by itself,
cannot be a ground for referring the
matter to the Larger Bench. (Para 49 & 60)

Judicial intervention in election matters should
be minimal - No absolute bar in exercise of
discretionary jurisdiction in a writ by the
Constitutional Court - Each matter has to be
examined with due care and circumspection by
the Court keeping in mind the self imposed
limitations and the Constitutional bar under
243-O of the Constitution of India - No
straight-jacket formula - The whole idea of self
imposed limitations is to provide an internal
remedy in such cases without compelling the
parties to go all the way to the Constitutional
courts or increase the burden of that Court,
unnecessarily. (Para 59)

Held: - The questions referred are hypothetical
and are only of the academic importance as it
is not known whether the issues raised survive
or not - Reference cannot be answered by the
Larger Bench even if it is of the view that the
settled law has not been considered by the
Division Bench while making the reference -
the questions referred cannot be answered as
questions of general importance as there was
no conflict - the reference to the Full Bench
was not properly made and it is annulled,
accordingly.(Para 62 & 65)

Reference answered. (E-7)

List of cases cited: -

## Text

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1 All. M/s Veekey General Industries Vs. Union of India & Ors.
1257
Court should not have entertained writ
petition
under
Article
226
of
the
Constitution.

28. In view of above, we are clearly
of the view that it is not a fit case where
this Court must exercise its public law
remedy available under Constitution which
is extraordinary, discriminatory remedy
and instead petitioner must be relegated to
avail its alternative remedy by invoking
arbitration clause in the agreement or avail
common law remedy in Civil Court.

29. Writ petition is accordingly
dismissed.
----------
(2020)1ILR 1257

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2019

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
THE HON'BLE SUNEET KUMAR, J.

Writ C No. 53941 of 2015
Along With
77 Other Writ C Cases

Suresh Jaiswal ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri S.K. Singh Paliwal, Sri Shashi Nandan,
Sri Manish Kumar Pandey

Counsel for the Respondents:
C.S.C., Sri Tarun Agarwal

A. Constitution of India - Article 243-O -
Bar to interference by courts in electoral
matters - Allahabad High Court Rules'
1952 - scope of Chapter V Rule 6 -
Reference to a larger Bench - held -
reference cannot be made for the mere
necessity of creating a precedent - an
issue being of importance by itself,
cannot be a ground for referring the
matter to the Larger Bench. (Para 49 & 60)

Judicial intervention in election matters should
be minimal - No absolute bar in exercise of
discretionary jurisdiction in a writ by the
Constitutional Court - Each matter has to be
examined with due care and circumspection by
the Court keeping in mind the self imposed
limitations and the Constitutional bar under
243-O of the Constitution of India - No
straight-jacket formula - The whole idea of self
imposed limitations is to provide an internal
remedy in such cases without compelling the
parties to go all the way to the Constitutional
courts or increase the burden of that Court,
unnecessarily. (Para 59)

Held: - The questions referred are hypothetical
and are only of the academic importance as it
is not known whether the issues raised survive
or not - Reference cannot be answered by the
Larger Bench even if it is of the view that the
settled law has not been considered by the
Division Bench while making the reference -
the questions referred cannot be answered as
questions of general importance as there was
no conflict - the reference to the Full Bench
was not properly made and it is annulled,
accordingly.(Para 62 & 65)

Reference answered. (E-7)

List of cases cited: -

1. Rishipal Singh vs. State of U.P. and others

2. Rajesh Kumar Singh vs. State of U.P. and other

3. L. Chandra Kumar Vs. Union of India and others

4. Laxmi Charan Sev Vs. A.K.M. Hasan Usman

5. N.P. Ponnuswami vs Returning Officer,
Namakkal

6. Mohindra Singh Gill Vs. Chief Election
Commissioner

7. Election Commission of India Vs. Ashok
Kumar
&
others
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Election Commission of India Vs. State of
Haryana

9. Digvijiay Mote Vs. Union of India9, Anugrah
Narain Singh & another Vs. State of U.P. &
others

10. C. Subrahmanyam Vs. K. Ramanjaneyullu &
others

11. Tika Ram and others versus State of U.P
and others

12. Suo Moto Action Taken by the Court Vs.
I.C.I.C.I. Bank Limited, Allahabad

13. Babu Premarajan Vs. Superintendent of
Police, Kasaragode & others

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J. & Hon'ble Mahesh Chandra
Tripathi, J. & Hon'ble Suneet Kumar, J.)

1. Heard Shri Manish Kumar
Pandey, learned counsel appearing for the
petitioner, Shri Neeraj Tripathi learned
Addl. Advocate General assisted by Shri
Shashank Shekhar Singh learned Addl.
Chief Standing Counsel and Shri Tarun
Agarwal learned counsel appearing for the
State Election Commission.

2. This Larger Bench has been
constituted under the orders of Hon'ble the
Chief Justice on a reference made by the
Division Bench vide judgment and order
dated 29.09.2015.

3. For the elections of Panchayats,
namely
Gram
Panchayat,
Kshetra
Panchayat, Zila Panchayat, State of U.P.,
process had been initiated in the year
2015.
During
the
said
process,
a
Government order dated 11.08.2015 was
issued to adopt certain procedure for
reservation and allotment of seats with
some modification as provided in the
earlier
Government
order
dated
09.07.2010. After receipt of objections on
the list of the constituencies, it appears that
the District Magistrate had proceeded to
decide all objections by means of an order
dated 13.09.2015. It appears that at this
stage, a number of writ petitions were filed
by different persons challenging the
manner and methodology adopted by the
State Government in delimitation of
constituencies, reservation and allotment
of seats. Objections were raised on the
decision of the State Government vide
Government
order
dated
05.09.2015
wherein it was notified that in Three-tier
Panchayat Elections, the proceedings for
reservation and allotment of seats for
Pramukh, Kshetra Panchayat; members,
Kshetra Panchayat and member of Zila
Panchayat would continue as per the timetable notified for the same, whereas, the
proceedings for reservation and allotment
of seats for the Gram Panchayats be kept
in abeyance till further orders were passed.

4. In addition to the challenge made
against the decision of the District
Magistrate on the objections of the
petitioner to the list of reservation and
allotment of seats, another issue raised was
that
there
was
no
justification
for
postponing
the
elections
of
Gram
Panchayats though the term of Gram
Panchahyats was about to expire and
further that in Three-tier system, without
elections
for
Gram
Panchayats,
the
constitution of Kshetra Panchayat and Zila
Panchayat was not possible. The relief,
thus, was sought to issue writ in the nature
of
mandamus
commanding
the
respondents to re-frame the reservation of
territorial constituency of Zila Panchayat.

5. Before the Division Bench, the
original records from the office of the
District Magistrate in the matter of
1 All. Suresh Jaiswal Vs. State of U.P. & Anr.
1259
application of reservation as per U.P.
Panchayat Raj (Reservation and Allotment
of Seats and Offices) Rules' 1994 in
respect of particular seats in each District
were summoned by the order dated
22.09.2015. While examining the said
record, certain objections were made by
the Division Bench in the order dated
23.09.2015, which is quoted in the referral
order.
On 24.09.2015,
certain
more
records were examined by the Court and it
had framed the issues which arose for
consideration before it. The matter was
fixed for further hearing on 28.09.2015.

6. The relevant observations of the
Division Bench in the order dated
24.09.2015 are quoted herein:-

"how can the elections for Zila
Panchayat be held without the first level of
three tier panchayat elections, namely,
village panchayat elections being first held
and then the intermediatory level elections
of kshetra panchayat."

7. It appears that on 24.09.2015,
when the matter was taken up, State had
raised objections regarding maintainability
of the writ petitions before the District
Magistrate.
To
strengthen
its
stand,
reliance had been placed upon the
judgment of the Coordinate Bench in the
case of Rishipal Singh vs. State of U.P.
and others; as well as in Rajesh Kumar
Singh vs. State of U.P. and other. The
order dated 24.09.2015 passed in the case
of Rishipal Singh as reproduced in the
referral order is relevant to be extracted
hereunder:-

"The relief which has been
sought in these proceedings which have
been instituted as a public interest
litigation is as follows:

"A. Issue a writ order or
direction in the nature of mandamus
directing the Respondent Authorities to
cancel the reservation of the seat of Ward
No.18 of Zila Panchayat, Meerut to the
other backward class (OBC) category and
instead of it the said seat may be declared
as Unreserved (UR) in the coming Zila
Panchayat Elections."

On 21 September 2015, the State
Election
Commission
has
issued
a
notification for elections to the Zila
Panchayats. In view of the constitutional
bar contained in Article 243-O of the
Constitution, it would not be appropriate
or proper for the Court to entertain the
petition once the electoral process has
been initiated. Hence, we decline to
exercise our writ jurisdiction under Article
226 of the Constitution on that ground.
The petition is, accordingly, dismissed.
There shall be no order as to costs."

8. Having noticed the said order passed
by the Coordinate Bench, the Division
Bench which has referred the question to the
larger Bench passed an order dated
28.09.2015 noticing the argument of learned
counsel for the petitioners that constitutional
remedies as provided under Article 226 of
the Constitution of India being basic feature
of the Constitution cannot be taken away
and the Writ Court can examine the legality
of the statutory provisions, in case, they are
in violation of the constitutional provisions,
including the provisions contained in Article
14 of the Constitution of India. It was argued
that the Hon'ble Supreme Court has already
held that even the laws put under the 9th
Schedule are amenable to exercise of writ
jurisdiction. The provisions of U.P. Zila
Panchayat Kshetra Panchayat Adhiniyam'
1961 cannot be elevated to any higher
position than the Acts put in the 9th
Schedule.
1260 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The arguments of the Staterespondents, on the other hand, was that
the writ petitions were liable to dismissed
in view of the Constitutional bar contained
in Article 240-O of the Constitution. The
Court though had proceeded to examine
the said question as reflected in its order
dated 28.09.2015, but on 29.09.2015, on
the arguments raised by the learned
Advocates for the parties, the Division
Bench
in
its
referral
order
dated
29.09.2015, had recorded its disagreement
with the view taken by the Coordinate
Bench in the case of Rishi Pal Singh (in
its order dated 24.09.2015), and observed
that the view taken by the said Bench that
once the notification for elections of Zila
Panchayat had been issued by the State on
21.09.2015, the Constitutional bar under
Article 243-O of the Constitution of India
in entertaining the writ petition got
attracted, was not correct.

10. After having considered the
submissions advanced by the learned
Advocates on the said issue, it has
proceeded to record in paragraph No.'11'
of the referral order as under:-

"11.
Having
considered
the
submissions advanced by learned counsels
at bar with reference to the judgments
relied upon, we find that the self-imposed
restrictions by a Writ Court under Article
226 of the Constitution of India in matters
of
holding
of
elections
have
been
stringently
resorted
to,
and
any
interference in the process of elections is
ordinarily discouraged. In matters where
process
of
election has
commenced
interference
by
Writ
Court
at
the
intermediate stage is ordinarily not to be
resorted. It has been emphasized time and
again by the Hon'ble Supreme Court that
once
the
process
of
election
has
commenced, any person aggrieved should be
allowed to raise his grievance by filing an
election petition only. However, in cases
where election is not being held in
accordance with the Constitution or there are
inherent defects or breaches of election law
rendering the whole election itself a farce,
would warrant an interference under Article
226 of the Constitution of India is the moot
question?"

11. Proceeding further, the decision
of the Constitution Bench in the case of L.
Chandra Kumar Vs. Union of India and
others was noted to observe that the
power of judicial review by the High
Court
under
Article
226
of
the
Constitution and Hon'ble Supreme Court
under Article 32 is an integral and
essential feature of the Constitution and,
therefore, constitutes part of its basic
structure.
It
was
then
observed
in
paragraph No.'18' of the referral order that
subject to the inherent limitation on the
scope of the exercise of power of High
Court under Article 226, in matters
relating to holding of elections, the Court
was of the considered opinion that the
constitutional bar contained in Article 243O of the Constitution would not be a bar
on the jurisdiction of the Constitutional
Courts under Article 226 & 32 of the
Constitution of India and, therefore, it
could not confirm to the view expressed
by the Co-ordinate Bench in the judgement
and order dated 24.09.2015 in Rishi Pal.

12. In paragraph No.'20' of the referral
order, the Division Bench has expressed the
difficulty it faced to accept the view taken by
the Co-ordinate Bench in Rishi Pal Singh, in
the following words:-

"20. This Bench finds it difficult
to accept the law as laid down by the
1 All. Suresh Jaiswal Vs. State of U.P. & Anr.
1261
Division Bench of this Court in Public
Interest Litigation (PIL) No. 54008 of
2015 (Rishipal Singh Vs. State of U.P. And
others)
to
the
effect
that
though
reservation of seats for the elections is
under challenge but once the notification
for election of Zila Panchayat has been
issued, it would not be appropriate or
proper for the Court to entertain the
petition once the electoral process has
been initiated, in view of the constitutional
bar contained in Article 243-O of the
Constitution of India."

13. It has further recorded in
paragraph No.'21' as under:-

"21. In our opinion, if the very
process
of
holding
election
or
implementation of reservation under the
Rules,
in
respect
of
the
various
constituencies of Zila Panchayat has to be
challenged, then the only remedy available
to a person, not belonging to the reserved
category in question for which the seat has
been reserved, is to file petition under
Article 226 of the Constitution of India. He
has no remedy elsewhere. His challenge to
the process of reservation may ultimately
succeed or may not succeed, is a different
issue, but it cannot be said that the writ
petition is not maintainable. The writ
petition raising such issue, in our opinion,
have to be entertained, notwithstanding
the bar contained in Article 243-O of the
Constitution of India."

14. In the light of the above,
following questions have been referred for
examination by the Larger Bench:-

"(a)
Whether,
constitutional
remedy of judicial review under Article
226 of the Constitution of India, which has
been recognised as a basic feature of
constitution in L. Chandra Kumar Vs.
Union of India, 1997 (3) SCC 261 could
be curtailed in view of the bar created
under Article 243-O of the Constitution of
India?

(b) Whether, a writ petition
under Article 226 of the Constitution of
India can be refused to be entertained for
the reason that a notification for holding
the Panchayat elections has been issued by
the State in view of Article 243-O of the
Constitution of India, even where:

(i) vires of election laws is
questioned,

(ii) Government Orders issued
for effecting the election are stated to be in
breach of election laws/arbitrary,

(iii) actual implementation by the
State of election laws/Government Orders is
stated to be in breach of the provisions,

(iv) any other similar issue?

(c) Whether, the High Court in
exercise of power under Article 226 of the
Constitution of India can interfere in the
election process, if the elections are not being
held in accordance with the Constitution of
India or there is inherent defects or breaches
of the election law making the entire election a
mockery or a farce?

(d) Whether, this Court would
permit ongoing process of election, in the
facts of the present case, or not?

(e) Whether, the vires of the
election laws as well as reservation of
seats can be subjected to challenge only in
a petition under Article 226 of the
Constitution of India or else the aggrieved
person is rendered remedy less?

(f) Whether, the judgment of the
Division Bench in the case of Rishipal
Singh vs. State of U.P. and others (supra)
has laid down the correct law?

15. It is pertinent to note at this stage,
that at the point of time when the referral
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
order was passed, the elections were in
progress and various writ petitions were
filed raising different issues including
some relating to reservation of the various
constituencies.

16. It is admitted that the elections
were held in the year 2015 and the
Panchayats in Three-tier system namely
Gram Panchayat, Kshetra Panhayat and
Zila Panchayat had been constituted.
Nothing has been brought before us to
state
that
any
issue
having
legal
ramifications on the elections held in the
year 2015 have been brought to challenge
which would have required invocation of
powers of this Court under Article 226 of
the Constitution of India.

17. In the light of the abovenoted
facts, we first proceed to examine as to
whether in all propriety, this Larger Bench
has to answer the questions referred to it or
issues have become academic now. We
also propose to examine the circumstances
in which the reference has been made to
note as to whether the decision of the Coordinate
Bench
in
Rishipal
Singh,
correctness of which has been doubted by
the referral Bench, came in its way and it
could not have entered into or adjudicated
the dispute, on its own, in view of the
conflict of opinion. Further, whether the
doubts raised by it to make the reference
before the Larger Bench, in fact, arose or
not.

18. As far as the first issue is
concerned, as noted above, the writ
petitions in this bunch were filed against
the order of the District Magistrate,
Azamgarh in the matter of reservation and
allotment of constituencies for Three-tier
Panchayat elections, i.e. Gram Panchayat,
Kshetra Panchayat and Zila Panchayat.
The
prayer
for
mandamus
was
to
command the respondent to re-frame the
reservation of territorial constituencies so
that a particular ward may not be reserved
in any category. The challenge was, thus,
to the realtime exercise done by the State
Government for delimitation, reservation
and allotment of seats. In so far as the
Gram Panchayats are concerned, the entire
procedure for the purpose has been
provided in Section 11 (f) & 12 of the U.P.
Panchayat Raj Act' 1947 read with the
U.P. Panchayat Raj (Reservation and
Allotment of Seats and Offices) Rules'
1994. Another dispute with regard to the
Government notification dated 13.09.2015
was only this much that without elections
of
Gram
Panchayats,
which
were
postponed by the State Government by the
said notification, the constitution of
Kshetra Panchayat and Zila Panchayat was
not possible.

19. It is informed by Sri Neeraj
Tripathi learned Additional Advocate
General and Sri Tarun Agarwal learned
counsel for the State Election Commission
that the elections for constitution of Threetier local bodies namely Gram Panchayat,
Kshetra Panchayat and Zila Panchayat had
been completed in the year 2015 itself.
The dispute raised by the petitioners
before the Division Bench that the
constitution of Kshetra Panchayat and Zila
Panchayat would not be possible in view
of the postponement of elections of Gram
Panchayat,
therefore,
was
rendered
infructuous in the year 2015 itself.

20. Now the issue with regard to the
reservation and allotment of territorial
constituencies for the elections of Zila
Panchayat and Kshetra Panchayat, i.e.
actual exercise done by the State is
concerned, it appears that a preliminary
1 All. Suresh Jaiswal Vs. State of U.P. & Anr.
1263
objection was raised by the State and the
Election
Commission
regarding
maintainability of the writ petition in view
of the issuance of notification for election
to the Zila Panchayat by the State Election
Commission. The argument was that in
view of the Constitutional bar contained in
Article 243-O of the Constitution, once the
election process had been initiated, the
exercise of writ jurisdiction under Article
226 of the Constitution of India to
challenge the actual exercise of reservation
and allotment of seats, was not possible. In
other words, the plea of bar of Article 243O of the Constitution of India was raised
by the State to entertain the constitutional
remedy in view of the nature of the dispute
before the Division Bench.

21. On the said plea, with due
regards, the Division Bench was required
to examine the issue and express its
opinion. The only reason why the Division
Bench opined that the matter should be
referred to the Larger Bench was, that it
was of the view that the Constitutional bar
contained
in Article
243-O of
the
Constitution would not be an absolute bar
on the jurisdiction of the Constitutional
Courts
under
Article
226
of
the
Constitution of India and that a Coordinate Bench while delivering the
judement and order dated 24.09.2015 took
a contrary view.

22. We have already reproduced the
order of the Co-ordinate Bench in the
preceding paragraph, which was found in
contradiction by the Division Bench
referring the matter to the larger Bench.

23. Having carefully read the order
in Rishi Pal Singh, it is found that the
Division Bench therein had refused to
entertain the writ petition, at the outset,
noticing that in view of the notification
issued by the State Election Commission,
considering
the
Constitutional
bar
contained
in Article
243-O of
the
Constitution, it would not be appropriate
or proper for the Court to entertain the
public interest writ petition, once the
election
process
had
been
initiated.
Expressing the said view, the Court had
declined to exercise writ jurisdiction under
Article 226 of the Constitution on that
ground only. From the bare reading of the
said judgment, we may notice here that the
opinion of the Division Bench in Rishi Pal
Singh was not on any question of law
adjudicated by it, rather it was passed in
view of the nature of relief sought in the
case before it. The challenge to the
election process was brought by way of a
Public Interest Litigation. The Court
therein found that after notification of the
Election Commission, the issues raised
before it could not be adjudicated. In our
opinion, the dismissal of PIL in Rishi Pal
Singh on the ground stated therein was
neither a law laid down by it nor was
binding as a precedent upon the Bench
referring the matter, restricting it from
entering into the preliminary objection or
the controversy in the bunch of writ
petitions raised before it.

24. It appears that only reason which
weighed in the mind of the Division Bench
that the matter should be referred to the
Larger Bench as various questions of law
of general public importance may arise in
the trial of the said cases or other cases in
future.

25. The observations in paragraph
Nos.'20' & '21' of the reference order
quoted above reflect the difficulties
expressed by the Division Bench in
deciding the issues raised before it.
1264 INDIAN LAW REPORTS ALLAHABAD SERIES

26. In our opinion, the dismissal of
the Public Interest Litigation by the
Division Bench in Rishi Pal Singh was
more of a question of judicial propriety
rather than on the power to exercise
jurisdiction to adjudicate on the question
of law raised before that Bench.

27. It appears that within the limits of
self-imposed restrictions which is to be
exercised in the matter of elections by a
Writ Court, the Division Bench dealing
with the Public Interest Litigation had
refused to entertain the writ petition after
notification was issued by the Election
Commission.

28. In this context, it would not be
out of place to mention here that the
Constitutional Bench of the Apex Court in
the case of Laxmi Charan Sev Vs.
A.K.M. Hasan Usman has made a clear
statement in paragraph No.'28' as under:-

"28.We have expressed the view
that preparation and revision of electoral
rolls
is
a
continuous
process,
not
connected with any particular election. It
may be difficult consistently with that
view, to hold that preparation and revision
of electoral rolls is a part of the 'election'
within the meaning of Article 329(b).
Perhaps, as stated in Halsbury in the
passage extracted in Ponnuswami, the
facts of each individual case may have to
be considered for determining the question
whether any particular stage can be a part
of the election process in that case. In that
event, it would be difficult to formulate a
proposition which will apply to all cases
alike."

29. The aforesaid observations
though were made in the interim order of
the courts but in the final order, the
Constitutional Bench reiterates the above
view in the following words:-

"The order dated March 30,
1982 which we will presently reproduce,
contains our reasons in support of this
conclusion. Very often, the exercise of
jurisdiction,
especially
the
writ
jurisdiction involves questions of propriety
rather than of power. The fact that the
Court has the power to do a certain thing
does not mean that it must exercise that
power regardless of the consequences."

30. The question of conflict between
the jurisdiction conferred in the High
Court under Article 226 and the embargo
created by the Constitution under Article
329 was firstly considered in the case of
N.P. Ponnuswami vs Returning Officer,
Namakkal. The law enunciated in N.P.
Ponnuswami (supra) was extensively
dealt with in Mohindra Singh Gill Vs.
Chief
Election
Commissioner,
the
Constitutional Bench noticed two types of
decisions and two types of challenges in
paragraph No.'29' of the report:-

(i)
The
first
relates
to
proceedings which interfere with the
progress of the election and;

(ii) the second which accelerates
the completion of elections and acts in
furtherance of an election.

A third category has been
evolved in the judgment rendered by the
Apex Court in the case of Election
Commission of India Vs. Ashok Kumar
& others, wherein the Apex Court has
observed that there may be a situation
where something has happened which is
calling foul of the law of election and by
the time an election petition is filed and
judicial
assistance
secured,
material
evidence may be lost. If the wrong
1 All. Suresh Jaiswal Vs. State of U.P. & Anr.
1265
committed is left undone in such a case
until after the result of election, the relief
actually given may not amount to anything
at all. The invocation of the constitutional
remedy under Article 226 or Article 32 of
the Constitution of India may be possible
even during the election process.

31. We may note that we are not
called upon to answer whether in the facts
of the cases at hand, the aforesaid third
category of question for interference in
election arises or not.

32. In Election Commission of
India
Vs.
State
of
Haryana,
the
Constitutional Bench noticed the following
observations in interim order of A.K.M.
Hasan4 with approval:-

"The imminence of the electoral
process is a factor which must guide and
govern the passing of orders in the exercise of
the High Court's writ jurisdiction. The more
imminent such process, the greater ought to be
the reluctance of the High Court to do
anything, or direct anything to be done, which
will postpone that process indefinitely by
creating a situation in which, the Government
of a State cannot be carried on in accordance
with the provisions of the Constitution."

33. In Digvijiay Mote Vs. Union of
India9, Anugrah Narain Singh &
another Vs. State of U.P. & others, C.
Subrahmanyam Vs. K. Ramanjaneyullu
& others, it is held that where noncompliance of provision of the Act,
governing the election is a ground for
election petition, the writ petition under
Article 226 of the Constitution of India
should not have been entertained.

34. The law settled by the Apex
Court in Ashok Kumar has been followed
consistently
in
umpteen
number
of
decisions.

35. We may clarify that we are not
on the issue of entertainability of the
bunch of writ petitions by the Division
Bench as the said issue was required to be
adjudicated by it in view of law laid down
by the Apex Court in the matter of scope
of interference in the election process in
writ jurisdiction.

36. We are only scrutinizing whether
the decision in Rishipal was binding on
the Division Bench and it could not have
addressed the controversy before it on the
question of entertainability of the writ
petitions.

37. In the case of Tika Ram and
others versus State of U.P and others, the
Apex Court has observed that a decision does
not become precedent unless a question is
directly raised and considered therein, so also
it does not become the law declared unless
the question is actually decided upon.

38. With greatest of respect, we are
of the view that there was no conflicting
opinion facing their Lordships, preventing
them from deciding the question itself.

39. After due deliberations of the
Counsels for the parties, hearing them at
length, we do not find that the questions
which were framed by the Division Bench
in the referral order, actually arose for
adjudication before it in the bunch of writ
petitions. For instance, on question (b), we
find that before the Division Bench:-

(i) vires of election law was not
questioned;

(ii)
arbitrariness
of
the
government order issued in the process of
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
election being in breach of election laws
was not an issue;

(iii) the issue regarding actual
implementation by the state of the election
laws being in breach of the legal provision
may be the issue which would have arisen
for consideration, had it decided to
entertain the writ petition.

40. Similarly, the questions (c), (d), (e)
are the issues of larger general importance
framed by the Division Bench which may or
may not have arisen for consideration, had it
entered into the issues on merits.

41. We, however, do not find it
proper to express any opinion as to
whether the said issues would have arisen,
had the Division Bench entertained the
writ petition, as this is not the question
before us to answer.

42. Now, Question-(a) pertains to the
law laid down by the Apex Court in L.
Chandra Kumar (supra) which, in our opinion,
could have been read and duly applied by the
Division Bench for answering the question
before it, i.e., as to whether it would entertain
the writ petition in the light of the notification
issued by the State Election Commission for
elections of the Zila Panchayat and the bar
under Article 243-O of the Constitution of
India is attracted or not. The said issue though
has been discussed in few paragraphs of the
reference order and some views have been
expressed by the Division Bench in paragraph
Nos.'20' & '21' of the reference order but
whether
the
said
question
arose
for
consideration in the facts and circumstances of
these cases, i.e. in the nature of the controversy
and the issues before it or not, is not clear.

43. Lastly, question (f), with due
respect, is not a proper question as
expressed above. The Division Bench in
the case of Rishi Pal Singh did not lay
down any legal proposition so as to make
it a binding precedent on any other Coordinate Bench or the Benches of lesser
strength of this Court.

44. Thus, in absence of a binding
precedent, there was no conflict facing the
Division Bench which has made the
reference. The question No.(f) regarding
the correctness of law laid down by the
Division Bench in Rishi Pal Singh, in our
respectful opinion, did not arise at all.

45. The point is whether this is a
reference under Chapter V Rule 6 of the
Allahabad High Court Rules' 1952:-

46. The scheme of Chapter V Rule 6
of the Allahabad High Court Rules' 1952
provides as under:-

"6. Reference to a larger
Bench:- The Chief Justice may constitute
a Bench of two or more Judges to decide a
case or any question of law formulated by
a Bench hearing a case. In the latter event
the decision of such Bench on the question
so formulated shall be returned to the
Bench hearing the case and that Bench
shall follow that decision on such question
and dispose of the case after deciding the
remaining questions, if any, arising
therein."

47. The reading of the said provision
goes to show that on conflicting opinion
expressed by two Benches of the same
strength, larger Bench may be constituted
by Hon'ble the Chief Justice to decide the
questions of law formulated by the Bench
hearing the case.

48. Before a Full Bench of this Court
in Suo Moto Action Taken by the Court
1 All. Suresh Jaiswal Vs. State of U.P. & Anr.
1267
Vs. I.C.I.C.I. Bank Limited, Allahabad,
a question arose as to whether the
reference made by the Division Bench was
proper or not and further whether the
academic issues on question of law had to
be answered by the Full Bench.

49. Considering the scope of Chapter
V of Rule 6 of the High Court Rules, it
was held therein that reference cannot be
made for the mere necessity of creating a
precedent. If a question of law of whatever
importance arises before the Division
Bench, ordinarily, the Division Bench
should decide it itself and not refer it to a
Larger Bench, unless there is conflict of
precedent, which makes it impossible for
the Division Bench to decide this way or
other. It was further held that where the
questions of law are formulated by a
Division Bench for reference and decision,
the case has to be alive before the Division
Bench itself. Thus, in other words, in both
eventuality where there is no conflict of
precedent or the case is not alive before
the Division Bench, reference to a Larger
Bench should not be made for the mere
necessity
of
creating
a
precedent.
Paragraph '13', '14', '18', '19', '20' of the
said report are relevant to be reproduced
herein:-

"13. We respectfully follow the
Kerala special Bench judgment relied
upon by Mr. Mitra appeared for ICICI,
being the case of Babu Premarajan
reported at . Passages would be found at
page 449 to the effect that if a question of
law of whatever importance arises before
the Division Bench, ordinarily the Division
Bench should decide it itself and not refer
it to a larger Bench, unless there is a
conflict of precedent, which makes it
impossible for the Division Bench to
decide this way or the other. This was
opined in Kerala, even though there was a
rule of the High Court which, on a plain
reading, appeared to allow two Hon'ble
Judges of a Division Bench to refer any
questions to a larger Bench merely on
their Lordships agreement.

14. As such, if the writ petition
before the Hon'ble Division Bench is still
alive, the Division Bench is fully at
libertyin its own aisdoun to decide all the
questions itself and indeed all the
questions purportedly got referred to the
larger Bench.

18. The other point is whether it
is a reference under Chapter V Rule 6 that
the Division Bench has in reality resorted
to. The said rule is quoted below:-

"6. Reference to a larger Bench.-
The Chief Justice may constitute a Bench
of two or more Judges to decide a case or
any question, of law formulated by a
Bench hearing a case. In the latter event
the decision of such Bench on the question
so formulated shall be returned to the
Bench hearing the case and that Bench
shall follow that decision on such question
and dispose of the case after deciding the
remaining questions, if any, arising
therein .

19. The first part of the rule
refers to constitution of a Bench by the
Chief Justice himself by use of his own
administrative discretion. This is not one
such case.

20. So far as the second part of
the rule is concerned, where the questions
of law are formulated by a Division Bench
for reference and decision, the case has to
be alive before the Division Bench itself. If
the case is alive in the present case, then
also a reference under the second limb, is,
with the greatest of respect, improper,
because nothing prevented the Division
Bench from deciding the questions itself.
There
were
no
conflicting
Division
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
Benches facing their Lordships and as
such, the Kerala principle mentioned
above applies with full force."

50. In saying so, the Full Bench has
relied upon the Full Bench judgment of
Kerala High Court in Babu Premarajan
Vs.
Superintendent
of
Police,
Kasaragode & others, wherein even the
rule of the Kerala High Court permitted
the Division Bench to refer any question to
a Larger Bench merely on their Lordships
agreement.

51. The said Rule of Kerala High
Court Rules' which was subject matter of
consideration therein reads as under:-

..........Powers of a Bench of two
Judges.--The powers of the High Court in
relation to the following matters may be
exercised by a Bench of two Judges,
provided that if both Judges agree that the
decision involves a question of law they
may order that the matter or question of
law be referred to a Full Bench.........

52. The Kerala High Court had noted
therein the meaning of word "reference" in
Stroud's Judicial Dictionary of Words and
Phrases, 4th edition, Volume I, page 65, to
observe in para '49' as under:-

"Meaning
of
Reference:-
Reference has been stated to mean the
sending of a pending case, for some
question therein, by the Court in which it
is pending to a private person or some
other tribunal to hear and determine the
cause of the question."

Para '49' of the report:-

49. The last question referred for
our decision Is viz. whether a reference by
a Division Bench to a Full Bench is
permissible merely because both Judges in
a Division Bench so agree that the
decision involves a question of law.
Section 4 has been reproduced in para 6
above. It deals with the powers of a Bench
of two Judges, Indeed powers of the High
Court. The proviso says that when both
Judges agree that the decision involves a
question of law, they may order that the
matter or question of law be referred to a
Full Bench. Whereas in Section 3, a single
Judge is required to refer the entire case
for being heard and determined by a
Bench of two Judges, Under Section 4, a
Division Bench may refer the entire case
or question of law to a Full Bench.
Assuming that to be so, it is difficult to
appreciate why a Division Bench should
not decide the question of law and merely
because both the Judges agree that the
decision involves a question of law. It
should be referred to a Full Bench or the
entire matter be referred to a Full Bench.

If a question of law arises before
a Division Bench, which situation is not
uncommon, is it open to a Division Bench
not to decide it and refer it to a Full
Bench. One can understand when there is
a conflict of Division Bench decisions on a
question of law and there is no subsequent
decision of the Apex Court on the point; in
such a situation a reference to Full Bench
would undoubtedly be justified. In the light
of the cases we have discussed above,
there is no doubt that the power of two
Judges in a Division Bench to refer a
question of law to a Full Bench must be
exercised sparingly and only in cases
where there is a conflict of opinion of
Division Benches of this Court and there is
no latter decision of the Apex Court on
that point. Obviously, if there is a
subsequent decision of the Apex Court
which resolves the conflict or, in the light
of which, one of the Division Bench
1 All. Suresh Jaiswal Vs. State of U.P.