-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 8039 of 2009 The Thane Janta Sahakari Bank. ..Petitioner. Versus Election Commission of India & Others. ..Respondents. AND Writ Petition No. 8089 of 2009 Dombivli Nagari Sahakari Bank Ltd. ..Petitioner. Versus Election Commission of India & Others. ..Respondents. AND Writ Petition No. 8052 of 2009 Life Insurance Corporation of India ..Petitioner. Versus Election Commission of India & Others. ..Respondents. AND Writ Petition No. 8111 of 2009 Kalyan Janta Sahakari Bank Ltd. ..Petitioner. Versus Election Commission of India & Others. ..Respondents. Advocates for the Petitioners in : WP No. 8039 of 2009 - Mr. S. M. Oak a/w Mr. Sagar Joshi. WP No. 8052 of 2009 - Mr. R. A. Dada, Sr. advocate a/w Mr. Purnima Advani and Omprakash Jha i/b M/s. The law Point. WP. No. 8089 of 2009 - Mr. Y. R. Naik. -: 2 :- Mr. Pradip Rajgopal for the Respondent - Election Commission of India. Mr. Vinay Masurkar, AGP for the Respondent – State. Coram : S. B. Mhase & R. M. Savant, JJ. Date : September 25, 2009. Oral Judgment (Per S.B.Mhase, J.). : 1. Rule, made returnable forthwith by consent of the parties and heard. 2. These petitioners have approached this Court under Article 226 of the Constitution of India challenging the orders passed by the District Collectors and District Election Officers appointed for the ensuing Maharashtra State Assembly Election whereby these officers have requisitioned the staff of the Petitioner institutions. These petitions relate to the Thane District, Mumbai District and Mumbai Suburban District areas only and Orders issued by the District Collector and District Elections officers for those areas only. 3. The Petitioner in Writ Petition No. 8052 of 2009 is a public sector undertaking which is established under the Life Insurance Corporation Act XXXI of 1956 having its central office at -: 3 :- Yagakeshema, Jeevan Bima Marg, Mumbai 400 021 and branches all over India. Writ Petition Nos. 8039 of 2009, 8089 of 2009 and 8111 of 2009 are filed by the co-operative banks established under the Maharashtra Co-operative Societies Act, 1960. They are under the regulatory control of the Reserve Bank of India. They too have their branches within the area of operation as per the permission granted by the Reserve Bank of India. 4. At this stage, we need not go into the figures of the requisitioned staff of each of the Petitioner – organisation, that will be dealt with in subsequent part of this judgment. The common ground which is raised in these petitions is that the staff belonging to the Petitioners cannot be requisitioned under the provisions of the Representation of Peoples of India Act, 1951 (hereinafter for short “the Act of 1951”) read with Article 324 of the Constitution of India. In support of the said contentions, the Petitioners have relied upon a judgment of the Apex Court in the matter of the Election Commission of India v/s State Bank of India Staff Association, Local Head Office Unit, Patna & Others reported in 1995 Supp(2) SCC 13. Relying upon the said judgment it was sought to be -: 4 :- contended that the staff of the Petitioners cannot be requisitioned for election duty. In reply to this, learned counsel appearing for the Election Commission submitted that Section 159 of the Act of 1951 which was considered by the Apex Court in the above referred judgment has undergone a sea change by the subsequent amendment, and therefore the said judgment is not applicable after the said amendment. 5. After going through the said judgment we find that Section 159 as it stood earlier was as under : “159. Staff of every local authority to be made available for election work.- Every local authority in a State shall, when so requested by a Regional Commissioner appointed under clause (4) of Article 324 or the Chief Electoral Officer of the State, make available to any returning officer such staff as may be necessary for the performance of any duties in connection with an election.” 6. After amendment Section 159 reads thus : “159. Staff of certain authorities to be made available for election work. – (1) The authorities specified in sub-section (2) shall, when so requested by a Regional Commissioner appointed under clause (4) of article 324 or the Chief Electoral Officer of the State, make available to any returning officer such staff as may be necessary for the performance of any duties in connection with an election. -: 5 :- (2) The following shall be the authorities for the purposes of sub- section (1), namely :- (i) every local authority; (ii) every university established or incorporated by or under a Central Provincial or State Act; (iii) a Government company as defined in Section 617 of the Companies Act, 1956; (iv) any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government. 7. Thus, amendment in Section 159 has been carried out by Act No. 12 of 1998 which came into effect from 23rd December 1997. As against that, judgment of the Apex Court which is referred to above has been delivered in the year 1995 arising from an order dated 21st May 1993 of the Patna High Court. On a plain comparison of the pre-amended and amended section 159, we find that section 159 as was considered by the Apex Court has undergone a sea change and especially by sub-section (2) now the following authorities have been included in the said Section. (i) every local authority; (ii) every university established or incorporated by or under a Central -: 6 :- Provincial or State Act; (iii) a Government company as defined in Section 617 of the Companies Act, 1956; (iv) any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government. 8. Though the Petitioners may not be falling in first three classes, petitioners are covered under sub-section 2(iv) above, namely, any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government. The Petitioner – Life Insurance Corporation of India has admittedly been established under ... the Life Insurance Corporation Act XXXI of 1956 and rest of the Petitioners, namely Co-operative Banks who are carrying on their business of banking, have been established under the Maharashtra Co-operative Societies Act, 1960 and regulated under the Banking Regulations Act, 1949 as is applicable to the Co- operative Banks. In so far as the LIC and the Co-operative Banks are -: 7 :- concerned, in our view, the same would come within the sweep of sub-section 2(iv) of Section 159 of the Act of 1951. However, Shri. S. M. Oak, the learned counsel appearing for the Petitioners in Writ Petition Nos. 8039 of 2009, 8089 of 2009 and 8111 of 2009, i.e., the Co-operative Banks assailed the very applicability of Section 159 to the Co-operative Banks and made submissions which we would deal with in the latter part of this judgment. 9. The principal submission on behalf of the Petitioners as advanced by the learned Senior Counsel R. A. Dada was that the mandate of Section 159 has not been followed by the Respondents as has been observed by the Apex Court in the matter State Bank of India Staff Association (supra) and as per the guidelines of the Election Commission. He submitted that the requisition under Section 159 has been made in the present petitions by the District Collectors and the District Election Officers. He submitted that, the officer who has issued the requisition letters is not empowered under Section 159. In short, the submission is that the Regional Commissioner appointed under Clause (4) of Article 324 of the Constitution of India or the Chief Electoral Officer of the State can -: 8 :- only requisition the staff under Section 159 and the District Election Officers and District Collectors are not empowered by this section to issue requisitioning orders and requisition the staff. . It is further submitted that there is nothing on record to indicate that the orders have been issued by the Chief Electoral Officer of the State of Maharashtra and/or the Regional Commissioner appointed under Clause (4) of Article 324 of the Constitution of India. In reply to this submission, learned counsel for the Respondents though initially tried to rely upon Section 159 of the Act of 1951, has submitted and which has also been contended in the affidavit in reply that the power to requisition the staff flows from section 26 of the Act of 1951. It is submitted that the power which is possessed by the District Election Officer under the said section is independent of Section 159 of the Act of 1951. He submitted that therefore in the facts and circumstances of the present case section 159 is not attracted and it is Section 26 which will govern the orders passed by the District Election Officer. 10. Learned counsel for the Respondent also tried to rely -: 9 :- upon section 13AA(4) of the Representation of Peoples Act, 1950 (hereinafter for short “the Act of 1950”). The submission on behalf of the Respondents is that Section 26 of the Act of 1951 read with section 13AA of the Act of 1950 confers powers on the District Election Officer to requisition the staff as per the orders issued by him which are impugned in the present petitions. . In view of the said submission it is relevant to re-produce Section 26 of the Act of 1951. It is as follows : “26. Appointment of presiding officers for polling stations. - (1) The district election officer shall appoint a presiding officer for each polling station and such polling officer as he thinks necessary, but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for, a candidate in our about the election: Provided that if a polling officer is absent from the polling station, the presiding officer may appoint any person who is present at the polling station other than a person who has been employed by or on behalf of, or has been otherwise working for, a candidate in our about the election, to be the polling officer during the absence of the former officer, and inform the district -: 10 :- election officer accordingly; Provided further that nothing in this sub-section shall prevent that district election officer from appointing the same person to be the presiding officer for more than one polling station in the same premises. (2) A polling officer shall, if so directed by the presiding officer, perform all or any of the functions of a presiding officer under this Actor any rules or orders made thereunder. (3) If the presiding officer, owing to illness or other unavoidable cause, is obliged to absent himself from the polling station, his functions shall be performed by such polling officer as has been previously authorised by the district election officer to perform such functions during any such absence. (4) References in this Act to the presiding officer shall, unless the context otherwise requires, be deemed to include any person performing any function which he is authorised to perform under sub-section (2) or sub- section (3), as the case may be.” 11. Section 13AA of the Act of 1950 reads thus : “13-AA. District Election Officers. - -: 11 :- (1) For each district in a State, the Election Commission shall, in consultation with the Government of the State, designate or nominate a district election officer who shall be an officer of Government: Provided that the Election Commission may designate or nominate more than one such officer for a district if the Election Commission is satisfied that the functions of the office cannot be performed satisfactorily by one officer. (2) Where more than one district election officer are designated or nominated for a district under the proviso to sub-section (1), the Election Commission shall in the order designating or nominating the district election officers also specify the area in respect of which each such officer shall exercise jurisdiction. (3) Subject to the superintendence, direction and control of the chief electoral officer, the district -: 12 :- election officer shall co-ordinate and supervise all work in the district or in the area within his jurisdiction in connection with the preparation and revision of the electoral rolls for all Parliamentary, Assembly and Council constituencies within the district. (4) The district election officer shall also perform such other functions as may be entrusted to him by the Election Commission, and the Chief electoral officer. Since the reliance has been placed only on sub- section (4) we only underline the said part of the section. 12. Section 159 draws its source from Article 327 of the Constitution of India and it is an independent provision than Article 324(6). Article 324(6) permits the Election Commission to make a request to the President, or the Governor of the State, when so requested by the Election Commission, to make available to the Election Commission or to a Regional Commissioner such staff as may -: 13 :- be necessary for the discharge of the functions conferred on the Election Commission by clause (1). 13. Thus, Article 324(6) permits a requisitioning of the staff for the election work at the request of the Election Commission by the President or the Governor of the State. However, this will cover the staff which is under the President or the under the Government of the State, namely, the central government employees or the State Government employees. This aspect has been clarified by the Apex Court in paragraph 20 of the cited (supra) judgment, when the Apex Court considered the meaning of “such staff” appearing in the said section. Following passage from the said judgment is relevant : “For the conduct of elections when the Election Commission makes a request to the President or the Governor to make available the staff they are obliged to provide the services. What is the meaning of “Such Staff?”. According to Mr. Dushyant Dave we should refer to Article 310 which talks of a member of Civil Service (in contradiction to Defence Service of the Union or the State), holding office during the pleasure (durante bene placito) of President or the Governor. Obviously “such staff” can only mean that staff which is under the control of the President or the Governor concerned and not any -: 14 :- staff over which they do not exercise control. It could mean only that staff on which the President or the Governor, as the case may be, would be in a position to exercise disciplinary powers should they refuse the President’s or Governor’s directive. Although the Constitution makers did not say the Union or the State Governments but only the President or the Governor, it is obvious they would have to act consistently with Articles 74(1) and 163(1), respectively. Therefore, on a request by the Election Commission the services of those government servants who are appointed to public services and posts under the Central or State Governments will have to be made available for the purpose of election.” 14. We have dealt with this aspect because one of the submissions on the part of the Respondents was to rely upon Article 324(6) to say that they have the power to requisition the staff under Article 324(6) of the Constitution of India. But as we have pointed out though Article 324(6) operates so far as the Central and State Government employees are concerned, it cannot be extended to the authorities of which staff can be requisitioned in view of the provision of section 159. In short, we find that Section 159 is a separate and independent provision than Article 324(6) and to make such provision Article 327 -: 15 :- is the source for legislative competence. Therefore, attempt made by the learned counsel for the respondent to rely upon Article 324(6) does not impress us in any manner and more specifically in view of the observations of and the law laid down by the Apex Court in the judgment cited (supra). 15. In view of the submissions of the learned counsel for the Respondents we have to find out whether under section 26 of the Act of 1951 there is a power to requisition the staff of the Petitioner – institutions, independently of section 159. The obvious answer would have to be no. Section 26 gives power to the District Election Officer to appoint a Presiding Officer for each polling station and such polling officers or officer as he thinks necessary, but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election. Therefore this is only a power to appoint the Presiding Officer for polling stations and the polling officers. However, for making such appointment, from what source the District Election Officers should draw the officers has not been provided in the said section. Since no provision is made in the said section as to from which source, the District Election Officer can appoint the said officers, such power -: 16 :- cannot be read into said section. If such power is read in section 26, assuming for the moment it is so, section 159 of the Act of 1951 becomes redundant. It is a basic principle of interpretation of the statutes that a provision in the statute should not be interpreted in such a manner which will render the other provision or provisions from the said statute as redundant. Therefore, we are of the view that, that the submission of the learned counsel for the Election Commission that Section 26 of the Act of 1951 gives such power to requisition the staff, is without any merit. 16. Next question to be considered is whether section 13-AA of the Act of 1950 confers any power. Section 13-AA deals with District Election Officers and sub-section (4) of the said section provides that the District Election Officers shall also perform such other functions as may be entrusted to him by the Election Commission, and the Chief Electoral Officer. Therefore reading sub- section (4), the District Election Officer may perform any other duties and functions other than that which are provided under Section 13- AA provided the Election Commission and the Chief Electoral Officer of the State has entrusted those functions to him. However, what is important to note is that this provision of delegation of powers from -: 17 :- the the Act of 1950 cannot be read into the Act of 1951. The purpose and object of the Act of 1950 is to provide for the allocation of seats in, and the delimitation of constituencies for the purpose of elections to the House of the People and the Legislatures of State, the qualifications of voters at such elections, the preparations of electoral rolls [the manner of filling seats in the Council of States to be filled by representatives of Union territories, and matters connected therewith. Therefore, the delegation of powers from the Election Commissioner or the Chief Electoral Officer has to be considered in the light of the object of the Act of 1950, for which the provisions have been made by Parliament. The object of sub-section (4) of Section 13-AA of the Act of 1950 is not to provide for the delegation of powers in respect of the acts to be done under the the Act of 1951. One cannot read provisions of one Act into another Act unless the Legislature by specific provision made to that effect has stated that the provisions of one Act can be read into the other Act. Therefore, unless there is a separate provision, the provisions of one Act cannot be read into another Act. Such a provision we do not find in the Act of 1951. -: 18 :- 17. Therefore the assistance of sub-section (4) of section 13- AA of the Act of 1950 cannot be taken by the respondents in order to justify the orders which according to them have been passed under Section 26 and not under Section 159. 18. Apart from that, assuming for a moment that sub-section (4) of Section 13-AA of the Act of 1950 permits the Respondents to pass such orders, still the Election Commission and the Chief Electoral Officer have not passed any order entrusting or delegating the powers to the respondents. Therefore, viewed from any angle the argument advanced on behalf of the respondents is misfounded and would therefore have to be rejected. 19. Apart from this, what is important to be noted is that even this point is no more res-integra for this Court as the said issue has been dealt with by the Apex Court in the judgment (supra). It has to be noted that in the said judgment the staff of the State Bank of India was requisitioned. The State Bank of India could not be termed as a local authority under Section 159 as it then stood. Therefore to justify the act of requisitioning the Respondents had taken recourse to section 26 of the Act of 1951. So dealing with that the Apex Court has observed in paragraph 22 that : -: 19 :- “22. Merely because the provisions of the two Acts require that they must be officers of the Government or local authority, unlike the case of officers falling u/s 26 of 1951 Act, it does not in our opinion, follow that the Section 26 of the 1951 Act is not a source of power at all. It does not, in any manner enable the Election Commission to draft in the services of officers other than officers of Government and local authority. To draw inspiration from these sections to support an argument that the services of any person could be drafted for the purpose of election is untenable. May be, to conduct the elections many polling stations are set up. Consequently, the services of many persons may be required. May be Election Commission may draw the minimum staff from the banks to ensure that the banking business is not disrupted but the question here is of power and not discretion. If there is power it may be exercised with circumspection and minimum staff may be requisitioned but if there is no power the question of the mode of its -: 20 :- exercise will not arise at all. It is a question of existence of power and not the manner of its exercise.” 20. Thus the Apex Court having found that section 26 of the Act of 1951 is not attracted, ultimately the requisition was not approved by it. Thus, viewed from any angle, we find that the submission made on behalf of the respondents is misfounded and has been advanced loosing sight of the fact that the Apex Court has already dealt with this issue and laid down the law which is binding as against the respondents. 21. We have noted that under Section 159 of the Act of 1951 the power to requisition the staff is with the Regional Commissioner appointed under clause (6) of Article 324 or the Chief Electoral Officer of the State. Since we have noted that the orders requisitioning the staff of the Petitioners have been issued by the District Election Officers, we wanted to know from the Respondents as to whether there was any delegation of powers to the District Election Officers under any of the provisions