SHYAMDEO PD SINGH Vs. NAWAL KISHORE YADAV

JUDGEMENT

(1.) Pursuant to a Notification issued by the Governor of Bihar under Section 16 of the Representation of the People Act, 1951 (hereinafter the 1951 Act, for short), biennial elections to the Bihar Legislative Council from the Patna Teachers Constituency were held in April, 1996. There were four candidates in the fray including Nawal Kishore Yadav, in the respondent, who defeated his nearest rival candidate Dr. P. N. Sharma by a margin of 870 votes. Polling was held on 28-4-1996 whereat the respondent secured 3414 votes as against 2544 votes secured by Dr. P. N. Sharma. The respondent was declared elected.

(2.) On 24-4-1996 the appellant, an elector duly enrolled in the electoral list of the constituency filed an election petition under Section 80 of the 1951 Act calling in question the election of the respondent. The only ground alleged in support of prayer for avoiding the election of the respondent was the registration and enrolment of a large number of ineligible persons as electors in the electoral roll and consequently improper reception of votes cast by such illegal electors which had resulted in materially affecting the result of the election insofar as the returned candidate was concerned. The bundle of facts constituting the cause of action as alleged by the appellant are briefly stated in the succeeding paragraph.

(3.) On 22-10-1986 the Chief Electoral Officer, Bihar in exercise of the powers conferred by Section 27(3)(b) of the Representation of the People Act, 1950 (hereinafter the 1950 Act, for short) issued a notification No. 1248 publishing a list of educational institutions of the State which shall be deemed to be not lower in standard than that of a secondary school. On 29-9-1995 a notice under Rule 31(3) of the Electors Registration Rules, 1960 was published by the Chief Electoral Officer, Bihar calling upon all eligible voters who wished to get their names entered in the electoral roll to apply in Form 19 on or before 6-11-1995. All persons who are citizens of India and are ordinarily residents of the constituency and engaged in teaching work for not less than three years during the preceding six years calculated from 1-11-1995 in an educational institution not lower in standard than that of a secondary school were eligible for enrolment as electors in the electoral roll. According to the election petitioner the authorities entrusted with the task of preparing the electoral roll included the names of many a voters in the electoral roll who were not at all eligible for being so included as they were teaching in the educational institutions which were neither permitted to be established nor affiliated nor recognised by the State Government which was mandatorily required under the provisions of the Bihar Intermediate Education Council Act, 1992. On 26-12-1995 Dr. P. N. Sharma, the then member of Legislative Council from Patna Teachers Constituency, filed objections to the inclusion of the names of such ineligible persons in the electoral roll seeking deleting of their names. In spite of repeated persuasions made by Dr. P. N. Sharma, the authorities did not hear and decide the objections and in the meantime the Governor of Bihar, as recommended by the Election Commission of India, issued notification dated 26-3-1996 fixing the schedule of election programme. On or about 1-3-1996, objections were also preferred by one Dr. Ram Padmadeo seeking deletion of the names of 1625 ineligible electors from the electoral roll. On 30-3-1996 the Assistant Electoral Registration Officer-cum-District Magistrate, Patna refused to consider the objection petition filed by Dr. Ram Padamdeo on the ground that the objection petition was not preferred in the prescribed pro forma and further there was not enough time available before the date of filing of nominations, i.e. 2-4-1996 to hear and dispose of objections calling in question the inclusion of as many as 1625 names in the electoral roll. There were other objections filed by 17 persons laying challenge to the inclusion of 384 names of electors in the electoral roll which too met with the same fate on 30-3-1996. The election petitioner alleged that the election was vitiated by the improper reception of votes cast by ineligible persons and by non-compliance with the provisions of the Constitution, the 1950 Act and rules and orders relevant to the election. Such allegations, as abovesaid, formed contents of paragraphs 15 to 42 along with annexures 1 to 20 of the election petition. The respondent moved an application before the learned Designated Election Judge seeking striking out of the said paragraphs 15 to 42 along with annexures 1 to 20 of the election petition and submitting that the commission of any illegality and/or irregularity in the preparation of the electoral roll was beyond the ambit and scope of Section 100 of the 1951 Act and therefore the averments made in the said paragraphs 15 to 20 of the election petition along with the said annexures were liable to be struck down as irrelevant and not furnishing any cause of action to the appellant. It was prayed that the election petition was also liable to be summarily dismissed as consequent upon striking out the part of pleadings as above said, nothing survived for being tried and adjudicated upon at the trial of the election petition. The plea raised by the respondent has prevailed with the (sic) contained in paragraphs 15 to 42 of the Election Petition read along with the annexures 1 to 20 were liable to be struck down under Order 6, Rule 16 of the C. P. C. consequent whereupon no cause of action survived for proceeding with the trial of the election petition under Section 86 of the 1951 Act and hence the same was also liable to be dismissed. The aggrieved election petitioner has filed this appeal under Section 116A of the 1951 Act.