RAM PRASAD SHARMA Vs. MANI KUMAR SUBBA

JUDGEMENT

(1.) - The appellant Ram Prasad Sarma and respondent No. 1 Mani Kumar Subba, amongst others contested election, for No. 9 Tezpur Parliamentary Constituency, Assam in the elections held in the year 1999. Respondent No. 1 Mani Kumar Subba was declared elected on 7-10-1999 from the aforesaid constituency. The appellant who secured the next highest number of votes, challenged the election of Respondent No. 1 by filing an election petition under Section 80 of the Representation of the People Act 1951 on the ground that large scale rigging and booth capturing had taken place at the instance of respondent No. 1 who adopted and resorted to corrupt practices in the election. Hence, election of respondent No. 1 was liable to be declared void. It was also prayed that the appellant may be declared as duly elected candidate from No. 9 Tezpur Constituency. Notice was issued to the respondents on the election petition.

(2.) The respondent No. 1 Mani Kumar Subba on receipt of the notice, moved an application under Section 86 of the Representation of the People Act 1951 (hereinafter to be referred as the Rs. Act) praying for dismissal of the election petition at the threshold on three grounds, firstly that the election petition was filed beyond a period of 45 days which is the prescribed period of limitation for filing an election petition under Section 81(1) of the Act. The next ground was that where the election petitioner prays for a declaration in his favour or in favour of any other candidate for having been duly elected from the constituency all the contesting candidates have to be impleaded as respondents in the election petition. One Shri Abul Khayer who had also contested the election was not impleaded as respondent instead one Abdul Khyer was impleaded as respondent No. 11. It amounted to non compliance of Section 82 of the Act. Thirdly, the true copy of the affidavit served upon the respondent No. 1 along with copy of the election petition does contain the attestation and stamp etc. of the Oath Commissioner. It violates Section 81(3) of the Act.

(3.) The aforesaid relevant provisions may be perused, which read as follows : Section 81. Presentation of petitions (1) An election petition calling in question any election may be presented on one or more of the grounds specified in (sub-section (1) ] of Section 100 and Section 101 to the High by any candidate at such election or any elector [within forty five days from but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates]