MOTI RAM Vs. PARAM DEV

JUDGEMENT

(1.) These appeals have been filed under S. 116-A of the Representation of the People Act, 1951. They relate to election to the Himachal Pradesh Legislative Assembly from 60-Chachiot Assembly constituency held during February, 1990. The appellant was declared elected to the Legislative Assembly from the said constituency. His election was challenged by the respondents in these appeals by filing election petitions in the High Court of Himachal Pradesh. By its judgment dated June 3, 1991, the High Court has allowed the election petitions and has set aside the election of the appellant on the ground that the nomination of one of the candidates, Shri Karam Singh was improperly rejected by the returning officer.

(2.) The last date for filing the nomination papers was February 2, 1990 and the scrutiny of the nomination papers was fixed for February 5, 1990. Fifteen persons, including the appellant and Shri Karam Singh had filed nomination papers. At the time of scrutiny, an objection was raised on behalf of one of the candidates against the nomination of Shri Karam Singh on the ground that he was holding the office of Chairman, Himachal Pradesh Khadi and Village Industries Board, which is an office of profit within the meaning of Art. 191 (1)(a) of the Constitution and was, therefore, disqualified for being chosen as a member of the Legislative Assembly. By order dated February 7, 1990, the Returning Officer upheld the said objection and rejected the nomination of Shri Karam Singh. The High Court has, however, found that the said rejection of nomination of Shri Karam Singh was improper because on the date of scrutiny Shri Karam Singh was not holding an office of profit and has, for that reason, set aside the election of the appellant.

(3.) Before we proceed to deal with the appeals on merits, it may be mentioned that during the pendency of these appeals before this Court, the Himachal Pradesh Legislative Assembly has been dissolved. This raises the question whether the matters in issue in these appeals have ceased to be living issues and have become wholly academic. The effect of dissolution of the legislature on a pending election appeal has been considered by this Court in Loknath Padhan v. Birendra Kumar Sahu, (1974) 3 SCR 114 . In that case, the election of the returned candidate was challenged before the High Court on the ground that there was a subsisting contract entered into by the respondent in the course of his trade and business with the State Government for the execution of works undertaken by the Government and he was, therefore, disqualified under S. 9A of the Representation of the People Act, 1951. The election petition was, however, dismissed by the High Court and while the appeal against the said decision was pending in this Court, the Legislative Assembly was dissolved. A preliminary objection was raised on behalf of the respondent to the appeal that in view of the dissolution of the assembly it was academic to decide whether or not the respondent was disqualified under S. 9A. Upholding the said preliminary objection, this Court has held that the Court should not undertake to decide an issue unless it is a living issue between the parties and if an issue is purely academic, in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time and indeed not proper exercise of authority for the Court to engage itself in deciding it. In that case, this Court drew a distinction between a case where the challenge to the election is on a ground confined to the validity of that election only and having no consequences operating in future and a case involving challenge to the election on a ground which would entail electoral disqualification for the future, such as, charge of corrupt practice. It was held that if the election is challenged on the ground of commission of a corrupt practice the dissolution of the legislature would not have any effect on the pendency of an election petition or an appeal arising therefrom and the said petition will have to be considered on its merits whereas a challenge to the election on any other ground which does not entail future disqualification would raise academic issue only and in view of the dissolution of the legislature the election petition or the appeal arising therefrom would not survive because it would be futile and meaningless for the Court to decide an academic question the answer to which would not affect the position of one party or the other.