ABDUL SHAKUR Vs. RIKHAB CHAND

JUDGEMENT

(1.) This is an appeal from the order of the Election Tribunal dated January 31, 1957, setting aside the election of the appellant, Maulana Abdul Shakoor, who was elected to the Council of States by the Electoral College of Ajmer which consisted of 30 members constituting the State Legislature of Ajmer. He received 19 votes as against 7 polled in favour of the other candidate who is respondent No. 1 in this appeal. The total number of valid votes polled was 26 and there were 3 invalid votes. The result of the election was published in the Official Gazette on March 31, 1957, declaring the election of the appellant. The unsuccessful candidate, the present first respondent filed his election petition on May 2, 1956. It is not necessary to set out all the allegations in the petition because the main controversy between the parties is whether the successful candidate, the present appellant, held an "office of profit" under the government. The impugned election was held on March 22, 1956.

(2.) By a notification issued on February 17, 1956, the nominations for candidature were to be filed between February 28, 1956, and March 1, 1956. The date for scrutiny was March 5, 1956, and for the polling March 22, 1956. The appellant filed two nomination papers on February 28, 1956, and a third one on March 1, 1956. The respondent Rikhab Chand Jain also filed his nomination papers on March 1, 1956. On March 5, 1956, the respondent Rikhab Chand Jain raised certain objections to the validity of the appellant's nomination, the main ground being that the appellant was holding an office of profit under the government. The Returning Officer by his order dated March 6, 1956, rejected the two nomination papers of the appellant filed on February 28, 1956, but accepted the third one, i.e., on March 1, 1956, because, according to that officer, under the provisions of Durgah Khwaja Sahib (Emergency Provisions) Act, 1950 (Act XVII of 1950) which was in force upto 29-2-1956, the appellant was holding an office of profit under the government but on the coming into force of the Durgah Khawaja Sahib Act (Act XXXVI of 1955) on 1-3-1956, he no longer held such office under the government. On 3-5-1956, the respondent filed an election petition under S. 81 of the Representation of People Act 1951 in which he submitted that the third nomination paper of the appellant should also have been rejected as even under the provisions of Durgah Khawaja Sahib Act (Act XXXVI of 1955), the appellant was holding an office of profit under the government and therefore his case was covered by the provisions of Art. 102(1)(a) of the Constitution. He also prayed that he be declared elected as the votes cast in the appellant's favour were "thrown away" votes and the respondent alone received a majority of valid votes.

(3.) A majority of the Election Tribunal by their order dated 31-3-1957, held that on 1-3-1956, the appellant was holding an office of profit under the government and therefore his nomination paper was hit by Art. 102 (1) (a) of the Constitution. They set aside his election and accepting the contention as to "thrown away" votes declared the respondent elected. Disagreeing with the majority, the Chairman of the Election Tribunal held that on 1-3-1956, the appellant was no longer holding an office of profit under the government, his nomination paper was rightly accepted and his election was valid and therefore the respondent could not be declared elected. On the question whether the two nomination papers of the appellant dated 28-2-1956, were valid or not the Tribunal unanimously held them to be invalid on the ground that the appellant held an office of profit under the government on that date.