J ROBERT Vs. RAM JETHMALANI

JUDGEMENT

(1.) In this Writ Petition the three petitioners have prayed for setting aside the order passed by the Chief Electoral Officer, Karnataka, dismissing their appeal presented under Section 24 of the Representation of the People Act, 1950, read with Rule 27 of the Registration of Electors Rules 1960, against the order of the Electoral Registration Officer, No. 84, Shantinagar Assembly Constituency, Bangalore, including the name of the first respondent in the voters' list of that constituency and have also sought for the issue of a Writ of Quo Warranto determining the right of the first respondent to continue as a Member of Rajya Sabha from the State of Karnataka.

(2.) The facts of the case, in brief, are these: In the first week of March 1988, the Election Commission of India announced the holding of elections to fill four seats to the Rajya Sabha from the State of Karnataka. The last date for nomination fixed was 15-3-1988. The election was scheduled to be held on 28-3-1988. As provided in Section 3 of the Representation of People Act 1951, a person is not eligible to be chosen as a representative of any State in the Council of States, namely, Rajya Sabha, unless he is an elector for a parliamentary constituency in that State. According to Section 13-D of the 1950 Act, the electoral roll of all the assembly constituencies included in a parliamentary constituency constitutes the electoral roll for the parliamentary constituency concerned. The first respondent being desirous of contesting in the election to the Council of State from this State, as he was not a voter in any of the parliamentary constituency, in this State made an application before the Electoral Registration Officer, No. 84, Shantinagar Assembly Constituency, Bangalore, under Section 23 of the Representation of People Act, 1950 ('the Act' for short), read with Rule 26 of the Registration of Electors Rules 1960 ('the Rules' for short), and his name was included in the voters' list on 15-3-1988, by the order of the Registration Officer. On the same day, he filed his nomination to fill a seat in the Rajya Sabha from Karnataka and in the election held on 28-3-1988 he was declared elected. There is no dispute that but for the inclusion of his name in the electoral roll of the assembly constituency in the State the first respondent was not eligible to be a candidate in the election to a seat in the Rajya Sabha from this State in view of Section 3 of the Representation of the People Act, 1951. 2A. The Writ Petitioners who are Voters in the Shantinagar Assembly Constituency, being aggrieved by the inclusion of the name of the first respondent in the electoral roll on the basis of which the acquired eligibility to contest in the election to Rajya Sabha from this State, filed an appeal before the Chief Electoral Officer under Section 24 of the Act read with Rule 27 of the Rules. The appeal was rejected by the Chief Electoral Officer on 30-3-1988 on the ground that the certified copy of the order of the Electoral Registration Officer containing the decision to include the name of the first respondent in the electoral roll, was not produced along with the Memorandum of appeal. Aggrieved by the said order, the petitioners preferred Writ Petition No. 7666 of 1988 to this Court. In the said Writ Petition, inter alia, the allegation made was that in fact the certified copy of the order of the Electoral Registration Officer had been produced along with the appeal and it was so stated in the appeal Memorandum itself and it was received by the Officer authorised to receive true same after scrutinising that the appeal was in order. The petitioners also alleged that before rejecting the appeal on the said ground, no opportunity was given to the appellants. After the said Writ Petition was heard for some time, the learned Counsel for the first respondent (fourth respondent in the said Writ Petition) submitted that he was agreeable for the remanding of the appeal to the Appellate Authority and for the disposal of the same on merits. The learned Counsel who appeared for the Appellate Authority also submitted that appropriate orders might be made by this Court in the light of the submission made by the learned Counsel for the first respondent. Accordingly, the Writ Petition was allowed. The relevant portion of the direction given in the said Writ Petition reads:

(3.) In the appeal the appellant urged the following grounds: