ABRAHAM T.J. Vs. ASHOK KHENY

JUDGEMENT

(1.) This Election Petition is filed by one of the defeated candidates under Section 81 read with Section 100(1)(a)(d) and (iv), 33(4) & (5) 33-A, 36, 5(c) & 9-A of the Representation of Peoples Act,1951 and Articles 9 & 173 of the Constitution of India.

(2.) The case of the petitioner in brief is that election relates to 49-Bidar South Assembly Constituency. The respondent having voluntarily accepted the citizenship of United States, he is not a citizen of India and that the respondent having undertaken the work on behalf or for the Government of Karnataka, the respondent is not entitled but disqualified to contest the election in view of the provisions under Articles 9 & 173 of the Constitution of India and Section 9-A of the Representation of Peoples Act, 1951, hereinafter referred to as 'the Act' for short. It is stated acceptance of nomination of the respondent is improper and that has materially affected the election results of the petitioner. It is the case of the petitioner that since the respondent has not denied the averment relating to his voluntarily accepting the citizenship of U.S. it is to be presumed that he is not a citizen of India. It is contended that the business relations of the respondent in USA establishes the fact that the respondent has voluntarily accepted the citizenship of USA. The respondent had not specifically denied and willfully refused to clarify the allegation attracting his disqualification to contest elections by reason of entering into acontract with the Government of Karnataka attracting disqualification under Section 9A of the Act as he is the Managing Director of M/s.Nandi Infrastructure Corridor Enterprises Limited(NICE and also holding shares in M/s.NICE Ltd., which has contracted with the Government of Karnataka to undertake construction of Bangalore-Mysore expressway. The respondent has wrongly sworn to an affidavit that he is a voter at Serial No.673 in Part No.78 of the Electoral roll of Bidar South Assembly Constituency. Thus the respondent had earned disqualification under Section 5-C of the Act. Thus the petitioner prayed for declaring the election of the respondent as void under Section 100(1)(d)(i) and (iv) of the Act.

(3.) The respondent has filed written statement inter alia contending that there is no cause of action to file the petition. The petition is not in compliance with the mandatory provisions of the Act and the Code of Civil Procedure. That the issue raised in the petition that the respondent is not qualified to hold office to which he is elected since he is not a citizen of India, such an issue cannot be a ground for disqualification in an election petition. The petitioner has failed to prove that (i) the State Government is a Equity Holder in the "NICE" Company; ;and (ii) Moreover the respondent as an individual in any manner has been awarded with any such contracts so as to attract section 9A of the Act. The respondent is not having a subsisting contract with the State Government for supply of goods to/execution of works undertaken by that Government. The issue, respondent not even an elector in the Bidar South Assembly Constituency, cannot be a ground of seeking disqualification of the election of the candidate vide the current election petition. The respondent does not suffer any disqualification having regard to the scope of intent of Section 9A of the Act. The result of the election in so far as the respondent is concerned is not materially affected. It is submitted that the proceedings before the Returning Officer, at the stage of scrutiny of nominations under Section 36 of the Act, contemplate a summary enquiry. This is categorical from the face of the provision itself. Therefore, it is submitted that the petitioner's reliance on Order VIII Rule 3 of the CPC and the alleged non-compliance therewith resulting in improper acceptance of the nomination of the respondent is totally misconceived. Thus the respondent prayed for dismissal of the election petition.