GUNVANTLAL MAGANLAL PANDYA Vs. PRANABKUMAR KAMDA KINKER MUKHARJEE

JUDGEMENT

(1.) The petitioners who are residents of Ahmedabad challenge the election of the first respondent Shri Pranabkumar Kamda Kinker Mukharjee on the following grounds :

(2.) On 7th April 1980 the first respondent made an application in the prescribed form under sec. 23 of the R. P. Act 1950 for the inclusion of his name in the electoral roll of the Sabarrnati Parliamentary constituency of the city of Ahmedabad to the electoral registration officer. Within a few days thereafter, that is, on 17th April 1980 the electoral registration officer, on being satisfied that the first respondent is entitled to be registered in the electoral roll, directed his name to be included therein. This was on the basis that the first respondent was 'ordinarily resident' in the said constituency. Five electors (other than the petitioners) of the said constituency, objected to the name of the first respondent being included in the electoral roll of the said constituency and requested the electoral registration officer to delete the same. That application made under sec. 22 of R.P. Act, 1950 read with Rule 13(2)/26 of the 1960 Rules, was heard by the said officer who rejected it by his order dated 18th June 1981. Admittedly, no appeal was filed against the said order of the chief electoral officer as provided by sec. 24 of R.P. Act, 1950. The petitioners whose names do not appear in the electoral roll of the Parliamentary constituency could not have challenged the entry in the said electoral roll in view of Rule 13(2) referred to above. They had in fact not challenged the inclusion of the name of the first respondent in the electoral roll of that constituency at any point of time. That was perhaps because under rule 13(2) only a person whose name is already included in the concerned roll and whose objection is countersigned by another person whose name appears in that part of the roll in which the name objected to appears can object to the inclusion. It is for this reason that the petitioners contend that Rule 13(2) is ultra vires the provisions of the R.P. Act. 1950 as well as Article 14 of the Constitution as it places a restriction on the right to object. They contend that the first respondent was never 'ordinarily resident' in the Sabarmati Parliamentary constituency of the city of Ahmedabad and, therefore, the inclusion of his name was clearly invalid.

(3.) Sec. 3 of R.P. Act, 1951 provides that a person shall not be qualified to be chosen as a representative of any State in the Council of States unless he is an elector for a Parliamentary constituency in that State. 'Elector', according to sec. 2(e), in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in sec. 16 of the R. P. Act, 1950. It is nobody's case that the first respondent is subject to any disqualification mentioned in that section. Since the name of the first respondent was included in the electoral roll of the Sabarmati Parliamentary constituency, he was by virtue of sec. 3 of the R. P. Act, 1951 qualified to be chosen as a representative of the State of Gujarat. Accordingly, he contested the election for being chosen as a representative of the State of Gujarat in the Council of States held on 9th July 19A1. There were three seats which were to be filled in from Gujarat State in the Council of States at that point of time. The first respondent along with two others, namely, Shri Harisinh Mahida and Shri Kishore Mehta were declared elected at the poll held on 9th July 1981. The petitioners, therefore, contend that since the first respondent would be discharging duties in the Council of States as a representative of the State of Gujarat, the residents of Gujarat are vitally interested in ensuring that a person ordinarily resident in Gujarat represents them in the Council of States. They contend that since the first respondent never was ordinarily resident in the Sabarmati Parliamentary constituency and in fact belongs to West Bengal, be can never be expected to espouse the cause of the people of Gujarat in the Council of States and, therefore, Rule 13(2) of the 1960 Rules insofar as it limits the right of every voter in the electoral roll of Gujarat to challenge the inclusion made in the said roll contravenes Article 14 of the Constitution. The petitioners further contend on the same line of reasoning that sec. 81 of the R.P. Act, 1951 also violates Article 14 of the Constitution insofar as it restricts the right to present an election petition to any candidate at such election or any elector.