ATIQUE AHMAD Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) In the instant writ petition, the writ petitioner who is a sitting M.L.A. and is detained in Central Jail Naini, District Allahabad, had prayed for following reliefs :

(2.) The short facts involved in this writ petition, inter alia, are that on 17/03/2001 the petitioner submitted his application through Superintendent, Central Jail Naini, Allahabad to the Chief Judicial Magistrate, Allahabad that he may be permitted to file his nomination paper as a Candidate from the Hydergarh Assembly Constituency and necessary arrangements in this connection may be made well within time, so that he may be in a position to file his nomination paper within the time fixed by the Election Commission. It is the contention of the petitioner that the facts mentioned in the report of the district Magistrate addressing to the Chief Judicial Magistrate, Allahabad were communicated to him at 11.30 a.m. on 19th March, 2001 in the Jail through Superintendent, Central Jail Naini, Allahabad wherein it was mentioned that according to the Election Laws of Legislative Assembly, it is not necessary for any candidate to be personally present before the Returning Officer for filing his nomination paper and it can be filed through his election agent. It was also mentioned in the said report that the declaration or affidavit which is required to be filed in the process of nomination can be performed before the Superintendent, Central Jail Naini, Allahabad and, therefore, it is not necessary that the petitioner should be sent to Hydergarh for filing nomination paper. It has also been averred in the writ petitioner that the petitioner again requested to the District Magistrate, Allahabad through Superintendent, Central Jail Naini that he should be transported to Hydergarh so that he may be in a position to complete the necessary formalities and present his nomination paper before the Returning Officer and Assistant Returning Officer Hydergarh Assembly Constituency before 1500 hours on 19th March, 2001. On 19th March, 2001 on the petitioner's application, the Chief Judicial Magistrate, Allahabad passed an order to the effect that the District Magistrate should make arrangements so that the petitioner may be in a position to file his nomination paper in accordance with the provisions of Election Law within the time prescribed. In the said order, it was also mentioned that the said date being the last date, it was practically not possible for the petitioner to reach Hydergarh before the specified time for filing the nomination paper, the District Administration may make arrangements for taking steps for filing nomination paper. It was also mentioned that it would not be possible for the proposers to reach Central Jail Naini, Allahabad by that time from Hydergarh.

(3.) Mr. Daya Shanker Mishra, and Mr. S. M. A. Kazmi, learned Advocates for the petitioner, vehemently contended that the petitioner had moved application through the Superintendent, Central Jail, Naini, Allahabad to the Chief Judicial Magistrate, Allahabad, who is the competent authority, and the District Magistrate, Allahabad should have made all arrangements for filing nomination papers so that the same could have been filed by the writ petitioner on 19th March, 2001 itself which was the last date for filing nomination paper but because of the failure of the Administration, the petitioner should not be made to suffer. It has been strenuously contended by the learned Advocates for the writ petitioner that the petitioner has a legal obligation to file affidavit but he was not given opportunity sparing him to file his nomination paper. Being aggrieved, as the petitioner has no other alternative remedy, he filed this writ petition under Article 226 of the Constitution of India.