CHANDRA NARAIN TRIPATHI Vs. KAPIL MUNI KARWARIYA

JUDGEMENT

(1.) Heard Mr. Keshari Nath Tripathi, learned Senior Counsel assisted by Mr. K.R. Singh and Mr. S.C. Dwivedi for the Objector Respondent and Mr. Narendra Kumar Pandey for the Petitioner.

(2.) In the instant Election Petition, the Respondent (the returned candidate) has moved three interlocutory applications. The first interlocutory application (application No. 294721 of 2009) has been moved under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as 'the Code') mainly on the ground that the Petitioner's one of the proposers, viz. Pramod Kumar was not an elector from 1.1.2009 as the entry at serial No. 3 Part No. 170 of the electoral roll relating to 261- Allahabad West Assembly Constituency, had been deleted (Vilopit) and the Petitioner has annexed himself a copy of the electoral roll (Schedule 4) at page 60-61 of the election petition, which has been made by him as integral part of the election petition, therefore, according to the Petitioner himself Pramod Kumar was not competent to act as one of the proposers. If the name of Pramod Kumar is taken away from the nomination paper filed by the Petitioner, number of remaining proposers would be less than ten. As such the Petitioner was neither a duly nominated candidate nor had any cause of action to file the election petition.

(3.) The second interlocutory application (A-13) has been filed under Section 86(1) of the Representation of People Act, 1951 (hereinafter referred to as 'Act of 1951'), mainly on the ground that the election petition, in view of Section 81(1) of the Act of 1951, could be filed only on one or more grounds as specified in Section 100 and 101 of the Act by any 'candidate' at such election or any 'elector'. The term 'candidate' has been defined in Section 79(b) of the Act of 1951, according to which, 'candidate' means a person who has been or claims to have been 'duly nominated' as a candidate at any election. Admittedly the Petitioner was not an elector of 51- Phulpur (Lok Sabha) Constituency. Moreover the Petitioner was not a duly nominated candidate nor he has claimed as such in the election petition. It was submitted on behalf of the Respondent that a person who was neither duly nominated nor claims to have been duly nominated, can not maintain an election petition, therefore, the instant election petition is not maintainable and is liable to be dismissed.