BRIJENDRA SWARUP Vs. ELECTION TRIBUNAL LUCKNOW

JUDGEMENT

(1.) This is a petition on behalf of one Dr. Brijendra Swarup who was one of the persons elected from the U.P. Graduates Constituency (West) to the U.P. Legislative Council, for the issue of a writ of certiorari to quash the order of the Election Tribunal dated 12-1-1955 and for certain other directions to be issued to the Election Tribunal.

(2.) It appears that after the election of the applicant, an election petition was presented by opposite party No. 5 for the setting aside of the entire election on the ground that it was void under Section 100(1), Representation of the People Act, 1951. Certain allegations were made in this election petition and they were controverted on behalf of the applicant. It was alleged on behalf of the petitioner that allegations in paras. 10 to 14 and 19 to 28 of the election petition were not material for the grant of the relief prayed for. The Election Tribunal, however, did not agree with the contentions raised on behalf of the applicant and proceeded to record evidence. The applicant then made an application for a writ which came up for hearing before a Division Bench of this Court. A view was expressed by the Election Tribunal that it was open to it to go into the question of the invalidity of the election of a particular candidate while deciding whether the entire election was void and similarly in deciding whether the election of a particular candidate was invalid it was open to the Tribunal to go into the question of the entire election being void. In the writ petition which was presented earlier by the applicant it was argued that the view expressed by the Election Tribunal was not correct and that it was not open to the Election Tribunal to go into the invalidity of the election of a particular candidate while deciding whether the entire election was void nor was it open to a petitioner to claim the reliefs mentioned in Section 84 (a) (b) (c), Representation of the People Act, in the alternative. This contention of the applicant made in the earlier writ petition was accepted by this Court and in view of the fact that the view taken by the Election Tribunal was so palpably erroneous as to complicate matters further it was thought fit to issue a direction for the correction of this error at that stage. After the first writ petition was decided the proceedings commenced in the Election Tribunal.

(3.) An application was made by the present applicant before the Election Tribunal asking it to give effect to the order of the High Court passed in the writ petition. It was desired that paras. 10 to 14 and 19 to 28 as also paras 4 to 7 of the election petition should be deleted and it was argued that it was the intention of the High Court in granting the writ that these paragraphs should be omitted. After hearing this application the Tribunal held that the allegations made in paras 11 to 14 were not material for the decision of the election petition but the allegations made in the other paragraphs were material subject to certain observations made by them. This order was passed by the Election Tribunal on 12-1-1955. After this order had been passed issues were framed and the Tribunal commenced recording evidence. The petitioner objected to the admissibility of certain evidence with regard to the age of one Sri Virendra Swarup, opposite party No. 10. The Tribunal, however, did not agree with this contention and the applicant has come up with the writ petition which is before us.