NARENDRA KUMAR KAKKARRETD Vs. NISSAR KHAN IBRAHIM KHAN

JUDGEMENT

(1.) The facts giving rise to this petition under Article 226 of the Constitution are these. On December 20, 1985, general elections of Deolali Cantonment Board respondent No. 2 herein were held. The first respondent Nissar Khan Ibrahim Khan was one of the contesting candidates and he was elected. The election of the first respondent was challenged by the defeated candidate by filing Election Petition No. 12 of 1985 before the District Judge, Nasik, provided under Rule 43 of the Election Rules framed under the Cantonments Acts, 1924. The challenge to the election of the first respondent was on the ground that he was disqualified for being choosen as a member of the Board since he had incurred prior to the election a disqualification under section 28(2)(h) of the Cantonments Act, 1924 (hereinafter called the said Act). The alleged disqualification is on the ground that the first respondent had failed to pay his dues of the Board prior to his filling of the nomination and was thus a defaulter. The dues were in respect of lease rent of a garden taken on lease by the first respondent from the Board as also for non-payment of electricity charges to the Board. The Joint District Judge upheld the contention and declared that the first respondent was disqualified to contest the election on the date of election and therefore, his nomination is null and void. Consequently, his election was set aside.

(2.) The first respondent challenged the decision of the Joint District Judge in Writ Petition No. 1418 of 1987 filed by him in this Court. The writ petition was summarily rejected on March 7, 1987, by a Single Judge of this Court. This decision was challenged in the Supreme Court in Civil Appeal No. 3691 of 1987. By judgment and order dated December 4, 1987, the Supreme Court allowed the appeal, set aside the order of the Joint District Judge as well as of the High Court and dismissed the election petition. This decision of the Supreme Court is reported in (Nishar Ahmed Ibrahim Khan v. Deolali Cantonment Board) 1987 (Supp.) Supreme Court Cases, 562. It appears that after the dismissal of the writ petition by the High Court the Cantonment Board issued four notices dated April 13, 1987, April 27, July 19, 1987, and July 9, 1987 to the first respondent to pay the amounts due to the Board from him. The notices were served within a day or two of the aforesaid dates of the notices Complying with the demand made by the Board, on November 6, 1987, the first respondent paid the dues amounting to Rs. 27,640.09 to the Board. It may also be mentioned that in view of the setting aside of the election of first respondent by the Joint District Judge and the rejection of his writ petition by-election was ordered by the Central Government some time in October, 1987. The petitioner filed his nomination papers at the by-election. On November 10, 1987 the scrutiny of papers was held by the Returning Officer. At the time of the scrutiny the petitioner who is a voter objected to the nomination of the first respondent on the ground that he was disqualified under the same provisions i.e. section 28(2)(h) of the Act. This objection was upheld by the Returning Officer. The by-election was scheduled to take place on December 6, 1987. However, a couple of days earlier i.e on December 4, 1987, as mentioned above the Supreme Court allowed the first respondents appeal and set aside the orders of the Joint District Judge and the High Court while directing the dismissal of the election petition.

(3.) Therefore, on March 2, 1988, the petitioner filed the present writ petition contending that the first respondent was not qualified for being a member of the Board as he failed to pay the arrears due by him to the Board within 30 days after the service of the notice on him. It is to be borne in mind that the four notices were admittedly served on the first respondent in the months of April and July, 1987, and the payment of the dues was made on November 6, 1987, i.e after a lapse of a period of 30 days as prescribed in section 28(2)(h) of the Act.