SHARIF HOSSAIN Vs. KALIMUDDIN SHAMS

JUDGEMENT

(1.) In the instant election petition the petitioner has challenged the election of Kalimuddin Shams, the respondent No. 1, in 293-Nalhati Assembly Constituency and has prayed inter alia for the following declaration (a) A declaration that the purported election of the respondent No. 1 in the said Constituency of 12th West Bengal Legislative Assembly election on 2nd May, 1996 be void, illegal and be declared to be cancelled; (b) A declaration that the purported declaration of result dated 9th May, 1996 made by the Returning Officer of the said constituency declaring the respondent No. 1 as duly returned candidate from the said constituency be void and the same be set aside; (c) Further declaration be made that the petitioner who secured second highest valid votes in the said Constituency be elected from the said constituency in the West Bengal Legislative Assembly election held on 2-5-96; (d) An order of injunction be issued against the respondent No. 1 restraining him from holding the office as a Member of the Legislative Assembly and from attending Legislature or drawing perquisites therefore until the disposal of the application; (e) An ad-interim order in terms of prayer (d) above; (f) An order allowing the petitioner to adduce evidence to prove that the election of his candidature would have been void if he had been the returned candidate if a petition had been presented calling in question his election in case such a corrupt practice would have been performed by the petitioner and the petitioner claims such recrimination as he is claiming the said Assembly seat as a duly elected candidate; (g) Leave may be granted to the petitioner to give notice to the High Court showing the petitioner's intention to adduce evidence within 14 days from the presentation of this petition and the petitioner has already deposited Rs. 2020/- as contemplated under Ss. 117 and 118 of the Representation of the People Act, 1951 (hereinafter referred as to the said Act) respectively.

(2.) . The question that arises for determination is if the election-petition has been filed in compliance with Section 81 (3) of the said Act. It appears that on 24-6-96 which is the last date for filing of election petition learned advocate for the petitioner mentioned before me and submitted that the election petition was drafted on 21-6-96, the petitioner came to court and put his signature on the main petition in accordance with rules and that very moment news reached from his native village Nalhati which is 300 Km. from Calcutta that his wife was lying seriously ill and then and there he left the Court premises for his home on 21-6-96. An order was passed by me on such mentioning to the following efect :-"The petition is noted as made today. Leave is granted to the petitioner to file the petition before the Registrar, Original side of this Court on his undertaking to be personally present in Court on 2-7-96 when this matter appear in the list.The petitioner is directed to serve a copy of this petition on each of the contesting candidates and inform them that this matter will appear in the list on 2-7-96."

(3.) It has been submitted on behalf of the respondent No. 1 that that there is no proper filing in the petition since mandatory requirement of S. 81 (3) of the said Act has not been complied with.