OBIL KYNDIT Vs. SIMON SIANGSHAI

JUDGEMENT

(1.) Election petitioner has challenged the election of first respondent- the returned candidate, on various grounds; first, on the dates of filing nomination and scrutiny and on the date of election he was holding an 'office of profit. inasmuch as, he was a sitting member of Legislative Assembly of Meghalaya and was not enjoying any facility, privilege or status of a Minister, Leader of Opposition, Parliamentary Secretary etc. He was not protected under the provisions of "Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya) Act, 1972. Secondly, he was disqualified to be a member of the Legislative Assembly, inasmuch as, in the previous election he was elected to the Meghalaya Legislative Assembly as an independent candidate in the year 1988 and thereafter, he joined the Hill People Union Party without first resigning from the membership of the Assembly. Thirdly, in spite of objections, the Returning Officer improperly accepted the nomination papers of the first respondent.

(2.) First respondent has filed this application under Order 6 Rule 16 of the Code of Civil Procedure for striking out the portion of pleadings, viz. paragraphs 6(a), (b), 7, 8 and 9 of the election petition, inasmuch as, the averments made in the said paragraphs are irrelevant and vexatious and these averments cannot be the subject matter of an election petition. From the facts and circumstances of the cae and under the provisions of law it will be evident and apparent that the first respondent was not holding any 'office of profit,' therefore, this cannot be a subject matter of the election petition. Regarding the averments made in paragraphs 7 and 8, the first respondent has stated that these are matters relating to Tenth Schedule of the Constitution for defection of a member and are exclusively within the jurisdiction of the Speaker; therefore, these averments are also irrelevant and vexatious for the purpose of determination, of the election petition.

(3.) Objection has been filed by the election petitioner against the application for striking out the pleadings. The election petitioner has reiterated that the first respondent was disqualified from being chosen as a member of the Meghalaya Legislative Assembly as he was holding an office of profit on the dates of filing and scrutiny of his nomination papers and also on the date of election, as such, the election of first respondent was illegal and contrary to the provisions of law. The Returning Officer illegally accepted the nomination papers filed by the first respondent, which has materially affected the result of the election. The election petitioner has also denied the contention of the first respondent that any of the contentions made in the election petition is irrelevant or vexatious.