KANWAL SINGH BEDHADAK PATWARI Vs. RAMJI LAL JANGRA

JUDGEMENT

(1.) KANWAL Singh Bedhadak Patwari through present Election Petition filed by him under Part 6 of the Representation of People Act, 1951 (hereinafter referred to as the Act) calls in question the election of respondents No. 1 and 2 to the Council of States (Rajya Sabha) by elected members of Haryana Legislative Assembly. It has, inter alia, been pleaded that he petitioner is a voter of Haryana Legislative Assembly and his name has been entered in the said list in Part No. 32, electoral serial No. 589 of village Naya Bans Assembly constituency No. 40 (Kailana ). Vide notification dated July 10, 1992, two vacancies of Rajya Sabha were to be filled up from the State of Haryana. As per election programme notified, filing of nomination papers was from 10th of July 1992 to 17th of July, 1992. The scrutiny of the nomination papers was done on 18th of July, 1992 and the last date for withdrawal was 20th of July, 1992. Petitioner addressed a letter to the Returning Officer on 13th of June, 1992, for supply of nomination papers and list of members of Legislative Assembly constituting the electoral roll for the election of two Rajya Sabha seats to be filled up from the State of Haryana for which election was to be held on 27th July, 1992. The Returning Officer did not supply the list of elected members of Legislative Assembly, so the petitioner could not get the proposer in time. Petitioner visited the office of the Returning Officer on 11th/12th of July 1992 and got the list of the members of the Legislative Assembly for the purpose of filing nomination papers. Members of the respective parties i. e. Congress (I), Haryana Vikas Party, Samjwadi Janta Party went underground and the prospective candidates i. e. those of Congress (I) Party and Haryana Vikas party took the members to a place unknown to any one with an intention to prevent the other candidates to fill nomination papers as the requisite number of proposers shall not be available. Two candidates i. e. respondent No. 1 and 2 of the Congress Party filed nomination papers to the Council of States and by respondent No. 3 of the Haryana Vikas Party as there was no problem for them to get proposers as the said voters were confined at unknown places and the respective parties got the proposers as required under the Act. None of proposers on behalf of the respondents was present at the time of presentation of the nomination papers which would go to show that all proposers were underground. Since all the voters were put underground by the respective parties, the petitioners could not and was not in a position to get a proposer and therefore, filed nomination papers without any proposer. The nomination paper of the petitioner was rejected, thus, constraining the petitioner to file election primarily on the ground that the corrupt practices adopted by respondents No. 1 and 2, he could not file a valid nomination paper and thus, could not as such be a candidate.

(2.) PURSUANT to the notice issued by this Court, the respondents have put in appearance though Mr. J. K. Sibal and Mr. S. C. Kapoor, Senior Advocates and have raised a preliminary objection with regard to maintainability of this election petition. It has been convassed by the learned Counsel representing the respondents that the petitioner is neither a candidate nor claims to have been duly nominated as a candidate and therefore, by virtue of provisions of Section 81 of the Representation of People Act, he cannot call in question the election of respondents. Section 81 of the 1951 Act reads thus :

(3.) FOR the purpose of contesting election to the Rajya Sabha an elector has to be an M. L. A. and concededly the petitioner is not an M. L. A. . He is, therefore, not an elector. However, the controversy is with regard to the petitioner claiming to have been duly nominated in election. Learned counsellor the parties are ad idem that with a view to contest an election to the Rajya Sabha a person as such may not be an elector but then in that case he can be duly nominated candidate only if his nomination papers are proposed by 1/l0th of members of the Legislative Assembly. Concededly as well the nomination paper filed by the petitioner has not been proposed by even a single M. L. A. From the language of sub-clause (b) of Section 79 and Section 81 of the Act, this Court is of the considered view that the petitioner is not a candidate as defined under clause (b) of Section 79 and therefore, could not call into question the election of respondent No. 1 and 2. In so far as the claim of the petitioner to have been duly nominated is concerned, it is true that he cannot claim to be so duly nominated unless his nomination is proposed by 1/l0th of the members of the legislative Assembly.