MOHAN SINGH OBEROI Vs. SHAH MUHAMMAD UMAIR

JUDGEMENT

(1.) In this case the petitioner Shri Mohan Singh Oberoi has obtained a rule from the High Court asking the respondents to show cause why the order of the Election Tribunal of Patna postponing the decision of a preliminary objection raised by the petitioner of non-compliance of Section 81 of the Representation of the People Act should not be set aside by the High Court under Article 227 of the Constitution, Cause has been shown by the respondents to whom notice of the rule was ordered to be given.

(2.) It appears that respondent No. 1, Shri Shah Muhammad Umair, had filed an election petition under Section 81 of the Representation of the People Act, 1951, challenging the validity of an election to the Rajya Sabha from the Bihar Legislative Assembly Constituency. Under Section 86 of the Representation of the People Act, 1951, the Election Commission constituted a Tribunal for the trial of the election petition and appointed the District judge of Patna to be a member of the said Tribunal. On the 27th August, 1962, the petitioner filed an application under Section 90, Sub-section (3), of the Representation of the People Act, praying that the election petition filed by respondent No. 1 should be dismissed for non-compliance with the mandatory provisions of Section 81 of the Act. The objection of the petitioner was that the copy of the petition served upon him did not contain the annexures attached to the main petition. It was also alleged on behalf of the petitioner that the annexures to the petition formed part of the petition and repeated references had been made to the annexures in the body of the petition. It was, therefore, contended that respondent No. 1 had not complied with the mandatory provisions of Section 81 of the Representation of the People Act, 1951. It was submitted by the petitioner before the Election Tribunal that the preliminary objection challenging the maintainability of the election petition should be disposed of first, before framing other issues in the case. This prayer was rejected by the Election Tribunal on 3rd September, 1962, and it was observed by the Election Tribunal in the course of its order that the

(3.) On behalf of the petitioner it was submitted by the learned Government Advocate that the order of the Election Tribunal is vitiated in law because he was bound to decide the preliminary objection raised by the petitioner with regard to the violation of Section 81 of the Representation of the People Act, and consider whether the election petition was liable to be dismissed under Section 90, Sub-section (3), of the statute. In support of this submission learned counsel referred to the decision of the Supreme Court in K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687. It was pointed cut by the-Supreme Court in that case that when a preliminary objection is raised in an election petition that the provision contained in Section 117 of the Representation of the People Act with regard to deposit of security has not been duly complied with and the election petition is, therefore, liable to be dismissed under Section 90 of the Act, such objection is to be heard and decided before the election petition is heard on merits. This decision of the Supreme Court has been followed in a recent decision of this High Court in Dhananjoy Mahto v. R. K. Singh, 16 Ele LR 99 (Pat), and it has been held in that case also that the Election Tribunal is bound to hear and decide a preliminary objection before the election petition is heard on merits. In our opinion the principle laid down in these authorities governs the present case. Acting, therefore, in exercise of our authority under Article 227 of the Constitution, we set aside the order of the Election Tribunal, Patna, dated the 3rd September, 1962, and direct that the Election Tribunal should proceed to hear and decide the preliminary objection raised by the petitioner with regard to non-compliance of Section 81 of the Representation of the People Act in his objection petition dated the 27th August, 1962, and thereafter proceed in accordance with law. We de sire to make it clear that it will be open to the parties to adduce such evidence as they may like with regard to the preliminary objection raised by the petitioner, and after such evidence as may be adduced by the parties the Election Tribunal will decide the preliminary objection raised by the petitioner and thereafter proceed in accordance with law.