SURENDRASHARMA Vs. JAGDISH SHARMA

JUDGEMENT

(1.) This is a petition under Article 329 (B) of the Constitution of India read with sections 80 and 81 of the Representation of the Pepoles Act, 1951 for setting aside the election of respondent No. 1 Jagdish Sharma from 246 Ghoshi Legislative Assembly Constituency and for declaring the election petitioner elected.

(2.) The case of the election petitioner as made out in the election petition is that by a notification published in the Bihar Gazette (Extra Ordinary) the Assembly Constituencies of Bihar State Legislative Assembly including 246 Ghoshi Assembly Constituency had been called upon to elect members for the purpose of constituting the new Legislative Assembly of the State and the various dates in January and February, 1990 had been fixed for the defferent stages of the election from the aforesaid 246 Goshi Assembly constituency. The election petitioner and several others presented their nomination papers to be candidates. As required by Section 34 (2) of the Representation of the People Act, 1951 the election petitioner deposited Rs. 250/- in Government Treasury, Jehanabad. under Treasury Challan in favour of Returing Offier and attached the Treasury Challan with his nomination paper. At the time of scrutiny of the nomination papers on the 5th February, 1990 the election petitioner inspected papers of other candidates and found that none of them including respondent No. 1 Jagdish Sharma and respondents 6 to 17 had made deposits of security amount as required under Section 34 of the said Act either with the Returning Officer in cash or in the Reserve Bank of India or in the Government Treasury rather had deposited the required sum with the District Nazir, Jehanabad and had obtained receipt from the Nazir bearing his (Nazir's) Signature and had enclosed the same with their respective nomination papers. The election petitioner accordingly raised objection against the acceptance of the nomination papers of the candidates including that of respondent No, 1 and 6 to 17 but the Returning Officer did not entartain the same. The election petitioner also filed written objection but the Returning Officer refused to receive the same and then the election petitioner approached the Collector, Jehanabad and informed him about the refusal of written objection by the Returning Officer and then the Collector-cum-District Election Officer, Jehanabad directed the office to receive the written objection and the same was received by a clerk. The Returing Officer accepted the deposits by respondent No. 1 and 6 to 17 as valid and accordingly accepted the nomination papers' of the candidates including respondent No. 1 and 6 to 17. Further case of the election petitioner is that but for illegal acceptance of nomination papers of other candidates including that of respondent No. 1 and 6 to 17, the election petitioner should have been declared elected uncontested after expiry of the date for withdrawal of the nomination papers but the Returing Officer declared respondent No. 1 elected on 2-3-1990 and hence this election petition for the aforesaid reliefs.

(3.) Respondent No. 1 Jagdish Shrma has filed written statement and has contested the election petition. The other respondents have neither filed written statement nor have contested the election petition. The case of the contesting respondent No. 1, inter alia, is that he and other candidates had not deposited the security money with the Nazir rather had deposited the security money directly with the Returning Officer in cash before filing their nomination papers which is permissable under Section 34 of the Representation of the Pepole Act and the Nazir had simply granted receipt as per direction of the Returing Officer and they (respondents) had attached the receipt with their nomination papers. The nomination papers were rightly and legally accepted by the Returning Officer. There was no infraction of Section 34 of the Representation of the Peoples Act. It is also the case of the contesting respondent No 1 that the election petition is not maintainable and is fit to be dismissed. The contesting respondent in his written statement has also taken certain technical pleas but those pleas not pressed at the time of bearing and hence are not being mentioned here.