THOMAS HANSDA Vs. SOM MARANDI

JUDGEMENT

(1.) The record was put up today for hearing on the petition of objection filed on behalf of Respondent No. 1 under Order 7 Rule 11 of the Code of Civil Procedure read with Section 86 of the R.P. Act, 1951. A rejoinder was also filed on behalf of the Petitioner and the points raised in this petition have been disputed. However, when the matter was taken up it was pointed out by the learned Counsel for Respondent No. 1 that the present election petition has become infructuous in view of the fact that 12th Lok Sabha, to which the present election petition relates, stands dissolved by the proclamation of the President of India dated 26.4.1999. It is submitted that since there is no allegation of corrupt practice in this case and the petition has been filed challenging the election of Respondent No. 1 only on the ground of mistake in calculation at the time of declaration of result of the Lok Sabha from the constituency in question and since the Lok Sabha has been dissolved, the election petition has become infructuous and it will be futile to hear it. So far as the allegation of corrupt practice is concerned, it is admitted that there is no such allegation in the election petition and the election petition has been mainly filed on the ground that there was mistake in calculation of the votes cast in favour of the respective candidates at the time of preparation of the final result sheet for the constituency. In this regard it has been admitted that actually the prayer of the election Petitioner is that the election of Respondent No. 1, the declared candidate, be set aside and the Petitioner be declared elected from the constituency for the election. So, if this petition is heard and the election petition is allowed, the Petitioner shall have to be declared elected, but he cannot take seat in the Lok Sabha because it has already been dissolved and according to Article 99 of the Constitution of India for becoming a Member of Parliament the winning candidate should take oath of office which is impracticable in the present situation.

(2.) In this regard, learned Counsel for Respondent No. 1 has cited a decision Loknath Padhan V/s. Birendra Kumar Sahu., 1974 AIR(SC) 505 It was a case in which the election petition in question was allowed by High Court and the appeal was preferred before the Hon'ble Supreme Court, but while the appeal was pending the assembly in question was dissolved and, therefore, the question was raised there whether the appeal should be allowed to continue or it should be dismissed. Their Lordships in this connection discussed the situation and observed:

(3.) Another decision which was cited is the case of Kashi Nath Mishra V/s. Vikramaditya Pandey and Ors., 1998 8 SCC 735. This is a very short order by the Supreme Court in which the order has been passed, like this;