KESHARI LAL KAVI Vs. NARAIN PRAKASH

JUDGEMENT

(1.) THIS is a miscellaneous petition by Shri Keshar Lal Kavi and Shri Radha Kishan goyal (who shall hereafter be referred to as applicants Nos. 1 and 2 respectively) under Order 9, Rule 8 read with Section 151, Civil Procedure Code (which shall hereafter be referred to as the Code) and Section 87 of the Representation of the people Act, 1951 (which shall hereafter be referred to as the Act) containing a prayer in the following terms:--

(2.) THE material and relevant facts under which this application has arisen may be given as follows:-In the fourth, general election for the Lok Sabha that is, House of people, held in February, 1967, six persons including the applicant No. 1 and the five non-applicants contested for the Lok Sabha seat from the scheduled caste Parliamentary Constituency of Tonk. The non-applicant no. 2 Shri Jamna Lal and two others indicated in their nomination papers first preference in favour of allotment of symbol "star" which was the officially approved symbol of the Swatantra party. As no authorised person on behalf of the Swatantra party had intimated to the Returning officer either the name of its approved or substituted candidate by 3 P. M. on 23-1-1967 the Returning Officer while allotting symbols to the various candidates allotted the symbol of "horse" to the non-applicant no. 2 and supplied to all the contesting candidates a list of the contesting candidates along with the symbols allotted to them. The non-applicant No. 2 moved an application before the Election Commission on 24-1-1967 for revising the order of the Returning Officer and allotting the symbol of "star" to him. The Election Commission, after making queries, from the Returning Officer on the application of the non-applicant No. 2 assigned to him the official symbol "star" of the swatantra party. It may be mentioned that the decision of the Election commission was given without notice to the non-applicant No. 1 or to the applicant No. 1. Eventually, as a result of the polling the non-applicant No. 2 Jamna Lal was declared elected to the Lok Sabha,

(3.) THE non-applicant No. 1 thereupon submitted an election petition in this Court on 8th April, 1967. In that election petition the non-applicant No. 1 made no reference to the details of the results of the election but challenged the election of the non-applicant No. 2 Shri Jamna Lal on only one ground. According to the non-applicant No. 1 the ex parte decision of the Election Commission cancelling the free symbol "horse" assigned to the non-applicant No. 2 by the Returning Officer and substituting the same by the official symbol "star" of the Swatantra party was wholly illegal, arbitrary, without jurisdiction and ultra vires of the powers of the election Commission. It was further the non-applicant's case that consequently, the results of the election were materially affected to the great detriment and prejudice of the non-applicant No. 1 and other contesting candidates. The non-applicant No. 1 prayed for a declaration that the election of the non-applicant No. 2 was void. In that election petition the applicant No. 1 was impleaded as respondent No. 2. The election petition was contested by non-applicant No. 2 Jamna Lal. The applicant No. 1, who was respondent No. 2 in that petition, did not contest the election petition and allowed the case to proceed ex parte against him. Issues were framed on 7-7-1967 and the case was fixed on 16-8-1967 for recording evidence. On 16-8-1967 the election petitioner Narain Prakash, who is non-applicant No. 1 in the present petition, did not appear in Court and, therefore, his statement could not be recorded. Two witnesses were present but the counsel for the petitioner (non-applicant No. 1) did not examine them with a statement that he could not examine them in the absence of any instructions from his client. The two witnesses were thus discharged. No other witness was present in Court and the counsel for the election petitioner closed his evidence. The respondent No. 1 jamna Lal's counsel led no evidence. Arguments were heard and eventually the election petition was dismissed on 16-8-1967 on the ground that the allegations made in the election petition remained unsubstantiated and unproved.