HANUMAN SINGH Vs. ELECTION COMMISSIONER OF INDIA

JUDGEMENT

(1.) One Shri Ram Dev (Ram Dev Singh) was nominated by the Bhartiya Janta Party (for short B.J.P.) as approved candidate for contesting the election of the Member to the Mundwa Assembly Constituency in the general elections to be held in November 1998 for the Rajasthan Legislative Assembly. Said Ramdev filed his nomination paper for contesting the election as B.J.P. Candidate, but unfortunately died on 12-11-1998. The election was to be held on 25-11-1998. The poll to this Mundwa Assembly Constituency stood adjourned by the Returning Officer. The factum of death was notified by the Returning Officer to the Election Commissioner as was mandatorily required under S.52 of the Representation of the People Act (here-in-after called the Act). The Election Commission of India after receipt of the report from the Returning Officer, issued notice under S.52(2) of the Act on 14-11-1998 to the B.J.P. and called upon the said B.J.P. to nominate another candidate for the said poll before Returning Officer within seven days from the date of issue of notice. The notice as issued by the Election Commission is attached as Annexure-2 to the writ petition. This notice was duly received by the President of the B.J.P. on 15-11-1998. It is stated in the writ petition that the petitioner Hanuman Singh was approved and nominated by the BJP on 16-11-1998 to be the candidate on behalf of B.J.P. for the said constituency. The communication as required under the provisions of Clause 13(c), (d) and (e) of the Election Symbols (Reservation of Allotment) Order, 1968 has been attached as Annexure-3 to the writ petition which was submitted to the Returning Officer, Mundwa on 4-12-1998 at 11.45 a.m., attaching therein another communication stating that the present petitioner Hanuman Singh was chosen to be nominated by the BJP on 16-11-1998.

(2.) It is stated by the petitioner that he also appeared before the Returning Officer of Mundwa Assembly Constituency with his nomination paper along with the aforesaid authorisation on 18-11-1998 but the Returning Officer expressed his inability to accept the same on the ground that he had not received any information from the Election Commission of India in this regard. The said nomination paper is attached as Annexure-5. In the written statement filed by the respondent, the fact that the petitioner ever approached on 18-11-1998 for filing the nomination paper is vehemently denied. There is clear assertion that no nomination paper was filed within the period as specified in the notice issued by the Election Commission as required under S.52 (2) of the Act. It is further submitted that vide Annexure-6 dated 22-1-1999, the Returning Officer had seeking clarification about the fixation of the date of election and guidance from the Election Commision. The petitioner wants to submit that in response to the notice issued on 14-11-1998 (Annexure-2), the BJP had nominated its candidate and the petitioner submitted the requisite Forms A and B in accordance with the provisions of the Election Symbols (Reservation and allotment) Order, 1968. He is said to have appeared before the Returning Officer for submission of the nomination papers, but the Returning Officer declined to accept the same on the ground that he had not received any notice pursuant to S.51(2) of the Act and thus, his name stands excluded from the list of the contesting candidates for no fault of his for the elections which are scheduled to take place on 22-2-1999.

(3.) In the programme issued for election to the adjourned date to 22-2-1999, the petitioners name does not appear as a contesting candidate on behalf of BJP. It is stated that the provisions of S.52 further mandates that the provisions of S.30 to 37 are to be applied in relation to the said nomination as would apply to other nominations. It is the contention of the petitioner that the Election Commission was required to call upon the political party whose candidate had died to nominate other candidate within seven days of the issue of said notice and after the nomination made by the party, the Election Commission was required to issue a notification in the Official Gazette and to publish the last date for making the nominations, the date of scrutiny and withdrawal of the nominations. In the instant case, no such notification is said to have been issued for making nominations, scrutiny and for withdrawal.The petitioner wants to submit that the procedure as envisaged under Ss. 30 and 37 have not been complied with. Some affidavits have been filed to the effect that on 18-11-1998, the petitioner had visited the office of the Returning Officer for the purpose of filing nomination papers, but the same was not accepted by the Returning Officer on the ground that no date of election has been notified as yet. Annexures 10 and 11 are the affidavits filed. These supporting affidavits have been filed by one Hem Singh Choudhary and Bhawar Lal Choudhary which are attached as Annexures 10 and 11. The scheduled Election programme has been attached as Annexure-12 wherein date of poll has been mentioned as 22-2-1999 and counting of votes has been mentioned as 24-2-1999 and the election is to be completed before the date 26-2-1999. Similar elections were to be held in the State of Delhi also where the dates for scrutiny of nominations and date of withdrawal have also been mentioned.