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2000 DIGILAW 58 (HP)

DILE RAM v. TEK CHAND

2000-03-28

SURINDER SARUP

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JUDGMENT Surinder Sarup, J.:- This order will dispose of E.M.P. No. 2 of 2000, being an application filed by the respondent in the main Election Petition, under Section 116-B of the Representation of the People Act, 1951, hereinafter to be called "the Act". 2. Briefly the facts are that the non-applicant-petitioner Shri Deli Ram had filed Election Petition No. 2 of 1998 challenging the election of the applicant-responded Tek Chand from 61-Nachan (S.C.) Assembly Constituency in Himachal Pradesh, elections for which were held on 28.2.1998. By a judgment of this Court dated 24th March, 2000, the said Election Petition has been allowed and the election of the applicant-respondent from the said Constituency has been set-aside and declared void under Section 100(l)(d)(i)of the Act. The election has been set-aside and declared void on the ground that by the improper and wrongful acceptance of the nomination paper of one of the candidates in the election, namely, Nikka Ram, the result of the election has been materially affected so far as it concerns the election of the applicant-respondent Tek Chand, hence the present application under Section 116-B of the Act for staying the operation of the said judgment of this Court dated 24th March, 2000, passed in Election Petition No. 2 of 1998, till such time the applicant- respondent files an appeal against the same before the Supreme Court of India. 3. Reply to the application has been filed. The learned Counsel for the parties have been heard. 4. At the out-set it must be stated that the contents of the present application disclose that the applicant-respondent has called into question the correctness of the judgment of this Court aforementioned, on merits and has gone to the extent of stating in para 3 that the conclusion arrived at by this Court therein cannot be arrived at by any interpretation either of law or on facts. In this context it has rightly been pointed out in the reply of the non-applicant-petitioner that the Election Petition was contested by the applicant-respondent, evidence was adduced and arguments at length where heard. Thereafter, this Court has announced the judgment and now the same cannot be reviewed. It has also been stated in the reply that the applicant- respondent can take such grounds in appeal, if he so desires. 5. Thereafter, this Court has announced the judgment and now the same cannot be reviewed. It has also been stated in the reply that the applicant- respondent can take such grounds in appeal, if he so desires. 5. Notwithstanding the above defective and irrelevant grounds contained in the application, in order to do substantial justice, the matter has been considered and examined in depth by this Court as to whether sufficient cause has been shown by the applicant-respondent for staying the operation of the aforementioned judgment unseating him as a Legislator. In this context his learned Counsel has placed reliance on the case of Kirpal Singh, M.L.A. v. Uttam Singh & Anr., (A.I.R. 1986 S.C. 300) wherein a Constitution Bench of the Apex Court on a consideration of the fats of that case, came to the conclusion that proper order would be to grant an absolute stay so that the Constituency may not go unrepresented. On the other hand the learned Counsel for the non-applicant-petitioner has placed reliance on the celebrated case of Smt. Indira Nehru Gandhi v. Raj Narain & Anr., A.I.R. 1975 S.C. 1590 wherein the Apex Court had granted conditional stay of the judgment of the Allahabad High Court non-seating the then Prime Minister of the Country on the ground of corrupt practice, during the pendency of the appeal in the Supreme Court. 6. After devoting considerable thought and deliberating, this Court is of the considered view that following the guidelines laid down by the Apex Court in both the above reported decisions, being relied upon in support of their stand by the respective parties, that it would be appropriate in the facts and circumstances of the present case to grant a conditional stay of the operation of the judgment dated 24th March, 2000, in Election Petition No. 2 of 1998. In fairness to the learned Counsel for the applicant-respondent, he has laid great stress on the fact that in view of Kirpal Singhs case (supra) this Court should grant absolute stay of the operation of the said judgment till the Supreme Court is seized of the matter when appeal is taken by him there. 7. In fairness to the learned Counsel for the applicant-respondent, he has laid great stress on the fact that in view of Kirpal Singhs case (supra) this Court should grant absolute stay of the operation of the said judgment till the Supreme Court is seized of the matter when appeal is taken by him there. 7. However, a perusal of the decision in Kirpal Singhs case supra reveals that the election therein was set-aside by the Punjab and Haryana High Court on the ground of improper rejection of the nomination paper of one candidate and it was held by the Apex Court that since the election was set aside for no fault of the Returned Candidate, the proper order would be to grant absolute stay so that the Constituency may not go un-represented. However, in the present case, the election has been set aside on the ground of improper acceptance of the nomination paper of one candidate (Nikka Ram) which has been held to have materially affected the result of the election in so far as it concerns the applicant-respondent. It is manifest that under Section 100(1)(c) of the Act the election of the Returned candidate is liable to be declared void by the High Court in case any nomination has been improperly rejected, as in Kirpal Singhs case. But the election of the applicant-respondent in the present I case has been set aside under Section 100(l)(d)(i) of the Act, for which the legal parameters are different than in a case of improper rejection of a nomination paper. Therefore, following the course adopted by the Apex Court in Smt. Indira Nehru Gandhis case (supra) it would be, fit and proper in the circumstances of the case to grant conditional stay, in order to ensure that till the appeal is filed in the Supreme Court by the applicant-respondent and any order of an interim nature is passed there, the Constituency which the applicant-respondent has been representing till date may not go unrepresented. 8. For the aforementioned reasons, the application and prayer contained therein is allowed to the extent that the applicant-respondent Tek Chand will he entitled to sign the register kept in the Legislative Assembly of the State of Himachal Pradesh at Shimla for that purpose and attend the Session of the Assembly, but he shall be entitled to draw remunerations in his capacity as Member of the Legislative Assembly. It is made clear that this conditional order shall remain in force for a period of 30 days from today and shall automatically stand vacated on the expiry thereof. It is further made clear that this conditional order is being passed on the ground taken by the applicant-respondent that he wants to file an appeal in the Supreme Court against the impugned judgment of this Court. There will be no order as to costs of this application.