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2008 DIGILAW 313 (PAT)

Rakesh Kumar v. Sri Ramanand Prasad Singh

2008-02-13

S.N.HUSSAIN

body2008
Judgment 1. I.A. No. 5497 of 2007 has been filed on behalf of respondent no. 1 Mr. Ramanand Prasad Singh under the provision of Order VI Rule 16 and Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) for rejection of the election petition at this stage itself on the grounds (i) that the petitioner cannot challenge the impugned order dated 4.10.2005 (annexure-4) passed by the Chief Election Officer as the question of his age was already decided by the Hon ble Supreme Court by its judgment dated 16.10.2003 reported in AIR 2004 Supreme Court 230, (ii) that the petitioner had relied merely upon entry in the electoral roll which is not conclusive and is falsified by the matriculation certificate of the petitioner, and (iii) that there is lack of material facts in the election petition as required under Chapter II of the Representation of the People Act, 1951 (hereinafter referred to as the Act for the sake of brevity) . Hence, the respondent-applicant claims that the pleadings being vexatious and frivolous have to be struck of and the election petition being clearly barred by the provisions of the Act has to be rejected at the preliminary stage itself. 2. The following provisions of the Code will be relevant for the purposes of the instant matter: Order VI, Rule 16. Striking out pleadings. The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleadings (a) wnich may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court. Order VII Rule 11. Rejection of plaint. Order VII Rule 11. Rejection of plaint. The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued,and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplication; (f) where the plaintiff fails to comply with the provisions of Rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supply the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. 3. The following provisions of the Act will be relevant for the purposes of the instant matter: Section 81. Presentation of petitions. (1) An election petition calling in question any election may be presented on one of more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. Explanation.In this sub-section "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Section 83. Contents of petition. (1) An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. 2. Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Section 86. Trial of Election petitions. (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. ExplanationAn order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of Section 98. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of Section 80-A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation.For the purposes of this sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial. Section 100. Grounds for declaring election to be void. (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial. Section 100. Grounds for declaring election to be void. (1) Subject to the provisions of sub-section (2) if the High Court is of opinion- (a) Law that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected; (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. 2. If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent; (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, the then High Court may decide that the election of the returned candidate is not void. Section 36. Scrutiny of nominations. Section 36. Scrutiny of nominations. (1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writings by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33. (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds: (a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely: Articles 84, 102, 173 and 191, Part II of this Act and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or (b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine. (3) Nothing contained in clause (b) or clause (c) of sub-section (2) shall be deemed to authorize the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. (4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. (4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. (5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided that in case an objection is raised by the returning officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned. (6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection. (7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950 (43 of 1950). (8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board. 4. The following provisions of the Constitution will also be relevant for the purposes of the instant matter: Article 164. Other provisions as to Ministers. (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of Tribal Welfare who may in addition be in charge of the welfare of the scheduled castes and backward classes or any other work. (1-A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve: Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent, or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint. (1-B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a / member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified the Second Schedule. Article 173. (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified the Second Schedule. Article 173. Qualification for membership of the State Legislature: A person shall not be qualified to be chosen to fill a seat in the legislature of a State unless he (a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission on oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. 5. The instant election petition has been filed by the petitioner Mr. Rakesh Kumar for declaring the election of 163, Parbatta Assembly Constituency in the district of Khagaria held in October, 2005 to be null and void. In the said election Respondent No. 1 Mr. Ramanand Prasad Singh was declared elected on 22.11.2005, whereas nomination paper of the petitioner Mr. Rakesh Kumar had been rejected by the Chief Electoral Officer by order dated 4.10.2005 on the ground that at the time of filing of the nomination papers for the said election he had not attained the required age of 25 years. 6. The undisputed fact of the instant case is that in the year 1999 the petitioner was inducted as a Minister in the Cabinet of the State of Bihar by the then Chief Minister under provisions of Article 164(4) of the Constitution of India as he was not a member either of the Houses of the State Legislature, namely the Legislative Council and the Legislative Assembly. A complaint was filed by Mr. P.K. Sinha of Samta Party regarding the age of the petitioner, whereupon the Government directed an enquiry to be held in the matter by the Chief Electoral Officer who on inquiry reported that the petitioner had not attained the required age of 25 years due to which he had to leave the Ministry in the year 1999 itself. P.K. Sinha of Samta Party regarding the age of the petitioner, whereupon the Government directed an enquiry to be held in the matter by the Chief Electoral Officer who on inquiry reported that the petitioner had not attained the required age of 25 years due to which he had to leave the Ministry in the year 1999 itself. Subsequently general election was held in the year 2000 in which petitioner filed nomination papers for 181 Parbatta Assembly Constituency (Khagaria) and despite objection of one Mr. Sushil Kumar his nomination papers were accepted and finally the petitioner was declared successful in February, 2000 from the said Assembly Constituency. Against the said result, one of the candidates namely Mr. Sushil Kumar filed Election Petition No. 03 of 2000, but the same was dismissed by this court on 78.2002 which was challenged by Mr. Sushil Kumar vide Civil Appeal No. 8585 of 2002 and the Hon ble Supreme Court by its judgment dated 16.10.2003 allowed the said appeal and set aside the judgment of this High Court as well as the election of the petitioner on the ground of age. The said judgment of the Hon ble Apex Court is reported in AIR 2004 Supreme Court 230. 7. Due to the aforesaid judgment of the Hon ble Supreme Court bye election was held for the same constituency in the year 2004 and the petitioner again filed his nomination papers as a candidate of Rashtriya Janta Dal to which a candidate, namely Mr. Akhilesh Sukla filed objection, but the same was overruled by the Returning Officer on 17.4.2004 (annexure-3). However, when the result of the said bye-election was declared in May, 2004, the petitioner had lost and respondent no. 1 had succeeded. Similarly, in the general election held in January-February, 2005 for the said constituency the petitioner filed his nomination papers as the candidate for Rashtriya Janta Dal to which an objection was raised by an independent candidate Rajendra Yadav which was also overruled by the Returning Officer by order dated 28.1.2005 (annexure-4) and the nomination papers of the petitioner were accepted but when the results were declared the petitioner again lost and respondent no. 1 again succeeded. 8. In the year 2005 again general elections were notified and the petitioner again filed his nomination papers for the constituency in question, whereupon one Mr. 1 again succeeded. 8. In the year 2005 again general elections were notified and the petitioner again filed his nomination papers for the constituency in question, whereupon one Mr. Dhrub Kumar Sharma filed CWJC No. 12477 of 2005 in this High Court for declaration that in view of the judgment of the Hon ble Supreme Court, the petitioner not having attained the required age of 25 years cannot contest the ensuing elections. This High Court vide order dated. 29.9.2005 (annexure-5) directed the Chief Electoral Officer to make inquiries into the matter and give its findings regarding the age of the petitioner. In compliance of the said order of this court, the Chief Electoral Officer enquired the matter and by order dated 4.10.2005 (annexure-6) came to a conclusion that the petitioner had not attained the required age of 25 years and was thus not eligible for filing nomination papers. On the basis of the said inquiry and the findings of the Chief Electoral Officer, the Returning Officer by his order dated 6.10.2005 (annexure-1) rejected the nomination paper of the petitioner. Thereafter polling was held on 26.10.2005 and finally on 22.11.2005 results were announced and respondent no. 1 Mr. Ramanand Prasad Singh was declared elected from the above named Assembly Constituency. 9. Thereafter polling was held on 26.10.2005 and finally on 22.11.2005 results were announced and respondent no. 1 Mr. Ramanand Prasad Singh was declared elected from the above named Assembly Constituency. 9. Thereafter the instant election petition bearing E.P. No. 19 of 2005 was filed by the petitioner challenging the aforementioned orders of the Chief Electoral Officer as well as the Returning Officer on the grounds (i) that since the nomination papers filed by the petitioner in the bye-election of April, 2004 as well as in the general election of February, 2005 were accepted by the Returning Officer and the said acceptance were never challenged, the question had attained finality and hence the Returning Officer was not justified in rejecting the nomination papers of the petitioner for the general elections of October, 2005, (ii) that the age given in the electoral roll is conclusive proof of the age and the Chief Electoral Officer and the Returning Officer were bound to follow the same specially when the Hon ble Apex Court had not given any definite finding regarding the date of birth, (iii) that the Chief Electoral Officer as well as the Returning Officer completely ignored the report of the Medical Board (annexure-7) given in 1995 which clearly showed that the petitioner had attained 25 years of age before 2005, (iv) that the Chief Electoral Officer went beyond its jurisdiction as prescribed under Section 20 of the Act while passing his order dated 4.10.2005 (Annexure-6) and usurped the jurisdiction of the Election Commission regarding enquiry prescribed under Section 146 of the Act, and (v) that the Returning Officer while passing his order dated 6.10.2005 (Annexure-1) merely followed the finding of the Chief Electoral Officer and did not apply his independent mind although he was required to deal with the matter regarding scrutiny of nominations independently as per the provisions of Section 36 of the Act. Hence, he claimed that the nomination papers of the petitioner for the general election of October, 2005 with respect to the Assembly Constituency in question should not have been rejected and consequently the entire election process including the declaration of result for the said Assembly Constituency was bad, null and void. 10. The said election petition was filed on 5.12.2005, whereafter it was admitted for hearing on 9.01.2006 and notices were directed to be issued for the respondents. 10. The said election petition was filed on 5.12.2005, whereafter it was admitted for hearing on 9.01.2006 and notices were directed to be issued for the respondents. Thereafter notices by all processes including substituted service were issued upon the respondents and finally the said notices were validly served. By order dated 20.3.2007 the issue for deciding the election petition was framed by this court which is "Whether rejection of nomination papers of the petitioner by Returning Officer, Gogari, is illegal, arbitrary and without any sanction of law and as such the whole election of Parbatta Assembly Constituency is null and void?" Subsequently the petitioner filed his list of witnesses and list of documents on 18.8.2007. Respondent No. 1 who is the main contestant has already filed his written statement in the instant case. Only thereafter the aforementioned I.A. No. 5497 of 2007 was filed on behalf of respondent no. 1 on 27.9.2007 for rejection of the election petition at the preliminary stage itself without going into the rigours of the final hearing including leading of evidence etc. on the grounds mentioned in paragraph 1 of this order. 11. Considering the aforesaid facts and circumstances of the case as well as the provisions of law applicable thereto it is quite apparent that the issues which are being raised by respondent no. 1 for deciding as preliminary issues are mixed questions of law and facts requiring evidence, both oral and documentary. This cannot be done at this stage and since the election petition has already been admitted, pleadings already completed and issues already framed, this court finds it just and proper to consider the said issues raised by respondent no. 1 along-with other issues at the time of final hearing of the case after evidence, both oral and documentary, are led by the respective parties. In that view of the matter, this interlocutory application bearing I.A. No, 5497 of 2007 is disposed of.