Important point
Sections 17 and 18 of the Representation of People Act, 1950 are mandatory.

Judgment

K. Venkataswami, J.-Aggrieved by the dismissal of Election Petition No. 4/95 on the file of Bombay High Court (Auranga-bad Bench), this appeal is filed by the appellant.

2. In January, 1995 the elections to the Maharashtra State Legislative Assembly were held. The appellant and the first respondent alongwith others had filed nominations to contest from 211 Nilanga Assembly Constitutency, Latur District. The appellant raised objections before the Returning Officer (Respondent No. 2) to the candidature of first respondent. According to the appellant, as the first respondent’s name was appearing in the electoral rolls of 211 Nilanga Assembly Constitu­ency and also 206 Latur Assembly Constituency, he could not be an elector in both the constituencies and, therefore, his nomination has to be rejected. After hearing the parties, the Returning Officer overruled the objections of the appellant by an order dated 19.1.1995. A revision filed before the Chief Electoral Officer, Maharashtra State, was also not successful. The Returning Officer announced the result of the 211 Nilanga Constituency on 12.3.1995 by declaring that the first respondent was elected from that constituency.

3. The appellant challenged the election of the first respondent by filing an Election Petition. The main challenge in the election petition was on the ground that the first respondent’s name appears in two assembly constituencies and as such he has incurred disqualifica­tion under the law relating to election of members to the Legislative Assembly. It was also contended by the appellant that the first re­spondent was not “ordinarily resident” within the meaning of Section 20 of the Representation of People Act, 1950 (hereinafter called the “1950 Act”) in Nilanga Constituency and, therefore, not qualified to contest the election from the said Constituency. It was further contended that the objection raised by him before the Returning Offi­cer was wrongfully and illegally turned down.

4. The first respondent contested the Election Petition denying all the objections raised by the appellant. According to the first re­spondent, his name finds a place in the electoral roll for the Nilanga Constituency and, therefore, it was not open to the appellant to raise the objection that he was not an ordinary resident of any of the villages coming under Nilanga Constituency. According to the first respondent, he was not disqualified to contest from Nilanga Con­stituency as contended by the appellant.

5. Before the learned Judge, the parties have agreed that two issues can be framed as preliminary issues and on those issues no oral or documentary evidence need be adduced. Accordingly, the following issues were framed:-

“(1) Do the entries of the name of the respondent No. 1 in two Assembly Constituencies entail any disqualification and does the election become void on that count?

(2) Is the petition tenable in the absence of essential or necessary parties?

(3) What Order?”

6. The learned Judge on the basis of the submissions made before him answered the first issue in the negative and the second issue affirma­tively. Accordingly, under the third issue he dismissed the election petition.

7. Mr. O.P. Rana, learned Sr. Counsel appearing for the appellant, contended that the High Court should have held acceptance the case of the appellant that in view of the first respondent’s name appearing in the electoral rolls of two constituencies, namely, 206 and 211, he was not eligible to contest the election from Nilanga Constituency. Ac­cording to the learned Sr. Counsel that on a conjoint reading of relevant provisions of the Representation of People Act, 1950 and 1951, the High Court should have held that the first respondent was not qualified to be chosen as he was not eligible to contest the election and as such the election was void ab initio. In other words, the contention of the learned Senior Counsel for the appellant was that the first respondent’s name havi