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IN THE HIGH COURT OF RAJASTHAN
Vinit Kumar Mathur, J.
Jitendra Kumar - Appellant
Versus
Kiran Maheshwari - Respondent
Election Petition No. 5 of 2019
Decided on : 31-03-2021
Election Petition - Representation of the People Act, 1951 - Section 80(A) and 125(A) - Summary
Fact of the Case:
The election petition was filed challenging the election of respondent No. 1 as Member of Legislative Assembly (M.L.A.) of Rajsamand Constituency (175) in the Legislative Assembly Election -2018. The respondent No. 1 passed away during the pendency of the petition, and a notification declaring the seat vacant was published.
Finding of the Court:
The court found that the election petition was not accompanied by the required security amount, and the inherent defect was not cured. The court dismissed the election petition as it did not comply with the provisions of Section 81, 82, or 117 of the Act of 1951. The court also rejected the prayer for declaring the election petitioner as elected M.L.A. of Rajsamand Constituency.
Issues: The issues included the non-disclosure of criminal cases by the respondent No. 1, the non-deposit of the security amount, and the prayer for declaring the election petitioner as elected M.L.A. of Rajsamand Constituency.
Ratio Decidendi: The court held that the election petition must comply with the provisions of Section 81, 82, or 117 of the Act of 1951, and the non-deposit of the security amount for the petition was a fatal defect. The court also emphasized that the right to contest an election is a statutory right and must adhere to the limitations imposed by the statute.
Final Decision: The election petition was dismissed, and the court found that the prayer for declaring the election petitioner as elected M.L.A. of Rajsamand Constituency was unfounded.
JUDGMENT
Vinit Kumar Mathur, J. - With the consent of the parties, the present election petition is being heard finally and decided.
2. The present election petition has been preferred under Section 80(A) and 125(A) of the Representation of the People Act, 1951 by the election-petitioner, whereby a challenge was made to the election of respondent No. 1 -Smt. Kiran Maheshwari as Member of Legislative Assembly (M.L.A.) of Rajsamand Constituency (175) in pursuance to the Legislative Assembly Election -2018.
3. The result of the election of Legislative Assembly Elections 2018 was declared on 13.12.2018, whereby the respondent No. 1 -Smt. Kiran Maheshwari was declared elected as Member of Legislative Assembly (M.L.A.) of Rajsamand Constituency (175). Aggrieved of the same, the present election petition was filed by the election-petitioner before this Court on 24.01.2019. At the time of presentation of the election petition, certain defects were pointed out by the Office, which were removed by the election petitioner subsequently. The notices in the election petition were issued by this Court on 28.08.2019. During the pendency of the present election petition, following Interlocutory Applications (IAs) were filed by the parties as under :-
| I.A. filed by petitioner | ||
| IA No | Date | Details of application |
|
| 05th September 2020 | Letter Application -Calling in question election of Smt Kiran Maheshwari. |
| For dismissal of application U/O 7 Rule 11 CPC and closure of reply of Respondent No. 1 as the time provided for the same was till 27/09/2019 but more than 90 days have passed. | ||
| 01/2021 | 5th January, 2021 | Application under Sec 151 CPC for disposal of the election petition and declaring the petitioner as elected for next five years on account of death of respondent No.1 |
|
| 8th March, 2021 | Application under Sec. 151 CPC for disposal of the election petition and declaring the petitioner/ respondent No 2 (Shri Narayan Singh Bhati) as elected member of legislative assembly of Rajsamand |
| IA filed by the respondents | ||
| 1/2019 | 26th Feb, 2019 | Returning officer cum SDO, Rajsamand filed an application under O 1 R 10(2) CPC for impleadment as party and releasing the EVMs and VVPATS machines. (Decided vide Order dated 22/04/2019 vide which the application to the extent of impleadment of the applicant as party respondent was dismissed as not pressed while directing to release the VVPAT) |
| 1/2020 | 28th Jan, 2020 | By respondent No 1 -Shri Kiran Maheshwari Application under O 7 R 11 r/w Section 33 of the Representation of the People Act, 1951 for dismissal of the election petition. |
| 2/2020 | 1st October, 2020 | Application for deleting respondent Nos. 11, 12 and 13 from the array of respondents |
| 03/2020 | 16th December, 2020 | Application on behalf of respondent -election commission under sec 151 CPC for disposal of the election petition and bringing on record - |
| 1. Death of Smt. Kiran Maheshwari on 30th November, 2020 | ||
| 2. Notification dt. 02.12.2020 declaring Legislative Seat Rajsamand (175) as vacant | ||
| 02/2021 | 12th Feb, 2021 | Application under Sec 151 CPC for dismissal of the election petition on account of noncompliance of Section 117 of the Act of 1951 |
4. During the pendency of the present election petition, respondent No. 1 -Smt. Kiran Maheshwari passed away on 30.11.2020. Accordingly, a Notification dated 02.12.2020 declaring the seat of Rajsamand Constituency as vacant was published, which was placed on record by the respondent - State.
5. The petitioner, who was present in person in the Court, reiterated the contentions as raised in the election petition and vehemently submitted that the respondent No. 1 concealed the correct information about pendency of criminal cases against her and therefore, her nomination form should h
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