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1991 Supreme(HP) 77
High Court Of Himachal Pradesh
V.P.BHATNAGAR
PARAM DEV - Appellant
Versus
MOTI RAM - Respondent
Election Petition Nos. I and 2 of 1990
Decided On : 06/03/1991
For the petitioner(s):Shri Indar Singh, Advocate with him Shri A K. Goel and Shri Vijay Thakur, Advocates. For the respondent(s):Shri Manohar Lal Sharma, Advocate with him Sarvshri Dharamvir Sharma, Onkar Jairath and Rakesh Kanwar, Advocates.
A person who holds an office of profit under the Government is disqualified from being chosen as a Member of the Legislative Assembly.
Headnote:
ELECTION - NOMINATION - REJECTION - IMPROPER - OFFICE OF PROFIT - CHAIRMAN, HIMACHAL PRADESH KHADI AND VILLAGE INDUSTRIES BOARD - RESIGNATION - ACCEPTANCE - EFFECT - COMPENSATORY ALLOWANCE - DISQUALIFICATION - REMOVAL - REPRESENTATION OF THE PEOPLE ACT, 1951, SECTIONS 100 (1) (O), 2 (A), 3 (M).
Fact of the Case:
The petitioner challenged the election of the respondent to the Himachal Pradesh Legislative Assembly on the ground that the nomination paper of Shri Karam Singh was improperly rejected by the Returning Officer. The main contention was that Shri Karam Singh was holding an office of profit within the ambit of Article 191 (1) (a) of the Constitution and was, therefore, disqualified for being chosen as, and for being, a Member of the Legislative Assembly.
Finding of the Court:
The Court held that Shri Karam Singh had resigned from the office of Chairman of the Himachal Pradesh Khadi and Village Industries Board with effect from January 31, 1990, and that his resignation was accepted by the Government of Himachal Pradesh on February 12, 1990. The Court further held that Shri Karam Singh was not entitled to any remuneration other than compensatory allowance after January 8, 1990, and that he was, therefore, not disqualified for being chosen as a Member of the Legislative Assembly.
Issues: 1. Whether the nomination of Shri Karam Singh has been improperly rejected, as alleged ? If so, its effect.
Ratio Decidendi: The Court held that the nomination paper of Shri Karam Singh was improperly rejected by the Returning Officer on the ground that he was holding an office of profit within the ambit of Article 191 (1) (a) of the Constitution. The Court held that Shri Karam Singh had resigned from the office of Chairman of the Himachal Pradesh Khadi and Village Industries Board with effect from January 31, 1990, and that his resignation was accepted by the Government of Himachal Pradesh on February 12, 1990. The Court further held that Shri Karam Singh was not entitled to any remuneration other than compensatory allowance after January 8, 1990, and that he was, therefore, not disqualified for being chosen as a Member of the Legislative Assembly.
Final Decision: The Court granted a declaration under the provisions of section 100 (1) (c) of the Representation of the People Act that the election of Shri Moti Ram respondent to the Himachal Pradesh Legislative Assembly from 60-Chachiot Assembly Constituency is void.
V. P. Bbatnagar, J.—This judgment is meant to dispose of Election Petitions Nos. 1 and 2 of 1990, since both these petitions involve determination of similar questions of facts and law. The petitions were consolidated by an order of this Court made on July 25, 1990 to that effect The proceedings were then directed to be recorded in Election Petition No. 2 of 1990.
2. It is the election of Shri Moti Ram respondent to the Himachal Pradesh Legislative Assembly from 60-Chachiot Assembly Constituency in the elections held during February 1990 which stands challenged in both petitions. The main ground of challenge is that the nomination paper of Shri Karam Singh was improperly rejected by the Returning Officer by his order dated February 7, 1990. The provisions of section 100 (1) (o) of the Representation of the People Ace, 1951 (for short the Act) have, therefore, been invoked and a declaration sought that the election of the returned candidate, namely, Shri Moti Ram be declared to be void.
3. Shri Moti Ram respondent raised a number of preliminary objections. It led to the framing of following preliminary issues :—
1. Whether copies of the petitions served upon the respondent in Election Petitions 1 and 2 of 1990 are not the true copies of the respective petitions and the provisions of section 81 (3) have not been complied with? If so, effect thereof. O. P. R.
2. Whether Shri Karam Singh. Shri Shiv Lal and the State Government are necessary parties ? If so, its effect. O. P. R.
3. Whether the petitions and annexures attached thereto are neither signed nor verified in the manner laid down in C. P. C ? If so, its effect- O. P. R. The above issues were decided against the respondent by order dated December 13, 1990. The following issues were thereafter framed on merits:—
1. Whether the nomination of Shri Karam Singh has been improperly rejected, as alleged ? If so, its effect. O. P. P.
2. Relief. Issue No. 1
4. The facts in this case are not disputed. The date of filing nomination papers was February 2, 1990. The Returning Officer was to scrutinise the Domination papers on February 5, 1990, the date fixed for scrutiny. Shri Karam Singh was one of 15 persons who filed nomination papers. On the day fixed for scrutiny, Shri Bhagat Ram, Advocate, duly authorised by Shri Vir Singh, objected to the nomination papers of Shri Karam Singh on the ground that he was holding an office of profit within the ambit of Article 191 (1) (a) of the Constitution and was, therefore, dis- qualified for being chosen as, and for being, a Member of the Legislative Assembly. This fact was noticed by the Returning Officer Shri Ashok Ranjan Basu, who has stepped into the witness box as RW 5, in his order dated February 5, 1990 at Ex. R-4. Shri Karam Singh was not present before him but his proposer Shri Mani Ram, Advocate, was. Shri Mani Ram was requested to ensure the appearance of the candidate before the Returning Officer on February 6, 1990 at 11 a. m. for hearing him in connection with the objections- Letter Ex. R-5 was also delivered lo Shri Mani Ram in the matter. The Returning Officer also directed Tehsildar (Elections) to enquire from the Secretary, Himachal Pradesh Khadi and Village Industries Board, about the remuneration and other allowances being drawn by Shri Karam Sihgh in his capacity as Chairman of the Board. His report dated February 7, 1990, placed before the Returning Officer is brief and may be usefully reproduced per verbatim: "It has been enquired on telephone by the undersigned today from the Secretary, H. P. Khadi Board, Shimla that Shri Karam Singh as Chairman of the Board has been drawing a sum of Rs. 1,500 as salary with facility of vehicle, accommodation and T. A. and D. A. when on tour. Shri Mani Ram, Advocate (proposer of the candidate) submitted the following reply (Ex. R-7) to the Returning Officer on February 6, 1990 :— "Sh. Karam Singh who was Chairman of Village and Khadi Board has resigned from the Chairmanship on 29th or 30
