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1998 Supreme(P&H) 761
PUNJAB & HARYANA HIGH COURT
R.S.Mongia, J.
Bakhshish Singh
Versus
Jai Singh
Election Petition No. 10 of 1996,
Decided On : MAY 28, 1998
Headnote:
The court held that the returned candidate, Jai Singh, had not taken the oath in the name of God or made a solemn affirmation as required under Article 173(a) of the Constitution of India. The court also held that Jai Singh had committed a corrupt practice under Section 123(1)(A)(a) of the Representation of People Act, 1951, by offering a bribe to a candidate to withdraw his candidature.
Fact of the Case:
The petitioner, Bakhshish Singh, challenged the election of Jai Singh, the returned candidate from 12 Nilokheri Assembly Constituency (Haryana), on the grounds that Jai Singh had not taken the oath in the name of God or made a solemn affirmation as required under Article 173(a) of the Constitution of India, and that Jai Singh had committed a corrupt practice under Section 123(1)(A)(a) of the Representation of People Act, 1951, by offering a bribe to a candidate to withdraw his candidature.
Finding of the Court:
The court found that Jai Singh had not taken the oath in the name of God or made a solemn affirmation as required under Article 173(a) of the Constitution of India. The court also found that Jai Singh had committed a corrupt practice under Section 123(1)(A)(a) of the Representation of People Act, 1951, by offering a bribe to a candidate to withdraw his candidature.
Issues: 1. Whether the averments made in paragraphs 4 to 7 and 11 to 14 of the Election Petition are vague, irrelevant and lack material facts and particulars so as to constitute sufficient cause of action? If so, what is its effect? 2. Whether the petitioner has failed to comply with the provisions of Section 81(3) of the Representation of People Act, 1951 and if so, whether the election petition is liable to be dismissed? 3. Whether the allegations contained in paragraph 11 to 15 of the Election Petition are scandalous and are not properly verified and, therefore, are liable to be struck off under Order 6, Rule 16 of the Code of Civil Procedure? 4. Whether the petitioner himself or any other person in connivance with the Election Officials has tampered with the nomination papers filed by the respondent? 5. Whether the respondent had taken oath after presentation of the nomination papers before the Returning Officer/any other authorised authority as required under Article 173(a) of the Constitution of India? If so, what is its effect? 6. Whether Chanda Singh, Ranjinder Singh and Amarjit Singh, candidates in the impugned election had not taken oath after presentation of the nomination papers before the Returning Officer/authorised authority as required under Article 173(a) of the Constitution of India? If so, what is its effect? 7. Whether Rajinder Singh, a candidate in the impugned election, had not filed proper nomination paper and had not shown his intention to contest the assembly election from 12 Nilokheri Assembly Constituency? If so, what is its effect? 8. Whether respondent has committed any corrupt practice as envisaged under Section 123(l)(A)(a) of the Representation of People Act, 1951 as per the allegations made in the Election Petition? 9. Whether respondent has committed any corrupt practice as envisaged under Section 123(7) of the Representation of People Act, 1951 as per the allegations made in the Election Petition? 10. Relief.
Ratio Decidendi: The court held that the provisions of Article 173(a) of the Constitution of India and Section 123(1)(A)(a) of the Representation of People Act, 1951, are mandatory and that Jai Singh's failure to comply with these provisions rendered his election void.
Final Decision: The court set aside the election of Jai Singh and declared the seat of 12 Nilokheri Assembly Constituency vacant.
R.S.Mongia, J.
1. This election petition was filed by the defeated candidate Bakhshish Singh challenging the election of respondent Jai Singh, the returned candidate from 12 Nilokheri Assembly Constituency (Haryana). Prayer has been made to see aside the election of respondent Jai Singh being void and the seat of 12 Nilokheri Assembly Constituency be declared vacant. The facts and the grounds for challenging the election of the respondent as averred in the petition may be noticed.
2. The notification for holding Haryana Legislative Assembly Election was issued by the Governor of Haryana under Section 15 of the Representation of People Act, 1951 (hereinafter referred to as the Act) calling upon the various Assembly Constituencies in the State of Haryana to elect members of Haryana Legislative Assembly in accordance with the provisions of the Act. the following Schedule was notified by Shri D.R. Dhingra, the Returning Officer for the 12 Nilokheri Assembly Constituency:-
(a)
27.3.1996 to 3.4.1996
Period for filing nominations.
(b)
4.4.1996
Date for scrutiny of nominations.
(c)
4.4.1996 to 6.4.1996
Period for withdrawal of nominations.
(d)
27.4.1996
Date for poll.
(e)
8.5.1996
From 8 a.m. Counting to start till
it is completed.Note:- The result was declared on May 9, 1996.
3. The petitioner was one of the candidates for the election to the 12 Nilokheri Assembly Constituency. He was put up by the Samata Party. He duly submitted his nomination papers and after the same were accepted, he was allotted the symbol of Mashal.
4. Respondent Jai Singh, the returned candidate, submitted two sets of nomination papers before the Returning Officer at Karnal on April 3, 1996 at 12.46 p.m. and 12.47 p.m. He was the official candidate put up by the Indian National Congress. After his nomination papers were accepted, he was allotted the symbol of Open Hand. Further, as per the averments in the petition, respondent took oath before the Returning Officer in the name of God at 12.17 p.m. on April 3, 1996. Shri D.R. Dhingra was the Returning Officer for 12 Nilokheri Assembly Constituency as well as Assistant Returning Officer for Karnal Lok Sabha Constituency. As per the allegations in the petition, the respondent had neither taken oath in the name of God nor had subscribed solemn affirmation as provided in form VII-A of the IIIrd Schedule of the Constitution of India after presentation of his nomination papers. This fact, according to the averments in the petition, is clear from the form of oath in which the words ISHWAR Kl SHAPATH LETA HOON/SATYA NISHTHA PURVAK PRATIGYAN KARTA HOON exist as such and no alternative out of the two has been struck off. The petitioner has drawn conclusion from this that the respondent had neither taken oath by swearing in the name of God nor had subscribed to solemn affirmation as required under Article 173(a) of the Constitution of India. Further it has been alleged in the petition that the respondent had neither taken oath in the name of God nor subscribed to solemn affirmation is supported from the contents of the second part of the oath from which is to be filled by the Returning Officer in which none of the two alternatives "MERE SMAKSH ISHWAR KI SHAPATH LEE/SATYA NISHTHA SE PRATIGYAN KIYA" has been struck off despite clear instructions given at the top of the form. According to the petitioner, in the absence of taking oath or subscribing solemn affirmation, the respondent was not qualified to be chosen to fill a seat in the Haryana Legislative Assembly as he had not complied with the statutory mandate of Article 173(a) of the Constitution of India. It has further been averred that one Chanda Singh, who was also candidate for the 12 Nilokheri Assembly Constituency seat presented his two sets of nomination papers on April 3, 1996 at 11.09 a.m and 11.10 a.m. but after presentation of these nomination papers, he had neither taken oath nor had subscribed solemn affirmation as provided under Article 173(a) of th
