Chattisgarh High Court
Nirmal Sinha vs Lalsai Khunte And Ors. on 1 August, 2006
Equivalent citations: AIR2006CHH139
ORDER Vijay Kumar Shrivastava, J.
1. This election petition under Section 80 of the Representation of People Act, 1951 (henceforth 'the Act') has been preferred by calling in question the election of respondent No. 1 as Member of Legislative Assembly from Malkharauda constituency No. 38 (henceforth "Constituency") of the Chhattisgarh State Assembly which was held on 1-12-2003 and the result of which was declared on 4-12-2003.
2. Election Commission of India by a notification dated 7-11-2003, notified the election to the Legislative Assembly of the State of Chhattisgarh inviting persons to submit their nomination papers between 7-11-2003 to 14-11-2003. For scrutiny of nomination papers 15-11-2003 was scheduled and last date for withdrawal of candidature was up to 17-11-2003. The election to the Legislative Assembly of the State of Chhattisgarh wherein "constituency" exists was fixed for 1st December, 2003. Including petitioner respondent No. 1 to 7 and one candidate whose nomination paper was rejected, total 9 persons submitted their nomination papers. On scrutiny, petitioner along with respondents No. 1 to 7 remained contestants to contest the election to "constituency". The poling took place on 2nd December, 2003, the result was declared on 4-12-2003; declaring respondent No. 1 elected from the constituency. Respondent No. 1 has been convicted by the Court of Additional Chief Judicial Magistrate, Sakti in Criminal Case No. 208/91, State of Chhattisgarh v. Lal Sai and two others, under Section 420 read with Section 34 and 468 read with Section 34 of the I.P.C and punished for two years Rigorous Imprisonment on each count and convicted under Section 471 of the I.P.C. and punished with Rigorous Imprisonment for one year by judgment of conviction and order of sentence dated 9-5-2002. After counting of the votes, Returning Officer declared the result on 4-12-2003, wherein the petitioner obtained 33,464 votes whereas the returned candidate who is respondent No. 1 obtained 34,360 votes.
3. Petitioner was a candidate of Bhartiya Janata Party whereas respondent No. 1 was the candidate for Bahujan Samaj Party. Both of them and other seven candidates filed their nominations. On scrutiny, nomination of one candidate was rejected. Therefore, the petitioner and all the respondents remained contestants for the seat from "constituency". Section 8(3) of the 'Act' disqualifies a person for membership of State Legislatures, who is convicted of any offence and sentenced to imprisonment for not less than two years. Disqualification commences from the date of such conviction and continues for a further period of six years since his release. Respondent No. 1 was convicted and sentenced on 9-5-2002 for two years Rigorous Imprisonment, therefore, on the date of nomination as well as on the date of election was disqualified to be a candidate and to be returned on 4-12-2003 to fill the seat of legislative assembly from the "constituency" of the State. All the candidates were required to submit their declaration and affidavit along with nomination wherein they were required to disclose particular of conviction for two years or more. Respondent No. 1 Lalsai though he was convicted and was disqualified but mislead, misinformed and concealed vital information in his affidavit and the Returning Officer erred in accepting his nomination and notifying him to be a candidate for the Constituency. Petitioner received votes second in number, have sought for declarations that the election of respondent No. 1 from the Constituency is void and he be declared to be the elected candidate for the "constituency".
4. Defence of respondent No. 1 is that the execution of judgment and conviction dated 9-5-2002 was stayed vide order dated 31-5-2002 passed by the appellate Court. Returning officer rightly rejected the objection and accepted his nomination. Neither he was disqualified nor did he suppress any fact in his affidavit. With these submissions, he has also raised objections that the petitioner did not deposit the security amount in prescribed time period. His petition was not accompanied by receipt of security amount. The security deposit was made on 19-1-2004 whereas the election petition has been filed on 17-1-2004. The election petition is time barred. All the candidates have not been impleaded as parties. The affidavit annexed along with petition is not in accordance with rules even petitioner did not supply true copy of the petition duly attested by him and the petition did not disclose any cause of action.
5. Respondent No. 2 did not have any specific pleadings but for a prayer that in the event of any obstinate situation, re-election could be ordered instead of declaring petitioner to be an elected candidate.
6. Respondent No. 1 after his appearance had earlier to file in his return moved an application i.e. I.A. No. 2417/2005 vide which he raised the following objections for rejection of the petition:
1. That the petitioner has not disclosed the cause of action.
2. That the petitioner has not joined all the persons who filed nominations.
3. That the petitioner has not filed an affidavit in proper form.
4. That the petitioner has filed copies of the petition but each page of the copy has not been attested as a true copy.
5. That the petition is barred by time.
7. Both the parties were heard on those objections and vide order dated 15-9-2005, those objections have been decided. Again all those objections have been agitated by respondent No. 1 in his return and those objections are not required to be considered afresh and are treated to be disposed of in view of this Court's finding and decision dated 15-9-2005 vide which I.A. No. 2417/2005 by which those objections were raised has been dismissed. Here, it is pertinent to mention that the Special Leave Petition was filed by respondent No. 1 against the order passed by this Court on 15-9-2005 and Hon'ble the Apex Court was pleased to dismiss the same on 28-6-2006.
8. Following are the issues for decision of remaining controversies among the parties :
1. Whether order passed by Additional Sessions Judge, Sakti on 31-5-2002 in Criminal appeal No. 174/02 and 175/02 suspending execution of judgment and sentence passed by Criminal Courts in Criminal Case No. 208/1991 and 1169/1996 remove the disqualification of respondent No. 1 to contest the election from Malkharauda Constituency No. 38?
2. Whether the petitioner secured highest votes after respondent No. 1?
3. Relief and costs.
Evaluation of evidence with reasons for findings Issue No. 1
9. Respondent No. 1 Lalsai Khunte in his evidence stated that he was prosecuted in two Criminal Cases and in both the cases, he was convicted and sentenced. He challenged the conviction and sentence and his appeal is pending in the Appellate Court. The appellate Court has stayed the sentences and that stay is still operative.
10. Ex. P. 1 is certified copy of the judgment dated 9-5-2002 passed by Additional Chief Judicial Magistrate, Sakti in criminal case No. 208/91. The document is admitted by both the parties. The certified copy, establishes that respondent No. 1 was held guilty for committing offence punishable under Sections 420/34, 468/34 and 471/34 and was sentenced to undergo rigorous imprisonment for two years under Section 420/34, Rigorous imprisonment for two years under Section 468/34 and Rigorous Imprisonment for one year under Section 471/34 of the I.P.C. with a direction to run all the sentences concurrently. Ex. D-l is the certified copy of order dated 31-5-2002 passed by Additional Sessions Judge, Sakti in Criminal Appeal No. 174/2002. This certified copy is admitted by both the parties. It is evident from it that respondent No. 1 filed an appeal against the judgment of conviction and order of sentence dated 9-5-2002 passed against him by Additional Chief Judicial Magistrate, Sakti in Criminal Case No. 208/91. The appeal was admitted for hearing. Application under Section 389 filed by respondent No. 1 in the interest of justice was allowed with a direction that on furnishing a personal bond of Rs. 5,000/- (rupees five thousand) with a surety of like sum accompanied with photographs and the details of moveable and immoveable properties to the satisfaction of trial Court, the execution of impugned judgment and sentence dated 9-5-2002 shall remain stayed till disposal of the appeal.
11. Ex.D-2 is the certified copy of order passed by Additional Sessions Judge, Sakti in Criminal Appeal No. 175/2002 arising out of judgment and sentence dated 9-5-2002 passed by Additional Chief Judicial Magistrate, Sakti in criminal case No. 1169/1996 against respondent No. 1 and one another. The document is admitted by both the parties. Respondent No. 1 and other co-accused preferred the appeal and also filed an application under Section 389. Appeal was admitted for final hearing and the application under Section 389 was allowed with a direction that on furnishing a personal bond of Rs. 5000/- (rupees five thousand) with a local surety for the like sum accompanied with photograph and the details of move-able and immoveable properties to the satisfaction of trial Court, the execution of impugned judgment and sentence dated 9-5-2002 shall remain stayed till disposal of the appeal.
12. Ex. P-3 is the certified copy of nomination paper filed by respondent No. 1. The document is admitted by both the parties. Respondent No. 1 in the document disclosed that he has been convicted and sentenced in Criminal Case No. 1169/96 on 9-5-2002 under Section 420/34, 468/34 and 471/34 of the I.P.C. for two years rigorous imprisonment, by Additional Chief Judicial Magistrate, Sakti and was also convicted and sentenced in Criminal Case No. 208/1991 under Sections 420/34, 468/34 and 471/34 of the I.P.C. for two years by Additional Chief Judicial Magistrate, Sakti. He has filed Criminal Appeal No. 174/2002 and 175/2002 and both the appeals are pending in the Court of Additional Sessions Judge, Sakti.
13. From the statement of Lalsai Khunte, respondent No. 1 and the admitted certified copies of public documents, it is established that in Criminal Case No. 208/1991, respondent No. 1 was convicted and sentenced on 9-5-2002 by Additional Chief Judicial Magistrate, Sakti who convicted him under Sections 420/34, 468/34 and 471/34 of the I.P.C. and sentenced him to undergo Rigorous Imprisonment for two years, Rigorous Imprisonment for two years and Rigorous Imprisonment for one year respectively. Respondent No. 1 preferred appeal i.e. Criminal appeal No. 174/2002 and Additional Sessions Judge vide order dated 31-5-2002 stayed the execution of judgment and sentence till final disposal of the appeal. As admitted by respondent No. 1 himself in his oral statement that he has been convicted in two cases and from his nomination paper Ex. P-3 and objection P.5 which is also admitted document, it is established that in Criminal Case No. 1169/1996 vide judgment dated 9-5-2002 passed by Additional Chief Judicial Magistrate, respondent No. 1 was convicted for committing offence punishable under Section 420/34, 468/34 and 471/34 of the I.P.C. and was sentenced to undergo rigorous imprisonment for two years, two years and one year. Appellant filed an appeal against that judgment and sentence i.e. Appeal No. 175/2002. Additional Sessions Judge, vide order dated 31-5-2002, stayed the execution of judgment and sentence till disposal of the appeal.
14. Contention of the respondent No. 1 is that he has been punished and convicted and sentenced in Criminal Case No. 208/1991 for committing offence punishable under Sections 420/34, 468/34 and 471 of the I.P.C. and was sentenced to undergo rigorous imprisonment for two years, rigorous imprisonment for two years and rigorous imprisonment for one year with a direction to run all the sentences concurrently, therefore, total length of his sentence is two years. He further contended that he has been convicted and sentenced in Criminal Case No. 1169/1996 in all the three Sections with a direction to run the sentences concurrently, therefore, total length of his sentence is two years. He further contended that both the sentences were passed on 9-5-2002 and Appellate Court vide order Ex. D-1 and D-2 passed in Criminal Appeal No. 174/2002 and 175/2002 on 31-5-2002 stayed execution of the judgment and sentence, therefore, he is not disqualified to contest the election and the nomination has rightly been accepted after disallowing the objection raised by Chain Singh and he was entitled to be declared returned candidate after receiving highest votes in the election and to support his contention placed his reliance on the judgment rendered by Bombay High Court in Bharamu Subrao Patil v. Narsingrao Gurunath Patil .
15. On the other hand, learned Counsel for the petitioner contended that respondent No. 1 was convicted in Criminal Case No. 208/91 on 9-5-2002 for committing offence punishable under Sections 420/34, 468/34 and 471/34 of the I.P.C. and was sentenced to undergo rigorous imprisonment for two years, rigorous imprisonment for two years and rigorous imprisonment for one year respectively. He was also convicted in Criminal Case No. 1169/1996 on 9-5-2002 for committing offence punishable under Section 420/34, 468/34 and 471/34 of the I.P.C. and was sentenced to undergo rigorous imprisonment for two years, rigorous imprisonment for two years and rigorous imprisonment for one year respectively, therefore, length of all sentences in each case is five years. Even otherwise, the disqualification prescribed under Section 8 of the Act disqualifies a person who is convicted and sentenced to imprisonment for not less than two years and respondent No. 1 was not sentenced to imprisonment for less than two years but his punishment is for two years and more.
16. Learned Counsel for petitioner relying on judgment rendered by Hon'ble the Apex Court in K. Prabhakaran v. P. Jayarajan and Ramesh Singh Dalai v. Nafe Singh reported in 2005 AIR SCW 393 contended that sentences imposed on respondent No. 1 were not obliterated but only, suspended, therefore, respondent No. 1 was disqualified on the date of nomination. His nomination was improperly allowed and though carrying disqualification yet he was declared a returned candidate and still he is carrying the disqualification.
17. In Bharamu Subrao Patil v. Narsingrao Gurunath Patil (supra) Hon'ble the High Court of Bombay held that if prior to the date of scrutiny of nomination order under Section 389 of the Cr. P.C. has been passed for suspension of sentence and conviction, the disqualification as envisaged under Section 8 of the Act remains no more and candidate cannot be said to be not qualified.
18. The controversy regarding disqualification on conviction and sentence after its suspension by the appellate Court has now set at rest by Hon'ble the Apex Court. In judgment K. Prabhakaran v. P. Kayarajan and Ramesh Singh Dalai v. Nafe Singh 2005 AIR SCW 313 (supra) Hon'ble the Apex Court in para 42 which reads as below observed:
42. What is relevant for the purpose of Section 8(3) is the actual period of imprisonment which any person convicted shall have to undergo or would have undergone consequent upon the sentence of imprisonment pronounced by the Court and that has to be seen by reference to the date of scrutiny of nominations or date of election. All other factors are irrelevant. A person convicted may have filed an appeal. He may also have secured an order suspending execution of the sentence or the order appealed against under Section 389 of the Code of Criminal Procedure, 1973. But that again would be of no consequence. A Court of appeal is empowered under Section 389 to order that pending an appeal by a convicted person the execution of the sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail or bond. What is suspended is not the conviction or sentence, it is only the execution of the sentence or order which is suspended. It is suspended and not obliterated. It will be useful to refer in this context to a Constitution Bench judgment of this Court in Sarat Chandra Rabha v. Khagendranath . The convict had earned a remission and the period of imprisonment reduced by the period of remission would have had the effect of removing disqualification as the period of actual imprisonment would have been reduced to a period of less than two years. The Constitution Bench held that the remission of sentence under Section 401 of Criminal Procedure Code (old) and his release from jail before two years of actual imprisonment would not reduce the sentence into one of a period of less than two years and save him from incurring the disqualification. "An order of remission does not in any way interfere with the order of the Court; it affects only the execution of the sentence passed by the Court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the Court, though the order of conviction and sentence passed by the Court will stand as it was. The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional Court would have of reducing the sentence passed by the trial Court and substituting in its place the reduced sentence adjudged by the appellate or revisional Court.
19. Factual matrix of the case of Ramesh Singh Dalai v. Nafe Singh 2005 AIR SCW 393 (supra) in brief is that on 17-5-1999 Sessions Court trying the accused Nafe Singh held him guilty for offence punishable under Section 302 of the IPC and in other offences, he was sentenced to undergo imprisonment for life. On 25-5-1999, he filed an appeal in the High Court against his conviction. On 18-10-1999, the High Court directed the execution of sentence of the imprisonment passed against him to be suspended and also directed him to be released on bail. Nafe Singh furnished bail bond and was released on bail. On 14-12-1999, Haryana Assembly was dissolved for midterm poll and in the 1st week of January, 2000, the Election Commission notified the election programme. On 2-2-2000, Nafe Singh filed his nomination. His nomination was objected on the allegation that his conviction and sentence of life imprisonment passed under Section 302 of the IPC disqualifies him for being chosen a member of Haryana Assembly under Article 191 of the Constitution read with Section 8(3) of the RPA. The objection was overruled by Returning Officer who accepted the nomination as valid. The election was held for Bahadurgarh Assembly Constituency. Poling was held on 22-2-2000 and on 25-2-2000, Nafe Singh was declared returned candidate. His election was challenged in Election Petition on the ground of improper acceptance of nomination paper. When the judgment of election petition was awaited, on 1-8-2001, the Division Bench of High Court decided the Criminal Appeal preferred by Nafe Singh and acquitted him from offences charged. The judgment passed by Honble the High Court acquitting Nafe Singh from the charges are placed on record. The election petition was dismissed on 5-7-2002 and the High Court recorded finding that in view of the appeal preferred by Nafe Singh having been allowed, his conviction and sentence passed thereon respectively dated 17-5-1999 and 19-5-1999 stood wiped out as if no conviction had taken place. Nafe Singh was a member of Legislative Assembly and therefore in view of provision contained in Sub-section (4) of Section 8 of the RPA, the conviction did not take effect for the period of three months and as within that period, an appeal was preferred which was pending and not disposed of on the date of nomination and election of Nafe Singh, he was protected by the said provision.
20. Hon'ble the Apex Court, in Ramesh Singh Dalai v. Nafe Singh 2005 AIR SCW 393 (supra) after considering all the facts and legal propositions in para 44 observed as below:
44. We are therefore, of the opinion that an appellate judgment of a date subsequent to the date of nomination or election (as the case may be) and having a bearing on conviction of a candidate or sentence of imprisonment passed on him would not have the effect of wiping out disqualification from a back date if a person consequent upon his conviction for any offence and sentenced to imprisonment for not less than two years was actually and as a fact disqualified from filing nomination and contesting the election on the date of nomination or election (as the case may be).
21. Hon'ble the Apex Court held that protection against disqualification is available to sitting member and as soon as the house is dissolved or a person ceased to be a member of the house, the protection against disqualification ceased to apply and the protection could not continue any more. Therefore, on the date of filing of nomination, there is no difference between him and other candidate who was not such a member.
22. Hon'ble the Apex Court, in Ramesh Singh Dalai v. Nafe Singh 2005 AIR SCW 393 (supra) para 61 recorded its conclusion which is read as below:
61. To sum up, our findings on the questions arising for decision in these appeals are as under:
1. The question of qualification or disqualification of a returned candidate within the meaning of Section 100(1)(a) of the Representation of the People Act, 1951 (RPA, for short) has to be determined by reference to the date of his election which date, as defined in Section 67A of the Act, shall be the date on which the candidate is declared by the returning officer to be elected. Whether a nomination was improperly accepted shall have to be determined for the purpose of Section 100(1)(d)(i) by reference to the date fixed for the scrutiny of nomination, the expression, as occurring in Section 36(2)(a) of the Act. Such dates are the focal point for the purpose of determining whether the candidate is not qualified or is disqualified for being chosen to fill the seat in a House. It is by reference to such focal point dates that the question of disqualification under Sub-section (1),(2) and (3) of Section 8 shall have to be determined. The factum of pendency of an appeal against conviction is irrelevant and inconsequential. So also a subsequent decision in appeal or revision setting aside the conviction or sentence or reduction in sentence would not have the effect of wiping out the disqualification which did exist on the focal point dates referred to hereinabove. The decisive dates are the date of election and the date of scrutiny of nomination and not the date of judgment in an election petition or in appeal there against.
2. For the purpose of attracting applicability of disqualification within the meaning of "person convicted of any offence and sentenced to imprisonment for not less than two years", the expression as occurring in Section 8(3) of the RPA. what has to be seen is the total length of time for which a person has been ordered to remain in prison consequent upon the conviction and sentence pronounced at a trial. The word 'any' qualifying the word 'offence' should be understood as meaning the nature of offence and not the number of offence/offences.
3. Sub-section (4) of Section 8 of the RPA is an exception carved out from Sub-section (1),2 and (3). The saving from disqualification is preconditioned by the person convicted being a member of a House on the date of the conviction. The benefit of such saving is available only so long as the House continues to exist and the person continues to be a member of a House. The saving ceases to apply if the House is dissolved or the person ceases to be member of the House.
23. Hon'ble the Apex Court allowed the Civil Appeal No. 6691/2002 and accordingly, the election of Nafe Singh from 37-Bahadurgarh Assembly constituency is declared void as he was disqualified for being a candidate under Section 8(3) of the Act.
24. In the instant case also facts are the same. Respondent No. 1 has been convicted under Sections 420/34, 468/34 on each count Rigorous imprisonment for two years and under Section 471, rigorous imprisonment for one year. He has been convicted in two cases separately and in each case, sentences are directed to be run concurrently but there is no order that sentence passed in both these two cases shall also be run concurrently. Therefore, the sentence passed in Criminal Case No. 208/91 on 9-5-2002 shall be executed first and thereafter, the sentence passed in other criminal case i.e. 1169/1996 on 9-5-2002 shall be executed. Maximum period for which respondent No. 1 is required to be detained in custody in Criminal Case No. 208/91 is two years and in other case also is two years. In accordance with Section 427 of the Cr. P.C. in absence of specific order of the Court directing sentence passed in Criminal Case No. 1169/1996 to run concurrently with the previous sentence passed in Criminal Case No. 208/91. Sentences passed in both the cases are required to run consecutively, therefore, the total period of detention of respondent No. 1 will be four years. Even otherwise, in each case total detention is two years, therefore, respondent No. 1 was disqualified for being elected for filing nomination as conviction and sentence on the date of nomination and election was not obliterated but merely its execution in accordance with Section 389 of the Cr. P.C. was suspended.
25. Therefore, relying on the judgment rendered by Hon'ble the Apex Court on the same factual matrix i.e. Criminal Appeal No. 6691/2002, Ramesh Singh Dalai v. Nafe Singh and Ors. and the law laid down in K. Prabhakaran v. P. Jayarajan and Ramesh Singh Dalai v. Nafe Singh 2005 AIR SCW 393 (supra) it is crystal clear that respondent No. 1 who was convicted on 9-5-2002 in Criminal Case No. 208/1991 and 1169/96 which requires total detention of four years was disqualified to file nomination and to contest the election respectively from 7-11-2003 to 14-11-2003 and thereafter to contest the election up to 4-12-2003 and to be declared as returned candidate from the "Constituency" of the State of Chhattisgarh being disqualified in accordance with Section 8(3) of the Act and his disqualification did not wipe out as a result of suspension of judgment and sentence passed by Additional Sessions Judge, Sakti in Criminal Appeal No. 174/02 and 175/02 under Section 389 of the Cr. P.C. on 31-5-2002, therefore, this Court concludes that the order passed by Additional Sessions Judge. Sakti on 31-5-2002 in Criminal Appeal No. 174/2002 and 175/2002 suspending execution of Judgment and sentence passed in Criminal Case No. 208/1991 and 1169/1996 do not wipe out the disqualification of respondent No. 1 to contest the election from the "Constituency"
26. Ex. P. 4 is the decision of Returning Officer who, on scrutiny, disallowed the objection filed by one of the contestants Chain Singh on the ground that the sentence is for two years and it is stayed. Returning Officer failed to appreciate that the disqualification is fasten on a person who is convicted and sentenced to imprisonment for not less than two years, that means when a person is sentenced for imprisonment for two years or more he is disqualified and also his decision is bad as suspension of conviction and sentence does not wipe out the disqualification. The provision does not say that on conviction and sentence being suspended, the contestant will be immune from disqualification, even the conviction and sentence is not wiped out only its execution is suspended, therefore, conviction and sentence passed against respondent No. 1 was in force on the date of nomination only its execution was suspended, therefore, respondent No. 1 was disqualified to contest the election and the Returning Officer accepting his nomination paper knowing well that respondent No. 1 had been sentenced with imprisonment for two years and the sentence has not been wiped out, only its execution is suspended committed illegality in accepting the nomination. Accordingly, issue No. 1 is decided.
Issue No. 2:
27. Nirmal Sinha (P.W. 1) in his statement deposed that after voting and counting of the votes return of election was issued. The certified copy is Ex. P. 7, it is implicit from Ex. P. 7 that respondent No. 1 obtained 34,360 votes and after him, the petitioner obtained 33,464 votes, therefore, it is held that petitioner secured highest votes after respondent No. 1 and accordingly. issue No. 2 is decided.
Issue No. 328. Section 101 of the Act is reproduced as below:
101. Grounds for which a candidate other than the return candidate may be declared to have been elected : If any person who have lodged a petition has, in addition to calling in question the election of the return candidate, claimed a declaration that he himself or any other candidate has been duly elected and (the High Court) is of opinion:
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, (the High Court) shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.
29. From have reading of the provision, it is manifest that only in following cases other candidate can be declared elected.
(1) If the candidate has received a majority of the valid votes.
(2) If after reducing the votes obtained by returned candidate by corrupt practice, the candidate have obtained a majority of the valid votes.
30. In the instant case, the votes cast in favour of respondent No. 1 were not invalid. Votes were valid but the respondent No. 1 being disqualified was not entitled to retain the seat. Therefore, in the instant case, the total valid votes cast in the election and the votes obtained by the petitioner cannot be accepted to have received by him a majority of valid votes. Therefore, petitioner is not entitled for a declaration to have been duly elected.
31. In the result, the election petition filed by petitioner is partly allowed. Election of respondent No. 1 Lalsai Khunte from Malkharauda Assembly Constituency No. 38 to the Chhattisgarh State Legislative Assembly which was declared on 4-12-2003 is set aside. The respondent No. 1 shall bear the cost of the petitioner.