Rajasthan High Court - Jaipur
Narendrasingh Bhati vs Ramnarain Bishnoi on 16 February, 1993
Equivalent citations: AIR1993RAJ130, 1993(2)WLC98
ORDER Jasraj Chopra, J.
1. In this case, respondent No. I Shri R. N. Bishnoi has filed an application that his Excellency the President of India has dissolved the Rajasthan Legislative Assembly vide Notification dated December 15, 1992 published in Rajasthan Gazette Extraordinary dated December 15,1992 and, therefore, this election petition should be dismissed as having become infructuous.
2. This election petition is based on the fact that certain irregularities ' have been committed in the counting. Certain votes which were cast in favour of the petitioner Shri Narendra Singh Bhati have been wrongly counted in favour of respondent No. I and certain votes which were cast in_ favour of the petitioner have been wrongly rejected and certain votes which were cast in favour of the petitioner were put in the rack of the respondent. Keeping in view all these irregularties in counting, the petitioner made a request for recount of the votes but that request was illegally rejected by the Returning Officer. The petitioner has, therefore, prayed that inspection, scrutiny and recount of all the ballot papers of Osian (189) Legislative Assembly Constituency of Rajasthan be allowed and the election of respondent No. 1 Shri R.N. Bishnoi as a returned candidate from the aforesaid Constituency be declared null and void and the same be set aside. He has furher prayed that on the basis of inspection, scrutiny, and recount of the ballot papers, it be declared that the petitioner has received the majority of valid votes and it is he, who is a returned candidate for the Osian (189) Rajasthan Legislative Assembly Constituency.
3. A return was filed on behalf of respondent No. 1. Thereafter, on the basis of the pleadings of the parties, the following issues were framed on 15-3-1991;
" 1. Whether on the basis of the facts alleged in the Election Petition, the petitioner is entitled for recounting of votes?
2. To what relief, the petitioner is entitled?"
4, The contention of the learned counsel appearing for respondent No. 1 is that His Excellency the President of India has now dissolved the Rajasthan Legislative Assembly and, therefore, no useful purpose will be served by declaring the election of respondent No. 1 as null and void and further, the relief that the petitioner be declared elected to the Rajasthan Legislative Assembly has also become redundant because the Assembly stands dissolved and nobody can be declared elected to the dissolved Assembly. Moreover, no specific allegations about the mala fides or corrupt practices have been specifically pleaded against anybody and, therefore, this election petition has become infructuous and so, it should be dismissed as having become infructuous because no live issue now remains to be determined.
4A. In support of this contention, Mr. L.R. Mehta, the learned counsel appearing for respondent No. 1 has placed reliance on a decision of their Lordships of the Supreme Court in Loknath v. Birendra Kumar, AIR 1974 SC 505 wherein it has been held as under:
"It is a well-settled practice recognised and followed in India that if an issue is purely academic and that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time and indeed not proper exercise of authority for the court to engage itself in deciding it.
Where an appeal, in an election petition case in which the election of the successful candidate to the Orissa Legislative Assembly was challenged under Section 9A of the Act on the ground that the elected candidate was disqualified to be a candidate on the date of nomination was pending and during its pendency the Assembly was dissolved, it was held that due to the dissolution, it became wholly academic to consider whether the elected candidate was disqualified on the date of nomination. The decision would not have any effect on any of the parties and hence, it was futile to proceed with the appeal and decide it on merits. Their Lordships further remarked that the position would be different if the election was challenged on the ground of corrupt practice."
According to Mr. Mehta, the learned counsel for respondent No. 1, no live issue now remains to be determined because neither by declaring the election of respondent No. 1 to be null and void, the position of any party is going to be affected nor the petitioner can be declared as elected to a dissolved assembly and, therefore, the case cannot be further prolonged to decide an academic issue as to who got majority of votes and whether any irregularity was committed in the counting.
5. Mr. M.C. Bhoot, the learned counsel appearing for the petitioner has contended that in Loknath's case (supra), no prayer was made for declaring the respondent as elected to the legislative assembly and, therefore, Loknath's case cannot govern this matter.
6. Having considered the submissions made by the learned counsel appearing for the parties, I am firmly of the view that this submission made by Mr. M.C. Bhoot, the learned counsel appearing for the petitioner has no merit. Once, the assembly has been dissloved, nobody can be declared elected to that legislative assembly and, therefore, even if such a relief has been claimed, that relief has now become redundant. Thus, simply because in this case the petitioner has prayed that he be declared elected from Osian (189) Assembly Constituency will not change the character of the election petition. Of course, in Loknath's case (AIR 1974 SC 505) (supra), the point at dispute was whether the petitioner's nomination paper was wrongly rejected but that also hardly matters because if the petitioner's nomination paper has been wrongly rejected then too, the relief that the election of respondent be declared null and void could not have been granted. Here, the petitioner has claimed that certain irregularities have been committed in the counting and, therefore, the election of respondent No. 1 be declared null and void. Thus both the grounds may differ but the relief that has been claimed is the same and so, in my considered opinion, Loknath's case is fully applicable to the facts of the present case.
7. It was further contended by Mr. M.C. Bhoot, the learned counsel appearing for the petitioner that setting aside the election will be retrospective in nature and the election will stand set aside from the date, the result was declared. He has, however, admitted that the declaration of the election as null and void will not affect any of the activities that have been undertaken by respondent as a Member of the Rajasthan Legislative Assembly because those actions are saved by law. When the acts of respondent No. 1 as a member of the Rajasthan Legislative Assembly are saved by law then his election cannot be declared as null and void with retrospective effect. Such declaration can only be prospective in application because the clock cannot be put back and the actions taken by the respondent as a Member of the Rajasthan Legislative Assembly cannot be undone because those acts are saved by law.
8. If the Assembly has not been dissolved and the election petition has been taken to its logical conclusion then of course, if the petitioner was declared elected to Osian (189) Assembly Constituency, he would have participated in the Assembly proceedings and would have been declared to be a Member of the Rajasthan Legislative Assembly for the remainder of the period and, therefore, prospectivity and retrospectively have lost their importance on account of dissolution of the Assembly by His Excellency the President of India.
9. It was next contended by Mr. M.C. Bhoot, the learned counsel for the petitioner that if it is held that certain irregularities have been committed by certain election supervisors or the Assistant Returning Officer or certain illegalities have been committed by them, he or they can be sued by the petitioner for torts. He has submitted that explanation to Section 4A of the Rajasthan Legislative Assembly (Officers and Members' Emoluments and Pension) Act, 1956 provides that if the Legislative Assembly is dissolved before the expiration of the period of 5 years for the purpose of computing the period as Member of the Legislative Assembly, the period commencing with the date of the constitution of the Legislative Assembly after the General Election and ending with the date of dissolution, shall be deemed to be five years. Explanation IIA further reads as under:
"In computing the aggregate number of years for the purposes of determining pension under this section, the period during which a person has served as a Member of Parliament or as a member of the Legislative Assembly of erstwhile State of Ajmer shall be included in the period for which a person has served as a Member of the Rajasthan Legislative Assembly."
It was submitted by Mr. Bhoot that if the election of respondent No. 1 is declared as null and void, he will not be entitled to any pension on the basis of this deeming proviso.
10. It may be stated here that a right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. Outside of statutue, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. In this respect, I place reliance on a decision of their Lordships of the Supreme Court in Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983 (Para 8).
11. It may further be stated here that an election petition, which can be filed, has to be based on the grounds which are mentioned in the Manual of Election Law. In other words, an election petition can only be filed on the basis of the grounds which are mentioned in Section 100 of the Representation of the People Act, 1951. One cannot travel beyond that. The law relating to withdrawal and abatement of election petitions has been dealt with in Chapter IV of Part VI of the Representation of the People Act, 1951. In deciding whether an election petition has abated or not, one cannot travel outside the provisions contained in that Chapter. This is what their Lordships of the Supreme Court have observed in para 10 of their decision in Sheodan Singh v. Mohanlal, AIR 1969 SC 1024. Whether a particular person will be entitled to claim pension or not on the basis of the period during which he has served in the Assembly and whether anybody can be sued for torts are the questions which are beyond the scope of Section 100 of the Representation of the People Act, 1951. If respondent No. 1 is not entitled to pension, that is a matter to be decided by appropriate authority and that question can be agitated before that authority. No allegations of any corrupt practice have been levelled against any official. Even this has not been alleged that in committing irregularities in counting, the election Officials were actuated by mala fides and therefore, whether an action will be available to the petitioner under the law of Torts is a million dollar question keeping in view the provisions of Section 170 of the Representation of the People Act. Moreover, on the basis of such a supposed right, election petition cannot be allowed to continue because that has not been raised as a 'ground in the election petition. In this view of the matter. I am firmly of the view that the issues that have been raised by Mr. Bhoot are not material issues and, therefore, for deciding them the election petition cannot be allowed to continue.
12. It was strenuously contended by Mr. Bhoot that the election petition cannot be abated. In support of this contention, he has placed reliance on a decision of their Lordships of the Supreme Court in Ram Sewak v. H.K. Kidwai, AIR 1964 SC 1248 and certain observations made by this Court in Loomba-ram v. Ramnarain 1979 WLN 317 and specially certain observations made by Hon'ble P.N. Bhagwati, J. (as he then was) in Inamati Mallappa Bassappa v. Desai Basav-raj Ayyappa (1958) 14 ELR 296 : (AIR 1958 SC 698). These are the cases, where the Assembly has not been dissolved and it has been held that if the sole petitioner wants to withdraw the election petition or dies or does not want to carry on an election petition then also a public notice has to be issued and if somebody comes forward to contest the election petition of a particular candidate, that election petition cannot be dropped because the contest is for the benefit of the whole of the Constituency, which cannot come to an end merely by withdrawal or on account of the death of the election-petitioner. Here, the Assembly does not subsist and it has been dissolved and, therefore, these authorities have no application whatsoever to the facts of the present case.
13. Keeping in view all these facts and circumstances of this case, this election petition has now become infructuous because no live issue survives for the decision of the Court. If there had been any allegations about corrupt practice or mala fides, then, of course, proceedings could have been continued as held by their Lordships of the Supreme Court in Jyoti Basu's case (AIR 1982 SC 983} (supra).
14. In the result, the application filed by respondent No. 1 for dismissing the election petition as having become infructuous is allowed and consequently, this election petition is hereby dismissed as having become infructuous
15. The respondent has claimed costs. When the election petition has not been decided on merits, no costs can be allowed to respondent No. 1 and in this respect, I place reliance on a decision of the Allahabad High Court in Nathooram v. Siyaram (1968) 37 Ele LR 210. In the result, there will be no order as to costs.