BABURAO DAULATRAO PAWAR Vs. MANIKRAO BHIMRAO JADHAV

JUDGEMENT

(1.) THE elections to the Maharashtra State Legislative Assembly were held in January, 1995. One of the Assembly Constituencies is '211 - Nilanga' which falls in Latur district. THE present petitioner Baburao Daulatrao Pawar was one of the candidates contesting this election. Respondent no. 1 Manikrao Jadhav also contested the said election from this Constituency and the respondent no. 2 Returning Officer declared the result of this constituency on 12.3.1995 by which it is declared the respondent no. 1 Manikarao Jadhav as a returned candidate and is declared elected. THE petitioner is challenging the said election of respondent no. 1 mainly on the ground that the name of respondent no. 1, elected candidate, appears in two Assembly Constituencies and as such, it entails dis-qualification within the meaning of section 16 of the Representation of the People Act, 1950. It is, therefore, the contention of the petitioner that the election of respondent no. 1 is void under Section 100 of the said Act. It is also the case of the petitioner that the respondent no. 1 is not an ordinary resident of village Jewari, taluka Nilanga and as such, not qualified to contest the election from Nilanga Assembly Constituency. It is further alleged that the petitioner raised written objections to the candidature of the respondent no. 1 before the respondent no. 2 but, the objections of the petitioner have been turned down wrongfully and illegally by the respondent no.2.This Election Petition came to be resisted by the returned candidate respondent no. 1 by his written statement (Exh. 6) and all the allegations came to be denied. Respondent no. 2, Returning Officer at the material time, has also resisted the petition by his own written statement (Exh. 10 ). It is submitted on behalf of the petitioner as well as the respondents that the main challenge to the election of the respondent no. 1 is on the ground that his name appears in two Assembly Constituencies and as such, respondent no. 1 incurs dis-qualification and, therefore, his election is void. On behalf of the respondent no. 1, objection was also raised in respect of the tenability of the election petition in the absence of essential or necessary parties. On hearing both the sides and on perusal of the averments made in the petition and the written statements, necessary preliminary issues were framed at Exh. 8 on 8.4.1996. Both the sides accepted the position that the issues do not require any oral or documentary evidence and as such, both should be tried as preliminary issues.

(2.) FOLLOWING two issues are framed - 1)Do the entries of the name of respondent no. 1 in two Assembly Constituencies entail any dis-qualification and does the election become void on that count? 2)Is the petition tenable in the absence of essential or necessary parties ? 3)What order? For the following reasons, my findings on the above issues are, - 1)No.2)Yes. 3)As per final order. REASONS : ISSUE NO. 1 :

(3.) CHAPTER III of the said Act also prescribes disqualifications for membership for Parliament and State Legislature and, the disqualification is incurred on the ground of conviction under Section 8 while on the ground of corrupt practice under section 8a of the Act. Further, section 9 of the Act gives disqualification for dismissal for corruption or disloyalty, while section 9a deals with disqualification for Government contracts, and section 10 deals with disqualification for holding any office of the Government company and lastly, section 10a provides for the disqualification from failure to lodge account of election expenses. It may be noted at this juncture that it is not the case of the petitioner that the respondent no. 1 has incurred any kind of disqualification for becoming a Member of Legislative Assembly under any of these provisions. As stated above, section 5 (c) of the Act of 1951 permits a person to contest the election of State Legislature if his name appears on the electoral roll in any of the Assembly Constituency in the State. It is the case of the petitioner that the respondent no. 1 is disqualified from contesting election and getting elected to the State Assembly because of appearance of his name in more than one constituency. The disqualification on this ground does not find place in any of the above provisions of law.