GURU CHARAN BENERJEE AND ANR. Vs. RETURNING OFFICER OF NO. 34, BURDWAN PARLIAMENTARY CONSTITUENCY.
LAWS(CAL)-1963-12-27
HIGH COURT OF CALCUTTA
Decided on December 09,1963

GURU CHARAN BENERJEE AND ANR. Appellant
VERSUS
RETURNING OFFICER OF NO. 34, BURDWAN PARLIAMENTARY CONSTITUENCY. Respondents




JUDGEMENT

Sinha, J. - (1.)The facts in this case are briefly as follows: The petitioners are electors (voters) of No. 34 one-member Burdwan Parliamentary Constituency, West Bengal. In the last General Election, the Election Commission, by notification issued in the Official Gazette, called upon the said Constituency to elect a member for the House of the People (Lok Sabha) of Parliament for the said Constituency. On or about the 13th Jan., 1962, public notice was 'given under section 31 of the Representation of the People Act, 1951 (hereinafter referred to as the "said Act") by the Returning Officer of the said Constituency, of the intended election, inviting nomination of candidates for such election, qualified to be chosen to fill that seat under the provisions of the Constitution and under the said Act. Pursuant to the said public notice nominations were filed and scrutinised and accepted by the said Returning Officer. The candidates whose nominations were accepted were - (a) Shri Gurugobinda Basu and (b) Shri Subiman Ghose. Thereafter, polling took place and upon the counting of votes, the said Shri Gurugobinda Basu was declared elected, having got a majority of votes in his favour. Thereafter, two electors of the said constituency viz., Shri Sankari Prasad Ghosal and Shri Narayan Chandra Ghosh presented an election petition challenging the election of Shri Gurugobinda Basu as void. The ground made out was, inter alia, that the said Shri Gurugobinda Basu held offices of profit under the Government and as such was disqualified under the Constitution for being elected as a member of the Lok Sabha. On the 11th Aug., 1962, the Election Tribunal (Shri S. Chakravartty) held that the said candidate Sri Gurugobinda Basu was holding offices of profit under the Government and was, therefore, disqualified for being chosen as a member of the House of the People under the provisions of Art. 102 (1) (a) of the Constitution. Against the said judgment of the Election Tribunal, the said Shri Gurugobinda Basu preferred an appeal to this High Court, numbered as Election Appeal (F.A.) No. 425 of 1963. A Division Bench of this court presided over by P. N. Mookerjee, J., dismissed the said appeal. The said Shri Gurugobinda Basu appealed therefrom to the Supreme Court of India and the appeal was numbered as Civil Appeal No. 486 of 1963. The appeal was heard by the Constitution Bench of the Supreme Court which held that the said Shri Gurugobinda Basu did hold offices of profit under the Government and on the 14th Aug., 1963, the appeal was dismissed. On the 23rd Aug., 1963, two electors, Sri Kedareswar Chakravorty and Shri Shyamal Sen Gupta applied before the Returning Officer, praying that the said Shri Subiman Ghosh should be forthwith declared as elected without contest. On the 11th Sept., 1963, the petitioners made a similar application before the Returning Officer. On the 16th Sept., 1963, the Returning Officer rejected both the applications. On the 26th Sept., 1963, the said Kedareswar Chakraborty made an application under Art. 227 of the Constitution in this court numbered as C.O. No. 4577 of 1963. On the 12th Nov., 1963, the said application was summarily rejected by this court by a Division Bench presided over by Banerjee, J. On the 16th Nov., 1963, the Election Commission issued a notification in the Calcutta Gazette as follows:--
"Whereas a vacancy has occurred in the House of the People consequent on the election of Shri Gurugobinda Basu, a member elected to that House from the Burdwan Parliamentary Constituency in the State of West Bengal, having been declared void by the Election Tribunal, Bankura ;

Now, therefore, in pursuance of the provisions of sub-section (1) of section 149 of the Representation of the People Act, 1951, the Election Commission hereby calls upon the said Constituency to elect before the 27th Dec., 1963, in accordance with the provisions of the said Act and of the Rules and Orders made thereunder, a person to fill the vacancy so caused."

(2.)According to the said notification, the Bye-Election is to be completed by the 27th Dec., 1963. Now this application has been made under Art. 226 of the Constitution for the issue of a writ or order in the nature of mandamus commanding the respondent, the Returning Officer of the said Constituency, to recall and cancel the notice dated 16th Nov., 1963, a similar writ commanding the said respondent to make a declaration forthwith under sub-section (2) of section 53 of the said Act that Shri Subiman Ghosh be elected uncontested as a member of the House of the People from the said constituency in the last General Election (1962), and for incidental reliefs. In the body of the petition it has been stated that the last General Election still remains incomplete and that an order should be made under sub-section (2) of section 53 of the said Act by declaring Shri, Subiman Ghosh as elected without contest.
(3.)Mr. Mukherjee, appearing on behalf of the petitioner, has argued the case as follows : The qualification, for membership of Parliament is laid down in Art. 84 of the Constitution. A person shall not be qualified to be chosen to fill a seat in Parliament unless he is a citizen of India and in the case of a seat in the House of the People, be not less than 25 years of age and possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. Such qualifications are prescribed in the said Act. Art. 102 lays down the disqualification for membership. Under it, a person is disqualified for being chosen as, and for being, a member of either House of Parliament, if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder. He then refers to the provisions of the said Act. Sec. 100 gives power to the Tribunal constituted under the said Act, that is to say, the Election Tribunal, to declare void the election of a returned candidate if on the date of his election he was disqualified to be chosen to fill the seat under the Constitution or the said Act. In fact, under sub-section (1) (a) of section 100, if the Tribunal is of the Opinion that a returned candidate is so disqualified, the Tribunal "shall" declare the election of the returned candidate to be void. Sec. 101 is important and is set out below:--
"101. Grounds for which a candidate other than the returned candidate may he declared to have been elected. - If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal 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 Tribunal 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."



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