SHIVARAJ V. PATIL - (1.) AGGRIEVED by the judgment and order dated 24-3-2000 passed by the High Court of Himachal Pradesh in Election Petition No. 2/98 (2000 (2) Sim LC 125), setting aside the election of the appellant from 61-Nachan (S.C.) Assembly Constituency and declaring it void, this appeal has been filed by the appellant under Section 116-A of the Representation of the People Act, 1951 (for short 'the RPA'), calling in question the correctness and validity of the said judgment and order of the High Court.
(2.) THE material and relevant facts, to the extent they are considered necessary for the disposal of this appeal, are set out as under. THE respondent Dile Ram filed the election petition challenging the election of the appellant from 61-Nachan (S.C.) Assembly Constituency in Himachal Pradesh, pleading that the nomination papers were filed by the appellant, the respondent and others. He was set up as a candidate by the Bhartiya Janta Party (BJP) and the appellant was a candidate sponsored by the Indian National Congress (INC). After the scrutiny and withdrawal of nomination papers, five candidates remained in the field. THE polling took place on 28-2-1998. THE appellant was declared elected by the Returning Officer on 2-3-1998 after the counting of votes. THE votes secured by the five candidates are as given below :- JUDGEMENT_114_JT2_2001Html1.htm The respondent sought for setting aside the election of the appellant on the ground that it was void as Nikka Ram, one of the contesting candidates mentioned at Sr. No. 5 above was holding office of profit under Government of Himachal Pradesh on the date of filing of his nomination paper as well as on the date of scrutiny thereof. The Returning Officer ought to have rejected his nomination paper as per Section 36(2)(a) of the RPA. According to the respondent, Nikka Ram was working as Junior Engineer in Irrigation and Public Health Department of Himachal Pradesh on the relevant dates and was holding office of profit under the State Government and as such, he was disqualified from contesting the election in view of the bar created under Article 191(1)(a) of the Constitution of India. His nomination paper was improperly and wrongly accepted by the Returning Officer which in turn and materially affected the result of the election in so far as it concerned the returning candidate - the appellant. In support of the grounds of challenge, material averments are made in paras 4-5 of the election petition, which were denied in the written statement filed by the appellant. Since the High Court has set out the pleadings of the parties in sufficient details we consider it unnecessary to repeat them. According to the respondent, Nikka Ram was an active worker of the Rashtriya Swayam Sevak Sangh (RSS) and was closely associated with the cadre and workers of RSS and BJP; the vote bank of the respondent as well as the said Nikka Ram by and large was common as both of them were in contact with the BJP and RSS workers, supporters and well-wishers; having failed to get BJP ticket, Nikka Ram filed his nomination paper as an independent candidate only with an object to cut into the votes of the respondent and damage his chances of election. Hence, the result of the election so far it concerned the appellant had been materially affected.
(3.) THE appellant denied that nomination paper of Nikka Ram was wrongly and improperly accepted by the Returning Officer. It was also denied that acceptance of his nomination paper had materially affected the result of election insofar as it concerned the appellant. According to him it was wrong to say that a mere margin of votes would determine or would be relevant to determine that result of election has been materially affected. He also pleaded that he was not a member or active worker of BJP or RSS and he did not campaign in the election for votes as belonging to BJP. Certain preliminary objections were taken as to the maintainability of the election petition. By a detailed order dated 3-8-1998, the High Court held that the petition did not suffer from any fatal defect so as to entail its dismissal at the threshold. Since, thereafter main election petition itself was disposed of after a full dressed trial on merits by the impugned judgment, it is necessary to go into further details on this aspect.;