- (1.) HEARD Major S. N. Tripathi, the petitioner who appeared in person and Sri I. B. Singh, Senior Advocate, assisted by Sri Amit Jaiswal, learned counsel for the opposite parties. The petitioner preferred this Election Peti­tion under Section 81 of the Representation of the People Act, 1951 (hereinafter known as R.P. Act) challenging the validity of the elec­tion of the opposite party No. 3/returned can­didate. The petitioner has prayed that the elec­tion of the elected candidate i.e. opposite party No. 3 be declared as void under the provi­sions of Section 98 (b) of the R.P. Act. Feel­ing aggrieved, the petitioner preferred the present election petition mainly on the follow­ing grounds: i. This election was not conducted in ac­cordance with the provisions of this R.P. Act and hence it is void under Section 100 (1) (d) (iv) of this R.P. Act. Ii. The opposite party No. 3 has been elected as a delegate/agent of an association or a body of persons and such a person is not qualified to be chosen to fill the seat under Article 173 of the Constitution and Section 5 © of this R.P. Act. Hence, his election is void under Sec­tion 100 (1)(a) of this R.P. Act. Iii. An agent/delegate of an association or a body of person is not entitled to be nominated as Candidate for election to fill this seat under Sections 32 and 33 (1) of the R.P. Act. Hence, the acceptance of his nomination being im­proper, his election is void under section 100 (1) (d) (i) and (iv) of the R.P. Act. Iv. The rejection of the nomination of the petitioner being contrary to the provisions of Section 36 (2)(b) of this R.P. Act, the election of opposite party No. 3 is void under Section 100 (1)© there under; v. The expression "Candidate" being statutorily defined is a class under Article 14 and is not open for classification into "Independent Candidate" and the "Party Candidate" under pretext of the recognized political party; simi­larly, the expression "Political Party" being statutorily defined is a class under Article 14 and is not open for classification into recog­nized - unrecognized party, but both the said defined words has been classified in which, the opposite party No.3 is called "Party Can­didate" and is accorded favoured treatment in violation of Article 14. hence his election is void under Section 100 (1) (d) (iv) of this R.P. Act. Vi. The citizens associations formed and governed under Article 19 (1) © and regis­tered under Section 29-A (7) of this R.P. Act and defined under its 2(1 )(f) as Political Party has unreasonably been restricted by changing their structure into (i) the recognized National Party; (ii) recognized State Party and (iii) reg­istered unrecognized party, which violate clause (4) of Article 19 and such classified parties without having the right to freedom of expression under Article 19(1) (a), have been permitted to exercise civic right by way of setting up for the election to its own delegates by means of the Nomination FORM 2-B, Annexure - 5 giving undue electoral advantage to opposite party No. 3 to get elected by breach of Article 19(1) (a) inter alia. Hence, his elec­tion is void under Section 100 (1) (d) (iv) of the R.P. Act.
(2.) THE petitioner submits that the election petition is presented under Section 81 of the R.P. Act, 1951 on the grounds specified under Section 100 (1) (a), ©, (d) (i) and (iv) there ­under, questioning the validity of the election of opposite party No. 3, who has got himself illegally elected by blatant breach of the limitations in Article 173 of the Constitution and of the provisions of Sections 5 ©, 32, 33(1), 36(2)(a) and (b), 29-A(7) and 169 (1) of the R.P. Act as well as by flagrant breach of the definition clause of the R.P. Act defining the words and expressions (i) Political Party (ii) Candidate (iii) Electoral Right. He submits that, it is in violation of the fundamental rights of the petitioner guaranteed under Chapter 3 off the Constitution specially Articles 13(2), 14, 19(1)(a), 19(1) ©, 19(4) and 21 of the Con­stitution. According to him, the petitioner being an elector in U.P. as defined under section 2 (1) (e) of the R. P. Act, is qualified for mem­bership of the U.P. Legislative Assembly under Section 5 © there under and, he possessed the electoral right as defined under Section 79(d) there under, which inter alia, includes the right to stand for being a candidate. He read out the definition of persons mentioned in section 2 (g) of R. P. Act, 1950 which prescribed "person does not include the body of person" which is applicable to R.P. Act, 1951 vide its section 2(1) (a). He further submits that the petitioner's cause of action is legally flowing from the non-compliance of the Constitutional Provi­sions of Articles 173, 170, 324 (1) and 327 including the fundamental right mentioned above. He read out the paragraph No. 27 of the petition where it was mentioned that the FORM - 2 B in Rule 4 of Rules, 1961, used by them treated them differently by calling them with different names such as indepen­dent candidates and party candidates, is con­trary to the definition of the candidate men­tioned under Section 79 (b) of the R.P. Act where the independent candidates having not been set up by a recognized political party, must have ten proposers as nominators while the political party candidates having been set up by a recognized political party will have only one proposer as nominator, which is apparent on the face of their respective nomi­nation forms. He expressly challenged this discrimination.
(3.) THE petitioner further submits that the opposite party No. 3, in spite of being not qualified for being chosen to fill this seat, has been chosen, while the petitioner, in spite of being fully qualified for being chosen to fill the seat both, under the Constitution as well as the R.P. Act, has been improperly stopped from contesting this election by improper re­jection of his nomination. To support his ar­gument, he read out the ratio laid down in the following cases: i. Smt. Indira Gandhi v. Raj Narain; (1975) Supp. SCC 1 : (AIR 1975 SC 2299); ii. Hari Shanker Jain v. Sonia Gandhi; 2001 (8) SCC 233 : (AIR 2001 SC 3689); iii. Jyoti Basu and others v. Debi Ghosh; 1982 (1) SCC 691 : (AIR 1982 SC 983); and iv. D. Ramchandran v. R. V. Janki Raman; 2004 (7) SCC 181. ;