- (1.) Heard Shri S.N. Tripathi, petitioner in person, Shri O.P. Srivastava, learned counsel for Election Commission of India, opposite party no. 1, Shri I.H. Farooqui, Assistant Solicitor General of India on behalf of opposite party no. 2 and Shri Kapil Dev, Senior Advocate on behalf of opposite party no. 3.
(2.) By means of present petition, the petitioner has challenged the validity of the election of Shri Shyam Kishor Shukla (opposite party no. 3) under Section 81 of the Representation of the People Act, 1951 (hereinafter referred to as the "R.P. Act, 1951") on the grounds specified under Section 100 (1)(a) and (c ) and (d)(i) and (iv) of R.P. Act and seeks a declaration of election of opposite party no. 3 as void under Section 98(b) of R.P. Act, 1951, specifically on the following grounds : (a)being a nominee of an association opposite party no. 4 vide his nomination papers at Annexures No. 5 to 7, opposite party no. 3 is, on the date of his Election, not qualified to be chosen to fill the seat of 86, Lucknow (West ) Assembly Constituency in U.P. within the meaning of Article 173 of the Constitution for short, "Art." and Section 5 of R.P. Act, attracting Section 100(1) (a) and Section 100(i) (d) (iv). (b)being a nominee of an association opposite party no. 4 as claimed vide Annexures No. 5,6,7, opposite party no. 3 is not entitled to be nominated as a candidate within the meaning of Section 32 of R.P. Act read with the definition of the expression "Candidate" under its Section 79 (b) and of the expression "electoral right" under its Section 79(d), and his nomination paper was therefore liable for mandatory rejection under its Section 36(2) (a) and (b), but instead of rejection, it was improperly accepted by opposite party no. 2 which has materially affected his election result in the sense that, had opposite party no. 2 acted justly and fairly under Section 36 and more so, when the petitioner had made objection against his nomination vide Annexure-9, opposite party no. 3 could neither have become a contesting Candidate nor a returned Candidate and hence, Section 10(1)(d)(i) and (iv) aforesaid gets attracted. (c) the nomination paper of the petitioner vide Annexure-4, was presented in strict conformity with Sections 32 and Section 33(7) (f) of R.P. Act and Article 173 of the Constitution read with Section 5(c) of this R.P. Act and was not liable to be rejected under its section 36; but opposite party no. 2 has improperly rejected petitioner's nomination on extraneous consideration and on the grounds which are alien to the said section 36 which is apparent on the face of his rejection Order at Annexure-12 read with Annexure-8 and 9 which attracts section 100(1) (c) aforesaid. (d)this election was conducted in gross violation of the Gazetted Notification at Annexure-1 and beyond the provisions of Sections 2(1)(a), 2(1)(f), 5(c), 32, 33(7) (f), 36, 79 (b) and (d), and 169 (1) of this R.P. Act and of statutory Rule-4 of Rules 1961 (i.e. conduct of Election Rules, 1961); apart from the aforesaid, this election was conducted in gross violation of Article 173, 324 (1) and 327 of the Constitution; and such violation of the aforesaid provisions have abriged, infringed, emasculated or abrogated the fundamental rights under Article 13 (2), 14, 19(1) (a), 19(1) (c ), 19(4) and 21- which attracts Section 100 (1) (d) (iv).
(3.) The Election Commission of India issued a notification dated 14.10.2009 for bye-election for the purpose of filling the vacancy in 86- Lucknow (West) Assembly Constituency, which was caused due to resignation of Shri Lalji Tandon and 21.10.2009 was fixed as the last date for making nomination. The scrutiny of the nomination was to be done on 22.10.2009 and 24.10.2009 was fixed as the last date for withdrawal of candidature. The poll was to take place on 07.11.2009 and the process of election was to be completed by 16.11.2009.;