- (1.) THIS appeal is directed against the decision of the Election Tribunal. Rohtak, dated the 10th July, 1958 by which the election of Mangal Sain appellant to the punjab Legislative Assembly from Rohtak constituency was set aside on the ground that he was not an Indian citizen either at the time when he was enrolled as a voter or at the time when his nomination papers were accepted or even at the time when he was elected. The learned Election Tribunal held that Man-gal Sain appellant was in the circumstances not-qualified to be chosen to the Punjab Legislative Assembly and that, therefore, his election was void. As the respondent before us, who was petitioner in the election petition, had failed to substantiate all the other allegations made by her in the petition, the parties were left to bear their own costs before the Tribunal.
(2.) THOUGH there were 8 issues tried by the Tribunal, issue No. 1 alone was decided against Mangal Sain appellant, the returned candidate, and the counsel for both the parties have addressed as on appeal only on this issue. The respondent did not challenge in this Court the adverse findings on the remaining issues.
(3.) ON the 12th March, 1957, ejection was held to fill the seat in the Punjab legislative Assembly from the Rohtak Assembly Constituency. Nomination papers had been scrutinised on the 1st February, 1957, as a result of which 6 candidates were left in the field to contest the election viz. , (1) Mangal Sain, (2) Ch. Ram sarup, (3) Har Gopal, (4) Shanno Devi and two others. The counting of votes was completed on the 14th March, 1957, and on that very day the Returning Officer declared Mangal Sain to have been duly elected. Shrimati Shanno Devi respondent, one of the defeated candidates, filed the present election petition on the 20th April, 1957, seeking to set aside the election of the returned candidate (now appellant) before us on a large number of grounds but for our present purposes the grounds stated in para 5 of the petition alone are relevant. In this para it is alleged as follows:- " (5) (a) that the said Returning Officer has improperly accepted the nomination paper of the respondent on the 1st February, 1957, who was not qualified to stand for election as not being a citizen of India as defined in Article 173 of the Constitution and thus was not even eligible to become an elector Under Section 5 (c) of the Representation of the people Act, 1951. The respondent hails from Burma and ho never acquired the citizenship of India. His parents still reside at 24c, Block, zeago Bazar Mandalay (Burma ). " (b) that under Article 191 of the Constitution a person shall be disqualified for being chosen as and for being a member of the legislative Assembly as he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State and thus the respondent is disqualified to remain a member of the Legislative assembly under Section 100 (a) of the Representation of the People Act. " (c) that the said improper acceptance of the nomination paper o the respondent has materially affected the result of the election in this constituency as the electorate has been deprived of the exercise of its rights to vote for the rightful, eligible candidates and the election is, therefore, liable to be declared as void on that score. ";