RAJESH SHANKAR,J. - (1.) The present writ petition has been filed for issuance of direction upon the respondent nos. 1 to 4 to pass final order upon the complaint lodged by the petitioner stating inter alia that the nomination filed by Smmari Lal (respondent no.7) - a B.J.P. candidate from Kanke (reserved assembly constituency for Scheduled Caste) by suppressing his place of origin and by projecting himself as member of Scheduled Caste of the State of Jharkhand, although his origin is from the state of Rajasthan and as such, he disqualifies himself to be a candidate in the assembly election. The petitioner has further prayed for issuance of direction upon the respondent no. 4 to stay participation of the respondent no. 7 in the election or to stay the result of the same till the matter is finally adjudicated by this Court.
(2.) Mr. Rajeev Kumar, learned counsel for the petitioner, submits that the petitioner is a bonafide voter in the Ranchi assembly constituency and as such he has the right to know as to whether a particular candidate contesting the ensuing assembly election is qualified for the same. In fact, the respondent no. 7 is original resident of the State of Rajasthan from where he has migrated to contest the ensuing assembly election in Jharkhand. It is a settled law that a person migrating from other State is prohibited to contest the State assembly election from a reserved constituency in the other State. The main object behind the same is that a person belonging to Scheduled Caste or Scheduled Tribe in a particular area of the country must be given protection so long and to such extent he is entitled in order to maintain the equality among others. The respondent no. 7 having his origin in the State of Rajasthan should not be allowed to contest the assembly election in Jharkhand as the same would infringe the rights of the members of the Scheduled Caste of the State of Jharkhand. It is further submitted by the learned counsel for the petitioner that the concept of "right to know" is derived from "the freedom of speech". The democratic set up of this country mandates that the agents of public must be responsible for their conduct and there can be no secret barring exceptional cases. The people of this country have the right to know every public act, which is done in a public way by the government functionaries. The people are entitled to know the particulars of every public transaction in all its bearing. Thus, the action of the returning officer of Kanke assembly constituency by not taking appropriate action on the complaint preferred by the petitioner has infringed his right enshrined under Article 19(1)(a) of the Constitution of India. In support of his argument, learned counsel puts reliance on the following judgments rendered by the Hon'ble Supreme Court in the cases of- (i) Action Committee on issue of caste certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another Vs. Union of India and Another reported in (1994) 5 SCC 244, (ii) U.P. Public Service Commission, Allahabad Vs. Sanjay Kumar Singh reported in (2003) 7 SCC 657 (iii) Uttar Pradesh Vs. Raj Narain and Others reported in (1975) 4 SCC 428.
(3.) Mr. Jai Prakash, learned A.A.G.-I appearing on behalf of the State of Jharkhand, raises a preliminary objection regarding maintainability of the present writ petition and submits that Article 329 of the Constitution of India puts bar on the interference by the court in electoral matters. Learned A.A.G. while referring to Section 80 of the Representation of the People Act, 1951 (in short " the Act, 1951") submits that no election can be questioned except by way of election petition to be presented in terms with Section 100 of the Act, 1951 and the rules framed thereunder. Learned A.A.G. while referring to Section 100 the Act, 1951 also submits that all the matters relating to parliamentary or assembly election are to be entertained by the High Court by way of election petition which includes improper acceptance of nomination of a candidate. Challenge to the nomination filed by the respondent no. 7 by invoking Article 226 of the Constitution of India is not maintainable as the said issue can properly be adjudicated in an election petition, that too, if any one chooses to prefer it after the process of election is over. Learned A.A.G. in support of his argument places reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Election Commission of India through Secretary Vs. Ashok Kumar and others reported in (2000) 8 SCC 216.;