MANOJ KUMAR GUPTA,J. - (1.)By means of the present petition, filed under Section 80, 80-A and 100 of the Representation of the People Act, 1951 (hereinafter referred to as ''the Act'), the petitioner has called in question the election of the respondent to the 17th Lok Sabha from 77th Parliamentary Constituency (Varanasi), held in April - May 2019. The petitioner has sought a declaration to the effect that the election of the respondent be declared void and the order passed by the Returning Officer dated 1.5.2019, rejecting his nomination, be set aside. He has also made a prayer for taking action against the Returning Officer for misuse of official powers by invoking Section 123(2), read with Section 134 of the Act.
(2.)The petition was entertained by this court and notice was issued to the respondent, calling for his reply. In response thereto, the respondent entered appearance. An application was filed by him under Order 6 Rule 16 C.P.C. and Order VII Rule 11 C.P.C., read with Section 86(1) of the Act, praying for striking off paragraphs-4 to 28 of the petition and also for dismissing the same by exercising power under Order VII Rule 11 C.P.C., as it discloses no cause of action and also for the reason that the petitioner has no locus standi to file the same. The petitioner filed a reply to the said application by way of a counter affidavit. Thereafter, Sri Shailendra, learned Senior Counsel for the petitioner, assisted by Sri Dharmendra Singh, and Sri Satya Pal Jain, learned Senior Advocate for the respondent, assisted by Sri Dheeraj Jain, Sri K.R. Singh and Dr. Santosh Jain, were heard at length on the said application.
(3.)The case set up by the petitioner is that he filed his nomination for the election as an independent candidate on 24.4.2019. Subsequently, he filed another nomination as official candidate of Samajwadi Party on 29.4.2019, the last date for filing of nomination. He was issued a checklist by Returning Officer on the same date at 1:43 p.m., without raising any objection in regard to the nomination papers. On 30.4.2019, the date fixed for scrutiny, he received a notice from the Returning Officer at 3:03 p.m., followed by another notice on the same date, at 6:15 p.m., alleging that the petitioner had not filed certificate from the Election Commission to the effect that he had not been dismissed from the service of Government of India, on ground of corruption or disloyalty to the State, albeit, a period of five years had not expired from the date of his dismissal on the date of filing of the nominations, in terms of Section 9, read with Section 33(3) of the Act. The petitioner claims to have responded to the said notice by filing his dismissal order dated 19.4.2017, before the Returning Officer, pointing out that although he was dismissed from service of Government of India, but the dismissal was not on the ground of corruption or disloyalty to the State. It is also asserted that after receipt of second notice, he approached the Election Commission of India on the same day, by making an application be registered post and also be sending the same by E-mail, requesting it to issue the certificate contemplated under Section 9(2) of the Act. It is also asserted that on the next date, i.e. 1.5.2019, his Power of Attorney submitted application by hand in the office of the Election Commission of India at 9:00 a.m., but the certificate was not made available to him. His nomination paper was rejected on 1.5.2019 at 11:00 a.m. It is also alleged that till the filing of the election petition, he had not been informed about the fate of his application. He clams to have filed a writ petition, bearing number 646 of 2019, before the Supreme Court, under Article 32 of the Constitution of India, challenging the order of Returning Officer dated 1.5.2019, but which was rejected by the Supreme Court by order dated 9.5.2019, declining to entertain the same. It is asserted that News Channel ABP telecasted a programme on 16.5.2019 mentioning that the nomination of the petitioner was rejected on extraneous considerations and under pressure. The Returning Officer, as well as the Central Observer Praveen Kumar had not acted fairly, but in a partisan manner, in rejecting the nomination of the petitioner. The petitioner initially also impleaded the District Election Officer and the Election Observer, as party-respondents to the election petition, alleging that they did not discharge their functions objectively and action be taken against them for misusing their official powers by invoking Section 134 of the Act. However, on the very first date of hearing of the election petition, he got their names deleted from the array of parties. The petitioner has prayed for declaring the election of respondent to be void on the ground that his nomination was improperly rejected; that nomination of the respondent was wrongly accepted; and on account of misuse of official powers by the Returning Officer and the Central Observer.