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REGISTERED No. D. (D)-72

The Gazette of India

EXTRAORDINARY

PART II—Section 3—Sub-section (ii)

PUBLISHED BY AUTHORITY

No. 158] NEW DELHI, WEDNESDAY, APRIL 8, 1981/CHAITRA 18, 1903

Separate paging is given to this Part in order that it may be filed as a separate compilation

(501)

37 GI/81

503

OPINION

This is a Reference from the President of India under Article 103(2) of the Constitution of India seeking the opinion of the Commission on the question of alleged disqualification of Shri Balram Jakhar, a silting member of the House of th" People, under Article 102(l)(e) of the Constitution read with Sections 77, 78 and 10A of the Represcntntion of the People Act, 1951.

MINISTRY OF LAW, JUSTICE & COMPANY AFFAIRS

(Legislative Department)

NOTIFICATION

New Delhi, the 8th April, 1981

S.O. 296(E).—The following Order made by the President

is published for general information :—

ORDER

Whereas two petitions have been filed by Shri Mast Ram, Advocate, Ferozepur City, on the 15th May, 1980 and on the 29th May, 1980 alleging that Shri Balram Jakhar, sittlnft member of the House of the People, has become subject to disqualification under article 102(l)(e) of the Constitution read with sections 77, 78 and 10A of the Representation of the People Act. 1951;

And whereas a reference has been made by the President to the Election Commission with reference to the said petitions under article 103 of (he Constitution as to whether Shri Balram Jakhar has become subject to any of the disqualifica- tions mentioned under Article 102 of the Constitution;

And whereas the Election Commission has given its opinion (vide Annexure) that the jurisdiction of neither the President nor the Commission is attracted under article 103 of the Constitution in the present case and that on merits also, Shri Balram Jakhar has not incurred any disqualification under article 102(l)(e) of the Constitution read with section 10A of the Representation of the People Act, 1951;

Now, therefore, T Neelam Sanjiva Reddy, President of India, in exercise of the powers conferred on me bv article 103 of the Constitution, do hereby decide, in accordance with the opinion of the Election Commission, that in respect of the pe'itions, the jurisdiction of neither the President nor the Commission is attracted under the said article and on merits also, Shri Balram Jakhar has not incurred any disqualification under article 102(lXe) of the Constitution read with section

- 10A of the Representation of the People Act. 1951.

Rashtrapati Bhavan, New Delhi, the 2nd April, 1981.

NEELAM SANJIVA REDDY,

President of India The above question was raised by Shri Mast Ram, Advocate, Ferozepur City by two petitions filed by him before the President on the 15th May, 1980 and 29th May. 1980. In thesc petitions, it was alleged that Shri Balram Jakhar, who was elected to the House of the People from 13-Ferozepur Parliamentary Constituency at the General Election held in December, 1979—January, 1980, did not maintain his account of election expenses as required by law under Section 77 of the Representation of the People Act, 1951, that he fabricated false account for the purpose of lodging the same under Section 78 of the said Act and that he certified the return of expenses liled by him with the District Election Officer, Ferozepur to be a true copy of the account knowing and believing the same to be false and not believing the same to bo true. The petitioner gave in his aforesaid petitions some extracts from the return filed by Shri Balram Jakhar to show lhat the account was not maintained item-wise from day-to-day inasmuch as the date of expenditure had been shown as the date on which payments had been made and not the date on which such expenditure was incurred or authorised. It was further alleged that Shri Balram Jfikhar had knowingly and intentionally understated many items of expenses and omitted to show some important expenses altogether. On the basis of these allegations, it was contended by the petitioner that Shri Balram Jakhar had in- curred disqualification under Article 102(l)(e) of the Consti- tution read with Sections 77. 78 and 10A of the Representation of the People Act, 1951 and Sections 171-1, 191, 199 and 200 of 1PC.

It is unnecessary to dilate on thesc contentions of the peti- tioner and the submissions made by Shri Balram Jakhar in his written s atement in reply to these contentions as it has to be considered first whether the jurisdiction of the President and ihe Election Commission under article 103 is attracted in this case. Aiticle 103 of the Constitution will be attracted only in cases where a Member of Parliament has actually incurred any of the disqualifications mentioned in clause (I) of Article 102 of the Constitution after he has become a member. In other- words, the provisions in Article 103 are applicable only to post-election disqualification of a member.

Shri Balram Jakhar, has not been disqualified in terms of Aiticle 102(1 )(e) of the Constitution read with Section 10A of ihe Representation of the People Act, 1951. It is not a case where under orders of the Commission issued under Section 10A of the Act the member suffers from a disqualifica- tion for his failure to lodge his account of election expenses within the time and in the manner required by law. The petitioner cannot invoke Article 103 for the collateral purpose of lequiring the Commission to launch at this stag© an enquiry into the alleged failure of Shri Jakhar to maintain his account of election expenses in (he manner required by law, and issue an order of disqualification under the said Section 10A dis- qualifying Shri Balram Jakhar,

In the above view, I hold that the jurisdiction of neither the President nor the Commiision i9 attracted in the present case.

In re : Alleged disqualification of Shri Baiaram Jakhar, sitting

member of the House of the People.

On merits also, the petitioner has not been able lo prove the allegations made by him. The only objection which was passed by the petitioner at the hearing held in the matter on the 7th February, 1981, was that Shri Jakhar had not main- tained a day-to-day account of the election expenses incurred or authorised by him and lhat he had "hown the expenditure incurred or authorised on several dates under a single entry recorded on the date on which Ihe payment in respect of such expenditure wfa made. The objection raised was thus purely technical in nature and related to the method of keepinj? the nccounts by Shri Balram Jakhar. I am not persuaded 10 hold that by following such method of keeping accounts, Shi Jakhar had failed to maintain his account in the manner re- quired by law, as he had given sufficient details in the sta*e- ment of account in respect of each item of expenditure covered by the impugned entries. Further, under Section 10A, it is not the mere failure on the part of a candidate to lodge his account

read with Section 10A of the Representation ot the People Act, 1951. New Delhi. February 17. 1981.

Sd/- of election expenses within time and in the manner required by law, which would be sufficient to attract the. disqualification under the said Section 10A; but the Commission should also be satisfied th.it ihe candidate concerned had no good reason or justification for the said failure. The Commission has already accepted the account of election expenses filed by Shn Jakbar even before the question raised by Shri Mast Ram was referred to it b> the President.

(S. L. SHAKDHER) Chief Election Commissioner of India.

HflviDR regard to the above view, I am of opinion and accordingly hold that Shri Balram Jakhar has not incurred any disqualification under Article lQZ(lXe) of the Constitution

[No. F. 7(6)/81-Leg. II] A. K. SR1NIVASAMURTHY, Jt. S"cy. and Legislative Counsel

P1INTHD BY THE MANAGER, OOVT. OF INDIA PTOS8, RING JUHD, NEW D E L H I 4 1 0 0 64

AND PUBLISHED HY THE CONTROLLER OF PUBLICATIONS, DELHI-110054, 1 9 81