2
ॢबहर गजट
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12@10@2018 ,oa 02@11@2018 ds vkns’kksa dks izdkf’kr djrk gSA
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No.13 of 2015
=======================================================================
Dilip Kumar Mishra .... .... Petitioner/s Versus
Smt. Sunita Singh Chauhan .... .... Respondent/s
=======================================================================
Appearance :
For the Petitioner/s : Mr. Jitendra Singh
For the Respondent/s : Mr.
=======================================================================
CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR
CAV ORDER
Date: 12 -10-2018
I.A.No.7171 of 2016
The respondent has filed an interlocutory application no. 7171 of 2016 praying therein to
dismiss the election petition as legally not maintainable.
2. The petitioner has filed this case for the declaration of election of the respondent as
member of 30, Belsand Assembly constituency for 16th Bihar Legislative Assembly as void on the
ground that she had no right to contest the election from the said constituency. The nomination
papers of respondent were illegally accepted and after completion of election process, she was
declared elected. She was not an elector of 30, Belsand Assembly Constituency rather she is/was
elector of Sitamarhi Assembly Constituency.
3. It was submitted that accordingly to provision of Section 2(1) (e) and 79 (d) of
Representation of People Act 1951, the elector of a Parliamentary/Legislative Assembly
Constituency has right to be a candidate in the concerned constituency and non elector of the
constituency has no right to be a candidate. In support of his contention, the learned counsel referred
to para 12 of the ruling reported in AIR 1972 SC page 2284. The Hon’ble Apex Court has held in
paragraph-12 that an important and noticeable difference between qualifications prescribed by
parliament for the membership of a Legislative Assembly by Section 5 of the Representation of the
People Act, 1951 and those for the membership of a Legislative Council by Section 6 of that Act is
that so far as a member of the Legislative Assembly is concerned, he or she has to be an elector of
the constituency from which he or she stands.
4. The learned counsel for the respondent on the other hand referred to the pleadings of the
election petition and submitted that the only ground for declaring the election of the respondent as
void is that she was/is not the elector of the constituency as her name is not in the voter list of said
constituency. There is no other ground for declarating her election as void and so in view of
submission of both the parties, the point arises for consideration is as to whether the election of
respondent no.1 from 30 Belsand Assembly constituency is illegal and void on account of her not
being the elector of said constituency.
5. In this regard, I would like to refer the relevant provisions of Representation of People
Act, 1951.
Section : 5 Qualification for membership of Legislative Assembly.—(1) A person shall
not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless—
(a)
in the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes
of that State, he is a member of any of those castes or of those tribes, as the case
may be, and is an elector for any Assembly constituency in that State;
3
ॢबहर गजट
[सधरण 6 फरवर 2019
(b)
in the case of a seat reserved for an autonomous district of Assam, he is a member of
a [Schedule Tribe of any autonomous district] and is an elector for the Assembly
constituency in which such seat or any other seat is reserved for that district; and
(c)
in the case of any other seat, he is an elector for any Assembly constituency in that
State:
Section 33 Presentation of nomination paper and requirements for a valid
nomination.—
(1)
----------------
(2)
----------------
(3)
----------------
(4)
---------------
(5)
Where the candidate is an elector of a different constituency, a copy of the
electoral roll of that constituency or of the relevant part thereof or a certified copy
of the relevant entries in such roll shall, unless it has been filed alongwith the
nomination paper, be produced before the returning officer at the time of scrutiny.
Section 33 (7)
(a)
------------
(b)
in the case of a general election to the Legislative Assembly of a State (whether or
not held simultaneously from all Assembly constituencies), from more than two
Assembly constituencies in that State;
6. On going through the above provisions, it is manifest that a candidate can contest general
election from any legislative Assembly Constituency in the State and further that a candidate can
contest from more than two assembly constituencies in the State who must be a voter of any one
constituency of the State. The rulings reported in AIR 1972 SC 2284 and AIR 1999 SC 1723
referred to by the learned counsel for the petitioner are not applicable in view of the fact that the
issues before apex court were quote different. Similar issues were raised before this Court in CWJC
no. 3468 of 2009 Bindeshwar Sah Vs. Union of India and CWJC no.7550 of 2012 Dilip Kumar
Mishra Vs. The Union of India and this Court had dismissed both the applications. In the case at
hand, I find that the respondent being elector of one of the constituencies of State had rightly filed
nomination from 30, Belsand Assembly constituency.
7. The petitioner has not raised any other point for consideration except to declare the
election of respondent no. 1 as void on solitary ground of her not being an elector of a constituency
from where she has been elected.
8. In view of above discussion, I find that the writ application is legally not maintainable.
The interlocutory application no. 7171 of 2016 is accordingly allowed and this writ application is
dismissed.
(Sanjay Kumar, J)
4
ॢबहर गजट
[सधरण 6 फरवर 2019
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No.13 of 2015
=======================================================================
Dilip Kumar Mishra .... .... Petitioner/s Versus
Smt. Sunita Singh Chauhan .... ....Respondent/s
=======================================================================
Appearance :
For the Petitioner/s : Mr. Bindeshwar Sah, Advocate
For the Respondent/s : Ms. Alka Verma, Advocate
=======================================================================
CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL ORDER
21 02-11-2018
Heard learned counsel for the petitioner and perused the order dated 12.10.2018.
It appears that in para-6 of the said order, the word ‘quote’ has been wrongly typed in place
of the word ‘quite’ and further the words ‘writ application’ have been wrongly typed in place of the
words ‘election petition’ at two places in para-8 of said order.
Let the word ‘quote’ be read as ‘quite’ in para 6 and the words ‘writ application’ be read as
‘election petition’ at both places in para-8.
The order dated 12.10.2018 is accordingly modified.
(Sanjay Kumar, J)
vkns'k ls]
vkuUn dqekj ikBd]
lfpo]
Hkkjr fuokZpu vk;ksx A
———
ELECTION COMMISSION OF INDIA
———
NOTIFICATION
Nirvachan Sadan, Ashoka Road, New Delhi-110001/ Dated 24th December, 2018, 3 (Pausha), 1940 (Saka)
No. 82/BR-LA/EP/(13/2015)/ES-1/2018-: In pursuance of Section 106 (6) of the
Representation of the People Act, 1951 (43 of1951), the Election Commission hereby publishes the
Order dated the 12.10.2018 and 02.11.2018 of the High Court of Judicature at Patna in Election
Petition No. 13/2015
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No.13 of 2015
=======================================================================
Dilip Kumar Mishra .... .... Petitioner/s Versus
Smt. Sunita Singh Chauhan.... .... Respondent/s
=======================================================================
Appearance :
For the Petitioner/s : Mr. Jitendra Singh
For the Respondent/s : Mr.
=======================================================================
CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR
CAV ORDER
Date: 12 -10-2018
I.A.No.7171 of 2016
The respondent has filed an interlocutory application no. 7171 of 2016 praying therein to
dismiss the election petition as legally not maintainable.
2. The petitioner has filed this case for the declaration of election of the respondent as
member of 30, Belsand Assembly constituency for 16th Bihar Legislative Assembly as void on the
ground that she had no right to contest the election from the said constituency. The nomination
5
ॢबहर गजट
[सधरण 6 फरवर 2019
papers of respondent were illegally accepted and after completion of election process, she was
declared elected. She was not an elector of 30, Belsand Assembly Constituency rather she is/was
elector of Sitamarhi Assembly Constituency.
3. It was submitted that accordingly to provision of Section 2(1) (e) and 79 (d) of
Representation of People Act 1951, the elector of a Parliamentary/Legislative Assembly
Constituency has right to be a candidate in the concerned constituency and non elector of the
constituency has no right to be a candidate. In support of his contention, the learned counsel referred
to para 12 of the ruling reported in AIR 1972 SC page 2284. The Hon’ble Apex Court has held in
paragraph-12 that an important and noticeable difference between qualifications prescribed by
parliament for the membership of a Legislative Assembly by Section 5 of the Representation of the
People Act, 1951 and those for the membership of a Legislative Council by Section 6 of that Act is
that so far as a member of the Legislative Assembly is concerned, he or she has to be an elector of
the constituency from which he or she stands.
4. The learned counsel for the respondent on the other hand referred to the pleadings of the
election petition and submitted that the only ground for declaring the election of the respondent as
void is that she was/is not the elector of the constituency as her name is not in the voter list of said
constituency. There is no other ground for declarating her election as void and so in view of
submission of both the parties, the point arises for consideration is as to whether the election of
respondent no.1 from 30 Belsand Assembly constituency is illegal and void on account of her not
being the elector of said constituency.
5. In this regard, I would like to refer the relevant provisions of Representation of People
Act, 1951.
Section : 5 Qualification for membership of Legislative Assembly.—(1) A person shall
not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless—
(a)
in the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes
of that State, he is a member of any of those castes or of those tribes, as the case
may be, and is an elector for any Assembly constituency in that State;
(b)
in the case of a seat reserved for an autonomous district of Assam, he is a member of
a [Schedule Tribe of any autonomous district] and is an elector for the Assembly
constituency in which such seat or any other seat is reserved for that district; and
(c)
in the case of any other seat, he is an elector for any Assembly constituency in that
State:
Section 33 Presentation of nomination paper and requirements for a valid
nomination.—
(1)
----------------
(2)
----------------
(3)
----------------
(4)
---------------
(5)
Where the candidate is an elector of a different constituency, a copy of the
electoral roll of that constituency or of the relevant part thereof or a certified copy
of the relevant entries in such roll shall, unless it has been filed alongwith the
nomination paper, be produced before the returning officer at the time of scrutiny.
Section 33 (7)
(a)
------------
(b)
in the case of a general election to the Legislative Assembly of a State (whether or
not held simultaneously from all Assembly constituencies), from more than two
Assembly constituencies in that State;
6. On going through the above provisions, it is manifest that a candidate can contest general
election from any legislative Assembly Constituency in the State and further that a candidate can
contest from more than two assembly constituencies in the State who must be a voter of any one
constituency of the State. The rulings reported in AIR 1972 SC 2284 and AIR 1999 SC 1723
6
ॢबहर गजट
[सधरण 6 फरवर 2019
referred to by the learned counsel for the petitioner are not applicable in view of the fact that the
issues before apex court were quote different. Similar issues were raised before this Court in CWJC
no. 3468 of 2009 Bindeshwar Sah Vs. Union of India and CWJC no.7550 of 2012 Dilip Kumar
Mishra Vs. The Union of India and this Court had dismissed both the applications. In the case at
hand, I find that the respondent being elector of one of the constituencies of State had rightly filed
nomination from 30, Belsand Assembly constituency.
7. The petitioner has not raised any other point for consideration except to declare the
election of respondent no. 1 as void on solitary ground of her not being an elector of a constituency
from where she has been elected.
8. In view of above discussion, I find that the writ application is legally not maintainable.
The interlocutory application no. 7171 of 2016 is accordingly allowed and this writ application is
dismissed.
(Sanjay Kumar, J)
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No.13 of 2015
=======================================================================
Dilip Kumar Mishra .... .... Petitioner/s Versus
Smt. Sunita Singh Chauhan ... ....Respondent/s
=======================================================================
Appearance :
For the Petitioner/s : Mr. Bindeshwar Sah, Advocate
For the Respondent/s : Ms. Alka Verma, Advocate
=======================================================================
CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL ORDER
21 02-11-2018
Heard learned counsel for the petitioner and perused the order dated 12.10.2018.
It appears that in para-6 of the said order, the word ‘quote’ has been wrongly typed in place
of the word ‘quite’ and further the words ‘writ application’ have been wrongly typed in place of the
words ‘election petition’ at two places in para-8 of said order.
Let the word ‘quote’ be read as ‘quite’ in para 6 and the words ‘writ application’ be read as
‘election petition’ at both places in para-8.
The order dated 12.10.2018 is accordingly modified.
(Sanjay Kumar, J)
By order,
ANAND KUMAR PATHAK,
SECRETARY,
ELECTION COMMISSION OF INDIA.
————
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