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PM Narendra Modi's Election From Varanasi An Analysis On The Allahbad HC Decision

The Supreme Court has adjourned the Plea challenging prime minister Narendra Modi's election from Varanasi in 2019 general elections.

The bench was comprised of CJI Bobde, Justice Bopanna & Hrishikesh Roy adjourned the matter by a period of two weeks after receiving the adjournment letter which was being circulated by Yadav.

The petition was filed by former BSF Jawan Tej Bahadur Yadav. He challenged the decision of the Allahabad HC order passed in December 2019 where the court has dismissed the case on the ground of no locus standi. The plea has submitted that the HC has failed to notice the misuse of provisions of sections 9 and 33(3) of Representation Of People's Act, 1951 by the District election officer.

Background Of This Development
The plea has challenged the Allahabad HC's order stating that they have dismissed the case on mere technical grounds stated under Order VII rule 11 of the CPC.
In December 2019 the Allahabad HC dismissed the case on the ground of no locus standi. The Counsel for Petitioner in Person is Dharmendra Singh, Tej Bahadur and the Counsels for Respondent is K.R. Singh, Dheeraj Jain & Dr. Santosh Jain.

The petition was filed under Section 80, 80-A, and 100 of the Representation of the People Act, 1951by the petitioner 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 to be set aside.

The petition was entertained by the court and the respondent was called in for reply. The respondents applied to 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.

After filing for being a candidate for the Samajwadi party, he was sent notice alleging that the petitioner had not filed a certificate from the Election Commission to the effect that he had been dismissed from the service of Government of India, on the ground of corruption or disloyalty to the State. It is also an admitted fact that along with his nomination papers, the petitioner did not file any certificate from the Election Commission of India to the effect that he had not been dismissed on the ground of corruption or disloyalty to the State.

The petitioner claimed that although he was dismissed from the service of the Government of India, the dismissal was not on the ground of corruption or disloyalty to the State. The petitioner has prayed for declaring the election of the 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.


Arguments By The Counsels
The counsels on behalf of the respondents claimed that the application filed by the respondent under Order VII Rule 11 C.P.C is primarily on the ground that the petitioner whose nomination was rejected, could not claim himself to be a candidate at the election, nor he was elector from the parliamentary constituency from where he filed his nomination and therefore, because of Section 81 of the Act, he is not competent to file the election petition.

Moreover, The pleadings made in this regard without furnishing material facts and particulars, being frivolous and vexatious, are liable to be struck off, in the exercise of power under Order 6 Rule 16 C.P.C.

The counsels on behalf of the petitioner countered that the said application and asserted that since he was not dismissed on the ground of corruption or disloyalty to the State, therefore, he would not fall within the ambit of Section 9 and 33 of the Act. There is the presumption that every nomination paper is valid, unless the contrary is prima facie obvious, or has been made out. The petitioner claimed for two prayers:
  1. One for striking off the pleadings of the election petition in the exercise of power under Order 6 Rule 16 CPC.
     
  2. The other for rejection of the petition under Order VII Rule 11 CPC. He has placed reliance on Rule 28 of General Rule Civil, which provides that separate application should be made concerning the distinct matter in contending that the application should be rejected for the said reason.
The counsels for the respondents stated that the argument is wholly misconceived in as much as both the prayers contained in the application filed by the respondent have to be decided on basis of assertions made in the election petition and not on basis of the stand taken by the petitioner in the counter affidavit.

The disqualifications are prescribed under Article 102 of the Constitution of India read with Section 8 of the Representation of the People Act, the manner of determination of the disqualification is not provided either by Article 102 of the Constitution of India or by Section 8 of the Act and in the absence of any positive requirement for the filing of an affidavit, the Returning Officer while exercising powers under Section 36 will have to act based on merely a declaration made in the nomination paper.

The necessity for issuing the directions by the Election Commission is to give effect to the provisions of Article 102(e) of the Constitution of India and Section 8 of the Act as a person so disqualified cannot be permitted to contest an election. The petitioner whom sufficient time was given for filing the affidavit has chosen not to file the affidavit as required by the Election Commission and it was willful defiance on his part and it cannot be said that he was a duly nominated candidate and has locus standi to file an election petition.

As the petitioner was not a duly nominated candidate under the provisions of the Representation of the People Act and the Constitution of India, he has no locus standi to file the instant Election Petition. It is accordingly rejected at the preliminary stage
 
Critical Analysis
There is a presumption that every nomination paper is valid unless the contrary is prima facie obvious or has been made out. In case of a reasonable doubt as to the validity of a nomination paper, the benefit of such doubt must go to the candidate concerned and the nomination paper should be held to be valid.

Remember that whenever a candidate's nomination paper has been improperly rejected and he is prevented thereby from contesting the election, there is a legal presumption that the result of the election has been materially affected by such improper rejection and the election will, therefore, be set aside.

Further, The case of the petitioner was that even if he has not been nominated as a candidate, but he would fall in the category of a candidate who claims to have been duly nominated under the second part of the definition of candidate. Therefore, he would still have the locus to maintain the election petition.

However, the issue as to whether petitioner was dismissed from service on the ground of disloyalty or corruption and whether the Returning Officer was justified in rejecting the nomination do not fall in the realm of the procedure, but invades his right to file election petition, therefore has to be decided by this court after full-fledged trial. The petition cannot be thrown out at the threshold.

It is also to be noted that Yadav was already a target by the Government since in 2017, he released a video on how the Army personnels are served poor quality food which lead to huge furore. He was lead to court martial enquiry and all these incidents could be the consequence of being dismissed from the service.

Conclusion
Because of the authoritative pronouncements of the Allahabad Court the petitioner cannot be regarded as a person who had been nominated or can claim to have been duly nominated as a candidate at the election in question.

His nomination papers were thus rightly rejected by the returning officer and the petition on his behalf is, therefore, not maintainable. Neither of the petitioners was a "candidate" as the said expression is defined in Section 2(d) of the Act since neither of them had been duly nominated nor could he claim to have been nominated as a candidate since the nomination papers filed by both of them did not comply with the mandatory requirements of Section 5 B (1)(a) of the Act and the nomination paper of Petitioner was filed without complying with the requirements of Section 5 B (2) of the Act. On that view, the petitioners had no locus standi to maintain the petition. Now the order is challenged in Supreme Court. Time will decide the pronouncement. 

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