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Chief Justice's Court

Case :- ELECTION PETITION No. - 5 of 2014

Petitioner :- Dr. Raj Kumar Upadhyay

Respondent :- Jagveer Kishor Jain And 6 Others
Counsel for Petitioner :- In Person,N.K.Pandey,Sudha Pandey
Counsel for Respondent :- Ravi Kiran Jain,Ankit Kr.Rai,K.R.
Singh,Pankaj Agarwal,Som Veer

Hon'ble Govind Mathur,Chief Justice

Though the instant one is the second application preferred by the

returned candidate as per provisions of Order VII, Rule 11 of the Code of
Civil Procedure on the same grounds, but I am inclined to entertain that as
the issue relating to cause of action touches the root of jurisdiction and it
is duty of the Court to ascertain whether it is clothed with the jurisdiction
or not. It is also well settled that trial of a case by a Court in the absence
of jurisdiction will be nothing but an abuse of legal process and further
that an erroneous determination of a question relating to jurisdiction of a
Court cannot be said to be final and such decision does not operate as res
judicata. (AIR 1971 SC 2355, Mathura Prasad Bajoo Jaiswal and
others Vs. Dossibai N.B. Jeejeebhoy and AIR 1987 Alld. 319, Har
Naraian Vs. Vinod Kumar).

The submission of learned counsel appearing on behalf of the

applicant is that in Shyamdeo Prasad Singh Vs. Nawal Kishore Yadav,
2000 (8) SCC 46 the Supreme Court held that inclusion of a person in the
electoral roll by an authority empowered in law to prepare the electoral
roll though they were not qualified to be enrolled cannot be a ground for
setting aside election of a returned candidate under Section 100(1)(iii) or
(iv) of the Representation of People Act, 1951 and in this election petition
the only allegation is about inclusion of ineligible person in the electoral
roll. It is asserted that in light of the legal position referred above, there is
no cause of action to be tried through the election petition.
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According to learned counsel for the applicant, the judgment of

Supreme Court in Shyamdeo Prasad Singh (supra) was neither cited nor
was otherwise looked into by the Court while deciding the earlier
application preferred under Order VII, Rule 11 of the Code of Civil
Procedure. In light of the law laid down in the case referred above, this
election petition is required to be rejected being not disclosing a cause of
action.

On going through the contents of election petition, it reveals that

the main allegation of the election petitioner is that a big number of votes
that materially affect the election have been received and counted in
favour of returned candidate and that is an apparent violation of the
provisions of Article 171(3)(c) of the Constitution of India. The grounds
taken to challenge the election is improper reception of void votes that
materially affect result of the election. Worthwhile to quote here Article
171(3)(c) of the Constitution of India that reads as under:-

“171(3)(c):- The total number of members of the

Legislative Council of a State having such a Council
shall not exceed [one-third] of the total number of
members in the Legislative Assembly of the State:-

(c) As early as may be, one-twelfth shall be

elected by electorates consisting of persons who have
been for at least three years engaged in teaching in
such educational institutions with the State, not lower
in standard than that of a secondary school, as may be
prescribed by or under any law made by parliament.”

The allegation with regard to violation of constitutional provision

aforesaid as mentioned in the election petition reads as follows:-

“That on the date of polling all the above

mentioned persons/teachers, the teachers having not
been engaged for three years on the qualifying date,
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non-teachers, graduate voters – who were included in

the Teachers Constituency Electoral Roll and the
retired teachers, casted their votes at the election in the
question, all of them casted their votes in the favour of
Respondent No.1.”

The contention of the election petitioner is that the electorates does

not possess the requisite constitutional eligibility to caste their vote in
light of the constitutional requirements and as such the cause of action
exists.

Having considered the provisions of Article 171(3)(c) of the

Constitution of India, I am of considered opinion that it is not a simple
case of challenge to an electoral roll or inclusion of a person in electoral
roll but acceptance of void electorate. Such a question certainly gives a
cause of action to be tried.

In view of it, the application is having no force, hence is dismissed.

The election petition be listed for framing of issues on 16 th January,

2020.

Order Date :-18.12.2019

Bhaskar

(Govind Mathur, C.J.)