The three-judge bench of Chief Justice S. A. Bobde and Justices A. S. Bopanna and V. Ramasubramanian on Tuesday(24/11/2020) dismissed a plea filed by ex-border Security Force (BSF) Constable, Tej Bahadur challenging the election of Prime Minister Narendra Modi from the Varanasi constituency in the Lok Sabha elections held last year.(Tej Bahadur v. Shri Narendra Modi)
Tej Bahadur had filed a petition before the Allahabad High Court to set aside PM Modi’s election since his own nomination as Samajwadi Party’s candidate from Varanasi had been rejected by the election commission.
The Allahabad High Court after hearing parties, by a detailed order, dismissed the Election Petition on the ground that the appellant had no locus to challenge the election of the respondent from the Varanasi
Parliamentary Constituency since the appellant was neither an elector for such constituency nor was he a candidate.
This special leave petition was filed before the Supreme Court challenging the judgment passed by the Allahabad High Court in December 2019 dismissing Tej Bahadur's election petition on the ground of lack of locus standi.
The SLP contended that the High Court had failed to appreciate the misuse of provisions under Sections 9 and 33(3) of RPA by the District Election Officer.
Mr. Pradeep Kumar Yadav, learned counsel appearing on behalf of the appellant placed reliance on the proviso of sub-section (5) to Section 36 of the Act. It is his contention that where an objection is raised by the Returning Officer on the nomination paper, the candidate concerned should be allowed time till next day but one to rectify the same. Such time was not permitted and as such the
rejection of the nomination is contrary to law. In spite of repeated query, learned counsel failed to point out any evidence on record to
show that the appellant had demanded time to produce the certificate not later than the next day but one following the date fixed for scrutiny.
Mr. Harish N. Salve, learned senior counsel appearing for the respondent contended that the phrase employed in the proviso is “may be allowed time” and as such the time to be provided is at the discretion of the Returning Officer and the appellant cannot claim any manner of right. It is clear that there could be no occasion for a person to be allowed time where he has not demanded any such time. This contention on behalf of the appellant must be rejected.
The term ‘candidate’ is defined in Section 79 (b)4 of the Act. The first part of definition is intended to cover a person who has been duly nominated as a candidate. Inter-alia the second part covers a person who considers himself entitled to have been duly nominated as a candidate.
"It is a condition for a valid nomination of a person who has been dismissed from service, that the nomination paper must be accompanied by a certificate to the effect that the person seeking nomination has not been dismissed for corruption or disloyalty to the State. Section 33(3) of the Act itself provides the consequence of the absence of such certificate and that is that such a person 'shall not be deemed to be duly nominated as a candidate'".
Stating that it was imperative as per the language of Section 33(3) for the dismissed officer's nomination to be accompanied with a certificate in order to be "deemed to be a duly nominated candidate", the Court held that "it would, therefore, be absurd to construe the legislative scheme as permitting a person who has not filed his nomination in accordance with Section 33(3), as enabling him to claim that he is a duly nominated candidate even though the provision mandates that such a person shall not be deemed to be a duly nominated candidate".
"In this case, the election is to the Varanasi Parliamentary seat. Obviously, the appellant is not an elector of Bhiwani, Mahendragarh Parliamentary Constituency, Haryana. His locus thus depends entirely on the question whether he is a candidate or can claim to be a duly nominated candidate", the court observed.
The court found that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467, V.R. Krishna Iyer J., speaking for this Court held that if on a meaningful-not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, it should be nipped in the bud at the first hearing.
Supreme Court held: "Section 83 of the Act allows only an elector or candidate to maintain an Election Petition. Impliedly, it bars any other person from filing an Election Petition. In this sense the Election Petition can also be set to be barred by Section 81 read with Section 86(1) of the Act.
We are, therefore, of the view that the present Election Petition has been rightly nipped in the bud. The Civil Appeal is, therefore, dismissed."
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