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El.Pet. 1/2014 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM AND ARUNACHAL PRADESH) Election Petition No. 01 OF 2014 SHRI MUK PERTIN, SON OF LATE GOTE PERTIN, RESIDENT OF HOUSE NO.E-1071, PAPUNALLAH, PO & PS : NAHARLAGUN, DIST : PAPUM PARE, ARUNACHAL PRADESH. ………… Petitioner -Versus- SHRI LOMBO TAYENG, SON OF LATE TOSUR TAYENG, MOTUM VILLAGE, PO & PS : MEBO, DIST : EAST SIANG, ARUNACHAL PRADESH. ….…… Respondent BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN Advocates for the Petitioner : Mr. D Mazumdar, Sr. Advocate. Mr. PK Tiwari, Sr. Advocate. Mr. RJ Das, Advocate. Advocates for the Respondents : Mr. N Dutta, Sr. Advocate. Mr. S Bharali, Advocate. Mr. M Das, Advocate. Dates of Hearing : 08.04.2015, 28.04.2015 29.04.2015 & 05.05.2015 Date of Judgment : 25.05.2015 Election Pet. No. 1 of 2014 Page 1 of 43 Judgment & Order This petition under sections 80 & 80-A of the Representation of the People Act, 1951 presented under section 81 of the said Act, seeks a declaration that election of respondent from 39-Mebo (ST) Legislative Assembly Constituency of Arunachal Pradesh is void under section 98(b) read with section 100 (1) (c) of the said Act and further seeks quashing of order dated 25/26.03.2014, passed by the Returning Officer, 39-Mebo (ST) Legislative Assembly Constituency rejecting the nomination of the petitioner as improper. 02. Basic facts are not in dispute. However, for adjudication of the case, those are set out hereunder. 03. Notification dated 15.03.2014 was issued declaring holding of general election for constitution of a new Legislative Assembly for the State of Arunachal Pradesh giving details of the schedule of election as under: - i) Last date of filing nominations - 22.03.2014 (Saturday) ii) Date of scrutiny of nominations - 24.03.2014 (Monday) iii) Last date for withdrawal of candidature - 26.03.2014 (Wednesday) iv) Date of polling - 09.04.2014 (Wednesday) v) Date before which election should be - 28.05.2014 (Wednesday) completed. 04. Petitioner was nominated by the Bharatiya Janata Party (BJP) as its nominee for the 39-Mebo (ST) Legislative Assembly Constituency. Respondent was nominated by the Indian National Congress as its nominee for the said Constituency. Accordingly, both petitioner and respondent filed their respective nomination papers for the said Constituency. No other candidate filed nomination paper for the said Constituency. Election Pet. No. 1 of 2014 Page 2 of 43 05. On 24.03.2014, when the nomination papers of both the candidates were taken up for scrutiny by the Returning Officer, respondent filed an objection against the candidature of the petitioner. It was contended that petitioner being a Central Govt. Counsel for the Itanagar Bench of Gauhati High Court was holding an office of profit under the Govt. of India and, therefore, he was disqualified from being a member of the Legislative Assembly of Arunachal Pradesh. It was also contended that petitioner being a counsel for the Central Bureau of Investigation (CBI) in the Itanagar Bench of Gauhati High Court, was in full time employment of the Govt. of India, which also disqualified him from being a member of the Arunachal Pradesh Legislative Assembly. Petitioner submitted his written argument against the objection raised by the respondent. Petitioner stated that he was engaged as panel Central Govt. Counsel in the Itanagar Bench of Gauhati High Court and in such capacity, he was not entitled to retainer fee or salary. Such engagement was for a limited period of 3 years. Nature of engagement was such that petitioner also had right of private practice. Therefore, engagement of the petitioner as Central Govt. Counsel would not amount to holding of office of profit. It was further contended by the petitioner that such engagement of the petitioner even if held to be an office of profit stood exempted under paragraph 4 of the Schedule appended to the Arunachal Pradesh Legislature Members (Prevention of Disqualifications) Act, 1977. Regarding engagement of the petitioner as counsel for CBI, petitioner contended that the term of engagement as counsel for CBI was for a period of 3 years, which had expired on 02.03.2014, whereafter, petitioner did not seek extension and consequently, it was not extended. Thus, it was contended that petitioner was not holding office of profit under the Govt. and accordingly, the objection raised by the respondent should be dismissed. Election Pet. No. 1 of 2014 Page 3 of 43 06. On 26.03.2014, Returning Officer issued an order dated 25/26.03.2014 holding that engagement of the petitioner as Central Govt. Standing Counsel amounted to holding of office of profit within the meaning of Article 191 (1) (a) of the Constitution of India. It was further held that such office of profit was not exempted under paragraph 4 of the Schedule to the Arunachal Pradesh Legislature Members (Prevention of Disqualifications) Act, 1977 (1977 Act). Accordingly, nomination of the petitioner was rejected by holding him to be disqualified to be a member of the Arunachal Pradesh Legislative Assembly because of holding of an office of profit. 07. Thereafter certificate of election dated 26.03.2014 was issued by the Returning Officer declaring respondent as having been duly elected from 39- Mebo (ST) Legislative Assembly Constituency to be a member of the Arunachal Pradesh Legislative Assembly. 08. This led to filing of the present election petition by the petitioner. 09. Respondent has filed written statement. A preliminary objection has been raised as to the maintainability of the election petition on the ground that election petition has not been presented in accordance with the required provisions of the Representation of the People Act, 1951 (1951 Act), Conduct of Election Rules, 1961 and the Gauhati High Court Rules. It is stated that there is no report of the stamp reporter showing compliance of mandatory provisions of section 81 of the 1951 Act. Election petition was not scrutinized by the stamp reporter as required. Each and every page of the election petition has not been certified as true copy of the election petition. An averment has been made that Election Pet. No. 1 of 2014 Page 4 of 43 Annexure-5 to the election petition, which is a copy of the 1977 Act has been tampered with by inserting a slash or oblique in Sl. No.4 thereto between the words “any office under the Govt. which is not a whole time office” and “remunerated either by salary or fees”. On merits, it is stated that petitioner was holding the post of Central Govt. Counsel, which is an office of profit under the Govt. and, therefore, he was rightly disqualified from being chosen as a member of the Legislative Assembly of Arunachal Pradesh. Disqualification for holding such office of profit is not saved by the 1977 Act. At the relevant point of time, petitioner was the sole Central Govt. Counsel in the Itanagar Bench of Gauhati High Court and accordingly, he was in-charge of the entire litigation work on behalf of the Govt. of India in the Itanagar Bench. Order of the Returning Officer rejecting the nomination of the petitioner on account of his disqualification is correct. Contending that there is no merit in the election petition, it is submitted that the same should be dismissed. 10. On the basis of pleadings, this Court by order dated 03.11.2014 framed the following issues: - 1) Whether the election petition is maintainable in law? 2) Whether the order of the Returning Officer of the 39 Mebo (ST) Legislative Assembly Constituency rejecting the nomination of the election petitioner is dated 25.03.2014 or 26.03.2014? 3) Whether the election petition has been presented in accordance with law? 4) Whether there has been compliance with Sections 81, 82 and 83 of the Representation of People Act, 1951 in presenting the election petition? Election Pet. No. 1 of 2014 Page 5 of 43 5) Whether there is any tampering with Annexure-5 of the election petition? If so, whether such tampering with Annexure-5 which is a part and parcel of the election petition renders the instant election petition liable to be dismissed? 6) Whether the engagement of the election petitioner as Central Government Counsel by Government of India, Ministry of Law and Justice, Department of Legal Affairs is on the basis of the Order No.F.36(9)/2011-Judl. dated 20.6.2011 read with the terms and conditions contained in the said Department's Office Memorandum No. 26(1)/99 -Judl. Dated 24.09.1999 and in the Office Memorandum No. F.No.27(11)/99 -Judl. dated 24.09.1999 ? 7) Whether the disqualification of the election petitioner, if any, arising out of his engagement as Central Government Counsel stands removed under the provisions of Arunachal Pradesh Legislature Members (Prevention of Disqualifications) Act, 1977? 8) Whether election petitioner having held the post of Central Government Counsel for the Itanagar Bench of Gauhati High Court was holding an office of profit and thereby disqualified for being chosen as a member of the Legislative Assembly of the State of Arunachal Pradesh in terms of Article 191 (1) (a) of the Constitution of India? 9) Whether the order of the Returning Officer of No.39 Mebo (ST) Legislative Assembly Constituency in rejecting the nomination of election petitioner and in declaring the respondent as elected is legal and valid? 10) Whether the election of respondent is liable to be declared void under Section 100(1) (c) of the Representation of People Act, 1951? 11) To what relief(s) are the parties herein entitled to? 12) Who is entitled to the costs of the instant proceeding? 11.
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