Karnail Singh vs State of Haryana and Another

The petitioner was elected as a Member of the Legislative Assembly of the erstwhile State of Punjab from Dabwali Constituency in Feb. 1952. That was the first election after the commencement of the Constitution. His election was challenged by way of an election petition before the Election Tribunal, Hissar u/s 80 of the Representation of the People Act, 1951 (for short called ''the 1951 Act''), inter alia, on the ground that the nomination papers of one Sher Singh had been improperly rejected. The election petition was accepted by the Election Tribunal vide order dt. May 16, 1953, the operative part of which is to the following effect: --

"We by majority opinion, hold that the nomination papers of Shri Sher Singh were improperly rejected and this improper rejection had materially affected the result of the election of Debwali Constituency, and therefore, the election of S. Karnail Singh respondent to this seat is declared wholly void...."

On reorganisation of the State of Punjab and on formation of the State of Haryana with effect from 1st Nov. 1966, Dabwali Constituency, which the petitioner once represented in the Legislative Assembly, became a part of the State of Haryana. It now falls in the Sirsa District of the State of Haryana. The petitioner is also an ordinary resident of village Haibu Anna, Tehsil Dabwali, District Sirsa.

The petitioner claims that he is entitled to payment of pension, free medical aid for himself and other members of his family and free travel by State owned vehicles in accordance with the provisions Sections 7 A, 7B and 7C of the Haryana State Legislative Assembly (Allowances and Pension of Members) Act, 1975 (for short ''the Act''), read with the Haryana Legislative Assembly Members (Pension) Rules, 1978.

The petitioner made a representation to the Secretary, Haryana Vidhan Sabha for payment of pension and other facilities, as admissible to him, and even sent notices of demand (Annexures P1 and P2). Reply dt. 25th June, 1986 (Annexure P3) was received by his counsel from the Secretary, Haryana Vidhah Sabha, stating that the petitioner was not entitled to any pension or other benefits like free medical aid, free travel by State transport etc. under the Act. Support was taken from the advice rendered by the Legal Remembrancer, Haryana, to the effect that a member, who can claim pension under the provisions of the Act, should be a duly elected member. When the election of a member is declared void, naturally he could not be said to be duly elected and it had to be presumed as if he was never elected. A subsequent representation (Annexure P4), made by the petitioner, received no positive response.

The petitioner claims that he was a duly elected member of the Legislative Assembly of the erstwhile State of Punjab. He subscribed to the oath referred to in Section 3(1) of the Representation of the People Act, 1951 and received his emoluments like Constituency Allowance etc., for the period he served as a member from Feb. 1952 to May, 1953. He, therefore, contends that his case squarely falls within Sub-section (1) of Section 7 A of the Act, because he served as a member as defined in Clause (e) of Section 2 of the Act. He prays for grant of a declaration that he is eligible to receive pension and other benefits under the aforesaid provisions of the Act and seeks issuance of a writ of mandamus, directing the respondents to pay pension and the related benefits to him with retrospective effect from the date of his eligibility i.e. 8th April, 1977, together with interest with effect from 24th Aug. 1978, at the rate of 12 per cent per annum, till the date of actual payment of the arrears of pension and related benefits.

The petition has been opposed by Respondents 1 and 2 and two separate written statements have been filed by them. The defence taken by them, however, is identical. It is maintained that the election of the petitioner to the Legislative Assembly was set aside by the Election Tribunal The net result of the order of the Election Tribunal, it correctly interpreted, is as if the petitioner was never elected as a member of the Legislative Assembly. His election was declared wholly void. He is, therefore, not entitled to pension and related benefits under the Act. It is further maintained that when the Election Tribunal declared the election of the petitioner as wholly void, it would be treated as void ab initio.

I have heard the learned counsel for the parties. I am of the considered view that this petition must succeed. It is not in dispute that the petitioner was elected as a member of the Legislative Assembly of the erstwhile State of Punjab from Dabwali Constituency in the Assembly elections held in Feb. 1952. He subscribed to the prescribed oath and remained a member of the Assembly till his election was set aside by the order of the Election Tribunal dt. 16th May, 1953. The only question that has to be determined is whether on setting aside of the election of the petitioner, his election became void ab initib and he is not to be treated as having served as a Member within the meaning of Sub-section (1) of Section 7A of the Act.

It is no doubt true that Section 100 of the 1951 Act (as it then stood) lays down that if the Election Tribunal was of the opinion that any nomination had been improperly rejected the Tribunal shall declare the election of the returned candidate to be void. However, Section 80 of the 1951. Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part-III thereof. This would mean that had no election petition been presented to call into question the election of the petitioner, on the ground that nomination papers of another candidate, had been improperly rejected, and had his election not been set aside on acceptance of such a petition, his election would have been valid for all purposes and he would have continued to serve as a Member of the Legislative Assembly for the full term. Thus it is clear that election of the petitioner was voidable and could be avoided by presenting an election petition in accordance with Part-III of 1951 Act. It was rendered void only when the election petition was accepted and the election was declared as void.

A similar question was debated upon before the Election Tribunal, Allahabad, in Braj Naresh Singh v. Hukam Singh (1954) 9 Ele. LR 80, and after a detailed discussion it was held that the mandate of the Constitution clearly shows that an election which can be avoided under the 1951 Act is only voidable and not absolutely void. It is rendered void only when it is declared to be void on acceptance of an election petition. I need not dilate on the question what is void and what is voidable. It is the settled law that a transaction which is voidable is rendered void when the Court by a decree declares it so. It is not void ab initio.

The matter can be examined from another angle also. Sub-section:(1A) of Section 7 of the Act provides: "No pension shall be admissible under Sub-section (1) to a member in respect of the term and during the period for which he is disqualified under the Representation of the People Act, 1951, or any other law for the time being in force." It is by now well settled that the period of disqualification of six years provided by Section 8 A, where a person is found guilty of a corrupt practice, is to be counted from the date of the order of the Election Tribunal or the High Court, as the case may be. The Legislature in its wisdom while enacting Sub-section (1A) considered it proper to disentitle a member to payment of pension not only for the period for which he is disqualified under the provisions aforementioned, but also in respect of the term of his membership for which he was disqualified. This means that he is not entitled to pension even for the period from the date of his election till the date of the setting aside of his election by the judgment or order of the Election Tribunal or the High Court. There is, however, no similar provision made in respect of a member whose election is set aside on the ground that nomination of another candidate had been improperly rejected. It can thus safely be deduced that the Legislature intended to provide for payment of pension to a member whose election is set aside and declared void in a situation as that of the petitioner.

I can also with advantage refer to a recent judgment of the final Court in Kirpal Singh, M.L.A. Vs. Uttam Singh and Another, . It was observed that where an election is set aside for no fault of the candidate, such as corrupt practice committed by him or his agent or a disqualification suffered by him, but on the ground that someone else''s nomination had been improperly rejected, the more appropriate interim order would perhaps be to grant an absolute stay so that the constituency may not go unrepresented for no fault of either the elected or those who elected during the pendency of the Appeal. Since the appeal was decided long after expiry of the term of the Assembly, their Lordships held that the appellant will receive his remuneration for the period for which he was elected as a legislator. The clear inference from these observations is that where election of a member is set aside on the ground that nomination of another candidate had been wrongfully rejected, he is to be treated to have served as a Member from the date of his election till the date he ceases to be such a member.

In view of the discussion above, I hold that the petitioner is a person who has served as a ''member'' within the meaning of Sub-section (1) of Section 7-A of the Act, of the Legislative Assembly of the erstwhile State of Punjab, which finds mention in Sub-section (4) thereof. He is, therefore, entitled to payment of pension with effect from 8th April, 1977 at the rate of Rs. 500/- per mensem. He is also entitled to free travel and medical facilities as provided by the Act.

As a result of the above, I allow this writ petition and direct the respondents to pay to the petitioner pension at the rate of Rs. 500/- per mensem with effect from 8th April, 1977 along with interest at the rate of 12 per cent per annum with effect from 24th Aug. 1978 till the date of actual payment of the arrears of pension. I further direct the respondents to pay the arrears of pension and start paying future pension to the petitioner within three months from today. The petitioner shall also get costs of this writ petition, which are assessed at Rs. 1,000/-.