The State of Haryana and another vs Karnail Singh

G.R. Majithia, J.—The Haryana Legislative Assembly (Allowances and Members) Act, 1975 (for short, referred to as ''the Act'') was enacted to provide allowances and pension to the members of the Haryana Legislative Assembly. The Act was amended by Haryana Act No.6 of 1977 and after Section 6 of the principal Act Section 7-A was inserted to provide for pension to every person who has served for a period of five years, whether continuous or not, as a member By Haryana Act No, 29 (sic)of 1978 the Act was further amended and in Sub-section (1) of Section 7-A of Act No.6 of 1977 for the words "for a period of five years, whether continuous or not, as a member", the words "for any period up to five years as a member" was substituted. However, no pension was admissible during the period for which he was disqualified under the Representation of the People Act, 1951, or any other law for the time being in force.

Shri Karnail Singh was elected as a member of the Legislative Assembly of the erstwhile State of Punjab from Dabwali constituency in February, 1952. On reorganisation of the State of Punjab w. e. f. November 1, 1966 Dabwali constituency which was once represented by him became a part of the State of Haryana. He claims benefits in accordance with the provisions of Sections 7-A, 7-B and 7-C of the Act read with The Haryana Legislative Assembly (Allowances of Members) Rules, 1979. He represented to the Secretary, Haryana Vidhan Sabha for payment of pension and other facilities as admissible. His claim was denied on the ground that his election was declared void by the Election Tribunal, resultantly he could not said to be duly elected and it will be deemed as if he was never elected.

The writ petition was allowed by the learned Single Judge of this Court and the State has come up in appeal against his judgment.

The writ Petitioner was declared elected as a member of the Legislative Assembly of the erstwhile State of Punjab. His election was called in question by way of election petition u/s 80 of the Representation of the People Act, 1950 (for short, referred to as ''1950 Act''), inter alia, on the ground that nomination paper of one Sher Singh was improperly rejected. The election petition was accepted by the Election Tribunal vide order dated May 16, 1953 and the operative part of the judgment reads as under:

I am of the opinion that the nomination papers of Shri Sher Singh was improperly rejected and this improper rejection had materially affected the result of the election of Dabwali constituency and, therefore, the election of Shri Karnail Respondent, to this seat is declared wholly void.

The learned Single Judge took the view that if the ejection had not been set aside on the ground that nomination paper of one of the candidates was improperly rejected, the writ Petitioner would have continued as a member of Legislative Assembly for the full term. The election of the writ Petitioner was voidable and could be avoided by presenting election petition in accordance with Part III of 1953 Act. It was rendered void only when the election petition was accepted and declared as void.

For a proper appreciation of the question arising for adjudication, it will be useful to reproduce the relevant provisions of Sections 80, 84, 98 and 100 of the Representation of the People Act, 1951 (Act 43 of 1951) which reads as under:

Election Petitions:No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.

84-Relief that may be claimed by the Petitioner:A Petitioner may claim any one of the following declarations:

(a) that the election of the returned candidate is void;

(b) that the election of the returned candidate is void and that he himself or any other candidate has been duty elected;

(c) that the election is wholly void."

"98. Decision by the Tribunal:At the conclusion of the trial of an election petition the Tribunal shall make an order-

(a) dismissing the election petition; or

(b) declaring the election of the returned candidate to be void; or

(c) declaring the election of the returned candidate to be void and the Petitioner or any other candidate to have been duly elected; or

(d) declaring the election to be wholly void.

100-Grounds for declaring election to be void:(1) If the Tribudal is of opinion-

(a)...........

(b) ...

(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination the tribunal shall declare the election to be wholly void.

Section 100 of the 1950 Act contains the grounds for declaring the elaction to be void.Clause (c) of Section 100 of the Act dealt with the improper acceptance and rejection of nomination together and in the same manner. The effect of the said provision was that where the validity of election of any candidate was challenged on the ground that any nomination paper had been improperly accepted it had to be shown by the party challenging the election that by the said improper acceptance the result had been materially affected. The lame test is to be satisfied where the election was challenged on the ground that any nomination paper had been improperly rejected. In other words, where the infirmity on which the given election was challenged consisted of improper acceptance of the nomination paper or improper rejection of the nomination paper made no difference.

In view of the imperative nature of the provision, the election is to be "wholly" declared void.

The dictionary meaning of the word ''Void'' is "ineffectual, nugatory; having no legal force or binding effect: unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid" In ''Words and Phrases''(American), Volume 44, published by West Publishing Co., at page 319, it is stated thus:

A "void" thing is no thing; it has no legal effect whatsoever; and no rights whatever can be obtained under it or grow out of it. In law it is the same thing as if the void thing had never existed. Mobile County v. Williams, 61, 50, 963,965, 180 All. 639.

Thus, we have to assume that Shri Karnail Singh was never elected as a member of the Legislative Assembly. Clause (e) of Section 2 of the Act defines a member and it reads as under:

(e) "member" means a member of the Assembly other than the Minister, or the Speaker, or the Deputy Speaker.

In order to be a member of the Legislative Assembly the person must be validly elected to the Assembly. If he was not validly elected, he could not be deemed to be a member of the Assembly.

As observed above, the election of Shri Karnail Singh was declared void, resultantly he will be deemed to have never been elected to the Assembly. If he was never elected member of the Assembly, he will not be entitled to the priviliges under the Act

If the returned candidate whose election was wholly declared void bad taken oath as a member and withdrawn salary, it may be open to the State to direct the member to restitute the monetary benefits received by him. But it will not be open to the member to urge that since the State has not asked for restitution be can claim that he is entitled to the benefits as a matter or right. Section 7-A has to be read in conjunction with Clause (e) of Section 2 of the Act. The benefits will only be admissible if the member was validly elected.

The learned Single Judge in support of his conclusion relied upon Kirpal Singh, M.L.A. Vs. Uttam Singh and Another, In that case, the election of the returned candidate was set aside by the High Court on the ground that the nomination paper of one of the candidates was improperly rejected. The returned candidate took the matter to the Supreme Court. Before the Supreme Court could hear the appeal, three general elections had taken place in the State of Punjab. The Supreme Court refrained from expressing any opinion on merits whether the nomination paper was validly rejected. However, in the course of the judgment, the Apex Court was pleased to observe that in such typo of cases where the ejection has been set aside not for any fault of the returned candidate, the proper course would have been to grant an absolute stay. Nothing further was observed by their Lordships of the Supreme Court except it was suggested that the matter may be referred to the Law Commission for suggesting suitable amendment in the statute to deal with the situation where the election has been set aside on the ground that the nomination paper was either improperly accepted or improperly rejected. The judgment does not in any manner support the conclusion arrived at by the learned Single Judge.

The finding of the learned Single Judge that the writ Petitioner is entitled to the benefit of Sections 7-A, 7-B and 7-C of the Act is vitiated by the manifest error of law due to misconstruction of the said provisions. The order is set aside. However, we leave the parties to bear their own costs throughout.

Sd/- V. Ramaswami, C.J.