Jai Narayan Prasad Nishad vs The Union of India and Others

Ajay Kr. Tripathi, J.—The disqualification incurred by the petitioner, a Rajya Sabha Member, under Tenth Schedule of the Constitution of India as declared by Chairman, Rajya Sabha contained in Annexure-14 is under challenge in the present writ application. The impugned order is dated 26.3.2008. The order has disqualified the petitioner from being a Member of the House for breach of paragraph 2(1 )(a) of the Tenth Schedule of the Constitution of India. Petitioner, therefore, has ceased to be a Member of the Rajya Sabha with immediate effect. I.A. No. 3416 of 2008 has now been filed and is being pressed by the petitioner to stay the notice of election, if not the election itself which is being held for filling up of the seat caused by removal of the petitioner. His contention is that his writ application will become infructuous if the election is not stayed forthwith.

The notification announcing the election was issued on 9th June, 2008. The date fixed for election is 26th June, 2008. The present Interlocutory Application asking for stay of the election process, if not the election itself, has been filed on 23.6.2008.

Submissions are made by learned Senior Counsel appearing for the Union of India that there is no occasion to grant any stay of the election at this stage for more than one reason. His primary contention is that the law on this issue is quite clear and the principle laid down by the Hon''ble Supreme Court in the much celebrated judgment of "Ponnuswami case" reported in AIR 1952 S.C. 64 is a complete answer for the petitioner''s prayer for stay of election. Once the election process has begun by issuance of notification on 9th June, 2008 there is no occasion to stay the election when the voting is scheduled for tomorrow i.e. 26th June, 2008. He also touched upon the merit of the case but the Court is not taking cognizance of the same because the writ application will have to be heard and decided on its own merit as and when the occasion arises. The Court is also not willing to go into that aspect of the matter least it in any manner cast a reflection on the merit or otherwise of the writ application.

The Court has perused the record and is constrained to record that after the order of disqualification came to be passed on 26.3.2008 and the writ application challenging the same was filed on 10.4.2008, the prayer for stay of the impugned order was made but no prayer restraining the Election Commission from taking steps from filling up of the vacancy was made. The present I.A. No. 3416 of 2008 demanding the said relief ought to have been made before the notification dated 9th June, 2008 was issued for the Court to consider the prayer. That being the factual position, it is difficult for this Court now, at this belated stage and in view of the constitutional mandate and bar under Article 329 (b) of the Constitution of India to grant relief. I.A. No. 3416 of 2008 is hereby rejected.