IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 5 of 2010 Rajeev Gupta …………..Appellant. Versus Union of India and others. …Respondents. Mr. Pankaj Miglani, Advocate for the appellant. Ms. Menaka Tripathi, Advocate for respondent no. 1. Mrs. Anjali Bhargava, Advocate for respondent no. 2. Mr. H.M. Raturi, Advocate for respondent nos. 3 and 4. Mr. Paresh Tripathi, Advocate holding brief of Mr. V.B.S. Negi, Advocate for respondent no. 5. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. The appellant contested elections during the course of the Parliamentary General Elections-2009 from 5- Haridwar Parliamentary Constituency. One of the other candidates who had also contested for the same Parliamentary Constituency as the appellant was respondent no. 5. Respondent no. 5 succeeded in the electoral process and was declared elected by the Returning Officer/District Magistrate, Uttarakhand Parliamentary Constituency No. 5-Haridwear. The appellant has preferred an election petition so as to assail the election of respondent no. 5, which is pending consideration before this Court. It seems that the appellant could not digest the fact that the respondent no. 5 had been declared elected inasmuch as he was not satisfied just with the filing of election petition. The appellant, therefore, approached this Court by filing Writ Petition (MS) No. 1621 of 2009 seeking a writ in the nature of quo-warranto for the removal of respondent no. 5 by asserting that he was disqualified to hold the office of Member of Parliament. A 2 perusal of the pleadings in the aforesaid writ petition reveals that respondenmt no. 5 had subitted his nomination papers along with the other necessary required documents depicting his name as “Harish Chandra Singh Rawat”. Despite the aforesaid when the Returning Officer/District Magistrate, Uttarakhand Parliamentary Constituency No. 5-Haridwar declared respondent no. 5 elected, his name was depicted as “Harish Rawat” and not as “Harish Chandra Singh Rawat”. The controversy raised by the appellant was considered by a learned Single Judge of this Court, who vide an order dated 6.10.2009 dismissed the Writ Petition (MS) No. 1621 of 2009 by holding that the remedy to assail the election of respondent no. 5 was available to the petitioner only under the provisions of the Representation of the People Act, 1951, and as such, by invoking writ jurisdiction of this Court, the petitioner had availed a wrongful remedy. Dissatisfied with the order passed by the learned Single Judge on 6.10.2009, the appellant has approached this Court. Before learned counsel for the appellant could commence to address this Court, we made him aware that he was seemingly pursuing a case, which was not available to him in law and as such his action may be treated as an unacceptable abuse of the process of law. We informed him that in case we arrive at the conclusion that he was misusing the jurisdiction of this Court, he would be liable to exemplary costs. Despite the aforesaid, learned counsel for the appellant assisted this Court so as to render a decision on the controversy raised by him. First and foremost, learned counsel for the appellant invited our attention to the decision rendered 3 in University of Mysore Vs. Govinda Rao AIR 1965 SC 491 (V 52 C 80) and pointedly read out following observations recorded therein in paragraph 7: “(7) As Halsbury has observed*: “An information in the nature of a quo warranto took the place of he obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.” Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right.” The aforesaid judgment was read to us, so as to demonstrate the parameters of the scope of a writ of quo warranto. In fact, the aforesaid judgment came to be brought to our notice consequent upon our requiring the learned counsel for the appellant to inform us the statutory basis on which the appellant was seeking a writ in the nature of quo warranto, so as to assail the declaration of the election of respondent no. 5 to the 4 Parliamentary Constituency referred to hereinabove. From the observations of the Supreme Court noticed hereinabove, it stands reaffirmed that for assailing an appointment made to a public office writ in the nature of quo warranto would lie only if the appointment to such office had been made in violation of the prescribed statutory conditions. The next step adopted by the learned counsel for the appellant was to demonstrate the statutory provision, which has been violated in declaring respondent no. 5 as elected to the office of Member of Parliament. In this behalf our attention in the first instance was invited to Article 75 of the Constitution of India, which is reproduced hereunder: “75. Other provisions as to Ministers.—(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. (2) The Ministers shall hold office during the pleasure of the President. (3) The Council of Ministers shall be collectively responsible to the House of the People. (4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (5) A Minister, who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister. (6) The salaries and allowances of Ministers shall be such as Parliament from time to time by law 5 determine and, until Parliament so determines, shall be as specified in the Second Schedule.” Based on clause (4) of Article 75, it was the contention of the learned counsel for the appellant that before a Minister enters upon his office, the President of India shall administer an oath of affirmation to him in the form set out under Third Schedule appended to the Constitution itself. Thereafter reliance was placed on Article 99 of the Constitution of India, which is also being reproduced hereunder: “99. Oath or affirmation by members.—Every member of either House of Parliament shall, before taking his seat, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to a form set out for the purpose in the Third Schedule.” Based thereon learned counsel for the appellant again reiterated the contention advanced by him and read out to us the provision of Article 75 of the Constitution of India. Relying on the aforesaid two provisions, it was the submission of the learned counsel for the appellant, that the respondent no. 5 was administered his oath of office as “Harish Rawat” and not as “Harish Chandra Singh Rawat”, and as such, not only the administration of oath to him, but also his holding of office of Minister consequent upon his election as a Member of Parliament, is not sustainable in law. We have considered the submission of the learned counsel for the appellant as has been noticed in the foregoing paragraph. In spite of a perusal of Article 75 and 99 of the Constitution, to which our attention was drawn by the learned counsel for the appellant, we have not been able to ascertain as which part thereof has been 6 violated when respondent no. 5 was administered oath of office as “Harish Rawat”. Since it is not disputed at the hands of the appellant, that the very person, who submitted his nomination papers to contest election, and the very person who has been declared as elected, has been administered oath of office, we find nothing wrong with the oath administered to respondent no. 5. It is, therefore, not possible for us to accept the first contention advanced by the learned counsel for the appellant. The second contention advanced by the learned counsel for the appellant was based on the assertion that the person, who had contested the election was “Harish Chandra Singh Rawat”, whereas the person, who has been declared elected is “Harish Rawat”. According to the learned counsel “Harish Chandra Singh Rawat” and Harish Rawat” cannot be treated as one and the same person and as such the oath administered as “Harish Rawat” cannot be accepted as a valid oath in terms of the provisions of Article 75 and 99 of the Constitution of India in an electoral process, wherein “Harish Chandra Singh Rawat” and not “Harish Rawat” had contested the election. We have considered the second contention advanced by the learned counsel for the appellant. We, however, find no merit therein. It is not a matter of dispute that the appellant herein has assailed the election of respondent no. 5 through an election petition, which is pending before this Court. An election petition has been filed against the very person, who contested the election against the appellant and was declared elected. Whilst the appellant lost respondent no. 5 succeeded. It is, therefore, that the appellant has filed the election 7 petition contesting the election of respondent no. 5 in this Court. It is, therefore, not possible for us to accept that the person, who had been administered oath of office is not the same person, who had contested the election to the office, wherein the appellant had lost. Since it is not disputed at the hands of the appellant, that the very person who submitted his nomination papers to contest election, and the very person who has been declared as elected, has been administered oath of office, we find nothing wrong with the oath administered to respondent no. 5. The third contention advanced by the learned counsel for the appellant is, that the learned Single Judge erred in relegating the appellant to his remedy under the provisions of the Representation of the People Act, 1951. In this behalf learned counsel for the appellant invited our attention to Section 81 thereof. Section 81 of the Representation of the People Act, 1951 is being extracted hereunder: “81. Presentation of petitions.—(1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidates at the election and dates of their election are different, the later of those two dates]. Explanation.—In this sub-section, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. 8 [***] (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition [***] and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.] It is the pointed submission of the learned counsel for the appellant that the election of respondent no. 5 could be assailed by him only on the grounds depicted under Section 100 and 101 of the Representation of the People Act, 1951. And therefore, an election petition would lie so as to assail the election of respondent no. 5 only on one or more of the grounds available in Section 100 and 101 of the Representation of the People Act, 1951. It was submitted that the plea raised by him before this Court through Writ Petition (MS) No. 1621 of 2009, is not one of the grounds raised by him in the election petition. It is further submitted that the plea raised in the present writ petition/special appeal is not one of the grounds available to the appellant under Section 100 and 101 of the Representation of the People Act, 1951. As such, it is submitted that the learned Single Judge could not have validly relegated the appellant to a remedy under the provisions of the Representation of the People Act, 1951. The third submission advanced by the learned counsel for the appellant as has been noticed in the foregoing paragraphs seems to us to be absolutely absurd. It is by now well settled that a writ petition to assail the election of a person is not competent. The only remedy available to an individual who wishes to unseat an elected representative holding the office of a Member of Parliament is through an election petition under the 9 provisions of Representation of the People Act, 1951. Reference in this behalf may be made to the decision rendered in N.P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others AIR 1952 SC 64, as early as in the year 1952. The aforesaid position has remained unaltered till date. It is, therefore, that we do not find any merit even in the last contention advanced by the learned counsel for the appellant inasmuch as the only grounds to unseat an individual elected to an office can be those expressed in the Representation of People Act, 1951. The frivolous contentions advanced by the learned counsel for the appellant have been duly demonstrated by the grounds raised by him to assail the order passed by the learned Single Judge. It is, therefore, that he made another submission, after concluding the pleas dealt with hereinabove, namely that he be permitted to withdraw the instant Special Appeal. Having taken more than an hour of this Court’s time, it would not be appropriate to us at this stage to allow the appellant to withdraw the instant Special Appeal. The instant submission is accordingly also declined. In view of the fact that a clear indication was given to the learned counsel for the appellant at the commencement of the hearing of the instant appeal, that the pleas raised seemed to be prima – facie unaccepetable and absurd. The issue canvassed by him does not adversely effect the appellant, nor does it effect the public at large which has voted in favour of respondent no. 5 so as to return him as their elected representative for the Uttarakhand Parliamentary Constituency No. 5-Haridwar. We are, therefore, satisfied that while dismissing the instant Special Appeal 10 exemplary costs deserve to be imposed on the appellant. The instant appeal is accordingly dismissed with costs quantified as Rs. 50,000/-. Out of this costs, Rs. 10,000/- shall be paid by the appellant to the fund of the High Court Bar Association of Nainital and the receipt thereof shall be placed on the record of this case within one month from today. A sum of Rs. 20,000/- shall be paid as costs to respondent no. 5, who has unnecessarily been dragged to this Court twice over, first when he was required to contest Writ Petition (MS) No. 1621 of 2009, and yet again, when advance notices were given to respondent no. 5 on the filing of the present Special Appeal. Mr. V.B.S. Negi, Advocate who is present in this Court in person affirms that he represented respondent no. 5 by filing his Power of Attorney before the learned Single Judge, and has been required to represent respondent no. 5 on receipt of notice of the instant Special Appeal. A receipt thereof shall also be placed on the record of this case within the stipulated time. A sum of Rs. 20,000/- shall be paid by the appellant to the Legal Services Authority, Uttarakhand within the same period of time and the receipt thereof shall also be placed on the record of this case within the time stipulated. In case the receipt and token of costs are not placed in the file in the Registry of this Court within one month from today, the instant Special Appeal shall be re-listed before this Court for enforcement of the payment of costs. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J) 10.2.2010 Avneet