Heard Shri S.N. Tripathi, petitioner in person, Shri O.P. Srivastava, learned counsel for Election Commission of India, opposite party no. 1, Shri I.H. Farooqui, Assistant Solicitor General of India on behalf of opposite party no. 2 and Shri Kapil Dev, Senior Advocate on behalf of opposite party no. 3.
By means of present petition, the petitioner has challenged the validity of the election of Shri Shyam Kishor Shukla (opposite party no. 3) under Section 81 of the Representation of the People Act, 1951 (hereinafter referred to as the "R.P. Act, 1951") on the grounds specified under Section 100 (1)(a) and (c ) and (d)(i) and (iv) of R.P. Act and seeks a declaration of election of opposite party no. 3 as void under Section 98(b) of R.P. Act, 1951, specifically on the following grounds :
(a) being a nominee of an association opposite party no. 4 vide his nomination papers at Annexures No. 5 to 7, opposite party no. 3 is, on the date of his Election, not qualified to be chosen to fill the seat of 86, Lucknow (West ) Assembly Constituency in U.P. within the meaning of Article 173 of the Constitution for short, "Art." and Section 5 of R.P. Act, attracting Section 100(1) (a) and Section 100(i) (d) (iv).
(b) being a nominee of an association opposite party no. 4 as claimed vide Annexures No. 5,6,7, opposite party no. 3 is not entitled to be nominated as a candidate within the meaning of Section 32 of R.P. Act read with the definition of the expression "Candidate" under its Section 79 (b) and of the expression "electoral right" under its Section 79(d), and his nomination paper was therefore liable for mandatory rejection under its Section 36(2) (a) and (b), but instead of rejection, it was improperly accepted by opposite party no. 2 which has materially affected his election result in the sense that, had opposite party no. 2 acted justly and fairly under Section 36 and more so, when the petitioner had made objection against his nomination vide Annexure-9, opposite party no. 3 could neither have become a contesting Candidate nor a returned Candidate and hence, Section 10(1)(d)(i) and (iv) aforesaid gets attracted.
(c) the nomination paper of the petitioner vide Annexure-4, was presented in strict conformity with Sections 32 and Section 33(7) (f) of R.P. Act and Article 173 of the Constitution read with Section 5(c) of this R.P. Act and was not liable to be rejected under its section 36; but opposite party no. 2 has improperly rejected petitioner's nomination on extraneous consideration and on the grounds which are alien to the said section 36 which is apparent on the face of his rejection Order at Annexure-12 read with Annexure-8 and 9 which attracts section 100(1) (c) aforesaid.
(d) this election was conducted in gross violation of the Gazetted Notification at Annexure-1 and beyond the provisions of Sections 2(1)(a), 2(1)(f), 5(c), 32, 33(7) (f), 36, 79 (b) and (d), and 169 (1) of this R.P. Act and of statutory Rule-4 of Rules 1961 (i.e. conduct of Election Rules, 1961); apart from the aforesaid, this election was conducted in gross violation of Article 173, 324 (1) and 327 of the Constitution;
and such violation of the aforesaid provisions have abriged, infringed, emasculated or abrogated the fundamental rights under Article 13 (2), 14, 19(1) (a), 19(1) (c ), 19(4) and 21- which attracts Section 100 (1) (d) (iv).
The Election Commission of India issued a notification dated 14.10.2009 for bye-election for the purpose of filling the vacancy in 86- Lucknow (West) Assembly Constituency, which was caused due to resignation of Shri Lalji Tandon and 21.10.2009 was fixed as the last date for making nomination. The scrutiny of the nomination was to be done on 22.10.2009 and 24.10.2009 was fixed as the last date for withdrawal of candidature. The poll was to take place on 07.11.2009 and the process of election was to be completed by 16.11.2009.
The submission of petitioner is that petitioner and opposite party no. 3, similarly sworn as Candidate as per provisions of Article 173 (a) (Annexures No. 2 and 3 to the writ petition) and were similarly placed before the provisions of Section 5(c), 32, 79(b) and (d) of this R.P. Act for making their respective nomination and were equally protected under the well settled principle of equality under Article 14 and 13(2) as determined in Smt. Indira Gandhi's case, were treated differently under the procedural form 2-B in Rule -4 of Rules, 1961, for nomination, in which, the opposite party no. 3, being a nominee of National Congress, was accorded favoured treatment, who was proposed by only one elector and his nomination paper was accepted. Whereas the petitioner who is a genuine and original candidate within the meaning of Article 173 and Sections 5(c), 32, 79 (b) and (d) of R.P. Act was treated differently, requiring him to have ten proposers, and for want of ten proposers, his nomination paper was rejected vide Annexure-12, which is improper. The acceptance of the nomination papers of opposite party no. 3 by opposite party no. 2 is grossly improper and in gross violation of Section 36(2) (a) of R.P. Act.
The opposite party no. 2 as per provision of Section 36(2)(a) was duty bound to ensure that nomination of opposite party no. 3 be presented in strict conformity with the express limitations provided under Article 173 and Section 5 of R.P. Act and opposite party no. 2 was reminded by the petitioner in this behalf vide objection dated 22.10.2009 (Annexure No. 9 to the writ petition). But the opposite party no. 2 improperly accepted the nomination paper of opposite party no. 3 without proper examination of relevant law and facts as required under Section 36(2) (a) and without application of mind and he has also not allowed the petitioner to speak a single word, thus the action of opposite party no. 2 is in violation of the statutory provisions of 36((2)(a) as well as in blatant defiance of principles of natural justice.
It is also submitted that the acceptance of nomination of opposite party no. 3 and the rejection of nomination paper of petitioner was improper as well as Form-A and Form-B supporting the nomination paper of opposite party no. 3 were not even on the prescribed forms within the meaning of Rule-4 of 1961 and they were not required to carry out the purpose of Section 32, which is substantive clause conferring substantive right to the individual person, and is only subject to the limitations of Article 173 and Section 5 and they are exercised and enforced under Section 100 and 36 as determined by Apex Court in Thevar's case, AIR 1959 SC 422 and the "person" as described in the said provision, does not include a body of persons as defined under Section 2(g) of R.P. Act, 1950 read with Section 2(1)(a) of R.P. Act, which means - "body of persons" have no locus or right under R.P. Act, 1951. It is also submitted that the rejection of petitioner's nomination is improper because procedural enactment and that too a "proviso" attached to the procedural clause of sub-section (1) of Section 33 of R.P. Act, cannot nullify the substantive right of the petitioner, derived from the substantive provisions of Section 32 and Article 173 read with sections 5 and 33 (7) (f). Further "political party" as defined under Section 2(1) (f) of R.P. Act, 1951 as construed in para-218 of AIR 1975 SC 2299 in Smt. Indira Gandhi's case cannot be read as "recognized political party". The word "candidate" as described in Section 32, 33(1), 33(7) (f) and 36 (2) and as defined under Section 79 (b) and (d) of R.P. Act, can neither be read as "Independent candidate" or "authorized candidate" because he is "Sworn Candidate" under Article 173 (a) read with para 218 of Smt. Indira Gandhi (supra) and a defined candidate under Section 79 (b). The proviso attached to sub-section (1) of Section 33 is clearly the result of non-compliance of Article 173, 327, 13(2), 14, 19(1)(a), 19((1) (c ), 19(4) and 21 attracting Section 100 (1) (d) (iv) of R.P. Act, 1951.
The opposite party no. 3, who is also similarly sworn candidate under Article 173 (a) as the petitioner, the opposite party no. 3 cannot be accorded favoured treatment by a procedural enactment and that too, by a "proviso" in sub-section 33 (1) and by a Rule and the nomination Form-2B, Form-A and Form-B, as it will be a non-compliance of the limitations in the rule-making power under Section 169 (1) of R.P. Act and besides that, it will be the violation of guaranteed rights under Article 13(2), 14, 19(1) (a), 19 (1) (c), 19(4) and 21 of the Constitution, attracting Section 100 (1) (d) (iv), which is the well settled proposition of law of Hon'ble Apex Court vide (i) AIR 1960 SC 368 in S.M. Banerji case and (ii) (1978) 1 SCC 405 in M.S. Gill case. The acceptance of nomination paper of opposite party no. 3 is absolutely improper being in gross violation of Section 36 (2) (a) and (b) of R.P. Act.
The petitioner also submitted that election of opposite party no. 3 is void because he being a nominee of a political party is not qualified to be chosen to fill this seat under Article 173 read with Section 5 of R.P. Act and being a nominee of a political party, he is not the person to be chosen by the constituency and he is not entitled to be nominated as candidate for his election vide Section 32 of R.P. Act. The opposite party no. 3 secured his nomination for his election at the behest of a non citizen and is not entitled to be chosen to fill the seat in question under Article 173. The opposite party no. 3 availed favoured treatment for his nomination in gross violation of Article 14, 19(1) (a), 19(1)(c), 19(4), 21 and 13 (2), which violates the well settled principles of free and fair election. The nomination paper of opposite party no. 3 was improperly accepted by opposite party no. 2 in gross violation of Section 36(2) (a) of R.P. Act, 1951 and nomination of petitioner was improperly rejected by opposite party no. 2 in gross violation of Section 36(2)(b) of R.P. Act, 1951 as well as his objection was rejected without application of mind by the opposite party no. 2 in gross violation of Section 36(2). The election was conducted beyond the provisions of R.P. Act, 1951, which violates the statutory directions under Annexure-I and thus, the election of opposite party no. 3 deserves to be declared void under Section 100 (1) (a), (c), (d) and (iv) of R.P. Act, 1951.
An application under Section 86(1) read with Section 81,82 and 83 of R.P. Act, 1951 and order VII Rule 11 C.P.C. for dismissal of election petition summarily has been filed by opposite party no. 3. In the preliminary objection to the maintainability of the election petition, it is submitted that the petitioner's election petition is liable to be summarily dismissed without being put to trial because of non-compliance of the mandatory provisions of the R.P. Act, 1951 as well as the provisions of Code of Civil Procedure, 1908. A separate application has also been filed, seeking summary dismissal of the election petition at the threshold due to absence of affidavit in Form 25 under Rule 94-A of the Conduct of Election Rules, 1961 read with proviso to Section 83(1) of the R.P. Act. It is also stated that the election petition contains allegations of corrupt practice under Section 123 of the R.P. Act, 1951. However, the petitioner has not filed the prescribed affidavit in Form 25 under Rule 94-A of the Conduct of Election Rules, 1961 i.e. the affidavit required by the proviso to Section 83(1) of the Act. In absence of the said affidavit in Form 25, the petition cannot be put to trial and is liable to be dismissed outrightly.
Further submission is that the allegations of the petitioner in paragraphs no. 3 to 11 are allegations of corrupt practice under Section 123 of R.P. Act, 1951 and the same are entirely frivolous, vexatious and incorrect allegations and are lacking in material facts and particulars. There is nothing to support the said allegations. It is also submitted that in view of the challenge in the petition to the vires of proviso to sub-section (1) of Section 33 of R.P. Act, 1951, the petition is liable to be dismissed outrightly for not being amenable to the jurisdiction of this Court. This is so for the reason that the jurisdiction of this Court to adjudicate an election petition is a creature of statute. Therefore, in exercise of the jurisdiction created by the R.P. Act, 1951, an election petition challenging the constitutionality of the said Act or any provision thereof is impermissible. A challenge in a Court to the statute that has created the jurisdiction of that court does not lie. Such a petition is in derogation of and is not even contemplated by the R.P. Act, 1951. Yet in the present petition, as is, inter alia, stated in paragraph 11-A (a), (d) and (e) of the petition, the petitioner has challenged proviso to sub-section (1) of Section 33 of R.P. Act, 1951 claiming it to be result of non-compliance of Article 173, 327, 13((2), 14, 19(1) (a), 19(1) (c), 19 (4) and 21 attracting section 100 (1) (d) (iv) of R.P. Act and in this background the petition itself is not maintainable and not amenable to the jurisdiction of this Court.
It is also submitted that challenge to vires of the provision of the Act is not a ground under Section 100 or Section 101 of R.P. Act, 1951 and the petition is, therefore, in violation of Section 81(1). The petitioner has further overlooked that for challenging the vires of a Central Act or a provision thereof, the Union of India is a necessary and proper party. Further challenge to the vires of provisions of R.P. Act, 1951, is not even contemplated and is not maintainable and as such renders the petition unsustainable. Even otherwise, in the absence of all the contesting candidates whose nominations were accepted by the Returning Officer as a prescribed party under Section 82 of the R.P. Act, the instant election petition is not maintainable. Although in paragraph -3 and 3-A, the Election Commission of India and the Returning Officer have been alleged to be guilty of trespass and transgression of their respective jurisdictions, but the petitioner has failed to implead the said trespasser and transgressor by name as a prescribed party under Section 82 of the R.P. Act and thus, the election petition is not maintainable.
Further the averments made in the petition shows that allegations made are vague, without any particulars and are not at all sufficient to set forth a ground for cancelling the election in question. The averments made in the petition do not constitute a ground on which the election is sought to be challenged and as such disclose no cause of action. It is also submitted that for the failure to make out any ground, the petition is liable to be dismissed outrightly as per the provision of Section 86 (1) of the R.P. Act, 1951 read with Order VII Rule 11CPC. The petitioner has alleged improper acceptance of nomination of opposite party no. 3 for claiming his election void. However, petitioner has not at all pleaded so as to substantiate that the result of election, in so far as it concerns returned candidate, has materially affected by alleged improper acceptance of nomination. This is in gross violation of Section 100 (1)(d) of the Representation of People Act, 1951 and the petition has not been presented on the ground specified under Section 100 (1)(d).
The petitioner has incorporated in the petition extracts of various judgments of Hon'ble Supreme Court, various provisions of law, various orders said to have been issued by Election Commission of India and proformas. Incorporation of all this in the petition is against the law of pleadings. Pleadings in some of the paragraphs made by the petitioner are frivolous and vexatious, besides being vague and unnecessary. The averments made by the petitioner in respect of the validity of proviso to sub-section (1) of Section 33 of R.P. Act are absolutely unnecessary and it is not open in an election petition to challenge the validity of R.P. Act, 1951 or any provision thereof. Further the Annexures No. 1 to 15 to the Election Petition are photocopies of the originals which are inadmissible in evidence. The election petition is no election petition in the eye of law, as provisions of Order VI Rule 2 C.P.C. and Order VII Rule 14 C.P.C. have not been complied with. The grounds raised for challenging the election are not those specified in sub-section (1) of Section 100 & Section 101 of R.P. Act, 1951. The grounds raised by the petitioner in the instant petition cannot be raised in an election petition.
The election was held according to the guidelines/orders issued by the State Election Commission before and during the course of election process. The election was held strictly in accordance with law and Rules. The election petition does not contain concise statement of material facts regarding the alleged irregularity committed in the election. The pleadings made in the instant election petition are in violation of Order VI Rule 2 C.P.C. The petitioner has also violated the provisions of Order VII Rule 14 (2) C.P.C., which lays down that where any such document is not in possession or power of the petitioner, he shall, wherever possible state in whose possession or power it is.
This Court while hearing the election petition acts as a tribunal and is not a court of general jurisdiction to consider questions outside the purview of the Act and the rules and orders framed/issued thereunder as also the guidelines issued from time to time. Section 100 and 101 of the R.P. Act, contains the grounds for declaring an election to be void and none of the paragraphs of the election petition contains pleadings or indicate the grounds for declaring the election to be void. The petition is liable to be dismissed with cost and damages under Section 35-A of C.P.C. and prayer has been made to summarily dismiss the petition under Section 86(1) of R.P. Act, 1951 at the threshold with exemplary cost and damages under Section 35-A of C.P.C.
Another application has been filed by opposite party no. 3 for summary dismissal of Election Petition at the threshold for the failure of petitioner to present the petition accompanied by an affidavit in form 25 under Rule 94-A of the Conduct of Election Rules, 1961 and proviso to Section 83(1) of the R.P. Act, 1951.
It is further submitted that Section 33 of the R.P. Act prescribes for presentation of nomination paper and requirement of valid nomination and each candidate is required to deliver his nomination paper either in person or through his proposer between the specified hours and at the place specified and notified in the notice issued under Section 31, duly completed in the prescribed form and signed by the candidate as well as by an elector of the constituency as proposer. The proviso to Section 33 (1) further provides that a candidate not set up by a recognized political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten persons being electors of the constituency. Shri Kapil Dev, Senior Advocate submitted that admittedly, the petitioner was an independent candidate and from the perusal of the nomination paper of the petitioner, it is evident that the mandatory requirement has not been fulfilled as the nomination paper of the petitioner was subscribed only by one proposer instead of ten proposers being elector of the constituency. The Returning Officer after scrutiny of the nomination paper of the petitioner, rejected the nomination of the petitioner on the said ground. In this background, it is submitted that since the petitioner was not proper candidate, therefore, the present petition as per the statutory provisions of Section 81(1) of the Act is not maintainable and deserves to be dismissed.
Shri Kapil Dev, learned counsel for opposite party no. 3 relied on the judgment of Election Petition No. 1 of 2008, Major S.N. Tripathi Vs. Election Commission of India, paras 9, 14, 15 and 16 as well as on the case reported in (2000) 1 SCC 145, Krishna Mohini Vs. Mohinder Nath Sofat, paras 27, 28,32, 33, 34, 37 and 38. He further drawn attention towards the nomination paper of the petitioner at page 40 and 41 of the paper book and submitted that petitioner is not a sponsored candidate of any political party and as per the provision of Section 33 (1) of the R.P. Act, nomination paper of the petitioner was required to be subscribed by ten persons of the constituency, but the same was proposed by only one person.
Further argument of learned counsel for opposite party no. 3 is that since the nomination paper of the petitioner was rejected and he was not a candidate, therefore, the petitioner cannot challenge the election of the returned candidate. In support of his submissions, he relied paragraphs 17, 18, 19, 20, 21 of the petition. Shri Kapil Dev also refereed to provision of Section 79 and 81 and submitted that an election petition can be filed by either any candidate at such election or by any elector, but the petitioner is neither a candidate nor the elector of the constituency. He has also drawn attention of this Court towards the pleadings of para 35 of the petition, in which it has been mentioned that the nomination was signed by only one elector as his proposer as required under the main procedural clause of Sub-section 1 of Section 33. Shri Kapil Dev further drawn attention towards Annexure no. 15 of the writ petition (page 67 of the writ petition) to demonstrate that the petitioner is elector of the constituency no. 169-Bakshi ka Talab whereas the constituency in dispute is 86-Lucknow (west) assembly constituency. Shri Kapil Dev further submitted that the elector has been defined in Section 2 (e), an "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of R.P. Act, 1950 and, therefore, the presentation of present petition by the petitioner is not maintainable as he is neither a candidate nor elector of the constituency no. 86 and, therefore, the present petition is not maintainable.
Shri Kapil Dev has also drawn attention of this Court towards page 7 of the petition (Para-4), which describes the cause of action of the petitioner as purely legal, but lacks material fact against all the opposite parties. It is also submitted that the petition without making averments regarding factual position and only on legal questions is not maintainable. It is further submitted that petitioner has not challenged his rejection, but grounds F and G have been taken and relied on the judgment of Election Petition No. 2 of 2007 and judgment of writ petition no. 9575/2009(P.I.L.) It is also submitted that vague allegation has been made in para 5 of the petition with respect to corrupt practices and in support of his submission he has placed reliance on the judgment of Hon'ble Apex Court in Anil Vasudev Salgaonkar Vs. Naresh Kushali Shingaonkar, 2009 AIR SCW 6812 and Pothula Rama Rao vs. Pendyala Venkata Krishna Rao & Ors reported in AIR 2007 SC 2924.
The further submission is that the candidature of the petitioner was rightly rejected on account of non-compliance of the mandatory provision of Section 33. There is no allegation of corrupt practices in para-5 of the petition as well as there is no material on record in support of his allegations. The cause of action has to be in pursuance to the provision of Section 100 whereas the petitioner says that his cause of action is purely legal (para-4) and discriminatory treatment to the candidates set up by political party and individual candidates.
Similarly, application under Section 86 (1) read with Section 81, 82 and 83 of R.P. Act, 1951 and order VII Rule 11 C.P.C. for dismissal of the election petition summarily as not maintainable and application for the failure of petitioner to present the petition accompanied by an affidavit in Form 25 under Rule 94-A of the conduct of Election Rules, 1961 & proviso to Section 83(1) of R.P. Act, 1951 have been filed by opposite party no. 2. In the aforesaid applications, it has been stated that in the instant election petition the petitioner has challenged the vires of proviso to sub-Section (1) of Section 33 of R.P. Act and hence the instant petition is liable to be dismissed outrightly for not being amenable to the jurisdiction of this Court, because the jurisdiction of this Court to adjudicate an election petition, is a creature of statute i.e. the Representation of People Act, 1951 and hence challenging the constitutionality of the said Act or any provision thereof is impermissible. A challenge in a court to the statute that has created the jurisdiction of that court does not lie and such a petition is in derogation and even not contemplated by the R.P. Act, 1951. Yet in the present petition, as is, inter alia, stated in paragraph 11-A (a), (d) and (e) of the petition, the petitioner has challenged proviso to sub-Section (1) of Section 33 of the R.P. Act, claiming it to be result of non-compliance of Article 173, 327, 13 (2), 14, 19 (1) (a), 19 (1) (c), 19 (4) and 21 attracting Section 100 (1) (d) (iv) of R.P. Act, 1951.
It is also submitted that apart from the said challenge to proviso to sub-section (1) of Section 33 being misconceived and untenable on merits, the petition itself is rendered not maintainable and not even amenable to the jurisdiction of this Court, due to the challenge to the vires of proviso to sub-section (1) of Section 33 of the Representation of People Act, 1951. The challenge to vires of the provision of the Act is not a ground under Section 100(1) or Section 101 of R.P. Act, 1951 and, therefore, the instant petition is in violation of Section 81(1) and is liable to be dismissed outrightly. Further, under Section 83 of R.P. Act, 1951, an election petition and schedules or annexures thereto are required to be signed and verified by the petitioner in the manner laid down for the verification of the pleadings in the Code of Civil Procedure, 1908. The petition has not been verified in accordance with the provisions of Code of Civil Procedure, 1908. Similarly, affidavit annexed to the petition has also not been verified properly. The verification of the petition and affidavit to the petition are different. The verification made by the petitioner is not a verification in the eyes of law.
The vires of the Central Act has been challenged without impleading Union of India, which is the necessary and proper party and in the absence of all the contesting candidates whose nominations have been accepted by opposite party no. 2 as prescribed party under Section 82 of R.P. Act 1951, the instant election petition is not maintainable.
Shri I.H. Farooqui, further submitted that though ground B has been taken against the acceptance of the nomination of opposite party no. 3, but no prayer has been made in this regard. Further attention was drawn towards Annexure no. 4 i.e. nomination paper of the petitioner, in which the petitioner in place of name of proposers, mentioned his grievance and name of only one proposer has been mentioned at the end instead at the prescribed place in the nomination paper. Neither rejection of nomination has been challenged nor any prayer has been made against the Returning Officer. As there is no prayer against the Returning Officer and he has been made unnecessary party in the petition, therefore, the present election petition deserves to be dismissed.
Shri O.P. Srivastava, learned counsel for Election Commission of India (opposite party no. 1) raised preliminary objection with respect to maintainability of the present petition on the ground that an election petition challenging any election can be presented on the grounds specified in sub-section 1 of Section 100 and Section 101 by any candidate at such election or by any elector. But the petitioner is neither a candidate nor the elector of the constituency in question. The second ground of challenge is on the basis of provisions of Section 82 of the R.P. Act, 1951 as the petitioner has not impleaded all the contesting candidates and in his support he placed reliance on the judgment of Jyoti Basu, 1982 (1) SCC 691, paras 9 and 13.
Further submission of Shri O.P. Srivastava is that in the prayer clause of the petition, the petitioner claims declaration of the election of the returned candidate to be void under Section 98(b) of the R.P. Act, 1951. Part VI of the R.P. Act, 1951 provides for dispute regarding elections and Section 79 (b) defines candidate "a person who has been or claims to have been duly nominated as a candidate at an election", Section 79(d) defines electoral right as the right of a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate, or to vote or refrain from voting at election. Chapter-II prescribes the manner in which election petition is to be filed. Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of this part and as per the provision of Section 81, an election petition calling in question any election may be presented on one or more of the grounds specified under sub-Section (1) of Section 100 and 101 by any candidate at any such election or by any elector. The explanation defines the "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.
The further submission is that as per the provisions of Section 82, the parties to the election petition can only be a candidate who is either returned candidate or who has filed nomination. No other party is required and as such the Election Commission cannot be made party to the petition. The petitioner has challenged the election of opposite party no. 3, but no election declaration has been sought either for himself or for any other candidate. The present petition is not maintainable on account of mis-joinder of parties. The petition is also liable to be dismissed under the provision of Section 86(1). It is also submitted by Shri O.P. Srivastava that amendment or correction is not permitted on account of mis-joinder of parties and election petition has to go on account of violation of provisions of Section 81 and 82. Shri O.P. Srivastava relied on the judgment of B. Sundram Rani Reddy Vs. Election Commission of India, 1991 (Supp.) 2 SCC 624 and Michael B. Fernandes Vs. C.K. Jafar Sharif, 2002 (3) SCC 521.
The petitioner in his reply submitted that the Election Commission is not necessary party. However, he has submitted that the judgment relied upon by Shri O.P. Srivastava, learned counsel for the Election Commission, relates to non-joinder of party and not of mis-joinder. Petitioner further submitted that if a person in excess has been made party, will not warrant dismissal of petition in limine. The petitioner placed reliance on the case reported in AIR 1964 SC 1545, Murkha Radhey Shyam Vs. Roop Singh Rathore, paras 6 and 7. He further submitted that mis-joinder is curable and not fatal to the petition and also placed reliance on the case reported in AIR 1984 SC 921, A.C. Jose Vs. Sivam Pillai, para, 1, 2, 3 and 4.
Shri O.P. Srivastava while replying to the submission of learned counsel for the petitioner, submitted that the judgement of Murkha Radhey Shyam (supra) relied upon by the petitioner relates to the provisions of Section 88 to 92, which has been deleted in the year 1966 and, therefore, present judgment does not apply and he again insisted that any mis-joinder in petition is fatal.
The petitioner while replying to the preliminary objections of opposite parties submitted that Section 33 of R.P. Act is procedural whereas Section 32 is mandatory. The procedural clause is given to harmonize the substantive clause. Sections 27 and 36 vest certain rights to the individual. Section 33 is to be read in harmony with Section 32. The petitioner relied on the judgment reported in 1999 (3) SCC 267, D. Ram Chandran Vs. R.V. Janki Raman and others and submitted that it is well settled that in all cases of preliminary objection, the test is to see as to whether all the reliefs prayed for, could be granted, If the averments made in the petition proved to be true for the purposes of considering the preliminary objection, the averments made in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue. As such, the Court cannot probe into the facts on the basis of controversy raised in the counter. The averments made in para-5 of the petition regarding rigging and manipulation is fully covered within the meaning of corrupt practices defined under Section 123(7) of the Act. Para-1 of the petition states ground of challenge and Ground (b) states that opposite party no. 3 is not entitled to be as candidate, further petitioner has raised only legal questions, therefore, legislative intent is to be examined and as to whether statutory provisions have been violated or not.
In support of his submissions, petitioner placed reliance on the judgment of Smt. Indira Nehru Gandhi Vs. Raj Narain, 1975 (Suppl) SCC 1, paras, 198, 200 and 206 and submitted that election should be a free and fair and not rigged and manipulated. It is also submitted that Shri Kapil Dev has rightly submitted that this is a case of discrimination as the petitioner and opposite party no. 3 were similarly placed as per the definition clause and hence are entitled to be treated equally. Further submission of the petitioner is that the petitioner born as candidate under the provisions of Section 173 (1) (a) of the Constitution of India. Candidate has been defined in Section 79(b) of the Act (Annexure No. 3). The oath of opposite party no. 3 does not indicate that he belongs to any political party. He further submits that Article 173 does not define any agent or any nominee of any political party notified by the Election Commission. Further Section 2(g) of the Act, does not include a body of persons.
It is further submitted that nomination can only be rejected on the ground mentioned under Section 36 of the Act. No exception can be used for rejection of nomination paper. The proviso to Section 33(1) hits the petitioner's statutory and constitutional right. It is also submitted that though proviso is valid but does not affect the right of the petitioner as a candidate. The Returning Officer rejected the nomination of the petitioner on the basis of hand book and manual of Election Commission and not on the basis of Section 36(2) as there is no mention in the same (Annexure No. 12). Hand book is not notified and not known to the petitioner. The petitioner also raised objection to the nomination of opposite party no. 3 (Annexure No. 9). It is also submitted that Returning Officer was required to examine the objection, but Returning Officer without application of mind, considered the objection of the petitioner against the nomination of other candidates. It is also submitted that Section 86 does not talk about section 33(1) and in the present case, the provisions of section 100 (iv) are attracted, as it is the case of non-compliance with the provisions of Constitution and R.P. Act.
Major S.N. Tripathi (petitioner) also submitted that mix question of law and facts cannot be decided as preliminary. It is also submitted that there is no concept of parties' symbol and 10th Schedule does not apply on citizen. Further Form A and Form B does not have sanction of law and it interfere in the free and fair election. It is also submitted that proviso to Section 33(1) cannot classify a candidate created by Article 173 of the Constitution. The petitioner stressed that proviso is void ab initio, nonest and is discriminating two candidates and action taken in pursuance thereof is also nullity.
The petitioner in support of his submission read out the ratio laid down in the following Cases.
(1) Dwarika Prasad Vs. Rameshwar Dayal Khandelwal, 2010 (13) SCC 569. (2) Ram Sukh Vs. Dinesh Aggarwal, 2009 (10) SCC 541. (3) Mahadev Sukaji Shivanker Vs. Ram Ratan Bapu, 2004(7) SCC 181. (4) Kunjan Nair Shivraman Nair Vs. Narayan Nair and others, 2004(3) SCC 277. (5) Shushil Kumar Vs. Rakesh Kumar, 2003 (8) SCC 673. (6) Jobintara Ghatowar Vs. Sarbanand Sonowal, 2003 (6) SCC 452. (7) Shaligram Srivastava Vs. Naresh Singh Patel, 2003 (2) SCC . (8) Makhan Lal Bangal Vs. Manas bhunia, 2001 (2) SCC 632. (9) D. Ramchandranan Vs. R.V. Janakiraman and others, 1999 (3) SCC 267. (10) Mohan Ravale Vs. Damoder Tatyabe and others, 1994 (2) SCC 392. (11) A.R. Antuday Vs. R.S. Naik & others, 1988 (2) SCC 602. (12) Birad Mal Singhvi Vs. Anand Purohit, 1988 (Supp) SCC, 604. (13) M.S. Gill Vs. Chief Election Commissioner of India and others, 1978 (1) SCC 405. (14) Smt. Indira Gandhi Vs. Raj Narain, AIR 1975 SC 2299. (15) Kesvanand Bharati Vs State of Kerala, 1973 (4) SCC 224. (16) Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathor, AIR 1964 SC 1545. (17) Major S.S. Khanna Vs. Brig. F.Z. Dhillon, AIR 1964 SC 497. (18) S.M. Banerji Vs. Shrikrishna Agarwal, AIR 1960 SC 368. (19) N.T. Veluswami Thever Vs. G. Raja Nainar, AIR 1959 SC 422. (20) Behram Khursheed Pasikaka Vs. State of Bombay, AIR 1955 SC 123.
Learned counsel for the opposite parties opposed the present Election Petition, thereby raising various preliminary objections regarding non-compliance of mandatory provisions of the R.P. Act, 1951, absence of affidavit in Form 25 under Rule 94-A of Conduct of Elections Rules, 1961 read with proviso to Section 83 (1) of the R.P. Act, lack of material facts and particulars in the petition, challenge of vires of proviso of Section 33 (1) of R.P. Act and the capacity of the petitioner to file the present petition as on the ground that neither he is candidate nor elector of constituency concerned etc. In order to examine the allegations/objections of the opposite parties and reply of the petitioner to the same, this Court examines the various provisions of the Act.
The provisions of Sections 33 and 36 of the Act insofar as relevant for the purpose, are extracted and reproduced here under :-
"33. Presentation of nomination paper and requirements for a valid nomination.-(1) On or before the date appointed under clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O' clock in the forenoon and three O'clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by a elector of the constituency as proposer:
[Provided that a candidate not setup by a recognized political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency;
Provided further that no nomination paper shall be delivered to the returning office on a day which is a public holiday:
Provided also that in the case of a local authorities' constituency, graduates' constituency or teachers' constitutency, the reference to "an elector of the constituency as proposer" shall be construed as a reference to ten percent of the electors of the constituency or ten such electors, whichever is-less, as proposers."]
36. Scrutiny of nominations.-(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the Returning Officer may appoint; and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.
(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds :-
(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely-
Articles 84, 102, 173 and 191.
Part II of this Act [and sections 4 and 14 of the Government of Union Territories Act, 1963.]; or
(b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3)............(not reproduced) (4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character."
The first and third provisos to sub-section (1) of Section 33 have been added by the Representation of the People (Amendment) Act, 1996 [Act 21 of 96] w.e.f. 1.8.1996. Prior to this, there was only one proviso which is now the second proviso in the present form.
In exercise of the powers conferred by Article 324 of the Constitution read with Section 29A of the Representation of the People Act, 1951 and Rules 5 and 10 of the Conduct of Elections Rules, 1961 and all other powers enabling it in this behalf, the Election Commission of India has issued the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the "Symbols Order", for short). This order provides for allotment of symbols to the contesting candidates, for classification of symbols into reserved symbol-reserved for exclusive allotment to contesting candidates set up by a recognized political party, and free symbol -which is a symbol other than a reserved symbol. Para 6 classifies political parties into recognized and unrecognized political parties. To be a recognized political party in a State, a political party must satisfy the conditions specified in clause (A) or clause (B) of sub-para (2) of Para 6 of the Symbols Order. A recognized political party may be a National party or a State party. A candidate set up by a recognized party in an election contest can choose only a symbol reserved for that political party. Candidates set up by political parties other than recognized ones and independent candidates are entitled to free symbols. A candidate other than a candidate set up by a recognized National or State Party in that State or a candidate set up by a State party at elections in other State, has to choose and to be allotted a free symbol. A free symbol chosen by only one candidate is to be allotted to him and to no one else. Where the same free symbol has been chosen by several candidates at such election the manner how the symbol shall be allotted as amongst those several candidates is laid down in sub-para 3 of para 12 of the Symbols Order.
Para 13 of the Symbols Order provides the conditions as to when a candidate shall be deemed to be set up by a political party as under:-
For the purposes of this Order, a candidate shall be deemed to be set up by a political party, if, and only if,-
(a) the candidate has made declaration to this effect in his nomination paper;
(aa) the candidate is a member of that political party and his name is borne on the rolls of members of the party;
(b) a notice in writing, in Form B, to that effect has, not later than 3 p.m. on the last date for making nominations, been delivered to the Returning Officer of the constituency and the Chief Electoral Officer of the State;
(c) the said notice is signed by the President, the Secretary or any other office bearer of the party and the President, Secretary or such other officer bearer authorised by the party to sent such notice;
(d) the name and specimen signature of such authorised person are communicated, to the Returning Officer of the constituency and to the Chief Electoral Officer of the [State or Union Territory concerned] not later than 3.00 p.m. on the last date for making nominations; and
(e) Forms A and B are signed, in ink only, by the said office bearer or person authorized by the party:
Provided that no fascimile signature or signatures by means of rubber stamp, etc., of any such office bearer shall be accepted and no form transmitted by Fax shall be accepted."
For the purpose of Symbols Order, as defined in clause (h) of Para 2, "Political Party" means an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Representation of the People Act, 1951. The scheme of the Symbols Order shows that it does not deal with unregistered political parties. It deals with registered political parties by sub-dividing them into recognized and unrecognized political parties and with independent candidates. To be entitled to the benefit of allotment of symbols reserved to a recognized political party, a candidate has to be one set up by a recognized political party and in a manner prescribed by Para 13 of the Symbols Order. The privilege enjoyed by a candidate set up by a recognized political party, as spelt out by a combined reading of Section 33 of the Act with the provisions of Symbols Order, is that his nomination paper is complete, inter alia, if proposed by an elector, (i.e., one only) of the Constituency. If the candidate be one not set up by a recognized political party, i.e., if he be a candidate set up by an unrecognized political party or be an independent candidate, his nomination paper must be subscribed by ten proposers being electors of the Constituency. Nomination paper filed by a candidate set up by an unrecognized political party or an independent candidate, cannot be proposed by a single elector of the Constituency or by electors less than ten.
Prior to the amendment in the body of the Act, introduced by Act No, 21 of 1996, which inserted, inter alia, the first proviso to sub-section (1) of Section 33 of the Act, the expression "recognized political party" was not to be found used in the Act. The Representation of the People (Amendment) Act, 1989 (Act No. 1 of 1989) introduced, w.e.f. 15.6.1989, Section 29A as also clause (f) in sub-section (1) of Section 2 of the Act. Section 2(l)(f) defines "political party" to mean an association or a body of individual citizens of India registered with the Election Commission as a political party under Section 29A. The latter provision lays down the manner of such registration. Symbols Order, 1968 divides `registered political parties' into recognized and unrecognized ones. For the purpose of Symbols Order as defined by Para 2(1 )(h) thereof, `political party' is a political party registered with the Commission under Section 29A of the Act. The Act does not define recognized political party. In the aforesaid background, the expression "recognized political party" as occurring in first proviso to sub-section (1) of Section 33 of the Act has to be assigned the same meaning as assigned to it by the Symbols Order.
In view of the above, it is clear that setting up or otherwise of a candidate by a recognized political party is an integral part of the scheme of sub-section (1) of Section 33 of the Act and hence an essential requirement of a valid nomination paper. A candidate, who claims to have been set up by a political party, but fails in substantiating such claim, would be deemed to have not complied with the provisions of sub-section (1) of Section 33 of the Act. He would attract the wrath of clause (b) of sub-section (2) of Section 36 of the Act resulting in the rejection of his nomination paper.
The historical background and the Objects and Reasons leading to the issuance of the Symbols Order have been traced and set out by Apex Court in the case reported in AIR (1972) SC 186 (Sadiq Ah and Anr. V. The Election Commission of India, New Delhi and others) vide paras 17 and 18. The same read as under :-
"17. Perusal of the different paragraphs of the Symbols Order makes it manifest that they provide, as is made clear by its preamble, for specification, reservation, choice and allotment of symbols at elections in Parliamentary and assembly constituencies as well as for the recognition of political parties in relation thereto and for matters connected therewith.One such matter is the decision of a dispute when two rival sections or groups of a recognized political party claim to be that party for the purpose of the Symbols Order.
18..............It may be pertinent to find out the reasons which led to the introduction of symbols. It is well known that overwhelming majority of the electorate are illiterate. It was realised that in view of the handicap of illiteracy, it might not be possible for the illiterate voters to cast their votes in favour of the candidate of their choice unless there was some pictorial representation on the ballot paper itself whereby such voters might identify the candidate of their choice. Symbols were accordingly brought into use. Symbols or emblems are not a peculiar feature of the election law of India. In some countries, details in the form of letters of alphabet or numbers are added against the name of each candidate while in others, resort is made to symbols or emblems. The object is to ensure that the process of election is as genuine and fair as possible and that no elector should suffer from any handicap in casting his vote in favour of a candidate of his choice. Although the purpose which accounts for the origin of symbols was of a limited character, the symbol of each political party with the passage of time acquired a great value because the bulk of the electorate associated the political party at the time of elections with its symbol."
In N.T. Veluswami Thevar v. Raja Nainar and Ors,, AIR (1959) SC 422, the Hon'ble Apex Court has held that there can be no rejection of nomination paper outside sub-section (2) of Section 36, Under S. 32 of the Act, any person may be nominated as a candidate for election if he is duly qualified under the provisions of the Constitution and the Act-Section 36(2) authorizes the Returning Officer to reject any nomination paper on the ground that he either is not qualified or is disqualified for being chosen under the provisions referred to therein. If there are no grounds for rejecting a nomination paper under S, 36(2), then it has to be accepted, and the name of the candidate is to be included in a list of validly nominated candidates vide Sec. 36(8).
The distinction between nomination filed by a candidate set up by a recognized political party and a candidate not set up by a recognized political party is precise. A perusal of first proviso to sub-section (1) of Section 33 of the Act makes it clear that a candidate not set up by a recognized political party, meaning thereby a candidate set up by an unrecognized political party or an independent candidate, in order to be duly nominated for election must have his nomination paper subscribed by ten proposers being electors of the Constituency. If such nomination paper be subscribed by only one elector as proposer or by a number of electors less then ten, then it will amount to non-compliance with the provisions of Section 33. In order to be a candidate set up by a registered and recognized political party so as to take advantage of being proposed by a single elector, all the six requirements set out in clauses (a), (aa), (b), (c), (d) and (e) of Para 13 of the Symbols Order must be satisfied. If any one or more of the requirements are not satisfied, the benefit of nomination being proposed by a single elector is not available to him.
A candidate may be aspiring for being set up by a recognized political party. He can pin his hopes for being sponsored by such political party upto the hour by which the time for filing the nomination papers expires. If he fails to obtain such sponsorship by the recognized political party in accordance with the provisions contained in Para 13 of the Symbols Order, then he has the choice of continuing his candidature as an independent candidate subject to his satisfying the requirement of having been proposed by ten electors of the Constituency and other requirements as to the validity of a nomination paper. If he does not withdraw his candidature, then he would be a candidate validly nominated. Such a candidate who has not been able to secure sponsorship by a recognized political party at the time of filing his nomination papers but is still hopeful of securing such sponsorship, has the choice of filing nomination papers more than one. In one of the nomination papers subscribed by one elector of the Constituency he may declare himself to have been set up by a recognized political party. He may file yet another nomination paper declaring his candidature as an independent subscribed by ten electors of the Constituency as proposers. A single nomination paper though containing a declaration by the candidate of his having been set up by a recognized political party, may itself be subscribed by ten electors of the Constituency as proposers. In either case, his nomination would be valid insofar as the aspect of proposing is concerned.
Consequent upon amendments having been made in the Representation of the People Act, 1950 and 1951 by the Amendment Act, 1996 (Act No. 21 of 1996) w.e.f. 01.08.1996, the Election Commission of India issued guidelines from time to time for Returning Officers, contained in the Handbook for Returning Officers the relevant Hand Book of 2009, vide paras- 10.3 (iii), 10.3 (iv) and 10.3 (vii) of Chapter VI, which read as under, provides:-
"10.3 (iii) If a candidate has filed one nomination paper with both Parts I & II thereof filled and he fails to bring notice in Forms 'A' and 'B' from the authorized officer-bearer of the concerned political party, the nomination paper may be accepted if part II is properly filled and subscribed by ten electors as proposers, as there will be substantial compliance with the provisions of Section 33 of the Representation of the People Act, 1951.
The mechanism set-forth in the R.P. Act and Rules and the Symbols Order of 1968 read with Form 2B makes it explicit and clear that a candidate can contest election as a representative of a political party. More or less identical argument came up for consideration in Kanhiya Lal Omar Vs. R.K. Trivedi, (1985) 4 SCC 628 and Their Lordships while considering the entire scheme of the Act and Symbols Order of 1968 also considered the definition of political party as defined in clause 2(1)(h) of the Symbol Order of 1968 and held in para 10 as under:-
"It is true that till recently the Constitution did not expressly refer to the existence of political parties. But their existence is implicit in the nature of democratic form of Government which our country has adopted. The use of a symbol, be it a donkey or an elephant, does give rise to an unifying effect amongst the people with a common political and economic programme and ultimately helps in the establishment of a Westminster type of democracy which we have adopted with a Cabinet responsible to the elected representatives of the people who constitute the Lower House. The political parties have to be there if the present system of Government should succeed and the chasm dividing the political parties should be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure. It is no doubt a paradox that while the country as a whole yields to no other in its corporate sense of unity and continuity, the working parts of its political system are so organized on party basis - in other words,"on systematized differences and unresolved conflicts". That is the essence of our system and it facilitates the setting up of a Government by the majority. Although till recently the Constitution had not expressly referred to the existence of political parties, by the amendments made to it by the Constitution (Fifty-second Amendment) Act, 1985 there is now a clear recognition of the political parties by the Constitution. The Tenth Schedule to the Constitution which is added by the above Amending Act acknowledges the existence of political parties and sets out the circumstances when a member of Parliament or of the State Legislature would be deemed to have defected from his political party and would thereby be disqualified for being a member of the House concerned. Hence it is difficult to say that the reference to recognition, registration etc. of political parties by the Symbols Order is unauthorised and against the political system adopted by our country."
The right to contest the election is statutory right. Contesting the election on the ticket of recognized political party in view of dictum of the apex court and the provisions aforesaid cannot be treated to be derogatory for a person who is not set up as a candidate by any recognized political party and who intends to contest the election either of the Parliament or of the State Assembly. His nomenclature as an 'independent' candidate is only an indication of the fact that he is not associated or connected with any recognized political party and that he intends to contest the election without being a candidate of any political party.
The next plea that by requiring a declaration, whether the person who is filing nomination or intends to contest the election on the ticket of recognized political party would mean that the election is being allowed to be contested by an 'association of persons' or 'a body of persons' or a group of persons who are represented by a political party is a complete misnomer. It is not the political party, who becomes a candidate for contesting the election but only an individual who is set up as a candidate under an internal arrangement made by a recognized political party that such an individual who is a citizen of the country and who fulfills the conditions or in other words, does not suffer from any such disqualification as provided under Article 84 and 173 of the Constitution is allowed to contest the election.
The mentioning of the recognized political party who sets up the candidates, or individual candidate for contesting the election is neither in violation of any of the provisions of the Constitution nor Representation of People Act, as it is not a 'Body or association' or an 'association of persons' who is authorized to contest the election but only a citizen of India, who fulfills all other conditions of eligibility can contest the election, and therefore, the plea that such a person namely; the recognized political party since does not fall within the definition given in Article 84 and 173 of the Constitution, cannot contest the election, is wholly misconceived, based on complete misreading and misinterpretation of the constitutional provisions.
Similarly, Form 2A and 2-B cannot be said to be in any way contrary to the constitutional scheme or Act 1951 and rather they have been framed in a manner which gives a clear picture to the electorate about the candidate as to whether he is contesting the election on the ticket of recognized political party or as an independent candidate, meaning thereby that he is not having any allegiance or association with any political party for the purpose of election. This is very much required for the reason that in democracy, where direct election takes place for electing the people's representative, the electorate viz; the voters of constituencies, must be made known about the plans or future actions which might be taken by such elected candidates in governance of the country and thus to give an opportunity to electors to choose the one with whose policy they agree.
Taking a guide and the binding nature of the effect of the law declared by the Apex Court, it would be appropriate to adopt the same line of reasoning and hold that the returned candidate could have contested as a candidate of the political party.
On the basis of the aforesaid analysis now this Court proceed to examine the rejection of the nomination paper of the petitioner as well as acceptance of nomination paper of the opposite party no.3.
The record of the election petition reveals that petitioner in his nomination paper (Annexure No.4 of Election Petition) in place of mentioning the name of 10 proposers and their signatures, mentioned his grievance against the conduct of election and name of only one proposer and his detail has been mentioned at the end of page no. 2 that too without his signature. The perusal of nomination paper further reveals that the petitioner instead of furnishing the requisite details in respective columns, made his observations and also mentioned that he does not want any symbol. The Returning Officer on the day of scrutiny found that nomination paper of the petitioner is not in accordance with the prescribed procedure and does not have the name of 10 proposers and their signatures and, hence, rejected his nomination form.
The details/informations furnished by the petitioner in his nomination paper (Annexure No. 4 to the petition) are extracted and reproduced as under :
¼iz:i & 2 [k½ ¼fu;e 4 nsf[k,½ fo/kku lHkk ds fy, fuokZpu Hkkx 1 ¼ekU;rk izkIr jktuSfrd ny }kjk [kMs fd;s x;s vH;FkhZ }kjk mi;ksx ds fy,½
------------------------------------------------------- ;g Hkkx fof/kfo:)] euekuk] vuqfpr gS D;kasfd ;g Hkkx ;Fkkfof/k ifjHkkf"kr ^^vH;FkhZ^^ esa foHksn djrk gS tks lafo/kku ds vuqPNsn 14 ds lkFk 13 ¼2½] 19 ¼1½ ¼a½] 19 ¼1½ ¼e½] 19 ¼4½] 21] 173 lifBr t0 iz0 vf/k0 & 1951 dh /kkjk 2 ¼1½ ¼f½] 5 ¼e½] 32] 33 ¼7½ ¼f½] 79 ¼b½ vkSj ¼Mh½ rFkk 169 ¼1½ dk mYya?ku djrk gS & S.N. Tripathi/vH;FkhZ Hkkx & 2 izLFkkidksa dh fof'kf"V;ka vkSj muds gLrk{kj dze0 izLFkkid dk fuokZpd ukekoyh la[;kd fuokZpu {ks= dh fuokZpd ukekoyh ml Hkkx esa dk Hkkx la[;kd dze la[;k iwjk uke gLrk{kj rkjh[k Hkkx & 1 dh Hkkafr ;g Hkkx Hkh loZFkk euekuk] vuqfpr] fof/kfo:) gS D;ksafd t0 iz0 vf/k0 1951 dh /kkjk & 32 lifBr lafo/kku dh vuqPNsn & 173 lifBr mDr vf/k0 dh /kkjk & 5] 79 ¼b½ vkSj ¼Mh½] 2 ¼1½ ¼e½] 2 ¼1½ ¼f½] 2 ¼1½ ¼a½ vkSj lifBr t0 iz0 vf/k0 1950 dh /kkjk 2 ¼g½ vkSj 7 dks vkgr djrk gS vkSj vf/k0 1951 dh /kkjk & 169 ¼1½ esa mfYyf[kr ^^:y^^ cukus ds vf/kdkj {ks= dk Hkh vfrdze.k djrk gS vkSj lkFk gh lafo/kku }kjk iznRr ekSfyd vf/kdkj ds vuqPNsn & 13 ¼2½] 14] 19 ¼1½ ¼a½] 19 ¼1½ ¼c½] 19 ¼4½] 21 dks uiqald cukrk gS vr% ;g Hkkx Hkh ;Fkkfof/k ifjHkkf"kr ^^vH;FkhZ^^ ds fy;s loZFkk vuqfpr gSA eS] estj ,l0 ,u0 f=ikBh iq= Lo0 HkksykukFk f=ikBh] fuoklh edku u- [email protected]] efV;kjh] fpugV] y[kuÅ] lafo/kku ds vuqPNsn 173 ¼,½ ds rgr mEehnokj ds :i esa 'kiFk ds lkFk uke funsZf'kr gqvk gWwA dzi;k vuqyXud&12 dks ns[ksa & estj ,l0,u0 f=ikBh] vH;[email protected] S.N. Tripathi vH;[email protected]@dSUMhMsV fn % 21-10-2009 Hkkx &3 ¼[k½ ¼2½ ------ ¼1½ dksbZ izrhd ugha pkfg;sA ¼?k½ ------- vkSj t0 iz0 vf/k0 1951 dh /kkjk & 32 vkSj 33 dh mi/kkjk & ¼7½ ¼f½ vkSj mi&/kkjk&¼1½ ds rgr ;g i= Lo;a izLrqr djrk gS esjs izLrkod dk fooj.k fuEufyf[kr gSA bl lEca/k esa gekjs i= fnukad 14-10-2009 dk lac/k xzg.k djsa ftls vkius ysus ls budkj dj fn;k Fkk fQj mls gesa LihM iksLV }kjk Hkstuk iMk FkkA izLrkod dk fooj.k %& vf[kys'k] iq= ykyrk izlkn] fu0 e0l0 [email protected]] jkuh dVjk] y[kuÅ] igpku i= & UP/20/102/144198, for ¼vH;FkhZ ds gLrk{kj½ fuokZpu {ks= & 102& y[kuÅ if'pe] estj ,l0,u0 f=ikBh fn % 21-10-2009 This Court after examining the nomination paper of the petitioner comes to the conclusion that nomination paper of the petitioner was not in accordance with the provisions of the Act and Rules. A candidate is required to furnish the requisite information in the concerned column of the nomination paper and cross the questions which are not relevant in his case, but the petitioner made various observations and comments in different columns of the nomination paper disagreeing with the procedure and in the column of proposers instead of mentioning the names/details of proposers and their signatures wrote comments/his views. It appears that petitioner was not interested in contesting the election, therefore, he has gone to the extent of mentioning in part-3 of the nomination form to the effect that he does not want any symbol. In the end, details of one proposer has been mentioned that too without his signature. The nomination paper of the petitioner apparently was not in accordance with the prescribed procedure and, hence, there was no illegality or infirmity in the order of rejection. This Court has no hesitation in observing that the petitioner was not a validly nominated candidate for the purpose of election in question.
Further in view of the aforesaid analysis of the legal provisions and judgments of Hon'ble Apex Court, this Court does not find any illegality or infirmity in accepting the nomination paper of opposite party no.3 by the Returning Officer.
Now coming to the question of maintainability of present election petition and challenge the election of returned candidate (opposite party no.3) under Section 81 of the Representation of People Act. The Section 81 reads as under:-
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 candidate 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.
1(......) 2[(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.] Section 86 of the Representation of Peoples Act defines the Trial of Election Petitions, which reads as under:
86. Trial of Election Petitions. (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.
Explanation. - An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the Trial of Elections under sub-section (2) of section 80A.
(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation. - For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
Section 87 of Representation of People Act defined the procedure before the High Court, which runs as under:
Section 87. Procedure before the High Court. - (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings, (2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.
From the above quoted provisions, it would appear that Section 86 of R.P. Act mandates that where the election petition does not comply with the provisions of Sections 81 and 82 or Section 117 of the Act, the High Court should dismiss the election petition. Section 87 which lays down the procedure required to be followed by the High Court while trying an election petition, provides that every election petition shall be tried, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of the suits, subject of course to the provisions of the Act and of any requirement made thereunder.
During the course of argument, the petitioner also took a plea that this court cannot exercise its power either Under Order VI Rule 16 or Order VII Rule 11 of the Code of Civil Procedure to reject the election petition at the threshold. The argument is two-fold viz (i) that even if the election petition was liable to be dismissed ultimately, it could be dismissed only after affording an opportunity to the election petitioner to adduce evidence in support of his allegation in the petition; and (ii) since Section 83 does not find a place in Section 86 of the Act, rejection of petition at the threshold would amount to reading an additional ground into sub-section (1) of Section 86 of the R.P. Act.
Both the contentions raised by the petitioner are misconceived, and untenable. Undoubtedly, by virtue of Section 87 of the Act, the provisions of the CPC are applicable to the trial of an election petition and, therefore, in the absence of anything to the contrary in the R.P. Act, the Court trying an election petition can act in exercise of its power under the Code of Civil Procedure, including Order VI Rule 16; and Order VII Rule 11 of the C.P.C. The object of both the above said provisions is to ensure that meaningless, frivolous and fleshiness litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the valuable time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the returned candidates of the people in the discharge of his public duty for which the Electorate have reposed confidence in returned candidate.
It may be mentioned that the Hon'ble Supreme Court in the case of Hardwari Lal v. Kanwal Singh; 1972 (1) SCC 214 observed that-
"Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. It was emphasized that Section 83 did not find place in Section 86. Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. A suit which does not furnish cause of action can be dismissed."
This view was again reiterated by the Hon'ble Supreme Court in the case of Azhar Hussain v. Rajiv Gandhi; (1986)Supp. SCC 315, referring to earlier pronouncements in the case of Samat N. Balkrishna and Udhav Singh v. Madhav Rao Scindia; (1977) 1 SCC 511 and subsequently in Ram Sukh Vs. Dinesh Aggarwal (2009) 10 SCC 541 as well as Anil Vasudev Salgaonkar Vs. Naresh Kushali Shingaonkar [2009 AIR SCW 6812 and observed that the omission of a single material fact would lead to incomplete cause of action and that an election petition without the material facts is not an election petition at all. The Hon'ble Supreme Court held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83 (1) (a) of the Act and an election petition can be and must be dismissed if it suffers from any such vice.
The Hon'ble Supreme Court, while examining the issue of rejection of nomination paper and material facts, in the case of Pothula Rama Rao vs. Pendyala Venkata Krishna Rao & Ors reported in AIR 2007 SC 2924, pleased to observe in para 6 as under:-
"6. If an election-petitioner wants to put forth a plea that a nomination was improperly rejected, as a ground for declaring an election to be void, it is necessary to set out the averments necessary for making out the said ground. The reason given by the Returning Officer for rejection and the facts necessary to show that the rejection was improper, should be set out. If the nomination had been rejected for non-compliance with the first proviso to sub-section (1) of Section 33, that is, the candidate's nomination not being subscribed by ten voters as proposers, the election petition should contain averments to the effect that the nomination was subscribed by ten proposers who were electors of the Constituency and therefore, the nomination was valid. Alternatively, the election petition should aver that the candidate was set up by a recognized political party by issue of a valid 'B' Form and that his nomination was signed by an elector of the Constituency as a proposer, and that the rejection was improper as there was no need for ten proposers. In the absence of such averments, it cannot be said that the election petition contains the material facts to make out a cause of action. In this case the election petition contained an averments that the nomination of Atchuta Ramaiah was rejected on the untenable ground that he was a dummy or substitute candidate set up by TDP. But there is no averment that he was 'set up' as a candidate by TDP in the manner contemplated in para 13 of the Symbols Order, that is by issuing a valid B-Form in his favour. Nor did the election petition aver that his nomination paper was subscribed by ten proposers. Therefore, the petition was lacking in material facts necessary to make out a cause of action under Section 100 (1) (c) of the Act. The High Court, therefore, rightly struck off the said ground of challenge contained in para 8 of the election petition."
In a recent decision of the apex Court in the case of Mangali Lal Mandal v. Bishnu Deo Bhandari (2012) 3 SCC 314, it has been specifically laid down that it is essential for election petitioner to aver and prove by pleading material facts that result of election of returned candidate was materially affected by such breach or non-compliance of the provisions of the Constitution and the 1951 Act. The relevant portion of the judgment reads as under:-
"10. A reading of the above provision with Section 83 of the 1951 Act leaves no manner of doubt that where a returned candidate is alleged to be guilty of non-compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder and his election is sought to be declared void on such ground, it is essential for the election petitioner to aver by pleading material facts that the result of the election insofar as it concerned the returned candidate has been materially affected by such breach or non-observance. If the election petition goes to trial then the election petitioner has also to prove the charge of breach or non-compliance as well as establish that the result of the election has been materially affected. It is only on the basis of such pleading and proof that the court may be in a position to form opinion and record a finding that breach or non-compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder has materially affected the result of the election before the election of the returned candidate could be declared void.
11.A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100(1)(d)(iv). The sine qua non for declaring the election of a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non-observation or non-compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void Section 100(1)(d)(iv). For the election petitioner to succeed on such ground viz. Section 100(1)(d)(iv), he has not only to plead and prove the ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected."
Needless to mention that a Constitution Bench of the Hon'ble Supreme Court in the case of Jagan Nath v. Jaswant Singh and others; 1954 S.R.C. 892 observed that the statutory requirement of election law must be strictly observed that the election contest is not an action at law or a suit in equity, but is purely statutory proceeding unknown to the common law and that court possessed no common law power. It is also well settled that the election of a candidate who has won should not be lightly interfered with any petition seeking such interference must strictly conform to the requirement of law.
Further virus of the provisions of the Representation of People Act cannot be challenged in an election petition, as held by Hon'ble Supreme Court in the case of Hari Shanker Jain v. Sonia Gandhi; 2001 (8) SCC 233, and in order to challenge the vires of the Act, it is necessary that Union of India be impleaded as respondent and the notice has to be sent to the Attorney General of India, but the Union of India was not made party in the present election petition. So, validity of the provisions of R.P. Act cannot be examined.
The election petition if taken on the face value raises only one question in regard to the competence of the opposite party no.3 to contest the election on behalf of a political party. The petitioner's anxiety to demand for the trial of the election petition over-ruling the preliminary objection may be a cherished desire as the law does not suppose that election petitions should be tried for academic purposes only or for a law point which stands decided and concluded by the judgement of the Apex Court and thereby waste the valuable time of the Court.
Further submission of the petitioner cannot be appreciated that even though the election petition may ultimately fail but if the cause of action as contemplated under law is complete, then it should be put to trial. Only triable issue, which has impact and bearing on the validity of the election can be tried. If arguments of the petitioner is to be accepted, then no election in the entire country is safe. Therefore, the argument of the petitioner that the election should be put to trial does not appeal to reason and is hereby rejected.
On a careful consideration of the pleadings and the law propounded on the subject by the Apex Court, this Court finds no force in the arguments advanced by the petitioner and I hold that the present election petition is wholly misconceived and is based on absolutely misinterpretation and misunderstanding of the legal provision enshrined in the Constitution as well as in R.P. Act and, as such, the same is hereby dismissed.
There shall be no order as to costs.
Order Date :- 13.08.2012 Tanveer/Suresh/-