Gujarat High Court
Pankajkumar Bachubhai Velani (Jain) vs Election Commission Of India on 7 February, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025
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Reserved On : 20/12/2024
Pronounced On : 07/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION PETITION NO. 9 of 2023
With
R/ELECTION APPLICATION NO. 1 of 2024
In
R/ELECTION PETITION NO. 9 of 2023
With
R/ELECTION APPLICATION NO. 22 of 2023
In
R/ELECTION PETITION NO. 9 of 2023
With
R/ELECTION APPLICATION NO. 8 of 2024
In
R/ELECTION PETITION NO. 9 of 2023
With
R/ELECTION APPLICATION NO. 26 of 2023
In
R/ELECTION PETITION NO. 9 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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Approved for Reporting Yes No
Yes
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PANKAJKUMAR BACHUBHAI VELANI (JAIN)
Versus
ELECTION COMMISSION OF INDIA & ORS.
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Appearance:
MS RACHNA SRIVASTAVA, SENIOR ADVOCATE WITH MR AMIT R
JOSHI(6682) for the Petitioner(s) No. 1
MR ADITYA JADEJA, AGP for the Respondent(s) No. 21
MR HRIDAY BUCH(2372) for the Respondent(s) No. 5
MR SAHIL M SHAH(6318) for the Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
CAV JUDGMENT
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NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined Election Application no.22 of 2023:
Draft amendment is allowed in terms of the draft. Same shall be carried out forthwith.
2. Captioned application by the applicant - original respondent no.5 (hereinafter referred to as "the applicant"), inter alia, is praying for rejection of the election petition in accordance with the provisions of the Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") read with Section 87 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act of 1951") as well as the Rules 276, 282, 283 & 285 of the Gujarat High Court Rules, 1993 (hereinafter referred to as "the Rules of 1993").
3. Tersely stated are the facts:
3.1 Election of Gujarat State Assembly was declared, and as per the election programme the date of election was 05.12.2022 and the result was declared on 08.12.2022. Discernibly, 20 candidates have filed their nomination forms; 2 came to be rejected and 18 were accepted. Further 2 candidates withdrew their candidature and rest of 16 candidates i.e. respondent nos.5 to 20, participated in the election. Respondent no.5 was declared as receiving the highest votes who won the election of 18 - Patan Assembly.
3.2 Grievance raised by the petitioner is that the respondent no.5 had filed affidavit dated 17.11.2022 in Form 26 together with nomination papers before the Returning Officer. Certain incorrect information were provided in connection with the First Information Report. Rather, registration of First Information Report was omitted and was not finding place in the affidavit; despite, the respondent no.5 had the complete knowledge. The petitioner, therefore, Page 2 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined submitted an application on 01.12.2022 to the Returning Officer;
however, no steps were taken and in the meantime, the respondent no.5 was declared as winning candidate. Again the petitioner approached respondent nos.1 to 4 for declaring the election as null and void, but no steps were taken. According to the petitioner, furnishing incorrect and incomplete information in the affidavit together with the nomination paper, would render the nomination form ineligible and has to be rejected under the provisions of sub- section (2) of Section 36 of the Act of 1951 and hence, the captioned election petition, inter alia, seeking writ of quo warranto against the respondent no.5 for illegally holding the post of legislative assembly 18 - Patan. The petitioner, has also sought for declaration that the election of the respondent no.5 be declared as null and void.
3.3 Result of the election was declared on 08.12.2022. The election petition was presented on 18.01.2023 and was registered on 17.02.2023. Scrutiny of the election petition, took place on 18.01.2023 and the office of the learned advocate was informed about the same on 19.01.2023. Some of the office objections were removed in the interregnum and as per the letter dated 16.02.2023 of the learned advocate appearing for the petitioner, Rs.2,000/-, as per the provisions of Section 117 of the Act of 1951, was paid only on 16.02.2023. Thus, all the office objections were removed only on 17.02.2023.
3.4 Captioned application is filed seeking rejection of election petition, as it does not comply with the provisions of Section 81 of the Act of 1951, i.e. presentation of petition within 45 days of the date of declaration of result. Incidental to the main issues are; (i) that the copy of the election petition provided to the respondent is not attested by the petitioner; (ii) that parties to the petition are not Page 3 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined as provided under Section 82 of the Act of 1951; (iii) that petition does not provide for material facts and particulars in a concise statement as contained in clause (a) of sub-section (1) of Section 83 of the Act of 1951; (iv) that there is suppression of material facts; (v) that the deposit of security for cost of Rs.2,000/- beyond the limit of 45 days, and (vi) that the election can be called only under Section 81 of the Act of 1951 and not by way of writ petition, seeking quo warranto.
4. Mr Hriday Buch, learned advocate appearing with Mr Pinank Raiyani, learned advocate for the applicant, submitted that election petition was filed on 18.01.2023 and after removing all the office objections, it was registered only on 17.02.2023. It is not in dispute that the file was presented and scrutiny was done on 18.01.2023 and the clerk of the learned advocate, was informed about the same on 19.01.2023. It is submitted that as is clear from the endorsement overleaf the checklist, the office objections were not removed until 16.02.2023 and was removed only on 17.02.2023. It is submitted that election, was declared on 08.12.2022 and as per the provisions of Section 81 of the Act of 1951, election petition should have been presented by 45 days of declaration of result. 45 days, got over on 23.01.2023 whereas, the objections were removed, much after expiry of period of 45 days. Hence, the election petition, is barred by limitation and deserves to be rejected.
4.1 While referring to the cause title of the election petition, it is submitted that Election Commission of India; State Election Commission; Chief Electoral Officer & Returning Officer, State of Gujarat and District Election Officer, Collector Office have been arraigned as the respondents. As per the provisions of Section 82 of the Act of 1951, the petitioner is obliged to join only the respondent candidates as provided in clause (a) of Section 82 of the Act of Page 4 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined 1951, which clearly provides that the petitioner shall join as respondents to his petition, all the contesting candidates and where no further declaration is claimed, all the returned candidates. Joining of the respondent nos.1 to 4 and 21 and 22, would be barred and hence election petition, deserves to be rejected on the ground of misjoinder of parties.
4.2 It is further submitted that as per sub-section (1) of Section 81 of the Act of 1951, every election petition shall be accompanied by as many copies 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. Clearly, copy of the memo of the petition served to the respondent no.5 - applicant, is neither verified nor signed to be the true copy of the petition. Moreover, the petition does not disclose the concise statement of the material facts in compliance of the provisions of clause (a) of sub-section (1) of Section 83 of the Act of 1951. Allegations made are contrary to the material produced on the record. Besides, the petitioner has failed to point out as to how non-compliance of the provisions of the Act have materially affected the election, which is the basic requirement as contained in clause (d) of sub-section (1) of Section 100 of the Act of 1951. Non-fulfillment of the requirements would constitute incomplete cause of action and hence, the plaint deserves to be rejected at the threshold.
4.3 It is next submitted that election petition has been filed raising grievance that the candidate while filling up the form, omitted to mention registration of the First Information Report and has suppressed material fact. In support of which, the petitioner has produced forms of the applicant; however, what has been omitted to produce is a certificate which was annexed together with the documents. The certificate has been issued by the concerned police Page 5 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined officer indicating the details of the First Information Report registered against the applicant. The said certificate is missing and only on the ground of suppression of material fact, the election petition deserves to be rejected.
4.4 It is next submitted that Section 117 of the Act of 1951, provides for security for cost. Sub-section (1), envisages that at the time of presentation of the election petition, the petitioner shall deposit in the High Court, in accordance with the Rules of 1993, a sum of Rs.2,000/- as security for the cost of the petition. In the case on hand, the deposit was made only on 17.02.2023 and therefore, there was a non-compliance of the provisions of Section 117 of the Act of 1951.
4.5 It is further submitted that bare perusal of the prayers indicates that the petitioner has sought for a writ of quo warranto which, cannot be asked for in the election petition as it can be called in question only as per Section 81 of the Act of 1951 and cannot be in the form of writ petition. Section 86 of the Act of 1951 provides that the High Court shall dismiss an election petition which does not comply with the provision of Section 81 or Section 82 or Section 117 of the Act of 1951 and therefore, in view of provisions of Section 86 of the Act of 1951 read with Order VII Rule 11 of the Code, the election petition deserves to be rejected.
4.6 While referring to Chapter XXII of the Rules of 1993, it is submitted that an in-built mechanism is provided. Rule 272 speaks about election petition to be filed invoking the jurisdiction of the High Court. Rule 277 is a provision providing for time for presentation and according to which, the petition was presented on 18.01.2023. Moreover, Rule 282 makes a provision for registration of the petition and it states that immediately after the petition is presented, the date of presentation shall be endorsed thereon and Page 6 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined the petition should be entered in the special register maintained for registration of the election petition. Sub-clause (2) of Rule 282 states that after the petition is presented, the party or advocate or his clerk shall give an undertaking to attend the office on the third day from the date of presentation to remove office objections and therefore, as per the said provision, on the third day, an undertaking was to be filed to remove office objections. In the present case, it happened on 29th day. Rules 284 and 285 are the provisions which requires placing of the petition before the learned Single Judge for appropriate order and after the removal of the office objections, the petition shall be placed for consideration as to whether it is liable to be dismissed under the provisions of the Act of 1951. It also provides that if the petition is not dismissed, the Hon'ble Judge shall then direct issue of summons.
4.7 Reliance is placed on the judgment in the case of Ritaben Ketankumar Patel vs. Election Commission of India passed in Election Application no.3 of 2024. It is submitted that the facts were almost identical so also the provisions and this Hon'ble Court, while considering the judgment of the Apex Court on the point so also the judgments of the Bombay High Court following the decision of the Apex Court, rejected the petition holding that as per the provisions of sub-section (1) of Section 86 of the Act of 1951, it is mandatory to dismiss the election petition which does not comply with the provisions of Section 81 of the Act of 1951. It has been held and observed that mere presentation of the election petition would not amount to substantial compliance and in absence of any provisions under the Act of 1951 or the Rules made thereunder, the High Court Rules cannot confer upon its officer any power to permit a correction or removal of office objection presented in the High Court beyond the period of limitation.
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on the judgment in the case of Jyoti Basu & Others vs. Debi Ghosal & Others reported in (1982) 1 SCC 691, wherein, it has been held that "only the candidates" expressly mentioned in Section 82 and sub-section (4) of Section 86 of the Act of 1951, can be joined as respondents by the petitioner and non-candidates even though against them corruption charges are made in the petition, cannot be so joined.
4.9 In the context of suppression of material facts, reliance is placed on the oral judgment dated 10.04.2019 of this Court in the case of Rameshchandra Chimanlal Shah vs. Maheshbhai Manubhai Patel passed in First Appeal no.1329 of 2019. It has been held and observed that deliberate avoidance of the necessary averments in the plaint and related documents in order to clandestinely alter the true purport of the plaint, would not justify the plaintiff to contend that the powers under Order VII Rule 11 were not exercisable. It has been held and observed that even in cases where necessary averments are deliberately avoided or misleading statements are made or false suggestions are made, the provisions of Order VII Rule 11 of the Code would be attracted. It is submitted that the petitioner, has alleged against the applicant that the applicant has omitted to give the details and in support whereof, the documents procured from the authorities, have been placed on the record; however, what has not been produced is the certificate issued by the police officer which was also forming part of the documents produced by the applicant.
5. Per contra, Ms Rachana Srivastava, learned senior counsel appearing with Mr Amit R. Joshi, learned advocate for the original petitioner, submitted that petition has been presented within the stipulated period i.e. on 18.01.2023 which has been duly verified by Page 8 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined the Registry. It is submitted that contention is also raised of filing of the election petition beyond 45 days, which is also misplaced considering the language of Section 81 of the Act of 1951, as it uses the word 'presentation of petition' and presented means filed and not registration. Reliance is placed on the judgment in the case of Usham Deben Singh vs. Md Fajur Rahim reported in 2024 (0) AIJEL- MN 3901841 of the Manipur High Court wherein, it has been held and observed that reading the word 'presented' as registration of the election petition would mean judicial amendment of the statute. While observing thus, the objection on the ground of limitation was rejected.
5.1 Reliance is placed on the judgment in the case of Patel Ahmed Mohammad vs. Balwant Singh Rajput reported in 2018 (18) SCC 501 wherein, it has been held and observed that scrutiny of the election petition is one of the administrative functions to be performed by the office of the High Court and such an official act would draw a presumption of all necessary steps having been duly taken by the office and being satisfied in that behalf, the matter would then be placed before the Court for appropriate order under the respective head.
5.2 Further reliance is placed on the judgment in the case of Chandrakant Uttam Chodandar vs. Dayanand Rayu Mandrakar reported in (2005) 2 SCC 188. The issue before the Apex Court was whether the election petition could have been dismissed in limine under Section 86 by reason of non-compliance of sub-section (3) of Section 81, clauses (a) and (c) of sub-section (1) of Section 83 and sub-section (2) of Section 83 of the Act of 1951. The Apex Court, allowed the appeal and held that burden to prove that the election petition would not be maintainable, lay on the respondent.
5.3 Further reliance is placed on the judgment in the case of
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NEUTRAL CITATION
C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025
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Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore reported in AIR 1964 SC 1545, on the issue of non-compliance of sub-section (3) of Section 81 of the Act of 1951. Grievance was regarding non-compliance as, the copy served did not contain the signature of the petitioner at the foot of the petition though the original contained the signature. The Apex Court, held and observed that when every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, afresh signature below the word 'petitioner' was not necessary. The Apex Court, while considering the term 'copy' occurring in sub- section (3) of Section 81, held and observed that it does not mean an absolutely exact copy but, means that the copy shall be so true that nobody can by any possibility misunderstand it. Reliance is also placed on the judgment in the case of Subbarao vs. Member, Election Tribunal Hyderabad reported in AIR 1964 SC 1027. Reliance is also placed on the judgment in the case of T. M. Jacob vs. C. Poulose reported in (1999) 4 SCC 274. It is further submitted that substantial compliance of sub-section (3) of Section 81 of the Act of 1951, cannot entail dismissal of the petition at the threshold. Besides, the petition was signed by the petitioner and duly verified in the manner laid down under the Code for verification of the pleadings and therefore, there was sufficient compliance in terms of clause (c) of sub-section (1) of Section 83 of the Act of 1951 and the proviso thereof.
5.4 It is further submitted that contention about misjoinder of the parties is misplaced inasmuch as, in the case of B. S. Yadiyurappa vs. Mahalingappa reported in (2002) 1 SCC 301, it has been held and observed that the person who is not a candidate cannot be joined as a respondent to an election petition; however, the same is not fatal and the correct course would be to order the deletion of the superfluous party from the array of the parties. The petition can be Page 10 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined allowed to be amended by striking out from the array of the parties those additionally impleaded. It is submitted that the Returning Officer may not be necessary party but, is very much a proper party.
5.5 It is next submitted that the contention that the petition does not contain concise statement is also untenable considering the fact that the election petition contains the concise statement of material fact on which the petitioner relies. Also, it sets forth full particulars of improper acceptance of nomination form and non-compliance with the provisions of the Constitution and the Act of 1951 and the Rules are also clearly set out. It is submitted that it is by now well settled that cause of action is bundle of facts, if traverse, are required to be proved by the petitioner by leading evidence in order to get the reliefs claimed. The challenge is to the action of the Returning Officer in illegally accepting the nomination form which is bereft of any correct facts and it materially affects the result of the election. Reliance is placed on the judgment in the case of Sardar Harcharan Singh Brar vs. Sukh Darshan Singh reported in (2004) 11 SCC 196. Judgment in the case of Samant N. Balakrishna & Another vs. George Fernandez & Others reported in (1969) 3 SCC 238, has been referred to wherein, it has been held and observed that Section 83 of the Act of 1951 is mandatory and requires a election petition to contain first a concise statement of material facts and then requires the fullest possible particulars. The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact, leads to an incomplete cause of action and the statement of claim, becomes bad. Reliance is also placed on the judgment in the case of Ponnala Lakshmaiah vs. Kommuri Pratap Reddy reported in (2012) 7 SCC 788. 5.6 It is submitted that the contention about the nature of reliefs Page 11 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined claimed, is also not in a right earnest. Sub-clause (2) of Rule 272 of the Rules of 1993, provides that the election petition shall comply with the provisions of the Act of 1951 as indicated therein and the grounds on which the reliefs are sought, shall clearly be stated and which, shall be arranged in suitable paragraphs, consequently numbered and reliefs sought, should be set out at the end of the petition. It is submitted that the prayer clauses (a) to (j), do not pray for quo warranto and there is no prayer seeking writ.
5.7 So far as the aspect of suppression of material fact is concerned, it is submitted that the petitioner had applied for the copies and what has been provided by the authority, is placed on the record and that the petitioner cannot be attributed with the lapse and that it has suppressed the material facts.
6. Mr Sahil Shah, learned advocate would contend that respondent no.4, has been wrongly impleaded. Reliance is placed on the judgment in the case of Michael B. Fernandes vs. C. K. Jaffer Sharief & Others reported in (2002) 3 SCC 521. It is submitted that allegation in the case before the Apex Court, was that the guidelines were not followed despite which, it has been held that the Returning Officer need not be impleaded as a party respondent. It is submitted that the judgment which has been cited only says that the petition need not be dismissed on the ground; however, it does not say or suggest that the Election Officer and/or Returning Officer are proper party. It is submitted that Section 82 of the Act of 1951 clearly provides who can be the parties to the petition. Two situations, inter alia, provided are viz., (i) seeking declaration of election being void; and (ii) when there are allegations of corrupt practice. The provision clearly envisages that only the candidates as indicated therein are required to be joined and no other person. It is submitted that as per the provision of Section 80 of the Act of 1951, no election shall be Page 12 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined called in question except by an election petition presented in accordance with the provisions of Part VI which, is a complete code. Reliance is placed on the judgment in the case of Jyoti Basu vs. Debi Ghosal (supra) wherein, it has been held and observed that no one may be joined as a party to election petition otherwise then as provided by Section 82 and sub-section (4) of Section 86 of the Act of 1951. A person who is not a candidate, may not be joined as a respondent to the election petition. While concluding, reliance is placed on the judgment in the case of B. Sundara Rami Reddy vs. Election Commission of India & Others reported in 1991 Supp. (2) SCC 624 for similar proposition that only those may be joined as respondents to election petition who are mentioned in Section 82 and sub-section (4) of Section 86 of the Act of 1951 and not others. However, desirable and expedient it may appear to be, none else shall be joined as respondents.
7. Mr Hriday Buch, learned advocate, in response, submitted that the contention about non-payment of the amount, has remained unanswered. Similarly, furnishing of the copy has been dealt with by contending that it is immaterial. In the case on hand and it is not in dispute that the copy which has been provided, not a single page has been signed and/or attested. Besides, the portion of affidavit, is completely blank. It is submitted that in the case of Sharif-ud-din vs. Abdul Gani Lone reported in (1980) 1 SCC 403, it has been held and observed that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and non- compliance with the requirement should result in the dismissal of the petition as provided in Section 94 of the Act of 1951.
7.1 Reliance is also placed on the judgment in the case of Ajay Maken vs. Adesh Kumar Gupta reported in (2013) 3 SCC 489 Page 13 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined wherein, it has been held and observed that "Legally, there is a distinction between failure to sign and verify the original copy of the election petition and failure to attest the copy served on the respondent to be a true copy of the election petition. While the latter failure falls within the scope of Section 81(3), the earlier failure falls under sub-section (1)(c) and sub-section (2) of Section
83. While the failure to comply with the requirements of Section 81 obligates the High Court to dismiss the election petition, the failure to comply with the requirements of Section 83 is not expressly declared to be fatal to the election petition". It is submitted that the copies of the court can have the defect and is curable but not the copies of the respondent, which defect is not curable. Therefore, sub-section (3) of Section 81 and Section 117 are the two grounds on which the election petition fails. In the judgments relied upon, the signatures were on some pages whereas, in the present case, there is no signature at all and all the pages are almost blank.
7.2 The distinguishing feature in the judgment in the case of Patel Ahmed Mohammad vs. Balwant Singh Rajput (supra), is that the contention was raised about non-removal of the office objections; the applicant therein could not highlight the objections which fact, is clearly recorded in the judgment by the Apex Court, by observing that the objection raised by the appellant was replete with conjectures and surmises. Whereas, in the case on hand, objections raised are not vague inasmuch as, the petition was filed on 18.01.2023 and on 19.01.2023 objections were pointedly raised which came to be removed only on 17.02.2023. Removal of objection on 17.02.2023 is a distinguishing feature. Admittedly, as per the record, until 16.02.2023 objections were not removed and hence, the said judgment cannot apply to the facts of the present case. It is submitted that the judgment of the High Court of Manipur, also would not help the petitioner inasmuch as, there are only four Page 14 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined requirements under the applicable Rules unlike the Rules of 1993.
7.3 While summarizing, in the context of clause (d) of sub-section (1) of Section 100 of the Act of 1951, it is submitted that there is not a whisper in the petition that because of the non-compliance or non- mentioning of the First Information Report, the result has been materially affected. Even the aspect of the First Information Report is not available. It is submitted that the defence that there is no suppression of material fact for, the documents provided by the authorities have been placed on the record, is no answer. When it was pointed out, the petitioner ought to have taken due diligence and placed on record the documents which were missing. It is submitted that though it is sought to be argued that non-joining of the parties is not fatal to the petition; however, when the ground is raised and option is given and is not availed of, joinder of unnecessary party would be fatal. The defect ought to have been cured by taking remedial measure and in absence of any measures taken, the same would go against the petitioner.
7.4 It is submitted that the judgment cited in support of the contention that absence of signature in the petition memo is not fatal notably, almost in all the judgments there were signatures either in the petition memo or in the Annexures. As against this, in the present case, in the copy provided to the applicant, not a single page is signed. Besides, the amount deposited by the petitioner was only on 16.02.2024 and not together with the petition and hence, the breach cannot be cured. It is submitted that the contention that the petitioner has not prayed for writ, is also misplaced as the petitioner is ignoring paragraph 27 and the four lines on page 41 and wants this Court to read selective prayers contained in clauses
(a) to (j). Hence, petition deserves to be dismissed accepting Order VII Rule 11 application.
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8. Ms Rachana Srivastava, learned senior counsel, in further response, submitted that answer to Section 117 of the Act of 1951 is very much available. In paragraph 22 of the judgment of the Manipur High Court, it has been held that mere filing of the original challan along with the election petition, is a sufficient compliance of the mandatory provisions. It is further submitted that after the matter was remanded by the Apex Court in the case of Patel Ahmed Mohammad vs. Balwant Singh Rajput (supra), this Court has rejected election application by passing a reasoned order. In paragraph 24, while referring to the judgment in the case of T. M. Jacob vs. C. Poulose (supra), it is held that the object of serving true copy of the election petition and the affidavit filed in support of the allegation of the corrupt practice on the respondent is to enable the respondent to understand the charge against it so that he can effectively meet with the same in written statement. It has been held and observed that the requirement is, thus, of substance and not of form. This Court, has held and observed that the defect of the typed copy provided in Section 83 of the Act of 1951 can be dealt with under the doctrine of curability on the principles contained in the Code. It is not every minor variation in the form but only a vital defect in the substance which can lead to a finding of non- compliance with the provisions of sub-section (3) of Section 81 with consequences of Section 86 to follow. Insignificant variation in the true copy cannot be construed as a fatal defect. While placing reliance on Form 26, it is submitted that the requirement is to provide the details of the pending criminal cases and the respondent has himself stated in the application that inadvertently, there is omission in mentioning the First Information Report. It is therefore reiterated that the application Order VII Rule 11 of the Code does not deserve to be entertained and be rejected.
9. Heard the learned counsel appearing for the respective Page 16 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined parties. Perused and considered the documents available on the record.
10. Considering the submissions and counter submissions made by the learned advocates appearing for the respective parties, the issue which arises for the determination of this Court is whether the election petition is barred by the limitation and is liable to be rejected under Order VII Rule 11 (d) of the Code for, the office objections were removed beyond the limitation period of 45 days? For deciding the above-referred issue, the provisions of the Act of 1951 as well as the Rules of 1993, so also judgments are worth referring to.
11. Chapter II of the Act of 1951, deals with the presentation of the election petitions to High Court. Section 80, provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part IV. Therefore, presentation of the election petition has to be as per the provisions of Part IV and more particularly Chapter II.
12. Relevant provisions would be Sections 80 to 83, 86 and 117 and are reproduced hereinbelow for ready reference.
"Section 80. Election petitions.
No election shall be called in question except by an election petition presented in accordance with the provisions of this Part. Section 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 the 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.
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every Page 17 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."
13. Presentation of petition is provided in Section 81 of the Act of 1951. Sub-section (1) provides that 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 45 days from, but not earlier than the date of election of the returned candidate. Therefore, within 45 days from the date of election of the returned candidate, the petition has to be presented. Limitation provided for presenting the petition, is 45 days. Sub- section (3) states that 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. Sub- section (3) is divided into two parts; former requires the election petition to be accompanied by number of copies and the latter provides that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
14. Section 82 of the Act of 1951, is a provision dealing with the parties to the petition. It requires that the petitioner shall join as respondents to his petition, all the contesting candidates and/or all the returned candidates, where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected as the case may be. Clause (b) to Section 82 provides for joining other candidate against whom allegations of corrupt practice are made and which reads thus:
"Section 82. Parties to the petition.--A petitioner shall join as respondents to his petition--
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(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition."
15. Furthermore, Section 83 of the Act of 1951, requires as to what the election petition should contain. Clause (a) of sub-section (1) of Section 83 states that the election petition shall contain a concise statement of the material facts on which the petitioner relies. Clause (b) of sub-section (1) of Section 83, further provides that the election petition set forth full particulars of alleged corrupt practice including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice, and the date and place of the commission of each such practice. Clause
(c) of sub-section (1) of Section 83 requires the petition to be signed by the petitioner and verified in the manner laid down in the Code for the verification of pleadings. Proviso to Section 83 deals with the affidavit to be filed in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. Sub- section (2) of Section 83 provides that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Section 83 is reproduced for ready reference.
"Section 83. Contents of petition.--(1) An election petition.--
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:Page 19 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025
NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to theA petitioner shall join as respondents to his petition--
(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition. petition shall also be signed by the petitioner and verified in the same manner as the petition."
16. Chapter III contains the provisions of Section 86 to Section 107 and relevant, is Section 86 which gives a discretion to the High Court to dismiss the election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act of 1951. Relevant provision is extracted hereinbelow:
"Section 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 election petitions 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.
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(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."
17. Section 117 of the Act of 1951, since is relevant, reference shall be necessitated. Section 117, appears in Chapter V under the title "Costs and Security for Costs". It provides that at the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a sum of two thousand rupees as security for the costs of the petition. It reads as under:
"Section 117. Security for costs.--(1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the rules of the High Court a sum of two thousand rupees as security for the costs of the petition. (2) During the course of the trial of an election petition, the High Court may, at any time, call upon the petitioner to give such further security for costs as it may direct."
18. Adverting to the facts, the captioned application, has been filed by the applicant - original respondent no.5, inter alia, praying for rejection of the election petition in accordance with the provisions of Order VII Rule 11 of the Code read with the provisions of the Act of 1951 as well as the Rules of 1993. The first and foremost objection is, that the election petition though is required to be presented within 45 days of declaration of result, it has been registered much after the expiry of 45 days and hence, is barred by Page 21 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined limitation. The second objection, is that joining respondent nos.1 to 4 and 21 and 22, would be barred and the election petition should be rejected only on the ground of misjoinder of the parties. Further objection, is that election petition though is required to 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; the copy of the election petition served upon the applicant
- original respondent no.5 is neither verified nor signed to be the true copy of the petition as required under sub-section (3) of Section 81 of the Act of 1951. Objection, is also raised as regards non- providence of material facts and particulars in a concise statement, as required as per the provisions of sub-section (1) of Section 83 of the Act of 1951 so as to prove that the result has materially affected and hence, no cause of action is available. Objection is also raised about suppression of material fact and deposit of Rs.2,000/- only after the limitation expired and hence, as per the provisions of Section 117 of the Act of 1951, the petition fails.
19. Undisputed facts touching the objection about presentation of the petition much after the expiry of the period of 45 days are that the result has been declared on 08.12.2022 and 45 days from the date of declaration of the result got over on 23.01.2023. Whereas, the election petition has been filed only on 18.01.2023 and registered on 17.02.2023. Further, it is worthwhile to notice that the election petition was presented on 18.01.2023 and after scrutiny, necessary information was provided to the clerk on 19.01.2023 which aspect, is strengthened by the endorsement overleaf the checklist. Objections were not removed till 16.02.2023 which aspect is also strengthened from the further endorsement overleaf the checklist and it reads as under:
"All office objections are removed.
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20. It is sought to be argued that the language contained in Section 81 of the Act of 1951 is 'presentation' and not 'registration' and hence, once the petition is presented within the period of 45 days, there is sufficient compliance of sub-section (1) of Section 81 of the Act of 1951. In support of such contention, reliance is placed on the judgment of the Manipur High Court in the case of Usham Deben Singh vs. Md Fajur Rahim (supra) wherein, it has been held and observed that Section 81 of the Act mandates that the election petition be presented within 45 days from the date of declaration of the result of the returned candidates. Reading the word 'presented' used in Section 81 as 'registered' will amount to judicial amendment of the statute. With this, the objection on the ground of limitation was rejected.
21. As against this, the applicant has placed reliance on the judgment of the coordinate bench in the case of Ritaben Ketankumar Patel vs. Election Commission of India (supra), wherein, the coordinate bench, has referred to the judgment of the Apex Court in the case of Satya Narain vs. Dhuja Ram and Others reported in (1974) 4 SCC 237. It has been held and observed that the principal object of the Act is purity of elections. When therefore, an election of a returned candidate is challenged under the Act expeditious trial of the election dispute is sought to be enforced by the legislature making all safeguards against delay. Important object of the Act, namely, expeditious disposal of the election petition was read out from the provisions of sub-section (6) of Section 86 which provides that, "the trial of the election petition shall, so far as is practicable, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the Page 23 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined following day to be necessary for reasons, to be recorded."
Paragraphs 13 and 14 of the judgment, read thus:
"13. Keeping in the forefront the proper functioning of democracy, the principal object of the Act is purity of elections. When therefore, an election of a returned candidate is challenged under the Act, expeditious trial of the election dispute is sought to be enforced by the legislature making all safeguards against delay. Trial has to be necessarily expedited to rid the candidate as well as the constituency interested in the result of the election, of any taint or suspicion of corrupt practices which are again clearly enumerated in the Act. To take, therefore, another important object of the Act, viz., expeditious, disposal of an election petition, by section 86(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". Again under section 86(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". Further section 87(1) introduces the Civil Procedure Code only subject to the provisions of the Act and of any rules made thereunder. Section 87(2) makes a deeming provision for application of the Evidence Act only subject to the Act. Therefore, there is no scope for free play in the application of the provisions of those two Acts. The very object of expeditious trial will be defeated if the presentation of' the election petition should be treated casualty and lightly permitting, all kinds of devices to delay the ultimate trial. The purpose of enclosing the copies of the election petition for all the respondents is to enable quick despatch of the notice with the contents of the allegations for service on the respondent or respondents so that there is no delay in the trial at this very initial stage when the election petition is presented. If there is any halt or arrest in progress of the case, the object of the Act will be completely frustrated. We are, therefore, clearly of opinion that the 1st part of section 81(3) with which we are mainly concerned in this appeal is a peremptory provision and total, non-compliance with the same will entail dismissal of the election petition under section 86 of the Act.
14. We are, therefore, not required to consider the second submission, of the learned counsel for the appellant with regard to substantial compliance made on the basis of the provisions of section 81(3) being, directory. We may only add here that, in the absence of any provision under the Act or the rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation provided for under the Act. It may be noted that section 169 of the Act provides that the Central Government is the authority to make rules after consulting the Election Commission and in sub-section (3) thereof the rules have to be laid before each House of Parliament in the manner provided therein. The only reference to the High Court Rules is found in section 117 of the Act. At any rate, we do not feel called upon to pass on the High Court Rules referred to in the judgment of the High Page 24 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined Court in this case."
22. With regard to the substantial compliance, it has been further observed that in absence of any provision under the Act or the Rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of the defects in an election petition presented in the High Court beyond the period of limitation provided for under the Act. While concurring with the majority view, Hon'ble Mr Justice S. N. Dwivedi, in paragraph 19, has observed thus:
"19. Our decision restores that primacy of procedure over justice. It makes S. 86(1)a tyrannical master. The rigidity of the rule of precedent ties me to its chains. My only hope now is that Parliament would make a just choice between the social interest in the supply of copies by the election petitioner along with his election petition and the social interest in the purity of election by excluding s. 81(3) from the purview of s. 96(1) of the Act. Appeal dismissed."
23. Following the judgment of the Apex Court in the case of Satya Narain vs. Dhuja Ram (supra), in the case of Ashok Shankar Gholap vs. Krishnarao H. Deshmukh reported in AIR 1980 Bom. 224, the Bombay High Court, has held and observed that the office objections shall be removed before the period of limitation expires, failing which, the mandatory provisions of Section 86 shall come into operation and the petition must be dismissed as it cannot be said that the petition was presented within the prescribed period under the Act. Paragraphs 8, 9 and 10 are reproduced hereinbelow for ready reference.
"8. In the present case the Petitioner did not give copies of the election petition to the Officer of the High Court designated for the purpose until after the period of limitation for filing an election petition had expired. In such a case the mandatory provisions of Section 86 of the Act must come into operation and the petition must be dismissed because within the period prescribed under the Act the Petitioner had not presented the petition accompanied by the requisite number of copies as provided under Section 81 Sub- section (3) of the Act.
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9. It is also not open to the Petitioner to argue that under the Election Rules framed by the High Court the Officer concerned has a right to ask the parties or Advocate to attend the Office on the third day from the date of presentation of petition to remove the objections and the Advocate or the party is entitled to remove such objections within two days thereafter.
10. From these rules it cannot be deduced that even in a case where an election petition is filed on the last date of limitation, the petitioner would get an additional 5 days for removing objections. Before the expiry of the period of limitation the petition must be before the High Court without any objections relating to non- compliance with Section 81(3). In other words, all such objections must be removed by the Petitioner before the period of limitation expires. This is the view expressed by the Supreme Court in the case , and the Petitioner has not seriously argued to the contrary. He has attempted to show that copies were in fact filed before the expiry of the period of limitation. For the reasons stated by me earlier I am not inclined to accept this argument of the Petitioner."
24. Similarly, in the case of Jagannath Shindu Rahane vs. Manisha Manohar Nimkar reported in 1996 SCC Online Bom 160, the issue was as to whether the election petition can be dismissed for non- compliance of the provisions of Sections 81 and 83 of the Act of 1951 and the Rules framed thereunder for non furnishing of the true copy of the petition and affidavit in support of the petition. In the said case, it has been held that though the petition was presented on 25.04.1995, that is, day prior to the period of limitation, objections were removed on 09.05.1995 and the office has accepted the said petition as has been duly presented/filed on 10.05.1995 which was after the expiry of the period of limitation as prescribed under sub-section (1) of Section 81 of the Act of 1951. Relevant paragraphs 6, 24, 25 and 46 to 50 are reproduced hereinbelow for ready reference.
"6. On the basis of the pleadings on 12-10-1995 and on 10-4-1996 following issues were framed :---
ISSUES
1) Whether the petition is not maintainable and as such liable to be dismissed for want of necessary particulars as required under the law and the rules?Page 26 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025
NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined 1-A) Whether the petition is liable to be dismissed for non-compliance of provisions of sections 81 and 83 of the Representation of Peoples' Act and the Rules framed thereunder for not furnishing the true copy of the petition and affidavit accompanying in support of the petition.
2) Whether the petition is bad for non-joinder of necessary parties and as such liable to be dismissed?
3) Whether petitioner proves that the respondent does not belong to schedule tribe and as such was not eligible and qualified to file the nomination in the Palghar Constituency (No. 62) which is a reserved constituency for the candidates of schedule tribe?
4) Whether the respondent proves that she belongs to 'Malhar Koli and Warli' Caste and hence is a Tribal entitled to contest the Maharashtra Legislative Assembly Elections from Palghar Constituency in Thane District which is a Reserved Constituency?
5) Whether the Caste Certificate dated 4-2-1992 and Caste Certificate dated 16-12-1994 produced by the respondent were legal and valid?
6) Whether this Court has jurisdiction to make inquiries into the validity of the caste certificate?
7) What order?
xxxxx
24. As noticed earlier results of the election were declared on 12- 3- 1995. Under section 81(1) of the said Act an election petition calling and/or questioning the election has to be presented within 45 days from the date of declaration of the results which would mean that 45 days would expiry on 26-4-95. The petition has been lodged on 25-4-1995 i.e. a day prior to the expiry of the period of limitation. However as noticed earlier the objection crept therein were removed by the petitioner on 9-5-1995 and the office of the High Court has accepted the said petition as being duly presented/filed on 10-5-1995 which is after the expiry of the period of limitation as prescribed under sub-section (1) of section 81 of the said Act. The point of limitation is urged on behalf of the respondent on this background.
25. On behalf of the respondent Ld. Counsel Mr. Manohar highlighted all these various deficiencies/mistakes/omissions and non- compliance. Ld. Counsel for the respondent submitted that on account of non-compliance of mandatory statutory requirements of section 81(1)(3) and sub-section (2) of section 83 the election petition presented on 25th April, 1995 was not in the eye of law a proper election petition. Besides copy of the election petition furnished to the respondent is not a true and correct copy thereof. Various deficiencies and defects in the election petition and variances in its copy furnished to the respondent are material and inevitable consequence would be that as provided under section 86 of the said Act, the election petition must be dismissed.
xxxxx
46. One more aspect would need consideration in the context of Page 27 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined rules which have been framed by this Court with regard to the conduct of trial of election petition presented under the provisions of the said Act. Rules 6 to 9 are germane and which provided as under :---
"6. The election petition along with the necessary copies may be presented at any time during the Court hours. Immediately after it is presented, the date of presentation shall be endorsed thereon, and the petition shall be entered in a special register maintained for the registration of election petitions.
7. After the petition is presented, the party or Advocate shall be asked to attend the office on the third day from the date of the presentation to remove objections, if any. An undertaking in writing will be obtained from the party or Advocate to remain present in the office on the date appointed. The petitioner shall furnish his address preferably in Bombay or Nagpur, as the case may be, where any communication may be addressed to or served on him.
8. The office shall examine the petition with a view to see whether it is in conformity with the requirements of law and the rules applicable to the same, and if it is not in conformity with law and the rules, raise objections which could be removed by the party or the Advocate concerned. These objections should be brought to the notice of the party or the Advocate on the date fixed for attendance under Rule 7 and such objections shall be removed, subject to the orders of the Judge, if any, within two days thereafter.
9. Immediately after the time fixed for the removal of objections, the petition shall be placed before the Judge for such orders as may be required to be passed under section 86 of the Act. If the petition is not dismissed under section 86(1) of the Act, a summons, on the direction of the Judge, shall be issued to the respondents to appear before the High Court on a fixed date and answer the claim or claims made in the petition. Such date shall not be earlier than three weeks from the date of the issue of the summons. The summons shall be for written statement and settlement of issues and shall be served on the respondents through the Sheriff in Greater Bombay, and through the District Judges in the rest of the State, in the manner provided for the service of summons. The Prothonotary and Senior Master and the District Judge will make their best endeavor to serve the summons on the respondents and make a return of the service of the summons with the greatest expedition."
47. By reading the above rules it would be noticed that the election petition has to be presented along with necessary copies which is also requirement of section 81 of the said Act. Rule 7 provides for the removal of objections if any, which may be raised by the concerned officer attached to this Court in respect of election petition presented under Rule 6 above. Rule 8 which is very important in the scheme of the rules framed authorises or empowers the officer of this Court to ascertain and verify whether the petition as presented is in conformity with the requirements of law. The said rule further Page 28 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined provides that "such objection shall be removed, subject to the orders of the Judge, if any, within two days thereafter." Rule 9 provides for the placing of the election petition before the concerned Judge for passing an order under section 86 of the said Act.
48. I have already mentioned hereinabove as to how the petition came to be processed right from the time when it was presented before the Master and Assistant Prothonotary. The petition has been presented as is clearly borne out from the endorsements before the Master and Assistant Prothonotary, High Court. The first time the petition has been placed before the Court on 20-7-1995. Various deficiencies or objections were allowed to be removed by the office on 9-5-1995. It clearly shows that the matter was not placed before a Judge as required under Rules 8 and 9 of the said rules either at the stage of raising objections or at the time when the objections were allowed to be removed. There is no order of the Judge to the effect that the petitioner should be allowed to remove various objections which have been noted down by the concerned officer. It is obvious that it is the officer concerned who raised the objections and allowed the petitioner to remove the said objections, without placing the matter before the concerned Judge or bringing to his notice. It is also clear that the objections were removed and allowed to be removed after the period of limitation.
49. On reading the relevant rules of this Court which are already reproduced hereinabove, I do not find that the same explicitly or impliedly authorise or empower the officer of this Court to allow the party-the electioning petitioner to cure the defects and deficiencies in the petition without order of the Court. It will therefore be a legitimate question as to whether what the concerned officer of this Court has done in the matter would be permissible either under the said rules or under the statute.
50. The second point which emerges is that the objections were allowed to be removed on 9-5-95 and the petition has been accepted, as the endorsement shows and as mentioned earlier on 10-5-1995. It clearly shows that the petition as such has been properly filed and/or presented in this Court on 10-5-1995 which is beyond the period of limitation as provided under section 81(1) of the said Act. The petition has been accepted as duly filed by the office itself on 10-5- 1995. No Judge was concerned or involved upto that stage. The matter in such a situation ought to have been placed before the Court, meaning thereby before the concerned Judge and his orders and directions sought. Rue 9 makes it so imperative. On plain reading and construction and interpretation of the relevant rules framed by this Court under the provisions of the said Act, in my view, this would be proper and appropriate course to be followed and adopted in the situation as obtained in the matter herein. The Court wishes to make it clear that the officer of this Court, be it Prothonotary & Senior Master or Master and Assistant Prothonotary or for that matter any officer concerned has no power or authority to allow the curing of the deficiencies or rectifying defects in the petition after expiry of the period of limitation either under the High Court Rules or under the said Act. In my view, all steps which have been taken by the concerned officer in particular allowing removal of the objections after the period of limitation was wholly illegal and therefore not Page 29 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined permissible."
25. Coordinate bench, in the case of Ritaben Ketankumar Patel vs. Election Commission of India (supra) has relied upon the above three judgments and after considering the provisions of Section 81 of the Act of 1951 so also the Rules of 1993, more particularly, Rule 277, has held and observed that mere presentation of the election petition, shall not amount to substantial compliance made on the basis of provisions of sub-section (1) of Section 81 of the Act of 1951. Clearly, none of the Rules make a provision allowing the correction or removal of the office objection in an election petition beyond the period of limitation of 45 days as provided in sub-section (1) of Section 81 of the Act of 1951. Relevant paragraphs 45 to 48, read thus:
"45. From the undisputed facts emerging from the record read with above decisions it is discernible that mere presentation of the Election Petition shall not amount to substantial compliance made on the basis of the provisions of section 81(1) of the RP Act considering Rules 277 to 284 of the Rules. In absence of any provision under the RP Act or the Rules made thereunder, the High Court Rules cannot confer upon the Registrar, Deputy Registrar any power to permit correction or removal of objections in an Election Petition presented in the High Court beyond the period of limitation provide for under section 81 of the RP Act. Therefore, in the facts of the case, the Registry did not have any power or jurisdiction to permit the petitioner or the clerk of the advocate to remove office objection in the Election Petition filed on 10.01.2023 beyond the period of limitation expiring on 23.01.2023.
46. Therefore, in the facts of the case, when the Registry was not within its jurisdiction to permit the petitioner to remove the office objection after 23.01.2023, Election Petition cannot be said to have been presented within the prescribed period of limitation as the same was registered by the Registrar of High Court on 23.02.2023 which is admittedly beyond the period of limitation of forty-five days prescribed under section 81(1) of the RP Act.
47. In view of the above facts and settled legal position, there is no need to refer to breach of section 82 or 117 of RP Act as alleged by the applicant as the petition is liable to be rejected for non- compliance with the provision of section 81(1) as the Office Objections were admittedly removed after 23.01.2023 which could not have been permitted by the Registry of Court as per the decision of the Hon'ble Apex Court in case of Satya Narain (supra)which was followed by the Hon'ble Bombay High Court in Page 30 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined case of Jagannath Sindu Rahane (supra)and Ashok Shankar Gholap (supra).
48. In view of the decision of the Hon'ble Apex Court in case of Satya Narain(supra), the Election Petition is liable to be rejected as the same was not complying with the provisions of section 81 read with section 86(1) of the RP Act under Order 7 Rule 11 of the Code being barred by law."
26. Pertinently, some of the provisions of the applicable Rules of 1993 governing the filing of the election petition are in pari materia with the Rules framed by the High Court of Bombay, namely, Rule 277 which is in pari materia with Rule 6; Rule 283 of the Rules of 1993 is in pari materia with Rule 8 of the Bombay High Court Rules; Rules 284 and 285 are almost similar to Rule 9 of the Rules of Bombay High Court.
27. Chapter XXII titled, "Rules under the Representation of People Act, 1951" of the Rules of 1993 would be apt. Sub-clause (ii) of Rule 272 states that the election petition shall comply with the provisions of Sections 81, 82, 83 and 84 of the Act of 1951. Rule 277 is a provision which indicates the time for presentation. It states that the petition shall be presented in the office of the Registrar ordinarily between the prescribed time. Rule 277 reads thus:
"277. Time for Presentation.--The petition shall be presented in the office of the Registrar General or to such person as the Registrar General may, by general or special order authorise, ordinarily between 10:30 A.M. to 4:00 P.M. The petition presented on the last day of limitation and the petition requiring any urgent orders may be accepted after 4:00 P.M. upon an order in that behalf passed by the Assistant Registrar."
28. Similarly, other Rules which are relevant for the present purpose are Rules 282 to 284; 285 of the Rules of 1993 and are as under:
"282. Registration of Petition.--
(i) Immediately after the petition is presented the date of presentation shall be endorsed thereon and the petition shall be entered in the special register maintained for the Page 31 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined registration of election petitions.
(ii) After the petition is presented, the party or Advocate or his recognised clerk shall give an undertaking to attend the office on the third day from the date of the presentation to remove office objections, if any.
(iii) After the petition is presented and registered, the office shall intimate the fact of the filing of the petition to the Election Commission in Form No. 1."
29. Rule 282 states that immediately after the petition is presented, the date of presentation shall be endorsed thereon and the petition shall be entered in the special register. Sub-clause (ii) of Rule 282 requires an undertaking by the parties, the advocate or the clerk to attend the office on third day from the date of presentation to remove office objections, if any.
30. Rule 283 envisages the examination of petition. Office is under an obligation to examine the petition with a view to seeing whether it is in conformity with the requirements of law and applicable rules. If it is not, it will be open to the office to raise the objection, which then shall be removed. Further obligation is cast on the office to complete the examination within two days after filing of the petition and the office objections shall be intimated to the party on the date fixed for attendance as contained in sub-rule (ii) of Rule 282. It further provides that the objections which shall be removed subject to the orders of the Court if any within three days thereafter. It reads thus:
"283. Examination of petition.--The office shall examine the petition with a view to see whether it is in conformity with the requirements of law and rules applicable to the same, and if it is not in conformity with law and rules, raise objections which should be removed by the party or the Advocate concerned. The office shall complete the examination within two days after filing of the petition and shall bring the office objections to the notice of the party or the Advocate on the date fixed for attendance under rule 282(ii) and such objections shall be removed, subject to the orders of the Court, if any, within three days thereafter."
31. If during the time fixed, the objections are not removed, as per Page 32 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025 NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined the provisions of Rule 283, the petition is to be placed before the Judge for the appropriate orders and after the removal of the office objections, the petition shall be placed before the learned Judge for consideration as to whether the petition is liable to be dismissed and if it is not dismissed, the learned Judge shall direct issue of summons upon the respondent. Rules 284 and 285 read thus:
"284. Petition to be placed for orders if objection not removed.-- Immediately after the expiration of time fixed for the removal of objections, the petition shall be placed before the Judge for appropriate orders.
285. Petition to be placed for orders after removal of office objections.--
(i) After the removal of office objections, the petition shall be placed before the Judge for consideration as to whether the petition is liable to be dismissed under section 86(1) of the Act. If the petition is not dismissed under section 86(1) of the Act, the Judge shall direct issue of summons upon the respondent; and the summons shall be issued to the respondent to appear before the High Court on the date fixed and answer the claim or claims made in the petition.
(ii) The summons to the respondent to appear and answer shall be in Form No.2 with such variations as the circumstances of the case may require.
(iii) A copy of the petition shall be served upon the respondent along with summons.
(iv) The summons shall require each respondent to file written statement in answer to the petition. The written statement shall be either printed or typewritten neatly and legibly with sufficient space between lines on strong and durable foolscap size paper or other paper similar to it in size and quality duly paged and indexed together with typed copies of such documents as the respondent desires to rely upon and if such documents are in Gujarati, together with typed copies of translation of such documents in English and shall be filed within 21 days of the date of service of summons upon him or within such further time as the court may allow.
(v) The respondent shall also be required to serve a true copy of the written statement together with all annexure on the petitioner or his Advocate, on or before filing the same in the office.
(vi) Unless otherwise ordered every writ of summons shall be made returnable within three weeks from the date of the order of the Judge or within such time as the Judge may fix in that behalf.Page 33 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025
NEUTRAL CITATION C/EP/9/2023 CAV JUDGMENT DATED: 07/02/2025 undefined
(vii) The summons shall be served in the manner prescribed for service of summons and notices in the Code of Civil Procedure read with these Rules.
(viii) The summons shall be marked Very urgent' and shall be accompanied by a letter to the Officer directed to effect service of the summons to serve the same immediately."
32. While respectfully agreeing with the view taken by the coordinate bench as well as the Bombay High Court, this Court is of the opinion that there is no provision which confers any power upon the Registrar or any officer authorized by him to permit the correction or removal of the objection in an election petition beyond the period of 45 days. Undisputably, in the case on hand, the petition was presented on 18.01.2023 and the limitation got over on 23.01.2023 whereas, removal of office objections and registration of the election petition, both, took place only on 17.02.2023 and therefore, in the opinion of this Court, the election petition is barred by the limitation and is liable to be rejected under Order VII Rule 11
(d) of the Code. On this count alone, Election Application no.22 of 2023 succeeds and is accordingly allowed. Other issues raised hence, are not gone into.
33. In view of the above, the Election Petition no.9 of 2023 stands rejected. Other connected applications, if any, stand dismissed.
34. At this stage, Mr Anil Patel, learned advocate for Mr Amit R. Joshi, learned advocate for the petitioner, requests for stay of the CAV judgment which request, is not acceded to and is rejected.
Sd/-
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 34 of 34 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:05:07 IST 2025