Bombay High Court
Delkar Mohanbhai Sanjibhai vs Patel Natubhai Gomanbhai & Ors on 19 March, 2010
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION NO.4 OF 2009
WITH
APPLICATION NO.5 OF 2009
WITH
APPLICATON NO.7 OF 2009
IN
ELECTION PETITION NO.2 OF 2009
Delkar Mohanbhai Sanjibhai ...Petitioner
Versus
Patel Natubhai Gomanbhai & Ors. ...Respondents
ig ......
CORAM:- A.M.KHANWILKAR, J
DATED :- MARCH 19, 2010.
PER COURT :
1. This common order will dispose of Application No.4 of 2009, 5 of
2009 and 7 of 2009 together.
2. The above numbered Election Petition has been filed to declare the
Election of Respondent No.1 from the parliamentary constituency of UO3,
Dadra & Nagar Haveli as void and to further declare that the Petitioner has
obtained majority of valid votes and declared as elected in respect of
parliamentary constituency of Dadra & Nagar Haveli UO3 in the 15th
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Loksabha Elections held on 30th April 2009. The Petitioner contested the
Election as nominated candidate of Indian National Congress Party,
whereas, the Respondent No.1 contested as nominated candidate of
Bharatiya Janata Party. The ground on which the above declaration is
sought is that the Respondent No.1 himself and his agent and other persons
indulged in corrupt practice within the meaning of Section 123(1)(A) and
123(2) and 123(3) of the Representation of the People Act, 1951
(hereinafter referred to as `the Act of 1951'). Pursuant to the issuance of
notice by this Court on 17th July 2009 in the above said Election Petition
and service thereof on the concerned Respondents, the Respondent No.1
and Respondent No.8 have filed the above mentioned Applications.
3. Application No.4/2009 has been filed by the Respondent No.1
praying for dismissal of the Election Petition under Section 86 r/w Section
81(3) and 82 of the Act of 1951 for the reasons mentioned therein. During
the pendency of this Application, the Respondent No.1 has filed another
Application being Application No.7/2009 praying for amendment of
Application No.4/2009 as per the Schedule to the said Application. This
Application was proceeded on clear understanding of all parties that the
Court would grant the relief of amendment as prayed and the arguments to
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continue as if the amendment in terms of Schedule to the Application is
already effected in the Application No.4/2009.
4. Besides, the above two Applications, the third Application being
Application No.5/2009 has been filed by Respondent No.8 for the same
relief of dismissal of Election Petition under Section 86 r/w Section 81(3)
and 82 of the Act of 1951. The reasons stated in this Application are
overlapping with the reasons stated in Application filed by Respondent No.
1 for the same relief.
5. Reverting to the grounds stated in the Application No.4/2009, it is the
case of the Respondent No.1 that the Petitioner was obliged to file at least
20 copies of the Election Petition when the Election Petition was presented
for effecting service on ten Respondents by two different modes provided
under Rule 9 and Rule 10 of the Rules of the Bombay High Court in regard
to the Election Petitions under the Act of 1951 (hereinafter referred to as the
`Election Petition Rules'). It is stated that the Election Petition was lodged
on 25th June 2009 when the concerned Officer made noting that the Office
to accept for lodging along with ten copies. However, there is no indication
that the Petitioner had in fact lodged ten copies along with the Election
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Petition on 25th June 2009. Even Paragraph 36B of the Petition does not
specify as to how many number of spare copies have been
supplied/furnished/tendered along with the Election Petition at the time of
lodging the same. According to the Respondent No.1, no copies were
supplied/furnished or tendered by the Petitioner at the time of lodging of
the Election Petition. It is further stated that certain objections were raised
by the Office and the same were removed on 26th June 2009. Moreover, ten
copies of the Election Petition came to be tendered in the Office and
accepted by the Officer on 30th June 2009 illegally and without authority of
Law. For, once a Petition is filed and numbered, no addition or deletion
thereto could be made without the permission of the Court. It is stated that
the Respondent No.1, in all, received two copies of the Petition served
through two different modes- one through courier service and another
through RPAD. That goes to show that the Petitioner had not filed ten
copies at the time of lodging the Petition, much less, twenty copies as was
required to effect service on the ten Respondents in the Petition by two
different modes as per the Election Petition Rules. It is further asserted that
the Petition served on the Respondents did not contain attestation of the
Petitioner under his own signature to be a true copy of the Petition. In
Paragraph 2 of the Application, reference is made to Page Nos.47, 50, 65,
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76, 79, 83, 86, 88, 104, 107, 110, 112, 114, 119, 121, 124, 126, 129, 132,
136, 138, 140, 142, 144, 146, 148, 150, 152, 154, 156, 158, 160, 162, 164,
166, 169, 172, 174, 177, 179, 182, 184, 187, 189, 192, 194, 197, 199, 202,
204, 211, 213, 215, 248, 252, 258, 261, 263, 266, 268, 301, 305, 307, 309,
311, 313, 316, 353, 355, 357, 362, 365, 370, 404, 406, 408, 410, 412 of the
Election Petition which according to the Respondent No.1 have not been
attested by the Petitioner under his own signature to be a true copy of the
Petition. It is stated that upon taking inspection of the original Election
Petition on 18th August 2009, it was noticed that the above numbered pages
wherein the Petitioner had done verification in respect of certain
documents, but he did not attest the said pages under his own signature.
According to the Respondent No.1, therefore, there was breach of Section
81(3) of the Act of 1951, entailing in dismissal of Election Petition under
Section 86 of the Act of 1951.
6. It is next contended that the Petitioner has annexed colour photos of
the photographs relied upon in the Election Petition, whereas, the copy
served on the said Respondent was xerox copy (black and white copy) of
the photographs. More so, photographs were not legible and the Applicant
is unable to discern the same and identify the persons shown in the
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photographs. For that reason, the Respondent/Applicant was prejudiced in
formulating his defence. Reference is then made to certain pages which are
stated to be illegible, namely; 139, 149, 151, 157, 159, 214, 216, 217, 251,
260, 265, 267, 269, 270, 283, 284, 285, 286, 299, 302, 304, 306, 308, 315,
317, 372, 373, 385, 386, 388, 389, 393, 405, 407, 409, 411, 413, 418, 422,
427, 428, 441, 444, 447, 456, 457, 458, 460, 462, 464, 479 and 486. For the
above reasons, it is stated that the copies of photographs which have been
furnished to the Applicant were not true copies of the Annexure of the
Election Petition and the copy served on the said Respondent therefore not
being a true copy of the Election Petition would entail in dismissal of the
Election Petition for breach of Section 81(3) of the Act of 1951.
7. To buttress the above argument, the Counsel appearing for the
Respondent No.1 handed over the two copies received by the said
Respondent along with the notices. The same have been taken on record
and kept in a sealed cover as has been noted in the order dated 11th
December 2002. Be that as it may, the Respondent No.1 in his Application
has further stated that the Petitioner was obliged to furnish English
translation of the vernacular documents which were appended to the
Election Petition as is required by Rule 28 of the Election Petition Rules
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r/w Rule 42 of the Bombay High Court (Original Side) Rules. However, the
Petition served on the Respondent/Applicant contained many pages in
vernacular language, which are exhibited along with the Election Petition
without English translation thereof. Therefore, the Election Petition as filed
is defective and the Office ought not to have allowed filing of such
defective Petition. Besides, such defective Petition was served on the
Respondent/Applicant which cannot be treated as true copy of the Petition.
According to the said Respondent/Applicant even till filing of the
Application, the Petitioner had not furnished the English translation of the
said documents, for which reason, the defective Election Petition will have
to be treated as barred by limitation. Even for this reason, the
Respondent/Applicant has prayed for dismissal of Election Petition under
Section 86 of the Act of 1951.
8. It is next asserted that the Petitioner has made reference to certain
documents in the Election Petition which are in vernacular language. On
account of non furnishing of English translation thereof, the same would
become integral part of the Election Petition. Resultantly, the Election
Petition as served on the Respondent/Applicant was not a true copy within
the meaning of Section 81(3) of the Act of 1951 for want of English
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translation of such vernacular documents. The said Respondent/Applicant
has then made reference to Paragraph 16 of the Petition to indicate that it
refers to Luhari Times Magazine of March 2009, containing a photograph
of Lalit Patel on the dais along with Narendra Modi on 25th April 2009.
According to the Applicant, the photograph was integral part of the Election
Petition and not merely a piece of evidence. In absence of photograph, the
averment in Paragraph 16 would be incomplete. For that reason, the
Election Petition was liable to be dismissed under Section 86 r/w 81(3) of
the Act of 1951.
9. The said Applicant has then made reference to Paragraph 21 of the
Election Petition which in turn mentions about page 3 of Luhari Times of
April 2009 which document is in vernacular language and English
translation whereof has not been furnished. This, according to the Applicant
also formed integral part of the Election Petition. Accordingly, the Election
Petition was liable to be dismissed by virtue of Section 83(3) of the Act of
1951.
10. In Paragraphs 6 and 7 of the Application, it is stated that the Election
Petition contains allegations pertaining to acts of commission and omission
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of period anterior to the date of candidate's nomination. Accordingly, such
allegations ought to be struck off under the provisions of the Code of Civil
Procedure. However, during the course of arguments, Counsel appearing
for the Applicant, in all fairness, submitted that this ground cannot be the
cause for dismissal of the Election Petition under Section 86 of the Act of
1951. In the circumstances, the Applicant would reserve the said ground
and take out necessary proceedings in that behalf. In the circumstances, it
may not be necessary to dilate further on this aspect with clear
understanding that the Applicant would be free to ask for appropriate relief
as may be advised in this behalf, which will be considered on its own
merits.
11. In Paragraph 8 of the Application, it is stated that the Election
Petition should be dismissed under Section 86 r/w Section 82 of the Act of
1951 for misjoinder of parties and more particularly, for impleading parties
contrary to Section 82 of the Act of 1951. It is stated that Respondents 5, 8,
10 and 11 have been impleaded as party to the Election Petition. Therefore,
the Election Petition should be dismissed.
12. As aforesaid, during pendency of this Application No.4/2009, the
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Respondent No.1 has filed Application No.7/2009 praying for amendment
of the pending Application. By way of amendment, as articulated in the
Schedule to the Application, the Respondent No.1/Applicant asserted that
the Petitioner was obliged to effect service on the Respondents by modes
provided under Rule 9 and Rule 10 of the Election Petition Rules. As per
Rule 10, the Petitioner was required to furnish extra copies of the Petition
to be served along with the summons by registered post. Besides, by order
dated 17th July 2009, the Court had directed the Petitioner to serve the
Respondents in addition. However, the Applicant has received only two
copies of the Election Petition, one by R.P.A.D. and the other by courier
service. The copies received by R.P.A.D. are stitched in book form as per
Rule 3, whereas, copy received by courier service is not stitched in book
form as per the said Rule. It is stated that as the Election Petition pertain to
Dadra Nagar Haveli District, which was outside the Greater Mumbai, it was
mandatory on the part of the Petitioner to serve the Respondents through
District Judge of Dadra Nagar Haveli as per Rule 9 of the Election Petition
Rules. Service by mode provided in Rule 9 was mandatory and failure to
serve by that mode, was fatal. It is further averred that Respondent is
prejudiced by the act of Office of this Court in allowing the Petitioner to
withdraw copies of the Election Petition for service on the Respondents
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which were allegedly supplied by the Petitioner. Because, it is not clear as
to whether the same copies which were earlier submitted by the Petitioner
in the Office, were received by the Respondent along with the summons
served on the Respondents. It is stated that the Respondent has not
received copy of the Election Petition as per Rule 9 which service was to be
effected by the District Judge. According to the said Respondent/Applicant,
there is neither any outward entry made regarding dispatch of notice to
District Judge or any inward entry for having received the intimation from
the District Judge regarding service on the Respondent. According to the
said Respondent/Applicant if one copy out of the copies to be served on
him by different modes was to be defective, would give right to the
Respondent to apply for dismissal of the Election Petition on account of
non-service of notice by modes provided in Rules 9 and 10 of the Election
Petition Rules, having caused prejudice to the Respondent. For all these
reasons, the Respondent No.1 prays for dismissal of the Election Petition.
13. Insofar as Respondent No.8 is concerned, in his Application No.
5/2009, overlapping grounds have been raised for dismissal of the Election
Petition. It is stated that every Election Petition shall be accompanied by as
many copies thereof as there are Respondents in the Petition and every such
copy shall be attested by the Petitioner under his own signature to be a true
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copy of the Petition. It is then stated that under Rule 10 in addition to
service of summons to be effected under Rule 9 of the said Rules, a
summons shall also be sent to the Respondents to the address given by the
Petitioner by registered post prepaid for acknowledgment and for that
purpose, the Petitioner has to furnish extra copies of the Petition to be
served along with the summons by registered post. According to the
Respondent No.8, the Petitioner was under obligation to file the Election
Petition accompanied by copies as provided under Section 81(3) of the Act
of 1951 and for the purpose of Rule 10 of the Election Petition Rules under
Appendix II. It is then stated that upon taking inspection of the original file
of the Election Petition on 18th August 2009 it has been noticed that the
Petition was lodged on 25th June 2009. The Officer concerned made a note
that the Registry to accept the said Petition for lodging along with ten
copies. It is stated that though the Petition was accepted by the Registry on
25th June 2009, there is no noting that the same was accompanied by ten
copies, as directed by the Officer concerned. It was further noted that the
Registry had raised certain objections and according to the noting thereon,
the said objections were complied with on 26th June 2009 and the Petition
was filed on 29th June 2009. Further, there is a noting dated 30th June
2009 by the Officer concerned that "ten copies of the Election Peittion had
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been tendred in the Registry on 30th June 2009" and the Officer concerned
has accepted the same, which was illegal and without any authority of law.
According to the said Respondent, acceptance of ten copies by the Officer
concerned of the Registry after the Petition was numbered under the garb
that it was in compliance of the objections raised, was impermissible. In
that, the Officer could not have allowed removal of objections in the
Election Petition without order of the Court once the Petition was
numbered. In other words, the Officer had no power to take the said spare
copies on record. According to the said Respondent, the Petition deserves to
be dismissed on account of non compliance of Section 81(3) of the Act of
1951 read with Rule 10 of the Election Petition Rules in Appendix II of the
High Court (Original Side) Rules r/w Section 86 of the Act of 1951.
14. In Paragraph 7 of this Application, the Respondent No.8 has asserted
that upon inspection of the original Election Petition, it is noticed that the
original copy is containing the coloured photographs at pages 139, 149,
151, 157, 159, 214, 216, 217, 251, 260, 265, 267, 269, 270, 283, 284, 285,
286, 299, 302, 304, 306, 308, 315, 317, 372, 373, 385, 386, 388, 389, 393,
405, 407, 409, 411, 413, 418, 422, 427, 428, 441, 444, 447, 456, 457, 458,
460, 462, 464, 479 and 486, but the copies served upon the said Respondent
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does not contain coloured photographs but photo copies (black and white)
thereof which were not legible. Therefore, the Election Petition as served
upon the said Respondent was not a true copy and violated mandate of
Section 81(3) of the Act of 1951, for which, it deserves to be dismissed
under Section 86(1) of the Act of 1951.
15. In Paragraph 8 of the Application, the Respondent No.8 has asserted
that although the Petitioner is expected to sign the Petition under his own
signature as true copy, but has not done so. That can be discerned from
pages 47, 50, 65, 76, 79, 83, 86, 88, 104, 107, 110, 112, 114, 119, 121, 124,
126, 129, 132, 136, 138, 140, 142, 144, 146, 148, 150, 152, 154, 156, 158,
160, 162, 164, 166, 169, 172, 174, 177, 179, 182, 184, 187, 189, 192, 194,
197, 199, 202, 204, 211, 213, 215, 248, 252, 258, 261, 263, 266, 268, 301,
305, 307, 309, 311, 313, 316, 353, 355, 357, 362, 365, 370, 404, 406, 408,
410, 412. The first signature as deponent relates only to the execution of the
verification, while the second signature relates to the entire page. Thus,
both the signatures were to be made for different purposes but the Petitioner
has failed to do so. Accordingly, the Petition deserves to be dismissed under
Section 86 r/w Sections 81(3) and 82 of the Act of 1951.
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16. The Petitioner has filed reply affidavit to counter the case made out
by the Respondents in the aforesaid applications. Both Counsel advanced
submissions at length in support of and to oppose the grounds stated in the
respective Applications. Broadly, it was argued that the Election Petition
deserves to be dismissed because of the circumstances that would emerge
from record. In that, it can be inferred that the Petitioner had failed to file
ten spare copies along with the Election Petition. Moreover, the spare
copies were submitted after the period of limitation to present the Election
Petition had expired. It was next contended that the Petition was not served
on the Respondents by mode provided under Rule 9 of the Election Petition
Rules, which was fatal. Further, there was no provision to allow withdrawal
of the copies of the Election Petition once lodged in the Registry along with
Election Petition. Allowing the Petitioner to withdraw the spare copies from
the Registry, gave opportunity to the Petitioner to change or modify the
copies and more so, denuding the Respondents of their right to pray for
dismissal of the Election Petition on the ground that the spare copies which
were originally filed along with the Election Petition were not true copies
thereof. It is next contended that there was no attestation on several pages
of verification by the Petitioner under his own signature to state that the
document was true copy. Further, the copies of Election Petition as supplied
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to the Respondents were illegible, incomplete and did not contain coloured
photographs. According to the Respondents, the Official translation of
vernacular documents appended to the Election Petition which formed
integral part thereof was not furnished to the Respondents. As a result, the
copy of the Petition served on the Respondents was not a true copy of the
Petition. Besides, Respondent Nos.5, 8, 10 and 11 were not necessary
parties and for which reason, the Election Petition deserve to be dismissed
on account of Section 82 r/w Section 86 of the Act of 1951. It was also
argued that the office objections could not have been removed without the
order of the Court considering the purport of Rule 7 and Rule 8 of the
Election Petition Rules. In support of the submissions, both sides relied on
decisions of our High Court as well as the Supreme Court. Reference to
those decisions will be made at the appropriate places.
17. Before I proceed to examine the moot question that arises for
consideration, to complete the narration of events, it would be apposite to
note that after notice was duly served on the Respondents, the Respondents
1 and 8 filed the above numbered Application Nos.4/09 and 5/09
respectively. The said Applications were listed for hearing along with the
Election Petition on 4th December 2009 when the Court passed the
following order:
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"Counsel appearing for the Petitioner has offered to furnish the coloured
photographs and original magazines duly initialed by Petitioner on each
page, which have been referred to in the Election Petition. According to the
Petitioner, supplying such copies even at this stage would be substantial
compliance of the requirement of the relevant provisions and can be no
ground to dismiss the Election Petition at the threshold, in view of the
exposition of the Apex Court in the case of 1999 2 SCC 204 in Anil
Deshmukh's case.
2. Counsel for the Respondent has opposed this argument but is inclined to
accept the coloured photographs and magazines as furnished by the Petitioner
today across the bar without prejudice to the rights and contentions of the
Respondent Nos. 1 and 8.
3. All questions which have been raised in the Application Nos. 4 & 5 of
2009 are left open to be considered at the appropriate stage. For the time
being, Counsel for the Respondents 1 & 8 seek adjournment to enable them
to take instructions and also examine the coloured photographs and
magazines handed over to them today in Court. Accordingly, stand over to
11th December, 2009."
18. The matter was deferred till 11th December 2009, when the Court
noted as follows:
"1. Counsel for the Applicant/Original Respondent No.1 has
concluded his arguments. As Court time is over, hearing of the
Application stands deferred to 18th December 2009, which is the next
earliest date available for this assignment.
2. Counsel for the Applicant, to buttress his submissions in relation
to ground specified in Paragraph 3 of the Application has tendered copies
of the Petitions served on the Respondent No.1 through courier service
as well as court service by registered A.D. The Counsel for the
Respondent No.1 has flagged the relevant pages which according to the
said Respondent are illegible copies as referred to in paragraph 3 of the
Application. The said paper-books are taken on record, to be kept in
sealed cover.
3. At this stage, Counsel for the Respondent No.1 seeks liberty to
submit these documents to the Associate on 14th December 2009.
Counsel for the Petitioners has no objection in this behalf. "
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19. When the Applications were proceeded for further hearing on
4th January 2010, the Court, prima facie, opined that the challenge put
forth by the Respondents 1 and 8 was on certain hypothesis. The Court after
perusing the relevant notings on the original file and after seeking
explanation of the concerned Officials, was of the view that the Petitioner
has lodged Election Petition accompanied by ten copies thereof on 25th
June 2009 itself. In the circumstances, the Court passed the following
speaking order :
"1. During the course of hearing one of the argument, which has been
canvassed and will have to be addressed is whether the Election Petitioner
had filed sufficient number of copies (ten spare copies) alongwith the
Election Petition when the same was lodged. Counsel appearing for the
Respondent Nos. 1 & 8 have challenged that fact on certain assumptions. To
answer the controversy, I would prefer to rely on the record of this Court,
instead of the assumptions and in particular the rival stand. Going by the
said record, it is noticed that the Election Petition was presented before Mrs.
A.Upadhaya, Master Asstt. & Prothonotary(Judicial) on 25th June, 2009,
when she noted that the Office to accept the Petition for lodging alongwith 10
copies of Petition. Obviously after this noting is made, advocate for the
Petitioner lodged the Petition in the Board Department, who in turn accepted
the Petition alongwith Rs. 2,000/-, as noted by the superior Officer, which
entry is found at Sr.No.2 of the same date. It is obvious that the subordinate
officers of the Board Department who have accepted the Petition must have
ensured that the Petition is accompanied by 10 copies thereof, as per the
noting made by the superior officer. We can therefore, safely presume that
the Petition was lodged alongwith 10 copies, as was required to be done in
terms of the noting made by the superior officer. This position is reinforced
from the fact that the Petition as lodged alongwith 10 copies was placed for
scrutiny before the same superior officer(Mrs. A.A.Upadhaya) on 26th June,
2009. She has noted six objections, which were required to be removed by
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the Election Petitioner. There is no mention of the fact that the Petition was
not accompanied by 10 copies, as was expected to be lodged in terms of her
previous noting made on 25th June, 2009 on the same farad. In other words,
it can be safely presumed that the Election Petitioner has lodged Election
Petition accompanied by 10 spare copies thereof. Whether the said 10
copies are true copies or otherwise is a matter, which will have to be enquired
into independently. Suffice it to observe that I have no hesitation in
proceeding on the assumption that the Election Petitioner lodged Election
Petition accompanied by 10 copies thereof.
2. However, some doubt has been raised in view of the noting found
between the two notings of 25th June, 2009. It is inserted between the two
noting in bracketed form. It states that (received 10 copies on 30 th June,
2009) and the officer who has made that noting has put his initial. On
enquiry with the concerned officers, it was found that the said noting has
been made by Mr. Mathkar, Master & Asstt. Prothonotary(Judicial). Even
that officer is present in Court and has explained the circumstances, in which
he has made the said noting. Both the superior officers, Mrs. Upadhaya and
Mr. Mathkar have confidently stated before me the above position, besides
producing the original record that the Election Petition was infact lodged on
25th June, 2009. It is stated that the ten spare copies so filed were kept in safe
custody in the chamber of Mr. Mathkar till the same were required to be sent
for service after issuance of process.
3. After having perused the office record and interviewing the officers, I
have no hesitation in rejecting the argument of the Respondents, which is
founded on certain assumptions.
4. Counsel appearing for the Respondents submits that if the Court is
relying on the statement of the officers, it would be appropriate to examine
the said officers on oath so that the Respondents would get opportunity to
cross-examine the said officers as well. I have no difficulty in accepting this
request only to reassure myself about the correct position, since the
presumption arising from the official record is obviously rebuttable one. In
the circumstances, I call upon the concerned officers, who have made
notings on 25th, 26th and 30th June, 2009 respectively, to offer themselves as
Court witnesses.
5. The said witnesses are accordingly examined as Court witnesses.
Their evidence has since been recorded.
6. The argument on other issue is proceeded, which has remained
inconclusive at the end of the day. The same will continue tomorrow. My
final opinion on all issues will be rendered together while disposing the
interim applications filed by the Respondents."
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20. As per the observation made in the above order, the two Court
Officials were examined on oath as Court witnesses. The evidence of
Mrs.A.A.Upadhye, Court Officer [Master & Assistant Prothonotary
(Judicial)] is as follows:
"Examination-in-Chief :
1. I am working as Master Asst. & Prothonotary(Judicial) and Incharge
of Writ Department.
2. On 25th June, 2009, my colleague Mr.Mathkar who looks after
Election Petition was absent. On that day, Clerk from Little and Company
came with the Election Petition alongwith copies for getting it lodged.
Court Question: In absence of Mr. Mathkar, whether you were authorised to
entertain such Petition.
Ans.: Yes.
3. I do not know the name of the Clerk of Little and Co. who had
approached me. He came with the Election Petition alongwith copies to get
it lodged.
4. Court Question: Whether you enquired about the number of spare
copies of Election Petition available alongwith the Petition ?
Ans: I did not enquire as to how many number of copies were available
alongwith the Petition with him at that time.
5. As I was not knowing the procedure of filing of Election Petition, I
telephoned Mr.Mathkar, Master & Asstt. Prothonotary(Judicial), as to what
steps should be taken. Mr. Mathkar informed me that on the docket of the
Election Petition I will have to record that office to accept Election Petition
for lodging alongwith 10 copies. Accordingly, I made such endorsement on
25th June 2009.
6. Court Question: Why did Mr. Matkar tell you to mention 10 copies of
the Election Petition ?
Ans: Mr.Mathkar did not tell me to record 10 copies, but told me that
mention the number of copies to be accompanied with the Election Petition
depending on the number of Respondents and it should be commensurate
number.
7. Thereafter, the Clerk of the Solicitor's Firm went and lodged the
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Election Petition in the Board Department and 10 copies were handed over to
the Stenographer of Mr.Mathkar in the Chamber of Mr.Mathkar, to be kept in
safe custody. I do not remember the name of the said Stenographer who
received 10 copies in the office of Mr.Mathkar. He was his stenographer at
the relevant time. I instructed the stenographer to keep the 10 spare copies of
the Election Petition in safe custody, to be made over to Mr. Mathkar, when
he resumes office.
8. On 26th June, 2009, the Clerk of the Solicitor Firm again approached
me. Thereafter, original papers of Election Petition were produced before me
by the Officer of the Board Department. I was requested to scrutinise the
matter within 3 days, as required in terms of Rule 7. I was not familiar with
scrutinizing the Election Petition, but in consultation with Mr. Mathkar, I
completed the scrutiny of the Election Petition. The spare copies of the
Election Petition, which were lodged alongwith Election Petition remained in
the safe custody of office of Mr. Mathkar.
Cross-examination by Mr.B.D.Joshi, Advocate for Applicant/Respondent
No.1:
It is true that when I noted office objections, only original Election Petition
was placed before me.
No cross-examination by any other Respondents.
No cross-examination by Petitioner.
No Re-examination.
Witness is discharged."
21. The evidence of Mr.S.P.Mhatkar [Master & Assistant Prothonotary
(Judicial)] reads as follows :
"Examination in Chief:
1. I am in service for last 30 years, working in the Registry of this
Court. My present designation is Master & Asstt. Prothonotary(Judicial). I
was on leave on 25th June, 2009, when I received telephone from
Mrs.A.A.Upadhaya enquiring about the steps to be taken in respect of the
Election Petition, which was presented before her in my absence. I
informed her to make endorsement that Office has received Election Petition
alongwith sufficient number of spare copies thereof equivalent to number of
Respondents in the Petition. I had also told Mrs. Upadhyaya that when I
would resume Office, I would examine the papers, since Mrs. Upadhyaya
was not familiar with the scrutiny of Election Petition. At this distance of
time, I am unable to remember the date when I resumed my office.
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2. It appears that the Solicitor's firm got the Election Petition
scrutinized from Mrs. Upadhaya citing urgency. On resuming my office I
ensured that 10 spare copies of the Election Petition, which were lodged
alongwith Election Petition on 25th June, 2009, were kept in safe custody in
my office. Those 10 copies were to be used for service as per Rule 9. Since
Rule 10 provides service of notice by Registered Post, I called upon the
Advocate for the Election Petitioner to provide further 10 copies for that
purpose. The second set of 10 copies were received in my office on 30th
June, 2009, which endorsement I have made on the Farad of the Election
Petition. I accepted the additional set of 10 copies, which were given for
effecting service in terms of Rule 10 on 30th June, 2009, as it was well within
time-since limitation of filing Election Petition was to expire on 30th June,
2009.
Cross-examination by Advocate Mr. B.D.Joshi for Applicant/Respondent No.
1:
3.
I made the entry of 30th June, 2009 recording the fact of receiving 10
copies between two entries of 25th June, 2009, because that endorsement
pertained to spare copies. (Since reliance is placed on farad during the cross
examination, the same is marked as Exhibit CW2/1) It is true that the
endorsement does not specifically mention about "additional" 10 copies.
4. On resuming the office I had verified the fact that the 10 copies
presented alongwith Election Petition were lying in my office in safe
custody. However, no endorsement about that fact has been made in any file
because that is not the procedure followed in our office. Except the
documents which are available with the Court in the form of Faradsheet and
lodging Register, there is no other documentary evidence regarding
movement of the matter including the filing of sufficient number of spare
copies alongwith the Election Petition. (Since reliance is placed on lodging
Register during cross-examination, the same is marked as Exhibit CW2/2)
5. There is no column regarding number of copies filed alongwith
Election Petition in the lodging register maintained by the Board
Department, which is a general register for all types of cases.
6. I deny that I did not verify the fact of filing of 10 spare copies at the
time of lodging of Election Petition after I resumed office.
7. Question by Mr.Joshi, Advocate for Applicant/Respondent No.1: Do
you have any record to show that the Election Petitioner was allowed to
withdraw 10 copies at subsequent point of time on 20th July, 2009?
This question is not relevant for considering the issue as to whether sufficient
number of copies of the Election Petition were lodged alongwith the Election
Petition, when the same was lodged.
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8. Question by Mr.Joshi, Advocate for Applicant/Respondent No.1:
On 18/12/2009 when the Advocate for the Respondent No.8 enquired with
you about the availability of the spare copies of the election Petition in the
office, you told that no extra copies were available?
For the reasons already recorded while rejecting earlier question, even this
question is rejected, as it is not relevant to answer the point in issue.
9. Question by Mr.Joshi, Advocate for Applicant/Respondent No.1:
I put it to you that Office has not effected service as per Rule 9 because
spare copies of the Election Petition were not supplied by the Election
Petitioner?
Even this question concerns subsequent event after the lodging of the
Election Petition. Besides, the evidence regarding the relevant facts at the
time of lodging of Election Petition have been already spoken by the
witnesses. For the reasons already recorded while rejecting earlier two
questions, even this question is rejected.
10.
In my absence, the keys of the cupboard where the proceedings are to
be kept in safe custody are available with my stenographer. As I said earlier,
at this distance of time, I am not in a position to off hand mention the period
during which I was absent during the relevant time. However, from the
office noting, particularly made in the Farad of the Election Petition, it is
obvious that I had resumed office around 30 th June, 2009, as my noting is of
that date and duly initialed by me.
No other Respondent would like to cross-examine this witness.
No Cross-examination by Petitioner's Advocate.
No Re-examination.
Witness discharged."
22. After examining the above witnesses, the arguments on the
Applications proceeded further and were eventually concluded on 5th
January 2010. On that date, the Counsel for the Respondent No.8 tendered
the two original copies served on the Respondent No.8 by registered post
and by courier respectively which have been taken on record and kept in
sealed cover. The Counsel appearing for the Respondent No.1 sought time
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to file brief note of submissions. In the circumstances, pronouncement of
order was deferred. Thereafter, on account of change in assignment from
11th January 2010, the order could not be pronounced till now. After
returning from assignment as Visiting Judge at Aurangabad Bench and
resuming at Principal Bench on 15th March 2010, the matter has been
placed for orders today.
23. Reverting to the case made out by the Respondents/Applicants that
the Petitioner had failed to file sufficient number of spare copies at the time
of presentation of the Election Petition itself, on analysing the original
notings on the file and more so, the oral evidence of the two Officers, the
same will have to be stated to be rejected. In the first place, the requirement
of filing spare copies is only to the extent of such number of copies as there
are Respondents mentioned in the Petition, in terms of Section 81(3) of the
Act of 1951. The argument of the Respondents that at least 20 copies ought
to have been filed at the time of lodging of the Election Petition so as to
effect service on the Respondents by different modes provided in Rules 9
and 10 of the Election Petition Rules, cannot be countenanced. To analyse
this contention, we shall first refer to the provision contained in the Act of
1951.
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24. As aforesaid, Section 81 (3) of the Act of 1951 provides that every
Election Petition shall be accompanied by as many copies thereof as there
are Respondents mentioned in the Petition. In the present Petition, there are
in all ten Respondents. From the material on record, I have no hesitation to
conclude that the Petitioner lodged ten spare copies of the Election Petition
on 25th June 2009 when the Election Petition was submitted in the Office.
That position is reinforced from the contemporaneous record in the form of
noting made by the concerned Officer. The argument of the Respondents,
however, is in the context of different modes of service provided in Rules 9
and 10 which may require service of spare copies of the Election Petition
along with each mode of service. That means that at least 20 copies were
required for service. To examine this point, we may usefully advert to Rules
3, 7, 8, 9 and 10 of the Election Petition Rules, which read thus:
"3. All petitions, applications, precipies, notes, etc., including copies thereof
to be filed in election petitions shall be either printed, or typewritten neatly
and legibly with sufficient space between lines on strong and durable foolscap
size paper or on a size of paper nearest to the foolscap, size according to
metric measure, with a margin of not less than 5 cms. Where such petitions
etc. as aforesaid consist of more sheets than one, they shall be stitched in
book-form."
"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
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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 Judges will
make their best endeavour to serve the summons on the respondents and
make a return of the service of the summons with the greatest expedition."
"10. In addition to the service of summons to be effected as aforesaid, a
summons shall also be sent to the respondents to the address given by the
petitioner by registered post prepaid for acknowledgment. The petitioner shall
furnish extra copies of the petition to be served along with the summons by
registered post. No extra process fees except postal charges, will be
recovered."
25. The fact that 20 copies would be required for service on ten
Respondents by two different modes does not mean that the Petitioner was
obliged to lodge all the 20 copies along with the Election Petition. The
second mode of service provided in Rule 10 is obviously in addition to the
mode of service provided in Rule 9. That additional mode of service would
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27
arise only after order of issuance of notice passed by the Court. From the
Scheme of Rule 9, it is seen that after the Election Petition is presented and
steps under Rule 7 to remove objections are taken, the Petition is then
placed before the Judge for such orders as may be required to be passed
under Section 86 of the Act of 1951. It is open to the Judge to dismiss the
Petition under Section 86(1) of the Act of 1951. If the Petition is not so
dismissed, a summons, on the direction of the Judge is issued to the
Respondents to appear before the High Court on a fixed date and answer
the claim or claims made in the Petition. The summons is required to be
served on the Respondents through the Sheriff in Greater Mumbai and
through the District Judges in the rest of the State in the manner provided
for the service of the summons. Along with the summons so dispatched, the
spare copies filed along with the Election Petition at the time of its
presentation are enclosed by the Office. In addition to service of summons
as per Rule 9, as per Rule 10, summons shall also be sent to the
Respondents to the address given by the Petitioner by registered post
prepaid for acknowledgment. For facilitating dispatch of such summons by
registered post, the Petitioner as per Rule 10 is obliged to furnish extra
copies of the Petition along with the summons. Thus, extra copies are to be
supplied at a later stage, in addition to the number of spare copies filed
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along with the Election Petition as required by Section 83(1) of the Act.
Non submission of spare copies for effecting service as per Rule 10 at the
time of presentation of the Election Petition, therefore, cannot be fatal, so as
to dismiss the Election Petition under Section 86 of the Act of 1951.
Dismissal under Section 86 of the Act of 1951 is possible only upon failure
to comply with Sections 81, 82 or 117 of the Act of 1951. Since the
Petitioner had already complied with the requirement of lodging ten spare
copies along with the Election Petition when the same was presented on
25th June 2009, the question of dismissing Election Petition by resorting to
Section 86 of the Act of 1951 does not arise.
26. To get over this position, Counsel for the Respondents has relied on
decision of the Apex Court in the case of Chandra Kishore Jha v.
Mahavir Prasad & Ors. reported in AIR 1999 SC 3558. In that case, the
Court construed Rule 6 of Chapter 21E of the Rules framed by the Patna
High Court in relation to Election Petition under the provisions of Act of
1951. That Rule provided that a proper presentation of an Election Petition
can be made to the Judge in open Court. In view of this express provision,
it was held that the Petition could not have been presented before any other
Officer of the Court as it is well settled salutary principle that if a Statute
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29
provides for a thing to be done in a particular manner, then it has to be done
in that manner and in no other manner. However, this decision will be of
no avail, considering the purport of Rule 10 of the Election Petition Rules.
As aforesaid, service of summons as per Rule 10 is in addition to the
service of summons effected by Rule 9 and for complying this formality,
the Petitioner is required to furnish extra copies of the Petition to be served
along with the summons by registered post only after the Court passes order
of issuing notice to the Respondents. That requirement will come into play
only if the Election Petition was not to be dismissed under Section 86(1) of
the Act of 1951 after the same was placed before the Judge for passing
appropriate orders thereon in terms of Rule 9 of the Election Petition Rules.
The Petitioner cannot be asked to lodge spare copies for effecting additional
service of summons by registered post as per Rule 10 in anticipation.
Suffice it to observe that the Petitioner has already complied with the
requirement of section 81(3) of the Act of 1951 which would facilitate
service of summons along with the copy of the Election Petition ascribable
to Rule 9 of the Election Petition Rules.
27. Reliance was also placed on the decision in the case of Ch.Subbarao
v. Member, Election Tribunal, Hyderabad & Ors. reported in AIR 1964
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SC 1027 as to what is the condition precedent for the proper presentation of
an Election Petition. As aforesaid, there is no infirmity in the steps taken
by the Petitioner in lodging only ten spare copies of the Election Petition
along with the Election Petition at the time of its presentation on 25th June
2009.
28. The next shade of argument is that the circumstances would indicate
that even ten spare copies of the Election Petition were not presented on
25th June 2009, but were presented only on 30th June 2009 as per the
noting found therein. Whereas, the Election Petition came to be numbered
on 29th June 2009. In other words, when the Election Petition was
numbered, spare copies thereof as required by Section 81(3) of the Act of
1951, were not lodged by the Petitioner. The argument though attractive,
will have to be stated to be rejected. In my order dated 4th January 2010, I
have already expressed my prima facie opinion that from the circumstances
emerging from the record, it was evident that the Petitioner lodged ten spare
copies along with the Election Petition on 25th June 2009 itself. The noting
made on 30th June 2009 does not belie that factual position. It was for the
Respondents to establish and prove that in fact the Petitioner lodged ten
spare copies for the first time on 30th June 2009. No such evidence has
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31
been adduced by the Respondents except their bare words. On the other
hand, on the basis of the noting made by the concerned Officials in the
original file, as also the oral evidence of the two Officers, if analysed in its
proper perspective, would clearly go to show that the Petitioner had lodged
ten spare copies along with the Election Petition on 25th June 2009 itself
and the same were kept in the safe custody in the Office of Mr.Mhatkar
under lock and key. The evidence of Mr.Mhatkar clearly reveals that the
Petitioner was called upon to submit "further ten copies" for effecting
additional service as per Rule 10 of the Election Petition Rules. The
Respondents cannot be allowed to take advantage of the notes on the file
which in any case, have now been explained by the evidence of the two
Officers of the Court who are quite Senior Officers and have no reason to
depose against the Respondents. Accordingly, there is no substance in the
grievance made on behalf of the Respondents about non filing of ten spare
copies along with the Election Petition when the same was presented.
29. The next grievance of the Respondents that spare copies have been
filed after the period of limitation and in particular, after the Petition was
already registered, also stands answered on the basis of the same
documentary and oral evidence referred to above. According to the
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Respondents, as the Respondents were not served by mode provided under
Rule 9 of the Election Petition Rules, it should be assumed that the
Petitioner had not filed ten spare copies along with the Election Petition.
That is only a guess work of the Respondents. The factual position
emerging from the record and the evidence of the Court Officers is to the
contrary. Indeed, the Respondents may be justified in contending that they
have not been served as per the mode provided under Rule 9 through the
District Judge. That does not take the matter any further. That, in any case,
cannot be a ground for dismissal of the Election Petition under Section 86
of the Act of 1951. As is noticed, the Respondents are residents of Dadra
and Nagar Haveli Constituency - which is neither forming part of Greater
Mumbai or rest of the State of Maharashtra. In that sense, there was no
specified mode for effecting service of Election Petition on the
Respondents as per Rule 9. Nevertheless, Office of the Prothonotary used
its discretion to effect service of summons as per Rule 9 on the
Respondents through Sheriff sent by R.P.A.D. It is not in dispute that the
Respondents have received notices so dispatched through the Sheriff by
R.P.A.D. Copies of the said notices along with the spare copy of the
Election Petition served on them have already been produced by the
concerned Respondents before this Court and which have been taken on
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33
record. Suffice it to observe that the service of summons by R.P.A.D. which
has been duly acknowledged by the concerned Respondents is substantial
compliance of the requirement of Rule 9 of the Election Petition Rules.
30. It was then contended that the order issuing notice passed by this
Court dated 17th July 2009 permits the Petitioner to serve the Respondents
in addition to the mode of service provided by Rule 9 and Rule 10. That
did not provide for service of notice by courier service. However, the
Respondents have been served one copy of the Election Petition and the
notice by courier service. The fact that the Respondents have received the
said copy by courier service does not result in any infirmity so as to
dismiss the Election Petition under Section 86 of the Act of 1951. That can
be no consideration for grant of such relief to the Respondents.
31. To invoke the ground for dismissal of the Election Petition under
Section 86 r/w Section 81(3) of the Act of 1951, it was then contended that
there is no provision in the Act or the Election Petition Rules made by the
High Court to allow withdrawal of the spare copies of the Election Petition
once the same were lodged. According to the Applicants, on account of
withdrawal thereof, for whatever reason, the evidence to show that the
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spare copies submitted by the Petitioner along with the Election Petition
were not true copies have been lost for ever, as, there is all likelihood that
the Petitioner after withdrawing the said spare copies must have altered or
modified the copies and then served the same on the concerned
Respondents. This argument is a far fetched submission. No positive
material has been produced to substantiate this allegation. The withdrawal
of the copies already filed in the Registry were with a view to serve the
same on the Respondents. It is not the case of the Respondents that the
original Election Petition as filed in this Court has been tampered so as to
match with the copies of the Election Petition which have been served on
the Respondents. In any case, this cannot be a ground to dismiss the
Election Petition. Just as the right to contest election is purely a statutory
right, even the remedy to contest the Election Petition is also a statutory
right. Section 86 does not envisage dismissal of Election Petition on
account of withdrawal of the spare copies from the Registry. So long as the
copies served on the Respondents are in conformity with the original
Election Petition presented in this Court, the grievance of the Respondents
will have to be rejected as it is founded on unsubstantiated hypothesis.
32. Counsel for the Respondents had relied on the decision of our High
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35
court in the case of Jagannath Shindu Rahane v. Manisha Manohar
Nimkar reported in 1996 (5) BCR 451. This decision was carried in
Appeal before the Apex Court being Civil Appeal No.9447 of 1996.
However, the same has been dismissed as infructuous on 5th October, 1999.
In that case, however, the objections were removed by the Petitioner "after
the expiry of the period of limitation". It is in that context, the Court
observed that it was not open to the Court Official to permit removal of
various objections without placing the matter before the concerned Judge or
bringing to the notice of the concerned Judge all the relevant aspects. The
finding of fact recorded in that case is that the objections were allowed to
be removed after the period of limitation. That is not the case on hand. In
the present case, the Petition was lodged on 25th June 2009 along with ten
spare copies thereof as has been found on the basis of evidence in this case.
The objections were removed on 26th June 2009 and the Petition was
numbered on 29th June 2009. The limitation for filing of the Petition was to
expire on 30th June 2009 as the Election results were declared on 16th May
2009. Assuming that the Petitioner was obliged to file further ten spare
copies for effecting additional service as per Rule 10, in the present case,
those copies were filed on 30th June 2009 itself which was within
limitation. Thus understood, this decision pressed into service is of no avail
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in the fact situation of the present case.
33. Reliance was also placed on the decision in the case of Iridium
India Telecom Ltd. v. Motorola Inc. & Anr. reported in 2004 (1)
Mh.L.J. 532 to contend that the provisions of Original Side High Court
Rules would prevail. For the reasons already mentioned earlier, in my view,
the Petitioner has not committed breach of any provision of the Rules
framed by the High Court. Therefore, this decision is also of no avail to the
Respondents.
34. It was then contended that the Petitioner has not attested on pages
referred to in Paragraph 2 of Application Nos.4/2009 and Paragraph 8 of
Application No.5/2009, for which reason, it has resulted in breach of
Section 81(3) of the Act of 1951. Section 81(3) of the Act provides that
copy of every Election Petition shall be attested by the Petitioner under his
own signature to be a true copy of the Petition. The fact that Petitioner has
attested under his own signature to be a true copy of the Petition on other
pages is not in dispute. Insofar as the pages referred to in the above said
Paragraphs of the respective Applications, the same are verification of the
concerned documents. The absence of attestation below the verification is
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not fatal. There is substantial compliance of the requirement of Section
81(3) considering the fact that the Petitioner has otherwise attested under
his own signature on other pages of the Petition to be true copy of the
Petition. Counsel for the Respondents/Applicants, however, placed reliance
on the decision of the Apex Court in the case of Sharif-ud-Din v. Abdul
Gani Lone reported in AIR 1980 SC 303. In that case, the attestation, that
the copy was a true copy of the Petition, was done by the Advocate for the
Petitioner. The Court opined that, that was no compliance, much less
substantial compliance under Section 81(3) of the Act of 1951 which was
mandatory one. Counsel for the Applicant has also relied on the decision of
our High Court in the case of Narendra Bhikahi Darade v. Kalyanrao
Jaywantrao Patil & Ors. reported in AIR 2000 Bom. 362, which has
taken the view that each page of the copy of the Election Petition is to be
attested to be a true copy under signature of Petitioner which is the
requirement of Section 81(3) of the Act. In that case, each page or each
Annexure in the Election Petition were signed by the Petitioner, but copy
was attested as true copy by the Advocate for the Petitioner. The exposition
in the said decision will have to be understood in the context of the fact
situation of that case. Suffice it to observe that in the present case, the
Petitioner himself has attested the spare copy of the Petition to be true copy
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of the original, except the pages containing verification done by the
Petitioner of the concerned documents. It is not the case of the Respondents
that the Petitioner had failed to attest on the copy of the concerned
document which was part of the spare copy of the Petition served on them
to be a true copy of the original. The Petitioner has rightly pressed into
service, decision of the Apex Court in the case of Chandrakant Uttam
Chodankar v. Dayanand Rayu Mandrakar & Ors. reported in (2005) 2
SCC 188, which rejected similar objection. The ground put forth in that
case that internal page 10 of Exhibit RW1 which is the copy of the Election
Petition, after the prayer clause and verification, there is no signature of the
Election Petitioner. Further, the affidavit accompanying the Petition also
does not bear the signature of the Election Petitioner and the stamp in
respect of the swearing of the affidavit also was absent on the copy of the
Election Petition. Rejecting that objection, the Court observed that the
defects as shown above would not entail in dismissal of the Election
Petition under Section 86 of the Act of 1951. It observed that the second
part of Section 81(3) of the Act of 1951 requires that every such copy
should be attested by the Election Petitioners under their own signature to
be true copy. It went on to observe that the said requirement is satisfied if
the copy is attested by the Election Petitioner to be true copies of the
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Election Petition under his own signature. It further observed that even the
defects as stated could not be held to be vital in nature and would not entail
in dismissal of the Election Petition at the preliminary stage for non-
compliance of Section 81(3) of the Act of 1951. This exposition is founded
on the principle expounded in Anil R.Deshmukh v. Onkar N.Wagh
reported in (1999) 2 SCC 205. This decision can be usefully referred to
even while answering the first contention raised before us that the Petitioner
has not filed sufficient number of spare copies of the Election Petition at the
time of presentation of the Election Petition. The Court has opined that the
onus is on the Respondents to show that the Petitioner had failed to lodge
requisite number of true copies along with the Election Petition at the time
of its presentation. Thus understood, it is not a case of non-compliance of
Section 81(3) of the Act of 1951. In any case, in such a situation, the Court
would be justified in taking the view that it was a case of substantial
compliance of the requirement of Section 81(3) of the Act of 1951.
35. It was then argued that the Office could not have permitted removal
of office objections without placing the matter before the Court and inviting
directions of the Judge concerned in that behalf. From the chronology of
events mentioned hitherto, it is noticed that the Election Petition was
presented on 25th June, 2009 and office objections were removed on 26th
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June, 2009. The Petition was registered (numbered) on 29th June, 2009.
The limitation to file the Election Petition, however, was to expire on 30th
June, 2009. If the office objections were to be removed "after the expiry of
limitation", this grievance would have assumed some significance
considering the exposition of our Court in Jagannath Shindu Rahane
(supra). However, as the office objections were removed before the
expiry of limitation, the fact that same was done without seeking directions
of the Judge concerned is neither fatal nor would result in dismissal of the
Election Petition under Section 86(1) of the Act. Rule 7 of the Election
Petition Rules postulates that after the Petition is presented, the party or
Advocate shall be asked to attend the office on the third day from the date
of its presentation to remove objections in the Office, if any. This
presupposes that even without placing the matter before the Judge
concerned, it is open to the Petitioner to remove the office objections, if
any. The purport of Rule-8 of the Election Petition Rules obliges the office
to examine the Petition after its presentation to see whether it is in
conformity with the requirements of the Law and the Rules applicable to
the same. If not, raise objections which could be removed by the party or
the Advocate concerned. Going by the above Rules of our High Court, it is
not necessary to place the matter before the Judge concerned. Suffice it to
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observe that by virtue of removal of office objection by the party or his
Advocate in the Office would not enure any right in favour of the
Petitioner. However, the removal of office objections would be obviously
subject to the orders to be passed by the Judge concerned at the appropriate
stage. Further, if it is proved that the office objections were removed after
the period of limitation had expired, the Petition would fail and will have
to be dismissed at the threshold under Section 86(1) read with Section
81(1). In other words, so long as the limitation period has not expired, it
is not necessary for the office to place the matter before the Judge as a
condition precedent for allowing the party or his Advocate to remove office
objections, if any, as per the Scheme of Election Petition Rules framed by
the Bombay High Court. As a matter of fact, as per the consistent practice
followed in our High Court for sufficiently long time - which has assumed
the status of the law of the Court (Cursus Curiae Est Lex Curiae), after the
Petition is duly registered (numbered) only thereafter the same is assigned
to a particular Judge under the orders of the Chief Justice of the High Court.
Until such time, neither the Office can place the matter before any Court
nor it is open to the parties to appear before any Court to seek directions.
Indeed, that would not prevent the party or his Advocate to directly move
the Chief Justice of the High Court to seek any specific directions and more
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so with regard to removal of office objections, if the situation so warrants.
Even Rule-9 of the Election Petition Rules would reinforce the above view.
Rule 9 postulates that immediately after the time fixed for removal of
objections, Petition shall be placed before the Judge for such orders as may
be required to be passed under Section 86 of the Act. This provision would
mean that if the office objections were not to be removed by the party or
his Advocate until the expiry of the period of limitation for filing the
Election Petition inspite of being notified in that behalf by the office and if
the party or the Advocate were to approach the office for removal of office
objection after expiry of limitation, it would not be open to the office to
entertain such request but the office would be obliged to seek directions of
the Court. In that situation, it would be open to the concerned Court to
consider the effect of non-removal of office objection whether would result
in dismissal of the Election Petition on account of Section 86(1) read with
Section 81(1) of the Act. But, as aforesaid, the matter can be placed by the
office before the Judge concerned only after directions were to be issued by
the Chief Justice of the High Court in that behalf. Whereas, if the matter
was to be placed before the assigned Judge and dismissed under Section
86(1) read with Section 81(1) for non-removal of office objections, the
proceedings would automatically get terminated. However, as per Rule 9 if the
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Petition is not dismissed under Section 86(1) of the Act, the summons on
the direction of the Judge is required to be issued to the Respondents to
appear before the Court on a fixed date and answer the claim made in the
Petition. This is the broad scheme of Rule 7 to 9 of the Election Petition
Rules. Reliance placed by the Respondents on the decision of the Apex
Court in the case Chandrakishore Jha (supra) is wholly inapposite. As
aforesaid, in that case Rule 6 of the Rules framed by the Patna High Court
specifically required that a formal presentation of Election Petition is to be
made before Judge in open Court. The Scheme of the Election Petition
Rules framed by the Bombay High Court is materially different. Counsel
for the Petitioner had invited my attention to the decision of the Apex Court
in the case of Rajkumar Yadav v/s Sameer Kumar Mahaseth & ors.
reported in 2005 3 SCC 601 which has distinguished the decision in
Chandrakishore Jha's case. Suffice it to observe that nothing prevented the
Petitioner or his Advocate to remove office objections before expiry of
period of limitation. The need to take directions of the Judge in terms of
Rule-9 would have arisen only if the objections raised by the office were
not removed before the time fixed therefor as per Rule-7 or the date
specified by the office whichever is earlier, provided those dates are not
beyond the period of limitation for filing of the Election Petition.
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36. The next argument is overlapping with the grievance already dealt
with that the copy of the Petition served on the Respondents suffer from
non compliance of Section 81(3) of the Act of 1951. It is argued that the
specified pages in Paragraph 3 of the Application No.4/2009 and Paragraph
7 of the Application No.5/2009 respectively were illegible and not true
copy of the Annexure appended to the original Petition. The said pages
were in relation to photographs appended to the original Election Petition
which were coloured photographs but in the spare copy served on the
concerned Respondents, xerox copies of the said photographs were
included which were black and white. Besides, the photographs were
illegible and it was not possible to recognise even the faces of the persons
therein. This grievance has been countered by the Petitioner. In the first
place, it is contended that the xerox copies of the photographs included in
the spare copy of the Petition served on the concerned Respondents was
clear enough to enable any reasonable person to identify the faces of
persons seen therein. Besides, relevant description is given below the
photograph and also referred to in the Election Petition at appropriate
places. It was not a case of causing any confusion. Moreover, the
photographs were irrelevant in the context of the ground on which the
Election of the Respondent No.1 was challenged. The purpose of
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photographs was to only indicate the link between Mr.Lalit Patel and the
Respondent No.1 and to show that Respondent No.1 was a follower of
Swami Narayan Sect which is widely spread in Dadra Nagar Haveli &
Silvassa. Some of the photographs were placed on record to show the
source of the Exhibits which are extracts from the relevant issue of the
Journal or that to show that the newspaper was used by the Bharatiya Janata
Party-Shiv Sena Alliance for their election propaganda. This was only a
piece of evidence to substantiate the ground of corrupt practice alleged
against the Respondent No.1 and his election agent and other persons. For
all these reasons, the grievance of the Respondents founded on said
photographs was of no avail and at any rate, could not be the basis to
dismiss the Election Petition under Section 86 of the Act of 1951.
According to the Petitioner, it was not the case for dismissal of Petition on
account of non-compliance under Section 81(3) of the Act as such, but the
defect in the spare copies supplied/served on the Respondents could be
cured and in fact, the Petitioner has already furnished the coloured
photographs to the Respondents after the Respondents have put in
appearance before this Court. Indeed, the same were accepted by the
Counsel for the concerned Respondents without prejudice to the rights of
the said Respondents.
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37. Counsel for the Petitioner has justly pressed into service decision of
the Apex Court in the case of Suryakant Venkatrao Mahadik v. Saroj
Sandesh Naik (Bhosale) (Smt.) reported in (1996) 1 SCC 384, which has
dealt with almost similar fact situation. The argument in that case was
based on certain photographs which were annexed to the Election Petition.
The Court in the facts of that case noticed that it was unnecessary to decide
whether the copies of the photographs served on the original Respondent
along with copy of the Election Petition were illegible or not. For, it went
on to hold that the said question does not really arise since the contents of
those items have also been expressly pleaded in the Election Petition, as is
the position in this case. The Court therefore, held that the photographs
annexed to the Election Petition after expressly pleading their contents,
were only evidence of the pleading contained in the Election Petition and
not a case of incorporation of the contents of those photographs by
reference without stating it in the Election Petition. Reliance can be also
usefully placed on another decision of the Apex Court in the case of Umesh
Challiyill v. K.P.Rajendran reported in (2008) 11 SCC 740. In this case,
the affidavit in Form 25 was not affirmed. The affirmation was not duly
certified and the verification of the Election Petition was defective. On
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analysing the verification in that case, the Court opined that the same was
not bad, except that it did not use the word "true". While considering the
argument of the original Respondent for dismissal of Election Petition, the
Court opined that the Courts have to view whether the objection goes to the
root of the matter or they are only cosmetic in nature. The Election Petition
should not be summarily dismissed on such small breaches of procedure. It
found that the challenge was ascribable to Section 83 of the Act of 1951
and could not be made ground for dismissal of the Election Petition under
Section 86 of the Act of 1951. Such defects were curable defects and not
fatal. In another decision of the Apex Court in the case of Smt.Sahodrabai
Rai v. Ram Singh Aharwar & Ors. reported in AIR 1968 SC 1079, the
Court was called upon to examine the grievance that a proper copy of the
Election Petition was not served upon the answering Respondent. The
Court considered the argument that non accompaniment of the pamphlet
which was an annexure to the Election Petition was fatal or otherwise. The
Court examined the contentions and noted that the dispute was whether the
pamphlet could be described as a part of the Election Petition. It found as of
fact that the pamphlet was merely evidence in the case. It was in no sense,
an integral part of the averments of the Petition but was only evidence of
those averments and in proof thereof. In such a case, the question of
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dismissing the Election Petition by taking recourse to Section 81(3) does
not arise. In the case of T.Phunzathang v. Hangkhanlian & Ors.
reported in AIR 2001 SC 3924, the Court noted that if the copy differs in
material particulars from the original, it cannot be cured after the period of
limitation. In the present case, however, the nature of discrepancy pointed
out does not result in variation in material particulars from the original copy
of the document appended to the Election Petition. This omission would not
ipso facto entail in dismissal of the Petition under Section 86(1) of the Act
of 1951 because on account of such error or mistake, the copy supplied
does not cease to be a true copy and there is no possibility of any prudent
person being in any manner misled in defending himself or being
prejudiced in the defence of his case. For considering this objection,
although it is not open for this Court to look at the stand taken in the written
statement already filed by the contesting Respondents, but at the same
time, there is force in the submission of the Petitioner that on examining the
written statement it is amply clear that no confusion whatsoever has been
caused in the mind of the concerned Respondents on account of so called
defective copy of the photographs served on them along with the copy of
the Petition. Petitioner concedes that some of the exhibits are relevant for
considering the ground of corrupt practice such as Exhibits CCCC to
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Exhibit OOOO. But as aforesaid, the same were in the nature of piece of
evidence to substantiate the grounds of corrupt practice stated in the
Election Petition and pertain to period after filing of nomination paper by
the Returning Candidate. Counsel for the Respondents had relied on the
decision of the Apex Court in Mithilesh Kumar Pandey v. Baidyanath
Yadav & Ors. reported in AIR 1984 SC 305. The Court has opined that
where the copy of the Election Petition served on the written candidates
contains only clerical or typographical mistakes which are of no
consequence, the Petition cannot be dismissed straightway under Section 86
of the Act. Further, a true copy means a copy which is wholly or
substantially the same as the original and where there are insignificant or
minimal mistakes, the Court may not take notice thereof but where the
copy contains important omission of discrepancies of a vital nature, which
are likely to cause prejudice to the defence of the returned candiate, it
cannot be said that there has been a substantial compliance of the
provisions of Section 81(3) of the Act. The Court went on to observe word
of caution that the expression true copy and the concept of substantial
compliance cannot be extended too far to include serious or vital mistakes
which shed the character of a true copy so that the copy furnished to the
returned candidates cannot be said to be a true copy within the meaning of
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Section 81(3) of the Act.
38. Reliance was placed on the decision of the Apex Court in the case of
F.A.SAPA & Ors. v. Singora & Ors reported in (1991) 3 SCC 375. It
was not a case where the document which was adverted to in the Election
Petition and the copies thereof were illegible. The Court opined that the
photo copy can be treated as original Petition, when it otherwise complies
with the requirement of law. While considering the above arguments, I have
already found that the copy served on the Respondents was in compliance
with requirement of Section 81(3) of the Act of 1951. Keeping the
exposition of the Constitution Bench of the Apex Court in T. M. Jacob v.
C.Poulose & Ors. reported in (1999) 4 SCC 274, it will have to be held
that in such a situation, the question of dismissing the Election Petition at
the threshold by invoking powers under Section 86, in particular, sub-
section (1) thereof, does not arise. The Constitution Bench has analysed its
earlier decisions on the point as to what is the meaning of a true copy. It has
authoritatively restated the legal position that the test to determine whether
a copy was a true one or not was to find out whether any variation from the
original was calculated to mislead a reasonable person. It must be a copy
so true that nobody can, by any possibility, misunderstand it. It opined that
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substantial compliance with Section 81(3) of the Act of 1951 was sufficient
and the Petition could not be dismissed where there had been substantial
compliance with the requirement of Section 81(3) of the Act of 1951, in
limine, under Section 86(1) of the Act. The Court specifically rejected the
argument that importing the doctrine of substantial compliance in Section
86(1) r/w 81(3) of the Act is impermissible. The Court opined that it is too
late in the date to so urge, as the law settled by the two Constitution Bench
decisions by itself were sufficient to repel that argument. In Paragraph 38,
the Court noted that the legislative intent appears to be quite clear since it
divides violations into two classes - those violations which would entail in
dismissal of the Election Petition under Section 86(1) of the Act like non-
compliance with Section 81(3) and those violations which only attract
Section 83(1) of the Act, i.e., non-compliance with the provisions of
Section 83. It is only the violation of Section 81 of the Act that can attract
the application of the doctrine of substantial compliance as expounded in
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore & Anr.
reported in AIR 1964 SC 1545 and Chi.Subbarao (supra). It has further
opined that defect of the type provided in Section 83 of the Act, can be
dealt with under the doctrine of curability on the principles contained in the
Code of Civil Procedure. It has also noticed that it is not as if every minor
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variation in form but only a vital defect in substance which can lead to a
finding of non-compliance with the provisions of Section 81(3) of the Act
with the consequences under Section 86(1) of the Act to follow. Applying
this legal principle expounded by the Constitution Bench and upon
analysing the documents and the averments in the Petition, I have no
hesitation in taking the view that the grievance regarding illegible copies of
the photographs and other documents cannot be the basis to dismiss the
Election Petition in limine under Section 86(1) of the Act. For, the
Election Petition can be dismissed under this provision only if the same
does not comply with the provisions of Section 81 or 82 or 117 of the Act
of 1951. I shall deal with the aspect of Section 82 separately. For the
time being, it may be noted that even requirement of Section 82 has been
complied in the present Petition as the Returning Candidates as well as
other candidates have been impleaded as Respondents in the Election
Petition. There is no objection with regard to compliance of Section 117 of
the Act of 1951. Therefore, the question of dismissing the Election
Petition under Section 86(1) of the Act of 1951 does not arise.
39. That takes me to the grievance about non-filing of official translation
of the vernacular documents along with Election Petition, such as Luhari
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Times dated 6th April, 2009. It is not the case of the Respondents that the
translation of the vernacular documents which has been filed along with
Election Petition, has not been furnished to the Respondents in the copy of
the Petition served on them. The non-supply of the English translation was
not fatal as the averments in Paragraph 11 & 12 of the Petition had nothing
to do with the allegations of corrupt practice, the same were intended only
to probalise the probability asserted by the Petitioner. Moreover, since the
averments had nothing to do with the allegations of corrupt practice, no
prejudice would be caused to the Respondents and more so the same has
not caused any confusion to the Respondents, is evident from the stand
taken by the Respondents in the written-statement already filed before this
Court. The only relevant document would be the April issue which
was published after the nomination of the Respondent No. 1 as the
candidate. The Petitioner was relying only on the photographs contained
therein and the contents of the photo was already described in the Election
Petition itself. The contents so stated have been clearly understood by the
Respondents which is clear from the stand taken in the written-statement.
In the case of Dr. Vijay Laxmi Sadho Vs. Jagdish reported in (2001) 2
SCC 247, the Apex Court on analyzing the relevant provisions observed
that the defect of not filing of Election Petition in accordance with the
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Election Petition Rules under consideration is not one of the defects which
falls either under Section 81 or 82 or 117 of the Act so as to attract the
rigors of Section 86 of the Act as held in Devilal's case (Election Petition
No. 9/1980). It went on to observe that where any other consequence may
follow on account of alleged defence would depend upon other factors to
be determined at the trial of the Election Petition but to hold that Section
86(1) of the Act would be attracted for such non-compliance was not
correct. Thus understood, it is not a case of failure to serve true copy of the
Election Petition on the concerned Respondents as such. Accordingly, this
submission will have to be rejected.
40. It was next contended that although the documents form integral part
of the Election Petition, the same have not been annexed. My attention
was invited to Paragraph 16 of the Petition to contend that the photograph
in respect of the incident dated 25th April, 2009 has not been annexed. My
attention was also invited to Paragraph 22 which refers to integral part of
documents. It was contended that these documents form integral part of
the Election Petition and non-annexing of the said documents would entail
in dismissal of Election Petition under Section 86 of the Act. Reliance
was placed on the decision of the Apex Court in the case of U. S.
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Sasidharan v. K.Karunakaran reported in AIR 1990 SC 924 as well as
M. Karunanidhi v. Dr.H.V.Hande & Ors. reported in (1983) 2 SCC
473 in support of this submission. However, on analysing the relevant
Paragraph of the Election Petition, it is not possible to countenance the
submission of the Respondents that any document which formed integral
part of the Election Petition has not been filed along with the Election
Petition. The documents which are in the shape of piece of evidence need
not be annexed to the Election Petition. At the same time, the documents
of which the contents have been expressly spelt out in the Election
Petition, non annexing of such documents is not fatal in any manner. Thus
understood, there is no substance in the grievance made by the Respondents
in this behalf.
41. It was next contended that the Election Petition ought to be
dismissed on account of non-compliance of Section 82 of the Act in as
much as persons who were neither necessary nor proper parties have been
impleaded as Respondents such as Respondent Nos. 5, 8, 10 & 11 including
the Returning Officer. It is not necessary to burden this Judgment and
consider the challenge that the stated Respondents were neither necessary
nor proper parties. In as much as, in the present application the limited
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issue to be considered is whether the Election Petition deserves to be
dismissed under Section 86 read with Section 81 or 82 or 117 of the Act.
Joining of unnecessary parties does not result in non-compliance of Section
82 of the Act. It would be a case of breach of Section 82 of the Act if any
proper or necessary party has not been joined. This being a converse
situation, therefore, the question of dismissal of Election Petition under
Section 86 does not arise. This, however, is not an expression of opinion
either way as to whether the stated extra Respondents are proper and
necessary parties to the present Election Petition. As and when that issue
would arise for consideration, the same will be dealt with in accordance
with law.
42. Accordingly, for the reasons mentioned herein before, I have no
hesitation in rejecting the two applications filed by the Respondent No. 1
and Respondent No. 8 respectively for dismissal of the Election Petition
under Section 86 of the Act read with Section 81(3) or 82 of the Act.
However, the Application filed by the Respondent No. 1 for amendment of
the former application so as to urge further grounds to support the relief of
dismissal of Election Petition which was filed during the course of
arguments with the agreement of the parties, I had proceeded with the
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arguments on the assumption that this Application No. 7/2009 is deemed to
have been granted.
43. While parting, it is made clear that the opinion recorded in this
decision is only in the context of the question under consideration regarding
dismissing the Election Petition under Section 86 read with Section 81(3) or
82 of the Act and is not an expression of opinion on the merits of the
controversy to be decided in the Election Petition.
44. Accordingly, I proceed to pass the following order:
The Application No.7/2009 in Election Petition No. 2/2009 is
allowed. The Respondent No. 1 is permitted to carry out
necessary amendment in Application No.4/2009 forthwith.
Application Nos. 4/2009 and 5/2009 filed by Respondent Nos.
1 & 8 respectively for dismissal of the Election Petition No. 2/2009
are rejected, being devoid of merits with costs.
Election Petition No. 2/2009 shall now proceed for framing of
issues. At the request of the Respondent Nos. 1 & 8, the hearing on
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framing of issues is deferred till 23rd April, 2010, to be listed at 3.00
p.m.
A.M.KHANWILKAR, J.
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