Allahabad High Court
Prakash Bajaj vs Sri Arun Singh And Ors. on 6 July, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- ELECTION PETITION No. - 1 of 2020 Petitioner :- Prakash Bajaj Respondent :- Sri Arun Singh And Ors. Counsel for Petitioner :- In Person,Jitendra Saxena,Narendra Kumar Pandey,Vivek Kumar Counsel for Respondent :- Anurag Kumar Singh,Gaurav Mehrotra,H.P. Singh,Kuldeep Pati Tripathi,Mohd.Altaf Mansoor,Prashant Singh Atal,Sakshi Singh,Subhash Vidyarthi,Sunil Chaudhary,Surya Prakash Singh,Vinod Kumar Shukla ****** Hon'ble Jaspreet Singh,J.
This judgment has been divided into segments to facilitate analysis. These are:-
A Genesis 2 B Submissions of counsel for the respondents 6 C Submissions of counsel for the election petitioner.13
D Legal Analysis and Discussions.22
D(i) Should the petition be dismissed under Order VII Rule 11 CPC read with Section 33 of RPA, as the petitioner is not a duly nominated candidate since his nomination did not have the requisite number of valid proposers.49
D(ii) Should the petition be dismissed as it lacks material particulars regarding allegations of corrupt practice and for want of affidavit in Form-25 in compliance of Section 83(1) of RPA.55
D(iii) Should the petition be dismissed for want of material particulars, cause of action and for want of filing a revised/fresh affidavit in Form-26 in compliance of Sections 33, 83 of RPA read with Rule 4-A of Rules of 1961.59
E Conclusion.74
A. GENESIS:-
1. This election petition has been preferred by the petitioner calling in question the biennial elections of the Members of Council of State by the Elected Members of Uttar Pradesh, Legislative Assembly, 2020 (Rajya Sabha - 2020) dated 02.11.2020 wherein the respondents No.1 to 10 have been declared successful by the Returning Officer and it has been prayed that the election of duly elected respondents be declared null and void.
2. The primary ground of challenge as per the petitioner is that the results of the election insofar as it concerns the returned candidates has been materially affected by improper acceptance of their nomination and the improper rejection of the nomination of the petitioner.
3. Certain dates relevant for adjudication of the controversy are being noticed hereinafter.
(i) 20th October, 2020:- The notification was issued for biennial election to the Council of the State by the elected Members of the Uttar Pradesh Legislative Assembly 2020 to be held for 10 Members to the Council of the State by the Elected Members of the Uttar Pradesh Legislative Assembly.
(ii) 27th October, 2020:- The last date for filing nomination.
(iii) 28th October, 2020:- The scrutiny of the nomination forms.
(iv) 2nd November, 2020:- The last date for withdrawal of candidature.
(v) 9th November, 2020:- Date of polling.
(vi) 9th November, 2020:- The counting was also scheduled on 9th November, 2020 and the election was to be completed before 11th November, 2020.
4. The ten respondents of this petition along with the election petitioner had filed their respective nominations. During scrutiny of the nominations, objections were raised regarding nomination of the election petitioner and after due consideration, the Returning Officer by means of his order dated 28.10.2020 rejected the nomination of the election petitioner.
5. The election petitioner had moved a complaint/representation against the rejection of his nomination before the Election Commission of India and failing to get a response, the election petitioner preferred a writ petition before the Supreme Court of India under Article 32 of the Constitution of India which was withdrawn with liberty to avail the alternative statutory remedy and thereafter the petitioner has instituted the instant election petition.
6. This Court by means of the order dated 18.12.2020 had issued notices to the respondents. The respondents were duly served and they have put in appearance through their respective counsel. Each of the respondents have filed an application under Order VII, Rule 11 CPC. Few of the respondents namely the respondents No.1, 6 and 10 have also moved separate applications under Section 81 read with Section 86 of the Representation of People Act, 1951 (hereinafter referred to as "RPA", in short). In response to the aforesaid applications under Order VII, Rule 11 CPC as well as applications under Section 81 read with Sections 83 and 86 of RPA, the election petitioner has filed his reply and it is these applications which are under consideration of this Court.
7. The details of the said applications and its response which are being considered are mentioned hereinafter:-
I Applications under Order VII Rule 11 CPC
(a) by respondent No.1 :- Civil Misc. Application No.32 of 2022 and its response by the petitioner :- Civil Misc. Application No.108818 of 2021;
(b) by respondent No.2 :- Civil Misc. Application No.117348 of 2021 and its response by the petitioner :- Civil Misc. Application No.121589 of 2021;
(c) by respondent No.3 :- Civil Misc. Application No.37 of 2022 and its response by the petitioner :- Civil Misc. Application No.34 of 2022;
(d) by respondent No.4 :- Civil Misc. Application No.36949 of 2021 and its response by the petitioner :- Civil Misc. Application No.35of 2022;
(e) by respondent No.5 :- Civil Misc. Application No.118163 of 2021 and its response by the petitioner :- Civil Misc. Application No.121591 of 2021;
(f) by respondent No.6 :- Civil Misc. Application No.51007 of 2021 and its response by the petitioner :- Civil Misc. Application No.103989 of 2021;
(g) by respondent No.7 :- Civil Misc. Application No.117586 of 2021 and its response by the petitioner :- Civil Misc. Application No.121592 of 2021;
(h) by respondent No.8 :- Civil Misc. Application No.117337 of 2021 and its response by the petitioner:- Civil Misc. Application No.121590 of 2021;
(i) by respondent No.9 :- Civil Misc. Application No.36771 of 2021 and its response by the petitioner:- Civil Misc. Application No.36 of 2022;
(j) by respondent No.10 :- Civil Misc. Application No.33 of 2022.
II Applications under Section 81 read with 83, 86(1) of RPA
(a) by respondent No.1 :- Civil Misc. Application No.30 of 2022 and its response by the petitioner :- Civil Misc. Application No.38 of 2022;
(b) by respondent No.6 :- Civil Misc. Application No.51338 of 2021 and its response by the petitioner :- Civil Misc. Application No.103987of 2021;
(c) by respondent No.10 :- Civil Misc. Application No.31 of 2022 and its response by the petitioner :- Civil Misc. Application No.105867 of 2021.
8. It will be worthwhile to notice that the application under Order VII Rule 11 CPC as preferred by the respondent No.3 was not found on the record, however, the reply filed by the petitioner was on record.
9. In this view of the matter, a report was called from the computer section as well as from the Registry of this Court, who informed that no loose application relating to the aforesaid election petition is available either in defective mode or otherwise. The Court requested the learned counsel for the respondent No.3 to provide an attested copy of their application which has been taken on record.
10. The respondent No.10 had filed separate application under Section 81 read with Section 83 of RPA raising objections that the respondents No.1 and 10 had not received true attested copy of the election petition and had also made submissions in this regard during the course of hearing.
11. Learned counsel for the petitioner also responded to the said arguments, however, later, it revealed that the petitioner had not filed his response in writing and accordingly a request was made that through a separate application a response has been filed by the petitioner to the application filed by the respondents No.1 and 10 and as the said grounds are common also in reply to the application of similar nature filed by the respondent No.6, accordingly, the learned counsel for the petitioner sought leave that his formal written response to the application under Section 81 read with Section 83 of RPA moved by the respondents No.1 and 10 be taken on record and considered.
12. This Court in its order dated 06.05.2022 while reserving the matter on the applications as aforesaid had noticed the aforesaid submissions and finds that since both the parties have argued exhaustively and the ground raised by all the respondents either in their application under Order VII Rule 11 C.P.C., or in the separate applications under Sections 81 and 86 of the RPA where the point and ground of challenge being common to all the respondents and much time has been devoted on the said applications hearing all the parties, accordingly, the said applications and the response shall be treated to be the part of record and the Court while deciding the said plea shall consider the same and moreso no prejudice is likely to be caused to any party as all have been given adequate opportunity to make their detailed submissions, both oral and in writing which is also on record. Thus, this order/judgment shall decide all the aforesaid applications.
B. SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS:-
13. Shri Raghvendra Singh, learned Senior Counsel assisted by Shri Mohd. Altaf Mansoor and Shri Anurag Kumar Singh, Advocates opened the arguments on behalf of the respondents No.1 and 10. It was followed and taken forward by Shri S.C. Misra, learned Senior Counsel along with Shri Sunil Kumar Chaudhary for the respondent No.6. Shri Kuldeep Pati Tripathi, learned counsel made his submissions on behalf of the respondents No.2, 3, 4 and 7 while Shri Gaurav Mehrotra and Nadeem Murtaza, learned counsel made submissions on behalf of the respondents No.5. Shri Surya Prakash Singh, learned counsel made submissions on behalf of the respondents No.8 and 9. The submissions of Shri Raghvendra Singh and Shri S.C. Misra, learned Senior Counsel had set the tone for the respondents which has been supplemented and reiterated by the other counsel.
14. The submissions raised by the learned counsel for the respondents in tandem can be structured as under:-
(I) The primary contention of the respondents is that the petitioner is not a duly nominated candidate and the petition is not maintainable at his behest for the following reasons:-
(a) The nomination form of the election petitioner suffered from inherent defects inasmuch as it was not a valid nomination in terms of Section 33 of RPA since it did not have the requisite ten valid proposers.
(b) The affidavit filed along with nomination in Form No.26 as provided under Rule 4-A of the Conduct of Election Rules, 1961 (hereinafter referred to as "Rules of 1961") was also defective and despite time having been granted, the same was not rectified. Consequently, the nomination was rendered bad and the petitioner cannot claim himself to be a duly nominated candidate.
(II) The election petition as preferred and filed before this Court is also not in accordance with Section 81 of RPA which relates to the presentation of the election petition so also the election petition does not adhere to the provisions of Section 83 of RPA. The petition lacks specific details and in absence of material facts and particulars which in turn indicates that there is no valid and subsisting cause of action, it renders the petition liable for rejection under Order VII Rule 11 CPC.
(III) The petitioner has leveled allegations of corrupt practice in the petition, but he has failed to give material particulars in respect thereto nor has he filed an affidavit in Form No.25 as required in terms of Rule 94-A of the Rules of 1961, being another flaw for which the petition is liable to be dismissed.
15. Thus, for all the above reasons, the petition at the behest of the election petitioner is not maintainable and is liable to be rejected at the preliminary stage under Order VII Rule 11 CPC.
16. Elaborating the submissions, learned counsel for the respondents have taken the Court through relevant provisions as contained in Part-V of RPA especially Chapter-I which relates to nomination of candidates, more particularly Sections 33 and 36. The attention of the Court has been drawn to Part-VI of RPA more particularly Sections 79, 81, 82, 83 and 86. Reference has also been made to the Rules of 1961 more particularly in context with Rule 4-A and Rule 94-A, also the prescribed Form No.2-C, Form No.25 and Form No.26 respectively.
17. The thrust of the submission of learned counsel for the respective respondents is that the election of returned candidates i.e. respondents cannot be called in question except by an election petition presented in accordance with the provisions of Part-VI of RPA. It is submitted that Section 79(b) of RPA defines the word 'candidate' to mean a person who has been or claims to have been a duly nominated candidate at any election.
18. It is submitted that in terms of Section 81 of RPA, an election petition can be filed by any candidate at such election or an elector. However, in the instant case, the election petitioner is not an elector. He also cannot be treated as a candidate since his nomination was duly rejected by the Returning Officer on 28.10.2020. Now, even if, the election petitioner claims himself to be a 'duly nominated candidate' at an election, even then it will not enure to his benefit since the nomination form filed by the petitioner was inherently defective. It is not in accordance with Section 33 of the RPA which relates to presentation of nomination paper and requirement for a valid nomination, consequently, the petitioner cannot even claims himself to be a duly nominated candidate, hence, the petition is not maintainable.
19. It was further explained that Section 33 of RPA provides that nomination paper must be delivered to the Returning Officer at the place and time specified in the notification, complete in all respects and in the prescribed form signed by the candidate and by the proposers. It is urged that since the petitioner has not been duly nominated by any recognized political party and he intended to contest the elections as an independent candidate, hence, in his case, in terms of proviso appended to Section 33 of RPA, the nomination form ought to be subscribed by ten valid proposers being the electors of the Constituency.
20. In the instant case, one of the proposer as mentioned in the nomination form namely Nawab Shah was not a valid elector of the Constituency, accordingly, he could not be treated as a proposer as a result the nomination form of the petitioner would be subscribed only by nine proposers and hence against the mandate of Section 33 of RPA, rendering the nomination form invalid.
21. It is also submitted that each nomination form in order to be valid and considered must also be accompanied with an affidavit required in Form No.26 in terms of Rule 4-A of the Rules of 1961 and in the instant case, the affidavit filed by the election petitioner in prescribed format of Form No.26 was defective as it did not have Clause 8(viii) as prescribed in the format of Form No.26.
22. It is urged that this aspect was brought to the notice of the election petitioner by the Returning Officer while receiving the nomination form on 27.10.2020 as also evident from the check-list, a copy of which has been brought on record by the election petitioner along with the election petition. However, there is nothing on record to indicate that the said defect was cured by the election petitioner. In absence of any rectification/revised affidavit filed with the returning officer, the nomination form of the petitioner could not be treated to be valid and accordingly, noticing the aforesaid, the Returning Officer rejected the nomination form of the election petitioner during scrutiny on 28.10.2020.
23. It is also pointed out that the right to contest the elections is not a right available under the common law. It is governed by the provisions of RPA and thus, if any election is to be called in question then the same is governed by the provisions of RPA. It is also submitted that the Apex Court has consistently held that the provisions of RPA are to be strictly construed and in case if there is a breach or non-compliance of the provisions of RPA then the person liable for such breach and non-compliance must bear the brunt and no equity or liberal approach can be taken in context of such a person.
24. It is, thus, argued that the nomination form of the petitioner was not valid so he could not be treated to be a candidate and at the same time he cannot claim himself to be a duly nominated candidate, hence, the petition was not maintainable at his behest and is liable to be dismissed.
25. Taking the submissions forward, it is urged that considering the mandate of Section 83 of RPA which provides that an election petition must contain concise but material fact on which the petitioner relies. The petitioner is required to set forth full particular of any corrupt practice that he alleges including a full statement, as possible, relating to the names of the parties alleged to have committed such corrupt practice and date and place of the commission of such practice. The petition must be signed and verified, coupled with the fact, that where the petitioner has alleged any corrupt practice then the election petition must be accompanied by an affidavit in the prescribed format in support of allegation of such corrupt practice and particulars thereof as provided in Form No.25 which is relatable to Rule 94-A of the Rules of 1961. It is also urged that any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the election petition itself.
26. It is urged that the entire contents of the election petition targets the Returning Officer and various allegations have been leveled against him indicating that he is involved in corrupt practice with intent to benefit the other candidates, who are none other than the respondents and neither the details of the corrupt practice have been mentioned nor the election petition is accompanied by an affidavit in Form No.25 and even the copies of the election petition which have been received by the respondents No.1 and 10 are not duly verified including its annexure, schedule annexed with the petition and it is in gross violation of Sections 81, 83 and 86 of RPA and in absence of material particulars, the petition does not discloses a subsisting cause of action. Hence, the election petition is worthy of dismissal.
27. DECISIONS CITED BY THE COUNSEL FOR RESPONDENTS:-
(a) Resurgence India v. Election Commission of India, (2014) 14 SCC 189;
(b) Jyoti Basu v. Debi Ghoshal, (1982) 1 SCC 691;
(c) U.S. Sasidharan v. K. Kaarunakaran, (1989) 4 SCC 482;
(d) Dr. Shipra (Smt.) v. Shankti Lal Khoiwal, (1996) 5 SCC 181;
(e) T.M. Jacob v. C. Poulose, (1999) 4 SCC 274;
(f) V. Narayanswami v. C.P. Thirunavukkarasu, (2000) 2 SCC 294;
(g) Rakesh Agarwal v. Santosh Kumar Gangwar, 2020 (5) ALJ 59;
(h) Mithilesh Kumar Pandey v. Baidyanath Yadav, (1984) 2 SCC 1;
(i) Purushottam v. Returning Officer, Amravati & Ors., AIR 1992 Bom 227;
(j) Baban Yadav v. Abdul Kadir, AIR 1998 Bom 60;
(k) Mulayam Singh Yadav v. Dharampal Yadav & Ors., (2001) 7 SCC 98;
(l) Hari Krishna Lal v. Atal Bihari Bajpai, 2002 SCC Online All 40;
(m) Devendra Patel v. Rampal Singh & Ors., (2013) 10 SCC 801;
(n) Mithlesh Kumar Sinha v. Returning Officer for Presidential Election & Ors., 1993 Suppl. (4) SCC 386;
(o) Charan Lal Sahu v. Neelam Sanjeeva Reddy, (1978) 2 SCC 500;
(p) Charan Lal Sahu v. Giani Zail Singh & Anr., (1984) 1 SCC 390;
(q) Charan Lal Sahu v. Dr. APJ Abdul Kalam & Ors., (2003) 1 SCC 609;
(r) Tej Bahadur v. Narendra Modi, 2019 SCC Online All 4780;
(s) Tej Bahadur v. Narendra Modi, 2020 SCC Online SC 951;
(t) Brij Mohan v. Satpal, (1985) 2 SCC 652;
(u) Rattan Anmol Singh & Ram Prakash v. Ch. Atma Ram; (1955) 1 SCR 1077;
(v) S. Ratnamma v. S. Shiv Prasad, 2001 SCC Online AP 1077;
(w) Jogya v. Beti Joga, 1973 ELR 1050;
(x) Smt. Hema Purohit v. Trivendra Singh Rawat & Ors., 2018 SCC OnLine Utt. 649;
(y) Nandiesha Reddy v. Kavita Mahesh, (2011) 7 SCC 721;
(z) Chandra Narain Tripathi v. Kapil Muni Karwariya; (2011) 4 All LJ 235;
(aa) Chandra Narain Tripathi v. Kapil Muni Karwariya, Election Petition No.1 of 2009, decided on 20.12.2013; unreported judgment of the Allahabad High Court;
(ab) Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315;
(ac) M. Karunanidhi v. H.V. Hande, (1983) 2 SCC 473.
C. SUBMISSIONS OF COUNSEL FOR THE ELECTION PETITIONER:-
28. Shri Narendra Kumar Pandey, learned counsel assisted by Shri Vivek Kumar and Shri Jitendra Saksena, Advocates have refuted the submissions made by the learned counsel for the respondents and has urged that first and foremost the scope of Order VII Rule 11 CPC must be noticed. It is urged that the Apex Court has consistently held that while considering the applications under Order VII Rule 11 CPC, it is only and only the averments contained in the petition along with the documents filed by the petitioner is to be seen, the way they are, treating it to be true and without adding or subtracting any sentence or compartmentalizing any part of the petition. The entire petition must be read in a meaningful manner without culling out sentence in isolation and only then if the Court comes to the conclusion that the petition does not disclose any cause of action or that the petition is barred by any law for the time being in force, then the Court may exercise its powers to reject the petition.
29. Moving forward, learned counsel for the election petitioner has argued that insofar as the present petition is concerned, it is his specific case that he had filed two sets of nomination papers at around 02:50 PM on 27.10.2020. One set was in English on green colour paper while the other set was in Hindi on pink colour paper. It is urged that in terms of Section 33(4) of RPA, the Returning Officer while receiving a nomination paper must satisfy himself in respect of names and the electoral roll, numbers of the candidate and his proposers, as entered in the nomination paper are the same as those entered in the electoral rolls.
30. It is submitted that while two sets of nomination papers were filed, the petitioner was handed over the check-list which only indicated that the affidavit filed along with the nomination paper in Form No.26 was not correct and time was granted to the petitioner to furnish a revised and a fresh affidavit. It is also the specific case that the petitioner was given Serial No.22 in respect of the nomination form filed in English on green paper but not for the other form on pink colour paper which in seratum ought to be at S.No.23 and the said form was also complete in all respects but no number was given and the second nomination was also not considered by the Returning Officer.
31. It is also submitted that the alleged discrepancy which was raised at the time of scrutiny relating to the name of one of the proposers as mentioned in the nomination form filled in English on green colour paper related to the name of the proposer at S.No.3 as Nawab Shah, however, his correct name was Nawabjaan. It is urged that the serial number at which the name of Shri Nawab Shah (read Nawabjaan) as mentioned in the list prepared under Section 152 of RPA was correctly mentioned in the nomination form so also the signatures of Nawabjaan was also present. Hence, this inadvertent error, if any, was nothing but a misnomer and an inaccurate description and merely a technical & clerical error in the nomination paper which in terms of the proviso appended to Section 33(4) of RPA was liable to be ignored.
32. It is also urged that even in terms of Section 33(6) of RPA, a candidate is entitled to file maximum upto four sets of nomination papers and in the instant case, the election petitioner had submitted two sets of nomination papers one in English on green colour paper and one in Hindi on pink colour paper. The nomination form in pink colour paper was complete in all respects. Even if at all there was any discrepancy in the other set filled in English on green colour paper, nevertheless the Returning Officer ought to have considered the nomination paper filed by the petitioner on pink colour paper and in failing to consider it, the Returning Officer erred and illegally rejected the nomination paper of the election petitioner with an oblique motive.
33. It is further argued that even during the scrutiny of the nomination, two sets of objections were filed against the nomination of the election petitioner, one by Haridwar Dubey and the other by Shri Lalji Verma. The petitioner had also filed his response thereto and had clearly stated that the clerical error in the name of one of the proposers is liable to be overlooked being a misnomer in terms the proviso appended to Section 33(4) of RPA and it was also stated that though the Returning Officer had the complete list which is maintained in terms of Section 152 of RPA and the details of Nawabjaan could be easily verified. Moreover, the petitioner was willing to produce Nawabjaan in person, to verify the fact of proposing the name of the election petitioner by him within twelve hours, if permitted. The Returning Officer had ample power and jurisdiction vested in him to adjourn the hearing on the objections raised on the nomination form during scrutiny to the following day to provide the petitioner time and to enable him to rebut the objections, but no such opportunity was granted to the election petitioner thereby with a deliberate intent the nomination form of the petitioner was rejected to help the other candidates.
34. It is also urged that insofar as the affidavit in Form No.26 is concerned, though one column 8(viii) in the prescribed format Form No.26 was missing and the same had been informed by the Returning Officer as indicated in the check-list provided to the petitioner. However, the petitioner got a fresh/revised affidavit prepared which was submitted to the Returning Officer prior to commencement of scrutiny on 28.10.2020. The petitioner was not provided any receipt of the said affidavit nor any receipt was given regarding filing of second set of nomination form on pink colour paper, thus, the rejection of the nomination form of the petitioner was illegal, deliberate and bad.
35. Learned counsel for the petitioner has further urged that the petitioner has primarily structured his petition in two parts. One relates to the facts and details including material particulars relating to illegal rejection of the nomination form of the election petitioner and the other relates to the details, facts and material particulars relating to the issue of illegal acceptance of nomination form and affidavits of returned candidates.
36. It is urged that reference in certain paragraphs in the petition is to the manner in which the Returning Officer has acted and this is referred to by the learned counsel for the respondents, during their course of arguments, as allegations of corrupt practice. On the contrary, the said paragraphs actually indicate the sequence of event as they unfolded and the attitude/reaction of the Returning Officer which led to the illegal rejection of the nomination of the petitioner by taking recourse to immaterial, technical deficiencies which were of unsubstantial character. However, the same Returning Officer for the same/similar deficiencies and treating them to be of unsubstantial character, had accepted the nomination form of the returned candidates, reflecting dual standards adopted and this has materially affected the results of the election.
37. It is in this context that the facts have been detailed along with relevant schedule appended with the petition. The election petitioner has even brought on record certain photographs indicating that at the time of presentation of the nomination form, one form filled in English on green colour paper and the other form filled in Hindi on pink colour was presented before the Returning Officer. The election petitioner has also brought on record a copy of the revised affidavit in Form No.26 which was filed before the Returning Officer prior to the commencement of scrutiny of the nomination form and in this context if the contents of the election petition is read as a whole it will indicate the entire bundle of facts with material particulars have been clearly and categorically stated. Accordingly, it cannot be said that the petitioner has not disclosed a valid cause of action or that material particulars have not been indicated.
38. It is also urged that while dealing with the application under Order VII Rule 11 CPC, the Court is required to see the complete averment in the petition and treating the same to be true. The error/deficiencies as pointed out by the respondents are nothing but contentions which can form part of their defence and in any case such contentions being contestable questions are to be made subject matter of issues and only after permitting the parties to lead evidence, can the matter be decided. However, it cannot be said that the election petition is not in accordance with the provisions of Section 81 and Section 83 or Section 86 of RPA and that no valid and subsisting cause of action has been indicated in the election petition. No provision of any law has been pointed out which prohibits or bars the election petition. Hence, the applications moved by the respondents are frivolous and deserve to be rejected.
39. It is further submitted that the fact whether the petitioner had filed the second set of nomination on pink colour paper is a question of fact which can only be decided after leading of evidence. Prima-facie the pleadings are quite specific and even the photographs and schedules compliment the pleadings and the success of the said averments can only be tested after trial and not at this preliminary stage.
40. It is also submitted that the petitioner had sought the true copies available with the Returning Officer relating to the Form No.2-C i.e. nomination form of the returned candidates as well as their respective affidavits in Form No.26. Also, the petitioner had sought the CCTV Footage as the process of presentation of the nomination form was duly videographed to enable the petitioner to prove his plea regarding furnishing and presentation of second set of nomination filed by the election petitioner on pink colour paper but the same has not been provided to the petitioner in its entirety.
41. It is further urged that the petitioner had to seek judicial intervention by filing a writ petition before this Court at Prayagraj wherein an order was passed and in furtherance thereof only part compliance of the order of the Writ Court was made and the petitioner was provided with the Form No.2-C filed by the returned candidates. The petitioner was neither provided with the copy of the second set of nomination on pink paper nor all the affidavits of the returned candidates was provided. Even the CCTV Footage as required was not provided indicating that the Returning Officer was shielding an important piece of relevant evidence.
42. Learned counsel for the petitioner has also submitted that since the averments made in the election petition are primarily focused on the two issues relating to illegal rejection of the nomination of the petitioner and illegal acceptance of the nomination of the respondents and no allegation of corrupt practice has been alleged, hence, there was no requirement of filing an affidavit in terms of Rule 94-A of the Rules of 1961. Accordingly, the election petition cannot be said to be bad for want of affidavit in Form No.25 and in absence thereof the petition is not rendered non-maintainable.
43. It is also alternatively submitted by the learned counsel for the petitioner that even if, at all by any stretch of imagination, the averment as contained in the election petition are taken to be allegation of corrupt practice and there being no affidavit in terms of Form No.25 even then the petition is not liable to be rejected rather the Court should be magnanimous enough to permit the petitioner to furnish the affidavit within such day and time to be fixed and if in case, thereafter, the petitioner does not comply or furnish such an affidavit only then the Court may exercise its powers to reject the election petition and not before that.
44. Learned counsel for the petitioner has also drawn the attention of the Court to the Hand Book Of Returning Officers for Elections to the Council of State and State Legislative Council, issued by the Election Commission of India (hereinafter referred to as 'Handbook') and has urged that the same has statutory force. The said Handbook contains various clauses relating to the manner in which the nomination forms are to be treated at the time of presentation and scrutiny and instructions are imparted to the Returning Officers to adopt a liberal approach rather than to take a strict view as by adopting any hyper-technical or strict view it may result in rejection of a nomination form on technical grounds which causes irreparable injury. Such rejections are subjected to election petitions where the Court if sets aside the rejection order then elections of various returned candidate is declared null and void which in fact results in colossal waste of time, money and labour for all concerned and such a situation must be avoided.
45. The petitioner is a validly nominated candidate as per the RPA and is entitled to maintain the petition and even otherwise there is no error in presentation which may cast a cloud over the election petition, hence, all the applications moved by the respondents under Order VII Rule 11 CPC and under Sections 81 and 86 of RPA are liable to be dismissed.
46. DECISIONS CITED BY THE COUNSEL FOR PETITIONER:-
(a) Mayar (H.K.) Ltd. & Ors. v. Owners & Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC 100;
(b) Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors., (2004) 3 SCC 137;
(c) D. Ramachandran v. R.V. Janakiraman & Ors., JT 1999 (2) 94;
(d) H.D. Revanna v. G. Puttaswamy Gowda & Ors., JT 1999 (1) 126;
(e) Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy & Ors., AIR 2018 SC 3012;
(f) A. Manju v. Prajwal Revanna, (2022) 2 SCC 269;
(g) Resurgence India v. Election Commission of India & Anr., AIR 2014 SC 344;
(h) Sri Mairembam Prithviraj alias Prithviraj Singh v. Sri Pukhrem Sharatchandra Singh, AIR 2016 SC 5087;
(i) Mohan Rawale v. Damodar Tatyaba alias Dadasaheb & Ors. (1994) 2 SCC 392;
(j) Samant N. Balakrishna etc. v. George Fernandez & Ors., AIR 1969 SC 1201;
(k) Shri Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511;
(l) T.M. Jacob v. C. Poulose & Ors., (1994) 4 SCC 274;
(m) Dharam Yadav alias D.P. Yadav v. Dharmendra Yadav & Ors., Election Petition No.18 of 2009, MANU/UP/2055/2010;
(n) Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors., (2012) 7 SCC 788;
(o) Bhagwan Rambhau Karankal v. Chandrakant Batesingh Raghuwanshi & Ors., 2001 (6) Supreme 101;
(p) Ram Bhual v. Ambika Singh, AIR 2005 SC 4233;
(q) Ambika v. Ram Bhual, 2004 SCC OnLine All 1476;
(r) G. Mallikarjunappa & Anr. v. Shamanur Shivashankarappa & Ors. (2001) 4 SCC 428;
(s) Nandiesha Reddy v. Kavitha Mahesh, (2011) 7 SCC 721;
(t) Ashraf Kokkur v. K.V. Abdul Khader & Ors., (2015) 1 SCC 129;
(u) Kailash v. Nanhku & Ors., AIR 2005 SC 2441.
(v) Kuldeep Singh Pathania v. Bikram Singh Jaryal, AIR 2017 SC 593;
D. LEGAL ANALYSIS AND DISCUSSIONS:-
47. The Court has heard the learned counsel for the respective parties at length over several dates and has also meticulously perused the record.
48. In order to appreciate the contention of the respective parties, this Court deems appropriate that it will be gainful to first have a glance at the relevant legal provisions of the RPA and the Rules of 1961.
49. The RPA in Part-V deals with the conduct of election. Chapter-I relates to nomination of candidates and for the present controversy Section 33 and Section 36 is relevant and the same is being reproduced for ready reference:-
"[33. Presentation of nomination paper and requirements for a valid nomination.--(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O'clock in the forenoon and three O'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:
[Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:
Provided also that in the case of a local authorities' constituency, graduates' constituency or teachers' constituency, the reference to "an elector of the constituency as proposer" shall be construed as a reference to ten per cent. of the electors of the constituency or ten such electors, whichever is less, as proposers.] [(1A) Notwithstanding anything contained in sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State only constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed:
Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and--
(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;
(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;
(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.] (2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.
(3) Where the candidate is a person who, having held any office referred to in 4[section 9] has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.
(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls:
[Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.] (5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.
[(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper:
Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.]] [(7) Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,--
(a) in the case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;
(b) in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;
(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;
(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;
(e) in the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;
(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies which are held simultaneously, from more than two such Assembly constituencies;
(g) in the case of bye-elections to the Council of States for filling two or more seats allotted to a State, which are held simultaneously, for filling more than two such seats;
(h) in the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies.
Explanation.--For the purposes of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under sections 147, 149, 150 or, as the case may be, 151 on the same date.] ***-------***-------***-------***-------***-------***
36. Scrutiny of nomination.--(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer 1[***] of each candidate, and one other person duly authorised in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, [reject] any nomination on any of the following grounds:--
[(a) [that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:--
Articles 84, 102, 173 and 191, [***].
[Part II of this Act, and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963)] [***]; or
(b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.] (3) Nothing contained in 8[clause (b) or clause (c)] of sub-section (2) shall be deemed to authorise the 9[rejection] of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any [***] defect which is not of a substantial character.
(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:
Provided that in case [an objection is raised by the returning officer or is made by any other person] the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
[(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950)].
(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.]"
50. The next relevant provision regarding the election is contained in Part-VI of the RPA where Section 79(b) defines the word "candidate" which reads as under:-
"79 (b) "Candidate" means a person who has been or claims to have been duly nominated as a candidate at any election;"
51. In the same Part-VI, Chapter-II of RPA provides for presentation of election petitions. Sections 80, 80-A, 81 and 83 relates to the election petitions, its presentations and its contents and the said sections read as under:-
"80. Election petitions.--No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.
[80A. High Court to try election petitions.--(1) The Court having jurisdiction to try an election petition shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose:
Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.
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 1[sub-section (1)] of section 100 and section 101 to the 2[High Court] by any candidate at such election or any elector 3[within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates].
Explanation.--In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
1[***] 2[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition 3[***] and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.] [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:
[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 the petition shall also be signed by the petitioner and verified in the same manner as the petition.]"
52. While Part VI, Chapter-III deals with trial of elections petitions and Section 86 reads as under:-
"[86. Trial of election petitions.--(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.
Explanation.--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of 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.
(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.]"
53. The Rules of 1961 in Part-II under the head General Provisions, in Rule 4 provides for nomination papers and the format of such forms has also been prescribed in the said Rules.
54. Rule 4 of Rules of 1961 reads as under:-
"4. Nomination paper.--Every nomination paper presented under sub-section (1) of section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate:
Provided that a failure to complete or defect in completing, the declaration as to symbols in a nomination paper in Form 2A or Form 2B shall not be deemed to be a defect of a substantial character within the meaning of sub-section (4) of section 36."
55. For the present purposes, Form 2-C as prescribed in the Rules of 1961 is relevant. Similarly Rule 4-A which relates to the form of the affidavit to be filed at the time of delivering nomination papers was incorporated with the effect from 03.09.2002 in the Rules of 1961. Form-26 as prescribed in the Rules of 1961 relateable to Rule 4-A is relevant for the present controversy and it reads as under:-
"4A. Form of affidavit to be filed at the time of delivering nomination paper.--The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under subsection (1) of section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26."
56. Rule 94-A of Rules of 1961 relates to the affidavit which is required to be filed in terms of proviso to Sub-section (1) of Section 83 of RPA and relatable to Form-25 of Rules of 1961 and is also relevant for the instant controversy and it reads as under:-
"94A. Form of affidavit to be filed with election petition.--The affidavit referred to in the proviso to subsection (1) of section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25."
57. Before proceeding further, it will also be relevant, at first, to take a glance at the decisions cited by the learned counsel for the respondents and then to the decisions cited by the learned counsel for the petitioner, in support of their respective contentions.
58. Learned counsel for the respondents have primarily relied upon the decision of the Apex Court in Resurgence India (supra) wherein the issue before the Apex Court was noticed in paragraph 9 and 11 and the writ petitioner before the Apex Court sought a direction for making it compulsory for the Returning Officer to ensure that the affidavits filed by the candidates are complete in all respects and to reject those nomination papers which are accompanied by affidavits containing blank. It is in this context, the Apex Court after considering the submissions in para-22, 23 and 29 held as under:-
"22. Let us now test whether the filing of affidavit stating that the information given in the affidavit is correct but leaving the contents blank would fulfil the objective behind filing the same. The reply to this question is a clear denial. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizen under Article 19(1)(a) of the Constitution of India. The citizens are required to have the necessary information at the time of filing of the nomination paper in order to make a choice of their voting. When a candidate files an affidavit with blank particulars, it renders the affidavit itself nugatory.
23. For that purpose, the Returning Officer can very well compel a candidate to furnish information relevant on the date of scrutiny. We were appraised that the Election Commission already has a standard draft format for reminding the candidates to file an affidavit as stipulated. We are of the opinion that along with the above, another clause may be inserted for reminding the candidates to fill the blanks with the relevant information thereby conveying the message that no affidavit with blank particulars will be entertained. We reiterate that it is the duty of the Returning Officer to check whatever the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the "right to know" of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of the Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced."
***-------***-------***-------***-------***-------*** "29.What emerges from the above discussion can be summarised in the form of the following directions:
29.1. The voter has the elementary right to know full particulars of a candidate who is to represent him in Parliament/Assemblies and such right to get information is universally recognised. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.
29.2. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.
29.3. Filing of affidavit with blank particulars will render the affidavit nugatory.
29.4. It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the "right to know" of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of the Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.
29.5. We clarify to the extent that para 73 of People's Union for Civil Liberties case [People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399] will not come in the way of the Returning Officer to reject the nomination paper when the affidavit is filed with blank particulars.
29.6. The candidate must take the minimum effort to explicitly remark as "NIL" or "Not Applicable" or "Not known" in the columns and not to leave the particulars blank.
29.7. Filing of affidavit with blanks will be directly hit by Section 125-A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalised for the same act by prosecuting him/her."
59. Learned counsel for the respondents have then relied upon the decision of the Apex Court in Jyoti Basu (supra) to buttress their submissions that a right to elect is fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and a simple statutory right. Since, the proceeding under the RPA are governed by the statute therefore neither the principles of common law nor the principles of equity apply. The proceedings have to be strictly construed and since the election petitioner has not complied with the various provisions contained in Sections 81, 83 read with Section 86 of the RPA which require strict compliance, hence the election petition is bad. Paragraphs 8 and 9 of the aforesaid decision is relevant which reads as under:-
"8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a strait-jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any rights claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the scheme of the Act. We have noticed the necessity to rid ourselves of notions based on common law or equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?
9. Section 81 prescribes who may present an election petition. It may be any candidate at such election; it may be any elector of the constituency; it may be none else. Section 82 is headed "Parties to the petition" and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of Section 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Section 86(4) enables any candidate not already a respondent to be joined as a respondent. There is no other provision dealing with the question as to who may be joined as respondents. It is significant that while clause (b) of Section 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under Section 86(4), any other person cannot, under that provision seek to be joined as a respondent, even if allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the staturte, how can the notion of "proper parties" enter the picture at all? We think that the concept of "proper parties" is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents."
60. The next decision relied upon by the respondents is the case of U.S. Sasidharan (supra) which was in context with the allegation and material particulars in the election petition vis-a-vis a video cassette which was though filed in the Court but a copy thereof was not served on the respondents. The issue before the Apex Court has been noticed in paragraph-7 of the said decision and thereafter in paragraph 12 and 13 it was held that from a perusal of Section 83(1)(a)(b) it is sine qua non for an election petition to contain concise statement of material facts and also to set forth full particulars of corrupt practice. It has also been held that the procedure prescribed in the RPA for challenging an election much be strictly followed. So if there be any deviation for non compliance with the provision of Section 81(3), the courts have no other alternate but to dismiss the election petition. Paragraph 15 and 16 are relevant and relates to the differentiation between material facts or particulars and how they are to be construed in context with an election petition.
The relevant paras 15 and 16 reads as under:-
"15. We have already referred to Section 83 relating to the contents of an election petition. The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice. The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81(3) provides for giving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81(3) and, as such, the court has to dismiss the election petition under Section 86(1) for non-compliance with Section 81(3).
16. On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of Section 81(3). The document may be relied upon as an evidence in the proceedings. In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition."
61. Learned counsel for the respondents on the aforesaid point has also relied on a decision of the Apex Court in Dr. Shipra (supra) and T. M. Jacob (supra) to buttress their submissions regarding material particulars and concept of a true copy.
62. From the perusal of the aforesaid decisions, it transpires that the case of Dr. Shipra (supra) came to be referred to a Larger Bench of the Apex Court in the case of T. M. Jacob (supra). It is the Constitution Bench of T. M. Jacob (supra) where the issue regarding the legislative intent and the object of serving a true copy of an election petition and the affidavit filed in support of the allegation of corrupt practice came to be considered. The relevant paragraphs of the said report are 22, 24, 28, 35, 36, 37, 39 and 40 which reads as under:-
"22. The defect found in the present case is almost identical to the defect which had been found in the copy of the affidavit supplied to the first respondent in Anil R. Deshmukh case [(1999) 2 SCC 205 : JT (1999) 1 SC 135] . The defect is materially different from the defect found in Dr Shipra case [(1996) 5 SCC 181] where the true copy of the election petition furnished by the election petitioner to the successful candidate did not show that the affidavit filed in support of the allegation of corrupt practices had been duly sworn or affirmed and verified by the election petitioner before a Notary, whose attestation was also found missing."
***-------***-------***-------***-------***-------*** "24. Reliance on the above observations in Dr Shipra case [(1996) 5 SCC 181] divorced from the context in which that judgment had been rendered, is neither fair nor proper."
***-------***-------***-------***-------***-------*** "28. Thus, our answer to the reference is that the judgment in Dr Shipra case[(1996) 5 SCC 181] is confined to the "fact situation" as existing in that case and has no application to the established facts of the present case and the wide observations made therein were made in the context of the facts of that case only."
***-------***-------***-------***-------***-------*** "35. The object of serving a "true copy" of an election petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in the election petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form.
36. The expression "copy" in Section 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of Section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation.
37. We have already referred to the defect which has been found in the copy of the affidavit served on the appellant in the present case. There is no dispute that the copy of the affidavit served on the appellant contained the endorsement to the effect that the affidavit had been duly signed, verified and affirmed by the election petitioner before a Notary. Below the endorsement of attestation, it was also mentioned:
sd/ Notary There, however, was an omission to mention the name and particulars of the Notary and the stamp and seal of the Notary in the copy of the affidavit served on the appellant. There was no other defect pointed out either in the memo of objection or in CMP No. 2903 of 1996 or even during the course of arguments in the High Court or before us. Could this omission be treated as an omission of a vital or material nature which could possibly mislead or prejudice the appellant in formulating his defence? In our opinion: No. The omission was inconsequential. By no stretch of imagination can it be said that the appellant could have been misled by the absence of the name and seal or stamp of the Notary on the copy of the affidavit, when endorsement of attestation was present in the copy which showed that the same had been signed by the Notary. It is not denied that the copies of the election petition and the affidavit served on the appellant bore the signatures of Respondent 1 on every page and the original affidavit filed in support of the election petition had been properly signed, verified and affirmed by the election petitioner and attested by the Notary. There has, thus, been a substantial compliance with the requirements of Section 81(3) read with the proviso to Section 83(1)(c) of the Act. Defects in the supply of true copy under Section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provisions of Section 81(3) read with Section 86(1) of the Act. The same consequence would not follow from non-compliance with Section 83 of the Act."
***-------***-------***-------***-------***-------*** "39. Applying the test as laid down in Murarka Radhey Shyam Ram Kumar case[AIR 1964 SC 1545 : (1964) 3 SCR 573] to the fact situation of the present case, we come to the conclusion that the defects complained of in the present case were not such as could have misled the appellant at all. The non-mention of the name of the Notary or the absence of the stamp and seal of the Notary in the otherwise true copy supplied to the appellant could not be construed to be an omission or variation of a vital nature and thus the defect, if at all it could be construed as a defect, was not a defect of any vital nature attracting the consequences of Section 86(1) of the Act. Under the circumstances, it must be held that there was no failure on the part of the election petitioner to comply with the last part of sub-section (3) of Section 81 of the Act and, under the circumstances, Section 86(1) of the Act was not attracted and the election petition could not have been dismissed by reason of the alleged failure to comply with the provisions of Section 81 of the Act. In this connection, it is also relevant to note that the appellant, neither in the memo of objections nor in the written objections or in CMP No. 2903 of 1996 has alleged that he had beenmisled by the absence of the name, rubber stamp and seal of the Notary on the copy of the affidavit supplied to him or that he had been prejudiced to formulate his defence. Even during the arguments, learned counsel for the appellant was not able to point out as to how the appellant could have been prejudiced by the alleged omissions on the copy of the affidavit served on him.
40. In our opinion it is not every minor 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) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhey Shyam case [AIR 1964 SC 1545 : (1964) 3 SCR 573] are sound tests and are now well settled. We agree with the same and need not repeat those tests. Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of Section 86(1) of the Act for alleged non-compliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the requirements of Section 81(3) of the Act in supplying "true copy" of the affidavit to the appellant by the respondent."
63. From the aforesaid, it would be clear that the Constitution Bench in T. M. Jacob (supra) held that the proposition as held in Dr. Shipra (supra) was on its own facts as pertaining to the said case. However, the dictum which came to be noticed and laid down has been noticed in paragraphs 37, 39 and 40 as noted above.
64. The next decision relied upon by the learned counsel for the respondent is of V. Narayanswami (supra) which also relates to the issue of the disclosure of cause of action, the contents regarding material facts and material particulars, the distinction between the two and importance of the affidavit and its verification. The relevant paragraphs 23, 26, and 30 of the said decision reads as under:-
"23. It will be thus seen that an election petition is based on the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the rules and Form 25 are to be read conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub-section (1) of Section 83. Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal existence and the court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case the petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of the duty of the court suo motu even to direct furnishing of better particulars when objection is raised by the other side. Where the petition does not disclose any cause of action it has to be rejected. The court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. The petition has to be considered as a whole. There cannot be a partial rejection of the petition."
***-------***-------***-------***-------***-------*** "26. Material facts and material particulars certainly connote two different things. Material facts are those facts which constitute the cause of action. In a petition on the allegation of corrupt practices the cause of action cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based on the allegations of corrupt practices. An election petition seeking a challenge to the election of a candidate on the allegation of corrupt practices is a serious matter; if proved, not only does the candidate suffer ignominy, he also suffers disqualification from standing for election for a period that may extend to six years. Reference in this connection may be made to Section 8-A [ -A. Disqualification on ground of corrupt practices.--(1) The case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period:Provided that the period for which any person may be disqualified under this sub-section shall in no case exceed six years from the date on which the order made in relation to him under Section 99 takes effect.(2) Any person who stands disqualified under Section 8-A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period.(3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion."] of the Act. It was for this purpose that the proviso to sub-section (1) of Section 83 was inserted by Act 40 of 1961 (w.e.f. 20-9-1961) requiring filing of the affidavit in the prescribed form where there are allegations of corrupt practice in the election petition. Filing of the affidavit as required is not a mere formality. By naming a document as an affidavit it does not become an affidavit. To be an affidavit it has to conform not only to the form prescribed in substance but has also to contain particulars as required by the rules."
***-------***-------***-------***-------***-------*** "30. It will thus be seen that the election petition not only lacked the material facts, it lacked material particulars, defective verification and the affidavit filed was not in the form prescribed. Moreover, the ingredients of corrupt practices, as defined in Section 123(1)(B) and 123(2) of the Act are also lacking. It is also not the case of the appellant that any MLA whom the appellant could not meet, received any gratification, as defined, whether as a motive or a reward for voting or refraining from voting, or there was any inducement or attempt to induce any such MLA to vote or refrain from voting. Also it is not the case of the appellant that any undue influence was exercised with the free exercise of any electoral right of any MLA which right, as noted above, has been defined in clause (d) of Section 79 of the Act. There is no allegation if any particular MLA was induced to vote or not to vote in a particular way because he was entertained or otherwise. The allegation is that the appellant himself could not meet the MLAs and he believed that if he had been given a chance to meet them he would have influenced their vote in his favour and against their party of affiliations. There is no allegation that the MLAs were prevented or influenced from freely exercising their electoral right. As stated earlier the appellant did not show as to why he could not meet the MLAs on 2-10-1997 when they were available in Pondicherry. The material fact must be that the appellant was prevented from meeting the MLAs which he did not allege and as to how he was so prevented would constitute material particulars."
65. Learned counsel for the respondents has also relied upon the case of Mithilesh Kumar Pandey (supra) which has already been noticed in the case of Dr. Shipra (supra) as well as T. M. Jacob (supra). However, in the case of Mithilesh Kumar Pandey (supra) the issue before the Apex Court was in respect of the mistake in the copies supplied to the returned candidates and thereafter considering the provisions of the law, the Apex Court in paragraph 15 laid down as under:-
"15. On a careful consideration and scrutiny of the law on the subject, the following principles are well established:
"(1) that where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petition cannot be dismissed straightaway under Section 86 of the Act, (2) a true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the court may not take notice thereof, (3) where the copy contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has been a substantial compliance with the provisions of Section 81(3) of the Act, (4) prima facie, the statute uses the words ''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 candidate cannot be said to be a true copy within the meaning of Section 81(3) of the Act, and (5) as Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation of the provisions of the said section."
66. Learned counsel for the respondents have also relied upon two decisions of the learned Single Judge of the Bombay High Court in Purushottam (supra) and Baban Yadav (supra) which also takes into account and follow the aforesaid reasoning as noticed in the preceding paragraphs.
67. The next decision upon which reliance has been placed by the respondents is that of Mulayam Singh Yadav (supra) wherein the issue before the Apex Court was whether or not schedule 14 which was part of the election petition could be treated as a integral part of the election petition. Answering the aforesaid issue, the Apex Court in paragraphs 11 to 14 of the said report held as under:-
"11. Whether or not Schedule 14 is an integral part of the election petition does not depend on whether or not the draftsman of the election petition has so averred. It has to be decided objectively, taking into account all relevant facts and circumstances. Schedule 14 is one of 25 schedules which is, as a matter of fact, part of the bound election petition. In respect of each of these schedules, except Schedule 14, it is averred that it is a part of the election petition. Each of these schedules, other than Schedule 14, mentions, verifies and contains some paper or document which can be placed between the leaves of paper that comprise that schedule and be bound with the election petition. Schedule 14 mentions and verifies a video cassette which cannot be placed between two leaves and be bound with the election petition. This is the explanation for the difference in the manner in which the averments relating to Schedule 14 and the other schedules are made in the election petition. Clearly, the video cassette mentioned and verified in Schedule 14 is as much an integral part of the election petition as the papers and documents mentioned and verified in the other schedules. Further, that the video cassette mentioned and verified in Schedule 14 is a part of the election petition and was intended to be such is evident from the affidavit of the first respondent verifying the allegations of corrupt practice made in the election petition. Therein, the first respondent has verified the correctness of what is stated in para 83 of the election petition, which refers to Schedule 14 and which has been quoted above, and to Schedule 14 itself. Yet again, that the video cassette mentioned and verified in Schedule 14 is and was intended to be a part of the election petition is shown by the fact that 15 video cassettes which were copies of the video cassette mentioned and verified in Schedule 14 were filed in the High Court along with the election petition for being served upon the respondents thereto.
12. Ordinarily, what is shown upon the video cassette that is mentioned and verified in Schedule 14 would have been set out in the election petition and then that video cassette could have been said to be evidence of the allegations made in the election petition. As this election petition is drafted, there is no description of what is shown on this video cassette except to say that it shows booth-capturing, violence and arson. As to booth-capturing, there are particulars contained in the other schedules but even in that regard the later paragraphs of the election petition make reference to Schedule 14 so that even in regard to booth-capturing the particulars shown in the video cassette mentioned and verified in Schedule 14 are relied upon. So far as the allegations of violence and arson are concerned, there are no particulars in the election petition absent the video cassette mentioned and verified in Schedule 14.
13. We are, therefore, satisfied that the video cassette mentioned and verified in Schedule 14 is an integral part of the election petition and that it should have been filed in court along with copies thereof for service upon the respondents to the election petition. Whereas 15 copies thereof were filed for service upon the respondents, the video cassette itself was not filed. The election petition as filed was, therefore, not complete.
14. Section 81 contemplates the presentation of an election petition that is complete and satisfies the requirements of Section 83. An election petition that is not complete must, having due regard to the imperative mandate of Section 86, be dismissed. The present election petition must, therefore, be dismissed."
68. In the aforesaid decision, it concluded that the video cassette which was mentioned and verified in schedule 14 was an integral part of the election petition and ought to have been filed in the court alongwith the copies thereof for service upon the respondents. Since 15 copies were filed for service upon the respondents but the video cassette itself was not filed, therefore, it held that the election petition was not complete and it violated the mandate of Sections 81 and 83 of RPA and thus, election petition was dismissed.
69. To buttress the submissions on the point regarding the election petitioner not being a duly nominated candidate learned counsel for the respondents have relied upon the case of Devendra Patel (supra). However, with due respect this Court finds that the said case has no applicability in the instant fact scenario; inasmuch as in the case of Devendra Patel (supra) the candidate was actually disqualified and this admitted position led the Supreme Court to hold that the election petitioner was not a duly nominated candidate. However, the facts of the instant case are quite different and there is no issue regarding disqualification of the election petitioner.
70. Learned counsel for the respondents has also relied upon a decision of a Co-ordinate Bench of this Court in Hari Krishna Lal (supra) and the issue therein was almost identical to the one involved in the instant case where the affidavit as required to be filed by the election petitioner was not filed despite the petitioner being put to notice. The Court concluded that the election petitioner was not a duly nominated candidate and had no locus to file the election petition.
71. Learned counsel for the respondents have also relied upon the case of Mithilesh Kumar Sinha (supra), Neelam Sanjeeva Reddy (supra), Giani Zail Singh (supra), K. R. Narayanan (supra) and Dr. APJ Abdul Kalam (supra) to submit that though the aforesaid cases related to the elections of the presidential candidates but even in the said case it was held that where the nomination form required certain number of proposers and that was not fulfilled then the nomination itself was bad and petition was not maintainable.
72. The learned counsel for the respondents have also relied upon the decision of the Apex Court in Brij Mohan (supra), S. Ratnamma (supra) of the Andra Pradesh High Court and the case of Beti Joga (supra) of the Madhya Pradesh High Court.
73. The Apex Court in Brij Mohan (supra) and the Andra Pradesh High Court in S. Ratnamma (supra) as well as the M. P. High Court in Beti Joga (supra), were dealing with the issue of misnomer. However, this Court finds that in all the three cases the issue regarding misnomer was considered in light of the issue framed and finding have been returned after leading evidence at trial. In the instant case at hand, the issue is different since, the matter is not ripe for trial as the written statement has not been filed and only applications under Order VII Rule 11 are under consideration. Whereas, in the cases cited by the learned counsel for the respondents the Court had the benefit of seeing the respective pleadings as well as the evidence led by the parties to come to its conclusion, thus, in the humble opinion of this Court, the aforesaid three decisions may not have much relevance to decide the issue of misnomer at this preliminary stage.
74. Learned counsel for the respondents have thereafter relied upon the decision of the Apex Court in the case of Tej Bahadur (supra), and Smt. Hem Purohit (supra) and a decision of the Single Judge of the Uttrakhand High Court in Chandra Narain Tripathi (supra).
75. Upon noticing the aforesaid three cases, it reveals that in the case of Tej Bahadur (supra) the issue before the Apex Court was whether an application under Order 6 Rule 16 CPC of the respondents seeking expunging of certain paragraphs of the election petition as well as the application moved under Order VII Rule 11 CPC had been rightly considered and the election petition was rightly dismissed.
76. This Court finds that the case of Tej Bahadur (supra) cannot be pressed into service; inasmuch as in the said case the nomination paper was required to be accompanied by a certificate indicating that the candidate who was dismissed from service was not dismissed for corruption or for disloyalty while holding office under the government. Since in the said case, it was admitted that Tej Bahadur had been dismissed from service but his nomination paper was not accompanied by a certificate to the aforesaid effect, hence in this context the Apex Court found that the nomination paper of the election petitioner Tej Bahadur did not have the said certificate and it was in violation of Section 33 of RPA and held that the petition was rightly rejected. The facts of that case are at variance to the facts of the instant case diluting the applicability of the precedential value of the decision in Tej Bahadur (supra).
77. Regarding the case relied upon by the respondents in Chandra Narayan Tripathi (supra), this Court finds that in the said case, initially, an application under Order VII Rule 11 CPC was filed by the respondents which came to be rejected by the High Court. The said rejection order was affirmed by the Apex Court in Civil Appeal No.2122 of 2012 (Kapil Muni Karwariya v. Chandra Narayan Tripathi) by means of judgment of the Apex Court dated 15.02.2012. Later, the said election petition ultimately came to be dismissed after trial by means of judgment of the High Court dated 20.12.2013. Again, the aforesaid decision has been rendered on merits after the parties were permitted to lead evidence, hence, its ratio would not be applicable while considering the applications under Order VII Rule 11 CPC.
78. Lastly, learned counsel for the respondents have relied upon the decision of the Apex Court in Azhar Hussain (supra) and the issue before the Apex Court in the said case was in respect of the challenge raised to the elections of the returned candidates on the ground of alleged corrupt practice. Paragraphs 27 and 28 of the said report reads as under:-
"27. The High Court held:
"It appears to me that if an averment of fact is an essential part of the pleading, it must be considered to be an integral part of the petition. If such an averment is not actually put in the election petition, the petition suffers from the lack of material facts and therefore, the statement of cause of action would be incomplete. If it is stated in the election petition, either in the body of the petition itself or by way of annexure, but its copy is not furnished to the respondent, the election petition would be hit by the mischief of Section 81(3) read with Section 86(1) of the Act. In my opinion, the reference to the poster and its proposed translation in the election petition, which was never incorporated into it, are material facts under Section 83(1)(a) of the Act and their absence cannot now be made good by means of an amendment. The pleading as it stands, and even if it were permitted to be amended would suffer from lack of cause of action on this material fact and, therefore, is liable to be struck out. The newspaper cuttings are not used by the petition as containing fact, but only as evidence to that extent amendment is allowed."
Whether the High Court was right in taking the aforesaid view?
28. It will be noticed that in the election petition it has been mentioned that a copy of the poster would be subsequently filed, and the cuttings of some newspaper reports would also be filed later on. The election petitioner sought an amendment to delete the averments on both these aspects. The High Court rejected the prayer in regard to poster (Ex. B), but granted the prayer in respect of the cuttings. The High Court has taken the view that the poster was claimed to be an integral part of the election petition and since it was not filed (much less its copy furnished to the respondent) the pleading suffered from infirmity and non-compliance with Section 83(1) read with Section 86(1) of the Act. Non-filing of the poster is fatal to the election petition as in the absence thereof the petition suffers from lack of material facts and therefore the statement of cause of action would be incomplete. Nothing turns on the fact whether or not the words "a copy of the said poster would be filed as Ex. B" are allowed to be retained in the election petition or are deleted as prayed for by the appellant. The fact remains that no copy of the poster was produced. It must also be realized that the election petitioner did not seek to produce the copy of the poster, but only wanted a reference to it deleted so that it cannot be said that the accompaniments were not produced along with the election petition. The fact remains that without the production of the poster, the cause of action would not be complete and it would be fatal to the election petition inasmuch as the material facts and particulars would be missing. So also it could not enable the respondent to meet the case. Apart from that the most important aspect of the matter is that in the absence of the names of the respondent's workers, or material facts spelling out the knowledge and consent of the respondent or his election agent, the cause of action would be incomplete. So much so that the principle enunciated by this Court in Nihal Singh case [(1970) 3 SCC 239] would be attracted. And the court would not even have permitted the election petitioner to lead evidence on this point. The High Court was therefore fully justified in taking the view that it has taken."
79. Now the Court shall examine and notice the decisions cited by the learned counsel for the petitioner in support of his contentions.
80. The cases which have been cited by the learned counsel for the petitioner can be grouped into two sets. The first set relates to those decisions where the concept of Order VII Rule 11 CPC has been explained so also the distinction between the material particulars and cause of action. The other set of decisions are relating to the issue as to what can be considered to be an error of substantial character which may give rise to the rejection of nomination and what kind of errors, clerical or otherwise, which may not have a substantial bearing and thus can be ignored and cannot entail the dismissal of the election petition in limine.
81. In the first set, learned counsel for the petitioner has relied upon the decision of the Apex Court in Sopan Sukhdeo Sable (supra) wherein the Apex Court in paragraphs 10 to 14 of the said opinion by relying upon the earlier decisions have explained the extent and width of the powers and the manner in which Order VII Rule 11 CPC is to be considered. In the same opinion in paragraphs 18 to 20 the distinction of material facts and what will constitute material facts for a cause of action has been explained.
82. The other decision on the said point is of Mayar (H.K.) Ltd (supra) wherein the scope of Order VII Rule 11 CPC has been explained in paragraphs 11 and 12 while what will constitute material facts vis-a-vis cause of action has been explained in paragraph-18.
83. In string of the aforesaid decision, learned counsel for the petitioner has relied upon D. Ramachandran (supra) (relevant paragraphs 8 and 10) as well as H. D. Revanna (supra) (relevant paragraph 27). In both the aforesaid decisions, the Apex Court has considered the manner in which a preliminary issue is to be considered by the Court and what are the parameters to be noted by it.
84. The petitioner has also relied upon the decision of the Apex Court in Kuldeep Singh Pathania (supra) wherein again the scope of Order VII and Rule 11 CPC has been explained in paragraphs 8 to 11 of the said opinion. See also Mohan Rawale (supra) wherein in paragraph 10 the issue of material facts vis-a-vis the scope of Order VII Rule 11 has been considered.
85. The second set of decisions which have been relied upon by the counsel for the petitioner is of Madiraju Venkata Ramana Raju (supra) wherein the issue regarding the proper disclosure of cause of action vis-a-vis the facts relating to corrupt practice have been noticed by the Apex Court in paragraphs 22, 25, 29 and 33.
86. The petitioner has also relied upon the case of Samant N. Balakrishna etc. (supra) wherein in paragraphs 29 and 30 the interplay between the Sections 81, 83 and 86 of the RPA has been discussed and how the same is to be considered in context with material facts leading to a cause of action for challenging an election petition in respect of allegation of corrupt practice.
87. The petitioner has also relied upon Paragraphs 25 and 26 of the decision of the Ponnala Lakshmaiah (supra) wherein the issue regarding facts of corrupt practice, the affidavit not being in prescribed format as provided under Form-25 also containing defect in verification has been held to be curable and for the said reason the petition was not liable to be rejected. The other decision is of Nandiesha Reddy (supra) wherein similar issue has been considered in paragraphs 24 to 26.
88. Learned counsel for the petitioner has relied upon the decision of the Apex Court in Hira Singh Pal (supra) to buttress the submission that for clerical errors of unsubstantial character, the nomination cannot be rejected and reliance has been placed on paragraph 7 of the said decision.
89. Similarly, learned counsel for the petitioner has relied upon the decision of the Apex Court in Uttamrao Shidas Jankar (supra) (relevant paragraphs 26 to 31) and Rakesh Kumar (supra) (relevant paragraphs 19 to 21) wherein the Apex Court has taken note of the Election Hand Book for the Returning Officer and held the said Hand Book has statutory force. The powers of the Returning Officer has been considered and it has been held that as far as possible either suo moto or in light of the objections raised regarding the nomination of the candidates during scrutiny, as far as possible an opportunity must be given to the candidate to rebut the objections and only if the said objections cannot be rebutted or the clerical error or misnomer or technical error which cannot be cured despite providing opportunity only then the nomination may be rejected.
90. Learned counsel for the petitioner has further relied upon the decision of the Apex Court in Ram Awadesh Singh (supra) to urge what kind of defects can be considered to be of a substantial nature and unless so established, it is not open for the Returning Officer to reject the nomination on clerical errors which do not assume the character of substantial nature. In the same string, he also relies upon the decision of Madhya Pradesh High Court in Chandra Shekhar Chaturvedi (supra) wherein in paragraphs 20 and 24, the powers of the Returning Officer to correct/ignore misnomer and clerical error which do not partake the nature of substantial character has been considered.
91. Learned counsel for the petitioner has then relied upon the decision of Syed Dastagir (supra) where in paragraph 9, it has been explained as to how a plea in pleadings is to be construed.
92. Learned counsel for the petitioner has relied upon a recent decision of the Apex Court in A. Manju (supra), where the issue before the Apex Court was whether an election petition can be thrown out at the threshold on a plea of that the petition is not supported by an affidavit in Form-25 as prescribed under Rule-94 A of the Rules of 1961. The Apex Court held that it was not in sound discretion to reject the election-petition at threshold rather it was a curable defect and permit the election-petitioner to file an affidavit in support of the petition in Form-25 within time to be granted by the Court.
93. In the aforesaid context, this Court finds that since the affidavit in Form-25 is relatable to Rule 94-A of the Rules of 1961 and to Section 83 (1) of the RPA and is to be filed before the Court, hence, the Apex Court in the case of A. Manju (supra) found that instead of dismissing the petition at the threshold the Court may grant time to the petitioner to file the affidavit in Form-25.
However, the decision of the Apex Court A. Manju (supra) does not relate to an affidavit contained in Form-26 which is relatable to Rule 4-A of Rules of 1961 which is to be filed alongwith the Nomination Form in terms of Section 33 of the RPA. Thus, the said decision of A. Manju (supra) can be distinguished on the facts and controversy involved in the instant case.
94. Having noticed the relevant statutory provisions and the gamut of the decisions cited by the respective parties, now the stage is set to notice the merits of their respective contentions.
95. This Court shall proceed to deal with the submissions of the parties under the following subheadings:-
D(i) Should the petition be dismissed under Order VII Rule 11 CPC read with Section 33 of RPA, as the petitioner is not a duly nominated candidate since his nomination did not have the requisite number of valid proposers.
96. The submission of learned counsel for the respondents is that the word "candidate" as defined in Section 79(b) of RPA means a person who has been or claims to have been a duly nominated candidate at any election. It is urged that since the nomination of the petitioner was rejected, therefore, he was not a candidate and the only other way the petitioner can maintain the petition is if he claims and proves to be a duly nominated candidate.
97. It is urged that the nomination paper of the petitioner suffered from two inherent defects: (a) it did not have the required number of valid proposers; (b) the affidavit in Form-26 required to be filed in pursuance of Rule 4-A of Rules of 1961 was also defective and despite having been put to notice, the petitioner did not rectify the same, consequently, it rendered his nomination invalid.
98. In order to test the aforesaid submission, the Court has perused the nomination paper filed by the petitioner as Schedule-8 with the election petition which indicates that the petitioner's nomination form was given Serial No.22 and was presented at 02:50 PM on 27.10.2020. The said nomination form, under the heading of the particulars of proposers and signatures, mentions 10 names.
99. In terms of Section 33 and the first proviso appended thereto, any candidate who is not nominated by a recognized political party or in other words is contesting the elections as an independent candidate, his nomination paper must be subscribed by 10 proposers being electors of the constituency.
100. Apparently, the nomination paper of the petitioner as noticed above has 10 proposers and the serial number of the said proposers has also been mentioned as per the list prepared in terms of Section 152 of RPA, i.e. list of the members of the State Legislative Assemblies and Electoral College to be maintained by the Returning Officer.
101. The record would further indicate that the petitioner had filed a photocopy of the check list of the documents which was issued by the Returning Officer, as Schedule 10 to the petition, where in respect of the documents particularly affidavit in Form-26, it had been mentioned that all the columns in Form-26 have not been filled and that column 8(viii) is blank. The said check list also states that the candidate can submit the affidavit complete in all respect latest by the time fixed for commencement of scrutiny of nominations.
102. It is the averment of the petitioner that prior to the commencement of scrutiny, he had furnished a fresh/revised affidavit in Form-26 complete in all respect to the Returning Officer.
103. At the time of scrutiny of the nomination form of the petitioner, two sets of objections were filed, one by Sri Haridwar Dubey who is the respondent no. 9 and the other by Sri Lal Ji Verma who is the proposer of Sri Ramji, the respondent no. 6.
104. Both the said objectors raised a ground of challenge that the nomination form of the petitioner did not have ten proposers, since, the person named as third proposer in the form namely 'Nawab Shah' was not a member of the legislative assembly. The name of the person mentioned at serial no.26 as entered in the list maintained under Section 152 of the RPA is of 'Nawabjaan', who is not the proposer. Accordingly, Nawab Shah is not an electorate and if his name is excluded then there are only 9 proposers which is in direct breach of first proviso of Section 33 of the RPA, hence, the nomination being invalid was liable to be rejected.
105. The other objection being that the election petitioner had not furnished a complete affidavit in Form-26 as it contained blanks which could not be treated to be a proper compliance, rendering the nomination bad.
106. The petitioner responded to the said objections in writing and stated that the third proposer of his form, serial no. is 26 in the list maintained under Section 152 of the RPA is Nawabjaan. Inadvertently, his name was mentioned as Nawab Shah. The mention of incorrect name is a clerical error and is purely technical. Even otherwise, it being a misnomer is saved in terms of proviso appended to Sub-section (4) of Section 33 of RPA and deserved to be overlooked. The petitioner also sought leave of the Returning Officer that if permitted, he could produce Nawabjaan/the third proposer in person within 12 hours to satisfy the Returning Officer.
107. The controversy became alive as the Returning Officer by means of his order dated 28.10.2020 rejected the nomination form of the petitioner on the ground that it was accompanied by an affidavit in Form-26 with blanks and with some cutting over the contents and the said affidavit could not be accepted in light of the decision of Apex Court in Resurgence India (supra) resulting in rejection of the nomination.
108. It can be noticed that the issue raised by the respondents regarding the nomination paper being invalid on account of name of the third proposer being incorrect and from perusal of the order dated 28.02.02020, a copy of which has been brought on record as Schedule 18, indicates that the Returning Officer rejected the nomination form on the aforesaid ground.
109. This court finds that in so far as the issue of misnomer or giving the benefit of the proviso to Section 33(4) of RPA is concerned it primarily revolves around the objective satisfaction formed by the Returning Officer while screening the nomination form at the time of its presentation.
110. The word "misnomer" has been duly defined in the P. Ramanatha Aiyar "The Major Law Lexicon", 4th Edition, 2010, to mean as under:-.
"The using one name for another, a misnaming; mistake in a name, the giving an incorrect name to a person in a pleading, deed, will or other document.
A description by initials only instead of by the full name would be a 'Misnomer'.
Misnomer-means giving an incorrect or wrong name to a person even in a legal document."
111. In the instant case against the name of the third proposer where the serial number of the constituency being 26 was mentioned against the name of Nawab Shah and the Returning Officer upon verification from the list maintained under Section 152 of RPA could and ought to have satisfied himself regarding the correctness of the name of the third proposer whether it was Nawab Shah or Nawabjaan.
112. The issue whether the clerical error in the name of the third proposer is a misnomer or not and whether it was of substantial character or not can be considered only after the parties lead evidence as it also entails questions of fact whether the incorrect name of Nawab Shah could relate to the correct name of Nawabjann as commonly understood and whether was liable to be overlooked.
113. Another aspect which requires consideration is that the record reveals that similar objection was raised in respect of nomination form of another candidate namely Shri Ramji and it was raised by Shri Aslam Chaudhary, Shri Mohd. Aslam Rainee and Shri Hakim Lal.
114. The objections were considered by the Returning Officer, who after due verification of the signatures available with him as well as in light of the list available with him as per Section 152 of RPA found the objections to be frivolous and rejected the same. The copy of the order passed by the Returning Officer is on record as Schedule 13 with the election petition.
115. However, prima-facie, this Court finds that the Returning Officer did not undertake the exercise to verify the correctness of the name of third proposer in respect of the error pointed in the nomination form of the petitioner as was done by him while dealing with the objections against the nomination of Shri Ramji as evident from the order passed by Returning Officer, a copy of which has been brought on record as Schedule-13.
116. Insofar as the nomination form of the petitioner is concerned, the Returning Officer ought to have complied with the instructions as mentioned in Chapter-VI, Clause 4 to 7, 9.1 to 9.3 of Handbook for Returning Officers for Election to the Council of States and State Legislative Council.
117. Even though prima-facie the Returning Officer did not carry out the necessary exercise of verification regarding correctness of the name of the third proposer but even then it must be understood that this Court is not exercising any appellate powers or sitting in appeal over the order dated 28.10.2020 of the Returning Officer.
118. The issue of misnomer in context with the third proposer cannot be considered at the stage of Order VII Rule 11 CPC especially noticing the averments in the petition in this regard and also for the reason that this alleged error was not considered by the Returning Officer in light of the provisions of the proviso appended to Section 33(4) of RPA to give any finding whether the benefit of the said proviso could be extended to the petitioner and also in light of the instructions contained in the Handbook while passing the order dated 28.10.2020.
119. Hence, this Court is of the clear opinion that the election petition cannot be dismissed at this stage on the ground of incorrect mention of name of one proposer and in order to ascertain the proper and full effect of the proviso appended to Section 33(4) of RPA and whether it can save the petition would require evidence and cannot be a ground to dismiss the petition at this stage in exercise of powers under Order VII Rule 11 CPC.
D-(ii) Should the petition be dismissed as it lacks material particulars regarding allegations of corrupt practice and for want of Affidavit in Form-25 in compliance of Section 83(1) of RPA.
120. Another ground urged by the learned counsel for the respondents is that from the bare perusal of the pleadings, it would indicate that the issue raised by the petitioners is in context with the corrupt practices for which the petitioner has not filed the appropriate affidavit in Form-25, hence, the petition itself is not maintainable and is liable to be rejected.
121. It is also urged by the learned counsel for the respondents that in case the averments in the petition are not relating to corrupt practices as alleged by the counsel for the petitioner, then the said allegations as contained in the petition are scandalous and are liable to be expunged. In case if such allegations are expunged then again no cause of action will subsist and even then the petition is liable to fail.
122. On the other hand, learned counsel for the petitioner has stated that the allegations in the petition against the Returning Officer are not of corrupt practice but is a narrative of the events which transpired and indicative of the highhandedness of the Returning Officer in dealing with the nomination form of the petitioner which lead to the illegal rejection of his nomination and illegal acceptance of the nomination form of the returned candidates which is a ground available to the petitioner to challenge the election of the respondents in terms of Section 100(c) and (d)(i) of RPA.
123. Giving anxious consideration to this submission and also noticing the various decisions cited by the parties in context of pleadings of corrupt practice and non-filing of an affidavit in Form-25, the Court finds that in paragraph 15 of the election petition an allegation has been levelled against the Returning Officer that he shut his eyes and overlooked the specific provisions of Section 33 (4) and its proviso and Section 36 (5) along with its proviso willfully and deliberately to help the other candidates in the election in question and arbitrarily rejected the nomination paper of the petitioner.
124. In paragraph 16 of the election petition, again it has been alleged that the Returning Officer had adopted dual standards in the scrutiny of the nomination papers and rejected the nomination papers of the election petitioner on such frivolous, trivial, technical and clerical grounds. However, for similar errors in the nomination form of the respondents the Returning Officer accepted their nomination papers and affidavit in Form-26 for the candidates setup by the BJP namely, the respondents no. 8, 3, 4, 7, 9 and 10.
125. The petitioner has thereafter in paragraphs 28 to 45 of the election petition has pointed out the defects in the nomination forms as well as in the Affidavit in Form-26 of the returned candidates to urge that for the very same defects the nomination form of the petitioner has been rejected but for the returned candidates, the same defects have been ignored which is an arbitrary exercise of discretion and power by the Returning Officer clearly attracting Section 100(1)(d)(i) of RPA.
126. The word 'corrupt practice' is defined in Section 123 of RPA. If the same is noticed in context with the averments contained in the petition for the purposes of examining the respective contents at this preliminary stage, this Court finds that the contents of the petition suggests the manner in which the presentation of nomination form and its further processing was dealt with by the Returning Officer and how the petitioner felt discriminated and his expression of anguish. However that be so, it is still not an expression of any corrupt practice as strictly defined in the Act as the ingredients thereof which includes the involvement of a candidate or his agent and some officer or person for the commission of such corrupt practice which includes establishment of consent of the candidate and/or his agent and such vital ingredients are especially absent. The issue of corrupt practice requires evidence to be established and the same cannot be adjudicated at this preliminary stage without the written statement, issues and evidence.
127. Having noticed the aforesaid paragraphs of the election petition as detailed in the preceding paragraphs, it would be seen that the averments in the petition appears to be in context and consonance with the grounds for challenging the election of the returned candidates on account of illegal acceptance of their nomination and the illegal rejection of the nomination of the election petitioner.
128. Thus, for the reason that the matter at the moment is at preliminary stage and parties are yet to exchange pleadings and lead evidence, and as of now the pleadings have to be taken as it is without any addition and also taking it to be correct. Accordingly, at this stage, this Court does not find merit to treat the averments in the petition to be allegations of corrupt practice.
129. Moreover, even if on merits, the said averments may constitute corrupt practice, yet it cannot be made a ground to dismiss a petition at this nascent stage. The decision of the Apex Court in A. Manju (supra) helps the petitioner and this Court for the aforesaid reason is not inclined to reject the petition for non-filing of an affidavit in Form-25. Thus, the submission of the respondents in this regard is turned down.
D-(iii) Should the petition be dismissed for want of material particulars, cause of action and for want of filing a revised/fresh affidavit in Form-26 in compliance of Sections 33, 83 of RPA read with Rule 4-A of Rules of 1961.
130. Now, the issue which requires consideration is whether the nomination form of the petitioner was invalid for want of complete and proper affidavit in Form-26 filed by the petitioner and for the said reason the petitioner would not be a duly nominated candidate and not entitled to maintain the petition.
131. As per the petitioner, after he had received the check list on 27.10.2020 and was granted time to furnish the fresh/revised affidavit by the next day prior to the commencement of scrutiny proceedings, the petitioner had furnished the revised affidavit before the Returning Officer within the time so stipulated.
132. This aspect is refuted by the learned counsel for the respondents on two grounds (a) there is no document or material on record to establish that the said revised affidavit was ever filed before the Returning Officer (b) that there is no material particulars regarding the same in the petition and in absence of material particulars, the cause of action of the petitioner is not complete and the alleged copy which has been brought on record by the petitioner also is bereft of necessary details and again in absence of proper and material facts and pleadings the said document alone filed as Schedule 12 does not reveal any subsisting cause of action.
133. The contention raised by the respective parties will be considered within the following two folds: (i) the effect of the alleged second nomination form on pink colour paper said to be complete in all respect and (ii) the effect of the plea of filing or non-filing of revised affidavit in Form-26.
134. At the outset, it may be noted that a candidate is required and can file maximum 4 sets of nomination forms in terms of the provisio to Section 33(6) of RPA. Insofar as the affidavit in terms of Rule 4-A of Rules of 1961 in Form-26 is concerned, the same is to be filed in one original copy and does not require as many affidavits as the number of nomination forms filed.
135. From the perusal of paragraphs 60, 61 and 62 of the petition, the petitioner has set up his case that on 27.10.2020 he was made to wait in the nomination hall and though he was given the receipt only for one set of nomination paper but he was asked to wait and later informed that he will get the receipt in respect of the other set of nomination form filed in pink colour, tomorrow i.e. 28.10.2020. The petitioner has also mentioned in paragraph 61 that he had received a phone call by Mohd. Mushahid from the office of the returning officer and also categorically mentioned the mobile number from which he has received the aforesaid call. In paragraphs 65, 66 and 67, the petitioner has reiterated his stand regarding the filing of the second set of nomination form on pink colour paper.
136. From a complete and meaningful reading of the election petition, this Court finds that there is no reason pleaded why the Returning Officer would accept and give receipt for only one set of nomination paper to the petitioner and not the other set whereas insofar as the other candidates are concerned, they got the receipt and numbers for their nomination forms as all of them had filed two or more sets of nomination paper.
137. The petitioner also does not state with particularity why the petitioner did not raise the issue immediately of not having received the serial number/slip for the second set of nomination. The petitioner has also not filed any copy of the second nomination form in pink colour nor any explanation has been pleaded of not retaining any copy of the nomination from on pink paper though a copy of the nomination paper in English was retained by the petitioner.
138. The election petition also does not state when the petitioner procured the two sets of nomination forms since in the notice of the election which was duly published on 20.10.2020, it was clearly provided that the form of the nomination paper could be obtained at the place and time as mentioned in the notice of the election so published. This assumes significance where the existence of the second nomination is an issue and without any concrete pleadings and in absence of any supporting document or material the aforesaid plea becomes bald and fanciful.
139. Thus, even though the petitioner may have filed two sets of nomination but only one set of affidavit in Form-26 was filed with the nomination form on 27.10.2020 and admittedly it was defective and this defect was as informed to the petitioner through the check-list.
140. It is also to be seen that the nomination form of the petitioner was rejected because of the form in itself being defective and non-compliance of filing of revised affidavit in Form-26 in terms of Rule 4-A of Rules of 1961. Hence, even if the plea of the second nomination form in pink colour paper as alleged, being complete in all respect is accepted for the sake of arguments, however, in absence of the revised affidavit filed in Form-26, it will not render the nomination valid.
141. Accordingly, this Court for the aforesaid reasons is not inclined to return any finding on the issue of second set of nomination on pink paper. However, the Court shall look into the controversy from the perspective of filing or non-filing of the revised affidavit in Form-26 and the material particulars in respect thereof and its effect on the cause of action as pleaded.
142. To examine the effect of filing or non-filing of revised affidavit in Form-26, it will be relevant to examine the pleadings in Paragraph 70 and the copy of the said affidavit which has been brought on record as Schedule-12.
143. It would be seen that initially in Paragraph 13 of the election petition, it is stated that the petitioner had filed his revised/fresh affidavit before the Returning Officer on 28.10.2020 before the commencement of scrutiny proceedings by removing the defects as mentioned in the check-list dated 27.10.2020.
144. In paragraph 70 of the election petition, the petitioner has made averments regarding the filing of the fresh/revised affidavit in Form-26. Paragraph 70 of the election petition is being reproduced hereinafter for ready reference:-
"70. That the election petitioner pursuant to the direction given in the check-list dated 27.10.2020 filed a fresh Affidavit in Form-26 before Returning Officer on the 28.10.2020 i.e. before the scrutiny wherein all the columns of the Affidavit was properly filled up and no columns was left blank and the information which are not related to election petitioner, the election petitioner is specifically filled up the column by writing "not applicable". The photocopy of the Fresh/Revise Affidavit in Form-26 of election petitioner filed before Returning Officer dated 28.10.2020 before scrutiny of the nominations is being filed herewith and marked as SCHEDULE No. 12 to this election petition. It is made clear that the election petitioner after properly filling the each and every columns of the Fresh/Revise Affidavit dated 28.10.2020 (and no column has been left blank) and after getting it notarized by the Notary Officer on 28.10.2020 then submited before Returning Officer on 28.10.2020 before the start of the scrutiny of the nomination paper i.e. before 11:00 A.M. on 28.10.2020."
145. From the perusal of aforesaid paragraph 70, all that can be discerned is that the election petitioner filed a fresh affidavit in Form-26 before the Returning Officer on 28.10.2020 prior to the commencement of scrutiny with complete filled up columns of the affidavit and no columns was left blank. It has also been mentioned that the photocopy of the fresh/revised affidavit in Form-26 filed before the Returning Officer before commencement of scrutiny of the nomination has been filed and marked as Schedule 12. It has further been clarified that the election petitioner after filling up each and every column of the fresh/revised affidavit leaving no column blank and after getting it notarized by the Notary Officer on 28.10.2020 submitted the same before the Returning Officer before the commencement of scrutiny.
146. At this stage, it will be worthwhile to glance at Schedule 12 which has been filed along with the election petition and it would indicate that the affidavit in Form-26 running in 13 pages is on pages 162 to 174 of the paper-book. The first page of the affidavit is at page 162 of the election petition and it reveals that the affidavit has been transcribed on an E-stamp worth of Rs.100/- which was issued at about 08:41 AM on 28.10.2020.
147. However, what is relevant to notice is that on all the 13 pages right from pages 162 to 174 of the paper-book, there is no signature of the election petitioner on the alleged copy of the revised affidavit. Even on page 13 of the affidavit, at running page 174 of the paper-book, the election petitioner has put his signatures in original but this signature in original has been affixed in election petition and not to the copy of the affidavit in Schedule 12 which does not bear the signatures of the election petitioner.
148. From the perusal of all the 13 pages of the alleged revised affidavit at pages 162 to 174 of the paper-book, it would reveal that (i) it does not contain the signature of the election petitioner, (ii) it does not contain the seal, stamp and signatures of notary, (iii) it also does not indicate that the petitioner had sworn the affidavit before the notary, (iv) who was the said notary before whom it was sworn as neither any notarial stamp nor the seal/stamp of the notary nor his name, signatures or his licence number is present, (v) there is also no mention of any time or place of swearing the affidavit, (vi) The photograph affixed has not been attested by the notary.
149. In absence of the aforesaid relevant requisite details, all that can be seen and noticed from Schedule 12 is that merely the language of affidavit as prescribed for Form-26 with details relating to the petitioner has been reduced on an E-stamp affixing a photograph of the election petitioner.
150. It will be worthwhile to notice that Rule 4-A of the Rules of 1961 specifically states that candidate or his proposers as the case may be shall at the time of delivering to the the Returning Officer, the nomination paper under Sub-section (1) of Section 33 of RPA also deliver to him an affidavit sworn by the candidate before a Magistrate of a first class or a notary in Form-26. If the condition as prescribed in Rule 4-A of the Rules of 1961 are perceived, it will prima facie be evident that the said affidavit falls short of the legal requirements.
151. This Court finds that if the case of the petitioner is taken at its face value, without any addition, subtraction and deletion, it would indicate that the petitioner has allegedly submitted two sets of nomination papers at 02:50 PM on 27.10.2020 i.e. the last date for filing of the nomination and that too, 10 minutes prior to the close of time for acceptance of nomination papers. A check list was issued to the petitioner on 27.10.2020 indicating that only one set of nomination paper has been received. The check-list also indicates that the affidavit in form-26 was not complete as the column 8(viii) of the said affidavit was completely missing.
152. In the aforesaid factual backdrop, categorical pleadings and averments regarding the details of the revised affidavit and its filing assumes great significance as in absence of the valid affidavit, the nomination of the petitioner looses its weight.
153. Thus it would be seen that actually it is the issue relating to the filing or non-filing of the revised affidavit in Form-26 prior to commencement of scrutiny is the heart and soul of the entire controversy at this stage.
154. The importance of a valid affidavit in Form-26 cannot be undermined. An affidavit in Form-26 is to be filed along with the nomination form and in case if such an affidavit is not correct or suffers from certain defects, the same can be cured only upto the time of the commencement of scrutiny and not thereafter. There is a distinction between an affidavit in Form-25, which is filed in support of allegations of corrupt practice which is furnished before the Court trying the election petition whereas the affidavit in Form-26 is to accompany the nomination form which is to be filed at the time of presentation of the nomination form before the Returning Officer.
155. Thus, there is a stark distinction between the two affidavits. Since, the affidavit in Form-25 is to be filed before the Court, hence, in appropriate circumstances, the Court has discretion to grant or not to grant time but no such discretion is vested with either the Returning Officer or the Court in respect of an affidavit in Form-26. Accordingly, the standard of pleadings, material particulars in respect of signing, verification, notarization and filing of the revised affidavit in Form-26 assumes prime importance.
156. If the pleadings in respect of such a important and imperative aspect intricately connected with a valid nomination is examined as mentioned in paragraphs 13 and 70 in juxtaposition with Schedule 12 as available on record indicates that it is extremely casual especially in context of an election petition where the pleadings, material facts and documents are to be properly scrutinized and any deviation from the requisites as provided in Sections 81 and 83 of RPA are to be strictly construed.
157. The petitioner having been bitten on 27.10.2020 in the sense that he did not get any receipt of the alleged second set of nomination yet he did not exercise caution and did not retain the duly filled, notarized copy of the revised affidavit nor insisted on the receipt of filing of the revised affidavit before the Returning Officer on 28.10.2020.
158. Moreover, even if, allegedly the said revised affidavit was filed before the Returning Officer prior to the commencement of scrutiny without obtaining a receipt and also knowing that the petitioner did not have a duly authenticated copy of the revised affidavit with him and yet the petitioner continued to participate in the scrutiny process on 28.10.2020 without raising any objection at the relevant and appropriate time was doing so at his own peril.
159. It will also be relevant to note that according to the petitioner, the scrutiny of his nomination paper was to be taken up last but in the interregnum the petitioner did not raise any objection in writing in respect of the non receipt of the second nomination or the revised affidavit and not even in respect of the deficiencies which were present in the affidavit of the other candidates in Form-26 and were illegally ignored and accepted by the Returning Officer.
160. Another aspect which can be discerned from the election petition is that the Returning Officer had passed the order rejecting the nomination form of the petitioner at about 07:49 PM on 28.10.2020 and the petitioner had escalated the matter by writing a letter to the Chief Election Commissioner on 30th of October, 2020 at New Delhi, a copy of which has been brought on record as Schedule-19 to the petition.
161. From the perusal of the said complaint, it would indicate that the subject has been mentioned as criminal conspiracy by the Returning Officer with a motive to help candidature of BSP in connivance with the other officials and a request to hold an inquiry in the criminal acts as well as hold the declaration of election outcome till completion of inquiry.
162. The said complaint as contained in Schedule 19 runs from Page 207 to 211 of the paper-book wherein much has been said regarding the conduct of the Returning Officer and allegations have been levelled indicating criminal conspiracy between the Returning Officer to help the BSP candidate.
163. From a perusal of the said complaint, it indicates that there is reference to certain enclosures, which is alleged to be attached with the said complaint as Annexure No. A to H. However, the said annexures have not been filed on record of this election petition along with the said complaint as contained in Schedule-19.
164. Apparently for the aforesaid reason, the said complaint cannot be said to be a true and a complete copy filed on record. It will also be relevant to point out that the contents of the said complaint as contained in Schedule-19 are at variance with the averments made in the election petition.
165. The relevant portion as contained in the complaint which has been brought on record as Schedule-19 are being reproduced hereinafter for ready reference:-
"It is to bring to your knowledge that after filling the two sets of nomination forms being S.N. 22 and 23 along with the affidavit with prescribed security money, receipts of the nomination forms and deposited amount of security money was not been provided by the RO in failure of his legal duties, in spite of repeated request at the time of submission. The subsequent facts proved that it was the deliberate act on part of the Returning Officer to cause actual predice to my right to contest elections and was a part of criminal conspiracy to affect the outcome of election.
On my forceful insistence to provide the receipt, the Returning Officer and his officials have asked me to sit back and told that they will provide after some time and and gave excuse that today is the last day of nomination and let the time limit be over to provide the receipt. As I did not have any other option, I waited for the same.
While I was waiting at Nomination Hall, the Returning Officer along with his associates stepped out from the nomination hall without either intimating me anything or giving me the receipt which, I was entitled to receive. I kept waiting in the nomination hall but no one has come with the copy of the receipts.
Thereafter I went to the office of the Principal Secretary of Vidhaan Sabha, where the Returning Officer with his associates were also sitting. Again I have asked to provide the receipts and then they assure that they will provide the receipt. I further waited for approximately an hour and left the Vidhan Sabha.
On the same day in the evening approximately between 7-7:15 p.m. I have received the call from the office of the Returning Officer. He asked me to meet at PATAL KARYALAYA of VIDHAN SABHA on the first floor. Approximately 7:30 pm when visited the Patal Karyalaya, the assistant of the Returning Officer provided me the copy of the receipt of the security deposit, certificate for receipt of oath receipt of green nomination paper and one checklist, but did not provide me the receipt of pink nomination paper in an attempt to defeat my right to contest election. On being asked about the receipt of the pink nomination form, he informed me that the same has been left with the Returning Officer and you will get the same tomorrow morning at 11a.m. at the time of scrutiny which is allotted to me.
Though the checklist he has directed to provide the revised affidavit with columns duly filled up before the commencement of scrutiny of nominations. As instructed by the Returning Officer we have submitted the revised affidavit before scrutiny. The original affidavit inadvertently did not have column 8 which was to be blank and in terms of check list we submitted the updated affidavit before the time.
Herewith attached the copy of the checklist as Annexure "C".
Again in the morning of 28th October 2020, I have asked the RO to provide the receipt of my pink nomination form. Then to my utter shock and surprise, he totally refused the same by falsely stating that I have submitted only one green nomination form thereby proving his ulterior intent to not issuing receipts at the time of receiving the documents. It is most pertinent to mention here that contrary to the Returning Officer statement, Annexure A & B referred herein above substantiate that the Applicant (Candidate) has submitted two sets of nomination paper one in pink and other in green. Thus it is clear from the annexures that the Returning Officer has knowingly and purposely removed my pink nomination form totally unbecoming duties of Returning Officer for free and Selections to give unlawful benefit to other candidate which is a criminal breach of trust and unfair practice by the government official who is bound by the law to ensure a free and fair election process. In this manner the entire election in issue became unfair. defeating the constitutional and statutory mandate calling for review on such actions.
Further I have also requested to initiate scrutiny of my nomination form. Then RO informed that the scrutiny will begin serial wise and my number is at last.
Around 2 p.m. the Returning Officer has called me to come forward for the scrutiny of my nomination form, then the BJP candidate, Mr. Hardwar Dubey and Mr. Lalji Verma, Proposer of BSP Candidate filed the written objection with respect to my nomination. Also one BJP minister Mr. Suresh Khanna and BSP General Secretary Mr. Satish Chandra Mishra continuously raised several objections verbally. At the time of scrutiny again I have asked for my pink nomination form, to which he again refused, for the unlawful benefit of the other candidate Then the Returning Officer provided me copies of the objections raised by the other candidate/proposer. The copy of said has been annexed ANNEXURE "D" and RO asked me to submit a reply by 4 p.m. The objections inter alia dealt with following issues:
a) It was alleged that one of the proposers in green form inadvertently mentioned Nawab Shah instead of Nawab Jan. It is submitted by us that in pink form the correct name Nawab Jan was mentioned which was erroneously mentioned as Nawab Shah in green form. It also came to our notice that in Part III of green form to be filled by RO, the name of candidate which RO noted as PRAKASH BAJPAI instead of the correct name as PRAKASH BAJAJ. The said act was not an inadvertent act of RO but a part of his criminal conspiracy as was clear from subsequent facts. The whole conspiracy of removing pink form and writing wrong name of candidate by RO in green form exposed the entire criminal conspiracy of RO. In spite of our request, we were not given the opportunity to rectify the name of proposer and our request to bring the proposer for physical verification was also not acceded by RO. In this manner our requests in terms of Representation of People Act was unlawfully not accepted by RO under intent of his criminal conspiracy. The copy of the relevant page of the pink and green form is attached as Annexure "E" and copy of the Part III of green form is attached as Annexure "F","
It was alleged that one column 8 in the affidavit which though being blank was not mentioned in the affidavit. The said objection was also frivolous as in terms of checklist I had filed updated affidavit having column 8;
The said objections apart from being frivolous instead of discharging their burden of proof towards validity of duly accepted nomination paper was hit by provisions of sections 33(4) of Representations of Peoples Act.
The said frivolous allegations were dealt with me in above said terms in my detailed reply wherein I had stated various citations to support my case. The my of my detailed reply is annexed as ANNEXURE "G".
In the light of the above mentioned facts it is clearly evident that Returning Officer has been involved in the criminal conspiracy to purposely reject the nomination form filled by me to extend the benefit to other candidate, which is clearly against the fair and transparent election procedure. The said fact makes the entire election unfair, defeating the constitutional mandates."
166. The said complaint states that the petitioner had filed a detailed reply to the objections filed by the candidates during scrutiny which also contained the citation. Moreover, noticing the reply which was filed by the petitioner, in response to the objections raised by Sri Haridwar Dubey and Lal Ji Verma which is on record as Schedule-16 and 17 respectively, it does not contain nor has any reference to any citation said to be filed by the election petitioner.
167. The replies which are contained in Schedule 16 and 17 and the compliant filed before the Election Commission of India contained in Schedule-19 again do not match and in absence of any reference to the citation which are not on record, it renders the said Schedule to be an incomplete copy. It is nowhere stated in the body of the election petition that the said annexures A to H which have been mentioned in the complaint contained in Schedule-19 are not being filed or that if filed, they are the same annexures which have been filed as Part of some other Schedule annexed with the election petition. It even does not indicate that the replies contained in Schedule 16 and 17 were accompanied by any annexure/citation, thus, there appears to be a mismatch as well as variance in the pleadings and the Schedule annexed and the petitioner appears to be taking a vacillating stand.
168. At this stage, the plea of the respondents No.1, 6 and 10 that they have not received a true copy as the affidavit filed in support of the election petition was not complete nor verified can also be considered.
169. However, this contention may not detain this Court for long as it would be seen that the petitioner has not annexed Annexures No.A to H with Schedule 19 which renders the petition as incomplete and not a true copy. Even if the objection raised by the respondents No.1, 6 and 10 regarding the affidavit in support of the election petition being incomplete is ignored yet the Schedule 19 being incomplete and not even a true copy placed before this Court for the reasons noticed in the previous paragraphs. Consequently, this Court finds that the petition suffers from the vice of non-compliance of Section 81(3) of RPA.
170. Now, coming back to the Form-26 i.e. the revised affidavit contained in Schedule-12 which as noticed in the preceding paragraphs is an incomplete and a bald copy and if it is seen in terms of Section 33(i) of RPA and Rule 4-A of the Rules of 1961, it will reveal that it was the bounden duty of the election petitioner to furnish a complete Form 2-C along with the affidavit in Form 26.
171. Insofar as the revised affidavit in Form-26 is concerned, the same had to be filed prior to the time of commencement of scrutiny but there is nothing on record to indicate that the said affidavit was actually signed by the petitioner and sworn before a Competent Notary, who notarized the same and it was filed before the Returning Officer before the appointed hour, either in pleadings or in any schedule annexed with the election petition.
172. It will be relevant to notice that the petitioner has sought to project that the nomination papers of the returned candidates has been illegally accepted, though, it also suffered from the same defects in respect of the affidavit in Form-26. However, this can only be seen once the petitioner first establishes and substantiates his own case and it is found that the petitioner is a duly nominated candidate meaning thereby that his Form 2-C and the affidavit in Form-26 was duly filled and completed, then he can claim to be duly nominated candidate.
173. The entire issue raised by the petitioner in the election petition revolves around the grounds of illegal rejection of nomination of the petitioner and illegal acceptance of nomination of the returned candidate.
174. It was essential for the petitioner to first establish prima-facie that he had filed a valid nomination and then the Court would consider the ground of illegal rejection of his nomination. To do so, the petitioner had to show that his nomination paper and affidavit in Form-26 was valid and as such for a valid cause of action, the petitioner ought to plead material facts in respect of the Form-2-C and the affidavit/revised affidavit in Form-26.
175. Material facts leading to a valid cause of action in this context would definitely require petitioner to plead and prima-facie establish that the revised affidavit was duly filed complete in all respects. Paragraph 70 of the election petition does not bear such material particulars in respect of the revised affidavit. If the petitioner would have pleaded the details regarding signing, swearing, verification, attestation and filing of the revised affidavit then the bald copy of the affidavit as contained in Schedule 12 could be co-related to come to prima-facie conclusion regarding the cause of action.
176. Alternatively, the petitioner could have filed the true copy of the duly signed, verified and attested affidavit complete in all respect as Schedule 12 and could have complemented the same by the averments in Paragraph 70 of the petition even then it could have given some assistance to co-relate and arrive at a conclusion regarding a valid cause of action. However, neither the details are mentioned in Paragraph 70 nor they can be ascertained from perusing Schedule 12.
177. In this view of the matter, there does not appear to be clear material facts pleaded to connect the pleadings and the Schedule 12 to form a valid cause of action in respect of the petitioner being a duly nominated candidate.
178. In absence of such material particulars, the cause of action also looses its steam as the alleged affidavit contained in Schedule 12, prima-facie cannot be treated to be an valid affidavit as required in terms of Rule 4-A of the Rules of 1961 especially when there is no signatures, seal of attestation, verification and signature of the notary.
179. One must remember that a litigant is not entitled to create an illusion of a cause of action by resorting to clever drafting. The cause of action must be clearly stated with material particulars and in this regard, this Court is reminded of the decision of the Apex Court in T. Arivandandam v. T.V. Satyapal and another, (1977) 4 SCC 467, wherein considering the question of Order VII Rule 11 CPC and its applicability, the Apex Court observed as under:-
"5. ... The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage."
E. CONCLUSION:-
180. At this stage, this Court finds that there is conspicuous absence of material facts in respect of the cause of action relating to the fact of filing of a valid affidavit in Form-26. This necessarily leads to infer from a meaningful reading of the petition that the revised affidavit as brought on record is bereft of material particulars so also the pleadings in co-relation to it which creates a lacuna in the cause of action.
181. In light of the detailed discussions hereinabove, the irresistible conclusion is that the revised affidavit as annexed to the election petition is not as per norms and the initial affidavit was defective which rendered the nomination of the petitioner invalid. The petitioner is not a duly nominated candidate nor can he claim to be a duly nominated candidate at an election, hence, it creates an insurmountable hurdle for the petitioner to maintain this petition.
182. For the foregoing reasons, this Court has no hesitation to hold that the challenge raised by the respondents to the election petition must succeed and the election petitioner not being a duly nominated candidate is not entitled to maintain the election petition. Ergo, the election petition is dismissed in exercise of powers under Order VII Rule 11 CPC, with no order as to costs.
[Jaspreet Singh, J.] Order Date :- 6th July , 2022 Rakesh/Asheesh/ANKhan/-