Bombay High Court
Khalil Ahmed Shaikh Mannu vs The Election Commissioner Of on 27 April, 2011
Equivalent citations: AIR 2012 BOMBAY 7, 2011 (6) AIR BOM R 495, 2011 (6) MAH LJ 177, (2011) 7 ALLMR 324 (BOM)
Author: S.V.Gangapurwala
Bench: S.V.Gangapurwala
1 E.P.No.17/09
REPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
ELECTION PETITON NO. 17 OF 2009.
Khalil Ahmed Shaikh Mannu
Chaudhary, AGe 52 years,
Occ.Business & Agri.,
R/o House No.11-2-76,
Ranmastapura,Nawabpura (North),
Aurangabad. ... Petitioner.
Versus
1. The Election Commissioner of
India, having office at Nirwachan
Bhavan, New Delhi.
2. The Election Commissioner,
State of Maharashtra having office
at New Administrative Building,
Opp. Mantralaya, Mumbai-32.
3. Returning Officer,
Legislative Assembly Constituency
109, Aurangabad (East),
Aurangabad.
4. Darda Rajendra,
Age 56 years, Occ.Social Worker,
R/o Lokmat Bhavan, Jalna Road,
Aurangabad.
Respondent Nos.1 to 3 deleted vide Court's order
dated 14.12.2010.
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2 E.P.No.17/09
...
Mr.M.D.Joshi, advocate for the petitioner.
Mr.Alok Sharma, Asstt. Solicitor General for
Respondent No.1.
Mr.S.T.Shelar, advocate for Respondent No.2.
Mr.P.M.Shah, Senior Counsel instructed by
Mr.D.L.Vakil, advocate for the Respondent No.4.
...
CORAM : S.V.GANGAPURWALA,J.
ig Date : 27.04.2011.
JUDGMENT :
1. Election dispute is not an action at law or a suit in equity, but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power.
It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of law. It is not a private Civil dispute between two parties. A conscientious approach is required to be taken.
Neither turning a blind eye to the controversies, which has arisen nor assuming a role of overenthusiastic activist would do. The two ::: Downloaded on - 09/06/2013 17:13:26 ::: 3 E.P.No.17/09 extremes have to be avoided in dealing with election disputes.
The election petition shall have to be decided on the touch stone of the aforesaid principle.
2. The petitioner was interested in contesting ig the election of the Legislative Assembly Constituency No.109, Aurangabad (East).
The petitioner on 25.9.2009, filed his nomination for the Legislative Assembly Constituency No.109, Aurangabad (East). On 26.9.2009 i.e. on the date of scrutiny, the nomination paper of the petitioner came to be rejected by the Returning Officer on the ground that information as is required under Form 3-C is not filled in, so also the information on the affidavit is not filled in. The election for the said Constituency amongst the validly nominated candidates took place and the Respondent No.4 was declared as elected from the said Legislative Assembly Constituency 109, Aurangabad (East), Aurangabad.
The petitioner in the present petition assails ::: Downloaded on - 09/06/2013 17:13:26 ::: 4 E.P.No.17/09 the election of the Respondent No.4 as a returned candidate on the ground that the order dated 26.9.2009, rejecting the nomination paper of the petitioner is bad in law and illegal.
3. Initially the Respondent Nos.1,2 and 3had moved an application for deleting their names on the ground that they are not necessary parties. After hearing the respective parties, this Court vide order dated 14.12.2010, deleted the Respondent Nos.1,2 and 3 from the array of the Respondents.
4. The Respondent NO.4 thereafter filed an application Exh.13 raising preliminary objection and seeking rejection of the Election Petition U/o VII Rule 11 of the C.P.C. on account of absence of cause of action and non-disclosure of material particulars. The petitioner filed his say to the said application. Following point/issue arises for consideration :
"Whether in the facts and
circumstances of the case, cause of
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5 E.P.No.17/09
action exists for the petitioner to
file the present petition, if no,
whether the petition can be
dismissed/rejected at the threshold.?"
The said application Exh.13 was heard at length and the learned counsel for the petitioner and the Respondent No.4 advanced their arguments on merits of the matter. They also submitted written summary of arguments.
5. Mr.P.M.Shah, learned Senior Counsel appearing for the Respondent No.4 during the course of his erudite arguments accompanied with plethora of case laws canvassed following propositions :
(a) Section 80 of the Representation of the People Act, 1951 (hereinafter referred to as R.P.Act of 1951), by virtue of which the Election Petition is filed is couched in negative words meaning thereby that it is clearly prohibitory and is used as a legislative device to make the statute imperative. The learned counsel relies ::: Downloaded on - 09/06/2013 17:13:26 ::: 6 E.P.No.17/09 on the judgment of the Apex Court in a case of "M.Pentiah and others Vs. Muddala Veeramallappa and others" AIR 1961 Supreme Court 1107 and the judgment of the Apex Court in a case of "Vijay Narayan Thatte and others Vs. State of Maharashtra and others" (2009) 9 Supreme Court Cases 92.
ig The learned Senior Counsel as such contends that the Election Petition has to be presented in accordance with the provisions of this part i.e. Part VI of which Section 80 is a part. Part VI envelopes in its fold the provisions of Section 79 ending with Section 122.
Thus, compliance mandated by Section 80 includes the compliance with the provisions of Section 83 relating to the pleadings of the Election Petition, so also provisions of Section 87, by virtue of which provisions of Civil Procedure Code are made applicable to the election trial and so the cause of action has to exist for filing an Election Petition and in absence of the same, the election petition can be dismissed as per Order VII Rule 11 of the C.P.C.
::: Downloaded on - 09/06/2013 17:13:26 ::: 7 E.P.No.17/09(b) The nomination paper of the petitioner is rejected U/s 36(2)(b) of the R.P.Act, 1951 on the ground that there has been a failure to comply with provisions of Section 33 of the said Act. Section 33(1) mandates that a candidate shall deliver to the Returning Officer a nomination paper completed in the prescribed form. Form 3-C corresponding to form No.3-A in English includes a prescribed proforma for making disclosure of the particulars contemplated by Section 8 of the R.P.Act of 1951 about conviction, if any under sub-section (1) or for contravention of any law specified in sub-section (8) or has been convicted for any other offences for which he has been sentenced to imprisonment for two years or more. The petitioner had endorsed in a vernacular language which in English means "a separate list is annexed". So also in respect of form No.26 i.e. in terms of Section 33-A which deals with disclosure as to whether the petitioner is accused of any offence with imprisonment for two (2) years and whether he has been convicted for an offence other than ::: Downloaded on - 09/06/2013 17:13:26 ::: 8 E.P.No.17/09 the offence referred to in sub-section (1) or sub-section (2) or covered by sub-section (3) of Section 8 and sentenced to imprisonment for one year or more. The petitioner had made a statement that separate list is annexed and no such list was annexed. The Returning Officer was justified in rejecting the said nomination paper.
The list which was annexed was in respect of
offences which is required to be disclosed
ig on
affidavit as per orders of the Election
Commission dated 27.3.2003, making disclosure
about the cases which are pending against the
candidate in which cognizance has been taken by the Court. Thus, the petitioner had made a categorical statement in the two forms dealing with offences enumerated U/s 8 and the offences detailed U/s 33-A "that the separate list is annexed in respect of cases under the said provisions". The petitioner had represented that he was convicted for offences U/s 8 and that cases U/s 33-A were pending against him by positively stating that a separate list is annexed but no such list was annexed. In such circumstances, the Returning Officer was right in ::: Downloaded on - 09/06/2013 17:13:26 ::: 9 E.P.No.17/09 rejecting the nomination paper on the said count.
(c) The provisions of Section 33 and 36 are mandatory. If the defect is of substantial character, the Returning Officer enjoins the powers to reject the nomination paper.
(d) As per Section 33 of the said R.P.Act,
the nomination
ig paper has to be presented
"completed in the prescribed form" as the
petitioner did not annex the list of offences in form No.3-C and the information on affidavit as required in form No.26, the form was "not completed" as per Section 33 and the rejection invoking the powers U/s 36(2)(b) was proper.
(e) Failure to comply with provisions of Section 33 is a defect of a substantial character. For the said purpose the learned Senior Counsel relied on the judgment of the Apex Court in a case of "Rattan Anmol Singh and another Vs. Ch. Atma Ram and others" AIR 1954 Supreme Court 510, Brijendralal Gupta and another Vs. Jwalaprasad and others" AIR 1960 Supreme ::: Downloaded on - 09/06/2013 17:13:26 ::: 10 E.P.No.17/09 Court 1049, "Ram Dayal Vs. Brijraj Singh and others" 1969 (2) Supreme Court Cases 218, "Prahladdas Khandelwal Vs. Narendra Kumar Salave"
(1973) 3 Supreme Court Cases 104 and the Division Bench judgment of this Court in a case of "Suleman Fakruddin Ansari Vs. S.B.Kulkarni, I.A.S. Municipal Commissioner, Poona and another"
AIR 1963 Bombay 183.
(f) The petitioner in the petition also had contended that the entire information as required in Form 3-C at the time of scrutiny was brought to the notice of the Returning Officer. The petitioner further contends in the petition, more particularly, in para 7 that the Returning Officer did not give time and opportunity to cure defects. These defects were not substantial but it were curable, if there were any defects. As such nothing was stated about the statement made of separate list being annexed and absence of such separate list. In view of that the rejection of nomination paper by the Returning Officer on the ground that the information as detailed in form 3-C is not given, is not assailed ::: Downloaded on - 09/06/2013 17:13:26 ::: 11 E.P.No.17/09 and the petitioner has no cause of action and the petition can be dismissed for non-disclosure of cause of action. For the said purpose, the learned Senior Counsel relies on the judgment of the Apex Court in a case of "Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi 1987 (Supp) Supreme Court Cases 93, "Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar" reported in (2009) 9 Supreme Court Cases 310 and "Ram Sukh Vs. Dinesh Aggarwal" (2009) 10 Supreme Court Cases 541.
(g) As the petitioner does not have cause of action, the petition deserves to be dismissed at its threshold. A litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise the mind of the Respondents. The learned Senior Counsel relies on the judgment of the Apex Court in a case of "Azhar Hussain Vs. Rajiv Gandhi" 1986 (Supp) Supreme Court Cases
315.
6. Mr.M.D.Joshi, learned counsel for the petitioner during the course of his lucid ::: Downloaded on - 09/06/2013 17:13:26 ::: 12 E.P.No.17/09 arguments and with full vigour submitted that :
(a) The Election Petition is a original proceeding, not only an error in the decision making process by the Returning Officer but also correctness of said decision is relevant. The Court is duty bound to decide the matter on merits by framing issues and thereafter calling for production of evidence by parties.
ig As such the petition can not be rejected at the threshold on the ground that it did not disclose the cause of action. For the said purpose the learned counsel relies on the judgment of the Apex Court in a case of "Uttamrao Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite Patil" (2009) 13 Supreme Court Cases 131.
(b) Perusal of Section 36 shows that the Returning Officer is duty bound to give opportunity to the candidate, time to rebut the Returning Officer's objection. For the said purpose, the learned counsel relies on the judgment of the Apex Court in a case of "Rakesh Kumar Vs. Sunil Kumar" (1999) 2 Supreme Court ::: Downloaded on - 09/06/2013 17:13:26 ::: 13 E.P.No.17/09 Cases 489 and a case of "Ram Phal Kundu Vs. Kamal Sharma" (2004) 2 Supreme Court Cases 759.
(c) The rejection of nomination form itself is a cause of action for the petitioner to file the present Election Petition. The cause of action is a bundle of facts. The petitioner has detailed in the petition the circumstances showing how the order of Returning Officer ig is illegal. While ascertaining as to whether cause of action exist or not, the defence of the Respondent is not required to be considered. It can not be said that the petitioner does not have cause of action inasmuch as it has assailed the order of illegal rejection of his nomination form as no opportunity was also given by the Returning Officer nor the nomination form suffered from any material defect of a substantial character. The Returning Officer did not make any inquiry.
(d) Whether the Returning Officer had made an inquiry or not or whether the nomination form suffered from any material defect of a substantial character can only be concluded after ::: Downloaded on - 09/06/2013 17:13:26 ::: 14 E.P.No.17/09 the fullfledged trial and not at this stage. The returning officer did not follow the provision of Section 36(5) and (6) of the R.P. Act, 1951.
(e) The judgment of the Apex Court in a case of "Rattan Anmol Singh and another Vs. Ch.Atma Ram and others" referred supra relied by the Respondent is not applicable in view of the judgment of ig the Apex Court in a case of "Kanhaiyalal Vishindas Gidwani Vs. Arun Dattatray Mehta and others" reported in (2001) 1 Supreme Court Cases 78.
(f) The petition satisfies the ingredients of a properly presented petition as required in part VI of the R.P.Act of 1951.
(g) The petition at its threshold can only be dismissed for non-compliance of the provisions of Section 81, 82 or Section 117 of the R.P.Act of 1951. The objection raised by the Respondent does not come within the ambit of any of these provisions. On the said count also the petition can not be dismissed at the threshold.::: Downloaded on - 09/06/2013 17:13:26 ::: 15 E.P.No.17/09
7. Before adverting to the arguments of the learned counsels, it would be appropriate to refer to the relevant provisions to determine the present lis.
Article 329(b) of the Constitution of India :
"329. Bar to interference by courts in electoral matters.-
(a) x x x x
(b) no election to either House of
Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
Section 33 of the Representation of People Act,1951.
33. Presentation of nomination paper ::: Downloaded on - 09/06/2013 17:13:26 ::: 16 E.P.No.17/09 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 ig 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 :
Section 33-A. Right to information. -
(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of section 33, also furnish the information as to whether -::: Downloaded on - 09/06/2013 17:13:26 ::: 17 E.P.No.17/09
(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the Court of competent jurisdiction;
(ii) he has been convicted of an
offence [other than any offence
referred
ig to in sub-section (1) or
sub-section (2), or covered in sub-
section (3), of section 8] and sentenced to imprisonment for one year or more. (2) The candidate or his
proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1).
(3) The returning officer ::: Downloaded on - 09/06/2013 17:13:26 ::: 18 E.P.No.17/09 shall, as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.]
36. Scrutiny of nominations. - (1) On the date fixed for the scrutiny of nominations under section 30, the candidate, their election agents, one proposer 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 ::: Downloaded on - 09/06/2013 17:13:26 ::: 19 E.P.No.17/09 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:-
(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 ::: Downloaded on - 09/06/2013 17:13:26 ::: 20 E.P.No.17/09 candidate or the proposer on the nomination paper is not genuine.] (3) Nothing contained in [clause (b) or clause (c) of sub-
section (2) shall be deemed to
authorise the [rejection] of the
nomination of any candidate on the ground of any irregularity in respect of a ig 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 ::: Downloaded on - 09/06/2013 17:13:26 ::: 21 E.P.No.17/09 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) x x x x
(8) x x x x
Section 80. Election petitions.- No ::: Downloaded on - 09/06/2013 17:13:26 ::: 22 E.P.No.17/09 election shall be called in question except by an election petition presented in accordance with the provisions of this Part.
Section 86. Trial of election petitions.- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or Section 117.
Explanation.- An order of the
High Court dismissing an election
petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of Section 80-A. ::: Downloaded on - 09/06/2013 17:13:26 ::: 23 E.P.No.17/09 (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
ig 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 pointed 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 ::: Downloaded on - 09/06/2013 17:13:26 ::: 24 E.P.No.17/09 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 ::: Downloaded on - 09/06/2013 17:13:26 ::: 25 E.P.No.17/09 possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
Section 87. Procedure before the High Court.- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908(5 of 1908) to the trial of suits :
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or ::: Downloaded on - 09/06/2013 17:13:26 ::: 26 E.P.No.17/09 witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian
Evidence Act, 1872 (1 of 1872),
shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition."
8. Right to elect, though it is fundamental to democracy, is neither a fundamental right nor a common law right. It is purely a statutory right. So is the right to be elected. So is the right to dispute an election.
Dehors the statute, there is no right to elect, no right to be elected and no right to dispute an election. They are statutory creations and therefore, subject to statutory limitation. A 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 ::: Downloaded on - 09/06/2013 17:13:26 ::: 27 E.P.No.17/09 jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity always remain strangers to election law. In the trial of election dispute, Court is put in a straight jacket. The entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members and right up-to the final resolution of the dispute, if any, concerning the election, is regulated by the Representation of People of Act Act, 1951. The election law being statutory in character must be strictly adhered. The Election Petition must conform to the requirements of election law.
Unless grounds U/s 100 of the R.P. Act of 1951, are proved, no election of a successful candidate can be set aside.
9. In the present petition, the petitioner is assailing the election of returned candidate on the ground that the nomination paper of the election petitioner has been improperly rejected i.e. within the meaning of Section 100(c) of the ::: Downloaded on - 09/06/2013 17:13:26 ::: 28 E.P.No.17/09 R.P.Act, 1951.
10. Pursuant to the judgment of the Apex Court in "Union of India Vs. Association for Democratic Reforms and another" reported in (2002) 5 Supreme Court Cases 294 referred supra, the Election Commission issued the directions vide order dated 28.6.2002. Section 33-A was incorporated in the R.P.Act of 1951.
ig Thereafter,
the Apex Court in "People's Union for Civil
Liberties (PUCL) and another Vs. Union of India and another" reported in (2003) 4 Supreme Court Cases 399, has further directed that the Election Commission has to issue revised instructions to ensure implementation of Section 33-A subject to what is laid down in the said judgment regarding the cases in which cognizance has been taken.
11. It would be seen that dehors the codified enactment i.e. R.P.Act, 1951 and in addition to the statutory requirements regarding the declaration about the Criminal offences as laid down by Section 8 so also Section 33-A, an additional requirement is also laid down pursuant ::: Downloaded on - 09/06/2013 17:13:26 ::: 29 E.P.No.17/09 to the dictum of the Apex Court in a case of "Union of India Vs. Association for Democratic Reforms and another" referred supra i.e. information on affidavit about those offences of which cognizance has been taken by the Court.
12. The nomination paper is categorised in various compartments i.e. various forms. Each and everyig form will have to be scrupulously filled in.
13. Perusal of the nomination paper, it is manifest that the same is in two languages i.e. English and also in vernacular i.e. Marathi.
The petitioner has chosen to fill the nomination paper in Marathi language. The Returning Officer has passed the order rejecting the nomination paper of the petitioner in Marathi language. The grounds on which the nomination of the petitioner is rejected by the Returning Officer vide order dated 26.9.2009 are twofold :
(i) The information in form No.3-C (In English the same is form 3-A) is not filled in;::: Downloaded on - 09/06/2013 17:13:26 ::: 30 E.P.No.17/09
(ii) the information in the affidavit is not filled in.
14. In the said nomination paper form 3-C is at page 22. The said form deals with the offence enumerated in Section 8 of the R.P.Act, 1951. The very first clause deals with :
(i) "Whether the candidate -
has been convicted -
(a) Of any offences(s) under sub-section(1); or
(b) For contravention of any law specified in sub-
section (2), of section 8 Yes/No. of the Representation of People Act, 1951 (43 of 1951); or
(ii) Has been convicted for any other offences(s) for which he has been sentenced to imprisonment for two years or more.
If the answer is "Yes" the
candidate shall furnish
the following
information :
(i) Case/First information
report No./Nos.
(ii)Police Station(s)
(District(s)
State(s)"
::: Downloaded on - 09/06/2013 17:13:26 :::
31 E.P.No.17/09
The petitioner has not struck off anything in the first column. He had not struck "Yes" or "No"
while filling in the said form but in the second part i.e. under the caption if the answer is "Yes", the candidate shall furnish the following information. The petitioner has endorsed in vernacular language "......................."
which in English would mean "list is annexed herewith"
ig thereby giving a positive suggestion that he has been convicted for the offences under sub-section (1) or for the contravention of any law specified in sub-section 2 of Section 8 of the R.P.Act, 1951 or has been convicted for any other offences for which he has been sentenced for two years or more because if answer to all the aforesaid columns is "Yes" then only the petitioner was requiredto fill in the information to which the petitioner had made a positive assertion that the "list is annexed" with the said form but perusal of the nomination form shows that no list is annexed with said form 3-C (in English 3-A). The same was the case in respect of form 26. The said form dealt with the offences as contemplated U/s 33-A. There also ::: Downloaded on - 09/06/2013 17:13:26 ::: 32 E.P.No.17/09 the petitioner had made endorsement in vernacular language, meaning thereby that the list is annexed with the said form but no list was annexed.
15. The aforesaid factual matrix regarding the nomination paper shows that in form 3-C and form 26 required to be given under Rule 4-A, the petitioner ig made a positive averment that in respect of the said offences, he has annexed a list along with the said form. It is not disputed that no such list in respect of the offences as contemplated U/s 8 or U/s 33-A of R.P. Act, 1951 is annexed. The only list i.e. annexed can be categorised as that of offences which petitioner is required to disclose pursuant to the order of the Election Commissioner dated 28.6.2002. The moot question is when the petitioner had made a positive assertion in form 3-C stating that he has annexed the list along with the form in respect of the offences as enshrined in Section 8 of the R.P.Act, 1951 and no such list is annexed, whether the Returning Officer was in error in rejecting the nomination ::: Downloaded on - 09/06/2013 17:13:26 ::: 33 E.P.No.17/09 form.
16. The first column of Form 3-C deals with, whether the candidate has been convicted of any offences under sub-section (1) or for contravention of any law specified in sub-section (2) of Section 8 of the R.P.Act, 1951 or has been convicted for any offences for which he has been sentenced to imprisonment and if the answer to any of the aforesaid clauses is "Yes", then the candidate was required to fill the further information regarding the case number, FIR, Police Station, Sections of the said Act, date of conviction and the Courts which convicted the candidate. The petitioner had stated that a list is annexed along with the form (.........................). Thus unambiguously representing that he has been convicted for the offences enumerated in Section 8(1) and (2) of R.P.Act, 1951 or for the offences for which he has been sentenced to imprisonment for two years or more but no such list of offences has been given as enumerated in Section 8 of the R.P.Act, 1951. Thus,the form was incomplete as the said ::: Downloaded on - 09/06/2013 17:13:26 ::: 34 E.P.No.17/09 information was not given. The petitioner in the said form had no where stated that he has not been convicted for any of the offences as laid down in Section 8 but on the contrary, had made a positive assertion that a separate list is annexed along with form. It is argued on behalf of the petitioner that he has not been convicted for the offences as laid down U/s 8 of the R.P.Act, 1951.ig At this stage that would not be relevant. Before the Returning Officer what was represented is that he has annexed the list along with the form in respect of the said offences and the said list was not accompanied with the said form thereby rendering the form incomplete necessarily meaning that the information as contemplated in form 3-C has not been given.
17. According to the petitioner in view of the judgment of the Apex Court in a case of "Rakesh Kumar Vs. Sunil Kumar" reported in (1999) 2 Supreme Court Cases 489 and "Ram Phal Kundu Vs. Kamal Sharma" (2004) 2 Supreme Court Cases 759, the Returning Officer was duty bound to give opportunity to the candidate to rebut the ::: Downloaded on - 09/06/2013 17:13:26 ::: 35 E.P.No.17/09 objection raised. The Returning Officer did not give any such opportunity and as such the decision was bad in law. The said submission would be contrary to the pleadings in para 7 of the Election Petition. In para 7, the petitioner has specifically contended that the space in form 3-C, wherein the information was to be supplied was very small. The information was supplied by the petitioner on a separate sheet.
ig The note was
given in form 3-C and on affidavit said
information was supplied separately and the list was enclosed along with the nomination paper.
The petitioner further contended that at the time of scrutiny this was brought to the notice of the Returning Officer. Inspite of pointing out to the Returning Officer that the information is already filled in form 3-C and in affidavit but it is supplied in separate sheet because of short space in printed form, the same was not considered. This itself shows that the petitioner at the time of scrutiny had made representation to the Returning Officer that he had annexed a separate sheet in respect of the information to be given in form No.3-C and had ::: Downloaded on - 09/06/2013 17:13:26 ::: 36 E.P.No.17/09 pointed out the said fact to the Returning Officer. This shows that opportunity was given to the petitioner.
18. Section 33 of the R.P.Act, 1951 mandates the candidate to deliver to the Returning Officer at the place specified in the notice issued U/s 31, "Nomination paper completed in the prescribed ig form and signed by the candidate and by an electrol of the constituency as proposer". As such the candidate is duty bound to deliver a nomination paper completed in the prescribed form. Section 36(2)(b) of the R.P.Act, lays down that the Returning Officer shall reject any nomination if there has been failure to comply with any of the provisions of Section 33 or Section 34 of the R.P.Act. The last date for acceptance of nomination paper was 25.9.2009 and 26.9.2009 was the date of scrutiny.
If the nomination paper was not complete as is required U/s 33(1) of the R.P.Act, the Returning Officer had no option but to reject the same.
The nomination form was incomplete as can be seen as no information on a separate sheet or list was ::: Downloaded on - 09/06/2013 17:13:26 ::: 37 E.P.No.17/09 filled in though it was specifically represented in the nomination paper i.e. form 3-C. No question would arise of completing the nomination paper on the next date or the date of scrutiny of the nomination paper. As such the question of giving opportunity to the petitioner also would be redundant. The Apex Court in a case of "Rattan Anmol Singh and another Vs. Ch.Atma Ram ig and others" referred supra had observed that Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been any failure to comply with any of the provisions of Section 33, the Returning Officer at that stage can not remedy essential defect or permit to be remedied that defect. He must leave it as it is. If it is technical and non-substantial, it will not matter, if it is not, it can not be set right.
The Apex Court in a case of "Brijendralal Gupta and another Vs. Jwalaprasad and others" referred supra also held that if the defect is of a substantial character then rejection of Respondent No.5's nomination paper would be proper and the fact that the Respondent No.5 was ::: Downloaded on - 09/06/2013 17:13:26 ::: 38 E.P.No.17/09 not allowed an opportunity to rectify the said omission would make no difference in law. The Apex Court in "Ram Dayal Vs. Brijraj Singh and others" and in case of "Prahladdas Khandelwal Vs. Narendra Kumar Salave" referred supra has echoed the same view.
19. The defect in the present case is certainly ig of a substantial character. It is mandatory for the petitioner to give the information in form 3-C regarding the offences as enumerated in Section 8, so also the offences enumerated in Section 33-A. It is a fact that the petitioner had represented that he has been convicted for the offences U/s 8 of the R.P.Act, 1951 by making an endorsement that a list has been annexed in respect of the same along with the form and no such list was annexed. The said defect is a defect of a substantial character.
The Apex Court in a case of "Shaligram Shrivastava Vs. Naresh Singh Patel" reported in (2003) 2 Supreme Court Cases 176, was dealing with the similar situation. In said case the nomination of a candidate was rejected at the ::: Downloaded on - 09/06/2013 17:13:26 ::: 39 E.P.No.17/09 time of scrutiny on the ground that he had not filled up the proforma prescribed by Election Commission by its letter dated 28.8.1997. The said proforma was required to be filled in to ascertain as to whether the candidate had been convicted or not for any offence mentioned in Section 8 of the R.P.Act, 1951. The candidate had filed an affidavit stating that information given in ig the proforma was correct but the proforma itself was left blank. He had though filled the nomination paper in form 2-B declaring that the candidate was qualified and also not disqualified for being chosen to fill the seat but still, his nomination paper was rejected on the ground that he had not filled up the proforma prescribed under letter dated 28.8.1997. The Apex Court in the said case observed that :
"In our view the bald declaration that the candidate is qualified and not disqualified is not at all sufficient to scrutinize the nomination paper from the angle of Section 8 of the Act. Clause (a) of sub-section (2) of ::: Downloaded on - 09/06/2013 17:13:26 ::: 40 E.P.No.17/09 Section 36 provides for scrutiny of the nomination paper to see whether he is disqualified for being chosen to fill the seat or not, amongst others in the light of Part II of the Act; as indicated earlier, Section 8 falls in Part II of the Act. Therefore, the declaration in the nomination paper that igthe candidate is qualified and not disqualified may only be a mere basic statement necessary to fill up the nomination paper but it contains no information or facts relevant for the purposes of scrutinising the nomination paper in the light of Section 8 of the Act which falls in Part II of the Act."
15. Since such information is necessary and relevant for the purpose of scrutiny of the nomination paper under Section 36(2), in the light of Section 8 of the Act, it can well be furnished on a format provided to the ::: Downloaded on - 09/06/2013 17:13:26 ::: 41 E.P.No.17/09 candidate by the Returning Officer and it becomes his duty to furnish such information so that a Returning Officer may discharge his statutory duty to scrutinize the nomination paper effectively, properly and in consonance with the provisions of law.
17.ig In the case in hand the candidate had failed to furnish such information as sought on the proforma given to him and had also failed to be present personally or through his representative at the time of scrutiny. The statutory duty/power of the Returning Officer for holding proper scrutiny of nomination paper was rendered nugatory. No scrutiny of the nomination paper could be made under Section 36(2) of the Act in the light of Section 8 of the Act. It certainly rendered the nomination paper suffering from defect of substantial character and the ::: Downloaded on - 09/06/2013 17:13:26 ::: 42 E.P.No.17/09 Returning Officer was within his rights in rejecting the same."
20. In the present case also the petitioner had failed to fill in the said form 3-C. The petitioner made a positive representation that he is annexing a list along with the form in respect of the offences for which he has been convicted as enumerated in Section 8 of the R.P.Act, and the said list was not filed along with the form.
The said defect was of a substantial character, so also on the date of scrutiny, the petitioner as per his own pleadings represented that he has given the necessary information in the list but no such list was annexed with the said form. No Scrutiny is also required to be made of the nomination paper U/s 36(2) of the Act as it rendered the nomination paper suffering from a defect of substantial character and the order rejecting the nomination paper can not be faulted with.
21 In view of the above conspectus, there is no difficulty in coming to the conclusion that ::: Downloaded on - 09/06/2013 17:13:26 ::: 43 E.P.No.17/09 the nomination paper suffered from defect of a substantial character and had been rightly rejected by the Returning Officer.
22. The further contention of the petitioner relying on the dictum of the Apex Court in a case of "Uttamrao Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite Patil" (2009) 13 Supreme Court Cases 131 referred supra, is that the High Court trying Election Petition is duty bound to decide the matter on merits by framing issues and thereafter calling for production of evidence by the parties and the Election Petition can not be dismissed at its threshold. The proceedings before the Court are original proceedings. In the aforesaid case before the Apex Court, the question was whether the signatures of the proposer on the nomination paper were forged or not. The Returning Officer had rejected the nomination papers on the ground that the signatures of the proposer were forged.
In that factual matrix, the Apex Court observed that not only an error in the decision making process by Returning Officer but also the ::: Downloaded on - 09/06/2013 17:13:26 ::: 44 E.P.No.17/09 correctness of the said decision is relevant and the High Court trying an Election Petition acts as a Court of original jurisdiction and the Election Petition is a Civil trial and jurisdiction in such a trial stricto-senso can not be said to be an appellate nature and the High Court should have examined the veracity in that regard.
23. It is a trite law that the judgments of the Apex Court can not be read as euclid theorem.
They will have to be read in the context in which they have been delivered. In the present case the question whether the petitioner was disqualified or was convicted for an offence U/s 8 of the R.P.Act, 1951, is not relevant but the only thing that is relevant is whether the nomination paper filled in was complete in all respects and the necessary information was provided. As observed above, the petitioner had not provided the necessary information in form 3- C and the said defect was of a substantial character. In such circumstances when the further proceedings would prove to be abortive ::: Downloaded on - 09/06/2013 17:13:26 ::: 45 E.P.No.17/09 then it is not necessary to engage the parties in a long drawn trial. The Apex Court in a case of "Azhar Hussain Vs. Rajiv Gandhi" 1986 (Supp) Supreme Court Cases 315, has observed thus:
"The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument."
24. The learned counsel for petitioner further contends that Section 86 lays down that ::: Downloaded on - 09/06/2013 17:13:26 ::: 46 E.P.No.17/09 the Election Petition which does not comply with the provisions of Section 81, 82 or Section 117 of the R.P.Act, 1951 shall be dismissed by the High Court i.e. for not presenting the petition as required in Section 81 or for non-joinder of necessary parties to the petition as contemplated U/s 82 or for non-payment of costs by way of security. It nowhere contemplates that Election Petition can not be dismissed for non-disclosure of cause of action. It is further argued by learned counsel for petitioner that the petitioner has cause of action as the nomination paper is illegally rejected by Returning Officer and said order has given rise to cause of action for the petitioner to file present petition.
Such an argument can not be countenanced by law.
The constitutional mandate engrafted in Article 329(b) lays down that the election of a returned candidate can not be called in question except by an "election petition presented to such authority and in such manner as may be provided for or under any law made by the appropriate legislature." Sequel to the said constitutional ::: Downloaded on - 09/06/2013 17:13:26 ::: 47 E.P.No.17/09 mandate, the legislature by virtue of Section 80 of Representation of People Act, 1951 mandates that no election shall be called in question except by an election petition presented in accordance with the provisions of this part. The phraseology of Section 80 is self-eloquent. It is couched in a negative connotation suggesting that the provision is imperative. Further by incorporating in Section 80 the words "except" by an Election Petition presented in accordance with the provisions of this part would imply that part VI of which Section 80 is a part will have to be scrupulously followed. Part VI engulfs provisions from Sections 79 to 122 of the Act of 1951. Section 80 ordains that the election petition so presented has to comply the provisions of Part VI of the Act of 1951.
Section 83 deals with the pleadings of the Election Petition of which cause of action is a part. Every pleadings must disclose the cause of action. Section 87 of the Act of 1951 lays down that the provisions applicable under Code of Civil Procedure to the trial of suits apply necessarily implying that provisions of Order VII ::: Downloaded on - 09/06/2013 17:13:26 ::: 48 E.P.No.17/09 Rule 11 of the C.P.C. would be applicable and the Election Petition can be rejected at the thresh-
hold if it does not disclose cause of action.
25. The terminology "cause of action" has been a subject matter of various judicial pronouncements. The said concept now has acquired a settled meaning. In the restricted sense, cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the action including not only the infraction of the right but also the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. In other words a bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in the suit. It has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed ::: Downloaded on - 09/06/2013 17:13:27 ::: 49 E.P.No.17/09 for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action or in other words to the media upon which the plaintiff asks the Court to arrive at the conclusion in his favour. The cause of action has to be real and not illusory one.
26. The aforesaid discussion would lead to an irresistible ig conclusion that the nomination paper filed by the petitioner suffered from defect of substantial nature which could not have been rectified after the last date of filing of the nomination form or on the date of scrutiny of the nomination. It has to be held that the nomination paper of the petitioner was not improperly rejected as such Section 100(c) of the Act of 1951, is not attracted, interalia, the petitioner would not have any cause of action to prosecute the present petition. In the memo of petition also the petitioner had come forward with the case that his nomination was complete in all respect but having held that form No.3-C was not filled in, the information required therein was not given, the petitioner can not be said to ::: Downloaded on - 09/06/2013 17:13:27 ::: 50 E.P.No.17/09 have a cause of action to prosecute the present petition. The Election Petition as such deserves to be rejected.
27. In the result, the application raising preliminary objection Exh.13 is allowed and the Election Petition stands dismissed. However, there shall be no order as to costs.
(S.V.GANGAPURWALA,J.) asp/office/ep1709 ::: Downloaded on - 09/06/2013 17:13:27 :::