Allahabad High Court
Sheshmani Nath Tripathi (S.N. Tripathi ... vs Shri Dinesh Rawat, The Returned ... on 19 December, 2022
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Order reserved on : 02.11.2022 Order pronounced on : 19.12.2022 Court No. - 6 Case :- ELECTION PETITION No. - 7 of 2022 Petitioner :- Sheshmani Nath Tripathi (S.N. Tripathi In Short) Respondent :- Shri Dinesh Rawat, The Returned Candidate Counsel for Petitioner :- In Person Hon'ble Abdul Moin,J.
(I. A. No. 4 of 2022)
1. Heard Shri Sheshmani Nath Tripathi, petitioner who has appeared in person.
2. The instant application under Section 86 (7) and 87 of the Representation of People Act, 1951 has been filed with following prayers:
"(a) That this Hon'ble Election Court may graciously be magnanimous to apprise the Hon'ble Chief Justice about the paucity of time it is faced with because of the pre-occupied in the common lis between the private parties enabling the Hon'ble Chief Justice to invigorate this Election Court with appropriate time to do justice to this Assembly Constituency and defend the democracy envisaged.
(b) That this Hon'ble Election Court may graciously be magnanimous to correct and rectify the errors highlighted in the pronouncements of 13.07.2022 and 19.09.2022 under the Maxim-Ex-debits Justiciae so as to make the rule of law absolute and complete."
3. Upon filing of the election petition the Court had issued notices to the respondent. In terms of Chapter XV-A of the Allahabad High Court Rules, 1952 (hereinafter referred to as the Rules 1952) notice is to be issued to the respondents in an election petition, both by registered post as well as by publication in a daily newspaper. However the notice could not be published in the newspaper as the petitioner failed to deposit the charges as indicated by the office.
4. When the case was taken up on 05.07.2022 the petitioner had contended that the amount, as has been required to be deposited by the office of this Court, is contrary to the amount as reflected from the official website of the newspaper namely ''Dainik Jagran' and he prayed for and was granted time to file an affidavit bringing on record the rates which were available on the official website of the newspaper.
5. When the case was next listed on 13.07.2022 the petitioner was heard on application bearing I.A. No. 2 of 2022 whereby he invited the attention of the Court towards Section 87 of the Representation of the People Act, 1951 (hereinafter referred to as the Act 1951) indicating that the order of the Registrar for publication in the newspaper was not in accordance with the Civil Procedure Code, 1908 (hereinafter referred to as the CPC) and it may be waived and the procedures and practices, as provided in the CPC, be followed and summons served to the defendants under Order 5 Rule 20 CPC denoting substituted service.
6. This Court vide the order dated 13.07.2022 was of the view that as specific rules have been framed under Chapter XV-A of the Rules 1952 as such it is the Rules 1952 which shall govern the trial of an election petitions and not the provisions of Order 5 Rule 20 CPC for the purpose of substituted service. The order dated 13.07.2022, for convenience, is reproduced below:
"I.A. Application No. 02 of 2022 Heard.
The petitioner who appears in person submits that in pursuance to the order dated 05.07.2022 he could not file the affidavit. He prays for some further time for filing the said affidavit.
The petitioner submits that he has filed an application under Section 87 of the Representation of People Act, 1951 (hereinafter referred to as "Act, 1951") praying that the order of the Registrar for publication in the newspaper not being in accordance with Code of Civil Procedure (hereinafter referred to as "CPC") may be waived and procedure & practices as provided in the CPC may be followed and the summons be served to the defendant as provided in Order 5 Rule 20 of CPC denoting "substituted service" inter alia.
This Court is of the view that once specific rules have been framed under Chapter XV (A) of the Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules,1952") and Rule 1 categorically provides that the provisions of said chapter shall govern the trial of election petitions under the Act, 1951 and further Rule 6 provides that the notice of election petition shall be simultaneously published in a newspaper selected by the Registrar and that notices, process fee, charges and a particular sum as an initial deposit has to be supplied by the petitioner within seven days of the order directing notice to issue and that cost of publication in newspaper exceeding Rs. 50, the Registrar shall call upon the petitioner to deposit the excess amount within the time fixed, as such it is the provisions of Chapter XV (A) of the Rules, 1952 which would be applicable for the purpose of publication of notice in a newspaper.
So far as Rule 12 of Chapter XV (A) of the Rules, 1952 are concerned whereby the Court's power to give directions in matters of practice and procedure has been prescribed, again, suffice to say that once Rule 6 particularly deals with a particular provision pertaining to publication of notice merely because Rule 12 gives the power to give direction in matter of practice and procedure would not prevail upon this Court to act otherwise than in accordance with Rule 6 of Chapter XV (A) of the Rules, 1952.
So far as the prayer in the application filed by the petitioner to follow the practice as provided in Order 5 Rule 20 of CPC is concerned, suffice it to say that Order 5 Rule 20 of CPC would pertain to power of the "Court" and obviously the word "Court" as used in the aforesaid provision would not include the High Court. Accordingly, the application is rejected.
However, in pursuance to the order dated 05.07.2022, the petitioner may file an affidavit within two weeks.
Order on memo of petition List this case on 28.07.2022 at 02:15 P.M. "
7. Thereafter the petitioner filed an application duly supported by an affidavit whereby he brought on record the rates indicated by the ''Dainik Jagran', the newspaper publication, as available on the website towards classified rates. Considering the same the Court had passed an order on 28.07.2022. For the sake of convenience, the order dated 28.07.2022 is reproduced below:
"Heard Sri Sheshmani Nath Tripathi, the petitioner, who appears in person.
This Court vide order dated 26.04.2022 had issued notice to respondents. As per office report dated 27.06.2022 the petitioner has not deposited the cost of publication of notice in the newspaper.
When the case was listed on 05.07.2022, the petitioner contended that the amount as is being required by the office of this Court to be deposited is contrary to the amount as reflected on the official website of the newspaper namely 'Dainik Jagran' Barabanki Edition and hence the amount has not been deposited. He was accordingly granted time to file an affidavit in this regard bringing on record the rates which are available on the official website of the said newspaper and in pursuance thereof the petitioner has invited the attention of this Court towards the classified rates and schemes 2020-21 of Dainik Jagran as available on the website which has been brought on record as Annexure-1 through the application duly supported with an affidavit. Placing reliance on the same, it is contended that the rates as have been indicated by the office of this Court are much higher than those indicated on the website.
Considering the aforesaid as well as the Rules framed under Chapter XV-A of the Allahabad High Court, 1952, which relate to the trial of the election petitions, let the office of this Court submit its report in this regard within ten days considering the rates as have been indicated by the petitioner as available on the official website of the newspaper 'Dainik Jagran'.
List this case on 24.08.2022 at 02.15 PM."
8. In pursuance to the order dated 28.07.2022 the office had sent a letter to the Editor / Manager Advertisement, of the newspaper concerned to provide a report as to why the rates given for publication to the office of the High Court were higher than the classified rates available on the official websites.
9. When the case was taken up on 24.08.2022, the Court noticed that despite a letter having been sent to the newspaper concerned no reply has been received and hence the Court required a reminder to be sent to the newspaper concerned.
10. When the case was listed on 19.09.2022, the Court perused the office report dated 19.09.2022 from which it emerged that despite a reminder having been sent no report regarding rates of publication has been received from the newspaper concerned and thus required a final reminder to be sent to the newspaper concerned. The order dated 19.09.2022 is reproduced below:
"Heard the petitioner who appears in person.
From the order dated 24.8.2022 of this Court, it is apparent that this Court required a reminder to be sent to the Newspaper concerned in pursuance to the earlier order of this Court dated 28.7.2022. The matter pertains to the amount to be deposited for the purpose of publication of notice in Newspapers in terms of rules given in Chapter XV-A (6) (b) of Allahabad High Court Rules, 1952. As per Office report dated 19.9.2022, despite the reminder having been sent, no report regarding rates of publication has been received from the Newspaper Dainik Jagran.
The petitioner who appears in person, has placed reliance on the Rule 12 of Chapter XV-A of the Allahabad High Court Rules, 1952 to contend that this Court may pass appropriate orders regarding service of notice by publication.
The Court is of the view that once the Rule 6 of Chapter XV-A of the Rules, 1952 provides for notice of the election petition to be also published in a newspaper as selected by the Registrar and the Registrar of this Court had required the petitioner to deposit required publication charges according to Rule 5 and 6 of Chapter XV-A of the Rules, 1952 which admittedly have not been deposited by the petitioner on the ground that lower rates are indicated on the web-site of the concerned newspaper, as such, it would be in the fitness of things that a last reminder to be sent to the newspaper concerned namely, Dainik Jagran regarding rates of publication. The Registrar may also take notice of the fact that despite notice having been sent, the concerned has still not responded.
The petitioner who appears in person, has prayed that the matter may come up after three or four days and not more than a week's time may be granted for the purpose of taking reply.
However, the Court is of the view that once there are already 120 cases listed in the Additional Cause List apart from 22 fresh cases, it will not be possible for this Court to accommodate the petitioner for listing the case at an early date.
List this case on 18.10.2022."
11. When the case was listed on 02.11.2022 the petitioner invited the attention of this Court towards the aforesaid supplementary application filed under Sections 86(7) and 87 of the Act 1951 for the prayers as have already been quoted above.
12. The Court has gone through the record including the letter dated 19.09.2022 sent by the newspaper concerned wherein it has been indicated that the publication of notice of advertisements like notice of Election Petition is not published in classified category of newspaper. It has also been indicated that the publication was never asked to publish the advertisement in the classified category and that the rates provided by the newspaper publication were provided as per set norms.
13. From perusal of the said letter alongwith office report it emerges that the amount, as was required by the office of this Court to be deposited by the petitioner for publication in the newspaper, was the rate given by the said publication for the purpose of publication of the notice of election petition and not for classified advertisement. Considering the report and the letter of the newspaper at the very outset the petitioner was asked as to whether he was willing to deposit the amount, as was required to be deposited by the office of this Court, to which he stated that he wants the application with the aforesaid prayers to be decided.
14. Accordingly, the Court proceeds to decide the aforesaid application.
15. The perusal of the aforesaid application alongwith the prayers as set forth in the said application would indicate that the petitioner wants correction and rectification in the orders of this Court dated 13.07.2022 and 19.09.2022 by which this Court was of the view that as the High Court has got the rules governing the filing of election petition under the Act 1951 as such the provisions of CPC for substituted service shall not be applicable and further vide the order dated 15.07.2022 this Court had not acceded for listing of this case after three or four days on account of having a heavy board.
16. In this regard the petitioner has placed reliance over Section 80A and Section 87 of the Act 1951. The petitioner contends that Section 80A of the Act 1951 provides that the court having jurisdiction to try an election petition shall be this Court. Placing reliance on Section 87 of the Act 1951 it is argued that the procedure before the High court would be that every election petition has to be tried by the High Court as nearly as may be in accordance with the procedure applicable under the CPC 1908 to the trial of a suit.
17. Placing strong reliance on Section 87 of the Act 1951 the argument of the petitioner is that once the Act 1951 itself provides that the procedure to be followed by the High Court for the purpose of trial of an election petition is the procedure applicable under the C.P.C. as such the provisions of Order 5 Rule 20 CPC for the purpose of substituted service would be only applicable and not the procedure prescribed under Chapter XV-A of the Rules 1952 and consequently this Court had committed an error in its order dated 13.07.2022 in not following the provisions of Order 5 rule 20 CPC for the purpose of substituted service and in adhering to the provisions of Chapter XV A of the Rules 1952 and thus it is prayed that the order dated 13.07.2022 be corrected and rectified.
18. In this regard, the petitioner has placed reliance on the judgement of Hon'ble the Apex Court in the case of Kailash vs Nanhku and others reported in 2005 (4) SCC 480 to contend that the Apex court was of the view that in case of conflict under the provisions of the Act 1951 with the High Court Rules, it is the provisions of the Act 1951 which would prevail over the provisions contained in the High Court Rules.
19. So far as the order dated 19.09.2022 passed by this Court is concerned whereby the Court had not fixed an early date within three to four days, as had been prayed for by the petitioner, on the ground of having a heavy board, reliance has been placed on a judgement of Hon'ble the Apex Court in the case of M. S. Gill vs Chief Election Commissioner reported in 1978 (1) SCC 405 to contend that an election petition should be decided expeditiously and argues that this Court should give precedence to the special law action i.e. election petition and not the common law lis between the private parties and hence it is prayed that the order dated 19.09.2022 whereby an early date had not been given be also corrected.
20. Heard the petitioner at length and perused the averments made in the application and the judgements of Hon'ble the Apex Court in the case of Kailash (supra) as well as M. S. Gill (supra).
21. The application has been filed with prayers as have already been indicated above. From a perusal of the said prayers it emerges that the petitioner wants the errors indicated by him in the orders dated 13.07.2022 and 19.09.2022 passed by this Court to be corrected. The said errors are said to be (a) refusal by the Court to fix an early date of 3 to 4 days, as had been prayed for by the petitioner and (b) the Court not acceding in following the procedures prescribed in CPC for service of notice and adhering to the provisions of the Rules framed under Chapter XV-A of the Rules 1952 relating to trial of election petition.
22. So far as the question (a) is concerned reliance has been placed on the judgement of Hon'ble the Apex Court in the case of M. S. Gill (supra) to contend that an election petition should be decided expeditiously. A perusal of the order sheet would indicate that an endeavor has been made by this Court to expedite the matter, as would be apparent from perusal of orders of various dates that have been passed in the petition. It is on account of non service of notice on the respondent and the office of this Court having required the petitioner to deposit a certain amount for publication of notice that on various dates time has been sought for by the petitioner objecting to deposit of the charges and also objecting to the same on the ground that lower rates are indicated on the official website of the newspaper. The Court required the office to obtain a report from the newspaper concerned regarding the disparity in the rates and the office of newspaper publication finally responded after two notices had been sent, indicating the difference in the rates pertaining to publication of classified and a notice of election petition. Thus, it is apparent that various dates in the petition have been fixed in order to resolve the issue regarding publication in newspaper of the notice and thus the insistence of the petitioner to fix a date of only 3 to 4 days, without publication of the notice in the daily newspaper, as provided under the Rules 1952, cannot be countenanced in any manner once the notice itself has not been published, as per the rules.
23. Consequently, it would not be possible for the Court to fix an early date simply on the insistence of the petitioner rather it is apparent that it is on account of non compliance of the provisions of the Rules 1952 of publication of notice in the newspaper that the present situation has arisen. There cannot be any dispute to the proposition of law laid down by Hon'ble the Apex Court in the case of M. S. Gill (supra) of election petition to be decided expeditiously. Thus, it is apparent that there is no error in the order dated 14.09.2022 whereby the Court did not find it possible to accommodate the petitioner for listing of the case at an early date.
24. So far as the question (b) is concerned, for deciding the said question, the Court would have to consider Section 80A and 87 of the Act 1951.
25. Section 80A of the Act 1951 reads as under:
"80-A. 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."
26. Section 87 of the Act 1951 reads as under:
"87. Procedure before the High Court. -
(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition."
27. From a perusal of Section 80A of the Act 1951 it emerges that it is the High Court which is to try the election petition.
28. So far as Section 87 of the Act, 1951 is concerned, the said provision provides that every election petition shall be tried by the High Court as nearly as may be, in accordance with the procedure applicable under CPC. The said Section further however provides that the High Court shall have the discretion to refuse to examine any witness and that the provisions of the Indian Evidence Act, 1872 shall, subject to the provisions of the Act 1951, be deemed to apply in respect of trial of an election petition. However, as this Court is only required to decide the applicability of the provisions of CPC to the election petition as such other provisions of the said section are not relevant to be considered by this Court at this stage.
29. Section 87 of the Act 1951 came up for consideration before the Apex Court in the case of Kailash (supra). The Apex Court while considering the aforesaid provision, has summed up the issues as under:
"(i) The trial of an election petition commences from the date of the receipt of the election petition by the Court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition affording opportunity to the defendant to file written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and Rules made for purposes of that Act and a resort to the provisions of the CPC is not called for.
(ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines.
(iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the Rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the Rules of Procedure contained in the CPC on the other hand, the former shall prevail over the latter.
(iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non- compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away.
(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended."
(emphasis by the court)
30. So far as the present controversy is concerned issue (iii) of the judgement of the Apex Court in the case of Kailash (supra) would be relevant wherein the Apex Court after considering the provisions of the Act 1951 and the CPC has held that in case of conflict between the provisions of the Act 1951 and the Rules framed therein or the rules framed by the High Court in exercise of powers conferred by Article 225 of the Constitution on the one hand and the rules of procedure contained in CPC on the other hand the former shall prevail over the latter.
31. Thus it is apparent that the Apex Court has set at rest the controversy in as much it has been held that in case of conflict between the rules framed by the High Court and the rules of procedure contained in CPC, it is the rules framed by the High Court which shall prevail. In the instant case, as already indicated in the order dated 13.07.2022, the Court had considered the rules framed under Chapter XV A of the Rules 1952 vis a vis Order 5 Rule 20 of CPC pertaining to service of notice and the Court was of the view that it is Rule 6 of the Chapter XV A of Rules 1952 which shall prevail. Thus considering the law laid down by the Apex Court in the case of Kailash (supra), this Court does not find any error in the order dated 13.07.2022.
32. Keeping in view the aforesaid discussion, the application is rejected.
Order on the main petition
1. The petitioner is granted two weeks time to deposit the cost of publication as directed by the office of this Court.
2. In case the cost is deposited, the office shall proceed.
3. List this case on the date to be indicated in the notice by the office.
Order Date :- 19.12.2022 J.K. Dinkar