Gujarat High Court
Subhramanayam Jaishankar ... vs Gaurav Hemantbhai Pandya on 4 February, 2020
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/EA/18/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION APPLICATION NO. 18 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the Yes
judgment ?
4 Whether this case involves a substantial question of law Yes
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SUBHRAMANAYAM JAISHANKAR KRISHNASWAMY
Versus
GAURAV HEMANTBHAI PANDYA
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Appearance:
MR C B UPADHYAYA(3508) for the Applicant(s) No. 1
MR BM MANGUKIYA(437) for the Respondent(s) No. 1
MS BELA A PRAJAPATI(1946) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 04/02/2020
CAV JUDGMENT
1. The application has been filed by the applicant - original respondent Mr. Subhramanyam Jaishankar Krishnaswamy against the opponent - original Election Petitioner Mr. Gaurav H. Pandya Page 1 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT under the provisions contained in Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC") read with Rule 272 of the High Court Rules, 1993 (hereinafter referred to as "the High Court Rules") read with the provisions contained in Sections 86 and 87 of the Representation of the People Act, 1951 (hereinafter referred to as "the said Act"), seeking following prayers: "16.(B) This Hon'ble Court may kindly be pleased to summarily reject and dismiss the Election Petition filed by the Petitioner as the same being barred by law and suffering from nondisclosure of cause of action while exercising powers under the provisions of Section 86 and 87 and other ancillary provisions of the Representation of People Act, 1951 read with the provisions of Order VII Rule 11 of the Civil Procedure Code, 1908."
2. The Election Petition being No.3 of 2019 has been filed by the opponent - election petitioner against the applicant - original respondent under Section 100 of the said Act, seeking the following prayers as contained in paragraph 40 thereof: "40.A. Set aside the election of the respondent to the Council of States (Rajyasabha) from the constituency of Members of Gujarat State Legislative Assembly held on July 05, 2019 (Five, Two Thousand Nineteen) being violative of provision of Constitution of India, Representation of People Act, 1951 (One thousand Nine Hundred and Fifty One) and Conduct of Election Rules, 1961 (One Thousand Nine Hundred and Sixty One).
B. Hold and declare the actions of the Election Commission of India to treat the seats having fallen vacant on account of the elections of Mr.Amitbhai Anilchandra Shah and Mrs.Smriti Zubin Irani to the House of People as of different categories which required bye election to be held Page 2 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT separately for both seats held under notification bearing ECI No.100(Hundred)/CSGH/1(One)/2019(1)(Two Thousand Nineteen (One)) dated June 18, 2019 (Eighteen, Two Thousand Nineteen) for seat previously held by Amit Anilchandra Shah and under notification bearing ECI No.100(Hundred)/CSGH/2(Two)/2019(1) (Eighteen, Two Thousand Nineteen) for the seat previously held by Smriti Zubin Irani as illegal and quash the same; and be pleased to further hold that it is mandatory to hold joint election under single ballot allowing proportional representation through single transferable vote for both the seats having fallen vacant on account of the election of Mr.Amitbhai Anilchandra Shah and Mrs.Smriti Zubin Irani to the House of People."
3. The short facts giving rise to the present proceedings may be stated as under:
(i) On 21.7.2017, the President of India in exercise of the powers conferred upon him under Section 12 of the said Act had issued the Notification calling upon the Members of the Legislative Assembly of Gujarat State to elect three Members of the Council of State. Accordingly, the election of three seats in the Gujarat State Legislative Assembly Constituency was held on 8.8.2017 and on 9.8.2017, and on the declaration of its results, Mr.Ahmed Mohammed Patel, Mr.Amitbhai Anilchandra Shah, and Mrs.Smriti Zubin Irani were elected as the Members of the Council of State.
(ii) On 10.3.2019, the President of India issued the Notification under Subsection (2) of Section 14 of the said Page 3 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT Act for holding the election of House of People to constitute the 17th Lok Sabha. The said election was declared to be held in seven phases. The date of polling for all the seats of the Lok Sabha, including 7Gandhinagar Constituency in the Gujarat State was 23.4.2019, and the date of polling for 37Ameti Parliamentary Constituency of State of Uttar Pradesh was 6.5.2019.
(iii)The counting of votes for all the seats of House of People had started on 23.05.2019. The result of 7Gandhinagar constituency contested by Mr.Amit Anilchandra Shah was declared on 23.05.2019 and the result of 37Amethi State of U.P. Constituency contested by Mrs.Smriti Zubin Irani came to be declared on 24.05.2019, in which both were declared elected as the Members of the Lok Sabha for their respective constituencies. Therefore, the seats held by them as the Members of the Council of States fell vacant.
(iv)The Election Commission of India on 15.6.2019 issued a Press Note, declaring the schedule for holding separate byelections for filling up six casual vacancies in the Council of States from Bihar, Gujarat and Odissa, further clarifying that the byelections would be treated as separate elections and poll will be taken accordingly. The Page 4 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT said Press Note dated 15.6.2019 of the Election Commission of India came to be challenged by one Paresh Dhanani by filing Writ Petition (C) being No.774 of 2019, seeking declaration that the action/order/press note of the respondent dated 15.6.2019 was unconstitutional, arbitrary, illegal, void ab initio and violative of Article 14 of the Constitution of India, and accordingly prayed to quash the same. In the said writ petition, the Election Commission of India filed a counteraffidavit raising preliminary objections as regards the maintainability of the writ petition and further submitting that the Notifications for the byelections for the casual vacancies arising in the Council of State from various States, including from the State of Gujarat have already been issued in the Gazette of India on 18.6.2019.
(v) The Supreme Court vide the order dated 25.6.2019 dismissed the writ petition (C) No.774 of 2019, accepting the preliminary objections raised by the Election Commission of India by holding as under: "Learned Senior Advocate appearing for the petitioner has drawn our attention to para 32 of the Election Commission of India Vs. Ashok Kumar & Ors., (2000) 8 SCC 216, in particular sub paragraphs 2 and 4 thereof. We do not, however, agree with the contention of the learned counsel that the present case does not and will not amount Page 5 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT to 'calling in question the election' and would not result in interpreting, obstructing or delaying the progress of election to the Rajya Sabha. The contention and challenge raised before us is not to a mere correction or to smoothen the progress of election proceedings by removing obstacles or to preserve vital piece of evidence if he same would be destroyed or rendered irretrievable by the time set for invoking jurisdiction of the statutory court. These are limited exceptions and not an alternative ground to the statutory right to challenge and question the election by filing a writ petition. The contentions raised challenging the th notification/order dated 15 June, 2019 can and should be as per the Constitution and Statute raised by way of an election petition.
Recording the aforesaid, we decline and do not entertain this writ petition leaving it open to the petitioner to file an election petition, if so advised. We, accordingly, express no opinion on all other contentions and merits raised by both the sides. The writ petition is dismissed accepting the preliminary objection."
(vi)The Election Petitioner Mr. Gaurav Pandya, set up as a candidate by the Indian National Congress, contested bye election held under the Notification in respect of the seat which was vacated by Mr. Amit Shah, however lost the same to the respondent Mr. Subhramanyam Jaishankar Krishnaswamy who was set up as a candidate by the Bharatiya Janta Party.
4. In the backdrop of the aforestated facts, the opponent-Election Petitioner Mr.Gaurav Hemantbhai Pandya has filed the Election Petition No. 3 of 2019 against the applicant - original respondent Mr. Page 6 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT Subhramanyam Jaishankar Krishnaswamy, seeking reliefs as stated herein above. Pending the said Election Petition, the applicant- original respondent has filed the present application, seeking dismissal of the said election petition under Order VII Rule 11 of CPC read with Sections 86 and 87 of the said Act as stated earlier. The application has been resisted by the opponent- original petitioner by submitting the affidavitinreply.
5. Learned Advocate Mr.C.B.Upadhyay for the applicant- original respondent has made the following submissions:
(i) The election petition filed by the opponent is liable to be dismissed under Clause (a) of Rule 11, Order VII as the petition does not disclose any cause of action and under Clause (d) of the said Rule, as the petition is barred by the provisions contained in the said Act.
(ii) The Supreme Court in the writ petition filed by Mr.Paresh Dhanani had rejected the same accepting the preliminary objections raised by the Election Commission of India. There was neither any direction issued nor any liberty granted by the Supreme Court to file election petition challenging the notifications issued by the Commission, while dismissing the said writ petition. The Election Page 7 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT Petition challenging the said Notifications issued under Section 147 read with Subsection (1) of Section 39 and Section 56 of the said Act issued by the Election Commission of India is not maintainable in the eye of law.
(iii)There being violation of mandatory provisions contained in Section 81 read with Section 100, the petition is liable to be dismissed under Section 86 of he said Act.
According to the learned Advocate Mr.Upadhyay, the election petition does not disclose any cause of action, namely any of the grounds specified in Subsection (1) of Section 100 of the said Act. The petition also does not allege any noncompliance of the provisions of the Constitution or of the said Act or the Rules or Orders made under the said Act, and therefore, does not disclose the grounds as contemplated under Section 100(1) resulting into noncompliance of Section 81(1) of the Act.
(iv)There is a noncompliance of Section 82 of the said Act, inasmuch as the petitioner has not joined the Returned Candidate Mr. Lokhandwala as the partyrespondent, who has won the election, qua the publication of the other Notification under challenge.
(v) Two elections separately held cannot be challenged in one Page 8 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT petition, as the petitioner was neither a candidate nor an elector as contemplated in Section 81 of the said Act, so far as the other election contested by Mr.Lokhandwala was concerned, and therefore, could not have challenged his election or the Notification qua the said election in the present Election Petition.
(vi)Sections 81 and 82 deal with one single process of election, and therefore, two Returned Candidates of two different elections could not be joined in one Election Petition, nor such two elections could be challenged by filing common election petition.
(vii) There is no averment or allegation made in the petition as regards noncompliance of any of the provisions of the Constitution or of the said Act or the Rules made thereunder, and an interpretation of the provisions of the Constitution or any law cannot be termed as a noncompliance of the provisions of the Constitution for the purpose of Section 100(1)(d)(iv) of the said Act.
(viii) Relying upon various decisions of the Supreme Court, Mr.Upadhyay submitted that the right to be elected and the disputes pertaining to the election are governed by the said Act alone, which is a selfcontained Code, and Page 9 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT therefore, the pleadings contained in the petition are required to be strictly examined and the provisions contained in the said Act need to be strictly adhered to, failing which the election petition would be liable to be dismissed at the threshold under Section 86 of the said Act.
(ix) Mr.Upadhyay has relied upon the decision of the Supreme Court in case of Manda Jaganath Vs. K. S. Rathnam and Ors., reported in (2004) 7 SCC 492 to submit that the word 'election' means any and every act taken by the competent authority after the publication of the Election Notification, and therefore, the legality and validity of the Notifications issued by the Election Commission could not have been challenged by filing an election petition which would tantamount to claiming relief outside the purview of Section 84 of the said Act.
6. Per Contra, learned Advocate Mr.B.M.Mangukiya for the opponent - original petitioner has made following submissions:
(i) The Court is required to examine as to whether the petition discloses any cause of action or not, and it is not required to examine as to whether the petitioner is likely Page 10 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT to succeed or not in the election petition on the grounds mentioned in the petition. So long as the petition discloses reasonable cause of action, the same cannot be dismissed under Order VII Rule 11A of CPC. In this regard, he has relied upon the decision of the Supreme Court in case of Mohan Rawale Vs. Damodar Tatyaba alias Dadasaheb and Ors., reported in (1994) 2 SCC 392.
(ii) Taking the Court to the averments and allegations made in the petition, he submitted that the petitioner has specifically alleged violation of Article 80(4) of the Constitution and of Rule 76 of the said Rules, and the same were required to be treated as the grounds specified in Section 100(1)(b)(iv) of the said Act, and the due compliance of Section 81(1) of the said Act.
(iii)The petition has been filed in view of the order passed by the Supreme Court in case of Writ Petition (C) No.774 of 2019 filed by Mr.Paresh Dhanani as the said writ petition was not maintainable in view of Article 329(b) of the Constitution of India. According to Mr. Mangukiya, the Supreme Court had not entertained the same on the ground of being not maintainable, without examining the merits of the Notifications issued by the Election Commission of India, which are under challenge in the Page 11 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT present Election Petition.
(iv)The petitioner has made out the grounds as contemplated in Section 100(1)(d)(iv) of the said Act in the memo of petition, and therefore, it could not be said that there was noncompliance of Section 81 of the said Act, or that the Election Petition was barred under any law muchless under the said Act.
(v) The petitioner has challenged the election of the Returned Candidate, who is the party respondent in the election petition, and therefore, there is no violation of Section 82 requiring dismissal of the petition under Section 86 of the said Act.
(vi) Relying upon the decision of the Supreme Court in case of Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandh, reported in 1987 (Supp.) SCC 93, Mr.Mangukiya submitted that the High Court has no jurisdiction to reject the election petition under Order VII Rule 11 of CPC at the preliminary stage, when the petition discloses cause of action, i.e. the grounds as contemplated under Section 100(1), and when the petition is not barred under any law.
(vii) Mr. Mangukiya also submitted that the procedure as contemplated in Section 12 of the said Act read with Page 12 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT Article 80 of the Constitution was required to be followed while filling up vacancies under Section 147 of the said Act, as the legislature has placed the general election and the byeelections at par, and that the practice and precedent followed by the Election Commission of holding separate elections for filling the casual vacancies was in violation of Section 80(4) of the Constitution read with Section 147 of the said Act.
7. Before adverting to the rival submissions made by the learned Advocates for the parties, it would be beneficial to refer to the relevant provisions of the said Act. Section 12 of the Act pertains to the issuance of Notification for biennial election to the Council of States, which falls under Part III pertaining to Notification of General Election. Section 12 reads as under:
" 12. Notification for biennial election to the Council of States. --For the purpose of filling the seats of members of the Council of States retiring on the expiration of their term of office the President shall, by one or more notifications published in the Gazette of India on such date or dates as may be recommended by the Election Commission, call upon the elected members of the Legislative Assembly or, as the case may be, the members of the electoral college, of each State concerned to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder :
Provided that no notification under this section shall be issued more than three months prior to the date on which the term of office of the retiring members is due to expire."Page 13 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT
8. Part VI of the said Act pertains to the disputes regarding elections and ChapterII thereof covering Sections 80 to 84 deals with the presentation of election petition to the High Court. Relevant part of Section 81 reads as under:
"Section 81 - Presentation of Petitions. (1) An election petition calling in question any election may be presented on one or more of the grounds specified in subsection (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within fortyfive days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates."
9. Section 82 pertains to the Parties to the Petition. The same reads as under:
"82. Parties to the petition.--A petitioner shall join as respondents to his petition:
(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition"
10. Section 84 pertains to the relief that may be claimed by the petitioner. It reads as under:
"84. Relief that may be claimed by the petitioner: A Page 14 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected."
11. Section 86 pertains to the Trial of the Election Petitions. The relevant part thereof 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 subsection 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 subsection (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."
12. Section 98 deals with the decision of the High Court at the conclusion of the trial of an election petition. It reads as under:
"98. Decision of the High Court: At the conclusion of the trial of an election petition the High Court shall make an order
(a) dismissing the election petition; or .
(b) declaring the election of all or any of the returned candidate void; or Page 15 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected."
13. Section 100 pertains to the grounds for declaring election to be void. The relevant part thereof reads as under:
"100. Grounds for declaring election to be void.-- Subject to the provisions of subsection (2) if the High Court is of opinion
(a)***
(b)***
(c) ***
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected
(i)***
(ii)***
(iii)***
(iv) by any non--compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.]
14. Part IX of the said Act pertains to the byeelections and Section 147 thereof deals with the provisions for filling up casual vacancies in the Council of States. The relevant part of Section 147 reads as under:
"147. Casual vacancies in the Council of States.--(1) When before the expiration of the term of office of a member elected to the Council of States, his seat becomes vacant or is declared vacant or his election to the Council of States is declared void, the Election Commission shall by a notification in the Gazette of India call upon the elected members of the Legislative Assembly or the members of the electoral college concerned, as the case may be, to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in Page 16 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT the notification and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy."
15. Since Mr. Mangukiya has placed reliance on Article 80 of the Constitution, it would be beneficial to reproduce the sane for ready reference. Article 80 reads as under:
"Article 80. Composition of the Council of States. The Council of States shall consist of--
(a ) twelve members to be nominated by the President in accordance with the provisions of clause (3); and
(b) not more than two hundred and thirtyeight representatives of the States and of the Union territories.
(2) The allocation of seats in the Council of States to be filled by representatives of the States and of the Union Territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule.
(3) The members to be nominated by the President under subclause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely: Literature, science, art and social service.
(4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote.
(5) The representatives of the Union territories in the Council of States shall be chosen in such manner as Parliament may by law prescribe."Page 17 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT
16. At the outset, it may be noted that the law pertaining to the right to vote or to stand as a candidate for election or to question an election as laid down by the Constitution Benches in case of N.P. Ponnuswami versus Returning Officer reported in AIR (1952) SC 64 and in case of Jagannath versus Jaswant Singh reported in AIR (1954) SC 210, has been followed in number of subsequent cases, as also in case of Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandh(supra) relied upon by Mr. Mangukiya, learned advocate for the opponent. The relevant para. 14 thereof reads as under:
"14. Before we consider various paragraphs of the election petition to determine the correctness of the High Court order we think it necessary to bear in mind the nature of the right to elect, the right to be elected and the right to dispute election and the trial of the election petition. Right to contest election or to question the election by means of an election petition is neither common law nor fundamental right, instead it is a statutory right regulated by the statutory provisions of the Representation of People Act, 1951. There is no fundamental or common law right in these matters. This is wellsettled by a catena of decisions of this Court in N. P. Ponnuswami v. Returning Officer, Jagan Nath v. Jaswant Singh, Jyoti Basu v. Debi Ghosal. These decisions have settled the legal position that outside the statutory provisions there is no right to dispute an election. The Representation of People Act is a complete and selfcontained Code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of the Civil Procedure Code are applicable to the extent as permissible by Section 87 of the Act. The scheme of the Act as noticed earlier would show that an election can be questioned under the statute as provided by Section 80 on the grounds as contained in Section 100 of the Act. ..."Page 18 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT
17. Thus, it is well established that right to contest an election or to question an election is neither a common law right nor a fundamental right, but is a statutory right governed by the provisions of the said Act. The law is also well settled to the effect that in an election petition, the pleadings have to be precise, specific and unambiguous, and that if the election petition does not disclose a cause of action, it has to be rejected in limine at the initial stage. Beneficial reference of the decision of the Supreme Court in case of Bhagwati Prasad Dixit Ghorewala Vs. Rajeev Gandhi, reported in (1986) 4 SCC 78 be made in this regard. It is also held by the Supreme Court in case of Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi(supra) that the cause of action questioning the validity of the election must relate to the grounds specified in Section 100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contemplated in Section 100 of the said Act and if the allegations do not conform to the requirement of Section 81, the election petition is required to be rejected under Section 86 of the said Act, read with Order VII Rule 11 of CPC, and the Court need not postpone the consideration of the petition at the subsequent stage of trial. In Udhav Singh versus Madhav Rao Scindia, reported in AIR 1976 SC 744, the Supreme Court had observed inter alia that failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off and the petition is liable to be summarily rejected for want of cause of Page 19 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT action.
18. In Azhar Hussain versus Rajiv Gandhi reported in AIR 1986 SC 1253, the Supreme Court while dealing with the issue as to whether the High Court has powers to reject the election petition under Order VII Rule 11, if it does not disclose complete cause of action, observed as under: "11. In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the a Udhav Singh versus Madhav Rao Scindia foresaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant N. Balkrishna & Anr. v. George Fernandez & Ors., [1969] 3 SCC 239, has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh v. Madhav Rao Scindia, [1977] 1 SCC. 511, the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground Page 20 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT of challenge must therefore fail."
19. In light of the aforestated settled legal position, if the facts of the Election Petition are examined, it appears that the Election Petition No. 3 of 2019 has been filed by the petitioner Gaurav H. Pandya against the returned candidate Mr.Subhramanyam Jaishankar Krishnaswamy, seeking the prayer to set aside the election of the respondent to the Council of States on the ground that it violated the provisions of the Constitution of India, of the said Act and the conduct of the Election Rules, and further seeking prayer to quash and set aside the notification bearing no. 100/CSGH/1/2019 (hereinafter referred to as "the first notification") dated 18.06.2019 and the notification bearing No. 100/CSGH/2/2019 (hereinafter referred to as "the second notification") dated 18.06.2019, and further seeking direction to hold joint election under single ballot allowing proportional representation through single transferable vote, of both the seats having fallen vacant on account of the election of Mr. Amit A. Shah and Mrs. Smriti Zubin Irani to the House of People. It may be noted that the applicant herein i.e. the respondent in the Election Petition Mr. Subhramanyam Jaishankar Krishnaswamy was declared elected as the member of the Council of States vide the result of the byeelection held pursuant to the first notification dated 18.06.2019 for the seat which had fallen vacant on 23.05.2019 on account of the election of Amitbhai A. Shah to the House of People. It may also be Page 21 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT noted that one Mr. Lokhandwala was declared elected as the member of the Council of States vide the result of the byeelection held pursuant to the second notification dated 18.06.2019 for the seat which had fallen vacant on 24.05.2019 on account of the election of Mrs. Smriti Zubin Irani to the House of People. It is not disputed that both the byeelections for the said two seats were held separately pursuant to the said two notifications issued separately by the Election Commission of India, in exercise of the powers conferred upon it under Section 147, Section 39(1) and Section 56 of the said Act. The election of the other returned candidate Mr. Lokhandwala has been challenged by one Smt. Chandrikaben Kanjibhai Chudasma by a separate Election Petition being No. 7 of 2019 in which identical prayers as contained in the present petition have been prayed for.
20. Now, so far as the present Election Petition is concerned, the petitioner has prayed for setting aside of both the notifications dated 18.06.2019 issued by the Election Commission of India, pursuant to which two separate elections were held and two returned candidates i.e. Mr. Subhramanyam Jaishankar Krishnaswamy the respondent in the present petition, and Mr. Lokhandwala have been declared elected, however the other returned candidate Mr. Lokhandwala has not been joined as the party respondent in the present petition. When both the elections held pursuant to the impugned two notifications have been challenged, with a prayer to set aside the election of the Page 22 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT respondent and the two notifications, and with further prayer to mandate to hold joint election, the nonjoinder of the other returned candidate is certainly a violation of the mandatory provision contained in Section 82 of the said Act. Section 82 clearly mandates that the petitioner shall join as the respondents to his petition, where the petitioner in addition to claiming declaration that the election of all or any of the returned candidates is void claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates. In the instant case, the petitioner having claimed the declaration that the election of the respondent returned candidate elected pursuant to the impugned notifications dated 18.06.2019 is illegal, nonjoinder of all the returned candidates would be not only in violation of the principles of natural justice but also in violation of Section 82 of the said Act. It may be noted that the petitioner Gaurav Pandya had also filed one Election petition being No. 04 of 2019 against both the returned candidates, seeking identical prayers as contained in the present petition, however the same was dismissed by the Court in limine vide order dated 13.09.2019, under Section 86(1) of the said Act, for noncompliance of Section 81(1) of the said Act. The said order has remained unchallenged so far.
21. It is significant to note that as per Section 80 of the said Act, no Page 23 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT election can be called in question except by an Election Petition presented in accordance with the provisions of Chapter II, Part IV of the said Act. As per the Section 2(1)(d) 'election' means an election to fill the seat or seats in either House of Parliament or in the House or either House of Legislature of a State other than the State of Jammu and Kashmir. Admittedly, two separate elections have been held pursuant to the two separate impugned notifications dated 18.06.2019 in respect of two separate seats having fallen vacant on account of two members of the Council of States having been elected as the members of House of People in May, 2019. Hence, the petitioner could not have challenged the two elections held separately pursuant to the two separate notifications by filing one common petition, and that too without joining all returned candidates as per requirement of Section 82 of the Act. As held by the Supreme Court in the case of Udhav Singh versus Madhav Rao Scindia (supra) the fundamental principle behind the provisions contained in Section 82 is of natural justice i.e. nobody should be condemned unheard, and that disobedience of this mandate inexorably attracts Section 86 which commands the High Court to dismiss the Election Petition which does not comply with the provisions of Section 82.
22. At this juncture a reference of Section 84 of the said Act also would not be out of place, which states inter alia that a petitioner may in addition to claiming a declaration that the election of all or any of Page 24 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. As such no relief to quash and set aside the notification issued under the said Act or to direct to hold joint election for both the seats as prayed for in the instant petition has been contemplated in Section 84. Pertinently, Section 98 of the said Act also states that at the conclusion of the trial of the Election Petition, the High Court shall make an order either dismissing the election petition; or declaring the election of all or any of the returned candidate to be void; or declaring the election of all or any of the returned candidate to be void and petitioner or any other candidate to have been duly elected. Thus, the relief to be claimed and the orders to be passed by the High Court in the Election Petition are categorically mentioned in Sections 84 and 98 respectively of the said Act. As stated earlier, the Constitution Benches of the Supreme Court in case of N.P. Ponnuswami versus Returning Officer (supra) and in case of Jagannath versus Jaswant Singh (supra), have held that the right to contest the election or to question the election by means of Election Petition is neither a common law right nor a fundamental right, instead it is a statutory right regulated by the statutory provisions of the Representation of People Act, 1951, and therefore outside the statutory provisions there is no right to dispute the election. Accordingly,the provisions of the Act also need to be strictly adhered to. The philosophy behind this principle as laid down by the Supreme Court in case of Jagannath versus Jaswant Singh (supra) Page 25 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT is that as per the sound principles of natural justice, the success of the candidate who has won in an election should not be lightly interfered with, and any petition seeking such interference must strictly conform to the requirements of the law. The Court therefore is of the opinion that the petitioner cannot claim any relief outside the purview of Section 84 of the Act, and the Court also can not pass any order outside the purview of Section 98 of the said Act.
23. It is again very pertinent to note that the petitioner could not have claimed the relief in respect of the election held pursuant to the second notification dated 18.06.2019 inasmuch as he was neither a candidate at such election nor an elector as contemplated in Section 81 of the said Act. It is mandatory under Section 81 that the election petition calling in question any election should be presented on one or more grounds specified in subSection (1) of Section 100 or Section 101 to the High Court by any candidate at such election or by any elector within 45 days from the date of election of the returned candidate. In the instant case, the petitioner was neither a candidate nor an elector to the election of Mr. Lokhandwala held pursuant to the second notification dated 18.06.2019. Therefore, the election of the returned candidate i.e. Mr. Lokhandwala elected pursuant to the second notification could not have been challenged by the petitioner under the guise of challenging both the notifications in the present Election Petition. Thus, there being gross noncompliance of the Page 26 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT Section 81 of the said Act also, the election petition deserves to be dismissed under Section 86 of the said Act in limine.
24. It is true that the Election Petition could be presented under Section 81 by a candidate or an elector on one or more of the grounds specified in subSection (1) of Section 100 and Section 101 of the said Act. Learned Advocate Mr. Mangukiya therefore relying upon the memo of the petition, had sought to submit that the petition has been filed on the grounds specified in Section 100(1)(d)(iv), however the Court does not find any substance in the said submission also. Apart from the fact that there is no such averment made in the petition to the effect that there was noncompliance with the provisions of the Constitution or of the Act or the Rules made thereunder as envisaged in Section 100(1)(d)(iv) of the said Act, the averments made in the petition show that the petitioner has challenged the practice and precedent followed by the Election Commission of India. The petitioner in para No. 22 of the Election Petition has averred and alleged that the consistent practice of the Commission to hold such byeelection as separate election is incorrect. After citing the judgments of Delhi High Court upholding such practice, the petitioner has opined that such view and the said practice of the Election Commission of India is consistently incorrect. According to the petitioner, the said view is based on misreading of the provisions of Sections 147 to 151 of the said Act. In para No. 23 of the memo of Page 27 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT the application it has been submitted by the petitioner that "the interpretation given by the Election Commission of India is that election for the casual vacancies is a matter of course, precedents and practice, are held separately even though the elections are declared by the common election programme and at the same time. This practice and precedent of the Election Commission of India is clear violence of the language used by the legislature in Section 147 of the said Act and against the constitutional commands contained in subArticle (4) of Article 80 of the Constitution of India". Again in para. No. 28, it has been stated that "the petitioner would submit that assuming for the sake of argument that the aforesaid practice and precedent have been followed by the Election Commission of India, the same is dehors the provisions of the constitutional commands and the provisions of the Act, therefore, the same would not give licence to the Election Commission of India to act against the provisions of the Constitution and the scheme of the Act."
25. From the aforestated averments made in the petition, it clearly transpires that the petitioner has not specifically alleged non compliance with the provisions of the Constitution or of the Act or the Rules made thereunder so as to bring the case under Section 100(1)
(d)(iv) of the said Act, however, has alleged that the consistent practice and precedent followed by the Commission in holding separate elections for the casual vacancies is incorrect and contrary to the Page 28 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT legislative intent contained in subArticle (4) of Article 80 of the Constitution read with Section 147 of the said Act. In the opinion of the Court, such averments and allegations made in the petition could not be said to be a ground with regard to the noncompliance of the specific provisions of the Constitution or of the Act as envisaged in Section 100(1)(d)(iv) of the said Act. The petitioner was obliged to specify in the petition not only that there was noncompliance with the specific provisions of the Constitution or the Act or the Rules made thereunder, but also to allege that the result of the election, in so far as it concerned the respondentcandidate, was materially affected by such noncompliance. The challenge to the practice and precedent consistently followed by the Commission in holding separate elections for the casual vacancies of the Council of States could not be construed as the noncompliance of the provisions of the Constitution or of the Act, for the purposes of Section 100(1)(d)(iv) of the said Act. The Election Petition calling in question the election has to be presented on one or more of the grounds specified in sub Section (1) of Section 100 as per Section 81. Even if it is held that nonmentioning of Section 100(1) of the Act may not be crucial, the cause of action questioning the validity of the election relating to the grounds specified in Section 100(1)(d)(iv) has to be disclosed. Failure to mention such grounds would tantamount to noncompliance with the provisions of Section 81 requiring the High Court to dismiss the Election Petition at the threshold under Section 86 of the said Act. Page 29 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT
26. As held by the Supreme Court in case of Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandh(supra) the cause of action questioning the validity of the election must relate to the grounds specified in Section 100 of the said Act. The pleadings in the Election Petition have to be precise, specific and unambiguous and if the petition does not specifically disclose the cause of action, and if the allegations contained in the petition do not set forth the ground of challenge as contemplated in Section 100, the election petition must be rejected under Order VII Rule 11 of CPC, and the Court need not postpone the consideration of the petition for subsequent stage of trial. The failure to plead even a single material fact is required to be construed as an incomplete cause of action, and the petition is liable to be summarily rejected for want of cause of action. In the instant case, in absence of specific allegation with regard to the noncompliance of any specific provisions of the Constitution or of the said Act or Rules made thereunder, it could not be said that the petition is presented on the grounds contemplated in Section 100(1)(d)(iv) of the said Act as sought to be submitted by learned Advocate Mr. Mangukiya.
27. The bone of contention raised by the learned Advocate Mr. Mangukiya for the election petitioner that the legislature has placed the general election and byeelection at par, and that the practice and Page 30 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT precedent of Election Commission of India in holding separate elections for casual vacancies is not in consonance with the constitutional command contained in Article 80(4) of the Constitution and is against Section 147 of the said Act, has also no force. It is pertinent to note that Article 80 pertains to the 'Composition of the Council of States' and subArticle (4) states that the representatives of each State in the Council of States shall be elected by the elected members of the legislative assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. At this juncture, it is pertinent to note that Article 101(1) pertains to 'the vacation of seats', and it states that no person shall be a member of both the Houses of Parliament and provisions shall be made by the Parliament by law for the vacation by the person who is chosen a member of both the Houses of his seat in one House or the other. Now, in the light of the said provisions contained in the Constitution, if the relevant provisions of the said Act are considered, Section 12 of the said Act pertains to the 'notification to be issued by the President for the purpose of filling the seats of the members of the Council of States retiring on the expiration of their term of Office', Section 69 pertains to the 'vacation of seats by persons already members of one house on election to the other House of Parliament', and Section 147 pertains to the 'casual vacancies in the Council of States'. As per Section 147 of the said Act, when before the expiration of the term of office of a member elected to the Council of States, his Page 31 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT seat becomes vacant or is declared vacant or his election to the Council of States is declared void, the Election Commission has to issue the notification as mentioned therein for filling up the said vacancy so caused. From the bare reading of the said Section 147, which falls under Part IX relating to byeelections, it clearly transpires that the said provision is applicable to the casual vacancy which arises before the expiration of the term of Office of a member elected to the Council of States, whereas Section 12 which falls under Part III relating to Notification of General Election, would be applicable for the purpose of filling the seats of the members of the Council of States retiring on the expiration of their term of Office. Since, both the said Sections i.e. Section 12 and 147, operate in different situations, one for the purpose of filling up the seats of members retiring on the expiration of their term of office and the other for the purpose of filling up the seat before the expiration of the term of Office of a member elected to the Council of States, the submission made by the learned Advocate Mr. Mangukiya that the procedure as contemplated in Section 12 of the Act read with Article 80(4) of the Constitution is required to be followed for the purpose of filling up vacancies under Section 147, cannot be accepted. The submission of Mr. Mangukiya that the practice and precedent of the election Commission to hold separate election for each separate seat is bad and incorrect, has also no legs to stand, in absence of any mandatory provision contained in the Act or in the Constitution to fill up all casual vacancies by a single Page 32 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT byeelection.
28. In a similar situation, the Division Bench of the Bombay High Court in an Appeal being No. 796 of 1957 titled Shridhar Mahadeo Joshi versus Rajbhoj Pandurang Nathoji arising out of the order passed in Election Petition, decided on 17.12.1957, wherein also the noncompliance with the provisions of the Constitution and of the respondent Act under Section 100(1)(d)(iv) of the said Act was alleged, had held in para. No. 6 as under:
" The next contention is about the question of proportional representation. The position under the Constitution is that under Article 80, which deals obviously with the general election, the members of the Legislative Assembly have to elect the quota given to them in the Council of States by the system of proportional representation by means of single transferable vote, and what is urged by Mr. Gokhale is that by having a single byeelection to fill Dr. Ambedkar's vacancy this system could not be resorted to and therefore many persons who might otherwise have been candidates did not think it worth their while to fight the election. It is suggested that with a single byeelection the minorities had no hope against the majority party and no member of the minority party would think of fighting the election against a member of the majority party. There is some force in this argument and we might have been inclined to hold that this might materially affect the result of the election, provided it was incumbent upon the Election Commission to fill all the four vacancies by one byeelection. But the position in law is clear and the provisions with regard to byeelections to the Council of States are governed by Section 147 of the Representation of the People Act, and it is incumbent upon the Election Commission to fill up a casual vacancy in the Council of States in the manner laid down in that section. Therefore, as soon as there was a casual vacancy caused by the death of Dr. Ambedkar, that causal vacancy had to be filled up in the manner laid down in that section. It was a coincidence that subsequent to Dr. Ambedkar's death there Page 33 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT were three other casual vacancies and each one of these vacancies had also to be filled up in the manner laid down in section 147. But there is no provision in law that if there are four causal vacancies to be filled up, they must be filled up by a single byeelection, and in the absence of any such provision we cannot accede to the contention of the petitioner that it was incumbent upon the Election Commission to fill these four vacancies by one bye election."
29. From the entire tenor of the Election Petition it transpires that the same has been filed challenging the practice, precedents and the powers of the Election Commission of India to issue the impugned two separate notifications and to hold two separate elections for filling up two casual vacancies. As held earlier, Mr. Mangukiya had failed to point out any provision of the Constitution or of the Act requiring the Election Commission to hold a single byeelection for filling up all casual vacancies. Under the circumstances, it could not be said that there was noncompliance of provision of the Constitution or of the Act, giving rise to cause of action relating to the ground contemplated in Section 100(1)(d)(iv) of the Act to file the Election petition. The non compliance of the provisions of the Constitution or of the provisions of the said Act, constituting the cause of action has to be specifically pleaded, and the interpretation of the petitioner of a particular provision of the Constitution or of the Act in a particular manner cannot be termed as the noncompliance of such provision for the purpose of challenging the election. The Court therefore has no hesitation in holding that the petitioner having failed to disclose the cause of action relating to any of the grounds contemplated in Section Page 34 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020 C/EA/18/2019 CAV JUDGMENT 100(1), there is noncompliance of the Section 81(1), rendering the Election Petition liable to be dismissed under Section 86 of the said Act. There being also noncompliance of Section 82, as held earlier, the petition is liable to be dismissed on that ground also under Section 86 of the said Act.
30. For the reasons stated above the application being Election Application No. 18 of 2019 filed by the applicantoriginal respondent deserves to be allowed and is accordingly allowed, and the Election Petition being Election Petition No. 3 of 2019 filed by the election petitioner deserves to be dismissed and is accordingly dismissed.
(BELA M. TRIVEDI, J) SINDHU NAIR Page 35 of 35 Downloaded on : Wed Feb 05 00:47:27 IST 2020