Gujarat High Court
Election Officer vs Parbatbhai Savabhai Patel on 27 February, 2020
Author: V. P. Patel
Bench: V.P. Patel
C/EA/2/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION APPLICATION NO. 2 of 2020
IN
R/ELECTION PETITION NO. 5 of 2019
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ELECTION OFFICER
Versus
PARBATBHAI SAVABHAI PATEL
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Appearance:
MR. SAHIL M SHAH(6318) for the Applicant(s) No. 1
for the Respondent(s) No. 14,15
MR .B A PATEL(5281) for the Respondent(s) No. 1
MR RJ GOSWAMI(1102) for the Respondent(s) No. 1
MR ROHIT N PATEL(6045) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 10,11,12,13,2,3,4,5,7,8,9
NOTICE UNSERVED(8) for the Respondent(s) No. 6
PARTY IN PERSON(5000) for the Respondent(s) No. 16
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CORAM: HONOURABLE MR.JUSTICE V.P. PATEL
Date : 27/02/2020
ORAL ORDER
1. The present Applicant / Original Respondent No.14 - Election Officer, Banaskantha in Election Petition No.5 of 2019 has filed the present Election Application for the prayers as mentioned in paragraph 6 and 7, which reads as under:
"6. In view of the specific statutory provisions contained in the Representation of the People Act, 1951 and the above mentioned decisions of the Hon'ble Courts, it is humbly submitted that the Applicant herein may be deleted as a party respondent and as such his name should be struck off from the array of Respondents.
7. The Applicant therefore prays that this Hon'ble Court may be pleased to:
(A) Allow the present application;
(B) Delete the Applicant and to strike out his name from the array of parties in Election Petition no.5 of 2019; (C) Pass such other and further orders as may be deemed necessary and proper in the facts and circumstances of the case."Page 1 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER
2. Heard learned Advocate Mr. Sahil M. Shah for the Applicant and learned Advocate Mr. R.J.Goswami for Opponent No.1. Though Notice is duly served to Opponent Nos. 2 to 13, they have chosen not to remain present. No Notice is also served to Opponent Nos. 14 and 15. Heard Opponent No.16 Madhu Nirupaben Natvarlal appearing as party-in-person.
Arguments on behalf of the Applicant:
3. Learned Advocate for the Applicant has submitted that Madhu Nirupaben Natvarlal - Party-in-Person in Election Petition No.5 of 2019 (hereinafter referred to as "the Election Petition") has impleaded amongst others the present Applicant - Election Officer, Banaskantha as Respondent No.14 in the Election Petition. It is submitted that there is no requirement to join the present Applicant Election officer in the said Election Petition. That the joining and mis-joinder of parties is not regulated by the Code of Civil Procedure (hereinafter referred to as "the Code") as the Representation of the People Act, 1951 (hereinafter referred to as "the RP Act") is a self-contained Code. As per Section 82 of the Act, there is a provision as to who may be joined as party. No other person is required to be joined as party except candidates who contested the election. Learned Advocate for the Applicant has referred to and relied upon several judgments which will be discussed herein after.
Argument on behalf of Opponents:
4. Learned Advocate Mr. R.J.Goswami for Opponent No.1 has argued that the present Election Application does not disclose the provision of law as to under which provision the Application is preferred. That if the provision of law is not mentioned, the Application is not tenable in the eye of law. It is further submitted Page 2 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER that as per Section 87 of the Act, the Election Petition is regulated by the Code and there are certain provisions in the Code with regard to the fact that as to who may be joined as party. It is further submitted that initially the Notice was issued to Respondent No.14 in the Election Petition (the Applicant herein). At the time of issuance of Notice, the Court has applied its mind and therefore it is not permissible under law to delete the present Applicant. He therefore requested to dismiss the Application.
5. Ms. Madhu Nirupaben Natvarlal - Opponent No.16 herein, appearing as party-in-person has argued that there is no provision in the Act to file Application for deletion of party from the proceedings. She argued that the Applicant has not mentioned any provision of law under which the present application is filed. It is further argued that the Application is defective due to joining of party. That the present Application is signed by the learned Advocate for the Applicant and no signature is made by the Applicant i.e. the Election Officer. That the Application is affirmed by one Sandip J. Sagele (I.A.S.), Returning Officer, 2-
Banaskantha Parliamentary Constituency & Collector, Banaskantha in capacity of Collector and not as Election Officer. It is further argued that no court fee tickets are affixed on the Affidavit. That one rupee ticket is required to be affixed on the affidavit. Therefore the Application is not tenable in the eye of law. It is further submitted that the judgments referred to and relied upon by the learned Advocate for the Applicant are not applicable to the facts of the present case. That the Election Petition contain the allegations against the Applicant - Election Officer herein. Therefore, the Applicant - Election officer is required to be joined as party Respondent as per the provisions of Order 1 Rule 3 of the Code. She therefore requested to dismiss the Page 3 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER present Application.
6. This court has considered the arguments advanced by the learned Advocates for the parties as well as perused the judgment cited at bar. The discussion is required on following points:
[A] Applicability of the Code.
[B] Rights - Statutory Right vis-a-vis Fundamental Right /
Equitable Right.
[C] Who may be joined as party.
[D] Dealing with corrupt practice.
[E] Other points;
(i) Non-mentioning of legal provision, etc.
(ii) No signature of Applicant on Application.
(iii) No court fee stamp on the Affidavit.
[A] Applicability of the Code:
7. Learned Advocate for the Applicant submitted that the Code is applicable only up to certain extent. The whole 'Code' is not applicable where there is specific provision in the 'RP Act'. He has relied upon the judgment reported in case of Jyoti Basu and Ors. v. Debi Ghosal and ors. reported in (1982) 1 SCC 691.
8. One of the argument of the Opponent is that as per Order 1 Rule 3 & 10 of the Code, necessary party be added if court finds that it is necessary for determination of the real matter in disputes. There is no limit for that purpose.
9. It would be beneficial to quote hereunder the provision of Section 87(1) of the RP Act and Section 4(1) of the C.P. Code, which reads thus:
Page 4 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER9.1 Section 87(1) of the Representation of the People Act:
"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 ... "
9.2 Section 4(1) of C.P. Code:
"4. Savings. - (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force."
10. The Hon'ble Apex Court has observed in case of Jyoti Basu & Ors. (supra) in paragraph 10 as under:
"10. It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the Court 'effectually and completely to adjudicate upon and settle all questions involved' may be joined as respondents to the petitions. The questions is not whether the Civil Procedure Code applies because it undoubtedly does, but only 'as far as may be' and subject to the provisions of the Representation of the People Act, 1951 and the rules made thereunder. Sec. 87 (1) expressly says so. The question is whether the provisions of the Civil Procedure Code can be invoked to permit that which the Representation of the People Act does not. Quite obviously the provisions of the Code cannot be so invoked. In Mohan Raj v. Surendra Kumar Taparia & Ors., this Court held that the undoubted power of the Court (i.e. the Election Court) to permit an amendment of the petition cannot be used to strike out allegations against a candidate not joined as a respondent so as to save the election petition from dismissal for non- joinder of necessary parties. It was said, "The Court can order an amendment and even strike out a party who is not necessary. But where the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of Page 5 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder. When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as a curative means to save the petition."
Again, in K. Venkateswara Rao & Anr. v. Bekkam Narasimha Reddi and Ors., it was observed:
"With regard to the addition of parties which is possible in the case of a suit under the provisions of O.l r. 10 subject to the added party's right to contend that the suit as against him was barred by limitation when he was added, no addition of parties is possible in the case of an election petition except under the provisions of Sub-sec. (4) of Section 86".
11. Learned Advocate for the Appellant has relied upon full bench judgment -rendered in 1972 (1) ILR P&H in case of Iqbal Singh v. Gurdasing Badal wherein it is held in para 9 as under:
"(2) One of the essentials of the election law is also to safeguart the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the Tribunal entrusted with the trial of the case is not affected.
[See Jagan Nath's case AIR 1954 SC 210] (5) "The true scope of the limitation enacted in section 90(2) [now section 87(1) on the application of the procedure under the Civil Procedure Code is that when the same subject matter is covered both by a provision of the Act or the rules and also of the Civil Procedure Code, and there is a conflict between them, the former is to prevail over the latter. This limitation cannot operate, when the subject-matter of the two provisions is not the same." [see Harish Chandra's case (9), (supra)]. In other words, where the field is occupied by the Representation of the People Act, the Page 6 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER provisions of the Code of Civil Procedure covering that field will not operate and will yield to the provisions of the Representation of the People Act."
12.The Hon'ble Apex Court in a judgment in case of Michael B. Fernades v. C.K.Jaffer Sharief and others reported in (2002) 3 SCC 521, has observed as under:
"An argument had been advanced in that case that even if somebody may not be a necessary party under Section 82 of the Act, but yet he could be added as a proper party as provided in Order I Rule 10 of the Code of Civil Procedure. But the Court rejected that contention on a finding that the provisions of the Civil Procedure Code apply to election disputes only as far as may be and subject to the provisions of the Act and any rules made thereunder and the provisions of the Code cannot be invoked to permit which is not permissible under the Act. It was in that context the Court further observed that the concept of 'proper parties' is and remain alien to an election dispute under the Act."
13. As per Section 87 of the Act the petition is required to be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code to the trial of suits but this application of the Code is subject to the provisions of the Act. As per Section 4 of the Code, it is provided that in absence of specific provision to the contrary nothing in the Code and where there is provision in the local or special law that the same is required to be applied irrespective of the fact that there is a provision in the Code. Considering the special provision i.e. Section 87 of the Act and Section 4 of the Code and the ratio laid down in above judgment, it is settled position of law that special provision for impleading the Respondent under Sections 82 and 86(4) of the RP Act is provided. Therefore the provision as regards to the Code will be silent. Provision of CP Code cannot be resorted where specific provision under RP Act is available.
[B] Rights - Statutory Rights vis-a-vis Fundamental Rights / Page 7 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER Equitable Rights:
14.Learned Advocate for the Applicant has submitted that while dealing with the election petitions, the right of the parties are limited because the matters as regards to the elections are governed by the RP Act. It is a statutory right and not a right under common law or a fundamental right or a equitable right.
15.Opponent No. 16 - Madhu Nirupaben Natvarlal - Party-in-Person has submitted that she has a right to join the Applicant District Election Officer as Party Respondent in the Election Petition.
16. He has relied upon the judgment in case of Jyoti Basu (supra). The Hon'ble Apex Court has observed in paragraph 8 as under:
"A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Page 8 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER Legislature except as provided by the Representation of the People Act 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self contained code within which must be found any rights claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?"
17.The Hon'ble Apex Court in a judgment in case of Iqbal Singh v. Gurdas Singh Badal and ors. reported in 1972(1) I.L.R. Punjab and Haryana has observed as under:
"(9) For a proper determination of the questions it will be profitable to keep in view certain settled propositions of law:-
(1) The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest 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." [See Jagan Nath v.
Jaswant Singh].
(2) One of the essentials of the election law is also to safeguart the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the Tribunal entrusted with the trial of the case is not affected. [See Jagan Nath's case AIR 1954 SC 210] (3) The right to elect is statutory and so are all the processes connected with the election. There is no element of any common law right in the process of election. The trial of an election Page 9 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER petition is not the same thing as the trial of a suit. [See K.V.Rao v. B.N.Reddi AIR 1969 SC 872]
18. The aforesaid argument advanced by Opponent No.16 is required to be rejected in view of the ratio laid down by the Hon'ble Apex Court in Jyoti Basu's case (supra). The Hon'ble Apex Court has held that the right to elect, right to contest , right to dispute an election are the statutory rights and it cannot be said to be a fundamental right or a right under the common law. Therefore the Act is governed to deal with the rights under the election, no other right except under the RP Act is available in the election petition.
[C] Who may be joined as party:
19.Learned Advocate for the Applicant has submitted that there is no need to join the Returning Officer 2 - Banaskantha Parliamentary Constituency & Collector, Banaskantha as Party as Respondent in the Election Petition. He submitted that as per Section 82 of the Act only the candidate can be joined as party and the officers of the Election Commission are not required to be joined as Party- Respondent.
20.Against the aforesaid submission, the Opponent No.16 - Madhu Nirupaben Natvarlal - Party-in-Person has submitted that as per Order 1 Rule 7 of the Code where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join the defendant and therefore the Election officer is required to be joined as Party-Respondent.
21.Before dealing with the question as regards to who may be joined as party, it will be beneficial to quote hereunder Section 82 and 86(4) of the Act which reads as under:
"82. Parties to the petition.--A petitioner shall join as Page 10 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER respondents to his petition -
(a) 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; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
86(4) Trial of election petitions: (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation.--For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition."
22.Learned Advocate for the Applicant has referred to and relied upon the judgment in case of Jyoti Basu (supra) for the above point also. The Hon'ble Apex Court in paragraph 9 and 13 has observed as under:
"9. Sec. 81 prescribes who may present an election petition. It may be any candidate at such election; it may be any elector of the constituency; it may be none else. Sec. 82 is headed "Parties to the petition" and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of Sec. 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Sec. 86 (4) enables any candidate not already a respondent to be joined as a respondent. There is no other provision dealing with question as to who may be joined as respondents. It is significant that while Page 11 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER clause (b) of Sec. 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under Sec. 86 (4), any other person cannot, under that provision seek to be joined as respondent, even if allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the statute, how can the notion of 'proper parties' enter the picture at all ? We think that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Sec. 82 and Sec. 86 (4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents.
13. In view of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition. The appeal is therefore, allowed with costs and the names of the appellants and the seventh respondent in the appeal are directed to be struck out from the array of parties in the election petition. We may mention that in arriving at our conclusion we have also considered the following decisions cited before us: S.B. Adityen & Anr. v. S. Kandaswami & Ors.,(1) Dwijendra Lal Sen Gupta v. Herekrishna Koner,(2) H.R. Gokhale v. Bharucha Noshir C. & Ors.,(3) and S. Iqbal Singh v. S. Gurdas Singh Badal & Ors."
23.Learned Advocate for the Appellant has also referred to the judgment in (2002) 3 SCC 521 in case of Michael B. Fernandes v. C.K.Jaffer Sharief wherein it is held in paragraph 4 as under:
"On a plain reading of Section 82, which indicates as to the person who can be joined as a respondent to an election petition, Page 12 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER the conclusion is irresistible that the returned candidate, the candidate against whom allegations of any corrupt practice have been made are to be joined as party respondent when declaration is sought for holding the election of the returned candidate to be void and when a prayer is made as to any other candidate to be declared to be duly elected, then all the contesting candidates are required to be made party respondents. On a literal interpretation of the aforesaid provisions of Section 82, therefore, it can be said that an election petition which does not make the persons enumerated in Section 82 of the Act, as party respondents, is liable to be dismissed. The two decisions of this Court directly on the question are the cases of Jyoti Basu and Ors. vs. Debi Ghosal and Ors., 1982(1) S.C.C. 691 and B. Sundara Rami Reddy vs. Election Commission of India and Ors., 1991 Supp.(2) S.C.C. 624. In the former case, Chinnappa Reddy, J, speaking for the Court, held that right to elect or to be elected or dispute regarding election are neither fundamental rights nor common law rights but are confined to the provisions of the Act and the Rules made thereunder and consequently, rights and remedies are all limited to those provided by the statutory provisions. On the question of Joinder of parties, referring to Sections 82 and 86(4) of the Representation of the People Act, it was held that the contest of the election petition is designed to be confined to the candidates at the election and all others are excluded and, therefore, only those may be joined as respondents to an election petition, who are mentioned in Section 82 and 86(4) and no others."
23.1 It is further observed by the Hon'ble Apex Court in the same paragraph as under:
"Following the aforesaid decision, a learned Single Judge of the Bombay High Court in the case of H.R. Gokhale vs. Bharucha Noshir C. and Ors., A.I.R. 1969 Bombay 177, had also observed that the observations of Shah, J in Ram Sewak Yadav's case, AIR 1964 SC 1249 in paragraph (6) is not intended to lay down that the Returning Officer can in no event be a proper party to an election petition. But both these aforesaid decisions of the Calcutta High Court and Bombay High Court had been considered by this Court in Jyoti Basu case and the Court took the view that the public policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Page 13 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER Act which does not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86(4). The Court also in paragraph (12) considered the consequences if persons other than those mentioned in Section 82 are permitted to be added as parties and held that the necessary consequences would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Section 86(6) of the Act. In the aforesaid premises, we reiterate the views taken by this Court in Jyoti Basu's case and reaffirmed in the latter case in B. Sundara Rami Reddy and we see no infirmity with the impugned judgment, requiring our interference under Article 136 of the Constitution. This appeal accordingly fails and is dismissed."
24.Considering the ratio laid down by the Hon'ble Apex Court, it is settled legal position that u/s 82 and 86(4) of RP Act, only candidate to the election can be joined as party and no others. There is no doubt that the Election Officer is not required to be joined as Party - Respondent in the Election Petition. If any allegation is made against the officer concerned, that could be dealt with at the conclusion of the trial as provided under Sections 99 and 100 of the Act.
[D] Dealing with corrupt practice:
25.Opponent No.16 - Madhu Nirupaben Natvarlal - Party-in-Person has submitted that she has made allegations in the Election Petition as regards the corrupt practice adopted by the District Election Officer and therefore the Applicant herein is required to be joined as Party-Respondent in the Election Petition.
26.Learned Advocate for the Applicant has submitted that even if the allegation as regards to corrupt practice is made, the Act provides sufficient remedy under Sections 99 and 100.
27.It will be beneficial to quote hereunder Section 99 and 100 of the Page 14 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER Act which reads thus:
"99. Other orders to be made by the High Court].--
(1) At the time of making an order under section 98 the High Court] shall also make an order(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording--
(i) finding whether any corrupt practice has or has not been proved to have been committed at election, and the nature of that corrupt practice; and
(ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and
(b) fixing the total amount of cost payable and specifying the persons by and to whom costs shall be paid: Provided that a person who is not a party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless--
(a) he has been given notice to appear before the High Court and to show cause why the should not be so named; and
(b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by the High Court and has given evidence against him, of calling evidence in his defence and of being heard. (2) In this section and in section 100, the expression "agent" has the same meaning as in section 123.
100. Grounds for declaring election to be void.-
(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate 5by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or Page 15 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER the reception of any vote which is void, or
(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.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court] is satisfied--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent], of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void."
28.Learned Advocate for Applicant has once again relied upon the judgment in case of Jyoti Basu (supra) referring to paragraph 11 which reads as under:
"11. The matter may be looked at from another angle. The Parliament has expressly provided that an opportunity should be given to a person who is not a candidate to show cause against being 'named' as one guilty of a corrupt practice. Parliament however, has not thought fit to expressly provide for his being joined as a party to the election petition either by the election- petitioner or at the instance of the very person against whom the allegations of a corrupt practice are made. The right given to the latter is limited to show cause against 'named' and that right opens up for exercise when, at the end of the trial of the election petition notice is given to him to show cause why he should not be 'named'. The right does not extend to participation at all stages and in all matters, a right which he would have if he is joined as a party at the commencement. Conversely the election petitioner cannot by joining as a respondent a person who is not a candidate at the election subject him to a prolonged trial of an election petition Page 16 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER with all its intricacies and ramifications. One may well imagine how mischievous minded persons may harass public personages like the Prime Minister of the country, the Chief Minister of a State or a political leader of a national dimension by impleading him as a party to election petitions, all the country over. All that would be necessary is a seemingly plausible allegation, casually or spitefully made, with but a facade of truth. Everyone is familiar with such allegations. To permit such a public personage to be impleaded as a party to an election petition on the basis of a mere allegation, without even prime facie proof, an allegation which may ultimately be found to be unfounded, can cause needless vexation to such personage and prevent him from the effective discharge of his public duties. It would be against the public interest to do so. The ultimate award of costs would be no panacea in such cases, since the public mischief cannot be repaired. That is why public Policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which does not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86 (4). It is not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the trial of an election petition, after evidence has been given, the Court finds that there is sufficient material to hold a person guilty of a corrupt practice, the Court may then issue a notice to him to show cause under Sec. 99 and proceed with further action. In our view the legislative provision contained in Sec. 99 which enables the Court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be 'named' is sufficient clarification of the legislative intent that such person may not be permitted to be joined as a party to the election petition."
29.As per Section 99 of the Act, the High Court is empowered to make an order at the time of final disposal of the petition that where any charge is made in the petition of any corrupt practice having been committed at the election, the finding to the effect of corrupt practice and nature of that corrupt practice is required to be recorded. The High Court can issue notice to the person who had Page 17 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER been held guilty at the trial of any corrupt practice. Such officer is required to be given notice. He has been given chance to cross- examine any witness who have already been examined during trial and adduce evidence. The High Court will decide under Section 100 of the Act accordingly.
[E]Other Points:
(E-I) Non-mentioning of legal provision:
30.Learned Advocate for Opponent No.1 has submitted that the Applicant has not mentioned as to under which provision the Application is filed. Opponent No.16 - Party-in-Person has supported the contention raised by learned Advocate for Opponent No.1.
31.This argument is to be disallowed in view of the judgment of the court as under.
31.1 Learned Advocate for the Applicant has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Challamane Huchha Gowda v. M.R. Tirumala and anr.
reported in (2004) 1 SCC 453. The Hon'ble Apex Court in paragraph 10 has observed as under:
"It is also a settled position of law that a mere non-mentioning or wrong mentioning of a provision in an application is not a ground to reject an application, since, there is no bar in treating the objection (filed in the present case) as an application to setting aside the sale. Hence the setting aside of sale by the execution Court is perfectly in tune with the Code. In this view of the matter it is not necessary to look into other aspects agitated by the contesting parties not to look into the authorities cited before us.Page 18 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER
Accordingly the order of the High Court affirming that of the First Appellate Court is set aside and order of the Executing Court is restored."
31.2 Learned Advocate for the Applicant has further referred to a Non-Reportable judgment of the Hon'ble Apex Court in Civil Appeal No. 10521 of 2013 in case of Pruthvirajsinh Nodhubha Jadeja (D) By Lrs. v. Jayeshkumar Chhakaddas Shah & Ors. wherein the Hon'ble Apex Court in paragraph 7 and 8 has observed as under:
"7. According to us, the application was wrongly filed under Order I Rule 10 CPC and it should have been filed Order XXII Rule 10 CPC which reads thus:
"ORDER XXII : DEATH, MARRIAGE AND INSOLVENCY OF PARTIES xxx xxx xxx
10. Procedure in case of assignment before final order in suit. (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of subrule (1)."
8. It is well settled law that mere nonmentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the court."
[E-II] No signature of applicant on application.
32.Opponent No.16 - Madhu Nirupaben Natvarlal - Party-in-Person has submitted that the Application is not signed by the Applicant but it is signed by the learned Advocate for the Applicant. This is not permissible in law. Therefore Application is not required to be entertained.
Page 19 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER33.On perusing the Application more particularly, page 19 and 20, it is true that the Application is signed by learned Advocate Mr. Sahil M. Shah. The same is duly affirmed before the Executive Magistrate, Palanpur. The Affidavit is duly sworn by Sandip J. Sagale (I.A.S.), Returning Officer, 2- Banaskantha Parliamentary Constituency & Collector, Banaskantha on page 19 and 20 of the Application which reads thus:
"AFFIDAVIT I, Sandip J. Sagale (I.A.S.), Returning Officer, 2-Banaskantha Parliamentary Constituency & Collector, Banaskantha having address at Collector Office, Banaskantha-Palanpur, Indian Inhabitant, aged about 45 years, do hereby on solemn affirmation state that what is stated in Para-1 to 6 are statement of facts true to my knowledge, Paragraph 7 contains prayers and rest contains submissions which are true to my belief and information received, which I believed to be true.
Solemnly affirmed at Palanpur on this 18 day of November 2019."
34.The Hon'ble Court in case of Pam Pharmaceuticals v. Richardson Vicks Inc. & Ors. reported in 2001 (1) GLR 125 has observed in paragraph 37, 38 as under:
"37. Learned Advocate Shri Shah has made several super- technical submissions with regard to signing of the plaint, carrying out of the amendment and signing of certain documents only by one of the plaintiffs. I consider these arguments and submissions to be of super-technical nature. It is a well settled legal position that as far as possible, no proceeding in a Court of Law should be allowed to be defeated on mere technicalities because all rules of procedure are intended to advance justice and not to defeat it. The Hon'ble Supreme Court has observed in case of Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 that -
"Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its Page 20 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER ends : not a penal enactment for punishment and penalties; not a thing designed to trip people up. ... ... ..."
38. The above-referred well established legal position clearly reveals that the Court has to give more importance to the substance and not to the procedural law while administering justice. Signing here or there with or without permission of the Court in the matter of amending the plaint or in the matter of signing application are all procedural aspects. Everywhere, at least one of the plaintiffs has signed."
35.The Hon'ble Apex Court in a judgment in case of United Bank of India v. Naresh Kumar and Ors. reported in AIR 1997 SC 3 has observed in paragraph 8, 9 and 10 as under:
"8. In this appeal, therefore, the only question which arises for consideration is whether the plaint was duly signed and verified by a competent person.
9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by against a corporation the Secretary or any Director or other Principal officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of Page 21 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer.
36.Considering the fact that the Application is not signed by the Applicant but contents are duly affirmed by the Applicant. Thus the Applicant has endorsed the contents made in the Application. At the most non-signing the Application can be said to be a procedural irregularity but not an illegality. Therefore, merely that the Applicant has not signed the Application cannot be a ground for rejection of the Application.
(E-III) No court fee stamp on affidavit:
37.It is further submitted by Opponent No.16 - Party-in-Person that the Application is supported by Affidavit and the Affidavit is not attached with required court fee stamp. The Opponent No. 16 has submitted that an amount of one rupee stamp is required to be affixed on the affidavit.
38.Here in this case Opponent No.16 - Party-in-Person has not shown Page 22 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER any of legal provision or rules regarding stamp required on affidavit. As per Order 7 Rule 11(c) of the Code, if the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped the plaint can be rejected but the Court has to give opportunity to supply the requisite stamp paper within time to be fixed by the court. If the plaintiff fails to do so, therefore the plaint can be rejected. In spite of this, the argument is required to be rejected in view of proviso (a) and (e) of Section 35 of the Indian Stamp Act 1899, which reads as under:
"35. Instruments not duly stamped inadmissible in evidence, etc.-- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that--
(a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act."
39.Further, The objection raised by Opponent No.16 is a very minute procedural defect in nature. It can be said to be only an irregularity. For such minor procedural irregularities the justice should not be frustrated. This view if fortified from the judgment in case of Sangram Singh v. Election Tribunal, Kotah and anr.
Page 23 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDERreported in AIR 1955 SC 425. The Hon'ble Apex Court in paragraph 16 has observed as under:
"Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it."
40.In view of the principles enunciated in Sangram Singh (supra), the objection as regards to (i) non-mentioning of legal provision in application (ii) non-signing of application by applicant (iii) non adherence of court fees of Re. One on affidavit are required to be overruled.
41.Opponent No.16 - Madhu Nirupaben Natvarlal - Party-in-Person has referred to and relied upon the judgment delivered by this Court in Election Petition No.6 of 2009 ON 12.10.2012. The observations made by the Hon'ble Court in paragraph 8 to 12 are as under:
"8. In view of the facts of the case, it appears that it is only election commission who would be better placed to clarify the discrepancy arising from said two documents.
9. The election petitioner has also placed a third document on record and has also relied on the said document to support and justify her contention. The said document is also in Gujarati language. One of the words printed in the said document, prima facie appears to be an error according to the submissions of respondent No.2. Actually the word which is printed means "and"
but appears to be printing mistake, according to respondent No.2. It is claimed that the said word should be "or".
10. In such circumstances, it is only election commission who can explain as to whether the documents in question are printed and provided in two languages by the commission and if that is so, Page 24 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER for the purpose of interpretation whether the English version is to be taken into account or Gujarati version is to be considered, more so when there is apparent discrepancy between two documents.
11. In this view of the matter, it is necessary that the election commission, at least for the aforesaid limited purpose, should continue to be party to the proceedings to assist the Court and to clarify issues which have arisen in view of the rival submissions and on plain reading of the disputed documents.
12. Mr.Vaishnav, learned advocate, is, therefore, asked to seek necessary clarification from the commission and place it on record on or before the next date of hearing."
41.1 In view of the judgment delivered by the Hon'ble Apex Court in Jyoti Basu's case (supra), this judgment is not applicable to the facts of the present case.
42.Opponent No.16 - Madhu Nirupaben Natvarlal - Party-in-Person has submitted that the Election Officer has breached the order of the Hon'ble Apex Court. The Returning Officer has ignored the objection raised by the Petitioner at the time of scrutiny of the allegation form as regards to the blank in the affidavit in form 26, to be filled by the candidate at the time of making his / her candidature. That candidature is required to be rejected straightway even though objection is not raised.
42.1 It is further submitted that the candidate has to disclose if he possess government quarter, on an additional affidavit at the time of filing the form for his candidature. The Returning Officer has not considered the objection raised by the Petitioner at the time of filing of form for the candidature.
42.2 Both these submissions are required to be dealt with at the time of trial. There is no requirement to deal with such Page 25 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020 C/EA/2/2020 ORDER submission.
43.In view of the above discussions, the related provisions of the Act as well as the Code and also the arguments advanced by learned Advocates for the respective parties and by Opponent No.16 appearing as party-in-person, this court is of the view that the prayer made for deletion of Respondent No.14 - Election Officer, Banaskantha. in the Election Petition deserve to be allowed. Hence the following order:
FINAL ORDER
(a) The present Application is accordingly allowed.
(b) The Respondent No.14 - Election Officer, Respondent No. 15 - Election Commissioner, Gujarat State and Respondent No.16 - Election Commissioner of India are ordered to be deleted from the Election Petition No. 5 of 2019.
(c) The Petitioner of Election Petition No.5 of 2019 is directed to carry out the amendment in the original Election Petition and furnish the amended copy within 10 days from today.
(d) The office is directed to carry out necessary amendment in the original cause title of Election Petition No.5 of 2019 forthwith.
(e) The Respondent shall preserve the record related to the election in question.
(f) Election Petition is disposed of accordingly.
(V. P. PATEL,J) J.N. W. Page 26 of 26 Downloaded on : Thu Mar 12 01:17:49 IST 2020