Karnataka High Court
Sri Jagannath vs Election Officer/Returning Officer on 23 August, 2012
Equivalent citations: 2013 (1) AKR 161, AIR 2013 (NOC) (SUPP) 264 (KAR.)
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 23rd DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NOS. 5727-31/2011 (GM-CPC)
C/w
WRIT PETITION No.30974/2011(GM-CPC)
W.P. NOS. 5727-31/2011
BETWEEN:
Jagannath , 48 years
S/o.Sri.P. Krishnappa
R/at Bellandur Village
Varthur Hobli,
Bangalore East Taluk
Bangalore. ... PETITIONER
(By Shri K.Suman, Adv.)
AND:
1.Election Officer/Returning Officer
Ward No.150, B.B.M.P.,
Bellandur, Varthur Hobli,
Bangalore East Taluk, Bangalore.
2.B.P. Babu Reddy, Major in age
S/o.Sri. Pilla Reddy
Residing at No.1123
Devarabeesanahalli
2
Varthur Hobli,
Bangalore East Taluk
Bangalore.
3.B.P.Mahesh, Major in age
S/o.Late Papanna
R/at B.Nagasandra
K.R.Puram Hobli
Bangalore.
4.Tahsildar
Bangalore East
Mini Vidhanasoudha
K.R.Puram,
Bangalore. ... RESPONDENTS
(By Shri Ravivarma Kumar, Senior Counsel for
Shri.B.M. Irishad Ahmed, Advocate for R-2;
Shri D.Vijaykumar, AGA for R-1 and R-4;
Notice to R-3 dispensed with)
...
These Writ Petitions are filed under Articles
226 and 227 of the Constitution of India praying to
call for records and to set aside the order dated
18.10.2010 passed by the learned VI Additional City
Civil Judge(CCH-11) Bangalore City passed in
EP.No.6/10 on I.A.No.2, 3, 4, 8 and 9 vide
Annexure-A and allow I.A.No.2, 3, 4, 8 and 9 filed
by the petitioner in E.P.No.6/10 i.e., Annexure-C1
to C5.
3
W.P. No.30974/2011:
BETWEEN:
B.P. Babu Reddy,
Aged about 38 years,
S/o.Sri. Pilla Reddy,
Councillor, Bruhat Bengaluru
Mahanagara Palike,
Residing at No.1123
Devarabeesanahalli
Varthur Hobli,
Bangalore East Taluk
Bangalore-560 087 ... PETITIONER
(By Shri Ravivarma Kumar, Senior Counsel for
Shri.B.M. Irishad Ahmed, Advocate)
AND:
1. Jagannath K, 49 years
S/o.Sri.P. Krishnappa
R/at Bellandur Village
Varthur Hobli,
Bangalore East Taluk
Bangalore-560 087
2.Election Officer/Returning Officer
Ward No.150, B.B.M.P.,
Bellandur, Varthur Hobli,
Bangalore East Taluk
Bangalore-560 087.
3.B.P.Mahesh, Major
S/o.Late Papanna
R/at B.Nagasandra
K.R.Puram Hobli
Bangalore.
4
4.Tahsildar
Bangalore East
Mini Vidhanasoudha
K.R.Puram,
Bangalore. ... RESPONDENTS
(By, Shri K.Suman, Adv. for R-1; Shri
D.Vijaykumar, AGA for R-2 and R-4; Notice to R-3
dispensed with)
This Writ Petition is filed under Article 226 of
the Constitution of India praying to quash the order
dated 18.10.2010 passed by the learned VI
Additional City Civil Judge(CCH-11) Bangalore City
in EP.No.6/10 insofar as allowing I.A.Nos.6 and 7
filed by the first respondent and consequently
dismiss I.A.Nos.6 and 7 as not maintainable etc.
These Writ Petitions coming on for further
hearing this day, the Court made the following:
ORDER
The petitioner in W.P. Nos. 5727-5731/2011 filed Election Petition No. 6/2010 under Section 33 of the Karnataka Municipal Corporation Act, 1976 (for short hereinafter referred to as 'the KMC Act') questioning the election to Ward No. 150 of BBMP, Bangalore, held on 28.3.2010. The results were declared on 5.4.2010 declaring the 2nd respondent 5 in W.P. Nos. 5727-5731/2011, as having been duly elected. During the pendency of the petition, he filed applications - I.A.II under Section 151 of the Code of Civil Procedure seeking to call for the entire documents pertaining to election of Ward No. 150 of BBMP; I.A.III under Order VI Rule 17 r/w Section 151 of CPC seeking amendment of the election petition; I.A.IV under Order XIII Rule 6 r/w Section 151 of CPC seeking to summon the documents mentioned therein; I.A.VIII under Order XIII Rule 1 r/w Section 151 CPC for summoning of documents mentioned therein; I.A.IX under Order XIII Rule 1 r/w 151 of CPC to summon the documents mentioned therein. The Court below by the impugned order dismissed I.As.II, IV, VIII and IX with an observation that the petitioner is at liberty to produce the said documents by way of certified copies duly attested by the authorities issuing the said documents. I.A.III for amendment was 6 dismissed. I.As.VI and VII for production of documents was allowed only to an extent of production of the said documents subject to proof, relevancy and admissibility. Aggrieved by the order dismissing I.As. II, III, IV, VIII and IX, Writ Petition Nos. 5727 to 5731/2011 are filed by the petitioner. Aggrieved by the order allowing I.As. VI and VII by granting liberty to the petitioner to produce the documents subject to proof, relevancy and admissibility the elected candidate has filed Writ Petition No. 30974/2011.
2. Since both petitions arise out of the very same impugned order, at the request of learned Counsels, are taken up for consideration together.
3.(a) Sri K. Suman, the learned Counsel appearing for the petitioner in W.P.Nos. 5727 to 5731/2011, contends that the impugned order is bad in law and liable to be set aside. That what is 7 sought for by virtue of the application for amendment, already forms a part and parcel of the main election petition. That nothing new is sought to be brought out through the amendment. That the amendment is required for the just and final adjudication of the petition. He contends that the amendments are material, which could not be urged in the main election petition. That certain facts have come to his knowledge which require to be considered by the Court. Under these circumstances, he pleads that the application for amendment be allowed. Consequently, the other applications seeking production of documents being consequential to the application for amendment, should also be considered in the same perspective. In support of his case, he relies on the judgment of the Apex Court in the case of F.A. Sapa -vs- Singora
- [1991] 3 SCC 375. In particular reference to para- 19 of the judgment, he contends that particulars of 8 any corrupt practice alleged by the petitioner could be amended or amplified, but not the material facts. The distinction between 'material facts' referred to in clause (a) and 'particulars' referred to in clause
(b) and what Section 86(5) of the Representation of the People Act, 1950 (hereinafter referred as 'the R.P. Act') permits, is the amendment/amplification of the latter and not the former. That the power of amendment granted by Section 86(5) is relatable to clause (b) of Section 83(1) and is coupled with the prohibition, namely, that the amendment will not relate to a corrupt practice not already pleaded in the election petition. That once the amendment sought for, falls within the purview of Section 86(5), the High Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. In other words, the amendment or amplification must relate to 9 particulars of a corrupt practice already pleaded and must not be an effort to expand the scope of the inquiry by introducing particulars regarding a different corrupt practice not earlier pleaded. Only the particulars of that corrupt practice of which the germ exists in the election petition, can be amended or amplified and there can be no question of introducing a new corrupt practice. That new grounds cannot be urged only in so far as it relates to corrupt practice, but so far as the other grounds are concerned, the Court should be liberal in allowing such amendments.
(b) Reliance is placed on the judgment reported in the case of Sethi Roop Lal -vs- Malti Thapar - (1994) 2 SCC 579. In particular reference to para-10 of the judgment, he contends that if amendments intended by the appellant do not relate to any corrupt practice, it has to be considered in the light of Section 87 of the R.P. Act and de hors Section 10 86(5) of the said Act. Therefore, no ground other than the ground of corrupt practice could be pleaded and accepted under the provisions of Order VI Rule 17 of the CPC. Hence, it is pleaded that the petition be allowed and the amendments be granted.
4.(a) On the other hand, Sri Ravivarma Kumar, the learned Senior Counsel appearing on behalf of the learned Counsel appearing for the petitioner in W.P.No. 30974/2011 and respondent No. 2 in W.P. Nos. 5727-31/2011, namely the elected candidate, disputes such claims. He contends that the amendment cannot be allowed as it is opposed to facts as well as law. That an election petition has to be preferred only in terms of Section 33 of the KMC Act and on the grounds as specified in Section 35 of the said Act. That it has to be in compliance with the provisions of law and failure to do so would render the election petition as 11 bad. That no cause of action has been shown in the petition. The grounds for declaring the election to be void, are absent and that the ground of corrupt practice has been taken only for the first occasion by virtue of this amendment. That no ground of corrupt practice has been alleged in the original election petition. He therefore pleads, that the petition be dismissed.
(b) He places reliance on the order passed by the Division Bench of this Court in the case of S. Shekhar -vs- Commissioner & Returning Officer, Bangalore City Corporation reported in 1999(1) KLJ 98 (DB) wherein it was held that the provisions of the R.P. Act are applicable to the KMC Act, in so far as matters pertaining to an election is concerned. He therefore pleads that the Judgments in terms of the R.P. Act would stand applicable to the provisions of an election under the KMC Act. 12
(c) In support of his case, he relies on the judgment of the Apex Court reported in the case of Dhartipakar Madan Lal Agarwal -vs- Rajiv Gandhi - 1987 (Supp) SCC 93. In particular reference to paras-13, 14 and 31, he contends that any amendment made after the expiry of the period of limitation cannot be permitted. That a limitation has been prescribed for filing an election petition and the same has to be strictly construed. Under the guise of an amendment, if new grounds or facts are pleaded, it cannot be allowed since the same would necessarily be barred by limitation. That so far as the ground of corrupt practice is concerned, the same has not been pleaded in terms of law, in the election petition and hence, it cannot be allowed by virtue of an amendment. Under these circumstances, it is pleaded that the amendment application be rejected.
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(d) Reliance is placed on the judgment of the Apex Court reported in the case of Harish Chandra Bajpai and another -vs- Triloki Singh - AIR 1957 SC
444. With reference to paras - 21, 22 and 23 it is contended that the power to allow particulars in respect of illegal or corrupt practices can be allowed only if the petition itself speaks about such grounds or such charges. That the Court has power to allow an amendment under Order VI Rule 17 of the CPC., but cannot permit any new ground or charges of a corrupt practice for the first time by way of an amendment.
(e) Reliance is placed on the judgment of the Apex Court reported in the case of Hari Shanker Jain -vs- Sonia Gandhi - (2001) 8 SCC 233. With reference to paras-23, 24 and 33, it is contended that a mere quoting of the words of the section like chanting of a mantra, does not amount to stating material facts. Material facts would include positive 14 statement of facts as also positive averment of a negative fact, if necessary. That there must be such facts as would afford a basis for the allegations made in the petition that would constitute the cause of action as understood in the Code of Civil Procedure, 1908. That it is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable the Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else.
(f) Reliance is placed on the judgment of the Apex Court in the case of V.S. Achuthanandan -vs- P.J. Francis - (1999) 3 SCC 737 with reference to para- 6, to contend that rules of pleading are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are 15 not mere formulae to be observed as rituals. The same should ensure that the trial of a case is not converted into a persecution by adding more and more charges or by converting one charge into another as the trial proceeds.
(g) Placing reliance on the judgment of the Apex Court reported in the case of M.Chandra -vs- M. Thangamuthu - (2010) 9 SCC 712 with reference to paras-79, 80 and 81, he contends that an election petition must be clear and unambiguously set out all the material facts on which the petitioner relies upon during the trial. It must reveal a clear and complete picture of the circumstances and should disclose a definite cause of action. In such absence, the election petition can be summarily dismissed. That one cannot file an election petition based on frivolous grounds. The facts presented must be clear, concise and unambiguous. The natural corollary is that the person, who files an 16 election petition, must have a clear and definite case to prove that the election was illegal. Therefore, the burden of proof shall lie on the petitioner filing the election petition.
(h) The Proviso to Sub-Section (5) of Section 33 of the KMC Act was relied upon to contend that when a petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the averment of such corrupt practice and the particulars thereof. The same is absent in the present petition. There is no affidavit in the prescribed form accompanying the petition in support of the allegations of such corrupt practice. The provision is mandatory and the failure to do so would render the election petition to be dismissed in limine. On merits it is submitted that ground No. V in the election petition does not constitute a ground of qualification. That it only refers to an eligibility based on a gazette 17 notification and hence, no cause of action has been made out. Under these circumstances, it is pleaded that the petition is liable to be rejected since it lacks merits and is not in compliance with law.
5. Heard learned Counsels and examined the material on record.
6. Primarily the scope of these two petitions is ostensibly on two grounds. One on qualification and the other on corrupt practice. Even though various other grounds have been pleaded in the election petition as well as in the application for amendment, by and large all the grounds would stand relatable to these two grounds only.
7.(a) One of the grounds urged in the election petition is of corrupt practice.
(b) The learned Counsel for the petitioner relies on ground No.XV to contend that the ground 18 of corrupt practice has been pleaded in the election petition. That the amendment sought for with regard to hiring of the vehicles, distribution of money and other grounds urged in the application form ground No. XV, which is already pleaded.
(c) On the contrary, the learned Counsel for the respondent stoutly denies the same by placing reliance on the provisions of Section 33(4)(b) of the KMC Act. He contends that an election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, etc. He further contends that for the sake of arguments, if it is to be conceded that the ground of corrupt practice has been pleaded in the election petition and the same is only being amplified through the amendment, even then, the same would not satisfy the proviso to Clause (5) of Section 33 of the KMC Act. The proviso states that whenever the petitioner alleges any corrupt practice, the petition shall be 19 accompanied by an affidavit in the prescribed form in support of the allegation of such a corrupt practice and the particulars thereof. Various citations are relied upon to support his contention.
(d) However, the learned Counsel for the petitioner concedes, that corrupt practice as alleged by him, is not accompanied by an affidavit in the prescribed form or any other form in support of the allegation of such corrupt practice. That the proviso to Clause (5) of Section 33 of the KMC Act is not complied.
(e) The provision is mandatory. Failure to comply would not entitle the petitioner to rely on this ground. Under these circumstances, it would not be necessary to dwell further on the ground of corrupt practice. Therefore, even though the original petition contains ground No.XV that the returned candidate is involved in corrupt practice, 20 since the same does not confer to the proviso of Clause (5) of Section 33 of the KMC Act, the said ground is not available to the petitioner. He has fairly admitted the position. Hence the amendment to that extent is rejected.
8.(a) On the ground of qualification, it is pleaded that, the elected candidate viz., the 2nd respondent does not possess the qualifications to contest, in terms of Section 25 (1) of the KMC Act. Therefore, ground Nos. V and VI in the election petition have been pleaded for the said purpose. It states that the 2nd respondent is not entitled and eligible to contest under the reserved category as notified and prescribed in the gazette notification, dated 4.3.2010, under the backward community 'B' category. In order to explain this ground, the proposed amendment is sought to be added as para-XV(a), which refers to the reservation of the said seat, earlier notifications, gazette notification 21 dated 18.10.1995 and the particulars of the said notification. Further para-9 of the application is an elaboration of the said ground with reference to the BCM-B category, etc. It is therefore contended, that these amendments are an explanation to the grounds as pleaded in the original petition.
(b) It is further contended that in terms of page 5 of the application at para-3, what is sought to be amended is that the 2nd respondent is ineligible and disentitled to contest the election under the category BCM-B category. That he could not have contested, let alone being lawfully elected. That he does not belong to the BCM-B category. That a false information has been furnished by him in the affidavit for which, he would be liable for prosecution under various sections of the IPC. That the acceptance of the nomination papers of the 2nd respondent is prejudicial to the interest of the petitioner. That a list of various properties 22 moveable and immoveable have been narrated in the amendment application which are also an amplification of grounds Nos. V and VI. That in order to be eligible, a financial limit is prescribed in terms of the gazette notification. It is originally pleaded that the respondent does not have eligibility to contest from that particular category. To belong to that category, one cannot exceed a financial limit. By virtue of the amendment, what is sought to be added is nothing more than the list of his moveable and immoveable properties in order to show that it exceeds the financial limit as prescribed under the notification and on such exceeding of the financial limit as prescribed in the gazette notification, he consequently becomes ineligible to contest from that category. It is therefore pleaded that the amendment on this ground is only an amplification of a ground that already exists in terms of paras-V and VI of the election petition. That the amendment 23 in these paragraphs are a mere explanation of the same.
9.(a) The learned Counsel for the respondent disputes the same. He contends that what is stated in ground No. V is a gazette notification, dated 4.3.2010 under the backward community - B category. That firstly, the proposed amendment does not relate to the gazette notification, dated 4.3.2010. The amendment sought for, is with reference to a gazette notification, dated 18.10.1995. Therefore, a new ground is sought to be made out through the amendment. Secondly, there is no such thing known as a backward community -B category. Hence, the assumption of the petitioners that the constituency was reserved for backward community -B category [BCM-B] is a misnomer and his imagination. Therefore, the said amendment cannot be permitted. That para-9 as 24 narrated in the application referring to the same, also requires to be rejected.
(b) The respondent further contends that none of these amendments are amplifications of the original grounds. The petitioner must restrict himself only to the ground as urged by him. What is sought for in the amendment is not an explanation of the grounds already taken. There is no case made out by the petitioner. That the purported clarity sought to be made through this amendment, is misconceived. It is only an amplification or an explanation of the grounds that can be allowed and not a new ground. There is no ground taken by the petitioner with regard to the financial limits or otherwise of the respondent. The only ground that has been taken is the non- compliance of the gazette notification, dated 4.3.2010 and that he has violated the terms of the gazette notification. Therefore, the amendment 25 sought for, is wholly beyond the grounds urged in the petition and the same should be rejected.
10.(a) A Constitutional Bench of the Hon'ble Supreme Court in the case of F.A. Safa -vs- Singora
- (1991) 3 SCC 375 were dealing with amendments. The proceedings thereon arose on an application seeking striking off the pleadings by the respondent and on an application seeking amendment of the pleadings by the petitioner, which raised a preliminary issue as to whether the election petitions were in conformity with the requirements of Sections 81 and 83 of the R.P. Act, 1951 and the Rules framed thereunder, etc. In so considering the application for amendment as well as the application under Order VI Rule 16, the Constitutional Bench held at para-19 as follows:-
" Before the amendment of the R.P. Act, by Act 27 of 1956, Section 83(3) provided for an amendment of 26 an election petition insofar as 'particulars' of corrupt practice were concerned. By the 1956 amendment this provision was replaced by Section 90(5) which the turn came to be deleted and transferred as sub-
section (5) of Section 86 by the Amendment Act 47 of 1966. Section 86(5) as it presently stands empowers the High Court to allow the 'particulars' of any corrupt practice alleged in the petition to be amended or amplified provided the amendment does not have the effect of widening the scope of the election petition by introducing particulars in regard to a corrupt practice not previously alleged or pleaded within the period of limitation in the election petition. In other words the amendment or amplification must relate to particulars of a corrupt practice already pleaded and must not be an effort to expand the scope of the inquiry by introducing particulars regarding a different 27 corrupt practice not earlier pleaded. Only the particulars of that corrupt practice of which the germ exists in the election petition can be amended or amplified and there can be no question of introducing a new corrupt practice. It is significant to note that Section 86(5) permits 'particulars' of any corrupt practice 'alleged in the petition' to be amended or amplified and not the 'material facts'. It is, therefore, clear from the trinity of clauses (a) and (b) of Section 83 and sub-section (5) of Section 86 that there is a distinction between 'material facts' referred to in clause
(a) and 'particulars' referred to in clause (b) and what Section 86(5) permits is the amendment/amplification of the latter and not the former. Thus the power of amendment granted by Section 86(5) is relatable to clause (b) of Section 83(1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice 28 not already pleaded in the election petition. The power is not relatable to clause (a) of Section 83(1) as the plain language of Section 86(5) confines itself to the amendments of 'particulars' of any corrupt practice alleged in the petition and does not extend to 'material facts'. This becomes crystal clear on the plain words of the closely connected trinity of Sections 83(1)(a), 83(1)(b) and 86(5) and is also supported by authority. See Samant N. Balakrishna v. George Fernandez (1969) 3 SCC 238 and D.P. Mishra v.
Kamal Narayan Sharma (1970) 2 SCC 369. In Balwan Singh v.
Lakshmi Narain (1960) 22 ELR 273 this Court held that if full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to avail of that opportunity that part of the charge may be struck down. We may, however, hasten to 29 add that once the amendment sought falls within the purview of Section 86(5), the High Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the court finds it unjust and prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience, vide Raj Narain v. Indira Nehru Gandhi. This much for the provisions of Section 83(1)(a) and (b) and Section 86(5) of the R.P. Act."
In dealing with an amendment sought for on a ground of corrupt practice, the Court held that if an amendment sought for falls within the purview of Section 86 of the R.P. Act, the High Court should be liberal in allowing the same, unless, in the facts and circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. A distinction that occurred thereon was 30 specifically with respect to a ground of corrupt practice and it was held that an amendment of any other ground should be construed liberally.
(b) In Sethi Roop Lal -vs- Malti Thapar - (1994) 2 SCC 579, the Hon'ble Supreme Court at paras-10 and 11 has held as follows:
"10. The fasciculus of sections appearing in Chapter III of Part VI of the Act lays down the procedure for trial of election petitions. Sub-section (1) of Section 87 thereof provides that 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 Procedural ('Code' for short). That necessarily mean that Order VI Rule 17 of the Code which relates to amendment of pleadings will afortiori apply to election petitions subject, 31 however, to the provision of the Act and of any rules made thereunder.
Under Order VI Rule 17 of the Code the Court has the power to allow parties to the proceedings to alter or amend their pleadings in such manner and on such terms as may be just and it provides that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. But exercise of such general powers stands curtailed by Section 86(5) of the Act, when amendment is sought for in respect of any election petition based on corrupt practice. Since Section 87 of the Act - and, for that matter, Order VI Rule 17 of the Code
- is subject to the provisions of the Act, which necessarily includes Section 86(5) , the general power of amendment under the former must yield to the restrictions imposed by the latter."
32
"11. Indubitably, therefore, if the amendment sought for in the instant case related to corrupt practice we might have to consider the same in conformity with Section 86(5) of the Act as interpreted by this Court in the case of F.A. Sapa (1991)
3 SCC 375 and accept the findings of the learned Judge as recorded in the impugned order; but then, the learned Judge failed to notice that the amendments, the appellant intends to bring in his election petition, do not relate to any corrupt practice and, therefore, it has to be considered in the light of Section 87, and de hors Section 86(5) of the Act.
For the foregoing reasons the impugned order dated May 28, 1993 cannot also be sustained."
That under Order VI Rule 17 of the Code, the Court has the power to allow the parties to the proceedings to alter or amend the pleadings in such 33 a manner or on such terms as may be just. It provides that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Excluding the ground of corrupt practice, all other amendments shall be considered in the background of what is intended herein.
11.(a) The citations relied upon by the respondents are primarily based on the applications pertaining to striking out the pleadings, application under Order VII Rule 11 of the CPC for non compliance of the mandatory provisions, etc. The Courts have accordingly laid down the law in relation to the said provisions of law. This is not the case herein.
(b) In V.S. Achuthanandan's case the Court while dealing with matters pertaining to 'materials facts' and 'material particulars' and the distinction 34 thereof, held that the trial Court was not justified in rejecting the petition pertaining to the allegations of corrupt practices on the ground of vagueness in material particulars. In Hari Shanker Jain's case the subject matter for consideration before the Court was an application moved by the respondents under Order VI Rule 16 of the CPC to strike out the pleadings as well as the application under Order VII Rule 11 of the CPC. That the respective election petitions did not raise any triable issue. In Harish Chandra Bajpai's case, the matter pertained to commission of a corrupt practice in the election. In Dhartipakar Madan Lal Agarwal's case the Court was dealing with an application under Order VI Rule 16 of the CPC to strike out the pleadings as the same were vague, general, unnecessary, frivolous and vexatious, which did not disclose any cause of action and the respondent prayed that the 35 election petition be rejected under Order VII Rule 11 of the Code of Civil Procedure.
12.(a) I.A.II is an application under Order 6 Rule 17 of the CPC seeking an amendment to the election petition. The ground of corrupt practice has been rejected. The amendment therefore pertains to grounds other than corrupt practice. A clear distinction would therefore have to be made while considering such an application. The provisions applicable while trying an issue with regard to striking out the pleadings or rejection of a plaint under Order VII Rule 11 of CPC., etc., are distinct and separate. While considering an application for amendment, the same should be construed in terms of Order VI Rule 17 of CPC. The declaration of law with regard to maintainability or otherwise of an election petition cannot permeate the consideration of an application for amendment. The consideration of an amendment is distinct from 36 the manner in which a petition on maintainability is to be considered. Therefore it would not be appropriate to apply the law as laid down, with regard to the rejection of the plaint, limitation, cause of action or otherwise to cases where an application for amendment other than a ground of corrupt practice is being considered. Such an application for amendment is to be considered only in terms of the provisions of Order 6 Rule 17 of the CPC. The principles and law on maintainability or otherwise of an election petition cannot be made applicable while considering an application for amendment.
(b) Such of those amendments that are explanatory could be allowed by the Court and such of those amendments that constitute a new ground would necessarily have to be rejected. In the application, various grounds are sought to be amended. All the grounds do not come under the 37 rigours of Order VI Rule 17 of the CPC., but some of the grounds are relatable to the original petition. Therefore, a distinction has been made with regard to such of those grounds in which there is already a foundation in the election petition and such of those grounds which have been raised for the first time. Ground Nos. V and VI in the original petition pertain to eligibility of the respondent viz., his qualification. Eligibility and qualification should be considered in the same manner since both portray the same meaning. In support of their contentions, it is pleaded that in terms of the gazette notification relied upon, the respondent is not qualified under the category pleaded by him. To claim a benefit under the notification, a financial limit is prescribed. If the candidate exceeds the prescribed limit, then in that event, he cannot avail of the benefit of the notification. In order to substantiate this ground, he has narrated the facts and 38 circumstances in order to show the financial situation of the respondent which would indicate that his financial limit is beyond what is stated in the notification and as a consequence whereof, the benefit under the notification is not available to him. Therefore, it is apparent that these grounds pertaining to the qualification of the respondent which are relatable to the gazette notification, require to be allowed since they are an expansion or an explanation to the original ground.
(c) Consequently, the application for amendment is partly allowed to an extent of inculcating the paragraph as para XV(a) which goes on as sub-paras (i), (ii), (iii), (iv) and continuation para-9 at pages 1, 2 and 3 of the application. The next paragraph No. 3 beginning with the words 'During the time of campaigning' is rejected. The paragraph after that beginning with the sentence 39 '2nd respondent is either way ineligible' is allowed. The rest of the application is rejected.
13.(a) The contention of the respondent is that the applicability of the notifications as alleged in the election petition and the amendment sought for are of different dates.
(b) While considering an amendment, the Court would exceed its jurisdiction, if it goes into the validity or otherwise of the claim made therein. It is not that when an amendment is allowed, it would necessarily stand the test of the rigours of Section 35 of the KMC Act. The petitioner may even fail to establish that ground at trial. The ground may even be outside the scope of Section 35 of the KMC Act. All the same, it is not within the jurisdiction of the Court trying an application under Order VI Rule 17 of the Code to go into that part of the claim. It therefore pre-supposes that the 40 respondent could very well agitate the validity of the ground at trial, even though the amendment is allowed. To consider the validity of the same, at this stage, would be improper.
14.(a) So far as I.A.II is concerned, Sri B.M. Irishad Ahmed, the learned Counsel appearing for the elected candidate submits that he no has objection to allow the same. Accordingly, I.A.II is allowed.
(b) I.A.IV has been filed under Order 13 Rule 6 read with Section 151 of CPC seeking to summon the documents from the second respondent bankers. I.A.VIII has been filed under Order 13 Rule 1 read with Section 151 of CPC for summoning of the documents mentioned therein. I.A.IX has been filed under Order 13 Rule 1 read with Section 151 of CPC seeking to summon the documents from the second respondent bankers. The trial Court by 41 the impugned order dismissed the applications with an observation that the petitioner is at liberty to produce the said documents by way of certified copies or duly attested by the authority issuing such documents.
(c) The documents sought for are the details of the bank accounts etc. Some of the bank accounts stand in the name of the elected candidates. Some of the accounts stand in the name of his father, his wife and others. The relevancy of the documents in so far as his wife, father and others are concerned would not be a relevant consideration in support of the ground urged by the petitioner. Therefore only such of those documents that are relatable to the elected candidate require to be allowed. The rest of the documents would stand rejected. Under these circumstances, I.A.IV is allowed to the extent of Item No.1, 2, 7, 8, 9 & 10. The rest of the items are 42 rejected. I.A.VIII is allowed to the extent of Item Nos. 2, 6, 7, 9 and 11. The rest of the items are rejected. I.A.IX is allowed to the extent of Item Nos. 2, 3, 4, 5 & 7. The rest of the items are rejected.
(d) Aggrieved by the order passed on I.As VI and VII the elected candidate has filed Writ Petition No.30974/2012. It is his case that the documents sought for therein are not relevant. That the trial Court committed an error in allowing the same.
(e) I.A.VI has been filed under Order 7 Rule 14 (3) read with Section 151 of CPC to permit the petitioner to file the additional documents. The documents pertain to the property details of the elected candidate subject to proof, relationship and admissibility. In view of the aforesaid reasoning in allowing the documents and applying the same principle I'am of the considered view that the order passed on I.A.VI does not call for any interference. 43 The order passed on I.A.VI is just and reasonable and no interference is called for. Hence, the order passed on I.A.VI is sustained.
(f) I.A.VII has been filed under Order 7 Rule 14(3) read with 110 of CPC seeking additional documents. Item Nos. 61 to 83 are sought to be filed as additional documents. Item Nos. 61 to 73 are copies of the applications, statements etc. made by the elected candidates to the BBMP, Chief Election Officer, State Information Officer, the Assistant Electoral Officer etc. None of these appear to be relevant to support the case of the petitioner. Hence the documents 61 to 73 are rejected. So far as Item Nos.74 to 83 are concerned, they are translated copies of the sale deeds, RTC etc. The originals have already been produced. These are only the translated copies. They are necessary for the just and final adjudication of the suit. Production of these documents would not affect the 44 case of the other side nor it would be an introduction of any new documents. Hence, Item Nos. 74 and 84 are allowed.
15.(a) The learned Counsel for the respondent placed for consideration the recently delivered judgment of the Apex Court in the case of Ishwardas Rohani -vs- Alok Mishra - [2012] 7 SCC 309 which were dissenting judgments wherein one view that was expressed at para 32 of the judgment is as follows:
"32. The decisions cited on both sides lay down the law in regard to election petitions and how election petitions are to be presented and the procedure to be strictly followed in filing such election petitions, in which corruption, in particular, is the allegation made against the returned candidate.
There is little doubt that the
45
provisions have to be strictly
construed, but that does not mean
that any defect in the election petition cannot be allowed to be cured in the public interest. If after an opportunity is given, still no steps are taken by the election petitioner to cure the defects which are noticed, then the rigours of the procedure indicated by the 1951 Act, come into effect with full virgour."
The dissenting view has been expressed in para-90 which is as follows:
"90. In view of my conclusion that the election petition, as originally presented, did not contain the necessary material facts to constitute the cause of action to challenge the election of the returned candidate, the abovementioned application filed by the election petitioner, even if it contains the necessary material facts, cannot be allowed as it would 46 amount to permitting the amendment of the election petition beyond the period of limitation. I, therefore, not only grant leave in the SLP, but also allow the appeal and dismiss the election petition."
(b) Consequently, it was stated, that the matter be placed before the Hon'ble the Chief Justice of India, for placing the matter before a Third Judge. In the said judgment, one view is that even though the provisions of the Act had to be strictly construed, it does not mean that any defect in an election petition cannot be allowed to be cured in the public interest. That if an opportunity is given and still no steps are taken by the election petitioner to cure the defects which are noticed, then the rigours of the procedure indicated in the RP Act would come into effect with full vigour. In so holding, reliance was also placed in the case of F.A. Safa supra.
47
(c) In the aforesaid judgment, the question whether an amendment should be liberally construed and whether the defects can be cured or not has since been referred to a Third Judge. However, in the instant case, the same would not be directly applicable to the case on hand since there is no contest so far as the ground of corrupt practice is concerned. In this case, amendments have been allowed in view of the grounds already taken in the election petition.
16.(a) The provisions of the KMC Act were referred to by the respondents' Counsel to contend that they are mandatory in terms of Section 33. That the clauses provided therein would necessarily have to be complied with and failure to comply, would render an election petition to be rejected. Sub-Clause (1) of Section 33 of the KMC Act provides a limitation of 30 days to file an election 48 petition from the date of publication of the result of the election under Section 32. Any election petition preferred thereafter would necessarily have to be rejected. That the grounds in the election petition would be either on one or more of those grounds specified in Section 35 of the KMC Act. That the election petition should contain a concise statement of the material facts on which the petitioner relies, shall set forth full particulars of any corrupt practice, etc. shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, and that every election petition shall be tried as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of presentation of the election petition under sub-section (1). Reliance is also placed on the provisions which constitutes a ground of corrupt practice. The election petition shall be also be accompanied by an affidavit in the 49 prescribed form in support of the allegation of such corrupt practice and the particulars thereof. That any schedule or annexure shall also be signed by the petitioner and verified in the same manner as the petition. Therefore, it is strongly contended that if any one of these provisions are not complied with, the election petition should fail. In support of his case, the judgments relied upon hereinabove are pressed into service. In the said judgments, it has been held that there cannot a condonation of delay in filing an election petition. If there is no concise statement of material facts, no full particulars of corrupt practice have been made out and on various other grounds, the petition can be rejected without going to trial.
(b) Rule 14 of the Karnataka Municipal Corporations (Election) Rules, 1979 has also been relied upon with regard to Scrutiny of nominations. That the Returning Officer either on his own motion 50 or on an objection raised may reject any nomination paper on the ground specified therein. This too has been held to be mandatory. Rule 70 prescribes that every election petition under Section 33 shall be accompanied by a deposit of Rs.200/-. The Courts have held that non-deposit would render the election petition to be dismissed on that ground itself.
17.(a) Clause 5 of Section 33 of the KMC Act, provides that every election petition shall be tried as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of presentation of the election petition under sub-section (1). No judgment has been cited concerning clause (5) of Section 33 of the KMC Act. The rigours of election law in terms of the KMC Act emanate from this provision and therefore restrict the time for conclusion of a trial. Under no statute, is it mandatory for disposal of a petition or a suit or 51 otherwise within a specified period of time. It is necessarily left to the best judgment of the Court and rightly so. There can be no limitation in law for disposal of a case.
(b) The rigours of an election trial even to the requirement of submitting the appropriate court fee along with the petition, contents of the petition, grounds to be urged in the petition, the manner in which the petition has to be verified, the affidavit in support of a corrupt practice, etc., are all held to be mandatory. Violation of any one of those provisions of law would entail dismissal of the election petition without trial. A strict compliance of the mandatory provisions flows from the provisions for disposal of an election petition as expeditiously as possible with an endeavor for a disposal within 6 months from the date of presentation of the election petition. The present petition has been filed in the year 2010. It is almost the end of 2012. There is no noticeable 52 progress in the election petition. It would still require quite some time for the disposal of the petition. In any event, the period of 6 months has since lapsed. What should be the remedy in such a situation?
(c) A relative citation on the said issue as relied upon by the respondents Counsel is the M. Chandra's case at para-81 wherein while referring to various cases on the said issue, the Hon'ble Supreme Court has held that the provisions go on to emphasise that an election result, where the people elect their representatives cannot be taken lightly. In Dhartipakar Madan Lal's case it was held that what has to be borne in mind in an election petition is the nature of a right to elect, the right to be elected and the right to dispute the election. The right to contest the election or to question the election by means of an election petition is neither a common law nor a fundamental 53 right, instead it is a statutory right regulated by the statutory provisions of the R.P. Act. There is no fundamental or common law right in these matters. In a series of decisions rendered, the Courts have settled the legal position that outside the statutory provisions, there is no right to dispute an election. That the R.P. Act is a complete self contained code within which any rights claimed in relation to an election or an election dispute must be found.
18. What is imminent from all these citations is the fact that the strict rigours of election law are required to be applied. When it comes to the respondents, the provisions of the Code are made applicable. The respondents, therefore, necessarily fall back on the provisions of the CPC in defence of their case. No doubt it is a statutory right that they are entitled to, but such an entitlement should necessarily fall under the provision of the law, which contemplates disposal of an election petition 54 within a specified period. When the rigours of election law are sought to be enforced against the petitioner so far as filing of the petition, etc., are concerned and the provisions of the CPC in general are applicable in so far as the rights of the respondents are concerned, the provision for disposal of an election petition within six months is difficult to achieve.
19.(a) The election Petition has been filed under Section 33 of the Karnataka Municipal Corporation Act. With regard to the disposal of the Election Petition, the relevant provision is Sub- Clause (5) of Section 33 which reads as follows:-
"1. xxxxxx
2. xxxxxx
3. xxxxxx
4. xxxxxx
5. Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial 55 within six months from the date of presentation of the election petition under sub-section.
xxxxxxx"
Therefore what is contemplated is that every election shall be tried as expeditiously as possible and an endeavour shall be made to conclude the trial within 6 months from the date of the presentation of the Election Petition. This is the mandate of law. The courts should necessarily have to try an Election Petition expeditiously and an endeavour shall be made to conclude the same within 6 months.
(b) 'Expeditious' means an earnest and industrious effort. As quick as possible without any delay. Prompt, speedy, quick, effective, efficacious or carried on with speed and efficiency. 56
(c) 'Endeavour' means to try and to make a positive real effort. To strive, to work at, take pains, to do one's best or to do seriously with effort.
(d) To be expeditious and to make an endeavour is the law and both these should be complied with in order to conclude the trial within 6 months. Therefore the Courts should necessarily have to comply with this provision of law by being expeditious and by making an endeavour.
20. In V.S. Achutanandan's case, at para 5, the Supreme Court held:
"5. Xxxxxxx. It has always to be kept in mind that the law relating to elections is the creation of a statute which has to be given effect to strictly in accordance with the will of the legislature".57
21. The will of the legislature is an expeditious trial wherein an endeavour has to be made to conclude the trial within six months. Therefore such a will of the legislature is the obligation of the Courts. The obligation being to be expeditious and to make an endeavour.
22. The law postulates that the trial should be expeditious and an endeavour should be made for disposal within 6 months. It is therefore necessary that the mandate of law is complied, by ensuring that the trial is expeditious and that an endeavour is made towards the same. To make an endeavour and to be expeditious is the mandate of law. The attendant law which makes the CPC applicable to election trials is Section 36 of the K.M.C. Act, which reads as follows:-
"36. Procedure to be followed by the Court.- The Procedure provided in the Code of Civil Procedure, 1908, in regards 58 to suit shall be followed by the Court as far as it can be made applicable, in the trial and disposal of an election petition under this Act."
The language used in Section 36 of the KMC Act is "as far as it can be made applicable". The provision making the CPC applicable should necessarily have to be read along with the mandate of the law with regard to concluding the trial within 6 months. Under these circumstances if the limitation to file a written statement is to be liberally extended, as is done in a regular suit, the same would not only defeat the disposal of the trial within 6 months but would necessarily run contrary to the dictate of law that an Election Petition shall be tried expeditiously with an endeavour. No Statute can prescribe a limitation for disposal of a case. It is an accepted position. But what can be held to be mandatory is the requirement of law that it should be expeditious 59 and that an endeavour shall be made. Therefore if the time to file a written statement is liberally granted, then in the face of the provision to dispose off a trial within 6 months, Section 33(5) of KMC Act would be rendered redundant. Further more, in Section 86(6) of the R.P. Act it has been stated that the trial of an Election Petition shall be continued from day today as far as practicable and consistently with the interests of justice. As could be seen, this is an endeavour for an expeditious trial.
23. While considering the matter pertaining to the filing of a written statement in an Election Petition the Hon'ble Supreme Court in a Constitution Bench judgment in the case of Kailash
-vs- Nankhu & Others - (2005) 4 SCC 450 held at para-36 that the provision for filing the written statement within the stipulated period is by way of a 60 procedure to achieve the object of speedy disposal of such disputes. At Paras-41 it held as follows:-
"41. xxxxx The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidate may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may lose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence."
24. Under these circumstances, the law making the applicability of CPC to Election Petitions " as far as it can be made applicable" would have to 61 be considered along with the mandate of the law of an "expeditious" trial and an "endeavour". Therefore in order to ensure an expeditious trial an endeavour would necessarily have to be made by the Court. One of the endeavours as narrated in Section 86(6) of the R.P.Act is that the trial should go on day today basis. In pursuance whereof yet another endeavour could be that the time granted for filing of a written statement should be restricted to a period of 15 days and extendable up-to 30 days and not beyond. The reasoning being, that the limitation to file an Election Petition under the KMC Act is 30 days from the date of publication of the result of the election. An Election Petition filed beyond a period of 30 days is invalid and the delay cannot be condoned. The provision is mandatory. Therefore when a period of 30 days is available to the petitioner to file an Election Petition and in the background that the trial be concluded within 6 62 months namely about 180 days, the respondents cannot be granted a period more than what has been granted to the petitioner. It would be unfair, unjust and unreasonable. It would not only adversely affect the disposal of the Petition within 6 months, but the same would be blatantly opposed to being either expeditious or making an endeavour. Under these circumstances, a period of 15 days would be appropriate to enable the respondents to file the written statement and if more time is required the request should be made in writing and only if there are substantial reasons and only if the circumstances were exceptional or occasioned by reasons beyond the control of the defendants and that such an extension is required in the interest of justice and that grave injustice is occasioned if time is not extended, the same should be granted by such a reasoned order. That the extension of time cannot be granted as a matter of right and merely 63 for the asking. Therefore in terms of the dicta in the case of Kailash vs. Nanhku, I'am of the considered view that the respondents should be granted a period of 15 days to file their written statement which the Court may extend, however not beyond a period of 30 days in terms of the observations made above.
25. The Hon'ble Supreme Court of India in the case of Smt. Dr.Sushila Balraj vs. Ardhendu Bhushan & Others reported in 26 ELR 146, a Judgment of the Constitution Bench, pertained to the disposal of an Election Petition. At page 153, the Hon'ble Supreme Court held thus:-
"While considering this point, it is necessary to bear in mind that the scheme of the Act is, as it ought to be, that if the election petitions are allowed to be conducted in a leisurely way and to go on interminably, the very object of permitting the remedy of challenging the 64 validity of elections in good time would be defeated. That is why S.90(6) of the Act requires that every election petitions shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of publication of the copy of the petition in the Official Gazette under sub-section (1) of S.86. A similar provision is made in regard to an appeal contemplated by S.116A. Section 116A(5) prescribes that every appeal shall be decided as expeditiously as possible and endeavour shall be made to determine it finally within three months from the date on which the memorandum of appeal is presented to the High Court. Dealing with election appeals filed in this Court, the same principle of expeditious disposal is observed by us.
Therefore, when we consider the question about the propriety of the order passed by the Tribunal in rejecting the respondent's prayer for adjournment, this significant requirement of 65 expeditious disposal prescribed by the statute cannot be ignored."
Furthermore, at page 154 of the said Judgment the Supreme Court further held as follows:-
"But When the respondent was not ready to step into the witness-box on the 23rd September, 1963, though it had been clearly understood on the previous occasion that the case would be peremptorily taken up on the 23rd September, 1963, the Tribunal came to the conclusion that the respondent was not acting fairly and the application made by him was, in substance, abuse of the process of the Court. However, much we may sympathise with the respondent when he pleaded that he was under a handicap in prosecuting the present petition because of his detention, we do not see how it can be reasonably said that the Tribunal should have gone on granting him adjournment after adjournment so long 66 as the respondent was not able to lead his evidence. To adopt such a course would have been plainly unreasonable and substantially inconsistent with the statutory requirement that the election petitions must be tried expeditiously. Therefore, we are satisfied that the High Court was not justified in interfering with the order passed by the Tribunal when it refused to grant an adjournment to the respondent on the 23rd September, 1963."
26. In this pronouncement, the Hon'ble Supreme Court held that if an election petition is conducted in a leisurely way, the very object of challenging the election in good time is defeated. That is why the Act provides for an expeditious trial with an endeavour to dispose it within the time frame. So also the time frame for the disposal of the appeal. Therefore, the significant requirement of an expeditious disposal prescribed by statute cannot be ignored. To adopt any other course would be 67 plainly unreasonable and substantially inconsistent with the statutory requirement that election petitions must be tried expeditiously.
27. Even an adjournment was frowned upon. Therein the defendant was in detention and was unable to file his written statement. The matter was adjourned to enable him to do so. Notwithstanding the same, the Court was of the view that however much they may sympathise, they were unable to see as to how the Tribunal should have gone on granting adjournment after adjournment. That to adopt such a course would be blatantly unreasonable and substantially inconsistent with the statutory provisions, that an Election Petition must be tried as expeditiously as possible. Therefore in view of the aforesaid Judgments, to file a written statement within an outer limit of 30 days would be in compliance of law for an expeditious trial and also of an endeavour in that regard. 68
28. Counsels submit that to the best of their knowledge, except wherein election petitions have been dismissed on technicalities, no election petition has been disposed off on trial, within the time frame. It is not that they have been disposed off merely after the expiry of 6 months but most of them probably on the ground that the next election has being declared. The same is the observation of the Hon'ble Supreme Court in Kailash -vs- Nankhu's case.
29. An expeditious trial within 6 months is required by all sides. For the petitioner, for a judgment that would vindicate his claim. For an elected candidate, the sanctity of being a lawfully elected candidate. A sword cannot remain forever on his head, only because of a delayed trial. He too needs an expeditious trial. For the electorate, a finding that their nominee has been duly and fairly 69 elected or not. In terms of Section 33(2) of the KMC Act, an election petition can be presented by any candidate or by any voter of the Division concerned. Hence a voter too is entitled to an expeditious disposal. Therefore the obligation is on the Court for an expeditious trial with an endeavour to complete it within 6 months.
30. The Hon'ble Supreme Court was specifically deeply concerned with this issue, when it held at para 6 of the judgment in the case of Dhartipakar Madan Lal Agarwal -vs- Rajiv Gandhi reported in 1987 (Suppl) SCC 93 as follows:
" 6. Before we consider the submission on merit, we would like to say that Parliament should consider the desirability of amending the law to prescribe time limit for inquiry into the allegations of corrupt practice or to devise means to ensure that valuable time of this Court is not consumed in 70 election matters which by efflux of time are reduced to mere academic interest. Election is the essence of democratic system and purity of elections must be maintained to ensure fair election. Election petition is a necessary process to hold inquiry into corrupt practice to maintain the purity of election. But there should be some time limit for holding this inquiry. Is it in public interest to keep sword of Damocles hanging on the head of the returned candidate for an indefinite period of time as a result of which he cannot perform his public duties and discharge his obligations to his constituents? We do not mean to say that the returned candidate should be permitted to delay proceedings and to plead later on the plea of limitation. Ways and means should be found to strike a balance in ascertaining the purity of election and at the same time in preventing waste of public time and money and in keeping the sword of Damocles 71 hanging on the head of returned candidate for an indefinite period of time. "
31. For the aforesaid reasons, I' am of the considered view that it would be necessary that appropriate guidelines be issued. It would therefore be a just and appropriate that the trial Court should follow the following guidelines while considering an election petition:
32.(a) That on the date the election petition is filed, the registry shall verify and satisfy itself on office objections regarding compliance of the technical provisions of the Act, limitation, court fee and matters of the like nature on the same day. It shall call upon the petitioner to comply with such office objections, which shall not be more than one day from the date of filing of the election petition. Thereafter the matter shall be placed before the Court the next day with or without office objections. 72
(b) The Court in its discretion may on compliance of the objections if any, or otherwise, issue notice to the respondents in the manner known to law. Notices shall also be sent by registered post acknowledgement due, by courier and in the discretion the Court may even permit or direct the petitioner to also take out hand summons to the respondents.
(c) A period of 15 days from the date of service of the notice shall be granted to the respondents to file their written statement/objections. If more time is required, the request should be made in writing and only if there are substantial reasons and only if the circumstances were exceptional or occasioned by reasons beyond the control of the respondents and that such an extension is required in the interest of justice and that grave injustice is occasioned if time is not extended, the same could 73 be granted by such a reasoned order. That the extension of time cannot be granted as a matter of right and merely for the asking. Therefore in terms of the dicta in the case of Kailash vs. Nanhku, I'am of the considered view that initially the respondents should be granted a period of 15 days to file their written statement which the Court may extend, however ordinarily not beyond a period of 30 days in terms of the observations made above.
(d) Thereafter the Court shall consider the petition on a day to day basis. The court shall intimate this procedure and time frame to all the parties.
(e) Any objections, applications or anything of a like nature when filed, shall be considered by the Court which shall pass appropriate orders, either on the same day or certainly by the next day. However the 74 continuation of the petition on a day to day basis shall be maintained.
33. Under these circumstances, if the matter is not taken up on the next day for any exceptional circumstance, appropriate and substantial reasons have to be assigned by the trial Court for the same, which shall necessarily conform to the directions as mentioned hereinabove. The Court shall make an endeavour to conclude the trial as expeditiously as possible within 6 months from the date the election petition is filed, in terms of the above observations.
34. Under these circumstances, both the Counsel submit that they would co-operate in the day to day disposal of the petition from the next date onwards. The trial Court is directed to proceed with the election petition on a day to day basis from that date onwards.
75
ORDER Writ Petition Nos. 5727 to 5731/2011 are partly allowed in the following terms:
(i) I.A.II is allowed.
(ii)(a) I.A.III for amendment of the plaint is partly allowed. It is allowed to an extent as to what has been stated to be inculcated as para XV(a) which goes on as sub-paras (i), (ii), (iii), (iv) and continuation para-9 at pages 1, 2 and 3 of the application.
(b) The Continuation para-3 beginning with the sentence 'During time of campaigning xxxxx' is rejected.
(c) The para beginning with the sentence '2nd respondent is either way in eligible 76 and disentitled to contest xxxx' is allowed.
(d) The rest of the application is rejected.
(iii) I.A.IV is partly allowed with regard to item Nos. 1, 2, 7,8, 9 and 10. Item Nos.
3, 4, 5 and 6 are rejected.
(iv) I.A.VIII is partly allowed only with regard to item Nos. 2, 6, 7, 9 and 11. Item Nos.
1, 3, 4, 5, 8 and 10 are rejected.
(v) I.A.IX is partly allowed to an extent of item Nos. 2, 3, 4, 5 & 7. Item Nos. 1, 6, 8, 9 and 10 are rejected.
(vi) It is made clear that I.As. IV, VIII and IX are allowed for the sole purpose of substantiating the grounds urged in the election petition so far as relating to qualification is concerned. That the 77 documents allowed above are to be summoned only for that purpose and that they cannot be relied upon for any other purpose.
Writ Petition No. 30974/2011 is partly allowed in the following terms.
(i) It is dismissed so far as I.A.VI is
concerned. The order on I.A.VI is
confirmed.
(ii) In so far as I.A.VII is concerned, the order is modified by rejecting the application to the extent of Annexures- 61 to 73. It is allowed to the extent of Annexures-74 to
83. These documents shall be subject to proof and admissibility. The direction to the Election Officer shall continue. Writ Petitions are disposed off accordingly. 78
35. Sri D.Vijaya Kumar, learned Additional Government Advocate appearing for the Returning Officer/Tahsildar is permitted to file his memo of appearance within -2- weeks.
Sd/-
JUDGE Nsu/-