TaxTMI 
TaxTMI 
2012 (12) TMI 1252
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....ommission of corrupt practices falling under Section 123(1), (2), (5), (6), (7) read with Section 127(a) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act"). The election Petitioner chose to implead only the Returning Officer of the No. 4 New Delhi Parliamentary Constituency and the Appellant herein as Respondents to the election petition. 4. The Appellant herein filed Interlocutory Application No. 13851 of 2009 invoking Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code of Civil Procedure") praying that the election petition be dismissed in compliance with the mandate contained in Section 86 of the Act, which stipulates "the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117". The said I.A., was dismissed by an order dated 30-05-2011. Hence, the Appeal. 5. The substance of the objections raised by the Appellant herein in the abovementioned interlocutory application is that the election petition filed by the 2nd Respondent herein is liable to be dismissed on three counts: Firstly, on the ground of non-compliance wi....
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....t record, the applicant/Respondent No. 2 has found the following deficiencies which are fatal to the petition. (i) None of the pages except the last two pages of the petition i.e. Page No. 36 & 37 are signed by the Petitioner. (ii) Affidavit in support is not as per Delhi High Court Rules and verification of the affidavit is not signed by the Petitioner. (iii) Para '2' of the affidavit at page No. 38, is not legible and does not contain the averments similar to the affidavit filed on record. (iv) Annexures from page No. 40 to Page No. 79 are neither signed nor verified by the Petitioner as required by law. (v) Page No. 80 to 81 are just illegible initialled by some person but those pages are also not verified. (vi) Page No. 82 to 98. are not properly paginated, nor signed verified or even initialled by the Petitioner. (vii)Page No. 99 to 102 are not signed, initialled or verified by the Petitioner as per law. (viii) Page No. 103 to 113, are not signed, initialled or verified by the Petitioner as per law. (ix) Page No. 114 to 117, are not signed, initialled or verified by the Petitioner as per l....
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....ments of Section 83 is not expressly declared to be fatal to the election petition. The said distinction is explained by this Court in Manohar Joshi v. Nitin Bhaurao Patil and Anr. (1996) 1 SCC 169 paras 20 and 21. 20. Section 86 empowers the High Court to dismiss an election petition at the threshold if it does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, all of which are patent defects evident on a bare examination of the election petition as presented. Sub-section (1) of Section 81 requires the checking of limitation with reference to the admitted facts and Sub-section (3) thereof requires only a comparison of the copy accompanying the election petition with the election petition itself, as presented. Section 82 requires verification of the required parties to the petition with reference to the relief claimed in the election petition. Section 117 requires verification of the deposit of security in the High Court in accordance with rules of the High Court. Thus, the compliance of Section 81, 82 and 117 is to be seen with reference to the evident facts found in the election petition and the documents filed along with it at the time....
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....nce, the election Petitioner had signed on the copies and, therefore, complied with the standard prescribed under Section 81(3). Similarly, the fact that the Registrar of this Court had initially notified some deficiencies which were cured, after which the matter was placed before the Court, which took cognizance of the petition, would mean that the election Petitioner was absolved of any fault. There is no doubt that the election petition, as originally presented, was within the time prescribed by law. Moreover, this Court cannot, enquire into the question as to whether and if so, to what extent, the copies furnished to the second Respondent were not complaint with Section 81(3) of the Act, that would amount to a mini trial - a procedure unknown to the Act and in fact contrary to its objective. While public interest lies in ensuring that suits or causes which are plainly barred by law, ought to be summarily rejected, equally the court should not be over zealous in the enforcement of provisions which are procedural, though aimed at expeditious trial, require substantial compliance. The larger Bench ruling in Murarka points to this, and the court is inclined to follow the adage that....
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....annexed as Annexure I similar allegations are made against Sh. Vijay Goel, a candidate at the said election which is under challenge and he is a necessary party as per the provisions of Section 82 of the Act. 16. A reading of the above paragraphs leaves us with the impression that the emphasis of the paragraphs is on the belief of the Appellant that the election petition is a proxy litigation undertaken by the election Petitioner on behalf of the unsuccessful BJP candidate. It is only in the last sub-paragraph extracted above, a cryptic legal objection is raised that in view of the fact that Annexure-I of the election petition not only contains allegations of commission of corrupt practice by the Appellant herein, but also by Vijay Goel (BJP candidate). In view of the requirement of Section 82(b) of the Act, Vijay Goel must also have been made a Respondent to the election petition and failure to so implead is fatal to the election petition. 17. No doubt, Section 82(b) on a plain reading or on the principle of literal construction, seems to require that all the candidates against whom allegations of commission of corrupt practice are MADE IN THE PETITION must be made parties/R....
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....e Complaint specifically states that the Respondent No. 2 has incurred a huge expenditure on hoardings and had exceeded the prescribed expenditure limit of Rs. 25 lakhs. The copy of the complaint dated 5th May, 2009 is marked and annexed herewith as ANNEXURE-H. Youth for equality had also filed similar complaint with the Election Commissioner of India to take action that all hoarding put up at private places be pulled down and add the market cost on the these site be added to the expenditure account of the candidate. The copy of the complaint to the Election Commissioner of India is marked and annexed herewith as ANNEXURE-I. 21. It is the said Annexure-I, which makes a reference to the name of Vijay Goel. I may make it clear that except a mention in the said annexure, the name of Vijay Goel is not mentioned anywhere in the body of the election petition. It can be seen from the above extracted pleading of the election Petitioner that he referred to the abovementioned Annexure-I in the context of the commission of a corrupt practice falling under Section 123(7) r/w Section 77 of the Act by the Appellant herein. The substance of the allegation, where a reference to Annexur....
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....is a failure to comply with the requirements of Section 82, which is declared to be fatal to the election petition under Section 86 of the Act. 24. On the other hand, learned senior counsel Shri Ranjit Kumar appearing for the Respondent-election Petitioner argued that the proposition of law settled by this Court that an annexure or schedule to the election petition becomes an integral part of the election petition only in certain circumstances, but it is also recognised by this Court that in certain other circumstances annexures are only evidence of the allegation contained in the election petition, but not an integral part of the pleading of the election petition. Shri Ranjit Kumar submitted that the purpose of the election petition with reference to the annexure-I is only to derive support to his allegation of the commission of corrupt practice by the Appellant herein by demonstrating that such allegation against the Appellant is not only made by the election Petitioner but also by others during the course of the election. It is neither the intention of the election Petitioner to make any allegation of corrupt practice nor seek any relief against Vijay Goel. Therefore, the ele....
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....t "no election shall be called in question except by an election petition presented in accordance with the provisions of this part". 29. Section 80A invests the power to try election petitions in the High Court. Section 79(e) defines the High Court to mean, the High Court within the local limits of whose jurisdiction the disputed election took place. 30. Section 81 deals with the presentation of election petitions: 81. Presentation of petitions.--(1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. Explanation.--In this Sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (2)... (Omitted by Act 47 of 1966, Section 39 (w.e.f. 14.12.19....
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....an affidavit in the prescribed form and also every annexure or schedule to the petition be signed and verified in the same manner as the petition. 33. Section 84 stipulates the reliefs that can be sought in an election petition. It reads: 84. Relief that may be claimed by the Petitioner: A Petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. It can be seen from the above that in an election petition the Petitioner can claim declaration that; (1) the election of a returned candidate is void; and (2) a further declaration that either the Petitioner himself or any other candidate has been duly elected. 34. We have already noticed that Section 81 stipulates that an election can be challenged only on one or more of the grounds specified under Sections 100 Section 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....
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.... matter of the Petitioner's choice. It is for the Petitioner to decide whether he would be satisfied with a declaration of nullity of the election of the returned candidate or a further declaration such as one contemplated under Section 101 is to be sought. 36. However, as to who should be made parties/Respondents to an election petition is stipulated under Section 82 and not left to the choice of an election Petitioner. Section 82 reads thus: 82. Parties to the petition.--A Petitioner shall join as 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 election, 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. 37. It can be seen from Section 82 as to who should be made parties to an election petition depends upon two factors. 38. The first factor is the nature of the relie....
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....nt of either the returned candidate or his election agent, "the High Court shall declare the election of the returned candidate to be void". Section 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).... (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;.... The said section also stipulates that if it is established before the High Court that a corrupt practice has been committed in the interest of the returned candidate by an agent other than his election agent, then, the High Court is also required to form an opinion that "the result of the election, insofar as it concerns returned candidate, has been materially effected", before declaring the election of the returned candidate void. Section 100. (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i).... (ii) by any corrupt practice committed in the interests of the returned candidate [by an agent ot....
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.... petition shall set forth "as full a statement as possible of the names of the parties alleged to have committed such corrupt practice". In my opinion the employment of the expression "Parties" in the abovementioned clause is to compendiously cover the returned candidate, his election agent or any other person committing a corrupt practice with the consent of either the returned candidate or his election agent or any other agent committing a corrupt practice falling within the scope of Section 100(d)(ii). 44. Section 98 stipulates that at the conclusion of the trial of an election petition, the High Court is obliged to make an order either dismissing the election petition or declaring the election of a returned candidate void apart from giving a declaration that another candidate to have been duly elected in an appropriate case, where such a relief is sought successfully. Section 99 of the Act stipulates that the High Court is also obliged to make an order in an election petition where a charge of corrupt practice is made; (1) whether such a charge is proved or not; (2) the nature of the corrupt practice, i.e., under which one of the Sub-sections of Section 123 of the Act the co....
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....f the election petition served on Ram Singh was not accompanied by a copy of the pamphlet. 49. Dealing with the question whether such a copy served on Ram Singh was a true copy within the meaning of Section 81(3) of the Act, this Court held as follows: we would say that since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet was served upon the Respondents although in a translation and not in a original. Even if this be not the case, we are quite clear that Sub-section (2)of Section 83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures. It was further held by this Court: But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force tot eh petition are not kept back but produced or filed with the election petitions. xxx xxx ....
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....Lok Sabha from Sambhal Parliamentary Constituency. Dharam Pal Yadav, one of the other candidates, filed an election petition on various grounds. One of the grounds is commission of the corrupt practice of booth capturing falling under Section 123(8) of the Act. There were 15 Respondents to the election petition and 25 schedules. Schedule 14 pertains to the allegation of corrupt practice. In the election petition, it was averred that there was booth capturing, arson, violence in large scale which was captured in videograph under the orders of the Election Commission. A copy of the said videograph was averred to had been attached to the election petition as Schedule 14. On the facts, this Court recorded at para 12 and 13 as follows: 12. xxx xxx xxx As to booth-capturing, there are particulars contained in the other schedules but even in that regard the later paragraphs of the election petition make reference to Schedule 14 so that even in regard to booth-capturing the particulars shown in the video cassette mentioned and verified in Schedule 14 are relied upon. So far as the allegations of violence and arson are concerned, there are no particulars in the election petition ab....
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....ial. Therefore, non-supply of the annexure in such cases was held to be immaterial and the copy of the election petition supplied to the returned candidate sans the annexure would still be a true copy within the meaning of the expression under Section 81(3). It is in this context the Court observed that the annexure became part of the election petition. 56. In my opinion, none of the abovementioned three cases laid down as an absolute principle that an annexure to an election petition, whose content is not described in the election petition, would become the integral part of the election petition for all the purposes. It is only for a limited purpose of deciding the question whether a copy of the election petition, served on the Respondent in the election petition, is a true copy of the original filed into the Court within the meaning of Section 81(3) of the Act, annexures are treated as integral part of the election petition, that too, only in the situation, where the content of the annexure is not fully described in the body of the main petition. 57. Now, I shall examine the question whether the allegations of commission of corrupt practice are MADE in the election petition....
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....is not necessary for the present in view of my conclusion recorded above, I refrain from examining the correctness of the said decisions. 62. In the result, I hold that the election petition cannot be dismissed on the ground that Vijay Goel is not made a party. But, in so far as the question whether the election petition is required to be dismissed on the ground that the copy served on the Appellant is not the true copy of the original within the meaning of Section 81(3), I remit the matter to the High Court for disposal in accordance with law and in the light of this judgment. ALTAMAS KABIR, C.J.I 63. Having had the privilege of going through the draft judgment of my learned Brother, Jasti Chelameswar, J., I am in agreement with the conclusions arrived at by him as also the directions to remit the matter to the High Court for disposal in accordance with law in the light of the views expressed in the judgment. I, however, wish to add a few words in addition to what has been stated by my learned Brother. 64. In dealing with the provisions of Sections 82 and 83 of the Representation of the People Act, 1951, my learned Brother has very dexterously pointed out the differenc....