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TMI Blog2012 (12) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 with Section 81(3); Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 law. (x) Page No. 118 to 120, is not signed, initialled or verified by the Petitioner as per law, and even not the same as filed. (xi) Page No. 121 to 133, comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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 of its presentation. This is a ministerial act. There is no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 procedure is only a handmaiden, and not mistress of justice. 13. In the second part of the eighteenth objection (in para 5 of the I.A.), the Appellant herein pleaded vaguely that the Registry of the High Court gave an opportunity "to the Petitioner to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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/Respondents to the election petition. The ISSUE in the case is whether such allegations are MADE against Vijay Goel in the election petition and if MADE, is Vijay Goel required to be made a Respondent to the election petition. 18. It is pointed out by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outh 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 Annexure-I is made, is that the complaint, such as the one made by the election Petitioner, had also been made by another body called "Youth for equality" to the Election Commission of India and a copy of the complaint, allegedly, made by the said "Youth for equalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 election Petitioner is not legally obliged to implead Vijay Goel as a party-Respondent to the election petition. 25. If the complaint made by the "Youth for equality" to the Election Commission of India contains allegations of commission of corrupt pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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. 14.12.1966) (3) Every election petition shall be accompanied by as many copies thereof as there are Respondents mentioned in the petition and every such copy shall be attested by the Petitioner under his own signature to be a true copy of the petition. It stipulates: (i) The grounds on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, 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 returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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 relief sought by the Petitioner. Where a further declaration as contemplated under Section 101 is sought, the Petitioner is bound to make all the contesting candidates parties Respondents to the election petition. Where no such declaration is sought, the section stipulates that it is enough to make all the returned candidates at the election, parties to the election petition. The employment of the expression "all the returned candidates" is obviously meant to cover disputes relating to elections to Rajya Sabha or Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 other than his election agent], (Emphasis supplied) The clause "by an agent other than his election agent" occurring in Section 100(1)(d)(ii), must be understood in the light of Section 99 (2), which reads as follows: In this section and in Section 100, the expression "agent" has the same meaning as in Section 123. And Section 123(8) explanation, which reads as follows: In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion 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 corrupt practice falls; and (3) the names of all persons, who are proved at the trial to have been guilty of any corrupt practice. 45. The question of proof of the commission of a corrupt practice arises only if there is an appropriate pleading in that regard in the election petition. I have already noticed that Section 83 stipulates that an election petition, which contains allegations of corrupt practice, must contain full particulars of the "names of the parties" alleged to have committed a corrupt practice. I am of the opinion that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 xxx It would be stretching the words of Sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. 50. From the above, it can be seen that two propositions of law are settled by this Court. Firstly, when an election petition is accompanied by annexures, whose content is completely described in the election petition, failure to serve a copy of such an annexure along with the copy of the election petition on a Respondent to the election petition does not render th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. 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 absent the video cassette mentioned and verified in Schedule 14. 13. We are, therefore, satisfied that the video cassette mentioned and verified in Schedule 14 is an integral part of the election petition and that it should have been filed in court along with copies thereof for service upon the Respondents to the election petition. Whereas 15 copies thereof were filed for service upon the Respondents, the video cassette itself was not filed. The election petition as filed was, therefore, not complete." (Emphasis supplied) and held that in the absence of any par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 within the meaning of the expression under Section 82(b). 58. Obviously the allegations must be MADE by the election Petitioner. In a case like the one on hand where the election Petitioner does not make any such allegation in the body of the election petition, but such allegations are found in some document annexed to the election petition - of which the election Petitioner is not the author-can it be said that the allegations are MADE in the petition ? 59. In my opinion the answer to the question must be in the negative. Because, firstly, the document annexure is not authored ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ABIR, 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 differences contained therein. However, the provisions of Sections 82 and 83 of the 1951 Act have to be read harmoniously. While Section 82 relates to who should be made parties in the Election Petition, Section 83 relates to the contents of the Petition. As far as Section 82 is concerned, while Clause (a) provides that when in addition to claiming a declaration that the election of all or any of the returned candidates is void, the Petitioner 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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