Delhi High Court
K.K. Shukla vs Vijay Kumar Goel And Ors. on 13 September, 1996
Equivalent citations: 64(1996)DLT56
JUDGMENT
M.K. Sharma, J.
(1) This Election Petition has been preferred by the petitioner under Section 80 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) challenging the election of respondent No. I to the House of the People from the Sadar Lok Sabha constituency on various grounds including that of the allegations of corrupt practice.
(2) Before I advert to the issue arising for my consideration in the present petition in respect of which submission has been made by the learned Counsel appearing for the petitioner it would be necessary to delineate the facts giving rise to the present petition.
(3) The President of India issued a notification under Section 14 of the Act to hold General Elections for the purpose of constituting the 11th Lok Sabha. Pursuant to the aforesaid notification issued by the President of India the Election Commission issued public notice under Section 31 of the Act for holding elections for the aforesaid purpose. Under the notification issued by the Election Commission of India the last date for filing the nomination papers was 3rd April, 1996.4th April, 1996 was scheduled for scrutiny of nomination papers and 6th April, 1996 was slated for withdrawing the candidature from the election fray. 27th April, 1996 was fixed for holding the election for the purpose of electing a Member to the House of People from the Sadar Lok Sabha Constituency.
(4) The petitioner was an official candidate of Janata Dal (R) and he filed his nomination papers for contesting the election from the Sadar Lok Sabha Constituency. The respondent No. I was a candidate from the same constituency and contested the election as an official candidate of Bhartiya Janata Party. Respondent No. 18 also contested the election as an official candidate of the Indian National Congress. The polling for the election to the Sadar Lok Sabha Constituency took place on 27.4.1996 as scheduled. The Returning Officer, after counting of the valid Ballot papers declared the respondent No. I elected as having obtained the majority of valid votes. The petitioner having lost in the said election has now preferred the present Election Petition.
(5) The Election Petition was presented by the Advocate for the petitioner in the Registry of the High Court at 12.00 Noon on 29.6.1996.
(6) The procedure for presentation of an Election Petition to High Court is laid down in Chapter Ii of the Act. The relevant provisions of the said Act having a bearing on the present petition are extracted below : “80. Election Petitions.-No election shall be called in question except by an election petition presented in accordance with the provisions of this Part. 81. Presentation of Petitions.-(1) *** *** *** (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. 83. Contents of petition- (1) *** *** *** *** *** (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 86. Trial of election petitions.-(t) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.”
(7) The Delhi High Court being so empowered, framed a set of Rules called Election Rules vide Notification No. 21 dated 28.4.1967 and published in Delhi Gazette, Part Ii, Section 18 dated 18.5.1967. The relevant provisions having bearing on the present petition are extracted below : Rule 5. The election petition alongwith the necessary copies may be presented at any time during the Court Hours. Immediately after it is presented, the date of presentation shall be endorsed thereon, and the petition shall be entered in the special register maintained for the registration of election petitions. Rule 6. After the petition is presented, the party or Advocate shall be asked to attend the office on the third day from the date of the presentation to remove objections, if any. An undertaking in writing will be obtained from the party or Advocate to remain present in the office on the date appointed. The petitioner shall furnish his address preferably in Delhi or Simla, as the case may be, where any communication may be addressed to or served on him. Rule 7. The office shall examine the petition with a view to see whether it is in conformity with the requirements of law and the rules, applicable to the same, and if it is not in conformity with law and the rules, raise objections which could be removed by the party or the Advocate concerned. These objections should be brought to the notice of the party or the Advocate on the date fixed for attendance under Rule 6 and such objections shall be removed, subject to the orders of the Court, if any, within two days thereafter. Rule 8. Immediately after the time fixed for the removal of objections has expired, the petition shall be placed before the Court for such order, as may be required to be passed under Section 86 of the Act. If the petition is not dismissed under section 86(1) of the Act, a summons on direction of the Court shall be issued to the respondents to appear before the High Court on a fixed date and answer the claim or claims made in the petition. Such date shall not be earlier than three weeks from the date of the issue of the summons. The summons shall be for written statement settlement of issues.”
(8) After presentation of the aforesaid Election Petition in this Court the Registry of the High Court scrutinised the Election Petition in accordance with the provisions of the Election Rules framed by the High Court. In the Course of the aforesaid scrutiny the Registry found 9 defects and raised objections in respect of the said 9 defects including that of the Election Petition not being accompanied by as many copies thereof as there are respondents mentioned in the petition, and attested by the petitioner under his own signatures to be true copy of the petition. With the aforesaid objections the Election Petition was put up for necessary orders before the Court on 24.7.1996. However, none represented the petitioner on that date. The case was adjourned and was listed on 25.7.1996. Since in all 9 defects were pointed out including that of the Election Petition not being accompanied by as many copies as there are respondents, this Court on 25.7.1996 noticed the relevant provisions of the Act and Election Rules framed by the High Court and when this Court asked the Counsel for the petitioner as to whether the provisions of Section 81(3) of the Act were complied with or not the Counsel for the petitioner fairly stated that he had not filed copies of the petition at the time of presentation of the petition in the Registry. It was further recorded in the said order passed by this Court on 25.7.1996 that in view of the aforesaid non-compliance of the provisions of Section 81(3) at the time of presentation of the Election Petition the issue that arises for consideration of the Court is as to whether the Election Petition was properly presented in accordance with the provisions of Representation of the People Act and the Election Rules framed by the High Court and if not what would be the effect of the non-compliance on election petition. Learned Counsel for the petitioner however, sought for an adjournment to look into and examine the aforesaid issue and thereafter to make his submissions and accordingly, the case stood adjourned to 13.8.1996 when the matter was again adjourned at the request of Counsel for the petitioner and finally the Counsel for the petitioner was heard on the aforesaid issue on 30.8.1996.
(9) The subject of controversy at the present stage lies in a very narrow compass namely – as to whether an Election Petition presented without copies for as many respondents as there are, is maintainable or not? The further issue is – if there is non-compliance of the provisions of Sub-section (3) of Section 81 whether the Election Petition is maintainable and that the election petition could be dismissed for such non-compliance at the very threshold itself ?
(10) It is an admitted fact that the Election Petition when presented in the Registry of this Court was not accompanied by as many copies as there are respondents and attested by the petitioner under his own signatures to be true copy of the petition. It is the admitted position on behalf of the petitioner that till date no such copies of the Election Petition have been filed in the Registry with attestation by the petitioner under his own signatures.
(11) The learned Counsel appearing for the petitioner submitted before me that so far as the provisions of Section 81(3) are concerned the same should be read alongwith the provisions of Rules 6,7 & 8 of the Election Rules framed by the High Court, and so read it is apparent that the aforesaid provision of Election Petition to be accompanied by as many copies there of as there are respondents mentioned in the petition is directory in nature and that it is the obligation of the Registry to point out the defects to the petitioner in presentation of the election petition and when so done such copies or the election petition could be filed by the election petitioner. In support of his submission the learned Counsel relied upon the decisions of the Supreme Court in Raj Narain v. Indira Nehru Gandhi; , and in F.A. Sapa & Others v. Signora & Others . The learned Counsel further submitted that the substantive election petition is already before the Court and if the petition is not in conformity the petitioner should be given an opportunity to make good the deficiency and that the provisions of Section 81(3) should not be read in a pedantic manner so as to dismiss an election petition.
(12) I have given by utmost consideration to the submissions of the learned Counsel appearing for the petitioner and have also considered the decisions relied upon by the learned Counsel. The case of Raj Narain (Supra.) relates to amendment of pleadings wherein it was held by the Supreme Court that the Court should be ordinarily liberal in allowing amendment of pleadings and that an election petition is not liable to be dismissed in limine because full particulars of corrupt practices alleged were not set out. The learned Counsel for the petitioner further relied upon the observations of the Supreme Court in the said case to the effect that if an objection was taken and the Tribunal was of the view that full particulars have not been set out the petitioner has to be given an opportunity to amend or amplify the particulars.
(13) The said decision given by the Supreme Court relates to an issue in respect of the amendment of pleadings in an election petition and deal with the interpretation of Section 83(1) of the Act. The said case does not deal with the issue of an election petition not accompanied by attested copies for as many respondents as there are which is laid down in Section 81(3) of the Act. The aforesaid decision is, therefore, clearly distinguishable and is not applicable to the facts of the present case. The other decision of the Supreme Court in F.A. Sapa (Supra) relied upon by the Counsel for the petitioner is not applicable to the facts and circumstances of the present case in view of the fact that the same relates to the amendment of verification and the affidavit accompanying the petition which are to be incorporated as laid down in Section 83 of the Act. The said case also relates to amendment or amplification of particulars of corrupt practice under Section 86(5) of the Act wherein it was held by the Supreme Court that the High Court should be liberal in allowing amendment/amplification. The said case also is, therefore, clearly distinguishable from the facts of the present case and is in no way relevant for the purpose of deciding the issue arising for my consideration in the present petition.
(14) Section 81 of the Act gives a mandate that at the time of presentation of the election petition each election petition shall be accompanied with as many copies as there are respondents mentioned in the petition. In other words, the election petitioner at the time of presenting the election petition has also to file copies of the election petition as presented for all the respondents and each of the aforesaid copies is to be attested by the petitioner under his own signatures to be a true copy of the election petition. Section 86 of the Act, on the other hand, clearly mandates that if there be any non-compliance of the provisions of Section 81 or Section 82 or Section 117 the High Court shall dismiss an election petition. The Election Rules framed by the High Court also lay down in Rule 5 that an election petition alongwith necessary copies may be presented at any time during the Court hours and that immediately after it is presented the date of presentation shall be endorsed thereon and the petition shall be entered in the Special Register maintained for the registration of the election petitions. After an election petition is so presented the Registry shall scrutinise the election petition with a view to see whether it is in conformity with the requirements of law and the Rules applicable to the same and if it is found that the same is not in conformity with the law and the Rules, raise objections which could be removed by the parties or the Advocate concerned. It is settled law that the provisions of the Rules cannot override or negate the provisions of the Act enacted by the Legislature. Therefore, the provisions of the Rules are to be read harmoniously with that of the provisions of the Act. Rule 5 of the Election Rules clearly stipulates that an election petition alongwith the necessary copies of the election petition for the respondents are to be presented during the Court hours. When the provisions of the Act and the Rules are so read and understood, there could be no other interpretation but to hold that the provisions of Section 81 are mandatory in nature and non-compliance of the same entails dismissal of the election petition in limine by the High Court.
(15) In U.S. Shashidharan v. K. Karunakaran, ; the Supreme Court has held that Section 86(1) is a mandate on the Court to dismiss an election petition if there be a non-compliance of provisions of Section 81(3) of the Act. It is further held by the Supreme Court that both Section 81 (3) and Section 86(1) are mandatory in nature and if there be any non-compliance with the mandatory provisions of Section 81(3) the Court is bound to dismiss the election petition. The aforesaid decision rendered by the Supreme Court is a direct case on the issue that arises for my consideration and following the ratio of the aforesaid decision I hold that the provisions of Section 81(3) of the Act are mandatory and non-compliance of the same would entail dismissal of the election petition by the High Court as provided for under Section 86(1) of the Act. Since in the present case the petitioner did not file copies of the petition at the time of presentation of the election petition and the election petition admittedly having not been accompanied by as many copies thereof as there are respondents with attestation of the petitioner under his own signatures, the present writ petition is not maintainable and is accordingly dismissed. Since the election petition is dismissed in limine no order is made in respect of payment of costs. The security deposited by the petitioner in terms of Section 117 of the Act shall be returned to the election petitioner.