Representation of the People Act, 1951 – s.86(1) r/w. ss.81(3), 83(1)(C) and 83(2) – Applications for dismissal of election petition – Respondent no.1 filed election petition challenging the election of the appellant to the Council of States – Appellant filed three applications for dismissal of the election petition – First applicationelection application no.2 was for dismissal of election petition on ground of non-removal of office objections raised by the office/registry of the High Court – Second application-election application no.3 urged dismissal of election petition u/s.86(1) r/w. ss.81(3), 83(1)(C) & 83(2) of the Act and under the provisions of the CPC and also under the High Court Rules as election petition served to appellant was not a ‘true copy’ – Third application-election application no.6 was for dismissal of election petition u/Or.VII, r.11(a) and (d) of CPC for non-disclosure of the cause of action – All three applications were rejected by the High Court – On appeal, held: In case of election application no.2, it is evident from the High Court Rules that the election petition is required to be placed for orders before the Court by the office only after removal of office objections as per r.285 and in the instant case, the record showed that the matter was placed before the Court u/r.285 – Thus, the High Court was right in rejecting the election application no.2 – In case of election application no.3, High Court committed error in noting that appellant did not file the original copy of the election petition – In that, appellant had not only submitted a photocopy of the election petition, but also gave an undertaking to produce the original on the next date of hearing and he did produce and handed over to the High Court – Thus, decision of the High Court on election application no.3 set aside – Application No.3 and the parties relegated before the High Court for de novo consideration of the said application – Insofar as election application no.6 is concerned, said application disposed of with liberty to the appellant to challenge the selfsame decision of the said application afresh in event the remanded election application no.3 is rejected – Gujarat High Court Rules, 1993 – rr.282, 283, 284 and 285 – Code of Civil Procedure, 1908 – Or.XIX r.3, Or. VII r.11(a) & (d).
Disposing of the appeals, the Court
HELD : 1. In the First application i.e. Election Application No. 2 of 2017, the High Court, in substance, opined that the averments in the said application preferred by the appellant were vague and unsubstantiated. On a bare perusal of the Gujarat High Court Rules,1993 it is evident that the election petition is required to be placed for orders before the Court by the office only after removal of office objections as per Rule 285. If the office objections are pending and not cured within the prescribed period, the office is obliged to list the matter before the Court for appropriate orders under Rule 284. For that reason, the High Court opined that in the absence of any positive statement in the application filed by the election petitioner and as the record would show that the matter was placed by the office before the Court under Rule 285, it must follow that the grievance made in the application under consideration was based on mere conjectures and surmises and cannot be the basis to dismiss the election petition at the threshold, as prayed. The view taken by the High Court was right and as a result, the order rejecting the application under consideration, being Election Application No.2 of 2017, deserves to be upheld. [Paras 6, 12][11-D; 17-E-H]
2.1 Reverting to the second application filed by the appellant, being Election Application No.3 of 2017, the High Court noted that the appellant did not file the original copy of the election petition served on him, but produced only a photocopy of the allegedly served copy of the election petition along with the application filed for that purpose, bearing Election Application No.3. The High Court noted that the only grievance of the appellant was that the copy of the election petition served on him did not contain the words: “True Copy”. [Paras 13, 14][18-A, D]
2.2 However, the grievance made by the appellant before this Court is that the factual position recorded by the High Court in the impugned judgment that the appellant had not produced the copy actually served on him in the Court is incorrect. In that, the appellant had submitted the photocopy of the actually served copy along with Election Application No.3 and had also undertaken to produce the original of the actually served copy at the time of hearing and that the same was so produced at the time of hearing and handed over to the High Court. This specific plea has been taken in ground (u) of the special leave petition. In other words, the High Court committed manifest error in that regard. If that is so, it would be appropriate to relegate the parties before the High Court for consideration of grievance that the copy actually served on the appellant is not the true copy within the meaning of Section 81(3) of the Representation of People Act, 1951. The appellant had also pointed out 20 discrepancies in the copy of the election petition served on him, which according to the appellant, were material discrepancies warranting a finding that the copy of the petition served on him was not a “True Copy” within the meaning of Section 81(3) of the Act. The High Court has not dealt with this contention in the impugned judgment at all. The decision of the High Court on the application under consideration, being Election Application No.3 of 2017, set aside. [Para 16][19-B-F]
3. The question to be decided in Election Application No.3 of 2017 for dismissal of the election petition, will be limited to non-compliance of Section 81(3) and the consequences flowing therefrom including under Section 86(1) of the Act. For, the dismissal of the election petition under the latter provision is envisaged only on that count and not in reference to some noncompliance of requirement under Section 83 of the Act. This is the settled legal position. [Para 17][19-H; 20-A]
4. Thus, the parties relegated before the High Court for consideration of Election Application No.3 of 2017 afresh in accordance with law, and in the event the appellant is in a position to persuade the High Court to allow the said application, the election petition will have to be dismissed at the threshold under Section 86(1) read with Section 81(3) of the Act. However, if that application fails, the appellant can be permitted to reopen or revive the challenge to the issues raised in Election Application No.6 of 2017 for dismissal of the election petition under Order VII Rule 11(a) & (d) of the Code of Civil Procedure, 1908 on the ground that the election petition does not disclose a cause of action or that it is barred by law. In that eventuality, the appellant may challenge the judgment rendered in the remanded Election Application No.3 of 2017 and also have the liberty to file fresh special leave petition against the impugned judgment and order passed by the High Court in Election Application No.6 of 2017. Further, both such special leave petitions can be heard together. [Para 18][20-B-D]
Chandrakant Uttam Chodankar v. Dayanand Rayu
Mandrakar and Ors. (2005) 2 SCC 188 : [2004]
6 Suppl. SCR 916 ; Murarka Radhey Shyam Ram
Kumar v. Roop Singh Rathore [1964] 3 SCR 573 ;
Ch. Subbarao v. Member, Election Tribunal [1964] 6 SCR 213 ; T.M. Jacob v. C. Poulose and Ors. (1999) 4 SCC 274 : [1999] 2 SCR 659 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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