1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPLICATION NO.4 OF 2009 WITH APPLICATION NO.5 OF 2009 WITH APPLICATON NO.7 OF 2009 IN ELECTION PETITION NO.2 OF 2009 Delkar Mohanbhai Sanjibhai ...Petitioner Versus Patel Natubhai Gomanbhai & Ors. ...Respondents ...... CORAM:- A.M.KHANWILKAR, J DATED :- MARCH 19, 2010. PER COURT : 1. This common order will dispose of Application No.4 of 2009, 5 of 2009 and 7 of 2009 together. 2. The above numbered Election Petition has been filed to declare the Election of Respondent No.1 from the parliamentary constituency of UO3, Dadra & Nagar Haveli as void and to further declare that the Petitioner has obtained majority of valid votes and declared as elected in respect of parliamentary constituency of Dadra & Nagar Haveli UO3 in the 15th 2 Loksabha Elections held on 30th April 2009. The Petitioner contested the Election as nominated candidate of Indian National Congress Party, whereas, the Respondent No.1 contested as nominated candidate of Bharatiya Janata Party. The ground on which the above declaration is sought is that the Respondent No.1 himself and his agent and other persons indulged in corrupt practice within the meaning of Section 123(1)(A) and 123(2) and 123(3) of the Representation of the People Act, 1951 (hereinafter referred to as `the Act of 1951’). Pursuant to the issuance of notice by this Court on 17th July 2009 in the above said Election Petition and service thereof on the concerned Respondents, the Respondent No.1 and Respondent No.8 have filed the above mentioned Applications. 3. Application No.4/2009 has been filed by the Respondent No.1 praying for dismissal of the Election Petition under Section 86 r/w Section 81(3) and 82 of the Act of 1951 for the reasons mentioned therein. During the pendency of this Application, the Respondent No.1 has filed another Application being Application No.7/2009 praying for amendment of Application No.4/2009 as per the Schedule to the said Application. This Application was proceeded on clear understanding of all parties that the Court would grant the relief of amendment as prayed and the arguments to 3 continue as if the amendment in terms of Schedule to the Application is already effected in the Application No.4/2009. 4. Besides, the above two Applications, the third Application being Application No.5/2009 has been filed by Respondent No.8 for the same relief of dismissal of Election Petition under Section 86 r/w Section 81(3) and 82 of the Act of 1951. The reasons stated in this Application are overlapping with the reasons stated in Application filed by Respondent No. 1 for the same relief. 5. Reverting to the grounds stated in the Application No.4/2009, it is the case of the Respondent No.1 that the Petitioner was obliged to file at least 20 copies of the Election Petition when the Election Petition was presented for effecting service on ten Respondents by two different modes provided under Rule 9 and Rule 10 of the Rules of the Bombay High Court in regard to the Election Petitions under the Act of 1951 (hereinafter referred to as the `Election Petition Rules’). It is stated that the Election Petition was lodged on 25th June 2009 when the concerned Officer made noting that the Office to accept for lodging along with ten copies. However, there is no indication that the Petitioner had in fact lodged ten copies along with the Election 4 Petition on 25th June 2009. Even Paragraph 36B of the Petition does not specify as to how many number of spare copies have been supplied/furnished/tendered along with the Election Petition at the time of lodging the same. According to the Respondent No.1, no copies were supplied/furnished or tendered by the Petitioner at the time of lodging of the Election Petition. It is further stated that certain objections were raised by the Office and the same were removed on 26th June 2009. Moreover, ten copies of the Election Petition came to be tendered in the Office and accepted by the Officer on 30th June 2009 illegally and without authority of Law. For, once a Petition is filed and numbered, no addition or deletion thereto could be made without the permission of the Court. It is stated that the Respondent No.1, in all, received two copies of the Petition served through two different modes- one through courier service and another through RPAD. That goes to show that the Petitioner had not filed ten copies at the time of lodging the Petition, much less, twenty copies as was required to effect service on the ten Respondents in the Petition by two different modes as per the Election Petition Rules. It is further asserted that the Petition served on the Respondents did not contain attestation of the Petitioner under his own signature to be a true copy of the Petition. In Paragraph 2 of the Application, reference is made to Page Nos.47, 50, 65, 5 76, 79, 83, 86, 88, 104, 107, 110, 112, 114, 119, 121, 124, 126, 129, 132, 136, 138, 140, 142, 144, 146, 148, 150, 152, 154, 156, 158, 160, 162, 164, 166, 169, 172, 174, 177, 179, 182, 184, 187, 189, 192, 194, 197, 199, 202, 204, 211, 213, 215, 248, 252, 258, 261, 263, 266, 268, 301, 305, 307, 309, 311, 313, 316, 353, 355, 357, 362, 365, 370, 404, 406, 408, 410, 412 of the Election Petition which according to the Respondent No.1 have not been attested by the Petitioner under his own signature to be a true copy of the Petition. It is stated that upon taking inspection of the original Election Petition on 18th August 2009, it was noticed that the above numbered pages wherein the Petitioner had done verification in respect of certain documents, but he did not attest the said pages under his own signature. According to the Respondent No.1, therefore, there was breach of Section 81(3) of the Act of 1951, entailing in dismissal of Election Petition under Section 86 of the Act of 1951. 6. It is next contended that the Petitioner has annexed colour photos of the photographs relied upon in the Election Petition, whereas, the copy served on the said Respondent was xerox copy (black and white copy) of the photographs. More so, photographs were not legible and the Applicant is unable to discern the same and identify the persons shown in the 6 photographs. For that reason, the Respondent/Applicant was prejudiced in formulating his defence. Reference is then made to certain pages which are stated to be illegible, namely; 139, 149, 151, 157, 159, 214, 216, 217, 251, 260, 265, 267, 269, 270, 283, 284, 285, 286, 299, 302, 304, 306, 308, 315, 317, 372, 373, 385, 386, 388, 389, 393, 405, 407, 409, 411, 413, 418, 422, 427, 428, 441, 444, 447, 456, 457, 458, 460, 462, 464, 479 and 486. For the above reasons, it is stated that the copies of photographs which have been furnished to the Applicant were not true copies of the Annexure of the Election Petition and the copy served on the said Respondent therefore not being a true copy of the Election Petition would entail in dismissal of the Election Petition for breach of Section 81(3) of the Act of 1951. 7. To buttress the above argument, the Counsel appearing for the Respondent No.1 handed over the two copies received by the said Respondent along with the notices. The same have been taken on record and kept in a sealed cover as has been noted in the order dated 11th December 2002. Be that as it may, the Respondent No.1 in his Application has further stated that the Petitioner was obliged to furnish English translation of the vernacular documents which were appended to the Election Petition as is required by Rule 28 of the Election Petition Rules 7 r/w Rule 42 of the Bombay High Court (Original Side) Rules. However, the Petition served on the Respondent/Applicant contained many pages in vernacular language, which are exhibited along with the Election Petition without English translation thereof. Therefore, the Election Petition as filed is defective and the Office ought not to have allowed filing of such defective Petition. Besides, such defective Petition was served on the Respondent/Applicant which cannot be treated as true copy of the Petition. According to the said Respondent/Applicant even till filing of the Application, the Petitioner had not furnished the English translation of the said documents, for which reason, the defective Election Petition will have to be treated as barred by limitation. Even for this reason, the Respondent/Applicant has prayed for dismissal of Election Petition under Section 86 of the Act of 1951. 8. It is next asserted that the Petitioner has made reference to certain documents in the Election Petition which are in vernacular language. On account of non furnishing of English translation thereof, the same would become integral part of the Election Petition. Resultantly, the Election Petition as served on the Respondent/Applicant was not a true copy within the meaning of Section 81(3) of the Act of 1951 for want of English 8 translation of such vernacular documents. The said Respondent/Applicant has then made reference to Paragraph 16 of the Petition to indicate that it refers to Luhari Times Magazine of March 2009, containing a photograph of Lalit Patel on the dais along with Narendra Modi on 25th April 2009. According to the Applicant, the photograph was integral part of the Election Petition and not merely a piece of evidence. In absence of photograph, the averment in Paragraph 16 would be incomplete. For that reason, the Election Petition was liable to be dismissed under Section 86 r/w 81(3) of the Act of 1951. 9. The said Applicant has then made reference to Paragraph 21 of the Election Petition which in turn mentions about page 3 of Luhari Times of April 2009 which document is in vernacular language and English translation whereof has not been furnished. This, according to the Applicant also formed integral part of the Election Petition. Accordingly, the Election Petition was liable to be dismissed by virtue of Section 83(3) of the Act of 1951. 10. In Paragraphs 6 and 7 of the Application, it is stated that the Election Petition contains allegations pertaining to acts of commission and omission 9 of period anterior to the date of candidate's nomination. Accordingly, such allegations ought to be struck off under the provisions of the Code of Civil Procedure. However, during the course of arguments, Counsel appearing for the Applicant, in all fairness, submitted that this ground cannot be the cause for dismissal of the Election Petition under Section 86 of the Act of 1951. In the circumstances, the Applicant would reserve the said ground and take out necessary proceedings in that behalf. In the circumstances, it may not be necessary to dilate further on this aspect with clear understanding that the Applicant would be free to ask for appropriate relief as may be advised in this behalf, which will be considered on its own merits. 11. In Paragraph 8 of the Application, it is stated that the Election Petition should be dismissed under Section 86 r/w Section 82 of the Act of 1951 for misjoinder of parties and more particularly, for impleading parties contrary to Section 82 of the Act of 1951. It is stated that Respondents 5, 8, 10 and 11 have been impleaded as party to the Election Petition. Therefore, the Election Petition should be dismissed. 12. As aforesaid, during pendency of this Application No.4/2009, the 10 Respondent No.1 has filed Application No.7/2009 praying for amendment of the pending Application. By way of amendment, as articulated in the Schedule to the Application, the Respondent No.1/Applicant asserted that the Petitioner was obliged to effect service on the Respondents by modes provided under Rule 9 and Rule 10 of the Election Petition Rules. As per Rule 10, the Petitioner was required to furnish extra copies of the Petition to be served along with the summons by registered post. Besides, by order dated 17th July 2009, the Court had directed the Petitioner to serve the Respondents in addition. However, the Applicant has received only two copies of the Election Petition, one by R.P.A.D. and the other by courier service. The copies received by R.P.A.D. are stitched in book form as per Rule 3, whereas, copy received by courier service is not stitched in book form as per the said Rule. It is stated that as the Election Petition pertain to Dadra Nagar Haveli District, which was outside the Greater Mumbai, it was mandatory on the part of the Petitioner to serve the Respondents through District Judge of Dadra Nagar Haveli as per Rule 9 of the Election Petition Rules. Service by mode provided in Rule 9 was mandatory and failure to serve by that mode, was fatal. It is further averred that Respondent is prejudiced by the act of Office of this Court in allowing the Petitioner to withdraw copies of the Election Petition for service on the Respondents 11 which were allegedly supplied by the Petitioner. Because, it is not clear as to whether the same copies which were earlier submitted by the Petitioner in the Office, were received by the Respondent along with the summons served on the Respondents. It is stated that the Respondent has not received copy of the Election Petition as per Rule 9 which service was to be effected by the District Judge. According to the said Respondent/Applicant, there is neither any outward entry made regarding dispatch of notice to District Judge or any inward entry for having received the intimation from the District Judge regarding service on the Respondent. According to the said Respondent/Applicant if one copy out of the copies to be served on him by different modes was to be defective, would give right to the Respondent to apply for dismissal of the Election Petition on account of non-service of notice by modes provided in Rules 9 and 10 of the Election Petition Rules, having caused prejudice to the Respondent. For all these reasons, the Respondent No.1 prays for dismissal of the Election Petition. 13. Insofar as Respondent No.8 is concerned, in his Application No. 5/2009, overlapping grounds have been raised for dismissal of the Election Petition. It is stated that every Election Petition shall be accompanied by as many copies thereof as there are Respondents in the Petition and every such copy shall be attested by the Petitioner under his own signature to be a true 12 copy of the Petition. It is then stated that under Rule 10 in addition to service of summons to be effected under Rule 9 of the said Rules, a summons shall also be sent to the Respondents to the address given by the Petitioner by registered post prepaid for acknowledgment and for that purpose, the Petitioner has to furnish extra copies of the Petition to be served along with the summons by registered post. According to the Respondent No.8, the Petitioner was under obligation to file the Election Petition accompanied by copies as provided under Section 81(3) of the Act of 1951 and for the purpose of Rule 10 of the Election Petition Rules under Appendix II. It is then stated that upon taking inspection of the original file of the Election Petition on 18th August 2009 it has been noticed that the Petition was lodged on 25th June 2009. The Officer concerned made a note that the Registry to accept the said Petition for lodging along with ten copies. It is stated that though the Petition was accepted by the Registry on 25th June 2009, there is no noting that the same was accompanied by ten copies, as directed by the Officer concerned. It was further noted that the Registry had raised certain objections and according to the noting thereon, the said objections were complied with on 26th June 2009 and the Petition was filed on 29th June 2009. Further, there is a noting dated 30th June 2009 by the Officer concerned that “ten copies of the Election Peittion had 13 been tendred in the Registry on 30th June 2009” and the Officer concerned has accepted the same, which was illegal and without any authority of law. According to the said Respondent, acceptance of ten copies by the Officer concerned of the Registry after the Petition was numbered under the garb that it was in compliance of the objections raised, was impermissible. In that, the Officer could not have allowed removal of objections in the Election Petition without order of the Court once the Petition was numbered. In other words, the Officer had no power to take the said spare copies on record. According to the said Respondent, the Petition deserves to be dismissed on account of non compliance of Section 81(3) of the Act of 1951 read with Rule 10 of the Election Petition Rules in Appendix II of the High Court (Original Side) Rules r/w Section 86 of the Act of 1951. 14. In Paragraph 7 of this Application, the Respondent No.8 has asserted that upon inspection of the original Election Petition, it is noticed that the original copy is containing the coloured photographs at pages 139, 149, 151, 157, 159, 214, 216, 217, 251, 260, 265, 267, 269, 270, 283, 284, 285, 286, 299, 302, 304, 306, 308, 315, 317, 372, 373, 385, 386, 388, 389, 393, 405, 407, 409, 411, 413, 418, 422, 427, 428, 441, 444, 447, 456, 457, 458, 460, 462, 464, 479 and 486, but the copies served upon the said Respondent 14 does not contain coloured photographs but photo copies (black and white) thereof which were not legible. Therefore, the Election Petition as served upon the said Respondent was not a true copy and violated mandate of Section 81(3) of the Act of 1951, for which, it deserves to be dismissed under Section 86(1) of the Act of 1951. 15. In Paragraph 8 of the Application, the Respondent No.8 has asserted that although the Petitioner is expected to sign the Petition under his own signature as true copy, but has not done so. That can be discerned from pages 47, 50, 65, 76, 79, 83, 86, 88, 104, 107, 110, 112, 114, 119, 121, 124, 126, 129, 132, 136, 138, 140, 142, 144, 146, 148, 150, 152, 154, 156, 158, 160, 162, 164, 166, 169, 172, 174, 177, 179, 182, 184, 187, 189, 192, 194, 197, 199, 202, 204, 211, 213, 215, 248, 252, 258, 261, 263, 266, 268, 301, 305, 307, 309, 311, 313, 316, 353, 355, 357, 362, 365, 370, 404, 406, 408, 410, 412. The first signature as deponent relates only to the execution of the verification, while the second signature relates to the entire page. Thus, both the signatures were to be made for different purposes but the Petitioner has failed to do so. Accordingly, the Petition deserves to be dismissed under Section 86 r/w Sections 81(3) and 82 of the Act of 1951. 15 16. The Petitioner has filed reply affidavit to counter the case made out by the Respondents in the aforesaid applications. Both Counsel advanced submissions at length in support of and to oppose the grounds stated in the respective Applications. Broadly, it was argued that the Election Petition deserves to be dismissed because of the circumstances that would emerge from record. In that, it can be inferred that the Petitioner had failed to file ten spare copies along with the Election Petition. Moreover, the spare copies were submitted after the period of limitation to present the Election Petition had expired. It was next contended that the Petition was not served on the Respondents by mode provided under Rule 9 of the Election Petition Rules, which was fatal. Further, there was no provision to allow withdrawal of the copies of the Election Petition once lodged in the Registry along with Election Petition. Allowing the Petitioner to withdraw the spare copies from the Registry, gave opportunity to the Petitioner to change or modify the copies and more so, denuding the Respondents of their right to pray for dismissal of the Election Petition on the ground that the spare copies which were originally filed along with the Election Petition were not true copies thereof. It is next contended that there was no attestation on several pages of verification by the Petitioner under his own signature to state that the document was true copy. Further, the copies of Election Petition as supplied 16 to the Respondents were illegible, incomplete and did not contain coloured photographs. According to the Respondents, the Official translation of vernacular documents appended to the Election Petition which formed integral part thereof was not furnished to the Respondents. As a result, the copy of the Petition served on the Respondents was not a true copy of the Petition. Besides, Respondent Nos.5, 8, 10 and 11 were not necessary parties and for which reason, the Election Petition deserve to be dismissed on account of Section 82 r/w Section 86 of the Act of 1951. It was also argued that the office objections could not have been removed without the order of the Court considering the purport of Rule 7 and Rule 8 of the Election Petition Rules. In support of the submissions, both sides relied on decisions of our High Court as well as the Supreme Court. Reference to those decisions will be made at the appropriate places. 17. Before I proceed to examine the moot question that arises for consideration, to complete the narration of events, it would be apposite to note that after notice was duly served on the Respondents, the Respondents 1 and 8 filed the above numbered Application Nos.4/09 and 5/09 respectively. The said Applications were listed for hearing along with the Election Petition on 4th December 2009 when the Court passed the following order: 17 “Counsel appearing for the Petitioner has offered to furnish the coloured photographs and original magazines duly initialed by Petitioner on each page, which have been referred to in the Election Petition. According to the Petitioner, supplying such copies even at this stage would be substantial compliance of the requirement of the relevant provisions and can be no ground to dismiss the Election Petition at the threshold, in view of the exposition of the Apex Court in the case of 1999 2 SCC 204 in Anil Deshmukh’s case. 2. Counsel for the Respondent has opposed this argument but is inclined to accept the coloured photographs and magazines as furnished by the Petitioner today across the bar without prejudice to the rights and contentions of the Respondent Nos. 1 and 8. 3. All questions which have been raised in the Application Nos. 4 & 5 of 2009 are left open to be considered at the appropriate stage. For the time being, Counsel for the Respondents 1 & 8 seek adjournment to enable them to take instructions and also examine the coloured photographs and magazines handed over to them today in Court. Accordingly, stand over to 11th December, 2009.” 18. The matter was deferred till 11th December 2009, when the Court noted as follows: “1. Counsel for the Applicant/Original Respondent No.1 has concluded his arguments. As Court time is over, hearing of the Application stands deferred to 18th December 2009, which is the next earliest date available for this assignment. 2. Counsel for the Applicant, to buttress his submissions in relation to ground specified in Paragraph 3 of the Application has tendered copies of the Petitions served on the Respondent No.1 through courier service as well as court service by registered A.D. The Counsel for the Respondent No.1 has flagged the relevant pages which according to the said Respondent are illegible copies as referred to in paragraph 3 of the Application. The said paper-books are taken on record, to be kept in sealed cover. 3. At this stage, Counsel for the Respondent No.1 seeks liberty to submit these documents to the Associate on 14th December 2009. Counsel for the Petitioners has no objection in this behalf. “ 18