1 E.P.No.17/09 REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. ELECTION PETITON NO. 17 OF 2009. Khalil Ahmed Shaikh Mannu Chaudhary, AGe 52 years, Occ.Business & Agri., R/o House No.11-2-76, Ranmastapura,Nawabpura (North), Aurangabad. ... Petitioner. Versus 1. The Election Commissioner of India, having office at Nirwachan Bhavan, New Delhi. 2. The Election Commissioner, State of Maharashtra having office at New Administrative Building, Opp. Mantralaya, Mumbai-32. 3. Returning Officer, Legislative Assembly Constituency 109, Aurangabad (East), Aurangabad. 4. Darda Rajendra, Age 56 years, Occ.Social Worker, R/o Lokmat Bhavan, Jalna Road, Aurangabad. Respondent Nos.1 to 3 deleted vide Court's order dated 14.12.2010. 2 E.P.No.17/09 ... Mr.M.D.Joshi, advocate for the petitioner. Mr.Alok Sharma, Asstt. Solicitor General for Respondent No.1. Mr.S.T.Shelar, advocate for Respondent No.2. Mr.P.M.Shah, Senior Counsel instructed by Mr.D.L.Vakil, advocate for the Respondent No.4. ... CORAM : S.V.GANGAPURWALA,J. Date : 27.04.2011. JUDGMENT : 1. Election dispute is not an action at law or a suit in equity, but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of law. It is not a private Civil dispute between two parties. A conscientious approach is required to be taken. Neither turning a blind eye to the controversies, which has arisen nor assuming a role of overenthusiastic activist would do. The two 3 E.P.No.17/09 extremes have to be avoided in dealing with election disputes. The election petition shall have to be decided on the touch stone of the aforesaid principle. 2. The petitioner was interested in contesting the election of the Legislative Assembly Constituency No.109, Aurangabad (East). The petitioner on 25.9.2009, filed his nomination for the Legislative Assembly Constituency No.109, Aurangabad (East). On 26.9.2009 i.e. on the date of scrutiny, the nomination paper of the petitioner came to be rejected by the Returning Officer on the ground that information as is required under Form 3-C is not filled in, so also the information on the affidavit is not filled in. The election for the said Constituency amongst the validly nominated candidates took place and the Respondent No.4 was declared as elected from the said Legislative Assembly Constituency 109, Aurangabad (East), Aurangabad. The petitioner in the present petition assails 4 E.P.No.17/09 the election of the Respondent No.4 as a returned candidate on the ground that the order dated 26.9.2009, rejecting the nomination paper of the petitioner is bad in law and illegal. 3. Initially the Respondent Nos.1,2 and 3 had moved an application for deleting their names on the ground that they are not necessary parties. After hearing the respective parties, this Court vide order dated 14.12.2010, deleted the Respondent Nos.1,2 and 3 from the array of the Respondents. 4. The Respondent NO.4 thereafter filed an application Exh.13 raising preliminary objection and seeking rejection of the Election Petition U/o VII Rule 11 of the C.P.C. on account of absence of cause of action and non-disclosure of material particulars. The petitioner filed his say to the said application. Following point/issue arises for consideration : "Whether in the facts and circumstances of the case, cause of 5 E.P.No.17/09 action exists for the petitioner to file the present petition, if no, whether the petition can be dismissed/rejected at the threshold.?" The said application Exh.13 was heard at length and the learned counsel for the petitioner and the Respondent No.4 advanced their arguments on merits of the matter. They also submitted written summary of arguments. 5. Mr.P.M.Shah, learned Senior Counsel appearing for the Respondent No.4 during the course of his erudite arguments accompanied with plethora of case laws canvassed following propositions : (a) Section 80 of the Representation of the People Act, 1951 (hereinafter referred to as R.P.Act of 1951), by virtue of which the Election Petition is filed is couched in negative words meaning thereby that it is clearly prohibitory and is used as a legislative device to make the statute imperative. The learned counsel relies 6 E.P.No.17/09 on the judgment of the Apex Court in a case of "M.Pentiah and others Vs. Muddala Veeramallappa and others" AIR 1961 Supreme Court 1107 and the judgment of the Apex Court in a case of "Vijay Narayan Thatte and others Vs. State of Maharashtra and others" (2009) 9 Supreme Court Cases 92. The learned Senior Counsel as such contends that the Election Petition has to be presented in accordance with the provisions of this part i.e. Part VI of which Section 80 is a part. Part VI envelopes in its fold the provisions of Section 79 ending with Section 122. Thus, compliance mandated by Section 80 includes the compliance with the provisions of Section 83 relating to the pleadings of the Election Petition, so also provisions of Section 87, by virtue of which provisions of Civil Procedure Code are made applicable to the election trial and so the cause of action has to exist for filing an Election Petition and in absence of the same, the election petition can be dismissed as per Order VII Rule 11 of the C.P.C. 7 E.P.No.17/09 (b) The nomination paper of the petitioner is rejected U/s 36(2)(b) of the R.P.Act, 1951 on the ground that there has been a failure to comply with provisions of Section 33 of the said Act. Section 33(1) mandates that a candidate shall deliver to the Returning Officer a nomination paper completed in the prescribed form. Form 3-C corresponding to form No.3-A in English includes a prescribed proforma for making disclosure of the particulars contemplated by Section 8 of the R.P.Act of 1951 about conviction, if any under sub-section (1) or for contravention of any law specified in sub-section (8) or has been convicted for any other offences for which he has been sentenced to imprisonment for two years or more. The petitioner had endorsed in a vernacular language which in English means "a separate list is annexed". So also in respect of form No.26 i.e. in terms of Section 33-A which deals with disclosure as to whether the petitioner is accused of any offence with imprisonment for two (2) years and whether he has been convicted for an offence other than 8 E.P.No.17/09 the offence referred to in sub-section (1) or sub-section (2) or covered by sub-section (3) of Section 8 and sentenced to imprisonment for one year or more. The petitioner had made a statement that separate list is annexed and no such list was annexed. The Returning Officer was justified in rejecting the said nomination paper. The list which was annexed was in respect of offences which is required to be disclosed on affidavit as per orders of the Election Commission dated 27.3.2003, making disclosure about the cases which are pending against the candidate in which cognizance has been taken by the Court. Thus, the petitioner had made a categorical statement in the two forms dealing with offences enumerated U/s 8 and the offences detailed U/s 33-A "that the separate list is annexed in respect of cases under the said provisions". The petitioner had represented that he was convicted for offences U/s 8 and that cases U/s 33-A were pending against him by positively stating that a separate list is annexed but no such list was annexed. In such circumstances, the Returning Officer was right in 9 E.P.No.17/09 rejecting the nomination paper on the said count. (c) The provisions of Section 33 and 36 are mandatory. If the defect is of substantial character, the Returning Officer enjoins the powers to reject the nomination paper. (d) As per Section 33 of the said R.P.Act, the nomination paper has to be presented "completed in the prescribed form" as the petitioner did not annex the list of offences in form No.3-C and the information on affidavit as required in form No.26, the form was "not completed" as per Section 33 and the rejection invoking the powers U/s 36(2)(b) was proper. (e) Failure to comply with provisions of Section 33 is a defect of a substantial character. For the said purpose the learned Senior Counsel relied on the judgment of the Apex Court in a case of "Rattan Anmol Singh and another Vs. Ch. Atma Ram and others" AIR 1954 Supreme Court 510, Brijendralal Gupta and another Vs. Jwalaprasad and others" AIR 1960 Supreme 10 E.P.No.17/09 Court 1049, "Ram Dayal Vs. Brijraj Singh and others" 1969 (2) Supreme Court Cases 218, "Prahladdas Khandelwal Vs. Narendra Kumar Salave" (1973) 3 Supreme Court Cases 104 and the Division Bench judgment of this Court in a case of "Suleman Fakruddin Ansari Vs. S.B.Kulkarni, I.A.S. Municipal Commissioner, Poona and another" AIR 1963 Bombay 183. (f) The petitioner in the petition also had contended that the entire information as required in Form 3-C at the time of scrutiny was brought to the notice of the Returning Officer. The petitioner further contends in the petition, more particularly, in para 7 that the Returning Officer did not give time and opportunity to cure defects. These defects were not substantial but it were curable, if there were any defects. As such nothing was stated about the statement made of separate list being annexed and absence of such separate list. In view of that the rejection of nomination paper by the Returning Officer on the ground that the information as detailed in form 3-C is not given, is not assailed 11 E.P.No.17/09 and the petitioner has no cause of action and the petition can be dismissed for non-disclosure of cause of action. For the said purpose, the learned Senior Counsel relies on the judgment of the Apex Court in a case of "Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi 1987 (Supp) Supreme Court Cases 93, "Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar" reported in (2009) 9 Supreme Court Cases 310 and "Ram Sukh Vs. Dinesh Aggarwal" (2009) 10 Supreme Court Cases 541. (g) As the petitioner does not have cause of action, the petition deserves to be dismissed at its threshold. A litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise the mind of the Respondents. The learned Senior Counsel relies on the judgment of the Apex Court in a case of "Azhar Hussain Vs. Rajiv Gandhi" 1986 (Supp) Supreme Court Cases 315. 6. Mr.M.D.Joshi, learned counsel for the petitioner during the course of his lucid 12 E.P.No.17/09 arguments and with full vigour submitted that : (a) The Election Petition is a original proceeding, not only an error in the decision making process by the Returning Officer but also correctness of said decision is relevant. The Court is duty bound to decide the matter on merits by framing issues and thereafter calling for production of evidence by parties. As such the petition can not be rejected at the threshold on the ground that it did not disclose the cause of action. For the said purpose the learned counsel relies on the judgment of the Apex Court in a case of "Uttamrao Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite Patil" (2009) 13 Supreme Court Cases 131. (b) Perusal of Section 36 shows that the Returning Officer is duty bound to give opportunity to the candidate, time to rebut the Returning Officer's objection. For the said purpose, the learned counsel relies on the judgment of the Apex Court in a case of "Rakesh Kumar Vs. Sunil Kumar" (1999) 2 Supreme Court 13 E.P.No.17/09 Cases 489 and a case of "Ram Phal Kundu Vs. Kamal Sharma" (2004) 2 Supreme Court Cases 759. (c) The rejection of nomination form itself is a cause of action for the petitioner to file the present Election Petition. The cause of action is a bundle of facts. The petitioner has detailed in the petition the circumstances showing how the order of Returning Officer is illegal. While ascertaining as to whether cause of action exist or not, the defence of the Respondent is not required to be considered. It can not be said that the petitioner does not have cause of action inasmuch as it has assailed the order of illegal rejection of his nomination form as no opportunity was also given by the Returning Officer nor the nomination form suffered from any material defect of a substantial character. The Returning Officer did not make any inquiry. (d) Whether the Returning Officer had made an inquiry or not or whether the nomination form suffered from any material defect of a substantial character can only be concluded after 14 E.P.No.17/09 the fullfledged trial and not at this stage. The returning officer did not follow the provision of Section 36(5) and (6) of the R.P. Act, 1951. (e) The judgment of the Apex Court in a case of "Rattan Anmol Singh and another Vs. Ch.Atma Ram and others" referred supra relied by the Respondent is not applicable in view of the judgment of the Apex Court in a case of "Kanhaiyalal Vishindas Gidwani Vs. Arun Dattatray Mehta and others" reported in (2001) 1 Supreme Court Cases 78. (f) The petition satisfies the ingredients of a properly presented petition as required in part VI of the R.P.Act of 1951. (g) The petition at its threshold can only be dismissed for non-compliance of the provisions of Section 81, 82 or Section 117 of the R.P.Act of 1951. The objection raised by the Respondent does not come within the ambit of any of these provisions. On the said count also the petition can not be dismissed at the threshold. 15 E.P.No.17/09 7. Before adverting to the arguments of the learned counsels, it would be appropriate to refer to the relevant provisions to determine the present lis. Article 329(b) of the Constitution of India : "329. Bar to interference by courts in electoral matters.- (a) x x x x (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Section 33 of the Representation of People Act,1951. 33. Presentation of nomination paper 16 E.P.No.17/09 and requirements for a valid nomination. - (1) On or before the date appointed under clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O'clock in the forenoon and three O'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer : Section 33-A. Right to information. - (1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of section 33, also furnish the information as to whether - 17 E.P.No.17/09 (i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the Court of competent jurisdiction; (ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub- section (3), of section 8] and sentenced to imprisonment for one year or more. (2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1). (3) The returning officer 18 E.P.No.17/09 shall, as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.] 36. Scrutiny of nominations. - (1) On the date fixed for the scrutiny of nominations under section 30, the candidate, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all 19 E.P.No.17/09 candidates which have been delivered within the time and in the manner laid down in Section 33. (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, [reject] any nomination on any of the following grounds :- (a) [that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:- (b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or (c) that the signature of the 20 E.P.No.17/09 candidate or the proposer on the nomination paper is not genuine.] (3) Nothing contained in [clause (b) or clause (c) of sub- section (2) shall be deemed to authorise the [rejection] of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. (4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. (5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or 21 E.P.No.17/09 open violence or by causes beyond his control : Provided that in case [an objection is raised by the returning officer or is made by any other person] the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned. (6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection. (7) x x x x (8) x x x x Section 80. Election petitions.- No 22 E.P.No.17/09 election shall be called in question except by an election petition presented in accordance with the provisions of this Part. Section 86. Trial of election petitions.- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or Section 117. Explanation.- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of Section 80-A. 23 E.P.No.17/09 (3) Where more election petitions than one are presented to the High court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be pointed as a respondent. Explanation.- For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. (5) The High Court may, upon 24 E.P.No.17/09 such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. (7) Every election petition shall be tried as expeditiously as 25 E.P.No.17/09 possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial. Section 87. Procedure before the High Court.- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908(5 of 1908) to the trial of suits : Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or 26 E.P.No.17/09 witnesses is doing so on frivolous grounds or with a view to delay the proceedings. (2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition." 8. Right to elect, though it is fundamental to democracy, is neither a fundamental right nor a common law right. It is purely a statutory right. So is the right to be elected. So is the right to dispute an election. Dehors the statute, there is no right to elect, no right to be elected and no right to dispute an election. They are statutory creations and therefore, subject to statutory limitation. A election petition is not an action at common law nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special 27 E.P.No.17/09 jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity always remain strangers to election law. In the trial of election dispute, Court is put in a straight jacket. The entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members and right up-to the final resolution of the dispute, if any, concerning the election, is regulated by the Representation of People of Act Act, 1951. The election law