1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1669 OF 2009 IN ELECTION PETITION NO.6 OF 2009 Ram Dular Yashodeo Jha ...Petitioner vs. Chief Election Commissioner of India & Others ...Respondents Mr. Ashok Sarogi With Mr.Satish Mishra i/b Mr.Vinod S. Chate for the Petitioner Mr.Rafique Dada Sr.Counsel a/w Mr.Vijaykumar Nair a/w Mr.Rui Rodrigues i/b Mr.P.P.Kulkarni & Sagar Talekar for the Respondent no.4 CORAM :A.S.OKA,J. DATE : NOVEMBER 27, 2009 JUDGMENT : 1 I have heard the learned senior counsel for the 4th respondent in support of the chamber summons. I have heard the learned counsel for the petitioner who has opposed the chamber summons. 2 The petition has been filed by the petitioner under section 80 of the Representation of the People Act, 1951 (hereinafter referred to as the said Act of 1951). The petitioner was desirous of contesting the election of Lok Sabha from Mumbai 27-North West Constitutiency. According to the case of the petitioner, on 9th April 2009, he filed his nomination paper. According to him he received a message on 11th April 2009 from the office of Returning Officer that the name of the proposer mentioned in the form does not match with the electoral roll of 2008. According to him to he made a request to the 2 Returning Officer to grant him a permission to submit new serial numbers and part numbers of the proposers in the electoral roll. It is alleged that at 1.25 p.m., On 11th April 2009, the petitioner was permitted by the Returning Officer to submit new serial numbers and part numbers. According to him, on the same day he submitted the same at 5.25 p.m. Thereafter, on 13th April 2009, the nomination paper of the petitioner was rejected. A Writ Petition was filed by him for challenging the said order which was withdrawn. The result of the election was declared on 16th May 2009 and the 4th respondent was declared as elected. The prayer in the petition is for declaration that the election of the 4th respondent be declared as void under section 100 (c) of the said Act of 1951. The 1st respondent in the petition is the chief Election Commission of India and the second respondent is the Secretary and Chief Election Commission Officer, Mumbai and the 3rd respondent is Dr.Ashwini Joshi who was the returning officer of the constituency. The first prayer in the chamber summons is for deleting the names of the respondent nos.1 to 3 from the array of the respondents. The second prayer is for dismissal of the petition inter alia under section 86 for non compliance of sections 81 and 82 of the said Act of 1951. The third prayer is for striking out the third ground in exercise of power under Rule 16 of Order VI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). The last prayer is for rejection of the petition on the ground that the same does not disclose any cause of action or a triable issue. 3 3 The learned senior counsel for the 4th respondent relied upon the decision of the Apex Court in case of B. Sundara Rami Reddy Vs. Election Commission of India and others (1991 Supplementary(2) SCC 624). He submitted that 1st to 3rd respondents could not have been joined as the party respondents. He submitted that the concept of proper parties is alien to an election dispute under the said Act of 1951. 4 He invited my attention to the grounds incorporated in the petition and in particular the third ground. Inviting my attention to the said third ground, he submitted that the allegation made therein amounts to allegation of corrupt practice of undue influence. He submitted that the said ground has been incorporated without pleading any material facts or without any material particulars. He pointed out that in view of non- compliance with the requirement of law, the said ground will have to be struck out. He pointed out that there is no affidavit filed in support of the said ground as contemplated by proviso to sub section 1 of section 83 of the said Act of 1951. He invited my attention to the decision of the Apex Court in case of Azhar Hussain vs. Rajiv Gandhi (AIR 1986 SC 1253). He submitted that power under rule 16 of Order VI of the said Code can be exercised at any stage of the proceedings. He submitted that even power under Rule 11 of the Order VII can be exercised for rejection of the petition if the petition does not disclose any cause of action. He submitted that only other ground apart from the third ground in the petition is of a challenge to the order passed by the 4 returning officer by which nomination paper of the petitioner has been rejected. He submitted that from admitted facts it is clear that the defect on the basis of which the nomination paper was rejected is of a substantial character. He invited my attention to the correspondence made by the petitioner which is annexed to the petition and in particular letters which are at Exhibit B and C to the petition. He pointed out that the letter at Exhibit B itself shows that the defect in the nomination paper was of a substantial character in as much as along with the said letter the petitioner purported to submit the details of the proposers as per the new electoral roll. He invited my attention to the letter at Exhibit E written by the petitioner to the 2nd respondent and the letter dated 23rd April 2009 written by the petitioner to the 1st respondent. He invited my attention to the decision of the Apex Court in case of Rafiq Khan and another Vs. Laxmi Narayan Sharma [(1997) 2 SCC page 228]. He submitted that going by the case made out by the petitioner himself, it is established that the defect in the nomination paper was of a substantial nature. He also invited my attention to the decision of the Apex Court in the case of Brij Mohan Vs. Sat Pal (AIR 1985 SC page 847). He, therefore, submitted that the petition does not disclose any cause of action and this is a fit case for exercising power under Rule 11 Order VII of the said Code. 5 The learned counsel for the petitioner submitted that as far the allegations of corrupt practice in ground no.(III) is concerned, it is a matter of evidence and at the threshold , the said ground cannot be 5 struck out without giving an opportunity to lead additional evidence. He submitted that as far as the ground (vii) is concerned, the defect on which the nomination paper was rejected was not of substantial nature. He submitted that in any event, the question whether the defect is of a substantial character or not is a matter of evidence and at the stage and at this stage it cannot said that there is no cause of action. He, therefore, submitted that the chamber summons be dismissed. 6 I have carefully considered the submissions. The first prayer in the chamber summons is for deleting the respondent nos.1 to 3 i.e. the Chief Election Commission of India, Secretary and Chief Elec- tion Commission Officer and Dr.Ashwini Joshi, returning Officer. The Apex Court in the case of B. Sundera (supra) held thus: “4. Learned counsel for the petitioner urged that even if the Elec- tion Commission may not be a necessary party, it was a proper party since its orders have been challenged in the election petition. He fur- ther urged that since Civil Procedure Code, 1908 is applicable to trial of an election petition the concept of proper party is applicable to the trial of election petition. We find no merit in the contention. Sec- tion 87 of the Act lays down that subject to the provisions of the Act and any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be in accordance with the pro- cedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Provisions of the Civil Procedure Code have thus been made applicable to the trial of an election petition to a limited extent as would appear from the expression “subject to the provisions of this Act”. Since Section 82 designates the persons who are to be joined as respondents to the petition, provisions of the Civil Procedure Code, 1908 relating to the joinder of parties stands excluded. Under the Code even if a party is not neces- sary party, he is required to be joined as a party to a suit or proceedings if such person is a proper party, but the Repres- entation of the People Act, 1951 does not provide for joinder of a proper party to an election petition. The concept of join- 6 ing a proper party to an election petition is ruled out by the provisions of the Act. The concept of joinder of a proper party to a suit or proceeding underlying Order I of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of the Act. The Act is a self-contained Code which does not contemplate joinder of a person or authority to an elec- tion petition on the ground of proper party. In K. Venkateswara Rao v. Bekkam Narasimha Reddi1, this Court while discussing the ap- plication of Order I Rule 10 of the Civil Procedure Code to an election petition held that there could not be any addition of parties in the case of an election petition except under the provisions of sub-sec- tion (4) of Section 86 of the Act. Again in Jyoti Basu v. Debi Ghosal2, this Court held that the concept of ‘proper party’ is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Sec- tion 86(4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents. (Emphasis added) Relying upon the aforesaid decision of the Apex Court in the case of Ganesh Ramchandra Naik Vs. Sitaram Bhoir and others [2001 (2) Mh.L.J. 735] ,this Court held that merely because certain allegations are made against the Returning Officer, the Electoral Registration Of- ficer and the Chief Election Officer they do not become necessary parties to the election petition. In view of the clear pronouncement of law, the respondent nos.1 to 3 could not have been impleaded as the party respondents and their names will have to be deleted. 7 Before adverting to the other prayers made in the chamber summons, the decision of the Apex Court in the case of Azhar Hussain (supra) will have to be considered. The Apex Court in the said decision was dealing with an Appeal preferred by the election petitioner whose election petition was dismissed on the ground of non- compliance with the mandatory requirement of furnishing 7 material facts and particulars. The Apex Court dealt with four grounds of challenge which are set out in paragraph 5 of the said decision. Grounds (A) and (B) read thus : “A. Since the Act does not provide for dismissal of an election petition on the ground that material particulars necessary to be supplied in the election petition as enjoined by Section 83 of the Act are not incorporated in the election petition inasmuch as Sec- tion 86 of the Act which provides for summary dismissal of the pe- tition does not advert to Section 83 of the Act there is no power in the court trying election petitions to dismiss the petition even in exercise of powers under the Code of Civil Procedure. B. Even if the court has the power to dismiss an election peti- tion summarily otherwise than under Section 86 of the Represent- ation of People Act, the power cannot be exercised at the threshold.” While dealing with the submission (A), the Apex Court in paragraph 9 observed thus : “9. The fact that Section 83 does not find a place in Section 86 of the Act does not mean that powers under the CPC cannot be exer- cised.” In paragraph 11, the Apex Court proceeded to observe thus : “11. In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by 8 Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant case has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh case the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(l) (a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.” (emphasis added) While dealing with the submission (B), the Apex Court considered the submission that an election petition cannot be thrown out at the threshold and it can dismissed only after a trial. The said submission 9 was specifically considered and rejected for the reasons recorded in paragraph 12 of the judgement. The material part of the said paragraph 12 reads thus: “The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their du- ties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matter per- taining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. So long as the sword of Damocles of the election petition remains hanging an elected member of the legislature would not feel sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected repres- entative of the concerned constituency. The time and attention de- manded by his elected office will have to be diverted to matters per- taining to the contest of the election petition. Instead of being en- gaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people, he will be engaged in a struggle to establish that he is in- deed such a representative, notwithstanding the fact that he has in fact won the verdict and the confidence of the electorate at the polls. He will have not only to win the vote of the people but also to win the vote of the court in a long drawn out litigation before he can wholeheartedly engage himself in discharging the trust reposed in him by the electorate. The pendency of the election petition would also act as hindrance if he be entrusted with some public office in his elected capacity. He may even have occasion to deal with the repres- entatives of foreign powers who may wonder whether he will eventu- ally succeed and hesitate to deal with him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom. Even if he is made of stern mettle, the constraint introduced by the pendency of an election petition may have some impact on his subconscious mind without his ever being or becoming aware of it. Under the circumstances, there is greater reason why in a democratic set-up, in regard to a matter pertaining to an elected 10 representative of the people which is likely to inhibit him in the dis- charge of his duties towards the nation, the controversy is set at rest at the earliest, if the facts of the case and the law so warrant. Since the court has the power to act at the threshold the power must be exercised at the threshold itself in case the court is satisfied that it is a fit case for the exercise of such power and that exercise of such powers is warranted under the rel- evant provisions of law. To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers, at the threshold, is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The court cannot accede to such a proposition. The submission urged by the learned counsel for the petitioner in this behalf must therefore be firmly re- pelled.” (Emphasis added) 8 Now coming to the grounds in the election petition, the challenge in substance is to the rejection of the nomination paper of the petitioner. Taking the grounds as it is, the challenge appears to be two fold. The first challenge is incorporated in ground no.(iii) which reads thus: “(iii) That, the Ld. Returning Officer intentionally overlooked the petitioner letter dated11/4/2009 with a view to favour the Respondent Candidate.” The other ground is ground no.(VII) which reads thus : “vii) That the section 39(4) of the Representation of the Peoples Act,1951 says that. The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Therefore, 11 the petitioner had already cured the defect by letter dated 11/4/2009, which has deliberately not been considered by the learned Returning Officer.” The ground no. (i) is general. It merely states that the impugned order rejecting nomination paper is bad in law. The second ground is that the said order has been passed without application of mind. The fourth ground is that the returning officer has not followed the handbook. The fifth ground is that the returning officer has wrongly stated that the name of the proposer no.5 does not find place in the electoral roll of the concerned constituency. The sixth ground is that the petitioner and the voters have suffered injustice at the hands of the returning officer who rejected the nomination of the petitioner without provision of law. Thus the challenge in the election petition is only to the order rejecting the nomination paper. The first ground is that the returning officer has favoured the returned candidate. The second ground is the alleged defect on which the nomination paper is rejected is not of a substantial character. 9 It is pertinent to note that the only prayer in the election petition is specifically under section 100 (c) of the said Act of declaring the election of the respondent no.4 as void. Clause (c) of sub section 1 of section 100 incorporates the ground of improper rejection of nomination paper. The ground (b) of sub section 1 of section 100 is as regards the commission of corrupt practice by a returned candidate or his election agent or by any other person 12 with the consent of a returned candidate or his election agent. Thus, the declaration that the election is void is sought only on the ground of improper rejection of nomination papers and the same is not sought on the ground of corrupt practice which forms part of clause (b) of sub- section 1 of section 100 of the said Act. The learned counsel for the election petitioner did not dispute that the ground no. (iii) is the ground of alleged corrupt practice. As there is no prayer of the declaring the election as void on the ground of corrupt practices, no relief can be granted on the said ground no. (iii).Though there is no specific prayer made for declaration that the election is void on the corrupt practice nevertheless I have dealt with submissions made by the learned counsel for the parties. Section 83 of the said act of 1951 reads thus : 83. Contents of petition.—(1) An election petition— (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have commit- ted such corrupt practice and the date and place of the com- mission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Thus, the requirement of law is that when a corrupt practice is alleged, the petitioner shall set forth full particulars of the corrupt practice which the petitioner alleges. Proviso to clause (c) of sub 13 -section 1 of section 83 requires that the petition shall be accompanied with an affidavit in support of the allegation of corrupt practice and particulars thereof. Under section 86 of the said Act of 1951 High Court has power to dismiss the election petition which does not comply with the provisions of section 81 or section 82 or section 117. As pointed out earlier, the Apex Court in case of Azhar Hussain (supra) held that merely because there is no reference to section 82 in the section