1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPLICATION NO.7 OF 2010 IN ELECTION PETITION NO.11 OF 2009 Singh Shamsher Rambahal .. Petitioner Versus The Election Commissioner and Ors. .. Respondents WITH APPLICATION NO.3 OF 2010 IN ELECTION PETITION NO.13 OF 2009 Gachake Anil Raghunath .. Petitioner Versus The Election Commissioner & Ors. .. Respondents WITH APPLICATION NO.6 OF 2010 IN ELECTION PETITION NO.14 OF 2009 Trunal Nivrutti Wagh .. Petitioner Versus The Election Commissioner and Ors. .. Respondents WITH 2 APPLICATION NO.2 OF 2010 IN ELECTION PETITION NO.15 OF 2009 Rakesh Parmar .. Petitioner Versus The Election Commissioner & Ors. .. Respondents Mr.B.D.Joshi i/b. U.G.Deshpande for petitioners Mr.Rui Rodrigues i/b. S.G.Talekar for respondent No.4 in E.P.11 of 2009 Mr.A.A.Kumbhakoni with Mr.L.M.Acharya for respondent No.4 in EP 14/09. Mr.L.M.Acharya i/b. S.M.Acharya and R.S.Shekhawat for respondent No.4 in E.P.13 of 2009 Mr.L.M.Acharya i/b. S.D.Vyas, A.Kulkarni and Sandip Mahadik for respondent No.1 in EP 15 of 2009. CORAM : S.C.Dharmadhikari, J. Reserved on : 6th August 2010. Pronounced on : 24th August 2010 ORAL JUDGEMENT: 1] These are applications by the Returned Candidate invoking the jurisdiction of this Court under Order VII Rule 11 of Code of Civil 3 Procedure, 1908 (CPC for short) and seeking dismissal of the Election Petition in limine. Alternatively, it is prayed that the below mentioned paragraphs in each of these Election Petitions be struck off in exercise of the powers conferred upon this Court vide order VI Rule 16 of the CPC:- E.P. No.11 / 09 (para No.14 (a) to 14(s) and 14(t) to 14(w); E.P.No.13/ 09 [para 3(i)] E.P. No.14/09 [para 2((i)] E.P.No.15/09 [para 3(i)] 2] Application No.7 of 2010 is preferred in Election Petition No.11 of 2009 i.e. By Mr.Kamat Gurudas Vasant, who is respondent No.4 and he states that he contested the elections to the Loksabha in General Elections held in the year 2009 from Mumbai North West Constituency. The elections were declared on 2nd April 2009 and the programme notified for various stages of the electoral process stated that the same would come into effect on 2nd April 2009 and continue till 16th April 2009. It is stated that the nominations were filed within time and after the polling results were declared. He is elected to the Loksabha as he 4 polled the highest number of votes. 3] The petitioner is a voter and his name is mentioned in the Voters’ List of Dindoshi in Mumbai North West Electoral Roll at part 99 serial No.647. He states that the Returned Candidate i.e. respondent No.4 is a member of Indian National Congress which is a recognised Political Party. The application seeking dismissal of the election petition proceeds on the basis that amongst several contesting candidates at the poll, respondent No.4 got the highest votes. 4] It is urged that this election petition as filed is liable to be dismissed in limine because it does not disclose any cause of action. In the other election petitions, the petitioners are Voters. The returned candidate in these petitions contested and won from the following Loksabha constituencies:- E.P. 13-09 (Mumbai South Central Constituency) (Eknath M. Gaikwad) 5 E.P. 14-09 (Mumbai North Central Constituency) (Dutta Priya Sunil) E.P. 15-09 (Mumbai South Constituency) (Deora Milind Murli) 5] Each of the above candidates were declared elected at the same General Electons i.e. Of 2009. Their elections are questioned and challenged in the other election petitions, wherein identical applications seeking dismissal of the petitions in limine have been made by the returned candidates. These applications invoke identical powers of this Court permitting summary dismissal of election petitions. 6] The stand taken is identical in all these applications viz., that the election petition does not disclose any cause of action. In the affidavits in support of these applications, it is urged by the returned candidates that the only allegation in the election petition is that the Manifesto of Indian National Congress (INC), contains several statements and particularly those reproduced in the election petitions. It is alleged in the petition that the INC who had nominated the returned candidates had assured in its manifesto that 6 “For the first time a separate Ministry of Minority Affairs was created in May 2004 and the Rajinder Sachar Committee was set up to look into the social economic and educational status of Muslim community in the country. The implementation and the recommendations of the Committee is already under way and equal opportunity commission will be established by law. Nearly four lakh scholarships have been awarded in the past few years alone for pre-matric, post matric and professional course, more than 50% of it being awarded to girl students. The Prime Minister’s 15 point programme was launched in June 2006 with physically and financially tracts of minorities in all welfare programmes of Central Government. Special Development taken for the 19 minority districts in different States had been introduced.” 7] According to the election petitioner, the returned candidates in the election campaign never expressed publicly their disagreement with the principles and policies set out in the election manifesto of INC. The 7 returned candidate has followed the line of his party election manifesto and used the same for his better performance in the election. Therefore, the elections are vitiated by corrupt practices and particularly the one enlisted in Section 123(3) of the R.P. Act, 1951. 8] It is stated in the affidavit that on such allegations the election is sought to be set aside but this is no pleading of corrupt practice in law. The manifesto of a party cannot be made a basis for alleging corrupt practice and what is required to be pleaded is a specific act covered by section 123 of Representation of Peoples Act, 1951 (RP Act for short). In the entire petition, there is no pleading that the returned candidate had at any time appealed to anyone to vote or refrain from voting for any candidate on the basis of his religion. There is no allegation of any agency or consent pleaded either. In such circumstances, the pleading is frivolous and vexatious and if it is struck off then, there is no necessity of holding a trial. In any event, the petition is liable to be dismissed in limine as it fails to disclose any cause of action. 8 9] The petitioners did not file any affidavit in reply to all the applications but they reiterated the contents of the election petition in two of the reply affidavit. (See E.P.Nos.14 and 15 of 2009). 10] On the basis of this material, these applications were placed for hearing and final disposal. Neither the election petitioner nor the returned candidate sought leave of the Court to file any documents and the matter proceeded on the basis of the averments in the election petition alone. It is urged that the election petition read as a whole and as it is, does not disclose any cause of action. Therefore, it deserves to be dismissed in limine. In other words, assuming that the contents thereof are true, yet, the same does not constitute an allegation of corrupt practice within the meaning of section 123(3) of R.P. Act. 11] Mr.Kumbhakoni, learned Counsel appearing for the returned candidates in support of these applications, along with Mr.L.M.Acharya urged that the law on the point is clear. Section 87 of the RP Act makes the Code of Civil Procedure, 1908 (for short CPC) applicable to trial of 9 election petitions. Order VII Rule 11 sub-clause (d) appears in the CPC. He submits that in a recent decision reported in A.I.R. 2010 S.C. 1227, (Ram Sukh Vs. Dinesh Aggarwal) the Supreme Court has reiterated the principles laid down earlier viz., even if section 83 is not mentioned in section 86(1) of the R.P.Act, yet, by virtue of section 87 of the said Act, this court can take recourse to the CPC and particularly Orders VI Rule 16 and VII Rule 11(d) thereof and dismiss the election petitions of the present nature in limine. Mr.Kumbhakoni submits that it is this principle which is being invoked and the request is that the same should be applied because the trial of the election petitions which do not disclose any cause of action entails in loss of precious judicial time. On allegations which do not constitute a corrupt practice in law, there is no necessity to go ahead and hold a trial. There is embarrassment not only to the returned candidate but the constituency as a whole suffers when election of returned candidates are challenged in this manner. Therefore, this is a fit case where this Court should exercise these powers and dismiss the election petition in limine. 10 12] Mr.Kumbhakoni submits that in each of the election petitions paras referred to by the Returned candidates need to be perused for the purpose of appreciating his submissions. He submits that section 123(3) of the RP Act speaks of corrupt practice wherein seeking votes in the name of religion vitiates the elections. In the election petition, the election manifesto of INC is referred and parts thereof are reproduced. The religion of the elected candidate is not mentioned nor is their any pleading with regard to the religion of the election petitioner. There is only reference to the election manifesto and when the essential ingredients of section 123(3) are not at all satisfied, then, reference to the manifesto is not enough. In other words, as part of the allegations and foundation of corrupt practice, the petitioners must aver and prove that the religion of the candidate who has suffered prejudicially was put in issue or votes were sought in the name of religion of the returned candidate. He submits that the words “his religion” are extremely relevant and crucial. The allegation in the election petition is that the manifesto seeks to appease minority community viz., Muslims. However, none of the candidates in the present election is a Muslim. 11 Therefore, by urging that every candidate of INC has based his campaign on the plank of this manifesto means that he seeks votes in the name of religion, is no pleading of corrupt practice within the meaning of section 123(3) of the RP Act. Thus, the communal appeal allegedly made in the party manifesto would not suffice and constitute a pleading of corrupt practice under section 123(3) of the RP Act. 13] Alternatively and assuming against the returned candidate, that election manifesto is an appeal to the voters and particularly minority voters to vote for INC that is not enough to bring home the charge of corrupt practice which is required to be proved beyond reasonable doubt. The test is as rigorous as in a criminal trial. In such circumstances, when the material fact constituting corrupt practice has not been pleaded, then, the matter need not go for trial. Further, even particulars of usage of election manifesto, including time, place, date where the appeal in the name of religion through the manifesto was made are not set out. Hence, the pleading cannot be said to be complete. In such circumstances, the petition is liable to be dismissed. 12 14] Mr.Kumbhakoni sought to raise three other objections. He urged that the true copy of the election petition is not attested by the petitioner in his own signature. The attesting is done by petitioner’s Advocate and not by the petitioner himself, which is clear if one peruses the petitions and the insertion at the foot of every page of the election petitions. Mr.Kumbhakoni and Mr.Acharya submit that what has been served on the returned candidate is photocopy of the original election petition but it is not attested by the petitioner. There is no compliance with section 81(3) of the RP Act. Consequently, the petition is liable to be dismissed under section 86(1) thereof. Reliance in this behalf is placed upon a decision reported in 1980 (1) S.C.C. 403 Sharifuddin Vs. A.G.Lone. 15] It is urged that the affidavit which is required to be filed by virtue of the proviso to section 83(1)(c) of RP Act when the foundation of challenge is of corrupt practice, has to be in terms of Rule 94A of Conduct of Election Rules 1961 read with Form 25 thereof. In the instant case, the affidavit is not in the prescribed form nor does it answer 13 the requirement of the Rule. The defect is sought to be cured by filing an affidavit after the present applications seeking dismissal of the election petition had been served on the election petitioner. Thus, there is non compliance with this requirement as well and, therefore, the petition is liable to be dismissed. 16] Lastly, it is urged that the election petition is filed on the last date of expiry of the period of limitation prescribed in law. The results have been declared on 16th May 2009. The period of limitation prescribed by law is 45 days from the date of declaration of results. This period expires on 30th June 2009. The election petition is filed on 30th June 2009 at 4.35 pm. The security deposit which is required to be made in terms of section 117 of RP Act has been accepted at 16.55 pm. However, Rule 365 of High Court (OS) Rules states that no such deposit could have been accepted beyond the time prescribed in the said rule. Admittedly, the security amount is deposited after 1.00 pm and, therefore, the election petition cannot be said to be within time and the same is barred by limitation. There is complete breach of section 14 117 of RP Act. Therefore, the petition is liable to be dismissed for non compliance with section 117(1) of RP Act. 17] In the submission of Mr.Kumbhakoni for all these reasons, the petitions are liable to be dismissed in limine. 18] Mr.Kumbhakoni places reliance on the following decisions in support of his submissions. 1. (1980) 1 SCC 403 (Sharif-Ud-Din Vs. Abdul Gani Lone) 2. A.I.R. 2005 S.C. 2379 (Harmohinder Singh Pradhan Vs. Ranjeet Singh Talwandi & Ors.) 3. A.I.R. 1976 S.C. 744 (Udhav Singh Vs. Madhav Rao Scindia) 4. 1986 (Supp) SCC 315 (Azhar Hussain Vs. Rajiv Gandhi) 5. A.I.R. 2000 S.C. 694 (V.Narayanaswam Vs. C.P.Thirunavukkarasu) 6. (2004) 1 S.C.C. 46 (Regu Mahesh Alias Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev and Anr). 19] On the other hand, Mr.B.D.Joshi learned Counsel for the election petitioner invites my attention to section 123(3) of the RP Act and submits that the argument that the words “his religion” appearing are crucial and conclusive is not sound in law. He invited my attention to 15 section 100(1)(d)(ii) of the RP Act and submits that section 123 (3) is an exception and the wording thereof cannot be of any assistance while construing this provision which enables the court to declare the elections as void. Once there is a pleading of corrupt practice, then, the particulars can be supplied later on. Mr.Joshi was at pains to point out that non compliance with section 83 cannot be a ground for dismissal of an election petition under section 86(1) of the RP Act and the argument of the learned Counsel appearing for the returned candidates over looks this aspect of the matter. Therefore, particulars can be supplied later on and that is matter of evidence. In such circumstances and when manifesto of the party to which each of the returned candidate belongs and on whose behalf they contested, clearly seeking votes in the name of religion by appealing to and appeasing minority citizens and particularly Muslims, then election petition must go for trial and all applications deserve to be dismissed with costs. 20] Mr.Joshi submits that the affidavit in form 25 as contemplated by the proviso to section 83(1)(c) and Rule 94A of the Conduct of 16 Elections Rules 1961 has been filed and the requirement of this provision stands complied with. He invites my attention to the affidavit filed by the election petitioner and particularly the one filed on 25th March 2010 i.e. E.P.No.11 of 2009, in this behalf. Mr.Joshi then submits that the election petition is not liable to be dismissed as barred by limitation. He submits that the returned candidates do not dispute that the petitions have been presented and duly filed on 30th June 2009, which is within limitation. The manner in which they were accepted and registered is a matter of procedure and there is substantial compliance with all procedural requirements. Once there is substantial compliance, then, election petition is not liable to be dismissed in limine. What is alleged is breach of procedural rules, prevalent on the Original Side of this Court to which the petitions have been presented and duly filed. Rules cannot be elevated to such a status so as to come on par with the substantive provisions of RP Act and Conduct of Election Rules. All that RP Act requires is security deposit and which has been duly given and accepted. It is not for the returned candidate to question as to how and why the security deposit came to be accepted or how the petition 17 was numbered. In these circumstances and the alleged technical breaches not going to the root of the matter, the petition is not liable to be dismissed. Equally, the election petition cannot be dismissed because the petition is presented by the election petitioner through an Advocate. The true copy of the election petition as filed and duly signed by the petitioner’s Advocate has been served on the returned candidate. The copy has been signed and attested by the Advocates and omission on the part of the petitioner to sign the same can never be said to be fatal. Once what has been served is true copy of the original election petition as filed and the returned candidates being unable to demonstrate the prejudice caused to them, then, the omission or non compliance with the requirement of not attesting the true copy can never lead to dismissal of an election petition in limine. More so, when at the foot of every page there is a signature of the election petitioner. The petition is duly signed and verified by the petitioner. Therefore, the petition cannot be dismissed for non compliance with section 81(3) of the RP Act. Even otherwise, the view taken by the Hon’ble Supreme Court and this Court is that such technical and procedural lapses should not result in the 18 petitioners being deprived of a trial of the election petition, when there are serious allegations of corrupt practice. For all these reasons, Mr.Joshi submits that petitions be tried in accordance with law. 21] Mr.Joshi relies upon the following decisions in support of his contentions:- 1. A.I.R. 1996 S.C. 796 (Manohar Joshi Vs. Nitin Bhaurao Patil and Anr.) 2. A.I.R. 1964 S.C. 1545 (Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors.) 3. A.I.R. 1964 S.C.1027 (Ch.Subbarao Vs. Member, Election Tribunal) 4. A.I.R. 1999 S.C. 732 (Anil R. Deshmukh Vs. Onkar N. Wagh and Ors) 5. A.I.R. 2005 S.C. 22 (Sardar Harcharan Singh Brar Vs. Sukh Darshan Singh and Ors.) 6. A.I.R. 2001 S.C. 600 (Dr.Vijay Laxmi Sadho Vs. Jagdish). 22] For properly appreciating the rival contentions, firstly, it would be necessary to refer to the relevant provisions of RP Act. 23] In Jyoti Basu Vs. Debi Ghosal reported in A.I.R. 1982 S.C. 983 the Supreme Court has emphasised the object and purpose of RP Act, 1951 19 and particularly the provisions providing for trial of election petition. It is not an ordinary remedy. Just as there is no fundamental right to vote and contest the elections, similarly there is no fundamental right to dispute the result of an election. All these rights are statutory in character and must therefore, be subjected to limitations placed by the Statute. Once this is understood and that the election petitions are not to be equated with ordinary litigation, then, importance of pleading and proof is automatically understood. 24] In the above decision this is that the Hon’ble Supreme Court observed in the above context:- “7. The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P.Ponnuswami Vs. Returning Officer, Namakkal Constituency, 1952 SCR 218 : (A.I.R. 1952 S.C. 64) and Jagan Nath Vs. Jaswant 20 Singh, A.I.R. 1954 S.C. 210. We proceed to state what we have gleaned from what has been said, so much as necessary for this case.” “8. A right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a common law right. It is pure and simple a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An 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 jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity 21 must remain strangers to Election Law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be 22 found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say? 24A] An election petition is not a contest between the petitioner and returned candidate but the entire constituency and the voters, who cast their valuable vote at the elections, are interested and affected by the outcome of the same. It is their precious vote in the democratic process of a poll held by secret ballot and the identity of which is not to be disclosed, save and except, mandated by law, which is at trial. Therefore, the proceedings affect the entire constituency. Similarly it throws open the credibility of those in charge of the election machinery. (See AIR 1975 SC 290 Rahim Khan Vs. Khurshid Ahmed and AIR 1976 23 SC 1599 D.Venkata Reddy Vs. R. Sultan). 25] In a recent decision reported in A.I.R. 2004 S.C. 38 (Regu Mahesh Vs. Rajendra Pratap Bhanj Dev) this is what the Supreme Court has observed:- “17. An election petition has a definite role in the law relating to election of representatives of