EP/20/2009 & Appl (St.)/5/2010 : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ELECTION APPLICATION (ST.) NO.5 OF 2010 IN ELECTION PETITION NO.20 OF 2009 Mufti Mohammed Ismail A. Khaliq .. Applicant (Org. Respondent) V/s. Shaikh Rashid Shaikh Shafi .. Respondent (Org. Petitioner) ALONG WITH ELECTION PETITION NO.20 OF 2009 Shaikh Rashid Shaikh Shafi .. Petitioner V/s. Mufti Mohammed Ismail A. Khaliq .. Respondent Mr. L.M. Acharya a/w. Mr. Ranvir Shekhawat for the Applicant-Original Respondent. Mr. Ramesh Dube Patil i/b. Mr. A.R. Shaikh for the Respondent-Original Petitioner. CORAM : SMT. NISHITA MHATRE, J. DATED : 27 TH AUGUST, 2010. P.C.: 1. The present Election Petition has been filed by the election-petitioner against the respondent contending that the respondent, who is the elected candidate, had indulged in corrupt practices to EP/20/2009 & Appl (St.)/5/2010 : 2 : garner votes at the Election for the Maharashtra Legislative Assembly. The respondent was declared elected on 22nd October, 2009, under Section 80 of the Representation of the People Act, 1951, (for short “the Act”) from the Constituency No.114 Central Malegaon of Nasik District. The petitioner has challenged the Election on the grounds provided under Section 100(1)(b), (d)(ii) and (iv) of the Act. 2. The respondent in the Election Petition has filed the present Application seeking dismissal of the Election Petition at the threshold under Section 86(1) of the Act and Order 7 Rule 11 of the Code of Civil Procedure. The various grounds on which the dismissal of the Election Petition is sought are as follows : (i). Non disclosure of cause of action in breach of the provisions of Section 83(1)(a) and (b) of the Act. EP/20/2009 & Appl (St.)/5/2010 : 3 : (ii). The Election Petition was not presented by the election-petitioner personally and, therefore, there is a violation of the mandate of Section 81(1) of the Act. (iii). All the contesting candidates at the Election are not made party-respondents to the Election Petition and, therefore, the Election Petition is liable to be dismissed in view of the breach of Section 82(a) of the Act. (iv). Certified copies of the DVD were not served on the applicant, i.e. the original respondent, which is in breach of the provisions of Section 81(3) of the Act. (v). The affidavit has not been filed in Form 25 read with Rule 94A of the Act in support of the Election Petition EP/20/2009 & Appl (St.)/5/2010 : 4 : and, therefore, there is a breach of the mandatory provisions of law. 3. The election-petitioner, i.e. the respondent herein, has filed an affidavit denying the allegations contained in the present Application filed by the applicant herein i.e. the original respondent. He has countered those allegations by contending as follows : (a). that the Election Petition does disclose a cause of action as a perusal of the Election Petition would indicate that all the aspects necessary to be pleaded in an Election Petition based on the allegation of corrupt practices indulged in by the elected candidate have been included in the Election Petition. (b). that the defect of not presenting the Election Petition personally by the election-petitioner is a curable defect as EP/20/2009 & Appl (St.)/5/2010 : 5 : no prejudice has been caused to the applicant herein i.e. the original respondent. The election-petitioner has stated that the reason for not presenting the Election Petition personally is that he was suffering from severe diabetes and was required to undergo hospitalization after he verified the Election Petition in the Court on 26th November, 2009. Medical Certificates issued by the concerned Hospital have been annexed to the reply. (c). The requirement to join contesting candidates as party-respondents to the Election Petition is not mandatory. Permission has been sought to delete the prayer that the election-petitioner should be declared as the elected candidate. Therefore, this defect is curable. (d). Certified copies of the DVD showing the corrupt practices indulged in by the EP/20/2009 & Appl (St.)/5/2010 : 6 : original respondent, i.e. the applicant herein, have been filed in the Court when the Election Petition was presented. The Court’s office has committed a mistake in not sending the DVD along with the Election Petition by way of service on the applicant herein, i.e. the original respondent, for which the election- petitioner cannot be held responsible. This being a hyper technical objection, it should be dismissed as the election- petitioner has submitted certified copies of the DVD in the Court for being served on the applicant herein i.e. the original respondent. (e). That the statutory requirement with regard to filing of the affidavit has been complied by the election-petitioner and in any event the defect is curable. EP/20/2009 & Appl (St.)/5/2010 : 7 : 4. A rejoinder has been filed to this affidavit in which the applicant herein has contended that the reasons of ill health should not have deterred the election-petitioner from presenting the Election Petition himself and in any event the defect is not curable in view of several judgments of the Supreme Court. 5. Mr. Acharya, the learned Advocate appearing for the applicant herein, i.e. the original respondent, has submitted that the Election Petition does not disclose the cause of action. He submitted that the corrupt practices, which have been alleged against the applicant, had not been detailed in the Election Petition. Mr. Acharya submitted that the corrupt practices alleged by the election- petitioner are under Section 123(2)(ii), 123(3), 3(A) and 123(4) of the Act. He pointed out that the Election Petition does not disclose material particulars in respect of the alleged corrupt practices indulged in by the applicant i.e. the original respondent. According to him, it is EP/20/2009 & Appl (St.)/5/2010 : 8 : necessary for the election-petitioner to place on record in great detail the cause of action or material particulars in respect of the aforesaid corrupt practices before the Election Petition can be allowed and the Election of the original respondent can be declared void under Section 100(1)(b), (d)(ii) and (iv) of the Act. He then urged that the pleadings in the Election Petition do not disclose that the corrupt practices had indeed been committed by the applicant herein i.e. the original respondent. According to him, Section 83(1)(a) of the Act requires the election- petitioner to place on record a concise statement of material facts on which the election-petitioner relies. He submitted that although the election- petitioner has annexed a document titled as “concise statement”, it does not contain any material facts and/or material particulars for constituting the ingredients of the corrupt practices alleged against the applicant herein i.e. the original respondent. EP/20/2009 & Appl (St.)/5/2010 : 9 : 6. It is now well settled by various judgments of the Supreme Court including in the case of V. Narayanaswamy v/s. C.P. Thirunavukkarasu, reported in (2000) 2 SCC 294 , that the Election Petition must bear material facts. A perusal of the Election Petition does disclose that the election-petitioner has layed a foundation for his allegation that the applicant herein has indulged in corrupt practices. The material facts have been pleaded in the Election Petition and, in my opinion, a cause of action has been made out by the election- petitioner. In any event an election petition can be dismissed at the threshhold without a trial only under section 86. However it can be dismissed only for breach of sections 81 or 82 or 117 but not for a violation of section 83. Therefore, this submission of the learned Advocate for the applicant herein, i.e. the original respondent, must be rejected. 7. The next submission of Mr. Acharya was that the Election Petition must be dismissed under Section EP/20/2009 & Appl (St.)/5/2010 : 10 : 86 of the Act in view of breach of Section 81 of the Act. Section 81 of the Act mandates that the Election Petition must be presented by any candidate at an Election or by any Elector within a stipulated period. He, therefore, submitted that it was necessary for the election-petitioner to be present personally while presenting the Election Petition in the office of this Court; the Advocate appointed by him could not have presented the Election Petition by substituting him. He relied on the judgment of the Karnataka High Court in the case of G.V. Srirama Reddy & Ors. vs. Returning Officer & Ors., reported in AIR 2009 Karnataka 27 , which was confirmed by the Supreme Court in the judgment reported in 2009 8 SCC 736. 8. Section 81(1) of the Act reads as under : “81. Presentation of petitions : (1). An election petition calling in question any election may be presented on one or more of the grounds specified in [sub- section (1)] of section 100 and section 101 to the [High Court] EP/20/2009 & Appl (St.)/5/2010 : 11 : by any candidate at such election or any elector [within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.] (emphasis added).” 9. The election-petitioner has contested this submission of the applicant herein by contending that the provisions of Section 81(1) relating to presentation of the Election Petition are not mandatory. According to the learned Advocate appearing for the election-petitioner, what is mandatory is that the verification must be signed by the election-petitioner, which admittedly has been done in this case. He pointed out that it was only because of the ill health of the election- petitioner that he could not be present at the time when the Election Petition was presented in this Court. He submitted that the election-petitioner could not have derived any benefit by not being present on the day when the Election Petition was EP/20/2009 & Appl (St.)/5/2010 : 12 : presented. According to the learned Advocate, there are documents on record including the Medical Certificates issued by the Jahangir Hospital, Pune indicating that the election-petitioner had been hospitalized from 26th November, 2009 upto 7th December, 2009 on account of an infected knee pursuant to a total knee replacement surgery. He pointed out that another certificate dated 14th June, 2010 from the Wokhardt Hospital has also been annexed, which indicates the type of surgery he underwent for the infected knee. 10. In the case of G.V. Srirama Reddy(supra), the Karnataka High Court had taken the view that a plain reading of Section 81 of the Act discloses that the law contemplates presentation of the Election Petition by the candidate himself, if he is the election-petitioner. The Karnataka High Court has noted that in the judgment in the case of Sheo Sadan Singh vs. Mohan Lal Gautam, reported in AIR 1969 SC 1024, the Supreme Court has held that as long as there was substantial compliance of EP/20/2009 & Appl (St.)/5/2010 : 13 : Section 81 of the Act in respect of presentation of the Election Petition, it is deemed to have been presented personally by the election-petitioner. However, in the case before the Court, it was found, on the basis of the material on record, that the petitioners were not present when the Election Petition was presented and it had been left to the Advocate to present the same. In these circumstances, the Karnataka High Court had dismissed the Election Petition as it was not presented in a proper manner. 11. This judgment has been confirmed by the Supreme Court. While doing so, the Supreme Court has overruled the judgment of the Rajasthan High Court in the case of Bhanwar Singh vs. Navrang Singh, reported in AIR 1987 Rajasthan 63 . The Court has observed thus : “19. One can discern the reason why the petition is required to be presented by the petitioner personally. An election petition is a serious matter with a variety EP/20/2009 & Appl (St.)/5/2010 : 14 : of consequences. Since such a petition may lead to the vitiation of a democratic process, any procedure provided by an election statute must be read strictly. Therefore, the legislature has provided that the petition must be presented “by” the petitioner himself, so that at the time of presentation, the High Court may make preliminary verification which ensures that the petition is neither frivolous nor vexatious.” 12. The Court then considered the judgment in the case of Sheo Sadan Singh (supra), where it was not in dispute as the Election Petition was presented to the Registry of the Court in the immediate presence of the election-petitioner. However, the Court observed as follows : “22. Learned counsel appearing for the appellants relied on a decision of the High Court of Rajasthan (Jaipur Bench) in Bhanwar Singh v. Navrang Singh. In the case before the learned Single Judge, the election petition had been presented by one Rajendra Prasad, Advocate and not by the petitioner himself. It was argued by learned counsel for the petitioner therein that the election petition had been validly presented under Section 81(1) of the Act because EP/20/2009 & Appl (St.)/5/2010 : 15 : Section 81(1) of the Act only makes a provision as to who can file an election petition and does not deal with as to who should actually present it before the Registry. It is further submitted that Section 81 of the Act nowhere provides that the petitioner should be physically present at the time of presentation of the election petition. The learned Single Judge, after adverting to the words “by”, “presented” concluded that these words used in Section 81(1) of the Act have to be given wide meaning and found that the electin petition filed through an advocate without the presence of the candidate or elector is valid. We are unable to accept the said conclusion. 23. We have already pointed out that in spite of provisions in CPC and the Evidence Act relating to institution of suit and recording of evidence, etc. this Act provides all the details starting from the presentation of the election petition ending with the decision of the High Court. Ins uch circumstances, it is but proper to interpret the language used by the legislature and implement the same accordingly. 24. The challenge to an election is a serious matter. The object of presenting an election petition by a candidate or elector is to ensure genuineness and to curtain vexatious litigations. If we consider sub-section (1) along EP/20/2009 & Appl (St.)/5/2010 : 16 : with the other provisions in Chapters II and III, the object and intent of the legislature is that this provision i.e. Section 81(1) is to be strictly adhered to and complied with. 25. In view of the endorsement by the Registrar (Judcial) on 7-7-2008 that the election petition was presented only by an advocate and not by the election petitioners, we accept the reasoning of the High Court in dismissing the election petition. We further hold that as per sub-section (1) of Section 81, an electiion petition is to be presented by any candidate or elector relating to the election personally to the authorised officer of the High Court and failure to adhere to such course would be contrary to the said provision and in that event the election petition is liable to be dismissed on the ground of improper presentation.” 13. The Supreme Court in the case of G.V. Srirama Reddy & Ors.(supra) has clearly laid down that the election-petitioner must be present when the Election Petition is presented to the Registry of the Court. In the present case, admittedly the election-petitioner was not present. It is true that his absence was due to ill health. The EP/20/2009 & Appl (St.)/5/2010 : 17 : Election Petition has been verified on 26th November, 2009 and presented on 2nd December, 2009 at 1:15 p.m. It is surprising, therefore, that the election-petitioner was not presented in the Office of this Court on the day the verrification was signed by the Election Petitioner. The provisions of Section 81 of the Act do state that the Election Petition “may” be presented by any candidate. Although the word “may” has been used, it has been apparently interpreted by the Supreme Court to mean “shall” in the judgment in the case of G.V. Srirama Reddy & Ors. (supra). Therefore, when the election- petitioner himself admits to this lacuna on his part, his contention that it was because of his ill health that he could not remain present to file the Election Petition is of no consequence. Thus, in view of the decision of the Supreme Court in the case of G.V. Srirama Reddy & Ors. (supra), there is no alternative but to reject the Election Petition. 14. Apart from this, Rules have been framed by the High Court with regard to Election Petitions under EP/20/2009 & Appl (St.)/5/2010 : 18 : the Representation of the People Act, 1951. These Rules are found in Appendix II of the Bombay High Court (Original Side) Rules. Rule 4 deals with the presentation of the Election Petitions, which reads thus : “4. Election Petitions arising from areas constituting Judicial Districts of Akola, Amravati, Bhandara, Buldhana, Chandrapur, Gadchiroli, Nagpur, Wardha and Yeotmal shall be presented either in person or by an Advocate duly authorized in that behalf by the party concerned to the Additional Registrar of the Nagpur Bench or to such other officer as the said Additional Registrar may, by general or special order issued from time to time, appoint in this behalf; Election Petitions arising from the areas constituting Judicial Districts of Aurangabad, Beed, Jalana, Latur, Nanded, Osmanabad and Parbhani shall be presented either in person or by an Advocate duly authorized in that behalf by the party concerned to the Additional Registrar of the Aurangabad Bench or to such other officer order issued from time to time, appoint in this behalf; Election Petitions arising in the State of Goa which lie in the High Court at Bombay shall be presented EP/20/2009 & Appl (St.)/5/2010 : 19 : either in person or by an Advocate duly authorized in that behalf by the concerned to the Special Officer of the Panaji Bench, Goa or to such other Officer as the Special Officer may be general or special order issued from time to time, appoint in this behalf; Election Petitions arising from the rest of the areas of the State of Maharashtra or arising in the residuary Union Territory of Daman and Diu, and the Union Territory of Dadra and Nagar Haveli which lie to the High Court of Bombay shall be presented to the Prothonotary and Senior Maste, High Court, Bombay or such other Officer as the Prothonotary and Senior Master may, by special or general orders passed from time to time appoint in this behalf.” 15. A perusal of the aforesaid rule would indicate that Election Petitions arising from the areas within the jurisdiction of the Nagpur Bench and Aurangabad Bench and from the State of Goa can be presented either in person or through an Advocate duly authorized in that behalf by the election- petitioner. However Election Petitions which arise from the rest of the areas of the State of Maharashtra or Union Territories of Daman and Diu EP/20/2009 & Appl (St.)/5/2010 : 20 : or Dadra and Nagar Haveli, which lie before the principal seat of the Bombay High Court, must be presented to the Prothonotary and Senior Master or such other officer who is appointed to accept such Petitions. However, the rule does not specifically state that either the election-petitioner or his Advocate can present an Election Petition before the principal seat of this Court. The Election which is challenged in the present Election Petition is to the Constituency No.114 Central Malegaon of Nasik District, which falls within the jurisdiction of the principal seat of this Court. Therefore, the presentation of the Election Petition by the Advocate appointed by the election- petitioner will not suffice. It must be presented by the election-petitioner himself. 16. Therefore, in my opinion, the Election Petition deserves to be dismissed under Section 86 of the Act. EP/20/2009 & Appl (St.)/5/2010 : 21 : 17. The third contention raised by Mr. Acharya is with respect to the election-petitioner not having arrayed all the contesting candidates as party- respondents to the Election Petition. The learned Advocate for the election-petitioner submitted that it is always open for this Court to not grant prayer (d), where the election-petitioner has sought a declaration that he is elected to the Constituency as a result of the Election Petition being allowed. He submitted that the election- petitioner be permitted to delete this prayer as no prejudice would be caused to the applicant herein. He further submitted that the Election Petition can be limited to prayer (d), wherein the election- petitioner has prayed that the election of the applicant herein, i.e. the original respondent, to the Maharashtra Legislative Assembly from the Constituency No.114 Central Malegaon of Nasik District be declared void. 18. It is true that the election-petitioner has sought a prayer that he be declared as the elected EP/20/2009 & Appl (St.)/5/2010 : 22 : candidate to the aforesaid Constituency once the Election of the applicant herein, i.e. the original respondent, is declared void. In the case of K. Kamraj Nadar vs. Punju T. and Ors., reported in AIR 1958 SC 687, the Supreme Court has observed that the defect of non joinder of necessary parties to the Election Petition cannot be cured by amendment in as much as the Election Tribunal has no power to grant such an amendment, albeit by way of withdrawal or abandonment of a part of the claim or otherwise, once an Election Petition has been presented to the Election Commissioner. Similarly in the case of Krishan Chander vs. Ramlal, reported in AIR 1973 SC 2513 , the Supreme Court has held that Section 82(b) of the Act is mandatory and, therefore, must be strictly complied. The Supreme Court in this judgment has in terms held that if the respondent in the Election Petition makes out a case that the requirements of Section 82 of the Act are not fulfilled, the Court is left with no option but to dismiss the Election Petition for the non compliance of the mandatory provisions of Section EP/20/2009 & Appl (St.)/5/2010 : 23 : 82 of the Act. This principle has been reiterated by the Supreme Court in several judgments. 19. In the present case, it is not open for the election-petitioner to seek an amendment of the prayers in the Election Petition, as held in the case of K. Kamraj Nadar (supra). The Election Tribunal or Court has no power to grant such an amendment for withdrawal or abandonment of part of the claim in the Election Petition. Therefore, in my view, on this ground also the Election Petition will have to be dismissed. 20. The next reason for seeking dismissal of the Election Petition is that the DVDs have not been served on the applicant herein i.e. the original respondent. It has been submitted by Mr. Acharya that a copy of the DVD was not served on the applicant herein. According to him, the DVD would form an integral part of the Election Petition. He urged that under Section 81(3) of the Act, a true copy of the Election Petition must be served on the EP/20/2009 & Appl (St.)/5/2010 : 24 : elected candidate, which has not been done in this case. 21. The Election Petition, undisputedly, was filed along with the copies of the DVDs which contained recordings of the corrupt practices indulged in by the applicant herein. The DVDs were submitted to the office of this Court for service upon the original respondent, i.e. the applicant herein, along with the Election Petition. Unfortunately the Court’s office has been lax and the DVD has not been furnished to the original respondent, i.e. the applicant herein, along with the Election Petition. However, in my opinion, the DVD is only a piece of evidence which the election-petitioner would rely upon