Case: PATEL AHMED MOHAMMAD Vs. BALWANT SINGH RAJPUT

2. These appeals take exception to the judgment and order dated 20 th April, 2018 passed by the High Court of Gujarat at Ahmedabad, in Election Application Nos.2, 3 and 6 of 2017 in Election Petition No.1 of 2017. By the said order, the High Court dismissed all the three applications preferred by the appellant seeking dismissal of Election Petition No.1 of 2017 at the threshold.3. Election Petition No.1 of 2017 has been filed by respondent No.1 challenging the election of the appellant to the Council of States (Rajya Sabha) held on 8 th August, 2017, by the members of the Legislative Assembly of Gujarat, on the ground that the appellant had committed corrupt practices of „bribery? and „undue influence? within the meaning of subsections (1) and (2) of Section 123 of the Representation of the People Act, 1951 (for short ?the Act?) and also on the ground that two valid votes were illegally and improperly rejected by the Returning Officer and at the same time, two invalid votes were accepted by the said officer, which has materially affected the results of the election. The election petition came to be filed on 18 th August, 2017 much before the last date of limitation.4. The appellant was served with the summons on 7 th September, 2017 to appear in the election petition, pursuant to the order of the High Court dated 21 st August, 2017. The appellant filed his written statement on 4 th October, 2017 and also filed the stated three applications for dismissal of the election petition at the threshold. The first application was numbered as Election Application No.2 of 2017, wherein the appellant had prayed for dismissal of the election petition primarily on the ground ofof Rules 282 (ii) and (iii) of the Gujarat High Court Rules, 1993, as there was no order to rectify suchas contemplated under Rule 284 and the time provided therefor in the later portion of Rule 283 had elapsed. In other words, the election petition was required to be dismissed forof office objections raised by the office/registry of the High Court, in exercise of power under Rule 284 after recalling the order dated 21 st August, 2017. The second application was numbered as Election Application No.3 of 2017, praying for dismissal of the election petition on the ground of noncompliance of the provisions of the Act read with the Gujarat High Court Rules, 1993, as well as the provisions of Order XIX Rule 3 of the Code of Civil Procedure ( ?CPC?). The grounds urged in the application were ascribable to dismissal of the election petition under Section 86(1) read with Sections 81(3), 83(1)(c) and 83(2) of the Act as well as the provisions of CPC and the High Court Rules. The third application, being Election Application No.6 of 2017, was also for dismissal of the election petition at the threshold under Order VII Rules 11(a) and (d) of CPC, forof the cause of action in the election petition and the petition being barred by law. As aforesaid, all the three election applications have been rejected by the High Court vide common impugned judgment.5. The appellant, being aggrieved by the said decision of the High Court, has filed these appeals by special leave.

Reasoning:
15. We must agree with the High Court that to test the arguments of the appellant as to whether the copy served on(1964) 3 SCR 573 (1964) 6 SCR 213 (1999) 4 SCC 274 him was a true copy of the original election petition or otherwise, it was imperative for him to produce the copy of the petition actually served on him and not the photocopy thereof. The grievance of the appellant that some blanks had been kept in the verification clause or there were material discrepancies, could be examined only if the copy of the petition actually served on the appellant was produced before the Court. The High Court could havethe appellant on this sole ground instead of examining the matter any further.16. However, the grievance made before us by the appellant is that the factual position recorded by the High Court in paragraph 35 of the impugned judgment that the appellant had not produced the copy actually served on him in the Court is incorrect. In that, the appellant had submitted the photocopy of the actually served copy along with Election Application No.3 of 2018 and had also undertaken to produce the original of the actually served copy at the time of hearing and that the same was so produced at the time of hearing and handed over to the High Court. This specific plea has been taken in ground (u) of the special leave petition. In other words, the High Court committed manifest error in that regard. If that is so, it would be appropriate to relegate the parties before the High Court for consideration of grievance that the copy actually served on the appellant is not the true copy within the meaning of Section 81(3) of the Act. We are inclined to say so also because the plea taken by the appellant before us is that the appellant had pointed out 20 discrepancies in the copy of the election petition served on him and a chart whereof has been appended at Pagesof Volume IV of the Special Leave Petition, which according to the appellant, were material discrepancies warranting a finding that the copy of the petition served on him was not a ?True Copy? within the meaning of Section 81(3) of the Act. We find that the High Court has not dealt with this contention in the impugned judgment at all. Even for this reason, the decision of the High Court on the application under consideration, being Election Application No.3 of 2017, will have to be set aside and the parties will have to be relegated before the High Court for its consideration afresh on its own merits in accordance with law. In this view of the matter, we have consciously avoided to advert to the rival pleadings and submissions on the merits of this issue so that no prejudice is caused to either party and the remanded Election Application No.3 of 2017 can be decided de novo in accordance with law. All contentions available to the respective parties in that regard are kept open.17. We may hasten to add that the question to be decided in Election Application No.3 of 2017 for dismissal of the election petition, will be limited toof Section 81(3) and the consequences flowing therefrom including under Section 86(1) of the Act. For, the dismissal of the election petition under the latter provision is envisaged only on that count and not in reference to someof requirement under Section 83 of the Act. This is the settled legal position.18. As we are inclined to relegate the parties before the High Court for consideration of Election Application No.3 of 2017 afresh in accordance with law, and in the event the appellant is in a position to persuade the High Court to allow the said application, the election petition will have to be dismissed at the threshold under Section 86(1) read with Section 81(3) of the Act. However, if that application fails, the appellant can be permitted to reopen or revive the challenge to the issues raised in Election Application No.6 of 2017 for dismissal of the election petition under Order VII Rule 11(a) & (d) of the CPC, on the ground that the election petition does not disclose a cause of action or that it is barred by law. In that eventuality, the appellant may challenge the judgment rendered in the remanded Election Application No.3 of 2017 and also have the liberty to file fresh special leave petition against the impugned judgment and order passed by the High Court in Election Application No.6 of 2017. Further, both such special leave petitions can be heard together. All questions in that regard are kept open, to be decided appropriately if and when occasion arises. For the time being, we do not wish to burden this judgment with the said issues and leave it open.On a bare perusal of the said Rules, it is evident that the election petition is required to be placed for orders before the Court by the office only after removal of office objections as per Rule 285. If the office objections are pending and not cured within the prescribed period, the office is obliged to list the matter before the Court for appropriate orders under Rule284. For that reason, the High Court opined that in the absence of any positive statement in the application filed by the election petitioner and as the record would show that the matter was placed by the office before the Court under Rule 285, it must follow that the grievance made in the application under consideration was based on mere conjectures and surmises and cannot be the basis to dismiss the election petition at the threshold, as prayed. We respectfully agree with the said view taken by the High Court and as a result, the order rejecting the application under consideration, being Election Application No.2 of 2017, deserves to be upheld.13. Reverting to the second application filed by the appellant, being Election Application No.3 of 2017, the thrust of the grievance was that the copy of the election petition served on the appellant was not a true copy. It was not a copy attested by the election petitioner under his own signature, much less to be a ?true copy? of the petition. Further, there were blanks in the verification clause of the petition and the affidavit in Form No.25 was not in conformity with the requirement of law. Additionally, it was also urged that the election petitioner had not filed as many copies of the election petition as there are respondents mentioned in the election petition. The last point raised by the counsel for the appellant came to be rejected by the High Court on the finding that the same was not taken up in the application filed by the appellant. In other words, it was canvassed across the Bar for the first time. That being the position, the High Court justly disallowed the said contention.