Case: Ajay Maken Vs. Adesh Kumar Gupta

4. The appellant herein filed Interlocutory Application No. 13851 of 2009 invoking Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as) praying that the election petition be dismissed in compliance with the mandate contained in section 86 of the Act, which stipulatesHigh Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or sectionThe said I.A., was dismissed by an order datedHence, the Appeal.

Reasoning:
16. A reading of the above paragraphs leaves us with the impression that the emphasis of the paragraphs is on the belief of the appellant that the election petition is a proxy litigation undertaken by the election petitioner on behalf of the unsuccessful BJP candidate. It is only in the lastextracted above, a cryptic legal objection is raised that in view of the fact thatof the election petition not only contains allegations of commission of corrupt practice by the appellant herein, but also by Vijay Goel (BJP candidate). In view of the requirement of Section 82(b) of the Act, Vijay Goel must also have been made a respondentto the electionpetition and failure to so implead is fatalNo doubt, Section 82(b) on a plain reading or on the principle of literal construction, seems to require that all the candidates against whom allegations of commission of corrupt practice are MADE IN THE PETITION must be made parties / respondentsThe first factor is the nature of the relief sought by the petitioner. Where a further declaration as contemplated under section 101 is sought, the petitioner is bound to make all the contesting candidates parties respondentsto the electionWhere no such declaration is sought, the section stipulates that it is enough to make all the returned candidates at the election, partiesto the electionThe employment of the expressionis obviously meant to cover disputes relating to elections to Rajya Sabha or Legislative Councils where more than one candidate is declared elected at the same election.39. The second factor is the ground on which declaration of nullity of the election of the returned candidate is sought. It must be remembered that the election of any returned candidate can be questioned on various grounds specified under section 100(1) of the Act, such as, lack of qualification or disqualification on the part of the candidate, the commission of corrupt practices by the returned candidate or his election agent etc. or the improper rejection of the nomination of any candidate at the election etc.40. The following propositions emerge from the above analysis. An election to the Parliament or the State Legislature can be called in question only in accordance with the provisions of the Act. Such a question can be raised only before the High Court. The High Court, in an election dispute, can declare the election of the returned candidate to be void. It may also give a further declaration in an appropriate case and subject to compliance with the procedural requirements that either the election petitioner or any other candidate at the questioned election, has been duly elected. The first of the abovementioned declarations can be made only on one or some of the various grounds enumerated under Section 100 of the Act.41. In the present case, the relief sought by the election petitioner is only the declaration of nullity of the election of the appellant herein on the ground of commission of corrupt practices, but a further declaration contemplated under Section 84 read with Section 101 of the Act is not sought. Therefore, I examine the relevant provisions. Section 100 prescribes that if the High Court is of the opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of either the returned candidate or his election agent,The question of proof of the commission of a corrupt practice arises only if there is an appropriate pleading in that regard in the election petition. I have already noticed that Section 83 stipulates that an election petition, which contains allegations of corrupt practice, must contain full particulars of thealleged to have committed a corrupt practice. I am of the opinion that the Legislature chose to use the expression PARTIES for the reason that there are various categories of persons, who are capable of committing a corrupt practice in connection with the election of a returned candidate(i) the returned candidate; or (ii) his election agent, or (iii) any other person with the consent of either the returned candidate or his election agent; or (iv) any other agent, as explained earlier. The difference in the language of Section 82 and 83(1)(b), in my opinion, is significant. While Section 82 speaks of candidates, Section 83(1)(b) speaks of parties.From the above, it can be seen that two propositions of law are settled by this Court. Firstly, when an election petition is accompanied by annexures, whose content is completely described in the election petition, failure to serve a copy of such an annexure along with the copy of the election petition on a respondentto the electionpetition does not render the copy served on the respondent anything other than a true copy of the election petition. Secondly, even in a case where the content of the annexure is not fully described in the election petition, theof such annexure along with the copy of the election petition to the respondent does not violate the mandate of Section 81(3) in those cases where annexure is only sought to be used as evidence of some allegation contained in the election petition.petition.56. In my opinion, none of the abovementioned three cases laid down as an absolute principle that an annexure to an election petition, whose content is not described in the election petition, would become the integral part of the election petition for all the purposes. It is only for a limited purpose of deciding the question whether a copy of the election petition, served on the respondent in the election petition, is a true copy of the original filed into the Court within the meaning of Section 81(3) of the Act, annexures are treated as integral part of the election petition, that too, only in the situation, where the content of the annexure is not fully described in the body of the main petition. 57. Now, I shall examine the question whether the allegations of commission of corrupt practice are MADE in the election petition within the meaning of the expression under Section 82(b).58. Obviously the allegations must be MADE by the election petitioner. In a case like the one on hand where the election petitioner does not make any such allegation in the body of the election petition, but such allegations are found in some document annexedto the electionpetition – of which the election petitioner is not the authorcan it be said that the allegations are MADE in the petition ?59. In my opinion the answer to the question must be in the negative. Because, firstly, the document annexure is not authored by the election petitioner; secondly, in the entire body of the election petition there is no reference to any corrupt practice committed by Vijay Goel. Making such an allegation against Vijay Goel would in no way help the election petitioner to obtain the relief sought by him in the election petition. Even at the cost of the repetition I must state that the election petition does not seek a further declaration contemplated under Section 84 of the Act. As rightly, argued by Shri Ranjit Kumar, the purpose of the annexure is only to derive support to the allegation of the commission of corrupt practice alleged against the appellant only. Therefore, only that much of the content of the annexure as is relevant to the allegations made in the election petition proper must be considered to have become integral part of the election petition.60. To stretch the principle laid down in Sahodrabai case, to say, that an annexure becomes an integral part of the election petition for all purposes and, therefore, hold that the allegations made against Vijay Goel in the annexure by somebody other than the election petitioner would become allegations MADE in the election petition, would lead to absurd results; that is what exactly sought to be done by the appellant herein. I reject the submission.61. In view of my above conclusion, I do not wish to examine the purport and interpretation of Section 82(b). I must also place it on record that we gave our anxious consideration to the four judgments i.e., Murarka Radhey Shyam Ram Kumar case, Satya Narain case, Rajendra Singh case and Chandrakanth Uttam Chodankar case, which dealt with the interpretation of Section 82(b) and I am of the prima facie opinion that those judgments may require reconsideration in an appropriate case. Since, the same is not necessary for the present in view of my conclusion recorded above, I refrain from examining the correctness of the said decisions.