Ishwardas Rohani vs Alok Mishra & Ors

2. The Respondent No.1 herein, Shri Alok Mishra, contested the 2008 elections to the Madhya Pradesh State Assembly as a candidate of the Indian National Congress Party from Cantt. Legislative Assembly No.99 Constituency, Jabalpur. He was defeated in the elections by the Appellant herein as a candidate of the Bharatiya Janata Party. The said Respondent filed Election Petition No.22 of 2009, challenging the election of the Appellant on the ground of corrupt practice, as contemplated in Sub- Sections (1)(A) and (B), (2), (6) and (7) of Section 123 of the Representation of the People Act, 1951, hereinafter referred to as the “1951 Act”.

3. The grounds relating to corrupt practice, as alleged by the Respondent No.1 herein, inter alia, were to the following effect :

4. In the pending Election Petition No.22 of 2009, an Application, being I.A.No.58 of 2009, was filed on behalf of the Appellant herein, under Order VII Rule 11 read with Order VI Rule 16 of the Code of Civil Procedure, hereinafter referred to as “C.P.C.”, praying that the Election Petition filed by the Respondent No.1 be rejected, inter alia, on the ground that except for making vague allegations of corrupt practice, the Respondent No.1 (Election Petitioner) had failed to disclose material facts and particulars in respect thereof. Another ground of challenge was that the Respondent No.1 had failed to comply with the provisions of Section 81(3)(a) and (b), which are mandatory and in the absence whereof no cause of action could be said to have been available to the Election Petitioner to seek any relief thereunder.

7. Appearing for the Appellant, Ishwardas Rohani, Dr. Rajeev Dhawan, learned Senior Advocate, submitted that all the allegations relating to corrupt practice were in respect of periods prior to the date of the notification of the elections, namely, 29th October, 2008, when the Election Petitioner, Shri Alok Mishra, was not yet a candidate, nor was the Appellant herein. Dr. Dhawan pointed out that the elections were notified for the Jabalpur Cantt. Legislative Assembly Constituency No.99 on 29th October, 2008. On 3rd November, 2008, the Election Petitioner, Mr. Alok Mishra, filed his nomination papers and the polling was held on 27th November, 2008. The results of the election were thereafter announced on 8th December, 2008, in which the Appellant was declared to have been elected. Dr. Dhawan termed the period between 29th October, 2008, when the elections were notified, till 8th December, 2008, when the results were declared, as the “active” period, when the conduct of the elected member could be faulted. Dr. Dhawan submitted that the Election Petition had been filed by the Respondent No.1 herein within the period of 45 days, as specified under Section 81 of the 1951 Act. However, the directions given by the High Court to amend the Election Petition were not permissible in law as such amendment would be beyond the period of limitation, as prescribed. Following such directions of the High Court, the Election Petitioner filed an Application under Order VI Rule 17 CPC praying for various amendments for providing material facts.

Both the petitioner (herein after referred to as ‘the returned candidate’) and the 1st respondent (herein after referred to as ‘the election petitioner’) contested the General Election to the Legislative Assembly of the State of Madhya Pradesh from the Jabalpur Cantonment Constituency. The returned candidate was the candidate of the Bharatiya Janata Party. The election petitioner was the candidate of the Indian National Congress, who lost the election with a margin of 24731 votes to the returned candidate. The election petitioner questioned the validity of the election of the returned candidate by Election Petition No.22 of 2009 on the file of the High Court of Madhya Pradesh. In the said petition, the election petitioner not only sought a declaration that the election of the petitioner is void, but also sought a further declaration that;

23. The decisions cited on both sides, lay down the law in regard to Election Petitions and how Election Petitions are to be presented and the procedure to be strictly followed in filing such Election Petitions, in which corruption, in particular, is the allegation made against the returned candidate. There is little doubt that the provisions have to be strictly construed, but that does not mean that any defect in the Election Petition cannot be allowed to be cured in the public interest. If after an opportunity is given, still no steps are taken by the Election Petitioner to cure the defects which are noticed, then the rigours of the procedure indicated by the 1951 Act, come into effect with full vigour.

24. I, therefore, see no reason to interfere with the order of the High Court appealed against and the appeal is, accordingly, dismissed.

25. There will, however, be no order as to costs.

(iii) If the allegations made in an election petition regarding a corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and those allegations cannot be amended after the period of limitation for filing an election petition, but the court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified.

31. I may also mention here that though the learned counsel for the election petitioner did not bring to our notice (obviously he was not briefed in this regard), Dr. Rajeev Dhawan, learned counsel for the returned candidate placed before us a photocopy of an application seeking the amendment of the election petition pursuant to the directions of the High Court. I do not propose to examine the content of the said application except to take note of the fact that the same appears to have been presented on 02-05-2011. Even otherwise, any such application could, obviously, have been filed only after 05-10-2009, which is the date of Judgment under appeal. In view of the fact that the results of the election in question were declared on 08-12-2008, the application was filed beyond the period of limitation prescribed under the R.P. Act, to challenge the election. In view of my conclusion that the election petition, as originally presented, did not contain the necessary material facts to constitute the cause of action to challenge the election of the returned candidate, the abovementioned application filed by the election petitioner, even if it contain the necessary material facts, cannot be allowed as it would amount to permitting the amendment of the election petition beyond the period of limitation.

32. I, therefore, not only grant leave in the S.L.P., but also allow the appeal and dismiss the election petition.

May 3, 2012.

[4] 47. Appointment of counting agents.- A contesting candidate or his election agent may appoint in the prescribed manner one or more persons, but not exceeding such number as may be prescribed, to the present as his counting agent or agents at the counter of votes, and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer.