Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1661 (MP)

Ram Khelawan Patel v. Rajendra Kumar Singh

2014-12-12

G.S.SOLANKI

body2014
JUDGMENT : G.S. Solanki, J. 1. This order shall govern disposal of I.A. No. 22/2014, which is an application filed by respondent No. 1 under Order VII Rule 11 of the CPC read with Section 86 of the Representation of People Act, 1951 (hereinafter referred to as the Act of 1951) inter alia on the ground that the petitioner has called in question the election of respondent No. 1 from Assembly Constituency No. 66, Amarpatan on the following grounds :- (i) Suppression of material facts while submitting the nomination papers. (ii) Indulging in corrupt practices (iii) exceeding permissible limit of expenditure 2. It is further submitted that though in the instant election petition, the petitioner is seeking his own declaration as the returned candidate but as per the mandatory requirement of Section 82 of the Act of 1951, the petitioner has not arrayed all the contesting candidates as the respondents in the election petition, therefore, on the ground of non-joinder of all the candidates, the election petition is liable to be dismissed at threshold. It is further submitted that the pleadings contained in the election petition do not disclose any cause of action because no specific pleading in any paragraph of the election petition discloses any cause of action. The pleadings of election petition are vague and trial cannot not be proceeded on such pleadings. Verification and affidavit filed along with the election petition are not in accordance with law. It is further submitted that there is an apparent non compliance of the provisions of Section 81, 82, 83 and 86 of the Act of 1951, therefore, this election petition is liable to be dismissed at threshold without trial. 3. In the reply, the petitioner has denied all the contentions raised in the application and it is submitted that in compliance of Section 83(b) of the Act of 1951, the petitioner has set forth full particulars of corrupt practice including as full statement as possible of the names of the parties alleged to have committed such corrupt practice and date and place of commission of such corrupt practices. It is further submitted that the petitioner has filed the affidavit in the prescribed format in support of the allegations of aforesaid corrupt practices and particulars thereof. It is further submitted that the petitioner has filed the affidavit in the prescribed format in support of the allegations of aforesaid corrupt practices and particulars thereof. So far as non-compliance of Section 82(1) of the Act of 1951 is concerned, a bare perusal of Section 82(a) makes it ample clear that the petitioner is required to implead all the contesting candidates in the array of respondents, if he claims a declaration to the effect that he himself or any other candidate has been duly elected. However, in the instant election petition, the petitioner has not prayed that he or any other candidate be declared as duly elected candidate and as such there is no requirement to implead all the contesting candidates as respondents in the election petition. In fact the petitioner has prayed that he be declared as the returned candidate. 'Returned candidate' is completely and totally different from the candidate who has been duly elected and therefore, in the light of strict construction of the Act of 1951, the election petition cannot be said to be in contravention with Section 82(a) of the Act of 1951. It is further submitted that as per definition provided in Section 79(f) of the Act of 1951, the returned candidate means the candidate whose name has been published under Section 67 of the Act of 1951 as duly elected. The expression 'returned candidate' is in the context of the candidate who has been declared elected under the previous part of the Act of 1951 and it makes obvious that publication of duly elected candidate in the gazette makes him the returned candidate, therefore, expression 'returned candidate' is only for the purpose of the election dispute and for all other purposes, this expression cannot be used, therefore, in the Act the expression used by the legislature as duly elected candidate not the returned candidate. It is further submitted that in the instant petition, the petitioner has claimed that he be declared as returned candidate, which is a kind of prayer, which cannot be granted by the High Court and as such for this reason itself, the case of the petitioner does not fall within the purview of Section 82(1) and consequently Section 86 of the Act of 1951. On the basis of the aforesaid submissions, the petitioner has prayed for dismissal of the application filed by respondent No. 1 under Order VII Rule 11 of the CPC read with Section 86 of the Representation of People Act, 1951. 4. I have gone through the entire pleadings made by the petitioner. The petitioner has specifically pleaded in Paragraph 15 of the Election Petition that respondent No. 1 adopted the corrupt practices for winning the election. He distributed money for buying the voters. The election agent of respondent No. 1 has offered money to the tune of ` 50,000/- to one Vinod Sharma on 22.11.2013 at about 10:00 PM at his house and this incident was witnessed by Omkar Sharma. It is further submitted that respondent No. 1 has also offered money to one Manoj Sharma S/o Ramsaroj Sharma at his residence on 20.11.2013 at about 8:00 AM. Similarly one Narendra Singh S/o Balkaran Singh was also offered money for giving votes in favour of respondent No. 1 on 18.11.2013 by respondent No. 1 himself, which has been witnessed by one Rakesh Pandey. It is further submitted that respondent No. 1 wanted to win the election by hook or crook and tried to win the election by unfair means. There is specific pleading in regard to Yashwardhan S/o respondent No. 1 who tried to inflict undue influence upon one Vijay Kumar Chaturvedi to cast votes in favour of respondent No. 1. He also extended threats for casting votes in favour of respondent No. 1. Considering the aforesaid material facts on record and keeping in view that the petition cannot be dismissed merely on the non specific pleadings on other grounds, I am of the view that it is not a case wherein no cause of action is disclosed but when the prayer clause is perused the petitioner has prayed for the following reliefs : A. Declare that, the election of respondent No. 1 as null and void and consequently the notification dated 8.12.2013 declaring respondent No. 1 as returned candidate. B. Declare the petitioner as returned candidate. C. Award suitable punishment to those found to be involved in irregularities. D. Award appropriate and suitable cost to the petitioner. 5. B. Declare the petitioner as returned candidate. C. Award suitable punishment to those found to be involved in irregularities. D. Award appropriate and suitable cost to the petitioner. 5. Since the relief clause is based on the pleadings made in the election petition, when the pleadings made in paragraphs 15 and 16 of the election petition are considered, the petitioner has specifically pleaded that respondent No. 1 as well as his son Yashwardhan offered money for giving votes in favour of respondent No. 1 and respondent No. 1 wanted to win the election by hook or crook, which shows that the petitioner has made the pleadings for declaring him as duly elected candidate. Mere non-mentioning of Section 101 of the Act of 1951 in the grounds of petition, do not absolve the controversy. Thus, in my opinion, the petitioner has prayed to declare him as elected candidate under the garb of claiming the relief to declare him as returned candidate, which cannot be done without declaring him as elected candidate. 6. It is undisputed that the petitioner has not impleaded all the contesting candidates as respondents in the election petition as provided under Section82 of the Act of 1951. Section 82 and the relevant extracts of Section 86 of the Act of 1951 read thus :- “82. Parties to the petition. - A petitioner shall join as respondents to his petition - (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition. 86. Trial of election petition. - (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.” 7. Section 82 of the Act provides that where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected then he must join as respondents to his petition all the contesting candidates. Section 82 of the Act provides that where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected then he must join as respondents to his petition all the contesting candidates. If the provisions of Section 82 are not complied with, this Court is directed by Section 86 to dismiss the election petition. In K. Kamaraja Nadar Vs. Kunju Thevar and others – AIR 1958 SC 687 , the Supreme Court held that when the provisions of Section82 were not complied with, the Election Tribunal, enjoined under Section 90(3) to dismiss such an election petition, was bound to dismiss the same as Section 90(3) was mandatory. Section 90(3) has been substituted by Section 86 of the Amendment Act, 1966 with the same mandatory obligation to dismiss such an election petition. Similar view has been taken by the Apex Court in Krishna Chander Vs. Ram Lal – AIR 1973 SC 2513 and Ram Pratap Chandel Vs. Chaudhary Lajjaram (1998) 8 SCC 564 . 8. As the petitioner admittedly did not join all the contesting candidates as respondents in the petition wherein he has prayed for a further declaration that he be declared as returned candidate, in which the prayer to declare him as elected candidate is implied, his petition is bound to be dismissed under Section 86, which is mandatory. In these circumstances, petition is liable to dismiss at threshold. Accordingly, I.A. No. 22/2014 is allowed, as a consequence thereof, this election petition is dismissed. No order as to costs.