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2018 DIGILAW 3319 (PNJ)

Deepinder Singh Dhillon v. Narinder Kumar Sharma

2018-08-07

RAJESH BINDAL

body2018
JUDGMENT Rajesh Bindal, J. - Election petition has been filed by the petitioner challenging the election of respondent No. 1 to the Punjab State Legislative Assembly, the result of which was declared on 11.03.2017. Respondent No. 1 was declared elected. 2. Notice in the election petition was issued. After pleadings were completed, following issues were framed on 12.01.2018. 1. Whether respondent No 1 filed false affidavit before the Returning Officer with regard to payment of Government dues as a consequence his election deserves to be set aside. OPP 2. Whether the appeal made by "Dera Sacha Sauda" of District Sirsa (Haryana to vote for the candidates of Akali Dal amounts to corrupt practise? OPP 3. Whether the petitioner is entitled to be declared as elected candidate after setting aside the election of respondent No. l?OPP 4. Whether the Election Petition having been presented in violation of section 81 of the Representation of The People Act, 1951, as was not presented personally by the petitioner, but only by his Advocate deserves to be dismissed? OPD 5. Whether the Election Petition does not disclose any cause of action, lack in material facts and particulars and, therefore, is liable to be dismissed at the threshold? OPD 6. Whether the Election Petition has not been verified, as required by law? OPD 7. Relief. 3. Issue No. 4 was treated as preliminary. Arguments thereon were heard. 4. Learned counsel for respondent No. 1 submitted that section 81 of the Representation of The People Act, 1951 (for short, 'the Act') provides that an election petition can be presented by any candidate or elector. In case the same is not presented as per the provisions of Section 81 thereof, in terms of Section 86 of the Act, the High Court is bound to dismiss the same. 5. Giving the narration of facts, it was submitted by learned counsel for respondent No. 1 that polling for the Assembly elections was held on 04.02.2017. The result was declared on 11.03.2017. The present petition was filed on 20.04.2017. On the petition, the Registrar concerned of this Court endorsed that the present petition was filed personally by the Advocate of the petitioner on his behalf. It does not mention that the petitioner was present along with counsel at the time of presentation. The result was declared on 11.03.2017. The present petition was filed on 20.04.2017. On the petition, the Registrar concerned of this Court endorsed that the present petition was filed personally by the Advocate of the petitioner on his behalf. It does not mention that the petitioner was present along with counsel at the time of presentation. Though in para No. 13 of the petition, it is alleged that the petition is being presented by the petitioner in person through his counsel, but the statement is incorrect. There is specific objection taken by respondent No. 1 in the written statement that the petitioner was not personally present. Though a stand sought to be taken in the replication that the petition was presented by the counsel in chamber, where the Registrar was sitting and the petitioner was just standing outside will not satisfy the requirement of law. In support, reliance was placed upon the judgment of Hon'ble the Supreme Court in G.V. Sreerama and another vs. Returning Officer and others, (2009)8 SCC 736 . 6. In response, learned counsel for the petitioner submitted that the petition was presented on 20.04.2017, as is the endorsement by the Registrar on the petition. It was put up for scrutiny on 19.05.2017. It has clearly been stated in the replication that the petitioner was present outside the chamber of the Registrar. He referred to the Rules of Procedure and Guidance in the matter of trial of Election Petitions under Part VI of the Representation of the People Act, 1951 in Vol. V under Chapter 4-GG (hereinafter referred to as 'the Rules'), in terms of which the petition can be presented by an Advocate in-charge. In the case in hand, the counsel who presented the petition inside the chamber was advocate-in-charge, hence, there was compliance of the procedure laid down by this Court. He further submitted that when the case was listed for scrutiny, if the petitioner had not complied with the requirement of Section 81 of the Act, the registrar was required to make a note of that. Re-filing of the petition after removal of objections could be again either by the party or the authorised Advocate. The Rules also prescribe for identifying the list of defective petitions to the Bar Association. Re-filing of the petition after removal of objections could be again either by the party or the authorised Advocate. The Rules also prescribe for identifying the list of defective petitions to the Bar Association. Opportunity of hearing is also to be afforded to the party/counsel in any defective petition Once he was satisfied that there was compliance of the Rules framed by this Court the preliminary objection raised by respondent No. 1 is not legally tenable. The judgment of Hon'ble the Supreme Court in G.V. Sreerama Reddy and another'case (supra) is distinguishable as in that case, the High Court had not framed any Rules prescribing procedure for presentation of election petition, as in the case in hand are. In any case, in that matter the Registry had raised the objection. Had the objections been raised in the case in hand, the petitioner would have happily complied with the same. The judgment of Hon'ble Supreme Court in Jamal Uddin Ahmad vs. Abu Saleh Najmuddin and another, (2003) 4 SCC 257 was referred to, which defines High Court'. In support of the argument that presentation of the election petition by the party is not mandatory, reliance was also placed upon a judgment of Hon'ble the Supreme Court in Sheodan Singh vs. Mohan Lal Gautam, AIR 1969 SC 1024 . 7. In response, learned counsel for respondent no. 1 submitted that compliance of Section 81 of the Act is mandatory. In case of any violation thereof, the election petition has to be dismissed. If there is any contradiction between the Act and the Rules framed by the High Court, then statute should prevail and not the Rules. 8. Heard learned counsel for the parties and perused the relevant record. 9. To appreciate the contentions raised by learned counsel for the parties, it would be appropriate to refer to the relevant provisions of the Act and the Rules framed by the High Court. Section 81 and 86 of the Act are reproduced hereunder :- 81. 8. Heard learned counsel for the parties and perused the relevant record. 9. To appreciate the contentions raised by learned counsel for the parties, it would be appropriate to refer to the relevant provisions of the Act and the Rules framed by the High Court. Section 81 and 86 of the Act are reproduced hereunder :- 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] 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]. Explanation - In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (2) xx xx xx [(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition], xx xx xx 86. Trial of election petitions. - (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. Explanation:- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of Section 98. (2) As soon as may after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of Section 8oa. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion try them separately or in one or more groups. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation.-For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practise alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practise not previously alleged in the question. (6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. (7) Every, election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial". 10. The High Court framed Rules of Procedure and Guidance in the matter of trial of Election Petitions under Part VI of the Representation of the People Act, 1951 in Vol. V under Chapter 4-CG.The relevant Rules are extracted below :- "1. 10. The High Court framed Rules of Procedure and Guidance in the matter of trial of Election Petitions under Part VI of the Representation of the People Act, 1951 in Vol. V under Chapter 4-CG.The relevant Rules are extracted below :- "1. Definitions - Unless the context otherwise requires, the following words and expressions, when used in this Chapter, have the meaning assigned to them in these rules- xx xx xx (i) 'Advocate in charge' means the Advocate through whom the petition has been filed other than the Senior Advocate, if any, instructed by him. XX XX XX (vii) High Court' means the High Court for the States of Punjab and Haryana and Union Territory of Chandigarh. xx xx xx (x) Registrar' means the Registrar of the High Court and includes a Joint Registrar, Deputy Registrar and any other official of the Registry of the Court authorised by the Chief Justice to discharge the functions of the Registrar under this Chapter. (xi) Any other words or phrases used in this Chapter, but not herein defined, shall be given the meaning ascribed to them in the Act or in the Code of Civil Procedure, 1908 as the case may be. XX XX XX 11. Contents of Petition- (i) A petition may be presented containing the age of the petitioner, either in person or through an Advocate in charge, for calling in question any election on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 of the Act by any candidate at such election or any elector; and (a) shall contain a concise statement of the material facts on which the petitioner relied, arranged so far as possible in strictly chronological order; (b) shall set forth full particulars of any corrupt practise that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practise and the date and place of the commission of each such practise; and (c) shall be signed and verified by the petitioner in the manner laid down in Order 6, Rule 15 of the Code of Civil Procedure, for the verification of pleadings. (ii) The petition will be presented to the Registrar within office hours on any working day and his receipt showing the date and time of filing of the petition shall be obtained. (ii) The petition will be presented to the Registrar within office hours on any working day and his receipt showing the date and time of filing of the petition shall be obtained. The receipt shall, also, indicate the date on which the petitioner or his Advocate, if any, must appear before the Registrar for removal of formal defects, if any. The said receipt shall be in Form A' appended to these rules. xx xx xx 13. General requirements regarding petitions, (a) All petitions shall be clearly typed or Cyclostyled or printed on only one side of foolscap Government (Judicial) paper in double space with at least a quarter margin. xx xx xx (g) The petitioner or the Advocate incharge shall ensure that the petition does not suffer from unnecessary prolixity and does not contain any scandalous or vexatious allegations which are not necessary to be made for deciding the matters really in issue. 14. Scrutiny of Papers - (a) The Registrar shall cause the petition and its accompanying documents to be scrutinised under his personal supervision. On the conclusion of such scrutiny, the Registrar shall make an endorsement on the back of the last page of the index to the effect that the papers have been scrutinised and if the same have been found to be in order or not, if the Registrar finds that the papers are not complete or do not, otherwise, comply with the requirements of these rules or the provisions of Part VI of the Act, an endorsement to that effect would be made specifying the defaults or the omissions which require rectification. Die endorsement would also show separately if the security for costs referred to above has been deposited by the petitioner before the filing of the petition, and, if the petition has filed within limitation. (b) On such scrutiny if it is found that the petition does not comply with the requirements of Section 81 or Section 82 or Section 117 of the Act, the Registrar shall make a specific enforcement to that effect. (c) If some other defect is detected in the petition or it is found that it does not comply with any other rule, the petition will be returned with such endorsement as hereinbefore specified to the petitioner or the Advocate incharge, on the date specified in the receipt under rule 11 (ii). (c) If some other defect is detected in the petition or it is found that it does not comply with any other rule, the petition will be returned with such endorsement as hereinbefore specified to the petitioner or the Advocate incharge, on the date specified in the receipt under rule 11 (ii). The said endorsement shall specify the time within which the defect or defects mentioned therein shall be removed and the said time shall not exceed seven days in any case. The rectified petition shall be refilled by the petitioner or the Advocate incharge within the tithe so specified. (cc) It shall be the duty of the petitioner or the Advocate in charge to bring to the notice of the Registrar the fact of the removal of the defects or any one or more of the defects pointed out by the office on the every day on which the defect or defects are removed. The fact of removal of defect or defects having been brought to the notice of the Registrar in his own handwriting under his dated signatures specifying with reference to the serial number of the defects or otherwise the particular defects which have been removed. (d) A list of all the petitions, which are not in conformity with the mandatory provisions of Sections 81, 82 or 117 of the Act, shall be put on a special notice board meant for notices relating to election petitions and a copy of such list shall be sent to the Secretary of the High Court Bar Association before 3.30 p.m. on the day preceding the date for which these petitions are directed to be placed before any one of the designated judges. The list shall specify the date on which and the name of the designated judge before whom the petition will be placed for necessary directions or orders in respect of non-compliance with the rules. Such date of hearing shall be communicated to the petitioner or the Advocate incharge on the date specified in the receipt under rule 11 (ii). 15. Preliminary hearing of defective petitions. Such date of hearing shall be communicated to the petitioner or the Advocate incharge on the date specified in the receipt under rule 11 (ii). 15. Preliminary hearing of defective petitions. - (a) All such petitions, (i) which have been prima facie found by the Registry as not complying with the provisions of Section 81 or Section 82 or Section 117 of the Act or (ii) which have been filed incomplete or in any other way not complying with these rules and which the petitioners or the advocates incharge may not have taken back or (iii) which may have been re-filed without necessary compliance or (iv) which may have been refilled after the expiry of the period allowed by the Registry, shall be brought up before any of the designated Judges on a date which has either been noted by the petitioners or the Advocates in-charges or which has been specified in the list prepared, notified, and sent to the High Court Bar Association before 3.30 p.m. on the preceding date, or which has been notified to an un-represented petitioner by registered post. (b) If the petition does not comply with the provisions of the aforesaid the sections of the Act, but does not comply with any of the other rules or requirements contained in this Chapter, the High Court may allow the petitioner or the Advocate incharge such further time not exceeding one week to do the needful on such terms as it may deem fit to impose. (c) All such cases reported by the Registry shall be included at the top of the Daily Cause list of the designated Judge. (d) If the High Court finds that sections 81, 82 and 117 of the Act have been duly complied with and that there has been substantial compliance with the other rules and it is not necessary to have any other rectification or amendment made in the petition or other papers, the High Court shall order notice of the petition to issue to the respondent or respondents as the case may be. xx xx xx" 11. Section 81 of the Act provides that an election petition on any of the grounds specified in the act may be presented to the High Court by any candidate within forty-five days from, but not earlier than, the date of election of the returned candidate. xx xx xx" 11. Section 81 of the Act provides that an election petition on any of the grounds specified in the act may be presented to the High Court by any candidate within forty-five days from, but not earlier than, the date of election of the returned candidate. Section 86 of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 of the Act. Rule 1 (ii) of the Rules defines 'Advocate in charge' to mean an Advocate through whom the petition has been filed. 'Registrar' has been defined in Rule 1 (x) of the Rules to mean the officer so authorised to discharge functions of Registrar. Rule 11 (i) of the Rules provides that the petition has to be presented of election petition will indicate the date on which the petitioner or his advocate is to appear before the Registrar for removal of formal defects, if any. Rule 14 of the Rules provides that the Registrar shall scrutinise the petition and the accompanying documents under his personal supervision and an endorsement shall be made as to whether the same is found to be in order or there are defects, which are required to be rectified. If there are certain defects, the petition is to be returned with such endorsement to the petitioner or the Advocate in charge specifically stating the time within which the defects are to be removed. The time so granted is not to exceed seven days. List of petitions, which are not in conformity with the provisions of Sections 81, 82 of 117 of the Act is to be put on the special notice board relating to election petitions, a list of which is to be sent to the Secretary of the High Court Bar Association preceding the date on which the same are to be placed before the Designated Judge. 12. In the case in hand, the petition was personally presented on 20.04.2017 by the Advocate in charge of the petitioner on his behalf before the Registrar, which was put up for scrutiny on 19.05.2017. Certain defects were pointed out which were removed by counsel for the petitioner, as is noticed in the endorsement made by the Registrar on 25.05.2017. 13. In the case in hand, the petition was personally presented on 20.04.2017 by the Advocate in charge of the petitioner on his behalf before the Registrar, which was put up for scrutiny on 19.05.2017. Certain defects were pointed out which were removed by counsel for the petitioner, as is noticed in the endorsement made by the Registrar on 25.05.2017. 13. A perusal of the Rules framed by the High Court clearly provides that an election petition can be presented either by the candidate in person or through an Advocate in charge. In the case in hand, the contention raised by learned counsel for respondent No. 1 is that as per the endorsement of the Registrar recorded on 20.04.2017, the election petition was presented by the counsel for the petitioner on behalf of the petitioner, hence, there is non-compliance of the provisions of Section 81 of the Act. Though a (Stand was taken by counsel for the petitioner that the petitioner was personally present outside the chamber of the Registrar, but I do not find that there is any need to go into 'that aspect as the petitioner had complied with the procedure prescribed by the High [Court for presentation of the petition and it was, in turn, the election petition so presented was scrutinised. Certain other objections were raised, which were removed by the petitioner/his counsel. It is not in dispute that the election petition was filed within limitation and there are provisions provided in the Rules framed by the High Court which enabled the petitioner to remove the defects within the time granted. No objection was raised by the Registry regarding non-presentation of the election petition by the petitioner in person, hence, there was no opportunity afforded to the petitioner to comply with that objection. 14. As far as judgment of Hon'ble the Supreme Court in G. V. Sreerama Reddy and another's case (supra) is concerned, the case pertained to presentation of election petition in the High Court of Karnataka. It was presented through an Advocate. The Registry raised an objection to that effect. The matter was put up before the Court, which dismissed the same on account of non-compliance of the provisions of Section 81 of the Act. 15. The Election Petitions Procedure Rules framed by the High Court of Karnataka did not enable an Advocate representing the petitioner to present the election petition. The Registry raised an objection to that effect. The matter was put up before the Court, which dismissed the same on account of non-compliance of the provisions of Section 81 of the Act. 15. The Election Petitions Procedure Rules framed by the High Court of Karnataka did not enable an Advocate representing the petitioner to present the election petition. Relevant Rule 7 thereof is extracted below: "7. The election petition complete in all respects along with necessary copies may be presented to the Registrar at any time during the Court hours. Immediately after it is presented, the date of presentation shall be entered in a special register maintained for the registration of election petitions". 16. In the case in hand, the Rules framed by she High Court clearly authorise even the Advocate of the petitioner to present the election petition. 17. In Jamal Uddin Ahmad's case (supra), Hon'ble the Supreme Court opined that the High Court is competent to frame its own Rules with regard to election petitions under the Act. 18. As in the case in hand, the petitioner has complied with the requirement of the Rules framed by the High Court with reference to the election petitions, he cannot be nonsuited only on the ground that the petition has not been presented by the petitioner in person, rather, has been presented by his authorised Advocate. Hence, answer to issue No. 4 is in negative and the present petition is not liable to be dismissed on that ground. 19. Let the matter be now listed on 24.08.2018 for evidence of the petitioner, for which necessary steps be taken.