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रजिस्ट्री स.ं डी.एल. (एन) 04/0007/2003—05 REGD. NO. D. L. (N) 04/0007/2003—05
सी.जी.-डी.xएxलx.G-सIDा.-H2x0x0x9 2021-229775
CG-DL-W-20092021-229775
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प्राजिकार स ेप्रकाजित
PUBLISHED BY AUTHORITY
साप्त ाजिक
WEEKLY
स.ं 22] नई दिल्ल ी, जसतम्ब र 12—जसतम्ब र 18, 2021, िजनवार / भाद्र 21—भाद्र 27, 1943
No. 22] NEW DELHI, SEPTEMBER 12—SEPTEMBER 18, 2021, SATURDAY/BHADRA 21–BHADRA 27, 1943
इस भाग म ेंजभन्न ृ्ष स्ं ा िी िाती ि ैजिसस ेदक ि ृथष क सकं लन के रूृ म ेंरखा िा सके
Separate Paging is given to this Part in order that it may be filed as a separate compilation
भाग II—खण्ड 3—उृ-खण्ड (iii)
PART II—Section 3—Sub-section (iii)
केन्द्र ी अजिकारर ों (सघं राज् क्षे्र े प्रिासनों क ो ़ककर) ्ारा िारी दकए गए सािार दििे रर अजिसनच नाएं
Orders and Notifications issued by the Central Authorities (Other than the Administrations of Union
Territories)
भारत जनवाना न द ग
नई दिल् ली, 8 जसतम्बर, 2021
द.अ. 292.— ल क प्रजतजनजित्व अजिजन म, 1951 (1951 का 43) की िारा 106 के अनुसर में, भारत जनवाानन
द ग वर्ा 2019 की जनवाानन अिी सं् ा 2 में माननी उच्च न् ा ाल , इलािाबाि के दिनांक 12 फरवरी, 2021 के जन ा क
एतद्द्वारा प्रकाजित करता ि ै।
(जन ा के जलए अंग्रिी िखे ें )
[फा. सं. 82/उ.प्र.-ल .स./2/2019(इला.)
दििे से,
ृु्ृा एन. लक़का,सजनव
4933 GI/2021 (629)630 THE GAZETTE OF INDIA : SEPTEMBER 18, 2021/BHADRA 27, 1943 [PART II—SEC. 3(iii)]
ELECTION COMMISSION OF INDIA
New Delhi, the 8th September, 2021
O.N. 292.—In pursuance of section 106 of the Representation of the People Act, 1951 (43 of 1951), the
Election Commission of India hereby publishes the Judgement dated 12th February, 2021 of the High Court of
Judicature at Allahabad in Election Petition No. 2 of 2019.
IN THE HIGH COURT OF JUDICATURE OF ALLAHABAD
ELECTION PETITION NO. 2 OF 2019
(Under Section 80/81 of Representation of the People Act, 1951)
(DISTRICT; GAUTAM BUDH NAGAR)
Adesh Tyagi S/O Sri Kul Pavitra Tyagi R/O A-99, 2nd Floor, Sector-33, Noida, District Gautam Budh Nagar, U.P.
….Petitioner
VERSUS
Dr. Mahesh Sharma S/O Sri Kailash Chandra Sharma, R/O 404, Sector 15-A, Noida, District Gautam Budh Nagar,
U.P.
(Candidate of Bharatiya Janta Party symbol ‘Lotus’)
…. Respondent
Court No. - 76
Case :- ELECTION PETITION No. - 2 of 2019
Petitioner :- Adesh Tyagi
Respondent :- Mahesh Sharma
Counsel for Petitioner :- Rajesh Kumar Pandey, Adesh Tyagi (In Person),Anil Tiwari, Rajesh Kumar Pandey
Counsel for Respondent :- Dr. D.K. Tiwari, ,K.R. Singh
Hon'ble Dinesh Kumar Singh-I,J.
Sri Rajesh Kumar Pandey, learned counsel for the petitioner, Sri Manish Goyal, learned Senior Counsel assisted by
Sri D. K. Tiwari, learned counsel for the respondent are present.
A civil misc. withdrawal application has been moved today under Section 109 & 110 of Representation of People
Act, 1951 seeking withdrawal of the election petition by the petitioner supported by an affidavit of the petitioner, in
which, it has been stated after filing the election petition, almost one and a half years have passed and because of
financial constraint, he wants to withdraw this petition, therefore, he should be permitted to withdraw this petition.
It is further submitted by him that provisions for withdrawal has been mentioned in Section
109 (2) as well as 110 of Representation of People Act, 1951 which are reproduced hereinbelow:-
109. Withdrawal of election petitions.-
(1) An election petition may be withdrawn only by leave of the High Court.
(2) Where an application for withdrawal is made under sub-section (1), notice thereof fixing a date
for the hearing of the application shall be given to all other parties to the petition and shall be
published in the Official Gazette.
110. Procedure for withdrawal of election petition.—
(1) If there are more petitioners than one, no application to withdraw an election petition shall be
made except with the consent of all the petitioners.
(2) No application for withdrawal shall be granted if, in the opinion of the High Court, such
application has been induced by any bargain or consideration which ought not to be allowed.
(3) If the application is granted-
(a) the petitioner shall be ordered to pay the costs of the respondents there to fore incurred or such
portion thereof as the High Court may think fit;[भाग II—खण् ड 3(iii)] भारत का रािृ्र : जसतम् बर 18, 2021/भाद्र 27, 1943 631
(b) the High Court shall direct that the notice of withdrawal shall be published in the Official
Gazette and in such other manner as it may specify and thereupon the notice shall be published
accordingly;
(c) a person who might himself have been a petitioner may, within fourteen days of such
publication, apply to be substituted as petitioner in place of the party withdrawing, and upon
compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to
continue the proceedings upon such terms as the High Court may deem fit.
From the reading of the said provision, it appears that notice was required to be issued fixing date for hearing all
the parties to the petition and which was also required to be published in Official Gazette.
Learned counsel for the respondent has relied upon the judgement and order passed by the Hon'ble Apex Court in
Chaugule vs Bhagwat, AIR 2012 SUPREME COURT 1638, relevant paragraphs are provided hereinbelow:
15. As may be noticed, Clause (c) of Section 110(3) permits a person, who might himself have been
a Petitioner, (emphasis supplied) to apply for substitution as Petitioner in place of the party
withdrawing. However, as has been pointed out by Mr. Kanade, the said expression cannot be held
to apply across the board in all cases, but has to fit in the facts of each case. In the instant case,
the Election Petition filed by Shri Yadavrao was an action in personam and, was, therefore, confined
to his own situation. Had it been an action in rem, the High Court may have been justified in
substituting the Respondent in place of the original Election Petitioner. In the instant case, the
complaint in the Election Petition was that the nomination paper of the Election Petitioner had been
wrongly rejected by the Returning Officer. The Respondent herein, who had been substituted in place
of Shri Yadavrao, did not have the same interest as Shri Yadavrao and, accordingly, the High Court,
in our view, misconstrued the provisions of Section 110(3)(c) of the 1951 Act in applying the
conditions literally, without even satisfying itself that the order fit in the facts of the case.
16. We are satisfied that the expression "a person who might himself have been a Petitioner",
(emphasis supplied) would not apply in a case like the present one, in which the right to be
exercised does not concern the actions of the person elected on the grounds, as contemplated in
Sections 100(1) and 101 of the 1951 Act, which provide for the grounds for declaring the elections to
be void. The grievance of the original Election Petitioner was not against the elected candidate, but
against the action of Returning Officer in rejecting his nomination paper. Once the Election
Petitioner decided not to pursue the matter, the Election Petition could not have been continued by a
person, as contemplated in Section 110(3)(c) of the aforesaid Act.
Based on the above proposition of law, it is argued that since in the present petition, prayer was made for getting
this petition set-aside because the nomination of the petitioner has been rejected illegally/improperly, therefore, it
would be an application in personam and not an application in rem, hence, a notice to the respondent is not required
to be issued as he is present before this court.
I am of the opinion that the said interpretation made in the above citation is fully applicable in the present petition
and I am of the view that no notice is required to be issued and no need is there for publishing notice of withdrawal
in Official Gazette as per Section 109 (2), therefore, such publication is dispensed with.
Now, in view of the fact that the petitioner himself is pressing for withdrawal of this petition on the ground of
financial constraint, I see no reason to disallow his prayer, therefore, this petition is dismissed as withdrawn.
Office is directed to make compliance as per provisions under Section 110(3)(b) of Representation of People Act,
1951 within a period of 15 days positively and after publishing the notice of withdrawal in Official Gazette, the
copy of same would be kept in record by office.
Consigned to the record room.
Cost easy.
Sd/-
DINESH KUMAR SINGH-I. J.
Order Date :- 12.2.2021
VPS
[F. No. 82/UP-HP/2/2019(Alld.)]
By Order,
PUSHPA N. LAKRA, Secy.632 THE GAZETTE OF INDIA : SEPTEMBER 18, 2021/BHADRA 27, 1943 [PART II—SEC. 3(iii)]
नई दिल् ली, 8 जसतम्बर, 2021
द.अ. 293.—ल क प्रजतजनजित्व अजिजन म, 1951 (1951 का 43) की िारा 106 के अनुसर में, भारत जनवाानन
द ग वर्ा 2019 की जनवाानन अिी सं् ा 12 में माननी उच् न न् ा ाल , इलािाबाि के दिनांक 19 फरवरी, 2020 के जन ा क
एतद्द्वारा प्रकाजित करता ि ै।
(जन ा के जलए अंग्रिी िखे ें )
[फा.सं. 82/उ.प्र.-ल .स./12/2019(इला.)]
दििे से,
ृु्ृा एन. लक़का, सजनव
New Delhi, the 8th September, 2021
O.N. 293.—In pursuance of section 106 of the Representation of the People Act, 1951 (43 of 1951), the
Election Commission of India hereby publishes the Judgement dated 19th February, 2020 of the High Court of Judicature
at Allahabad in Election Petition No. 12 of 2019.
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
ELECTION PETITION NO. 12 OF 2019
(Under Section 80, 80A and 81 of Representation of People Act, 1951)
DISTRICT- BAREILLY
Rakesh Agarwal, Advocate, aged about 61 years son of Late L.N. Agarwal, Resident
of 359-B, Mirchia Tola, Punjabpura, Police Station Quila, District Bareilly.
Petitioner
VERSUS
Santosh Kumar Gangwar, Returned Candidate son of not known R/o in front of Lalla
Market, near Shri Krishna Lila Ashthal, Pilibhit Road, Bareilly.
…..Respondent
Reserved
Court No. - 46
Case :- ELECTION PETITION No. - 12 of 2019
Petitioner :- Rakesh Agarwal
Respondent :- Santosh Kumar Gangwar
Counsel for Petitioner :- In Person,Rakesh Agarwal
Counsel for Respondent :- Subodh Kumar, Udit Chandra
Hon'ble Naheed Ara Moonis,J.
Heard Shri Rakesh Agarwal, the petitioner in person and Shri Subodh Kumar and Shri
Udit Chandra, learned counsel appearing on behalf of respondent.
The instant election petition has been filed by Rakesh Agarwal, Advocate with a prayer
to declare the election of respondent-Santosh Kumar Gangwar, who has won the 17th Lok Sabha
election from 25 Bareilly Lok Sabha seat, held between 18th March and 23rd May, 2019 to be
void.
Before adverting to the facts narrated in the election petition, it is necessary to mention
that an election petition is not an action at Common Law, nor in equity. It is a statutory proceeding
to which neither the common law nor the principles of equity apply but only those rules which the
statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be
exercised in accordance with the statute creating it. In the election disputes, the Court is put in
straight jacket. The success of winning candidate is not to be likely interfered with. The burden
of proof lies on one, who challenges the election to raise necessary pleadings and adduce[भाग II—खण् ड 3(iii)] भारत का रािृ्र : जसतम् बर 18, 2021/भाद्र 27, 1943 633
evidence to prove such averments as would enable the result of the election being set aside on
any of the grounds available in law.
The instant election petition and the question raises therein is to be decided within
the fore-corners of the statutes. It appears from the pleadings of the petition raised in
paragraphs Nos. 10 to 14 of the petition, which are delineated herein below:
“ 10. That the petitioner objected to the nomination of the respondent in
writing supported by his own affidavit and document, that the Returning
Officer discarded it and rejected it, instead of rejecting the nomination of
respondent.
11. That the respondent adopted all sorts of corrupt practices to win the
election at any rate. He gave one crore rupees to the congress candidates to
ensure that he should not contest the election fiercely and vigorously by
throwing his life and soul together. He further gave a heavy amount of
money to almost all the Muslim candidates, so that he could stop
polarizations of votes in favour of the petitioner and he was successful in his
drive and illegal designs.
12. That the respondent used all measures to influence voters in
numerous ways, including distribution of diaries, key rings, cash amount,
food, drinks liquor etc. to a very large strength.
13. That the respondent exploited all kinds of voters and adopted all sorts
of corrupt practices and thereby collected a huge amounts of votes and
declared victorious.
14. That the respondent initiated communal riots in Bareilly in last 25
years on several occasions and on 01.9.2003 he kept the dead body of a
person, alleged to be a workers of RSS and BJP, on a hand pull Thela and
moved it in the entire town and thereby excited an environment of hostility
and with the result immediately curfew was imposed in the town the same
day.”
The grounds of objections raised in the petition are that on the date of his election,
the respondent returned candidate was not qualified and was disqualified to be chosen to fill
the seat under the Constitution and this Act under Article 102(1)(d); the returned candidate
had committed several corrupt practices as disclosed in the body of the election petition; ten
nomination of independent candidates were improperly rejected; there is improper acceptance
of nomination of respondent-returned candidate; several persons were in collusion and in
conspiracy in the corrupt practices adopted to favour the returned candidate; there is utter non-
compliance of the provision of Constitution of India, Representation of People Act, 1951 and
the Rules and Orders made thereunder and the High Court Rules; lastly, possibility of
manipulation of EVM machine by the ruling party, cannot be ruled out. Hence, the relief
sought to declare the election of respondent to be void.
The averments contained in the petition were sworn on affidavit. In the election
petition, the petitioner has also mentioned the list of documents as evidence in support of his
case, viz. (i) petitioner’s objections against nomination of BJP candidate, Mr. Santosh Kumar
Gangwar dated 05.4.2019, (ii) petitioner’s affidavit dated 05.4.2019 in support of above
objections, (iii) petitioner’s written printed letter dated 01.5.2019, (iv) order of Returning
Officer dated 05.4.2019 rejecting the above objections, (v) petitioner’s written printed letter
dated 12.4.2019; and (vi) all other relevant documents which this Court may deem fit and
proper to examine.
On the election petition, the Stamp Reporter reported on 04.7.2019 that the
petition is properly drawn up in compliance with Section 80, 81, 82, 83 and 117 of the
Representation of People Act and it is filed within time. It has also been acknowledged, that
requisite stamp has been affixed and tender of Rs. 2000/- as security money has been
deposited vide receipt dated 04.7.2019. On the basis whereof, the Registrar General has also
made an endorsement to the aforesaid report on the said date.
The petition was nominated to this Bench by Hon’ble the Chief Justice under Chapter
XV-A, Rule 4 of Allahabad High Court Rules, 1952 and sub-section 80(A) of the
Representation of People Act, 1951 vide order dated 10.7.2019.634 THE GAZETTE OF INDIA : SEPTEMBER 18, 2021/BHADRA 27, 1943 [PART II—SEC. 3(iii)]
On 17.7.2019, the matter came up before this Court and in order to verify the probity
of the election petition, this Court has passed the following order:
“The instant election has been filed by Rakesh Agrawal Advocate, with a
prayer to declare the election of Santosh Kumar Gangwar who has won 17th Lok
Sabha Election from 25 Bareilly Constituency Seat held on 18th March and 23rd
May 2019 to be void.
The petitioner has mooted a number of grounds for challenging the election
of Santosh Kumar Gangwar. The grounds raised by the petitioner can neither
be stifled nor acquiesced without inviting the respondent Santosh Kumar Gangwar.
In these circumstances notice be issued to the respondent by ordinary process
as well as by registered post in terms of Rule 6 of Chapter XV- A of the Allahabad High
Court Rules 1952 returnable within six weeks. Publication be also made following
the terms of clause (b) of Rule 5 & 6 of Chapter XV-A of the Rules.
Let this petition be listed on 18th September 2019.”
Pursuant to the aforesaid order, the directions were complied with by the registry, the
notices were published in the local Hindi papers published from Bareilly. The notice was also
sent through registered post as well as by ordinary process to the respondent. On 18.9.2019,
Shri Subodh Kumar, who represented the respondent, sought time to file objections in
response to the election petition.
Learned counsel appearing on behalf of the respondent filed two affidavits; (i) for
recalling the order dated 17.7.2019 whereby notice was issued to the respondent and (ii) an
application under Order 7 Rule 11 of Code of Criminal Procedure to dismiss the election
petition. The aforesaid applications were supported by the affidavits. The petitioner sought
time to file counter affidavit to the aforesaid two applications.
After exchange of the pleadings between the parties, the election petition was heard
at length.
Learned counsel appearing on behalf of the respondent has submitted that the Stamp
Reporter has acceded his powers as while presenting the election petition before the Registrar
General, he has not mentioned as to whether any other person has challenged the election or
not, hence it is not in consonance with the provision of Constitution of Bench mentioned in
Chapter XVA, Rule 4 of Allahabad High Court Rules, 1952 (hereinafter referred to as “High
Court Rules”), which speaks that an election petition duly presented shall be registered, and
numbered and shall, after an additional office report regarding other election petition, if any,
in respect of the same election as are referred to in sub-section (3) of Section 86 of the Act
and the Bench, if any, to which they have been referred, be laid forthwith before the Chief
Justice for reference to a Bench.
In the instant case, the Registrar General has not mentioned in the report whether any
other election petition has been filed by any other person for same election or not. The report
so submitted by the Stamp Reporter is in violation of Chapter XVA Rules 4 of the High
Court Rules as the Registrar General was empowered to see whether there was any other
election petition filed challenging the same election. Rule 5 empowers the Court to first, prima
facie, satisfy whether the election petition is not barred by Section
81 of the Representation of People Act (hereinafter referred to as “the Act”).
The petitioner has opposed the prayer made on behalf of respondent No. 2 on the
ground that report so submitted by the Stamp Reporter or the Registrar General is in
compliance of Rule 4 and 5 of High Court Rules and once the notice has been issued to
respondent, the petition cannot be dismissed on such technical grounds. He further submits
that learned counsel for the respondent is trying to lower the dignity of this Court, who is
fully empowered to issue notice and has issued notice to the respondent after considering the
facts of the case.
Learned counsel for the respondent further submitted that the present election
petition challenging the election of the returned candidate does not fulfil strict compliance of
the provisions of the Act. Even a single lack of compliance of the provisions will render the
election petition nullity. Hence, the merits of the case will only be considered if the relevant
statutory provisions have been fully complied with to challenge the election of the returned
candidate.[भाग II—खण् ड 3(iii)] भारत का रािृ्र : जसतम् बर 18, 2021/भाद्र 27, 1943 635
Section 81 of the Representation of People Act speaks about presentation of the
petition, which reads as under:
“Section 81. Presentation of petitions:- 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.”
Presentation of petition has been assigned to the Registrar as per Chapter XV-A Rule
3 of High Court Rules. The relevant Rule reads as under:
3. Presentation of election petition:- Every election petition shall be presented to
the Registrar.
The petition shall bear an office report on Court-fee and on
compliance, in addition to other matters, with Sections 81, 82, 83 and 117 of
the Act.
The petitioner shall file with the petition a list of all documents
whether in his possession or power or not, on which he relies as evidence in
support of his claim.
From the perusal of the above Rule, it is evident that it is not only mandatory to
strictly comply with the Rule, but also states that the petitioner has to file all the documents
relied upon by him as evidence. All the annexures and schedules must be signed and verified
by the petitioner which shall also be accompanied with as many copies as there are
respondents with his signature and it should be true copy.
It is also required that with the election petition, list of documents on which the
petitioner placing reliance shall also be filed as evidence. In this regard, learned counsel for
the respondent has drawn the attention of the Court to the provisions of Sections 83(2) and
81(3) of the Act, which reads as under:
“83. Contents of petition: (1) xxx xxx xxx
(2) Any schedule or annexure to the petition shall also be signed by the
petitioner and verified in the same manner as the petition.
81. Presentation of petition: (1) xxx xxx
xxx
(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.
Learned counsel for respondent submits that if the aforesaid requirements are not
fulfilled, the petition is liable to be dismissed.
In the present case, the election petition filed before the Registrar containing 17
pages and on the 16th page of the election petition, there is a mention of list of certain
documents on which the petitioner wanted to rely, but those documents have not been filed
with the copy of the election petition, which is contrary to Rule 3 of Chapter XV-A of High
Court Rules and the report of the Registrar General that the petition is presented properly
is in clear violation of Rule prescribed under the High Court Rules.
The copy of the election petition served to the respondent does not bear the detail or
swearing of the affidavit of election petition. There is variation in the copy of the election
petition supplied to the returned candidate and is not a true copy as filed in the registry.
It is further pointed out by the learned counsel that photograph mentioned in the
election petition was not supplied to the returned candidate, which is also in violation of
Section 83 of the Act. In support of his contention, learned counsel for the respondent has
placed reliance upon the decision of Hon’ble Supreme Court in M. Karunanidhi Vs. H.V.
Hande, (1983) 2 SCC 473, wherein Hon’ble Apex Court has held that photograph was a part of636 THE GAZETTE OF INDIA : SEPTEMBER 18, 2021/BHADRA 27, 1943 [PART II—SEC. 3(iii)]
the averment contained in paragraph 18(b). In the absence of the photograph the averment
contained in paragraph 18(b) would be incomplete. Hence, it was held that election petition
could not be treated as election petition presented in accordance with the provisions of Section
81(3) of the Act.
In Mulayam Singh Yadav S. Dharam Pal Yadav, (2001)7 SCC 98, Hon’ble Apex Court
has held that any infraction of mandatory requirement in the election petition, non-compliance
of which will render harsh punishment upon the petitioner.
Learned counsel for the respondent has submitted that in paragraph 11 of the
election petition, it is mentioned that respondent has adopted corrupt practice to win the
election, but the petitioner has not impleaded the persons, who have indulged in the corrupt
practice. They ought to have been impleaded as party and on account of non-impleadment of
those persons, the election petition is not maintainable.
The election result of Bareilly Constituency, which was uploaded on the website
has been filed as Annexure CA-1, to the affidavit filed under Order 7, Rule 11 C.P.C., which
shows that altogether 16 candidates contested the election, out of which there were one
candidate of Indian National Congress and six Muslim candidates. Since, the allegation is
made against respondent for corrupt practice, those candidates ought to have been arrayed as
respondent and non-impleading those candidates is in clear violation of Section 82(b) of the
Act. For ready reference, Section 82 of Representation of People Act is reproduced herein
under:
“82. Parties of the petition:- A petitioner shall join as respondents to
his petition:
(a) where the petitioner, in addition to claiming 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.”
In the case of Har Swarup Vs. Brij Bhushan Saran, 1967(1) SCR 342, it has
specifically been held by the Hon’ble Apex Court that once an allegation is made against a
candidate, he should be made party and in case he is not made a party, then the election
petition needs to be dismissed in view of Section 82(b) of the Act.
The Hon’ble Supreme Court further held as under:
“The terms of Section 82 show what persons must be joined as
respondents to an election petition. Clause (a) shows that where a petitioner
is only claiming a declaration that the election of all or any of the returned
candidates is void, he has to join all the returned candidates to the petition
and no more. Further, 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, he has to join not only the returned candidates but all the
contesting candidates. So far as the words ”returned candidates” are
concerned, there is no difficulty as to what they mean. A returned candidate
is one who has been elected and a contesting candidate is one who has
not withdrawn his candidature under Section 37. It is true that in Clause (a)
of Section 82 where we find the words “he himself or any other
candidates”, “any other candidate” there means any other contesting
candidate. That is clear from the context, for there is no question of
declaring a person who has withdrawn his candidature as duly elected. But
the same in our opinion cannot be said of the words “any other candidate”
used in Clause (b) of Section 82. There is no indication in Clause (b) to
suggest that “any other candidate” only refers to a candidate who has not
withdrawn his candidature under Section 37. The use of the words “any
other candidate” in clause (b) is really in contrast to the candidates who are to
be made parties under Clause (a). Under Clause 9a) persons who are to be
made parties to the petition are:[भाग II—खण् ड 3(iii)] भारत का रािृ्र : जसतम् बर 18, 2021/भाद्र 27, 1943 637
(a) returned candidates
(b) contesting candidates.
Depending upon the kind of declaration claimed in the petition. Where, for
example, there is no claim for a further declaration in an election
petition, only returned candidates would be made respondents under
Clause (a), But if there are allegations of corrupt practice against any
candidate other than the returned candidate, he would have to be made a
party under clause (b) as “any other candidate”. Similarly where a
declaration is asked for in the petition that a particular candidate has been
duly elected, all the returned candidates as well as all the contesting
candidates have to be made parties under Clause (a). Even in such a case if
there is allegation that any other candidate besides the returned candidates
and the contesting candidates has been guilty of corrupt practice, clause (b)
requires that he should also be made a respondent. There is in our opinion
for cutting down the meaning of the word “candidate” as defined in Section
79(b) for the purpose of Section 82(b) in the manner suggested on behalf of the
appellants, namely that in Section 82(b) the candidate is only one who has not
withdrawn his candidature under Section 87.”
Similar view has been reiterated by the Hon’ble Supreme Court in Mohan Raj Vs.
Surendra Kumar Taparia and others, 1969 (1) SCR 630 by holding that non-compliance of
Section 82(b) of the Representation of People Act will render the petition liable to be
dismissed.
The Hon’ble Apex Court further held as under:
“When the Act makes a persons a necessary party and provides that
the petition shall be dismissed if such a party is not joined, the power of
amendment or to strike out parties cannot be used at all. The Civil Procedure
Code applies subject to the provisions of the Representation of the People Act
and any rules made thereunder (Section 87). When the Act enjoins the
penalty of dismissal of the petition for non- joinder of a party the provisions of
the Civil Procedure Code cannot be used as curative means to save the
petition.”
In Kashi Nath Vs. Smt. Kudisia begum and others, (1970)3 SCC 554, Hon’ble
Supreme Court held as under:
“It is not disputed on behalf of the appellant that Aizaz Rasul was a
necessary party and the failure to implead him would entail dismissal of the
election petition if there was a candidate against whom allegations of
corrupt practice had been made in the petition. Section 82 (b) of the Act lays
down in the mandatory terms that such a candidate must be impleaded as a
party.”
Learned counsel for the respondent has further submitted that in the affidavit filed in
support of the petition the petitioner also failed to adhere to the mandatory requirement as
provided under Section 83 of the Act., non-compliance whereof will render election petition
as not maintainable. Section 83 of the Act lays down that an election petition shall contain a
concise statement of the material facts, the detail particulars of the corrupt practice and the
statement, if any, which shall be signed by the petitioner and verify in the manner as provided
under Code of Civil Procedure. The prescribed form has been explained under Rule 94-A of
the Conduct of Election Rules, 1961, which provides that affidavit filed under Section 83(1)
should be sworn before a Magistrate of first class or Notary or the Oath Commissioner which
shall be in Form 25. The affidavit in the instant petition is not in the prescribed format as
incomplete copy of the affidavit has been served by the petitioner and verification form is
lacking which states about solemn affirmation. There is not a whisper of any single person,
who has indulged in corrupt practice and, therefore, the affidavit about the corrupt practice is
in violation of Section 83(1) of the Act.
In Purushottam Vs. Returning Officer, Amrawati, AIR 1992 Bombay 227, a learned
Single Judge of Bombay High Court after relying upon catena of judgements of Hon’ble
Supreme Court, held that absence of notary affirmation cannot be regarded as inconsequential.
It is an omission of a vital nature which is likely to prejudice the returned candidate. It is,638 THE GAZETTE OF INDIA : SEPTEMBER 18, 2021/BHADRA 27, 1943 [PART II—SEC. 3(iii)]
therefore, not possible to hold that there has been substantial compliance of the provisions of
Section 81(3) of the Act, as contended by the petitioner. The preliminary objection, therefore,
deserves to be upheld and the petition deserves to be dismissed on that ground alone.
It is not the duly of the respondent to go through the entire record in order to find out
whether the copy supplied to him was a correct one or not and there is endorsement of the
Notary on the copy supplied to the returned candidate. It was also not possible for the returned
candidate to know whether the affidavit was really sworn and if so, before whom it was sworn
and on what date.
In Rajendra Singh Vs. Smt. Usha Rani, AIR 1984, SC 956, the Apex Court has observed
as under:
“This being the position, it is manifest that the appellant did not receive
the correct copies as contemplated by Section 81(3) of the Act. The
respondent has also not been able to prove that the copies served on the
appellant were out of the 10 corrected copies which she had signed and filed.
It appears that in view of a large number of the copies of the petition having
been filed, there was an utter confusion as to which one was correct and
which was not. It is obvious that if an election petitioner filed a number of
copies, some of which may be correct and some may be incorrect, it is his
duty to see that the copy served on the respondent is a correct one. A perusal
of Sections 81(3) and 86 of the Act gives the impression that they do not
contemplate filing of incorrect copies at all and if an election petitioner
disregards the mandate contained in Section 81(3) by filing incorrect copies,
he takes the risk of the petition being dismissed in limine under Section 86. It is
no part of the duty of the respondent to wade through the entire record in
order to find out which is the correct copy. If out of the copies filed, the
respondent’s copy is found to be an incorrect one, it amounts to non-
compliance of the provisions of Section 81(3) which is sufficient to
entail a dismissal of the election petition at the behest.”
In Mithlesh Kumar Pandey Vs. Baidhanath Yadav, AIR 1984, SC 305, Hon’ble Supreme
Court has laid down certain principle which are to be borne in mind by the Court while
dealing with the omissions or discrepancies in the election petition, which are as under:
“(1) That where the copy of the election petition served on the
returned candidate contains only clerical or typographical mistakes, which
are of no consequence, the petition cannot be dismissed straight away under
Section 86 of the Act. A true copy means a copy which is wholly and
substantially the same as the original and where there are insignificant or
minimal mistakes, the Court may not take notice thereof.
(2) Where the copy contains important omission or
discrepancies of a vital nature, which are likely to cause prejudice to the
defence of the returned candidate it cannot be said that there has been a
substantial compliance of the provisions of Section 81(3) of the Act.
(3) Prima facie, the statute uses the words “true copy” and the
concept of substantial compliance cannot be extended too far to include
serious or vital mistakes which shed the character of a true copy so that the
copy furnished to the returned candidate cannot be said to be a true copy
within the meaning of Section 81(3) of the Act.
(4) As Section 81(3) is meant to protect and safeguard the the
sacrosanct electoral process so as not to disturb the verdict of the voters,
there is no room for giving a liberal or broad interpretation to the
provisions of the said Section.
In the light of the aforesaid principles laid down by the Hon’ble Supreme Court, it
cannot be said that the omissions and discrepancies, which appeared in the election petition
supplied to the returned candidate was only clerical or typographical, but the same appears to
be substantial and it could cause prejudice to the returned candidate, who is not expected to
wade through the original record.
Lastly, it has been submitted by the learned counsel for the respondent that the
instant petition has been filed levelling wild allegations against the returned candidate to gain[भाग II—खण् ड 3(iii)] भारत का रािृ्र : जसतम् बर 18, 2021/भाद्र 27, 1943 639
cheap publicity. There is no specific averments to substantiate the charge of corrupt practice
and even if allegation has been mentioned of corrupt practice, nothing in detail has been
submitted on which the petitioner wish to rely and hence the ratio laid down in the case of
Gujarat Urja Vikas Nigam Limited Vs. Essar Power Limited, 2008 (4) SCC 755 that where a
statute provides for a thing to be done in a particular manner, then it has to be done in that
manner, and in no other manner” fully applies in the fact and circumstances of the present
case and, hence the petition deserves to be dismissed with heavy costs.
The petitioner has filed counter affidavit in reply to the application filed by the
learned counsel for the respondent under Order 7 Rule 11 C.P.C. and has replied in a very
casual manner by denying the contents of the affidavit in one single paragraph by mentioning
false, frivolous and vexatious. Petitioner further stated that contents of the petition are correct
and uncontroverted and hence petition be allowed.
It is submitted by the learned counsel appearing on behalf of the respondent that
returned candidate is a law graduate and has good reputation in his constituency and has
earned goodwill of the people of all the religion, caste and community, who is now serving as
Minister of State, independent charge in Central Government. The petitioner is in the
habit of casting aspersion on false, frivolous and vexatious grounds against the returned
candidate to malign his image.
It has been pointed out by the learned counsel for the respondent that petitioner has
earlier also challenged the election of the returned candidate by filing Election Petition No.
14 of 2017 and on account of non-compliance of the mandatory provisions of the Act, the
election petition was dismissed by Coordinate Bench of this Court vide order dated 04.9.2019
imposing cost of Rs. 25,000/- (rupees twenty five thousand only).
So far as the tampering of EVM machine is concerned, Hon’ble Apex Court has
rejected the contention raised by various other political parties and as such the petitioner has
least respect of the highest court of law. He is in habit of making false accusation against
Judicial Officers, Administrative Authority and Politicians and also returned candidate, the
Returning Officer rightly rejected the objections made by the petitioner. Wild allegations
have been made against the returned candidate with respect to the corrupt practice in the
election. The petitioner has not complied with the provisions of Section 117 of the Act,
hence the petition deserves to be dismissed as not maintainable.
In view of the rival submissions advanced by the learned counsel for the parties and
going through the settled statutory provisions of the Act, it is culled out that the parties must
plead the material facts in the election petition and adduce the evidence substantially on the
basis whereof, the court may proceed to adjudicate the issue as to whether prima facie case is
established and if there is any absence of the pleading, evidence or any infraction in law, such
election petition cannot be entertained. It is also equally settled by the case laws relied upon by
the learned counsel for the respondent that a party cannot be permitted to travel beyond its
pleadings. The object and purpose of pleadings is to to enable the adverse party to know the
case, it has to meet and and the absence of the pleading would amount to denial of opportunity
to the opposite party to rebut the contention as has been held time and again by the
Hon’ble Apex Court that the election petition has to be decided strictly in accordance with the
statutory provisions contained in the Act and the Rules as the success of a winning candidate
cannot be lightly interfered with. Merely by raising bald allegations and controverting the
objections in one single para as false, frivolous and vexatious will not be sufficient to
declare the election of winning candidate as void. The burden of proof lies heavily on the
person, who challenges the election and in the present case the petitioner has utterly failed
to put forth any cogent reply for the shortcomings in the election petition as pointed out by the
learned counsel for the respondent, viz., incomplete copy of election petition served on the
respondent, lacking verification and swearing, not filling the list of documents as evidence to
be relied by the petitioner and non- impleadment of those persons against whom allegations
of corrupt practice was made, to substantiate the charge of corrupt practice.
In view of the settled principle of law and what has been indicated herein above, the
preliminary objections raised by the learned counsel for the respondent-returned candidate,
deserves to be upheld and the election petition, deserves to be dismissed under Section 86 of
the Act.
In the result, the election petition is dismissed.640 THE GAZETTE OF INDIA : SEPTEMBER 18, 2021/BHADRA 27, 1943 [PART II—SEC. 3(iii)]
However, on the facts and circumstances of the case, the parties are directed to bear
their own costs.
Sd/-
NAHEED ARA MOONIS. J.
Dated: 19.02.2020
Ishrat
[F. No. 82/UP-HP/12/2019(Alld.)]
By Order,
PUSHPA N. LAKRA, Secy.
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