Election Petition No. 17 of 2009. Case: Khalil Ahmed Shaikh Mannu Chaudhary Vs Election Commissioner of India and Ors. Bombay High Court

Case Number:Election Petition No. 17 of 2009
Party Name:Khalil Ahmed Shaikh Mannu Chaudhary Vs Election Commissioner of India and Ors
Counsel:For Petitioner: M. D. Joshi, Adv. and For Respondents: Alok Sharma, Asstt. Solicitor General, S. T. Shelar, P. M. Shah, Sr. Counsel, D. L. Vakil, Adv.
Judges:S. V. Gangapurwala, J.
Issue:Representation of The People Act (43 of 1950) - Sections 8, 33, 36, 80, 100; Constitution of India - Article 329(b)
Citation:AIR 2012 Bom 7
Judgement Date:April 27, 2011
Court:Bombay High Court
 
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Judgment:

1. Election dispute is not an action at law or a suit in equity, but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of law. It is not a private Civil dispute between two parties. A conscientious approach is required to be taken. Neither turning a blind eye to the controversies, which has arisen nor assuming a role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.

The election petition shall have to be decided on the touchstone of the aforesaid principle.

2. The petitioner was interested in contesting the election of the Legislative Assembly Constituency No. 109, Aurangabad (East). The petitioner on 25-9-2009, filed his nomination for the Legislative Assembly Constituency No. 109, Aurangabad (East). On 26-9-2009 i.e. on the date of scrutiny, the nomination paper of the petitioner came to be rejected by the Returning Officer on the ground that information as is required under Form 3-C is not filled in, so also the information on the affidavit is not filled in. The election for the said Constituency amongst the validly nominated candidates took place and the Respondent No. 4 was declared as elected from the said Legislative Assembly Constituency 109, Aurangabad (East), Aurangabad. The petitioner in the present petition assails the election of the Respondent No. 4 as a returned candidate on the ground that the order dated 26-9-2009, rejecting the nomination paper of the petitioner is bad in law and illegal.

3. Initially the Respondent Nos. 1, 2 and 3 had moved an application for deleting their names on the ground that they are not necessary parties. After hearing the respective parties, this Court vide order dated 14-12-2010, deleted the Respondent Nos. 1, 2 and 3 from the array of the Respondents.

4. The Respondent No. 4 thereafter filed an application Exh.13 raising preliminary objection and seeking rejection of the Election Petition u/O. VII, Rule 11 of the C.P.C. on ac-count of absence of cause of action and non-disclosure of material particulars. The petitioner filed his say to the said application. Following point/issue arises for consideration:

"Whether in the facts and circumstances of the case, cause of action exists for the petitioner to file the present petition, if no, whether the petition can be dismissed/rejected at the threshold?"

The said application Exh.13 was heard at length and the learned counsel for the petitioner and the Respondent No. 4 advanced their arguments on merits of the matter. They also submitted written summary of arguments.

5. Mr. P. M. Shah, learned Senior Counsel appearing for the Respondent No. 4 during the course of his erudite arguments accompanied with plethora of case laws canvassed following propositions:

(a) Section 80 of the Representation of the People Act, 1951 (hereinafter referred to as R. P. Act of 1951), by virtue of which the Election Petition is filed is couched in negative words meaning thereby that it is clearly prohibitory and is used as a legislative device to make the statute imperative. The learned counsel relies on the judgment of the Apex Court in a case of "M. Pentiah and others v. Muddala Veeramallappa and others" AIR 1961 SC 1107 and the judgment of the Apex Court in a case of "Vijay Narayan Thatte and others v. State of Maharashtra and others" (2009) 9 SCC 92: 2009 (5) AIR Bom R 776.

The learned Senior Counsel as such contends that the Election Petition has to be presented in accordance with the provisions of this part i.e. Part VI of which Section 80 is a part. Part VI envelopes in its fold the provisions of Section 79 ending with Section 122. Thus, compliance mandated by Section 80 includes the compliance with the provisions of Section 83 relating to the pleadings of the Election Petition, so also provisions of Section 87, by virtue of which provisions of Civil Procedure Code are made applicable to the election trial and so the cause of action has to exist for filing an Election Petition and in absence of the same, the election petition can be dismissed as per Order VII, Rule 11 of the C.P.C.

5(b)The nomination paper of the petitioner is rejected u/S. 36(2)(b) of the R. P. Act, 1951 on the ground that there has been a failure to comply with provisions of Section 33 of the said Act. Section 33(1) mandates that a candidate shall deliver to the Returning Officer a nomination paper completed in the prescribed Form. Form 3-C corresponding to Form No. 3-A in English includes a prescribed pro forma for making disclosure of the particulars contemplated by Section 8 of the R. P. Act of 1951 about conviction, if any, under sub-section (1) or for contravention of any law specified in sub-section (8) or has been convicted for any other offences for which he has been sentenced to imprisonment for two years or more. The petitioner had endorsed in a vernacular language which in English means "a separate list is annexed". So also in respect of Form No. 26 i.e. in terms of Section 33-A which deals with disclosure as to whether the petitioner is accused of any offence with imprisonment for two (2) years and whether he has been convicted for an offence other than the offence referred to in sub-section (1) or sub-section (2) or covered by sub-section (3) of Section 8 and sentenced to imprisonment for one year or more. The petitioner had made a statement that separate list is annexed and no such list was annexed. The Returning Officer was justified in rejecting the said nomination paper. The list which was annexed was in respect of offences which is required to be disclosed on affidavit as per orders of the Election Commission dated 27.3.2003, making disclosure about the cases which are pending against the candidate in which cognizance has been taken by the Court. Thus, the petitioner had made a categorical statement in the two forms dealing with offences enumerated u/S. 8 and the offences detailed u/S. 33-A "that the separate list is annexed in respect of cases under the said provisions". The petitioner had represented that he was convicted for offences u/S. 8 and that cases u/S. 33-A were pending against him by positively stating that a separate list is annexed but no such list was annexed. In such circumstances, the Returning Officer was right in rejecting the nomination paper on the said count.

5(c)The provisions of Sections 33 and 36 are mandatory. If the defect is of substantial character, the Returning Officer enjoins the powers to reject the nomination paper.

5(d)As per Section 33 of the said R. P. Act, the nomination paper has to be presented "completed in the prescribed form" as the petitioner did not annex the list of offences in Form No. 3-C and the information on affidavit as required in Form No. 26, the Form was "not completed" as per Section 33 and the rejection invoking the powers u/S. 36(2)(b) was proper.

5(e)Failure to comply with provisions of Section 33 is a defect of a substantial character. For the said purpose the learned Senior Counsel relied on the judgment of the Apex Court in a case of "Rattan Anmol Singh and another v. Ch. Atma Ram and others" AIR 1954 SC 510, Brijendralal Gupta and another v. Jwalaprasad and others" AIR 1960 SC 1049, "Ram Dayal v. Brijraj Singh and others" 1969 (2) SCC 218, "Prahladdas Khandelwal v. Narendra Kumar Salave" (1973) 3 SCC 104: (AIR 1973 SC 718) and the Division Bench judgment of this Court in a case of "Suleman Fakruddin Ansari v. S. B. Kulkarni, I.A.S. Municipal Commissioner, Poona and another" AIR 1963 Bombay 183.

5(f)The petitioner in the petition also had contended that the entire information as required in Form 3-C at the time of scrutiny was brought to the notice of the Returning Officer. The petitioner further contends in the petition, more particularly, in para 7 that the Returning Officer did not give time and opportunity to cure defects. These defects were not substantial but it were curable, if there were any defects. As such nothing was stated about the statement made of separate list being annexed and absence of such separate list. In view of that the rejection of nomination paper by the Returning Officer on the ground that the information as detailed in Form 3-C is not given, is not assailed and the petitioner has no cause of action and the petition can be dismissed for non-disclosure of cause of action. For the said purpose, the learned Senior Counsel relies on the judgment of the Apex Court in a case of "Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, 1987 (Supp) SCC 93: (AIR 1987 SC 1577), "Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar" reported in (2009) 9 SCC 310: (2010 (2) AIR Bom R 295) and "Ram Sukh v. Dinesh Aggarwal" (2009) 10 SCC 541: (AIR 2010 SC 1227).

5(g)As the petitioner does not have cause of action, the petition deserves to be dismissed at its threshold. A litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise the mind of the Respondents. The learned Senior Counsel relies on the judgment of the Apex Court in a case of "Azhar Hussain v. Rajiv Gandhi" 1986 (Supp) SCC 315: (AIR 1986 SC 1253).

6. Mr.M.D.Joshi, learned counsel for the petitioner...

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