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Civil Appeal No. 6128 of 2008. Case: Ram Sukh Vs Dinesh Aggarwal. Supreme Court (India)

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Case NumberCivil Appeal No. 6128 of 2008
CounselFor Appellant: Chandra Shekhar, Sanjay Tyagi, Saurabh Upadhyay and S.K. Verma, Advs
JudgesD.K. Jain and H.L. Dattu, JJ.
IssueRepresentation of the People Act, 1951 - Sections 80, 80A(2), 81, 82, 83, 83(1), 86, 87, 98, 100, 100(1), 101, 116A and 117; Civil Procedure Code (CPC), 1908 - Order 6, Rules 16 and 17 - Order 7, Rule 11; Evidence Act, 1872
CitationJT 2009 (12) SC 352 , 2009 (12) SCALE 638 , (2009) 10 SCC 541 , 2009 (9) UJ 4461 (SC) , AIR 2010 SC 1227
Judgement DateSeptember 18, 2009
CourtSupreme Court (India)

Judgment:

D.K. Jain, J.

1. This appeal under Section 116A of the Representation of the People Act, 1951 (for short the Act') is directed against the judgment and order dated 15th January, 2008, rendered by the High Court of Uttaranchal at Nainital in Writ Petition No.03 of 2007 (M/S). By the impugned order, the High Court, upholding the preliminary objection raised by the first respondent, has dismissed the election petition mainly on the ground that it did not comply with the mandatory requirement of furnishing material facts so as to disclose cause of action and was not supported by an affidavit in the prescribed form.

2. Election to the State Legislative Assembly of Uttaranchal (now Uttarakhand) was held on 21st February, 2007. The results were declared on 27th February, 2007. The first respondent, who had contested the election as an Indian National Congress candidate, was declared elected. The appellant (hereinafter referred to as the election petitioner') having lost the election, as a candidate of the Nationalist Congress Party, challenged the election of the first respondent by filing an election petition under Section 80 read with Section 100(1)(b) and (d) of the Act. The election of the returned candidate was challenged mainly on the grounds:

(i) that the election petitioner having submitted 2 sets of the requisite Form-8 (Praroop-8) in respect of his election agent Manbir Singh Dagur before the Returning Officer, who having obtained the signatures of the election petitioner as also of the polling/election agent in proforma (Anulagnak-22), deliberately did not send the signed Anulagnak-22 of the election petitioner to different polling stations, with the result that his polling agent was not permitted by the polling officer to act as such on the date of polls;

(ii) that the Returning Officer deliberately delayed the distribution of Anulagnak-22 at various polling stations and on account of inaction on his part, election petitioner's supporters got confused and either did not vote or voted in favour of the first respondent, an Indian National Congress candidate;

(iii) that the first respondent put pressure on the election petitioner to withdraw from the contest and on his refusal to do so, a rumour was spread by the first respondent that the election petitioner had withdrawn from the election fray and thus the first respondent used corrupt practice;

(iv) that the first respondent got a fabricated 'Fatva' from Devband circulated among the Muslim voters asking them to cast votes in his favour and thus the Muslim voters were unduly influenced by the issuance of the aforesaid religious Fatva - a corrupt practice;

(v) that the Polling Officers at various polling stations did not seal Electronic Voting Machines in presence of the election agent of the election petitioner and other candidates and further before the commencement of counting the Returning Officer did not get the seal of strong room certified from any of the polling agents; and

(vi) that the Electronic Voting Machines of various polling stations were either changed or were used after the polling time was over, showing misuse of the official machinery in support of the first respondent and, thus, putting a question mark on the fairness of the election.

3. The first respondent on being served with notice, instead of filing a written statement, filed an application under Order VI Rules 16 and 17 and Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short the Code') read with Section 86 of the Act raising a preliminary objection to the maintainability of the petition, inter-alia, on the ground that the petition was lacking in material facts and particulars and was also defective for want of requisite affidavit in support of allegations of corrupt practice and that since it did not disclose any cause of action, it deserved to be dismissed at the threshold. It was pleaded that on account of failure on the part of the election petitioner to file an affidavit in support of his allegations, the entire election petition was liable to be dismissed and allegations of corrupt practices made in paragraphs 14, 17, 19, 20 and 21 as well as grounds D and E of the election petition were liable to be struck off.

4. On consideration of the rival stands, the High Court came to the conclusion that the allegations of corrupt practices are entirely superfluous in nature; the concise statement of material facts is completely lacking and mandatory requirement of an affidavit in support of the allegations of corrupt practices was also not complied with. Relying on the decision of this Court in Ravinder Singh vs. Janmeja Singh and Ors., 2000 (8) SCC 191, the High Court came to the conclusion that non-filing of affidavit in support of the allegation of corrupt practices, is an incurable and fatal defect and, therefore, the election petition was liable to be rejected on that ground as well. Aggrieved, the election petitioner is before us in this appeal.

5. In spite of service, the first respondent - the elected candidate has not entered appearance. Therefore, we heard learned counsel appearing on behalf of the election petitioner.

6. It was submitted by learned counsel for the election petitioner that the High Court has committed an error of law as well as of procedure in entertaining first respondent's application and dismissing the election petition at the threshold. It was contended that the question whether "material facts", as contemplated in Section 83 of the Act, had been stated or not, cannot be decided without providing an opportunity to the election petitioner to prove his case upon trial. Learned counsel argued that if an election petition is rejected at the threshold on account of non-compliance with Section 83 of the Act, it would amount to reading into Section 86 an additional ground for dismissal of the election petition which cannot be permitted in law. Relying on the Handbook for Returning Officers issued by the Election Commission of India for the guidance of the...

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