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IN THE HIGH COURT OF JUDICATURE AT PATNA
Election petition No.3 of 2015
Avinash Kumar Vidhyarthi @ Mukesh Yadav & Ors.
……..Petitioner
Versus
Sanjay Prasad
…..Respondent.
Appearance :
For the petitioner
: Sri Prakash Srivastava, Advocate
Sri Rakesh Kumar Verma, Advocate
For the respondent
: Mr. P.K. Verma, Sr. Advocate
Mr. Suman Kumar Jha, Advocate with him.
Dated : 18th July, 2017
PRESENT
CORUM : HON’BLE MR. JUSTICE MUNGESHWAR SAHOO
CAV ORDER
1. I have already heard the learned counsel, Mr. Sri Prakash Srivastava on behalf of the
petitioner and the learned senior counsel, Mr. P.K. Verma on behalf of the respondent on I.A.
No.2922 of 2017 which has been filed by the petitioner and I.A. No. 6672 of 2016 which has been
filed by the sole respondent.
2. I.A. No. 6672 of 2016 has been filed by the sole respondent under section 86 of the
Representation of People Act, 1951 (hereinafter referred as to the ‘R.P.Act’) read with Order VII
Rule II of the Code of Civil Procedure praying for dismissal of the election petition on the ground
that the provision of Section 82(a) of the Representation of people Act, 1951 has not been complied
with and likewise the provision of Section 81(3) of the R.P. Act has also not been complied with and
accordingly, it was prayed for summary dismissal of the election petition.
3. It further appears that the respondent further alleged that according to the provisions as
contained in Section 83 of the R.P. Act, the election petition does not contain a concise statement of
material facts on which the petitioner relied so as to make out and sustain any cause under Section
100 of the R.P. Act.
4. The interlocutory application No. 2922 of 2017 has been filed the petitioner under Section
86(5) of the R.P. Act praying for amplifying the prayer in the election petition and only to confine
his prayed to declare the election result of sole respondent as void.
5. From perusal of the election petition, it is clear that the petitioner filed the election
petition praying the relied to set aside the election of the respondent and member of 18-Munger-
cum-Jamui-cum-Lakhisarai-cum-Sheikhpura local authority constituency for which the election was
held on 07.07.2015 and the election result was declared on 10.07.2015 and further prayer was made
for recounting of valid votes of the said constituency and to declare the petitioner as returned
candidate of the said constituency.
6. On being noticed written statement was filed by the respondent, Sanjay Prasad on
5.5.2016 and thereafter, in August, 2016 the I.A. No. 6672 of 2016 was filed for summary dismissal
of the election petition on the ground stated above. After filing this application by the respondent,
the petitioner had filed I.A. No. 2922 of 2017 in April, 2017 praying for amendment.
7. Earlier it was directed that after the application filed by the petitioner is disposed of, the
application filed by the respondent for summary dismissal shall be heared. However, during hearing
of the interlocutory application filed by the petitioner, it was found that both the interlocutory
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applications ate inter-related, therefore, I heard both the learned counsel on both the interlocutory
applications and both are disposed of by this common order.
8.The learned senior counsel, Mr. P.K. Verma, appearing on behalf of the respondent
submitted that the provision as contained Order Vi Rule of the Code of Civil Procedure cannot be
applied for amendment of the relief portion as CPC is applicable subject to the provision of the R.P.
Act and there is no provision in the R.P. Act that the principle which govern Order Vi Rule 17 in
general suits will apply mutate in mutandis in the election petition. So far the provision as contained
in section 86 sub Section 5 in concerned, it is not applicable in the present case, therefore, the
application filed by the petitioner being I.A. No. 2922 of 2017 is liable to be dismissed.
9. So far application filed by the respondent is concerned, according to the learned counsel,
the necessary parties as provided under Section 82 of the R.P. Act are not party in the election
petition, therefore, the election petition is liable to be dismissed under Section 86 of the R.P. Act.
According to the learned senior counsel, 11 candidate contested the contested the election for the
constituency including the petitioner and the respondent and as provided under Section 82, if the
prayer is made for declaration that the election petitioner as a returned candidates, all the candidates
are required to be made party in the petition but the candidates are not party.
10. The learned senior counsel further submitted that at the time of presentation of the
election petition as many copies thereof as there are respondent are required to be filed and such
copy shall be attested by the petitioner under his own signature to be a true copy of the petition
reveals the date, manner and details of officer before whom the so called verification and affidavit
has been shown nor it disclosed the name of the identifier, therefore, also the provision as contained
in section 81(3) I.P. Act. Has not been complied with.
11.Accoriding to the learned senior counsel, the election petition is absolutely vague and
not supported by material fact and, therefore, in fact the prayer for recounting is intended to indulge
into a roving and fishing inquiry so as to make out a cause of action and that cannot be permitted
under law, therefore, also the provision of section 83 of the R.P. Act is not complied with as such the
election petition is liable to be dismissed in limine.
12. On the other hand, the learned counsel, Mr. Sri Prakash Srivastava, appearing for the
petitioner submitted that earlier all the candidates were arrayed as party but subsequently, by
mistake, prayer was made for deleting as party but subsequently, by mistake, prayer was made for
deleting their names and their name have been deleted. It was mistake of the learned counsel for the
petitioner. However, now, an application have been filed by the petitioner who is seeking to amend
the prayer and to confine his prayer for declaration of the election as void only and the petitioner is
not intending to get himself declared as returned candidate. There is provision for amendment in the
R.P. Act and, therefore, this application filed by the petitioner be allowed, if it is allowed then the
candidates who contested will not necessary party.
13. So far the attestation and true copy is concerned the learned counsel submitted that this
defect is curable defect and the petitioner may be permitted to cure the same but on that ground, the
election petition cannot be dismissed. The learned counsel relied on a decision of the Jharkhand
High Court reported in 2001 Jharkhand page 25. According to the learned counsel, it is defect in
verification. So far the concise statement of material facts are concerned, the learned counsel
submitted that the petitioner has fully given the concise statement of material fact constituting cause
of action and to show this concise, statement, the learned counsel in fact at the time of hearing of
interlocutory application placed the contents of various paragraphs of election petition. On these
grounds, the learned counsel submitted that the application filed by the respondent for dismissal of
the election petition be rejected and the petition filed by the petitioner be allowed.
14. Admittedly, at present there is only one respondent in this election petition. Admittedly,
the petitioner has prayed for his declaration as returned candidates of 18 Munger-cum-Jamui-cum-
Lakhisarai-cum-Sheikhpura local authority constituencies. Admittedly, 11 candidates contested the
election.
15. Section 82 of the R.P. Act reads as follows :-
“85 ……..parties of the petition – a petitioner shall joint as respondent to his petition-
(a) where the petitioner, in respondents to his petition (a) where the petitioner, in
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respondents to his petition–(a) where the petitioner of all or any of the returned
candidates is void, claims a further declaration that he himself or any other
candidates 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 (b0 Any other candidates against whom allegation of any corrupt
practices are made in the petition.
16. In view of this provision as contained in Section 82(a) of the R.P. Act, the election
petitioner is required to add all the contesting candidates as party when he claims a declaration that
he is duly elected candidates. This provision is not complied that he is duly elected candidates. This
provision is not complied with in this election petition.
17. Now, the application has been filed by the petitioner to amend the relief portion, i.e., to
delete the claim of declaration that the petitioners duly elected. The learned counsel submitted that
the application i.e., allowed as the provision is there for amendment.
18. Section 86 sub Section 5 of the R.P. Act reads as follows :-
“The high Court may upon such terms as to costs and otherwise as it may deem
fit, allow the particulars of any corrupt practice 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 trail of the petition, but shall not allow any
amendment of the petition which will have the effect of introducing particulars
of a corrupt practice not previously alleged in the petition.”
19. Section 87 sub section 1 of the R.P. Act reads as follows :-
87. “Procedure before the High Court :- (1) Subject to the provisions of this Act
and of any rules there under, every election petition shall be tried by the High
court, as nearly as may be, in accordance with the procedure applicable under
the Code of Civil Procedure, 1908 (5 of 1908) to the trail of suits :
Provided that the High Court have the discretion to refuse, for reasons
to be recorded in writing, to examine any witness or witnesses is not material
for the decision of petition or that the party tendering such witness is going so
on frivolous grounds or with a view to delay the proceedings.
20. In view of above provisions of law, CPC is applicable subject to the provisions of R.P.
Act and any rules made thereunder. All the provisions of CPC are not applicable. The representation
of people Act itself is contained Code.
21. The Hon’ble Supreme Court in AIR 1969 S.C. page 677 Mohan Raj Vs. Surendra
Kumar Taparia has held that ‘Section 86 is a peremptory provision and admits of no exception.
The Court is to enforce it strictly if there is a non-compliance with the requirement of section 82
among others. No doubt the power of amendment is preserved to the Court and Order 1 Rule 10
enables the Court to Strike out parties but the Court and Order 1 Rule 10 enables the Court to strike
out parties but the Court use Order Vi Rule 17 or Order I Rule 10 to avoid the consequence of non-
joinder. The Court can order an amendment and even strike out a party who is not necessary. Nut
when the Act makes a person a necessary party and provides that the petition shall be dismissed if
such a party is not joined, the power of amendment ot it 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. When the Act enjoins the penalty of dismissal of the petition for non-
joinder of party, the provisions of the Civil Procedure Code cannot be used as curative means to save
the election petition.” Same view has been taken again by the Supreme in AIR 1969 SC 872K.
Venkateshwar Rao Vs. Bekkari Narshimha Reddy.
22. It appears that the respondent had filed the interlocutory application No. 5672 of 2016
for dismissal of the election petition on the ground that all the candidates are not joint as party.
Now, to overrich this consequence of dismissal of election petition, I.A. No. 2922 of 2017 has been
filed by the petitioner and prayer has been made to amend the prayer portion. A has been held by the
Hon’ble Supreme Court referred to above, the provision of Code of Civil Procedure (in the present
case Order IV Rule 17) cannot be used as a curative means to save the election petition. No doubt in
the application, the provision of Section 86 Sub Section 5 of the R.P. Act is mentioned but this
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provision is not applicable in the present case as it relates to amendment elaborating the corrupt
practices and the present case is not filed alleging corrupt practices.
23. In view of above discussion, the application filed by the petitioner, i.e., 2922 of 2017 of
devoid of any merit and accordingly is liable to be dismissed and thus it is dismissed.
24. Now, the position is that there is violation of Section 82(a) of the R.P. Act.
25. The other ground raised by the respondent is that every copy of the election petition filed
by the petitioner is not attested by the petitioner under his own signature to be a true copy of the
petitioner which is violation of section 81 sub Section (3) of the R.P. Act. According to the
respondent, in fact in the copy of the election petition that manner and details of officer before whom
the so called verification and affidavit has been sworn are disclosed whereas in the main election
petition, everything is there, therefore, in fact the copy is not true copy of the election petition.
26. In reply to this, the learned counsel for the petitioner relied upon a decision of Jharkhand
High Court reported in AIR 2001 Jharkhand 25 and submitted that the attestation and verification is
a defect which is curable. The learned counsel further relied upon paragraph 10 of the said decision
where in it has been held that election petition is not to be dismissed in limine under section 86 of
the Act for alleged non-compliance with provision of Section 83(1) of the Act or of its proviso. What
other consequences, if any, may follow from an allegedly defective affidavit is to be judged at the
trail of an election petition but Section 86(1) of the Act interns cannot be attracted to such a case.
Detect in verification of an affidavit is curable and does not merit dismissal of an election petition in
limine under Section 86(10of the Act.
27. It may be mentioned here that this decision is not applicable in the present case because
in that case, the ellegation was non-compliance of provision of Section 83(10 of the R.P. Act
whereas in the present case, the non-compliance is of Section 81 Sub Section 3 of the R.P. Act. From
perusal of the copies submitted by the petitioner at the time of filing the election petition, it appears
that there is not attestation made by the petitioner as required under section 81 sub section 3 CPC.
Likewise, it also appears that the copy filed is not a true copy of the original election petition. The
verification was done before which Officer and who identified the deponent is available in the
election petition in each identified the deponent is available in the election petition in each affidavit
filed along with the election petition in support of the election petition and annexure thereof whereas
in the copy of the election petition, those are missing. Therefore, there is clear violation of Section
83 of the R.P. Act and on this ground also, the election petition is liable to be dismissed in limine
under Section 86(1) of R.P. Act.
28. The other ground raised by the respondent is that there is no material fact constituting
cause of action and no mere allegation of violation of guideline, no recounting will be made.
According to the learned senior counsel, there is general allegation that the guidelines were violated
and valid votes of the petitioner were rejected. On the contrary, according to the petitioner, there are
concise statement and facts for recounting. The learned counsel placed each and every paragraph of
the election petition to substantiate his allegation.
29. From perusal of the election petition at paragraph 1(i), it appears that the allegation is the
counting of votes was not properly conducted by the Returning Officer resulting of votes was not
properly conducted by the Returning Officer resulting thereof 425 valid votes of the petitioner was
rejected, therefore, fresh counting may be done under the supervision of High Court and likewise in
paragraph 1(ii), it is alleged that the Returning Officer has not counted the votes of the petition
which was marked otherwise by the voters but on the other hand, the Returning Officer counted the
votes of the respondent which were marked otherwise by the voters. These type of general allegation
are made in paragraph 1 (iv) (v) (vi) and (vii) Except these general allegation, there are no specific
materials. Annexure ‘5’ is application filed by the petitioner for recounting. In the said application,
no such allegations were made. Only allegation is in manner by which 727 votes were rejected, the
entire votes be recounted and the illegal votes be rejected Annexure ‘6’ was filed by the petitioner
after result was announced where in the alleged that in violation of guideline of the election
commission, the Election Officer supported the respondent by adopting double standard and rejected
his prayer for recounting. These are the general allegation as stated above. There is no specific
allegation nor there is any supportive fact thereof. So far recounting of valid paper is concerned, the
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settled law is that the secrecy of ballot paper should not be allowed to be violated by flimsy
allegation. The court must be satisfied regarding the truth of allegation for recounting to the present
case, as discussed above, the petitioner was present there but then he is not disclosing the facts on
what ground which ballot paper was rejected by the election officer as ballot paper are counted in the
central table in presence of the candidates and the reasons for rejection are shown to the candidates.
There is no case that the reason of which any of the ballot paper was rejected is not tenable of that on
that ground, the ballot paper could not have been rejected. Only it is stated that in violation of the
guideline, ballot paper were counted and valid votes of petitioner were rejected. Therefore, on the
mere allegation, the petitioner is not entitled for recounting. The Court has to maintain the secrecy of
ballot paper and therefore, unless the election petitioner is able not only to plead and disclose the
materials facts but also to substantiate the same by means of material fact, no Court would be
justified in directing recounting.
30. Rule 59 A (i) of the Election Rule empowers the returning officer to reject the ballot
papers on the ground mentioned therein. In the election petition nowhere the petitioner specified as
to on what ground the Returning Officer rejected the ballot papers. At sub Rule 3, it is provided that
before rejecting the ballot papers, the Returning Officer shall allow each counting agent present a
reasonable opportunity to inspect the ballot paper. In the present case, the petitioner himself was
present there. If he had inspected then he is expected to disclose the ground on which the ballot
papers which he claims to be valid were rejected.
31. In view of the above facts, now it becomes clear that mere allegations have been made in
the election petition which are either filmsy or ambiguous and so in the present case, there is no
adequate statement of material fact and the statement made are not sufficient enough to constitute
cause of action for recount of ballot paper. In my opinion, therefore on these types of filmsy,
ambiguous mere allegation, the Court must not enable the petitioner to indulge in a roving enquiry
for setting aside the election result.
32. The Hon’ble Supreme Court in AIR 1987 SC 1577 Dharpakar Madan Lal Aggarwal Vs.
Sri Rajiv Gandhi has held that those paras of an election petition on which do not disclose any cause
of action are liable to be struck under Order VI Rule 16 CPC. It is the duty of the Court to examine
the plaint it need not wait till the defendants filed written statement and point out the defect.
33. In AIR 1987 SC 1926, Summer Singh Vs. Kedar Nath , the Hon’ble Supreme Court has
held that ‘if an election petition does not disclose cause of action it can be dismissed summarily at
the threshold of the proceeding same view has been taken by the Hon’ble Supreme Court reported in
AIR 1986 SC 1534 Bhagwati Prasad Dixit Gorewala Vs. Rajeev Gandhi.
34. From the above discussion, I find that mere allegations cannot be said to constitute
cause of action and in the present all the allegation are without supporting facts. On this ground also,
the election petition is liable to be dismissed.
35. In the result, the interlocutory application No. 2922 of 2017 filed by the petitioner is
hereby rejected. The Interlocutory application the respondent being I.A. No. 6672 of 2016 is
allowed. Accordingly, this Election Petition is dismissed under Section of 86 of the Representation
of People Act, 1951
(Muneshwar Sahoo, J.)
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