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R.P. Nautiyal and anr. Vs. Chandra Mohan and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberElection Petn. No. 2 of 1982
Judge
Reported inAIR1985All118
ActsRepresentation of the People Act, 1951 - Sections 81(1), 81(3), 82, 83, 83(1) and 86; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 15
AppellantR.P. Nautiyal and anr.
RespondentChandra Mohan and ors.
Appellant AdvocateD.S. Sinha, Adv.
Respondent AdvocateR.C. Srivastav and ;Vijai Bahuguna, Advs.
DispositionApplication dismissed
Excerpt:
election - election petition - section 81 (1)( c), 81(3), 82 and 86 of representation of the people act, 1951 and order 6 rule 15 of the code of civil procedure, 1908 - concurrent right to file an election petition challenging the election of a candidate - no bar imposed on the joining of an elector with a candidate in filing an election petition - verification by one of the parties or even by some other person - proved to the satisfaction of the court to be acquainted with the facts of the case - a valid verification attestation by one will as much binding and valid as by all of them. - - 2. it is pointed out that under the provisions of section 81 of the representation of the people act, 1951 either the elector or the candidate but not both can present an election petition.....orderm.p. mathur, j.1. during the course of the proceedings of this. election petition, first an application a-8 dated october 5, 1982, was moved seeking deletion of the names of two of the respondents, namely the returning officer, pauri and the chief election commissioner of india. the point raised through this application was taken as a preliminary point for adjudication and by order dated 9-11-82 this court allowed the application and directed the deletion of the names of these two respondents. the order was carried out. now another application a-18 has been moved. it is dated 1-12-1983, and it is the disposal of this application, that is now being made through this order.2. it is pointed out that under the provisions of section 81 of the representation of the people act, 1951 either.....
Judgment:
ORDER

M.P. Mathur, J.

1. During the course of the proceedings of this. Election Petition, first an application A-8 dated October 5, 1982, was moved seeking deletion of the names of two of the respondents, namely the Returning Officer, Pauri and the Chief Election Commissioner of India. The point raised through this application was taken as a preliminary point for adjudication and by order dated 9-11-82 this Court allowed the application and directed the deletion of the names of these two respondents. The order was carried out. Now another application A-18 has been moved. It is dated 1-12-1983, and it is the disposal of this application, that is now being made through this order.

2. It is pointed out that under the provisions of Section 81 of the Representation of the People Act, 1951 either the elector or the candidate but not both can present an election petition and the present election petition having been filed by an elector as well as a candidate cannot be held to be maintainable and is liable to be dismissed. In the alternative, even if it can be filed, then also separate security and separate court fee should have been filed and it should have been presented both by the petitioners and it not having been done, the petition is defective and should be dismissed. It is also further stated that since the election petition has not been signed by both the petitioners, and it has not been verified in the manner provided, nor has it been presented in accordance with Section 81, and its copy has also not been verified and attested, hence also it is liable to be dismissed for non-compliance of Section 81(3) of the Representation of the People Act and also under Section 83 of the Act.

3. In addition to these objections against the maintainability of the election petition, it was orally averred that, in the election petition as it originally stood prior to the deletion of the names of the two respondents as mentioned above, unnecessary persons had been added as respondents and hence it amounts to non-compliance of the provisions of Section 83 and for that reason also the election petition is liable to be dismissed.

4. In this manner the points which now arise for determination are as follows : --

(1) can an elector and a candidate join in an election petition? If not, what will be the effect on the maintainability of the petition?

(2) Whether the election petition, since it is allegedly not signed by both the petitioners but only by one of them and has also not been presented by both, is not maintainable and should be dismissed?

(3) Whether copies served on the respondents have not been properly attested as required by law? If so, what shall be the effect thereof?

(4) What shall be the effect on the maintainability of the election petition in view of the fact that two of the respondents were not necessary parties but were arrayed as such?

Point No. 1 :

5. A perusal of the election petition in question will show that it challenges the election that took place in the Garhwal Parliamentary Constituency. Out of the two petitioners, Sri R. P. Nautiyal, petitioner No. 1, was a candidate in that election and Sri Satya Narain Singh, petitioner No. 2 was an elector. Section 81 of the Representation of the People Act, 1951, lays down that 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 45 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 the dates of their elections are different, the later of those two dates.

6. Elector has been defined as a person who was entitled to vote at the election to which the election petition relates whether he had voted at such an election or not. Its definition can be found in Section 2(1)(e) of the Representation of the People Act. Similarly the word 'candidate' has been defined in Section 79(b) of the Act and any person having that description will have a right to file an election petition. It may be noted here that while it is necessary for an elector to belong to the same constituency the election of which he is challenging, it is not necessary that the candidate should also be elector in the same constituency. In his case the only necessity is that he should be a candidate at the election which he proposes to challenge.

7. Although in Section 81 of the Act, both 'candidate' and 'elector' have been used in singular but it is conceded by the learned counsel for the objector-respondent that the term will include plural also and, therefore, there may be many persons as election petitioners in a single election petition. His contention, however, is that there are two categories of election petitioners. One of them is the category of the candidates and the other is the category of the electors and while a petition can be conceived of as having been filed by more than one candidate or by more than one elector, it is inconceivable that an elector and a candidate do join as election petitioners. In this respect, however, in the case of Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983, it has been held that no one may be joined as party to an election petition otherwise than as provided under Sections 82 and 86(4) of the Act. It follows that a person who is not covered by Section 82 or Section 86(4) cannot be joined as a party to the election petition.

8. A similar controversy in the case of Kashi Nath Pandey v. Shibban Lal Saxena, AIR 1959 AH 54, came up before this Court. The facts of that case were that Kashi Nath Pandey and respondent No. 1 Shibban Lal Saxena as well as respondents 2 to 4 were all candidates to an election. Kashi Nath Pandey was declared elected and an elector, Kapil Deo, filed an election petition for declaring the election of Kashi Nath Pandey void on the grounds mentioned in that election petition. After about 5 months Kapil Deo presented an application for withdrawal of the election petition under Section 109 of the Representation/ of the People Act. Upon this Shibban Lal Saxena, respondent No. 1, filed an objection. His objection was dismissed and Kapil Deo's application for withdrawal from the election petition was allowed. Notice of withdrawal was published in the official Gazette. Then Shibban Lal Saxena, respondent No, 1, applied for being substituted as petitioner in the election petition in place of Kapil Deo. To this, Kashi Nath Pandey objected His objection was rejected by the Tribunal and the substitution application was allowed. Then the matter came up before the Lucknow Bench of this Court.

9. The matter squarely was whether Shibban Lal Saxena, who was a candidate and not an elector could be substituted in place of Kapil Deo, who was an elector and not a candidate. The Court was of the view that it was conceded that under Section 81 of the Act two candidates could file an election petition against a successful candidate and similarly two electors also could file an election petition against a successful candidate. What was not conceded was that a candidate, who was also an elector could file a petition jointly with an elector. It was observed that there was no reason at all in support of such a contention and that the right to file a petition jointly depends on four circumstances namely (i) that the persons filing a joint petition or joining as plaintiffs in a suit, must come under a concurrent right which exists in each of them simultaneously; (ii) that both must be entitled to come before the same forum; (iii) that the cause of action should be identical and (iv) that there should be identity of relief.

10. If this test is applied to the present case, undoubtedly so far as Sri R. P. Nautiyal and Sri Satya Narain Singh are concerned, they come under a concurrent right which exists in each of them simultaneoulsy to file an election petition challenging the election of Sri Hemvati Nandan Bahuguna from the Garhwal Parliamentary Constituency. They are both entitled to come before the same forum, namely the High Court. The cause of action giving rise to file the election petition in respect of each one of them is the same, and the relief that is claimed is also the same in case of both of them. In this manner, therefore, they are entitled to file a joint petition because all the four ingredients necessary to entitle them to do so are available in their case. A perusal of Section 81 and a very careful analysis of the provisions of this law would make it absolutely clear that there is no bar imposed on the joining of an elector with a candidate in filing an election petition.

11. The learned counsel for the respondent-objector has not been able to convince me that the interpretation of Section 81 could be that the petition should either be on behalf of the electors or on behalf of the candidates, but not on behalf of both jointly. This point, therefore, is answered in this way that it is held that a candidate as well as an elector are competent to join in an election petition provided the identity of relief, cause of action and entitlement to come before the High Court are the same, and they also come under a concurrent right, which exists in each of them simultaneously.

Point No. 2 :

12. It was contended that the election petition in this case has been signed only by one of the petitioners and not by both and it has not been presented by both and verified by both. In part this assertion is factually wrong. The election petition which is the basis of the present proceedings consists of 23 pages plus some more pages which are in the nature of annexures. On page 22 we find the signatures of both Satya Narain Singh and R.P. Nautiyal at the bottom, below the prayer clause. Therefore, it is clear that the petition has been signed by both the petitioners. The learned counsel for the respondent-objector, however, now argues that each page of the petition ought to have been signed by both the petitioners and not by one of them and, therefore, there is signing defect which goes to the very root of the matter, and should entail dismissal of the election petition. It is true that each separate page of the petition has been signed by only Sri R.P. Nautiyal and the signatures of Sri Satya Narain Singh do not appear on each page, but the law does riot require that each page should be signed at all. Signature on each page is made only by way of added precaution, in order to ensure that subsequent to the filing of the petition, a loose page is not removed and replaced by another, containing the allegations which go against the petitioner. The signing of the petition at the end by the petitioners is to be deemed to be signing of the petition and the responsibility of all the averments contained in all the pages of the petition, is thus owned by those who sign it at the end. There is no law to lay down that when a petition is moved, every page of it should be signed by all the petitioners. I am, therefore, unable to agree with the learned counsel that signing in this case is defective.

13. Then, so far as the representation of the petition it concerned, on the back of the first page of the petition there is a note under the signature of the Registrar of this Court to the effect that both Sri R. P. Nautiyal and Sri Satya Narain Singh appeared before him and both were identified by Sri Sirish Chandra, Advocate, and they presented the petition before him along with the deposit chalan. This is a completely valid presentation.

14. So far as the question of verification is conerned, a perusal of Section 83(1)(c) of the Representation of the People Act will have to be made before coming to the conclusion whether the verification in the present petition is or is not proper. This provision of law lays down that an election petition shall be signed by the petitioner, and verified in the manner laid down in the Civil Procedure Code, 1908 (5 of 1908), for the verification of the pleadings.

15. The law clearly shows that the signing has to be made by the petitioner. Naturally, both petitioners, if they are two, have to sign the petition and unless this is done, the petition will not be valid. I have already held that in this case the petition has been signed by both the petitioners and hence no invalidity can be attached to it on this score. Then the law further lays down that so far as verification is concerned, it is to be according to the law laid down in the Civil Procedure Code for verification of the pleadings. Order VI rule 15 of the Civil Procedure Code has thus been made directly applicable to the election petitions, so far as the matter of verification is concerned, and it lays down that every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. The law as contemplated by Section 83(1)(c) of the Representation of the People Act, therefore, gives a latitude to the election petitioner to verify the election petition in the manner provided by Order VI rule 15 of the Civil Procedure Code and, therefore, it is clear that verification by one of the parties, or even by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, will be a valid verification for the purpose of Section 83 of the Representation of the People Act. In the present case Sri R. P. Nautiyal, petitioner No. 1, has verified the petition paragraph-wise and obviously it is a valid verification and objection to the contrary has to be repelled.

Point No. 3

16. Then comes the allied question, which gives rise to point No. 3, that the copy served on Sri Hemvati Nandan Bahuguna, respondent No. 7, has not been attested by both the petitioners. Sub-section (3) of section 81 lays down that 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. In the present case along with an affidavit of Sri Shekhar Bahuguna son of Sri Hemvati Nandan Bahuguna, respondent No. 7, the present objector, a copy of the petition which was allegedly served on Sri Hemvati Nandan Bahuguna, has been placed on record. The first page of those papers is a notice from the High Court under the signature of the Deputy Registrar. Thereafter the copy of the election petition has been annexed. On each page there is the seal of the High Court and signatures of Sri R. P. Nautiyal and on page 22, as in the original petition, there are signatures below the prayer clause of both Satya Narain Singh and R. P. Nautiyal. On page 23 there is the verification by R. P, Nautiyal and below it, there is a seal to show that this is the attested copy of the election petition, and below it we again find signature of Sri R. P. Nautiyal. Against the affidavit by Sri Shekhar Bahuguna, an application had been moved praying to the court that Sri Shekhar Bahuguna should be summoned for cross-examination because it is not possible for the election petitioners to file a reply to the averments made in this affidavit, as they are matters within the personal and special knowledge of Shri Shekhar Bahuguna. On 6-11-84 on behalf of the objector it was submitted that the copy of the petition may be admitted and the affidavit may be ignored. The election petitioners thereafter did not press the application to summon Shri Shekhar Bahguna for cross-examination as the application became infructuous. They, however, argue that now there is no evidence that the copy filed is the one served on Sri H. N. Bahuguna. The law as laid down by Section 83(1) is that with every election petition as many copies have to be appended as there are respondents, mentioned in the election petition, and that each copy has to be attested by the petitioner tinder his own signatures to be a true copy of the original petition. Undoubtedly, along with the election petition in hand, copies had been filed and undoubtedly the copy which has been brought on the record is one of those copies because it bears the seal of the High Court and a covering letter of Sri L. S. Srivastava, Deputy Registrar, addressed to Sri Hemvati Nandan Bahuguna. Therefore, there is no doubt that it is a copy which was filed with the election petition, and it is the copy which was served on Sri H. N. Bahuguna. These facts could have been disputed by the election petitioners by filing a counter-affidavit. If they thought that it was not a copy which was filed along with the election petition and that it did not bear the signatures of R. P. Nautiyal and the signatures of both the petitioners on page 22, then they should have taken that plea through an affidavit and since this has not been done, the presumption would be that it is one of the copies which was filed by the petitioners along with their original petition. Before the Registrar of the High Court the petitioners filed the said copy along with the election petition to be served on one of the parties to the election petition and in view of the forwarding letter attached to this petition, bearing the signature of the Registrar, as well as the seal of the High Court, I am satisfied that it is the copy which has been served on Sri Hemvati Nandan Bahuguna, the respondent No. 7.

17. Now we have to see whether this copy was in accordance with the provisions of secution 81(3) of the Representation of the People Act, 1951. Before, however, I take up that matter in hand, the position of section 81 vis-a-vis the other provisions of the Act has to be considered, especially in so far as the question remains as to whether a non-compliance with Section 81 will result in dismissal of an election petition.

18. Every election petition challenging the election of a successful candidate, who is returned by the majority of the electorate must strictly conform to the requirements of law. An election contest is a purely statutory proceeding unknown to the common law and, therefore, there will be no place for consideration of matters in the light of equitable principles. It should also been borne in mind that the tendency of the Courts towards too much technicalities is not to be appreciated and the Courts must see that substance takes precedence over mere form. In the case of Kamraj Nadar v. Kunju Thevar AIR 1958 SC 687 and Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria AIR 1959 SC 827 it was observed by their Lordships of the Supreme Court that while the provisions of the law relating to election petitions should be strictly construed, the tendency to be hyper-technical, annihilating the real substance of the law, is also to be deprecated, if there is substantial compliance with the requirements of the law. It cannot be gainsaid that the literal construction of a Statute is one of the most elementary rules of construction and it is the duty of the Court to expound the law as it stands and not to modify, alter or qualify its language. If the words of the statute are in themselves precise, and unambiguous, then it will suffice merely to expound them in their natural ordinary sense. It is not the domain of the court to add words to the language of the Legislature. But in case there is any ambiguity, then what should be kept in view is that while interpreting the statute, the will of the Legislature should be made to prevail. The statute in such cases has to be expounded 'according to the intent of them that made it': In other words the correct interpretation of Statute will always be, in an attempt to bring out the intention, which is conveyed by the language used by the Legislature, expressly or impliedly.

19. This, therefore, brings us to the consideration of the question whether in a case where there are several petitioners, it will be necessary that the copies which are filed along with the petition in view of Section 81(3) of the Representation of the People Act, should be attested by all of them? The main purpose of attestion is to ensure that the copy which has been filed, and is to be served on the respondent, is a true copy of the original. There is no purpose other than this, behind this provision of the law. Therefore, if one of the several petitioners attests the copies, it will clearly be a substantial compliance of the provision of Sub-section (3) of Section 81 of the Act. We can look into this matter from another aspect also. What purpose will be served if a copy is attested by all the petitioners and not merely by one of them? and what difference will it make if it is attested by only one of them and not by all of them? In my opinion, it will not make any difference. Attestation by all will not advance the case any further. Attestation by one out of the many petitioners would be as much binding and valid as by all of them. The purpose of the law, as I have already mentioned above, being simply to ensure that a true copy is placed on record for service on the respondent is always well served if it is ensured that the copy is a true copy and for that purpose attestation is provided in Subsection (3) of section 81. Therefore, attestation by one will as much ensure that legal requirement, as attestation by all of them. A complete perusal of Section 81 and specially Subsection (3) thereof does not give any reasonable indication of the fact that the Legislature contemplated that the copies must be attested by all the petitioners howsoever large their number may be. The provisions of law are never intended to be mere rituals. They are supposed to serve a definite and distinct purpose and if that purpose is served by attestation of copies by one of the petitioners, nothing more is required. Thus I come to the conclusion that attestation by Sri R. P. Nautiyal alone, and not both by Sri R. P. Nautiyal and Sri Satya Narain Singh of the copy, is a proper attestation and a substantial compliance of the requirement of Section 81(3) of the Act.

20. In the case of Subba Rao v. Member Election Tribunal AIR 1964 SC 1027 the facts were that copies were signed by the petitioner, but there was no attestion in the sense that the words 'true copy' were omitted above the signatures of the petitioner. Their Lordships held that since signature in original was there in the copy, its presence was sufficient to indicate that the copy was attested as a true copy, even though the words 'true copy' were not written above the signature in the copies. It was further held that there was substantial compliance with Section 81(3) of the Act and the petition could not be dismissed under Section 86 of the Act.

21. In the case of Murarka Radhey v. Roop Singh AIR 1964 SC 1545, it was held that a defect in verification in the matter of an election petition is a matter which conies within clause (c) of Sub-section (1) of Section 83, and this defect can be removed in accordance with the principles of the Code of Civil Procedure, and since Section 86 does not refer to non-compliance with the provisions of Section 83 as a ground for dismissing the election petition, for this defect the elction petition itself cannot be dismissed.

22. In the case of Dr. Anup Singh v. Abdul Ghani AIR 1965 SC 815 the carbon copies of the original petition were filed and it was not disputed that they were true copies but the attestation required by Section 81(3) was not there specifically on the copies. Consequently it was contended that there was no compliance with Section 81(3) and hence the petition should be rejected. It was urged that in view of the penalty provided for non-compliance with Section 81(3), that section should be deemed mandatory and liable to be strictly comlied with. Their Lordships considered an earlier decision of the Supreme Court in the matter of Subba Rao v. Member Election Tribunal (AIR 1964 SC 1027) (supra) and came to the conclusion that it applied with full force to the facts of the case of Dr. Anup Singh and it must, therefore, be held that there was substantial compliance with Section 81(3) and the petition would not, therefore, be dismissed This point is, therefore, decided accordingly and it is held that there is substantial compliance as the copy served on respondent No. 7 has been attested by one of the petitioners as is required by Section 81(3) of the Representation of the People Act. Point No. 4 :

23. Lastly, we come to the question of impleadment of unnecessary parties to the election petition. Originally the Returning Officer of Pauri and the Chief Election Commissioner of India had been arrayed as respondents Nos. 1 and 2, respectively, to this petition. I have already mentioned above, that objection against their impieadment was raised by one of the respondents, objector, through application 8-A and this Court after considering all the points involved came to the conclusion that they were not necessary parties and, therefore, directed deletion of their names from the array of respondents vide order dated 9-11-82. That order was complied with and the names of respondents Nos. 1 and 2 have been scored out of the petition and they are no more respondents before me now. Nevertheless, now the plea is, that at least that impieadment of these persons in the election petition would be against the provisions of Section 82 of the Representation of the People Act, and will involve the penalty of dismissal of the petition under Section 86. Section 82 is a provision laying down the principle regarding parties to election petition. A perusal of this provision of law will show that the concept of proper parties which is so easily available in the case of a civil litigation is not available in the matter of election petitions. There are no proper parties for an election petition. The parties, according to law, are to be only those who are directed by the provisions of law to be the necessary parties and none else. In the case of Jyoti Basus v. Debi Ghosal (AIR 1982 SC 983) (supra) it has been laid down that no one may be joined as a party to the election petition, otherwise than as provided by Sections 82 and 86(4) of the Act. In this case, however, the Court came to the conclusion that the names of some of the respondents had been wrongly included in the election petition as respondents and holding that they were not necessary parties as required by the provisions of law, directed that such persons may not be permitted to join as parties to the election petition. Cases of N. P. Ponnuswani v. Returning Officer AIR 1952 SC 64, Jagannath v. Jaswant Singh AIR 1954 SC 210, Mohan Raj v. Surendra Kumar AIR 1969 SC 677 and K. Venkateswara Rao v. B. N. Reddy AIR 1969 SC 872 were considered by their Lordships and they directed the delection of the names of the unnecessary parlies.

24. In the case of Mohan Raj (supra) it was held that the Court can order amendment and even strike out the party who is not necessary. In the case of Murarka Radhey Shyam Ram Kumar AIR 1964 SC 1545 (supra) it was specifically held that where all the necessary parties have been joined to the election petition, the circumstance that a person who is not a necessary party, in that he was a candidate whose nomination was rejected, has also been impleaded, does not amount to a breach of the provisions of Section 82 and no question of dismissing the petition would arise. It is open to the Election Tribunal to strike out the name of the party who is not a necessary party within the meaning of Section 82 of the Act. The position will be different if a person who is required to be joined as a necessary party under Section 82 of the Act is not impleaded.

25. In this view of the legal position, I am of the opinion that the impieadment of the Returning Officer, Pauri and the Chief Election Commissioner of India, in the election petition, as it originally stood, was an impieadment of unnecessary parties, but that could not result in the dismissal of the petition. The right course was to have the names of those respondents deleted, and this was what was done by this Court, by its earlier order dated 9-11-1982, and there the matter rests, and now it cannot be argued that the petition was liable to be dismissed on account of that joinder of unnecessary parties.

26. In the result, the application 18-A stands dismissed.


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