Chandrabhan S/O Dasrath Bagade Vs. NitIn S/O Jayramji Gadkari and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/365368
SubjectElection;Limitation
CourtMumbai High Court
Decided OnFeb-24-2003
Case NumberElection Petition No. 1 of 2002
JudgeV.M. Kanade, J.
Reported in2004(2)MhLj392
ActsRepresentation of the People Act, 1951 - Sections 66, 67A, 81, 85 and 86; Code of Civil Procedure (CPC) - Order 7, Rule 11
AppellantChandrabhan S/O Dasrath Bagade
RespondentNitIn S/O Jayramji Gadkari and ors.
Appellant AdvocateN.S. Adbe, Adv.
Respondent AdvocateJ.T. Gilda, Adv. for Respondent No. 1, ;A.S. Agrawal, Adv. for Respondent No. 2 and ;A.S. Kilor, A.G.P for Respondent No. 3
DispositionPetition dismissed
Excerpt:
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representation of the people act, 1951 - sections 81, 86(1) - election petition - limitation - limitation of 45 days for filing election petition from the date of declaration of the candidate as elected by the returning officer - result of election declared on 8.6.2002 - election petition filed on 30.7.2002 - election petition dismissed as barred by limitation.;section 86(1) mandates that if the provisions of section 81 are not complied with, the high court would have no other option but to dismiss an election petition. it is a settled position that the right of election is not a constitutional right or a fundamental right but it is a right which is the creation of the statute and as such provisions of the statutes have to be complied with.;perusal of the said section 81 clearly indicates.....
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v.m. kanade, j.1. civil application no. 7661/02 is filed by respondent no. 1 under order vii, rule 11 of the code of civil procedure read with section 86 of the representation of the people act, 1951 (hereinafter referred to as 'the said act'), praying for dismissal of the election petition on the ground that it does not comply with the provisions of section 83 of the said act.facts2. the elections of the maharashtra legislative council from nagpur division graduate constituency were announced in may 2002. the election programme was published which is reproduced hereinbelow : a) last date for nomination : 5th june, 2002 b) date of scrutiny : 6th june, 2002 c) date of withdrawal : 8th june, 2002 d) date of poll : 23rd june, 2002 e) date of counting : 23rd june, 2002 f) place of counting :.....
Judgment:

V.M. Kanade, J.

1. Civil Application No. 7661/02 is filed by respondent No. 1 Under Order VII, Rule 11 of the Code of Civil Procedure read with Section 86 of the Representation of the People Act, 1951 (hereinafter referred to as 'the said Act'), praying for dismissal of the Election Petition on the ground that it does not comply with the provisions of Section 83 of the said Act.

FACTS

2. The elections of the Maharashtra Legislative Council from Nagpur Division Graduate Constituency were announced in May 2002. The election programme was published which is reproduced hereinbelow :

a) Last date for nomination : 5th June, 2002

b) Date of scrutiny : 6th June, 2002

c) Date of withdrawal : 8th June, 2002

d) Date of Poll : 23rd June, 2002

e) Date of counting : 23rd June, 2002

f) Place of counting : Nagpur

3. Respondents 1 and 2 along with some other candidates filed their respective nomination papers for contesting the said election. Respondent No. 1 was an official candidate of Bhartiya Janta Party whereas respondent No. 2 was an independent candidate. The other candidates had withdrawn their forms and, therefore, they have not been impleaded as respondents in the Petition.

4. Respondent No. 2 withdrew his candidature on 8-6-2002 which was the last date of withdrawal of nominations. After withdrawal of the nomination paper of respondent No. 2, the Returning Officer declared the respondent No. 1 as elected unopposed.

5. The petitioner in the Election Petition is a voter in the Election for the Maharashtra Legislative Council from Nagpur Division Graduate Constituency and his name was included in the voters list for the Nagpur Division Graduate Constituency and, therefore, the petitioner states that he has a right to vote at the election and he is entitled to file the instant petition.

6. In the Election Petition in para No. 4 the petitioner has stated as follows :

'That as already stated hereinabove, as per the, election programme announced by the respondent No. 3, 8-6-2002 was the last date for withdrawal of nomination. The respondent No. 2 was on the said date reported to be in Mumbai before the then Governor and Chancellor of Nagpur University, Dr. P. C. Alexander in connection with a matter related to Nagpur University in a petition filed by the respondent No. 2. Thus, in other words, the respondent No. 2 was not at Nagpur on the said date, which was the last date for withdrawal of nomination papers. However, to the utter shock, surprise and dismay of everybody concerned, it was announced that the nomination paper of the respondent No. 2 has been withdrawn on 8-6-2002 and it was claimed that this was done by his brother. Pursuant to the said alleged withdrawal of the nomination paper of the respondent, nobody else was left in the field to contest the election and since the respondent No. I was the only candidate left, he was declared elected unopposed to the Maharashtra Legislative Council.''

7. The petitioner in the Election Petition, therefore, did not have personal knowledge about the said fact. What he has stated is that he had learnt about the said fact that respondent No. 2 was at Bombay and that his brother had withdrawn the nomination paper.

8. It is further alleged in the petition that the petitioner complained to various authorities including the Returning Officer, Nagpur Division Graduate Constituency as also the Election Commissioner of India. It is alleged that Shri Govindrao Adik - President of Maharashtra Pradesh Congress Committee to whom the petitioner had marked the copy of the complaint also made a representation to the Returning Officer and Election Commissioner. The main contention of the petitioner to the Election Petition is that the Returning Officer had not followed the procedures in respect of the mandate given by the said Act and Rules for the withdrawal of the Nomination Papers. It is alleged in para No. 7 as follows :

'These provisions mandate that the withdrawal of the nomination paper could be done only by a candidate contesting the election or his proposer and/or seconded by approaching the Returning Officer in the present case, the younger brother of the respondent No. 2 who was neither a proposer nor a seconded is alleged to have requested the Returning Officer respondent No. 3 to allow withdrawal of nomination of the respondent No. 2.'

The allegation of the petitioner in the Petition was, therefore, that on account of improper withdrawal of the nomination paper of respondent No. 2, had materially affected the Election of respondent No. 1 and, therefore, the petitioner was seeking a declaration that the Election of respondent No. 1 be declared as null and void.

9. In para 9 of the Petition, it was admitted by the petitioner that 'he was neither raising a plea of any 'corrupt practice' nor of 'duress'.

10. That the Election Petition was admittedly filed on 30-7-2002. In para 14 of the Election Petition, the petitioner has stated that although respondent No. 1 was declared as elected on 8-6-2002, the substantive compliance to grant certificate of election was done only on 15-6-2002 and, therefore, the cause of action arose on 15-6-2002.

11. The Election Petition was admitted and notices were served on respondents. Thereafter after service of the notices the respondent No. 1 has filed the present application and is seeking dismissal of the Petition under Section 86 of the said Act. In the said application, various grounds have been raised for dismissal of Election Petition for non-compliance of the mandatory provisions of Sections 81 and 83 of the said Act. The first ground raised by respondent No. 1 in the said Application is that the Election Petition is barred by limitation inasmuch as the said petition was filed beyond the period of 45 days as provided under Section 81 of the said Act. It is further submitted that the petitioner had made categorical averments in para 4 and 14 that the respondent No. 1 was declared elected on 08th June, 2002 and, therefore, on his own showing the Election Petition ought to have been filed within the period of 45 days from the said date as contemplated by the provisions of Section 81 of the said Act. It was submitted that the petitioner had applied for certified copies and from the certified copies, the petitioner knew that the Returning Officer has declared the election on 8th June, 2002, In spite of that, a false statement was made in para No. 14 that cause of action has arisen on 15th June, 2002. It was further submitted by respondent No. 1 that the petitioner had not stated material facts as required to make out the cause of action for filing Election Petition and that what did he state in paras 10, 11 and 12, did not comply with the provisions of the said Act as the petitioner had no personal knowledge about the facts staled in para No. 7 and 10 and the said statement that 'the request for withdrawal of nomination was allegedly made by the brother of respondent No. 2 and that it was made without authority was firstly incorrect statement and had been made by the petitioner without verification of the facts. It was further submitted that the petitioner had suppressed material facts from the Court and had made incorrect and false averments in the Petition and had not come to the Court with clean hands and in this view of the matter the Petition itself was liable to be dismissed on that count. It was submitted by the respondent No. 1 that the statement in para No. 7 that 'provisions in the Representation of the People Act, 1951 mandate that the withdrawal of the nomination paper could be done only by a candidate contesting the election or his proposer and/or seconded by approaching the Returning Officer, In the present case, the younger brother of respondent No. 2 who was neither the proposer nor seconded is alleged to have requested the Returning Officer - respondent No. 3 to allow the withdrawal of the nomination of respondent No. 2.' It is submitted that the said averment was false to the knowledge of the petitioner inasmuch as Section 37 of the said Act which deals with the withdrawal of nomination does not refer to withdrawal of nomination paper by the seconded. It is submitted that on the contrary under Section 37 an agent can withdraw the nomination form. It was further submitted that respondent No. 2 Sunil Gayaprasad Mishra had nominated his younger brother Anil as his election agent and in view of the provisions of Rule 12 nomination of the agent was made by respondent No. 2. It was further submitted that the copy of the document appointing respondent No. 2 as election agent was annexed to the application. It was suggested that election agent had represented necessary application for withdrawal in Form No. 5 as per the Rule 9 before respondent No. 3 on 8th June, 2002 and, therefore, the nomination was v'alidly withdrawn by respondent No. 2. It was stated that these facts were known to the petitioner. However, these facts were suppressed and in order to mislead the Court the petitioner had quoted wrong provisions in para No. 7 of the Election Petition. It is submitted that the correct provisions had not been stated and had the correct facts been mentioned in the Election Petition, the Election Petition would not have been admitted and could have been dismissed in limine.

12. It is further submitted that the statement made in para 10 of the Petition that the brother of respondent No. 2 was neither Proposer/seconded nor was he an authority holder authorised to represent the request for withdrawal also was not sufficient pleadings and that this material particulars are unchallenged and the Election Petition, therefore, on this count is liable to be rejected. It was lastly submitted that the respondent had not verified the Election Petition in the manner as was required by the Mandatory provisions of Section 83 and, therefore, the petitioner failed to comply with the mandatory provisions of Section 83, the Election Petition was liable to be dismissed on this ground also.

13. The petitioner has filed his reply to the said Civil Application dtd. 17-1-2003. In the said reply, the petitioner contended that the question of limitation is a mixed question of fact and law, therefore, was required to be decided along with the other issues as per the provisions of the Order 14, Rule 2. It was further submitted that Sections 53, 66 and 67A laid down the manner in which the results of the election are to be declared. It is further submitted that in addition to the provisions of the said Act, the Parliament had approved Conduct of Election Rules, 1961 (hereinafter referred to as 'the said Rules') and, therefore, the said Act and Rules were required to be read together. It is further submitted that Rules 11 and 85 were relevant in the present case. It is the case of the respondent that although the preliminary result was announced on 8-6-2002 as per Rule 11 of the said Rules it was essential that the requisite copies could be sent to the Election Commissioner and this was done according to the petitioner on 15-6-2002 i.e. on the date when the Form 24 came to be issued. It was submitted that the issuance of Form 24 was not a mere formality. It is further submitted that although preliminary result was declared on 8-6-2002 the report as per Form 24 was issued on 15-6-2002 which was, according to the petitioner, in fact the certificate of election. It was, therefore, submitted that the certificate of election was to be treated as valid and legal for the purpose of deciding the fate of election. It was lastly submitted that there was specific averment in the Petition that the brother of respondent No. 2 had no authority to submit withdrawal nomination and, therefore, material fact. So far as the contentions regarding the petition not being verified as per the provisions of Section 83 are concerned, it was submitted that the said defect was curable and, therefore, there was no question of non-compliance of Section 83 of the said Act. It is further submitted that it could not be said that it was a material defect and non-compliance whereof could not result into automatic dismissal of the Election Petition. The Returning Officer has filed two affidavits; one dated 16-1-2003 and another affidavit dated 5-2-2003. In the said affidavit, the Returning Officer has given the factual report in respect of withdrawal of the nomination form to respondent No.2. In the second affidavit, Returning Officer has annexed various documents which show that the Election was declared on 8-6-2002 and that communication was made to the Election Commissioner on the same date.

14. The petitioner has filed his additional rejoinder to the affidavit filed by respondent No. 3 in which he reiterated the stand that the compliance of Rule 11(1) of the said Rule was done only on 15-6-2002. In para 3 of the said rejoinder he states that the fact that the fax message dtd. 8-6-2002 was sent by the Returning Officer as required under Rule 11(1), was never disclosed to the petitioner. The petitioner, therefore, does not dispute the fact that said fax message was, in fact, sent on 8-6-2002 but merely mentioned that it was not disclosed to him.

FINDINGS

15. I have heard the learned counsel appearing on behalf of the petitioner and respondents at length. With the consent of the parties, the matter was heard on various non working Saturdays as well after the Court working hours. The learned counsel appearing on behalf of the petitioner also has filed Written Submissions on the application filed by respondent No. 1. The learned counsel appearing on behalf of the petitioner, submitted that he has specifically made out a case that the petition was filed within limitation, as Form 21-A which was required to be sent to the Election Commissioner, was sent on 15-6-2002. It is further submitted by the learned counsel that respondent No. 3 has filed additional affidavit and the conduct of respondent No. 3 therefore, creating a serious doubt over the election process conducted. It was further contended that the detailed inquiry was required and that the application of respondent No. 1 was liable to be rejected as there were many disputed questions of facts raised in the said application. The learned counsel appearing on behalf of the petitioner relied on the Judgment of the Apex Court in the case of Krishna Ballabh Prasad Singh v. Sub-Divisional Officer, Hilsa cum Returning Officer and Ors., reported in : AIR1985SC1746 and also on the judgment reported in : [2002]SUPP5SCR491 .

16. The learned counsel appearing on behalf of respondent No. 1 reiterated the contentions raised by him in the application which are reproduced hereinabove and relied on the provisions of the said Act and Rules and stated that in view of the clearcut unequivocal admission by the petitioner in paras 4 and 14 of the petition that the result of the election was declared on 8-6-2002 and in view of the fact that he had not disputed the fax dtd. 8-6-2002 sent by the Returning Officer as required under Rule 11(1) there was no disputed question of facts. He relied on the Judgment reported in AIR 1976 SC 584, in the case of Mohd. Ali v. Azad Mohd. reported in : AIR1999SC3429 ; in the case of Jeet Mohinder Singh v. Harminder Singh Jassi reported in : AIR2000SC256 ; and in the case of M.J. Zakharia Sait v. T.M. Mohammed and Ors., reported in : [1990]2SCR719 ; in the case of Tarun Prasad Chatterjee v. Dinanath Sharma reported in Judgment Today 2000 (Supp. 1) SC 522.

17. I have perused the Election Petition, application filed by respondent No. 1 filed under Order 7, Rule 11 of the Code of Civil Procedure read with Section 86 of the said Act and reply filed by the petitioner and Returning Officer - respondent No. 3. In the application filed by respondent No. 1, three contentions are raised which are as under :

1. That the election petition does not comply with the provisions of Section 81 of the said Act. As the Election Petition is barred by limitation the same is liable to be dismissed.

2. Neither any material facts nor any material particulars have been pleaded so as to give any cause of action to the petitioner to file the present petition and that the petitioner has filed this petition by suppressing material facts and by misleading the Court by stating facts which were false to his knowledge and, therefore, the petition is liable to be dismissed; and

3. That the petition is not verified as per the provisions of Section 83 and on that count the petition is liable to be dismissed.

18. So far as first ground is concerned that the Election Petition is barred by limitation, in order to decide the said question, it will be necessary to see the relevant provisions under the said Act and Rules. Chapter 3 of the said Act deals with the trial of Election Petition. Section 86 deals with the trial of Election Petition which reads as under :

'86. Trial of election petitions. -- (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.

Explanation -- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under Clause (1) of Section 98.

(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under Sub-section (2) of Section 180A.

(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.

(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.

Explanation. -- For the purposes of this sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.

(5) 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 trial 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.

(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to. be necessary for reasons to be recorded.

(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.'

19. For the purpose of deciding the present application the provisions of Section 86(1) are relevant and it state that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 87. Section 86(1) mandates that if the provisions of Section 81 are not complied with, the High Court would have no other option but to dismiss an election petition. It is a settled position that the right of election is not a constitutional right or a fundamental right but it is a right which is the creation of the statute and as such provisions of the statutes have to be complied with. In the present case, respondent No. 1 is claiming that there is non-compliance of provisions of Section 81. Section 81 reads as follows :

'81. Presentation of petitions, -- (1) 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.'

20. Perusal of the said section clearly indicates that an Election Petition is to be filed within 45 days from the date of election of the returned candidate. The word date of election is defined under the Act. Section 67A states what is the date of election.

'67A. Date of election of candidate. -- For the purpose of this Act, the date on which candidate is declared by the returning officer under the provisions of Section 53, or Section 66, to be elected to a House of Parliament or of the Legislature of a State shall be the date of election of that candidate.'

21. It is, therefore, necessary to see as to what is the date of the election in this particular case. Sections 53 and 66 which are referred in Section 67A also would be relevant for the purpose of deciding the date of election. Section 53 deals with the procedure in the case of contested and uncontested election. Section 53 reads as under :

'53. Procedure in contested and uncontested elections. -- (1) If the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken.

(2) If the number of such candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats.

(3) If the number of such candidates is less than the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be elected and the Election Commission shall by notification in the Official Gazette call upon the constituency or the elected members or the members of the State Legislature Assembly or the members of the electoral college concerned as the case may be, to elect a person or persons to fill the remaining seat or seats.

Provided that where the constituency or the elected members or the members of the State Legislative Assembly or the members of the electoral college having already been called upon under this sub-section, has or have failed to elect a person or the requisite number of persons, as the case may be, to fill the vacancy or vacancies, the Election Commission shall not be bound to call again upon the constituency, or such members to elect a person or persons until it is satisfied that if called upon again, there will be no such failure on the part of the constituency of such members.'

22. In the present case since the election is admittedly uncontested the provisions of Sub-clause (2) would be applicable. Sub-clause (2) merely stipulates that if there is no contest the returning officer shall forthwith declare the result of the election. Section 66 which is also referred to in Section 67A, speaks about the declaration of result. Section 66 reads as under :

'66. Declaration of results. -- When the counting of the votes has been completed, the returning officer shall, in the absence of any direction by the Election Commission to the contrary, forthwith declare the result of the election in the manner provided by this Act or the rules made thereunder.'

Section 66 also categorically states that the returning officer shall forthwith declared the result as provided by the Act or the rules. It would be relevant to examine Rules in respect of the declaration of result. Rule 11 talks about publication of lists of contesting the candidates and the declaration of the result in uncontested election. Rule 11 reads as under :

'11. Publication of list of contesting candidates and declaration of result in uncontested election. -- (1) The returning officer shall, immediately after its preparation, cause a copy of the list of contesting candidates to be affixed in some conspicuous place in his office and where the number of contesting candidates is equal to, or less than the number of seats to be filled, he shall, immediately after such affixation, declare under Sub-section (2) or, as the case may be, Sub-section (3) of Section 53 the result of the election in such one of the Forms 21 to 21-B as may be appropriate and send signed copies of the declaration to the appropriate authority, the Election Commission and the Chief Electoral Officer.

(2) If a poll becomes necessary under Sub-section (1) of Section 53, the returning officer shall supply a copy of the list of contesting candidates to each such candidate or his election agent, and ,then shall also publish the list in the Official Gazette.'

The said Rule also clearly stipulates that in the case of an uncontested election the result should be declared under Sub-section (2) of Section 53 in such one of the Forms 21 to 21-B and thereafter sent the signed copies of the declaration to the appropriate authority, the Election Commission and the Chief Electoral Officer. Sub-rule of Rule 11 would not be relevant in this particular case as this is a case where the election was not contested. It will be relevant to note here that even Rule 11 does not make any reference to Form No. 24. Rule 11 only talks about Forms 21 to 21-B. Forms 21 and 21-A are the Forms for the declaration of the Result in case of seat in General Election which is uncontested. Therefore, in the present case Form 21-B is not relevant. Form 24 which is not even referred to in Rule 11 is in respect of certificate of election which is issued by the returning officer as required under Rule 85. It is the contention of the petitioner that this certificate as required under Rule 85 was issued by the returning officer on 15-6-2002 and, therefore, the date of election would be 15-6-2002. This contention of the petitioner cannot be sustained. Perusal of the relevant section clearly indicates that the date of election would be the date on which the returning officer declares the election. In this case, it is an admitted position that the returning officer had declared the election on 8-6-2002. This fact is also admitted by the petitioner in paras 4 and 14 of the Election Petition. This fact therefore, is an undisputed fact. The contention of the petitioner that the certificate as required under Rule 85 was issued by the Election Commission on 15-6-2002 and, therefore, this should be treated as a date of election cannot be accepted. Rule 85 reads as under :

'85. Grant of certificate of election to returned candidate. -- As soon as may be after a candidate has been declared to be elected the returning officer shall grant to such candidate a certificate of election Form 24 and obtain from the candidate an acknowledgment of its receipt duly signed by him and immediately send the acknowledgment by registered post to the Secretary of the Council of States or, as the case may be, the Secretary of the Legislative Council.'

Perusal of this Rule would clearly indicates that grant of certificate has nothing to do with the date of election as defined under Section 67A and which has been further clarified in Section 53(2), Section 66 and Rule 11 of the said Rules. The issuance of certificate can not be treated as a starting point for the purpose of calculating the limitation as prescribed under Section 81. For the purpose of calculating the limitation, Section 81 itself makes it clear that the limitation would start from the date of election. The date of election is further defined under Section 67A read with Rule 53, Section 66 and Rule 11. In none of these sections or Rules there is any reference to the issuance of certificate under Rule 85 or Form 24. It would be relevant at this stage to refer to the averments made by the petitioner in para 14 which are reproduced hereinbelow :

'That the cause of action for filing the instant petition arose on the date of election of the returned candidate i.e. 15th June 2002, when the certificate under Form No. 24 in terms of Rule 66 of the Conduct of Election Rules came to be granted. It is submitted that although the respondent No. 1 was declared elected on 8th June 2002, in terms Rule 11(1) of the Conduct of Election Rules, the substantive compliance of granting the certificate of election was done only on 15th June 2002. Therefore, the petition is filed within the limitation i.e. 45 days from 15th June 2002.'

23. Rule 66 referred to in the said paragraphs also deals with the grant of certificate of election to the returned candidate. Rule 66 reads as under :

'Grant of certificate of election to returned candidate. -- As soon as may be after a candidate has been declared by the returning officer under the provisions of Section 53, or Section 66, to be elected, the returning officer shall grant to such candidate a certificate of election in Form 22 and obtain from the candidate an acknowledgment of its receipt duly signed by him and immediately send the acknowledgment by registered post to the Secretary of the House of the People or, as the case may be, the Secretary of the Legislative Assembly.'

24. It is pertinent to note that neither Rule 66 nor Rule 85 is referred in Rule 11 which talks about declaration of the result. In my view, the submission of the petitioner that the cause of action for filing the Petition had arisen from the date of issuance of certificate by the returning officer either under Rule 66 or. Rule 85 or Form 22 or Form 24, can not be accepted.

25. Rule 66 or Rule 85 contemplates the subsequent procedure which is required to be followed by the returning officer after the result of the election is declared. That the intention of the Legislature was to treat the date of issuance of certificate as the starting point for the purpose of counting the limitation, it would have been specifically mentioned in Section 81 itself and instead of the word 'date of election ' it would have been clearly mentioned that the 'date of issuance of certificate'. In view of the specific provisions in Section 81 the submission of the learned counsel appearing on behalf of the petitioner that the cause of action arose on 15th June, 2002 cannot be accepted.

26. In support of the submission of the learned counsel appearing on behalf of the petitioner relied on the Judgment of the Apex Court reported in the case of Krishna Ballabh Prasad Singh v. Sub-Divisional Officer Hilsa-cum-Returning Officer and Ors., reported in : AIR1985SC1746 . In the said case, the petitioner and respondents have contested the election to the Bihar Legislative Assembly Seat from Islampur Constituency in March, 1985. After the votes had been polled, the counting of votes was taken up on March 6, 1985. Thereafter, the allegations were made by the parties and repoll was ordered in 60 constituencies. After the re-poll the votes were counted and it was found that the petitioner had secured more votes than 4th respondent. The 4th respondent wherein applied for recounting of the votes but the returning officer rejected the application. The petitioner had been duly elected to the assembly. However, the returning officer discovered that the ballot papers of one booth not been counted and after those votes were taken into account he cancelled the election of the petitioner and declared the fourth respondent to be a successful candidate. Thereafter the earlier certificate which was granted to the petitioner therein was cancelled and fresh certificate in Form 22 was issued and thereafter a declaration in Form 21C was prepared. It is an admitted position in the said case that the declaration in Form 21C had not been issued earlier in favour of the petitioner.

Under these circumstances, the petitioner therein filed a Writ Petition in the Patna High Court challenging the declaration made in favour of the fourth respondent. The Division Bench rejected the Writ Petition on the ground that the Writ Petition was not maintainable in view of the bar imposed under Clause (b) of Article 329 and that the Election Petition was the proper remedy. When the matter went to the Apex Court, it was submitted that the process of election was completed since the counting of votes have concluded and the certificate of election in Form 22 was granted to the petitioner therein certifying to be yet to be elected and it was, therefore contended that the question of filing an Election Petition was not necessary and what was challenged was the declaration of the result of the fourth respondent therein after the issuance of the certificate of the petitioner in Form 22. The Apex Court, under these circumstances, held that there should be declaration in Form 21C or 21D. Form 21C is made in respect of the General Election and declaration in Form 21-D is made to the election to be held to fill the casual vacancy. The Apex Court, under these circumstances, held as follows :

'It is plain that the declaration envisaged by the law that a candidate has been elected is the declaration in Form 21-C or Form 21-D. The declaration in Form 21-C is made in a general election and the declaration in Form 21-D is made when the election is held to fill a casual vacancy. It is now settled law that the right to vote, the right to stand as a candidate for election and the entire procedure in relation thereto are created and determined by statute. Accordingly, when Section 66 of the Representation of the People Act, 1951 provides that the result of the election shall be declared in the manner provided by the Act or the Rules made thereunder, the declaration can be effected in that manner only. The manner is clearly expressed in Rule 64 of the Conduct of Elections Rules, 1961. There is no other manner, there must be a declaration in Form 21-C or Form 21-D. The announcement by the Returning Officer that the petitioner had been elected has no legal status because the declaration in Form 21-C had not yet been drawn up. Even the grant of the certificate of election in Form 22 to the petitioner cannot avail him because Rule 66 contemplates the grant of such certificate only after the candidate has been declared elected under Section 66, which refers us back to Rule 64 and therefore to Form 21-C. There having been no declaration in Form 21-C at the relevant time, the grant of the certificate of election in Form 22 to the petitioner was meaningless.'

27. The ratio of the said Judgment would not be applicable to the facts of the present case. In fact, the issue regarding the starting point of limitation did not arise before the Apex Court. In the said case, the issue before the Apex Court was whether the certificate of election which was issued in Form 22 would be held to be valid in the absence of a declaration in Form 21-C. In the said case, no declaration under Form 21-C was issued and yet declaration under Form 22 was issued by the Returning Officer and thereafter when the Returning Officer found that the certain ballot papers were not counted, he counted those votes and after the votes were counted, the Fourth respondent was declared to be elected and thereafter Form 21-C was issued in favour of the fourth respondent. The Apex Court further held that the Writ Petition was not maintainable and only an Election Petition could have been filed in the instant case, it is an admitted position that the election officer had declared the result on 8-6-2002 and had also issued declaration under Form 21-A as required by Rule 11 for the declaration of the result.

28. The learned counsel appearing on behalf of the petitioner also relied upon the Judgment in the case reported in : [2002]SUPP5SCR491 . The ratio of the said Judgment would not be applicable to the facts of the present case as the Apex Court in the said Judgment has held that for the purpose of application under Order 7, Rule 11, the allegations in the plaint are to be taken into consideration for deciding the application. In the present case the application is preferred under Order 7, Rule 11 as well under Section 86 of the said Act. Order 7, Rule 11 and Section 86 of the Representation of the People Act, 1951, on the averments made in the petition itself the present issue is being decided. The said Judgment, therefore, would not be of any assistance to the petitioner.

29. The Apex Court has construed the provisions of Section 67-A and has held that the date on which the candidate is declared by the Returning Officer under the provisions of Section 53 or 66 shall be the date of the election of the candidate. The Apex Court in the case of Chandrakant Shukla v. Maharaja Martand Singh, reported in : AIR1973SC584 has held as follows :

'Section 81(1) of the Representation of the People Act, 1951, provides 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 by 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 the dates of their election are different, the later of those two dates. Section 67-A says :

'For the purposes of this Act, the date on which a candidate is declared by the returning officer under the provisions of Section 53 or Section 66, to be elected to a House of Parliament or of the Legislature of a State shall be the date of election of that candidate.'

Reading these two sections together it is clear that the election petition should have been filed within forty-five days from March 10, 1971. Hence the petition filed by the appellant is clearly barred by limitation.'

30. The Apex Court has time and again held that if the statute provided for the thing to be done in a particular manner than it had to be done in that manner and no other manner. The Apex Court in the case of Chandra Kishor Jha v. Mahavir Prasad and Ors., reported in : AIR1999SC3558 , in para 19 has held as under :

'Since the Indian Limitation Act does not apply to an election petition, Section 10 of the General Clauses Act would apply. As already noticed, the Patna High Court was, for all practical purposes, closed after 3.15 p.m. on 16-5-1995. It was, therefore, not possible for the appellant to have presented the election petition to the Designated Election Judge or in his absence to the Bench hearing civil applications and motions in the open Court on that date, which was the last day of the prescribed period of limitation. Thus, the presentation of the election petition on the very next date i.e. 17-5-1995, in the open Court, would be considered, by virtue of Section 10 of the General Clauses Act, as presentation of the election petition within the prescribed period of limitation. In the established facts and circumstances of the case, the learned Designated Election Judge fell in error in denying to the appellant the benefit of Section 10 of the General Clauses Act and dismissing the election petition as barred by time. The order of the learned Designated Election Judge cannot, under the circumstances, be sustained. The election petition must proceed to trial on merits.'

In this view of the matter, the Election Petition is liable to be dismissed on the ground that it does not comply with the provision of Section 81 of the said Act as does not fall within the limitation. Since the Election petition is dismissed on the first ground itself, it is not necessary to deal with the other grounds which are raised in the said application.

31. The learned counsel appearing on behalf of the respondent No. 1 vehemently urged that the heavy costs should be imposed upon the petitioner for filing a vexatious petition and for dragging elected candidate to the Court. He submitted that the petitioner had suppressed the material facts and had quoted incorrect provisions of Section 37. He submitted that there is no reference of the word 'seconded' in Section 37. However, the petitioner, in order to mislead the Court, had made false averments in the petition. It is no doubt true that from the averments made in the petition, an impression is created that the petition is filed on the basis of facts which are not within the knowledge of the petitioner. The material averments regarding the withdrawal of the nomination paper by the respondent No. 2 is in the words of the petitioner' respondent No. 2 on the said date reported to be in Mumbai before the then Governor and Chancellor of Nagpur University........... and further he has mentioned as follows :

'It was announced that the nomination paper of respondent No. 2 has been withdrawn on 8-6-2002 and it was claimed that this was done by his brother.'

Thus, it appears that the petition has been filed not on the personal knowledge of the petitioner and the impression is created that the petitioner has tried to drag the elected candidate in the Court. This impression is fortified by the fact that in para 5 bald averments are made 'that the present petitioner on noticing that the withdrawal of the nomination before the respondent No. 2 was not in accordance with law, had complained to various authorities including respondents 3 and 4 and had sought declaration of the election of respondent No. 1 as invalid'. Further averments in para 6 indicate that the petitioner had marked copy of the complaint to the President of the Maharashtra Pradesh Congress Committee Shri Govindrao Adik. From the said averments it does appear that the petitioner either wanted to please the office bearers of Maharashtra Pradesh Congress Committee by making complaints against their rival candidates or wanted to pressurise the elected candidate by dragging him by filing an election petition. It is also true that the petitioner has made incorrect averments in para 7 which are as follows :

'These provisions mandate that the withdrawal of the nomination paper could be done only by a candidate contesting the election or his proposer and/or seconded by approaching the returning officer.'

32. Section 37 of the said Act which deals with the withdrawal of the candidates reads as follows :

'37. Withdrawal of candidature. -- (1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O'clock in the afternoon on the day fixed under Clause (c) of Section 30 to the returning officer either by such candidate in person or by his proposer, or election agent who has been authorised in this behalf in writing by such candidate.

(2) No person who has given a notice of withdrawal of his candidature under Sub-section (1) shall be allowed to cancel the notice.

(3) The returning officer shall, on being satisfied as to the genuineness of a notice or withdrawal and the identity of the person delivering it under Sub-section (1), cause the notice to be affixed in some conspicuous place in his office'.

33. The word 'seconded' has been omitted way back by Act 27 of 1956. This also indicates that the petition appears to have been filed in a very casual manner. However, in my view, in the present case the costs need not be imposed. It cannot be forgotten that in order to maintain purity in the election process, the gates of the Court should be open to enable any voter to approach the Court in the event he finds that the election is not properly held. It is no doubt true that under Section 117 of the Representation of the People Act, 1951, power is vested in the Court to impose costs and the Court is empowered to impose heavy cost apart from the amount of Rs. 2500/- deposited by the petitioner under Sub-clause (1) of Section 117. In the instant case, the election petition has been dismissed on the ground of non-compliance of Section 81 of the said Act on a preliminary objection being raised by the respondent No. 1. I am, therefore, not inclined to impose any costs on the petitioner.

34. Under the circumstances, the election petition is dismissed under the provisions of Section 86 of the Representation of the People Act, 1951 for non-compliance of the provision of Section 81 as the election petition is barred by limitation. Under the circumstances there shall be no order as to costs.