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2020 Supreme(Kar) 284
IN THE HIGH COURT OF KARNATAKA
John Michael Cunha, J.
G. Devarajegowda - Appellant
Versus
Prajwal Revanna @ Prajwal R. And Others - Respondents
Election Petition No. 2 of 2019
Decided On : 31-01-2020
Smt Pramila Nesaragi, Senior Advocate a/w Sri. Shivananda B.S., Advocate, for the Appellant; Sri. Udaya Holla, Senior Advocate a/w Sri. M. Keshava Reddy, Advocate, for the Respondent No. 1; Sri. M.R. Vijay Kumar & Sri. Sunil M.V., Advocates, for the Respondent No. 2; Smt. Akkamahadevi Hiremath, Advocate, for the Respondent No. 3; Sri. A. Manjunatha & Sri. Nagesha K., Advocates, for the Respondent No. 4; Sri. Mahesh R. Uppin, Advocate, for the Respondent No. 6
Non-compliance with the mandatory requirements of sections 81 and 83 of the RP Act, including non-attestation of annexures and defects in the copies served on respondents, rendered the election petition not a valid petition in the eye of law and therefore, liable to be dismissed.
Headnote:
RP ACT - Election Petition - Section 86(1) of RP Act, 1951 - Section 81(3) and proviso to sub-section (1) of section 83 of RP Act read with Rule 94A of the Conduct of Election Rules - The court discussed the defects in the election petition, including non-compliance with the mandatory requirements of sections 81 and 83 of the RP Act, and the dismissal of the petition for non-compliance of statutory requirements under Section 81(3) of the Representation of People Act, 1951.
Fact of the Case:
The respondent filed I.A.No.8/2019 seeking dismissal of the Election Petition for non-compliance of provision of section 81(3) of the RP Act and proviso to sub-section (1) of section 83 of the RP Act read with Rule 94A of the Conduct of Election Rules. The respondent contended that the election petition was presented with major and substantial defects, rendering it not a valid petition in the eye of law.
Finding of the Court:
The court found that the election petition was not maintainable for non-compliance of statutory requirements under Section 81(3) of the RP Act. The court held that the defects in the election petition, including non-attestation of annexures and defects in the copies served on respondents, rendered the petition not a valid petition in the eye of law and therefore, liable to be dismissed.
Issues: The court considered whether the defects found in the presentation of the election petition and the copies thereof were of vital nature and amounted to non-compliance of mandatory requirements of sections 81 and 83 of the RP Act, and whether the High Court Rules conferred jurisdiction upon the Court to permit correction or removal of fundamental defects in an election petition beyond the period of limitation provided under the RP Act.
Ratio Decidendi: The court held that the defects in the election petition, including non-compliance with the mandatory requirements of sections 81 and 83 of the RP Act, rendered the petition not a valid petition in the eye of law and therefore, liable to be dismissed. The court also emphasized that non-compliance of requirement under section 83 of the RP Act by itself does not lead to dismissal of the petition as section 86 of the RP Act does not refer to section 83 of the RP Act. Nonetheless, this defect cannot be cured by permitting the petitioner to subscribe his signature and verification of these annexures after the expiry of limitation prescribed under section 81 of the RP Act.
Final Decision: The court dismissed the election petition for non-compliance of statutory requirements under Section 81(3) of the Representation of People Act, 1951. Consequently, all pending I.As. were dismissed.
JUDGMENT
1. I.A.No.8/2019 is filed by respondent No.1 under section 86(1) of the Representation of People Act, 1951 (hereinafter referred to as 'RP ACT') seeking dismissal of the Election Petition for non-compliance of provision of section 81(3) of the RP Act and proviso to sub-section (1) of section 83 of the RP Act read with Rule 94A of the Conduct of Election Rules (hereinafter referred to as the 'Rules').
2. I.A.No.6/2019 is filed by respondent No.6 under Order 7 Rule 11 r/w. 151 of CPC seeking dismissal of the Election Petition as the same is barred by time as prescribed under section 86(1) of RP Act.
3. Respondent No.1 in his affidavit filed in support of I.A.No.8/2019 has averred that the election petition was presented on 26.06.2019 with major and substantial defects like non-payment of court-fees, defective verifying affidavit, defective verification of pleadings, unattested annexures in the copies to the respondents, unattested copies of election petition to be served on the respondents, non-attestation of the copies before Notary, improper marking of annexures and many other major defects as pointed out by the Office in the order-sheet produced at Annexure-R1-37. It is stated that in view of the above defects, the election petition cannot be considered as one filed within the limitation prescribed under section 81(1) of the RP Act. All the office objections were removed only on 25.07.2019 beyond the period of limitation of 45 days and therefore, the election petition is barred by time and is liable to be dismissed in limine.
4. Respondent No.6 has also made similar averments in his affidavit and has sought for dismissal of the election petition.
5. Both these applications are opposed by the election petitioner contending that, that Section 83 of the Representation of Peoples Act, 1951 read with Rule 94A is not a ground available under section 86(1) of the RP Act, 1951. The Petitioner has complied substantially Section 81(3) of the Representation of Peoples Act, 1951 and Section 81(3) is also not mandatory. The Election Petition has been filed within 45 days from the date of declaration of result and it is not barred by time. The Election Petition filed by the Petitioner was not suffering from any defect of substantial nature. Whatever defects pointed out were not of substantial nature. Petitioner has complied with the defects which were trivial in nature, like stitching, binding, paginating and clerical defects and almost all the defects had been complied with and it was posted before the court on 12.07.2019. It was not filed with defective verification affidavit and petitioners signature is subscribed in all pages including verification.
6. I have heard Smt.Pramila Nesargi, learned Senior Counsel appearing on behalf of Sri.Shivananda D.S., learned counsel for election petitioner, Sri.Udaya Holla, learned Senior Counsel appearing on behalf of Sri.M.Keshava Reddy, learned counsel for respondent No.1 and Sri.Mahesh R.Uppin, learned counsel for respondent No.6.
7. Sri.Udaya Holla, learned Senior Counsel for respondent No.1 has placed reliance on the following decisions namely,
(i) Satya Narain v. Dhuja Ram & Others, (1974) 4 SCC 237,
(ii) Gopal Prasad Shastri v. Mrs. Archana Kumar & Others, AIR 1984 Delhi 280,
(iii) Gilbert John Mendonca v. Narendra Lalchandji Mehta & Others, 2018 SCC Online Bombay 175,
(iv) Lachhman Das Arora v. Ganeshi Lal & Others, (1999) 8 SCC 532,
(v) Ajay Gupta v. Raju @ Rajendra Singh Yadav, (2016) 14 SCC 314,
(vi) Indian Oil Corporation Ltd., v. Municipal Corporation & Others, (1995) 4 SCC 96,
(vii) National Insurance Co. Ltd., v. Pranay Sethi Others, (2017) 16 SCC 680,
(viii) Saritha S. Nair v. Chief Election Commissioner of India, 2019 SCC OnLine Kerala 3713.
8. The sum and substance of argument of the learned Senior Counsel is that, in the instant case, election was declared on 23.05.2019. In view of the limitation prescribed in section 81 of the RP Act, the election petition was required to
