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2013 Supreme(Bom) 1574
HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA, J.
Jaywantrao Pundalikrao Jadhav
Versus
Shivaji Laxman Sahane & Others
Recrimination Petition No. 1 of 2013 In Election Petition No. 1 of 2012
Decided On : 16-08-2013
For the Petitioner:S.G. Aney, Senior Advocate with Vijay Nair i/by Prashant P. Kulkarni, Advocates. For the Respondents:R1, Mahesh Jethmalani, Senior Advocate with Pravin B. Gole with Ms. Chaitra Pawar with S.S. Deshmukh, Advocates, R2 to R5, None.
Headnote:REPRESENTATION OF THE PEOPLE ACT, 1951 - Sections 86 and 97 Proviso - Petition for recrimination.
Since period of 14 days limitation prescribed for appearance of returned candidate before Court is mandatory hence period of limitation to file recrimination petition within 14 days. - The concept "commencement of trial" is settled but still for the purpose of election petition, governed by the R.P. Act and High Court Rules, need to be tested from the specific explanation given in Section 86(4) of the People Act which is applicable to Section 97 also. As per this explanation, "a trial of the petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim and/or claims made in the petition". The respondent’s appearance before the High Court is the relevant date which had triggered the period of limitation, so far as the trial is concerned. Therefore, once the respondent/returned candidate, who appeared before the High Court "the trial of a petition shall be deemed to commence". Therefore, taking overall view of this Section 86 read with Section 97 and other provisions and as the period so prescribed is mandatory, the appearance of the returned candidate/respondent before the Court, in my view, itself commenced the period of limitation to file recrimination petition within 14 days.
The Court needs to see whether there was valid service of notice so issued by the Court or not. Once it is permissible to serve the notice and as such there is no bar to accept such notice by the adult family members and as there was no objection raised to that effect, except the objection about the name, and as the same was rejected, I am inclined to hold that the election petition was duly served on the recrimination petitioner/ returned candidate on 1st August, 2012 itself. Their initial objection as dismissed/rejected, in my view, that goes to the root and confirmed the service about the election petition on 1st August, 2012 itself. It is settled that once the amendment is allowed, it goes to the root of the date of the application itself. It is relevant to note even at that time when they moved such amendment application, there was no such objection with regard to the defective service and/or defective notice. Once, the party appeared and contested the matter even to the extent of praying for dismissal of the election petition, to say now that they were not duly served for want of summons as contemplated under Rule 9, in my view, is unacceptable.
It is relevant to note that Rule 10 of Bombay High Court Rules, itself permits the petitioner to the service of summons would be sent to the respondent to the address given by the petitioner by registered post prepaid acknowledgement, such summons can additionally be served by registered post. The defective notice, even if any, as prescribed in Rules 9 and 10, in no way can prevail over the mandate of sections, whereby it is made clear that the trial of election petition deemed to be commenced on the date fixed for respondent to appear before the High Court. It is not the case that they have not received any notice and/or copy of petition to answer claim and/or claims made in the petition or they never appeared earlier.
The Court has no choice but to accept the provisions of Special law and its mandate including of the limitation so prescribed. The technicality and/or issue revolving around the technicality of service of summons in prescribed format, in no way sufficient to say that the Court is testing the rights of the parties based upon the common law and/or the general law of CPC. The provisions of the R.P. Act, once are invoked, the general provisions for want of defective service, format of summons, in no way sufficient to accept the case of the recrimination petitioner.
1. Heard the learned senior counsel appearing for the parties, on the following preliminary issue.
(1) Whether the Recrimination Petition is barred by limitation?
2 Following are the basic events for the purpose of testing the present issue.
The result of the Biennial Election held for Nashik Local Authorities Members Constituency was declared on 28 May 2012. The Recrimination Petitioner was declared as Returned Candidate. Election Petition No. 1 of 2012 filed on 19 June 2012, challenging the election of the Returned Candidate by the Petitioner.
3 On 23 July 2012, this Court passed the following order: “Admit.
2. Issue notice to all the Respondents for final disposal, returnable on 3rd September, 2012.
3. Hamdast is allowed.”
4 The office-Registrar issued notice in the following terms:
“To
1. Election Commissioner, …....Respondent No.1,
Election Commission of India,
Nirvachan Sadan, Ashok Road,
New Delhi 110 001.
2. Chief Electoral Officer, …....Respondent No.2,
Mantralaya,
Mumbai 400032.
3. The Returning Officer, …....Respondent No. 3,
Nashik Local Authorities Constituency,
Office of District Collector,
Nashik.
4. Mr. P. Velarasu …....Respondent No.4,
Acted as Returning Officer,
Last known address Office of District Collector,
Nashik.
5. 5. The Assistant Returning Officer,....Respondent No.5,
Nashik Local Authorities Constituency,
Office of District Collector,
Nashik.
6. Mr. Jayant Pundalik Jadhav,......Respondent No.6,
Shivneri, Ramdas Swami Nagar,
behind Gandhinagar,
Nashik 422006.
Re: High Court, O.O.C.J.,
Election Petition No. 1 of 2012
Shivaji Laxman Sahane ...Petitioner
V/s.
Election Commissioner And Ors., ...Respondents
….......................
Sir,
I have to inform you that the abovementioned Petition came up before the Hon'ble Shri
Justice Anoop V. Mohta, on 23rd July, 2012, when His Lordship pass the following order:
P.C. “Admit.
1. 2. Issue notice to all the Respondents for final disposal, returnable on 3rd September, 2012.
2. 3. Hamdast is allowed.”
A copy of the Order dated 23rd July, 2012 and copy of Petition are enclosed herewith for your information.
PLEASE TAKE NOTICE that the abovementioned Petition is now fixed for “Final Disposal” on Monday, the 3rd September, 2012 at 11.00 O'Clock. You are therefore, directed to remain present before the Hon'ble Court, in Court Room No. 54, Second Floor, High Court Main Building, Bombay, either in person or through an Advocate entitled to practice on the Original Side of this Hon'ble Court, and shall continue to remain present during hearing on all subsequent dates, till the proceedings is finally disposed off by the Order of the Court.
PLEASE TAKE FURTHER NOTICE that if you fail to remain appear before the Hon'ble Court on the aforesaid date and time the Hon'ble Court will be passed the appropriate order in the aforesaid matter, even in your absence.
PLEASE TAKE FURTHER NOTICE that no further intimation shall be given to you in case the said matter stands adjourned for whatsoever reason, unless it is ordered by the Hon'ble Court.
Yours faithfully,”
The office dispatched the notice of Election Petition on 27 July 2012 and duly served upon the real brother of Recrimination Petitioner on 1 August 2012.
5 It is relevant to note that the copy of the order and the copy of the Petition with the prayers enclosed which were received by the contesting Respondent. There was no objection of any kind about the defective notice and/or prescribed summons.
6 The Returned Candidate appeared on 31 August 2012 before this Court but filed an Application for dismissal of the Election Petition on the ground that “He is not the person against whom the Election Petition is filed”. It was resisted by the Election Petitioner and an Application was filed for amendment/correcting the name stating it to be a typographical error. Both the Applications were heard and by order dated 30 November 2012, Application No.5 of 2012 was dismissed by observing as under:“
2
