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2019 Supreme(All) 1661
IN THE HIGH COURT OF ALLAHABAD
ASHOK KUMAR, J.
Rakesh Agarwal - Appellant
Versus
Arun Kumar and Another - Respondent
Election Petition No. 14 of 2017
Decided On : 04-09-2019
Advocate Appeared:
In Person, Adv., Mayank Agarwal, Adv., Mayank Kumar Agrawal, Adv., Rakesh Agarwal, Adv., Ankit Saran, Adv., K.R. Singh, Adv., Siddhart Singhal, Adv.
Non-compliance with the mandatory provisions of the Representation of People Act, 1951, regarding the copies of the election petition led to the dismissal of the petition under Section 86 of the Act.
Headnote:
Election Petition - Disqualification - [Election Petition] - [Representation of People Act, 1951, Section 81(3), Section 86] - The court dismissed the election petition for non-compliance with Section 81(3) of the Representation of People Act, 1951, which requires every election petition to be accompanied by as many copies as there are respondents, and every such copy to be attested by the petitioner under his own signature to be a true copy of the petition. The failure to provide the correct copies of the election petition to the respondent led to the dismissal of the petition under Section 86 of the Act.
Fact of the Case:
The petitioner filed an election petition arising from the election to 124 Bareilly City Assembly Constituency, alleging that the respondent no. 1 committed corrupt practice of undue influence upon the Returning Officer, resulting in the rejection of the petitioner's nomination paper. The petitioner claimed that the rejection of his nomination paper was uncalled for and arbitrary.
Finding of the Court:
The court found that the copies of the election petition served upon the respondent no. 1 did not comply with the mandatory provisions of Section 81(3) of the Representation of People Act, 1951, as they were not attested by the petitioner to be true copies of the original petition. As a result, the court dismissed the election petition under Section 86 of the Act.
Issues: The main issue was the non-compliance with Section 81(3) of the Act, which led to the dismissal of the election petition.
Ratio Decidendi: The court held that the failure to provide correct copies of the election petition to the respondent no. 1 amounted to non-compliance with Section 81(3) of the Act, which mandated the dismissal of the election petition under Section 86 of the Act.
Final Decision: The court dismissed the election petition under Section 86 of the Representation of People Act, 1951, with a cost of Rs.25,000 to be deposited with the registry of the Court.
JUDGMENT :
ASHOK KUMAR, J.
1. This election petition has been filed by the petitioner arising out of election to 124 Bareilly City Assembly Constituency held in March, 2017 and the result of which was declared in which the respondent no. 1 was declared elected.
2. Brief facts of the case are that the petitioner has filed the nomination paper to contest the election to 124 Bareilly City Assembly Constituency. The petitioner claims that he has deposited security amount and has also submitted his detailed affidavit, additional affidavit and the revised affidavit.
3. The petitioner claims that he opened a fresh bank account and had complied all other conditions as instructed by the returning officer.
4. It is submitted by the petitioner that on 30.01.2017 the Returning Officer has rejected his nomination on the ground that in the revised affidavit in part 'Kha', in Column 8 Kha (iii)' Columns 5,6,7 and 8 are left blank by the petitioner. The petitioner claims that there was no concealment as alleged.
5. The petitioner therefore claims that the omission in part A, as pointed out by the Returning Officer, may be fatal but not in part B, which is exclusively founded on part A.
6. He therefore claims that in view of the aforesaid, the affidavit filed by the petitioner can not be treated either incomplete or defective therefore the rejection of nomination paper by the Returning Officer was uncalled for and arbitrary as such dictatorial exercise of power.
7. The nomination paper of the petitioner was scrutinized by the Returning Officer and the Returning Officer has found that the same was inadequate and incomplete, hence the same was rejected.
8. The objection filed by the petitioner dated 30.01.2017 against the rejection of his nomination was dealt with by the Returning Officer and the Returning Officer has reiterated his decision rejecting the nomination paper filed by the petitioner holding that the petitioner is disqualified to be chosen to fill the Assembly seat in question.
9. The respondent no. 1 was declared elected.
10. Against the order declaring the respondent no. 1 as elected Member of Legislative Assembly the present election petition has been filed by the petitioner with the allegation that the respondent no. 1 committed corrupt practice of undue influence upon the Returning Officer as a result of which the petitioner's nomination paper was rejected.
11. This election petition was nominated to this Court by Hon'ble the Chief Justice and thereafter the same was listed with the consent of the respective parties on 22nd September, 2017. After 22.09.2017 the petition was not listed on the date fixed as such was listed only on 02.02.2018 with the office report.
12. On the request of the petitioner, who appeared personally, the notice was issued to the respondent no. 1 under Rule 5 of Chapter XV-A of the Rules of the Court. Office was directed to send the notice through R.P.A.D. and the matter was directed to be listed on 23.03.2018. The office has submitted its report dated 23.03.2018. The office report indicates that neither the acknowledgement nor undelivered notices has been returned back.
13. The petition thereafter has been taken up on 06.04.2018 when an amendment application has been filed on behalf of the petitioner by one Sri Arvind Singh, who claims that he is the clerk of the counsel who has filed the vakalatnama on behalf of the petitioner.
14. In the said affidavit, it has been mentioned that the respondent no. 1 has shifted his clinic to other place and therefore it was prayed (in the said amendment application/affidavit) that the details of the respondent no. 1 requires the amendment in the original election petition as also the new addresses.
15. The petitioner was present when the aforesaid proceedings were taken up.
16. During the aforesaid proceedings the counsel has filed the vakalatnama on behalf of the respondent no. 1 and since the averments of the amendment application / affidavit were doubtful, it was directed by the Co
