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1996 JLJ 762
D.P.S. Chouhan, J.
Pawan Diwan v. Shri Vidya Charan Shukla
Ele. Petn. No.2 of 1990; Decided on 22.9.1995.
The Returning Officer of Mahasamund Parliamentary Constituency be ordered to produce for re-counting all the votes and ballot papers of that constituency and after independent re-counting, the petitioner be declared as duly elected from that Constituency.
Held: The prayer relating to first relief has ceased to be a living issue and the cause of action qua the relief No. 1 has ceased to survive. In view of this, so far as the election petition is concerned, the relief for the recount of ballot papers and consequent whereupon if valid ballot papers come out in excess of respondent No.1, declaration of the petitioner as having been duly elected to the Parliament having rendered infructuous as a consequence of dissolution of the Parliament, during the pendency of the election petition, cannot be granted as the respondent No. 1 is continuing member of the Lok Sabha not on the basis of the impugned election held in 1989 but on the basis of subsequent election held in 1991. AIR 1969 SC 1024, AIR 1993 SC 1662 and AIR 1974 SC 505 distinguished. AIR 1987 SC 1577 and AIR 1986 SC 1253 followed. [Paras 1 & 14
(2) Words and Phrases -- word "void" -- means: null, in-effectual, nugatory, having no legal force or binding effect -- situation or state of affairs which ms empty because it has no interest, excitment or value. Black‘s Law Dictionary and Collins Cobuild English Language Dictionary relied on. [Para 12
(3) Representation of the People Act, 1951 -- Ss. 8A and 99 -- election petition -- High Court has to pass orders in accordance with S. 99 -- debar from‘ election can be ordered by the President under S. 8A -- High Court does not act as commission.
The High Court does not act as a Commission under the Commissions of Enquiry Act, 1952 for recording finding, leaving action for the President of India. President of India cannot figure himself in the justice processing, delivery system and thereby in judicial review process. The provision under section 99 of the Act read with section 8A, prima facie, erodes upon the basic feature of the Constitution and independence of the Judiciary. However here there is neither any such challenge nor could such a challenge be given in the election petition. AIR 1978 SC 409 followed. [Para 20
(4) Representation of the People Act, 1951-- Ss. 83 proviso, 123 and Form 25 -- allegations of corrupt practice made in election petition -- no particulars of corrupt practice disclosed -- affidavit also not in accordance withform 25 and rules of High Court not observed -- source of information also not disclosed -- no petition can be tried on the point.
The real importance of setting out the source of information at the time of presentation of the petition is to give the other side notice of the contemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the source of information. The other point of view is that the election petitioner will not be able to make any departure from the sources or grounds. If there is any embellishment of the case it will be discovered.
It may be noticed that the filing of the affidavit along with the election petition in cases where the allegations of corrupt practices are made is a must and the affidavit has to be in Form No. 25 with the addition recording source of information.
The necessity of affidavit is of course to constitute a charge regarding corrupt practice provided under section 123 of the Act. 1973 JLJ 6 (SC), AIR 1955 SC 233, AIR 1952 SC 317, AIR 1967 SC 295 and AIR 1970 SC 652 followed, [Paras 24 and 27
¼1½ yksd çfrfuf/kRo vf/kfu;e] 1951 & /kkjk 83 rFkk 84 & eri=ksa dh iquxZ.kuk ds vk/kkj ij fuokZpu ;kfpdk & fuokZfpr ?kksf"kr fd, tkus dh Hkh bZIlk & ;kfpdk ds yacudky esa lnu fo?kfVr & thfor ç’u ugha jg tkus ls ;kfpdk foQy gks tkrh gSA egkleqanz lalnh; fuokZpu {ks= ds fjVfu±x vkQhlj dks ml fuokZpu {ks= ds leLr eri= iqux.kZuk gsrq çLrqr djus ds fy, vkfn"V fd;k tk, rFkk Lora= iqux.kZuk ds i‘pkr~ ;kph dks ml fuokZpu {ks= ls lE;d~ :i ls fuokZfpr ?kksf"kr fd;k tk,A vfHkfu/kkZfjr % çFke vuqrks"k ds laca/k esa çkFkZuk thfor ç’u ugha jg xbZ gS rFkk okn gsrqd vuqrks"k Ø-1 dh fLFkfr ds vuqlkj] cpk ugha gSA bl n`f"V ls] tgk¡ rd fuokZpu ;kfpdk dk ljksdkj gS] eri=ksa dh iquxZ.kuk dk vuqrks"k vkSj mlds ifj.kke Lo:i ;fn eri= çR;FkhZ Ø-1 ds ls vf/kd ik, tkrs gSa] ;kph dk lE;d :i ls llan ds fy, fuokZfpr ?kksf"kr fd;k tkuk tks fuokZpu ;kfpdk yafcr jgus ds nkSjku llan fo?kfVr gks tkus ds dkj.k foQy gks tkus ls çnku ugha fd;k tk ldrk D;ksafd çR;FkhZ Ø-1 dh yksdlHkk dh lnL;rk 1989 esa gq, vkf{kIr fuokZpu ds vk/kkj ij ugha fdarq 1991 esa gq, i‘pkrorhZ fuokZpu ds vk/kkj ij pkyw gSA , vkb vkj 1969 ,l lh 1024] , vkb vkj 1993 ,l lh 1662 rFkk , vkb vkj 1974 ,l lh 505 çHksfnrA , vkb vkj 1987 ,l lh 1577 rFkk , vkb vkj 1986 ,l lh 1253 vuqlfjrA ¿iSjk 1 rFkk 14 ¼2½ ‘‘kCn rFkk okD; & ‘‘kCn ^^‘kwU;** & vFkZ gS vÑr] vçHkkoh] fujFkZd] fof/kd cy vFkok vkc}dj çHkko ls jfgr & vofLFkr vFkok dk;Zdyki dh fLFkfr tks fjDr fn[kkbZ nsrh gS D;ksafd mlesa dksbZ fgr] çnhfIr vFkok ewY; ugha gSA CySd Ñr ykW fMD"kujh rFkk dksfyUl bafXy"k ySaXost fMD"kujh voyafcrA ¿iSjk 12 ¼3½ yksd çfrfuf/kRo vf/kfu;e] 1951 & /kkjk 8d rFkk 99 & fuokZpu ;kfpdk & mPp U;k;ky; vk;ksx ds :i esa dk;Z ugha djrkA fu"d"kZ vfHkfyf[kr djds dkjZokbZ Hkkjr ds jk"Vªifr ds fy, NksM+ dj] mPp U;k;ky; tk¡p vk;ksx vf/kfu;e] 1952 ds v/khu vk;ksx ds :i esa dk;Z ugha djrkA Hkkjr ds jk"Vªifr U;k; çfØ;k ifjnku ç.kkyh vkSj rn~}kjk U;kf;d iqujh{k.k çfØ;k esa Lo;a vo;o ugha cuk ldrsA vf/kfu;e dh /kkjk 8d ds lkFk ifBr /kkjk 99 ds v/khu mica/k lafo/kku dh vk/kkjHkwr fo’ks"krk vkSj U;k;ikfydk dh Lora=rk ds fy, {k;dkjh gSA rFkkfi] ;gk¡ ,slk vk{ksi ugha fd;k x;k gS vkSj fuokZpu ;kfpdk esa ,slk vk{ksi fd;k Hkh ugha tk ldrk FkkA , vkb vkj 1978 ,l lh 409 vuqlfjrA ¿iSjk 20 ¼4½ yksd çfrfuf/kRo vf/kfu;e] 1951 & /kkjk 83 ijarqd] 123 rFkk ç:i 25 & fuokZpu ;kfpdk esa Hkz"Vkpkj dk vfHkdFku & Hkz"Vkpkj ds C;kSjs crk, ugha x, & ‘kiFki= Hkh ç:i 25 ds vuqlkj ugha rFkk mPp U;k;ky; ds fu;eksa dk ikyu ugha & lwpuk dk L=ksr Hkh crk;k ugha x;k & ml ç’u ij ;kfpdk ij fopkj.k ugha gks ldrkA ;kfpdk miLFkkfir djrs le; lwpuk ds L=ksr fufnZ"V djus dk okLrfod egRo] nwljs i{k ds ledkyhu lk{; dh lwpuk nsus ds fy, gS ftl ij fuokZpu ;kfpdk vk/kkfjr gSA mlls nwljs i{k dks lwpuk ds L=ksr dh vlyh;r vkSj lR;rk dh ij[k djus dk volj çkIr gksrkA vU; n`f"Vdks.k ;g gS fd fuokZpu ;kfpdkdrkZ L=ksrksa vkSj vk/kkjksa ls fopyu ugha dj ldsxkA ;fn i{kdFku lq/kkjk x;k gks] rc mldk irk py ldsxkA ;g /;ku fn;k tk, fd mu ekeyksa esa tgk¡ Hkz"Vkpkj dk vfHkdFku fd;k x;k gS] fuokZpu ;kfpdk ds lkFk ‘kiFki= Qkby fd;k tkuk vko";d gS vkSj ‘kiFki= ç:i 25 esa lwpuk dk L=ksr vfHkfyf[kr djrs gq, gksuk gksrk gSA ‘kiFki= dh vko";drk] fuLlansg] Hkz"Vkpkj ds ckjs esa vf/kfu;e dh /kkjk 123 ds v/khu vkjksi xfBr fd, tkus ds fy, gSaA 1973 ts ,y ts 6 ¼mPpre U;k-½] , vkb vkj 1955 ,l lh 233] , vkb vkj 1952 ,l lh 317] , vkb vkj 1967 ,l lh 295 rFkk , vkb vkj 1970 ,l lh 652 vuqlfjrA ¿iSjk 24 rFkk 27
1. Pawan Diwan, the petitioner in the present election petition, having lost the battle of ballots as against Shri Vidya charan Shukla (Respondent No.1) in the general elections for parliament held on 22nd November, 1989 from Mahasamund Parliamentary Constituency No. 18, has challenged his election seeking following reliefs :-
"(1) The Returning Officer of Mahasamund Parliamentary Constituency be ordered to produce for re-counting all the votes and ballot papers of that constituency and after independent re-counting, the petitioner be declared as duly elected from that Constituency.
(2) The declaration of respondent No. 1 as the duly elected candidate from Mahasamund Parliamentary Constituency in the last election be declared void.
(3) Such other relief as the Court thinks fit may also kindly be granted." The petitioner was a candidate at the said election sponsored by Congress-I political party whereas the respondent No.1 was the candidate sponsored by Janta Dal political party.
2. The controversy in the present petition, as survives, is in a circumscribed limit on account of subsequent developments whereover parties are not at vanance :
Parliament as constituted after general elections held in November, 1989 before could run its full term met its dissolution sometime in March, 1991 and as a resultant whereof fresh poll for Parliament took place in May, 1991 whereat the respondent No. 1 having contested afresh from the very constituency got re-elected for the Parliament.
3. Heard the learned counsel for the petitioner, Shri R.K. Pandey, Senior Advocate and the learned counsel for the respondent No.1 Shri V.K. Tankha.
4. The question for determination at present as per submissions advanced by the learned counsel for the respondent No. 1 is regarding the survival of the election petition and its maintainability wherefor though the facts, which are undisputed, have relevance but only peripheral:
(a) The elction petition (for brevity hereinafter referred to as 'the petition') was filed in this Court on 9.1.1990 whereupon this Court on 23rd January, 1990 passed an order adjourning the petition for 24th January, 1990 for the purpose of hearing on the question whether the provisions of sections 81, 82 and 117 of the Representation of People Act have been complied-with in respect of the petition and the Court having found that the provisions of sections 81, 82 and 117 of the Representation of People Act, 1951 (for brevity hereinafter referred to as 'the Act') appear to have been substantially complied-with directed for issuance of notices to the respondents. Respondents No.1 to 9 were duly served with the notice of the petition though on different dates but remain unrepresented except respondent No. 1, who filed his written statement on 10.5.1991.
(b) On 12.7.1991 learned counsel for the petitioner prayed for time for making a statement, in view of the changed circumstances, whether the petitioner would like to prosecute the petition which led to the postponement of the case for 29.7.1991, on which date further time was allowed posting the petition for 30.8.1991 but again the petition was adjourned, at the request of the learned counsel for the respondent No.1, for 27.11.192. In view of the earlier order dated 29.7.91, the learned counsel for the petitioner was directed to inform finally to the Court as to whether he would like to prosecute the petition, wherefor after providing an opportunity on 7.1.193, posted the petition for 11.2.93. On 17.9.93 the Court was informed that there had been negotiations between the petitioner and respondent No. 1 in connection with the compromise but they reached to no compromise and the petition as such to continue. From said facts it discerns that some bargaining deal was being in process but could not materialise.
(c) On On 24.9.1993 the petition was directed to be listed on 18.10.93 for orders on LA. No. 65/91 moved by respondent No. 1 under Order 7, Rule 11 read with section 151 of the
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