# Sarvesh Kumar Gupta v. Dr. Neeraj Bora

- **Citation:** (2023) 2 ILRA 387
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-25
- **Case number:** Election Petition No. 9 of 2022
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarvesh-kumar-gupta-v-dr-neeraj-bora-49672
- **Pages:** 18

## Headnote

Dr. Shailendra Sharma, Anupriya Srivastava,
Kaushlendra Yadav, Shitesh Jha

A.
Election
Petition-Representation
of
People Act, 1951-Section 6 - Allahabad
High Court Rules, 1952-Rules 5, 6, 6(c) -
non-compliance
of
rule
6(c)-In
the
present case petitioner has not followed
the rule 6© regarding publication which is
mandatory-petitioner refused to deposit
the amount required for publication and
he may not be exempted from such
publication-the present election petition
itself is not maintainable.( 1 to 26)

B. Section 81(3) of RP Act provides for
filing an election petition along with the
copies attested by the petitioner-Section
86 of RP Act provides that failure to
comply with the provisions of section 81
would result in rejection of election
petition at the initial stage.(23,24)

The petition is dismissed.(E-6)

List of Cases cited:
388 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,942 of 62,542. This is a partial read: ask again with offset=39942 for what follows._

2 All. Sarvesh Kumar Gupta Vs. Dr. Neeraj Bora
387
scrutinised the evidence on record very
carefully and in proper manner and on the
basis of cogent and reliable evidence
available on record the conviction of the
appellants has been recorded and they have
been sentenced properly.

64. The learned trial court has
meticulously analyzed the documentary
and oral evidence available on record and
also referred relevant case laws in the
impugned judgment. We have no hesitation
to hold that there is no material lacuna or
misreading of evidence on the part of the
trial court and we have no option but to
concur with the learned trial court with its
conclusion to record the conviction of the
appellants.

65. Upon careful analysis and
consideration
of
the
settled
legal
position in the backdrop of the facts and
circumstances of the present case, we are
of the opinion that the conclusion given
by the learned trial court in the
impugned judgment and order is in
accordance with law and the evidence
available on record. Thus, this Court is
of the view that the prosecution has been
able to establish the guilt of accused
appellants under Section 302 IPC read
with Section 34 IPC beyond reasonable
doubt and to the satisfaction of the
judicial conscience of the Court.

66. The impugned judgment of
conviction and sentence, which has been
sought to be assailed, is well thought and
well discussed and same, warranting no
interference, is liable to be upheld and
appeals having no force are liable to be
dismissed. Accordingly, the impugned
judgment and order is upheld and the
appeals are dismissed.

67. Let a copy of this judgment along
with trial court record be sent to the Court
concerned,
Ghaziabad
for
necessary
compliance.
----------
(2023) 2 ILRA 387
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Election Petition No. 9 of 2022

Sarvesh Kumar Gupta ...Petitioner
Versus
Dr. Neeraj Bora ...Respondent

Counsel for the Petitioner:
Shraddha Tripathi, Pawan Kumar Upadhyay

Counsel for the Respondents:
Dr. Shailendra Sharma, Anupriya Srivastava,
Kaushlendra Yadav, Shitesh Jha

A.
Election
Petition-Representation
of
People Act, 1951-Section 6 - Allahabad
High Court Rules, 1952-Rules 5, 6, 6(c) -
non-compliance
of
rule
6(c)-In
the
present case petitioner has not followed
the rule 6© regarding publication which is
mandatory-petitioner refused to deposit
the amount required for publication and
he may not be exempted from such
publication-the present election petition
itself is not maintainable.( 1 to 26)

B. Section 81(3) of RP Act provides for
filing an election petition along with the
copies attested by the petitioner-Section
86 of RP Act provides that failure to
comply with the provisions of section 81
would result in rejection of election
petition at the initial stage.(23,24)

The petition is dismissed.(E-6)

List of Cases cited:
388 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Dr. Vijay Laxmi Sadho Vs Jagdish (2001) AIR
SC 600

2. Saritha S. Nair Vs Hibi Eden SLP (Civil) No
10678 of 2020

3. T.M. Jacob Vs C. Poulose & ors. in Appeal
(Civil) No. 1455 of 1996.

4. Murarka Radhey Shyam Kumar Vs Roop
Singh Rathore & ors. (1964) AIR 1545

5. Lal Bahadur Vs Ritesh Pandey (2021) ILR 10
All 653; Election Petition No. 01 of 2019

6. Dr. Mohammad Ismail Faruqui Vs Shri
Rajnath Singh : Election Petition No. 5 of 2014)

7. Sheodhan Singh Vs Mohan Lal Gautam
(1969) 3 SCR 417 at p. 421: (AIR) 1969 SC
1024 at p. 1026)

8.
K.K.
ramachandran
Master
Vs
M.V
Sreyamakumar (2010) 7 SCC 428

9. Uday Shankar Triyar Vs Ram Kalewer Prasad
Singh & anr.. (2006) 1 SCC 75

10. InamatiMallappaBasappa Vs Desai Basavaraj
Ayyappa& ors. AIR 1958 SC 698

11. Kamaraja Thevar Vs Kanju Thevar, Civil
Appeal No. 763 & 764 of 1957 :Civil Appeal No.
48 of 1958 (AIR 1958 SC 687)

12. Dr. P Nalla Thampy Thera Vs B.L. Shanker &
ors. AI 1984 SC 135.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

(i) C.M. Application (IA) No.01 of
2022; the objection against the letter
dated 07.05.2022 issued by the Hon'ble
Registrar dated 07.05.222 in compliance
of order dated 27.04.2022 demanding the
petitioner to deposit the amount of
Rs.94500/-
regarding
publication
of
notice of the Election Petition perferred
by the petitioner.

(ii) C.M. Application (IA) No.02 of
2022;
Application
for
taking
Vakalatnama on record filed by Dr.
Shailendra Sharma, learned counsel for
the opposite party.

(iii) C.M. Application (IA) No.03 of
2022; Application / preliminary objection
for rejection / dismissal of Election
Petition No.09 of 2022 on behalf of
respondent under Section 86 (1) read
with Section 87 (1) of the Representation
of the People Act, 1951 along with Order
VII Rule 11 (a) of the Code of Civil
Procedure, 1908 (5 of 1908) against the
maintainability of the Election Petition.

(iv) C.M. Application (IA) No.04 of
2022; Application for taking of reply of
objection filed by the Respondent.

1. Heard Ms. Shraddha Tripathi,
learned counsel for the petitioner and Dr.
Shailendra Sharma, learned counsel for the
sole respondent/ opposite party.

2. By means of the present election
petition, the petitioner has prayed that the
election of Assembly Constituency 172
Lucknow, North of returned candidate Dr.
Neeraj Bora, the opposite party, which was
declared on 10.03.2022 may be declared as
void and set aside. Consequential order
may also be passed in the interest of justice.

3. On the first date of admission, on
27.04.2022 this Court has passed the
following order:-

"Heard Ms. Shraddha Tripathi, learned
counsel for the election petitioner.

Issue notice to respondent in terms of
Chapter XV-A Rule 5 & 6 of Allahabd
High Court Rules.

Steps be taken to serve respondent
within seven working days.

List after service of notice."
2 All. Sarvesh Kumar Gupta Vs. Dr. Neeraj Bora
389

4. Chapter-XV-A of Allahabad High
Court Rules,1952 (here-in-after referred to
as the "Rules, 1952") defines special
provisions relating to the trial of election
petition. Since the notice is issued to the
opposite party in terms of Rules 5 & 6 of
the Rules,1952, therefore, for convenience,
Rules 5 & 6 are being reproduced here-inbelow:-

"5. Issue of notice to respondent.-
The election petition shall be laid before
the Bench so constituted without delay, and
unless it is dismissed under sub-section (1)
of Section 86 of the Act or for being
otherwise defective, the Bench may direct
issue of notice to the respondent to appear
and answer the claim on a date to be
specified therein. Such notice shall also
direct that if he wishes of put up a defence
he shall file his written statement together
with a list of all documents, whether in his
possession or power or not, upon which he
indents to rely as evidence in support of his
defence on or before the date fixed; and
further, that in default of appearance being
entered on or before the date fixed in the
notice the election petition may be heard
and determined in his absence. The notice
shall be in Form No.34-A.

6. Process fee and charges.- (a)
Notice for the respondent shall issued by
ordinary process and simultaneously by
registered post.

(b) Notice of the election petition shall
also be simultaneously published in a
newspaper selected by the Registrar.

(c) Notices, process fee, charges and
[a sum of Rs.250] as an initial deposit on
account of the cost of publication in a
newspaper shall be supplied by the
petitioner within seven days of the order
directing notice to issue. In default, the
election petition shall be laid before the
Bench for orders. The Bench may reject the
election petition unless for sufficient cause
if grants further time.

(d) Where the cost of publication in a
newspaper exceeds Rs.50 the Registrar
shall call upon the petitioner to deposit the
excess amount in Court within the time to
be fixed by him. On failure of the petitioner
to deposit such costs, the petition shall be
laid before the Bench for such orders as the
Bench may think fit. In case the cost of
publication is less than Rs.50 the petitioner
shall be entitled to a refund of the amount
in excess."

5. For publication in the newspaper in
terms of Rule 6 (c) of the Rules, 1952, the
Senior Registrar has indicated in its order
dated 05.06.2022 that "let a notice be
published in Dainik Jagran, Lucknow
Edition a Hindi Daily Newspaper in
accordance with rules."

6. By means of an objection bearing
No.01 of 2022 filed in the Election Petition
No.09 of 2022, the petitioner filed an
objection on 13.05.2022 making request
that the petitioner may be exempted from
requirement of publication in terms of Rule
6 (c) of the Rules, 1952 stating therein that
the petitioner is incapable of making such a
huge payment i.e. Rs.94,450/- in the name
of publication in the newspaper because he
is a man of humble background and the
payment of such amount is beyond his
control and means, as recital to this effect
has been given in para-11 of such
objection.

7. Learned counsel for the petitioner
has referred the mandate of Section 6 of the
Representation of People Act, 1951 (herein-after referred to as the "Act, 1951") to
contents that the publication in the
newspaper has not been indicated in such
390 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1951, therefore, the petitioner may not
be compelled to deposit such a huge
amount for publication. She has further
stated that Rule 6 of the Rules, 1952 is
contrary to the provisions of Code of Civil
Procedure (in short C.P.C.) which is
applicable in the election petition under
Section 87 of the Act, 1951. She has also
stated that since the sole respondent has put
in appearance through counsel, therefore,
there is no purpose for publication and if
the petitioner is compelled to deposit an
amount in terms of Rule 6 (c) of the Rules,
1952, that would be meaningless and would
be a mockery of law as recital to this effect
has been given in para-10 of the objection
as well as in para-10 of her written
statement. In support of her submissions
she has cited the judgment of Apex Court
in Re: Dr. Vijay Laxmi Sadho vs. Jagdish
reported in AIR 2001 SC 600 referring
relevant portions of paras-16-A, 20, 21 &
22, which read as under:-

"16-A. Rule framed by the High Court
relating to trial of election petitions are
only procedural in nature and do not
constitute "substantive law". Those Rules
have to be read along with other statutory
provisions to appreciate the consequence of
non-compliance with the High Court Rules.
Article 329 (b) mandates that no election to
either House of Parliament or to either
House of the State Legislature can be called
in question except through an election
petition presented to such authority and in
such manner as is provided for by or under
any law made by the legislature. Section 81
of the Act deals with the presentation of an
election petition while Section 82 deals
with parties to the election petition and
Section 83 with contents of such a petition.

20. The question whether an election
petition drawn up in Hindi language is
maintainable
or
not
came
up
for
consideration before a learned Single Judge
of the High Court of Madhya Pradesh in
Election Petition No. 9 of 1980 titled
Devilal s/o. Shriram Khada vs. Kinkar
Narmada
Prasad
and
others.
While
rejecting
the
challenge
to
the
maintainability of the election petition
drawn up in Hindi language, it was said :-

"Now it is true that Rule 2(b) of the
aforesaid Rules does provide that every
election petition shall be written in the
English language. But in the absence of any
provision in the Act or the Rules made
thereunder, non compliance with Rule 2(b)
of the a oresaid Rules cannot be a ground
for dismissal of the petition under Section
86of the Act."

21. A contrary view was, however,
expressed by another Single Judge of that
High Court in Jai Bhansingh Pawaiya vs.
Shri Madhavrao Scindia. In this case it was
held that an election petition filed in Hindi
language being violative of Rule 2(b) of the
Rules, relating to filing of election
petitions, was not maintainable and was
liable to be dismissed under Section 86 of
the Act. The learned Single Judge opined
(para-25 of AIR):

22. The interpretation placed on rule 2
of the High Court Rules, giving it almost
primacy over Article 348 (2) of the
Constitution, in Jai Bhansingh's case to our
mind is fallacious. The learned single Judge
appears to have lost sight of the position
that Rules framed by the High Court in
exercise of powers under Article 225of the
Constitution of India are only rules of
procedure and do not constitute substantive
law and those rules cannot effect the import
of constitutional provisions contained in
Article 348(2) of the Constitution. The high
pedestal on which Rule 2(b) of the High
Court Rules has been placed in Jai
2 All. Sarvesh Kumar Gupta Vs. Dr. Neeraj Bora
391
Bhansingh's case, not only violates clear
constitutional
provisions
but
also
introduces a clause in Section 86of the Act
which does not exist. The entire approach
to consideration of the effect of the
notification issued under Article 348 (2)
appears to be erroneous. That apart, the
defect of not fling an election petition in
accordance with Rule 2(b) of the Rules is
not one of the defects which falls either
under Section 81, 82 of 117 of the Act so as
to attract the rigour of Section 86of the Act
as rightly held in Devilal's case (supra).

(emphasis supplied)

She has submitted that in view of the
aforesaid judgment of the Apex Court, the
election petition may not be rejected on
technical reasons.

8. Admittedly, by means of her
objection she has not prayed for any
alternative newspaper. In the wake of the
aforesaid objection of the petitioner he has
not deposited the amount which was required
for publication of notice. Thereafter, the Joint
Registrar (J) (N) submitted its report dated
29.06.202, which reads as under:-

"ELEP No.09 of 2022

As per office report dated 27.06.2022,
undelivered cover of registered post AD
notice issued to opposite party vide dispatch
No.3613 dated 04.05.2022 booked on
05.05.2022 has not been received back nor
any Vakalatnama has been filed.

Besides, this notice was also sent
through District Judge, Lucknow which was
received back with remark of process server
that notice is served in office of opposite
party to Himanshu Patni, Computer Operator.

On the basis of report of process
server and registered post AD service of
notice is sufficient upon opposite party.

Further, office has submitted that the
petitioner has not deposited the required
publication charges according to Rule 5 &
6 of Chapter XV-A of High Court Rules,
1952, hence,notice could not be published
in daily newspaper as per Rule 6 (b) of
Chapter XV-A of High Court Rules-1952.

Lay before the Hon'ble Court.

Joint Registrar (J) (N)

29.06.2022"

9. By means of C.M. Application (IA)
No.02 of 2022, Dr. Shailendra Sharma has
filed Vakalatnama on 28.07.2022. Vide
C.M. Application (IA) No.03 of 2022 Dr.
Sharma has filed a preliminary objection
for rejection/ dismissal of election petition
on the ground of maintainability.

10. Per contra, Dr. Shailendra
Sharma, learned counsel for the respondent
has stated that election petition does not
confer
the
mandatory
and
statutory
conditions, therefore, the same deserves to
be dismissed. He has stated that he has filed
objection seeking prayer that after disposal
of those objections, if need be, he may be
given time to file written submissions/
reply of the election petition. Dr. Sharma
has stated that the averments made in para1
of the election petition cannot be admitted
to the effect that the petitioner has not
contested the election of 172 Lucknow
North Assembly Constituency in the name
of Sri Sarvesh Kumar Gupta as such name
has been mentioned in the list of electoral
nominated candidates available on the
official
Website
of
the
Election
Commission of India. Further, Rule 3 of the
Rules 1952 provides that every election
petition shall be presented to the Registrar.
Rules 5 & 6 deals with the process of fees
and charges. In the light of the aforesaid
rules, if the petitioner has not taken steps
for publication in the newspaper which is
392 INDIAN LAW REPORTS ALLAHABAD SERIES
mandatory
requirement,
such
election
petition may be treated as defective
election petition and cannot be proceeded
on merits.

11. Dr. Sharma has further submitted
that Section 83 (1) (c) of the Act, 1951
provides that election petition shall be
signed by the petitioner and verified in the
manner laid down in the C.P.C. Section 83
(2) of the Act, 1951 further provides that
every annexure to the petition shall also be
signed by the petitioner and verified in the
same manner as prescribed. Order VI, Rule
15 of the C.P.C. explains for verification of
pleadings. As per Dr. Sharma, the aforesaid
mandatory exercise is missing in the
election petition inasmuch as the election
petition along with its all annexures,
supplementary affidavit has not been
signed and verified by the petitioner in the
manner provided by Section 83 (1) (c) and
83 (2) of the Act, 1951 read with Order VI
Rule 15 of the C.P.C.

12. Dr. Sharma has stated that the
main copy of election petition defers from
the additional copy appended with the
election petition and the copy provided to
the learned counsel for the respondent
inasmuch as in the main copy of election
petition there is no page number after
running page no.14, however, in the
additional copy the page number is there as
page No.15. Further, in original copy the
name of returned candidate has been typed
as Dr. Neeraj Bora whereas in the
additional copy the name of returned
candidate has been mentioned by cutting
the name of earlier person writing the name
through pen. As per Dr. Sharma, the
additional copy and the copy provided to
learned counsel for the respondent should
be same and identical with the main copy.
Further, the aforesaid anomalies may be
considered as fraud. If the petitioner wants
to change any averment or material of
election petition, the same may be done
with the prior leave of the court.

13. Replying to the aforesaid
submission of the respondent, learned
counsel for the petitioner has stated that the
defect of pagination is a minor defect not of
a vital nature and does not shed the nature
of true copy as required by Section 81 (3)
of the Act, 1951. Therefore, it does not
attract the effect of Section 86 (1) of the
Act, 1951. The absence of the page number
does not mislead the respondent.

14. As per Dr. Sharma, if the relevant
pages are perused then the relief claimed in
election petition appears entirely different
from relief claimed in mandatory additional
copy annexed with the original election
petition as the relevant pages indicate some
deletion and modification which was never
notarized.

15. Replying to the aforesaid
contention,
learned
counsel
for
the
petitioner has submitted that this is a
curable defect and has placed reliance upon
the case in re: Saritha S. Nair vs. Hibi
Eden. SLP (Civil) No.10678 of 2020 and
T.M. Jacob vs.C. Poulose & Ors in Appeal
(Civil) No.1455 of 1996. Further reliance
has been placed upon the case in re:
Murarka Radhey Shyam Kumar vs. Roop
Singh Rathore & Others reported in AIR
1964 1545 to submit that a copy in sub
Section 3 of Section 81 of the Act, 1951
does not mean an absolutely exact copy but
means that the true copy shall be so true
that nobody can by any possibility
misunderstand it.

16. Dr. Sharma has further submitted
that the averments made by the petitioner in
2 All. Sarvesh Kumar Gupta Vs. Dr. Neeraj Bora
393
Paragraphs 11 and 13 of the election
petition and annexure no. 7 to the petition
are contrary to each other and as such the
same is against the settled legal proposition
of the electoral law which clearly mandates
that an election petition must contain a
concise statement of material facts capable
of giving rise to a triable issue and
omission of a single material fact would
lead to an incomplete cause of action and
an election petition without material fact is
not an election petition at all under the
provisions of the Act and in such a situation
the instant election petition has failed to
meet
out
the
aforesaid
mandatory
requisitions of Section 83 (1). The very
basis of the election petition is the
objection dated 04.02.2022 (Annexure
No.3) is highly misconceived to the extent
that it has wrongly illustrated and quoted
Article 173 of the Constitution of India
and, as such, the alleged objection dated
04.02.2022 is not an objection since it is
defective in nature.

17. Dr. Sharma has also submitted
that moreover the issue raised by the
election petitioner in the instant petition
cannot be a subject matter for adjudication
by this Hon'ble Court, as the alleged cause
of action with regard to recognition of
political parties was existing much prior to
the notification of the Assembly Election of
2022 in the State of Uttar Pradesh as the
same is evident from the perusal of the
letter dated 02.04.2022 (Annexed at page
28), therefore, the election petition being
misconceived, is liable to be rejected.

18. Dr. Sharma has drawn attention of
this Court towards the judgment of this
Court dated 25.10.2021 delivered in
Election Petition No.01 of 2019; Lal
Bahadur vs. Ritesh Pandey reported in
(2021) ILR 10 All 653 by submitting that
almost identical controversy has been
considered by this Court and this Court has
rejected the application whereby the
exemption from publication was sought and
dismissed such election petition treating the
same as not maintainable. In the aforesaid
judgment, the relevant case laws of the
Hon'ble Supreme Court as well as Hon'ble
High Court have been considered from
both the sides. Therefore, the relevant
portion of judgment and order dated
25.10.2021 is reproduced here-in-below:-

"8. I have considered the submissions
made by the parties. In the judgment dated
17.07.2015 delivered in the case of (Dr.
Mohammad Ismail Faruqui vs. Shri
Rajnath Singh: Election Petition No.5 of
2014) also, the Court directed for service of
notice by other modes as well as by
publication in a newspaper. The petitioner
in the said case took steps for service
through ordinary post as well as by
registered post. He was informed the cost of
publication in chosen newspaper to be Rs.
9024/-.
The
petitioner
moved
an
application dated 8.4.2015, supported by
an
affidavit,
with
the
prayer
that
publication of notice in the news paper may
be dispensed with, on the ground that it
was not possible for him to arrange such
huge amount of money. In the said case
also a ground was taken that the
respondent otherwise also stands served
with the notice sent by registered post AD
and, thus, there is no necessity of
publication. This Court after considering
the submissions and the earlier settled law
held:

"The submissions advanced by the
petitioner and learned counsel for the
contesting
respondent
have
been
considered by the Court.

The first submission of the petitioner
that as the dispute is between the petitioner
394 INDIAN LAW REPORTS ALLAHABAD SERIES
and the sole respondent, the Court should
dispense with the publication of the notice
in the newspaper since the respondent is
represented by a counsel cannot be
accepted.

As noticed above, Rule 3 contained in
Chapter XV-A of the Rules provides that
every election petition shall be presented to
the Registrar. Rule 5 provides that the
Bench may direct issue of notice to the
respondent. Such notice shall also direct
that if the respondent wishes to put up a
defence he shall file his written statement
together with a list of all documents,
whether in his possession or power or not,
upon which he intends to rely as evidence
in support of his defence on or before the
date fixed; and further, that in default of
appearance being entered on or before the
date fixed in the notice the election petition
may be heard and determined in his
absence. Sub-rule (a) of Rule 6 provides
that notice for the respondent shall be
issued
by
ordinary
process
and
simultaneously by registered post. Sub-rule
(b) of Rule 6, however, provides that the
notice of the election petition shall also be
simultaneously published in a newspaper
selected by the Registrar. The Registrar had
selected a newspaper and the petitioner
was duly informed of this fact and the
amount that he was required to deposit for
publication of the notice. It is at that stage
that the petitioner moved an application for
dispensation of the publication of the notice
in the newspaper.

Dispute in an election petition is not
restricted to the petitioner and the
respondent alone but involves the entire
constituency and every interested person
should have notice of the presentation of
the election petition. This is what was
observed by the Supreme Court in Inamati
Mallappa Basappa vs. Desai Basavaraj
Ayyappa and others, AIR 1958 SC 698
(supra). The Supreme Court considered this
issue in the light of the unamended
provisions where the election petition was
required to be presented before the Election
Commission. The Supreme Court, after
placing reliance upon its earlier decisions,
observed that by publication of notice in
the official gazette not only the respondents
to the petition get notice but the entire
constituency as a whole receives such a
notice so that each and every voter of the
constituency and all parties interested
become duly aware of the presentation of
the
election
petition.
The
whole
constituency is thus alive to the fact that the
result of the election duly declared has
been questioned on various grounds with
the likely result that the election of all or
any of the returned candidates may be
declared void and the petitioner or any
other candidate declared duly elected in
place of the returned candidate. The
constituency, therefore, has a vital interest
in the proceedings before the Tribunal
which have a characteristic of their own
different
from
the
ordinary
civil
proceedings. Paragraphs 10 and 11 of the
judgment are reproduced below:

"10. It is necessary at the outset,
therefore, to understand the nature and
scope of an Election Petition. As has been
observed by us in the judgment just
delivered in Kamaraja Thevar v. Kunju
Thevar, Civil Appeals No.763 & 764 of
1957 and Civil Appeal No.48 of 1958 :
(A.I.R. 1958 S.C. 687) (A):-

"An election contest is not an action at
law or a suit in equity but is a purely
statutory proceeding unknown to the
common law and that the court possesses
no common law power."

......................

"An election petition is not a matter in
which the only persons interested are
candidates who strove against each other
2 All. Sarvesh Kumar Gupta Vs. Dr. Neeraj Bora
395
at the elections. The public also are
substantially interested in it and this is not
merely in the sense that an election has
news value. An election is an essential part
of the democratic process."

........................

"An election petition is not a suit
between two persons, but is a proceeding in
which the constituency itself is the
principal party interested."

.........................

11. An Election Petition presented to
the Election Commission is scrutinised by it
and if the Election Commission does not
dismiss it for want of compliance with the
provisions of Section 81, Section 82 or
Section 117 of the Act, it accepts the same
and causes a copy thereof to be published
in the official gazette and a copy thereof to
be served by post on each respondent. The
respondents to the petition not only get
notice of the same but the constituency as
a
whole
receives
such
notice
by
publication thereof in the official gazette
so that each and every voter of the
constituency and all parties interested
become duly aware of the fact of such
Election Petition having been presented. A
copy of the Election Petition published in
the official gazette would also show to all
of them that the petitioner in a particular
Election Petition, in addition to claiming a
declaration that the election of all or any of
the returned candidates is void, has also
claimed a further declaration that he
himself or any other candidate has been
duly elected. The whole constituency is
thus alive to the fact that the result of the
election duly declared is questioned on
various grounds permitted by law with the
likely result that the election of all or any
of the returned candidates may be
declared void and the petitioner or any
other candidate may be declared duly
elected, in place and stead of the returned
candidate. The constituency may have an
interest in either maintaining the status quo
or if perchance the election of the returned
candidate is set aside, in seeing that some
other deserving candidate is declared
elected in his place and stead and not
necessarily the petitioner or any other
candidate sponsored by him whose election
could be challenged on any of the grounds
mentioned in Section100 (1). It is this
interest of the constituency as a whole
which invests the proceedings before the
Election Tribunals with a characteristic of
their own and differentiates them from
ordinary civil proceedings. ................."

(emphasis supplied)

This view was reiterated by the
Supreme Court in Dr. P. Nalla Thampy
Thera vs. B.L. Shanker and others, AIR
1958 SC 135 (supra) and the contention
that the view taken by the Supreme Court in
Inamati Mallappa Basappa (supra) that the
election
dispute
involves
the
entire
constituency was not correct was not
accepted. The relevant paragraph 22 of the
decision in Dr. P. Nalla (supra) is
reproduced below:

"22. The ratio of this decision as also
the observations in Basappa's case (AIR
1958 SC 698), the appellant contends are,
wrong in view of the earlier decisions of
this Court taking the view that an election
dispute involves the entire constituency
because of the paramount necessity of
having purity of an election in a democracy
safeguarded.
We
do
not
think
the
appellant's contention can be accepted. The
earlier decisions of this Court do not in any
way militate against the view taken in
Dhoom Singh's case (supra) and the
observations made in Basappas's case
(supra).
Those
decisions
were
not
concerned with the question as to whether
an election petition can be dismissed for
396 INDIAN LAW REPORTS ALLAHABAD SERIES
default. The consensus of judicial opinion
in this Court has always been that the law
in regard to elections has to be strictly
applied and to the extent provision has not
been made, the Code wold be applicable.
About eight years back this Court had
occasion to point out that if the intention of
the legislature was that a case of this type
should
also
be
covered
by
special
provision, this intention was not carried out
and there was a lacuna in the Act. We find
that even earlier in Sheodhan Singh v.
Mohan Lal Gautam, (1969) 3 SCR 417 at
p. 421: (AIR 1969 SC 1024 at p. 1026),
this Court had stated:

"From the above provisions it is seen
that in an election petition, the contest is
really between the constituency on the one
side and the person or persons complained
of on the other. Once the machinery of the
Act is moved by a candidate or an elector,
the carriage of the case does not entirely
rest with the petitioner. The reason for the
elaborate provisions noticed by us earlier
is to ensure to the extent possible that the
persons who offend the election law are not
allowed to avoid the consequences of their
misdeeds"

(emphasis supplied)

In view of the aforesaid observations
made by the Supreme Court in Inamati
Mallappa Basappa (supra) and Dr. P. Nalla
(supra) that dispute in an election petition
is not centered around merely between the
petitioner and the respondents but the
entire constituency, the publication of the
notice in the newspaper is necessary. The
contention of the petitioner that the
publication of the notice in the newspaper
should be dispensed with since the
respondent
has
been
served
cannot,
therefore, be accepted.

The second contention of the petitioner
is that since the petitioner does not have
the means to pay the cost for publication in
the newspaper selected by the Registrar of
the Court, the Court can order for deferred
payment as was done in Election Petition
No.4 of 2014.

It is not possible to accept this
contention of the petitioner. Rule 6(b),
clearly requires notices of the election
petition to be simultaneously published in
the newspaper selected by the Registrar.
Rule 6(c) also requires that notices, process
fee, charges and a sum of Rs.250/- as an
initial deposit on account of cost of
publication in the newspaper shall be
supplied by the petitioner within seven days
of the order directing notice to issue. Even
this amount was not deposited by the
petitioner. Rule 6(d) also requires that
where the cost of publication in the
newspaper exceeds Rs.50/-, the Registrar
shall call upon the petitioner to deposit the
excess amount in the Court within the time
fixed by him. The Registrar had called
upon the petitioner to deposit Rs.9024/-.

As noticed above, while dealing with
the first contention of the petitioner, it has
been
found
that
publication
in
the
newspaper is to ensure that the entire
constituency is made aware of the pendency
of the election petition. In this view of the
matter deferred payment would not serve
any purpose. The submission of the
petitioner that even the amount of Rs.250/-
which is required to be deposited in terms
of Rule 6(c) is on higher side, cannot also
be accepted as this is certainly less than the
amount that is actually required for
publication of the notice.

This election petition was presented
before the Registrar of the Court on 27
June 2014. Notice was issued on 6
February 2015. The Court has to be
satisfied that the grounds mentioned by the
petitioner in the application filed for
dispensing the publication of the notice in
the newspaper are bona fide grounds and
2 All. Sarvesh Kumar Gupta Vs. Dr. Neeraj Bora
397
the intention behind moving of the
application is not to merely avoid the
deposit of the amount for publication in the
newspaper. Rule 6(c) provides that notices,
process fee, charges and a sum of Rs.250/-
as an initial deposit on account of the cost
of publication in a newspaper shall be
supplied by the petitioner within seven days
of the order directing notice to issue. Rule
6(c) further provides that in default, the
election petition shall be laid before the
Bench for orders and the Bench may reject
the election petition unless for sufficient
cause it grants further time. The Court is of
the opinion that sufficient cause has neither
been placed nor does it exist for dispensing
with the publication of the notice in the
newspaper
and
that
by
filing
the
application,
the
petitioner
is
merely
avoiding the deposit of amount for
publication in the newspaper.

The application filed by the petitioner
for dispensation with the publication of the
notice in the newspaper is, therefore,
without any substance and deserves to be
rejected.

Thus, for all the reasons stated above,
Civil Misc. Application No.32181 of 2015
filed by the petitioner for dispensing with
the publication of the notice in the
newspaper is rejected.

As a result of the rejection of the
application, the election petition stands
dismissed."

9. The aforesaid case squarely covers
the
present
case.
The
necessity
of
publication is duly considered by the
Supreme Court and is reiterated by this
Court. The failure in publication goes to
the root of the matter.

10. In the present case, the petitioner
has failed to take steps for publication of
notice. The first ground taken by the
petitioner for seeking exemption from
publication of notice is that the respondent
stands served. The said aspect is fully
covered by the judgment in the case of Dr.
Mohammad Ismail Faruqui (supra), as
discussed above.

11. So far as the next submission of the
petitioner, that, the Senior Registrar had
taken the quotation from Dainik Jagran,
Lucknow office instead of Dainik Jagran,
Ambedkar Nagar office, is concerned, in
case the petitioner had any such objection,
he ought to have raised the same at
appropriate
time
before
the
Senior
Registrar
or
moved
an
appropriate
application before the Court. He failed to
take any such steps. Even now, when it was
pointed
out
by
the
respondent,
the
petitioner has only moved an application
for exemption from publication. There is no
prayer made by the petitioner that he is
ready and willing to deposit the money for
publication. Even during the course of
arguments, the petitioner, submitting his
case in person, did not reply to the query of
the Court, whether he is now willing to
deposit the money for publication of notice.
His only reply has been that now there is no
need for publication of notice.

12.
In
the
given
facts
and
circumstances of the case, I find that the
petitioner has failed to comply with the
orders dated 18.7.2019 and 23.9.2019 of
this Court for publication of notice. He has
not sought any condonation of delay in
complying with the said orders of the court
or shown willingness to make publication
even now. Rather he has only sought an
exemption from publication of notice. The
said exemption cannot be granted by this
Court as is already settled by this Court in
the case of Dr. Mohammad Ismail Faruqui
(supra) and judgments of the Supreme
Court referred to in the said case.

27. I have considered the submissions
of the parties. The Supreme Court has
repeatedly considered the law with regard
398 INDIAN LAW REPORTS ALLAHABAD SERIES
to curable and incurable defects of an
election petition. Lastly, in the case of
Saritha S. Nair vs. Hibi Eden, 2020 SCC
Online SC 1006 (SLP (Civil) No.10678 of
2020 dated 9.12.2020), a three Judges
Bench of the Supreme Court, referring to its
earlier pronouncements, again considered
the said issue. Relevant paragraphs for our
purposes read:

"21.
Chapter-II,
Part-VI
of
the
Representation of the People Act, 1951,
contains provisions for "Presentation of
election petitions to High Court" and
Chapter III contains provisions for "Trial of
election petitions". Section 86(1), with which
Chapter-III begins, obliges the High Court to
dismiss an election petition which does not
comply with the provisions of Section 81 or
Section 82 or Section 117. The dismissal of
an election petition under Section 86(1) is
deemed by the Explanation under Section
86(1) to be a decision under Section 98(a).
Section 98 speaks about 3 types of orders that
could be passed at the conclusion of the trial
of an election petition. They are:-

(i) The dismissal of the election petition;
or

(ii) A declaration that the election of the
returned candidate is void; or

(iii) A declaration not only that the
election of the returned candidate is void, but
also that the petitioner or any other
candidate was duly elected.

22. It is important to note that the above
3 different types of decisions under Section
98, can be rendered by the High Court only
at the conclusion of the trial. But the
dismissal under Section 86(1) is an exception.
The reference in the Explanation under
Section 86(1) to Section 98(a), makes it clear
that the power of the High Court to dismiss
an election petition which does not comply
with the provisions of Section 81 or Section
82 or Section 117, is available at the pre-trial
stage."

28. It is relevant to note that the Act
keeps in two separate compartments--

(i) the presentation of election petitions;
and

(ii) the trial of election petitions.

The presentation of election petitions
is covered by Sections 80 to 84 falling in
Chapter-II.