# 13 S.C.R. 192 AJAY MAKEN v. ADESH KUMAR GUPTA & ANR

- **Citation:** [2012] 13 S.C.R. 192
- **Court:** Supreme Court of India
- **Decided:** 2012-12-11
- **Case number:** Civil Appeal No. 8919 of 2012
- **Bench:** Altamas Kabir, J. Chelameswar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-s-c-r-192-ajay-maken-v-adesh-kumar-gupta-anr-28129
- **Pages:** 38

## Headnote

Representation of the People Act, 1951 - s.82 - Election
petition - Parties/respondents to the petition - Election of
C returned candidate (appellant) challenged on ground of
commission of corrupt practices -
Objection raised by
appellant that the election petition was liable to be dismissed
for non-impleadment of 'V', another candidate in the said
election - He contended that Annexure of the election petition
o contained a/legations of commission of corrupt practice by the
appellant, as also by 'V' and in view of s.82(b), 'V' also ought
to have been made a respondent to the election petition and
failure to so implead him was fatal to the election petition -
Held: In the entire body of the election petition there was no
~ reference to any corrupt practice committed by 'V' -
Allegations against 'V' were found in a document. annexed to
the election petition - of which the election petitioner was not
the author- hence it cannot be said that the a/legations were
made in the petition - In order for any other candidate to be
F made a party to the Election Petition, allegations of corrupt
practice would have to be made against him in the Election
Petition itself - In absence of any such allegation in the
Petition, clause (b) of s.82 will not be attracted - 'V' thus not
required to be made a party to the Election Petition -
"
Consequently, non-impleadment of 'V', against whom there
.:i were no a/legations in the Election Petition, not fatal to the
Election Petition.
The second respondent filed election petition before
the High Court challenging the election of the returned
H
192
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
193
candidate (appellant) from the New Delhi Parliamentary
A
Constituency on ground of commission of corrupt
practices falling under Section 123(1), (2), (5), (6), (7) read
with Section 127(a) of the Representation of the People
Act, 1951. The election petitioner impleaded the Returning
Officer and the appellant as party-respondents to the
B
election petition. The appellant filed Interlocutory
Application (I.A.) invoking Order VII Rule 11 of CPC
praying that the election petition be dismissed in
compliance with the mandate contained in section 86 of
the Act, which stipulates "the High Court shall dismiss c
an election petition which does not comply with the
provisions of section 81 or section 82 or section 117".
The appellant raised objection inter alia on two grounds
- a) for non-compliance with Section 81 (3) of the Act and
b) for non-impleadment of 'V', another candidate in the
0
said election. He contended that Annexure-1 of the
election petition not only contained allegations of
commission of corrupt practice by the appellant, but also
by 'V' and in view of the requirement of Section 82(b) of
the Act, 'V' also ought to have been made a respondent
to the election petition and failure to so implead him was
E
fatal to the election petition. The I.A. was, however,
dismissed, and therefore the instant appeal.
Two issues thus came up for consideration before
this Court: a) whether the copy served on the appellant
F
was not a true copy of the original within the meaning of
Section 81 (3) of the Act and thus the election petition was
liable to be dismissed on that ground; and b) whether
non-impleadment of 'V' was fatal to the election petitioni.e. whether allegations were made against 'V' in the G
election petition and if made, was 'V' required to be made
a respondent to the election petition.
Adjudicating upon the second issue but remitting the
matter to the High Court for consideration afresh of the
H
194
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A objections raised by the appellant in regard to the first
issue, the Court
B
HELD:
Per J. Chelameswar, J.
1.1. It is not clear whether the various deficiencies
pointed out pertain to the original copy of the election
petition filed in the High Court or the copy served on the
appellant. Legally there is a distinction between failure to
c sign and verify the original copy of the ele

## Text

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A
B
(2012) 13 S.C.R. 192
AJAY MAKEN
.
v.
ADESH KUMAR GUPTA & ANR.
(Civil Appeal No. 8919 of 2012)
DECEMBER 11, 2012
[ALTAMAS KABIR, CJI AND J. CHELAMESWAR, J.]
Representation of the People Act, 1951 - s.82 - Election
petition - Parties/respondents to the petition - Election of
C returned candidate (appellant) challenged on ground of
commission of corrupt practices -
Objection raised by
appellant that the election petition was liable to be dismissed
for non-impleadment of 'V', another candidate in the said
election - He contended that Annexure of the election petition
o contained a/legations of commission of corrupt practice by the
appellant, as also by 'V' and in view of s.82(b), 'V' also ought
to have been made a respondent to the election petition and
failure to so implead him was fatal to the election petition -
Held: In the entire body of the election petition there was no
~ reference to any corrupt practice committed by 'V' -
Allegations against 'V' were found in a document. annexed to
the election petition - of which the election petitioner was not
the author- hence it cannot be said that the a/legations were
made in the petition - In order for any other candidate to be
F made a party to the Election Petition, allegations of corrupt
practice would have to be made against him in the Election
Petition itself - In absence of any such allegation in the
Petition, clause (b) of s.82 will not be attracted - 'V' thus not
required to be made a party to the Election Petition -
"
Consequently, non-impleadment of 'V', against whom there
.:i were no a/legations in the Election Petition, not fatal to the
Election Petition.
The second respondent filed election petition before
the High Court challenging the election of the returned
H
192
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
193
candidate (appellant) from the New Delhi Parliamentary
A
Constituency on ground of commission of corrupt
practices falling under Section 123(1), (2), (5), (6), (7) read
with Section 127(a) of the Representation of the People
Act, 1951. The election petitioner impleaded the Returning
Officer and the appellant as party-respondents to the
B
election petition. The appellant filed Interlocutory
Application (I.A.) invoking Order VII Rule 11 of CPC
praying that the election petition be dismissed in
compliance with the mandate contained in section 86 of
the Act, which stipulates "the High Court shall dismiss c
an election petition which does not comply with the
provisions of section 81 or section 82 or section 117".
The appellant raised objection inter alia on two grounds
- a) for non-compliance with Section 81 (3) of the Act and
b) for non-impleadment of 'V', another candidate in the
0
said election. He contended that Annexure-1 of the
election petition not only contained allegations of
commission of corrupt practice by the appellant, but also
by 'V' and in view of the requirement of Section 82(b) of
the Act, 'V' also ought to have been made a respondent
to the election petition and failure to so implead him was
E
fatal to the election petition. The I.A. was, however,
dismissed, and therefore the instant appeal.
Two issues thus came up for consideration before
this Court: a) whether the copy served on the appellant
F
was not a true copy of the original within the meaning of
Section 81 (3) of the Act and thus the election petition was
liable to be dismissed on that ground; and b) whether
non-impleadment of 'V' was fatal to the election petitioni.e. whether allegations were made against 'V' in the G
election petition and if made, was 'V' required to be made
a respondent to the election petition.
Adjudicating upon the second issue but remitting the
matter to the High Court for consideration afresh of the
H
194
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A objections raised by the appellant in regard to the first
issue, the Court
B
HELD:
Per J. Chelameswar, J.
1.1. It is not clear whether the various deficiencies
pointed out pertain to the original copy of the election
petition filed in the High Court or the copy served on the
appellant. Legally there is a distinction between failure to
c sign and verify the original copy of the election petition
filed in the Court and failure to attest the copy served on
the respondent to be a true copy of the election petition.
While the latter failure falls within the scope of Section
81 (3), the earlier failure falls under sub-Section (1 )(c) and
0 sub-Section(2) of Section 83. While the failure to comply
with the requirements of Section 81 obligates the High
Court to dismiss the election petition, the failure to comply
with the requirements of Section 83 is not expressly
declared to be fatal to the election petition. [Paras 9, 10]
E [204-B-D]
1.2. Both, the pleading as well as the finding of the High
Court, are as vague as the vagueness could be.
Exposition of law without first identifying the relevant
"facts in issue" does not promote the cause of justice. The
F appeal, insofar as the fir~t issue is required to be allowed
and remanded to the High Court for an appropriate
'Consideration of the objections raised by the appellant, in
accordance with law. [Para 14] [206-G-H; 207-A]
G
Manohar Joshi v. Nitin Bhaurao Patil and Another (1996)
1 sec 169: 1995 (6) Suppl. SCR 421 - relied on.
Murarka Radhey Shyam Ram Kumar v. Roop Singh
Rathore & Others 1964 (3) SCR 573; Satya Narain v. Dhuja
Ram & Others (1974) 4 SCC 237: 1974 (3) SCR 20;
H
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
195
Rajendra Singh v. Smt. Usha Rani & Others (1984) 3 SCC
A
339: 1984 (3) SCR 22; Chandrakanth Uttam Chodankar v.
Dayanand Rayu Mandrakar & Others (2005) 2 SCC 188:
2004 (6) Suppl. SCR 916 - referred to.
8
2.1. Section 82(b) of the Representation of the People
Act, 1951, on a plain reading or on the principle of literal
construction, seems to require that all the candidates
against whom allegations of commission of corrupt
practice are ill'iADE IN THE PETITION must be made
parties I respondents to the election petition. [Para 17]
C
[208-C-D]
2.2. The election petitioner made the allegations of
commission of various corrupt practices falling under
various sub-sections of Section 123 of the Act, by either
the appellant or the election agent of the appellant. The
D
election petition particularly contains extensive details of
the corrupt practice falling under Section 123(6) r/w
Section 77 of the Act. The material facts and particulars
of the abovementioned corrupt practice are set out in
great detail. It is in the process of the abovementioned
E
narration, the election petitioner made a reference to two
annexures viz., Annexure-H and Annexure-1. It is the said
Annexure-1, which makes a reference to the name of 'V'.
Except a mention in the said annexure, the name of 'V'
is not mentioned anywhere in the body of the election
F
petition. The election petitioner referred to the
abovementioned Annexure-1 in the context of the
commission of a corrupt practice falling under Section
123(7) r/w Section 77 of the Act by the appellant. The
substance of the allegation, where a reference to G
Annexure-1 is made, is that the complaint, such as the
one made by the election petitioner, had also been made
by another body called "Youth for equality" to the
Election Commission of India and a copy of the
complaint, allegedly, made by the said "Youth for H
196
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A equality" is filed as Annexure-1 to the election petition,
obviously, for the purpose of deriving support for the
allegation made by the election petitioner. [Paras 20, 21]
[209-C-E; 210-B-D]
8
2.3. In a case like the one on hand where the election
petitioner does not make any such allegation in the body
of the election petition, but such allegations are found in
some document annexed to the election petition - of
which the election petitioner is not the author - it cannot
C be said that the allegations are MADE in the petition.
Because, firstly, the document annexure is not authored
by the election petitioner; secondly, in the entire body of
the election petition there is no reference to any corrupt
practice committed by 'V'. Making such an allegation
against 'V' would in no way help the election petitioner
D to obtain the relief sought by him in the election petition.
The purpose of the annexure is only to derive support to
the allegation of the commission of corrupt practice
alleged against the appellant only. Therefore, only that
much of the content of the annexure as is relevant to the
E allegations made in the election petition proper must be
considered to have become integral part of the election
petition. [Para 58 and 59] [226-G-H; 227-A-C]
2.4. To stretch the principle laid down in Sahodrabai
F case, to say, that an annexure becomes an integral part
of the election petition for all purposes and, therefore,
hold that the allegations made against 'V' in the annexure
by somebody other than the election petitioner would
become allegations MADE in the election petition, would
G lead to absurd results; that is what exactly sought to be
done by the appellant. [Para 60] [227-D-E]
Sahodrabai Rai v. Ram Singh Aharwar, (1968) 3 SCR
13; M. Karunanidhi v. H. V. Hande (1983) 2 SCC 473 and
Mulayam Singh Yadav v. Dha.ram Pal Yadav (2001) 7 SCC
H 98: 2001 (3) SCR 1103 - explained.
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
197
Reserve Bank of India v. Peerless General Finance and A
Investment Company Limited and Others (1987) 1 SCC 424:
1987 (2) SCR 1; Chief Inspector of Mines v. Ramjee AIR
1977 SC 965: 1977 (2) SCR 904; Tirath Singh v. Bachittar
Singh and Others AIR 1955 SC 830: 1955 SCR 457; Har
Swarup & Another v. Brij Bhushan Saran & Others 1967 (1)
B
SCR 342; Mohan Rai v. Surendra Kumar Taparia (!. Others
1969 (1) SCR 630; Kashi Nath v. Smt. Kudisa Begum and
Others (1970) 3 SCC 554; Gadnis Bhawani Shankar V v.
Faleiro Eduardo Martinho (2000) 7 SCC 472: 2000 (2) Suppl.
SCR 77 - referred to.
c
3. In the result, it is held that the election petition
cannot be dismissed on the ground that 'V' is not made
a party. But, in so far as the question whether the election
petition is required to be dismissed on the ground that
the copy served on the appellant is not the true copy of D
the original within the meaning of Section 81(3), the matter
is remitted to the High Court for disposal in accordance
with law and in the light of this judgement. [Para 62) [227H; 228-A-B]
•.
Case Law Reference:
1995 (6) Suppl. SCR 421
relied on
Para 10
1964 (3) SCR 573
referred to
Para 12
1974 (3) SCR 20
referred to
Para 12
1984 (3) SCR 22
referred to
Para 12
2004 (6) SupP.I. SCR 916 referred to
Para 12
~
1987 (2~C·R 1
referred to
Para 17
1977 (2) SCR 904
referred to
Para 18
1955 SCR 457
referred to
Para 19
(1968) 3 SCR 13
explained
Para 22
E
F
G
H
198
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
(1983) 2 sec 473
explained
Para 22
2001 (3) SCR 1103
explained
Para 22
1967 (1) SCR 342
referred to
Para 22
1969 (1) SCR 630
referred to
Para 22
B
(1970) 3 sec 554
referred to
Para 22
2000 (2) Suppl. SCR 77 referred to
Para 22
(1983) 2 sec 473
referred to
Para 51
C Per CJI. (Concurring)
1. The provisions of Sections 82 and 83 of the
Representation of the People Act, 1951 have to be read
harmoniously. While Section 82 relates to who should be
0 made parties in the Election Petition, Section 83 relates
to the contents of the Petition. As far as Section 82 Is
concerned, while Clause (a) provides that when In
addition to claiming a declaration that the election of all
or any of the returned candidates Is void, the Petitioner
claims a further declaration that he himself or any other
E candidate has been duly elected, all the contesting
candidates, other than the Petitioner, and where no such
further declaration Is claimed, all the returned candidates
have to be made parties. Clause (b) In addition requires
that any other candidate against whom allegations of
F corrupt practice are made in the Petition, has to be made
a party to the Election Petition. The emphasis is on the
use of the expression "allegations of any corrupt practice
are made In the Petition". In other words, in order for any
other candidate to be made a party to the Election
G Petition, allegations of corrupt practice would have to be
made against him In the Election Petition Itself. [Para 2)
[228-D-H; 229-A]
2. It would be necessary that some allegation of
H corrupt practice would have to be made In the Election
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
199
Petition itself against a person against whom allegations
A
of corrupt practice may separately have been made. In the
absence of any such allegation in the Petition, the
provisions of clause (b) of Section 82 will not be attracted.
[Para 4] [229-D-E]
3. The allegations made against 'V', contained in
B
annexure to the Election Petition, can have no bearing on
the facts at issue in the Election Petition itself. 'V' is not
required to be made a party to the Election Petition. The
non-impleadment of 'V' against whom there were no
allegations in the Election Petition is not fatal to the C
Election Petition. [Para 5) [229-F-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8919 of 2012.
From the Judgment & Order dated 30.05.2011 of the High
Court of Delhi at New Delhi in EP No. 20 of 2009, IA No. 13851
of 2009.
D
K. Parasaran, Pradeep Ranjan Tiwary, Harish Bhanara,
Rajeev Kapoor, Praffula Ranjan Tiwary, Atishi Dipankar for the
E
Appellant.
Amarjit Singh Chandhoik, ASG, Ranjit Kumar, Ruby Singh
Ahuja, R.N. Karanjawala, Manik Karanjawala, Ruchira Gupta,
Deepti Sarin, Shruti Katakey (for Karanjawala & Co.), Arijit
F
Prasad, B.V. Bairam Dass, S.S. Chadha, Y. Choudhary, Anil
Katiyar for the Respondents.
The Judgments of the Court was delivered by
CHELAMESWAR, J. 1. Leave granted.
2. The appellant herein was declared elected to the 15th
Lok Sabha from No.4 New Delhi Lok Sabha Constituency in
the election held in the year 2009.
G
H
200
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
3. Challenging the election of the appellant herein, a voter
of the said constituency, filed an election petition No.20 of 2009
in the Delhi High Court. The challenge is on the ground of
commission of corrupt practices falling under section
123(1 ),(2),(5),(6),(7) read with section 127(a) of the
B Representation of the People Act, 1951 (hereinafter referred
to as "the Act"). The election petitioner chose to implead only
the Returning Officer of the No.4 New Delhi Parliamentary
Constituency and the appellant herein as respondents to the
election petition.
c
4. The appellant herein filed Interlocutory Application No.
13851 of 2009 invoking Order VII Rule 11 of the Code of Civil
Procedure, 1908 (hereinafter referred to as "the CPC") praying
that the election petition be dismissed in compliance with the
mandate contained in section 86 of the Act, which stipulates
D "the High Gou.rt shall dismiss an election petition which does
not comply with the provisions of section 81 or section 82 or
section 117". The said I.A., was dismissed by an order dated
30-05-2011. Hence, the Appeal.
E
F
H
5. The substance of the objections raised by the appellant
herein in the abovementioned interlocutory application is that
the election petition filed by the 2nd respondent herein is liable
to be dismissed on thme counts:
Firstly, on the ground of non-compliance with Section 81 (3);
Secondly, that the election petition does not reveal a
complete cause of action as it does not contain all the
material facts necessary to constitute to be the cause of
action; and
Thirdly, that one Vijay Goel who was also a candidate in
the said election is also a necessary party as per the
provisions of section 82 of the Act but not impleaded as
the respondent.
6. At the outset I must mention that though the 2nd of the
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
201
[J. CHELAMESWAR, J.]
abovementioned objections was pleaded vaguely in the
A
abovementioned interlocutory application, it does not appear
to have been pressed before the High Court and certainly not
argued before us. So I shall confine our scrutiny to the
correctness of the judgment in ·appeal so far as the objections
Nos.1 and 3 of the appellant are concerned.
B
7. The Hi~h Court summarised the contours of the 1st
objection at para 3 of the Judgment as follows:
(i)
"Not all pages and documents furnished to the
second respondent, along with copies of the
C
(ii)
petition, contained signatures of the petitioner;
Many portions of the documents filed with the
petition were missing;
(iii)
Copies of several pages of annexures (to the
D
petition) furnished to the second respondent were
dim or illegible;
(iv)
The election petition was not properly verified;
(v)
The verification clause in the copy furnished to the
second respondent did not contain signatures of
the petitioner."
8. The relevant portion of the pleadings in this regard are
to be found at paras 4 & 5 of the Interlocutory Application as
follows:
E
F
"4. That the petitioner has filed the election petition in
contravention of various provisions of law and the main
petition placed before this Hon'ble Court for trial is not
G
completely signed and verified on each and every page
of the petition and attested by the petitioner as required
bylaw.
5. That there are number of pages of the petition and
documents annexed with the petition which are either not
H
A
8
c
D
E
F
G
202
SUPREME COURT REPORTS
(2012) 13 S.C.R.
at all signed by the petitioner and even none of the
document/annexure has been verified under the signature
of the petitioner as required by law.
The copy of the petition as supplied to the respondent No.2
along with Annexures is annexed herewith as Annexure-
'A'.
On scrutiny of the above referred copy of the petition and
inspection of the court record, the applicant/Respondent
No.2 has found the following deficiencies which are fatal
to the petition.
(i) None of the pages except the last two pages of the
petition i.e. Page no.36 & 37 are signed by the petitioner.
(ii) Affidavit in support is not as per Delhi High Court Rules
and verification of the affidavit is not signed by the
petitioner.
(iii) Para'2' of the affidavit at page No.38, is not legible and ·
does not contain the averments similar to the affidavit filed
on record.
(iv) Annexures from page No.40 to Page No. 79 are neither
signed nor verified by the petitioner as required by law.
(v) Page No. 80 to 81 are just illegible initialled by some
person but those pages are also not verified.
(vi) Page No. 82 to 98. are not properly paginated, nor
signed verified or even initialled by the petitioner.
(vii) Page No.99 to 102 are not signed, initialled or verified
by the petitioner as per law.
(viii) Page No. 103 to 113, are not signed, initialled or
verified by the petitioner as per law.
H
(ix) Page No. 114 to 117, are not signed, initialled or
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
203
[J. CHELAMESWAR, J.]
verified by the petitioner as per law.
A
(x) Page No. 118 to 120, is not signed, initialled or verified
by the petitioner as per law, and even not the same as
filed.
(xi) Page No. 121 to 133, completely illegal.
(xii) Page no. 134 Blurred, not get printed by the
Respondent No.2 not signed or verified as per the law.
8
(xiii) Page No. 135 illegible and not same as per the
C ·
petition on board.
(xiv) Page No. 138 to 139 are illegible, and not same as
per the petition on board.
(xv) Page No. 144 to 145, page No. 150 to 151, page No. o
152 to 280 are illegible, and not same as per the petition
on board.
(xvi) Page Nos. 281 to 283 are not the same as filed along
with main period, not signed or verified by the Petition as
E
per law.
(xvii) Page No. 284 to 287 are illegible, just initialled by
some person as true copy but not the same as filed by
petitioner with main petition.
(xviii) Page No. 288 to 296 the pagination in the original
petition is different as having various page members as
given on typed copies with suffix 'A', neither the typed
copies supplied nor the pagination is corrected on copy
supplied.
It is humbly submitted that the Registry of the Court has
also given chance to the petitioner to rectify the mistakes/
remove objections which could not have been given, as the
election petitioner has no right to amend modify the petition
F
G
or its annexures after filing the same, as the annexures are
H
204
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
to be read with petition as are treated as integral part of
the same."
9. It is not clear from the above whether the various
deficiencies pointed out by the petitioner pertain to the original
8 copy of the election petition filed in the High Court or the copy
served on the appellant herein. The emphasised portions
{emphasis is ours) of the above extracts demonstrate the
same.
10. Legally there is a distinction between failure to sign and
C verify the original copy of the election petition filed in the Court
and failure to attest the copy served on the respondent to be a
true copy of the election petition. While the latter failure falls
within the scope of Section 81 (3), the earlier failure falls under
sub-Section {1)(c) and sub-Section(2) of Section 83. While the
D failure to comply with the requirements of Section 81 obligates
the High Court to dismiss the election petition, the failure to
comply with the requirements of Section 83 is not expressly
declared to be fatal to the election petition. The said distinction
is explained by this Court in Manohar Joshi v. Nitin Bhaurao
E Patil and Another= (1996) 1 SCC 169 paras 20 and 21•.
F
G
H
·20. Section 86 empowersthe High Courts to dismiss an election petition at the
threshold if it does not comply with the provisions of Section 81 or Section
82 117 of the Act, all of which are patent defects evident on a bare
examination of the election petition as presented. Sub-section (1) of Section
81 requires the checking of limitations with reference to the admitted facts
and sub-section (3) thereof requires only a comparison of the copy
accompanying the election petition with the election petition ifself, as
presented. Section 82: requires verification of the required parties to the
petition with reference to the relief claimed in the election petition. Section
117 requires verfication of the deposit of security in the High Court in
accordance with rules of the High Court. Thus, the compliance of Section
81, 82 and 117 is to be sen with reference to the evident facts found in the
election petition and the documents filed along with it at the time of its
presentation. This is a ministerial act. There is no scope for any further
inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in
the election petition found with reference to the requirements of Section 83
of the R.P. Act which is a judicial function. For this reason, the noncompliance of Section 83, is not specified as a ground for dismissal of the
election petition under Section 86.
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
205
[J. CHELAMESWAR, J.]
11. However, the High Court categorised the various
A
objections raised in para 5 of the I.A. (extracted earlier), as
falling under five heads, which are already extracted (at para
7) earlier by us. Though it appears that while the objections
falling under category 1, 3 and 5 pertain to the defects in the
copy of the election petition served to the appellant herein, it
B
is not very clear whether the objections falling under categories
2 and 4, referred to above, pertain to the election petition as
presented to the High Court or copy thereof served to the
appellant herein.
12. Further, of the eighteen objections pointed out under c
para 5 of the I.A. {extracted above), which one of the said
objections falls under which one of the abovementioned five
categories, is not identified by the High Court. Apart from that
there is no finding in the Judgment under appeal whether any
one of the abovementioned eighteen objections is factually
D
correct or not. I regret to record that the High Court simply
extracted paragraphs from the Judgments of this Court in
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore
& Others [1964 (3) S.C.R.573], Satya Narain v. Dhuja Ram
& Others [(1974) 4 S.C.C 237], Rajendra Singh v. Smt. Usha
E
Rani & Others [(1984) 3 S.C.C. 339] and Chandrakanth Uttam
Chodankar v. Dayanand Rayu Mandrakar & Others [(2005)
2 S.C.C. 188] and disposed of the I.A. holding:
"17. In view of the above and having regard to the decision
F
in Chandrakant Uttam Chodankar (supra), as well as
Murarka Radhey Shyam Ram Kumar {supra), this Court
is of the opinion that in the present instance, the election
petitioner had signed on the copies and, therefore,
complied with the standard prescribed under Section
G
21. Acceptance of the argument of Shri Jethmalani would amount to reading
into Section 86 an additional ground for dismissal of the election petition
under Section 86 for non-compliance of Section 83. There is no occasion
to do so, particuarly when Section 86 being in the nature of a penal
provision, has to be construed stricly confined to its plain language.
H
A
c
D
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[2012) 13 S.C.R.
81(3). Similarly, the fact that the Registrar of this Court had
initially notified some deficiencies which were cured, after
which the matter was placed before the Court, which took
cognizance of the petition, would mean that the election
petitioner was absolved of any fault. There is no doubt that
the election petition, as originally presented, was within the
time prescribed by law. Moreover, this Court cannot,
enquire into the question as to whether and if so, to what
extent, the copies furnished to the second respondent were
not complaint with Section 81 (3) of the Act, that would
amount to a mini trial - a procedure unknown to the Act
and in fact contrary to its objective. While public interest
lies in ensuring that suits or causes which are plainly
barred by law, ought to be summarily rejected, equally the
court should not be over zealous in the enforcement of
provisions which are procedural, though aimed at
expeditious trial, require substantial compliance. The larger
Bench ruling in Murarka points to this, and the court is
inclined to follow the adage that procedure is only a
handmaiden, and not mistress of justice."
E
13. In the second part of the eighteenth objection (in para
5 of the I.A.), the appellant herein pleaded vaguely that the
Registry of the High Court gave an opportunity "to the petitioner
to rectify the mistakes/remove objections, which could not have
been given". The High Court by the impugned Judgment
F records that "the fact that the Registrar of this Court had initially
notified some deficiencies which were cured, after which the
matter was placed before the Court, which took cognizance of
the petition, would mean that the election petitioner was
absolved of any fault".
G
14. Both, the pleading as well as the finding of the High
Court, are as vague as the vagueness could be. Exposition of
law without first identifying the relevant "facts in issue", in my
opinion, does not promote the cause of justice. The Appeal,
H insofar as the first issue identified by us in para 5 of the
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
207
[J. CHELAMESWAR, J.]
Judgment, is required to be allowed and remanded to the High
A
Court for an appropriate consideration of the objections raised
by the appellant herein, in accordance with law.
15. I shall now deal with the third issue argued before us.
Though elaborate submissions were made before us on this
8
issue by the learned senior counsel appearing on either side,
the relevant pleading in the petition is very sketchy and is to
be found in para 14 of the Interlocutory Application which reads
as follows:
"That in annexures 1 of the petition, the petitioner has
C
annexed a complaint made by the Youth for Equality to the
Hon'ble Chief Election Commissioner of India by alleging
various irregularities by BJP & Congress Candidates
namely Sh. Vijay Goel & Sh. Ajay Maken in New Delhi
Parliamentary constituency and in para B sub para (i) at
D
page 15 of the petition a mention of the said complaint is
made. The present election petition is apparently a proxy
litigation by presenting the present election petition at the
instance of the said BJP candidate whose other
complaints etc. have been annexed along with the petition.
E
As per the provisions of section 82 of the
Representation of People Act 1951 a petitioner shall join
as respondents to his petition. (b) any other candidate
against whom allegations of any corrupt practice are
F
made in the petition.
It is not out of place to mention here that in the
alleged complaint annexed as Annexure I similar
allegations are made against Sh. Vijay Goel, a candidate
at the said election which is under challenge and he is a G
necessary party as per the provisions of Section 82 of the
Act."
16. A reading of the above paragraphs leaves us with the
impression that the emphasis of the paragraphs is on the belief
H
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SUPREME COURT REPORTS
[2012] 13 S.C.R.
A of the appellant that the election petition is a proxy litigation
undertaken by the election petitioner on behalf of the
unsuccessful BJP candidate. It is only in the last sub-paragraph
extracted above, a cryptic legal objection is raised that in view
of the fact that Annexure-1 of the election petition not only
B contains allegations of commission of corrupt practice by the
appellant herein, but also by Vijay Goel (BJP candidate). In
view of the requirement of Section 82(b) of the Act, Vijay Goel
must also have been made a respondent to the election petition
and failure to so implead is fatal to the election petition.
c
17. No doubt, Section 82(b) on a plain reading or on the
principle of literal construction, seems to require that all the
candidates against whom allegations of commission of corrupt
practice are MADE IN THE PETITION must be made parties I
respondents to the election petition. The ISSUE in the case is
D whether such allegations are MADE against Vijay Goel in the
election petition and if MADE, is Vijay Goel required to be
made a respondent to the election petition.
18. It is pointed out by this Court in Reserve Bank of India
E v. Peerless General Finance and Investment Company
F
Limited and Others [(1987) 1 SCC 424]:
"Interpretation must depend on the text and the context ........
Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation
match the contextual. A statute is best interpreted when we
know why it was enacted."
Adopting the principle of literal construction of the Statute alone,
in all circumstances without examining the context and scheme
G of the Statute, may not sub-serve the purpose of the Statute. In
the words of Justice Iyer, such an approach would be - - "to see
the skin and miss the soul". Whereas, ''The judicial key to
construction is the composite perception of the deha and the
dehi of the provision" (Chairman, Board of Mining
H
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
209
[J. CHELAMESWAR, J.]
Examination and Chief Inspector of Mines v. Ramjee AIR
A
1977 SC 965).
19. This Court in Tirath Singh v. Bachittar Singh and
Others (Al R 1955 SC 830) dealing with a question of
interpretation of Section 99 of the Act, declined to follow the
8
rule of literal construction of the Statute on the ground that it
would lead to absurdity, presumably, not intended by the Statute
having regard to the scheme and the purpose of the Act.
20. The election petitioner made the allegations of
commission of various corrupt practices falling under various
C
sub-sections of Section 123 of the Act, by either the appellant
herein or the election agent of the appellant herein. The election
petition particularly contains extensive details of the corrupt
practice falling under Section 123(6) r/w Section 77 of the Act,
running to 18 typed pages. The material facts and particulars
D
of the abovementioned corrupt practice are set out in great
detail. It is in the process of the abovementioned narration, the
election petitioner made a reference to two annexures viz.,
Annexure-H and Annexure-1. That portion of the election petition
reads as follows:
E
"The petitioner submits that in this regard complaint was
filed before the Returning Officer on 5th May, 2009 by Shri
Mantu, Independent candidate, New Delhi Parliamentary
Constituency. The Complaint specifically states that the
respondent No.2 has incurred a huge expenditure on
hoardings and had exceeded the prescribed expenditure
limit of Rs.25 lakhs. The copy of the complaint dated 5th
May, 2009 is marked and annexed herewith as
ANNEXURE-H.
Youth for equality had also filed similar complaint with the
Election Commissioner of India to take action that all
hoarding put up at private places be pulled down and add
F
G
the market cost on the these site be added to the
expenditure account of the candidate. The copy of the
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210
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A
complaint to the Election Commissioner of India is marked
and annexed herewith as ANNEXURE-1."
21. It is the said Annexure-1, which makes a reference to
the name of Vijay Goel. I may make it clear that except a
8 mention in the said annexure, the name of Vijay Goel is not
mentioned anywhere in the body of the election petition. It can
be seen from the above extracted pleading of the election
petitioner that he referred to the abovementioned Annexure-1
in the context of the commission of a corrupt practice falling
C under Section 123(7) r/w Section 77 of the Act by the appellant
herein. The substance of the allegation, where a reference to
Annexure-1 is made, is that the complaint, such as the one
made by the election petitioner, had also been made by
another body called "Youth for equality" to the Election
Commission of India and a copy of the complaint, allegedly,
D made by the said "Youth for equality'' is filed as Annexure-1 to
the election petition, obviously, for the purpose of deriving
support for the allegation made by the election petitioner.
22. Learned senior counsel Shri K. Parasaran appearing
E for the appellant submitted that in view of the decisions of this
Court in Sahodrabai Rai v. Ram Singh Aharwar, (1968) 3 SCR
13, M. Karunanidhi v. H. V. Hande, (1983) 2 SCC 473 and
Mu/ayam Singh Yadav v. Dharam Pal Yadav, (2001) 7 SCC
98, if an election petition contains annexures or schedules
F attached to it, whose content is not elaborately described in the
body of the election petition, but only referred to as containing
the factual basis for seeking declaration of nullity of the election
of the returned candidate, such annexures or schedules
become an integral part of the election petition and, therefore,
G all the allegations contained in such schedules or annexures
become allegations in the election petition. If such allegations
pertain to commission of any corrupt practice by any one of the
candidates at the election other than the returned candidate,
such other candidates are also required to be made partiesH respondents to the election petition in view of the law laid down
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
211
[J. CHELAMESWAR, J.]
by this Court in Har Swarup & Another v. Brij Bhushan Saran
A
& Others [1967 (1) SCR 342], Mohan Rai v. Surendra Kumar
Taparia & others [1969 (1) SCR 630], Kashi Nath v. Smt.
Kudisa Begum and Others [(1970) 3 SCC 554] and Gadnis
Bhawani Shankar V v. Fa/eiro Eduardo Martinho [(2000) 7
sec 4121.
8
23. It is argued by Shri Parasaran that since the election
petitioner referred to Annexure I in the body of the election
petition without fully describing the content of the same,
Annexure I becomes an integral part of the election petition.
Since in the said annexure allegations of commission of corrupt C
practice, similar to the one alleged against the appellant herein,
are made against Vijay Goel, the said Vijay Goel also ought
to have been impleaded as party-respondent to the election
petition in view of the mandate contained in Section 82(b) of
the Act. Since, Vijay Goel is not made a party-respondent to
D
the election petition, there is a failure to comply with the
requirements of Section 82, which is declared to be fatal to the
election petition under Section 86 of the Act.
24. On the other hand, learned senior counsel Shri Ranjit
E
Kumar appearing for the respondent-election petitioner argued
that the proposition of law settled by this Court that an annexure
or schedule to the election petition becomes an integral part
of the election petition only in certain circumstances, but it is
also recognised by this Court that in certain other circumstances
F
annexures are only evidence of the allegation contained in the
election petition, but not an integral part of the pleading of the
election petition. Shri Ranjit Kumar submitted that the purpose
of the election petition with reference to the annexure-1 is only
to derive support to his allegation of the commission of corrupt G
practice by the appellant herein by demonstrating that such
allegation against the appellant is not only made by the election
petitioner but also by others during the course of the election.
It is neither the intention of the election petitioner to make any
allegation of corrupt practice nor seek any relief against Vijay
H
212
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A Goel. Therefore, the election petitioner is not legally obliged to
implead Vijay Goel as a party-respondent to the election
petition.
25. If the complaint made by the "Youth for equality" to the
Election Commission of India contains allegations of
8 commission of corrupt practice not only by the appellant herein,
but also by some other candidate at the election, can such
allegations against the candidate other than the appellant herein
be read as allegations made in the election petition by the
extension of fiction judicially created on the interpretation of
C Section 81(3) of the Act, is the question to be examined.
26. To decide the issue, it is necessary to examine; (1) who
can file an election petition; (2) what are the grounds that can
be-taken; (3) what is the relief that can be claimed and granted;
o (4) who are required to be made parties; and (5) what is the
procedure to be follow4:id in presenting an election petition; and
also the scheme of the Act insofar as it is relevant apart from
the ratio of the above-referred decisions of this Court.
27. Article 329¥ of the Constitution prohibits the calling in
E question any election to either the House of the Parliament or
the Legislature of a State except by an election petition in such
manner as may be provided for by or under any law by the
appropriate legislature. The Representation of the People Act,
1951 is such a law made by the Parliament. It deals with the
F method and manner of conduct of the elections including the
resolution of disputes regarding the elections. This court has
¥.
329. Bar to inteference by courts in electoral matters.- [Notwithstanding
anything in this Constitution.
G (a) the validity of any law relating to the delimitation of constitutencies or the
allotment of seats to such constitutencies, made or purporting to be made
under Article 327 or Article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House
of the Legislature of a State shall be called in question except by an election
petition presented to such authority and in such manner as may be
H
provided for by or under any law made by the appropriate Legislature.
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR.
213
[J. CHELAMESWAR, J.]
repeatedly held that an election petition is not a common law
A
proceeding, but a creature of the statute.
28. Part VI of the Act deals with disputes regarding
elections. Section 80 stipulates that "no election shall be called
in question except by an election petition presented in
8
accordance with the provisions of this part".
29. Section BOA invests the power to try election petitions
in the High Court.