# MITHILESH KUMAR SINHA ETC v. RETURNING OFFICER FOR PRESIDENTIAL ELECTION AND ORS. ETC

- **Citation:** [1992] Supp. 1 S.C.R. 651
- **Court:** Supreme Court of India
- **Decided:** 1992-09-17
- **Case number:** Election Petiton No. I of 1992
- **Bench:** J.S. Verma, K. Jayachandra Reddy, S.C. Agrawal, Yogeshwar Dayal, Dr. A.S. Anand
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mithilesh-kumar-sinha-etc-v-returning-officer-for-presidential-election-and-ors-11554
- **Pages:** 48

## Headnote

Presidential and Vice-Presidential Elections Act, 1952: Sections 5B(J)
A
B
and (5)-fi.equirements unde,-J'Deliver" and "subscribe"--Construction of
C
Presidential and Vice-Presidential Elections Act, 1952 : Sections 14A,
13(a)-Locus Standi to file election petiton-Requirements-'Candidate'-
Constructiolt-"Non-compliance of mandatory requirements for a valid
nominatiort-Election pen·tion by such person-Maintainability of
Presidential and Vice-Presidential Elections Act, 1952 : Section 17 read
with Order XXXIX Rules 2, 5, 7 and 34 read with Order XXIII, Rule 6 of the
Supreme Court Rules, 1966--'Trial'-Constructiort-Election petition not disclosing triable issues or cause of action-Maintainability of
D
Presidential and Vice-Presidential Elections Act, 1952: Sections 5E(5),
E
14, lB(l)(c), 18(2) read with Form 2 under Rule 4 of the Presidential and
Vice-Presidential Elections Rules, 1974 and read with Section 171C,
!PC-Election petition on grounds of wrongful acceptance of the nomination
papers of other three candidates and of undue influence-No material facts
to constitute undue influence ground available in petitiort-Effect of
F
Presidential and Vice-Presidential Elections Act, 1952 : Section
14---Frivolous petitions filed in cavalier fashio...-Need to prevent entertaining
such petitions-Supreme Court's observations for screening such petitions.
Words and Phrases-"Deliver
01
, "Subscribe" "Candidate", "Triati_ G
Meaning of
Election-Pree 'dent of India-Returned candidate's election challenged
on the ground of wrongful acceptance of nomination papers of the candidates-E1fect of Locus standi to file election petition-Petition not disclosing cause of action--AfaintainabiUty of-Supreme Court's observations for H
651
652
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A screening frivolous petitions.
Supreme Court Rules, 1966 : Order XXXIX, Rules 2, 5, 7 and 34 read
with Order XXIII, Rule 6-Election petition not disclosing cause of action-Maintainability of
B Election Petiton No. I of 1992.
Petitioner's nomination paper for contesting the election to the office
of President of India was rejected by the Returning Officer on the ground
that it was not subscribed by at least ten electors as proposers and at least
C ten electors as seconders as required by section SB(l)(a) of the Presiden·
tial and Vice- Presidential Elections Act, 1952 and that according to section
S(b)(S), singnatnres of some of the electors were inoperative, being common in one of the nomination paper of another candidate, which nomination paper was first delivered to. the Returning Officers.
D
Petitioner in the election petition under section 14 of the Act chal·
lenging the election of the returned candidate before this Court contended
that the rejection of his nomination paper was wrongful, which is a ground
under section 18(l)(c) for a declaration that the election of the returned
candidate was void; that he was a 'candidate within the meaning of section
E · 13(a), as his nomination paper was subscribed by the required number of
proposers and seconders; that bis proposers and seconders, \lho were
common in one of the nomination paper of another candidate, had subscribed the petitioner's nomination paper earlier in point of time and
therefore, delivery of the another candidate's nomination paper to the
Returning Officer earlier than delivery of the petitioner's nomination
F
paper did not have the effect of making the common signatures on the
petitioner's nomination paper inoperative.
G
The returned candidate and the Attorney General or India, raising
·the preliminary objection, contended that the petition be rejected as the
petitioner was not a 'candidate' as defined in section 13(a) of the Act and
that be was not competent to present the election petition as required
under section 14A; that there were no averments in th~ petition to raise
any triable issue relating to the grounds under section 18(l)(c) of\lTongful
rejection of his nomination paper or under section 18(1)

## Text

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MITHILESH KUMAR SINHA ETC.
v.
RETURNING OFFICER FOR PRESIDENTIAL ELECTION AND
ORS. ETC.
SEPTEMBER 17, 1992
(J.S. VERMA, K. JAYACHANDRA REDDY, S.C. AGRAWAL,
YOGESHWAR DAYAL AND DR. A.S. ANAND, JJ.)
Presidential and Vice-Presidential Elections Act, 1952: Sections 5B(J)
A
B
and (5)-fi.equirements unde,-J'Deliver" and "subscribe"--Construction of
C
Presidential and Vice-Presidential Elections Act, 1952 : Sections 14A,
13(a)-Locus Standi to file election petiton-Requirements-'Candidate'-
Constructiolt-"Non-compliance of mandatory requirements for a valid
nominatiort-Election pen·tion by such person-Maintainability of
Presidential and Vice-Presidential Elections Act, 1952 : Section 17 read
with Order XXXIX Rules 2, 5, 7 and 34 read with Order XXIII, Rule 6 of the
Supreme Court Rules, 1966--'Trial'-Constructiort-Election petition not disclosing triable issues or cause of action-Maintainability of
D
Presidential and Vice-Presidential Elections Act, 1952: Sections 5E(5),
E
14, lB(l)(c), 18(2) read with Form 2 under Rule 4 of the Presidential and
Vice-Presidential Elections Rules, 1974 and read with Section 171C,
!PC-Election petition on grounds of wrongful acceptance of the nomination
papers of other three candidates and of undue influence-No material facts
to constitute undue influence ground available in petitiort-Effect of
F
Presidential and Vice-Presidential Elections Act, 1952 : Section
14---Frivolous petitions filed in cavalier fashio...-Need to prevent entertaining
such petitions-Supreme Court's observations for screening such petitions.
Words and Phrases-"Deliver
01
, "Subscribe" "Candidate", "Triati_ G
Meaning of
Election-Pree 'dent of India-Returned candidate's election challenged
on the ground of wrongful acceptance of nomination papers of the candidates-E1fect of Locus standi to file election petition-Petition not disclosing cause of action--AfaintainabiUty of-Supreme Court's observations for H
651
652
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A screening frivolous petitions.
Supreme Court Rules, 1966 : Order XXXIX, Rules 2, 5, 7 and 34 read
with Order XXIII, Rule 6-Election petition not disclosing cause of action-Maintainability of
B Election Petiton No. I of 1992.
Petitioner's nomination paper for contesting the election to the office
of President of India was rejected by the Returning Officer on the ground
that it was not subscribed by at least ten electors as proposers and at least
C ten electors as seconders as required by section SB(l)(a) of the Presiden·
tial and Vice- Presidential Elections Act, 1952 and that according to section
S(b)(S), singnatnres of some of the electors were inoperative, being common in one of the nomination paper of another candidate, which nomination paper was first delivered to. the Returning Officers.
D
Petitioner in the election petition under section 14 of the Act chal·
lenging the election of the returned candidate before this Court contended
that the rejection of his nomination paper was wrongful, which is a ground
under section 18(l)(c) for a declaration that the election of the returned
candidate was void; that he was a 'candidate within the meaning of section
E · 13(a), as his nomination paper was subscribed by the required number of
proposers and seconders; that bis proposers and seconders, \lho were
common in one of the nomination paper of another candidate, had subscribed the petitioner's nomination paper earlier in point of time and
therefore, delivery of the another candidate's nomination paper to the
Returning Officer earlier than delivery of the petitioner's nomination
F
paper did not have the effect of making the common signatures on the
petitioner's nomination paper inoperative.
G
The returned candidate and the Attorney General or India, raising
·the preliminary objection, contended that the petition be rejected as the
petitioner was not a 'candidate' as defined in section 13(a) of the Act and
that be was not competent to present the election petition as required
under section 14A; that there were no averments in th~ petition to raise
any triable issue relating to the grounds under section 18(l)(c) of\lTongful
rejection of his nomination paper or under section 18(1)(a) of undue
influence, and that the petition be rejected under Order XXXIX, Rules 2,
H 5, 7 and 34 read with Order XXlll, Rules 6 or the Supreme Court Rules,
MITillLESHSINHA v. RETURNING OFFICER
653
1966, as it did not disclsoe a cause of action and was barred by the A
provfaions of the Act.
Election Petition No.2 of 1992
Petitioner, a duly nominated candidate, in his petition under section
14 of the Presidential and Vice-Presidential Election Act, 1952 before this B
Conrt submitted that the election of the returned candidate be declared
void, on the ground contained in section 18(1)1c) of wrongful acceptance
qf nomination papers of the returned candidate and two other candidates,
even though they contained incomplete description of the candidates, their
proposers and seconders; and on the ground contained in section 18(2) of C
undne inflnence.
In their preliminary objection raised by the returned candidate and
the Attorney General of India submitted that as the petition did not
disclose any canse of action or raise any triable issne, the petition was
liable to rejection under Order XXXIX, Rules 2, 5 and 34 read with Order D
XXIII, Rules 6 of the Supreme Court Rules, 1966.
Dismissing the election petitions, this Court,
HELD: (Per J.S. Venna, J. on his behalf and on behalf of K Jayachandra Reddy, S.C. Agrawal, Yogeshwar Dayal and Dr. A.S. Anand, JJ.)
1.01 Sub-section (1) of Section SB requires that 'each candidate
shall, either in person or by any of his proposers or seconders' between
the specified hours 'deliver to the Returning Officer' at the specified place
'a nomination paper completed in the prescribed form and subscribed' by
the candidate as assenting to his nomination and in the case of Presidential Election also by at least ten electors as proposers and at least ten
electors as seconders. [683-D]
1.02. The delivery of the nomination paper is to the Returning Officer
E
F
and the nomination paper has to be snbscribed by the candidate, his G
proposers and seconders. There is no scope for any ambiguity in the
meaning of the word 'deliver' in this context in sub-section (1). [683-E]
1.03. Sub-section (5) forbids an elector to subscribe, whether as
proposer or as seconder, more than one nomination paper at the same
election and also prescribes the consequence of its non-compliance by H
654
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A
providing that in the case of non-compliance of this mandate in the first
part of sub-section (S), 'his signature shall be inoperative on any paper
other than one first delivered.' it is the meaning of the word 'deliever' in
the this context in sub-section (S) which is to be construed. (683 G-H]
B
1.04. The plain meaning of sub-section (S) is that no elector can
subscribe, whether as proposer or as seconder, more than one nomination
paper at the same election; and if he does so or, in other words, if any
elector subscribes more than one nomination paper at the same election,
whether as proposer or seconder, then his signature shall be inoperative
on ally nomination paper other than the one which has been first delivered
C to the Retnrni.,g Officer as required by sub-section (1). This means that
an elector can subscribe as proposer or seconder only one nomination
paper at the same election and where he subscribes more than one nomination paper at the same election then except for the nomination paper which
is first delivered to the Returni.,g Officer, his signature on any nomination paper delivered subsequently to the Returning Officer shall be inD operative or ineffective. (684 B-C]
l.OS. The elector having the right to sponsor only one candidate and,
therefore, to subscribe as proposer or seconder only one nomination paper,
that right is exhausted the moment a nominatiou paper subscribed by him
E has been delivered to the Returni.,g Officer and the question of his signa·
tore on any nomination paper delivered subsequently to the Returning
Officer beillg operative does not arise. No inquiry into that question is
contemplated by the Returning Officer where more than one nomination
paper subscribed by the same elector is delivered to the Returning Officer,
F
since the statute provides that the right of an elector to propose or second a
candidate being exercisable only once, it is exhausted the moment the first
nomination paper subscribed by him is delivered to the Returning Officer.
(684 D-E)
1.06. The two words, 'deliver' and 'subscribe' have dllTerent connota·
G lion and are also used for dllTerent purposes not only sub-section (S) but also
in sub-section (1) of Section SB in the same context. The meaning of these
words in the two sub-sections of Section SB must be be the same. [ 684-F]
2.01 The requirement of Section 14A that an election petition calling
in question a Presidential election has to be presented by any candidate at
H such election or by twenty or more electors joined together as petitioners
MITHILESH SINHA v. RETURNING OFFICER
655
is for the obvious reason that the requirement for a valid nomination at a A
Presidential election according to Section SB(l)(a) is the nomination of a
candidate by at least ten electors as proposers and an equal number as
seconders i.e. in all by at least twenty electors. [685 D-E)
2.02. A person entitled to claim himself as a duly nominated candidate
at the election must have at least twenty electors subscribing his valid B
nomination paper as proposers and seconders. The law could never have
intended that a person without satisfying the requirement of Section
SB(l)(a) can claim to have been duly nominated as a candidateatan election
even if he did not have twenty electors behind him as proposers and
seeonders to validly sponser him as a candidate. If an election petition acC
cording to Section 14A cannot be presented by less than twenty electors
joined together as petitioners, it cannot obviously be presented by the alternative mode of a candidae as the petitioner who was not validly nominated by
atleast twenty electors. This requirement of Section 14A(l) is a clear indication that a person cannot claim to have been duly nominated as a candidate
at the Presidential election unless he had satisfied the mandatory require- D
ments of Section SB(l)(a) and Section SC. [68S F-G)
2.03. To be entitled to present an election petition calUng in question
an election, the petitioner should have been a 'candidate' at such election
within the meaning of Section 13(a) for which he should have been 'duly E
nominated as a candidate' and this he cannot claim unless the mandatory
requirements of Section SB(l) (a) and Section SC were complied by him.
Where on undisputed facts there was non-compliance of any of these
mandatory requirements for a valid nomination, the petitioner was not a
'candidate' within the meaning of Section 13(a) and, therefore, not competent according to Section 14A to present the petition. [68S-H, 686 A-Bl
F
2.04. In order to have the requisite locus standi as a 'candidate' within
the meaning of Section 13(a) for being entitled to present such an election
petition in accordance with Section 14A of the Act, the petitioner must be
duly nominated as a candidate in accordance with Section SB(l) (a) and G
Section SC. Unless it is so, the petitioner cannot even claim to have been duly
nominated as a candidate at the election as required by Section 13(a). [ 686-C)
2.0S. The petitioner in Election Petition No. 1 of 1992 has no locus
standi to challenge the election of the returned candidate as be is not
competent to present the election petition in accordence with Section 14A H
656
SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.
A of the Act read with Order 39 Rule 7 of Supreme Court Rules. [686-E]
B
c
D
E
F
G
Charan Lal Sahu v. Nee/am Sanjeeva Reddy, (1978) 3 S.C.R. l; Charan
Lal Sahu & Ors. v. Giani Zail Singh & Anr., [1984] 2 S.C.R. 6; Mithilesh
Kumar v. Sri R. Venkataraman & Ors., [1988] 1 S.C.R. 525 and Charan Lal
Sahu v. Shri Fakruddin Ali Ahmed & Ors., A.I.R. 1975 S.C. 1288, relied on.
3.01. The trial commences with the presentation of the election petition
and an order of dismissal of the petition made at this stage on the ground
that it is not maintainable being barred by any law or does not disclose any
cause of action is a dismissal at the conclusion of the trial since no further
step in the trial of such a petition is contemplated. This is how the word 'trial'
in Section 17 of the Act must be understood, if Section 17 is to govern the
dismissal of all petitions including dismissal at the threshold. This view also
harmonises Order XXIII Rule 6 of Supreme Court Rules which applies by
virtue of Order XXXIXRule34. [689 C-D]
3.02. The Court is not bound to continue this trial even thongh no
triable issue arises and the petitioner does not have the requisite locus
srandi merely because of Section 17 of the Act.
3.03. Even though the petitioner, is Election Petition No.2 of 1992 has
the locus standi to present the·petitioo as required by Section 14A of the
Act read with Order XXXIX Rule 7 of Supreme Court Rules, yet material
facts and the grounds on which the relic( 'Ot' declaration of the election of
the returned candidate void is sought have not been pleaded to disclose
any cause of action or raise any triable issue. This petition also is liable
to be dismissed sustaining tbe preliminary objection. [693-F]
3.04. The election petitoo does not disclose any cause of action and
is, therefore, liable to be dismissed by virtue of Rules 2 and 5 of Order
XXXIX of the Supreme Court Rules and the mandatory provisions of the
Presidential and Vice-Presidential Elections Act, 1952. [693-G]
4.01 In the election petition No.2 of 1992 several other things have
been said but they do not amount to avermeot of material facts to constitute or raise any other ground contained in Section 18 of the Act. A
passing re:'erence to what may be termed as 'undue influence' does appear
in the petition but the averments do not satisfy the requiement of pleadings
H even according to the ordinary standard much less the more stringent
MITHILESH SINHA v. RETIJRNING OFFICER
657
requirements of sub-section (2) of Section 18 of.the Act. [690-E]
4.02 A perusal of the nomination papers of all the candidates with
reference to Form 2 read with Rule 4 of the Presidential and Vice-PresidenA
tial Elections Rules, 1974 shows that there is no defect, deficiency or ambiguity in the nomination papers of any of the four: candidates including this
petitioner whose nomination papers were acc_epted by the Returning Officer. B
/
(690-H]
4.03. Thus no defect in any of these nomination papers to make ont
even a prima facie ground under Section 18(l)(c) of wrongful acceptance
of any of these nomination papers is either pleaded or shown to raise a
triable Issue on this point. [691-C]
C
4.04. Sub-section (5) of Section SE provides that the "Returning
Officer shall not reject any nomination paper on the ground of any defect
which Is not of a substantial character". No defect of any kind much less
a defect of snbstantial character in any nomination paper which was D
accepted has been pleaded or shown by the petitioner to require any
further examination of this question or framing an issue for the purpose.
The el.ection petition does not, therefore, disclose any cause of action for
trial of the ground contained In Section 18(l)(c) of the Act. [691 i>-EJ
4.05. In view of Section 18(2), the offence of undae inOuence in E
Section 18(l)(a), has the same meaning as In Chapter IX-A of the Indian
Penal Code. Section 171-C of the Indian Penal Code defines undne inOuence at elections. [692·E]
4.()6. A bare perusal of Section 171-C l.P.C. shows that the ingredients
of undue ioOuence at elections are many and they have to be read into the F
meaning of the offence of undue ioOoence in Section 18(l)(a) of the Act.
Before a ground under Se..1ion 18(l)(a) of the Act can be said to be pleaded
raising a triable issue lo the election petition it must be shown that material
facts to constitute the ingredient, of the offence of undue inOuence have at
least been pleaded lo the election petition. The petitioner has not made any G
attempt to pay lip-service to these requirements and has chosen to merely
repeat the words "undue ioOuence in the election" in the petition without any
attempt to plead material facts raising that ground. (693 C-D]
Shri Baburao Patel & Ors. v. Dr. Zakir Hussain & Ors., (1968] 2 S.C.R.
133; Shiv Kirpal Singh v. Shri V.V. Girl, (1971] 2 S.C.R. 197; Charan Lal H
658
SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.
A
Sahu v. Shri Fakniddin Ali Ahmed & Ors., A.l.R. 1975 S.C. 1288 and Charan
Lal Sahu & Ors. v. Giani Zail Singh & Anr., [1984) 2 S.C.R. 6, referred to.
B
5.01. It is now time to make s11itable provisions to prevent entertaining
such frivolous petition filed in a cavalier fashion requiring the hearing by a
Bench ornve Judges of this Court. The only purpose served by such frivolous
petitions is the giving of some undue publicity to the petitioner which appears to be the sole purpose of filing such a petition. Obviously, use of the
Court as a forum for this purpose must not be permitted. [ 697-G)
5.02. The election petitions under the Representation of the People
C Act challenging elections to the Parliament and State Legislatures are
required to be heard by a Single Judge of the High Court. In viL'W or the
greater importance of the Presidential and Vice-Presidential elections the
forum for trial of such election petitions is the Supreme Court and in
accordance with the rules framed by the Court these petitions are heard
by a Bench of live Judges. Experience has shown that the solemnity and
D significance attaching to such petitons has been redueced to a forct by the
cavalier fashion in which resort is had to this remedy. The mere fact that
the entire gamut of both these petitions is fully covered by several earlier
decisions of this Court, to some of which these very petitioners were
parties, shows that the existing provisions are inadequate to prevent such
E abuse of the process of law. [697-H, 698 A-BJ
F
5.03. It· is now necessary to make suitable amendments in the
provisions for screening of such frivolous petitions and provision is required _to be made for trial only of serious petitions raising triable issues
by a Bench of live Judges of this Court. (698-CJ
5.04. It is the Court's duty to make .these observations to invite
attention of all concerned to this felt need requiring suitable action in this
d.irection.
G
5.05. Some stringent measure like man.datory requirement of
security deposit of a reasonable amount for costs for entertaining the
election petition petition is needed to. provide some check. [698-E]
Mithilesh &mar v. Sri R.Venkatannan & Ors., [1988) 1 S.C.R. 525
and Charan Lal Sahu & Ors. v. Giani Zail Singh & Anr., (1984) 2 S.C.R. 6,
H referred to.
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.]
659
_ORIGINAL JURISDICTION : Election Petition Nos. 1 and 2 of A
1992.
(Under Article 71 of the Constitution of India).
Petitioners appeared in person.
G. Ramaswamy, Attorney General, Kapil Sibal, Dr. A.M. Singhvi,
Sushi! Kumar Jain, A.P. Dhamija, Sudhanshu Atreya, Ranjit Kumar, Anil
Shrivastava and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by
VERMA, J.: Both these election petitions filed under Section 14 of
B
c
the Presidential and Vice-Presidential Elections Act, 1952 (hereinafter
referred to as 'the Act') challenge the election of Dr. Shanker Dayal
Sharma, as the ninth President of India, On scrutiny of nomination papers
made on June 25, 1992 by the Returning Officer, the nomination papers of D
only four persons, namely, Dr. Shanker Dayal Sharma, Prof. G.G. Swell,
Sbri Ram J ethmalani and Kaka Joginder Singh alias Dharati Pak ed. were
found valid and accordingly accepted. Polling was held on July 13, 1992
and result of the election was declared on July 16, 1992 at which Dr.
Shanker Dayal Sharma was declared elected; and he was sworn in as the
ninth President of India on July 25, 1992. Mithilesh Kumar Sinha, petitioner E
in Election Petition No. 1 of 1992, had filed his nomination paper at the
election, but the same was rejected by the Returning Officer on the date
of scrutiny due to non-compliance of the mandatory requirements for a
valid nOmination.
In both these election petitions, certain preliminary objections raised
on behalf of the returned candidate, Dr. Shanker Dayal Sharma as well as
the Attorney General of India require to be decided at the threshold. The
substance of the preliminary objection in Election Petition No. 1 .;( 1992 ·
is that it is liable to be rejected as not maintainable primarily on the ground
of not being presented by a competent person, namely, 'any candidate at G
such election' as required by Section 14A read with Section 13(a) of the
Act and Order XXXIX Rule 7 of Supreme Court Rules, 1966; and alternately that it does not disclose any cause of action for a declaration that
the election of the returned candidate is void. The preliminary objection
to the maintainability of Election Petition No. 2 of 1992 is that even though H ·
660
SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.
A it has been presented by a candidate at such election, yet it does not raise
any triable issue inasmuch as it does not disclose any cause of action for a
declaratiqn that the election of the returned candidate is void on any of
the permissible grounds contained in Sectton 18 of the Act.
B
We shall now refer to the material facts relating to each of these
election petitions.
Election Petition No. 1 of 1992:
Petitioner Mithilesh Kumar Sinha alleges that he had obtained the
signatures of twenty M.L.-As. for contesting the election to the office of
C President of India between March 30, 1992 and May 28, 1992 and had filed
his nomination paper on June 24, 1992. However, on scrutiny of the
nomination papers made by the Returning Officer on June 25, 1992, tle
nomination paper of Mithilesh Ku.;,at<SiJ!ba was rejected on the gronnd
that it was not subscribed by at least ten· electors as proposers and at least
D ten electors as seconders as required by Section 5B(l)(a); and also that
signatures of some of them were inoperative according to Section 5B(5)
being common in one of the nomination paper of another candidate Shri
Ram Jethmalani which nomination paper was first delivered to the Returning Officer. The rejection of the nomination paper of Mithilesh Kumar
E Sinha was made accordingly by the Returning Officer nnder Section
5E(3)(c) of the Act. The petitioner contends that the rejection of his
nomination paper was wrongful which is a ground nnder Section 18(1)(c)
for a declaration that the election of the returned candidate is void.
F
The averments in the. petition are prolix and vague and some of the
contents of the petition are irrelevant and frivolous. However, at the
hearing of the petition, we ascertained from the petitioner his exact stand.
He indicated that he was a 'candidate' within the meaning of Section 13(a)
of the Act since his nomination paper was subscribed by the required
number of proposers and seconders and, therefore, his nomination paper
G was wrongly rejected. He claims that Section 5B(5) treats as valid the
nomination paper on which the proposer/seconder subscribes his signature
earlier and not the one which is delivered earlier to the Returning Officer.
According to the petitioner, his proposers and seconders who were common in one of the nomination paper of Shri Ram Jethmalani had subH scribed the petitioner's nomination paper earlier in point of time and,
MIIBILESH SINHA ·v. RETURNING OFFICER [VERMA, J.]
661
therefore, delivezy of Shri Ram Jethmalani's nomination paper to the A
Returning Officer earlier than delivery of petitioner's nomination paper on
June 24, 1992, did not have tho effect of making the common signatures on
the petitioner's nomination paper inoperative. This in substance is the
petitioner's case in this election petition.
We may also quote some portions from the petition on which the B
petitioner relied to contend that the requisite pleadings for raising a triable
issue in addition to indicating the petitioner's competence to maintain the
election petition have been pleaded by him. A verbatim reproduction from
the petition is as under:
"2. Right of the Petitioner:
I am a "Candidate" as defined in Section 13(a) of P. & V.
Election Act 1952 because:
(a) I have declared my candidature and released Manifesto for Presidential Election in 1992 in three Press Conferences on 29.5.92, 9.6.92 and 17.6.92.
(b) I have filed my nomination paper on 24.6.1992 before
the Returning Officer (Respondent No.1) with allied and
required papers and security of Rs. Two thousand and
five fundred only (2500).
3. Brief facts leading to the Petition:
(a) For election in 1992 I obtained required number of
signature over my nomination paper and declared my
candidature in Press Conferences at Patna and Delhi.
xxx
xxx
xxx
( d) I also handed over a forwarding letter to him enclosing
Nomination Paper, Affidavit in its support, objection to
be used during scrutiny and other allied papers.
( e) Credits earned by me between 24-6-87 and 19-6-92
and above facts became eyesore of my opponents who
influenced the Returning Officer (Rept. No.1) who
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rejected my "Nomination" on the basis of section 5E(3)(c)
dependent over Section 5B(5) of the Act which are not
application to me.
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4. Cause of Action:
(a) Against Respondent No. 1
(i) Being influenced by Respondeht No. 3, 4, and 5. He
rejected my nominations on the basis of section
C
5E(3)(c) dependent over Section SB(S) of P & V
Election Act which are not applicable to me.
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(c) Against Respondent No. 3
(i) He mis-used his position as Chairman of Rajya Sabha
to influence the Secretary General of Rajya Sabha who
is Returning Officer for Presidential Election of 1992
to reject my nomination by "book or crook".
E
(ii) He also influenced the R.eturning Officer to throw my
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letter dt. 19.6.92 into a "Waste paper basket".
(iii) He did not submit "Affidavit" in support of genuinness
of signatures of proposers and seconders.
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"7. Arguments for comet meaning of Section 5B(5) of the
Act.
(a) The spirit of this section is quite clear.
(b) It is a mandatory check over elections.
( c) As punishment for violation of this mandate Second
Signature of the elector will be inoperative.
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(d) The word "delivered" should be read as "Subscribed".
MITHILESH SINHA v. RETURNING OFFICER [VERMA,J.]
( e) The corresponding word for "delivered" in Hindi
translation is
11~" which means "subscribed". There
is no word like "~".
(f) The word "delivered" is related to "signature" and is
not related to "paper".
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8. Issues to be decided:
(a)Whether the Returning Officer has mis-understood
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Section 5B(5) of P & V Election Act.
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(b) Whether nomination of Mithilesh Kumar is valid
under Section 5E(3)(c) of the Act.
(c) Whether Section 5B(5) of the Act is applicable to
Mithilesh Kumar."
"12. Grounds from Section 18 of the Act:
(a) The Returned· candidate (Respondent No. 3) have
unduly influenced the Returning Officer for wrong
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decisions/orders.
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(b) The result of the election has been materially affected
by non-compliance of Section 5E(3)(D) of P & V.
Election Act.
(c) The nomination of Shri G.G. Swell, Shri Ram Jethmalani, and Sri Kaka Jogender 'Dhartipakar' were
wrongly accepted.
·(d) Nomination of Mithilesh Kumar (The Petitioner) was
srongly rejected.
(e) Nomination of the Returned candidate Dr. Sankar
Dayal Sharma lrns been wrongly accepted."
"14. Prayer for relief:
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Therefore, your lordship are prayed for the following
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reliefs:
(a) Please declare the election of the Returned candidate
as void.
( d) Please declare Mithilesh Kumar as duly elected."
The petitioner has also relied on an entry .in the list of dates filed by him
in which he has stated as under: '
"30.3.1992 to 28.5.1992
I obtained signature of twenty M.L.As. for
Presiddential Election in 1992."
The preliminary objection raised is that the petitioner not being a
'candidate' as defined in Section 13(a) of the Act is, therefore, not competent to present the election petition as required by Section 14A of the
Act. The alternative objection is tha~ even assuming the petitioner satisfies
D the definition of 'candidate' and is, therefore, competent to present the
election petition, there are no averments in the petition to raise any triable
issue relating to the grounds under Section 18(1)(c) of wrongful rejection
of his nomination paper or under Section 18(1)(a) of undue influence. The
remaining parts of the petition are irrelevant since the other of the other
E grounds are merely mentioned without pleading any material facts to
provide the requisite basis for those grounds. At the hearing also the
petitioner urged the ground only under Section 18(1)(c) of wrongful rejection of his nomination paper.
Shri Kapil Sibal, learned senior counsel for the returned candidate
F
Dr. Shanker Dayal Sharma as well as the Attorney General of India
contended that the petition must be rejected under Order XXXIX Rules
2, 5, 7 and 34 read with Order XXIII Rule 6 of the Supreme Court Rules,
1966 since it does not disclose a cause of action and is barred by the
provisions of the Act.
G Election Petition No.2 of 1992
Petitioner Kaka Joginder Singh alias Dharati Pakad was one of the
duly nominated candidated at the election. This petition too is similarly
clumsily drafted. At the hearing, the material portions relevant were ascerH
tained from the petitioner and they are quoted verbatim as under:
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.]
"2. Scrutiny of the nomination papers took place on 25th
June 1992. The Returning Officer Presidential Election
1992 rejected nomination papers of other candidates and
accepted the 4 nomination papers of Dr. Shanker Dayal
Sharma, Prof. G.G. Swell and Shri Ramjethmalani respondents Annexure III, illegally and unconstitutionally in spite
of various objections raised by the petitioners and other
candidates in sp!te of Annexure II without giving reasons."
"5. That the petitioner claims the relief under clauses (a)
and (b) of Section 16 on the grounds mentioned in section
18(1)(2) and 19 of the Presidential and Vice Presidential
Elections Act 31 of 1952 (hereinafter called the 'Act')."
"6. The facts on which the petitioner rely in support of the
grounds are stated in the next para:
(a) Scrutiny of nomination papers took place on July 25th
June, 1992. The Returning Officer did not write any
detailed order during scrutiny and he simply declared
that the nominations of some candidates were rejected
or accepted. The petitioner raised written objections
against the nominations of all the three respondents
Annexure-III on the following grounds:
( 1) That all the nomination papers are presented by one
single proposer and not by 10 proposers of respondent
1 & 2. Further it has been proposed and seconded by
the Prime Minister and Central Ministers, Chief Ministers, Members of Parliament.
(2) That all the respondents are above 65 years of age as
such under U/A 70 (Discharge of Function of President Act 1969, they are not eligible for the office of
the President as the age of the Chief Justice of India
has been fixed as 65 years and if he is acting as
President of India and he crosses the age of 65 years
the .1 he is bound to vacate the office of President.
(3) That under the provisions of Salary and Allowances
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SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
Act of Members of Parliament 1954, the Respondent
No.l is in the office of profit under Article 58 (3) of
the Constitution oflndia and the proposers are public
servants according to various laws therefore they cannot propose or second the nomination papers of the
returned candidate.
(4) That all the Respondents have not filed the complete
copy of Electoral Roll as required under the Provisions
of Laws AIR 1966 S.C. page 1626 Ranjit Singh v. Pritam
Singh.
(5) That Dr. Shanker Dayal Sharma being public servant
as Vice President, therefore he is in the office of profit
VIA 58 (2) of the Constitution of India.
( 6) That all respondents have not taken any oath under
Article 58(c) & 84 (a) read with Article 79 of the
Constitution. Hence the Returning Officer Shri
Sundershan Agrawal whose term of service has been
extended by Dr. Shanker Dayal Sharma for one year
from 1.7.92 is illegal and it amounts to undue influence
in the Election, therefore the Election of the Returned
Candidate is liable to be declared void. Article 71(3)
of the Constitution Authorises the Parliament to regulate by law the matters concerning the elections to the
office of the President of India. It was thus only the
Parliament which could make any law for regulating
the elections but not qualifications can be imposed
contrary to Article 58. Under Section 21(3) of the Act
the power to make rules is with the Parliament and
not vested with the Election Commission and Central
Government. Thus the Presidential and VicePresidential Election Rules 1974 has not been passed
by both the houses of Parliament and no assent has
been given by the President. It has been published by
Ministry of Law, Justice and Company Affairs (Legislative Department) Notification No. S.0.305(E) dated
the 21st May 1974 (See Gazette of India, Extra ordi-
MITHILESHSINHA v. RETURNING OFFICER [VERMA,J.]
nary Part II section 3(ii). Thus it is contrary to section
21(3) of the Act along with Article 58, 71(3) of the
Constitution, hence it is void and· unconstitutional.
Under Article 84 and 102 the qualifications and disqualification have been mentioned lint under Article
58 only qualifications of Presidential Candidates have
been mentioned, thus it is clear that there is no disqualification under Article 58 of the Constitution. As
it has been mentioned in Article 102 of the Constitution for members of Parliament."
"PRAYER
The petitioner demands justice, therefore, in the circumstances of the case, the petitioner Most Respectfully
prays.
1. That the Constitutional Eleventh Amendment Act,
1%1, Anti Defection Act, and Party whip be declared
ultra vires U/A 14, 38 of the Constitution of India.
2. That the Sections 5(B)(6) and 5(C) 21(3) of the
Presidential and Vice Presidential Election Act 1952
(Amended) with Election Rules 1974 be declared illegal,
void and unconstitutional under Articles 14 and 58 of the
Constitution of India.
3. That the post of the Prime Minister and other Council
of Ministers, Chief Ministers and other Ministers are
Public servants as decided by 7 Judges of this Hon'ble.
Court in R.S. Naik v. A.R. Antuley, be declared that they
are in the office of profit, hence they have played μndue
influence in the Election of the returned candidate, hence
the Election of the Returned Candidate be declared as
void.
4. That the Election of the Returned Candidate, respondent be declared void and stated in the Petition U/s 18.of
the Act.
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SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
5. That President's discharge of function Act, 1%9, be
declared ultra vires to Articles 145, 71, 60, 52 and 53 of
the Constitution of India.
6. That the above system of Election of the President is
bad and unconstitutional, therefore, it ;hould be held
directly in future by all the Electorals and the Union of
India be directed to amend Articlr.s 54, 55 and 66 of the
Constitution of India as the value of the votes are decided
on the basis of the population and the value of votes of
M.Ps differs with value of the M.L.As of all States, hence
it is discriminatory and violative to Articles 14 and 38 of
the Constitution of India.
7. That Sections 4(1)(2), 5, 6, 7 and 11 of the Salaries and
Allowances of Ministers Act 1952 (Act No. 58 of 1952)
along with Sections 3, 4, 5, 6, 7, 8 and 9 of the Salaries
and Allowances of Members of Parliament Act 1954 be
declared void and unconstitutional.
8. That the Election of the Returned Candidate, Dr.
Shanker Dayal Sharma as President Elect be declared
void in view of the above prayers and the petitioner may
be declared as elected President of India.
9. That the nomination papers of Dr. Shanker. Dayal
Sharma, Prof. G.G. Swell and Ram Jethmalani have been
wrongly accepted by the Returning Officer, hence all the
nomination papers of above candidates be declared illegal and void and the petitioner Kaka Joginder Singh
alias Dharti Pakad S/o Sardar Hazoor Singh of Bareilly
be declared as the Elected Candidate of the post of
President.
11
The averments in para 2 of the petition relate to wrongful acceptance
of the nomination papers of the other three candidates and have to be read
with Annexure II which is a letter dated 25.6.1992 of the petitioner to the
Returning Officer containing his objections to the nomination of the other
candidates and another letter dated 2.7.1992 from the petitioner to the
H Chief Election Commissioner complaining that the Returning Officer did
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.)
669
not pass any order on the petitioner's objections dated 25.6.1992 while A
accepting the nomination papers of the other candidates under political
pressure. The objections raised by the petitioner in his letter dated
25.6.1992 to the nomination papers of the other three candidates were that
: (1) they did not mention correct names of the parliamentary constituencies; (2) the proposers and seconders had also not given the correct names
B
and numbers of the their respective constituencies from which they had
been elected; (3) there was defect in the entries made in Col. No.4 in the
Form of their nomination papers; and ( 4) 'there is no column prescribed
in the Form mentioning the number of an electorate; however, the numbers
of the electorate have been mentioned in Form No.2' which is against the
law. These were the defects in the nomination papers of Dr. Shanker Dayal C
Sharma, Prof. G.G. Swell and Shri Ram Jethmalani, which were mentioned
in the objections raised by the petitioner.
We need not refer to the remaining portions of the petition which
do not plead any facts to raise any ground Section 18 or 19 of the Act.
D
The preliminary objection raised by Shri Kapil Sibal for the returned
candidate Dr. Shanker Dayal Sharma and also by the learned Attorney
General of India is that this petition also is liable to rejection under Order
XXXIX Rules 2, 5 and 34 read with Order XXIII Rule 6 of the Supreme
Court Rules, 1966 since it does not disclose any case of action or raise any E
triable issue. The competence of petitioner in this petition as a 'candidat~'
to file the election petition is not disputed.
We would now refer to some material provisions before considering
the preliminary objections raised to the maintainability of these petitions.
Article 54 of the Constitution of India provides that the elected
members of both Houses of Parliament and the elected members of the
Legislative Assemblies of the States shall constitute the electoral college
F
for election of the President of India. Article 56 prescribes the term of
office of the President as five years from the date qn which he enters upon G
his office. Qualifications for election as President are prescribed in Article
58 as under:
"58. Qualifications for election as President.