Supreme Court of India
AJAY MAKENversusADESH KUMAR GUPTA & ANR.
- Citation
- 2012 INSC 577
- Decided
- 11 December 2012
- Disposal
- Disposed off
- Bench
- ALTAMAS KABIR
Holding
The election petition cannot be dismissed for non‑impleadment of Vijay Goel because no allegation against him is made in the petition itself, and the question of the copy’s authenticity under Section 81(3) is to be reconsidered by the High Court.
Summary
The Delhi High Court dismissed an election petition challenging the 2009 Lok Sabha election of Ajay Maken on grounds of alleged corrupt practices. The appellant argued that the petition should be thrown out for (i) the copy served on him not being a true copy under Section 81(3) of the Representation of the People Act, 1951, and (ii) the failure to implead another candidate, Vijay Goel, as required by Section 82(b). The Supreme Court held that the copy‑serving defect falls under Section 83, not a fatal ground under Section 81(3), and remitted the matter to the High Court for fresh consideration. It also held that no allegation against Vijay Goel was made in the body of the petition; annexures not authored by the petitioner do not constitute "allegations made in the petition," so non‑impleadment of Vijay Goel is not fatal. The appeal was disposed of, with the petition not dismissed on the second ground and the first issue sent back to the High Court.
Issues considered
- Whether the copy of the election petition served on the appellant was a true copy within the meaning of Section 81(3) of the Representation of the People Act, 1951.
- Whether the non‑impleadment of candidate Vijay Goel, alleged in an annexure but not in the body of the petition, renders the election petition fatal under Section 82(b).
Legislation cited
- Code of Civil Procedure, 1908s. Order VII Rule 11
- Constitution of Indias. Article 329
- Representation of the People Act, 1951s. 100, s. 101, s. 123, s. 127(a), s. 77, s. 81(3), s. 82(b), s. 83, s. 84, s. 86, s. 98, s. 99
Subjects
Representation of the People ActElection petitionCorrupt practiceSection 81Section 82AnnexureTrue copyNon‑impleadmentHigh CourtCivil Procedure Order VII Rule 11Parliamentary election
Judgment
(2012) 13 S.C.R. 192
A AJAY MAKEN
. v.
ADESH KUMAR GUPTA & ANR.
(Civil Appeal No. 8919 of 2012)
DECEMBER 11, 2012
B
[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 petition-
i.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
HELD:
Per J. Chelameswar, J.
B
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.
2.1. Section 82(b) of the Representation of the People 8
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]
2.3. In a case like the one on hand where the election
8
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) [227-
H; 228-A-B] •.
E
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 F
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 G
1977 (2) SCR 904 referred to Para 18
1955 SCR 457 referred to Para 19
(1968) 3 SCR 13 explained Para 22
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
made parties in the Election Petition, Section 83 relates
0
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]
B
3. The allegations made against 'V', contained in
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.
D
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.
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. G
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.
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 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);
F
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.
H 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
petition, contained signatures of the petitioner;
(ii) 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;
E
(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 F
follows:
"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
202 SUPREME COURT REPORTS (2012) 13 S.C.R.
A 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-
8
'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
c 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
D 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
E 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
F 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
G
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. 8
(xii) Page no. 134 Blurred, not get printed by the
Respondent No.2 not signed or verified as per the law.
(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.
F
(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.
G
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
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
copy of the election petition filed in the High Court or the copy
8
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•.
·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
F 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
G 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 non-
compliance of Section 83, is not specified as a ground for dismissal of the
H 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
206 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 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
c 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
D
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
208 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
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
F 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
F
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.
G
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
the market cost on the these site be added to the
expenditure account of the candidate. The copy of the H
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
mention in the said annexure, the name of Vijay Goel is not
8
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 parties-
H 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. Section 79(e) defines the High Court to mean,
the High· Court within the local limits of whose jurisdiction the
disputed election took place. C
30. Section 81 deals with the presentation of election
petitions:
"81. Presentation of petitions.-(1) An election petition
0
calling in question any election may be presented on one
or more of the grounds specified in sub-section (1) of
section 100 and section 101 to the High Court by any
candidate at such election or any elector within forty-five
days from, but not earlier than the date of election of the
returned candidate or if there are more than one returned E
candidate at the election and dates of their election are
different, the later of those two dates.
Explanation.-ln this sub-section, "elector" means a
person who was entitled to vote at the election to which F
the election petition relates, whether he has voted at such
election or not.
(2) ... (Omitted by Act 47 of 1966, sec.39 (w.e.f.
14.12.1966)
G
(3) Every election petition shall be accompanied by as
many copies thereof as there are respondents mentioned
in the petition and every such copy shall be attested by the
petitioner under his own signature to be a true copy of the
petition." H
214 SUPREME COURT REPORTS [2012) 13 S.C.R.
A It stipulates:
(i) The grounds on which an election can be
challenged;
(ii) The person who are entitled to challenge any
B election;
(iii) The perio~ of limitation within which the election
petition is 1to be presented;
c that (iv) Every election petition shall be accompanied
by a many copies thereof as there are respondents
to the petition; and
(v) Any such copy shall be attested by the election
petitioner to be a true copy of the petition.
D
31. Section 82 prescribes as to who shall be joined as the
respondents to an election petition, the contents of which shall
be examined later.
E 32. Section 83• stipulates that; (a) an election petition shall
contain a concise statement of material facts on which the
Section 83. Contents of petition.- (1) An election petition-
(a) shall contain a concise statement of the material facts on which the
petitioner relies;
F (b) shall set forth full particulars of any corrupt practice that the petitioner
alleges, inculding as full a statement as possible of the names of the parties
alleged to have committed such corrupt practice and the dated and place
of the comission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in
the Code of Civil Procedure, 1908 (5 of 1908) for the verification of
G pleadings:
[Provided that where the petitioner alleges any corrupt practice, the
petitioner shall also be accompanied by an affidavit in the prescribed form
in supoort of the allegation of such corrupt practice and the particulars
thereof.]
(2) Any schedule or annexure to the petition shall also be signed by the
H petitioner and verified in the same manner as the petition.
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR. 215
[J. CHELAMESWAR, J.]
petitioner relies; (b) that the election petition shall set forth full A
particulars of any corrupt practices, which the petitioner alleges
in the election petition; and (c) the method and manner of
verification of election petition. It further stipulates that wherever
an allegation of corrupt practice is made in an election petition,
the election petition shall be accompanied by an affidavit in the B
prescribed form and also every annexure or schedule to the
petition be signed and verified in the same manner as the
petition.
33. Section 84 stipulates the reliefs that can be sought in
an election petition. It reads:
c
"84. Relief that may be claimed by the petitioner: A
petitioner may, in addition to claiming a declaration that
the election of all or any of the returned candidates is void,
claim a further declaration that he himself or any other D
candidate has been duly elected."
It can be seen from the above that in an election petition
the petitioner can claim declaration that; (1) the election
of a returned candidate is void; and (2) a further
E
declaration that either the petitioner himself or any other
candidate has been duly elected.
34. We have already noticed that section 81 stipulates that
an election can be challenged only on one or more of the
grounds specified under sections 1001 and 1012 of the Act. F
1. Section 100-Grounds for declaring election to be void.
[(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or
was disqualified, to be chosen to fill the seat under the Constitution or this G
Act [or the Government of Union Territories Act, 1963 (20 of 1963)]; or
(b) that any corrupt practice has been committed by a returned candidate or
his election agent or by any other person with the consent of retruned
candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
H.
216 SUPREME COURT REPORTS [2012] 13 S.C.R.
A Section 100 stipulates various grounds on which election of a
returned candidate can be declared to be void, while Section
101 stipulates circumstances under which a further declaration
contemplated under Section 84, can be given by the High Court
(after declaring the election of a returned candidate to be void)
B that some candidate other than the returned candidate is duly
elected in the said election.
35. What should be ~he prayer in an election petition is a
matter of the petitioner's choice. It is for the petitioner to decide
whether he would be satisfied with a declaration of nullity of the
C election of the returned candidate or a further declaration such
as one contemplated under section 101 is to be sought.
(d) that the result of the election in so far as it concernsa returned candidate,
D has been materially affected-
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned condidate
[by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception
of an vote which is void, or
E {iv) by any non-compliance with the provisions of the Constitution or of this Act
or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be
void.
2. Section 101- Grounds for which a candidate other than the returned
candidate may be declared to have been elected
F
If any person who has lodged a petition has, in addition to calling in question
the election of the returned candidate, claimed a declaration that the himself
of any other candidate has been duly elected and [the High Court] is of
opinion-
(a) that in fact the petitioner or such other candidate received a majority of the
valid votes; or
G
(b) that but for the votes obtained by the returned candidate by corrupt practices
the petitioner of such other candidates would have obtained a majority of
the valid voles,
the High. Court shall, after declaring the election of the return.ed candidate
to be void declare the petitioner or such other condidate, as the case may
be, to have been duly elected.
H
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR. 217
[J. CHELAMESWAR, J.]
36. However, as to who should be made parties/ A
respondents to an election petition is stipulated under section
82 and not left to the choice of an election petitioner. Section
82 reads thus:
"82. Parties to the petition.-A petitioner shall join as 8
respondents to his petition-
(a) where the petitioner, in addition to claiming
declaration that the election of all or any of the
returned candidates is void, claims a further
declaration that he himself or any other candidate C
has been duly election, all the contesting candidates
other than the petitioner, and where no such further
declaration is claimed, all the returned candidates;
and
D
(b) any other candidate against whom allegations of
any corrupt practice are made in the petition."
37. It can be seen from section 82 as to who should be
made parties to an election petition depends upon two factors.
E
38. The first factor is the nature of the relief sought by the
petitioner. Where a further declaration as contemplated under
section 101 is sought, the petitioner is bound to make all the
contesting candidates parties respondents to the election
petition. Where no such declaration is sought, the section F
stipulates that it is enough to make all the returned candidates .
at the election, parties to the election petition. The employment
of the expression "all the returned candidates" is obviously
meant to cover disputes relating to elections to Rajya Sabha
or Legislative Councils where more than one candidate is G
declared elected at the same election.
39. The second factor is the ground on which declaration
of nullity of the election of the returned candidate is sought. It
must be remembered that the election of any returned
H
218 SUPREME COURT REPORTS [2012) 13 S.C.R.
A candidate can be questioned on various grounds specified
under section 100(1) of the Act, such as, lack of qualification
or disqualification on the part of the candidate, the commission
of corrupt practices by the returned candidate or his election
agent etc. or the improper rejection of the nomination of any
B candidate at the election etc.
40. The following propositions emerge from the above
analysis. An election to the Parliament or the State Legislature
can be called in question only in accordance with the provisions
of the Act. Such a question can be raised only before the High
C Court. The High Court, in an election dispute, can declare the
election of the returned candidate to be void. It may also give
a further declaration in an appropriate case and subject to
compliance with the procedural requirements that either the
election petitioner or any other candidate at the questioned
D election, has been duly elected. The first of the abovementioned
declarations can be made only on one or some of the various
groJnds enumerated under Section 100 of the Act.
41. In the present case, the relief sought by the election
E petitioner is only the declaration of nullity of the election of the
appellant herein on the ground of commission of corrupt
practices, but a further declaration contemplated under Section
84 read with Section 101 of the Act is not sought. Therefore, I
examine the relevant provisions. Section 100 prescribes that
F if the High Court is of the opinion that any corrupt practice has
been committed by a returned candidate or his election
agent or by any other person with the consent of either
the returned candidate or his election agent, "the High
Court shall declare the election of the returned candidate to be
G void".
"Section 100. Grounds for declaring election to be void:
(1) Subject to the provisions of sub-section (2) if [the High
Court) is of opinion -
H (a}····························
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR. 219
[J. CHELAMESWAR, J.]
(b) that any corrupt practice has been committed by a A
returned candidate or his election agent or by any other
person with the consent of a returned candidate or his
election agent; .........."
The said section also stipulates that if it is established before
8
the High Court that a corrupt practice has been committed in
the interest of the returned candidate by an agent other than
his election agent, then, the High Court is also required to
form an opinion that "the result of the election, insofar as it
concerns returned candidate, has been materially effected'',
before declaring the election of the returned candidate void. C
"Section 100. (d) that the result of the election, in so far
~s it concerns a returned candidate, has been materially
affected-
D
(i) ......................... .
(ii) by any corrupt practice committed in the interests of the
returned candidate [by an agent other than his election
agent],"
E
[Emphasis supplied]
The clause "by an agent other than his election agent" occurring
in ·section 100(1 )(d)(ii), must be understood in the light of
Section 99 (2), which reads as follows:
F
"In this section and in section 100, the expression "agent"
has the same meaning as in Section t23."
And Section 123(8) explanation, which reads as follows:
G
"In this section the expression "agent" includes an election
agent, a polling agent and any person who is held to have
acted as an agent in connection with the election with the
consent of the candidate ............ "
H
220 SUPREME COURT REPORTS [2012] 13 S.C.R.
A The Act enables the appointment, by every contesting
candidate - of an election agent, polling agents and counting
agents (Sections 40, 46 and 47• respectively).
42. If the commission of a corrupt practice by a candidate
other than the returned candidate or his election agent, etc.,
8
indicated above, is wholly immaterial for determining the validity
of the election of the returned candidate, I am at a loss to
understand as to why would any election petitioner MAKE
allegations of the commission of corrupt practices by
candidates other than the returned candidate, particularly in an
C election petition, where further relief contemplated under
Section 84 is not sought for, such as the one on hand.
43. Section 83(1)(b) requires that an election petition.shall
set forth "as full a statement as possible of the names of the
D parties alleged to have committed such corrupt practice". In my
opinion the employment of the expression "Parties" in the
abovementioned claus~ is to compendiously cover the returned
candidate, his election agent or any other person committing
a corrupt practice with the consent of either the returned
E candidate or his election agent or any other agent committing
a corrupt practice falling within the scope of Section 1OO(d)(ii)
40. Election agents.- A candidate at an election may appoint in the prescribed
manner any one person other than himself to be his election agent and
F when any such appointment is made, notice of the appointment shall be
given in the prescribed manner to the returning officer.
46. Appointment of polling agents.-A contesting candidate or his election agent
may appoint in the prescribed manner such number of agents and relief
agents as may be prescribed to act as polling agents of such candidate
at each polling station provided under section 25 or at the place fixed under
G sub-section (1) of section 29 for the poll.
47. Appointment of counter agents:- A contesting candidate or his election may
• appoint in the prescribed manner one or more persons, but not exceeding
such number as may be prescribed, to the present as his counting agent
at the counting of votes, and when any such appointment is made notice
of the appointment shall be given in the prescribed manner to the returning
H officer.
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR. 221
[J. CHELAMESWAR, J.]
44. Section 98 stipulates that at the conclusion of the trial A
of an election petition, the High Court is obliged to make an
order either dismissing the election petition or declaring the
election of a returned candidate void apart from giving a
declaration that another candidate to have been duly elected
in an appropriate case, where such a relief is sought B
successfully. Section 99 of the Act stipulates that the High Court
is also obliged to make an order in an election petition where
a charge of corrupt practice is made; (1) whether such a charge
is proved or not; (2) the nature of the corrupt practice, i.e.,
under which one of the Sub-sections of Section 123 of the Act c
the corrupt practice falls; and (3) the names of all persons, who
are proved at the trial to have been guilty of any corrupt practice.
45. The question of proof of the commission of a corrupt
practice arises only if there is an appropriate pleading in that
regard in the election petition. I have already noticed that D
Section 83 stipulates that an election petition, which contains
allegations of corrupt practice, must contain full particulars of
the "names of the parties" alleged to have committed a corrupt
practice. I am of the opinion that the Legislature chose to use
the expression 'PARTIES' for the reason that there are various E
categories of persons, who are capable of committing a corrupt
practice in connection with the election of a returned candidate
- (i) the returned candidate; or (ii) his election agent, or (iii) any
other person with the consent of either the returned candidate
or his election agent; or (iv) any other agent, as explained F
earlier. The difference in the language of Section 82 and
83(1)(b), in my opinion, is significant. While Section 82 speaks
of candidates, Section 83(1)(b) speaks of parties.
46. I shall now examine the question whether the election G
petitioner MADE allegations against Vijay Goel in the
ELECTION PETITION. To examine the correctness of the
submission made by Sri Parasaran in this regard, I must
examine the 3 Judgments relied upon by Sri Parasaran.
47. The facts of Sahodrabai case are as follows: H
222 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 48. Ram Singh was declared elected to the Lok Sabha
from Sagar constituency of Madhya Pradesh. His election was
questioned by Sahodrabai on various grounds including the
commission of a corrupt practice falling under Section 123(3)
of the Act. According to Sahodrabai, the content of a pamphlet
B (in Hindi) - a copy of which is annexed to the election petition,
allegedly circulated by the returned candidate, constitutes the
abovementioned corrupt practice. The content of the said
pamphlet was translated into English and incorporated in the
election petition itself. A preliminary objection was raised by
c Ram Singh that the election petition should be dismissed on
the ground of contravention of Section 81 (3) of the Act because
it was alleged by Ram Singh that a copy of the election petition
served on him was not accompanied by a copy of the pamphlet
referred to above. The High Court found, as a matter of fact,
that a copy of the election petition served on Ram Singh was
0
not accompanied by a copy of the pamphlet.
49. Dealing with the question whether such a copy served
on Ram Singh was .a true copy within the meaning of Section
81 (3) of the Act, this Court held as follows:
E
"we would say that since the election petition itself
reproduced the whole of the pamphlet in a translation in
English, it could be said that the averments with regard to
the pamphlet were themselves a part of the petition and
F therefore the pamphlet was served upon the respondents
although in a translation and not in a original. Even if this
be not the case, we are quite clear that sub-s. (2)of s.83
has reference not to a document which is produced as
evidence of the averments of the election petition but to
averrnents of the election petition which are put, not in the
G
election petition but in the accompanying schedules or
annexures."
It was further held by this Court:
H "But what we have said here does not apply to documents
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR. 223
[J. CHELAMESWAR, J.]
which are merely evidence in the case but which for A
reasons of clarity and to lend force tot eh petition are not
kept back but produced or filed with the election petitions.
xxx xxx xxx It would be stretching the words of sub-s. (2} of
s. 83 too far to think that every document produced as
evidence in the election petition becomes a part of the B
election petition proper."
50. From the above, it can be seen that two propositions
of law are settled by this Court. Firstly, when an election petition
is accompanied by annexures, whose content is completely
described in the election petition, failure to serve a copy of such C
an annexure along with the copy of the election petition on a
respondent to the election petition does not render the copy
served on the respondent anything other than a true copy of the
election petition. Secondly, even in a case where the content
of the annexure is not fully described in the election petition, D
the non-supply of such annexure along with the copy of the
election petition to the respondent does not violate the mandate
of Section 81 (3} in those cases where annexure is only sought
to be used as evidence of some allegation contained in the
election petition. E
51. In M. Karunanidhi v. Dr. H. V. Hande & Ors., (1983} 2
sec 473, the facts are as follows:
52. M. Karunanidhi was declared elected to the Legislative F
Assembly of Tamil Nadu from Anna Nagar Assembly
Constituency. Hande filed an election petition challenging the
election of Karunanidhi on various grounds. One of them was
that Karunanidhi incurred expenditure in connection with the
election in excess of the expenditure permitted under Section
77 of the Act. Such contravention by itself is declared to be a G
corrupt practice under Section 123(6} of the Act. According to
Dr. Hande, such excessive expenditure was incurred on
account 9f the erection of about 50 fancy banners throughout
the constituency at a cost of Rs.50,000/-. The photograph of
one such banner was filed as annexure along with the petition. H
224 SUPREME COURT REPORTS [2012) 13 S.C.R.
A Admittedly, a copy of the election petition served on Karunanidhi
was not accompanied by a copy of the said photograph. This
Cotirt opined that the1 photograph was not a mere evidence of
the allegations contained in the election petition of Dr. Hande
and it is an integral part of the election petition as without a copy
B of the photograph, th,e election petition would be "incomplete".
It is only a case whefe the principle laid down in Sahodrabai
case was applied to the facts.
53. In Mu/ayam Singh case, Mulayam Singh was declared
elected to the Lok Sabha from Sambhal Parliamentary
C Constituency. Dharam Pal Yadav, one of the other candidates,
filed an election petition on various grounds. One of the grounds
is commission of the corrupt practice of booth capturing falling
under Section 123(8) of the Act. There were 15 respondents
to the election petition and 25 schedules. Schedule 14 pertains
D to the allegation of cc)rrupt practice. In the election petition, it
was averred that there was booth capturing, arson, violence in
large scale which was captured in videograph under the orders
of the Election Commission. A copy of the said videograph
was averred to had been attached to the election petition as
E Schedule 14. On the facts, this Court recorded at para 12 and
13 as follows:
"12. xxx )()()( )()()(
As to booth-capturing, there are particulars contained in
F the other schedules but even in that regard the later
paragraphs of the election petition make reference to
Schedule 14 so that even in regard to booth-capturing the
particulars shown in the video cassette mentioned and
verified in Schedule 14 are relied upon. So far as the
G allegations of violence and arson are concerned, there are
no particulars in the election petition absent the video
cassette mentioned and verified in Schedule 14.
13. We are, therefore, satisfied that the video cassette
,H mentioned and verified in Schedule 14 is an integral part
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR. 225
[J. CHELAMESWAR, J.]
of the election petition and that it should have been filed A
in court along with copies thereof for service upon the
respondents to the election petition. Whereas 15 copies
thereof were filed for service upon the respondents, the
video cassette itself was not filed. The election petition as
filed was, therefore, not complete." B
[Emphasis supplied]
and held that in the absence of any particulars in the body of
the election petition, the videograph becomes an integral part
of the election petition and failure to attach a copy to the election C
petition is fatal to the election petition. Once again, a case
where the principle laid down in Sahodrabai case is applied
to the facts.
54. In Sahodrabai case, the specific allegation in the o
election petition was that circulation of the annexure in issue
by the returned ca.ndidate tantamounted to the commission of
corrupt practice described in Section 123(3) of the Act,
because of its content. I must hasten to add whether the content
of the said annexure, would fall within the definition of corrupt E
practice contained under Section 123(3) was not examined by
this Court as it was not called upon. This Court assumed the
correctness of the allegation for the limited purpose of
examining the issue before it. Even in such a case, this Court
held since the content, in its entirety, of the annexure was fully F
described in the body of the election petition, non-supply of
such an annexure is not fatal - on the ground, it is violative of
Section 81 (3) of the Act.
55. The purpose of the stipulation under Section 81 (3) is
to put the returned candidate on notice of the various G
allegations made against him in order to enable him to defend
himself effectively in the election petition - a stipulation flowing
from the requirement of one of the basic postulates of the
principles of natural justice. Once the content of the annexure,
the whole of which pertains to the commission of the corrupt H
226 SUPREME COURT REPORTS [2012] 13 S.C.R.
A practice alleged in the election petition, is described in the body
of the election petition with sufficient clarity, the returned
candidate cannot complain that he was denied a reasonable
opportunity of defending himself or that he was taken by
surprise at the trial. Therefore, non-supply of the annexure in
B such cases was held to be immaterial and the copy of the
election petition supplied to the returned candidate sans the
annexure would still be a true copy within the meaning of the
expression under Section 81(3). It is in this context the Court
observed in Sahodrabai case that the annexure became part
c of the election petition.
56. In my opinion, none of the abovementioned three cases
laid down as an absolute principle that an annexure to an
election petition, whose content is not described in the election
petition, would become the integral part of the election petition
D for all the purposes. It i~; only for a limited purpose of deciding
the question whether a copy of the election petition, served on
the respondent in the election petition, is a true copy of the
original filed into the Court within the meaning of Section 81 (3)
of the Act, annexures are treated as integral part of the election
E petition, that too, only in the situation, where the content of the
annexure is not fully desc:ribed in the body of the main petition.
57. Now, I shall examine the question whether the
allegations of commission of corrupt practice are MADE in the
F election petition within the meaning of the expression under
Section 82(b).
58. Obviously the allegations must be MADE by the
election petit1oner. In a case like the one on hand where the
election petitioner does not make any such allegation in the
G 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 - can it be said that the
allegations are MADE in the petition?
H 59. In my opinion the answer to the question must be in
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR. 227
[J. CHELAMESWAR, J.]
the negative. Because, firstly, the document annexure is not A
authored by the election petitioner; secondly, in the entire body
of the election petition there is no reference to any corrupt
practice committed by Vijay Goel. Making such an allegation
against Vijay Goel would in no way help the election petitioner
to obtain the relief sought by him in the election petition. Even B
at the cost of the repetition I must state that the election petition
does not seek a further declaration contemplated under Section
84 of the Act. As rightly, argued by Shri Ranjit Kumar, the
purpose of the annexure is only to derive support to the
allegation of the commission of corrupt practice alleged against c
the appellant only. Therefore, only that much of the content of
the annexure as is relevant to. the allegations made in the
election petition proper must be considered to have become
integral part of the election petition.
60. To stretch the principle laid down in Sahodrabai case, D
to say, that an annexure becomes an integral part of the
election petition for all purposes and, therefore, hold that the
allegations made against Vijay Goel in the annexure by
somebody other than the election petitioner would become
allegations MADE in the election petition, would lead to absurd E
results; that is what exactly sought to be done by the appellant
herein. I reject the submission.
61. In view of my above conclusion, I do not wish to
examine the purport and interpretation of Section 82(b). I must F
also place it on record that we gave our anxious consideration
to the four judgments i.e., Murarka Radhey Shyam Ram Kumar
case, Satya Narain case, Rajendra Singh case and
Chandrakanth Uttam Chodankar case, which dealt with the
interpretation of Section 82(b) and I am of the prima facie G
opinion that those judgments may require reconsideration in an
appropriate case. Since, the same is not n~cessary for the
present in view of my conclusion recorded above, I refrain from
examining the correctness of the said decisions.
62. In the result, I hold that the election petition cannot be H
228 SUPREME COURT REPORTS [2012] 13 S.C.R.
A dismissed on the ground that Vijay Goel 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 the original within the
meaning of Section 81 (3), I remit the matter to the High Court
B for disposal in accordance with law and in the light of this
judgement.
ALTAMAS KABIR, CJI. 1. Having had the privilege of
going through the draft judgment of my learned Brother, Jasti
Chelameswar, J., I am in agreement with the conclusions
C arrived at by him as also the directions to remit the matter to
the High Court for disposal in accordance with law in the light
of the views expressed in the judgment. I, however, wish to add
a few words in addition to what has been stated by my learned
Brother.
D
2. In dealing with the provisions of Sections 82 and 83 of
the Representation of the People Act, 1951, my learned Brother
has very dexterously pointed out the differences contained
therein. However, the provisions of Sections 82 and 83 of the
E 1951 Act have to be read harmoniously. While Section 82
relates to who should be 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
F any of the returned candidates is void, the Petitioner claims a
further declaration that he himself or any other 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
G (b) in addition requires that any other candidate against whom
allegations of corrupt practice are made in the Petition, has to
be made a party to the Election Petition. As pointed out by
my learned Brother, 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
H
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR. 229
[ALTAMAS KABIR, CJI.]
made a party to the Election Petition, allegations of corrupt A
practice would have to be made against him in the Election
Petition itself.
3. The question with which we are concerned is whether
an annexure to the Petition in which allegations of corrupt B
practice are made against a candidate, without any allegation
being made against him in the Election Petition itself, can be
said to be an integral part of the Election Petition.
4. Considering the fact that Section 83(1}(b} requires an
Election Petition to contain full particulars of any corrupt practice C
alleged by the Petitioner, can a document which contains
allegations of corrupt practice against a candidate against
whom no allegation is made in the Election Petition itself, be
deemed to be a part of the Election Petition. In order to apply
the decisions of this Court, referred to in my learned Brother's D
judgment, to the facts of this case, it would be necessary that
some allegation of corrupt practice would have to be made in
the Election Petition itself against a person against whom
allegations of corrupt practice may separately have been made.
In my view, in the absence of any such allegation in the Petition, E
the provisions of clause (b} of Section 82 will not be attracted.
5. Accordingly, while agreeing with my learned Brother that
the allegations made against Mr. Vijay Goel, contained in
annexure to the Election Petition, can have no bearing on the
F
facts at issue in the Election Petition itself, in my estimation Shri
Vijay Goel is not required to be made a party to the Election
Petition. As also indicated by my learned Brother, the matter
may require further examination in an appropriate case.
However, in the facts of this case, the non-impleadment of Shri
Vijay Goel against whom there were no allegations in the G
Election Petition is not fatal to the Election Petition and the
matter is required to be re-examined by the High Court, as
indicated by my learned Brother.
B.B.B. Appeal disposed of. H
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