BIDESH SINGHversusMADHU SINGH AND ORS.

A                                BIDESH SINGH
                                         V.

                           MAOHU SINGH AND ORS.

                              SEPTEMBER 23, 2003

B                   [V.N. KHARE, CJ. AND S.B. SINHA, J.)

          Representation of the People Act, 1951:

          ss. 81,82,86 and 117 read with ss. lOO(l)(b) and lOO(l)(d)(iilj-
C Election petition-Infirmity in verification and service ofa copy thereof on
  respondent-Effect of-Election petition challenging election of returned
  candidate on the ground of illegality in rejection of 258 ballot papers and
  seeking inspection and scrutiny thereof-Returned candidate filing
  application for dismissal of election petition for non-service of signed and
  verified copy of election petition on him and on the ground of estoppel-
D High Court allowing the applicatian holding that election petitioner had
  himself given a certificate that the counting was correct-Held, admittedly
  the election petition did not suffer on account ofa defect in the requirements
  ofs.81 or s.82 or s.117 and the same could not have been dismissed for non-
  compliance of these provisions-Jurisdiction of the Tribunal in terms of
E s.86 is limited and the election petition cannot be dismissed at the threshold
  even for non-compliance ofs. 83-There is difference between the requirement
   ofpleading as regards an election petition based on s. J00(1 )(d)(iii) and the
   one based on s. JOO(l)(b)-Jn case of an election petition based on
  s. IOO(l)(d)(iii), the election petitioner is required to set out the material
F facts and particulars in as much as to make out a prima facie case for
   inspection or scrutiny of the ballot papers-Where the Tribunal finds that
  the materialfacts set out in such an election petition are lacking, the election
   petitioner is entitled to supply necessary material facts and particulars
   under Order XVII of the Code of Civil Procedure-The question as to
                                                                                     ....   j
   whether the election petitioner was estopped and precluded from raising
G the contentions in his election petition as regards the validity or otherwise
   ofthe 258 ballot papers, was a matter which could have been gone into only
   at the trial-The election petition could have been allowed or dismissed by
  the Tribunal having regard to the provisions contained in Section IOO(J)(e)
   of the Act only after a fall dressed trial and upon giving opportunity to the
H parties to examine themselves and/or their witnesses in support of their
                                        1074
                  BIDESH SINGH v. MAOHU SINGH                       1075

respective cases -The Tribunal has exceeded its jurisdiction under s. 86 of A
the Act-Order ofHigh Court set aside-Conduct ofElection Rules, 1961-
r. 94-A.

     Dr. Vijay Laxmi Sadho v. Jagdish, AIR (2001) SC 600, relied on.

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4402 of B
2002.

     From the Judgment and Order dated 2.5.02 of the High Court of
Jharkhand Judicature at Ranchi in Election Petition No. 2 of 2000.

     Amitesh Kumar and Lakshmi Raman Singh for the Appellant.
                                                                           c
    Amarendra Sharan, Irshad Ahmad and Samir Ali Khan for the
Respondents.

     The following Judgment of the Court was delivered :                   D

     This is an appeal against the judgment of Jharkhand High Court
dismissing the election petition filed by the appellant herein.

      The electors of 318 Panki Legislative Assembly Constitutency were E
called upon by the Election Commission to elect a member for the then
Bihar Legislative Assembly. 24th January, 2000 was fixed as the last date
for filing nomination papers, whereas the date fixed for scrutiny of
nomination papers was 25th January, 2000. As per the programme, the
polling was to take place on 12th February, 2000. As a result of counting F
of votes, the respondent No. I herein was declared elected having been
polled 17095 valid votes whereas the appellant herein was shown to have
secured 17058 valid votes. The appellant herein filed an election petition
challenging the election of respondent No. I herein-returned candidate
wherein prayers for setting aside the election of the returned candidate and
a further relief that he may be declared elected from 318 Panki Legislative G
Assembly Constituency after inspection and scrutiny of 258 illegally
rejected ballot papers in respect of Booth No. 35, were made.

      Respondent No. I instead of filing a written statement.Jn the election
petition, filed an application purported to be under Sections 81, 83 and H
    1076                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 86( I) of the Representation of the People Act, 1951 (hereinafter referred
  to as "the Act") and Rule 94A of the Conduct of Election Rules, 1961
  (hereinafter referred to as "the Rules") read with Order 7 Rule 11 & Order
  14 Rule 2 of the Code of Civil Procedure for dismissal of the election
  petition on the ground of maintainability. In the said application, the first
B respondent, inter alia, contended that the signed copy of the election
  petition not with the seal of the Oath Commissioner was not served upon
  him. It was further contended that having regard to the fact that the
  appellant herein having accepted that the aforesaid 258 ballot papers had
  been rejected on the third round of counting in respect of Booth No. 35
C he is estopped from questioning his election. The appellant herein filed a
  reply thereto. The Tribunal entertained the said application and by reason
  of the impugned judgment it although held that the election petition does
  not suffer on account of any infirmity in the verification in the election
  petition or in the matter of service of a copy of the election petition upon
  the respondent with the seal of the Oath Commissioner but proceeded to
D allow the said application, inter a/ia, on the ground that the appellant
  himself had given a certificate to the effect that the third round of counting
  in Booth No. 35 as regards rejection of258 ballot papers was correct being
  in violation of Rule 38(1) and Rule 56(2)(h) of the Rules. The High Court
  by reason of the impugned judgment held that once the error as specified
E in clause (h) of Rule 56(2) has been committed the Returning Officer had
  no other option but to reject the said ballot papers.

         In that view of the matter, the election petition was dismissed. It is
    against the said judgment of the High Court/Tribunal, the appellant is in
F   appeal before us.

         Having heard the learned counsel for the parties, we find that the very
    approach of the Tribunal in dismissing the election petition at the threshold
    was erroneous.

G         Section 86 of the Act provides that the High Court shall dismiss an
    election petition which does not comply with the provisions of Section 81
    or Section 82 or Section 117. It is not disputed that the petition did not
    suffer on account of a defect in the requirements of Section 81 or Section
    82 or Section 117 and, thus, the election petition could not have been
H   dismissed for non-compliance of the aforesaid provisions. What is sought
                   BIDESH SINGH v. MAOHU SINGH                          1077

to be stated by the Tribunal is that the election petition lacks material facts A
and that the election petitioner himself has given a certificate to the
Returning Officer that the third round of counting of Booth No. 35 was
correct and, therefore, has disentitled himself to raise any such objection.

      The jurisdiction of the Tribunal in terms of Section 86 is limited. The B
election petition, it is trite, cannot be dismissed at the threshold even for
non-compliance of Section 83 of the Act. In Dr. Vijay Laxmi Sadho v.
Jagdish, AIR (2001) SC 600, this Court has stated the law in the following
terms :

         "An election petition is liable to be dismissed in limine under C
         Section 86(1) of the Act only if the election petition does not
         comply with either the provisions of 'Section 81 or Section 82 or
         Section 107 of the Act.' The requirement of filing an affidavit
         along with an election petition, in the prescribed form, in support
         of allegations of corrupt practice is contained in Section 83( 1) of D
         the Act. Thus an election petition is not liable to be dismissed in
         limine under Section 86 of the Act, for alleged non-compliance
         with provisions of Section 83(1) of the Act or of its proviso. What
         other consequences, if any, may follow from an allegedly
         'defective' affidavit, is to be judged at the trial of an election E
         petition but Section 86( I) of the Act in terms cannot be attracted
         to such a case."

      It is not a case where respondent No. I contended that the allegations
made in the election petition were vague which would cause prejudice to
him in the matter of filing written statement. Even if such a case had been F
made out, the Tribunal must remember the difference between the
requirement of pleading as regard an election petition based on under
Section 100( 1)(d)(iii) and the election petition based on Section JOO( l)(b)
of the Representation of People Act, 1951. In case of an election petition
based on Section IOO(l)(d)(iii) is concerned, the election petitioner is G
required to set out the material facts and particulars in as much as to make
out a prima facie case for inspection or scrutiny of the ballot papers. Where
the Tribunal finds that the material facts set out in such an election petition
is lacking, the election petitioner is entitled to supply necessary material
facts and particulars under Order XVII of the Code of Civil Procedure. The H
    1078                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A question as to whether the election petitioner was estopped and precluded
  from raising the contentions in his election petition as regards the validity
  or otherwise of the 258 ballot papers, in our considered opinion, was a
  matter which could have been gone into only at the trial. The election
  petition could have been allowed or dismissed by the Tribunal having
B regard to the provisions contained in Section IOO{l)(e) of the Act only after
  a full-dressed trial and upon giving opportunity to the parties to examine
  themselves and/or their witnesses in support of their respective cases. In
  such a proceeding, the parties could even examine the Presiding Officer
  or other official witnesses as regards the contention as to whether the said
C 258 ballot papers were valid or invalid.
        Keeping in the view the fact that the Tribunal has exceeded its
  jurisdiction under Section 86 of the Act, we have no other option but to
  set aside the impugned order leaving the questions raised by respondent
  No. I in his application open for detennination thereof at an appropriate
D stage.
           The Appeal is allowed in the aforesaid tenns.

    R.P.                                                      Appeal allowed.