The Lucknow Bench of the Allahabad High Court has rejected a petition filed seeking a declaration that the election of BJP MLA from Lucknow North, Dr Neeraj Bora, as void.
A single-judge bench of Justice Rajesh Singh Chauhan passed this order while hearing an election petition filed by Sarvesh Kumar Gupta.
By means of the election petition, the petitioner has prayed that the election of Assembly Constituency 172 Lucknow, North of returned candidate Dr Neeraj Bora, the opposite party, which was declared on 10.03.2022 may be declared as void and set aside.
By means of an objection filed in the Election Petition, the petitioner filed an objection on 13.05.2022 making request that the petitioner may be exempted from requirement of publication in terms of Rule 6 (c) of the Rules, 1952 stating therein that the petitioner is incapable of making such a huge payment i.e Rs 94,450 in the name of publication in the newspaper because he is a man of humble background and the payment of such amount is beyond his control and means, as recital to this effect has been given in para-11 of such objection.
Counsel for the petitioner has referred to the mandate of Section 6 of the Representation of People Act, 1951 to contend that the publication in the newspaper has not been indicated in such Act, 1951, therefore, the petitioner may not be compelled to deposit such a huge amount for publication.
She has further stated that Rule 6 of the Rules, 1952 is contrary to the provisions of Code of Civil Procedure which is applicable in the election petition under Section 87 of the Act, 1951.
She has also stated that since the sole respondent has put in appearance through counsel, therefore, there is no purpose for publication and if the petitioner is compelled to deposit an amount in terms of Rule 6 (c) of the Rules, 1952, that would be meaningless and would be a mockery of law.
Admittedly, by means of her objection, she has not prayed for any alternative newspaper. In the wake of the aforesaid objection of the petitioner, he has not deposited the amount which was required for publication of notice.
Per contra, Dr Shailendra Sharma, counsel for the respondent, has stated that election petition does not confer mandatory and statutory conditions, therefore, the same deserves to be dismissed.
He has stated that he has filed an objection seeking prayer that after disposal of those objections, if need be, he may be given time to file written submissions/ reply of the election petition.
Dr Sharma has stated that the averments made in para1 of the election petition cannot be admitted to the effect that the petitioner has not contested the election of 172 Lucknow North Assembly Constituency in the name of Sarvesh Kumar Gupta as such name has been mentioned in the list of electoral nominated candidates available on the official website of the Election Commission of India.
Further, Rule 3 of the Rules 1952 provides that every election petition shall be presented to the Registrar. Rules 5 & 6 deal with the process of fees and charges.
In the light of the aforesaid rules, if the petitioner has not taken steps for publication in the newspaper which is a mandatory requirement, such election petition may be treated as defective election petition and cannot be proceeded on merits.
Dr Sharma has further submitted that Section 83 (1) (c) of the Act, 1951 provides that election petition shall be signed by the petitioner and verified in the manner laid down in the CPC Section 83 (2) of the Act, 1951 further provides that every annexure to the petition shall also be signed by the petitioner and verified in the same manner as prescribed.
As per Dr. Sharma, the aforesaid mandatory exercise is missing in the election petition inasmuch as the election petition along with its all annexures, supplementary affidavit has not been signed and verified by the petitioner in the manner provided by Section 83 (1) (c) and 83 (2) of the Act, 1951 read with Order VI Rule 15 of the CPC.
Dr Sharma has stated that the main copy of election petition differs from the additional copy appended with the election petition and the copy provided to the counsel for the respondent inasmuch as in the main copy of election petition there is no page number after running page no14, however, in the additional copy the page number is there as page No15. Further, in the original copy the name of the returned candidate has been typed as Dr Neeraj Bora whereas in the additional copy the name of returned candidate has been mentioned by cutting the name of earlier person writing the name through pen.
As per Dr Sharma, the additional copy and the copy provided to counsel for the respondent should be same and identical with the main copy. Further, the aforesaid anomalies may be considered as fraud. If the petitioner wants to change any averment or material of election petition, the same may be done with the prior leave of the court.
Replying to the aforesaid submission of the respondent, counsel for the petitioner has stated that the defect of pagination is a minor defect not of a vital nature and does not shed the nature of true copy as required by Section 81 (3) of the Act, 1951. Therefore, it does not attract the effect of Section 86 (1) of the Act, 1951. The absence of the page number does not mislead the respondent.
Dr Sharma has also submitted that moreover the issue raised by the election petitioner in the instant petition cannot be a subject matter for adjudication by the Court, as the alleged cause of action with regard to recognition of political parties was existing much prior to the notification of the Assembly Election of 2022 in the State of Uttar Pradesh as the same is evident from the perusal of the letter dated 02.04.2022, therefore, the election petition being misconceived, is liable to be rejected.
The Court observed the petitioner has admittedly not followed the rule 6 (c) of the Rules, 1952 as he has not deposited the required amount for publication in the newspaper and the purpose of publication in the newspaper is loud and clear as has been considered by the Apex Court from the very beginning to the effect that an election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections but the public also are substantially interested in it and this is not merely in the sense that an election has news value. An election is not a suit between two persons, but is a proceeding in which the constituency itself is the principal part interested.
Therefore, non-compliance of rule 6 (c) of the Rules, 1952 would vitiate the very purpose of filing election petition, hence, this election petition may be dismissed on the ground of aforesaid lapse alone i.e non-compliance of rule 6 (c) of the Rules, 1952.
The Court said that it is trite law that fraud vitiates every solemn act and if the fraud is committed on or before the Court, then the privy to it has committed an error which is unpardonable and has misled the Court to gain favourable orders by deceit. In the above mentioned election petition, the petitioner has changed the page No15, though page number not mentioned on that relevant page, captioned as prayer at the top of it, annexed after page No14 and before page No16 by fraudulent interpolation/ replacing of the page after filing of the election petition, that too without leave of the Court. The main copy of the prayer clause is typed whereas in the additional copy it appears to have been done later on with blue ink.
The Court further observed tThe aspect of defect in memorandum of appeal etc. has been considered by the Court in re: Lal Bahadur (supra) referring to the dictums of Apex Court and also referring to the various provisions of RP Act and C.P.C. On the basis of dictums of Apex Court, this Court in re: Lal Bahadur (supra) has held that in normal cases the defect in pleadings including the defect in signing the same are curable. The present case is an election petition and Section 81 (3) of RP Act specifically provides for filing an election petition along with the copies attested by the petitioner. Section 86 of RP Act provides that failure to comply with the provisions of section 81 of RP Act would result in rejection of election petition at the initial stage and even counsel for the petitioner has not prayed to correct those defects.
Therefore, in view of the dictum of Apex Court in re: Uday Shankar Triyar (supra), the aforesaid defect may be the reason to dismiss the election petition at the initial stage.
In view of the above, since the petitioner has refused to deposit the amount required for publication of election petition and he may not be exempted from such publication, therefore, application for exemption from publication is rejected. Consequently, there is no publication made in the newspaper by the petitioner, which is a mandatory requirement in terms of rule 6 (c) of the Rules, 1952, therefore, the election petition itself is not maintainable.
Accordingly, the Court dismissed the election petition.