Delhi HC rejects election petition against Ajay Maken for non-compliance with Section 81 of the Representation of the People Act [Read Judgment]

The Delhi High Court in Adesh Kumar Gupta v. Shri D. K. Mishra and Another rejected election petition along with two applications filed by petitioner on ground of non-compliance with Section 81 (3) of the Representation of the People Act, 1951.

The Petition was filed by petitioner Adesh Kumar Gupta, under Section 80 of the Representation of the People Act, 1951 challenging the election of Ajay Maken as a Member of Parliament from the New Delhi Parliamentary Constituency for the Lok Sabha elections of 2009. The Petitioner alleged in the petition that the second respondent (Maken), along with his election agent, and others with his approval, indulged in “corrupt practices” within the meaning of the Act, and sought relief that the Maken’s election be declared as void. In his petition, Adesh Gupta leveled a number of allegations against Maken and his election agent with respect to various corrupt practices allegedly indulged by them.

In response to the petition, Maken filed an Interlocutory Application invoking Order VII Rule 11 of the Code of Civil Procedure, 1908, praying that the election petition be dismissed in accordance with the mandate provided in Section 86 of the Act, which requires the High Court to dismiss an election petition which does not comply with the requirements of Section 81, 82 or 117 of the Act.

The Single Judge Bench of Justice S. Ravindra Bhat allowed application of Maken for rejection of said election petition on above mentioned grounds saying that it had to succeed. It is pertinent to mention here that earlier Delhi High Court had dismissed the application by Maken on the reasoning that it could not enquire into the question as to whether and to what extent the copy furnished to the second respondent was compliant with the requirements under Section 81(3), as that would in itself amount to a trial, in some respects. Maken had preferred an appeal by way of Special Leave Petition to the Supreme Court and SC had remanded the matter back to Delhi High Court with the direction that it should render a finding as to whether the Petitioner complied with the requirements under Section 81(3) of the Act, before considering the merits of the petition.

One of the preliminary issues before the Delhi High Court was whether the second respondent proves that the Election Petition filed by the Petitioner is required to be dismissed on the ground that the copy served on the Second Respondent is not a true copy of the original petition within the meaning of Section 81(3) of the Representation of the People Act, 1950?

It was alleged by Maken in his application that the election petition of the petitioner should be rejected on the ground that the copy supplied to him by the petitioner was not a “true copy” and not all pages and documents furnished to the Second Respondent, along with copies of the petition, contained signatures of the Petitioner and that many portions of the documents filed with the petition were missing. Counsel for Maken argued that these defects are incurable in nature and given the clear mandate of Section 81(3) read with Section 86(1) of the Act, the Court must dismiss the petition on these grounds. Counsel relied on judgment of the Supreme Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (1964) 3 SCR 573 in which it was held by the Apex Court that “the copy served on the respondent should be a true copy in the sense as to be so ‘true that nobody can by any possibility misunderstand it’. On the other hand, the counsel for the petitioner contended that that all of Maken’s objections are unfounded, technical and designed to deviate attention from the corrupt practices indulged by him, which were established through the election petition.

The Court at the outset made it clear that it must have regard to the fact that since election remedies were not an action at law or equity, but only created by way of a statutory right, strict compliance with the statute, i.e. the provisions of the Representation of the People Act, must be insisted upon by it and Court placed reliance on decision of Supreme Court in Ch. Subbarao v. Member, Election Tribunal, Hyderabad, AIR 1964 SC 1027 in which it was held that an election petition was not to be equated to an action at law or in equity, but that as the rights were purely the creature of statute, if the statute rendered any particular requirement mandatory, the courts possessed and could exercise no dispensing power to waive noncompliance.” Supreme Court had reiterated same stance in V. Narayanaswamy v. C.P. Thirunavukkarasu, AIR 2000 SC 694 and the High Court relied on it too while coming to its decision in present case.

Relying on decision of Supreme Court in Rajendra Singh v. Smt. Usha Rani, AIR 1984 SC 956, in which it was held that “If an entire page is missing in the petition but it is there in the copy served on the respondent, then it is manifest that the copy served was not an exact and true copy of the petition. The consequences of the mandatory provisions of Section 81(3) could not be got over by praying for an amendment of the election petition because that would defeat the very object and purpose of Section 81(3)”, the Court came to the conclusion that there was no substantial compliance with Section 81 (3) of the Representation of the People Act, 1951 in the present case. Court held:

“Having regard to all these circumstances, it is clear that the copy of the petition received by the Second Respondent, was at significant variance from the original copy, and was not duly verified, or signed by the Petitioner. This is also borne out, tacitly, from the conduct of the Petitioner, in wanting to file an amended copy of the first petition furnished to the Second Respondent. Apart from some pages in the annexures being missing it is also evident that some of the pages in the annexures are dim or illegible. While individually such defects in an election petition may be curable, taken together, all of these defaults can hardly be said to constitute “substantial compliance” with Section 81(3)…”

It said further that “In such a scenario, the Court would be duty bound to follow the mandate provided in Section 86(1) and dismiss the petition for want of compliance with Section 81. Were it to hold otherwise, the Court would in effect water down the mandatory language of Section 86(1) to an impermissible extent. The first preliminary issue framed by this Court, thus, is answered in favour of the Second Respondent.”

The Petitioner was represented by P.D. Gupta, Sr. Advocate with Advocates Simran Brar and Deveshi Mishra. Respondent(s) were represented by Arvind Nigam, Sr. Advocate with Advocates Rajiv Kapur, Harish Barara, R.S. Chauhan, Mikhil Sharda and Mr. Akshay Bhandari.

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