SHASHI BHUSHAN BAJPAI Vs. MADHAVRAO SCINDIA

JUDGEMENT

(1.) This election petition has been preferred by the petitioner u/Ss. 80 and 81 of the representation of People Act, 1951 (hereinafter referred to as the Act) for declaring the election of the respondent from 03 Gwalior Parliamentary Constituency held on 7-5-1996 null and void on the ground that the respondent and his election agent had committed corrupt practices within the meaning of S. 123 and 100(1)(d)(iv) of the Act.

(2.) An application was moved by the respondent on 15-11-1996 raising preliminary objections. It was alleged in the application that the election petition u/Ss. 80 and 81 of the Act was filed against the respondent. The copy of the election petition has been supplied to him was accompanied by a copy of the affidavit which was not in accordance with Rule 94A of the conduct of Elections Rules, 1961, inasmuch as the affidavit referred to in the proviso to sub-sec. (1) of S. 83 was required to be sworn before a Magistrate of the first class or a notary or a commissioner of oaths and it has to be in Form 25. The election petition was on the ground of corrupt practices and the affidavit should have been as mentioned in Rule 94A in Form 25. The other objection raised was that the Registrar at Jabalpur had made an endorsement regarding presentation on the first page of the petition but no such endorsement was there on the copy of petition supplied to the respondent. Hence the copy supplied was not the true copy, as required u/S. 81(3) of the Act. It was, therefore, prayed that the petition be dismissed. Written reply was filed by the petitioner against this application which shall be dealt with in detail. Another petition was moved by the respondent on 12-12-1996. This purports to be a petition in continuation of the earlier petition making reference to the reply of the petitioner. It was prayed in this application as well that the petition be dismissed for breach of mandatory provisions. This too was replied by the petitioner. The respondent further moved an application on 30-1-97 praying that the copy of the election petition received by the respondent along with the notice of the Court be taken on record, Similar petition was moved again on 5-2-97 which is dated 3-2-97. It too was replied by the petitioner by filing written reply.

(3.) Learned counsel for the parties have been heard at great length on all the aforesaid applications as the preliminary questions raised did not require any evidence. The preliminary objection raised by the learned counsel for the respondent is that the petition be dismissed at threshold as it did not comply with the mandatory provisions of the Act. The learned counsel for the petitioner, however, submitted that the first question which has to be decided by the Court is as to whether copy of the election petition submitted by the respondent on 30-1-1997 should be taken on record or not because an objection relating to non-compliance of law with respect to the copy served has also been raised. I, therefore, proceed to dispose of the application dated 30-1-97 as well as dated 3-2-97 filed on 5-2-97 initially. In the first application dated 30-1-97 the respondent had simply mentioned that he was filing copy of the original election petition received by the respondent and it be taken on record whereas the application dated 3-2-1997 filed on 5-2-97 is a detailed application and it is in continuation of earlier application. The prayer in both these applications is the same that the document be taken on record. The learned counsel for the respondent contended that the document can be taken on record as the issues have not been framed and the provisions of the Code of Civil Procedure (hereinafter referred to as the CPC) apply by virtue of S. 87 of the Act. No application is actually necessary for filing documents before framing of issues. He, therefore, urged that the document be taken on record. On the other hand, it has been contended that the application has been moved 7 months after filing of the petitions and it has no merit. The application dated 30-1-97 did not disclose any reason for delayed submission of the document. As regards the application dated 3-2-97 filed on 5-2-97 the objection of the learned counsel is that the copy submitted by the respondent has not been shown to have been received by the respondent through the process of the Court. The learned counsel also contended that it has no where been alleged in the application that the election petition is not attested under the signatures of the petitioner to be a true copy of the petition and there was no due compliance. He urged that the petitioner had submitted along with the election petition only one copy of the petition for service on the respondent as there was only one respondent in the case. About the maintainability of the application and taking of the documents he urged that as the preliminary objection was raised by the respondent in order to cut the right of the petitioner the documents ought to have been submitted in the Court on first instance when the application was submitted on 15-11-1996 challenging the maintainability of the election petition.