SUPREME COURT OF INDIA

Before:- Dr. A.S. Anand, C.J. and B.N. Kirpal, J.

Civil Appeal No. 1656 of 1997. D/d. 25.2.1999.

Gajadhar Ramsingh Rathod - Appellant

Versus

Subhash Pandharinath Thakre and others - Respondents

A. Representation of the People Act, 1951, Section 82(b) and 86(1) - Election petition filed without application petition - Non-impleadment of candidate - Election impleading person who was a candidate against whom allegation of corrupt practice was made - That person filed application for impleadment - Application allowed by Single Judge considering the circumstances - Objection regarding non-compliance with Section 82(b) cannot be sustained -.

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B. Election - Representation of the People Act, 1951, Section 82(a) and 86(1) - Election petition - Independent candidate who contested election not made party in non-compliance with Section 82(a) - Appellant (returned candidate) in his application under Section 86(1) alleged for dismissal of election petition in limine - Contesting candidate, however had accepted the notice stating that the notice was wrongly sent to him as it contained name of another person, though election petitioner contending that it was due to typing error - Since candidate was before High Court so whether it was typing error or not can be proved by evidence - Hence, application rightly dismissed.

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C. Election - Representation of the People Act, 1951, Sections 81, 82, 83 and 86(1) - Election petition - Allegation that defects in presentation of election petition have been removed surreptitiously and record tampered with by respondent to cure the defects without permission of High Court after period of limitation - Appellant returned candidate, in his application alleged by single Judge for dismissal of the election petition in limine under section 86(1) - Allegation categorically denied by respondent - Considering nature of allegation made by the appellant, High Court rightly opined that allegation required to be established by evidence and that the election petition could not be dismissed in limned.

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ORDER

B.N. Kirpal, J. - This appeal by special leave calls in question an order made in Election Petition No. 6 of 1995 by a learned Single Judge of the High Court of Bombay, Nagpur Bench, dated 12-3-1996, whereby three applications filed by the appellant seeking dismissal of the election petition, in limine, under Section 86(1) of the Representation of The People Act, 1951, (hereinafter called "the Act") were rejected.

2. The election in question relates to 115 Mangrulpir Legislative Assembly Constituency. The appellant is the returned candidate. After the result of the election was announced and the appellant declared elected, an election petition was filed by Respondent 1 challenging the election of the appellant on various grounds. The returned candidate, thereupon, filed three applications seeking dismissal of the election petition in limine.

3. The first application was filed by the appellant on 29-9-1995 and it sought dismissal of the election petition under Section 86(1) of the Act for non-compliance with the provisions of Sections 81, 82 and 83 of the Act. The second application was filed by him on 30-11-1995 again seeking dismissal of the election petition under Section 86(1) of the Act for non-compliance with the requirements of Section 82(a) of the Act. The third application was filed by him on 14-12-1995 once again seeking dismissal of the election petition under Section 86(1) of the Act for non-compliance with the requirements of Section 82(b) of the Act. Written statement, however, was not filed to the election petition. All the three applications were rejected and the election petition was set down for trial.

4. We have heard learned counsel for the parties.

5. Insofar as the application alleging non-compliance with Section 82(b) is concerned, the only allegation made in the application was to the effect that Dr Sanjeev Vitthalrao Wardekar had not been impleaded as a party respondent though he was a candidate against whom allegations of corrupt practice were allegedly made. It appears that while the application was pending, an application was filed by Dr Sanjeev Vitthalrao Wardekar under Order 1 Rule 10 of the Civil Procedure Code read with Section 86(4) of the Act seeking impleadment in the election petition. That application was filed within the prescribed time and was allowed by the learned Single Judge. In view of the fact that the Court had allowed the application of Dr Sanjeev Vitthalrao Wardekar and impleaded him as a party respondent in the election petition, the objection regarding alleged non-compliance with the provisions of Section 82(b) of the Act did not survive for consideration. The High Court, therefore, rightly rejected the application filed by the appellant herein.

6. Insofar as the application filed on 30-11-1995 is concerned, the learned Single Judge dealt with it exhaustively and opined:

"16. Respondent 7, a successful candidate made a loud claim that ?Maroti Narayan Pardhi? an independent candidate contested the election and secured 170 votes in the election, not being a party to the petition, it being non-compliance of Section 82(a) of the Act, needs summary dismissal of the petition. This incident is not as simple as it is depicted by Shri Madholkar, the learned counsel for Respondent 7. The contesting candidate viz. Shri ?Maroti Narayan Pardhi? accepted the notice on 6-9-1995, specifying that the notice is wrongly sent. It is apparent that ?Maroti's? father's name is ?Narayan?. At S. No. (Respondent 19), instead of ?Maroti Narayan Pardhi? the name has been typed as ?Narayan Maroti Pardhi?. Apparently, it appears to be a typing error as stated on behalf of the petitioner. The contesting candidate is before the Court and, therefore, whether it is a typing error or not, requires evidence to be led. As such, I do not find any merit in this submission of the learned counsel of Respondent 7 too."

The reasoning given by the learned Single Judge appeals to us. No fault can be found with the rejection of this application either.

7. Coming now to the third application filed on 29-9-1995 alleging certain defects in presentation of the petition. It was alleged by the appellant that though there were defects in the presentation of the petition, the same had been removed surreptitiously by Respondent 1 and that Respondent 1 had tampered with the record to cure the defects without permission of the Court after the period of limitation. Learned Single Judge noticed that Respondent 1 had categorically denied in his counter to the application the allegations regarding defect in presentation of the election petition on all counts. Keeping in view the nature of the allegation made by the appellant, the learned Single Judge rightly opined that allegations made by the appellant required to be established by evidence and that the election petition could not be dismissed in limine under Section 86(1) of the Act. The course adopted by the learned Judge is proper. No exception can be taken to the observations and the opinion expressed by the High Court in that behalf and we are not persuaded to take a different view.

8. Thus, for what we have said above, we find that all the three applications were properly disposed of by the learned Single Judge and that the election petition did not warrant dismissal under Section 86(1) of the Act. This appeal has no merits. It must, therefore, fail and is hereby dismissed with costs.

9. The election took place in 1995. Four years have already gone by. We, therefore, request the High Court to dispose of the election petition expeditiously and as far as possible within six months from the date of this order. The record of the case shall be sent back to the High Court without any delay.

Appeal dismissed with cost