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CASE NO.:

Appeal (civil) 4396-4398 of 2000

PETITIONER:

MULAYAM SINGH YADAV

Vs.

RESPONDENT:

DHARAMPAL YADAV AND ORS.

DATE OF JUDGMENT: 24/07/2001

BENCH:

S.P. Bharucha, Y.K. Sabharwal & Brijesh Kumar

JUDGMENT:

WITH

Civil Appeal No. 4399 of 2000

J U D G M E N T

Bharucha, J.

Civil Appeal Nos. 4396-4398/2000 :

We are concerned in these appeals with the election held on 22nd

February, 1998 for the 9 Sambhal Parliamentary Constituency. The result

thereof was declared on 3rd March, 1998. The appellant, Mulayam Singh

Yadav, was declared elected, having secured 3,76,828 votes. His nearest

rival was the first respondent, Dharampal Yadav, whom he defeated by a

margin of 1,66,662 votes. The first respondent challenged the election of the

appellant by filing an election petition on 17th April, 1998 before the High

Court at Allahabad. Interim applications were filed on behalf of the

appellant raising preliminary objections to the election petition. They were

disposed of by the judgment and order under challenge, whereby the

preliminary objections were rejected.

The point that we propose to decide, and which will dispose of the

appeals, relates to Schedule 14 to the election petition. The election petition

has 15 respondents. It contains grounds (A) to (I). In support of these

grounds, 25 Schedules are filed and are, as a fact, a part of the election

petition, as bound. Except Schedule 14, to which we shall presently refer,

the other Schedules contain documents, such as newspaper reports,

pleadings, circulars, list of polling booths, etc. Each Schedule has a

verification clause and is verified by the first respondent. In respect of each

Schedule, except Schedule 14, the averment in the election petition reads,

.. marked as Schedule _____ to this election petition (giving the

appropriate number) which forms part of the election petition. Schedule

14 is referred to in paragraph 83 of the election petition thus : But in the

case of the present election of 9 Sambhal Parliamentary Constituency,

though the polling was 90% and above upto 250% as stated above, coupled

with the booth capturing, arson and violence in large scale and the same

having been brought to the public notice by print and electronic media,

which was covered by video photography by different channels including

the Doordarshan, Star T.V. and Zee T.V. and the videography under the

orders of the election commission is attached to this election petition as

Schedule No. 14 in the form of cassette, which is filed along with this

election petition under a seal cover under the signature of the election

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petitioner and his counsel.

To be certain about what precisely this averment meant, we asked

learned counsel for the first respondent to explain it. He said that the first

respondent or some person on his behalf had recorded what was shown by

television channels and the videograph taken under the orders of the Election

Commission and that the video cassette of such recordings was mentioned

and verified in Schedule 14. The reproduction of the recording on 15 video

cassettes had been filed along with the election petition for service on the

respondents thereto.

Schedule 14 is filed in support of grounds A, B and C of the election

petition, which deal with the improper reception of votes at polling booths

which had been captured, affecting the result of the election so far as it

concerned the appellant, non compliance with the Constitution and the law

which also concerned the election in so far as it concerned the appellant, and

ground C states:

because the petitioner is entitled for a declaration

as contemplated under Section 101(b) of the

Representation of Peoples Act 1951, if the votes

obtained by the Returned Candidate, namely, the

respondent No.1 by corrupt practice of booth

capturing and other corrupt practice are excluded,

the petitioner would have obtained the majority of

valid voters.

Schedule 14 is also referred to in support of grounds H and I, which deal

with the undue influence exercised by the appellant and its agents by directly

interfering in the free and fair exercise of the electoral right of voters and the

capturing of polling booths and centres. In so far as grounds H and I are

concerned, material particulars are also set out in the later Schedules. As

required by the Representation of People Act, 1951, the first respondent

swore an affidavit verifying the allegation of the corrupt practice of booth

capturing made in the various paragraphs of the election petition therein

stated, including paragraph 83, and the Schedules, including Schedule 14.

On 17th April, 1998 the Registrar of the High Court made the

following report in regard to the election petition :

The petition was presented today by Dharampal

Yadav (D.P. Yadav) in person duly identified by

Sri Prem Prakash, Advocate. It is also

accompanied with security money of Rs.2,000/-

(Rupees two thousand only) in the form of tender

receipt. 31 copies attested by the petitioner

himself to be true copies and 15 (fifteen) video

cassettes. (Emphasis supplied.)

The trial of the election petition was then assigned to the learned Judge who

has passed the judgment and order under challenge. He, on 13th May, 1998,

directed the issue of notices to the respondents to the election petition and

said, It may also be indicated in the notification to be published that the

copy of the cassettes which have been referred to in the election petition are

lying with the Registry of this Court and the respondents, after appearance,

may collect the same from the Registry. The Registrar may keep the

cassettes in proper upkeep to avoid any interference in the versions recorded

therein. On 26th October, 1998, an application was filed on behalf of the

appellant for a copy of the video cassette referred to in Schedule 14. On

27th October, 1998, it was handed over to the appellants counsel in court,

and the learned Judge noted the objection of appellants counsel that the

sealed cover of the copy of the video cassette bore the signature of the first

respondents advocate and there was no other signature or mark thereon.

The learned Judge then directed the Registry to report whether, apart from

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the 15 copies of the video cassettes which had been filed along with the

election petition, the original video cassette had been filed. On 16th

November, 1998, the Registry of the High Court responded thus: In

compliance with the Courts order dated 27.10.98 and 9.10.98 it is submitted

that office has received only 15 (fifteen) Video Cassettes from the Chamber

of the Registrar on 17.4.1998. Except 15 (fifteen) Video cassettes, office

has not received any original video cassette with the Election Petition.

In November, 1998 applications were filed on behalf of the appellant

raising preliminary objections to the maintainability of the election petition.

On 14th December, 1998 the applications were heard. In the judgment and

order thereon, the learned Judge noted the argument on behalf of the

appellant that only 15 copies of the video cassette had been filed by the

first respondent at the time of presentation of the election petition and that,

therefore, one video cassette was short. The learned Judge held that

although other annexures and Schedules were sought to be made part of the

election petition, as averred, there was no such averment in respect of the

video cassette in Schedule 14. He added, When these cassettes were not

part of the election petition it must be held that the same were filed by way

of evidence in support of allegations of the corrupt practice. The law does

not require supply of copies available to the respondents and any short

supply of these materials may not be described as non observance of Section

81(3) of the Act.

The principal question, therefore, that we have to decide is whether

Schedule 14 and the video cassette therein referred to is an integral part of

the election petition and whether the failure to file the original thereof in

court along with the election petition attracts Section 81 and, therefore,

Section 86(1) of the Representation of the People Act, 1951.

Section 80 of this Act states that no election shall be called in

question except by an election petition presented in accordance with the

provisions of Part VI thereof. Section 81 deals with the presentation of

election petitions and says:

81. Presentation of petitions. (1) An election petition

calling in question any election may be presented on one

or more of the grounds specified in [sub-section (1) of

section 100 and section 101 to the High Court by any

candidate at such election or any elector within forty-five

days from, but not earlier than the date of election of the

returned candidate or if there are more than one returned

candidate at the election and dates of their election are

different, the later of those two dates].

Explanation - In this sub-section, elector means a

person who was entitled to vote at the election to which

the election petition relates, whether he has voted at such

election or not.

Sub-section(3) thereof says, that every election petition shall be

accompanied by as many copies thereof as there are respondents mentioned

in the petition and every such copy shall be attested by the petitioner under

his own signature to be a true copy of the petition. Section 83 requires that

an election petition shall contain a concise statement of the material facts on

which the petitioner relies, set forth full particulars of any corrupt practice

that the petitioner alleges, including as full a statement as possible of the

names of the parties alleged to have committed such corrupt practice and the

date and place of the commission of each such practice, and that it be signed

by the petitioner and verified in the manner laid down in the Civil Procedure

Code. The proviso to Section 83 requires that where the petitioner alleges

any corrupt practice, the petition shall also be accompanied by an affidavit

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in the prescribed form in support of the allegation of such corrupt practice

and the particulars thereof. Section 86(1) mandates 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 was contended by learned counsel for the appellant that the election

petition deserved dismissal under Section 86(1) because it did not comply

with the requirements of Sections 81 and 83 of the Act in as much as the

original of the video cassette mentioned and verified in Schedule 14 had not

been filed along with the election petition, although 15 copies thereof had

been filed for service upon the respondents. It was submitted that the video

cassette mentioned and verified in Schedule 14 gave, according to the

election petition, particulars of alleged booth capturing, arson and violence.

In fact, in so far as the alleged arson and violence were concerned, there was

no other statement in the election petition or in the Schedules which gave

any facts or particulars.

On behalf of the first respondent, it was submitted that all the

Schedules other than Schedule 14 were made part of the election petition.

Schedule 14 only mentioned the video cassette that was to be used as

evidence in support of the allegations of corrupt practice. This was clear

from the election petition itself, wherein, in support of all Schedules other

than Schedule 14, it had been expressly averred that they were a part of the

election petition whereas, in respect of Schedule 14, what was averred in the

election petition was that it was filed along with the election petition and not

that it formed a part thereof.

Whether or not Schedule 14 is an integral part of the election petition

does not depend on whether or not the draftsman of the election petition has

so averred. It has to be decided objectively, taking into account all relevant

facts and circumstances. Schedule 14 is one of 25 Schedules which are, as a

matter of fact, part of the bound election petition. In respect of each of these

Schedules, except Schedule 14, it is averred that it is a part of the election

petition. Each of these Schedules, other than Schedule 14, mentions,

verifies and contains some paper or document which can be placed between

the leaves of paper that comprise that Schedule and be bound with the

election petition. Schedule 14 mentions and verifies a video cassette which

cannot be placed between two leaves and be bound with the election

petition. This is the explanation for the difference in the manner in which

the averments relating to Schedule 14 and the other Schedules are made in

the election petition. Clearly, the video cassette mentioned and verified in

Schedule 14 is as much an integral part of the election petition as the papers

and documents mentioned and verified in the other Schedules. Further, that

the video cassette mentioned and verified in Schedule 14 is a part of the

election petition and was intended to be such is evident from the affidavit of

the first respondent verifying the allegations of corrupt practice made in the

election petition. Therein, the first respondent has verified the correctness of

what is stated in paragraph 83 of the election petition, which refers to

Schedule 14 and which has been quoted above, and to Schedule 14 itself.

Yet again, that the video cassette mentioned and verified in Schedule 14 is

and was intended to be a part of the election petition is shown by the fact

that 15 video cassettes which were copies of the video cassette mentioned

and verified in Schedule 14 were filed in the High Court along with the

election petition for being served upon the respondents thereto.

Ordinarily, what is shown upon the video cassette that is mentioned

and verified in Schedule 14 would have been set out in the election petition

and then that video cassette could have been said to be evidence of the

allegations made in the election petition. As this election petition is drafted,

there is no description of what is shown on this video cassette except to say

that it shows booth capturing, violence and arson. As to booth capturing,

there are particulars contained in the other Schedules but even in that regard

the later paragraphs of the election petition make reference to Schedule 14

so that even in regard to booth capturing the particulars shown in the video

cassette mentioned and verified in Schedule 14 are relied upon. So far as the

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allegations of violence and arson are concerned, there are no particulars in

the election petition absent the video cassette mentioned and verified in

Schedule 14.

We are, therefore, satisfied that the video cassette mentioned and

verified in Schedule 14 is an integral part of the election petition and that it

should have been filed in Court along with copies thereof for service upon

the respondents to the election petition. Whereas 15 copies thereof were

filed for service upon the respondents, the video cassette itself was not filed.

The election petition as filed was, therefore, not complete.

Section 81 contemplates the presentation of an election petition that

is complete and satisfies the requirements of Section 83. An election

petition that is not complete must, having due regard to the imperative

mandate of Section 86, be dismissed. The present election petition must,

therefore, be dismissed.

The appeals are allowed. The judgment and orders under challenge is

set aside. The election petition is dismissed. The first respondent shall pay

to the appellant the costs thereof.

Civil Appeal No.4399 of 2000:

In view of the fact that the election petition has been dismissed by

reason of our order in Civil Appeal Nos.4396-4398 of 2000, this appeal does

not survive for consideration and is dismissed. No order as to costs.

.J.

(S.P. Bharucha)

.J.

(Y.K. Sabharwal)

.J.

(Brijesh Kumar)

New Delhi,

July 24, 2001

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