Supreme court: What procedure is to be followed by candidate if any irregularity is committed during election process?

There is merit in the submission that the discipline which is mandated by the provisions of the Constitution and enforced by the enabling state law on the subject must be maintained. Any dispute in regard to the validity of the election has to be espoused by adopting a remedy which is known to law namely through an election petition. It is at the trial of an election petition that factual disputes can be resolved on the basis of evidence.  After referring to Ponnuswamy, it was observed: {Para 27}

In NP Ponnuswamy v. Returning Officer, Namakkal Constituency a Constitution Bench of this Court had held that having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time Schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted. In conformity with the principle, the scheme of the election law is that no significance should be attached to anything which does not affect the 'election'; and if any irregularities are committed, while it is in progress and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the 'election; and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8515 of 2018.

Decided On: 24.08.2018

West Bengal State Election Commission and Ors. Vs. Communist Party of India (Marxist) and Ors. 

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: 2018 INSC 744,MANU/SC/0902/2018, ( 2018) 18 SCC 141.

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Bombay HC: The High court should not entertain writ petition challenging rejection of nomination paper by returning officer in election dispute

Division Bench decision of this Court in Vinod Pandurang Bharsakade Vs. Returning Officer, Akot and Anr. reported in MANU/MH/1064/2002 : 2003(4) Mh. L.J. 359. It was contended that any grievance that the petitioners may have, in relation to the orders rejecting their nominations, ought to be raised after the elections are over by raising appropriate election dispute.{Para 2}

68. For the reasons aforesaid, while agreeing with the view in Vinod Pandurang Bharsakade (supra), we answer the fundamental question as formulated in paragraph 27 in the negative. As a sequel thereto, we answer the questions referred by the Division Bench in the manner as follows:-

(i) Allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting the relief claimed by setting aside such order of rejection is definitely not a step to sub-serve the progress of election and/or facilitate its completion in the sense enunciated in Mohinder Singh Gill (supra) and explained in Ashok Kumar (supra) though it may not always amount to intervention, obstruction or protraction of the election;

(ii) Article 243-O(b) of the Constitution of India is a bar for entertaining a writ petition under Article 226 of the Constitution against an order passed by the Returning Officer rejecting nomination paper and such provision would clearly be attracted whenever a writ petition is presented before a Court for its consideration; and

(iii) The law laid down in Vinod Pandurang Bharsakade (supra) represents the correct view of law; consequently, we hold that the decision in Smt. Mayaraju Ghavghave (supra) and Sudhakar s/o. Vitthal Misal (supra) do not lay down the correct law;

 IN THE HIGH COURT OF BOMBAY

Writ Petition (ST.) Nos. 26 and 28 of 2021

Decided On: 13.01.2021

Karmaveer Tulshiram Autade and Ors. Vs. The State Election Commission, Mumbai and Ors.

Hon'ble Judges/Coram:

Dipankar Datta, C.J., A.S. Gadkari and G.S. Kulkarni, JJ.

Citations: AIR 2021 BOMBAY 90, AIRONLINE 2021 BOM 6, MANU/MH/0033/2021

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Bombay HC: What basic principles should the court follow while deciding election dispute?

The Hon'ble Apex Court in the case of Election Commission of India, through Secretary, Appellant v. Ashok Kumar & others, respondents, reported in MANU/SC/0540/2000 : AIR2000SC2979 , has in paragraphs 32 and 33 held as under:

"For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove.

1) If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceeding commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceeding in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

3) Subject to the above, the action taken or orders issued by Election Commission are open to the judicial review on the well settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceeding, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.

5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.

These conclusions, however, should not be construed as a summary of our judgment. These have to be read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons."

9. The Hon'ble Supreme Court has held that if the election is called in question and when such questioning may have the effect of interrupting, obstructing or protracting the election proceeding in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings of election. Needless to say that the petitioner has an alternate remedy of filing an election petition challenging the said elections.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 3980 of 2001

Decided On: 03.12.2001

Rekhabai Vs. State Election Commission and Ors.

Hon'ble Judges/Coram:

V.M. Kanade, J.

Citation: 2002(2) ALL MR 742, MANU/MH/0884/2001.

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Important Judgments on Municipal Corporation(Part 4)

 

1) Whether court can apply the Motor Vehicles Act principles for determining compensation for death caused due to negligence of Municipal Corporation?

In this background, immediate formula which according to me is available in such unguided and uncleared situation is to apply the principle of Motor Accidents Claims as contemplated.

Bombay High Court

Shripat Shankar Panchal vs Municipal Corporation For Gr. ... on 2 August, 2007

Equivalent citations: 2007 (6) MhLj 478

Author: A V Mohta

https://www.lawweb.in/2021/10/whether-court-can-apply-motor-vehicles.html

2) Is it permissible for the municipal corporation to levy property tax on property situated in the village area if the development plan of the Municipal corporation includes that area?

Under such circumstances, Corporation would not get right to impose tax. Mere inclusion of suit land in development plan of Municipal Corporation, would be of no consequences

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

K.U. CHANDIWAL, J.

Gramaudyogik Shikshan Mandal Vs. The Municipal Corporation, Aurangabad

First Appeal No. 1071 of 2013,Civil Application No. 14046 of 2013,Civil Application No. 5275 of 2013,Civil Application No. 12 of 2014

26th February, 2014

Citation:  2014(5) ALL MR 801

https://www.lawweb.in/2021/10/is-it-permissible-for-municipal.html

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Whether court can permit election petitioner to cure a defect in verification or in affidavit in Election petition?

  It is thus beyond any pale of doubt that the allegations of corrupt practice made in the election petition have to be supported by an affidavit as required in Form 25 and Rule 94-A of the Rules of 1961. The affidavit must clearly indicate which part of the allegations are true to the knowledge of the deponent and which allegations are true to the information of the deponent. Stating the allegations to be true to one’s knowledge and information in the same breath has not been found to be acceptable. At the same time, it is equally well settled that a defect in verification or in the affidavit as filed is a curable defect and an opportunity deserves to be given to an election petitioner to cure the same.

In the light of the aforesaid legal position, I am inclined to grant an opportunity to the election petitioners to cure the defects in the affidavits filed under Form 25 by specifying as to which averments in the election petition are true to the knowledge of the election petitioner nos.1 and 2 and which part of the allegations made are true to their information. It is not necessary in this backdrop to probe deeper into the contention of the election petitioners that all allegations made could be true to the personal knowledge and also to the information as believed to be true since that aspect has not been accepted in R. P. Moidutti (supra). On principles analogous to the doctrine of election, an opportunity is given to the election petitioners to cure the defects in the affidavits filed under Form 25 read with Rule 94-A of the Rules of 1961 as stated above. The same be done within a period of fifteen days from today. The adjudication of Exhibits 19, 20 and 26 would be taken up thereafter. {Para 10}

Bombay High Court

JUSTICE A. S. CHANDURKAR

Shri Nana F. Patole & Anr. Vs. Shri Nitin Gadkari & ors.

ELECTION PETITION NO.10/2019

29th October 2021

Citation: 2021 NearLaw (BombayHC Nagpur) Online 1997

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Whether court can pass any order which has the effect of postponing of the election?

 Besides, as indicated by us in the order dated March 30,1982, the view which we took was that though the High Court was justified in entertaining the writ petition and issuing a rule therein since, the writ petition apparently contained a challenge to several provisions of Election laws, it was not justified in passing any order which would have the effect of postponing the elections which were then imminent.

Supreme Court of India

Lakshmi Charan Sen And Ors Etc vs A.K.M. Hassan Uzzaman And Ors. Etc on 8 May, 1985

Equivalent citations: 1985 AIR 1233, 1985 SCR Supl. (1) 493

Author: Y Chandrachud

Bench: Chandrachud, Y.V. ((Cj)

Read full Judgment here: Click here

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Whether court can condone delay in filing of a election petition?

 The free and

fair elections are a guarantee of the

democratic polity and for achieving such

an objective various provisions are made

applicable to the election laws, most

important of which is the remedy of

challenging the elections on the grounds

specified under the statute. In the

absence of the applicability of Section 5

of the Limitation Act, the rights of the

aggrieved person, intended to challenge

an election, can be defeated by the

executive of the State by not appointing

the Election Tribunal as is shown to have

been done in the instant cases. In the

appeal filed by the Gogineni Sujatha, it

is not disputed that the Election

Tribunal was constituted after the expiry

of period of limitation prescribed for

filing an election petition. Similarly

in the case of Shaikh Saidulu alias Saida

sufficient time was allowed to lapse

preventing the filing of the election

petition for no fault of the appellant.

Can an interpretation be accepted which

facilitates the defeating of purpose of

the Act? The answer is emphatically,

No."

18. These observations of the Supreme Court

while dealing with identical provisions are

binding upon me. No decision of the Hon’ble

Supreme Court has been brought to my notice

taking a contrary view. In fact, the Supreme

Court decision applies with full force.

Although, the learned Judge while passing the

impugned order has not referred to this decision,

this decision is squarely applicable. The

Supreme Court has observed that the word

"application" appearing in relevant provisions of

the Hyderabad Municipal Corporation Act so also

the provisions which are pari materia to section

435 would make Limitation Act applicable. In

such circumstances, by resorting to section 5,

the delay should have been condoned is the

conclusion of the Supreme Court.

19. It is not proper to ignore this

authoritative pronouncement as suggested by

Mr.Godbole. This decision fully covers the

controversy before me. Merely because there are

several headings under Chapter 26 does not mean

that the Supreme Court decision or section 435 of

B.P.M.C. Act would become inapplicable. It is

not necessary to enter into any larger

controversy as to whether to all proceedings

contemplated under Chapter 26, the Indian

Limitation Act and the provisions referred to in

section 435 or C.P.C. would be applicable.

Suffice it to state that insofar as election

petitions contemplated by section 16 are

concerned, the same are squarely covered and fall

within sub-section 1 of section 435 of the Act.

20. In this view of the matter, learned Judge

was fully empowered to take cognisance of the

application preferred by the first respondent,

seeking condonation of delay of 32 days in filing

election petition. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.8170 OF 2007

Yogesh Mangalsen Bahal  Vs  Rajesh Chimanrao Wable 

CORAM : S.C.DHARMADHIKARI, J.

DATE : 10th January 2008

Citation: 2008(5) Bom CR 243

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Whether Returning Officer can accept the defective nomination paper for election?

 In Harcharan Singh Vs. S. Mohinder Singh and Ors. - AIR 1968 SC 1500 the purpose of the provisions contained in Sections 33 and 36 of the Act was stated by their Lordships in these words – "The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process and the Courts will not ordinarily minimize their operation." Their Lordships further observed that "the statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law: it is not an action at law or in equity. But under S.36(4) the Returning Officer is entitled to accept the nomination paper even if it be defective, if the defect is not of a substantial character. He is enjoined not to reject the nomination paper unless the defect is of a substantial character." Harcharan Singh's case (supra) was one where the details for identifying the appellant as an elector were duly furnished and his age though mentioned in the nomination paper was not to be found in the certified copy produced by him and no objection was raised to the acceptance of the nomination paper on behalf of the contesting candidate. The returning officer satisfied himself by personal enquiry that the appellant was above the age of 25 and therefore competent to stand for election. It was held that even though the copy produced was defective because of the absence therefrom of the house number entered in the electoral register, yet the defect was not of a substantial character and hence the returning officer was justified in not rejecting the nomination paper. In Viveka Nand Giri Vs. Nawal Kishore Sahi – (1984) 3 SCC 10 there was a difference in the age as recorded in the electoral roll and as stated in the nomination paper. It was held that the nomination paper would fall in the category of an inaccurate description and the returning officer could not have rejected the nomination. In Karnail Singh Vs. Election Tribunal, Hissar and Ors. - 10 ELR 189 the name of the Sub-Division was not stated in the nomination paper. However, it was quite clear that there was no difficulty in identifying the candidate. The defect was held to be a technical one and not of substantial character.

A reference may usefully be made to the maxim "Falsa demonstratio non nocet cum de corrore constat" which means mere false description does not vitiate, if there be sufficient certainty as to the object. 'Falsa demonstratio' means an erroneous description of a person or a thing in a written instrument; and the above rule respecting it signifies that where the description is made up of more than one part, and one part is true, but the other false, there, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the devise: the characteristic of cases within the rule being that the description, so far as it is false, applies to no subject at all, and, so far as it is true, applies to one only. (See Broom's Legal Maxims, 10th Edition, pp. 426-

427). Broom quotes (at page 438) an example that an error in the proper name or in the surname of the legatee should not make the legacy void, provided it could be understood from the will what person was intended to be benefited thereby.

There is no manner of doubt that the respondent is a duly enrolled elector in the voters list of No.23 Ramgarh Assembly Constituency. In the voters list as well as in the nomination paper the respondent was correctly described. The omission of his second name 'Lal' from the voters list is inadvertent or accidental and in any case merely technical. There is no doubt about the identity of the respondent. Apparently that is why none of the candidates including the writ petitioner and no one else raised any objection to the acceptance of the nomination paper by submitting that the respondent was not a registered elector of the constituency. The returning officer entered into suo moto enquiry for his own satisfaction, and felt satisfied by looking into the electoral list of the constituency available with him, that the respondent Babu Lal Marandi was the same person who was mentioned as Babu Marandi in the electoral list. Being an elector in the same constituency wherefrom he was contesting election it was not necessary for him to have filed a certified copy of the relevant entry from the voters list. Before the High Court, the writ petitioner has chosen not to adduce any evidence to demonstrate that the returning officer was not right in arriving at the satisfaction which he did or that the respondent was not enrolled in the electoral list of that constituency or was the one enrolled in some other constituency. The High Court has not erred in holding the election of the respondent not liable to be set aside.

Supreme Court of India

Harikrishna Lal vs Babu Lal Marandi on 30 October, 2003

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Whether court should dismiss an election petition at the threshold if pleadings of the petition are defective?

 Having gone through the contents of the election petition, we are satisfied that the High Court has not been right in directing the petition to be dismissed at the threshold by forming an opinion that the averments made in the election petition were deficient in material facts. It is not necessary to burden this judgment with reproduction of the several averments made in the election petition. The High Court has already done it. The test laid down in the several authorities referred to hereinabove and in particular in the case of Raj Narain (supra) is fully satisfied. The grounds of corrupt practice and the facts necessary to formulate a complete cause of action have been stated. Even the particulars have been given. However, if the Court feels that the particulars as given in the petition are deficient in any manner the petitioner can be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars could not have been a ground for dismissing the petition at the threshold. It is only the non- supply of particulars though ordered by the Court which could have led to either striking off of the pleadings or refusal to try the related instances of alleged corrupt practice. We cannot countenance the view taken by the High Court.

So is the case with the defect pointed out by the High Court in the affidavit filed in support of the election petition alleging corrupt practice by the winning candidate. The proviso enacted to sub-Section (1) of Section 83 of the Act is couched in a mandatory form inasmuch as it provides that a petition alleging corrupt practice shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. The form is prescribed by Rule 94A. But at the same time, it cannot be lost sight of that failure to comply with the requirement as to filing of an affidavit cannot be a ground for dismissal of an election petition in limine under sub-Section (1) of Section 86 of the Act. The point is no more res integra and is covered by several decisions of this Court. Suffice it to refer to two recent decisions namely G. Mallikarjunappa and anr. Vs. Shamanur Shivashankarappa and ors. (2001) 4 SCC 428 and Dr. Vijay Laxmi Sadho Vs. Jagdish (2001) 2 SCC 247, both three-Judges Bench decisions, wherein the learned Chief Justice has spoken for the Benches. It has been held that an election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of "Section 81 or Section 82 or Section 117 of the RP Act". The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly "defective" affidavit, is required to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case.

Having formed an opinion that there was any defect in the affidavit, the election petitioner should have been allowed an opportunity of removing the defect by filing a proper affidavit. Else the effect of such failure should have been left to be determined and adjudicated upon at the trial, as held in G. Mallikarjunappa and anr.'s case (supra).

Supreme Court of India

Sardar Harcharan Singh Brar vs Sukh Darshan Singh & Ors on 27 October, 2004

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Whether S 5 of limitation act is applicable to election petition filed under Maharashtra provincial Municipal Corporation Act?

 A combined reading of sections 16 and 403 and 404 leaves me in no manner of doubt that the Legislature with a view to protect and preserve purity of elections and democratic process has inserted the provision providing for election petition. The election process should be free and impartial is the anxiety. Further, merely because the election is over does not mean that the results thereof cannot be questioned or disputed. A person who has enrolled himself in the Municipal Election Roll can call in question the election itself or dispute qualifications of person who has contested and is elected. It is with this anxiety that in section 435, the Legislature has taken care to provide that in computing the period of limitation prescribed for an appeal or application referred in Chapter 26, the provisions of sections 5, 12 and 14 of the Limitation Act shall sofar as may be applied. The word “referred to” appearing in section 435(1) demonstrates that the intent was to make sections 5, 12 and 14 of the Limitation Act Applicable sofar as may be to the proceedings and enquiries contemplated in the Chapter. Even sections 434 and 436 are indicative of the Legislature Intent. In such circumstances, it is not proper to urge that section 5 of the Indian Limitation Act would not apply to the election petitions. Upon a plain reading of section 16 and sections 403 and 404 along with section 435 would make it clear that the Legislature did not exclude applicability of sections 5, 12 and 14 of the Limitation Act.{Para 16}

 Bombay High Court

(Before Dharmadhikari S.C., J.)

Yogesh Mangalsen Bahai Vs Rajesh Chimanrao Wable 

Writ Petition No. 8170 of 2007

Decided on January 10, 2008

Citation: 2008 SCC OnLine Bom 12 : (2008) 5 Bom CR 243

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Whether the court can permit a municipal councillor to withdraw her resignation only because she was depressed due to a fight with her husband?

 The Commissioner of the Respondent No. 2 Corporation is not

empowered in law to allow the Petitioner to withdraw her resignation only because the

Petitioner was angry and depressed due to a fight with her husband. Even her being an

active social worker, or being at the forefront during the current pandemic to help the

needy would not come to her rescue in light of S. 7 quoted above, dealing with

‘resignation of ofce by councillor’. In view of her seat having fallen vacant

immediately upon receipt of her Letter of Resignation, the fact that the Commissioner

of the Respondent No.2 Corporation did not mention that the Petitioner had

withdrawn her Resignation Letter dated 26th October, 2020, by her subsequent Letter

dated 3rd November, 2020, in his Letter dated 2nd December, 2020, addressed to

Respondent No. 1 – State of Maharashtra and / or to the Respondent No. 3 – State

Election Commission, can by no means be termed as malafde, or vindictive conduct

on his part, since the subsequent withdrawal of her resignation is of no consequence as

her seat stood vacant immediately on 26th October, 2020, i.e. upon receipt of her

Resignation Letter by the Commissioner of the Respondent No. 2 Corporation in view

of Section 7 of the Act. The question therefore of any interference by this Court

under Article-226 of the Constitution of India, as sought by the Petitioner, does not

arise and the above Writ Petition is dismissed with costs.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.53 OF 2021

Farzana Ismail Rangrez (Mirchi) Vs The State of Maharashtra 

CORAM : S.J. KATHAWALLA, & R.I.CHAGLA, JJ.

DATE : 7TH JANUARY, 2021

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Whether court can condone delay in filing of election petition?

Section 69 of the Act is the mechanism provided by the State Legislature as contemplated Under Article 243ZK(2) of the Constitution of India. Once the mechanism provided under the Statute provides for a time Schedule for preferring an election petition, in the absence of a provision in the Statute for enlarging the time under any given circumstances, no court, whether the High Court Under Article 226 or this Court Under Article 32, 136 or 142 of the Constitution can extend the period in election matters. In the matter of limitation in election cases, the Court has to adopt strict interpretation of the provisions. This Court in Smita Subhash Sawant v. Jagdeeshwari Jagdish Amin and Ors. reported in MANU/SC/0966/2015 : (2015) 12 SCC 169, though in a different context, has held at paragraph 33 that "In the absence of any provision made in the Act for condoning the delay in filing the election petition, the Chief Judge had no power to condone the delay in filing the election petition beyond the period of limitation prescribed in law".

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4001 of 2018 

Decided On: 19.04.2018

Reji Thomas  Vs.   The State of Kerala and Ors.

Hon'ble Judges/Coram:

Kurian Joseph, Mohan M. Shantanagoudar and Navin Sinha, JJ.

Citation:(2018) 16 SCC 778

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Whether court can permit examination of party to suit at subsequent stage?

Learned counsel for the sole respondent, on the other hand, has
opposed the prayer and has placed reliance of the Order XVIII Rule 3-A of the
Code of Civil Procedure, which reads as follows :
“Party to appear before other witnesses - Where a party himself
wishes to appear as a witness, he shall so appear before any other
witness on his behalf has been examined, unless the Court, for
reasons to be recorded, permits him to appear as his on witness at a
later stage.”
It is submitted by the learned counsel for the sole respondent that
since two witnesses have already been examined in presence of the election
petitioner, the election petitioner himself cannot examine as a witness now. It is
submitted that if the election petitioner desired to be examined at a later stage, he
should have filed the application for the same on the same date, but he did not
seek the permission of the Court for his examination at a later stage and allowed
the other witnesses to be examined in his presence. Alternatively, it is submitted
by the learned counsel for the sole respondent that in any event, the election
petitioner should be examined after the examination of all the witnesses.
Having heard the learned counsels for both the parties, I am of the
considered view that the Order XVIII Rule 3-A of the Code of Civil Procedure is
not an absolute bar for examination of party to a suit at a later stage. There is
always a discretion of the Court to allow the party to be examined at the later
stage. Even Section 87 of the Representation of the People Act only states that the
procedure applicable under the Code of Civil Procedure for the trial of the suits
shall be followed by the High Court while trying an election petition, as nearly as
may be. There is no requirement of strict adherence to the provisions of CPC,
while trying an election petition.
In view of the aforesaid discussions, it is directed that the election
petitioner shall be examined in the case as witness on the next date. 
IN THE HIGH COURT OF JHARKHAND AT RANCHI
 E.P No. 11 of 2015

Krishna Nand Tripathi.
 V
Alok Chaurasiya .
CORAM :  MR. JUSTICE H. C. MISHRA

 Dated:19.8.2016.
Citation: AIR 2017 Jharkhand 22

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How to calculate limitation for filing election petition?

Election petition

Limitation starts from the date on which list specifying necessary details

for declaring results is prepared by returning officer and is available for

inspection and not from the date on which the result is notified.

If rules providing manner of declaration of result of election are not

framed then the provision has to be read in such manner that it is favourable to

returned candidate and not in the manner which may benefit the person

challenging the election

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6848 of 2015 (Arising out of SLP (C) No. 6244/2015)

Decided On: 04.09.2015

Smita Subhash Sawant
Vs.
 Jagdeeshwari Jagdish Amin and Ors.

Coram:Jasti Chelameswar and Abhay Manohar Sapre, JJ.

Citation:AIR 2016 SC 1409

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Whether court can permit a party to seek a roving enquiry in election petition?

 During the trial of an election petition, it is not permissible for the court to permit a party to seek a roving enquiry. The party must plead the material fact and adduce evidence to substantiate the same so that the court may proceed to adjudicate upon that issue. Before the court permits the recounting, the following conditions must be satisfied:

(i) The Court must be satisfied that a prima facie case is established;

(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;

(iii) A roving and fishing inquiry should not be directed by way of an order to recount the votes;

(iv) An opportunity should be given to file objection;

and

(v) Secrecy of the ballot requires to be guarded.

Reportable

Supreme Court of India

Kalyan Singh Chouhan vs C.P.Joshi on 24 January, 2011

Bench: P. Sathasivam, B.S. Chauhan

Citation:(2011)11SCC 786

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What is difference between trial of election petition and trial of civil suit?

 In Kailash v. Nanhku & Ors., AIR 2005 SC 2441, this Court held that the trial of an election petition is entirely different from the trial of a civil suit, as in a civil suit trial commences on framing the issues while trial of an election petition encompasses all proceedings commencing from the filing of the election petition up to the date of decision. Therefore, the procedure provided for the trial of civil suits under CPC is not applicable in its entirety to the trial of the election petition. For the purpose of the election petition, the word `trial' includes the entire proceedings commencing from the time of filing the election petition till the pronouncement of the judgment. The applicability of the procedure in Election Tribunal is circumscribed  by two riders : firstly, the procedure prescribed in CPC is applicable only "as nearly as may be", and secondly, the CPC would give way to any provisions of the Act or any rules made thereunder. Therefore, the procedure prescribed in CPC applies to election trial with flexibility and only as guidelines.
Reportable

Supreme Court of India

Kalyan Singh Chouhan vs C.P.Joshi on 24 January, 2011

Bench: P. Sathasivam, B.S. Chauhan

Citation:(2011)11SCC 786

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When Improper acceptance of nomination be said to have materially affected result of election?

  Representation of the  People  Act,  1951-S.100(1)(d)-
Improper acceptance  of nomination-When  could it be said to
materially affect the result of election?
The appellant, the respondent and four other candidates
contested the  election to  a legislative  assembly  from  a
constituency  reserved  for  Scheduled  Castes.  While  the
respondent was declared elected,  the appellant secured the
next highest  number of  votes and  the  difference  in  the
number of  votes secured by them was only 373. The appellant
challenged the election of the respondent on the ground that
the result  of the  election had been materially effected by
the  improper  acceptance  of  the  nomination of  a  third
candidate who  had secured 6710 votes. The Election Tribunal
arrived at  the finding  that the  candidate in question was
not a member of the Scheduled Castes and hence is nomination
had been  improperly accepted, but nevertheless, refused to
set aside  the election of the respondent on the ground that
the result  of the  election had not been shown to have been
materially affected  as a  result of the improper acceptance
of the nomination.
     Allowing the appeal,
^
     HELD: Under  s. 100(1)(d) of the Representation of the
People Act, 1951, the election of a returned candidate shall
be declared  to be  void if the High Court is of the opinion
that the  result of  the election,  in so far as it concerns
the returned  candidate, has been materially affected by the
improper acceptance  of any  nomination and  the  burden  of
establishing the  same is  on the  person  impeaching  the
election.  Where   the candidate   whose   nomination  was
improperly accepted  has secured  a larger  number of  votes
than the  difference between  the number of votes secured by
the successful candidate and the candidate securing the next
highest number of votes,  there is  a possibility  that  a
sufficient number  of votes  actually cast for the candidate
whose nomination  was improperly  accepted might  have been
cast for  the candidate  who secured  the highest  number of
votes next  to the  successful candidate  so as to upset the
result of  the election.  In such a situation, the answer to
the question  whether the  result of  the election  could be
said to  have been  materially affected  must depend  on the
facts, circumstances  and reasonable  probabilities  of  the
case. If  the number of votes secured by the candidate whose
nomination was improperly  accepted  is  disproportionately
large as compared with the difference
967
between the  votes secured  by the  successful candidate and
the candidate  securing the next highest number of votes and
if the votes secured  by the candidate whose nomination was
improperly accepted  bears a  fairly high  proportion to the
votes secured  by the  successful candidate,  the reasonable
probability is that the  result of  the election  has been
materially affected  and one may venture to hold the fact as
proved. [968 F-G; 969 D-F]
     Under the Evidence Act,  a fact  is said to be proved
when after  considering the  matters before  it,  the  Court
either believes  it to exist or  considers its existence so
probable that  a prudent  man ought, under the circumstances
of the particular case, to act upon the supposition that it
exists. If having regard to the facts and circumstances of a
case, the  reasonable probability  is all  one way,  a court
must not lay down an impossible standard of proof and hold a
fact as not proved. [969 G-H]
     In the instant case, the candidate whose nomination was
improperly accepted had obtained 6710 votes, that is, almost
20-times the  difference between the number of votes secured
by the successful candidate  and the candidate securing the
next highest  number of  votes. Further, the number of votes
secured by  the candidate  whose nomination  was  improperly
accepted bore  a fairly  high proportion  to the  number  of
votes secured  by the  successful candidate-it was a little
over one-third.  In such  a  situation the  result  of  the
election may  safely be  said to have been affected.

Supreme Court of India

Chhedi Ram vs Jhilmit Ram & Others on 5 December, 1983

Equivalent citations: 1984 AIR 146, 1984 SCR (1) 966,

1984 SCC  (2) 281,

BENCH:
REDDY, O. CHINNAPPA (J)
FAZALALI, SYED MURTAZA
VENKATARAMIAH, E.S. (J)

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Whether standard of proof in election petition is different from civil suit?

 The finding recorded by the learned Principal Judge of the Small Causes
Court, Pune cannot be independently taken so as to come to a conclusion that
the Respondent No.4 has fallen foul of the statutory mandate and unseat the
Respondent No.4 in the absence of any issue/issues framed in that regard.  The
exercise  of  considering the  findings  recorded  by the  Trial  Court  and  then
referring it to issue or issues would be like putting the cart before the horse.
The said aspect is required to be considered in the context of the fact that in an
Election Petition the standard of proof is different than one in a Civil Suit

which is based on a preponderance of probabilities.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11334 OF 2015 
ALONG WITH 
CIVIL APPLICATION NO.3379 OF 2015
Shri Vijay Waman Deshmukh 
Versus
Pune Municipal Corporation 
CORAM : R. M. SAVANT, J.
DATE   : 29th April 2016
Citation:2016(4) MHLJ 917

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Whether election of person who has contested election on false caste certificate can be terminated?

We have perused sub-section (1) of Section 10 of the 2000 Act and we find that it applies to admission to reserved seat in an educational institution and to appointment to a reserved post in the Government, local authorities, Government Corporations, Government aided institutions or co-operative societies and will not be attracted to the facts of the case. Instead, the consequences as provided in sub- section (4) of Section 10 of the 2000 Act will follow. Sub-Section (4) of Section 10 reads : "Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory body if he has contested the election for local authority, co-operative society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by procuring a false caste certificate as belonging to such caste, tribe or class on such false caste certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively."

The consequence is that the election of a person who has contested on a seat reserved for the aforementioned categories on false caste certificate as belonging to such caste, tribe or class "shall be deemed to have been terminated retrospectively". The deeming provision in sub-section (4) of Section 10 of the 2000 Act is a statutory fiction which has to be given effect to and the Commissioner of the Municipal Corporation has given effect to the deeming provision and has thus acted in accordance with law.

SUPREME COURT OF INDIA

Kalpana Dilip Bahirat Vs. Pune Municipal Corp. & Ors.

[Civil Appeal No. 4805 of 2013 arising out of Special Leave Petition (C) No. 19296 of 2013]

Dated:7 June 2013

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Landmark Judgments on Election Law

http://eci.nic.in/eci_main/ElectoralLaws/Judgements/LandmarkJudgementsVOLI.pdf

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