PATEL AHMED MOHAMMAD versus BALWANT SINGH RAJPUT & ORS. on 26 September 2018

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SUPREME COURT REPO[2018] 14 S.C.. 6RTS [2018] 14 S.C.R.

APATEL AHMED MOHAMMAD

v.

BALWANT SINGH RAJPUT & ORS.

(Civil Appeal Nos. 10005-10007 of 2018)

BSEPTEMBER 26, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. DHANANJAYA Y CHANDRACHUD, JJ.]

Representation of the People Act, 1951 – s.86(1) r/w. ss.81(3),83(1)(C) and 83(2) – Applications for dismissal of election petitionC– Respondent no.1 filed election petition challenging the electionof the appellant to the Council of States – Appellant filed threeapplications for dismissal of the election petition – First application-election application no.2 was for dismissal of election petition onground of non-removal of office objections raised by the office/Dregistry of the High Court – Second application-election applicationno.3 urged dismissal of election petition u/s.86(1) r/w. ss.81(3),83(1)(C) & 83(2) of the Act and under the provisions of the CPCand also under the High Court Rules as election petition served toappellant was not a ‘true copy’ – Third application-electionapplication no.6 was for dismissal of election petition u/Or.VII,Er.11(a) and (d) of CPC for non-disclosure of the cause of action –All three applications were rejected by the High Court – On appeal,held: In case of election application no.2, it is evident from theHigh Court Rules that the election petition is required to be placedfor orders before the Court by the office only after removal of officeobjections as per r.285 and in the instant case, the record showedFthat the matter was placed before the Court u/r.285 – Thus, theHigh Court was right in rejecting the election application no.2 – Incase of election application no.3, High Court committed error innoting that appellant did not file the original copy of the electionpetition – In that, appellant had not only submitted a photocopy ofGthe election petition, but also gave an undertaking to produce theoriginal on the next date of hearing and he did produce and handedover to the High Court – Thus, decision of the High Court onelection application no.3 set aside – Application No.3 and the partiesrelegated before the High Court for de novo consideration of the H

said application – Insofar as election application no.6 is concerned,said application disposed of with liberty to the appellant to challengethe selfsame decision of the said application afresh in event theremanded election application no.3 is rejected – Gujarat High CourtRules, 1993 – rr.282, 283, 284 and 285 – Code of Civil Procedure,1908 – Or.XIX r.3, Or. VII r.11(a) & (d).

Disposing of the appeals, the Court

HELD : 1. In the First application i.e. Election ApplicationNo. 2 of 2017, the High Court, in substance, opined that theaverments in the said application preferred by the appellant werevague and unsubstantiated. On a bare perusal of the Gujarat HighCourt Rules,1993 it is evident that the election petition isrequired to be placed for orders before the Court by the officeonly after removal of office objections as per Rule 285. If theoffice objections are pending and not cured within the prescribedperiod, the office is obliged to list the matter before the Courtfor appropriate orders under Rule 284. For that reason, the HighCourt opined that in the absence of any positive statement in theapplication filed by the election petitioner and as the record wouldshow that the matter was placed by the office before the Courtunder Rule 285, it must follow that the grievance made in theapplication under consideration was based on mere conjecturesand surmises and cannot be the basis to dismiss the electionpetition at the threshold, as prayed. The view taken by the HighCourt was right and as a result, the order rejecting the applicationunder consideration, being Election Application No.2 of 2017,deserves to be upheld. [Paras 6, 12][11-D; 17-E-H]

2.1 Reverting to the second application filed by theappellant, being Election Application No.3 of 2017, the High Courtnoted that the appellant did not file the original copy of the electionpetition served on him, but produced only a photocopy of theallegedly served copy of the election petition along with theapplication filed for that purpose, bearing Election ApplicationNo.3. The High Court noted that the only grievance of theappellant was that the copy of the election petition served on himdid not contain the words: “True Copy”. [Paras 13, 14][18-A, D]

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8 SUPREME COURT REPORTS [2018] 14 S.C.R.A2.2 However, the grievance made by the appellant beforethis Court is that the factual position recorded by the High Courtin the impugned judgment that the appellant had not producedthe copy actually served on him in the Court is incorrect. In that,the appellant had submitted the photocopy of the actually servedcopy along with Election Application No.3 and had also undertakenBto produce the original of the actually served copy at the time ofhearing and that the same was so produced at the time of hearingand handed over to the High Court. This specific plea has beentaken in ground (u) of the special leave petition. In other words,the High Court committed manifest error in that regard. If that isCso, it would be appropriate to relegate the parties before theHigh Court for consideration of grievance that the copy actuallyserved on the appellant is not the true copy within the meaningof Section 81(3) of the Representation of People Act, 1951. Theappellant had also pointed out 20 discrepancies in the copy of theelection petition served on him, which according to the appellant,Dwere material discrepancies warranting a finding that the copy ofthe petition served on him was not a “True Copy” within themeaning of Section 81(3) of the Act. The High Court hasnot dealt with this contention in the impugned judgment at all.The decision of the High Court on the application underEconsideration, being Election Application No.3 of 2017, set aside.[Para 16][19-B-F]

3. The question to be decided in Election Application No.3of 2017 for dismissal of the election petition, will be limited tonon-compliance of Section 81(3) and the consequences flowingFtherefrom including under Section 86(1) of the Act. For, thedismissal of the election petition under the latter provision isenvisaged only on that count and not in reference to some non-compliance of requirement under Section 83 of the Act. This isthe settled legal position. [Para 17][19-H; 20-A]

4. Thus, the parties relegated before the High Court forGconsideration of Election Application No.3 of 2017 afresh inaccordance with law, and in the event the appellant is in a positionto persuade the High Court to allow the said application, theelection petition will have to be dismissed at the threshold underSection 86(1) read with Section 81(3) of the Act. However, if thatH

application fails, the appellant can be permitted to reopen orrevive the challenge to the issues raised in Election ApplicationNo.6 of 2017 for dismissal of the election petition under OrderVII Rule 11(a) & (d) of the Code of Civil Procedure, 1908 on theground that the election petition does not disclose a cause ofaction or that it is barred by law. In that eventuality, the appellantmay challenge the judgment rendered in the remanded ElectionApplication No.3 of 2017 and also have the liberty to file freshspecial leave petition against the impugned judgment and orderpassed by the High Court in Election Application No.6 of 2017.Further, both such special leave petitions can be heard together.[Para 18][20-B-D]

Chandrakant Uttam Chodankar v. Dayanand RayuMandrakar and Ors. (2005) 2 SCC 188 : [2004]6 Suppl. SCR 916 ; Murarka Radhey Shyam RamKumar v. Roop Singh Rathore [1964] 3 SCR 573 ;Ch. Subbarao v. Member, Election Tribunal [1964] 6SCR 213 ; T.M. Jacob v. C. Poulose and Ors. (1999) 4SCC 274 : [1999] 2 SCR 659 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 10005-10007 of 2018.

From the Judgment and Order dated 20.04.2018 of the High Courtof Gujarat at Ahmedabad in Election Application Nos. 2, 3 & 6 of 2017in Election Petition No. 1 of 2017.

Dr. Abhishek Manu Singhvi, Harin P. Raval, Sr. Advs., DevadattKamat, Pankaj Champaneri, Varun Chopra, Amit Bhandari, Nizam Pasha,Aditya Bhat, Javedur Rahman, Rajesh Inamdar, Gautam Talukdar, Advs.for the Appellants.

Satyapal Jain, Sr. Adv., Devang Vyas, Siddharth Dave, AmitSharma, R. C. Kohli, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. Leave granted.

2. These appeals take exception to the judgment and order dated20[th] April, 2018 passed by the High Court of Gujarat at Ahmedabad, inElection Application Nos.2, 3 and 6 of 2017 in Election Petition No.1 ofB2017. By the said order, the High Court dismissed all the three applicationspreferred by the appellant seeking dismissal of Election Petition No.1 of2017 at the threshold.

3. Election Petition No.1 of 2017 has been filed by respondentNo.1 challenging the election of the appellant to the Council of StatesC(Rajya Sabha) held on 8[th] August, 2017, by the members of the LegislativeAssembly of Gujarat, on the ground that the appellant had committedcorrupt practices of ‘bribery’ and ‘undue influence’ within the meaningof sub-sections (1) and (2) of Section 123 of the Representation of thePeople Act, 1951 (for short “the Act”) and also on the ground that twoDvalid votes were illegally and improperly rejected by the Returning Officerand at the same time, two invalid votes were accepted by the said officer,which has materially affected the results of the election. The electionpetition came to be filed on 18[th] August, 2017 much before the last dateof limitation.E4. The appellant was served with the summons on 7[[th]] September, E4. The appellant was served with the summons on 7[[th]] September,2017 to appear in the election petition, pursuant to the order of the HighCourt dated 21[st] August, 2017. The appellant filed his written statementon 4[th] October, 2017 and also filed the stated three applications fordismissal of the election petition at the threshold. The first applicationwas numbered as Election Application No.2 of 2017, wherein the appellantFhad prayed for dismissal of the election petition primarily on the groundof non-compliance of Rules 282 (ii) and (iii) of the Gujarat High CourtRules, 1993, as there was no order to rectify such non-compliance ascontemplated under Rule 284 and the time provided therefor in the laterportion of Rule 283 had elapsed. In other words, the election petitionGwas required to be dismissed for non-removal of office objections raisedby the office/registry of the High Court, in exercise of power under Rule284 after recalling the order dated 21[st] August, 2017. The secondapplication was numbered as Election Application No.3 of 2017, prayingfor dismissal of the election petition on the ground of non-compliance ofthe provisions of the Act read with the Gujarat High Court Rules, 1993,H

as well as the provisions of Order XIX Rule 3 of the Code of CivilProcedure (“CPC”). The grounds urged in the application were ascribableto dismissal of the election petition under Section 86(1) read with Sections81(3), 83(1)(c) and 83(2) of the Act as well as the provisions of CPCand the High Court Rules. The third application, being Election ApplicationNo.6 of 2017, was also for dismissal of the election petition at the thresholdunder Order VII Rules 11(a) and (d) of CPC, for non-disclosure of thecause of action in the election petition and the petition being barred bylaw. As aforesaid, all the three election applications have been rejectedby the High Court vide common impugned judgment.

5. The appellant, being aggrieved by the said decision of the HighCourt, has filed these appeals by special leave. We shall deal with thechallenge to the impugned judgment in reference to the concernedapplication in seriatim.

6. Reverting to the first application i.e. Election Application No.2of 2017, the High Court, in substance, opined that the averments in thesaid application preferred by the appellant were vague and unsubstantiated.It found that the appellant was not sure as to whether the office objectionshad been removed or not, when the application was filed by him. Further,there was no specific averment in the application as to which objectionraised by the office/registry of the High Court was not removed. All thathad been stated in the application was that the objections which wereraised by the office were not removed, as no noting was found in theofficial record to indicate that the same were duly removed before theexpiry of the limitation period. The ground urged by the appellant did notcommend to the High Court. For, the High Court found that the samewas based on mere conjectures and surmises. The High Court insteadfound that as per Rule 284, the matter was required to be listed beforethe High Court only if the objections were not removed within the timefixed therefor or as per the order, if any, passed by the Court under Rule283. On the other hand, the subject petition was placed before the Courtunder Rule 285 which presupposes that it was so done only after theoffice objections were duly cured. It noted that if the matter was placedbefore the Court under Rule 285 by the Office, it had to be presumedthat the Office had done so after due scrutiny of the petition and onbeing satisfied that office objections had been duly removed. Further, itwas only an administrative function of the High Court and could not bethe basis to dismiss the election petition at the threshold. The High Court AB

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Aalso found that the application under consideration was filed by theappellant one month after the date of service of summons and that theplea under consideration was not taken in the written statement filed bythe appellant on 4[th] October, 2017. The High Court concluded that in theabsence of any positive statement in the application filed by the appellant,as to which of the office objections was not removed by the electionBpetitioner (respondent No.1) before the matter was placed before theCourt for consideration under Rule 285, the objection raised by theappellant was replete with conjectures and surmises. That could not bemade the basis to dismiss the election petition on the ground of non-removal of office objections. The relevant extract of the impugnedCjudgment dealing with this aspect reads thus:

“32…….In the opinion of the Court there is basic fallacy in thesaid submission. It appears that the applicant himself was not sureas to whether the office objections were, in fact, removed or not,when the Election Application No.2 of 2017 was filed by himDinasmuch as there is no specific allegation made in the applicationas to which objections raised by the office/registry of the HighCourt were not removed, and it is stated that “It appears that theobjections which were raised by the office were not removed”.The application appears to have been filed on mere conjecturesand surmises. That apart, the office was required to be place theEmatter before the Court for appropriate orders under Rule 284only if the objections were not removed within the time fixed or asper the order, if any, passed by the Court under Rule 283.

33. The petitioner in the reply to the said application, while denyingthe said allegation, has stated on oath that the petitioner had removedFall the objections before the petition was actually placed beforethe Court for consideration. Pertinently, the petition could beplaced before the Court for consideration under Rule 285,only after the removal of the office objections, otherwisethe matter would be placed for appropriate orders by theGoffice for non-removal of the objections as per Rule 284.No such orders were sought by the office under Rule 284,meaning thereby it has to be resumed that the office afterscrutiny of the petition, and after removal of office objectionsby the petitioner had placed the matter for considerationbefore the Court. As held by the Supreme Court in case of H

PATEL AHMED MOHAMMAD v. BALWANT SINGH RAJPUT[A. M. KHANWILKAR, J.]

Chandrakant Uttam (supra), the scrutiny of election petitionis one of the administrative functions to be performed bythe officers of the High Court, and such an act would drawa presumption of having been performed in terms of Section114(e) of the Evidence Act.

34. It is also pertinent to note that after the matter was placedbefore the court as per the roster, the Court had issued summonsto the respondents on 21.08.2017, directing the respondents toappear before the Court on 21.09.2017. Thereafter the learnedAdvocate Mr. Champaneri appearing for the Respondent No.1had stated that he had filed a separate application seeking furthertime to file written statement. Thereafter the matter was directedto be placed on 06.10.2017. In the meantime, the respondent No.1had filed the written statement and the present applications on4.10.2017. At no point of time after the filing of the appearance,the learned Advocate for the applicant (original respondent No.1)had raised such contention to the effect that the petition was placedfor consideration before the Court without removing all officeobjections. It is true that on presentation of the petition on18.08.2017, the office had pointed out the office objections i.e.No.19, 22 and 23 listed in the prescribed check-list in Form B.office objection No.19 is as to whether paging is done; No.22 isas to whether copies are true, legible and whether typed copies ofany written annexures are filed, and No.23a is as to whether copiesare true copies signed by the Advocate. The matter was permittedto be circulated before the appropriate Bench on 21.08.2017.Hence, it is just possible that the petitioner had removed the saidoffice objections before the matter was actually placed beforethe Court for consideration on 21.08.2017. In absence of anypositive statement in the application filed by the applicant as towhich office objections were not removed by the petitioner beforethe matter was placed before the court for consideration, suchapplication No.2 of 2017 filed merely on conjectures andinferences could not be entertained for dismissal of the petition onthe ground of non-removal of office objections.”

(emphasis supplied)

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A7. The view so taken by the High Court has been assailed by theappellant on the argument that the High Court could not have presumedthat office objections noted by the Registry of the High Court on 18[th]August, 2017, were duly removed. Further, if the office objections hadnot been removed, it must necessarily follow that the Registry could nothave posted the matter before the Court under Rule 285 but ought toBhave proceeded under Rule 284 of the High Court Rules. In that event,the office objections would remain valid and for which reason the orderpassed on 21[st] August, 2017, issuing summons to the appellant to appearin the proceedings ought to be recalled and the election petition dismissedfor non-removal of the office objections within the limitation period. TheCrespondent No.1, on the other hand, supported the view expressed bythe High Court in rejecting the application and has reiterated the sameargument before us.

8. The question is: whether the view taken by the High Court asregards the rejection of Election Application No.2 of 2017 is just andDproper? For that, we may first turn to the averments in the application todiscern whether the finding recorded by the High Court is a possibleview. The relevant averments can be traced to paragraphs 10, 11 and 14in particular. The same read thus:

“10. It appears that after the election petition was filed, the office/ERegistry of this Hon’ble Court has raised several objections whichare more popularly referred to and known as ‘office objections’.That in terms of Rule 282 (ii) read with Section 283, the samewere bound to be removed by the petitioner or his advocate onthe 3[rd] day from the date of presentation provided and stipulatedunder Rule 282 (ii). The 3[rd] day from the date of filing of theFpetition would fall on the 20[th] of August.

11. It appears that the objections which were raised by the officewere not removed and the election petition was placed pursuantto the request made on the 18[th] of August for circulation on the21[st] of August. Thus, in the respectful and humble submission ofGthe Applicant/Respondent No.1, there is non-compliance of Rules282 (ii) and 283.”

“14. In view of the office objections raised by this Hon’ble Courtand the procedure prescribed under Rule 282 (ii) & (iii) read withRules 283a and 284 having not been adhered to, it is most humblyHand respectfully submitted that the order passed by this Hon’ble Court of the nature contemplated under Rule 285 (i) dated 21[st] ofAugust, 2017 of issuance of summons was at a premature stageand, therefore, the Applicant/Respondent No.1 respectfully begsto submit that the said order be recalled and as the office objections,raised by the office in the above captioned petition after it beingfiled on 17[th] of August, 2017 not having been removed and notime having been either granted or extended, the petition ought tobe and this hereby prayed to be dismissed for non-compliance ofRules 282 (ii) & (iii) read with Rule 283 for non-removal of officeobjections.”

9. From these averments in the application under consideration, itis not clear as to which of the office objections remained to be curedwhen the matter was placed before the Court on 21[st ]September, 2017under Rule 285 of the High Court Rules. As aforesaid, the election petitionwas filed on 18[th] August, 2017, on the same day the office objectionswere noted by the Registry, as is noticed from Page 411 of the paperbook. It is also noticed at the bottom of that document in the column ofoffice objections, the numbers notified are only serial Nos.19, 22 and 23.The said office objections are:

“19. Whether paging is done?

22. Whether copies are true legible and whether typed copies of hand-written Annexure filed?

23. Whether the copies are true copies signed by the Advocate?”

After mentioning the serial numbers of three office objections, afurther noting is found “(PC- with OO)”. In the first place, this noting isevidently made on 18[th] August, 2017. What is relevant for our purpose isthat the matter was processed by the office under Rule 285 of the GujaratHigh Court Rules, 1993 and placed before the Court on 21[st] September,2017. On that date, the Court passed the following order:

“Date: 21/08/2017

ORAL ORDER

Having regard to the provisions contained in Section 86(1) of theRepresentation of Peoples Act, 1951 read with Rule 285 of theGujarat High Court Rules, 1993, office is directed to issuesummons as per the provisions contained in the Rules, to therespondents to appear before the Court on 21.9.2017.”

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A10. In this backdrop, while rejecting the objection taken by theappellant, the High Court opined that since the appellant had come to theCourt with an assertion that the office objections remained to be curedbefore the limitation period, he should have expressly stated as to whichobjection remained to be cured and the source of his information. Theaverments in the application, even if read as a whole and liberally, do notBeven remotely suggest that such a case has been made out. The HighCourt, therefore, relying on the exposition of this Court in the case ofChandrakant Uttam Chodankar Vs. Dayanand Rayu Mandrakarand Ors.[1] opined that the scrutiny of election petition is one of theadministrative functions to be performed by the office of the High CourtCand such an official act would draw a presumption of all necessarysteps having been duly taken by the office and being satisfied in thatbehalf, the matter was placed by the office before the Court forappropriate orders under Rule 285.

11. We may usefully refer to the Rules of the High Court whichDmay have some bearing on the issue under consideration, namely, Rules282, 283, 284 and 285. The same read thus:

“”282. Petition.-

(i) Every application invoking the jurisdiction of the High Courtunder section 80A of the Representation of the People Act, 1951,Eshall be by petition addressed to the Honorable the Chief Justiceand Judges of the High Court.

(ii) The petition shall comply with the provisions of sections 81,82, 83 and 84 of the Act and the grounds on which the relief aresought shall be clearly stated in the petition which shall be arrangedFin suitable paragraphs consecutively numbered. The relief soughtshould be set out at the end of the petition.

(iii) The full names and the full addresses of all the parties to thepetition for service of any process shall be stated in the petition.In addition to the permanent residence and addresses of theGrespondent the present address of the respondent at which serviceof the notice may be effected, shall be stated in the petition.”

“283. Examination of petition.-

The office shall examine the petition with a view to see whetherit is in conformity with the requirements of law and rules applicableH1(2005) 2 SCC 188

to the same, and if it is not in conformity with law and rules, raiseobjections which should be removed by the party or the Advocateconcerned. The office shall complete the examination within twodays after filing of the petition and shall bring the office objectionsto the notice of the party or the Advocate on the date fixed forattendance under rule 282(ii) and such objections shall be removed,subject to the orders of the Court, if any, within three daysthereafter.”

“284. Petition to be placed for orders if objection not removed.- Immediately after the expiration of time fixed for the removal ofobjections, the petition shall be placed before the Judge forappropriate orders.”

“285. Petition to be placed for orders after removal of officeobjections.-

(i) After the removal of office objections, the petition shall beplaced before the Judge for consideration as to whether the petitionis liable to be dismissed under section 86(1) of the Act. If thepetition is not dismissed under section 86(1) of the Act, the Judgeshall direct issue of summons upon the respondent; and thesummons shall be issued to the respondent to appear before theHigh Court on the date fixed and answer the claim or claimsmade in the petition.””

12. On a bare perusal of the said Rules, it is evident that theelection petition is required to be placed for orders before the Court bythe office only after removal of office objections as per Rule 285. If theoffice objections are pending and not cured within the prescribed period,the office is obliged to list the matter before the Court for appropriateorders under Rule 284. For that reason, the High Court opined that in theabsence of any positive statement in the application filed by the electionpetitioner and as the record would show that the matter was placed bythe office before the Court under Rule 285, it must follow that thegrievance made in the application under consideration was based onmere conjectures and surmises and cannot be the basis to dismiss theelection petition at the threshold, as prayed. We respectfully agree withthe said view taken by the High Court and as a result, the order rejectingthe application under consideration, being Election Application No.2 of2017, deserves to be upheld.

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A13. Reverting to the second application filed by the appellant, beingElection Application No.3 of 2017, the thrust of the grievance was thatthe copy of the election petition served on the appellant was not a truecopy. It was not a copy attested by the election petitioner under his ownsignature, much less to be a “true copy” of the petition. Further, therewere blanks in the verification clause of the petition and the affidavit inBForm No.25 was not in conformity with the requirement of law.Additionally, it was also urged that the election petitioner had not filed asmany copies of the election petition as there are respondents mentionedin the election petition. The last point raised by the counsel for theappellant came to be rejected by the High Court on the finding that theCsame was not taken up in the application filed by the appellant. In otherwords, it was canvassed across the Bar for the first time. That being theposition, the High Court justly disallowed the said contention.

14. However, with regard to the other aspects raised in theapplication, the High Court noted that the appellant did not file the originalDcopy of the election petition served on him, but produced only a photocopyof the allegedly served copy of the election petition along with theapplication filed for that purpose, bearing Election Application No.3 of2018. The High Court noted that the only grievance of the appellant wasthat the copy of the election petition served on him did not contain thewords: “True Copy”. That contention was rejected by placing relianceEon the exposition of the Constitution Bench of this Court in MurarkaRadhey Shyam Ram Kumar Vs. Roop Singh Rathore[2], Ch. SubbaraoVs. Member, Election Tribunal[3] and in T.M. Jacob Vs. C. Pouloseand Ors.[4], wherein it has been held that the real test of whether thecopy served is a “true one” is to find out whether any variation from theForiginal is calculated to mislead an ordinary person and if there issubstantial compliance with the requirements of Section 81(3) of theAct, the election petition cannot be dismissed at the threshold.

15. We must agree with the High Court that to test the argumentsof the appellant as to whether the copy served on him was a true copyGof the original election petition or otherwise, it was imperative for him toproduce the copy of the petition actually served on him and not thephotocopy thereof. The grievance of the appellant that some blanks hadbeen kept in the verification clause or there were material discrepancies,2(1964) 3 SCR 5733(1964) 6 SCR 213H4(1999) 4 SCC 274

could be examined only if the copy of the petition actually served on theappellant was produced before the Court. The High Court could havenon-suited the appellant on this sole ground instead of examining thematter any further.

16. However, the grievance made before us by the appellant isthat the factual position recorded by the High Court in paragraph 35 ofthe impugned judgment that the appellant had not produced the copyactually served on him in the Court is incorrect. In that, the appellant hadsubmitted the photocopy of the actually served copy along with ElectionApplication No.3 of 2018 and had also undertaken to produce the originalof the actually served copy at the time of hearing and that the same wasso produced at the time of hearing and handed over to the High Court.This specific plea has been taken in ground (u) of the special leavepetition. In other words, the High Court committed manifest error in thatregard. If that is so, it would be appropriate to relegate the parties beforethe High Court for consideration of grievance that the copy actuallyserved on the appellant is not the true copy within the meaning of Section81(3) of the Act. We are inclined to say so also because the plea takenby the appellant before us is that the appellant had pointed out 20discrepancies in the copy of the election petition served on him and achart whereof has been appended at Pages 855-867 of Volume IV ofthe Special Leave Petition, which according to the appellant, were materialdiscrepancies warranting a finding that the copy of the petition servedon him was not a “True Copy” within the meaning of Section 81(3) ofthe Act. We find that the High Court has not dealt with this contentionin the impugned judgment at all. Even for this reason, the decision of theHigh Court on the application under consideration, being ElectionApplication No.3 of 2017, will have to be set aside and the parties willhave to be relegated before the High Court for its consideration afreshon its own merits in accordance with law. In this view of the matter, wehave consciously avoided to advert to the rival pleadings and submissionson the merits of this issue so that no prejudice is caused to either partyand the remanded Election Application No.3 of 2017 can be decided denovo in accordance with law. All contentions available to the respectiveparties in that regard are kept open.

17. We may hasten to add that the question to be decided in ElectionApplication No.3 of 2017 for dismissal of the election petition, will belimited to non-compliance of Section 81(3) and the consequences flowing A

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Atherefrom including under Section 86(1) of the Act. For, the dismissal ofthe election petition under the latter provision is envisaged only on thatcount and not in reference to some non-compliance of requirement underSection 83 of the Act. This is the settled legal position.

18. As we are inclined to relegate the parties before the HighBCourt for consideration of Election Application No.3 of 2017 afresh inaccordance with law, and in the event the appellant is in a position topersuade the High Court to allow the said application, the election petitionwill have to be dismissed at the threshold under Section 86(1) read withSection 81(3) of the Act. However, if that application fails, the appellantcan be permitted to reopen or revive the challenge to the issues raised inCElection Application No.6 of 2017 for dismissal of the election petitionunder Order VII Rule 11(a) & (d) of the CPC, on the ground that theelection petition does not disclose a cause of action or that it is barred bylaw. In that eventuality, the appellant may challenge the judgment renderedin the remanded Election Application No.3 of 2017 and also have theDliberty to file fresh special leave petition against the impugned judgmentand order passed by the High Court in Election Application No.6 of2017. Further, both such special leave petitions can be heard together.All questions in that regard are kept open, to be decided appropriately ifand when occasion arises. For the time being, we do not wish to burdenthis judgment with the said issues and leave it open.E

19. Accordingly, we allow this appeal in the following terms:

(I)The judgment and order dated 20[th] April, 2018 passed bythe High Court of Gujarat in Election Application No.2 of2017 in Election Petition No.1 of 2017, is upheld and as aFresult thereof, the appeal against that decision is dismissed.

(II)The judgment and order dated 20[th] April, 2018 passed bythe High Court of Gujarat in Election Application No.3 of2017 in Election Petition No.1 of 2017 is set aside and theparties are relegated before the High Court for de novoGconsideration of the said application which is restored to thefile of the High Court to its original number in terms of thisorder. The High Court is requested to decide the remandedapplication expeditiously, preferably within one month.Hence, the appeal against the decision on the ElectionApplication No.3 of 2017 is partly allowed.

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(III) The appeal against the judgment and order dated 20[th] April,2018 passed by the High Court of Gujarat in ElectionApplication No.6 of 2017 in Election Petition No.1 of 2017is disposed of with liberty to the appellant to challenge theselfsame decision afresh in the event his remanded ElectionApplication No.3 of 2017 in Election Petition No.1 of 2017is rejected. That special leave petition be heard analogouslywith the special leave petition against the order to be passedon Election Application No.3 of 2017, should the need arise.

20. The appeals and the accompanying application(s) are disposedof in the aforesaid terms with no order as to costs.

Ankit Gyan

Appeals disposed of.

A

B

C

D

E

F

G

H