Report No. 255

B. Formalistic Nature of the Current Procedure of Filing a Petition

10.4. Unfortunately, the filing and trial of election petitions remains a very formalistic procedure and moreover, differs amongst High Courts. The matter is made worse because some states, such as Maharashtra and Goa, have a common High Court; whereas some High Courts have different benches in the same State. Additionally, different High Courts have different rules prescribing the bench to which the election petition can be file.- whether the Principal Seat of the High Court, or the bench within whose exclusive jurisdiction the particular contested election was conducted.

10.5. For instance, Mendiratta in his book talks about how an election petition filed before the Lucknow bench of the Allahabad High Court relating to an election in Rae Bareli (which fell under the principal seat of the High Court's jurisdiction) was dismissed as being non-maintainable because it was not filed in constituency in which the election was conducted, namely Rae Bareli.

Moreover, even the application for transferring the petition to Rae Bareli was dismissed as non-maintainable because of the exclusive jurisdiction of both benches and the expiry of the limitation period.437 Conversely, in Madhya Pradesh for instance, all election petitions are to be filed before the principal Bench in Jabalpur. Consequently, the Gwalior Bench of the High Court returned an election petition filed challenging an election in Gwalior; and when the petition was filed the next day before the principal Bench in Jabalpur, it was dismissed as being time-barred.

The Supreme Court upheld this decision. Devendra Nath Gupta v. Returning Officer, Gwalior Parliamentary Constituency, C.A. No. 7480 of 1997 decided by the Supreme Court on 26.11.1999. See also Mendiratta, supra note 161, at 1055

437. Ibid, at 1055

10.6. The time limit within which an election petition has to be presented under section 81(1), RPA is 45 days and the petition need not be presented only to a judge in open court. It can also be presented to the administrative or ministerial staff of the High Court on the same day. Raj Kumar Yadav v. Samir Mahaseth, (2005) 3 SCC 601; Kishore Jha v. Mahavir Prasad, AIR 1999 SC 3558.

Nevertheless, any delay in presenting the petition will result in its summary dismissal vide section 86, KV Rao v. BN Reddi, AIR 1969 SC 872 unless the limitation period expires during the vacation time of the Court. Simhadri Satya Rao v. M Budda Prasad, (1994) Supp 1 SCC 449; Hari Tripathi v. Shiv Harsh, [1976] 3 SCR 308.

However, see Mohd Ali v. Azad Mohd, AIR 1999 SC 3429 when the election petition filed on the reopening of the Punjab and Haryana High Court was dismissed as time barred because the limitation period expired in the summer vacation and the Court had issued a notification declaring that it would remain open to hear election petitions in the summer.

In fact, the High Courts do not have the discretion, ordinarily accorded to them vide section 5 of the Limitation Act, to condone the delay in filing the petition. This ruling was premised on the idea that the RPA is a self-contained code to which the provisions of the Limitation Act do not apply. Hukumdev Narain v. Lalit Narain Mishra, AIR 1974 SC 480; KV Rao v. BN Reddi, AIR 1969 SC 872

10.7. Regular rules of impleading proper parties do not apply to election petitions under the RPA. The Supreme Court in Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983 rejected the petitioner's impleadment of Jyoti Basu for his alleged collusion with the returned candidate to commit certain corrupt practices on the ground sections 82 and 86(4) only permitted candidates as respondents to an election petition.

The Court's rationale was that the concept of proper parties "is and must remain alien to an election dispute" under the RPA because such disputes must be confined between the petitioner and candidates of elections. Thus, any person, including the ECI or other election authorities, even if proper parties, cannot be joined as respondents. Michael Fernandes v. CK Jaffer Sharief, AIR 2002 SC 1041 and B Sundra Reddy v. ECI, (1991) Supp 2 SCC 624 relying on their earlier decision in Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983.

10.8. On the other hand, non-joinder of a candidate who is a necessary party to the election petitions will result in its summary dismissal vide section 86(1) and the provisions of the CPC, permitting the subsequent impleadment of parties, cannot be used as a curative method. Thus, once there is a non-joinder of a necessary party, the election petition cannot be amended in any manner to remedy the defect. Mohan Raj v. Surendra Taparia, AIR 1969 SC 677; K Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687. See also Mendiratta, supra note 161, at 1070.

This rule applies even when there is an allegation of corrupt practice against a candidate who has not been joined in the petition as required by section 82(b), Manohar Joshi v. Nitin Patil, AIR 1996 SC 796; NE Horo v. Jahan Ara Singh, AIR 1972 SC 1840, regardless of whether the respondent(s) have condoned this non-compliance or have failed or been delayed in pointing out this defect. Udhav Sing v. Madhav Rao Scindia, AIR 1976 SC 744.

10.9. Section 86(1), RPA also statutorily obliges the High Court to summarily dismiss an improperly presented election petition (the rules of which vary according to each High Court) under sections 81 or 82. Election petitions have to be presented by the petitioner personally and cannot be presented by or through their advocates. GV Sreerama Reddy v. Returning Officer, (2009) 7 SCJ 432.

Furthermore, section 81(3) necessitates each petition to be accompanied by as many copies as there are respondents, and these 'spare' copies have to be filed at the time of filing the election petition, or at the very least within the stipulated 45 days to avoid summary dismissal under section 86. In Satya Narain v. Dhuja Ram, AIR 1974 SC 1185 the Deputy Registrar of the High Court gave the petitioner certain time, which went beyond the limitation period, to file the required number of copies of his petition.

However, despite filing the additional copies within the time limit prescribed by the Deputy Registrar, the High Court, and subsequently the Supreme Court dismissed the election petition in limine, ruling that the Deputy Registrar lacked the requisite authority to grant time. In addition, section 81(3) requires the petitioner to attest each copy of the election petition under their own signature as a true copy.

Any signature by the petitioner's advocate, instead of the petitioner, results in the in limine dismissal of the election petition. Sharif ud Din v. Abdul Gani Lone, AIR 1980 SC 303. Similarly, having served a copy of the election petition to the respondent with one extra page than was presented before the High Court, the same cannot be subsequently rectified and results in the in limine dismissal of the petition. Rajendra Singh v. Usha Rani, AIR 1984 SC 305.

See also Mithilesh Pandey v. Baidyanath Yadav, AIR 1984 SC 305. Subsequently however, the Supreme Court has relaxed the rigid compliance with section 81(3) noting that some defects in the supply of true copies, such as the absence of stamp/seal/signature or attestation by the notary, are curable. Ram Prasad Sarma v. Mani Kumar Subba, AIR 2003 SC 51.

10.10. Section 86 of the RPA also obliges the High Court to summarily dismiss an election petition for non-compliance with section 117's requirement of a security deposit of Rs. 2000. The High Court is not permitted to reduce or dispense with the amount of the deposit. Charan Lal Sahu v. Nandkishore Bhatt, 53 ELR 284. See also Mendiratta, supra note 161, at 1082. Nor does section 117 statutorily permit the Court to grant an extension, as it deems reasonable, to give the petitioner enough time to collect the requisite Rs. 2000 as security for costs to ensure compliance.