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Friday, February 27, 2015

Representation of the People Act, 1951 Section 86 (7) - Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.=election disputes under the Representation of the People Act, 1951 should be resolved expeditiously. The purpose is obvious. The tenure of the members of the Parliament as well as the Legislature of the State is relatively short. It is five years in the case of Lok Sabha and Legislative Assembly, and six years in the case of Rajya Sabha and Legislative Council. Therefore, if there is a dispute regarding the election of any member of any one of the said bodies, it is desirable that the dispute is resolved as early as possible for various reasons.

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NOS. 2538-40 OF 2015
            (Arising out of SLP (Civil) Nos.  2487-2489 of 2015)

Mohd. Akbar                                  ...Appellant

Versus

Ashok Sahu & Ors.                                  ...Respondents


                               J U D G M E N T


Chelameswar,  J.

1.    Leave granted.

2.    The General Election to Chhattisgarh Legislative Assembly  took  place
in 2013.   The appellant herein is one of the contesting candidates for  72-
Kawardha Legislative Assembly Constituency.

3.     Polling  took  place  on  19.11.2013.  The  result  was  declared  on
8.12.2013.   First respondent was declared elected.  The  appellant  secured
the second highest number of votes in the said election.  On 20.1.2014,  the
appellant filed Election Petition No. 4 of 2014 challenging the election  of
the first respondent on various grounds including the commission of  certain
corrupt practices.  On 29.1.2014, the  High  Court  issued  summons  to  the
respondents.

4.    It appears that matter was listed  on  25.3.2014.    It  is  not  very
clear from the records whether all  the  respondents  were  served  or  not.
But from copy of the order dated 25.3.2014, it appears that only  respondent
Nos. 1, 5, 9 and 10 were represented by counsel and other  respondents  were
not represented.   The High Court recorded an order as follows:-
"There is an oral prayer made for  extension  of  time  for  filing  written
statement but there is no application is writing in that regard.

In the interest of justice, three days time is granted  to  learned  counsel
for the respondent to file application if any."

5.    On 26.3.2014, the first respondent herein  filed  two  applications  -
one invoking Order VII Rule 11 of the Code of  Civil  Procedure,  1908  (for
short "CPC") and another  raising  certain  preliminary  objections  to  the
maintainability of the election petition.

6.    On 2.4.2014, two more interlocutory applications  came  to  be  filed,
one each at the instance of respondent No. 1 and  10  seeking  extension  of
time for filing the written statement.  The said applications  were  allowed
and the High Court granted another 30 days'  time  for  filing  the  written
statement.

7.    Thereafter the matter underwent number of  adjournments,  the  details
of which may not be necessary for the purpose of this  order.    Eventually,
arguments on Order VII Rule 11 CPC were heard in part on 27.6.2014.    After
two more adjournments, on 1.7.2014 arguments on the said  applications  were
concluded and the matter was fixed for orders  on  21.7.2014.  However,  the
order was not pronounced and the matter was again  adjourned  for  30.7.2014
on which date the interlocutory applications filed by the  respondents  were
dismissed.

8.    On 14.8.2014, appearance was entered on behalf of respondent No. 8  by
one Shri Ashish Shrivastav, who is none other than the  brother  of  Justice
Manindra M. Srivastava who was the  Judge  hearing  the  Election  Petition.
Justice Manindra Srivastava promptly recused from the election petition  and
in our  opinion  rightly.   On  such  recusal,  the  election  petition  was
allotted to another learned Judge.

9.    In the meanwhile on 26.8.2014, a complaint  regarding  the  appearance
by the above-mentioned Ashish  Srivastav  was  made  to  the  Hon'ble  Chief
Justice.   The election petition was further adjourned.

10.   It appears that respondent  No.  8  filed  another  application  under
Order VII Rule 11 of CPC.  But, the  counsel  for  respondent  No.  8,  Shri
Ashish Srivastava filed an application seeking permission  to  withdraw  his
Vakalatnama.   The said application was allowed  by  the  High  Court.    On
28.11.2014, a Vakalatnama came to be filed by Shri B.P. Gupta on  behalf  of
the respondent No. 1 though there is another counsel on record already.   It
appears that at the instance of Shri B.P. Gupta, the matter was  once  again
adjourned ostensibly to enable Shri B.P. Gupta to get ready with  the  case.
On 4.12.2014, the application filed by the respondent No. 8 under Order  VII
Rule 11 came to be dismissed.

11.   Broadly, it is in the above-mentioned background the instant SLP  came
to be filed complaining that notwithstanding the mandate of Section 86, sub-
Section (7) of the Representation of the People Act, 1951,  the  High  Court
has not disposed of the election petition so far.   Section 86, sub-
Section (7) reads as follows:-
Section 86 (7) - Every election petition shall be tried as expeditiously  as
possible and endeavour shall be  made  to  conclude  the  trial  within  six
months from the date on which the election  petition  is  presented  to  the
High Court for trial.


12.   It was the pious hope of the Parliament that election  disputes  under
the  Representation  of  the   People   Act,   1951   should   be   resolved
expeditiously.   The purpose is obvious.  The tenure of the members  of  the
Parliament as well as the Legislature of the State is relatively short.   It
is five years in the case of Lok Sabha and  Legislative  Assembly,  and  six
years in the case of Rajya Sabha  and  Legislative  Council.  Therefore,  if
there is a dispute regarding the election of any member of any  one  of  the
said bodies, it is desirable that  the  dispute  is  resolved  as  early  as
possible for various reasons.
(i)    Membership  of  the  Legislative  bodies  under  the  scheme  of  our
constitution is a sacred responsibility. The continuance of  any  member  in
such  bodies  who  secured  his  election  to  such  a   body   by   legally
impermissible means even for a day is  most  undesirable.  Such  continuance
affords an opportunity to such a member to  take  part  in  the  law  making
process affecting the destinies of the people.
(ii)  Even from the point of view of the contesting candidates,  unless  the
rights and the  obligations  are  decided  within  a  reasonable  time,  the
adjudication and the consequences of the adjudication may eventually  remain
on paper without any tangible effect insofar as the  participation  of  such
parties in the legislative process.

13.   However, we are  sad  to  state  that  invariably  the  resolution  of
election disputes in this country takes unacceptably long  periods  in  most
of the cases.  Very rarely an election  dispute  gets  resolved  during  the
tenure of the declared candidate reducing the adjudicatory  process  into  a
mockery of justice.  Such delay coupled with  a  right  of  appeal  to  this
Court makes the whole process of adjudication a task in  a  good  number  of
cases.   The reasons are many, we will only mention few;
The stakes are very high for the parties.  Nothing short of  the  membership
of a constitutional body for a limited period. The power and glory  that  go
with such membership is too high and valuable and  the  returned  candidates
naturally leave no stone unturned for protracting the litigation as long  as
possible.

The  law  of  elections  and  election   disputes   is   highly   technical.
Therefore, there is always scope for lot of objections and  cross-objections
regarding every step in the conduct of the election petition.

The absence of dedicated Benches in the High Court  for  resolution  of  the
election disputes is another factor  which  contributes  enormously  to  the
delay in the adjudicatory process.

14.   We therefore deem it desirable  that  in  each  High  Court  dedicated
Benches are  created  by  the  Chief  Justice  to  deal  with  the  election
petitions exclusively.   In other words,  those  judges  assigned  with  the
adjudication of election petitions preferably may not be burdened  with  any
other work until the adjudication of the election  petitions  is  completed.
An exercise which may not be difficult especially the  class  of  litigation
occurs only once in 5 or 6 years and the  number  of  cases  would  be  very
limited.  We are conscious of the fact that it is not  possible  for  laying
down any absolute rules in this regard.   Essentially  it  is  for  a  Chief
Justice of the High Court to run the  administration  and  devise  ways  and
means for expeditiously disposing of  the  cases  brought  before  the  High
Court.   We only gently remind that the kind of delay  in  the  adjudication
of election disputes exposes the High Court's unpleasant criticism  damaging
the  credibility  of  the  institution.   A  situation  which  is  certainly
required to be avoided at any cost.

15.   The facts of the present case are telling. Some 15  months  after  the
election, the trial of the election petition has not yet commenced.  In  the
circumstances, we deem it appropriate to request the Chief Justice  to  take
necessary steps for  disposal  of  the  Election  Petition  No.  4  of  2014
expeditiously, by devising such appropriate measures as  the  Hon'ble  Chief
Justice may deem fit and proper in the circumstances.

16.   We also place on record our disapproval of the tactics adopted by  the
respondents in engaging counsel whose appearance is bound to  embarrass  the
presiding Judge and we feel sad for the  noble  profession,  some  of  whose
members are willing to take part in such unwholesome practices.

17.   Appeals are accordingly disposed of.


                                       ...................................J.
                                                         (J. Chelameswar)


                                       ...................................J.
                                            (Rohinton Fali Nariman)
New Delhi;
February 27, 2015

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