Chhattisgarh High Court: Election of Returned Candidates has to be Challenged by Filing a Separate Election Petition

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Facts relating to Election of a Returned Candidate

The matter was filed by Respondent 1, Dr. Renu Jogi, who was a returned candidate who belonged to the Janata Congress Chhattisgarh (J) party. The respondent has filed an application under Order 7 Rule 11 of the CPC, to challenge the election of the 25th constituency of the Kota Assembly of the Bilaspur district. According to Section 37 of the Punjab State Election Commission Act, 1994, A returned candidate is one who has been elected and a contesting candidate is one who has not withdrawn his candidature.

Arguments Of The Petitioner

The main contention of the petitioner is that the manifesto, of the petitioner’s party (Bharat Bhoomi Party) of which the petitioner was a candidate, was not published in the nationwide circulating newspaper, and due to this, the candidate suffered losses because the elections held along with Chhattisgarh in states like Telangana, Rajasthan and Mizoram were also affected. They felt that since the election of the entire Chhattisgarh constituencies has been prayed to be set aside, therefore, the present election petition is not sustainable as it does not give this Court jurisdiction to exercise the power under Section 100 of the Act, 1951.

They submitted that along with Kota Constituency Assembly bearing No.25, which was held on 11.12.2018, has been praying to be cancelled along with 72 other seats of entire Chhattisgarh assembly. Referring to section 80 and 81 of the Act of 1951, counsel submitted that the word “any election” has been defined in section 81, which means that “election as a whole cannot be challenged”. They referred to the cases of  Indrajit Barua & Ors. vs. Election Commission of India & Ors. and P.R. Francis vs. A.V. Aryian & Anr, and showed that the election as a whole cannot be challenged and the scheme of the Act is that each election has to be challenged by filing a separate election petition, therefore no cause of action arises for this court to go into trial in this petition which is liable to be dismissed at the threshold.

Arguments Of The Respondent

The respondent alleges that the prayer made in the election petition does not give cause for arising of a suit under Section 100 of the Representation of the People Act, 1951 (or  ‘the Act, 1951’). They have contended that neither any grounds which require on which the election petition can be entertained have been pleaded nor has been projected in the pleadings.

Despite the repeated pass overs, the petitioner did not appear and on the earlier occasion too when the case was fixed no representation was made on behalf of the petitioner, therefore, in absence of any representation on behalf of the petitioner the arguments were heard on the application filed under Order 7 Rule 11 CPC.

Analysis 

The prayer made had 3 points of consideration. The petition also pleaded that the Election Commission was under the responsibility to publish the party manifesto though it was given before the date of the election since the manifesto was not published, the public could not read the same because of the polling date and time as it was only published on 20.11.2018, so sufficient time was not given to select honest candidates. The court’s opinion is that Section 80 of the Act, 1951, when reading between the lines says that no election shall be called in question except by an election petition presented in accordance with the provisions of this part. Under Section 81 of the Act, 195, an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 & 101 to the High Court. Therefore, an election can be challenged only by the filing of an election petition in the manner prescribed by the Representation of the People Act, 1951. The court referred to Indrajit Barua and others v. Election Commission of India and Ors., wherein the court held that the election of returned candidates has to be challenged by the filing of a separate election petition.

Court’s Decision

The decision made by the court was presided over by Justice G. Bhaduri. In view of the previous discussion prima facie evidence based on the pleadings of the petition, no cause of action was said to arise on the grounds brought forward by the petitioner. Therefore, because of the absence of material facts under Section 100 read with Section 81 of the Act, 1951, the petition holds no merit. As a necessary conclusion of the discussion, the application under Order 7 Rule 11 of C.P.C. was allowed. The election petition was dismissed.


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