TMI Blog2001 (9) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent, without filing written statement, moved applications under Order 6 Rule 16 read with Order 7 Rule 11 and Section 151 of the CPC supported by affidavit submitting that the respective election petitions did not raise any triable issue before the High Court; that the pleadings were lacking in precision and were vague, unspecific, ambiguous and irrelevant, to some extent also scandalous, and hence amounted to abuse of the process of the court; and that the pleadings did not disclose any cause of action worth being tried by the High Court and therefore the pleadings were liable to be struck off and the election petition liable to be dismissed. The applications were opposed by the election petitioners filing replies thereto. The learned designated Election Judge heard the applications filed by the respondent and formed an opinion that none of the three petitions disclosed any cause of action or triable issue and as such none was maintainable under Section 86 of the Representation of the People Act, 1951. By a common order all the three petitions were directed to be dismissed with costs. Prem Lal Patel, the petitioner in Election Petition No.5 of 1999, has accepted the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred on High Court hearing an election petition under RPA, 1951. In the opinion of learned designated Election Judge the two election petitions did not raise any triable issue nor disclose any cause of action and hence were not maintainable under Section 86 of the RPA, 1951. The preliminary objections raised by the respondent were allowed and all the election petitions dismissed in limine. At the hearing of these appeals, the two election petitioners, appellants in this court, appeared in-person and each of them addressed this court at length. Shri Milon Banerjee, the learned senior counsel ably assisted by Shri Gaurab Banerjee appearing for the respondent, supported the impugned order of the High Court assigning same additional reasons in support thereof. Following questions arise for decision in this appeal: (1) Whether a designated Election Judge of High Court can entertain and decide a plea relating to validity of any law? (2) Whether the plea that a returned candidate is not a citizen of India can be raised in an election petition before the High Court? (3) Whether a plea questioning the citizenship of the returned candidate is entertainable by the High Court hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act. the High Court shall declare the election of the returned candidate to be void. Under Section 87, subject to the provisions of RPA, 1951 and of any Rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. The provisions of the Indian Evidence Act, 1872 are made applicable in all respects to the trial of an election petition unless otherwise provided by RPA, 1951. Who can be joined as parties to an election petition, is governed by Section 82 and contents of an election petition must satisfy the requirements of Section 83. What reliefs may be claimed by the petitioner are specified by Section 84. A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from its plenary powers. In T. Deen Dayal Vs. High Court of Andhra Pradesh - 1997 (7) SCC 535 (to which one of us, Dr. A.S. Anand, J, as His Lordship then was is also a party) this Court has held that the High Court hearing an election petition is not an authority and that it remains a High Court while trying an election petition under RPA 1951. The contention that the High Court while exercising its such power can pass orders as contemplated by Section 98 only and nothing more was rejected as being without substance. A Full Bench of the Rajasthan High Court in Ramdhan Vs. Bhanwar Lal - 1983 RLW 507 held that the conferral of jurisdiction on High Court to try an election petition is not by way of constituting a special jurisdiction and conferring it upon the High Court; it is an extension of the ordinary jurisdiction of the High Court to hear and decide election disputes. The designated Election Judge functions as a High Court and not as a Special Tribunal or as a Special Court or as persona designata. We find ourselves in agreement with the view so taken as it is consistent with the view taken by this Court in T. Deen Dayals case. Incidentally, we may also refer to the case of N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4), by registration (Section 5) and by naturalisation (Section 6). Clause (c) of sub-section (1) of Section 5, as amended by Act No. 51 of 1986, provides that persons who are, or have been, married to citizens of India and are ordinarily resident in India and have been so resident for five years immediately before making an application for registration, may, subject to satisfying other provisions including procedural ones, be registered as a citizen of India by the prescribed authority of the Central Government. Citizenship Act does not provide for cancellation of a certificate of registration issued under Section 5. Section 9 speaks of termination of citizenship upon acquisition of the citizenship of another country which event entails cessation of citizenship of India. Sub- section (2) of Section 9 provides that if any question arises as to where, when and how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence as may be prescribed in this behalf. Section 13 is another provision, which provides for issuance of certificate of citizenship in case of doubt. The Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, stood terminated under Section 9 of the Citizenship Act. This Court held that the question of citizenship could be gone into by the High Court hearing an election petition and the High Court, trying an election petition, can declare an Indian citizen having become disqualified because of his having acquired the citizenship of a foreign State. But in view of the scheme of Section 9, which is a complete code as regards the termination of Indian citizenship on the acquisition of the citizenship of a foreign country, the High Court trying an election petition, could give such declaration only on the basis of a declaration made by the Central Government as to termination of citizenship being produced before a High Court, which shall have to be given effect to by the High Court. So long as such a declaration is not forthcoming, the High Court should proceed on the ground that the candidate concerned had not ceased to be an Indian citizen. This is a harmonious way in which the two types of issues, namely, the issue relating to the validity of an election to either House of Parliament or of a State Legislature and the issue relating to loss of Indian citizenship on the acquisitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izenship granted under Section 5(1)(c) of the Citizenship Act was sought to be cancelled by the prescribed authority. A Constitution Bench of this Court held that the prescribed authority granting the registration could not cancel the same except under Section 10 of the Act and power to cancel the certificate issued under Section 5 of the Citizenship Act could not be derived from Section 21 of the General Clauses Act as the orders of the kind contemplated in Section 5 of the Citizenship Act do not fall within the scope of Section 21 of the General Clauses Act. Article 84 of the Constitution provides inter alia that a person shall not be qualified to be chosen to fill a seat in Parliament unless he is a citizen of India. Article 102 of the Constitution provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament inter alia if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State. That a returned candidate was not qualified or was disqualified to be chosen on the date of his election, is specifically a groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to make laws with respect to all matters relating to or in connection with elections including the preparation of electoral rolls. RPA, 1950, enacted in exercise of such power vesting in the Parliament, is a complete code so far as the preparation and maintenance of electoral rolls are concerned. By Section 30 of RPA, 1950, jurisdiction of Civil Court to entertain or adjudicate upon any question as to entitlement to be registered in an electoral roll for a constituency has been taken away. By implication, the jurisdiction of the Court trying an election petition to go into the question of eligibility of a voter enrolled in an electoral roll is also taken away. However, such issue is different from the question whether a candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or the RPA, 1950 or the RPA, 1951. As there was no case of disqualification having been taken up in the election petition, the Constitution Bench set aside the decision of the High Court. In Durga Shanker Mehta Vs. Thakur Raghuraj Singh Ors., (1955) 1 SCR 267, the returned candidate was duly enrolled in the electoral roll meaning thereby that prima facie he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f qualification under Article 84 as also a positive disqualification under Article 102 of the Constitution, then the case is one which attracts applicability of Section 100(1)(d)(iv) of RPA, 1951 and such an issue can be tried by the High Court in an election petition inspite of the returned candidate being enrolled in the voters list for it will be a case of alleged non- compliance with the provisions of Constitution. Thus, looking at the scheme of the Citizenship Act, as also the judicial opinion which has prevailed ever since the enactment of Citizenship Act, 1955, we are unhesitatingly of the opinion that in spite of a certificate of registration under Section 5(1)(c) of Citizenship Act, 1955 having been granted to a person and in spite of his having been enrolled in the voters list, the question whether he is a citizen of India and hence qualified for, or disqualified from, contesting an election can be raised before and tried by the High Court hearing an election petition, provided the challenge is based on factual matrix given in the petition and not merely bald or vague allegations. A certificate of citizenship issued under Section 5 of the Act is a statutory certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anr., (1999) 3 SCC 737, this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead material facts is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition. It is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings. There are two features common to both the election petitions. Firstly, both the petitions are verified as true to personal knowledge of the two petitioners respectively which is apparently incorrect as the very tenor of pleadings discloses that any of the petitioners cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign law is a question of fact to an English Court the opinion of an expert on the fact, to be treated with respect, but not necessarily conclusive. In Beatty Vs. Beatty, 1924 (1) KB 807, it was held that the American law in English courts must be proved by the evidence of experts in that law. In Lazard Brothers and Company Vs. Midland Bank, Limited, 1933 AC 289, their Lordships of Privy Council observed that what the Russian Soviet law is, is a question of fact, of which the English court cannot take judicial cognizance, even though the foreign law has already been proved before it in another case. The Court must act upon the evidence before it in that actual case. The statement of law by Halsbury in Laws of England (Third Edition, Vol.15, Para 610, at page 335) is that the English courts cannot take judicial notice of foreign law and foreign laws are usually matters of evidence requiring proof as questions of fact. There is, thus, no manner of doubt that in the courts in India, a point of foreign law is a matter of fact and, therefore, a plea based on a point of foreign law must satisfy the requirement of pleading a material fact in an election petition filed before the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and if it does so the Parliamentary enactment shall be ultra vires the Constitution, submitted Hari Shanker Jain at the hearing. He went on to enlarge his plea by submitting that under the Constitution of India human beings have been dealt with and categorised into three classes: (i) persons, (ii) citizens, and (iii) citizens of India. He urged that the rights and privileges conferred on citizen of India are not available to Indian citizens and persons and asserted that the provisions of Citizenship Act which confer the status of citizen of India, as distinguished from Indian Citizen, on a person other than one in whom the citizenship vests by right i.e. by birth or by descent are ultra vires the Constitution. According to the petitioner Articles 84 and 102 of Constitution use the expression Citizen of India and not just an Indian Citizen. Right to contest an election is conferred only on a Citizen of India as defined in Part II of Constitution. The respondent could not have been and is not a citizen of India __ in the sense of the expression sought to be assigned by the petitioner, and she could not have acquired the status and quality of citizen of India solely by virtue of reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inclusion of her name in the electoral roll. Making vague and bald allegations, without giving any material facts, after losing the elections, go to show that proper care even was not taken before filing the petitions by gathering and stating all material facts. So far as the pleadings as to Italian law are concerned, we have already expressed our opinion that the pleadings are infirm and deficient. The challenge laid to the validity of respondents marriage with Shri Rajiv Gandhi not only suffers from deficiency in pleadings but is also scandalous. It is interesting to note that while Hari Shanker Jain disputes the validity of marriage of respondent with Rajiv Gandhi, Hari Krishna Lal, the petitioner in Election Petition No.4 of 1999, admits, in the pleading itself, the respondent to be wife of Shri Rajiv Gandhi and states her as resembling an ideal Indian woman bearing an excellent and good exemplary character. Hari Shanker Jain, in fairness to petitioner we must say, did not press and pursue this allegations at the hearing before us. In Election Petition no.4 of 1999 filed by Hari Krishna Lal it is alleged that the respondent is a citizen of Italy and has not renounced the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required by Section 82(1)(a) of RPA 1951 and we are satisfied that the two election petitions do not satisfy the requirement statutorily enacted and judicially explained in umpteen number of decisions. The petitions are hopelessly vague and completely bald in the allegations made, most of which could not possibly be within the personal knowledge of the petitioners but still verified as true to their knowledge, without indicating the source. Such pleadings cannot amount to disclosing any cause of action and are required to be rejected/dismissed under Order VII Rule 11 IPC. To sum up, we are of the opinion that a plea that a returned candidate is not a citizen of India and hence not qualified, or is disqualified for being a candidate in the election can be raised in an election petition before the High Court in spite of the returned candidate holding a certificate of citizenship by registration under Section 5(1)(c) of the Citizenship Act. A plea as to constitutional validity of any law can, in appropriate cases, as dealt with hereinabove, also be raised and heard in an election petition where it is necessary to decide the election dispute. The view of the law, stated by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
