HIGH COURT OF JUDICATURE AT ALLAHABAD
Order reserved on 27.1.2020
Order delivered on 03.3.2020
Case :- ELECTION PETITION No. – 12 of 2017
Petitioner :- Prempal Singh
Respondent :- Satya Pal Singh Baghel And 10 Others.
Counsel for Petitioner :- In Person,Prempal Singh,Rakesh Kumar Gupta
Counsel for Respondent :- Sushil Kumar Srivastava
Case :- ELECTION PETITION No. – 13 of 2017
Petitioner :- Rakesh Babu
Respondent :- Satya Pal Singh Baghel And 9 Othrs.
Counsel for Petitioner :- In Person,Rakesh Babu,Rakesh Kumar Gupta
Counsel for Respondent :- Rakesh Kumar Gupta,Sanjay Kumar Srivastav,Sushil Kumar Srivastava
Hon’ble Mahesh Chandra Tripathi,J.
Order on Civil Misc. Application No.19 of 2019 filed in Election Petition No.12 of 2017 and Civil Misc. Application No.17 of 2019 filed in Election Petition No.13 of 2017 under Section 151 of Code of Civil Procedure on behalf of Satya Pal Singh Baghel- respondent no.1
1. Both the aforesaid applications are filed to dismiss the Election Petition Nos.12 of 2017 filed by Prempal Singh and 13 of 2017 filed by Rakesh Babu, as infructuous.
2. The facts giving rise to the election petitions may be briefly stated as follows: There were general elections to the U.P. Legislative Assembly in February, 2017. The last date for filing nomination papers was fixed on 24th January, 2017 and on or before that date the petitioner Rakesh Babu in Election Petition No.13 of 2017 and the respondent no.1 Satya Pal Singh Baghel filed their nomination papers for Tundla Assembly Constituency (reserved for Scheduled Caste). The polling took place on 11th February, 2017 and the result was declared on 11st March, 2017 in which the respondent no.1 was declared as elected. The petitioner Prem Pal Singh in Election Petition No.12 of 2017 was an elector in the said constituency. The petitioners filed the election petitions questioning the validity of the election of the respondent no.1 to the Tundla Assembly Constituency on the ground that the Tundla Constituency No.95 was reserved for the Scheduled Caste. The respondent no.1 is originally resident of District Auraiya, Uttar Pradesh and he belongs to Gaderia (Pal/Baghel) caste, which is recognized as ‘Other Backward Caste’ in the State of Uttar Pradesh. A prayer was, therefore, made to declare the election of the respondent no.1 as void and for issuing appropriate consequential directions.
3. The written statement was filed on behalf of respondent no.1 on 15.4.2018, denying the allegations levelled by the petitioners in the aforesaid election petitions. The petitioners filed replication dated 27.7.2018 in reply to written statement stating therein that the respondent no.1 was not eligible to contest the election for Tundla Constituency No.95 (reserved for Scheduled Caste) as he belongs to Gadaria caste, which is notified as ‘Other Backward Classes’ in the State of UP. He was also the National President of Bhartiya Janata Party Backward Caste Prakoshth and was working as Associate Professor in Agra College, Agra. Various other grounds have been taken in the affidavit filed in support of the replication. The objection with regard to replication has been preferred by the respondent no.1 on 17.12.2018 for striking out the paragraphs Nos.4 to 86 of the replication or reject the replication with regard to the paragraph nos.4 to 86 and the documents filed in support of thereof in the replication.
4. After hearing both the parties the Court had proceeded to allow the objection filed on behalf of the respondent no.1 on 27.2.2019 and rejected the replication dated 23.1.2019, insofar as it relates to paras 4 to 86, and the application under Order VII Rule 14 CPC preferred by the petitioners. The operative portion of the order dated 27.2.2019 reads as under:-.
“18. A perusal of the averments made in the election petition goes to show that the Election Petition of only seven paragraphs was preferred by the petitioner on 25.4.2017 challenging the election of the first respondent to the U.P. Legislative Assembly from 95 Tundla Assembly Constituency in which the notice was issued to the first respondent on 26.5.2017. Finally, the first respondent filed his written statement on 23.4.2018 stating that the allegations contained in the election petitions are not supported by any material particulars inasmuch as vague and frivolous averments have been made in the election petition. The petitioner has not alleged about the material effect on the result of the election in question and the pleadings are thus liable to be struck of from the election petition under the provisions of Order VI Rule 16 of Code of Civil Procedure. The petitioner does not disclose the cause of action, as such the election petition is liable to be dismissed by this Court.
19. Thereafter, the present replication in reply to the written statement containing 86 paragraphs was filed on 27.7.2018. Once an objection/application to the replication has been preferred by the first respondent on 17.12.2018 for rejecting the replication with regard to paragraph nos. 4 to 86 of the replication and new documents filed in support thereof, then the petitioner has filed an application under Order VII Rule 14 of Code of Civil Procedure in the Election Petition on 31.1.2019 asking leave of the Court. The request has been made to allow the application in question and consider all the evidences as a part of pleadings, which have annexed in the replication filed in reply to written statement filed by the first respondent. Through the replication in question, additional facts alongwith evidences have been brought on record much beyond the statutory period of limitation without leave of the Court, as such the objection so raised by Shri Shashi Nandan, Senior Advocate appearing on behalf of the first respondent definitely has force and his objection application is liable to be allowed.
20. It is settled law that election petition proceedings are technical and special proceedings. The Supreme Court of India has explained the legal position in that regard in paragraph-8 of its judgment in the case of Ram Sukh (supra), which reads as follows:
“8. Before examining the merits of the issues raised on behalf of the election petitioner with reference to the relevant statutory provisions, it would be appropriate to bear in mind the observations of this Court in Jagan Nath v. Jaswant Singh. Speaking for the Constitution Bench, Mehr Chand Mahajan, C.J., had said that the statutory requirement of election law must be strictly observed and that the election contest is not an action at law or a suit in equity, but is purely a statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. Nevertheless, it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and, therefore, the courts must zealously ensure that people do not get elected by flagrant breaches of that law or by indulging in corrupt practices, as enumerated in the Act.”
21. In Dhartipakar Madan Lal Agarwal’case (supra) Hon’ble Supreme Court observed in paragraph-14 as under:-
“Before we consider various paragraphs of the election petition to determine the correctness of the High Court order we think it necessary to bear in mind the nature of the right to elect, the right to be elected and the right to dispute election and the trial of the election petition. Right to contest election or to question the election by means of an election petition is neither common law nor fundamental right instead it is a statutory right regulated by the statutory provisions of the Representation of the People Act, 195 1. There is no fundamental or common law right in these mat- ters. This is well-settled by catena of decisions of this Court in N.P. Ponnuswami vs. Returning Officer,  1 SCR 2 18; Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 and Jyoti Basu v. Debi Ghosal,  3 SCR 318. These decisions have settled the legal position that outside the statutory provi- sions there is no right to dispute an election. The Representation of the People Act is a complete and self contained code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of the Civil Procedure Code are applicable to the extent as permissible by Section 87 of the Act. The scheme of the Act as noticed earlier would show that an election can be questioned under the statute as provided by Section 80 on the grounds as contained in Section 100 of the Act. Section 83 lays down a mandatory provision in providing that an election petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings are regulated by Section 83 and it makes it obligatory on the election petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. If the election petition fails to make out a ground under Section 100 of the Act it must fail at the threshold. Allegations of corrupt practice are in the nature of criminal charges, it is necessary that there should be no vagueness in the allegations so that the re- turned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action. The emphasis of law is to avoid a fishing and roving inquiry. It is therefore necessary for the Court to scrutinise the pleadings relating to corrupt practice in a strict manner.”
22. In Jeet Mohinder Singh’s case (supra) Hon’ble Supreme Court observed that the appellant in the said case filed replication to the written statement filed by the respondent. It is in the replication that the appellant has come out with an averment that some amongst the electors, who were threatened by Shri Sangram Singh, SHO were Jagseer Singh (not examined), Dharminder Singh, PW 13, Jawsant Singh (not examined), Jagraj Singh (not examined), and Mander Singh (not examined). Here itself, we may observe that material facts and particulars as to commission of corrupt practice are required to be given in the election petition and not in the replication filed much after the expiry of period of limitation for filing election petition. The material facts and particulars alleged for the first time in the replication and not forming part of averments made in the election petition cannot be tried and cannot be made subject matter of issues framed by the Court. The learned Designated Election Judge has taken care to frame the issues only by reference to the averments made in the election petition and not by referring to the averments made for the first time in the replication. Firstly, the respondent does not have an opportunity of denying the averments-whether facts or particulars, introduced for the first time in replication. Secondly, as already stated, material facts and particulars as to corrupt practice are required to be supported by an affidavit in the prescribed proforma. The replication is not supported by any affidavit in the prescribed proforma.
23. Consequently, the objection application filed on behalf of the first respondent is allowed and the replication application dated 23.1.2019 insofar as it relates to paras 4 to 86 and the application under Order VII Rule 14 of CPC moved by the petitioners are rejected.
24. List this matter on 12.3.2019 at 2.00 PM for framing of issues. The parties may submit their proposed issues on the next date fixed in the matter.”
5. Thereafter, the matter was taken up on 27.3.2019 and on the said date following issues were framed by the Court:-
“1. Whether once a person availed the benefit of reservation of Other Backward Caste, then he may be permitted to avail the benefit of reservation of Scheduled Castes?
2. Whether the Returning Officer has erred in law while considering the candidature of Mr. Satyapal Singh Baghel alias Satyapal Singh Sikarwar for a seat reserved for the persons of Scheduled Castes?
3. Whether a person, who is not a member of Scheduled Castes, can avail the benefit of Article 334 of Constitution of India?
4. Whether the candidature of Mr. Satyapal Singh Baghel alias Satyapal Singh Sikarwar is ab-initio not maintainable as the returned candidate Mr. Satyapal Singh Baghel alias Satyapal Singh Sikarwar is not an eligible candidate to contest the election for a reserved seat because he belongs to Gadaria caste (OBC) or Thakur (General) caste by his own declaration and documents. Gadaria caste is notified as a member of Other Backward Classes in the Schedule published under the provisions of Uttar Pradesh (Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994?.
5. Whether paragraph nos.5 to 7 and 7A to 7L of the election petition are vague and do not contain any material facts and the same are liable to be struck off from the pleading under Order VI Rule 16 of the Code of Civil Procedure, 1908?
6. Whether the election petition is liable to be dismissed under Order VII Rule 11 of the Code of Civil Procedure, 1908?
7. Whether the averments made in the election petition lack material facts and particulars and do not disclose any cause of action? If so, its effect?
8. Whether the caste certificate or verification order of the District Level Caste Scrutiny Committee can be verified in the election petition, as competent legal forum is available to the petitioner under the law as per judgement passed by Apex Court and this Court?. If not, its effect?
9. Whether the election petitioner has no locus standi to maintain the present election petition under Section 81 (1) of the Representation of the People Act, 1951, as he is not an “elector” from the constituency in question, as such the election petition deserved to be summarily dismissed on this ground alone?
10. Whether the election petition has not been presented within the limitation period of 45 days as provided under Section 81 (1) of the Representation of the Peoples Act, 1951 and the same is fatal to maintainability of the election petition, as such the election petition is deserved to be summarily dismissed on this ground alone.
11. Whether the copy of the election petition supplied to the respondent no.1 has been attested to be true copy of election petition under his own signature of the petitioner, as required under the provisions of Section 81 (3) of the Representation of the People Act, 1951? It not, its effect?.
12. Whether the election petitioner has not filed the valid affidavit in support of his pleading in the election petition nor verified the pleadings of the election petitions as required under the provisions of the Representation of the People Act, 1951/Civil Procedure Code, 1908. Therefore the election petition is not maintainable and liable to be dismissed by this Court.?
Parties are permitted to file documentary evidence within 10 days. Thereafter, within a week, they may complete exercise of admission and denial of document(s) and shall also submit list of witness(es), if any.
Put up this matter on 17.4.2019 at 2 PM in additional cause list”
6. Meanwhile, the general elections for Lok Sabha were held in the year 2019 and the respondent no.1 was elected to Lok Sabha from Agra Constituency as a member of Bhartiya Janta Party. Consequently, the respondent no.1 had submitted his resignation before the Competent Authority i.e. Speaker of Legislative Assembly, U.P. on 4th June, 2019 from the Member of Legislative Assembly, U.P. Constituency No.95 (Tundla Constituency). The Competent Authority has accepted the resignation of the respondent no.1 on the same date and issued a notification dated 4.6.2019. Consequently, the vacancy of Member of Legislative Assembly for Tundla Constituency has arisen and the Secretariat of Legislative Assembly, Uttar Pradesh has notified the said vacancy to the Election Commission of India for conducting the bye-election for filling up the said seat. The respondent no.1 has filed the aforesaid applications for dismissing the Election Petition Nos.12 of 2017 and 13 of 2017 filed by Rakesh Babu, as infructuous.
7. In this backdrop, Shri Sushil Kumar Srivastava, learned counsel for the respondent no.1 submitted that the general election for U.P. Legislative Assembly was notified on 17.1.2017and held by the Election Commission of India in various stages. In the said constitution the polling took place on 11.2.2017 and the result was declared on 11.3.2017 in which the respondent no.1 was declared as elected. The petitioners filed the election petitions challenging the election of respondent no.1 on the ground of qualification (caste certificate). The respondent no.1 filed his preliminary objections dated 15.4.2018 regarding maintainability of the election petitions stating that the petitioners have filed the election petitions in contravention of the mandatory provisions of Sections 81, 82, 83 of Representation of the People Act, 1951 and the provisions of the Code of Civil Procedure, 1908. Therefore, the election petitions are liable to be dismissed under Section 86 (1) of the Act of 1951 and under Chapter VII Rule 11 of CPC. The respondent no.1 filed Civil Misc. Application dated 25.2.2019 under Order VII Rule 11 of CPC raising the preliminary objections that the election petitions are contrary to the mandatory provisions of the Representation of the People Act, 1951 and Code of Civil Procedure. The respondent no.1 filed the written statement categorically denying the averments and allegations made in the election petition. The respondent no.1 is a member of Dhangar caste by birth. Since Dhangar is notified as Scheduled Caste at Entry No.27 for State of Uttar Pradesh in the Presidential Order, 1950 (The Constitution (Scheduled Caste) Order, 1950 issued by Hon’ble President of India in exercise of power conferred by clause (1) of Article 341 of the Constitution of India, therefore he belongs to the Scheduled Caste category. As per judgment of Hon’ble Apex Court in Madhuri Patil vs. Additional Commissioner Tribal Development, 1994 (6) SCC 241, his caste certificate has been scrutinized and verified by the District Level Caste Scrutiny Committee on 21.4.2017. The petitioners have alternative remedy to approach the Division Level Appellate Scrutiny Committee and State Level Appellate Forum assailing the validity of the caste certificate of the respondent no.1.
8. Shri Sushil Kumar Srivastava has further submitted that the respondent no.1 has submitted his resignation on 4.6.2019 from the Tundla Constituency. The competent authority has accepted his resignation on the same date and issued the notification dated 4.6.2019 to give effect to the said resignation since 4.6.2019. Thus the vacancy of Member of Legislative Assembly for Tundla Constituency has arisen and the Secretariat of Legislative Assembly, U.P has notified the said vacancy to the Election Commission of India for conducting the bye-election for filling up the said post. Therefore, the relief no.1, as claimed by the petitioner, has become infructuous. So far as the provision for claiming the relief with regard to declaration, that the election petitioner Rakesh Babu has been duly elected, is concerned, the same is provided in Section 84 of Representation of the People Act, 1951. The provision of ground, for which the petitioner may be declared to have been elected, is provided in Section 101 of the Representation of the People Act, 1951. In view of the aforesaid provision of Section 101 of the Act of 1951, the election petitioner cannot be declared as elected as neither he has properly proved in the election petition that he has received a majority of valid votes nor he has challenged the election of the respondent no.1 on the ground of corrupt practices. As such, the relief claimed by the petitioner in the election petition cannot be granted and the election petitions have been become infructuous.
9. It is also sought to be contended that so far as grounds for challenging the election is concerned, the provision of ground for challenging the election is provided in Section 100 of the Act of 1951 and the provisions of corrupt practices are provided in Section 123 of Part VII, Chapter-I of the Act of 1951. After acceptance of the resignation of the respondent no.1 from the Tundla Constituency, the cause of action of filing the election petitions has been become infructuous. The said vacancy has arisen and the same has also been notified to the Election Commission of India for filling up the said vacancy through bye-election. The provision with regard to bye-election is provided under Part IX Section 147 to 151A of the Act of 1951. Section 150 provides for casual vacancy in the State of Legislative Assemblies. Section 151A provides that said bye-election for filling up the said vacancy shall be held within a period of six months from the date of occurrence of the vacancy. Therefore, the election petitions are liable to be dismissed as infructuous. He further submitted that if the trial in the election petition is allowed to proceed further, it would only be academic and a futile exercise. Any favourable verdict in the election petition will have far-reaching similar legal consequences to the respondent no.1 on his election to the Member of Parliament. If the pleas of the election petitioner herein concerning the caste certificate of the respondent no.1 were to be upheld, the same would have an adverse impact on the respondent no.1 in respect of his election to the Member of Parliament.
10. While raising objection and making prayer for dismissal of election petitions as infructuous being on the ground of academic residue, learned counsel for the respondents has relied upon the judgments of Hon’ble Supreme Court in Loknath Padhan vs. Birendra Kumar Sahu reported in AIR 1974 SC 505; Prakash Khandre vs. Dr. Vijay Kumar Khandre and others reported in (2002) 5 SCC 568; Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi; (2000) 10 SCC 145; the judgment of this Court in Chandra Mohan Shukla vs. Anil Dhirubhai Ambani and 11 others reported in 2010 (10) ADJ 63 (LB) as well as the judgement of High court of Andhra Pradesh in Ramesh Chennamaneni another vs. Aadi Sreenivas others reported in 2011 (6) ALD 4.
11. On the other hand, Shri Rakesh Kumar Gupta, Advocate appearing for the election petitioners submitted that the first respondent is not eligible to hold any constitutional post. The privilege and rights available to Scheduled Caste/Scheduled Tribe candidates can be conferred upon a particular class or caste only by the Parliament. Under Article 341 (1) of the Constitution of India the List of Scheduled Caste with respect to any State can be notified only by a Presidential order after consultation with Hon’ble Governor of that State by public notification. The Presidential Order, 1950 was amended by Amendment Acts in 1956 and 1976 and thereafter in the year 1991 in which in Part 18 of the Schedule only 66 castes were notified as Scheduled Caste for the State of U.P. The Presidential Order or the notification of the State Government does not include any sub-caste for any of the 66 notified Scheduled Castes. The State Government does not have a power to expand the notified Scheduled Caste by adding any sub caste, race, tribe or any group within that caste. The Courts have not been given powers to expand the scope of the caste by adding sub-caste. The controversy requires hearing on merit as relief no. 1 still survives and in case, election is declared null and void the respondent no.1 may suffer punitive action under Article 104 of the Constitution of India.
12. The Court has perused the record and considered the arguments advanced by the parties. The respondent no.1 has filed the aforesaid applications for dismissing the Election Petition Nos.12 of 2017 and 13 of 2017 as infructuous, because the respondent no.1 submitted his resignation and the same has been accepted by the competent authority. The general elections for Lok Sabha were held in the year 2019 and the respondent no.1 has been elected to Lok Sabha from Agra Constituency. Thus, the grounds taken in the election petitions have been rendered of academic importance and the academic questions should not ordinarily be decided by the Courts. It was further submitted that this election petition had not been filed by the petitioners on the ground of corrupt practice. Therefore, it was urged that the election petition might be dismissed as infructuous. It is not alleged that the returned candidate herein to have indulged in any corrupt practice within the meaning of Section 123 of Representation of People Act and the alleged disqualification does not entail in any electoral disqualification under Section 8-A thereof. Even if the question in controversy about the legality and validity of the caste certificate obtained by him with reference to the subject election was to be adjudicated herein adverse to his interest, the question may not be a living issue between the parties in the present election petitions and after acceptance of his resignation, any declaration that his election was illegal or void, could have no impact on the returned candidate and any exercise of continuance of proceedings in the election petitions would be a futile exercise to bring back a dead issue to life.
13. In Loknath Padhan v. Birendra Kumar Sahu (supra) Hon’ble Apex Court dealt with the well settled practice recognized and followed in India that a Court should not undertake to decide an issue, unless it is a living issue between the parties, and pointed out that if an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time and indeed not proper exercise of authority for the Court to engage itself in deciding it. Following Sun Life Assurance Co. of Canada v. Jervis 1944 AC 111, the Apex Court held that an academic question, the answer to which cannot affect the position of one party or the other or which has no bearing on some right or liability in controversy between the parties, will be unnecessary and inexpedient to be decided and the Court would properly decline to decide. With reference to the election dispute before it in that case, involving alleged disqualification of the returned candidate due to subsistence of five Government contracts with the Government of Orissa, the Apex Court held that even if it is found that the candidate was so disqualified, it would have no factual consequence, as invalidation of election after dissolution of the House would be meaningless and ineffectual and as it would have no consequences operating in future, as it is the only facts existing on the date of nomination that would have relevance. The Apex Court distinguished the cases in which allegations of corrupt practices are involved in view of Section 8-A of RP Act under which a person found guilty of corrupt practices by an order under Section 99 will incur electoral disqualification up to six years from the date of the order in that regard. The trial of an election petition must proceed to its logical end in such case, as held in Sheodhan Singh v. Mohan Lal (1969) 1 SCC 408, but the principle was held by the Apex Court to be not applicable to disqualification, which has no other consequence than that of making the particular election void and which does not entail any electoral disqualification for the future. In that case, in view of the dissolution of the Legislative Assembly, the Apex Court considered the question of disqualification to be purely academic and dismissed the appeal against the decision in the election petition as futile.
14. In Sohan Lal v. Asha Ram and others (1981) 1 SCC 106, a three-Judge Bench of the Apex Court disposed of an election appeal without adjudication due to dissolution of the Assembly, fresh elections having taken place and a fresh House coming into existence notwithstanding any substantial grievance for the election petitioner, as the subsequent events rendered the litigation wholly unreal making it waste of the Court’s time to consider the issues.
15. In Podipireddy Atchuta Desai vs. Chinnam Joga Rao and others (1987 (Supp) SCC 42), the Apex Court has held as under:-
“The question raised in this election appeal are of some importance. We also see the force of the submissions urged on behalf of the appellant. All the same, having regard to the fact that fresh elections have already taken place and the appeal has become redundant in that sense, we will be undertaking a futile exercise if we examine the validity or otherwise of the view taken by the High Court in dismissing the election petition. Under the circumstances without expressing any views, one way or the other, on the validity or otherwise of the decision of the High Court, we direct that this appeal shall stand disposed of with no order as to costs.”
16. In Kashi Nath Mishra v. Vikramaditya Pandey and others (1998) 8 Supreme Court Cases 735, another three-Judge Bench of the Supreme Court dismissed an election appeal as infructuous, where the term of Assembly expired by efflux of time and another election was held and another Assembly was constituted. Similar was the decision of another three-Judge Bench of the Apex Court in Romesh v. Ramesh K. Rana and others (2000) 9 Supreme Court Cases 265, wherein the request was for recount of votes without any allegations of commission of any corrupt practice and in the meanwhile the Assembly itself was dissolved. The Apex Court considered that nothing further survives for consideration and dismissed the election appeal.
17. In Kashi Nath Mishra vs. Vikramaditya Pandey and others ((1998) 8 SCC 735), an appeal was filed before the Apex Court from the Election Petition No.4 of 1991 filed under Section 81 of Representation of the People Act, 1951. The appellant had challenged the election of the second respondent to the U.P. Legislative Assembly from the 227 Ballia Assembly Constituency in District Ballia. That petition was dismissed. The term of the assembly has expired by efflux of time and thereafter, another election has been held and another Assembly constituted. Under these circumstances, the appeal having become infructuous was dismissed without costs.
18. In the case of Rajiv Gandhi (supra) wherein the allegation with regard to corrupt practice was raised, Hon’ble Supreme Court observed that since allegation was with regard to corrupt practice and the matter is stale and academic but it may be heard. Relevant portion of the judgment is reproduced hereinfafter:-
“In fact, during the course of hearing the appellant himself stated before us more than once, that it would now every difficult for him to produce evidence to substantiate the allegations of corrupt practice but nonetheless he insisted for the appeal being heard on merit. Though the matter is stale and academic yet having regard to the present state of law, we had to hear the appeal at length.”
19. However, their Lordship had dismissed the appeal holding that the appellant cannot be permitted to waste the court time with permission to amend the appeal. The conclusive observation made by Hon’ble Supreme Court is as under:-
“When this appeal came up for hearing before us the appellant insisted that he should be allowed to argue the case by putting on a crown (an artificial one) on his head. According to him without the crown he would not be able to make his submissions in a satisfactory manner. We refused to grant the permission to the great dissatisfaction of the appellant. A court of law is a solemn place where proceedings are held in a solemn manner and the time of the court especially in the Apex Court is precious time which belongs to the people and it would be wholly obnoxious to judicial propriety to allow a litigant to appear in court wearing a crown to argue the case. The Court cannot be converted into a dramatic or theatrical stage. We accordingly refused to grant the permission to the appellant to wear his crown.”
20. In Mundrika Singh Yadav vs. Shiv Bachan Yadav and others ((2005) 12 SCC 211), an election petition under Sections 80 and 80-A of the Representation of the People Act, 1951 filed by the appellant was dismissed by the High Court. In the above said election petition, the appellant had sought for the relief of recount of ballot papers. The High Court on trial found a case in that regard having not been made out. The election to the Bihar State Assembly forming subject-matter of the election petition was held in the year 2000. The term of the Legislative Assembly was over. Fresh elections were being held. Under these circumstances, the Apex Court has held that no relief could be allowed to the appellant in this appeal even if this appeal is allowed. The appeal was rendered infructuous and was dismissed accordingly.
21. Hon’ble High Court of Andhra Pradesh had also come across with similar controversy in Ramesh Chennamaneni another vs. Aadi Sreenivas others 2010 0 Supreme (AP) 635 and opined that for according the relief under Section 98 (c) of RP Act there are three alternatives available to the High Court in making an order at the end of trial of an election petition and the relief that may be claimed under Section 84 which may be granted under Section 101 is permissible, only if the election petitioner or such other candidate received a majority of valid votes or would have received a majority of valid votes, but for the votes obtained by the returned candidate by corrupt practice. In the present matter, as per pleading the applicant herein neither received a majority of valid votes nor did he claim the returned candidate to have obtained the votes secured by him by corrupt practices within the meaning of Section 123 of RP Act. Corrupt practices and electoral offences under RP Act were enumerated in Part VII thereof and the self-contained provisions cannot be expanded or extended by implication or inference to cover any situations not specified as corrupt practices or electoral offences by RP Act. Relevant paragraphs of the said judgement are extracted as follows:-
“22. Though the Division Bench would not definitely hold such a declaration in favour of the election petitioner to be not possible in the absence of availability of true facts, it was specifically observed that even if only two candidates contested, the Court in its discretion may always deny such relief under Sections 84, 98(c) and 101 of RP Act and consequently, it directed conduct of by-election for this Constituency also irrespective of any possible adverse decision against the elected candidate, who since resigned, in the election petition. The election petitioner himself in his counter affidavit to this petition admitted that there is no provision in RP Act dealing with a situation where an election is being held in a Constituency, while an election petition concerning the previous election to that Constituency is pending. The general principle that all subsequent actions in respect of the subject matter of Court proceedings will be subject to such Court proceedings attempted to be canvassed as applicable to such situations, is not shown by the authority of any precedent to be so applicable. The relief under Section 98(c) of RP Act is one of the three alternatives available to the High Court in making an order at the end of trial of an election petition and the relief that may be claimed under Section 84 which may be granted under Section 101 is permissible, only if the election petitioner or such other candidate received a majority of valid votes or would have received a majority of valid votes, but for the votes obtained by the returned candidate by corrupt practice. The election petitioner herein neither received a majority of valid votes nor did he claim the returned candidate to have obtained the votes secured by him by corrupt practices within the meaning of Section 123 of RP Act. Corrupt practices and electoral offences under RP Act were enumerated in Part VII thereof and the self-contained provisions cannot be expanded or extended by implication or inference to cover any situations not specified as corrupt practices or electoral offences by RP Act. The challenge to the election of the 1st respondent is on the ground of his being not qualified to be chosen to fill a seat in the Legislative Assembly of a State with reference to Section 5 of RP Act and Article 173 read with Article 191(1)(d) of the Constitution of India. The allegation of making false statements and suppressing the facts amounting to fraud in connection with acquisition of certificate of registration under the Citizenship Act, 1955 from the Government of India by the 1st respondent, is not covered by any corrupt practices under Section 123 or an electoral offence under Sections 125 to 136 of RP Act. While Section 101(b) does not refer even to the electoral offences under RP Act, as the right to be elected and the right to challenge an election are purely statutory creations, the provisions of such Statutes liable to be strictly and literally construed may not be susceptible to any elasticity in construing situations akin or similar to the defined corrupt practices to be also within the scope and ambit of Section 101 of RP Act enabling any declaration of the election petitioner as duly elected, even if the procurement of the citizenship certificate is found to be vitiated by any factor including fraud.
23. If so, either due to the principle laid down in Vishwanatha Reddy v. Konappa Rudrappa Nadgouda (1 supra) or due to the binding conclusions of the Division Bench in W.P. No.14443 of 2010, dated 30-06-2010 or due to the statutory backdrop vis–vis the alleged ground of challenge to the election of the returned candidate, any legal possibility of the election petitioner being declared as duly elected in the earlier election appears too distinct and remote, if not impossible.
24. If it were so, the remaining relief capable of consideration in the event of the election petition being taken to its logical conclusion, is the declaration of the election of the 1st respondent as member of the Andhra Pradesh Legislative Assembly from 28-Vemulawada Assembly Constituency in the general elections to the said Assembly in 2009, to be illegal and void on the ground of his being not qualified to be an elector in that Constituency or to contest the election at the relevant time. However, much before any such eventuality could materialize, the returned candidate resigned, the seat was declared to have fallen vacant and the Election Commission of India is conducting by-election in that Constituency for the remaining term of the Legislative Assembly. The election petition is, hence, claimed to have become infructuous by the 1st respondent and to be not so by the election petitioner.
25. The Apex Court dealt with the well settled practice recognized and followed in India that a Court should not undertake to decide an issue, unless it is a living issue between the parties, in Loknath Padhan v. Birendra Kumar Sahu (1974) 1 Supreme Court Cases 526and pointed out that if an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time and indeed not proper exercise of authority for the Court to engage itself in deciding it. Following Sun Life Assurance Co. of Canada v. Jervis 1944 AC 111, the Apex Court held that an academic question, the answer to which cannot affect the position of one party or the other or which has no bearing on some right or liability in controversy between the parties, will be unnecessary and inexpedient to be decided and the Court would properly decline to decide. With reference to the election dispute before it in that case, involving alleged disqualification of the returned candidate due to subsistence of five Government contracts with the Government of Orissa, the Apex Court held that even if it is found that the candidate was so disqualified, it would have no factual consequence, as invalidation of election after dissolution of the House would be meaningless and ineffectual and as it would have no consequences operating in future, as it is the only facts existing on the date of nomination that would have relevance. The Apex Court distinguished the cases in which allegations of corrupt practices are involved in view of Section 8-A of RP Act under which a person found guilty of corrupt practices by an order under Section 99 will incur electoral disqualification up to six years from the date of the order in that regard. The trial of an election petition must proceed to its logical end in such case, as held in Sheodhan Singh v. Mohan Lal (1969) 1 SCC 408, but the principle was held by the Apex Court to be not applicable to disqualification, which has no other consequence than that of making the particular election void and which does not entail any electoral disqualification for the future. In that case, in view of the dissolution of the Legislative Assembly, the Apex Court considered the question of disqualification to be purely academic and dismissed the appeal against the decision in the election petition as futile.
26. The returned candidate herein also was not alleged to have indulged in any corrupt practice within the meaning of Section 123 of RP Act and the alleged disqualification does not entail in any electoral disqualification under Section 8-A thereof. Even if the question in controversy about the legality and validity of the citizenship certificate obtained by him with reference to the subject election were to be adjudicated herein adverse to his interest, he will not be permanently debarred from acquiring Indian citizenship in future in accordance with law and as the possibility of any adverse consequences to the 1st respondent in case of his failure in the election petition, is not regarding the right or liability in controversy between the parties in this election petition, the question may not be a living issue between the parties in the present election petition and after acceptance of his resignation, any declaration that his election was illegal or void could have no impact on the returned candidate and any exercise of continuance of proceedings in the election petition would be a futile exercise to bring back a dead issue to life.
28. However, the principles laid down by the Supreme Court in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and others (2006) 1 Supreme Court Cases 212run counter to any such possibility and the Apex Court followed the earlier decision in C.M. Arumugam v. S. Rajgopal (1976) 1 Supreme Court Cases 863, wherein it was held that every election furnishes a fresh cause of action for a challenge to that election and an adjudication in the prior election petition cannot be conclusive in the subsequent proceeding and even if the cause of action in the earlier election petition merged in the final adjudication therein, the merger of the earlier cause of action with the decision therein cannot bar the trial of the fresh cause of action arising out of the subsequent election. Even regarding the status of a person or jural relationship of a person, the Apex Court held that an election petition under Section 80 of RP Act cannot be held to lead to an adjudication which declares, defines or otherwise determines the status of a person or a jural relation of that person to the world generally and it is merely an adjudication of a statutory challenge on the question whether the election of the successful candidate is liable to be voided on any of the grounds available under Section 100 of RP Act. The election petition was held to be not an action for establishing the status of a person or an action initiated by a person to have his status established or his jural relationship to the world generally established. A judgment in an election petition was also held to be not a judgment in rem specifically recognized by Section 41 of the Evidence Act and it was noted that the challenge to an election is only a statutory right and an election petition is not a suit of general nature or a representative action for adjudication of the status of a person. The best status that can be assigned to the judgment in an earlier election petition was held by the Apex Court to be that it is of a high evidentiary value while considering the case of the parties in the present election petition. The Apex Court also declined to treat the decision in the earlier election petition as a judicial precedent and on the facts of that case, it had, in fact, concluded that the conclusion in the previous case was based on an appreciation of the evidence adduced in that case, which would not operate as res judicata and which by itself is not sufficient to rebut the evidence available in the subsequent case, based on which a finding has been rendered. Therefore, any adjudication in the present election petition either about the citizenship status of the 1st respondent or the legality and validity of the citizenship certificate obtained by him or his registration as elector, the same will be only a piece of evidence in any subsequent proceeding, which has to be decided on its own merits on the effect of the totality of the evidence in that case.
38. Though no provision of the RP Act provides for a specific order of dismissal on the ground of infructuousness including in respect of the appeals before the Supreme Court under Sections 116-A to 116-C of RP Act, the Apex Court dismissed the election appeals on that ground and Section 98 of RP Act in clause (a) provides for an order of dismissal of an election petition, of course, at the conclusion of the trial and the procedures for trial prescribed by Sections 86, 87 and other provisions of RP Act make the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits applicable as nearly as may be to the election petitions. The proviso to Section 87 (1) of RP Act confers discretion on the High Court to refuse for reasons to be recorded in writing to examine any witness or witnesses, if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition. Recourse can be had to the said proviso to refuse to examine any witnesses in the election petition and conclude the trial to make an order under Section 98 (a) of RP Act. In that view, the High Court is not barred from taking recourse to such action, which, in fact, is the procedure adopted by the Apex Court itself in appropriate cases as illustrated by the four precedents cited above.
39. Thus, on a comprehensive consideration of the facts and circumstances of the case, the admitted developments subsequent to filing of the election petition including the resignation by the 1st respondent, its acceptance by the Speaker, the notification of the vacancy by the Legislature Secretariat and the by-election in progress in pursuance of the directions of this Court in W.P. No.14443 of 2010, apart from the pendency of W.P. No.3737 of 2010 on the question of the statutory action under Section 10 of the Citizenship Act, 1955 concerning the 1st respondent, make the continuance of the election petition improper and unreasonable and the election petition can be considered to have become superfluous and infructuous. It has to be accordingly, dismissed without expressing any opinion on the questions in controversy in the election petition about the citizenship certificate or citizenship status or registration as elector, of the 1st respondent.”
22. In Prakash Khandre vs. Dr. Vijaya Kumar Khandre and ors reported in 2002 (4) Supreme 294 Hon’ble Supreme Court dealt with the same question and observed in following paragraphs as under:-
“14. However, in an election where elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected.
15. The learned counsel for the parties referred to various decisions rendered by this Court and we would refer them in chronological order. The Constitution Bench of this Court in Konappa Rudrappa Nadgouda v. Vishwanath Reddy and another [(1969) 2 SCR 90] dealt with the case where one Vishwanath Reddy was declared elected to Mysore Legislative Assembly and that election was challenged by Nadgouda who was a contesting candidate on the ground that Reddy was disqualified from standing as a candidate for election. This Court by order dated 19th July, 1968 held that election of Reddy was void and that votes cast in his favour be treated as thrown away. The Court held “as there was no other contesting candidate, we declare the appellant (election petitioner) as elected to the seat from the Yadgiri constituency.” That order was challenged by filing a review application which was granted and question whether it was open to the Court on finding recorded about disqualification of Reddy to declare Nadgouda as duly elected to the Mysore Legislative Assembly was dealt with and decided. The Court referred to earlier decision in Keshav Laxman Borkar v. Dr. Devrao Laxman Anande [(1960) 1 SCR 902], wherein it was held that a candidate whose nomination paper is accepted after scrutiny, is a validly nominated candidate “at least for the purpose of receiving votes at the election”, and that the candidate must be treated as a person for whom votes could be given. The Court on that view held that where there are only two candidates for a seat and the election of the candidate declared elected is set aside on the ground that he was disqualified, the defeated candidate cannot be declared elected, and there must be a fresh election. In the opinion of the Court the votes cast in favour of the disqualified candidate cannot be said to be thrown away unless there is a “special pleading” that certain voters had cast their votes with the knowledge or notice that the candidate for whom they had voted was not eligible for election, and they had deliberately thrown away their votes in favour of the disqualified person; in the absence of such a plea it cannot be said that the votes cast in favour of a person who was by law disquaslified from being nominated, but who was in fact nominated, were thrown away. In the opinion of the Court a defeated candidate out of the two who contested the election may be declared elected under section 84 read with section 101 of the Act, if he proves that the voters had notice of the disqualification of the successful candidate.
16. The correctness of the said view was challenged before the Constitution Bench. The Court considered various English decisions cited at the bar and observed that the cases decided by the Courts in the United Kingdom appear to have proceeded upon some general rule of election law that the votes cast in favour of a person who is found disqualified for election may be regarded as thrown away only if the voters had notice before the poll of the disqualification of the candidate. Thereafter, the Court pertinently observedbut in our judgment the rule which has prevailed in the British Courts for a long time has no application in our country. The rule enunciated in U.K. has only the merit of antiquity; the rule cannot be extended to the trial of disputes under our election law, for it is not consistent with our statute law, and in any case the conditions prevailing in our country do not justify the application of that rule. The Court also considered Section 53 of the Act and held that it renders a poll necessary only if there are more candidates contesting the election than the number of seats contested and if the number of candidates validly nominated is equal to the seats to be filled, no poll is necessary and where by an erroneous order of the returning officer poll is held which, but for that order, was not necessary, the Court would be justified in declaring those contesting candidates elected, who, but for the order, would have been declared elected.
17. Thereafter, the Court observed thus: (AIR p.608 para 12)
“When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate.”
18. The Court also considered Section 101 and held as under: (AIR pp.608-09 para 13):
“The votes obtained by corrupt practice by the returned candidate, proved to be guilty of corrupt practice, are expressly excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate, and no fresh poll is necessary. The same rule should, in our judgment, apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of the filing of the nomination paper.”
19. In Thiru John and Another v. Returning Officer and Others [1977 (3) SCR 538], the Court dealt with the biennial election to the Rajya Sabha from the State of Tamil Nadu where the voting pattern is single-transferable vote wherein the elected candidate Shri John was found by the Court to be statutorily disqualified for election. The Court considered the question whether the votes secured by such candidate be regarded as ‘thrown away’ and in consequence the next candidate be declared elected? In that context the Court observed: –
“55. Again, the answer to this question, in our opinion, must be in the negative. It is nobody’s case that the electors who voted for Shri John, had at the time of election, knowledge or notice of the statutory disqualification of this candidate. On the contrary, they must have been under the impression that Shri John was a candidate whose nomination had been validly accepted by the returning officer. Had the electors notice of Shri John’s disqualification, how many of them would have voted for him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and unpredictability.”
20. The Court also referred to the following observations made by Hidayatullah, C.J. speaking for the Court in R.M. Seshadri v. G.Vasantha Pai [1969 (1) SCC 27] rejecting similar contention:-
“This (question) will depend on our reaching the conclusion that but for the fact that voters were brought through this corrupt practice to the polling booths, the result of the election had been materially affected. In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, those candidates would have won. We cannot order a recount because those voters were not free from complicity. It would be speculating to decide how many of the voters were brought to the polling booths in car. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated.”
And, thereafter the Court held as under: –
“The position in the instant case is no better. It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not qualified to contest the election. In any case, Shri Subramanyan was neither the sole continuing candidate, nor had he secured the requisite quota of votes. He cannot therefore, be declared elected:”
21. The Court also considered the dictum in the case of Viswanath (supra) and observed that the ratio decidendi of said case is applicable only where (a) there are two contesting candidates and one of them is disqualified; and (b) the election is on the basis of single non- transferable vote.
22. Again in Lata Devi (Mali) v. Haru Rajwar [(1989) 4 SCC 773], this Court dealt with the same question and observed as under: –
“.It is to be noted that in an election petition what is called in question is the election and what is claimed is that the election of all or any of the returned candidate is void, with or without a further declaration that the election petitioner himself or any other candidate had been duly elected. Declaring the election of the returned candidate void does not, by itself, entitle the election petitioner or any other candidate to be declared elected.”
23. Learned counsel for the appellant lastly referred to the decision in D.K. Sharma v. Ram Sharan Yadav and Others [(1993) Supp 2 SCC 117]. In that case, the High Court referred to the decision in Konappa Rudrappa Nadgouda (supra) and held that on the basis of the oral evidence, it was not possible to hold that the voters who cast their votes in favour of the elected candidate did so after having noticed about the disqualification and knowing that their votes would be wasted and therefore, the second prayer of the election petitioner to declare him as duly elected after throwing away the votes of elected candidate, was not allowed. This Court did not find any infirmity in the said reasoning and, therefore, dismissed the appeal.
24. In view of the aforesaid settled legal position, in our view, the impugned order passed by the High Court declaring the election petitioner as elected on the ground that the votes cast in favour of elected candidate (appellant) are thrown away was totally erroneous and cannot be justified. As held by the Constitution Bench in Konappa’s case that some general rule of election law prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as ‘thrown away’ only if the voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election and what would have been voting pattern. Therefore, order passed by the High Court declaring the election petitioner Dr. Vijay Kumar Khandre as elected requires to be set aside.”
23. In P.H. Pandian vs. P. Veldurai and another ((2013) 14 SCC 685), an appeal under Section 116-A of the Representation of the People Act, 1951 was filed questioning the judgment and order made in the election petition in ELP.No.1 of 1996 on 29.12.1999. In this case, the Apex Court has observed that though fresh elections have since been held to Tamil Nadu Legislative Assembly and to an extent this appeal has been rendered infructuous, the manner in which the election petition was dealt with by the High Court causes us concern and that necessitates our making reference to some salient facts. Ultimately, the Apex Court has observed that it is a settled practice of Supreme Court not to pronounce upon matters which are only of an academic interest. Once the charge of corrupt practice fails, rest of the appeal would be rendered infructuous because fresh elections have already taken place and the old Assembly is no longer in existence. Even if the appellant was to succeed on the issue that the returned candidate had a subsisting contract with the Panchayat Union and the State Government and was, therefore, disqualified to be chosen for the seat under Section 9-A of the Representation of the People Act, 1951, it would only be of an academic interest.
24. Whenever in a petition, which includes election petition, the relief claimed with regard to main issue involved becomes redundant or infructuous then for other relief courts may exercise its discretion and may not proceed further in case right of the plaintiff or dependent satisfied or no grievance remained pending against defendant or respondents because of the change of circumstances. The court may use its discretion to drop the proceeding and may not proceed further in a matter even if, some relief of academic nature stand survive.
25. In the present case, admittedly the respondent no.1 submitted his resignation on 4.6.2019 from the Tundla Constituency and the same has been accepted by the competent authority on the same date. The notification was issued on 4.6.2019 to give effect to the said resignation since 4.6.2019 and thus the vacancy of Member of Legislative Assembly for Tundla Constituency has arisen. The Secretariat of Legislative Assembly, U.P has also notified the said vacancy to the Election Commission of India for conducting the bye-election for filling up the said post and therefore, the relief no.1, as claimed by the petitioner, has become infructuous. It is consistent view of Hon’ble Supreme Court that time of the court is precious one and academic exercise is not warranted unless still some relief may be granted to petitioner or the appellant may be followed. No allegations are levelled in the election petitions on corrupt practice and therefore, this Court finds that there is no impediment or obstacle in dismissing this petition as the prayer itself has become infrucutous.
26. In view of the aforesaid discussion and in the light of the aforesaid decisions of Apex Court, I am of the considered view that nothing further survives in this matter. The aforesaid applications preferred by the respondent no.1 for dismissing the Election Petition Nos.12 of 2017 and 13 of 2017 as infructuous, are allowed.
27. Consequently both the election petitions are hereby dismissed as having been rendered infructuous.
Order Date :-03.3.2020