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. 51. 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 by this Court in the election petition in ELP.No.1 of 1996 on 29.12.1999. 52. 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. 53. 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. 54. In Shankar Pendaam vs. Smt. Jyoti Dhurve (Judgment delivered on 18.7.2014 by the High Court of Madhya Pradesh, Jabalpur Bench in the Election Petition No.45 of 2009). 55. In this case, the election petition was filed by the petitioner therein under Section 80 read with Section 81 of the Representation of the People Act, 1951 for declaring the election of the respondent to be void. 56. This case is an identical one to that of the present case on hand. During the course of arguments of the learned Senior Counsel, who was appearing on behalf of the respondent before the Jabalpur Bench of Madhya Pradesh High Court had submitted that the said election petition had become infructuous because the term of the respondent had come to an end by efflux of time on 16th May, 2014 and thereafter, general elections had also taken place in May, 2014 and the respondent had already been elected from the same constituency of Loksabha. Thus, the grounds taken in this election petition have been rendered of academic importance and the academic questions should not ordinarily be decided by the Courts. 57. It was further submitted that this election petition had not been filed by the petitioner on the ground of corrupt practice. Therefore, it was urged that the election petition might be dismissed as infructuous. 58. The learned Senior Counsel had made reference to the following decisions of the Apex Court:- a. Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi (1987 (Supp) SCC 93). b. Sushma Swaraj vs. Raj Kumar Patel in SLP (Civil) No.2951 of 2014 decided on 5.5.2014. 59. Having taken into consideration of the related facts and circumstances, the learned Single Judge of the Jabalpur Bench of Madhya Pradesh High Court has observed as under:- Considering the fact that the tenure of the respondent has already come to an end by the efflux of time and the matter has been rendered of academic importance. In view of the aforesaid discussion and in the light of the aforesaid decision of Apex Court in Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi (supra) and Sushma Swaraj vs. Rajkumar Patel (supra), I am of the considered view that nothing further survives in this matter. This petition has become infructuous, same is hereby dismissed as having been rendered infructuous. 60. In a case between Chandra Mohan Shukla and Anil Dhirubhai Ambani and 11 others in the Election Petition No.6 of 2004 decided by the Lucknow Bench of High Court of Judicature at Allahabad, Mr. Anupam Mehrotra, learned counsel for the respondents had raised a preliminary objection with submission that keeping in view of the fact that election petition challenging the same election has been dismissed by this Court and also since the term of elected representation of the Rajya Sabha has expired, petition should be dismissed as infructuous. 61. It was also submitted that the court should not adjudicate an academic issue and in any case the petitioner shall not be entitled for any benefit. 62. The learned Single Judge of the said High Court, has observed as under:- 22. Keeping in view the submission made by learned counsel for the parties it appears that 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. 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. In the present case, admittedly the term of respondent no. 1 to 4 expired and vacancy has been filled up by fresh election accordingly even if the impugned provision is struck down or the case of Kuldip Nayar (supra) is distinguished because of larger bench neither the petitioner will have any gain nor respondent no. 1 to 4 will suffer from any loss like loss of office as the member of Rajya Sabha. The things remain for adjudication would be the validity of impugned provision after taking into account the judgement of Kuldip Nayar(supra). Observation made by Hon'ble Supreme Court in the case of Rajeev Gandhi 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.
In view of above, there appears to be no good ground to proceed further in the matter to make academic exercise with regard to impugned provision.
c. The first respondent had filed his nomination papers before the second respondent as a candidate of the C.P.I.(M) party on 25.3.2011 claiming to be a member of Samban caste and Hindu by religion. He had produced a community certificate issued by the Tahsildar, Madurai North, dated 8.3.2010.
Madras High Court
V. Anbazhagan vs A. Laser on 27 April, 2016
CORAM : THE HONOURABLE MR.JUSTICE T.MATHIVANAN ELP.No.7 of 2011
This petition is filed by the petitioner under Section 80(A), 100(1) (a) and Section 97 and 101 of the Representation of the People Act, 1951 mainly as against the first respondent Mr.A. Laser to declare his election in respect of No.199 Periakulam (Scheduled Caste Assembly Constituency) held on 13.4.2011 for which the results were declared on 13.5.2011 as null and void and declare the petitioner as duly elected for the said constituency in the said election.
2. The first respondent has resisted the Election Petition by filing his counter affidavit.
3. Based on the pleadings of the parties concerned, necessary issues have been formulated by this Court and thereafter, the election petitioner was examined in chief as P.W.1. During the course of his examination, Exs.P.1 to P.16 were marked. Prior to his cross examination, the learned Senior Counsel M/s.R. Vaigai has come forward with a memorandum, dated 11.4.2016 stating that in view of the Notification No.ECI/PN/16/2016, dated 4.3.2016, issued by the Election Commission of India, the present election petition has become purely academic and might be dismissed as infructuous.
4. Since the said memorandum filed by the learned Senior Counsel was considered to have a vital bearing on the election petition, an objection was invited from the election petitioner. Accordingly, he has also filed his objections.
5. Keeping in view of the memorandum filed by the learned Senior Counsel questioning the maintainability of the relief sought for by the Election Petitioner in pursuant to the Notification No.ECI/PN/16/2016, dated 04.03.2016 issued by the Election Commission of India, this Court is of view that without going into the merits of the case by examining the witnesses to find out answer for the issues formulated, it would be better to dispose of the petition without continuing the trial proceedings, but solely on the crucial question as to whether the relief sought for by the petitioner has become infructuous ?
6. Though it is decided to dispose of the present Election Petition on the above issue, the allegations levelled in the petition as against the first respondent are very much essential.
a. The case of the petitioner is that the General Election to the Legislative Assembly of Tamil Nadu was notified by the Election Commission on 19.3.2011 fixing the date of poll as 13.4.2011 and 16.5.2011 as the date before which the election process shall have to be completed.
b. Periakulam Constituency was reserved for Scheduled Caste candidates. The petitioner belongs to Scheduled Caste (Pallan) and is Hindu by religion. The petitioner had duly filed his nomination papers on 24.3.2011 along with all the necessary statutory forms and documents. c. The first respondent had filed his nomination papers before the second respondent as a candidate of the C.P.I.(M) party on 25.3.2011 claiming to be a member of Samban caste and Hindu by religion. He had produced a community certificate issued by the Tahsildar, Madurai North, dated 8.3.2010.
d. The nomination of the first respondent was opposed and objected to by the 3rd respondent Ganapathy, a candidate of Bharatiya Janata Party as well as by the petitioner herein. The petitioner as well as the third respondent Ganapathy had contended that the first respondent is a Christian and not a member of the Scheduled Caste and that he is not entitled to contest from Periyakulam (Scheduled Caste Assembly Constituency).
e. The second respondent Returning Officer while scrutinising the nominations, considered the objections of the petitioner as well as the third respondent Ganapathy and held by his order, dated 29.3.2011 that both the petitioner and other objector had not produced any documentary evidence in support of their objections and hence, the nomination papers filed by the first respondent were accepted impliedly overruling the aforesaid objections.
f. In fact, the nomination of the petitioner herein was also accepted. The polling was taken place on 13.4.2011. After counting of votes on 13.5.2011, the first respondent herein was declared elected as he had obtained 76,687 votes, whereas the petitioner had obtained 71.046 votes. The second respondent on 13.5.2011 had declared that the first respondent had been duly elected to fill the seat of No.199 Periyakulam (SC Assembly Constituency).
g. After the nomination of the first respondent was accepted by the second respondent on 29.3.2011, the petitioner had enquired and found that the first respondent had studied in the Government High School Kandamanoor in Theni District and his caste was recorded as Kudumban , but his religion was not mentioned.
h. Further, in the Kamma Charitable High School, Govindanagaram where he had initially studied, his caste was recorded as Kudumban and his religion was recorded as Christian . The community of the first respondent's brother A. Yesupatham was recorded by the said School as Paraiyan Christian and therefore, the petitioner has contended that the first respondent and his family members are Christians and that they are not Hindus.
i. The petitioner has also stated that in an application filed by the first respondent in O.A.No.1358 of 2009 in the Election Petition in ELP No.2 of 2009 before this Court, he himself had declared his religion as Christian. His specific admission proves beyond doubt that he is a Christian by religion and does not belong to Hindu religion. Hence, it is very clear that the first respondent, who is a Christian had deliberately and fraudulently calling himself as Hindu and filed his nomination papers before the second respondent in the above said election. Therefore, the community certificate, dated 8.3.2010 issued in favour of the first respondent is invalid and in any event it is bound to be ignored.
j. In this connection, the third respondent Mr.Ganapathy, a candidate of Bharatiya Janata Party for the above said constituency in the said election, had filed a complaint before the Thenkarai Police Station, Theni District on 9.4.2011 against the first respondent and a case was also registered in Cr.No.161 of 2011 for the offences under Sections 465, 420, and 468 of I.P.C. and the investigation is also pending.
k. The petitioner has also contended that the election of first respondent as a returned candidate to fill the seat of Periyakulam (SC Assembly Constituency) is against the Constitution as well as the provisions of the Representation of People Act, 1951.
7. The first respondent in his counter affidavit has denied all the averments of the petition filed by the petitioner herein.
8. The first respondent while denying the averments of the Election Petition has contended that he had not suffered with any disqualification and possessed all necessary qualifications to contest the general assembly election held on 13.4.2011 from No.199 Periyakulam (Reserved Constituency).
9. He has also stated that he is not a Christian as alleged by the petitioner in the election petition and that the petitioner had misquoted and twisted the facts to suit his convenience.
10. According to the first respondent he was born to the parents belonging to Hindu Scheduled caste Samban Community, which is a notified community in the State of Tamil Nadu under Sl.No.63 of the Constitution (Scheduled Castes) Order, 1950.
11. He would further state that all sections of Dalits in and around his area knew very well that he belonged to Hindu Samban Community and that he is eligible to contest from the said constituency.
12. He has also contended that even assuming without conceding, if the entries made in the school records are seen in its entirety, the caste names mentioned in those certificates are notified as Hindu Scheduled Caste communities as per the Constitution (Scheduled Castes) Order, 1950 and further stated that he was born as a Hindu Scheduled Caste community person and not a Christian as alleged by the petitioner. The caste system prevailing only in the Hindu community and not in the Christianity.
13. The absence of any specific pleadings in this regard would further weaken the allegation that the first respondent is a Christian, as it has no legal basis and that the same is liable to be rejected.
14. According to the first respondent, for the last 40 years, he has been associated with the Communist Party of India (Marxist). As a member of the CPI (M), he is the follower of secular values and not professed any religion particularly. Thus neither he was a born Christian nor did he convert to Christianity much less profess Christianity at the time of his nomination.
15. However, his social status by birth to Hindu parents belonging to Scheduled casts could not be wiped out and therefore, he is fully qualified to contest from the reserved constituency.
16. The first respondent also states that taking advantage of certain incorrect entries found in the certificates issued by the School authority where he and his brother had studied, the petitioner had projected a false, frivolous and vexatious theory as if his religion is Christian . There are no facts or data to support such an allegation and there is no cause of action to file the election petition. The entries made relating to his religion as Christian in the School register is an apparent human error which has crept in while recording the entry in the 'religion column' based on the respondent's name, whereas in the caste column, it has been mentioned as Adidravidar Kudumban . In fact, the caste name of the respondent has been mis-described as Adi-dravidar and Kudumban, when his actual caste name is Hindu Samban Scheduled caste community.
17. The first respondent has further contended that for his son Mr.Bibin Subash, a community certificate was obtained on 31.1.2000 itself as Hindu Samban Scheduled Caste Community and his school, college records would reveal his caste as Hindu Samban Schedule caste community.
18. Though the caste names like, Kudumban, Adidravidar, Samban, Paraiyan etc. are notified castes under the Presidential Order, 1950, in certain areas of Tamil Nadu, Samban has also been referred to as Paraiyan and vice versa.
19. The first respondent has also contended that in the absence of any challenge under Section 5 of the R.P. Act, 1951, it is not open to the petitioner to contend that he (first respondent) is a Christian.
20. The first respondent has also stated that as the petitioner has not made any mandatory averments as required by the provisions of Section 100 (1)(d)(i) of the Representation of People Act, 1951, the election petition itself is liable to be rejected for the non compliance of the mandatory provisions of R.P. Act, 1951.
21. Based on the petition submitted by the third respondent Ganapathy before the Collector, Theni District, an enquiry with regard to the first respondent's community certificate was conducted and he had also submitted his explanation and final order has not yet been passed in this regard.
22. According to the first respondent, the criminal proceedings initiated against him on the file of Thenkarai Police Station alleging that he had obtained fake community certificate by giving bogus details, were dropped on the ground that no case is made out against him.
23. He has ultimately contended that in the absence of any challenge under Section 5(a) and 100(1)(d)(i) of the R.P. Act, the present election petition is not at all maintainable.
24. For the counter statement filed by the first respondent, the election petitioner has filed his reply statement.
25. Based on the draft issues submitted by both sides, this Court has formulated the following issues:-
a. Is there any material fact showing that Respondent No.1 'professed Christianity on the date of his nomination or election, and if not whether the Election Petition under Section 100(1)(a) of the R.P.Act, 1951 is maintainable in law?
b. In the absence of any pleading of lack of qualification under Section 5 of the R.P.Act, 1951 can the Election Petition under Section 100(1)(a) be maintained?
c. In the absence of proper verification as per Section 83(1)(c) of the Representation of People Act, 1951 should not be Election Petition be rejected for want of pleadings?
d. Whether the first respondent is qualified to contest in the impugned election? e. Whether the first respondent has played fraud or done misrepresentation in obtaining Community Certificate? f. Whether the petitioner is entitled to be declared elected in the place of the first respondent? g. To what relief is the petitioner entitled? 26. Besides this, in view of the order passed by this Court in O.A.Nos.160 and 161 of 2014 on 24.9.2011, the following issue has been formulated as an additional issue.
h. Whether the Election Petition is maintainable in the absence of challenge to acceptance of the Returned Candidate's nomination under Section 100(1)(d)(i) of the Representation of the People Act, 1951?
27. In order to find answer for the above issues, the parties to the election petition were directed to face the trial proceedings.
28. Excepting the contesting first respondent, other respondents including the second respondent, who is the returning officer of No.199 Periyakulam (Scheduled Caste Assembly Constituency), have not turned up to participate in the trial proceedings.
29. The election petitioner was examined as P.W.1 in chief. During the course of his examination, Exs.P.1 to P.16 were marked. During the course of his examination, the second respondent, Returning Officer, was directed to produce the entire original records of the election held on 13.4.2011 pertaining to Periyakulam (Scheduled Caste Assembly Constituency) on or before 24.7.2015. But he had not chosen to abide by the order of this Court and therefore, he was once again strictly directed to produce the entire original records relating to the election held on 13.4.2011 on or before 25.9.2015.
30. It is to be placed on record that on 25.9.2015, the chief examination of the election petitioner was completed. But still he is not able to be cross examined by the contesting first respondent.
31. When the petition came up for hearing on 11.4.2016, Ms. Vaigai, learned Senior Counsel appearing on behalf of the first respondent had filed a memorandum along with the Notification of the Election Commission of India, dated 4.3.2016 saying that the term of the State Legislative Assembly has now come to an end in view of the Notification, dated 4.3.2016, which has been issued by the Election Commission of India for holding fresh election to constitute the next Assembly and in view of the above notification, the present election petition has become purely academic and might be dismissed as infructuous.
32. For this memorandum, Mr.R. Srinivas, learned counsel appearing for the petitioner has filed a reply stating that the Representation of Peoples Act clearly provides the reasons due to which the election petition is abated and not for the reasons like, holding of fresh elections or expiry of the term of Legislative Assembly and therefore, he has urged to reject the memorandum filed by the learned Senior Counsel for the first respondent.
33. It is obvious to note here that the Election Commission of India has issued a Notification NO.ECI/PN/16/2016, dated 4.3.2016 publishing the Schedule for General Elections to the Legislative Assemblies of Assam, Kerala, Tamil Nadu, West Bengal and Puducherry.
34. As it appear from the above said Notification, the term of the Legislative Assembly of Tamil Nadu along with other States specified therein is normally due to expire on 22.5.2016. As per the established practice, the Commission holds the General Elections to the Legislative Assemblies of the States, whose terms expire around the same time together.
35. By virtue of its powers, duties and functions under Article 324 read with Article 172 (1) of the Constitution of India and Section 15 of the Representation of the People Act, the Commission is required to conduct elections to constitute new legislative assemblies in the States of Assam, Kerala, Tamil Nadu West Bengal and Puducherry before the expiry of their present terms.
36. As it appear from Annexure IV, the Schedule for holding general election to the Legislative Assembly of Tamil Nadu, the Notification for conducting the election was issued on 22.4.2016; the polling is scheduled to be held on 16.5.2016; the counting of votes is Scheduled on 19.5.2016 and the election process shall be completed on 21.5.2016.
37. In this connection, the learned Senior Counsel, Ms. Vaigai, has indicated that having regard to the fact that the fresh elections for the Tamil Nadu Legislative Assembly has been announced as well as notified, the election petition filed by the petitioner has become redundant and that even if the trial in the election petition is allowed to proceed further, it would only be an academic and a futile exercise as well.
38. Under these circumstances, without going into the merits of the petition, it might be dismissed as the relief sought for in the petition has become infructuous.
39. In support of her contention, she has placed reliance upon the following decisions:-
a. Podipireddy Atchuta Desai vs. Chinnam Joga Rao and others (1987 (Supp) SCC 42).
b. Kashi Nath Mishra vs. Vikramaditya Pandey and others ((1998) 8 SCC 735).
c. Mundrika Singh Yadav vs. Shiv Bachan Yadav and others ((2005) 12 SCC 211). d. P.H. Pandian vs. P. Veldurai and another ((2013) 14 SCC 685). e. Shankar Pendaam vs. Smt. Jyoti Dhurve f. Chandra Mohan Shukla vs. Anil Dhirubhai Ambani and 11 others (Judgment delivered by the Lucknow Bench of Allahabad High Court on 9.11.2010. g. C.M. Arumugam vs. S. Rajgopal and others ((1976) 1 SCC 863). h. Mr.M. Ganapathy vs. Mr.A.Laser and another (an unreported decision). 40. On the other hand, Mr.R.Srinivas, learned counsel appearing for the petitioner has submitted that no election petition could be dismissed for the reason that fresh elections for the next term has been notified. In any event, even such a recourse can be thought of only after the elections are held and the new assembly is formed and wilfully seeking the cessation of proceedings and preempting trial of the election O.P., prior to that is a deliberate act of obstruction of the due course of justice.
41. He has also maintained that as observed by the Apex Court in several judicial pronouncements, production of a false community certificate in an election by a candidate that he belongs to a Schedule Caste is a Fraud on the Constitution and hence, the present petition seeking such an enquiry cannot be closed as infructuous.
42. He has also contended that there was no limitation or expiry date for fraud.
43. He has also added that having a hopeless case and having gained time so far, the first respondent wanted to close this election petition as infructuous in a mode convenient to him, circumventing the trial and its conclusion, which cannot be allowed.
44. He has further argued that there is no precedent or ratio decidendi to conclusively hold that in a case, the candidate lacking intrinsic eligibility and exercising fraud by falsely declaring himself as a Schedule caste candidate the election petition can be dismissed as infructuous by efflux of time which was gained by the guilty candidate and such an enquiry would not be ever academic but only axiomatic to the spirit of the Constitution of India.
45. Moreover, if the first respondent is held disqualified and the election is held void, he could not contest in the ensuing elections as a reserved candidate. Hence, this petition could not be considered to have become infructuous.
46. He has also pointed out that as per the provisions of Section 33(A) read with Section 122 A of the R.P. Act, 1951 (inserted by 2002 Amendment) filing of false information in nomination papers is a prosecutable offence and therefore, if the community certificate and declaration of the first respondent that he is Schedule caste Hindu candidate are found false, he has to be prosecuted and hence, the enquiry in this election petition has never become academic.
47. In support of his contentions, he has placed reliance upon the following decisions:-
a. Krishnamoorthy vs. Sivakumar and eight others (2009-3-L.W.495).
b. Satrucharla Vijaya Rama Raju vs. Nimmaka Jaya Raju and others ((2006) 1 SCC 212).
c. Venkatachalam vs. A. Swamickan and another ((1999) 4 SCC 526). d.Punit Rai vs. Dinesh Chaudhary ((2003)8 SCC 204). 48. 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.
49. In an another decision 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 R.P. 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.
50. 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. 51. 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 by this Court in the election petition in ELP.No.1 of 1996 on 29.12.1999. 52. 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. 53. 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. 54. In Shankar Pendaam vs. Smt. Jyoti Dhurve (Judgment delivered on 18.7.2014 by the High Court of Madhya Pradesh, Jabalpur Bench in the Election Petition No.45 of 2009). 55. In this case, the election petition was filed by the petitioner therein under Section 80 read with Section 81 of the Representation of the People Act, 1951 for declaring the election of the respondent to be void. 56. This case is an identical one to that of the present case on hand. During the course of arguments of the learned Senior Counsel, who was appearing on behalf of the respondent before the Jabalpur Bench of Madhya Pradesh High Court had submitted that the said election petition had become infructuous because the term of the respondent had come to an end by efflux of time on 16th May, 2014 and thereafter, general elections had also taken place in May, 2014 and the respondent had already been elected from the same constituency of Loksabha. Thus, the grounds taken in this election petition have been rendered of academic importance and the academic questions should not ordinarily be decided by the Courts. 57. It was further submitted that this election petition had not been filed by the petitioner on the ground of corrupt practice. Therefore, it was urged that the election petition might be dismissed as infructuous. 58. The learned Senior Counsel had made reference to the following decisions of the Apex Court:- a. Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi (1987 (Supp) SCC 93). b. Sushma Swaraj vs. Raj Kumar Patel in SLP (Civil) No.2951 of 2014 decided on 5.5.2014. 59. Having taken into consideration of the related facts and circumstances, the learned Single Judge of the Jabalpur Bench of Madhya Pradesh High Court has observed as under:- Considering the fact that the tenure of the respondent has already come to an end by the efflux of time and the matter has been rendered of academic importance. In view of the aforesaid discussion and in the light of the aforesaid decision of Apex Court in Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi (supra) and Sushma Swaraj vs. Rajkumar Patel (supra), I am of the considered view that nothing further survives in this matter. This petition has become infructuous, same is hereby dismissed as having been rendered infructuous. 60. In a case between Chandra Mohan Shukla and Anil Dhirubhai Ambani and 11 others in the Election Petition No.6 of 2004 decided by the Lucknow Bench of High Court of Judicature at Allahabad, Mr. Anupam Mehrotra, learned counsel for the respondents had raised a preliminary objection with submission that keeping in view of the fact that election petition challenging the same election has been dismissed by this Court and also since the term of elected representation of the Rajya Sabha has expired, petition should be dismissed as infructuous. 61. It was also submitted that the court should not adjudicate an academic issue and in any case the petitioner shall not be entitled for any benefit. 62. The learned Single Judge of the said High Court, has observed as under:- 22. Keeping in view the submission made by learned counsel for the parties it appears that 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. 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. In the present case, admittedly the term of respondent no. 1 to 4 expired and vacancy has been filled up by fresh election accordingly even if the impugned provision is struck down or the case of Kuldip Nayar (supra) is distinguished because of larger bench neither the petitioner will have any gain nor respondent no. 1 to 4 will suffer from any loss like loss of office as the member of Rajya Sabha. The things remain for adjudication would be the validity of impugned provision after taking into account the judgement of Kuldip Nayar(supra). Observation made by Hon'ble Supreme Court in the case of Rajeev Gandhi 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.
In view of above, there appears to be no good ground to proceed further in the matter to make academic exercise with regard to impugned provision. I leave the question under Relief no. 1 open for adjudication in case warranted in some other case if raised by a person.
The election petition does not survive. Dismissed keeping the issue open for adjudication in some other case.
63. As observed in the opening paragraphs, though this election petition is filed by the petitioner to declare that the election of the first respondent Mr.A. Laser in respect of No.199 Periyakulam (SC Assembly Constituency) held on 13.4.2011 for which the results were declared on 13.5.2011 as null and void and to declare the election petitioner as duly elected from the said constituency in the said election, M/s.R. Vaigai, learned Senior Counsel has mainly contended that the term of the legislative assembly in pursuant to the Notification of the Election Commission of India, dated 4.3.2016, has now come to an end and a fresh elections to constitute the next legislative assembly scheduled to be held on 16.5.2016. Therefore, on a simple and technical ground, the learned Senior Counsel has stated in the above said memorandum that the present election petition has become purely academic and the relief sought for in the election petition has become redundant and hence, the petition might be dismissed as infructuous. She has also made reference to several judicial pronouncements as afore stated in order to fortify her arguments.
64. But Mr.R. Srinivas, learned counsel, without countering the submissions made by M/s.R.Vaigai, learned Senior Counsel has cited the following four decisions, which are not absolutely made applicable to discard the submissions made by the learned Senior Counsel, because the decisions cited by Mr.R. Srinivas are mainly relating to the adjudication of the election petition on merits based on the factual matrix of the case.
65. The decision in Krishnamoorthy vs. Sivakumar and eight others (2009-3-L.W.495) is relating to the challenge made by the election petitioner therein to the Panchayat election on the ground that the elected person had filed a false declaration suppressing the details of the criminal cases pending trial against him and that his nomination, therefore, ought to have been rejected by the returning officer.
66. In this case, the learned Single Judge of this Court has observed as under:-
Petitioner admittedly did not furnish full and complete information relating to his implication in criminal cases - In this case, mentioning of just one crime number, without mentioning the details of 8 charge sheets filed against him and cognizance taken by the Magistrate, cannot be taken to be a fair disclosure of full and complete information as required by the notification of the Election Commission Failure of the petitioner to furnish the details had the potential to interfere with the freedom of choice of the voters It is nothing but an attempt to interfere with the free exercise of electoral right which would fall within the meaning of undue influence and consequently a corrupt practice under Section 259 (1)(b) read with Section 260(2) of the Tamil Nadu Panchayats Act, 1994.
67. If the false, incorrect or incomplete information was capable of influencing the freedom of choice of the voters, then it will fall under the category of undue influence within the meaning of Section 260(2) of the Tamil Nadu Panchayats Act, 1994 read with Section 123(2) of the Representation of the People Act, 1951. District Judge was right in ultimately setting aside the election, though the ground on which he set it aside, may not be correct.
68. In Satrucharla Vijaya Rama Raju vs. Nimmaka Jaya Raju and others ((2006) 1 SCC 212), the appellant had successfully contested the State Assembly Elections in 1999 from No.8 Naguru (ST) Assembly Constituency in the State of Andhra Pradesh. His election was challenged by Respondent No.1 therein in Election Petition No.13 of 1999 read with Sections 5 and 100(1)(d)(f)of the Act.
69. The contention raised by the first respondent was that the appellant was not qualified to contest from the constituency reserved for the Scheduled Tribes. According to Respondent No.1, the election petitioner, the appellant was a Kshatriya and was not eligible to contest from a constituency reserved for the Scheduled Tribes. His claim that he belongs to the Konda Dora tribe, was not true. Since he was ineligible to contest from the constituency, his election was liable to be declared void and set aside and he (the election petitioner) may be declared as elected.
70. The appellant resisted the election petition. His contention was that he belonged to Konda Dora tribe which was a notified Scheduled Tribe and he was neither a Konda Raju nor a Kshatriya .
71. In this case, issues were raised, inter alia, on pleas that the judgment in E.P.No.13 of 1983 operated as a res judicata with regard to the status of the appellant, that the judgment therein was a judgment in rem and consequently conclusive on the status of the appellant and that the present election petition was not maintainable, so long as the community certificate issued by the Collector remained in force.
72. The High Court held that the judgment in E.P.No.13 of 1983, dated 16.1.1984 did not operate as rej judicata on the status of the appellant as far as the present election petition is concerned and that the judgment in E.P.No.13 of 1983 was not a judgment in rem and could not bind those who were not parties to it and that the said adjudication did not bar the trial of the present election petition.
73. In this connection, the Apex Court, after referring the Arumugam's case ((1976) 1 SCC 863), has held that every election furnishes a fresh cause of action for a challenge to that election and an adjudication in a prior election petition cannot be conclusive in the subsequent proceedings. Res judicata is nothing but the merger of a cause of action in a decree, transit in rem judicatum. So, even if the cause of action in the earlier election petition merged in the final adjudication therein, since the subsequent election furnished a fresh cause of action, 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.
74. Therefore, this decision also cannot be directly equated with the present case on hand.
75. In an another decision in K. Venkatachalam vs. A. Swamickan and another (1999) 4 SCC 526), the following crucial question was raised before the Apex Court that when the recourse was not taken within the period prescribed therefor, whether the High Court can still grant the relief under Article 226 on the allegation of fraud on the Constitution . This question was answered by the Apex Court as under:-
It is true that when the poll or repoll process is not for election to Parliament or a Legislative Assembly, the High Court cannot exercise its jurisdiction under Article 226 and that remedy of the aggrieved parties is under the Act read with Article 329(b) of the Constitution. The Act provides for challenge to an election by filing the election petition under Section 81 on one or more grounds specified in sub-section (1) of Sections 100 and 101 of the Act. But in the present case the appellant lacked the basic qualification under clause (c ) of Article 173 of the Constitution read with Section 5 of the R.P. Act which mandated that a person to be elected from an Assembly constituency has to be an elector of that constituency. The appellant was qualified for being an MLA of Tamil Nadu. He in his nomination form impersonated another person. He would be even criminally liable as he filed his nomination on an affidavit impersonating himself. He knew he was disqualified. Yet he sat and voted as an MLA. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as a debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. The appellant is liable to penalty nevertheless. If in such circumstances, he is allowed to continue to sit and vote in the Assembly his action would be a fraud on the Constitution. Article 226 is couched in that widest possible terms and unless there is a clear bar to jurisdiction of the High Court its powers under Article 226 can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one the bar of Article 329(b) will not come into play when the case falls under Articles 191 and 193 and the whole of the election process is over. It may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. (Election Commission, India vs. Saka Venkata Rao, AIR 1953 SC 210, explained and relied on) The High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as an MLA. The net effect is that the appellant ceases to be a Member of Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise the Court would have directed Respondent 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to the Election Commission that Lalgudi Assembly Constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh elections from that Assembly constituency. Normally in a case like this the Election Commission should invariably be made a party.
76. In Punit Rai vs. Dinesh Chaudhary ((2003) 8 SCC 204) also, a question was raised before the Apex Court as to whether the respondent belonged to Scheduled Caste and his nomination for election from a reserved constituency was properly accepted by the Returning Officer.
77. In this case, the Supreme Court has answered that a person cannot claim inheritance of Scheduled Caste from his mother merely on the basis of an administrative instruction issued by the Government. For taking benefit of a reserved category candidate, he must satisfy the test laid by the Constitution and R.P. Act and guidelines issued by the Election Commission, if any. A person claiming to be a member of Schedule Caste has to be accepted by the community and to be treated as such. Determination of caste is the function of the statutory authority specified therefor. A person claiming benefits of Scheduled Caste by procuring a bogus caste certificate would commit fraud on the Constitution.
78. All the four decisions referred to by Mr.R. Srinivas cannot be made applicable to the instant case on hand, because as discussed in the foregoing paragraphs, though the election petition has been filed challenging the first respondent's election to the Tamil Nadu State Legislative Assembly on 13.4.2011 and the results were declared on 13.5.2011 for the Periyakulam Constituency, since the term of the said legislative assembly has now come to an end by a Notification, dated 4.3.2016 issued by the Election Commission of India, for holding fresh elections to constitute next assembly, the relief claimed with regard to main issue involved becomes redundant or infructuous and even if this petition is allowed to exist and the trial proceedings are allowed to continue, it would be a futile exercise and since the time of the Court is precious one, academic exercise is not warranted unless still some relief may be granted to the petitioner or the appellant may be followed. This principle is laid down in Rajeev Gandhi's case as referred to by the Lucknow Bench of High Court of Judicature at Allahabad in Chandra Mohan Shukla's case, cited supra.
79. In so far as this petition is concerned, the following two vital questions are arisen:-
a. In pursuant to the Notification No.ECI/PN/16/2016, dated 4.3.2016 issued by the Election Commission of India and the Schedule for holding the elections to the Legislative Assembly of Tamil Nadu on 16.5.2016 has been notified, whether the prayer sought for by the election petitioner in this election petition could be granted?
b. Whether this Court can continue to proceed with the trial proceedings in the election petition inspite of the said Notification, dated 4.3.2016 and in the light of the Apex Court decisions, referred to supra, to decide the petition on the and merits of the case?
80. For the above two questions, the answer of this Court is that no relief could be granted in such an election petition as the prayer itself has been rendered infructuous in pursuant to the above Election Notification (Mundrika Singh Yadav vs. Shiv Bachan Yadav and others ((2005) 12 SCC 211).
81. It is significant to note here that no allegations are levelled in this election petition 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.
Accordingly, this election petition is dismissed as the prayer itself has become redundant or infructuous. There shall be no order as to costs. 27.04.2016
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