F.A. Sapa
Vs. Singora & Ors [1991] INSC 142 (10 May 1991)
Ahmadi,
A.M. (J) Ahmadi, A.M. (J) Ramaswami, V. (J) Ii Fathima Beevi, M. (J)
CITATION:
1991 AIR 1557 1991 SCR (2) 752 1991 SCC (3) 375 JT 1991 (2) 503 1991 SCALE
(1)939
ACT:
The
Representation of the People Act, 1951-Sections 80, 80A, 81, 82, 83, 86 read
with Rules 94, 95-A and Form 25 of the Representation of the People's Rules,
1951-Presentation of Election Petition-Contents of-Trial Court's duty to see
whether complied with the statutory requirements-Proper attestation and
verification-Necessity of.
The
Representation of the People Act, 1951-Section 83- Safeguards against
allegation of corrupt practices- Legislative intention explained.
Code
of Civil Procedure, 1908-Order VI, Rule, 15 read with Section 83, the
Representation of the People's Act, 1951-Verification of election
petition-Application of Code.
The
Representation of People Act, 1951-Chapter II- Tittle-"Presentation of
Election Petitions to Election Commission"-Held requires amendment.
HEAD NOTE:
The
respondents, who lost the State Assembly elections as candidates of the Mezo
National Front(MNF) from different constituencies of Mizoram, challenged the
election of the Congress (I) candidates on the ground of corrupt practices in
the High Court.
The
appellants-the returned candidates raised certain preliminary objections
regarding the maintainability of each petition. On the basis therefore two
preliminary issues were raised for consideration. The appellants moved for
striking off the pleadings. Thereupon, the original petitioners-the respondents
applied for amendment of their election petitions which was strongly opposed by
the appellants. The preliminary objections, the applications for striking off
the pleadings and the amendment applications were heard together.
The
two preliminary issues raise were (i) whether the election petitions were in
conformity with the requirements of Section 81 and 83 753 of the Representation
of the Peoples Act, 1951 and the Rules framed thereunder by the High Court and
(ii) whether rule 1 and the other related rules and notes thereto enabling the
filing of the Election Petition before the Stamp Reporter assigned to the
election court by the Chief Justice were ultra vires Article 329 of the
Constitution and Section 169 read with Sections 80, 80A and 81 of the R.P. Act.
The
appellants contended that the election petitions being photo copies, could not
be treated as election petitions as contemplated by law; that the copies of
petitions served on them were not attested to be true copies of the original
petitions as required by Section 81(3); that the election petitions were not
signed and verified in the manner laid down by the Code of Civil Procedure
inasmuch as the source of information had not been disclosed in the
verification or in the affidavit in Form 25 as required by rule 94A of the
Conduct of Election Rules, 1961 (the Rules);
that
no schedule of material particulars of corrupt practice had been annexed to the
affidavit purporting to be under Form 25, and that the presentation of the
election petitions before the Stamp Reporter was inconsistent with Sections 80,
80A and 81 of the R.P. Act and Article 329 of the Constitution.
The
averments in each election petition were identical.
The
High Court rejected the preliminary objections and party allowed the
applications for striking off the averments in the election petitions and
partly permitted certain amendments to the election petitions, against which
order the present appeals are filed in this Court under Article 136 of the
Constitution.
The
returned candidate-the appellant contended that paragraph 3 of the election
petition was the most crucial paragraph inasmuch as it disclosed the names of
towns and villages as well as the period during which the alleged corrupt
practices were committed had been deliberatedly omitted from the verification
clause and the affidavit; that failure to mention paragraph 3 of the election
petition in both the verification clause of the petition and the affidavit was
fatal and cannot be cured after the expiry of the limitation period of 45 days;
that the affidavit was not in Form No. 25 prescribed under Rule 94A of the
Rules and since Section 83 of the R.P. Act is mandatory and failure to adhere
to Form No. 25 was fatal, as the doctrine of substantial compliance had no
place in election law but even if that doctrine could be invoked, the
respondent failed to make substantial compliance; that the election petitions
being photocopies could not be entertained as valid 754 election petitions;
that copies of the election petitions served on the returned candidates were
not attested as true copies of the original as required by Section 81(3); that
the election petitions and the schedule and annexures were not signed and
verified as required by the Code; that an election dispute founded on the
allegation of corrupt practice being quasi-criminal in nature calls for strict
adherence to the requirements of election law as was evident from Section 86(I)
of R.P. Act which provided for dismissal of an election petition which failed
to comply with the requirements of Section 81, 82 or 117 of the statute; and
that if the Code did not apply to Mizoram, it applied to an election petition
because section 83(I)(c) obligates that an election petition `shall be signed
by the petitioner and verified in the manner laid down in the Code for the
verification of pleadings'.
This
Court partly allowing the appeals,
HELD:
1. Our election law being statutory in character must be strictly complied with
since an election petition is not guided by ever strictly complied with since
an election petition is not guided by ever changing common law principles of
justice and notions of equity. Being statutory in character it is essential
that it must conform to the requirements of our election law. But at the same
time the purity of election process must be maintained at all costs and those
who violate the statutory norms must suffer for such violation. If the returned
candidate is shown to have secured his success at the election by corrupt means
he must suffer for his misdeeds. [772B-D]
2. A
charge of corrupt practice has a two dimensional effect; its impact on the
returned candidate has to be viewed from the point of view of the candidate's
future political and public life and from the point of view of the electorate
to ensure the purity of the election process.
There
can, therefore, be no doubt that such an allegation involving corrupt practice
must be viewed very seriously and the the High Court should ensure compliance
with the requirements of Section 83 before the parties go to trial. [783D-E]
3.
What is essential is that the petitioner must take the responsibility of the
copy being a true copy of the original petition and sign in token thereof. No
particular form of attestation is prescribed; all that the sub-section enjoins
is that the petitioner must attest the copy under his own signature to be a
true copy of the petition. By certifying the same as true copy and by putting
his signature at the foot thereof, the petitioner of each election petition had
clearly complied with the letter and spirit of section 81(3) of the R.P. Act.
[786A-B] 755
4.
Section 86(I) mandates that the High Court `shall' dismiss an election petition
which does not comply with the provisions of Section 81 or Section 82 or
Section 117 of the R.P. Act. The language of this sub-section is quite
imperative and commands the High Court, in no uncertain terms, to dismiss an
election petition which does not comply with the requirements of section 81 of
section 82. [773B-D]
5.
Election of a returned candidate can be rendered void on proof of the alleged
corrupt practice. In addition thereto he would incur a subsequent
disqualification also.
This
harshness is essential if we want our democratic process to be clean, free and
fair. Eradication of corrupt practice from our democratic process is essential
if we want it to thrive and remain healthy. Our democratic process will
collapse if unhealthy corrupt practices like appeals to voters on basis of caste,
creed, community religion, race, language, etc., are allowed to go unchecked
and unpunished.
Use of
corrupt practices in elections to secure short term gains at the cost of purity
of our democratic process must be frowned at by every right thinking citizen.
[773D-F]
6. It
is for that reason that the law has provided for double jeopardy to deter
candidates, their agents and others from indulging in such nefarious practices,
their agents and others from indulging in such nefarious practices. But while
there is sufficient justification for the law to be harsh with those who
indulge in such practices, there is also the need to ensure that such
allegations are made with a sense of responsibility and concern and not merely
to vex the returned candidate. It is with this in view that the law envisages
that the particulars of such allegations shall be set out fully disclosing the
name of the party responsible for the same and the date and place of its
commission. A simple verification was considered insufficient and, therefore,
the need for an affidavit in the prescribed form. These procedural precautions
are intended to ensure that the person making the allegation of corrupt
practice realises the seriousness thereof as such a charge would be akin to a
criminal charge since it visits the party indulging in such practice with a
two-fold penalty. [773E-H]
7. If
full particulars of an alleged corrupt practice are not supplied, the proper
course would be to give an opportunity to the petitioner to cure the defect and
if he fails to that opportunity that part of the charge may be struck down.
[775F-G]
8.
Once the amendment sought falls within the purview of section 86(5), the High
Court should be liberal in allowing the same unless, in the facts and
circumstances of the case, the Court finds it unjust and 756 prejudicial to the
opposite party to allow the same. Such prejudice must, however, be
distinguished from mere inconvenience. [775G-H]
9. The
power conferred by section 86(5) cannot be exercised to allow any amendment
which will have the effect of introducing a corrupt practice not previously
alleged inthe petition. If it is found that the proposed amendments are not in
the nature of supplying particulars but raise new grounds, the same must be
rejected but if the amendments are sought for removing vagueness by confining
the allegations to the returned candidate only such an amendment would fall
within the parameters of section 86(5) of the R.P. Act. [789B-D]
10.
Clause(c) of sub-section 83 provides that an election petition shall be signed
by the petitioner and verification of the pleadings. Under section 83(2) any
schedule or annexure to the pleading must be similarly verified. Order 6 Rule
15 is the relevant provision in the Code. Sub-rule (2) of Rule 15 says that the
person verifying shall specify with reference to the numbered paragraphs of the
pleading, what he verifies on his own knowledge and what he verifies upon
information received and believed to be true. The verification must be signed
by the person making it and must state the date on and the place at which it
was signed. The defect in the verification can be (i) of a formal nature and
not very substantial (ii) one which substantially complies with the
requirements and (iii) that which is material but capable of being cured.
[776A-C]
11.
The object of requiring verification of an election petition is clearly to fix
the responsibility for the averments and allegations in the petition on the
person signing the verification and at the same time discouraging wild and
irresponsible allegations unsupported by facts. [776C-D]
12. In
cases where corrupt practice is alleged in the petition, the petition shall
also be supported by an affidavit in the prescribed form, i.e. Form No. 25
prescribed by Rule 94A of the Rules. [776D-E]
13.
While defective verification or a defective affidavit may not be fatal, the
High Court should ensure its compliance before the parties go to trial so that
the party required to meet the charge is not taken by surprise at the actual trial.
[783E-F]
14.
The charge of corrupt practice has to be proved beyond reasonable doubt and
merely preponderance of probabilities.
757
Allegation of corrupt practice being quasi-criminal in nature, the failure to
supply full particulars at the earliest point of time and to disclose the
source of information promptly may have an adverse bearing on the probative
value to be attached to the evidence tendered in proof thereof at the trial.
Therefore, even though ordinarily a defective verification can be cured and the
failure to disclose the grounds or sources of information may not be fatal,
failure to place them on record with promptitude may lead the court in a given
case to doubt the veracity of the evidence ultimately tendered. If, however,
the affidavit of the schedule or annexure forms an integral part of the
election petition itself, strict compliance would be insisted upon. [783G-784B]
15.
The requirements of section 81(3) are mandatory and failure to comply with them
would render the petition liable to summary dismissal under section 86(I) of
the R.P. Act. [784G]
16. If
a document does not form an integral part of the election petition but is
merely referred to in the petition or filed in the proceedings as evidence of
any fact, failure to supply a copy thereof will not prove fatal. Therefore the
maintainability of an election petition will depend on whether the schedule or
annexure to the petition constitutes an integral part of the election petition
or not. If it constitutes an integral part it must satisfy the requirements of
section 81(3) and failure in that behalf would be fatal. But if it does not
constitute an integral part of the election petition, a copy thereof need not
be served along with the petition to the opposite party. [787A- C]
17.
The High Court is directed to issue directions to the election petitioner of
each petition to remove the defects within such time as it may allow and if
they or any of them fail to do so, pass appropriate consequential orders in
accordance with law. [789A-B] Gurumayam S. Sarma v. K. Ongbi Anisija Devi,
Civil Appeal No. 659 of 1957 dated 9.2.1961; State of Nagaland v. Rattan Singh,
[1966] 3 SCR 830; V.L.Rohlus v. Deputy Commissioner, Aizawal, [1970] 2 SCC 908;
Raj Narain v. Indira Gandhi, AIR 1972 SC 1302 at 1307: [1972] 3 SCR 841; Manphul
Singh v. Surinder Singh, [1973] 2 SCC 599 at 608; K.M. Mani v. P.J. Antony,
[1979] 1 SCR 701; Samant N. Bal- Krishna v. George Fernandez, [1969] 3 SCR 603;
D.P. Mishra v. Kamal Narayan Sharma, [1971] 1 SCR 8; Balwan Singh v. Lakshmi Narain,
[1969] 22 ELR 273; Murarka Radhey Shyam v. Roop Singh Rathore, [1964] 3 SCR
573; State of Bombay v. Purushottam Jog Naik, [1952] SCR 674; The Barjum
Chemicals Ltd. The Company Law 758 Board, [1966] Supp. SCR 311; K.K. Nambiar v.
Union of India, [1970] 3 SCR 121 at 125; Jadav Gilua v. Suraj Narain Jha, AIR
1974 Patna 207; M/s Sunder Industries Ltd. v. G.E. Works, AIR 1982 Delhi 220;
K.K. Somanathan v. K.K. Ramachandran, AIR 1988; Kerala 259; Kamalam v. Dr. Syed
Mohammad, [1978] 3 SCR 446; M/s. Sukhwinder Pal v. State of Punjab, [1982] 1
SCC 31; Z.B. Bukhari v. Brij Mohan, [1975] Suppl. SCR 281; Prabhu Narayan v.
K.K. Srivastava, [1975] 3 SCR 552; Satya Narain v. Dhuja Ram, [1974] 4 SCC 237;
M. Karunanidhi v. Dr. H.V. Hande, [1983] 2 SCC 473; Mithlesh Kumar Pandey v. Baidyanath
Yadav, [1984] 2 SCR 278; Rajender Singh v. Usha Rani, [1984] 3 SCC 339; U.S. Sasidharan
v. K. Karunakaran, [1989] 4 SCC 482 and Ch. Subba Rao v. Member, E.T.
Hyderabad, [1969] 6 SCR 213 Referred to.
18.
When by the same statute the words `Election Commissioner' were substituted by
the expression `High Court' with effect from December 14, 1966. Even though by
the said Amendment Act jurisdiction was conferred on High Court in place of the
Election Commission, surprisingly the title of chapter II continues to read
`Presentation of election petitions to Election Commission'. Parliament will
well to correct this slip by substituting the words `High Court' for the
expression `Election Commission' to bring it in conformity with the changes
introduced by Act 47 of 1966. [768E-F]
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 179-189 of 1991 etc. etc.
From
the Judgment and Order dated 3.9.1990 of the Gauhati High Court in Election
Petition No. 7 of 1989.
A.M. Mazumdar,
Dr. L.M. Singhvi, S.K. Nandy, S. Parekh and Ms. Lira Goswami for the
Appellants.
Dr.
B.L. Wadehra and M.K.D. Namboodiri for the Respondents.
The
Judgment of the Court was delivered by AHMADI, J. Special granted in all SLPs. Mizoram
acquired Statehood on February
20, 1987. At the
general election held on January
21, 1989, the
respondents of this batch of appeals contested the State Assembly elections as
candidates of the Mizo National Front (MNF) from different constituencies. The
759 results of the election were declared on January 23, 1989.
They
lost to candidates fielded by the Indian National Congress (I). The
unsuccessful MNF mainly on the ground that they had indulged in and were guilty
of corrupt practices.
As
many as fifteen such election petitions came to be filed in the Gauhati High
Court on one single day, March
9, 1989.
Although
fifteen petitions were filed, one Congress (I) candidate had succeeded from two
constituencies and one candidate belonged to the Mizo National Front
(Democratic) Party. On service of notice of the filing of the election
petitions, the returned candidates entered appearance and raised certain
preliminary objections regarding the maintainability of each petition. On the
basis thereof two preliminary issues were raised for consideration. The
returned candidates moved for striking off the pleadings.
Thereupon
the original petitioners applied for amendment of their election petitions
which was strongly opposed by the returned candidates. The preliminary
objections, the applications for striking off the pleadings and the amendment
applications were heard together.
The
two preliminary issues raised by the learned Judge hearing the election
petitions were (i) whether the election petitions were in conformity with the
requirements of Sections 81 and 83 of the Representation of the People Act,
1951 (R.P. Act), and the Rules framed thereunder by the Gauhati High Court and
(ii) whether rule 1 and the other related rules and notes thereto enabling the
filing of the Election Petition before the Stamp Reporter assigned to the
election court by the learned Chief Justice were ultravires Article 329 of the
Constitution and Section 169 read with Sections 80, 80A and 81 of the R.P. Act.
so far as the first objection was concerned, the returned candidates contended
that the election petitions were photo-copies and could not, therefore, be
treated as election petitions as contemplated by law, the copies of petitions
served on the returned candidates were not attested to be true copies of the
original petitions as required by Section 81(3), the copies served on them with
the annexures were not true copies of the original; the election petitions were
not signed and verified in the manner laid down by the Code of Civil Procedure
inasmuch as the source of information had not been disclosed in the
verification or the affidavit in Form 25 as required by rule 94A of the Conduct
of Election Rules, 1961 (the Rule) and no schedule of material particulars of
corrupt practice had been annexed to the affidavit purporting to be under Form
25. In regard to the second objection the contention was that the presentation
of the election petitions before the Stamp Reporter was inconsistent with
Sections 80, 80A and 81 of 760 the R.P. Act and Article 329 of the Constitution
inasmuch as the law requires that an election petition shall be presented to
the High Court. The learned Judge in the High Court overruled both the
preliminary objections holding, in the case of the first, that there was
substantial compliance with the requirements of the relevant provisions and on
the second point he ruled that the presentation of the election petition to the
Stamp Reporter appointed or authorised under the Rules was presentation in
accordance with the Rules and the same did not conflict with Article 329(b) of
the Constitution. Thus both the preliminary objections stood rejected.
The
returned candidates had applied under Order VII Rule 16 of the Code of Civil
Procedure. (the Code), for striking out certain averments from the memo of the election
petitions on the ground of failure to disclose a cause of action. A prayer was
also made for dismissal of the petitions on that ground. The learned Judge in
the High Court rejected this contention observing that under the election law
the High Court is empowered to permit amendment of the election petition with a
view to amplifying the averments bearing on the question of corrupt practice
which it considers necessary for ensuring a fair and effective trial of the
election dispute. In this view of the matter the learned Judge examined the
averments of each paragraph in detail and directed the deletion or modification
of certain paragraphs, the averments wherein were vague of benefit of necessary
particulars. He directed that paragraphs 6, 9, 12, 13, 21, 22, 38 and 40 shall
stand deleted whereas paragraphs 3, 4, 5, 8, 14 to 20, 25 to 27, 30 to 37, 39
and 45 of the petition giving rise to CA No. 179 of 1991 shall stand modified.
All allegations against the election agent or other agents of the returned candidates
were ordered to be struck off. In other words he directed that the allegations
of corrupt practice shall be confined to the returned candidates only. Similar
orders were passed in the other election petitions subject to the variation in
number of paragraphs, etc. For convenience we will take the pleadings of C.A.
No. 179/91 as representative since we are told that the averments in each
election petition are identical except for some variations here and there. Thus
the learned Judge rejected the preliminary objections and partly allowed the
application for striking off the averments in the election petitions and partly
permitted certain amendments to the election petitions. It is against the said
order that the returned candidates have approached this Court under Article 136
of the Constitution.
At the
time of admission of these appeals two questions were formulated for
examination and we will confine ourselves to them in 761 the course of this
Judgment. These two questions are as under:
(1)``The
Election Petitions are liable to be dismissed in limine under Section 83 of the
Representation of the People Act, 1951 as the affidavit filed by the Election
Petitioner in each case is not strictly in conformity with Form 25, inasmuch as
the verification as regards the averments based on knowledge and the averments
based on information has not been made separately as required by the said Form
prescribed under Rule 95-A of the Representation of the People Rules, 1951; and
(II) The copies of the Election petitions served on the petitioners herein (the
respondents in the Election Petitions) not being true copies of the Election
Petitions , the Election Petitions were not maintainable and were liable to be
dismissed in limine in view of Section 81 read with Section 86 of the
Representation of the People Act, 1951.'' The appellants herein are the
returned candidates.
Election
Petitions were filed against them challenging their election on more or less
identical grounds. Since the Election Petitions are stated to be based on a
single master copy, we would refer to the averments of E.P. No. 7 of 1989 filed
against the appellant F. Sapa of Civil Appeal No. 179 of 1991.
On a
perusal of the cause title of the petition it becomes evident that the name of
the constituency and the particulars of the petitioner and the respondents are
left blank and filled in hand. The petition is stated to be under Sections 80
and 81 of the R.P. Act. Paragraph 1 furnishes the dates concerning the election
programme and the particulars regarding the petitioner. In paragraph 2 the
particulars regarding the total votes, votes pulled by each candidate, etc.,
have been set out. While the various heads are typed, the figures are hand
written. The various typed heads would show that particulars upto five
respondents figure. That is why the columns regarding three respondents have
been filled in while serial Nos. 6 and 7 meant for respondents 4 and 5 have
been left blank. This supports the appellant's say that one master copy of the
election petition were prepared and thereafter particulars in respect of each
petitioner were filled in hand. In paragraph 3 it is averred that the M.P.C.C.
(I) had with the consent and knowledge of the returned candidate conceived and
762 executed the entire election campaign of the returned candidate between
December 31, 1988 and January 19, 1989. So also the returned candidate had on
his own and with the help of M.P.C.C. (I), its functionaries and workers organised
and addressed public meetings and undertook door to door canvassing to promote
his chances for success. Thereafter the list of towns and villages where he
held such meetings, etc., are written in hand in the blank space left for that
purpose. This is also indicative of that fact that a master copy was prepared
to challenge all the fifteen elections. In paragraphs 4 and 5 the details
regarding the campaign literature or material, such as stickers, hand-bill,
pamphlets, press publications etc., have been furnished.
These
have been produced with their English translations at Annexures I to VI(a). It
is averred that this campaign literature was widely distributed throughout the
length and breadth of the entire constituency between the aforestated dates and
was also air dropped by helicopter on January 20, 1989 throughout the
constituency. These were also read out and explained to the voters in the
constituency during the aforesaid period. After making this averment in
paragraph 6, the petitioner proceeds to add in paragraph 7 as under:
``That
by publishing printing, circulating, distributing and by reading out and
explaining to the audiences including the electors and their family members
throughout the length and breadth of the constituency as indicated above,
Respondent No. 1 (returned candidate) has been guilty of corrupt practices
under Section 123.............'' The details in regard to the M.P.C.C. (I)'s
Election Manifesto produced at Annexure I (English translation- Annexure 1A)
have been set out in paragraphs 8 to 22 along with comments, inferences, etc. In
paragraph 23 there is a mention of Annexure II which is merely a repeat of
Annexure I dealt with in the aforesaid paragraphs 8 to 22. In paragraph 24 reference
is to Annexure III which is merely the summary of the Election Manifesto dealt
with in the preceding paragraphs. Paragraphs 25 to 29 refer to the
leaflet-Operation Josna-Annexure IV-and submission thereon.
The
next two paragraphs 30 and 31 contain reference is to a sticker-Annexure
V-which appeals to the religious sentiments of those following the Christian
faith and states: ``Let us vote Mizoram Congress(i) for Mizos and Christians''-
which, it is contended, constitutes corrupt practice. Then come paragraphs 32
to 40 which relate to a leaflet-Annexure VI-entitled ``what our vote will bring
about'' and then proceeds to add ``Christian Government'' and ``promise of
visit of the holy land (Israel)''. Then, 763 after referring to the activities aforestated,
it is alleged in paragraph 41 that this has materially affected the election
prospects of the other contesting candidates also.
Paragraphs
42, 43 and 44 refer to Press publications in `India Today', `Statesman and the
Assam Tribune and Sentinals'. Paragraph 45 enumerates the grounds on which the
election of the returned candidate is liable to be set aside. Paragraphs 45A to
47 deal with sundry items. This in brief is the nature of the Election
Petition. The petition is verified as under:
``I.
SANGURA the petitioner herein verify that the facts mentioned in paragraphs 1,
2, 4, 5, 18, 19, 28, 35, 30, 33, 36, 38, 41, 42, 43, 44, 45, 45A, 46 & 47
are true to my knowledge and facts mentioned in paragraphs 7, 8, 9, 10, 11, 12,
13, 14, 15, 20, 21, 22, 23, 24, 26, 27, 29, 32, 34, 3 35, 37, 40 & 41 are
based on information received and believed to be true. Grounds A, B & C and
the legal submissions are based on legal advice.
Verified
at Guwahati on 7th March, 1989.'' The verification is typed but the
petitioner's name and the paragraph numbers at both the places are hand
written. It will be seen from the above verification clause that paragraphs 3,
16, 17, 25, 31 & 39 have not been verified at all either as true to
knowledge or on information and/or belief whereas paragraph 41 is mentioned at
both the places.
It may
also be noted at this stage that in regard to the second part of the
verification based on `information received' and believed to be true' it is not
clarified which of the paragraphs are based on `information received' (nor is
the source of information disclosed) and which are founded on `believed to be
true'.
Appended
to the petition is the petitioner's typed affidavit, which runs into six
paragraphs. The name of the petitioner, his age and address appear to be filled
in on a typewriter. In paragraph 2 of the affidavit it is stated that the
petitioner (unsuccessful candidate) has alleged several corrupt practices on
the part of the Respondent No. 1 (the returned candidate), his election agent
and other agents and virtually the same phrase is repeated in paragraph 3. The
in paragraph 4 it is stated: `for brevity the details of the corrupt practices
alleged by me which have been given in the Election Petition and are not being
repeated in this affidavit and the same may be treated and read as part of this
affidavit' and then the deponent proceeds to add `The said particulars and
details of corrupt practices and contained in paragraphs 4 to 40 of the said
election petition'. The word and figures `4 to 40' are 764 written in hand
after scoring out the words and figures `7 to 47'. Then comes paragraph 5 which
may be reproduced:
``That
I solemnly state and affirm that all that has been stated in the election
petition by way of corrupt practices as a correct to the best of my knowledge
and to the information received by me and believed by me to be true''.
It
will be seen from the above that according to the election petitioner the
particulars and details of the corrupt practices are contained in paragraphs 4
to 40 which also omits paragraph 3 which is, according to the returned
candidate/appellant crucial. Then in paragraph 5 extracted above the election
petitioner states that all that he has stated in regard to corrupt practices in
his election petition (which according to paragraph 4 are contained in
paragraphs 4 to 40) is `correct to the best of my knowledge and to the
information received by me and believed by me be true'. It is not stated which
of the particulars contained in paragraphs 4 to 40 are true to his knowledge,
which are based on information received (apart from disclosure of source of
information) and which he believes to be true. The affidavit is totally silent
in regard to paragraphs 1 to 3, and 41 to 47 of the election petition.
The
returned candidate/the appellant herein, therefore, contends that paragraph 3
which is the most crucial paragraph in the entire election petition inasmuch as
it discloses the names of towns and villages as well as the period during which
the alleged corrupt practices were committed has been carefully, deliberately
and scrupulously omitted both from the verification clause and the affidavit
referred to hereinabove for reasons best known to the election petitioner and,
contends the appellant, once this paragraph 3 is kept out of consideration, the
Election Petition is, rendered `a theoretical and unimaginative essay' on
corrupt practice of appeal to religion. It is, therefore, contended that
failure to mention paragraph 3 of the election petition in both the
verification clause of the petition and the affidavit filed in support thereof
is fatal and cannot be cured particularly after the expiry of the limitation
period of 45 days.
The
appellant further contends that the affidavit is not in Form No. 25 prescribed
under Rule 94A of the Rules and hence the affidavit is no affidavit at all.
Since Section 83 of the R.P. Act is mandatory and strict compliance thereof is
expected of an election petitioner failure to adhere to Form No. 25 is fatal as
the doctrine of substantial compliance has no place in election law but even if
that doctrine could be 765 invoked to rescue the election petitioner out of the
situation in which he was placed himself, it was absolutely essential for him
to clearly state in his affidavit which paragraphs of the Election Petition are
based on his knowledge, which are based on information received and which are
based on his belief. Since even this is missing it is difficult to say that
there is substantial compliance assuming the doctrine has application. Counsel
for the appellant fairly stated that if the averments in the election petition
had been sworn to in the above manner it could perhaps be argued that failure
to strictly follow Form 25 could be excused on the doctrine of substantial
compliance and the procedural defect could be cured by an appropriate
amendment. But, argued counsel, the doctrine could never be pressed into
service where the petitioner has failed to disclose which part of the
allegations regarding corrupt practice are based on knowledge, which on
information received and which on belief. Where there is failure to comply with
even the basic requirements of an affidavit, there can be no question of
substantial compliance; this being a case of non compliance, whatsoever.
Where
several paragraphs of the election petition remain unaffirmed under the
verification clause as well as the affidavit, the unsworn allegation can have
no legal existence and the election court cannot take cognizance thereof. The
further allegation was that the election petitions being photocopies could not
be entertained as valid election petitions; that copies of the election
petitions served on the returned candidates were not attested as true copies of
the original as required by Section 81(3) and that the election petitions and
the schedule and annexures were not signed and verified as required by the
Code. An election dispute founded on the allegation of corrupt practice being
quasi-criminal in nature calls for strict adherence to the requirements of
election law as is evident from Section 86(1) of R.P. Act which provides for
dismissal of an election petition which fails to comply with the requirements
of Sections 81, 82 or 117 on the said statute.
Before
we set out of the relevant provisions of the R.P. Act, reference may be made to
Order VI Rule 15 of the Code which deals with verification of pleadings. This rule
is divided into three parts: the first part begins with `save as otherwise
provided by any law for the time being in force' and then proceeds to add that
every pleading shall be verified by the party or by one of the parties or by
some other person acquainted with the facts of the case; the second part posits
that every person verifying shall specify what he verifies of his own knowledge
and what he verifies upon information received or believed to be true by
reference to paragraph numbers and the third part states that the 766
verification shall be signed by the party making it. It was however, pointed
out that by virtue of sub-section (3) of Section 1, the Code extends to the
whole of India except (a) the State of Jammu and Kashmir and (b) the State of Nagaland and the tribal areas. The
explanation defines the expression `tribal areas' as territories which,
immediately before January 21, 1972 were included in the tribal areas of Assam
as referred to in paragraph 20 of the Sixth Schedule to the Constitution.
Paragraph 20 says that the areas specified in Parts I,II and III of the table
shown below shall respectively be the tribal areas within the State of Assam,
the State of Meghalaya, and the Union Territory of Mizoram.
Part
III which is relevant for our purpose comprises (1) the Chakma District (2) the
Lakher District and (3) the Pawi District. During the British period the area
was divided into North Lushai Hills and South Lushai Hills but was later
amalgamated into a single District of Lushai Hills and was made part of Assam and was placed under the
administrative charge of a Superintendent. On our attaining independence, the
Superintendent was replaced by a Deputy Commissioner but the District of Lushai
Hills continued to be part of Assam.
The Lushai
Hill District was renamed Mizo District in 1954 by an Act of Parliament and was
placed under a District council. After a spell of disturbances on the
implementation of the North Eastern Reorganisation Act, 1971, the Mizo District
was upgraded into a Union Territory and was renamed Mizoram. It was divided into three
districts, namely, (i) Aizawal ( i) Lunglei and (iii) Chhimtuipui. The Mizo
Hill District was replaced by Chakma, Lakher and Pawi Districts which find a
mention in Part III of the Table to paragraph 20 of the Sixth Schedule to the
Constitution. It was, therefore, argued that the provisions of the Code did not
and do not apply to the State of Mizoram. In support of this contention reliance is placed on three decisions of
this Court namely (1) Gurumayam S. Sarma V.K. Ongbi Anisija Devi, Civil Appeal
No. 659 of 1957 dated February 9, 1961 (2) State of Nagaland V. Rattan Singh,
[1966] 3 SCR 830 and (iii) V.L. Rohlus V. Deputy Commissioner, Aizawal, [1970]
2 SCC 908. It is unnecessary to notice these decisions in detail because Dr. Singhvi
does not seriously question this proposition. But, contends Dr. Singhvi, if the
Code did not apply to Mizaoram in view of the above, it applied to an election
petition because Section 83(1)(c) obligates that an election petition `shall be
signed by the petitioner and verified in the manner laid down in the Code for
the verification of pleadings'. Therefore, even though the provisions do not
extend to Mizoram by virtue of Section 1(3) of the Code, counsel submitted they
are applicable by incorporation to election petitions by the thrust of Section
83(1)(c) of the R.P. Act to the extent indicated therein.
767
And now to the relevant provisions of the R.P. Act and the Rules framed there under.
The expression `corrupt practice' defined in Section 1(c) means any of the
practices specified in Section 123. The various corrupt practices enumerated in
Section 123 are
(1) bribery,
(2) undue
influence,
(3) an
appeal by a candidate or his agent or by another other person with the consent
of the candidate or his election agent to vote or refrain from voting for any
person on the ground of his religion, race, caste, community or language or the
use of, or appeal to religious symbols, etc., (3A) the promotion of, or attempt
to promote, feelings of enmity or hatred between different classes of the
citizens of India on grounds of religion, race, caste, community, or language,
(4) the
publication of any statement of fact which is false and which he either
believes to be false or does not believe to be true, in relation to another
candidate,
(5) the
hiring or procuring of any vehicle or vessel or the use of such vehicle or
vessel for the free conveyance of any elector to or from any polling station,
(6) the
incurring or authorising of expenditure in contravention of Section 77,
(7) the
obtaining or procuring of any assistance from any Government servant of the
class specified and
(8) booth
capturing. Sections 8 and 8A lay down that any person convicted for practising
any corrupt practice by an order made by the High Court under Section 99 shall
be disqualified for a period of six years in the case of the former in addition
to being punished on conviction and for a period not exceeding six years in the
case of the latter. Counsel for the appellant, therefore, contended that proof
of allegations of corrupt practice would visit the returned candidate with
certain serious consequences and must, therefore, be viewed seriously. Being
quasi-criminal in nature courts have and must always insist on strict
compliance with the provisions of law in that behalf and failure to do so must
prove fatal. Laying this background, counsel for the appellants invited our
attention to Sections 80 to 86 of the R.P. Act.
The
R.P. Act is divided into XI parts. We are essentially concerned with Part VI
entitled `Disputes Regarding Elections' which is divided into V chapters.
Chapter
I is a single section chapter comprising section 79 which defines certain
expressions used in Part VI and Part VII dealing with corrupt practices and
electoral offences.
Chapter
II entitled `Presentation of election petitions to Election Commission'
comprises Sections 80 to 85 having since been repealed. Section 80 says no
election shall be called in question except by an election petition presented
in accordance with the provisions contained in that part.
Section
80A, inserted by Act 47 of 1966, confers jurisdiction on the High Court to try
an election petition.
Section
81 768 deals with the presentation of such petitions. It reads under:
``81.
Presentation of petitions.-(1) An election petition calling in question any
election may be presented on one or more of the grounds specified in
sub-section (1) of section 100 and section 101 to the High Court by any
candidate at such election or any elector within forty-five days from, but not
earlier than, the date of election of the returned candidate, or if there are
more than one returned candidate at the election and the dates of their
election are different, the later of those two dates.
Explanation.-In
this sub-section, `elector' means a person who was entitled to vote at the
election to which the election petition relates, whether he has voted at such
election or not.
(3)
Every election petition shall be accompanied by as many copies thereof as there
are respondents mentioned in the petition, and every such copy shall be
attested by the petitioner under his own signature to be a true copy of the
petition.'' Sub-section (2) of this section was omitted by Act 47 of 1966 when
by the same statute the words `Election Commission' were substituted by the
expression `High Court' with effect from December 14, 1966. Even though by the said Amendment
Act jurisdiction was conferred on the High Court in place of the Election
Commission, surprisingly the title of Chapter II continues to read
`Presentation of election petitions to Election Commission'. Parliament will do
well to correct this slip by substituting the words `High Court' for the
expression `Election Commission' to bring it in conformity with the changes
introduced by Act 47 of 1966.
Section
82 indicates the parties to be joined as respondents. Then comes Section 83
which reads thus:
``83.
Contents of petition.-(1) An election petition- (a) shall contain a concise
statement of the material facts on which the petitioner relies;
(b)
shall set forth full particulars of any corrupt practice that the petitioner
alleges, including as full a statement as possible of the means of the parties
alleged to have com- 769 mitted such corrupt practice and the date and place of
the commission of each such practice; and (c) shall be signed by the petitioner
and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of
1908) for the verification of pleadings:
Provided
that where the petitioner alleges any corrupt practice, the petition shall also
be accompanied by an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars thereof.
(2)
Any schedule or annexure to the petition shall also be signed by the petitioner
and verified in the same manner as the petition.'' On a plain reading of this
provision it is manifest that it is incumbent on the petitioner to set forth
`full particulars of any corrupt' he alleges against the returned candidate.
This should be accompanied by `as full a statement as is possible' of the names
of those who have indulged in such corrupt practice and the date and place of
the commission thereof. Clause (c) of sub-section (1) enjoins that the election
petition shall not only be signed but also verified in the manner laid down in
the Code. The proviso then prescribes an additional safeguard in cases where
corrupt practice is alleged, as in the present case, namely, that the election
petition shall be accompanied by an affidavit in the prescribed form in support
of the allegation of such corrupt practice and the particulars thereof. This
provision reflects the anxiety of the legislature to ensure that allegations of
corrupt practice are not lightly made; not only that but it ensures that the
responsibility thereof is fixed on the petitioner himself by asking him to
swear an affidavit in support thereof.
`Prescribed'
says Section 2(g) means prescribed by rules made under the said Act. Form 25 is
the form of the affidavit prescribed by Rule 94A of the Rules. Next sub-
section (2) of this section provides that any schedule or annexure to the
petition shall also be signed and verified in the same manner as the petition
itself. Section 84 sets out what relief the petitioner can claim in such an
election petition. That brings us to chapter III entitled `Trial of election
petitions'. Only two sections from this chapter require to be noticed. The
first is section 86, the relevant part whereof reads:
``86.
Trial of election petitions.-(1) The High Court shall dismiss an election
petition which does not comply with the 770 provisions of section 81 or section
82 or section 117.
Explanation.-An
order of the High Court dismissing an election petition under this sub-section
shall be deemed to be an order made under clause (a) of section 98.
(2) As
soon as may be after an election petition has been presented to the High Court.
It shall be referred to the Judge or one of the Judges who has or have been
assigned by the Chief Justice for the trial of election petitions under
sub-section (2) of section 80A.'' The rest of the sub-sections are not germane
to the controversy before us. Section 87 outlines the procedure to be followed
by the High Court in the trial of an election petition. It says that it shall
be tried `as nearly as may be', in accordance with the procedure applicable
under the Code to the trial of suits. Since sub-section (1) of the Section 86
refers to Section 117 we may notice it at this stage. It provides for a deposit
of Rs. 2,000 as security for the petition with which we are now concerned. Dr. Singhvi,
therefore, emphasised that the law for the trial and resolution of election
disputes found in the aforesaid provisions of this Act and the Rules made thereunder
offers a self-contained Code and it is not necessary to look elsewhere except
where provisions of any other law are incorporated in this statute by
reference. He further submitted that since some of the election disputes could
be quasi-criminal in nature, e.g., where corrupt practice is alleged, strict
compliance with the provisions of the statute and Rules is expected by the
legislature in such cases and even if the provisions are treated as directory
as held by the learned Judge in the High Court, the degree of non-compliance
which the Court will tolerate to ensure substantial compliance will not be the
same as in an ordinary civil proceeding. He submitted that tested on this
touchstone, this Court should hold that there is no substantial compliance for
otherwise the election law would loss its sanctity and seriousness and vague
charges of corrupt practice would be lightly made to vex the returned
candidates and when faced with an objection attempts to cure the defects
through applications for amendment of the pleadings would become the order of
the day thereby defeating the very object of expeditious disposals of election
petitions envisaged in Section 86(7) of the R.P. Act.
Dr. Singhvi
took strong exception to the approach of the learned Judge in the High Court
when he ruled that strict compliance with the provisions of Sections 81 and 83
of R.P. Act was not necessary and 771 that the procedural requirements thereunder
were to be treated in the same manner as a suit or any other proceedings of a
civil nature. He submitted that this approach of the learned Judge betrays an
erroneous understanding that election petitions are also to be treated on par
with ordinary proceedings, notwithstanding the quasi- criminal character of
such proceedings, and it is this approach of the learned Judge which has led
him to reach a conclusion unknown to election law. In particular he invited our
attention to the following observations of the learned Judge which according to
counsel betrays his fallacious approach:
``I am
not prepared to hold that simply because a petition before the court happens to
be an election petition, the procedural requirements should be construed in a
mechanical or pedantic manner without any regard to the object sought to be
achieved thereby. The law does not require the court, while dealing with an
election petition, to construe the pleadings in such a hyper technical manner
and to make a microscopic examination thereof with a view to finding out a slip
here or a deviation there which may be used as a ground for the rejection of
the petition in limine in the name of maintaining the democratic process or the
purity of election. In any opinion, the procedural requirements in an election
case also should be construed in the same manner as in cases under the C.P.C.
The approach of the court should not be to reject the election petition, in limine
on every possible pretext of non-compliance with one more of the procedural
requirements unless the law itself, in clear terms, mandates it to do so.'' It
is manifest from the above observations that the learned Judge took the view
that the procedural requirements are intended to serve the object of providing
a mechanism to reach the ultimate objective of dispensing justice in election
disputes. According to him these provisions were merely adjectival and must,
therefore, be construed liberally so as to advance the cause of justice and not
to stifle it at the threshold. In support of this line of thought the learned
Judge placed reliance on the observations of this Court in Raj Narain v. Indira
Gandhi, AIR 1973 SC 1302 at 1307 wherein this Court has observed as under:
``Rules
of pleadings are intended as aids for fair trial and for reaching a just
decision. An action at law should not be 772 equated to a game of chess.
Provisions of law are not mere formulae to be observed as rituals.
Beneath
the words of a provision of law, generally speaking, there lies a justice
principle. It is the duty of the Court to ascertain that principle and
implement it.'' Let us examine if the criticism of the learned counsel to the
approach of the learned Judge is well founded.
It is
fairly well settled that our election law being statutory in character must be
strictly complied with since an election petition is not guided by ever
changing common law principles of justice and notions of equity. Being
statutory in character it is essential that it must conform to the requirements
of our election law. But at the same time the purity of election process must
be maintained at all costs and those who violate the statutory norms must
suffer for such violation. If the returned candidate is shown to have secured
his success at the election by corrupt means he must suffer for his misdeeds.
The
mode for calling in question the election of a returned candidate is by
presenting an election petition `in accordance with the provisions of this
Part' (Section 80).
Such a
petition has to be presented within 45 days from the date of election of the
returned candidate. Sub-section (3) of section 81 provides that such an
election petition must be accompanied by as many copies thereof as there as
there are respondents and every such copy shall be attested by the petitioner
under his own signature to be a true copy of the petition. This provision which
explains how a copy of an election petition shall be attested, emphasises that
such attestation will be under the petitioner's own signature.
What
the contents of an election petition shall be is enumerated in Section 83. It
must contain a concise statement of material facts on which the petitioner
relies but where a petition is founded on the allegation of corrupt practice,
it shall set forth full particulars of the corrupt practice alleged by the
petitioner, including as full a statement as possible of the names of the parties
who have indulged in such corrupt practice together with the date and place of
the commission thereof. Such an election petition as well as every schedule or
annexure thereto must be signed by the petitioner and verified in the manner
provided by the Code for the verification of pleadings. But, in cases where the
petitioner has alleged corrupt practice that is not enough, the proviso demands
that the petition shall be accompanied by an affidavit in the prescribed from
supporting the allegation of such corrupt practice and the particulars thereof.
Therefore, an election 773 petition in which corrupt practice is alleged stands
on a different footing from an election petition which does not carry such an
allegation. The legislature has taken special care to ensure that ordinary
verification will not suffice, it must be supported by an affidavit in the
prescribed form.
Form
25 has been prescribed for such an affidavit under rule 91A of the Rules. That
rule says that the affidavit referred to in the proviso to Section 83(1) shall
be in Form 25. The form of the affidavit requires the deponent to state which
of the paragraphs of the election petition in which allegations of corrupt
practice are made are based on his own knowledge and which are based on this information.
Section
86(1) then mandates that the High Court `shall' dismiss an election petition
which does not comply with the provisions of Section 81 or Section 82 or
Section 117 of the R.P. Act. The language of this sub-section is quite
imperative and commands the High Court, in no uncertain terms, to dismiss an
election petition which does not comply with the requirements section 81 or
section 82. This mandate is, however, qualified by sub-section (5) referred to
earlier.
Election
of a returned candidate can be rendered void on proof of the alleged corrupt
practice. In addition thereto he would incur a subsequent disqualification
also. This harshness is essential if we want our democratic process to be
clean, free and fair. Eradication of corrupt practice from our democratic
process is essential if we want it to thrive and remain healthy. Our democratic
process will collapse if unhealthy corrupt practices like appeals to voters on
basis of caste, creed, community, religion, race, language, etc., are allowed
to go unchecked and unpunished.
Use of
corrupt practices in elections to secure short term gains at the cost of purity
of our democratic process must be frowned at by every right thinking citizen.
It is for that reason that the law has provided for double jeopardy to deter
candidates, their agents and others from indulging in such nefarious practices.
But while there is sufficient justification for the law to be harsh with those
who indulge in such practices, there is also the need to ensure that such allegations
are made with a sense of responsibility and concern and not merely to vex the
returned candidate. It is this in view that the law envisages that the
particulars of such allegations shall be set out fully disclosing the name of
the party responsible for the same and the date and place of its commission. A
simple verification was considered insufficient and, therefore, the need for an
affidavit in the prescribed form. These procedural precautions are intended to
ensure that the person making the allegation of corrupt practice realises the
seriousness thereof as such a charge would be akin to a criminal charge since
it visits the party indulging in such practice with a two-fold penalty. That
774 is why this Court described it as quasi-criminal in nature in Manphul Singh
v. Surinder Singh, [1973] 2 SCC 599 at 608 and reiterated the same in K.M. Mani
v. P.J. Antony, [1979] 1 SCR 701. Hence the insistence that each ingredient of
the charge must be satisfactorily proved before a verdict of guilt is recorded
by the Court. In Mani's case this Court held that the allegations must be
established beyond reasonable doubt and not merely by a preponderance of
probability. It is, therefore, equally essential that the particulars of the
charge or allegation are clearly and precisely stated in the election petition
to afford a fair opportunity to the person against whom it is leveled to
effectively counter the same.
The
law in regard to the adjudication of an election dispute has been set out, as
stated earlier, in Part VI of the R.P. Act, the provisions whereof constitute a
self- contained Code. Therefore, an election petition calling in question the
election of a returned candidate must be made in accordance with the provisions
of this part of the statute. Under the provisions of this part an election
petition calling in question the election of a returned candidate must be
founded on one or more of the grounds specified in Sections 100 and 101 for any
of the reliefs specified in Section 84 thereof. Section 100 specifies several
grounds, one of them being commission of a corrupt practice by the returned
candidate. Section 83(1)(a) stipulates that every election petition shall
contain a concise statement of the "material facts" on which the
petitioner relies. That means the entire bundle of facts which would constitute
a complete cause of action must be concisely stated in an election petition.
Section 83(1)(b) next requires an election petitioner to set forth full
'particulars' of any corrupt practice alleged against a returned candidate.
These 'particulars' are obviously different from the 'material facts' on which
the petition is founded and are intended to afford to the returned candidate an
adequate opportunity to effectively meet with such an allegation. The underlying
idea in requiring the election petitioner to set out in a concise manner all
the 'material facts' as well as the 'full particulars', where commission of
corrupt practice is complained of, is to delineate the scope, ambit and limits
of the inquiry at the trial of the election petition.
Before
the amendment of the R.P. Act by Act 27 of 1956, section 83(3) provided for an
amendment of an election petition insofar as 'particulars' of corrupt practice
were concerned. By the 1956 amendment this provision was replaced by Section
90(5) which in turn came to be deleted and transferred as sub-section (5) of
section 86 by the Amendment Act 47 of 1966. Section 86(5) as it presently
stands 775 empowers the High Court to allow the `particulars' of any corrupt
practice alleged in the petition to or amplified the amendment does not have
the effect of widening the scope of the election petition by introducing
particulars in regard to a corrupt practice not previously alleged or pleaded
within the period of limitation in the election petition.
In
other words the amendment or amplification must relate to particle already
pleaded and must not be an effort to expand the scope of the inquiry by
introducing particulars regarding a different corrupt practice not earlier
pleaded.
Only
the particulars of that corrupt practice of which the germ exists in the
election petition can be amended or amplified and there can be no question of
introducing a new corrupt practice. It is significant to note that section
86(5) permits `particulars' of any corrupt practice `alleged in the petition'
to be amended or amplified and not the `material facts'. It is, therefore,
clear from the trinity of clauses (a) and (b) of 83 and section sub-section (5)
of section 86 that there is a distinction between `material facts' referred to
in clause (a) and `particulars' referred to in clause (b) and what Section
86(5) permits is the amendment/amplification of the latter and not the former.
Thus
the power of amendment granted by section 86(5) is relatable to clause (b) of
section 83(1) and is coupled with a prohibition, namely, the amendment will not
relate to a corrupt practice not already pleaded in the election petition. The
power is not relatable to clause (a) of section 83(1) as the plain language of
section 86(5) confines itself to the amendments of `particulars' of any corrupt
practice alleged in the petition and does not extent to `material facts'. This
becomes crystal clear on the plain words of the closely connected trinity of
Section 83(1)(a), 83(1)(b) and 86(5) and is also supported by authority. See Samant
N. Balkrishna v. George Fernandez, [1969] 3 SCR 603 and D.P. Mishra v. Kamal Narayan
Sharma, [1971] 1 SCR 8. In Balwan Singh v. Lakshmi Narain, [1969] 22 ELR 723
this Court held that it full particulars of an alleged corrupt practice are not
supplied, the proper course would be to give an opportunity to the petitioner
to cure the defect and if he fails to avail of that opportunity that part of
the charge may be struck down. We may, however, hasten to add that once the
amendment sought falls within the purview of section 86(5), the High Court
should be liberal in allowing the same unless, in the facts and circumstances
of the case, the Court finds it unjust and prejudicial to the opposite party to
allow the same. Such prejudice must, however, be distinguished from mere
inconvenience, vide Raj Narain v. Indira Gandhi, [1972] 3 SCR 841. This much
for the provisions of section 83(1)(a) and (b) and section 86(5) of the R.P.
Act.
776
The brings us to clause (c) of sub-section (1) of section 83, which provides
that an election petition shall be signed by the petitioner and verified in the
manner laid down by the Code for the verification of the pleadings.
Under
section 83(2) any schedule or annexure to the pleading must be similarly
verified. Order 6 Rule 15 is the relevant provision in the Code. Sub-rule (2)
of Rule 15 says that the person verifying shall specify with reference to the
numbered paragraphs of the pleading, what he verifies on his own knowledge and
what he verifies upon information received and believed to be true. The
verification must be signed by the person making it and must state the date on
and the place at which it was singed. The defect in the verification can be (i)
of a formal natural and not very substantial (ii) one which substantially
complies with the requirements and (iii) that which is material but capable of
being cured. It must be remembered that the object of requiring verification of
an election petition is clearly to fix the responsibility for the averments and
allegations in the petition on the person signing the verification and at the
same time discouraging wild and irresponsible allegations unsupported by facts.
Then comes the proviso which provides that in cases where corrupt practice is
alleged in the petition, the petition shall also be supported by an affidavit
in the prescribed form i.e. From No. 25 prescribed by Rule 94A of the Rules.
Lastly sub- section (2) of section 83 lays down that any schedule or annexure to
the petition shall also be similarly signed and verified. Two question arise: (i)
what is the consequence of a a defective or incomplete verification and (ii)
what is the consequence of a defective affidavit? It was also said that the
verification clause in regard to averments or allegations based on information
ought to disclose the source of information which had not been done in this
case.
It
must at the outset be realised that section 86(1) which lays down that the High
court `shall' dismiss an election petition which does not comply with the
provisions of section 81 or section 8 or section 117 does not in terms refer to
section 83. It would, therefore, seem that the legislature did not view the
non-compliance of the requirement of section 83 with the same gravity as in the
case of sections 81, 82 or 117. But it was said that a petition which does not
strictly comply with the requirements of section 83 cannot be said to be an
election petition within the contemplation of section 81 and hence section 86(1)
was clearly attracted. In Murrka Redhey Shyam v. Roop Singh Rathore, [1964] 3
SCR 573 one of the defects pointed out was that though the verification stated
that the averments made in some of the paragraphs of the petition were true to
the personal knowledge of the petitioner and the averments in in some other
paragraphs were verified 777 to be true on advice and information received from
legal and other sources, the petitioner did not in so may words state that the
advice and information received was believed by him to be true. The Election
Tribunal held that this defect was a matter which came within section 83(1)(c)
and the defect could be cured in accordance with the principles of the Code.
This Court upheld this view in the following words:
"It
seems clear to us that reading the relevant sections in Part VI of the Act, it
is impossible to accept the contention that a defect in verification which is
to be made in the manner laid down in the Code of Civil Procedure, 1908, for
the verification of pleadings as required by cl. (c) of sub-s. (1) of s. 83 is
fatal to the maintainability of the petition." It is thus clear from this
decision which is binding on us that mere defect in the verification of the
election petition is not fatal to the maintainability of the petition and the
petition cannot be thrown out solely on that ground.
As
observed earlier since section 83 is not one of three provisions mentioned in
section 86(1), ordinarily it cannot be construed as mandatory unless it is
shown to an integral part of the petition under section 81.
The
proviso to section 83(1) was inserted by section 18 of Amendment Act 40 of
1961. It is attracted where the petitioner alleges any corrupt practice. In
that case the election petition must be accompanied by an affidavit inthe
prescribed form i.e. Form No. 25. The affidavit is intended to support the
allegation of corrupt practice and the particulars thereof pleaded in the
election petition. Order 19 Rule 3 of the Code provides that affidavits should
be confined to such facts as the deponent is able on his own knowledge to
prove. Here again the submission was that the affidavit to be sworn in Form No.
25 prescribed by Rule 94A must be sworn consistently with Order 19 Rule 3 of
the Code.
The
submission, therefore, was that the affidavit must disclose the source of
information for otherwise it will be no affidavit at all. In this connection
reliance is placed on the decision of this Court in State of Bombay v. Purushottam
Jog Naik, [1952] SCR 674 wherein at page 681 this Court while dealing with the
verification of the affidavit of the Home Secretary observed that when the
matter deposed to is not based on personal knowledge the source of information
should be clearly disclosed. Again in The Barium Chemicals Ltd. v. The Company
Law Board, [1966] Supp. SCR 311 Shelat, J. at page 352 reiterated that where
allegations of mala fides are not grounded on personal knowledge but only on
`reason to believe', the source of 778 information must invariably be
disclosed. Same was the view expressed in the case of K.K. Nambiar v. Union of
India, [1970] 3 SCR 121 at 125. Based on the law laid down in the aforesaid
three cases the learned counsel for the appellants submitted that an affidavit
which on its to disclose the source of information has no efficacy in law and
is not worth the paper on which it is written, more so in an election petition
alleging corrupt practice, for otherwise it will fail to achieve the purpose,
namely, to give an opportunity to the returned candidate to counter the
allegation. According to the learned counsel, the affidavit contemplated by the
proviso to section 83(1) is intended to be an integral part of the petition
under section 81 and failure to comply with the requirement of disclosing the
source of information renders the petition liable to summary dismissal under
section 8(1) of the R.P. Act. Reliance was placed on Jadav Gilua v. Suraj Narain
Jha, AIR 1974 Patna 207; M/s Sunder Industries Ltd. v. G.E. Works, AIR 1982
Delhi 220; K.K. Ramachandran, AIR 1988 Kerala 259; Kamalam v. Dr. syed Mohamad,
[1978] 3 SCR 446 and M/s Sukhwinder Pal v. State of Punjab, [1982] 1 SCC 31,
which support this view.
In the
case of Murarka Radhey Shyam, (supra) two election petitions were filed
challenging his election to the House of the People. In those two petitions
certain preliminary objections were raised touching on the maintainability of
the petitions on the ground that there was failure to comply with the mandatory
requirements of the R.P. Act. One of the preliminary objections with which we
are presently concerned was non-compliance with section 83 inasmuch as the
affidavit in respect of corrupt practices which accompanied the petition was
neither properly made nor in the prescribed form. The further submission was that
an election petition under section 81 must comply with the requirements of
section 83 for otherwise it cannot be rightly described as an election petition
under section 81 of the R.P. Act. This Court referred to the observation of the
Election Tribunal, which reads as under:
"The
verification of the affidavit of the petitioner is apparently not in the
prescribed form but reading as a whole the verification carries the same sense
as intended by the words mentioned in the prescribed form. The mistake of the
Oaths Commissioner in verifying the affidavit cannot be a sufficient ground for
dismissal of the petitioner's petition summarily, as the provisions of s. 83
are not necessarily to be complied with in order to make a petition valid and
such 779 affidavit can be allowed to be filed at a later stage also." and
expressed its agreement therewith. It also held that the defect in the time and
place of verification cannot be a fatal defect and can be remedied.
In Virendra
Kumar Saklecha v. Jagjiwan and Others, [1972] SCR 955 Rule 7 of the M.P. High
Court Rules Provided that every affidavit should cleraly express how much is a
statement and declaration from knowledge and how much is based on information
or belief and must also state the source of information or belief. This Court
held that the requirements of Form 25 were not consistent with Rule 7 which
purported to give effect of Order 19 of the Code. In that case the affidavit
accompanying the petition did not disclose the source of information in respect
of certain speeches alleged to have been made by the appellant which
constituted corrupt practice nor were the notes thereof allegedly made by
certain persons therewith. This Court while stating that it was not necessary
to express any opinion on the question whether the non-disclosure of the source
or ground of information in the affidavit can prove fatal, nevertheless
observed that the grounds or sources of information are required to be stated
since section 83 states that an election petition shall be verified in the
manner laid down by the Code and affidavit was, therefore, required to be modelled
as required by Order 19 of the Code.
This
decision is not an authority for the proposition that failure to disclose the
source or ground of information would result in dismissal of the petition under
section 86(1) of the R.P. Act.
In Krishan
Chand v. Ram Lal, [1973] 2 SCC 759 the appellant, a voter questioned Ram Lal's
election on the allegation that he, his election agent and some others with his
consent, had committed various acts of corrupt practices detailed in paragraphs
11 and 12 of the petition. The petition was verified by the appellant and was
accompanied by an affidavit wherein he stated that paragaphs 11 12 were based
on information received and believed to be true. The respondent raised a
preliminary objection that the petition was liable to be dismissed for
non-compliance with the provisions of the R.P. Act read with the Code as the
sources of information were not disclosed. In support of this contention
reliance was placed on the decisions rendered under Order 6 Rule 15 and Order
19 Rule 2 of the Code.
Dealing
with this submission, this Court observed in paragraph 6 of the judgment as
under:
780
"At the outset it may be stated that the provision for setting out the
sources of information where the allegations have been verified as having been
made on information and knowledge of the petitioner is not a requisite
prescribed under Rule 94-A of the Conduct of Election Rules, 1961, which are
applicable to the filing of an election petition.
Under
sub-section (1) of Section 83 an election petition has to contain a concise
statement of the material facts on which the petitioner relies; it has to set
forth full particulars of any corrupt practice that the petitioner alleges,
including as full a statement as possible of the names of the parties alleged
to have committed such corrupt practice and the date and place of the
commission of each such practice and shall be signed by the petitioner and
verified in the manner laid down in the Code of Civil Procedure, 1908, for the
verification of the pleadings, provided that where the petitioner alleges any
corrupt practice, the petition shall also be accompanied by an affidavit in the
prescribed form in support of the allegation of such corrupt practice and the
particulars thereof." Setting out Form 25 prescribed under Rule 94A, this
Court proceeded to further observe:
"There
is nothing in this form which requires the petitioner to state under clause (b)
of Form 25 the source or sources of his information. The appellant has referred
us to Order XI, Rule 13 of the Supreme Court Rules as also to Rule 1(A) of the
Punjab High Court Rules, in which when the deponent in the affidavit filed in
support of the petition states that he has made the allegations in the
paragraph or paragraphs specified on information, he is required also to
disclose the sources of information. But when there are specific rules made
under the Act which govern the election petitions, no other rules are applicable.
Nor is
the disclosure of the source of information a requisite under Order VI, Rule
15(2) C.P.C. On this ground alone the submission of the appellant can be
rejected." Thus this Court came to the conclusion that the election
petition under section 83(1)(b) must itself contain all the necessary material
facts and in the affidavit in support the petitioner is required to say which
of the allegations are based on personal knowledge and which are based on 781
information received and believed to be true. If the source of information has
not been set out and the opposite party finds it difficult to answer the
allegations regarding corrupt practice, he can always apply for better
particulars. In other words the failure to disclose or divulge the source of
information was not considered fatal to the petition. This Court, therefore,
concluded that the election petition did not suffer from any defect on that
score.
Similar
was the view taken by this Court in Z. B. Bukhari v. Brij Mohan, [1975] Suppl.
SCR 281 while dealing with the contention that the affidavit in support of the
election petition founded on allegations of corrupt practice falling under
sub-section (3) and (3A) of section 123 was not in proper form. Repelling this
contention the Court held that a petition can only be dismissed for a
substantial defect. In taking this view reliance was placed on Prabhu Narayan
v. A.K. Srivastava, [1975] 3 SCR 552 wherein this Court had negatived the
contention that failure to disclose the sources of information would render the
affidavit defective.
However,
strong reliance was placed on this Court's decision in Kamalam v. Dr. Syed Mohamad,
[1978] 3 SCR 446.
In
that case the respondent's election to the Lok Sabha was challenged alleging
corrupt practice. The election petition was duly signed and verified by the
appellant and was accompanied by the requisite affidavit in support of the
allegations of corrupt practice and their particulars. The election petition
and the affidavit were tied together as on document. The appellant's signature
appeared at the foot of the affidavit but there was no such signature at the
foot of the election petition itself. In this backdrop of facts this Court held
that both the election petition and the affidavit constituted one single
document. This Court after referring to section 81(3), 83 and 86(1) observed as
under:
"The
context in which the proviso occurs clearly suggests that the affidavit is
intended to be regarded as part of the election petition.
Otherwise,
it need not have been introduced in a section dealing with contents of an
election petition nor figured as a proviso to a sub-section which lays down
what shall be the contents of an election petition. Sub-section (2) also by
analogy supports this inference. It provides that any schedule or annexure to
an election petition shall be signed by the petitioner and verified in the same
manner as an election petition. It is now established by the decision of this
Court in Sahodrabai Rai v. Ram 782 Singh Aharwar, [1968] 3 SCR 13 that
sub-section (2) applied only to a schedule or annexure which is an integral
part of the election petition and not to a schedule or annexure which is merely
evidence in the case but which is annexed to the election petition merely for
the sake of adding strength to it." After quoting from the decision in Sahodrabai's
case at pages 19-20, this Court proceeded to state:
"It
would, therefore, be seen that if a schedule or annexure is an integral part of
the election petition, it must be signed by the petitioner and verified, since
it forms part of the election petition. The subject-matter of sub-section (2)
is thus a schedule or annexure forming part of the election petition and hence
it is placed in section 83 which deals with contents of an election petition.
Similarly, and for the same reasons, the affidavit referred to in the provisos
to Section 83 sub-section (1) also forms part of the election petition. The
election petition is in truth and reality reality one document consisting of
two parts, one being the election petition proper and the other being the
affidavit referred to in the proviso to section 83, sub-section (1). The copy
of the election petition required to be filed under the first part of
sub-section (3) of section 81, would, therefore, on a fair reading of that
provision along with section 83, include a copy of the affidavit." The
above observations have, however, to be read in the context on the controversy
before the Court. The dispute between the parties was limited to the fulfilment
of the last part of section 81(3), viz., the requirement that every such copy
of the election petition `shall be attested by the petitioner under his own
signature to be a true copy of the petition'. As pointed out earlier it was
found as a fact that the signature was at the foot of the affidavit tied to the
petition and not at the foot of the petition itself. The Court, therefore, came
to the conclusion that since the affidavit constituted an integral part of the
election petition, the requirement of the latter part of section 81(3) was
satisfied. The decision clearly turned on the special facts of that case.
From
the text of the relevant provisions of the R.P. Act, Rule 94A and Form 25 as
well as Order 6 Rule 15 and Order 19 Rule 3 of the 783 Code and the resume of
the case law discussed above it clearly emerges
(i) a
defect in the verification, if any, can be cured
(ii) it
is not essential that the verification clause at the foot of the petition or
the affidavit accompanying the same should disclose the grounds or sources of
information in regard to the averments or allegations which are based on
information believed to be true
(iii)
if the respondent desire better particulars in regard to such averments or
allegations, he may call for the same in which case the petitioner may be
required to supply the same and
(iv) the
defect in the affidavit in the prescribed Form 25 can be cured unless the
affidavit forms an integral art of the petition, in which case the defect
concerning material facts will have to be dealt with, subject to limitation,
under section 81(3) as indicated earlier. Similarly the Court would have to
decide in each individual case whether the schedule or annexure referred to in
section 83(2) constitutes an integral part of the election petition or not;
different considerations will follow in the case of the former as compared to
those in the case of the latter.
A
charge of corrupt practice has a two-dimensional effect; its impact on the
returned candidate has to be viewed from the point of view of the candidate's
future political and public life and from the point of view of the electorate
to ensure the purity of the election process.
There
can, therefore, be no doubt that such an allegation involving corrupt practice
must be viewed very seriously and the High Court should ensure compliance with
the requirements of section 83 before the parties go to trial.
This
is quite clear from the observations of this Court in the case of K.M. Mani v.
P.J. Anthony, [1979] 1 SCR 701.
While
defective verification or a defective affidavit may not be fatal, the High
Court should ensure its compliance before the parties go to trial so that the
party required to meet the charge is not taken by surprise at the actual trial.
It must also be realised that delay in complying with the requirements of
section 83 read with the provisions of the Code or the omission to disclose the
grounds or sources of information, though not fatal, would waken the probative
value of the evidence ultimately lead at the actual trial. Therefore, an
election petitioner can afford to overlook the requirements of section 83 on
pain of weakening the evidence that he may ultimately tender at the actual
trial of the election petition. That is because as held in Mani's case the
charge of corrupt practice has to be proved beyond reasonable doubt and not
merely by preponderance of probabilities. Allegation of corrupt practice being
quasi-criminal in nature, the failure to supply full particulars at the
earliest point of time and to disclose the source of information promptly may
have an adverse bearing on the probative value to be 784 attached to the
evidence tendered in proof thereof at the trial. Therefore, even though
ordinarily a defective verification can be cured and the failure to disclose the
grounds or sources of information may not be fatal, failure to place them on
record with promptitude may lead the court in a given case to doubt the
veracity of the evidence ultimately tendered. If, however, the affidavit or the
schedule or annexure forms an integral part of the election petition itself,
strict compliance would be insisted upon.
The
next objection is based on the language of section 81 of the R.P. Act. This
section deals with the presentation of an election petition. Sub-section (1)
thereof says that an election petition may be presented by any candidate at
such election or any elector within 45 days from, but not earlier than, the
date of the election of the returned candidate or if there are more than one
returned candidate at the election and the dates of their election are
different, the late of those dates. This sub-section specifies on what ground
or grounds the election of the returned candidate can be challenged, who can
challenge the election and imposes a period of limitation for filing sucha
petition. Sub-section (2) of this section was omitted by Act 47 of 1966. Then comes
sub-section (3) which stipulates that every election petition shall be
accompanied by as many copies thereof as there are respondents mentioned in the
petition, and every such copy shall be attested by the petitioner under his own
signature to be a true copy of the petition. This sub-section enjoins (i)
supply of such number of copies of the petition as are respondents and (ii)
every such copy must be attested by the petitioner under his own signature to
be a true copy of the petition. There is no controversy regarding the first
aspect, the controversy centres round the second part. It must the remembered
that non-compliance with the requirement of sub-section (1) or (3) of section
81 can prove fatal in view of section 86(1) of the R.P. Act. See Satya Narain
v. Dhuja Ram, [1974] 4 SCC 237; M. Karunanidhi v. Dr. H.V. Hande, [1983] 2 SCC
473;
Mithilesh
Kumar Pandey V. Baidyanath Yadav, [1984] 2 SCR 278; Rajender Singh v. Usha Rani,
[1984] 3 SCC 339 and U.S. Sasidharan v. K. Karunakaran,
[1989] 4 SCC 482. It is quite obvious from these decisions that the
requirements of section 81(3) are mandatory and failure to comply with them
would render the petition liable to summary dismissal under section 86(1) of
the R.P. Act.
The
objection raised in the context of section 81 is that the election petition in
every case is a mere photocopy prepared from a typed one and the copy of the
election petition served on the returned candi- 785 date in each case was not
duly attested to be a true copy of the original as required by section 81(3)
and hence the petition was liable to be dismissed in limine under section 86(1)
of the R.P. Act. Section 81(1) does not debar photo copying but Rule 1 of the
Rules says that is shall be "type- written or printed". There is not
dispute that a model election petition was prepared and got typed and prints
thereof were taken out by the process of photocopying.
These
prints were used both as original election petitions as well as copies. The
particulars in regard to each petition, e.g., the names of the parties, the
voting pattern, the towns and villages where utterances amounting to corrupt
practice were made, etc., were filled in and the court fee was fixed on one of
them which constituted the original and photocopies thereof were filed before
the Stamp Reporter in accordance with the Rules. The photocopy bearing the
court fee stamps was indisputably signed by the election petitioner and was
presented with sufficient copies to the Stamp Reporter. The original election
petition is, therefore, a photocopy of the typed model and the copies are also
photocopies prepared from the original petition.
Evidently
the underlying idea in providing that the election petition shall be
type-written or printed is to ensure that the document is legible. There is no
complaint that the document which is admitted as an election petition and the
copies thereof are not legible. It that be so it is difficult to appreciate the
objection that the photocopy should not be treated as an original petition even
if it otherwise complies with the requirement of law. The High Court was,
therefore, justified in treating the same as the original election petition.
The
next objection raised by the appellants is that the copy of the petition served
on each one of them is not attested to be a true copy of the original petition
as required by section 81(3) of the R.P. Act and Rule 1 of the Rules. Each copy
is attested as `certified true copy' and the petitioner has put his signature thereunder.
This, contend the appellants, is not in conformity with section 81(3) and,
therefore, it is obvious that the mandatory requirement of section 81(3) read
with section 86(1) is not satisfied. On a plain reading of section 81(3) it
become clear that the requirement of that provision is (i) the election
petition should be accompanied by as many copies thereof as there are
respondents mentioned in the petition and (ii) every such copy shall be
attested by the petitioner under his own signature to be a true copy of the
petition.
There
is no dispute in regard to the compliance of the first part. So far as the
second part is concerned, all that the section requires is that the copy should
be attested by the petitioner to be a true copy of the petition under his own
signature. The requirement of this part of the provision is met by each copy
having been signed at the 786 foot thereof by the concerned petitioner. What is
essential is that the petitioner must take the responsibility of the copy being
a true copy of the original petition and sign in token thereof. No particular
form of attestation is prescribed; all that the sub-section enjoins is that the
petitioner must attest the copy under his own signature to be a true copy of
the petition. By certifying the same as true copy and by putting his signature
at the foot thereof, the petitioner of each election petition had clearly
complied with the letter and spirit of section 81(3) of the R.P. Act. In fact
in Ch. Subba Rao v. Member. E.T.
Hyderabad,
[1969] 6 SCR 213 which was followed in Kamalam's case (supra) this Court had
accepted the mere signature without the words like true copy, sufficient
attestation under section 81(3) of the R.P. Act. We are, therefore, in
agreement with the finding recorded in this behalf by the High Court.
The
next grievance of the appellants is that they were not served with a true copy
of the election petition inasmuch as the annexures served therewith were not
true copies of the original. Section 83(2) lays down that any schedule or
annexure to the petition shall be signed by the petitioner and verified in the
same manner as a petition.
The
grievance under this head is not that there is no compliance with section 83(2)
but that the annexure which was an integral part of the election petition was
not a true copy of the original, inasmuch as certain pages found in the
annexure produced with the petition were missing from the copies supplied to
the returned candidates/appellants. It was strongly submitted that an annexure
which is an integral part of the election petition is an important and vital
document and failure to supply a true copy thereof clearly violates the
mandatory requirement of section 81(3) and renders the petition liable to be
dismissed by virtue of section 86(1) of the R.P. Act. As held in Sahodrabai'
case (supra) where details of averments too compendious for inclusion in the
petition are included inthe schedule or annexure, the schedule or annexure in
that case must be treated as integrated with the election petition and must
comply with the requirement of Section 83(2) and section 81(3) failing which
the provision of section 86(1) would stand attracted. But this does not apply
to a schedule or annexure which produces a document as evidence in support of
the allegation in the election petition. Such a schedule or annexure cannot be
described as integrated with the election petition and defect in verification
thereof would not prove fatal. In Sasidharan's case (supra) the same principle
has been reiterted. In the case the election petitioner referred to a video
cassette showing progress of the constituency which also contained speeches of
government servants. A copy 787 of the document was not served on the opposite
party alongwith the election petition. It was held that the said document
formed part of the election petition and failure to supply a copy thereof along
with the election petition was fatal. If a document does not form an integral
part of the election petition but is merely referred to in the petition of
filed in the proceedings as evidence of any fact, failure to supply a
copy-thereof will not prove fatal. Therefore, the maintainability of an
election petition, in the context of the point on hand will depend on whether
the schedule or annexure to the petition constitutes an integral part of the
election petition or not. If it constitutes an integral part it must satisfy
the requirements of section 81(3) and failure in that behalf would be fatal.
But if it does not constitute an integral part of the election petition, a copy
thereof need not be served along with the petition to the opposite party. Much
would, therefore, depend on whether the schedule or annexure was an integral
part of the election petition or not; if the former, failure to serve it along
with the petition to the returned candidate would be fatal but not so in the
latter case. The appellants contend that it was an integral part of the
election petition but the High Court didnt not go into this question; it solely
relied on the Stamp Reporter's report. It then emphasised that no defect was
noticed by the Stamp Reporter in the following words:
"The
stamp reporter, in the instant case, found the copies in order and made his
endorsement accordingly. I do not find any reason not to rely upon the
endorsement of the stamp reporter." Therefore, the criticism that the High
Court which was duty bound to apply its mind and decide the question judicially
had abdicated in favour of the Stamp Reporter's decision extracted earlier. We
are afraid this criticism is not wholly correct because the High Court has also
observed that `no specific omission or deviation in the copy from the original
was pointed out' nor was it shown that the respondents were misled on that
account. We have also closely scrutinised the application made by the returned
candidate in the High Court and except for a general allegation that the
annexure served along with the petition was not a true copy, no specific
allegation is found.
However,
in the special leave petition filed in this Court question No. (vi) states that
certain pages were missing from the copy of the annexure served on the returned
candidate. Then in paragraph 11 it is averred that pages 15 and 16 of Annexure
II were missing. Since no such specific allegation was made in the application
filed by the returned candidate, the High Court had no occasion to go into this
allegation and to ascer- 788 tain if the missing pages contained material
forming an integral part of the election petition. We would not like to embark
upon an inquiry in this behalf and would leave it to the appellants to agitate
the question before the High Court. We would request the High Court to examine
the contention on merits, if raised, and answer the same in accordance with
law.
Although
we have come to the conclusion that the defect in verification is not fatal and
can be cured, no attempt has been made by the election petitioners to cure the
same nor has the High Court directed the petitioners to do so.
By way
of a sample our attention was drawn to the election petition No. 7 of 1989
which has given rise to Civil Appeal No. 179 of 1991. The said petition had 47
paragraphs besides the prayer clause. The verification clause shows that
paragraphs 1, 2, 4, 5, 18, 19, 28, 35, 30, 33, 36, 38, 41 to 47 of the election
petition are on knowledge whereas paragraphs 7 to 15, 20, to 24 , 26, 27, 29,
32, 34, 37, 40 and 41 are on information received and believed to be true.
It
will be seen from the above that paragraphs 3, 6, 16, 17, 25, 31 and 39 are not
verified at all. It was submitted by counsel for the appellants that paragraph
3 contained vital allegations regarding corrupt practice and since that
paragraph has not been verified at all, the appellant is likely to be
handicapped at the trial. It was contended that such was the position in as
many as six petitions if not more. Further some of the paragraphs, e.g., 41 are
verified under both heads of the verification clause, thereby causing
confusion. In the affidavit sworn in compliance of the proviso to section 83(1)
it is stated that particulars and details of corrupt practice are contained in
paragraphs 4 to 40 of the election petition. Then the petitioner states that
what he has alleged by way of corrupt practice in the election petition is
correct `to the best of my knowledge and to the information received by e and
believed by me to be true'. It is thus not clear which allegation of corrupt
practice is based on his knowledge and which information he believes to be
true. Besides when this affirmation is compared with the verification clause of
the election petition, the confusion is worst confounded.
Similar
is the case with the verification of the annexures.
There,
therefore, considerable force in the submission of the learned counsel for the
appellants that even if the High Court concluded that the defect in
verification/affirmation was not fatal, the High Court ought to have directed
the petitioners to cure the defects within the time stipulated by it so that the
appellants would know the exact position before the trial and would not be
taken by surprise. We think the High Court committed an error in failing to
give appropriate directions in the matter. More or less similar defects are 789
also found in the verification/affirmation clause in the other election
petitions/affidavits. We would, therefore, request the High Court to issue
directions to the election petitioner of each petition to remove the defects
within such time as it may allow and if they or any of them fail to do so, pass
appropriate consequential orders in accordance with law.
The
High Court has applied the correct test while permitting the amendments. The
High Court has rightly pointed out that the power conferred by section 86(5)
cannot be exercised to allow and amendment which will have the effect of
introducing a corrupt practice not previously alleged in the petition. If it is
found that the proposed amendments are not in the nature of supplying
particulars but raise new grounds, the same must be rejected but if the
amendments are sought for removing vagueness by confining the allegations to
the returned candidate only such an amendment would fall within the parameters
of section 86(5) of the R.P. Act. It was on this correct understanding of the
legal position that the High Court scrutinised the amendment application. It
was not shown at the hearing of these appeals that any particular averment
introduced by way of an amendment had the effect of introducing a totally new
allegation of corrupt practice not previously pleaded in the election
petitions. Yet, if the appellants can point out any inconsistency, the High
Court will remove the same.
These
were all the submissions made before us. We have dealt with them in extenso and
have clarified the legal position. We have suggested certain modifications in
the impugned orders and have indicated the course of action to be adopted by
the High Court. We need not recapitulate the modifications and the future
course of action. The impugned order of the High Court in each petition will
stand modified to the extent it is inconsistent with the legal position
explained hereinabove. The High Court will pass appropriate orders to remove
the inconsistencies. The appeals will stand allowed only to the extent of the
modifications/directions made by this order with no order as to cost in each
election petition.
V.P.R.
Appeals partly allowed.
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