P.A. Mohammed Riyas Vs.
M.K. Raghavan & Ors.
[Civil Appeal No.
10262 of 2010]
J U D G M E N T
ALTAMAS KABIR, J.
1.
The
appellant herein, who contested the parliamentary elections held on 16th April,
2009 for the No.05 – Kozhikode Constituency of the Lok Sabha, challenged the
election of the Respondent, Shri M.K. Raghavan, who was the returned candidate from
the said constituency, by way of an Election Petition filed under Section 81
read with Sections 100, 101 and123 of the Representation of the People Act,
1951, hereinafter referred to as the “1951 Act”. The Appellant contested the election
as the official candidate of the Communist Party of India (Marxist), hereinafter
referred to as the “CPI(M)” led by the Left Democratic Front, hereinafter referred
to as the “LDF”, whereas the Respondent No.1 was a candidate of the Indian National
Congress and he contested the election as the candidate of the United
Democratic Front, hereinafter referred to as the “UDF”.
2.
The
ground on which the election of the Respondent No.1 was challenged was that he
had published false statements with regard to the Appellant and thereby
committed corrupt practice within the meaning of Section 123(4) of the 1951
Act, which provides that the publication by a candidate or his agent or by any other
person with the consent of a candidate or his election agent, of any statement
of fact which is false in relation to the personal character, conduct of any candidate,
shall be deemed to be guilty of corrupt practice within the meaning of Section 123
of the 1951 Act. The details of the publications have been set out in paragraph
4 of the impugned judgment and are as follows : “”A. “Corrupt practice” by the publication
of allegedly false statements in the form of –
1. Annexure A
(“Jagratha” (“Be careful”) Newsletter bearing no date) allegedly published on
14-4-2009 and distributed on 15-4-2009
2. Annexure H (Anonymous
notice allegedly published on 14-4-2009 and 15-4-2009
3. Annexure K (Report in
the Mathrubhumi daily dated 31-3-2009 of the speech of M.P. Veerendra Kumar
4. Annexure L Hand Bill
dated 11-4-2009 allegedly distributed on 14- 4-2009
5. Annexure M Wall
poster allegedly published on 14-4-2009 & 15-4- 2009
6. Annexure N Wall
poster -do- -do- AND B. Fielding of other candidates having similarity in names.
3.
The
highlights of the six publications have also been shown in atabular chart in paragraph
5 of the impugned judgment and speak forthemselves.
4.
During
the hearing of the petition, a question was raised with regard to the
maintainability of the petition for want of a complete cause of action. After
considering the submissions made on such ground, the High Court accepted the
objection taken with regard to the maintainability of the Election Petition and
dismissed the same.
5.
Appearing
for the Appellant, Mr. Krishnan Venugopal, learned Senior Advocate, submitted
that the learned Single Judge of the High Court had dismissed the Election
Petition on two grounds
i.
The
Election Petition did not make out a complete cause of action in so far as it
did not contain averments regarding the knowledge of the Respondent No.1 about
the falsity of the statements in relation to each of the publications; and
ii.
The
false statements did not relate to the personal character or candidature of the
candidate within the meaning of false statements in section 123(4) of the Act.
6.
On
behalf of the Respondent No.1, a preliminary objection was raised at the time
of hearing that the Election Petition was incomplete and was liable to be
dismissed as it did not contain the requisite affidavit in Form 25, as required
under the proviso to Section 83(1) of the 1951 Act read with Rule 94A of the
Conduct of Election Rules, 1961. Mr. Venugopal contended that the trial of an Election
Petition was a quasi-criminal proceeding which entailed that the statutory
requirements for an Election Petition had to be strictly construed. Of course,
it is also necessary to protect the purity and sobriety of elections by ensuring
that the candidates did not secure vote by undue influence, fraud, communal propaganda,
bribery or other corrupt practices, as mentioned in the 1951Act. Mr. Venugopal
submitted that the importance of Section 123(4) of the above Act lies in the
fact that voters should not be misled at the time of casting of their votes by a
vicious and defamatory campaign against candidates. Mr. Venugopal submitted
that the common refrain in all these various decisions is that while the
requirements of the election laws are strictly followed, at the same time, the
purity of the election process had to be maintained at all costs.
7.
In
addition to the above, Mr. Venugopal urged that the argument which had not been
advanced earlier and had been orally raised for the first time before this
Court, should not be taken into consideration. The preliminary objection taken
at the time of final hearing that the Election Petition was not supported by an
affidavit in Form 25, ought not to have been taken by the Respondent No.1
either in his Written Statement or in the Additional Written Statement filed in
the High Court, or even in the reply to the Election Appeal before this Court.
Accordingly, such an objection
ought not to have been entertained and is liable to be ignored. Apart from the above,
the learned Single Judge had already taken the Appellant’s affidavit on record
on 15th December, 2009, wherein it was expressly noted that the Respondent No.1
did not oppose the same being taken on record.
Mr. Venugopal
submitted that once the affidavit had been taken on record, it was no longer
open to the Respondent No.1 to contend that the Election Petition was defective
on the ground of absence of affidavit in support thereof. Mr. Venugopal
submitted that the affidavit was in substantial compliance with the
requirements of Order VI Rule 15(4) read with Order XIX of the Code of Civil
Procedure, 1908, hereinafter referred to as “CPC” ,and with Form 25 appended to
the Conduct of Election Rules, 1961.
8.
Mr.
Venugopal urged that an Election Petition could not be dismissed in limine on
the ground of non-compliance with the requirements of Section83(1) thereof. It
was also pointed out that Section 86(1) of the Act requires dismissal of an
Election Petition only when it did not satisfy the requirements of Sections 81,
92 and 117. Section 83 has not been included in the said provision. Mr. Venugopal
submitted that this Court has repeatedly held that non-compliance of Section 83(1),
which includes the requirement of verification under Section 83(1)(c), is a “curable”
defect. In support of the said proposition,
Mr. Venugopal
referred to the decisions of this Court in (i) Murarka Radhey Shyam Ram Kumar
Vs. Roop Singh Rathore& Others [AIR 1964 SC 1545]; (ii) F.A. Sapa & Ors.
Vs. Singora & Ors.[(1991) 3 SCC 375]; (iii) Sardar Harcharan Singh Brar Vs.
Sukh DarshanSingh & Ors. [(2004) 11 SCC 196] and K.K. Ramachandran Master Vs.
M.V. Sreyamakumar & Ors. [(2010) 7 SCC 428]. Mr. Venugopal submitted that the
submission made on behalf of the Respondent No.1 that an affidavit in Form 25
is an integral part of an Election Petition has been considered and rejected by
a Bench of three learned Judges of this Court in F.A. Sapa’s case (supra). Learned
counsel submitted that as a general proposition, this Court has held that the
affidavit of an Election Petition is not an integral part of a petition.
9.
Mr.
Venugopal next urged that it had been contended on behalf of the Respondent
No.1 that the Election Petitioner/Appellant had filed only one affidavit under
Order VI Rule 15(4) of the CPC and had not filed a separate and second
affidavit in Form 25, as provided under Section 94A of the Conduct of Election
Rules, 1961, which is also required to be filed under the proviso to Section
83(1) of the Act in support of an allegation of a corrupt practice. Referring to
the provisions of Section 83(1)(c) of the1951 Act and Order VI Rule 15(4) CPC,
Mr. Venugopal drew our attention to the Proviso to Section 83(1) which states
that where the petitioner alleges a corrupt practice, the Election Petition
shall “also be accompanied by an affidavit in the prescribed form”.
Learned counsel submitted
that two affidavits would be necessary only where an Election Petitioner wanted
the election to be set aside both on grounds of commission of one or more corrupt
practices under Section 100(1)(b) of the Act and other grounds asset out in
Section 100(1). In such a case, two affidavits could possibly be required, one
under Order VI Rule 15(4) CPC and another in Form 25.However, even in such a case,
a single affidavit that satisfies the requirements of both the provisions could
be filed.
In any event, when the
Election Petition was based entirely on allegations of corrupt practices, filing
of two affidavits over the self-same matter would render one of the motiose,
which proposition was found acceptable by the Karnataka High Court in Prasanna
Kumar Vs. G.M. Siddeshwar [AIR 2010 Karnataka 113]. Learned counsel urged that
even non-mentioning and wrong mentioning of a provision in an application is
not a ground to reject the application.
10.
Mr.
Venugopal submitted that the object of the affidavit under the Proviso to
Section 83(1) is to fix responsibility with a person making the allegations. Referring
to the decision of this Court in the case of F.A. Sapa (supra), Mr. Venugopal
pointed out that this Court had held that while there is sufficient
justification for the law to be harsh who indulged in such practices, there is
also the need to ensure that such allegations are made with the sense of
responsibility and concern and not merely to vex there turned candidate.
11.
Mr.
Venugopal also urged that it has been held by this Court in V. Narayanaswamy
Vs. C.P. Thirunavukkarasu [(2000) 2 SCC 294], that a petition levelling a
charge of corrupt practice is required by law to be supported by an affidavit
and the Election Petitioner is obliged to disclose his source of information in
respect of the commission of the corrupt practice. He has to indicate that which
of the allegations were true to his knowledge and which to his belief on
information received and believed by him to be true.
It was further
observed that it was not the form of the affidavit but the substance that
matters. Mr. Venugopal submitted that in the instant case, contrary to what had
been argued on behalf of the Respondent No.1, read as a whole, the affidavit is
in substantial compliance with the requirements of Form 25 because it clearly specifies
the source of information, personal knowledge as well as the names of the person
from whom information was received by the Appellant in respect of each of the
paragraphs and schedules annexed to the Election Petition.
12.
On
the question of finding of learned Single Judge that the Election Petitioner
failed to state that a complete cause of action was incorrect, since the
information sought for was available in different parts of the Election
Petition. Mr. Venugopal submitted that the law laid down by this Court is that
pleadings should not be read in isolation but must be read as a whole and
construed reasonably to determine whether they did state a cause of action.
Learned counsel
submitted that it is now well-settled that material particulars, as opposed to
material facts, need not be setout in the Election Petition and may be supplied
at a later date. In thisregard, learned counsel referred to the decision of
this Court in Ashwani Kumar Sharma Vs. Yaduvansh Singh & Ors. [(1998) 1 SCC
416], and certain other decisions which only served to multiply the decisions
rendered on the said subject.
Further submission
was made that a “clumsy drafting” of an Election Petition should not result in its
dismissal so long as thepetition could make out a charge of a head of corrupt
practice when it is read as a whole and construed reasonably, as was observed in
the case of Raj Narain Vs. Indira Nehru Gandhi & Anr. [(1972) 3 SCC 850].
13.
Mr.
Venugopal submitted that in the present Election Appeal the requirements of a
proper pleading have been fully met but the learned Single Judge failed to
appreciate that there is just one single head of corrupt practice alleged under
Section 123(4) of the 1951 Act, relating to the publication of false statements
about the personal character and candidature of the Appellant that were calculated
to prejudice his election.
Learned counsel
submitted that the onus of proving a particular ingredient of Section 123(4) of
the 1951 Act was not very onerous, since the Appellant is only required to
plead and prove that the statements made by the Respondent No.1 or his election
agent or any person acting with the consent of either the Respondent No.1 or
his agent are false.
Once such statement is
made on oath, the onus shifts to Respondent No.1 to demonstrate that he was not
aware that the statements were not false. Various decisions were cited in support
of such submission, to which reference may be made, if required, at the later stage
of the judgment. The learned counsel submitted that the learned Single Judge had
erred in concluding that the allegations in various publications were not against
the personal character or candidature of the Appellant. It was submitted that
the statement published in the newspapers was certainly sufficient to effect
the private or personal character of the candidate. Mr. Venugopal submitted
that the order of the Hon’ble High Court was required to be set aside with the
direction to expedite the appeal of the Election Petitioner and to render its
verdict at an early date.
14.
The
submissions of Mr. P.P. Rao, learned Senior Advocate, appearing for the
Respondent No.1, were on expected lines. Mr. Rao reiterated the submissions
which have been made before the High Court that the Proviso to Section 83(1)(c)
of the 1951 Act, requires a separate affidavit to be filed in Form 25 in
support of each allegation of corrupt practice made in the Election Petition. Mr.
Rao submitted that in the instant case, no such affidavit had been filed at
all. He also urged that it was settled law that the affidavit required to be filed,
by the Proviso to Section 83(1)(c), is an integral part of the Election
Petition and in the absence thereof, such petition did not disclose a cause of action
and could not, therefore, be regarded as an Election Petition, as contemplated under
Section 81 of the aforesaid Act.
Mr. Rao urged that
the Election Petition filed by the Appellant was, therefore, liable to be
dismissed under Section 86(1) of the 1951 Act read with Order VII Rule 11(a) CPC.
Reference was made to the decision of this Court in M. Kamalam Vs. Dr. V.A.
Syed Mohammed[(1978) 2 SCC 659], in which this Court had held that if the Election
Petition did not comply with Section 81 of the 1951 Act, the High Court was required
to dismiss the same under Section 86(1) thereof. Learned counsel then referred
to the decision of this Court rendered in R.P. Moidutty Vs. P.T. Kunju Mohammad
& Anr. [(2000) 1 SCC 481], wherein also the provision of verification of an
election petition fell for consideration and it was held that for non-compliance
with the requirements of the Proviso to Section 83(1) of the 1951 Act and Form 25
appended to the Rules, the election petition was liable to be dismissed at the
threshold.
It was also held that
the defect in verification was curable, but failure to cure the defects would
be fatal. It was further held that the object of requiring verification of an
election petition is to clearly 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.
15.
In
regard to his aforesaid submission that the Election Petition must disclose the
cause of action and that in respect of allegations in relation to corrupt
practice, the same had to be supported by affidavit disclosing source of
information and stating that the allegations are true to the petitioner’s
knowledge and belief by him to be true, Mr. Rao also referred to two other
decisions of this Court in : (i) V. Narayanaswamy Vs. C.P. Thirunavukkarasu
[(2000) 2 SCC 294] and (ii) Ravinder Singh Vs. Janmeja Singh & Ors. [(2000)
8 SCC 191].
16.
Mr.
Rao contended that Section 83(1)(c) of the above Act requires the Election
Petition to be signed by the petitioner and verified in the manner specified in
the CPC for the verification of pleadings. Referring to Order VI Rule 15 of the
Code, Mr. Rao submitted that Sub-Rule (4) requires that the person verifying the
pleading shall also furnish an affidavit in support of his pleadings, which was
a requirement independent of the requirement of a separate affidavit with
respect to each corrupt practice alleged, as mandated by the Proviso to Section
83(1)(c) of the above Act.
Mr. Rao submitted
that in the body of the Election Petition, there is no averment that the
Respondent No.1 believed the statements made in the publications to be false
and did not believe them to be true, which, Mr. Rao submitted, was an essential
ingredient of the corrupt practice alleged under Section 123(4) of the 1951
Act. Mr. Rao, however, admitted that in ground A of the Election Petition there
is a submission based on the advice of the petitioner’s counsel as per the
verification made in the affidavit filed under Order VI Rule 15(4) CPC, which
stands incorporated in Section83(1)(c) of the 1951 Act by reference. According
to Mr. Rao, there was no factual foundation laid for the alleged corrupt
practice and the Election Petition was, therefore, liable to be dismissed.
17.
Learned
senior counsel further contended that omission to state a single material fact
would lead to an incomplete cause of action and an Election Petition without material
facts relating to a corrupt practice was not an Election Petition at all and such
omission would amount to non-compliance of the mandate of Section 83(1)(a) of the
above Act, which rendered the Election Petition ineffective.
Beginning with the decision
of this Court in Hardwari Lal Vs. Kanwal Singh [(1972) 1 SCC 214], Mr. Rao also
referred to various other decisions on the same lines, including that of Azhar
Hussain Vs. Rajiv Gandhi [1986 Supp SCC 315], which had relied on the decision
in Samant N. Balkrishna & Anr. Vs. George Fernandez & Ors.[(1969) 3 SCC
238], Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi [(1987)Supp SCC 93] and
Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar[(2009) 9 SCC 310], to
which reference may be made, if required, at a laterstage.
18.
Mr.
Rao also urged that no corrupt practice could be made out in terms of Section
123(4) of the 1951 Act, if the allegations did not relate to the personal character,
conduct or candidature of the concerned candidate and in support thereof, he
relied on the decision of this Court in the case of Dev Kanta Barooah Vs. Golok
Chandra Baruah & Ors. [(1970) 1SCC 392] and several other cases, to which
reference, if required, may be made at a later stage.
19.
Attempting
to distinguish the decisions cited by Mr. Venugopal, Mr. Rao submitted that all
the said case laws were distinguishable on facts and had no application to the
facts of the present case. In fact, Mr. Rao submitted that in F.A. Sapa’s case
(supra), it has been clearly indicated that the petition which did not strictly
comply with the requirements of Section 83 of the 1951 Act, could not be said
to be an Election Petition in contemplation of Section 81 and attract dismissal
under Section 86(1) of the said Act.
20.
Mr.
Rao submitted that the Appellant had not been able to refute the findings of fact
recorded by the High Court, which had elaborately considered the decisions of
this Court and correctly applied to the facts of the present case. Mr. Rao
submitted that the present appeal has no merit and is liable to be dismissed
with costs.
21.
Although,
during the hearing of the Petition, a question was raised regarding the
maintainability of the Petition for want of a complete cause of action and the
same was accepted by the High Court which dismissed the Election Petition, the
learned Single Judge of the High Court took the view that the Election Petition
did not make out a complete cause of action as it was not in conformity with
Form 25 annexed to the Rules.
22.
This
brings us to the next question that in order to protect the purity of elections
in the manner indicated, it was the duty of the State to ensure that the
candidates in the elections did not secure votes either by way of an undue
influence, fraud, communal propaganda, bribe or other types of corrupt
practices, as specified in the 1951 Act.
23.
The
provisions of Chapter II of the 1951 Act relate to the presentation of election
petitions to the High Court and Section 83 which forms part of Chapter II deals
with the contents of the Election Petition to be filed. For the purpose of reference,
Section 83 is extracted herein below :- 83. Contents of petition.
I.
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 names of the parties alleged to have
committed 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.
II.
Any
schedule or annexure to the petition shall also be signed by the petitioner and
verified in the same manner as the petition. As will be seen from the Section
itself, the Election Petitioner is required to set forth full particulars of any
corrupt practice that he alleges and the names of the parties involved therein and
it further provides that the same is to be signed by the Petitioner and verified
in the manner laid down in the Code of Civil Procedure for the verification of proceedings.
What is important is the proviso which makes it clear that where the Election
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 and the schedule or annexures to
the Petition shall also be signed by the Petitioner and verified in the same manner
as the Petition. In other words, when corrupt practices are alleged in an
Election Petition, the source of such allegations has to be disclosed and the
same has to be supported by an affidavit in support thereof.
24.
In
the present case, although allegations as to corrupt practices alleged to have
been employed by the Respondent had been mentioned in the body of the Petition,
the Petition itself had not been verified in the manner specified in Order VI
Rule 15 of the Code of Civil Procedure. Sub-Section (4) of Section 123 of the
1951 Act defines “corrupt practice” and the publication of various statements
against the Respondent which were not supported by affidavit, could not, therefore,
have been taken into consideration by the High Court while considering the Election
Petition.
In the absence of
proper verification, it has to be accepted that the Election Petition was
incomplete as it did not contain a complete cause ofaction.25. Of course, it
has been submitted and accepted that the defect was curable and such a
proposition has been upheld in the various cases cited by Mr. Venugopal,
beginning with the decision in Murarka Radhey Shyam RamKumar’s case (supra) and
subsequently followed in F.A. Sapa’s case (supra), Sardar Harcharan Singh
Brar’s case (supra) and K.K. Ramachandran Master’s case (supra), referred to
hereinbefore.
In this context, we are
unable to accept Mr. Venugopal’s submission that despite the fact that the
proviso to Section 83(1) of the 1951 Act provides that where corrupt practices are
alleged, the Election Petition shall also be accompanied by an affidavit in the
prescribed form, it could not have been the intention of the legislature that
two affidavits would be required, one under Order VI Rule15(4) CPC and the
other in Form
25.
We
are also unable to accept Mr. Venugopal’s submission that even in a case where the
proviso to Section 83(1) was attracted, a single affidavit would be sufficient
to satisfy the requirements of both the provisions. Mr. Venugopal’s submission that,
in any event, since the Election Petition was based entirely on allegations of corrupt
practices, filing of two affidavits in respect of the self-same matter, would
render one of them redundant, is also not acceptable.
As far as the
decision in F.A. Sapa’s case (supra) is concerned, it has been clearly
indicated that the Petition, which did not strictly comply with the requirements
of Section 86(1) of the 1951 Act, could not be said to be an Election Petition
as contemplated in Section 81 and would attract dismissal under Section 86(1)
of the 1951 Act. On the other hand, the failure to comply with the proviso to
Section 83(1) of the Act rendered the Election Petition ineffective, as was
held in Hardwari Lal’s case (supra) and the various other cases cited by Mr.
P.P. Rao.
26.
In
our view, the objections taken by Mr. P.P. Rao must succeed, since in the
absence of proper verification as contemplated in Section 83, it cannot be said
that the cause of action was complete. The consequences of Section 86 of the
1951 Act come into play immediately in view of Sub-Section (1) which relates to
trial of Election Petitions and provides that the High Court shall dismiss the
Election Petition which does not comply with the provisions of Section 81 or
Section 82 or Section 117 of the 1951Act. Although, Section 83 has not been mentioned
in Sub-Section (1) ofSection 86, in the absence of proper verification, it must
be held that the provisions of Section 81 had also not been fulfilled and the cause
of action for the Election Petition remained incomplete. The Petitioner hadthe
opportunity of curing the defect, but it chose not to do so.
27.
In
such circumstances, we have no other option, but to dismiss theappeal.28. The
Appeal is, accordingly, dismissed, but there will be no order as to costs.
………………………………………………………J.
(ALTAMAS KABIR)
………………………………………………………J.
(J. CHELAMESWAR)
New
Delhi
Date:
27.04.2012
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