Karnataka High Court
B.R. Patil S/O Ramachandrappa vs Rajeev Chandrashekar, Major And Ors. on 15 November, 2006
Equivalent citations: ILR2007KAR317, AIR 2007 (NOC) 391 (KAR.) = 2007 (1) AIR KAR R 452, 2007 (1) AIR KAR R 452 2007 A I H C 1336, 2007 A I H C 1336, 2007 A I H C 1336 2007 (1) AIR KAR R 452, 2007 (1) AIR KAR R 452
Author: K.L. Manjunath
Bench: K.L. Manjunath
ORDER K.L. Manjunath, J.
Page 0325
1. The petitioner herein who is a sitting member of the Karnataka Legislative Assembly representing Aland Constituency in Gulbarga District is calling in question the legality and correctness of the elections held on 28.3.2006 Page 0326 to the Council of States (Rajya Sabha). The respondents 1 to 4 are the returned candidates in the said election. The petitioner has filed this petition as a voter.
2. The petitioner in this petition is requesting the court to declare the election of the returned candidates namely respondents 1 to 4 as void on the ground that (i) the respondents 1 to 4 have committed electoral offences corrupt practices under Section 123(2) of the Representation of People Act, 1951 (ii) that there is an interference with the free exercise of votes and threats were held to the voters and (iii) that there is violation of Provisions of Section 128 and the rules framed under the R.P. Act. Further to declare the election of the respondents 1 to 4 as void and of no effect and to direct the Election Commissioner of India to hold fresh election in accordance with law and to dis-qualify the respondents 1 to 4 under Section 101 of the Act.
3. According to the petition averments, there were 5 candidates in the election and out of the 5 candidates 4 were required to be elected to the Council of States (Rajya Sabha). The main contentions of the petitioner before this Court is that the candidate set up by the respective political parties decided to issue whip to the M.L.As, directing them to cast their votes in favour of the candidates set up by such political party and the disobedience of the whip would incur disqualifications and the M.L.As would loose their seats. Taking advantage of the same, Sri. H.D. Kumara Swamy, Leader of the Janatha Dal (Secular) Party and the Chief Minister of Karnataka and Dr. K. Annadani, Chief Whip of Janatha Dal (Secular) Legislature Party issued a whip to all the M.L.As of their party. In order to further ensure that the whip is faithfully obeyed the Hon'ble Chief Minister further took the step of appointing observers at the time of polling and to show the marked ballot papers as to whom they have voted. One Sri. Yogish Bhat - a BJP M.L.A was appointed as a representative to oversee the voting on behalf of the BJP candidate (4th respondent). Similarly the Hon'ble Chief Minister through Dr. K. Annadani had sent a whip to 57 members of J.D(S) by courier. Along with the whip, a proforma ballot paper was also sent to the M.L.As with a direction to give the first and second preferential votes to R2 and R1 respectively. In order to ensure the obedience of the whip one Sri. Basavaraja Rayareddy and Sri. Bhosaraju were appointed to oversee the voting by M.L.As. One Sri. Srikantegowda had been appointed by the J.D(S) party to oversee the voting by the M.L.As. As per the whip received by the M.L.As the voters showed the marked ballot papers to the above named representatives of the political parties and that the respondents 1 to 4 have been got elected. Contending that issuance of whip and showing of marked ballot papers by the voters to the representatives of the political party would amount to corrupt practices and undue influence and that they have interfered director with the free exercise of votes, the present petition is filed.
4. According to the petitioner the M.L.As with a fear of loosing their seats in the Assembly have shown the marked ballot papers to the agents appointed by the political parties and due to which there is a breach of secrecy of voting, which is forbidden under the R.P. Act, 1951. It is also the case of the petitioner that about 38 M.L.As had voluntarily given up the membership of Page 0327 the J.D(S) and had withdrawn the support to the coalition government of J.D.(S) and Indian National Congress and due to withdrawal of their support, it violates the Provisions of 10th schedule and that they are disqualified to vote in the elections. Though they were disqualified, 38 M.L.As were allowed to vote in the elections set up by the J.D(S) and B.J.P. Therefore, the petitioner contends the election held on 28.3.2006 is invalid. On these grounds the present petition is filed.
5. On 16.6.2006 this Court ordered notice to R1 to R4 returnable by 14.7.2006. Pursuant to the notice issued by this Court, R1 to R4 have appeared and have filed the written statement separately. In addition to the written statement, they have filed different I.As which are numbered as I.A. Nos. I to VI. The details of the I.As filed by each of the respondents are given as hereunder:
6. I.A. No. I is filed by the respondent No. 1 under Order 7 Rule 11(a) of Civil Procedure Code read with Section 86 of R.P. Act. In this application the respondent No. 1 has requested this Court to reject/dismiss the above petition with the following reasons:
7. According to respondent No. 1, the issuance of whip is not in violation of Section 128 of R.P. Act. The petition filed by the petitioner under Section 81 and 83 of R.P. Act does not attract the Provisions of Section 100(1)(a) to (d) and that 38 M.L.As had not suffered any disqualification since the Speaker who is competent to disqualify the M.L.As had not passed an order of disqualification. Therefore, those 38 M.L.As were entitled to exercise their franchise in the election. The affidavit filed by the petitioner is not in conformity with the Provisions of R.P. Act. When corrupt practice is alleged in the petition, the petitioner is required to file the affidavit in Form No. 25, such an affidavit has not been filed by the petitioner and therefore, the petition has to be rejected in limini. It is lastly contended by R1 that even if the averments of the entire election petition are taken as true, it does not give rise to a cause of action for the petitioner to file an election petition. On these grounds Respondent No. 1 has requested the court to dismiss the petition.
8. I.A. No. II is filed by the second respondent under Order 6 Rule 16 read with Order 7 Rule 11 of Civil Procedure Code read with Section 87 of R.P. Act requesting the court to strike out paragraphs 5 to 9 of the election petition on the ground that the averments in the said paragraphs are unnecessary, frivolous, vexatious and tends to prejudice, embarrass or delay the fair trial of the election petition and to dismiss the election petition for not disclosing any cause of action.
9. According to R2 mere issuance of whip cannot be construed as a threat. The whip at best can be applicable for voting proceedings in a house only. The present election cannot be considered as proceedings of any house and therefore, the Provisions of 10th schedule to the Constitution of India is not at all attracted. According to R2 issuance of whip by a political party to vote in favour of its candidate, amounts to mere exercise of its legal right to ensure the victory of the candidate supported by it, without Page 0328 being any interference in the electoral rights of M.L.As. He further contends that by amended Act 40/2003, and in view of the Proviso to Section 59 and Proviso to Section 128(1) of R.P. Act, the election to fill a seat to the Council of State is by open ballot and even a political party can appoint an agent to oversee the voting pattern by the voters. Therefore, the second respondent requests the court to dismiss the election petition.
10. I.A. No. III/2006 is also filed by the second respondent under Section 86(1) of R.P. Act read with Order 7 Rule 11 of Civil Procedure Code requesting the court to dismiss the election petition for non-compliance of the mandatory provisions of Section 81(1) of the R.P. Act. According to this application the election petition is not in the proper form and that the copy served on R2 is not the true copy as prescribed under the R.P. Act and the rules framed thereunder. The petitioner has not affixed his own signature attesting the copy of the election petition to be a true copy of the election petition and the mandatory provisions of Section 81(3) and 86 of the Act has not been complied with and that the election petition is bereft of material facts and particulars and does not disclose the cause of action and that the affidavit in the prescribed form No. 25 has not been filed by the petitioner, therefore, the petition has to be rejected.
11. I.A. No. IV is filed by R3 under Order VI Rule 16 and Order VII Rule 11(a) of Civil Procedure Code read with Section 87 of R.P Act. In this application the respondent No. 3 has requested this Court to strike down paragraph 6, 7A, 7B, 7C, 9 & 10 of the election petition and further to dismiss the above election petition as there is no triable issue. According to this application the averments made in paragraph 6, 7A to 7C, 9 & 10 are unnecessary, scandalous, vexatious or frivolous in nature and bereft of particulars. The whip has been issued only by J.D(S) and B.J.P and that no whip had been issued by Indian National Congress and there are no allegations of corrupt practice or undue influence against R3 and that the petition does not contain an affidavit in Form No. 25. Therefore, non-filing of affidavit is fatal to the election petition and requests this Court to strike out the pleadings of above said paragraphs and to dismiss the election petition.
12. I.A. No. V is fifed by R4 under Order 6 Rule 16 of Civil Procedure Code to strike out the averments made in the election petition and similarly IA. No. VI is also filed by R4 under Section 86(1) of R.P. Act read with Order 7 Rule 11 of Civil Procedure Code to dismiss the election petition. The grounds urged in I.A. No. V & VI are similar to that of the grounds urged by the remaining respondents in the other I.As. Therefore, this Court is of the opinion that there is no need to repeat the averments made in the affidavit filed in support of IA. Nos. V & VI.
13. In addition to these applications R2 has returned the copy of the petitions served on him contending that the copies served on him cannot be considered as true copy and that the same is not in conformity with the R.P. Act. Similarly 4th respondent has returned the copy of the petition served on him along with the memo to show that the copy of the election petition served on him is not in conformity with the Provisions of Law. On these grounds R1 to R4 are requesting this Court to dismiss the petition contending that there is no Page 0329 cause of action for the petition and that there are no triable issues and that certain averments made in the election petition are to be struck of.
14. The petitioner herein has filed a consolidated objection statement to all these applications. According to him the allegations made in the affidavit filed in support of Order 6 Rule 16 are scandalous, vexatious and that the applications are filed only to protract the proceedings and to delay the trial of the petition in order to defeat the ends of justice. According to him the applications filed under Order 7 Rule 11(a) of Civil Procedure Code by the respondents are to be rejected on the ground that the contents of the affidavit filed in support of the application do not disclose the cause of action. According to him allegations made in the affidavit are false. The petitioner has pleaded that every fact required to be proved in support of his right to seek relief are pleaded and that there are no omissions of facts necessary to declare the election to the returned candidate as in valid. According to him there is a strict compliance of Section 81 of R.P. Act and the copy supplied to the respondents are also in accordance with law and relying upon the decision of Supreme Court in (2001) 1 SCC 358 (T. Phunagazathang v. Hangkhanlian), he requests this Court to dismiss the applications. According to him he has complied with the Provisions of Section 87 of R.P. Act and that the election petition cannot be dismissed without there being any trial and he requests to dismiss all the applications of the respondents.
15. I have heard the learned Counsel appearing for the parties. After hearing Sri B.V. Acharya, Sri. Nanjundareddy, learned Senior Counsel appearing for R1 & R2, Sri. C.V. Nagesh appearing for R3 and Sri. Ashok Harnahalli appearing for R4 and Sri. Ko. Chennabasappa appearing for the petitioner, this Court is of the opinion the following points would emerge for consideration to decide I.A. Nos. I to VI:
1. Whether there are any triable issues in the election petition?
2. Whether the petition is in conformity with the R.P. Act and rules?
3. Whether any of the paragraphs of the election petition are required to be struck of?
4. What order?
16. It is not in dispute that a whip has been issued by the Chief Minister Sri. H.D. Kumara Swamy and Dr. K. Annadani, Chief Whip of J.D(S). According to the respondents 1 & 2 they are in no way responsible for issuance of such whip. If a political party on its own has issued such whip to its M.L.As without the knowledge or the connivance of R1 and R2. It cannot be considered as undue influence or corrupt practice in the election. The respondents 1 & 2 further contend that even if such a whip is issued, a political party is entitled to issue such whip to ensure the success of the candidate set up by such party. Validity of the Amendment Act 40/2003 has been upheld by Supreme Court in Kuldeep Nair's case. According to the proviso to Section 128 R.P. Act, a political party is entitled to issue such whip and if the M.L.As have voted in favour of the candidates set up by political party and that even if an agent is appointed to oversee the elections, the same cannot be considered as undue influence or corrupt practice. To Page 0330 support their arguments they have relied upon the Judgment of the Apex Court in Kuldeep Nair v. Union of India 2006 (8) SCALE 257.
17. It is further contended that the election to Council of State cannot be considered as a secret ballot and that it is an open ballot and therefore, it cannot said that there is no maintenance of secrecy of votes. To support their arguments they further rely upon the Judgment of Supreme Court reported in 1993(3) SCC 607 oginder Singh @ Dharti Paked v. K.R. Narayanan, Vice President of India that issuance of whip by a party cannot be considered as undue influence, when the candidates are in no way concerned with the issuance of whip. To support their arguments they have also relied upon Baburao Patel and Ors. v. Dr. Zakir Hussain and Ors.. Relying upon these Judgments, learned Counsel appearing for the respondents submit that there are no triable issues in the election petition and it has no cause of action and that the election petition has to be rejected in limini by applying the Provisions of Order 7 Rule 11(a) of Civil Procedure Code. They further contend that whenever an allegation of corruption or undue influence is alleged in election petition, the petitioner is required to file an affidavit in Form No. 25 and non-filing of such an affidavit is fetal to the case of the petitioner. To support their arguments they have relied upon the Judgment of the Supreme Court in Ravinder Singh v. Janmeja Singh and Ors.. On these grounds they request the court to dismiss the petition. Lastly, it is contended by them that the copies supplied to the respondents cannot be considered as true copies. The petitioner has failed to put his signature at the end of each page and the verification is not in accordance with election rules.
18. Per contra Sri. Ko. Chennabasappa, learned Counsel appearing for the petitioner submits that an election petition cannot be dismissed by invoking the Provisions of Order 7 Rule 11 (a) of Civil Procedure Code in limini and even if the court is of the opinion that there are no triable issue such an election petition can be dismissed only after trial and not prior to the commencement of the trial. According to him the election petition can be dismissed by a court only if the petition does not comply with the Provisions of Section 81, 82 or 117. Relying upon the Provisions of 86(1) of R.P. Act he contends that if the petitioner has fulfilled the Provisions of Section 81, 82 and 117, an election petition cannot be dismissed in limini. According to him eat per Provisions of Section 81, an election petition can be presented by a party on any one or more grounds specified in Section 100, 101 to the High Court, therefore, the application filed by him is in conformity with Section 81 and he further contends that the petitioner has also fulfilled the Provisions of Section 82 as he has joined the required respondents in the election petition namely the returned candidates. He further contends that as per Page 0331 Section 117 he has deposited the security for cause. Therefore, the election petition filed by him cannot be dismissed in limini and requests this Court to post the matter for framing of issues and for trial. He further contends that the copy supplied by him to the respondents are in conformity with the act and rules. Relying upon the Judgment reported in (2001) 1 SCC 358 he submits that there is a substantial compliance and when there is substantial compliance as per the above decision, the petition cannot be rejected on the ground of non-supply of true copies.
19. Having heard the learned Counsel for the parties, this Court has to examine whether there are any triable issues in the election petition. It is not in dispute that the election petition is filed by the petitioner on the following allegations. According to the petitioner the Hon'ble Chief Minister and the Chief Whip of J.D(S) have issued a whip to 57 members of their party calling upon the M.L.As to vote in favour of respondents 1 & 2 and it amounts to undue influence and that those M.L.As were forced to show the marked ballot papers to the persons who are appointed as representative of the political parties and that M.L.As nave voted in favour of respondents out of threat and fearing that the disobedience of the whip may make them to loose their M.L.A ship and that 38 M.L.As disqualified were allowed to vote. Therefore, the only point is whether these two allegations would construe a cause of action for the petitioner to file an election petition alleging the corrupt practice and undue influence?
20. According to the respondents they are in no way concerned with the issuance of whip by Chief Minister and Chief Whip and even if such whip was issued, they were not responsible for issuance of whip. In Kaka Joginder Singh v. K.R. Narayanan, Vice President of India, the Hon'ble Supreme Court has held "there is no averments anywhere in the election petition that the offence of undue influence and corrupt practice in issuance of whip was committed either by the candidate himself or by any person with the consent of the returned candidate. Thus the pleadings relating to the ground contained in Section 18(1)(a) do not disclose any cause of action to rise a triable issue on this point and therefore, the election petition in so far as it relates to the ground contained in Section 18(1)(a) must be rejected for this reason alone."
21. In this background, when this Court examined the entire election petition, the petitioner has not averred anywhere that, these respondents were responsible for issuance of whip by the Hon'ble Chief Minister or by the Chief Whip of J.D(S). Moreover the respondent No. 3 and 4 do not belong to J.D(S). The respondent No. 3 was set up by the Indian National Congress and R4 has been set up by B.J.P. Even R1 has not been set up by any political party and he has contested the election on his own individually. However it is the case of the petitioner that J.D(S) has supported the candidature of the first respondent, Even if the first respondent has been supported by J.D(S), there are no allegation that such a whip was issued by J.D(S) at the instance of R1 or R2. Therefore, the allegations of corrupt practice in issuance of whip cannot be considered by this Court.
22. The Hon'ble Supreme Court in Kuldeep Nair's case in paragraphs 440, 441, 444, 445, 454, 455, 462 and 463 has dealt the right of political party to Page 0332 appoint an agent to oversee the election process in the elections of Council of States, Paragraphs 440, 441, 444, 445, 454, 455, 462 and 463 reads as under:
Paragraph 440: Rule 39-Appellate Authority applied to such elections by virtue of Rule 70 reads as under:
Information regarding casting of votes:
(1) Notwithstanding anything contained in Rule 39-A, the presiding officer shall between the period when an elector being a member of a political party records his vote on a ballot paper and before such elector inserts that ballot paper into the ballot box, allow the authorized agent of that political party to verify as to whom such elector has cast his vote:
Provided that if such elector refused to show his marked ballot paper to the authorized agent of his political party, the ballot paper issued to him shall be taken back by the presiding officer or a polling officer under the direction of the presiding officer and the ballot paper so taken back shall then be further dealt with in the manner specified in Sub-rules (6) to (8) of Rule 39-A as if such ballot paper had been taken back under Sub-rule (5) of that rule.
(2) Every political party, whose member as an elector casts a vote at a polling station, shall, for purposes of Sub-rule (1), appoint in Form 22-A, two authorized agents.
(3) An authorized agent appointed under Sub-rule (2) shall be present throughout the polling hours at the polling station and the other shall relieve him when he goes out of the polling station or vice versa.
Paragraph 441: Since Rule 39-AA is required to be read with Rule 39-A the former is necessarily an exception to the general rule in all other elections conducted under the R.P. Act, 1951 by the Election Commission. The norm has been, prior to the impugned amendment, that the voting shall be by a secret ballot, in which all concerned., including the electors are expected to preserve the sanctity of the vote by keeping it secret. But as already observed, the privilege to keep the vote secret is that of the elector who may choose otherwise, that is to say, he may opt to disclose the manner in which he has cast his vote but he cannot be compelled to disclose the manner in which he has done so, except in accordance with the law on the subject which ordinarily comes into play only in case the election is challenged by way of election petition before the High Court. In the case of election to the Council of States, in the post amendment scenario, the norm has undergone a change, in that the political party to which a particular member of the Legislative Assembly of the State belongs is entitled to ascertain through formally appointed authorized agent deputed at the polling station the manner in which the member in question, who is an elector for such purposes, has exercised his franchise. The exception applies only to such members of the Legislative Assembly, as are members of a political party and not to all members across the board. The voter at such an election may Page 0333 refuse to show his vote to the authorized agent of his political party, but in such an event he forfeits his right to vote, which is cancelled by the Presiding Officer of the polling station on account of violation of the election procedure.
Paragraph 444: Voting at elections to the Council of States cannot be compared with a general election. In a general election, the electors have to vote in a secret manner without fear that their votes would be disclosed to anyone or would result in victimization. There is no party affiliation and hence the choice is entirely with the voter. This is not the case when elections are held to the Council of States as the electors are elected members of the legislative assemblies who in turn have party affiliations.
Paragraph 445: The electoral systems world over contemplate variations. No one yardstick can be applied to an electoral system. The question whether election is direct or indirect and for which house members are to be chosen is a relevant aspect. All over the world in democracies, members of the House of Representatives are chosen directly by popular vote. Secrecy there is a must and insisted upon, in representative democracy, particularly to upper chamber, indirect means of election adopted on party lines is well accepted practice Paragraph 454: It is therefore, evident that the right to vote is a concept, which has to yield to a concept of the attainment of free and fair elections. The nature of elections, namely direct or indirect, regulates the concept of right to vote. Where elections are direct, secret voting is insisted upon. Where elections are indirect and where members are chosen by indirect means, such as, by parliament or by legislative assembly or by executive, then open ballot can be introduced as a concept under the electoral system of voting. In the case of direct elections, members are chosen directly by popular vote which is not the case under indirect elections. Therefore, it cannot be said that the concept of open ballot would defeat the attainment of free and fair elections. In the present case, the question of denial of right to vote would be self inflicted only on the member of the Legislative Assembly declining to show his vote to the authorized representative of the party. If a MLA casts a vote in favour of any person he thinks appropriate and shows his vote to the authorized representative of the political party to which he belongs, Rules do not contemplate cancellation of such a vote.
Paragraph 455: It cannot be forgotten that the existence of political parties is an essential feature of our Parliamentary democracy and that it can be a matter of concern for Parliament if it finds that electors were resorting to cross voting under the garb of conscience voting, flouting party discipline in the name of secrecy of voting. This would weaken the party discipline over the errant Legislators. Political parties are the sine qua non of Parliamentary democracy in our country and the protection of party discipline can be introduced as an essential feature of the purity of elections in case of indirect elections.
Paragraph 462: The contention that the right of expression of the voter at an election for the Council of States is affected by open ballot is not Page 0334 tenable, as an ejected MLA would not face any disqualification from the Membership of the House for voting in a particular manner. He may at the most attract action from the political party to which he belongs. Being a Member of the political party on whose ticket he was elected as an MLA, in the first place, he is generally expected to follow the directions of the party, which is one of the basic political units in our democracy.
Paragraph 463: Since the amendment has been brought in on the basis of need to avoid cross voting and wipe out evils of corruption as also to maintain the integrity of our democratic set up, it can also be justified by the State as a reasonable restriction under Article 19(2) of the Constitution, on the assumption that voting in such an election amounts to freedom of expression under Article 19(1)(a) of the Constitution.
23. The very reading of paragraph 455 it is clear to this Court the existence of political parties is an essential features of our Parliamentary democracy and that it can be a matter of concern for Parliament if it finds that electors were resorting to cross voting under the garb of conscience voting, flouting party discipline in the name of secrecy of voting. This would weaken the party discipline over the errant Legislators. Political parties are the sine qua non of Parliamentary democracy in our country and the protection of party discipline can be introduced as an essential feature of the purity of elections in case of indirect election.
24. The election in question cannot be considered as a direct election. It is only an indirect election. In an indirect election if a political party has issued a whip and an agent was appointed even to oversee process of election, it cannot be considered as an infringement of secrecy of vote in an election. When the Supreme Court has upheld the validity of the amended Act 40/2003, this Court cannot hold that issuance of a whip or appointing an agent by a political party to oversee the election, amounts to corrupt practice or undue influence to attract the provisions of R.P. Act to declare the elected candidates as null and void. Therefore, this Court is of the opinion that the issuance of whip or appointing an agent cannot be considered as a cause of action for the petitioner to file a petition. If the action of the political party in issuing a whip is upheld by the court, then the only point to be considered is whether the permission granted for 38 M.L.As to exercise franchise was valid or not?
25. The learned Counsel appearing for the petitioner does not dispute that the Hon'ble Speaker of the Karnataka Legislative Assembly has not passed any order disqualifying 38 M.L.As or dismissing them as M.L.As. Therefore, 38 M.L.As were entitled to exercise franchise since their names found in the Voters list. As long as they are voters and have not incurred any disqualification, they are entitled to exercise their rights. Therefore, this ground also cannot be a ground to maintain the election petition. When all the grounds alleged by the petitioner are not available to the petitioner to file an election petition alleging corrupt practice or undue influence, this Court is of the opinion that there is no cause of action for the petition and there are no triable issues in the election petition. Though the petitioner is sought to contend that the petition filed by him is in conformity with the provisions of Sections 81, 82 and 117 of Representation of People Act, 1951, if the averments Page 0335 in regard to corrupt practice and undue influence cannot be considered as corrupt practice and undue influence in view of amendment 40/2003 to the Act, this Court is of the opinion that point No. 1 has to be held against the petitioner, Accordingly, point No. 1 is held in the affirmative.
26. It is not in dispute that the election petition is filed making allegations of corrupt practice and undue influence and the petition is filed under Section 81 and 83. When such corrupt practice is alleged, the petitioner is required to file an affidavit in Form No. 25. In the instant case the petitioner has filed an affidavit stated to be in Form No. 25 under Rule 94(A). But the affidavit filed by the petitioner is not in conformity with Form No. 25. As per Form No. 25, the petitioner is required to state in the affidavit, about the details of the paragraphs, where the commission of the corrupt practice is alleged and the particulars of corrupt practice is mentioned in such paragraphs whether it is to his knowledge or to his information separately. But in the instant case paragraphs 2(i) & (ii) of the affidavit are one and the same, Paragraph 2 reads as under.
(i) that the statement made in the paragraph 5 to 8 about the commission of the corrupt practice and the particulars thereof are true to my knowledge.
(ii) that the statement made in paragraph 5 to 8 about the commission of corrupt practice and the particulars thereof are true to my information.
27. From reading of paragraph 2 of the affidavit it is not possible for any person to find out which Paragraphs of the election petition is within the personal knowledge of the petitioner and which paragraph of the petition is based on his information. The allegations of corrupt practice are made only in paragraphs 5 to 8. But according to the affidavit the averments in paragraphs 5 to 8 are based on his information and also on his personal knowledge. But it is not possible to dissect and find out which portions of paragraphs 5 to 8 are within his knowledge and which portion, is based on the information. The petitioner is required, to file an affidavit to show the nature of information or nature of his personal knowledge only to take full responsibility of its contents. But the affidavit of the petitioner is not in conformity with Form No. 25. The Hon'ble Supreme Court in (Ravinder Singh v. Janmeja Singh and Ors.) has held that if the election petition is not supported by the affidavit in the prescribed form and that it does not disclose the names of informant in relation to corrupt practice of bribery is a fatal to the election petition. Therefore, this Court is of the opinion that the affidavit filed in support of the petition in Form No. 25 is not in conformity with. Form No. 25 of the Conduct of Election Rules, 1961 accordingly, point No. 2 is held against the petitioner.
28. In view of the findings on point Nos. 1 & 2, this Court is of the opinion that there is no necessity to consider the request to strike of any of the paragraphs in the election petition.
29. In the result for the above reasoning this Court is of the opinion that there are no triable issues in the election petition. Accordingly, election petition is dismissed. In the circumstances parties to hear their costs.