Allahabad High Court
Sushil Singh vs Prabhu Narain Yadav And Ors. on 17 April, 2003
Equivalent citations: AIR2003ALL331, AIR 2003 ALLAHABAD 331, 2003 ALL. L. J. 2545 2003 ALL CJ 2 1281, 2003 ALL CJ 2 1281
Author: Sunil Ambwani
Bench: Sunil Ambwani
ORDER Sunil Ambwani, J.
1. Heard Sri T.P. Singh, assisted by Sri S.S. Yadav and Sri N.K. Pandey for applicant-respondent No. 1 Prabhu Narain Yadav, the returned candidate, and Sri Y.P. Sharma, assisted by Sri Anil Kumar Shukla for election petitioner Sri Sushil Singh.
2. The above election petition has been filed by Sri Sushil Singh. On its presentation on 2-3-2002, notices were issued on 8-3-2002. On the same day, an amendment application No. (sic) of 2002 dated 7-3-2002, was allowed subject to objections permit-ling the applicant, to incorporate para I and II for verification of the petition as well as verification of annexures. The service was deemed to be sufficient on the respondents vide order dated 15-2-2002 and 23-7-2002. The subject application, raising preliminary objection, was filed on 16-8-2002 to which reply/objection was filed on 17-9-2002 vide paper No. A-27. Arguments were heard on 29-10-2002, 13-11-2002 and thereafter on 14-2-2003, and the orders were reserved.
3. Sri T.P. Singh submits that the election petition is not maintainable and it is liable to be dismissed as the election petitioner has not complied with the provisions of Sections 81, 82 , 83 and 117 of the Representation of People Act, 1951. According to him, the election petitioner has not disclosed any of the grounds required to be disclosed under Sections 100 and 101 of the Representation of People Act, 1951. The petitioner has also not complied with the mandatory provisions of Section 83(1) of the Act, as the election petition does not contain a concise statement of material facts and particulars on which the petitioner relies, and has made vague, bald as well as general allegations which do not disclose, any cause of action and, therefore, no triable issue can be framed on the basis of allegations contained in the election petition, hence the election petition is liable to be dismissed under Order VII, Rule 11 of the Code of Civil Procedure. Paras 1 to 25 of the election petition are, the allegations, sweeping in nature, without having any basis. Election petitioner has not disclosed the grounds as mentioned in Sections 100 and 101 of the Act. It is further submitted that the election petitioner is not accompanied by as many copies thereof as there are respondents, and every such copy has not been attested by the election petitioner under his own signature to be a true copy of the petition as required under Section 81(3) of the Act. The copies served on the answering respondent No. 1 is not attested to be true copy of election petition under his own signature. The election petition has not been signed and verified by the petitioner in the manner laid down under Section 83(1)(c) of the Act. The Annexure P-1 to P-6 are also not signed by the election petitioner, and are not verified in accordance with the provisions of Code of Civil Procedure. The election petitioner has not signed the original copy of election petition under his own hand writing nor it is verified in accordance with law. It is also alleged that according to the proviso of Section 83(1)(c) of the Representation of People Act, 1951, it is required that the petitioner while alleging the corrupt practice, shall also file an affidavit in prescribed form in sup port of corrupt practice and give particulars but the election petitioner has not filed the affidavit of corrupt practices in Form 25, in accordance with Rule 94-A of the Conduct of Election Rules. The affidavit filed by election petitioner along with election petition is not the original copy of the affidavit and is only true copy. The election petitioner has not supplied the correct postal address of election petitioner and also not annexed the list of documents on which he is placing reliance. He has also, prayed for deletion of respondent Nos. 20 to 22, who are Government officials, and are not required under the law to be arrayed as a party.
4. In reply to aforesaid objections, election petitioner Sushil Kumar Singh has filed his affidavit (A-27) denying the allegations made in the preliminary objection. It is contended that the election petitioner has complied with the provisions of Sections 81, 82 , 83 and 117 of the Act. The election petitioner has clearly disclosed the grounds, required under Sections 100 and 101 of the Act. The election petition contains the materials facts and particulars. There are specific allegations with full particulars and the grounds. The required copies, two for each respondent, were duly attested and filed. It is denied that the copies served on respondent No. 1 have not been signed or attested by election petitioners. In para 16 of the affidavit, it has been asserted that the election petition has been duly signed and verified in the prescribed manner. The copies served on the respondents are true copies and there is no possibility of the respondents, being misled regarding the compliance, and that each page has been signed except the attestation. There is substantial compliance with the requirement of attestation. The list of dates is not a part of the election petition. It only gives the synopsis of the averments for the convenience of the Court. The petitioner had already amended the election petition. Verification was made on 7-3-2002 within the prescribed period of 45 days with the permission of the Court. The said application was also signed as required under the Rules. The election petition is duly verified and signed as well. The affidavit is also on the proper form of Form 25. The copies are original; the address of the petitioner is correct and the annexures are properly mentioned. It is also stated that letter No. 464/ 96 dated 9th Sept. 1996 has been annexed and duly verified and the copy has been served on respondent No. 1. Sri Y.P. Sharma submitted that the preliminary objections are liable to be rejected, and a date be fixed for framing of issues in the case.
5. The objections, in substance, can be divided in the following categories :--
(i) the election petition has not been signed and verified in accordance with the provisions of Representation of People Act, 1951;
(ii) the petition was not filed with adequate number of copies to be served on the respondent and, that the copies were not signed by the election petitioner;
(iii) election petition was not supported by affidavit in original and that the affidavit not in Form 25 in compliance of Rule 94-A of Conduct of Election Rules;
(iv) petition does not contain a concise statement of material facts and particulars on which the petitioner relies, and makes vague, bald and general allegations as well as does not fulfil the requirement of Section 83 of the Act;
(v) the petition does not disclose the ground as provided under Section 100 and 101 of the Act; and
(vi) petition suffers from misjoinder of parties by impleading respondents 20 to 22, who are Government Officers.
6. A perusal of the election petition shows that it has been signed by the election petitioner Sushil Singh. They stay application has been signed at page (2) by both the petitioner and his counsel Sri Y.P. Sharma. Thereafter each page of the annexures are signed by petitioner. The prayer and interim prayer have also been signed by both petitioner Sushil Singh and his counsel and that the petitioner is supported by an affidavit of election petitioner Sushil Singh in which paras 4, 5, 9, 10, 11 and 12 have stated to be the statement about the commission of corrupt practice and the particulars of such corrupt practice which are true to his knowledge. In para (b) of the affidavit, petitioner made the statement about the corrupt practice of respondents 1 to 22 and the particulars of such corrupt practice given in paragraphs 4, 5, 9, 10, 11 and 12 of the petition and the paragraphs of the schedule annexed thereto are true to his information. The second page of this affidavit, which is the last page of election petition, bears the thumb mark of petitioner and the affirmation by petitioner Sushil Singh dated 2nd March, 2000 at 1.35p.m.
7. An amendment application was filed along with the affidavit of election petitioner Sushil Singh and was allowed on 8-3-2002, which was the first date when the Court considered the report of Registrar General and issued notices to the respondents. It was allowed subject to the objection to be filed by the respondents but no objection has been filed by them to the amendment application. By the amendment application, petitioner has verified the election petition. In para 2, petitioner has verified the election petition. Annexures P-1 to 16 have been verified by signing each clause of verification and that the amendment application is supported by his affidavit.
8. In Dr. Vijay Laxmi Sadho v. Jagdish, AIR 2001 SC 600, the Supreme Court has held that the defect in verification of affidavit is curable and does not merit dismissal of election petition in limine under Section 86(1) of the Act. Election petitioner has filed an amendment application verifying the election (petition) in accordance with law as well as each of its annexures. In G. Mallikarjunappa v. Shamapur Shivashankarappa, AIR 2001 SC 1829, it was held that the election petition was not liable to be dismissed in limine on grounds that affidavit filed in support was not in proper format or that verification of affidavit and election petition did not tally. It is a curable defect, and that apart, consequences entailing from allegedly defective affidavit is required to be adjudged at trial. This judgment has also been cited in support of the submission that the name of election petitioner tallied with his name in the electoral roll and that there is no defect in the signatures. In para 10 of the judgment, it has been held that in an election petition challenging the election of a returned candidate can be filed not only by other candidate/candidates at the election but also by a voter. Son of petitioner, acting as agent, had challenged the election in his capacity as a voter and the name of second petitioner, as given in the election petition, tallies with his name as appearing in the voters list and thus there was no discrepancy in the name in the election petition let alone any "difference of identity."
9. In the present case, it has not been stated that the person, filing the election petition, is other than Sushil Singh, who contested the election. There is no defect in the name and identity of person who has filed and verified the election (petition). The first objection, as such, cannot be sustained.
10. The second preliminary objection relates to the number of copies in illegibility of annexures and attestation of copies as true copy of the original petition. Except for Sri T.P. Singh, appearing for objector respondent No. 1, no one has raised objection with regard to the illegibility, correctness of copies and whether these copies have been signed by election petitioner. Sri Singh was not able to point out as to which part of the election petition, including annexures thereof, were not illegible or that he has been misled and prejudiced in any manner by such defects. In T.S. John v. Joseph M. Puthussery, AIR 2002 Kerala 166, the Kerala High Court, relying upon M. Kamalam v. Dr. V.A. Syed Mohammed, AIR 1978 SC 840 and Mithilesh Kumar Pandey v. Baidynath Yadav, AIR 1984 SC 305, it was held that the signatures affixed at the end of petition, were sufficient and that absence of words 'true copy' is insignificant and the Court should not take notice thereof. The clerical error can always be corrected and that if an omission is made, the parties should allow to cure these mistakes and that these are not fatal to the election petition. The second objection as such is not sustainable.
11. The third objection is that the election petition is not supported by affidavit in original and that the affidavit is not in Form 25 in compliance of Rule 94-A of Conduct of Election Rules. The election petition is supported by an affidavit which has been typed on stamp paper and signed and verified by election petitioner Sushil Singh. The verification has been provided by amendment application in respect of election petition as well as each of the verification clauses has been signed by petitioner Sushil Singh with a prayer to allow the application incorporating the aforesaid verification supported by affidavit. The objection, as such is factually incorrect. The proviso to Section 83(1) of the Act provides 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. The affidavit appended to the election petition at pages 38 and 39 is divided in two paras. Whereas in para (a), it has been stated that the paragraphs of the accompanying election petition about the commission of corrupt practice and the particulars of such corrupt practice mentioned in paragraphs 4, 5, 9, 10, 11 and 12 of the same petition and in paragraphs of the schedule annexed thereto are true to personal knowledge; Clause (b) states that the statement made in paragraphs of the said petition about the commission of corrupt practice of respondent Nos. 1 to 22 and the particulars of such corrupt practice given in paragraphs 4, 5, 9, 10, 11 and 12 of the said petition and in paragraphs of the Schedule annexed thereto are true to the information. The affidavit, as such meets the requirement of proviso to Section 86(1) of the Act and is an affidavit in the prescribed form.
12. The substance of allegations in the election petition relates to prevent the voters from polling at booth Nos. 291 and 292 and refusal of re-polling at the aforesaid booths on 22-2-2002, i.e. next day of the poll. These facts are stated in detail in paragraphs 4, 5, 6, 7, 8, 13, 14 and 15 of the election petition. The other set of allegations are, with regard to recount of votes, contained in paragraphs 8, 9, 11 and 12. The counting of votes took place on 24-2-2002. upto 12.00 p.m. and the result of all the constituencies was declared. Petitioner was declared winner by margin of 286 votes over the candidate of Samajwadi party, Sri Prabhu Narain Yadav. On the request of Sri Prabhu Narain Yadav, the declaration was stopped and re-totalling of the votes took place. Second time also, after the retotalling the petitioner was declared winner by the margin of 135 votes and that the petitioner sent and made telephone calls and in the news papers, petitioner's victory was published. However, it is alleged that in collusion of respondent No. 1, the District Returning Officer ordered recounting of votes for the third time. This time also the petitioner was declared to have won by margin of 36 votes. The Returning Officer, however, in collusion with Samajwadi party candidate ordered re-totalling of votes for fourth time. The petitioner opposed the action and sent written complaint; to the Chief Election Officer, Lucknow on 24-2-2002. Without considering petitioner's objection, the District Returning Officer pronounced the result declaring Sri Prabhu Narain Yadav, the Samajwadi Party, candidate to have won over the petitioner by the margin of 26 votes.
13. These facts, prima facie, are clear and precise allegations with regard to the material facts. Similarly the facts that these allegations are being treated as insufficient weak or lacking specific details at this stage are not the grounds to dismiss the election petition in limine. The election petition must contain concise statement of material facts and particulars on which petitioner relies: must set forth full particulars, of any corrupt practice that the petitioner alleges, including as full 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, as required under Section 83(1) of the Representation of People Act. 1951. In V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737 : (AIR 1999 SC 2044), it was held by the Supreme Court that the trial Court was not justified in rejecting the petition in limine on ground of vagueness without affording opportunity to the petitioner to substantiate the allegations, made in the petition or to bring on record the evidence justifying the recount. Material facts are primary facts, which may be proved at the trial, to establish the existence of cause of action. A reasonable cause of action means such cause of action with some chances of success. So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is not a ground for striking it out. The Supreme Court held that the distinctions between 'material facts' and the 'material particulars', the words 'grounds' in Section 81(1) and full particulars in Section 83(1)(b) are distinguishable. Where the allegations in the election petition are vague, weak and do not justify the allegations of any corrupt practice, the petition deserves rejection as it does not disclose any cause of action.
14. In the present case, the allegations, as detailed above, in my opinion, contain statement of the material facts on which petitioners relies and also substantially gives full particulars of corrupt practice which petitioner alleges and thus the election petition cannot be thrown out at this stage, and merits trial.
15. A very significant question has been raised by the election petitioner with regard to the counting of votes. The voting took place with the help of Electronic Voting Machine. In counting, on first three occasions, petitioner was alleged to have secured higher votes and that on fourth occasion, he was found to have secured 26 votes less than the elected candidate. This raises serious doubt in the correctness in counting. The election petitioner also raises a triable issue with regard to the accuracy of counting of votes by Electronic Voting Machine.
16. The Court, therefore, finds that the election petitioner has given material facts as well as material particulars constituting cause of action and has raised triable issues, which may affect the result of election. The fourth objection is answered accordingly.
17. The fifth objection relates to non-disclosure of grounds as provided under Sections 100 and 101 of the Act, and the absence of grounds in the election petition as to how the election of returned candidate is materially affected. Sri T.P. Singh submits that the allegation of mala fides on which the election petition has been preferred on the ground mentioned in Section 100 but the material fact, alleged do not make out grounds of Sub-sections (1) and (2) of Section 100 and as such it is difficult to settle the defence supposed to be filed on behalf of the returned candidate. According to him, at the most, the grounds contained under Section 100(1)(b) can be attracted by implication as per averments made in paras 4 and 6 of the election petition. The pleadings and proof thereof are self contradictory inasmuch as non-polling at booth Nos. 291 and 298 cannot be treated to be a corrupt practice. He has relied upon the case of L.R. Shivaramagowda v. T.M. Chandrashekar, (1999) 1 SCC 666 : (AIR 1999 SC 252). It was a case of the allegation of excessive expenditure. The actual averment was only to the effect that a true and correct account of expenditure incurred by the candidate was not furnished. The High Court set aside the election on the ground that the true and correct account of expenditure was not maintained which amounted to corrupt practice under Section 123(6) of the Act. Allowing the appeal, the Supreme Court held that what is referred to in Sub-section (6) of Section 123 as corrupt practice is only the incurring or authorising of expenditure in contravention of Section 77. Section 123(6) does not take into its fold, the failure to maintain true and correct accounts. It cannot be said that non-compliance with Section 77(1) and (2) would also fall within the scope of Section 123(6) of the Act. The failure to maintain accounts will, in no case affect, and much less materially, the result of the election. Section 100 of the Act provides the ground for declaring election to be void i.e. qualification, corrupt practice committed by a returned candidate: which has materially affected the election; as well non-compliance of any provisions of the Constitution or of the Act or of any Rules or Orders made under this Act. are 'grounds' on which the High Court may declare the election of the returned candidate to be void.
18. In the present case, grounds (B) and (E) relate to corrupt practice committed by the winning candidate in collusion with the election officials in stopping voters from casting their votes at booth Nos. 291 and 292 having 1460 valid vote of the Dalit Community at large. Grounds (A), (C), (F), (G), (H), (I), (J) and (L) relate to the counting whereas in first three occasions of counting, the votes cast on electronic voting machine, petitioner was declared winning and in fourth counting, the respondent No. 3 was declared to have won. Both the grounds, on their strength, amount to corrupt practice, raise triable issues between the parties. These cannot be treated to be vague in nature and without disclosing full particulars.
19. In the circumstances, it cannot be said that the election petitioner has not disclosed the ground mentioned in Sections 100 and 101 of the Act. In case these grounds are proved, the result of returned candidate is likely to be materially affected. The election petition cannot, therefore, be rejected at the threshold for the reasons that it does not disclose the grounds mentioned in Sections 100 and 101 of the Act.
20. With the aforesaid discussion the preliminary objections 1 to 5 raised by returned candidate are decided against him.
21. The last objection, however, is to be allowed on the strength of the decision of Supreme Court in Michael B. Fernandes v. C.K. Jaffar Sharief (2002) 3 SCC 521 : (AIR 2002 SC 1041). Section 82 of the Act provides the parties of the petition and Section 86(4) of the Act deals with trial of election petition. The Returning Officer and Chief Electoral Officer, therefore, need not be impleaded as respondents in the election petition, even if they are alleged in the petition failed to have not complied with the provisions of Conduct of Elections Rules and the guidelines issued by the Election Commission of India. They are neither necessary or proper parties to the election petition,
22. Respondents 20, 21 and 22, namely, the District Magistrate/District Returning Officer, district Chandauli, the Presiding Officer Booth No. 291 and the Presiding Officer of Booth No. 292, respectively, are, therefore, directed to be deleted from the array of parties. The necessary deletion shall be carried out within a week.
23. The preliminary objections (A-25) are accordingly rejected.
24. Let the election petition be listed for framing of issues on 28-4-2003.