Andhra HC (Pre-Telangana)
N.V. Narasimha Rao vs Somepalli Sambaiah And Others on 29 January, 1999
Equivalent citations: 1999(2)ALD221, AIR 1999 ANDHRA PRADESH 398, (1999) 2 ANDHLD 221 (1999) 1 ANDHWR 212, (1999) 1 ANDHWR 212
JUDGMENT
1. This is an application under Section 87 of the Representation of Peoples Act 1951 read with Order 6 Rule 16 and Section 151 of the Code of Civil Procedure for striking out the pleadings and dismissing the Election Petition No.12 of 1995, inter alia, on the ground that the affidavit accompanying the election petition has not been sworn before the Magistrate oi I Class or Notary or Commissioner of Oaths as prescribed under Rule 94-A of the Conduct of Election Rules in Form No.25 read with Section 81(3) of the R.P. Act, 1951 and the copy of the affidavit served on the petitioner does not contain proper attestation and the allegations of corrupt practices made in Paras 7 to 10 suffer from material irregularity and are vague.
2. It is not disputed before me that the petitioner had contested the X Legislative Assembly Elections from 110 Chilakaluripet assembly segment on behalf of the Indian National Congress (I) Party with the election symbol 'Hand' while the first respondent (petitioner in E.P. 12 of 1995) had contested the said election on behalf of the Telugu Desam party with the election symbol 'Cycle'. The other respondents had also contested the said election. The polling was held on 1-12-1994. The petitioner was declared elected by the Returning Officer, that is Respondent No,20 in the night of 1-12-1994. He had won the election by 131 votes. The first respondent had lost the election as also the other respondents.
3. The first respondent has filed E.P. 12 of 1995 seeking declaration of the election of the petitioner as void, for inspection, scrutiny and recounting of the ballot papers in 110 Chilakaluripet assembly constituency and declaring him as duly elected from the said constituency. The first respondent has alleged in the election petition that on account of various corrupt practices committed by the petitioner and his supporters with his knowledge and consent during the election period, his electoral prospects were materially effected with the result that he lost the election. He has set out in detail the corrupt practices alleged to have been committed by the petitioner in Paras 7 to 10 of the election petition. It is alleged that there was large scale misuse of official machinery to secure victory of the petitioner. A large number of supporters of the first respondent in various villages were arrested two days prior to the poll to prevent those persons from participating in the election process as they were influential persons in their villages. The police had joined hands with the petitioner in furthering his winning chances. The petitioner had visited the village Eviruvaripalem of Chilakaluripet Mandal and had promised the villagers that he would arrange for laying a road from that village to Gorantlavaripalem if the voters vote for him. He had engaged lorries bearing No.ADV 2722 and AP 017 1188 belonging to Dhanalakshmi Cotton Industries, Chilakaluripet on 24-11-1994 and had transported earth to be used in the construction of the road. This act of the petitioner had induced the voters of the said village to vote for him. The petitioners had visited the villages and had promised the villagers that free clothes would be distributed to them and immediately thereafter, sarees and dhothis were distributed through PDS under the Government Scheme. This was done to induce the illiterate rural voters and to make them understand that free clothes were distributed only at the instance of the petitioner. The Mandal Revenue Officer of Chilakaluripet had cooperated with the petitioner in timing for the said distribution. The Village Administrative Officer namely Sri N. Rajeshwara Rao of Village Nadendla in Chilakaluripet constituency who was a public servant openly and actively campaigned for the petitioner with him and the local Member of Lok Sabha namely Sri Kasu Krishna Reddy and had urged the voters to vote for his Party in the elections. It is also alleged that during the counting of votes, the counting officials as also the Returning Officer, that is Respondent No.20, had deliberately declared as invalid, votes validly cast in favour of the first respondent inspite of protests and this was done by the respondent No.20 with a view to help the petitioner in improving his winning chances. It has been lastly alleged that during the counting process of the 7th and the 8th rounds, the votes validly cast in favour of the first respondent were bundled out and counted in favour of the petitioner inspite of protests by his counting agents and the Respondent No.20 had brushed aside the objections raised by the first respondent, The results of the 7th and 8th rounds were not displayed on the board with a view to mislead the counting agents of the first respondent. The respondent No.20 by his proceedings URC No.Nil dated 10-12-1994 had rejected the request of the first respondent for recounting of the 7th and the 8th rounds of counting. The said mistakes had materially affected the case of the first respondent, as the petitioner was declared elected by a margin of 131 votes only.
4. It is a matter of record that the respondents No.2 to 4 and 6 to 19 did not make appearance in the Court inspite of due service of notices and, therefore, they were set ex parte on 28-4-1995. The 5th respondent could not be served and the notice sent to her had been returned with the endorsement that no such person was available in the village. The contesting respondents No.1 and 20 did not file any counter.
5. The petitioner who was arrayed as the first respondent in EP No.S2 of 1995 has filed EA 326 of 1995 for rejecting the election petition on the ground that along with the election petition, an affidavit in Form No.25 as required to be filed in accordance with Rule 94-A of the Conduct of Election Rules has not been filed because it has not been sworn before the Magistrate or Notary or Commissioner of Oaths and the copy of the affidavit supplied to him has not been duly certified as the true copy of the affidavit. The election petition is not in conformity with the mandatory requirements of Section 83 of the R.P. Act. The affidavit is no affidavit in the eye of law. The allegations of corrupt practices are vague. The verification is not proper because the election petitioner has not disclosed the source of information regarding the correctness of the allegations made in Paras 7 to 12 of the election petition. In Para 7, it is not stated as to when the official machinery was misused, who misused the official machinery and in what manner it has been misused. The names of the persons arrested, the date on which they were arrested, the date on which they were released on bail and in what manner the arrested persons were prevented from participating in the election have not been stated in the election petition. Postal acknowledgment evidencing the submission of representation to the Chief Election Commissioner, that is the Returning Officer, on 13-12-1994 has not been filed. It is not stated specifically as to how the petitioner was responsible for the alleged arrest of the said persons. The date of the visit of the petitioner to Eviruvaripalem has not been mentioned in Para 8 of the petition. The names of the villagers to whom the alleged promises have been made and which voter being influenced by such promise had voted in favour of the petitioner have also not been mentioned in the petition. The amount of hiring charges of the vehicles, the names of the persons who paid the hiring charges, names of the coolies engaged and the source of information have not been stated in Para 8 of the petition. Similarly, the date of issuance of order of the Government for distribution of dhothis and sarees to white card-holders, the time of distribution of janata cloth in pursuance of the Government order, the dates on which the clothes were distributed have not been supplied in the petition. The names of the voters to whom the sarees or dhothis have been distributed have not been given in the election petition. It is alleged that the Village Administrative Officer was a part time employee and was not a public servant. There is no reference regarding the particular code of conduct which has been breached by the Village Administrative Officer. Similarly, the allegation that the Lok Sabha Member Shri Kasu Krishna Reddy had accompanied the petitioner during the election campaign to Nandyal village and had induced the voters to vote for Indian National Congress (1) Party is very vague. The ballot papers contained the serial numbers. The serial numbers of the alleged votes validly caste in favour of the first respondent but declared invalid have not been given in Para 11 of the election petition. It has also not been stated as to in which round of counting and at what table the alleged defect was detected. The number of such votes has also not been mentioned. The allegations that the 20th respondent did not maintain the counting result chart on the board properly and that the counting of the 8th round was taken out without finalising the 7th round are vague and irrelevant. The serial number of the ballot papers through which the votes cast in favour of the first respondent were counted in favour of the petitioner, the table at which that was done, the round of counting in which it was done and the names of the counting agents etc., have not been supplied in the election petition. The allegation have been made on the basis of doubt. Similarly, the allegation that the invalid votes polled in favour of the petitioner were declared valid is vague because no such allegation has been made in the complaint lodged before the Returning Officer, that is respondent No.20 on 12-10-1994. The petitioner, therefore, prays that Paras 7 to 12 of the election petition should be struck out and the election petition be dismissed with costs.
6. The petitioner has also filed a recrimination petition which is yet to be numbered.
7. The contesting first respondent, that is the election petitioner in EP 12 of 1995 did not file any counter to EA 326 of 1995. The other respondents also did not contest this application.
8. I have heard Sri Movva Chandra Sekhara Rao, learned senior Counsel appearing on behalf of the petitioner and Sri V. Brahmaiah Chowdary, learned Counsel for the first respondent.
9. After discussing the law laid down in the cases of Ch. Subbarao v. Member, Election Tribunal, , Smt. Sahodrabai Rai v. Ram Singh Aharwar and others, , Manohar Joshi v. Nithin Bhaurao Patil and another, , and Mithilesh Kumar Pandey v. Baidyanath Yadav, , it has been held in the case of Dr. (Smt.) Shipra v. Shanti Lal Khoiwal etc., AIR 1996 SC 1691, that:
"The concept of substantial compliance with statutory provisions cannot be extended to overlook serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy. Verification by a notary or any other prescribed authority is a vital act which assures that the election petitioner had affirmed before the notary etc., that the statement containing imputation of corrupt practices was duly and solemnly verified to be correct statement to the best of his knowledge or information as specified in the election petition the affidavit filed in support thereof; that reinforces the assertions. Thus affirmation before the prescribed authority in the affidavit and the supply of its true copy should also contain such affirmation so that the returned candidate would not be misled in understanding that imputation of corrupt practices was solemnly affirmed or duly verified before the prescribed authority. For that purpose, Form 25 mandates verification before the prescribed authority. The objection appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy cannot be said to be a curable irregularity. Allegations of corrupt practices are very serious imputations which, if proved, would entail civil consequences of declaring that he became disqualified for election to a maximum period of six years under Section 8-A, apart from conviction under Section 136(2). Therefore, compliances of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petitioner in his/ her own signature. The principle of substantial compliances cannot be accepted in the fact situation.
The plea that the election petition cannot be dismissed under Section 86 at the threshold on account of the omission on the part of the Registry of the High Court to point out the same as per its procedure, cannot countenanced. Lapse on the part of the Registry is not an insurance to deny to the returned candidate the plea that the attestation of the affidavit and its certification to be a true copy is an integral part of the pleading in the election petition. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read, if the Court finds on an objection being raised by the returned candidate as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objection, the election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same."
10. In the case of Dr. (Smt.) Shipra (supra) it has been observed that in the case of Ch. Subba Rao (supra), Sml. Sahodrabai Rai (supra), Manohar Joshi (supra) and Mithilesh Kumar Pandey (supra):
"though the affidavit or the election petition contained the allegation of corrupt practices and true copies were served, the omissions in the copies were not of material facts which become an integral part of the election petition or the pleadings. Therefore, this Court had not insisted upon the strict standard of the scrutiny as required under Section 86 of the Act. In none of the cases, the question has arisen whether copy of the affidavit supplied to the respondent without the attestation portion contained in it (though contained in the original affidavit) can be considered to be true copy?".
11. In the case of Harcharan Singh Josh v. Hari Kishan, , the Apex Court has observed that the copy of the affidavit supplied to the respondent did not contain the affirmation by the Oath Commissioner. Relying on Dr. (Smt.) Shipra's case, (supra), the Bench of three judges of Apex Court in this case has held that the defect is not a curable defect and, therefore, confirmed the order of dismissal of Election Petition on this ground, because it was sustainable in law.
12. Relying on the case of F.A. Sapa v. Singora, , and Dr. (Smt.) Shipra's case (supra), a learned single Judge of this Court has held in the case of M. Ranga Reddy v. Indrasena Reddy, 1997 (5) ALD 330, that:
"...failure to supply true copy as required under Section 83(1)(c) of the Act by the election petitioner to the returned candidate is fatal to the election petition. When once an objection is filed under Section 86(1) of the Act, the Court has no option but to dismiss the election petition, if satisfied that the election petition is not in confirmity with Section 83(1)(c) of the Act read with Rule 94(A) of the Rules."
13. I had also an occasion to deal with the similar question in the case of N. Indrakaran Reddy v. A. Kamaladhar & others in EA No.557 of 1997 in EP No.3 of 1996, dated 21-8-1998 and was in complete agreement with the view expressed by the learned single Judge of this Court in M. Rangareddy's case (supra) and the allegations of corrupt practices were ordered to be struck off as copy of the affidavit was not found to be the true copy of the original affidavit.
14. Testing the facts of the case on hand on the touch stone of the law laid-down in Dr. (Smt.) Shipra 's case (supra) and quoted with the approval in the case of Harcharan Singh Josh (supra), I find that a copy of the affidavit supplied to the returned candidate, i.e., the petitioner, does not contain the attestation as required under Section 83(3) of the R.P. Act read with Rule 94(A) of the Election Conduct Rules. The petitioner was not supplied with such verification by the competent authority who had attested the original affidavit filed along with the election petition certifying it to be true copy. It appears only to be signed by the Respondent No.I under the heading 'True copy' leaving blanks above it, though in the original affidavit, it bears signature and seal of the Section Officer (OS) and Commissioner of Oaths, High Court of Andhra Pradesh, Hyderabad.
15. For the foregoing reasons, Paragraphs 7 to 10 of the Election Petition, EP No. 12 of 1995, in which allegations of corrupt practices have been made are liable to be struck off, because they arc not pleaded in conformity with Form-25 read with Rule 94( A) of the Rules and Section 83(1) of the R.P. Act in-as-much-as there is material defect in the true affidavit, which is an integral part of the Election Petition.
16. The Election Petitioner, i.e., Respondent No.1, has not mentioned the serial number of numbers of such ballot papers about which it has been alleged that votes were validly cast through them in his favour, but were declared as invalid. Similarly, it has not been mentioned as to in which round of counting and at which table, the alleged defect, irregularity or dishonesty was detected. The source of information, of declaring such valid votes alleged to have been cast in favour of the first respondent but declared as invalid, has also not been mentioned. On perusal of complaint, Annexure-III, dated 10-12-1995, it appears that it was lodged after counting was over and before the declaration of result. This complaint lacks material facts and particulars relating to violation of procedure in respect of ballot papers.
17. In Paragraph 12 of the Election Petition, though it has been alleged that during the counting process, at 7th and 8th rounds, votes validly cast in favour of first respondent were bundled up and counted in favour of the petitioner, but serial numbers of ballot papers in question have not been mentioned in this para. Similarly, it has also not been mentioned at which table this mischief had been done as also in which round of counting. On perusal of the contents of this paragraph, it appears that the allegations regarding counting of votes are based on 'doubt'.
18. The Election Agents or Counting Agents in all counting stations are supposed to be possessed of ample opportunity to examine the ballot papers at the time of scrutiny, rejection and acceptance. In respect of each ballot paper, the Election Petitioner or in his absence, his election agent or his counting agent should be in a position to set out precisely their objections for acceptance or rejection of the ballot papers. In order to find out the genuineness of the grievance, it is only when the ballot paper numbers are given with respect to those ballot papers, with respect to which there is any grievance that the same can be scrutinised. Absence of such information which the petitioner alone should have known or should be deemed to know, any inspection of the ballot paper would be merely roving or fishing enquiry, which precisely is" prohibited under Section 83(1)(a) of the R.P. Act vide Narain Chand Prashar v. Prem Kumar, .
19. From what is pointed in the preceding paragraphs, it appears that the allegations made in paragraphs 11 and 12 of the Election Petition lack in material particulars and absence of pleading material facts amounts to disobedience of mandatory provisions under Section 83(3)(a) of the R.P. Act; with the result that, on the basis of allegations made, no cause of action appears to have arisen for setting aside the election of the petitioner.
20. In result, Paragraphs 7 to 10 of the Election Petition in EA No.3 of 1995 are ordered to be struck off. As no cause of action has arisen on account of allegations made in Paragraphs 11 and 12 of the Election Petition, it deserves to be dismissed. Accordingly the Election application, EA No.326 of 1995 is allowed and as a sequel to that, EP No.12 of 1995 stands dismissed. However, in the circumstances of the case, I leave the parties to bear their own costs.