Bombay High Court
Azambhai Fakhirbhai Pansare vs Shri Gajanan Dharamshi Babar & Others on 19 April, 2000
Equivalent citations: 2000(3)BOMCR778, (2000)2BOMLR752
Author: S.S. Nijjar
Bench: S.S. Nijjar
ORDER S.S. Nijjar, J.
1. By way of this election petition, the petitioner seeks setting aside of the election of first respondent from Haveli Assembly Constituency, Dist. Pune being Maharashtra Assembly Constituency No. 245. For ready reference relevant portions of the pleadings in the petition may be noticed.
2. In para 1 it is stated that elections were held on 11th September, 1999 and the result was declared on 7th October, 1999. In para 2 it is stated that the petitioner was nominated as a candidate of Nationalist Congress Party (NCP) having been allotted a symbol of "Clock". The respondent was a candidate of Shiv Sena Party having been allotted a symbol of "Bow and Arrow". The details about other candidates are irrelevant. In all there were seven candidates. Paragraph 3 sets out the total number of votes cast and the number of votes polled by each candidate. In para 4 it is stated that the first respondent has adopted, corrupt practice within the meaning of section 123(3) read with section 100(1)(b) of the Representation of the People Act, 1951, hereinafter referred to as "the Act". In para 5 it is stated that the petitioner is following Muslim religion whereas the first respondent is following the Hindu religion... 80 to 90 per cent of the voters in the Constituency are Hindus. It is stated that the first respondent in order to seek votes in the name of religion has issued a hand bill. In this hand bill the work allegedly done by the first respondent is enumerated. The hand bill also enumerates the promises of future work to be done. An appeal to the voters to vote for the first respondent has been enumerated in the hand bill. In paragraph 6, the petitioner states that in the hand bill the first respondent has alleged that in last election first respondent was elected from the Constituency because of his deep faith in Hindutva. In the hand bill it is further stated that if Mr. Sharad Pawar is going to pamper the muslims by putting up the candidature of a muslim candidate form Nationalist Congress Party, like the petitioner, then the first respondent has a right to seek votes in the name of Hindu religion. It is stated that the first respondent appealed to the voters to vote for him as the first respondent believed in Hindutva and the voters as Hindus should make him successful. In para 7 the petitioner states that the hand bill is shown to have been published by Shri Netaji Chavan, Campaign in-charge of first respondent. The band bill is shown to have been printed by M/s. Balaji Suppliers, Dattawadi, Akurlu, Pune. More than 10,000 hand bills were distributed in the constituency. This fact was told to the petitioner by some of the voters after the election was over i.e. after 11th September, 1999. The details of distribution of the hand bills are as under, (8) Mr. Pramod Mahadev Yande residing at Kirloskar Society, Sector 21, Yamuna Nagar, Nigadi, Pune-411 044 has received the hand bill on 9th Sept., 1991. The hand bill was received by Yande from the party worker of the first respondent viz. Netaji Chavan who was the campaign Manager of the first respondent.
(9) Dr. Rajesh Subhash Mehta received the hand bill on 9th September, 1999 distributed by one Vijay Singhvi.
(10) Gautam Chabukswar received the hand bill on 8th September, 1999. The hand bill was distributed by Netaji Chavan.
In para 11 it is stated that though the said hand bill is shown to have been published by Netaji Chavan, in fact it is published by the first respondent himself. The hand bills were distributed by the first respondent himself in the constituency. The hand bills were also distributed by Netaji Chavan and Vijay Singhvi with the consent of the first respondent. It is reiterated that Netaji Chavan was the Campaign Manager of the first respondent. It is also stated that Vijay Singhvi had actively campaigned for the first respondent when the first respondent was present. Even assuming that the hand bill was not published by the first respondent, the same was published by Netaji Chavan with the consent of the first respondent. The hand bill is shown to have been printed by M/s. Balaji Suppliers, Dattawadi, as per the orders placed by the first respondent. Thus, the printing, publishing and distribution of the hand bills having offending appeal was done by the first respondent and/or with the consent of the first respondent. In paragraph 12 the petitioner states that due to the appeal in the name of religion of first respondent i.e. Hindu religion and more particularly because the petitioner is following muslim religion, the Hindu voters were impressed to vote for the first respondent merely because he was a Hindu by religion. The petitioner states that the appeal squarely falls within the meaning of section 123(3) of the Act. Thus the election of the first respondent is liable to be set aside on the ground covered by section 123(3) read with section 100(i)(b) of the Act. In paragraph 13 the petitioner states that all the votes secured are tainted votes because of the corrupt practice committed by the first respondent. If all the tainted votes are excluded, then the petitioner has secured the highest number of valid votes. The petitioner is, therefore, entitled to be declared elected from the constituency.
3.The verification of the petition is as follows :
"I, AZAMBHAI FAKHIRBHAI PANSARE, the petitioner abovenamed, residing at Pune today in Mumbai do hereby solemnly declare that what is stated in paragraph Nos. 1 to 4, 16 of the foregoing petition is true to my personal knowledge and what is stated in the remaining paragraph Nos. 5 to 10, 11, 12 to 15, 17 to 18 is stated on information and by way of legal submissions and I believe the same to be true.
Solemnly declared at bombay )
dated this 19th day of November ) Sd/-
1999. ) Before me
Sd/-
19-11-99
Mrs. K.M. Rane
Associates,
High Court, Bombay.
Sd/-
Advocate for the petitioner."
The petition is accompanied by an affidavit which is reproduced hereunder.
"AFFIDAVIT I, Azambhai Fakhirbhai Pansare, residing at Pune at present in Mumbai, the petitioner in the accompanying election petition calling in question the election of Shri Gajanan Dharamshi Babar (respondent No. 1 in the said petition) make solemn affirmation/oath and say---
(a) that the statements made in paragraphs 5 to 7 and 11 of the said petition about the commission of the corrupt practise of distributing hand bills in the Haveli Assembly Constituency and seeking votes from the voters in the name of Hindu religion appealing to the voters to vote for the 1st respondent in the name of the religious of the 1st respondent i.e. Hindu Religion is on information which I believe the same to be true and the particulars of such corrupt practise given in paragraphs 8, 9, 10, 11 of the said petition are true to my information.
Sd/-
Signature of Deponent.
Solemnly affirmed/Sworn by )
Shri Azambhai Fakhirbhai pansare )
at Mumbai this 19th day of )
november, 1999. ) Sd/-
Before me.
Sd/-
Advocate for petitioner Sd/-
(Mrs. K.M. Rane)
Associate,
High Court, Bombay."
4. The respondent has filed written statement denying the allegations made in the petition. It is denied that the hand bill at Exhibit-A and A-I to the petition was issued by respondent No. 1. It is stated that the hand bill actually issued is attached at Exhibit-C to the petition. A number of preliminary objections have been taken. On the basis of the pleadings, the following issues have been framed.
1. Whether the respondent No. 1 proves that the election petition is liable to be dismissed for non joinder of parties, whose names are set out in paragraph 2 of the Written Statement of the 1st respondent?
2. Whether the 1st respondent proves that the election petition is liable to be dismissed for non service of a true copy of the petition on the 1st respondent as stated in paragraph 4 of the written statement of the 1st respondent?
3. Whether the 1st respondent proves that the election petition is liable to be dismissed for non disclosure of material facts and particulars as contended in paragraph 6 of the Written Statement of the 1st respondent?
4. Whether the 1st respondent proves that the election petition is liable to be dismissed as the affidavit in support of the petition is not in prescribed form?
5. Whether the 1st respondent proves that the election petition is liable to be dismissed as the hand bill at Ex. "A" to the election petition is not verified in the manner required, as contended in paragraph 8 of the Written Statement of the 1st respondent?
6. Whether the petitioner proves that the election in question of the 1st respondent is liable to be set aside for having committed a corrupt practice as defined under section 123(3) i.e. making an appeal in the name of the religion of the 1st respondent i.e. Hindu Religion by publishing and/or distributing hand bill, which is annexed at Ex. "A" to the election petition?
7. Whether the petitioner proves that after setting aside the election of the 1st respondent, the petitioner is entitled to be declared elected from Haveli Assembly Constituency, District Pune, being Maharashtra Assembly Constituency No. 245?
8. What order as to costs?
9. What final order?
Issues Nos. 1 to 5 have been treated as preliminary issues.
5. Mr. Kantikar, learned Counsel appearing for respondent No. 1, has submitted that at present issue No. 1 is not being pressed. With regard to Issue No. 4, it is submitted that the affidavit filed in support of the petition is not in conformity with Rule 94-A of the Conduct of Election Rules, 1961, hereinafter referred to as "the Rules", read with section 83 of the Act. Secondly it is submitted that the affidavit is not in conformity with Form No. 25 as the affirmation does not state that the affidavit has been signed in the presence of the Associate. It is also submitted that the affidavit is liable to be ignored as the source of information with regard to the alleged corrupt practice has not been disclosed. Therefore, it is submitted that the verification of the petition as well as the affidavit is not in the prescribed form. Thus the petition is no petition in the eye of law. In support of his submission on non-compliance of Rule 94-A and Form No. 25 the learned Counsel relied on (i) Purushottam v. Returning Officer, Amravati and ors., , (ii) Shivajirao B. Patil Kawekar v. Vilasrao D. Deshmukh, : and (iii) Vinod Ramchandra Ghosalkar v. Sunit Dattatraya Tatkare and ors., . On the point of non-disclosure of sources of information reliance is placed on L.R. Shivaramagowda and others v. T.M. Chandrashekhar (dead) by L.Rs. and others, and V. Narayanaswamy v. C.P. Thirunavukkarasu, .
6. Mr. Vashi, learned Counsel appearing for the petitioner, has submitted that Form No. 25 has been complied with. Necessary particulars have been given. Form No. 25 does not say that the affirmation has to be signed before the affirming officer. Learned Counsel has pointed out to the form of verification as contained in Form No. 25 and compared the same with the affirmation in the affidavit. He submits that the form of affirmation has been bodily lifted from Form No. 25 and reproduced at the end of the affidavit. Therefore, the petition cannot be rejected on the ground that the affirmation is not in terms of Form No. 25. He further submits that any defect in the affirmation or verification is curable by amendment. It is not fatal to the maintainability of the petition. He submits that the judgment of the Bombay High Court in Purushottam (supra) is not applicable in the facts of this case, as it dealt with non-supply of "True copy" of the petition. The verification and affirmation in the petition was not under consideration of the Court. In support of these submissions Mr. Vashi relies on F.A. Sapa etc. v. Singora and ors., , Muraka Radhey Shyam Ram Kumar v. Roop Singh Rathore, A.I.R. 1994 S.C. 1545, Dr. Shipra v. Shanti Lal Khoiwal, , T.M. Jacob v. C. Poulose, , Anil R. Deshmukh v. Onkar N. Wagh and ors., , H.D. Revanna v. G. Puttaswamy Gowda, and V. Narayanaswamy v. C.P. Thirunavukkarasu .
7. I have considered the arguments of the learned Counsel anxiously. The affirmation reproduced above shows that it is a replica of the prescribed affirmation in Form No. 25. Therefore, it cannot be held that the affirmation is not in accordance with Form No. 25. But, this in itself is not sufficient to hold that the affidavit is in the prescribed form. The law with regard to the pleadings in the petition and affidavit in support of the grounds of corrupt practices has been restated by the Supreme Court in the case of V. Narayanaswamy (supra). In para 24 the Supreme Court observed as follows :---
"24. It will be thus seen that an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such. 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 non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e. Clause (a) of sub-section (1) of section 83. Then under Clause (b) of sub-section (1) of section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. 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 corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the Court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegations could have no legal existence and the Court could not take cognizance thereof. Charge of corrupt practice being quasi criminal in nature the Court must always insist on strict compliance with the provisions of law. In such a case, it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in section 83 of the Act on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of section 83 may lead to dismissal of the petition if the matter falls within the scope of the Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings, it is no part of duty of the Court suo motu even to direct furnishing of better particulars when objection is raised by other side. Where the petition does not disclose any cause of action it has to be rejected. Court, however, cannot direct the pleadings into several parts and consider whether each one of them discloses a cause of action. Petition has to be considered as a whole. There cannot be a partial rejection of the petition."
8. In Shivaramagowda's case (supra), the Supreme Court considered the importance of setting out the sources of information. The Supreme Court noticed and reproduced the relevant passages from a number of cases. These may be reproduced for facility of reference.
"12A. In Virendra Kumar Saklecha v. Jagjiwan, this Court stressed the importance of disclosure of sources of information in the affidavit filed along with the election petition. The relevant passage read thus : (S.C.C. pp. 830 & 831, paras 10, 13-15) :
"10. The respondent filed an affidavit along with the election petition. The affidavit did not disclose the source of information in respect of the speeches alleged to have been made by the appellant. Section 83 of the Act requires an affidavit in the prescribed form in support of allegations of corrupt practice. Rule 94-A of the Conduct of Election Rules, 1961, requires and affidavit to be in Form No. 25. Form No. 25 requires the deponent to state which statements are true to knowledge and which statements are true to information. Under section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Under section 102 of the Code the High Court may make rules regulating their own procedure and the procedure of the civil courts subject to their supervision and may by such rules vary, alter or add to any of the rules in the First Schedule to the Code.
13. The importance of setting out the sources of information in affidavits came up for consideration before this Court from time to time. One of the earliest decisions is State of Bombay v. Purushottam Jog Naik, where this Court endorsed the decision of the Calcutta High Court in Padmabati Dasi v. Rasik Lal Dhar, I.L.R. 1909(37) Cal. 259 and held that the sources of information should be clearly disclosed. Again, Barium Chemicals Ltd. v. Company Law Board, this Court deprecated slipshod verifications in an affidavit and reiterated the ruling of this Court in Bombay case that verification should invariably be modelled on the lines of Order 19, Rule 3 of the Code whether the Code applies in terms or not. Again in A.K.K. Nambiar v. Union of India, this Court said that the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations.
14. Counsel on behalf of the appellant contended that non-disclosure of the sources of information in the affidavit was a fatal defect and the petition should not have been entertained. It is not necessary to express any opinion on that contention in view of the fact that the matter was heard for several months in the High Court an thereafter the appeal was heard by this Court. The grounds or sources of information are to be set out in an affidavit in an election petition. Counsel on behalf of the respondent submitted that the decisions of this Court were not on election petitions. The rulings of this Court are consistent. The grounds or sources of information are to be set out in the affidavit whether the Code applies or not. Section 83 of the Act states that an election petition shall be verified in the manner laid down in the Code. The verification is as to information received. The affidavit is to be modelled on the provisions contained in Order 19 of the Code. Therefore, the grounds or sources of information are required to be stated.
15. The non-disclosure of grounds or sources of information in an election petition which is to be filed within forty-five days from the date of election of the returned candidate, will have to be scrutinised from two points of view. The non-disclosure of the grounds will indicate that the election petitioner did not come forward with the sources of information at the first opportunity. The real importance of setting out the sources of information at the time of the presentation of the petition is to give the other side notice of the contemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the sources of information. The other point of view is that the election petitioner will not be able to make any departure from the sources or grounds, if there is any embellishment of the case it will be discovered."
15. In Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, a Division Bench of which one of us (Anand, J. as he then was) was a member dealt with this aspect of the matter in extenso and held that allegations of corrupt practice must be properly alleged and both material facts and particulars should be provided in the petition itself so as to disclose the complete cause of action. The relevant passage in the judgment reads thus :
"16. The election law insists that to unseat a returned candidate, the corrupt practice must be specifically alleged and strictly proved to have been committed by the returned candidate himself or by his election agent or by any other person with the consent of the returned candidate or by his election agent. Suspicion, however strong, cannot take the place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence. Since pleadings play an important role in an election petition, the legislature has provided that the allegations of corrupt practice must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action.
17. Section 83 of the Act provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must set forth full particulars of the corrupt practice that he alleges including as full a statement as possible of the name of the parties alleged to have committed such corrupt practices and the date and place of the commission of each of such corrupt practice. This section has been held to be mandatory and requires first a concise statement of material facts and then the full particulars of the alleged corrupt practice, so as to present a full picture of the cause of action.
18. A petition levelling a charge of corrupt practice is required, by law to be supported by an affidavit and the election petitioner is also obliged to disclose his source of information in respect of the commission of the corrupt practice. This becomes necessary to bind the election petitioner to the charge levelled by him and to prevent any fishing or proving enquiry and to prevent the returned candidate from being taken by a surprise."
16A. We have already extracted paras (f) and (g) of the affidavit filed along with the election petition. It does not disclose the source of information. Nor does it set out which part of the election petition was personally known to the petitioner and which part came to be known by him on information. Significantly, paras (a) to (e) of the affidavit state that the averments therein are true to his information. Para (f) is silent on this aspect of the matter. Para (g) refers to all the 42 paragraphs in the petition. The affidavit is not in conformity with the prescribed Form No. 25. Thus there is a failure to comply with Rule 94-A of the Conduct of Elections Rules. It is a very serious defect which has been over looked by the High Court,"
9. Keeping the aforesaid principles in view, let me examine the pleadings. It can readily be seen from the pleadings noted above, that source of information is not disclosed in the petition. There are bald assertions about some voters giving information of one fact mentioned at the end of paragraph 7. That sentence merely states that 10,000 copies of the hand bill were distributed. Thus there is total non-disclosure of the source of information as to the names of these voters. How were hand bills distributed? When were the hand bills distributed? Excepting that the hand bill was received by three persons on 8-9-99 and 9-9-99 no other source of information is disclosed. There is a bald statement about the fact that the hand bill was published, printed and distributed with the consent of respondent No. 1. Again the source of information is missing. According to the affidavit paragraphs 5 to 7 contain material facts but again the source of information is not disclosed. Similarly, it is not known as to who supplied the information with regard to paras 8, 9 and 10. A perusal of these paragraphs would show that they do not state that the three persons mentioned in these paragraphs had told the petitioner about the receipt of the hand bill. There is total non-disclosure of source of information with regard to the pleadings contained in paragraph 11. Apart from the non-disclosure of sources of information, the verification has been done in a 'slip shod' manner. The verification of paras 1 to 4 of the petition are to the personal knowledge of the petitioner. Paras 5 to 10, 11, 12 to 15, 17 to 18 are verified on information and by way of legal submissions. In para 4 the petitioner has pleaded that respondent No. 1 has committed corrupt practice within the meaning of section 123(3) read with section 100(i)(b) of the Act. This is said to be to the "personal knowledge" of the petitioner. The material facts set out in paras 5 to 10 are said to be based on information. Clearly, therefore, what is stated in paragraph 4 could not be to the personal knowledge of the petitioner. Further facts set out in paragraph 5 are with regard to the composition of the voters in the Constituency. Yet, it is not to the personal knowledge of the petitioner. Here again source of information is missing. Paragraph 17 states that the petitioner has deposited a sum of Rs. 2,000/ - being the security amount. It is verified on information and by way of legal submission. Surely, this fact must be to the personal knowledge of the petitioner, If not then who informed the petitioner that the security amount has been deposited? In fact nothing in the petition is to the personal knowledge of the petitioner. Even then the source of information is not disclosed either with regard to the material facts or with regard to the particulars. Therefore, it has to be held that the affidavit is not in conformity with Rule 94-A and Form No. 25.
10. Mr. Vashi has placed strong reliance on Sapa's case (supra) to submit that the Court should give an opportunity to cure the defects in the pleadings, the verification and the affirmation of the affidavit. In that case the returned candidates had moved for striking off the pleadings under Order VI, Rule 16 of the C.P.C. Thereupon the original petitioners applied for amendment of their election petitions. The High Court partly allowed the application under Order VI, Rule 16. On perusal of the pleadings the High Court directed the modification or deletion of certain paragraphs, the averments wherein were vague or bereft of necessary particulars. The application for dismissal of the petition on the ground that it did not disclose a cause of action was rejected. The Supreme Court examined the relevant provisions of the Act and the Code and observed as follows in paragraphs 18 and 27.
"18. Before the amendment of the R.P. Act by Act 27 of 1956, section 83(3) provided for an amendment of an election petition insofar as particulars of corrupt practice were concerned. By the 1956 amendment this provision was replaced by section 90(5) which in turn came to be deleted and transferred as sub-section (5) of section 86 by the Amendment Act 47 of 1966. Section 86(5) as it presently stands empowers the High Court to allow the particulars of any corrupt practice alleged in the petition to be amended or amplified provided the amendment does not have the effect of widening the scope of the election petition by introducing particulars in regard to a corrupt practice not previously alleged or pleaded within the period of limitation in the election petition. In other words the amendment or amplification must relate to particulars of a corrupt practice already pleaded and must not be an effort to expand the scope of the inquiry by introducing particulars regarding a different corrupt practice not earlier pleaded. Only the particulars of that corrupt practice of which the germ exists in the election petition can be amended or amplified and there can be no question of introducing a new corrupt practice. It is significant to note that section 86(5) permits particulars, of any corrupt practice alleged in the petition to be amended or amplified and not the material facts. It is, therefore, clear from the trinity of Clauses (a) and (b) of section 83 and subsection (5) of section 86 that there is a distinction between material facts referred to in Clause (b) and what section 86(5) permits is the amendment/amplification of the latter and not the former. Thus the power of amendment granted by section 86(5) is relatable to Clause (b) of section 83(1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the election petition. The power is not relatable to Clause (a) of section 83(1), as the plain language of section 86(5) confines itself to the amendments of particulars of any corrupt practice alleged in the petition and does not extend to material facts. This becomes crystal clear on the plain words of the closely connected trinity of sections 81(1)(a), 83(1)(b) and 85(5) and is also supported by authority. See Samant N. Balkrishan v. George Fernandez, and D.P. Mishra v. Kamal Narayan Sharma, . In Balwan Singh v. Lakshmi Narain, this Court held that if full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to avail of that opportunity that part of the charge may be struck down. We may, however, hasten to add that once the amendment sought falls within the purview of section 86(5), the High Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience, vide Raj Narain v. Indira Nehru Gandhi, . This much for the provisions of section 83(1)(a) and (b) and section 86(5) of the R.P. Act."
"27. From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6, Rule 15 and Order 19, Rule 3 of the Code and the resume of the case law discussed above, it clearly emerges (i) a defect in the verification, if any, can be cured, (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true, (iii) if the respondent desires better particulars in regard to such averments or allegations he may call for the same in which case the petitioner may be required to supply the same, and (iv) the defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, under section 81(3) as indicated earlier. Similarly the Court would have to decide in each individual case whether the schedule or annexure referred to in section 83(2) constitutes an integral part of the election petition or not; different considerations will follow in the case of the former as compared to those in the case of the latter."
A perusal of the above shows that an opportunity should be given to amend if the application is made on the preliminary objection being raised by the returned candidate. In that case the petitioners had immediately made application for amendment. They did not simply make an oral statement that they will amend and then continue the arguments on preliminary objections. The Supreme Court has emphatically laid down that it is the discretion of the High Court whether to allow the amendment. This discretion has to be exercised keeping in view the provision contained in section 86(5) of the Act. This sub-section provides that the High Court may allow the particulars of any corrupt practice alleged in the petition to be amended or amplified. The Court must form an opinion as to the amendment being necessary for the fair trial of the petition. The observations of the Supreme Court in paragraph 18 reproduced above cannot be stretched to mean that the Court has to suo motu request or direct the petitioner to amend. The Supreme Court rather observes that once the amendment falls within the purview of section 86(5) the Court should be liberal in allowing the amendment unless, in facts and circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. Thus it becomes clear that no duty is cast on the High Court to request the petitioner to amend. Once the preliminary objection is raised it is the duty of the petitioner to take out the necessary application for amendment. Thus, Mr. Vashi's argument about curability cannot be accepted in the facts of this case. The point even otherwise is squarely covered against the petitioner by the subsequent judgment of the Supreme Court in the case of V. Narayanswamy (supra). In paragraph 28 the Supreme Court observes as follows :
"28. It is contended by Mr. Bhandare that all the material facts have been stated in the election petition and that for lack of material particulars, the petition could not have been thrown out at the threshold. He said opportunity should have been given to the appellant to supply the material particulars. It is really a strange proposition to advance. Till the date of the impugned judgment appellant had persisted that the petition did not lack material particulars and that the verification was in accordance with the Code and the affidavit in support of the corrupt practice in the form prescribed. Admittedly, the petition lacked material particulars, verification to the petition was not in accordance with the Code and the affidavit did not conform to the form prescribed. At the first opportunity, the respondent raised objection that the petition lacked both material facts and the material particulars and that the verification to the petition and the affidavit were not in accordance with law. This was repeated in the miscellaneous application (Original Application No. 298/98), in the counter affidavit and in the reply to the miscellaneous application, the appellant persisted in his stand and termed the objections raised by the respondent as irrelevant. It is not that the appellant did not have opportunity to correct his mistake which he could have easily done in the rejoinder filed by him to the counter affidavit of the respondent or even his reply to the miscellaneous application (O.A. No. 298/98). He had every opportunity even at that stage to supply the material particulars which admittedly were lacking and also to amend the verification and to file the affidavit in the form prescribed but for the reasons best known to him he failed to do so. The existence of material facts, material particulars, correct verification and the affidavit are relevant and important when the petition is based on the allegation of corrupt practice and in the absence of those the Court has jurisdiction to dismiss the petition. High Court has undoubtedly the power to permit amendment of the petition for supply of better material particulars and also to require amendment of the verification and filing of the required affidavit but there is no duty cast on the High Court to direct suo motu the furnishing of better particulars and requiring amendment of petition for the purpose of verification and filing of proper affidavit. In a matter of this kind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with the provisions of law is on the petitioner (See in this connection Constitution Bench decision in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, ."
This point was also raised in the case of Pannalal S.S. v. Hitendra Vishnu Thakur, , which is dealt with in paragraph 13 of the judgment as follows :---
"13. It is settled position that section 83 is mandatory and for breach of which election petition is liable to be rejected summarily as pointed out in two Rajiv Gandhi cases by the Apex Court which are mentioned earlier.
The learned Counsel for the respondent is, therefore, right in his submission that the petition is bald and vague and does not contain the essential particulars, and therefore, the petition is liable to be rejected. But at the time of arguments, the petitioner contended that though particulars are lacking in the election petition, he will furnish it by filling an application for amendment and placed reliance on section 86(5) of the Representation of the People Act which no doubt provides for amendment of an election petition. He also relied on D.P. Mishra v. Kamal Narayan Sharma, where the Apex Court has observed that the election petition can be amended later on to furnish the particulars.
In the written statement, specific pleas are taken pleading want of particulars in the election petition. Then issues are framed and preliminary issues regarding this question were decided to be heard as preliminary issues. Even till today the petitioner has not made any application for amendment of the petition by furnishing the required particulars. The Court cannot wait indefinitely expecting that the petitioner may furnish particulars at some point of time. When once issues are framed, the trial should commence immediately and there is no reason for waiting indefinitely for the petitioner to file an application for amendment as and when he chooses. In fact, this position has been made clear by the Apex Court in Rajiv Gandhi case which is referred to earlier on another point. Even in that case, a similar contention was urged by the election petitioner before the Supreme Court that the High Court by rejecting the election petition under Order VII, Rule 11 upholding the preliminary objections has deprived the petitioner's opportunity to amend the petition and to make good the deficiencies by supplying the necessary particulars and details of the corrupt practice alleged in the petition. The Apex Court rejected this argument. The Apex Court observed that the appellant had not expressed any desire and did not make any application for amendment in the High Court. It was pointed out that it was open to the appellant to have made that application, but he himself did not make any such application. Then the Apex Court has observed in para 13 at page 1587 as follows :---
"The High Court was under no legal obligation to direct the appellant to amend pleadings or to suo motu grant time for the same.... The question, however does not arise as the appellant did not file any amendment application."
In fact, in this case the petitioner filed an earlier amendment application for certain other purposes which has been partly allowed. Till today, he has not made any application for amending the petition by furnishing the particulars of corrupt practices as required by law under section 83(1)(b) of the Act."
In this case although the argument about amendment has been raised, but no application for amendment has been made. Issue No. 4 is, therefore, answered in the affirmative and it is held that the affidavit is not in the prescribed form.
11. With regard to Issue No. 3, it has to be seen whether the material facts have been pleaded. Mr. Kanitkar submits that neither material facts nor full particulars of the corrupt practice have been pleaded in the election petition. The petition does not disclose a full cause of action. He submits that it was necessary to precisely state (i) By whom the corrupt was committed, (ii) what was the corrupt practice, (iii) when was it committed, (iv) in what manner were the hand bills distributed, (v) source of information as to which voters had informed the petitioner; (vi) when was the consent given by the petitioner, (vii) to whom the consent was given, (viii) How was the consent given and (ix) what was the source from which the petitioner learnt of the consent. He further submitted that consent cannot be inferred. In support of his submission the learned Counsel relies on the case of V. Narayanaswamy (supra), Azar Hussain v. Rajiv Gandhi, ; R.P. Moidutty v. P. T. Kunju Mohammad and anr., , L.R. Shivaramagowda (supra) and the judgment of this Court in the case of Pannalal (supra). Mr. Vashi submits that the respondent is mixing up material facts with particulars. Petition would only fail if material facts are not set out. If full particulars are not set out the defect can be cured by amendment. He submits that the Court would have to give an opportunity to the petitioner to set out the full particulars. In any event all the necessary ingredients under section 123(3) have been pleaded. It has been pleaded that 80 per cent of the Voters are Hindus. Respondent is a Hindu, Appeal in the hand bill has been made on the basis of his religion. Voters have been asked not to vote for the petitioner because he is a Muslim. Distribution of the hand bills had been by the party worker of the respondent Netaji Chavan, who was also his campaign manager on 8-9-99 and on 9-9-99. The hand bill has been published by Netaji Chavan, the campaign manager of the respondent No. 1. It was published and distributed with the consent of the respondent No. 1. The hand bill was even distributed by respondent No. 1 himself. Thus, the printing, publishing and distribution of the hand bills having offending appeal was done by the first respondent and/or with the consent of the first respondent. Due to this appeal in the name of religion of the first respondent i.e. Hindu Religion and more particularly because the petitioner is following muslim religion, the Hindu voters were impressed upon to vote for the first respondent merely because he was Hindu by religion. It is further stated that all the votes by the first respondent are tainted because of the above corrupt practice. If all the tainted votes are excluded, the petitioner has secured the highest number of valid votes and is entitled to be declared elected. Mr. Vashi submits that all these material facts and particulars are pleaded in paragraphs 5, 11 and 12 of the petition. According to the learned Counsel the verification of the petition is in accordance with law. Paras 1 to 4, 16 have been verified on personal knowledge and paragraph Nos. 5 to 10, 11, 12 to 15, 17 to 18 are verified on information and by way of legal submissions. Mr. Vashi reiterates the earlier argument that even if the verification is defective, it can be cured by amendment. In support of the submissions, he again relies on the case of F.A. Sapa (supra). He submits that the defective verification would at best lead to weakening of the evidence. The defect in verification cannot be treated as fatal. He relies in particular on the observation made in paragraph 27 of the judgment. Learned Counsel also relied on the case of Murarka Radhey Shyam Ram Kumar (supra), Shivajirao B. Patil (supra), H.D. Revanna (supra) and V. Narayanaswamy (supra). In my view, the answer to this issue has also to be found in the judgment of the Supreme Court in the case of V. Narayanaswamy. In that case the Supreme Court was dealing with a similar kind of verification. It is reproduced in para 7 of the judgment. The Supreme Court has held that both the verification and the affidavit do not meet the requirement of law. The Supreme Court has considered the entire case law on the relevant issues. After considering the entire case law the Supreme Court has laid down the law in para 24 of the judgment, which has been already reproduced in paragraph 7 above. A perusal of the aforesaid clearly shows that it was incumbent on the petitioner to give details of the source of information of the matters pleaded in paragraphs 5 to 12 of the petition. Names of the voters mentioned in para 5 ought to have been given. Time of the distribution of the pamphlet ought to have been given. The petition is also silent of the place of distribution of the pamphlet. There are no details as to how and when the consent of respondent No. 1 was given. The petition merely states that the petitioner was informed about the distribution of 10,000 hand bills by some of the voters after the election was over i.e. after 11-9-99". Who are these voters? On what date after the election did they inform the petitioner? This pleading in my opinion is vague and cannot be relied upon. No details are given about the receipt of the hand bills by the three persons mentioned in paragraphs 8, 9 and 10 of the petition. The petitioner had to fix the time and the place of distribution. This cannot be left to be inferred from the pleadings. In my opinion the pleadings do not satisfy the test laid down by the Supreme Court in various judgments. The law with regard to pleadings has been laid down by the Supreme Court in the case of Azar Hussain (supra) and the case of L.R. Shivaramagowda (supra). In Azar Hussain case the Supreme Court has categorically laid down as follows :---
"18. The averments contained in paragraph 4 pertaining to Ground No. 1 do not satisfy the test prescribed in Manubhai Amarsey v. Popatlal Manilal Joshi, and Hardwari Lal v. Kanwal Singh, (supra). The most important test which remained unsatisfied is as regards the omission to satisfy in what manner the assistance was obtained and procured by the election candidate for promoting the prospects of his election. All that has been stated is :
"His services were procured and obtained by the respondent, his agents and other persons with the consent of the respondent with a view to assist the furtherance of the prospects of the respondent's election....."
It is not mentioned as to who procured or obtained the services of Shri Beg, in what manner he obtained the services and what were the facts which went to show that it was with the consent of the respondent. Unless these "essential facts which would clothe the petition with a cause of action and which will call for an answer from the returned candidate are pleaded" as per the law laid down in Manubhai Nandlal Amarsey v. Popatlal Manilal Joshi, (supra) it cannot be said that the petition discloses a cause of action in regard to this charge. In the absence of these material facts and particulars the Courts could not have rendered a verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition. It is not sufficient to show that a Government servant had appeared on the public media to praise one of the candidates. It must also be shown that the assistance of the Government servant was obtained either by the respondent or his agent or by any other person with the consent of the election candidate or his election agent, the averments made in the petition do not show (i) who had obtained or procured the assistance from Shri Beg, (ii) how he had obtained or procured the assistance of Shri Beg, and (iii) how it was said that it was with the consent of the respondent or his election agent"...
"21. There is a glaring omission to mention the names of the workers said to have been employed by the respondent or his agents who have allegedly painted the slogans. So also no material particulars are given as regards the vehicles on which the said slogans have been said to have been painted. There are no material particulars or facts. We are of the view that inasmuch as the material facts and particulars in regard to this alleged practice were not mentioned and the High Court was justified in taking the view that it had taken ....
22. The principle laid down is that the pleading in regard to matters where there is scope for ascribing an alleged corrupt practice to a returned candidate in the context of a meeting of which dates and particulars are not given would tantamount to failure to incorporate the essential particulars and that inasmuch as there was a possibility that witnesses could be procured in the context of a meeting at a place or date convenient for adducing evidence, the High Court should not even have permitted evidence on that point. In other words, no amount of evidence could cure the basic defect in the pleading and the pleading as it stood must be construed as one disclosing no cause of action. In the light of the aforesaid principle laid down by the Supreme Court which has held the field for more than 15 years, the High Court was perfectly justified in reaching the conclusion called into question by the appellant."
"25. In this case also, no time, date and place of the speeches delivered by the respondent have been mentioned. No exact extracts from the speeches are quoted. Nor have the material facts showing that such statements imputed to the respondent were indeed made been stated. No allegation is made to the effect that it was in order to prejudice the election of any candidate, or in order to further the prospects of the election of the respondent. The essential ingredients of the alleged corrupt practice have thus not been spelled out. So far as the meeting is concerned, the principle laid down in Nihal Singh, (supra) discussed in the context of the charge contained in ground II (i) is attracted. The view taken by the High Court is therefore unexeptionable.
31. There is no averment to show that the publication was made with the knowledge or consent of the returned candidate when the book was published in June, 1983. In fact, in 1983 there was no question of having acted in anticipation of the future elections of 1985 and in anticipation of the respondent contesting the same. In the election petition even the offending paragraphs have not been quoted. The petitioner has set out in paragraphs (a) to (h) the inferences drawn by him or the purport according to him. This apart, the main deficiency arises in the following manner. The essence of the charge is that this book containing alleged objectionable material was distributed with the consent of the respondent. Even so strangely enough even a bare or bald averment is not made as to :
(i) whom the returned candidate gave consent;
(ii) in what manner and how; and
(iii) when and in whose presence the consent was given.
to distribute these books in the constituency. Nor does it contain any material particulars as to in which locality it was distributed or to whom it was distributed, or on what date it was distributed. Nor are any facts mentioned which taken at their face value would show that there was consent on the part of the returned candidate. Under the circumstances it is difficult to comprehend how exception can be taken to the view taken by the High Court."
38. In view of the doctrine laid down in Nihal Singh's case, (supra) as early as in 1970, the High Court was perfectly justified in taking the view that no cause of action was made out. For, in the absence of material particulars as to who had printed, published or circulated the pamphlet, when, where and how it was circulated and which facts went to indicate the respondent's consent to such distribution, the pleading would not disclose a cause of action. There would be nothing for the respondent to answer and the matter would fall within the doctrine laid down in Nihal Singh's case (supra). The learned Counsel for the appellant is unable to show how the Court has committed any error in reaching this conclusion."
Similar view has been by the Supreme Court in Shivaramagowda's case supra). The relevant observations of the Supreme Court are as follows :
"11. The Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. In Balwan Singh v. Lakshmi Narain, the Constitution Bench held that an election petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. On the facts of the case, the Court found that the alleged corrupt practice of hiring a vehicle for the conveyance of the voters to the polling station was sufficiently set out in the pleading. The Court pointed out that the corrupt practice being hiring or procuring of the vehicle for the conveyance of the electors, if full particulars of conveying by a vehicle of electors to or from any polling stations were given, section 83 was duly complied with, even if the particulars of the contract of hiring, as distinguished from the fact of hiring were not given.
13. In Udhav Singh v. Madhav Rao Scindia, a Division Bench of this Court explained the distinction between material facts and material particulars as follows : S.C.C. p. 523, paras 42-43)
42. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts. In the context of a charge of corrupt practice material facts would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action are material facts which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of section 83(1)(a).
A perusal of the above shows that failure to plead even a single material fact amounts to disobedience of the mandate of section 83(1)(a). Failure to prove material facts is fatal to the petition. The Court has no option but to dismiss the petition on the threshold. In the present case there are no details as to how and when the consent of the respondent was obtained. With regard to the printing and publishing the hand bill, petitioner takes contrary stands. In para 7 of the petition it stated that the hand bill is shown to have been published by Netaji Chavan. In paragraph 11 it is stated that though the hand bill is shown to have been published by Netaji Chavan, in fact the hand bill was published by the first respondent himself. Further in the same paragraph petitioner states that "Even assuming that the said hand bill was not published by the first respondent and the same was published by Shri Netaji Chavan, the same was published with the consent of the first respondent". I am of the considered opinion that this kind of omnibus pleadings deserve to be struck out being vague and uncertain. This kind of pleadings is liable to be rejected on the ground that the petitioner is not certain of his case. I am of the considered opinion that in the present case the pleadings are sadly lacking in exactitude. The pleadings are not as required by law, as laid down by the Supreme Court, in a catena of judgments, to bind the petitioner to the charge of the corrupt practice levelled by him and to prevent any fishing or roving enquiry and to prevent the returned candidate from being taken by surprise. In such circumstances the defects have to be fatal to maintainability of the petition. The material facts cannot be permitted to be now pleaded by way of amendment. The law with regard to amendment has already been noticed above. Material facts can only be amended within the period of limitation. No application has been made so far for amending material particulars. The issues have been framed. Even the written statement was filed on 28th Feb., 2000. No application for amendment was moved during these days. Issues were framed on 6th March, 2000. On that day it was ordered that Issues Nos. 1 to 5 will be treated as preliminary Issues. Even then no application for amendment has been made. Thereafter the arguments on preliminary issues commenced on 16-3-2000. Even at that stage no application for amendment was moved. I fail to see what other opportunity the Court is required to give. Surely it is not required that the Court should guide or persuade the petitioner to make an application for amendment. This kind of submission has been emphatically rejected by the Supreme Court in para 28 of the Narayanaswamy's case (supra). Considering a similar situation the Supreme Court has observed that there is no duty case on the High Court to suo motu direct the necessary amendment. This view is reiterated by this Court in the case of Pannalal (supra). In my opinion the petition does not disclose a complete cause of action. Thus this issue is decided in the affirmative.
12. Issue No. 2 has to be decided in the negative, as a true copy has been served on the respondent No. 1. In fact the copy served is a photostat copy and is duly attested by the petitioner by putting his signature on each page with the endorsement "True copy". It is not the requirement of section 81(3) that the endorsement should read "Attested to be True copy". Section only requires that it must be under the signature of the petitioner. This has been done. Therefore, this issue is decided in the negative.
13. Issue No. 5 is inter linked with Issue Nos. 3 and 4, which have been decided against the petitioner. It has been held that the verifications of the petition and the affidavit are not in conformity with section 83 read with 94(A) and Form 25. This hand bill is an integral part of the petition, as the whole petition is based on the (sic matter) contained in the hand bill. For the reasons mentioned with regard to Issues 3 and 4, it has to be held that the verification of the hand bill is not in accordance with law. The issue is, therefore, decided in the affirmative.
14. For the reasons stated above, the petition is dismissed with costs. Costs Rs. 2,000/-.
15. Petition dismissed.