Orissa High Court
Sri Anubhav Patnaik vs Sri Soumya Ranjan Patnaik on 26 March, 2015
Equivalent citations: AIR 2015 ORISSA 110, (2015) 2 ORISSA LR 862 (2015) 120 CUT LT 607, (2015) 120 CUT LT 607
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA : CUTTACK
MISC. CASE NO.42 OF 2014
(Arising out of ELEPT No.14 of 2014)
In the matter of an application under Order-6, Rule-16 and Order-7,
Rule-11 of the Code of Civil Procedure,1908 read with Sections 83, 86
and 87 of the Representation of the People Act,1951.
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Sri Anubhav Patnaik ... ... Petitioner.
Versus.
Sri Soumya Ranjan Patnaik ... ... opp.party.
For Petitioner : M/s. Bidyadhar Mishra,
Senior Advocate
P. Bharadwaj & S. Satpathy
For opp.party : M/s.Pitambar Acharya,
Senior Advocate
S. Rath, B.K. Jena, J.Parida,
B.P. Das, P.K.Ray & S.R.Pati.
PRESENT
THE HON'BLE SHRI JUSTICE B.K.NAYAK
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Date of hearing : 27.02.2015 : Date of order: 26.03.2015
B.K.NAYAK, J.This order arises out of Misc. Case No.42 of 2014 (in ELEPT No.14 of 2014) filed by the respondent in the election petition under Order 6, Rule 16 and Order 7, Rule-11 of the Code of Civil Procedure read with Section 86, Representation of the People Act, 1951 (in short, 'The Act') with a prayer to strikeout the pleadings in the election petition and to dismiss the election petition on the ground that the pleadings in the election petition are vague, scandalous and lack in material particulars and that they do not disclose any cause of action. 2
2. For brevity and convenience, the petitioner in the misc. case is described as the respondent and the opposite party-Election petitioner is described as the petitioner.
3. The petitioner has filed ELEPT No.14 of 2014 challenging the election of the respondent to the Orissa Legislative Assembly from 120- Khandapada Assembly Constituency. The election to the Khandapada Assembly Constituency was held on 17.04.2014 and the result thereof was declared on 16.05.2014 declaring the respondent elected. The election of the respondent has been challenged by the petitioner in the election petition on the ground of adoption of corrupt practices at the election by the respondent-returned candidate and for non-compliance of different provisions of the Representation of the People Act,1951 and the Rules framed thereunder.
4. Upon service of notice in the election petition, the respondent appeared, filed his written statement and the present misc. case. In the miscellaneous petition reference has been made to the written statement filed by the respondent. It is contended that the mandatory provisions of sub-section (3) of Section 81 and Section 83 of the Representation of the People Act and Rule 94-A of the Conduct of Election Rules,1961 have not been complied with by the petitioner and that the election petition does not disclose any cause of action.
In particular, it is stated in the miscellaneous petition read with the written statement that concise statement of material facts and full particulars of corrupt practices have not been pleaded in the election petition. It is stated that paragraphs 15 (A) to 15 (Q) of the election petition, which are said to be allegations regarding corrupt practice, lack 3 full and detail particulars of corrupt practices as required under Section 83 (1) (b) of the Act. It is stated that the allegations and facts described in those paragraphs in fact do not make out any corrupt practice within the meaning of Section 123 of the Act.
It is further stated that the affidavit with regard to corrupt practice is not in consonance with statutory Form-25 read with Rule 94-A of the Conduct of Election Rules,1961.
It is also urged that the copies of affidavits accompanying the copy of the election petition served on the respondent are not in accordance with the provision of Section 83 (1) (c) proviso as they do not disclose or indicate that the affidavits have been sworn or affirmed before the Oath Commissioner or the Notary or the Magistrate of the First Class inasmuch they do not bear the endorsement of any such officer and as such the copy of the election petition with the affidavit served on the respondent cannot be said to be the true copy of the election petition and as such the election petition is liable to be dismissed in terms of Section 86 (1) of the Act for violation of the provisions of sub-section (3) of Section 81 of the Act. In order to substantiate his contention, the learned counsel for the respondent has submitted before this Court, the copy of the election petition served on the respondent along with a Memo for perusal.
It is also contended that the election petition as a whole does not disclose any cause of action and hence liable to be dismissed in limine under Order-7, Rule-11 of the C.P.C. In support of his contentions, the learned counsel for the respondent relies on the following decisions :
(i) AIR 1984 SC 305: Mithilesh Kumar Pandey v. Baidyanath Yadav and others.4
(ii) (2001) 8 SCC-233 : Hari Shankar Jain v. Sonia Gandhi.
(iii) (2000) 8 SCC 191 : Ravinder Singh v. Janmeja Singh and others.
(iv) (2000) 2 SCC 294: V. Narayana Swamy v. C.P. Thiruna Vukkarasu.
(v) (1996) 5 SCC 181 : Dr. Shipra (Smt) and others v. Shantilal Khoiwal and others.
5. The petitioner has filed his objection to the misc. case refuting all contentions raised in the miscellaneous application. It is stated in the objection that the pleadings in the election petition are in conformity with the statutory requirements and that they do not tend to mislead the respondent in any manner. It is stated that the material facts on which the petitioner relies and full particulars of corrupt practices alleged by the petitioner have been pleaded in the election petition, and that understanding the same fully, the respondent has already filed his written statement. It is also stated that the affidavit accompanying the pleadings in the election petition, are in full conformity with the statutory requirement. It is also contended that any defect in the copy of the affidavit served on the respondent, such as, absence of the endorsement/certificate of the Notary/Oath Commissioner/Magistrate First Class before whom the affidavit was sworn or affirmed is not fatal to the election petition.
6. In support of his contention the learned Senior Counsel for the petitioner relies, amongst others, on the following decisions :
(i) Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore: AIR 1964 SC 1545.
(ii) Umesh Challiyill v. K.P. Rajendran : (2008) 11 SCC 740.
(iii) Ponnala Lakshmaiah v. Kommuri Pratap Reddy and 5 others: (2012) 7 SCC 788.
(iv) T.M. Jacob v. C. Poulose & Others : (1999) 4 SCC 274.
(v) K.K. Ramachandran Master v. M.V. Sreyamakumar & others : (2010) 7 SCC 428.
7. The petitioner in the election petition has filed two affidavits apart from verification. In the first affidavit, which is evidently in terms of Order 6 Rule 15 (4) of the C.P.C, it is stated that the statements made in paragraphs-1 to 13 of the election petition relate to facts regarding the schedule of election, number of total voters and the election process in chronology up to the date of declaration of election results, which are true to the best of the knowledge of the petitioner, derived from statutory notification and official records. Paragrphs-14 & 15 (A) to 15 (Q) are concise statements of material facts/grounds on the basis of which the petitioner claims relief and such facts are true to the best of knowledge of the petitioner. It is also stated that paragraph nos.16 and 17 are also true to the knowledge of the petitioner. The second affidavit is in Form-25 as per Rule-94-A of the Conduct of Election Rules. Paragraph (a) of the said affidavit relate to statements made in paragraph nos.1 to 14 of the election petition which are said to be true to the knowledge of the petitioner. Paragraph (b) of the said affidavit relate to material facts alleged in paragraphs-15(A) to 15(Q) of the election petition about the commission of corrupt practice of improper reception of votes in favour of the returned candidate by the Returning Officer, Counting Supervisors and Counting Agents in active aid, connivance and with the consent of the returned candidate, which are said to be true to the information of the petitioner. But the source of such information has not been indicated. 6
8. Paragraphs-1 to 14 of the election petition contain the schedule of the election, some statutory provisions, some generalized statements that the respondent-returned candidate in connivance with the government officers engaged in the task of counting of votes illegally counted some votes polled by the petitioner in favour of the returned candidate. It is also alleged that such government officers manipulated the polling and counting of votes to the advantage of the respondent, which would be evident from statutory Form 17(C) Part-I and Part-II. But no details of improper and illegal counting or rejection of votes are mentioned.
9. In Paragraphs 15(A) to 15(Q) of the election petition the following allegations have been made :
(i) In sixteen number of booths (Booth Nos.7, 10, 16, 21, 22, 44, 141, 150, 151, 186, 42, 55, 66, 91, 132 and 134), no signature of any polling agent has been obtained by the Presiding Officer in Part-I of Form-17 (C).
(ii) In respect of three number of booths (Booth Nos.12, 35 and
79), there is deliberate omission in Part-I of Form-17(C) regarding serial numbers of the control units and balloting units of the EVMs used in those polling stations.
(iii) In respect of three number of booths (Booth Nos.111, 129 and 132), the serial numbers of control unit and balloting unit of the EVMs have been interpolated and re-written without any initials of the Presiding Officer with a design to further the prospects of the returned candidate.
(iv) In three number of booths (Booth Nos.62, 74 and 81) the entry in Part-I of Form-17(C) regarding total number of votes polled was made at the time of counting of votes and not on the date of polling, which is evident from the discrepancy in handwriting appearing in Part-I & Part-II of Form-17(C).7
(v) In respect of Booth Nos.82, 101, 135, 150, 178, 189, 171, 157, 10, 12, 17, 24, 40, 55, 86, 89, 93, 106, 122 and 131, the entry at serial no.2 in Part-I of Form 17 (C) meant for recording the total number of voters in the register of voters has been left blank.
(vi) In respect of Booth Nos.28, 115 and 136, no polling booth number or name has been mentioned in Part-I of Form 17(C), which implies that there was booth capturing and manipulation of votes so as to ensure the defeat of the petitioner and victory of the respondent.
(vii) In respect of Booth No.44 entries at Sl.Nos.1 to 5 in Part-I of Form-17(C) have been left blank which implies that the Presiding Officer consciously left the said serial number unfilled so as to manipulate the process of counting.
(viii) In respect of Booth No.66, entries in respect of Sl. Nos.1 to 8 in Part-I of Form 17(C) have been left blank with a view to manipulate the process of counting.
(ix) In respect of Booth Nos.124, 95, 151 and 30 entries in Part-I of Form 17(C) from Sl. Nos.1 to 5 have also been left blank which implies that the Presiding Officer at the instance of the respondent left those entries blank in order to manipulate the process of counting.
(x) In respect of Booth Nos.82, 101, 135, 150, 178, 189, 171, 157, 122, 131, 10, 12, 17, 24, 40, 55, 86, 89, 93 and 106, one or the other entries in Part-I of Form-17 (b) have been left blank which implies that the Presiding Officer at the instance of the respondent left those entries blank in order to manipulate the process of counting.
(xi) In respect of Booth Nos.17 and 31, the entries at the sl. No.2 of Part-I of Form 17(C) has been over written without any initial.
(xii) In respect of Booth No.50 manipulation has been done in respect of entry at Sl. No.1 of Part-I of Form 17(C) and this 8 has been done in order to aid and assist the electoral prospect of the respondent.
(xiii) At the time of counting of votes whenever any discrepancy was noticed by the counting agents of the petitioner, the same was brought to the notice of the Returning Officer, the Presiding Officer and the Counting Supervisor by the agents of the petitioner, but those officers paid no attention.
It is stated that the documents enclosed to the election petition would demonstrate as to how the Returning Officer, Polling Officer and the Counting Supervisor were bent upon to manipulate the recording and counting of votes to the advantage of the respondent. But contrary to the assertion no document has been enclosed.
10. It is trite that an election petition can be dismissed for non- compliance of Sections 81, 82 and 117 of the Act and it may also be dismissed if the matter falls within the scope of Order 6, Rule 16 and Order 7, Rule 11 of the C.P.C.
It is contended by the learned Senior Counsel for respondent that the affidavit with regard to alleged corrupt practices is not in consonance with statutory Form No.25 read with Rule 94-A of the Conduct of Election Rules,1961.
The learned counsel for the petitioner contends, relying upon the Constitution Bench decision of the Hon'ble apex Court in the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore: AIR 1964 SC 1545 and the case of Umesh Challiyill v. K.P. Rajendran :
(2008) 11 SCC 740 that a defective affidavit is not a sufficient ground for summary dismissal of the election petition as the provisions of Section 83 of the Act are not mandatorily to be complied with in order to make a 9 petition valid and as such defect in an affidavit can be allowed to be rectified at a later stage. He further contends that the test is whether the defects in the affidavit go to the root of the matter or were only cosmetic in nature. If affidavit sworn by the election petitioner contains only minor variations from the prescribed format and conveys in substance and essence the contents of the prescribed format, election petition cannot be summarily dismissed. If the court construes the defects to be of serious nature, it should give adequate opportunity to the election petitioner to rectify the same, instead of dismissing the election petition at the threshold. Similar view has also been expressed in the case of Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others: (2012) 7 SCC
788.
11. Learned counsel for the respondent has relied upon the decisions of the Hon'ble Supreme Court in the cases of V. Narayana Swamy v. C.P. Thiruna Vukkarasu : (2000) 2 SCC 294 and Ravinder Singh v. Janmeja Singh and others: (2000) 8 SCC 191.
In the case of V. Narayana Swamy, the three Judge Bench of the Hon'ble apex Court took into consideration several earlier decisions including the case of Murarka Radhey Shyam Ram Kumar (supra) and has held in paragraph-23 of the judgment as follows :
"23. It will be thus seen that an election petition is based on the rights, which are purely the creature of a 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 10 true and the court has to find out whether these averments disclose a cause of action or a tribal 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.11
Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation 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 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 the 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 the 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 the duty of the court suo motu even to direct furnishing of better particulars when objection is raised by the other side. Where the petition does not disclose any cause of action it has to be rejected. The court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. The petition has to be 12 considered as a whole. There cannot be a partial rejection of the petition."
It is thus clear that non-disclosure of source of information about corrupt practice in the affidavit is fatal to the election petition.
Similarly in the case of Ravinder Singh (supra) the Hon'ble Supreme Court held as follows :
"11. Section 83 of the Act is mandatory in character and requires not only a concise statement of material facts and full particulars of the alleged corrupt practice, so as to present a full and complete picture of the action to be detailed in the election petition but under the proviso to Section 83 (1) of the Act, the election petition levelling a charge of corrupt practice is required, by law, to be supported by an affidavit in which the election petitioner is obliged to disclose his source of information in respect of the commission of that corrupt practice. The reason for this insistence is obvious. It is necessary for an election petitioner to make such a charge with full responsibility and to prevent any fishing and roving inquiry and save the returned candidate from being taken by surprise. In the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practice of bribery, the allegation pertaining thereto, could not be put to trial- the defect being of a fatal nature."
12. As has been seen earlier, in the instant case, the petitioner has filed two affidavits, besides verification in support of the election petition. In the first affidavit, which is apparently filed as required under Order 6 Rule 15(4), C.P.C., it is stated that paragraphs-15 (A) to 15(Q) of the election petition are material facts relating to corrupt practice and such statements are true to the best of knowledge of the petitioner. 13 However in the affidavit in Form-25 under Rule 94-A of the Conduct of Election Rules, in paragraph (b) thereof it has been stated that paragraphs-15(A) to 15(Q) of the election petition which are statements relating to corrupt practice are true to the information of the petitioner. But the source of such information has not been indicated in the affidavit. The two affidavits are wholly inconsistent and irreconcilable and not amenable to rectification or reconciliation. The defect goes to the very root of the matter and hence incurable and not merely cosmetic or technical in nature. Therefore, the ratio laid down in the cases of V. Narayana Swamy and Ravinder Singh is fully applicable and hence the defect in the affidavits is fatal and the election petition is liable to be dismissed at the threshold.
13. Another contention raised by the learned counsel for the respondent is that the copies of the affidavits accompanying the copy of the election petition served on the respondent are not in conformity with Section 83(1) (c) proviso as they do not disclose that the affidavits were sworn or affirmed before the Oath Commissioner or the Notary or the Magistrate of First Class since they do not bear the endorsement of any such Officer and as such they cannot be said to be the true copy and hence the election petition is liable to be dismissed at the threshold. In this respect he relied upon the decision of the Hon'ble apex Court in the case of Dr. Shipra (Smt) & Others v. Shantilal Khoiwal and others:
(1996) 5 SCC 181, wherein the fact situation was exactly similar to the present case. In that case the copy of the affidavit supplied to the respondent did not contain the verification by the Notary or Oath Commissioner or the Magistrate. The Hon'ble apex Court took into 14 consideration several decisions on the point and noticed the principles laid down by the Hon'ble apex Court in the case of Mithilesh Kumar Pandey v. Baidyanath Yadav :AIR 1984 SC 305 to the following effect:
"xxx xxx xxx ... ... ...(1) that where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petition cannot be dismissed straightaway under Section 86 of the Act.
(2) a true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the court may not take notice thereof, (3) where the copy contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has been a substantial compliance of the provisions of Section 81(3) of the Act, (4) prima facie, the statute uses the word 'true copy' and the concept of substantial compliance cannot be extended too far to include 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 within the meaning of Section 81(3) of the Act, and (5) as Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said section."
Keeping in mind the aforesaid principles, the Hon'ble apex Court in the case of Dr. Shipra (supra) held as follows: 15
"11. In Purushottam v. Returning Officer the present question had directly arisen. In that case the copy contained omission of vital nature, viz., the attestation by the prescribed authority. The High Court had held that the concept of substantial compliance 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. We approve of the above-view. 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 of information as specified in the election petition and 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 his 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 object 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 for a maximum period of six years under Section 8-A, apart from conviction under Section 136 (2).Therefore, compliance of the statutory requirement is an integral 16 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 compliance cannot be accepted in the fact-situation.
17. The question that must be posed, as indicted by this Court's previous decisions, is: Does the document purporting to be a true copy of the election petition mislead in a material particular? The "true copy" of the election petition furnished by the appellant (election petitioner) to the respondent (the successful candidate) did not show that the appellant's affidavit supporting his allegations of corrupt practice had been duly sworn or affirmed. Where corrupt practice is alleged, the election petitioner must support the allegation by making an affidavit in the format prescribed. An affidavit must be sworn or affirmed in the manner required by law, or it is not an affidavit. The document purporting to be a true copy of the election petition furnished by the appellant to the respondent gave the impression that the appellant's affidavit supporting his allegations of corrupt practice had not been sworn or affirmed and was, therefore, no affidavit at all; it misled in a material particular and its supply was, as the High Court held, fatal to the election petition."
14. Learned counsel for the petitioner, on the other hand, contends that in view of the Constitution Bench decision in the cases of Murarka Radhey Shyam Ram Kumar (supra), T.M. Jacob v. C. Poulose and others : (1999) 4 SCC 274 and similar other decisions, the law laid down in Dr. Shipra (supra) cannot be said to be good law.
In the case of Murarka Radhey Shyam Ram Kumar (supra) where the copy of the election petition served on the returned candidate 17 was attested and signed by the election petitioner as a true copy, but there was absence of signature of the election petitioner below the word, 'petitioner' and also there was some minor defect committed by the Oath Commissioner in the verification, it was held that the defect was not fatal to the election petition. The Court further held that the word "copy" does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it.
15. In Dr. Shipra (supra), the Hon'ble apex Court did take note of Murarka Radhey Shyam Ram Kumar (supra) and similar other decisions and in paragraph-10 of the judgment held as follows:
"10. ... ... ... ... We have carefully gone through all the cited decisions and given our anxious consideration to the respective contentions. In none of the cases the present question had arisen. In all the cases, though the affidavit or the election petition contained allegations 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 of the pleadings. Therefore, this Court had not insisted upon strict standard of the scrutiny as required under Section 86."
In the case of T.M. Jacob (supra) the copy of the affidavit in support of allegations of corrupt practice made in the petition contained endorsement that the affidavit had been duly signed, verified and affirmed by the petitioner before a Notary and the Notary had also signed below the endorsement but name, address and stamp and seal of the Notary was missing in the copy of the affidavit. It was therefore held by the Hon'ble apex Court that there was substantial compliance with requirements of 18 Section 81(3) read with Section 83 (1) (c) of the Act and the defect in the copy was not vital and had not misled the returned candidate. While so holding the Bench took into consideration the decision in Dr. Shipra (supra) and held that Dr. Shipra (supra) was distinguishable on facts. Nowhere, it has been held that Dr. Shipra did not lay down the correct position of law or that it was not good law.
16. In the instant case, the copies of affidavits served on the respondent do not contain the endorsement of the Oath Commissioner at all and, therefore, the fact situation is exactly similar to the case of Dr. Shipra (supra) and, therefore, relying on the principles laid down therein it must be held that the copy of the affidavits served on the respondent cannot be said to be true copy and as such the election petition is liable to be dismissed under Section 86 read with Section 81 (3) of the Act.
17. The next contention of the learned counsel for the respondent is that the allegations in the election petition and the material facts those are described in 15(A) to 15(Q) of the election petition do not make out any cause of action.
18. Grounds for declaring the election of the returned candidate void have been prescribed in sub-section (1) of Section 100 of the Act, which are extracted hereunder :
"100. Grounds for declaring election to be void-(1) Subject to the provisions of sub-section (2) if the High Court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [or the Government of Union Territories Act,1963 (20 of 1963)]; or 19
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent] or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void]"
19. Section 123 of the Act in Clauses (1) to (8) describe different types of corrupt practice. The allegations of corrupt practices as averred in paragraphs 15(A) to 15(Q) of the election petition relate to failure of the Returning Officer and Counting Supervisors to fill up certain columns in Part-I of Form 17(C) in respect of certain booths and failure to put initial in respect of some corrections or re-writings in respect of some entry in such forms and the like. It is alleged that such defects would imply that the Presiding Officer consciously committed such defects to manipulate the process of counting. There is however no averment as to how many 20 votes were polled in each of such booths in respect of which defects or deficiencies in Form 17(C) were found and by virtue of such implied manipulation how and to what extent the returned candidate has been benefited and/or the petitioner has been adversely affected. There is also no averment as to in what manner and to what extent the result of election has been affected due to the alleged defects in Form-17 (C). Law does not mandate that for such defects in Form-17(C) the votes polled in the particular booths should be outrightly rejected or discarded. The pleadings in the election petition are vague, evasive and speculative and found wanting in material facts constituting corrupt practice as envisaged under Section 100 (1) (b) or on the ground of non-compliance of the provision of the Act and the Rules as contemplated in Section 100 (1) (d)
(iv) of the Act.
20. As seen earlier in V. Narayana Swamy (supra) that there is difference between "material facts" and "material particulars". While 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 as mandated in Section 83 (1) (a). Under Section 83(1) (b), the election petition must contain full particulars of any corrupt practice which are different from material facts on which the petition is founded. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order-7 Rule-11 C.P.C. Similar view has also been expressed in the case of K.K. Ramachandran Master v. M.V. Sreyama Kumar 21 and others: (2010) 7 SCC 428, Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others : (2012) 7 SCC 788 and Jitu Patnaik v.
Sanatan Mohakud and others : (2012) 4 SCC 194.
21. In Umesh Challiyill v. K.P. Rajendran, reported in (2008) 11 supreme court cases 740, the following observation has been made in para-19 of the judgment which is necessary for guidance while deciding as to what should the election petition contain where the election has been challenged on the ground of corrupt practice:
"In R.P. Moidutty v. P.T. Kunju Mohammad Their Lordships have expressed that heavy onus lies on the election petitioner seeking setting aside of the election of a successful candidate to make out a clear case for such relief both in the pleadings and at the trial. The mandate of the people should not be interfered with lightly and it emphasized that under Section 83 of the Act ordinarily it would suffice if the election petition contains a concise statement of the material facts relied on by the petitioner but in the case of corrupt practice the election petition must set forth full particulars thereof including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice, the date and place of the commission of each such practice."
22. In Ravinder Singh v. Janmeja Singh and others, reported in (2000) 8 SCC 191, it is observed that in respect of alleged corrupt practice the election petitioner is obliged to disclose his source of information in respect of the commission of the alleged corrupt practice which is necessary to prevent any fishing and roving inquiry and save the return candidate from being taken by surprise.
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23. In a recent decision reported in 2014(II) CLR (SC)-839 (C.P. John v. Babu M. Pallissery & Ors.), it is observed by the Hon'ble apex Court that an election petition should set forth full particulars of the alleged corrupt practice and while doing so it should specially state the names of the parties who are alleged to have committed such corrupt practice and also the date and place where such corrupt practice was committed. In other words, it is observed that the particulars relating to corrupt practice should not be lacking in any respect.
In para-20 of the said judgment it is further observed as follows :
"Therefore, a conspectus reading of Section 83(1)(a) read along with its proviso of the Act, as well as, Rule-94-A and Form No.25 of the Rules make the legal position clear that in the filing of an Election Petition challenging the successful election of a candidate, the election petitioner should take extra care and leave no room for doubt while making any allegation of corrupt practice indulged in by the successful candidate and that he cannot be later on heard to state that the allegations were generally spoken to or as discussed sporadically and on that basis the petition came to be filed. In other words, unless and until the election petitioner comes forward with a definite plea of his case that the allegation of corrupt practice is supported by legally acceptable material evidence without an iota of doubt as to such allegation, the Election Petition cannot be entertained and will have to be rejected at the threshold. It will be relevant to state that since the successful candidate in an election has got the support of the majority of the voters who cast their votes in his favour, the success gained by a candidate in a public election cannot be allowed to be called in question by any unsuccessful candidate by making frivolous or baseless allegations and thereby unnecessarily drag the successful 23 candidate to the Court proceedings and make waste of his precious time, which would have otherwise been devoted for the welfare of the members of his consistency."
24. It is held by the apex Court in the case of Hari Shankar Jain v. Sonia Gandhi: (2001) 8 SCC 233 as follows :
"23.Section 83(1) (a) of R.P.A., 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as material supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure,1908. The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court, Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez, Jitendra Bahadur Singh v. Krishna Behari.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by 24 a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time -limit prescribed for filing the election petition."
25. Considering the nature of pleadings as seen in paragraph no.19 above it must be held that they are wanting in material facts and, therefore, the election petition does not disclose cause of action and, therefore, liable to be dismissed.
26. In the light of the discussions made above, the misc. case is allowed and the election petition (ELEPT No.14 of 2014) stands dismissed.
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B.K.Nayak,J.
Orissa High Court, Cuttack The 26th March , 2015/Gs.