Patna High Court
Amarendra Kumar "Amar" @ Dr. Amar vs Sharad Yadav on 20 February, 2002
Equivalent citations: 2002(1)BLJR690, AIR 2002 PATNA 102, (2002) 2 BLJ 231, (2002) 2 PAT LJR 134, 2002 BLJR 1 690
Author: M.L Visa
Bench: M.L Visa
ORDER M.L Visa, J.
1. This is an order on the application filed by the sole respondent under Section 151 of the Code of Civil Procedure (in short, CPC) read with Order VII, Rule 11 and Order VI, Rule 16, CPC and Sections 81, 82, 83 and 87 of the Representation of People Act (in short 'the Act') raising preliminary objection regarding maintainability of election petition and reply to this petition filed by petitioner.
2. The sole respondent in the application under consideration has stated that he has not been supplied with true copy of election petition because the copy served on him does not contain page Nos. 36 and 71- although the original election petition contains these pages and besides this, various pages in the copy of election petition such as page No. 25,38,41,42,43,48 and 66 are not visible because these pages are totally blurred which amounts that these pages are non est and election petition is fit to be dismissed under Section 86(1) of the Act for non-compliance of the mandatory provisions of Section 81 of the Act.
3. During the course of argument learned Counsel of respondent submitted that by typing mistake in place of page No. 21, page No. 36 has been printed in the application and therefore he will confine his argument so far missing of pages in the copy of election petition are concerned to the point that page Nos. 21 and 71 were not supplied to respondent.
4. It has been further submitted by the learned Counsel of respondent that the copy of election petition served upon the respondent does not contain oath of affirmation and endorsement including the signature of Oath Commissioner on the affidavit served by the petitioner under the proviso to Section 83(c) and in Form No. 25 under Rule No. 94-A of the Conduct of Election Rules, 1961 (in short 'Rules') and on this account also, the election petition is fit to be dismissed under Section 86(1) of the Act.
5. The further ground for dismissing the election petition at preliminary stage by sole respondent in the application under consideration is that although election petition contains the allegation of corrupt practices but then it does not contain adequate statement of material facts and full particulars of any such corrupt practices which is required by the mandatory provisions of Section 83(b) of the Act and petitioner has made vague and concocted allegation of corrupt practices particularly in paras 17 to 28 of the election petition without furnishing adequate statement of material facts and full particulars of corrupt practices and in absence of any cause of action, trial on the basis of such allegation in the election petition which contains vague allegation of corrupt practices will be an abuse of process of the Court and allegation contained in paras 17 to 28 of election petition are fit to be struck out from the pleading of election petition under Order VI, Rule 16 of CPC and after deletion of these paragraphs from the election petition, the petition will be a body without soul and will be a dead petition which is fit to be dismissed. It has further been stated that election petitioner has filed this frivolous petition because he is in the habit of filing such type of frivolous petitions. Prayer has been made for dismissing the election petition.
6. In reply, the election petitioner has first of all taken the objection that the petition under consideration is not maintainable because the person swearing the affidavit to this petition has not disclosed that he has been authorized to file such application. Further case of petitioner is that it is not correct to say that page Nos. 21 and 71 were wanting in the copy accompanying the election petition which has been served upon the respondent through process of Court, According to him, the office examined it thoroughly and thereafter finding the copy in order placed it under the heading for orders and thereafter case was admitted and no defect was pointed out by the office that the copy accompanying the election petition does not contain page Nos. 21 and 71. However, after receipt of objection petitioner tried to serve copies of alleged missing pages and also fair copies of page No. 25,38,41,42,48 and 66 but Counsel of respondent did not receive the same and thereafter, the petitioner after making such endorsement filed the same in Court on 6-12-2001 and respondent is now at liberty to receive the same. About the affidavit in Form No. 25, prescribed by Rule 94-A of the Rules as required under Section 81(b) of the Act, the case of petitioner is that this affidavit has been properly sworn as required by law and the relevant portions of this affidavit were properly filled up and only non-relevant portions were left out. On the point of stating material facts of corrupt practices in election petition, the case of petitioner is that all relevant facts have been stated as required under Section 83 of the Act which are supported by documents. The petitioner has prayed for dismissing the application filed by respondent challenging the maintainability of election petition.
7. Here it will not be out of place to mention that on the basis of pleadings of the parties amongst other issues, issue Nos. ii, iii and iv have been framed for deciding the question whether the election petition is fit to be dismissed summarily for non-compliance of Sections 81,82 and 117 of the Act, whether the election petition is fit to be dismissed under Section 86 of the Act for non-compliance of mandatory provisions of Section 81(3) of the Act and whether the election petition is fit to be dismissed under Order VII, Rule 11 of the Code. On the application of respondent under consideration, the aforesaid issues which are in respect of preliminary objection about the maintainability of election petition will be covered by this order.
8. The first objection of sole respondent is that the copy of election petition served upon him is not the true copy of the election petition for the reasons that page Nos. 25,38,41,42, 43,48 and 66 are not visible because copies of these pages are totally blurred, page Nos. 21 and 36 of original election petition are not in the copy and the copy of affidavit under proviso to Section 83(c) of the Act and in Form No. 25 under Rule 94-A of the Rules does not contain oath of affirmation and endorsement including signature of Oath Commissioner. So far the objection regarding some pages are not clearly visible and are blurred, the learned Counsel appearing on behalf of the petitioner has stated that he has already submitted in Court the clear copies of these pages because after filing of application under consideration when he wanted to serve these copies to the learned Counsel of sole respondent he refused to accept the same. About these pages, it is not the case of sole respondent that in the copy of election petition served upon him these pages are not here. So this part of objection does not contain any merit. About non-supplies of page Nos. 21 and 36 in the copy of election petition, the case of petitioner is that in the copy which was meant for supply to sole respondent these pages were there but in spite of this fact after filing of application under consideration he again wanted to serve copies of these pages to the learned Counsel of sole respondent and on his refusal to accept the same he has filed these copies in Court. Learned Counsel appearing on behalf of sole respondent has submitted that the action of petitioner in filing the copies of two pages in Court subsequently supports the stand of sole respondent that earlier he had not been supplied copies of these in the copy of election petition.
9. Learned Counsel appearing on behalf of sole respondent relying upon a decision of the Apex Court in the case of Rajendra Singh v. Smt Usha Rani and Ors. , has submitted that getting incorrect copy of election petition by sole respondent will amount to non-compliance of provisions of Section 81(3) of the Act and election petition is liable to be dismissed on this score alone. In this case which has been relied upon by the learned Counsel of sole respondent, I find that after observing that there was no clear evidence or finding to show that the copies which were received by the appellant were correct or incorrect and on going through the relevant evidence, it was found that there was overwhelming material to show that appellant did not receive correct copy and even the respondent in her evidence did not categorically deny this fact. It was held that supply of incorrect copy of petition amounted to non-compliance of the provisions of Section 81(3) of the Act. In the present case, while filing written statement the sole respondent in para 11 of his written statement stated that copies of page Nos. 36 and 71 are wanting in the copy of election petition served on him. In the application under consideration also, some page numbers have been mentioned but during the course of argument it has been submitted that in place of page Nos. 36 and 71, page Nos. 21 and 71 are missing. In view of this change in the stand of sole respondent on the point of number of missing pages as well as in absence of any evidence at this stage that on which date the copy of election petition was received, when the aforesaid defect was detected and fn between this period where the election petition was kept, it is not possible to give a finding on rival statements of both the parties on this point of missing of copies of two pages in the copy of election petition served on sole respondent. This finding can be given only after going through the evidence adduced on behalf of both the parties on this point.
10. Another objection of sole respondent for non-supply of true copy of election petition to him is that the copy of election petition served upon him does not contain oath of affirmation and endorsement including the signature of Oath Commissioner on the affidavit sworn by the petitioner under the proviso to Section 83(1)(c) of the Act and in Form No. 25 under the provisions of Rule 94-A of the Rules and this amounts to non-supply of mandatory provisions of Section 81(3) of the Act and election petition is fit to be dismissed under Section 86(1) of the Act. Learned Counsel of petitioner has fairly admitted these defects in the copy of election petition served upon the sole respondent. The learned Counsel of sole respondent relying on a decision of the Apex Court in the case of Dr. (Smt) Shipra, etc. v. Shanti Lal Khoiwal AIR 1996 SC 1691, has submitted that copy of election petition supplied to respondent without attestation by prescribed authority cannot be considered, as true copy of election petition. For deciding the point in issue, I may quote para 12 of this judgment which reads as follows:
The contention that the election petition cannot be dismissed under Section 86 at the threshold on account of the omission on the part of the Registry of the High Court to point out the same as per its procedure cannot be countenanced. Lapse on the part of the Registry is not an insurance to deny to the returned candidate the plea that the attestation of the affidavit and its certification to be a true copy is an integral part of the pleadings in the election petition. Section 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read, if the Court finds on an objection, being raised by the returned candidate, as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objections, the election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same.
11. In another case of Harcharan Singh Josh v. Hari Kishan , the Apex Court referring the case of Shipra v. Shanti Lal Khoiwal dismissed the appeal and held as follows:
It is not necessary for us to go into the grounds on which the election petition was dismissed by the High Court. Suffice it to state that the objections raised by the respondent regarding non-supply of the true copy of the affidavit is a formidable objection which merits acceptance in view of the recent judgment of this Court in Dr. (Smt.) Shipra v. Shantilal Khoiwal (1996) 4 JT(SC)67 : 1996 AIR SCW 1772. Therein the copy of the affidavit supplied to the respondent was not attested by the Oath Commissioner. This Court, after considering the entire case law, held that the affirmation before the prescribed authority in the affidavit and the supply of its true copy is mandatory so that the returned candidate would not be misled in his understanding that imputation of the corrupt practices were solemnly affirmed and duly verified before the prescribed authority, for that purpose, Form 25 prescribed by Section 83 requires verification before prescribed authority. The concept of substantial compliance has no application in such a case. It is seen that the copy of the affidavit supplied to the respondent does not contain the affirmation by the Oath Commissioner. Under these circumstances, the defect is not a curable defect. Therefore, the dismissal of the election petition on this ground is sustainable in law.
12. Learned Counsel appearing on behalf of the petitioner has argued that the Apex Court in the case FA. Sapa v. Singora and Ors. along with other cases , after referring a catena of judgments of its own Court has held that defect in the verification is not fatal and can be cured. He has also argued that while deciding the case of Dr. (Smt.) Shipra v. Shanti Lal Khoiwal this decision was not considered and because both the judgments are of the Benches of three Judges and case of F.A. Sapa v. Singora, was decided earlier, therefore, the principle laid down in this judgment is to be followed in deciding the controversy under consideration.I am unable to accept this argument because the facts of the case of F.A. Sapa v. Singora, and the facts of the present case are quite different. In that case, matter was regarding defects in the verification of election petition and affirmation on he affidavit was considered because verification clause in one of the cases under consideration showed that about some para it was stated that statements made in those paragraphs were on the basis of knowledge of petitioner whereas about some paras, it was stated that statements made in those paras were on the basis of information received and believed to be true by the petitioner, some paras, were not verified at all and some paras were verified under both the heads. Similarly in the affirmation on the affidavit sworn in compliance of provisions of Section 83(1) of the Act, it was stated by the petitioner that what he had alleged by way of corrupt practices in the election petition was correct and to the best of his knowledge and to the information received and believed by him to be true and it was contended that it was not clear which allegation of corrupt practice was based on his knowledge and which was based on information received and he believed to be true. Upholding the finding of the High Court that defect in verification and affirmation was not fatal the Apex Court, however, observed that the High Court ought to have directed the petitioner to remove the defects within the time stipulated by it and directed the High Court to issue direction to the election petitioner to remove the defects within such time as it may allow and pass appropriate consequential order in accordance with law in case defects were not removed.
13. Here it is not the case that there is any defect either in verification or affirmation in the original election petition. The objection raised by sole respondent is that in the Original election petition the affidavit sworn by petitioner according to proviso to Section 83(1)(c) of the Act contains oath of affirmation and endorsement including signature of Oath Commissioner but the copy of election petition served on the respondent does not show that the affidavit sworn by petitioner in compliance of proviso to Section 83(1)(c) of the Act contains oath of affirmation of petitioner and endorsement including signature of Oath Commissioner. Learned Counsel of respondent submitted that in the case relied upon by the learned Counsel of petitioner, the matter was regarding non-compliance of provisions of Section 83 of the Act whereas in the present case, it is a question of non-compliance of Section 81 of the Act. I fully agree with this argument. The law laid down by the Apex Court in the case of Dr. (Smt.) Shipra v. Shanti Lal Khoiwal, is squarely applicable to the facts of the present case and in this case, it has further been observed by the Apex Court that attestation on the affidavit by the prescribed authority is an integral part of the election petition which is clear from the following paragraph of this judgment:
8. It would thus be clear that a true copy is a transcript identical to or substitute to the original but not absolutely exact copy. But nobody can by any possibility, misunderstand it to be not a true copy. It is seen that the test, as stated earlier, is whether by any variation from the original is calculated to mislead an ordinary person. When a petitioner is enjoined to file an election petition accompanied by an affidavit duly sworn by the applicant duly verifying diverse allegations of corrupt practices imputed to the returned candidate and attested by the prescribed authority it would be obvious that the statute intended that it shall be performed in the same manner as prescribed in Form 25 read with Rule 94-A of the Rules. The attestation of the affidavit by the prescribed authority, therefore, is an integral part of the election petition. The question, therefore, is: Whether copy of the affidavit supplied to the respondent without the attestation portion contained in it (though contained in the original affidavit) can be considered to be a "true copy"?
14. It has also been observed in the case of Dr. (Smt.) Shipra v. Shanti Lal Khoiwal, that when an objection is raised by the returned candidate as to maintainability of the election petition the Court is required to go into the question and decide the preliminary objection and in case the Court does not uphold the same, the need to conduct trial would arise and if the Court upholds the preliminary objections, the election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same.
15. Learned Counsel for the petitioner has argued that the case of Dr. (Smt.) Shipra v. Shanti Lal Khoiwal has been referred to by Benches of three Judges of the Supreme Court to a larger Bench. In support of his argument, he has relied upon a decision in the case of T.M. Jacob v. C. Poulose and Ors. (1998) 2 SCC 31 From the perusal of this judgment, I find that the only matter for deciding was whether the decision in Dr. (Smt.) Shipra v. Shanti Lal Khoiwal would apply in the case of T.N. Jacobv. C. Poulose and Ors. The matter was referred to a larger Bench. It is not that the judgment in the case of Dr. (Smt.) Shipra was referred to a larger Bench for reconsideration. I, therefore, find no substance in the argument advanced on behalf of petitioner that the decision in the case of Dr. (Smt.) Shipra has been referred to a larger Bench of the Apex Court for reconsideration.
16. In the case of F.A. Sapa v. Singora which has been relied upon by the learned Counsel for the petitioner also, it has been held that if a document is an integral part of election petition, it must satisfy the requirement of Section 83 and failure on that behalf would be fatal. I, therefore, find that sole respondent has not been supplied true copy of the election petition and it amounts to non-compliance of provisions of Section 81(3) of the Act.
17. Once it has been held that respondent has not been supplied true copy of the election petition because copy of affidavit supplied to him without attestation and signature by prescribed authority cannot be considered to be true copy of affidavit and it cannot be termed as an affidavit in the format prescribed in view of the decision of Apex Court in the Case of Dr. (Smt.) Shipra v. Shanti Lal Khoiwal, the question arises that what will be consequences of this situation. In the same judgment, it has further been held that only those parts of petition which contain allegation of corrupt practices and which are in conformity with Form 25 read with Rule 94-A of the Rules and Section 83(1) of the Act are required to be struck off and other issues are required to be considered on merit. In the present election petition, except allegation of adopting corrupt practices no other allegation has been made. I, therefore, find that if the allegation of corrupt practices by sole respondent as made out in the election petition are struck off nothing remains to decide in this case.
18. The next objection raised by the sole respondent is that the election petition does not contain full particulars of material facts and only vague allegations have been made in the election petition from para 14 to onwards. Although in the foregoing paragraphs, it has already been held that supply of copy of affidavit to respondent without attestation and signature of prescribed authority cannot be considered supply of true copy of election petition and it amounts to non-compliance of provisions of Section 81(3) of the Act and it will amount striking off those parts of petition which contain allegation of corrupt practices and it has also been held that after striking off such parts of election petition nothing remains to decide, therefore, this objection raised by the learned Counsel of sole respondent does not require any further finding but still I would like to decide this point also.
19. In the application under consideration, it has simply been stated that in paragraphs 17 to 28 of the election petition only vague allegations have been made without giving material facts and full particulars. During the course of argument, learned Counsel appearing on behalf of the respondent submitted that in para 17 of election petition, petitioner has stated that on the date of poll i.e. on 3-10-1999, the sole respondent moved in the Constituency along with undesirable elements variously armed to see and ensure getting voters in his favour by any means and to terrorise, threaten and drive away the votes who in his opinion were not to cast vote in his favour but he has not named the supporters and in absence of names of voters in election petition will amount not giving particulars of the material facts. He has relied upon a decision of this Court in the case of Chandra Shekhar Singh v. Sarjoo Prasad Singh in which it has been 'held that in the case based on allegation of corrupt practices and intimidating voters with assault and injury, failure to mention names of such voters is material. From reading of this judgment, particularly para 14,I find that names of voters in such a situation stand considered as particulars required to be given under Section 83(1)(b) of the Act. According to Section 86(5) of the Act, the High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. Besides this; in the aforesaid case which has been relied upon by the learned Counsel of sole respondent, the evidence adduced on behalf of the petitioner was also considered and charge on account of intimidating the voters was also not substantiated by the evidence adduced on behalf of the petitioner. Here the parties are yet to adduce evidence in support of their respective cases. I, therefore, find that at this preliminary stage, the election petition cannot be dismissed only on the ground that petitioner has not given the names of voters who, according to him, were intimidated or terrorised preventing them to cast their votes.
20.I, therefore, find that copy of election petition served on the sole respondent does not contain affirmation and endorsement including signature of Oath Commissioner on the affidavit sworn by petitioner under the proviso to Section 83(1)(c) of the Act and in Form 25 under Rule 94-A of the Rules and as it is not a true copy in view of the decision of the Apex Court in the case of Dr. (Smt.) Shipra v. Shanti Lal Khoiwal, it attracts the provision of Section 86(1) of the Act for non-compliance of the provisions of Section 81(3) of the Act.
21. In the result, this application under consideration raising maintainability of election petition is allowed and election petition filed by the petitioner is dismissed upder Section 86(1) of the Act for non-compliance of provisions of Section 81(3) of the Act. In the circumstances of the case, there will be no order as to cost.