Madhya Pradesh High Court
Rameshwar Dayal Arale vs Munna Singh Bhadoria And Ors. on 2 January, 1991
Equivalent citations: AIR 1992 MADHYA PRADESH 161
ORDER T.N. Singh, J.
1. By this order I propose to dispose of the preliminary objection raised in LA. No. I of 1990 on behalf of respondent No. 1 (returned candidate) to the maintainability of the petition. It would be appropriate to mention that although election petitioner's reply to the said application came on records on 19-11-1990, he had filed earlier I. A. Nos.II, III, IV and V of 1990 and his counsel, Shri Section P. Shrivastava, pressed the prayer for leave to amend the election petition. It may be pertinent to note also that in the instant petition, election of respondent No. 1 for M. P. Vidhan Sabha Constituency No. 11, Ater, has been challenged. He was declared elected on 28-2-1990 having secured 36, 427 votes. Petitioner secured 16, 274 votes and was placed next to him. Other candidates contesting the election secured votes ranging between 51 and 7, 403. They have been impleaded as respondents 2 to 13.
2. On 19-11-1990, Shri Shinde produced copies of the election-petition and annexures thereof which were furnished to him in Court on 7-9-1990 and submitted that the deficiencies in the copies served be noted as that was necessary for disposal of the contention raised in I.A. No. 1/90 that the election-petition was liable to be dismissed in limine under Section 86(1) of the Representation of the People Act, 1951, for short, the 'Act', for non-compliance with the mandatory provisions of Section 81. He contended that copies furnished were not "true copies" of the election-petition and as such, I was required to note the omissions and variations by comparing those with the original election-petition filed in the Court.
3. Defects were noticed in regard to two documents, the affidavit and Annexure P/2. At Section No. 11 of Annexure P/2 (captioned, "List of officials"), the name typed is "Ahibharan Singh, Tomar". In the copies, the first letter, "A", 1 found unintelligible and illegible though in the original, that I found clearly typed. In the main petition, reference is made to Annexure P/2 at para 4(b) and in that regard, it is stated that the Government officials whose names were set out in Annexure P/2 were the persons whose help and assistance, respondent No. 1 took in canvassing and influencing the voters to further the prospects of his election. In regard to the defects in the affidavit, Shri Shinde's overarching contention was that para-numbers of the petition, in regard to which varification was made in paras 1 and 2 of the affidavit, being left blank in the copies served, the entire copy of the affidavit was faulty. True, among other defects noted are changes made in the typed script of the original election-petition, not reflected in the copies. To wit -- striking off the word "Schedule" and replacing that by the word "Annexure" in both paras 1 and 2, of the affidavit as also interpolating the words "knowledge and" in para 2 between the words "my" and "information". These defects arc to be examined as elaborate arguments counsel advanced on this aspect of the plea of respondent No. 1 though I shall do well to put on record the fact that Shri Shinde had feebly complained also against want of some signature on some of the documents (annexures) on the footing mainly that the initials which appear thereon were not signatures of the election-petitioner. Shri Shinde cited Sharif-u-Din, AIR 1980 SC 303, to submit that those signatures could not in any event be accepted as signatures made in token of attestation of the true copy for being served on the respondent. Further hearing was adjourned as counsel were not ready with the law.
4. The matter was heard further on 28-11-1990, 5-12-1990 and 7-2-1990 and indeed, Shri P.L. Dubey, Sr. Advocate assisted the Court as amicus curiae in dealing with this matter by advancing valuable arguments. I would like to place on record Court's appreciation of valuable assistance rendered by Shri Dubey, and the fact that the intervening winter break caused delay in pronouncing this order.
5, In order to gain forensic insight into the nodal controversy, I have regarded it appropriate to extract below portions of relevant statutory provisions of Section 8.
"81. Presentation of petitions-
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
83. Contents of petition-- (1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings.
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
86. Trial of election petitions.--- (l)The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117".
6. What should be understood by the term "election petition", used in Section 81(3) is the first question to be answered. The term is not defined in the Act. Rule 94A of Conduct of Elections Rules, 1961, however, provided: "the affidavit referred to in the proviso to Sub-Section (1) of Section 83 shall be sworn before a magistrate of the first class or a notary or a Commissioner of oaths and shall be in Form 25". By now, it is well settled that other papers also, in addition to the petition, which form integral part of the petition, are to be included in the term ''election petition". For this view, statutory inspiration is supplied mainly by Clause (a) of Section 83(1) describing the requirements or "contents" of an "election petition". All "material facts" howsoever set out enjoining the petitioner to rely thereon, to succeed obviously forms part of the election petition. Clause (b) read with the proviso also makes it clear that an "affidavit", made a mandatory requirement for challenging election on the ground of corrupt practice committed during election, necessarily becomes a part of the election petition. I have found it difficult to accede to the argument advanced by Shri Dubey that not in all cases, an "affidavit" becomes an integral part of the petition and, therefore, for the purpose of Section 81(3), copy of the affidavit need not be invariably supplied in all cases to the respondents. According to me, the test which is applicable to a case of other documents to which Clause (a) of Section 83 applies is not an inexorable and exclusive test. The compulsion of the language used in Clause (b) and the proviso apart, the object which is to be served by an affidavit is to be viewed as a factor of very pressing compulsion. Law is well settled by now that any allegation of corrupt practice has to be proved in the manner as a criminal charge is proved. To discourage false allegations and roving enquiry, filing of an affidavit along with the petition is made imperative and this interpretation emerges from the Mischief Rule. Law as enacted originally did not contemplate the requirement of an affidavit which Legislature found to be a case of inadvertent omission and found it necessary to relieve the mischief resulting therefrom by amending the law and incorporating the requirement in 1961.
7. Solid support for the view I have taken, I read in the elaborate dicta of the Summit Court in M. Kamalam, AIR 1978 SC 840, wherein, Bhagwati, J. as he then was, speaking for the Court, observed as follows (at p. 844 of AIR):
"It would, therefore, be seen that if a schedule or annexure is an integral part of the election petition, it must be signed by the petitioner and verified, since it forms part of the election petition. The subject matter of Sub-Section (2) is thus a schedule or annexure forming part of the election petition and hence it is placed in Section 83 which deals with contents of an election petition. Similarly, and for the same reasons, the affidavit referred to in the proviso to Section 83 Sub-Section (1) also forms part of the election petition. The election petition is in truth and reality one document, consisting of two parts, one being the election petition proper and the other being the affidavit referred to in the proviso to Section 83, Sub-Section (1). The copy of the election petition required to be filed under the first part of Sub-Section (3) of Section 81, would be therefore, on a fair reading of that provision along with Section 83, include a copy of the affidavit. That is why the appellant attached a copy of the affidavit to the copy of the election petition proper and filed the two as one single document along with the election petition."
8. Before examining other decisions cited at the Bar, on the basis of the holding in Kamalam(AIR 1978 SC 840) (supra) that the signature placed by the election-petitioner at the foot of the copy of the affidavit was sufficient compliance of the provisions contained in Section 81(3), I am inclined to dispose of Shri Shinde's objection relating to signatures of the election petitioner not being made in token of attestation on certain documents accompanying the election petition. In the instant case, it is not disputed that the copy of the affidavit furnished along with the copy of the election petition to the respondents bears the signature of the election-petitioner. As held by their Lordships, it is no requirement of law that the signature has to be made in conjunction with such endorsement as "Attested True Copy". As their Lordships have held, the requirement contemplated is of a "Signature" only and it is even not that the same should be made at any particular space in the copy of the election petition. Indeed, the requirement is of the "original signature" of the election petitioner by which he expresses his intention of authenticating the copy. I would, therefore, hold reliance of Shri Sinde on Sharif-ud-din (AIR 1980 SC 303) (supra) to be misconceived and inappropriate because in that case, the signature was not of the election-petitioner. The Court sustained objection of the respondent based on non-compliance of Section 81(3) on the ground that the copies served on the respondent bore the endorsement -- "Attested True Copy, Pyarelal Handu, Advocate". Evidently, even the words "Attested True Copy" failed to act as the magic wand. Indeed, most categorically in Ch. Subbarao, AIR 1964 SC 1027 their Lordships held that absence in the copy of a note to the effect that it was a "True copy" could not detract the copy from being a true copy. 1 reiterate that Section 81(3) does not require copy of each and every paper filed along with election petition for service on the respondents, to be signed by the election-petitioner and that the canvassed requirement of any note to be appended to the signature of the copies served (viz. "True Copy" is wholly imaginary and unwarranted.)
9. M. Karunanidhi, AIR 1983 SC 558 clearly and categorically lays down that the requirement of Section 81(3) is mandatory. The objection mooted and indeed sustained was of non-supply of a copy of the photograph along with a copy of the petition. It was held that the photograph formed an integral part of the election petition holding that the words "copies thereof contained in Section 81(3) are to be construed in the context of Section 83(2) to mean that they referred not only to the election petition proper, but also to schedules or annexures thereto containing particulars of any corrupt practice alleged therein. The photograph was found to be a part of the averment contained in the petition and in the absence of the photograph, the petition would be incomplete. This decision also is in line with M. Kamalam (AIR 1978 SC 840) (supra) as it holds any complimentary document without which the petition is incomplete to be a part of the "election petition" for the purpose of Section 81(3) and the view indeed directly supports the proposition stated at the outset that without "affidavit", an election petition cannot be treated as a complete "election petition" within the meaning of the term employed in Section 81(3) because of the requirement of the "affidavit" contemplated under Section 81(3), Proviso, being mandatory.
10. I do not think if in A. M adan Mohan v. K.. Chandrasekhara, AIR 1984 SC 871 a different view was taken despite it being observed therein that if copies of the schedules and annexures which were filed along with the election petition were not served on the respondent, it was open to him to inspect them and find out the allegations made in the petition of corrupt practice. Such a requirement as to supply of copy of any schedule or annexures filed with the petition, their Lordships held, is not a requirement contemplated under Section 83(2) or 81(3) because such documents as could be regarded as "pieces of evidence" did not form a part of the election petition proper.
11. Rajendra Singh's case, AIR 1984 SC 956 was a case of filing "incorrect copies" and in that context, it was observed that it was no part of the duty of the respondent to wade through the entire record in order to find out which is the correct copy. It would be a case of non-compliance of Section 81(3) if respondent's copy if found to be an incorrect one because the election-petitioner's duty it is to see that every copy served on the respondent is a correct copy. However, Fazal AH, J. who spoke in Madan Mohan (AIR 1984 SC 871) (supra), explained the ambit, scope and purport of Section 81(3) more elaborately and categorically in Mithilesh Kumar v. Baidya-nath, AIR 1984 SC 305 also reported in the same volume at page 305. His Lordship surveyed the entire gamut of case-law in doing so: Murarka Radhey Shyam, AIR 1964 SC 1545; Jagat Kishore Prasad, AIR 1971 SC 342; Satya Narain, AIR 1974 SC 1185; Sharif-ud-din (AIR 1980 SC 303) (supra) and M. Karunanidhi (AIR 1983 SC 558) (supra). In para 15 of the Report, the essence of the legal proposition emerging, he capsulised. It has been laid down that the concept of "substantial compliance" in not wholly out of place in the requirement contemplated in the second part of Section 81(3) and that care must be taken still not to stretch it "too far to include serious or virtal 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." He expressed the view that Section 81(3) was meant rather to protect and safeguard the sacrosanct electroal process and that there was no room for giving a liberal or broad interpretation to the provision so as to disturb the verdict of the voters. Clearly and categorically the Court held that the election petition cannot be dismissed in limine if the election petition served on the returned candidate contained "only clerical or typographical mistakes which are of no consequence" and the copy is "wholly and substantially the same as the original and where there are insignificant or minimal mistakes (of which) the Court may not take notice".
12. Reference may be made also to two decisions cited at the Bar-- U.S. Sasidharan, AIR 1990 SC 924 and Lalit Kishore Chaturvedi (ibid), AIR 1990 SC 1731. The first case was also of non-supply, that of a video cassette along with a copy of the election petition though that was filed in Court along with election petition. It was held that the petition was liable to be dismissed in limine under Section 86(1) for non-compliance with Section 81(3) of the Act because the cassette contained a material fact relating to the corrupt practice to which reference was made in the election petition and it formed, therefore, an integral part thereof. The test applied was of the incomplete nature of the copy furnished of the election petition, taking the view that the video cassette contained material fact of the corrupt practice alleged by the petitioner. The second case, of Lalit Kishore Chaturvedi, was not of Section 81(3); it was a case of material particulars about the corrupt practice being absent in the leaflet for circulation of which during election, the election was challenged. The Court held that on its own without necessary averment in the petition in regard to the alleged corrupt practice, no triable issue was raised and the petition was accordingly liable to be dismissed.
13. At this stage, I consider it necessary to observe that the case-law cited by Shri Dubey is not of much help. No real support is found in them for proposition he canvassed. His reliance on Prabhu Narayan, AIR 1975 SC 968 is also of little consequence. In that case, the Court found that the affidavit filed in support of the election petition did not give details as to the material particulars in respect of the various corrupt practices with which the respondent was charged. The argument was that the affidavit was defective and the defect was fatal. The option of the Election Judge was thereby forclosed and he could not entertain evidence not stated or referred to in the affidavit. But that was not accepted. The question whether affidavit was an integral part of the petition did not arise in that case and the decision does not state that the use of the word "accompanied" in the proviso to Section 81(3) expresses Legislature's intention not to treat the affidavit as a part of election petition for the purpose of Section 81(3). On the other hand, the Legislature intended that allegation of corrupt practice and particulars thereof are to be stated in the election petition itself. True, a learned single Judge of Gujarat High Court has, in Prabhatgiri Gulabgiri v. Shivraj Kumar Alabhai, (1968) 36 ELR 131, cited by Shri Dubey, has taken the view that filing of an affidavit in accordance with Form No. 25, aforesaid is not mandatory; and he also expressed the view that the defect in the affidavit did not prejudice the defence as no new ground of corrupt practice was being proved. True also, he rejected the argument that filing of affidavit in support of the allegation of corrupt practice was a mandatory provision so as to result in prohibiting the petitioner from proving any allegation of corrupt practice if affidavit was not filed.
However, mere reference by him to the words "in the accompanying election petition" figuring in the statutory form, in my view, is not indicative of his holding that affidavit when filed, could not be or need not be treated as a part of the election petition for the purpose of Section 81(3). I would still like to express my respectful disagreement with the view of the learned Judge that filing of affidavit contemplated under Section 81(3) was not mandatory requirement as that cannot prevail against Apex Court's contrary view.
14. A Division Bench of Patna High Court, in the case of Mahesh Prasad Sinha v. Manjay Lal, (1964) 25 ELR 130 : (AIR 1964 Patna 53), has held that filing of affidavit contemplated under Section 81(3), in accordance with the prescribed form, is only directory and mandatory. The Court took cognizance of the change in law and observed that before the Amending Act 87 of 1956, the non-compliance with provisions of Section 81 resulted in dismissal of the election petition and that penalty no longer exists. However, they still observed that an affidavit in support of the allegation of corrupt practice has to be filed as intended by Legislature. Obviously because old Section 83 did not contemplate any provision for filing affidavit and a mere verification of the election petition as per Sub-Sections (1) and (2) of old Section 83 was regarded sufficient. They further held that the Election Tribunal could require the party to file another proper affidavit or otherwise remove the defect from the affidavit already filed. The decision, in my view, does not support the proposition canvassed by Shri Dubey, though Harish Chandra Bajpai's case, AIR 1957 SC 444 was relied on in this case for the view expressed. About that, it would suffice to point out that the Supreme Court was construing old Section 83 in Harish Bajpai's case. Other decisions also Shri Dubey cited, but those do not impinge directly on the controversy confronting me. To wit; D. Sanjeevayya v. Election Tribunal, Hyderabad, (1964) 26 ELR 475 : (AIR 1966 Andh Pra 9); T. Natrajan v. D. Vijagraj, (1967) 30 ELR 321 (Mad). Shri Shrivastava cited the D.B. decision in Satish Kumar v. Election Tribunal, AIR 1963 Raj 157 wherein the view expressed is that if an affidavit filed substantially complied with the form prescribed, it cannot be thrown out despite election-petitioner's failure in making a clear distinction between facts which were true to his knowledge and which were true to his information derived from others. It is true, on facts, the decision is of signal relevance to the instant controversy.
15. In the light of the law discussed above, let the defects noticed in the copies be now examined. The first defect, pertains to Annexure P/2. In the copy, in the name of the official, "Ahibharan Singh Tomar", the first letter "A" is illegible. Because there are as many as 13 respondents, for whom 26 copies had to be prepared for service on them in ordinary course and by registered post, the same mechanical process was not used as that could not be used unless the copies were cyclostyled from a single stencil or were prepared through photo-copying process from a single copy. Evidently, in a single impression 26 carbon copies could not be prepared. It appears to me, therefore, to be case of a "typographical mistake" of the sort envisaged in Mithilesh Kumar (AIR 1984 SC 305) (supra). It is true that the name of Ahibharan Singh Tomar does not figure in the body of the election petition, but it is equally true that his name figures also in Annexure P/4 which is a public document. That is an order made in the statutory form contemplated under the Act in regard to appointment of Presiding Officer and Polling Officers of the concerned Polling Centre. Not only his name is clearly written there, but his address and description are also given. He was an Upper Division Teacher in the Higher Secondary School at Masoori. It was not at all impossible, therefore for respondent No. 1 to identify him and to prepare his defence accordingly. The typographical mistake is obviously of no consequence and is not fatal. It is not the case of the respondent that he had not received copy of Annexure P/4 or name of Ahibharan Singh is illegible therein also.
16. As regards the defect in the affidavit, the question is, whether omissions or discrepancies therein were of a vital nature which were likely to cause prejudice to the defence of the respondent. That indeed is another test laid down in Mithilesh Kumar (AIR 1984 SC 305) (supra). In Krishan Chander's case, AIR 1973 SC 2513 their Lordships held that neither aforesaid Rule 94A read with Form No. 25, nor the provisions of Order 6, Rule 15(2), C.P.C. contemplate disclosure of the source of information for the purpose of varification of averments made in the election petition. If the respondent thought that it was necessary for him to obtain the source of information in filing his written statement, it was open to him to apply for better particulars. The same view was expressed in Prabhu Narayan (AIR 1975 SC 968) (supra). Indeed, as held in Prabhu Narayan, an affidavit filed by the election-petitioner cannot be flawed on the ground that it did not give allegations and particulars of the corrupt practice alleged. As such, it is difficult to conceive of any prejudice being caused to the returned candidate in preparing his defence and filing his written statement if in the copy of the affidavit, served on him, space is left blank in regard to paragraphs which had been filled in hand, in the instant case, in the original election petition filed in Court. It is noteworthy that in the instant case, the paragraphs had not been typed and particulars were filled up in hand-writing in the election petition itself, filed in the Court. It is difficult to conceive of the omission in that regard in the copy, to be of a "vital nature", prejudicing seriously defence of returned candidate, respondent No. 1. Another aspect of the instant case, also noteworthy, is that the affidavit filed along with with the original petition, in two pages, was duly endorsed under his seal and signature by the Additional Registrar of this Court at the time of filing. That endorsement appears in both pages and is made in such manner that there is no scope for the pages to be changed or affidavit to be tampered in any manner. That takes care of respondent's apprehension, relying on Shariff-ud-din (AIR 1980 SC 303) (supra). In regard to corrections made in the original affidavit as respects the word "schedule" and interpolation of the words "knowledge and", not reflected in the copy served, suffice it to. say that those are to be regarded as "insignificant and minimal mistakes" and the copy of the affidavit served cannot be said to be "substantially not the same as original".
17. As observed in Mithilesh Kumar (AIR 1984 SC 305) (supra), it shall be a sound exercise of discretion on my part not to take notice of those mistakes in the facts and circumstances of the case. By substituting the word "Annexures" in handwriting for the word, "Schedule" originally typed, a typhographical mistake in the original affidavit was corrected to which no objection can he taken by the respondent as he is not likely to be misled or prejudiced in his defence in any manner on that account. Because, in truth and reality, what accompanied the election petition were "Annexures" and not "Schedules". Even if the word "knowledge" was added to the word "information" in para 2 of the affidavit and that interpolation was not reflected in the copy, on that account defence of the respondent was also not likely to be prejudiced in any manner. It was for the election-petitioner to be satisfied about the nature of verification to be made by him. If he was not clear in his mind as to the content of which of the several Annexures (Nos I to 39) he was required to swear separately as true to his information, that flaw in the affidavit filed with the original election-petition could not taint the petition. For, the respondent could ask for the source of the information to prepare his defence. Indeed, as held in A. Madan Mohan (AIR 1984 SC 871) (supra), the respondent's option to inspect and refer to original records for that purpose is not foreclosed by service on him of the copy of the election petition. The purpose of the affidavit, as has been noted above, is fulfilled when it is sworn by the petitioner taking responsibility for the allegations of corrupt practice made in the election petition. If there is any defect in the manner of swearing, that will not detract from the value of the affidavit. In that regard, I am in respectful agreement with the view expressed by the Rajasthan High Court in Satish Kumar (AIR 1963 Raj 157) (supra). I reiterate that the same defect even reflected in the copy of the affidavit served on the respondent would be of no consequence. It has to be regarded as an "insignificant" mistake and not one of a "serious or vital" nature as would prejudice the defence.
18. For all the foregoing reasons, I am of the view that the objection to the maintainability of the election petition on the ground of non-compliance of the provisions of Section 81(3) of the Act has no merit. The contention of respondent No. 1 in that regard, fails and is rejected. However, other objections being also raised in I.A. No. I of 1990, pertaining to non-compliance with Section 81(3) of the Act, to that extent, the application survives. Indeed, in that regard, counsel are to be heard on I. A. Nos. II and IV of 1990, filed on behalf of the election-petitioner.
19. For further orders, list the matter on 8-1-1991.