Bombay High Court
Anil Umrao Gote vs Rajwardhan Raghujirao Kadambonde @ ... on 1 December, 1995
Equivalent citations: 1996(2)BOMCR491, 1996 A I H C 2857, (1996) 2 ALLMR 246 (BOM) (1996) 2 BOM CR 491, (1996) 2 BOM CR 491
JUDGMENT M.S. Rane, J.
1. The petitioner an unsuccessful candidate has questioned the validity and legality of the election of the 1st respondent held on 9-2-89, for constituency No. 89, Dhule City, District Dhule. The challenge is directed upon three grounds viz: (i) The respondent his election agent or persons with consent of the respondent or with consent of the election agent having published sample/dummy voting papers/ballot papers resembling the voting papers/ballot papers of the election agency and having distributed the same on the day of election in the polling booths for the purpose of promotion of his election in breach of Code of Conduct of Election Commission; (ii) respondent his election agent or persons with his consent or with the consent of his election agent having canvassed within the prohibitory area like polling stations for the promotion of his election contrary to the provisions of section 130 of the Representation of Peoples' Act, 1951 (hereinafter referred to as 'the said Act'); and (iii) The respondent, his election agent and person with the consent of respondent or his election agent having indulged in corrupt practices as defined under section 123(2) of the said Act, for exerting undue influence upon the voters. Election to Maharashtra Legislative Assembly from Dhule Constituency No. 89, District Dhule was held on 9-2-1995. Result was declared on 13-2-1995. In all there were 23 contesting candidates including the petitioner and respondent herein. The respondent herein secured 34463 votes which were the highest and was declared as successful candidate. The petitioner herein secured 1,899 votes and stood 8th in the terms of number of votes secured and it is stated he also lost his deposit. Petitioner and other 21 candidates needless to say were thus unsuccessful candidates.
2. The petition herein has been filed on 27-4-1995 by the petitioner herein calling the election of the respondent on the grounds as mentioned hereinabove.
3. After service of process in this petition the respondent appeared and filed his written statement denying and repudiating the various allegations made by the petitioner in his petition against the respondent and in particular the grounds of challenge. In short, the respondent denied having committed corrupt practices or breached Code of Conduct of Election Commission etc.
4. On 11-10-1995 this Court on the basis of pleadings framed the following issues:-
1. Whether the petitioner proves that the respondent and his election agent committed corrupt practices as defined under section 123(2) of the Representation of Peoples' Act. 1951?
2. Whether the petitioner proves that respondent and his election agent committed corrupt practices as defined under section 130 of the Representation of Peoples' Act. 1951?
3. Whether the petitioner proves that the respondent and his election agent committed breaches of the Code of Conduct in the election?
4. Whether the petitioner proves that Shri Anil Chaudhary was the publisher for the respondent in respect of the respondent's election pamphlets, dummy ballot papers/sample voting papers?
5. Does the petitioner prove that on the date of the election the petitioner and his election agent distributed the sample voting papers/ballot papers in the town of Dhule on the day of polling on 9th February, 1995?
6. Does the petitioner prove that the sample voting papers distributed on 9th February, 1995 in ward No. 13 (Old 9) part 51 by the respondent, his election agent and or by his workers with the consent of the respondent or his election agent resemble ballot papers in size and colour.
7. Does the petitioner prove that Shri J.M. Chavan and Sanjay V. Malli, were the workers and supporters of the respondent for the election campaign and does the petitioner further prove that on 9th February, 1995 two dummy ballot papers printed and published at the instance of the respondent were recovered from Shri J.M. Chavan and Sanjay V. Malli, on 9th February, 1995 in Ward No. 13 (Old 9) part 51 at the polling station?
8. Does the petitioner prove that the respondent his election agent and his workers with the consent of the respondent and his election agent distributed printed dummy ballot papers within the prohibited area and thereby directed and attempted to interfere with the free exercise of voting right of the voters in 89- Dhule Constituency District Dhule and thereby committed the corrupt practice and undue influence under section 123(2) of the Representation of People's Act, 1951?
9. Does the petitioner prove that distribution of dummy voting/ballot papers by the respondent and his election agent create a confusion in the minds of the voters and also resulting undue influence upon the voters of 89-Dhule Constituency of District Dhule on the day of polling which affected his election.
10. What relief the petitioner is entitled to?
Issues settled in the Court after discussion.
3. After framing of the issues an application was made on behalf of the respondent raising preliminary point to the effect that the petition suffers from serious and fatal lacuna as there is failure in compliance with statutory provisions and therefore the same be dismissed in limine. In view thereof the following additional issue was framed as an additional issue:
"Whether the petition of the petitioner is liable to be dismissed in limine on account of non-compliance of the provisions as contained in section 81(3) read with proviso to sub-section (1) of section 83 of the Representation People's Act, 1951 read with Rule 94(A) read with Form No. 25 of the Conduct of Election Rules, 1961."
A request was made for the determination of the above issue as preliminary issue as provided under section 9-A of the Code of Civil Procedure. It was submitted on behalf of the respondent that as per the provisions contained in section 9-A of the Code of Civil Procedure it is imperative for the determination of preliminary issue at the earlier stage itself, Counsel for both the parties thereupon addressed the Court on the preliminary point, on the basis of the pleadings of the parties. A reference was also made to the legal provisions and certain decisions of this Court as also of the Apex Court. Considering the nature of the preliminary issue raised the oral evidence thereupon was not necessary.
5. It has been submitted by and on behalf of the respondent in support of the aforesaid preliminary issue that (i) The petitioner in his petition in paras 6(d) and 6(e) has averred about respondent herein having indulged in corrupt practices by exercising undue influence upon the voters and thereby breached the statutory provisions as contained in section 123(2) of the said Act. Sub-paras 6(d) and (e) for the purpose of convenience are reproduced hereinbelow:-
"6(d) The petitioner states that the respondent and his election agent, at whose instance the said dummy voting/ballot papers which resembled the genuine ballot papers in colour and size containing names and symbols of all the contesting candidates were distributed in the town of Dhule on the day of polling i.e. on 9-2-1995 and particularly at the polling station in -Ward No. 13 (Old 9) part No. 51, have directly attempted to interfere with the free exercise of voting rights of the voters in 89, Dhule constituency, Dist. Dhule and thereby have committed the corrupt practice of undue influence under section 123(2) of the Act of 1951. The petitioner states that the distribution of the said dummy voting-ballot papers by the respondent and his election agent as stated above created a confusion in the mind of the voters in 89. Dhule on the day of polling i.e. on 9-2-1995 and the voters got unduly influenced by the fraudulent device designated by the respondent and his election agent as stated above and as a result thereof the voters voted for him.
6(e) The petitioner therefore states that the respondent and his election agent, by adopting fraudulent and illegal method of distributing dummy ballot/voting papers which resembled the genuine ballot papers in colour and size containing names and election symbols of the other contesting candidates on the day of polling i.e. on 9-2-1995 at the polling station particularly in Ward No. 13 (old 9) part No. 51, (where two such dummy voting/ballot papers were recovered from the workers namely J.M. Chavan and Sanjay V. Mali of the respondent by probational Deputy Collector, R.M. Nikale, have violated the provisions of Code of Conduct and provisions of section 130(1)(a) by canvassing for votes at the polling station as stated above and have also committed the corrupt practice of undue influence under section 123(2) of the Act of 1951."
6. It will be thus noticed that the petitioner has specifically charged the respondent (i) of corrupt practices in the election of exercising undue influence upon the voters by publishing samples of dummy ballot papers resembling genuine ballot papers issued by the election agency and which have resulted in affecting the election process and has occasioned prejudice to the petitioner, (ii) when the petitioner contends one of the grounds of indulgence of corrupt practices then as required under the statutory provisions viz. proviso to sub-section (1) of section 83 that the petition has to be accompanied by a separate affidavit of the petitioner in the prescribed form in support of the allegation of such corrupt practices and furnishing the particulars thereof in such affidavit.
7. The respondent submits that the copy of the petition supposed to be true copy of the original petition filed in this Court served and/or furnished to the respondent does not contain the true copy or such separate affidavit and therefore there is failure with regard to the compliance of the statutory and mandatory provisions which is lethal flaw which will entail the dismissal of the petition on that ground alone. The respondent has placed before the Court the copy of the petition which was served upon him in this petition.
8. A reference is made to the provisions of section 81(3) of the said Act and it is submitted that the said provisions postulates the furnishing of true copy of the petition duly attested by the petitioner under his own signature certifying to be a true copy as such. It is submitted that since the copy of the petition served upon the respondent being not a true copy of the original petition there is a non-compliance of the statutory provisions which is a fatal circumstance entailing the dismissal of the petition.
9. Referring to the above Clause it is submitted on behalf of the respondent that since there is a failure in compliance of statutory and mandatory provisions as contained in sections 81 and 83 of the said Act, as provided under section 86 of the said Act the petition of the petitioner deserves to be dismissed.
10. The learned Counsel for the respondent by referring to the relevant legal provisions already mentioned hereinabove and the rules thereunder in particular Rule 94-A of the Conduct of Election Rules, 1961 and Form No. 25 prescribed under the said rules submitted that since the petitioner has failed to comply with the such various statutory provisions which are of a mandatory nature, there is no other alternate but to dismiss the petition under section 86 of the said Act.
11. Learned Counsel has placed reliance upon the following authorities to buttress his contention:
i). Virender Kumar v. Yog Raj and others, A.I.R. 1985 N.O.C. 212 (HIM. PRA).
ii). Purushottam v. Returning Officer, .
iii). Election Petition No. 2 of 1990 decided on 10-11-1990 by Bombay High Court in the case of Annees Ahmed v. Returning Officer & others.
iv). Iqbal Singh v. Avtar Singh & others, .
v). Shantilal v. Guman Mal Lodha, A.I.R. 1994 N.O.C. 377 Raj.
vi). Dr. (Smt.) Shipra v. Shri Shanti Lal, .
vii). M. Kamalam v. Dr. V.A. Syed Mohammed, , and
viii). Mithilesh Kumar Pandey v. Baidyanath Yadav and others, .
12. I will make reference to each of the above decisions and the legal enunciation therein but suffice it to state at this stage that all these decisions proceed principally with the electoral process by which the verdict given by the people is regarded a sacrosanct one and cannot be lightly set at naught unless the grounds mentioned in the said Act for setting aside an election are satisfactorily proved and established. This being the position the provisions contained in said Act in particular as contained in section 81(3) and 83(3) of the said Act should be construed strictly to the letter and the spirit of the law and if there is a failure on the part of election petitioner to furnish all the requisite particulars so as to give full and complete notice of the allegations made against the returned candidate then such lapse is a fatal flaw inviting dismissal of the petition.
13. Learned Counsel for the petitioner on the other hand while repelling the contentions of the respondent urged (i) that there is sufficient and substantial compliance of the provisions as contained in sub-section (3) of section 81 of the said Act in as much as reference was made to the copy of the petition served upon the respondent and it is pointed out that the petitioner has attested each and every page of the petition as being the true copy of the petition which is according to the learned Counsel substantial compliance of the said provisions; (ii) section 86 of the said Act which provides for the dismissal of the petition does not include section 83 of the said Act and therefore the failure with regard to the compliance of proviso of sub-section (1) of section 83 will not attract the provisions of section 86 of the said Act warranting dismissal of the election petition. On behalf of the petitioner reference was made to the following decisions:---
i) Shyam Ram Kumar v. Roop Singh Rathore and others, .
ii) Manohar Narayan Joshi v. Ramu Mhatang Patel & others, and
iii) Satya Narain v. Dhaja Ram & others, .
14. Before consideration of rival contentions as noted hereinabove, it would be necessary to note the flaws with regard to the affidavit accompanying the petition in support of the allegations of corrupt practices filed by the petitioner as has been highlighted and pointed out by the respondent. The said affidavit of the petitioner is at pages 35 and 36 of the copy of the petition served upon the respondent, which bears the same paging numbers even in the original petition in the record and proceedings of this election petition. The peculiar features can be categorized as under :---
i) Affidavit in the original petition in the record and proceedings before the Court shows that the affirmation has been made before the II Assistant Master, High Court, Bombay. The affirming officer has signed and put his rubber stamp below his signatures. He has also mentioned the date of affirmation as 27-4-1995,
ii) To the left side of the signature of the affirming officer the words 'Identified, explained & interpreted by me" have been typed. Below the said words there is a signature which eligible. Below the signature it is typed as "Advocate for the petitioner." Words 'identified, explained & "have been scored out by him."
iii) On the top of the last page of the said affidavit there is a rubber stamp "true copy" and below it "petitioner". There is a signature in vernacular script of the petitioner.
15. Now I would mention the position as exists with regard to the copy of affidavit accompanying the petition served upon the respondent:
i) In the copy of the said affidavit the place below the words "before me" have been left completely blank. In as much as the name and/or designation of the affirming authority has not been mentioned.
ii) It is also not indicated that affirming authority had in fact signed the said affidavit signifying its affirmation by the petitioner;
iii) The rubber stamp or seal of the affirming authority has not been described in the copy of the said affidavit. The words "identified, explained &" which have been scored out in the original petition have not been so scored out in the copy of the said petition. To be precise, the said copy of the affidavit does not contain the name and the designation of the affirming authority. The same also does not contain the endorsement of the Oath Commissioner or the concerned affirming authority and lastly the copy also does not describe the seal of the affirming authority.
16. It would thus be clear from whatever mentioned hereinabove that the copy of the affidavit furnished to the respondent which accompanied the main petition does not contain the particulars with regard to the affirmation authority such as its name, its designation, whether the said authority has in fact attested the affirmation and put any signature, date of attestation.
17. The question will be, which is a very crucial and decisive one, in the context of controversy that whether absence of the said particulars would tantamount to non-compliance of the statutory provisions of the said Act warranting dismissal of the petition as has been claimed by the respondent.
18. As noticed earlier the petition undoubtedly contains corrupt practices on the part of respondent during the election process as one of the grounds. That being so, section 83 proviso of sub-section (1) lays down as under :
"83. Contents of petition-(1) Election petition
(a) ..... .....
(b) ..... ..... (c) ..... .....
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."
The plain reading of the above provisions will show that when the allegations of corrupt practices are made in the petition as one of the grounds in the election petition then one has to make a separate affidavit in the prescribed form in support of the allegations of such corrupt practices and also to furnish particulars thereof and such affidavit shall be accompaniments of the election petition itself.
19. The affidavit as required under the proviso of sub-section (1) above has to be in a prescribed form. Such form has been prescribed under Rule 94-A of the Conduct of Election Rules, 1961 which reads as under :-
"94-A. Form of affidavit to be filed with election petition.---The affidavit referred to in the proviso to sub-section (i) of section 83 shall be sworn before a Magistrate of the First Class or a notary or a Commissioner on oaths and shall be in form 25".
20. It is clear from the above rule that affidavit, to be filed in such case has to be sworn before the authorities named therein and has to be in form 25. That form 25 has been provided in the Schedule in the said rule and for the purpose of ready perusal the same is reproduced hereinbelow:-
2(Form 25) (See Rule 94-A) Affidavit I, ....., the petitioner in the accompanying election petition calling in question the election of Shri/Shrimati......(respondent No......in the said petition) makes solemn affirmation/oath and say-
(a) that the statements made in paragraphs.....of the accompanying election petition about the commission of the corrupt practice of....and the particulars of such corrupt practice mentioned in paragraphs.....of the same petition and in paragraphs.....of the schedule annexed thereto are true to my knowledge;
(b) that the statements made in paragraphs....of the said petition about the commission of the corrupt practice of.....and the particulars of such corrupt practice given in paragraphs....of the said petition and in paragraphs of the Schedule annexed thereto are true to my information.
(c), (d) etc. (Signature of depondent.) Solemnly affirmed/sworn by Shri/Shrimati.....at.....this.....day of.....19 Before me, Magistrate of the First Class/Notary Commissioner of Oaths.
---------------------------------------------------------------
"Here specify the name of the corrupt practice.)"
It will thus be noticed from the above reproduced form that such affidavit should also indicate the authority before whom the affidavit has been sworn by the election petitioner. All this would show that the legislature has taken utmost precaution and has made elaborate and meticulous provisions with regard to "the affidavit" that has to be filed along with the election petition by the petitioner and which is to be formed integral part of the petition itself, should there be allegations of corrupt practices against the returned candidate. It has not been left to the sweet will of the parties. The reason and object for the same are well known. In the election petition the verdict and mandate of the electorate in a democratic polity is sacrosanct one and cannot be lightly set at naught, unless grounds upon which the same is sought to be challenged are established convincingly and clinchingly. The statute itself, as noticed earlier, in the proviso of sub-section (1) of section 83 of the said Act makes it mandatory and imperative of the filing of the affidavit which further manifests what is the intention and object of the legislature. The strict adherence and compliance thereof has therefore to be ensured at any costs.
21. On consideration of statutory provisions as already adverted to hereinabove and the rival submissions advanced and various authorities referred to by both the parties I am of the view that objection raised by and on behalf of the respondent as will be pointed out hereinbelow in terms as aforesaid are well founded and merited. The result is therefore such lacuna or flaw being of vital importance, the same go to the root of the matter and clearly contravenes the legal provisions. The inevitable consequences therefore is the dismissal of the petition. It is not possible that the mistakes in the affidavit which we have already adverted to hereinabove are so insignificant as well be incapable of misleading any person to the purport of the allegation. Non-mentioning the name and designation of the authority before whom the affidavit is sworn and complete omission to mention in the copy of the affidavit supplied that infact the affidavit has been affirmed or not is an inherent grave flaw.
22. I would take up first the decision of the Supreme Court in the case of M. Kamalam v. Dr. V.A. Syed Mohammed, . In the said case, one of the questions was whether affidavit in support of corrupt practices accompanying election petition formed integral part of election petition proper or not. The Apex Court in para 5 of the said judgment by referring to proviso of sub-section (1) of section 83 proceeded to state that in the context in which the said proviso occurs it clearly suggests that affidavit to be filed is intended to be regarded as integral part of election petition itself. Therefore the affidavit in support of the allegations of corrupt practices accompanying the election petition proper is also an integral part of the election petition.
23. In the second case i.e. in the case of Mithilesh Kumar v. Baidyanath, , the Apex Court had to consider the point which is somewhat identical to one in the matter in hand. Corrupt practice was one of the grounds made in the election petition. There were mistakes in the copy of election petition supplied to the elected candidate. The Apex Court held such mistake being fatal entailing dismissal of the petition. The Apex Court laid down the following principles for the determination of the question of non-compliance of statutory requirements of the said Act in para 15 of the judgment which proceeds as:-
"15. On a careful consideration and scrutiny of the law on the subject, the following principles are well established.
(1) that where the copy of election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petition cannot be dismissed straightway 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 words "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 said section."
24. The above decision clearly lays down that the copy of the election petition which is required to be supplied to the returned candidate has to be wholly and substantially same as original. If such copy contains important omissions or discrepancy of the fatal nature which are likely to cause prejudice to the defence of the returned candidate then the same cannot be said to be substantial compliance of the provisions of section 81(3) of the said Act. In Principal No. 4, the Apex Court clarifies what is concept of the true copy.
25. In the case of Virender Kumar v. Yog Raj and others, A.I.R. 1985 N.O.C. 212 (HIM./PRA.) there was omission on the part of the petitioner to give concise statement of the material facts in the petition which held to be violation of the provisions of section 81(3) of the said Act and therefore fatal.
26. In the case of Purushottam v. Returning Officer, the position obtained in the case as in the instant case is almost identical. A copy of the affidavit supplied and served along with election petition did not contain endorsement of notary which is held to be fatal as being non-compliance of section 81 proviso 81(3) and the petition came to be dismissed. In as much as this is what in para 12 of the said judgment stated :
"The absence of endorsement of the Notary, "affirmed and signed before me", his designation and the stamped endorsement regarding the affirmation, cannot be regarded as inconsequential. It is an omission of a vital nature which is likely to prejudice the returned candidate. It is no part of the duty of the returned candidate to wade through the entire record in order to find out whether the copy supplied to him was a correct one or not. In the present case, in the absence of the endorsement of the Notary on the copy supplied to the returned candidate, it was not possible for him to know whether the affidavit was really sworn and if so, before whom it was sworn and on what date."
In the said decision reliance is placed in the judgment of the Apex Court in Mithilesh Kumar Pandey's case (supra) and the earlier decision of this Court in Election Petition No. 2 of 1990 in the case of Annees Ahmed v. Returning Officer and others, (unreported). The facts as have been briefly averred in the Purushottam's case, it is noticed, that in that unreported matter also the position was same and identical.
27. Reference to Purushottam's case has also been made in Iqbal Singh's case (supra). In the same case also it is noticed that copy of the affidavit furnished accompanying the petition served upon the returning candidate did not carry (i) endorsement "affirmed and signed before me", (ii) the designation and name of the Notary and (iii) the stamp endorsement regarding affirmation by the Notary. Exactly the position as in the case in hand. After discussing the law on the point and relying upon the ratio of the Supreme Court in Mithilesh Pandey's case (supra) and also referring to the judgment in Purushottam's case it was held in that case that absence of endorsement on the copy of the affidavit supplied to the returned candidate was of a substantial nature and could cause prejudice to the returned candidate who was not expected to wade for original record and therefore same was fatal and consequently petition was liable to be dismissed and in fact was dismissed.
28. Similar view has also been taken in case of Shantilal (supra) wherein it is held that the affidavit proper as envisaged under proviso to sub-section (1) of section 83 the affidavit must contain endorsement recording attestation of affidavit and the name and designation of the person attesting the said affidavit. It is also held that such endorsement on a affidavit is not merely of a formal nature but is very vital and material since it is only the affirmation or the attestation that gives the sanctity to the affidavit without which affirmation or attestation such affidavit cannot be termed as an affidavit under the law.
29. In the latest decision of Dr. (Smt.) Shipra's case (supra) the aforesaid view has been reiterated and reaffirmed. The absence of endorsement on the copy of the affidavit by an authorised officer administering oath on affirmation is held to be inviolation of section 81(3) of the said Act. In the said decision reliance has been placed to the various decision including those which have been referred to hereinabove.
30. The two decisions which were referred to by the learned Counsel for the petitioner mentioned above, viz. in the case of Manohar Joshi (supra) and Satya Narayan's case in my view the facts and circumstances as obtained in the matter in hand and in those two cases are totally different and hence both the decisions would be wholly inapplicable in the instant case. In both the matters the main question was about the contents of the affidavit. In the affidavits filed the petitioner did indicated as to what allegations in the petition were true to his knowledge and which of those were true according to information received and believed by him to be correct. The insistence was made on behalf of the respondent that petitioner must clearly spell out and specify and indicate as to which part of the allegations made in the election petition in support of corrupt practices were to his personal knowledge and which portion of the petition was based upto the information received and believed by him which he considered to be correct. Since this was not indicated in the affidavit filed by the petitioner plea was raised that affidavit filed was not inconformity of proviso 1 of section 83 and form 25 already mentioned hereinabove and in that context it was held, by referring to provisions of Order 9, Rule 3 of the Code of Civil Procedure that the affidavit so filed need not indicate in manner as was sought to be required mentioned hereinabove. It will thus be noticed that the nature of controversy was altogether different than as obtained in the instant case. Here, we are considering the compliance of the mandatory provisions in the context of provisions of section 83(1) proviso and furnishing of true copy of the affidavit. By referring to both these decisions relied upon by the learned Counsel for the petitioner it is gathered that there was no controversy or dispute that the true copies of the affidavits as were filed in the election petition were not supplied, unlike the matter in hand. Therefore the ratio of both these cases in my view will not be applicable and hence will not be of any use or assistance to the petitioner.
31. Likewise the ratio in the case as Murarka Radhey Shyam's case (supra) will not be applicable in the matter before this Court. There in that case, the question was of attestation of the petition as true copy under his signature on every page of the copy of the petition served upon the respondent. The petitioner has signed on every page. It was contended that the copy of election petition supplied to the respondent did not contain the signature of the petitioner at the foot of the petition. In that case and in such situation the Court held that same was not such non-compliance so as to be fatal inviting dismissal of the petition. Whereas as noticed hereinabove the omissions as are appearing in the affidavit are of fatal and crucial nature and not insignificant or inconsequential as was the case before the Apex Court in the said case.
32. I would now propose to deal with one point urged by and on behalf of the petitioner to the effect the section 86 of the said Act which provides for the dismissal of the election petition in limine does not include section 83 of the said Act. It is therefore contended that since said provision has not been included in section 86 the non-compliance thereof should not invite the dismissal of the petition.
33. However it needs to be stated that various decisions which were referred to and cited above by the petitioner including that of the Apex Court and which have been mentioned herein above related to non-compliance of proviso (1) of section 83 of the said Act. In as much as infirmities and omissions in all those cases related to the affidavits filed in support of the charge of corruption along with the petition. On the findings that such omissions were material and significant in all these cases the courts including the Apex Court proceeded to dismiss the election petition, holding that such flaws were of serious nature and consequences and amounted to non-compliance of statutory provisions.
34. It may be stated that section 87 of the said Act in this connection makes provisions of Code of Civil Procedure applicable to the election petition. Code of Civil Procedure in view of section 87 applies for trial of the election petition and the Court can in a given case act in exercise of the powers of the Court including that of Order 6, Rule 16, and Order 7, Rule 11-A of the Code. Similar point was urged before the Apex Court in the case of Ashar Hussein v. Rajiv Gandhi, the Court held :-
"9. The fact that section 83 does not find a place in section 86 of the Act does not mean that powers under the C.P.C. cannot be exercised."
35. In view of the findings of the Apex Court as above, there needs no further elaboration. The submissions made by and on behalf of the petitioner therefore have to be rejected.
36. Therefore the conspectus of the discussions as aforesaid is that section 83 of the Act specifically provides for filing of the affidavit in the event of there being charge of corrupt practices against the returned candidate. The form of affidavit to be filed has also been prescribed by the statute. Such affidavits have to be verified in the manner as laid down in the rules. The affidavit has to be accompanied the main election petition. The language of section 83 clearly shows that the affidavit filed in support of election petition where the election of the returned candidate is challenged on the grounds of corrupt practices is intended to be regarded as an integral part of the election petition. The election petition and the affidavit in effect and in reality becomes one document of two parts one being election petition proper and other being the affidavit referred to in the proviso to section 83(1) of the Act. Section 83(1) mandates furnishing of true copy of the election petition. True copy implies that the copy furnished must be the exact true copy of the original. The omission of conveying the authority before whom the affidavit has been affirmed in a copy of affidavit furnished is a most vital part of the affidavit and copy of affidavit with such omission cannot be said to be a true copy of the original affidavit.
37. Therefore in the instant case the petitioner having failed to furnish to the respondent true copy of the affidavit filed in support of the allegation of corrupt practices as noticed and pointed out hereinabove the same amounts to clear non-compliance and non-observance of statutory provisions. The same is very crucial and fatal in the context. The result inevitable is that the petition suffers from serious and fatal lacuna and consequently same is required to be dismissed.
38. Petition therefore stands dismissed. Petitioner shall pay costs of this petition to the respondent. Office is directed to communicate the decision of this Court to the concerned Election Authority as required under the rules. C.C. expedited.
Note: Copy of the petition which was served upon the respondent and which the respondent has made available before the Court to be retained in the record and proceedings as forming part of record of these proceedings. Learned Counsel for the respondent has stated that respondent has got xerox copy of the said petition for his perusal. Copy of the petition furnished by the respondent be preserved in this petition.