Madhya Pradesh High Court
Shashi Bhushan Bajpai vs Madhavrao Scindia on 21 July, 1997
Equivalent citations: AIR1998MP31, AIR 1998 MADHYA PRADESH 31
ORDER Tej Shankar, J.
1. This election petition has been preferred by the petitioner Under Sections 80 and 81 of the representation of People Act, 1951 (hereinafter referred to as the Act) for declaring the election of the respondent from 03 Gwalior Parliamentary Constituency held on 7-5-1996 null and void on the ground that the respondent and his election agent had committed corrupt practices within the meaning of Section 123 and 100(1)(d)(iv) of the Act.
2. An application was moved by the respondent on 15-11-1996 raising preliminary objections. It was alleged in the application that the election petition Under Sections 80 and 81 of the Act was filed against the respondent. The copy of the election petition has been supplied to him was accompanied by a copy of the affidavit which was not in accordance with Rule 94A of the conduct of Elections Rules, 1961, inasmuch as the affidavit referred to in the proviso to Sub-section (1) of Section 83 was required to be sworn before a Magistrate of the first class or a notary or a commissioner of oaths and it has to be in Form 25. The election petition was on the ground of corrupt practices and the affidavit should have been as mentioned in Rule 94A in Form 25. The other objection raised was that the Registrar at Jabalpur had made an endorsement regarding presentation on the first page of the petition but no such endorsement was there on the copy of petition supplied to the respondent. Hence the copy supplied was not the true copy, as required Under Section 81(3) of the Act. It was, therefore, prayed that the petition be dismissed. Written reply was filed by the petitioner against this application which shall be dealt with in detail. Another petition was moved by the respondent on 12-12-1996. This purports to be a petition in continuation of the earlier petition making reference to the reply of the petitioner. It was prayed in this application as well that the petition be dismissed for breach of mandatory provisions. This too was replied by the petitioner. The respondent further moved an application on 30-1-97 praying that the copy of the election petition received by the respondent along with the notice of the Court be taken on record, Similar petition was moved again on 5-2-97 which is dated 3-2-97. It too was replied by the petitioner by filing written reply.
3. Learned counsel for the parties have been heard at great length on all the aforesaid applications as the preliminary questions raised did not require any evidence. The preliminary objection raised by the learned counsel for the respondent is that the petition be dismissed at threshold as it did not comply with the mandatory provisions of the Act. The learned counsel for the petitioner, however, submitted that the first question which has to be decided by the Court is as to whether copy of the election petition submitted by the respondent on 30-1-1997 should be taken on record or not because an objection relating to non-compliance of law with respect to the copy served has also been raised. I, therefore, proceed to dispose of the application dated 30-1-97 as well as dated 3-2-97 filed on 5-2-97 initially. In the first application dated 30-1-97 the respondent had simply mentioned that he was filing copy of the original election petition received by the respondent and it be taken on record whereas the application dated 3-2-1997 filed on 5-2-97 is a detailed application and it is in continuation of earlier application. The prayer in both these applications is the same that the document be taken on record. The learned counsel for the respondent contended that the document can be taken on record as the issues have not been framed and the provisions of the Code of Civil Procedure (hereinafter referred to as the CPC) apply by virtue of Section 87 of the Act. No application is actually necessary for filing documents before framing of issues. He, therefore, urged that the document be taken on record. On the other hand, it has been contended that the application has been moved 7 months after filing of the petitions and it has no merit. The application dated 30-1-97 did not disclose any reason for delayed submission of the document. As regards the application dated 3-2-97 filed on 5-2-97 the objection of the learned counsel is that the copy submitted by the respondent has not been shown to have been received by the respondent through the process of the Court. The learned counsel also contended that it has no where been alleged in the application that the election petition is not attested under the signatures of the petitioner to be a true copy of the petition and there was no due compliance. He urged that the petitioner had submitted along with the election petition only one copy of the petition for service on the respondent as there was only one respondent in the case. About the maintainability of the application and taking of the documents he urged that as the preliminary objection was raised by the respondent in order to cut the right of the petitioner the documents ought to have been submitted in the Court on first instance when the application was submitted on 15-11-1996 challenging the maintainability of the election petition.
4. As far as the prayer of the respondent for taking on record the copy of the election petition is concerned, I do not think that this question needs elaborate consideration. It has not been contested by the learned Counsel for the parties that the provisions of the C.P.C. are applicable to election petitions. Both the panics have made reference to the CPC. Learned counsel for the petitioner referred to the provisions of Order 13, Rule 2, CPC and argued that the contention that no application was required for filing documents on record is incorrect because Order 13, Rule 2, CPC makes obligatory for the applicant to show good cause to the satisfaction of the Court for non-production of document by him at the first instance. The learned counsel also argued that if the contention is taken to be correct that issues were not framed then no order was necessary to be sought from the Court with respect to the documents.
5. If we peruse the provisions of Order 13, Rule 1 we find that it requires production of documents by the parties or their pleaders on which they rely and which has not already been filed in the Court at or before the settlement of issues. The words "at or before the settlement of issues" are important. To me it appears that this rule enables a party or his pleader to produce a document at or before settlement of issues, Rule 2 applies to those cases where documentary evidence which should have been produced in accordance with the requirements of Rule 1 have not been filed. Under that provision no document can be received at subsequent stage unless good cause is shown. Admittedly in the case in hand issues have not been framed as yet. Consequently a party can file a document even before the settlement of issues. In this view of the matter lengthy arguments advanced by the learned counsel for the parties about the right of the respondent to file copy of the election petition is cut short. Any party to my mind, has a right to file a document at or before settlement of issues, on which he relies. Of course he is required to show good cause if the document is not produced as required under Rule 1. There was actually no necessity of filing these applications and the respondent could file the document as a right. In this view of the matter, the applications dated 30-1-1997 and 3-2-97 moved in the Court on 5-2-97 deserve to be allowed. They arc allowed and the document is, therefore, taken on record.
6. Now I come to the main objection of the learned counsel for the respondent which is two fold. Firstly, it has been argued that only ground on which the election of the respondent has been challenged is corrupt practices. Under the proviso to Section 83(1)(c) of the Act it has been provided that where the petitioner alleges any corrupt practice, the petition is also required to be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. The learned counsel pointed out that under Rule 94A "Form of the affidavit to be filed with election petition" has been provided. It has been urged that it has to be sworn before a Magistrate of the First Class or a notary or commissioner of oaths and it should be in Form 25 which provides a proforma in which affidavit has to be sworn in. It further provides that it is to be sworn in before a Magistrate of the first class or a notary or a commissioner of oaths. The affidavit filed along with the petition purports to be in compliance of Section 83(c) is neither in the prescribed Form 25 nor it has been sworn before the competent authority mentioned in the rule. It has also been urged that verification too is not valid because it has not been shown as to which part is sworn by personal Knowledge and which part by belief. The learned counsel urged that as the provisions have not been complied with the petition deserves dismissal at the threshold. In support of the contention he referred to several authorities.
7. The next contention of the learned counsel is that the copy of the petition served on the respondent is not the true copy inasmuch as it does not bear the endorsement of the authority before whom it was filed and the affidavit was sworn in. On the other hand, the contention of the learned counsel for the petitioner is that no affidavit is required with regard to the allegations envisaged Under Section 100(1)(d)(iv) of the Act as they do not constitute allegations of corrupt practices within the meaning of Section 123 of the Act. The learned counsel drew my attention to paragraphs 9 and 10 and Sub-paragraphs and contended that these allegations have been made Under Section 100(1)(d)(iv) of the Act and they do not require any affidavit. As far as allegations relating to corrupt practices enumerated in the petition, he urged that the petitioner has filed an affidavit as required underthe proviso to Section 83. The contention of the learned counsel for the respondent is that the election petition is only based on corrupt practices is wholly incorrect because the allegations made in para 9 and Sub-paras A to R refer to gross violation of the provisions of the Act and the rules and orders made thereunder. They also contravene the guidelines issued by the Election Commission. The argument that the affidavit is not in conformity with the provisions of Section 81(1)(c) is also incorrect. The affidavit was made on solemn affirmation by the petitioner before the Deputy Registrar of the M.P. High Court. Reference has been made to the provisions of oaths Act, 1969 and it has been contended that the power to administer oath has been conferred upon the persons empowered in this behalf by the High Court in respect of affidavits for the purposes of judicial proceedings. The learned Counsel contended that by notification No. 39-1-22-18-27 dated 5-1-72 an amendment was made in Rule 1 Chapter 3 of the M.P. High Court Rules which conferred the power on Deputy Registrar to administer oath or receive affidavits on solemn affirmation to be used in the High Court and the Supreme Court. The designation of the person is not material. The powers to perform the functions of an oath Commissioner are derived from the Oaths Act. The respondent has not denied that Deputy Registrar can administer oath on solemn at't'irmation. There is no mention in Rule 94A and Form 25 as to what kind of oath commissioner is empowered to administer oath or receive affidavit on solemn affirmation. So far as second argument regarding the requirement of verifying separately by knowledge and belief he found himself in tight corner as the verification is both by knowledge & belief. He simply urged that the Court can call for a fresh affidavit. It is mere irregularity if at all. In support of this contention the learned counsel also referred to certain authorities which shall be discussed hereinafter. Both the learned counsel during the course of their arguments laboured hard in distinguishing the cases relied upon by the adverse party.
8. As far as the argument relating to the copy of the election petition served on the respondent, the learned counsel urged that the copy of the petition served on the respondent is in accordance with the provisions of Section 81(3) of the Act and the contention to the contrary is incorrect.
9. The first objection of the learned counsel for the respondent, as pointed out above, relates to the affidavit filed with the election petition in compliance of the provisions of the proviso to Section 83(1)(c) of the Act. Before dealing with this aspect it is important to mention that according to the learned counsel for the respondent the only ground on which election has been challenged is corrupt practices and this allegation requires to be supported by an affidavit as provided under the proviso. This contention has been challenged by the learned counsel for the respondent and it has been pointed out that it is incorrect to say that the election has been challenged only on the ground of corrupt practices. Reference has been made to paras 9, 10 and their Sub-paragraphs. It has been argued that they relate to the allegations Under Section 100(1)(d)(iv) of the Act and as such they do not require any affidavit in support thereof because it amounts to non-compliance of the rules or orders made under the Act. In order to resolve this controversy we have to look into the allegations made in paras 9 and 10 of the election petition. In para 9 there are several Sub-paragraphs from A to Rule If we go deep into this paragraph we find that the petitioner himself has alleged in this paragraph that the grounds mentioned therein constitute corrupt practices, ft is important to mention the relevant words used in this paragraph itself. They are :--
"The corrupt practices and violation of the provisions of the R. P. Act and rules/orders are enumerated below relating to discrepancies, ommissions, illegalities, mis-representations, incorrectness and falsification of accounts as the statement of account does not reflect correct and complete statement of all expenses incurred or' authorised by the respondent and his election agent..........."
The averment made in para 1 of the affidavit also shows that paras 9 and 10 are included therein and they have been shown to relate to corrupt practices. Thus, according to the petitioner himself the violation of the rules amounts to corrupt practices which he has enumerated from AtoRule
10. Again a perusal of para 10 shows that the allegations made in this paragraph relate to the fact that according to the petitioner the respondent has shown a total expenditure of Rs. 1,39.608.25 which was not the correct of authorised by the respondent and his election agent. The total expenditure incurred by the respondent had exceeded the limit of Rs. 4,50,000/-. It has also been mentioned in this paragraph that the result of election in so far as it concerns the respondent has been materially affected by non-compliance with provisions of the Act and Conduct of Elections Rules and guide-lines, orders/directions of the Election Commission by committing corrupt practices within the meaning of Section 123 and Section 100(1)(d)(iiv) of the Act. Thus, in both the paragraphs the petitioner has made categorical assertion that the averments made therein constitute corrupt practices. In this view of the matter, the contention of the learned counsel for the petitioner that the averments made in para 9 and its Sub-paragraphs and para 10 do not relate to corrupt practices and only constitute the violation of the provisions of the Act, Conduct of Elections Rules, guide-lines/orders/directions of the Election Commission is not correct.
11. Apart from what has been said above, I may also mention that Section 123 of the Act enumeraies the corrupt practices. Clause (6) of this section refers to "The incurring or authorising of expenditure in contravention of Section 77". The allegations made in paragraphs 9 and 10 can safely be said to be covered by clause (6) of Section 123. In this view of the matter also it does not appear to me lo be correct that the allegations made in paras 9 and 10 are not covered within the meaning of corrupt practices. Besides these two paragraphs nothing has been shown by the learned counsel for the petitioner which may go to show that the election of the respondent has been challenged on any other ground other than corrupt practices. Consequently it has to be held that the contention of the learned counsel for the respondent that the only ground of challenge of the election of the respondent is corrupt practices has to be accepted. I, therefore, hold that the election of the respondent has been challenged on the ground of corrupt practices alone as contended by the learned counsel for the respondent.
12. Having concluded that the election of the respondent has been challenged on the ground of corrupt practices, it has to be seen as to whether proviso to Section 83(1)(c) has been complied with or not. There is no dispute between the learned counsel for the parties that if the petitioner alleges any corrupt practices the petition has lo be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof as provided for in the proviso. It has been contended by the learned counsel for the respondent that the affidavit accompanying the petition is not in accordance with Rule 94A and Form 25 as required under the law and as such the petition is liable to be thrown. Petitioner's learned counsel pointed out that the affidavit filed is in compliance with the proviso. Rule 94A of the conduct of Elections Rules provides for form of affidavit to be filed with election petition. Under this provision an affidavit has to be sworn before a Magistrate of the first class or a notary or a commissioner of oaths and it has to be in Form 25. Thus, there are two requirements of this rule. Firstly, the affidavit must be verified before a Magistrate of the first class or a notary or a commissioner of oaths and secondly it has to be seen as to whether the affidavit is in confirmity with the provisions of the rules and if it is found that it is not in prescribed form the next question that arises for consideration is the effect of the non-compliance of the proviso. The affidavit accompaning the petition shows that it contains two paragraphs. The first paragraph shows that statements made in paragraphs 1 to 5 and 7 to 11 about the commission of corrupt practices as mentioned in Section 123(6) read with Section 77, 100(1)(d)(iv) and Rules 86 and 90 of the Conduct of Election Rules and particulars of such practices have been sworn by the petitioner as true to his knowledge and belief whereas para 2 has been sworn by the petitioner to be true to his information received from sources mentioned therein and he believed them to be true. This affidavit was sworn before the Deputy Registrar of this Court at Jabalpur. The first contention of the learned counsel for the respondent is that the Deputy Registrar is not competent person within the meaning of Rule 94A and as such the affidavit is no affidavit in the eyes of law. It should have been sworn before a Magistrate of the first class or a notary or a commissioner of oaths. On the other hand, it has been argued, as mentioned above, that under the Act the power to administer oath has been conferred upon the Deputy Registrar by the High Court in respect of affidavits for the purpose of judicial proceedings. By notification No. 39-1-22-18-27 dated 5-1-72 an amendment was made in M.P. High Court Rules by virtue of which the Deputy Registrar was empowered to administer oath or receive affidavits on solemn affirmation to be used in the High Court and the Supreme Court. The learned counsel urged that the designation of the person is not very material. What is relevant is whether the Deputy Registrar can administer oath or receive affidavit on solemn affirmation. It has not been denied by the resp6ndent that Deputy Registrar can administer oath or receive affidavit on solemn affirmation. In Form 25 it has no where been stated that what kind of oath Commissioner is empowered to administer oath or receive affidavit on solemn affirmation. I have already shown that the provisions of Rule 94A require that the affidavit has to be sworn before a Magistrate of the first class or a notary or a commissioner of oaths. Thus, under this provision the affidavit can be sworn before these three authorities alone i.e. a Magistraie of the first class or a notary or a commissioner of oaths. It cannot be said that this is merely illustrative. If the rule specifically authorises who can administer oath it cannot be doubted that the provisions of conduct of Elections Rules have to be complied with and if there is any law to the contrary even then these Rules have to be complied. There is no dispute between the parties that the affidavit in question was sworn before the Deputy Registrar at Jabalpur. Chapter III of the M.P. High Court Rules provides for affidavits. Under Rule 1 the Deputy Registrar, a notary public appointed under the Notaries Act and other persons mentioned in Section 539 of the Cr. P.C. and Section 139 of the CPC are persons empowered to administer the oath or receive the solemn affirmation in the case of affidavits to be used in this Court and the Supreme Court. Thus, it is true that the Deputy Registrar has been empowered to administer oath in case of affidavits to be filed in this Court as well as in the Supreme Court. The rules framed by this Court in Chapter VII relate to "Rules Relating to Election Petitions". Rule 9 of these rules is very important. It provides :
"9. The rules of the High Court shall apply in so far as they are not inconsistent with the Representation of the People Act, 1951 or the rules, if any, made thereunder or the Civil Procedure Code or these rules in respect of all matter including processes and process fees, issuance of orders, copies and copying fees, deposit and withdrawal of money, forms, affidavits, etc."
In this way these rules cannot supersede the provisions of Rule 94A. The contention of the learned counsel for the petitioner is that the Deputy Registrar is included within the meaning of "oath commissioner". He derives strength to his argument from the provisions of the oaths Act. The contention of the learned counsel for the respondent is that Rule 94A of Conduct of Elections Rules shows that it is obligatory on the part of the petitioner that the affidavit is to be sworn only before the three authorities provided therein. He also urged that after 1966 Commissioner of Oaths Rules were framed in the State in the year 1977 at serial No, 5798-Teen-1-27-75 dated 25-3-77 and under these rules a provision has been made for appointment of oath commissioner and presently oath commissioners are functioning all over the State. Hence, the contention that the Deputy Registrar is also included within the meaning of oath commissioner is not correct.
13. The learned counsel for the petitioner placed reliance upon AIR 1964 SC 1545(Murarka Radhey Shyam v. Roopsingh). In this case the affidavit was in the prescribed form but due to inexperience of the oath commissioner he made a mistake in the verification portion of the affidavit and it was, therefore, held that the mistake of the oath commissioner in verifying the affidavit could not be sufficient ground for dismissal of the petitioner's petition summarily. The mistake that was pointed out was that the Oaths Commissioner instead of "verified before me" used the words "verified by me". The signature of the deponent had been obtained in between the writing with respect to admission on oath of the contents of the affidavit by the petitioner and the verification by the oaths commissioner. It was observed that according to the prescribed form the verification should be "solemnly affirmed or sworn by" "such and such" on "such and such date" before me. The Court observed that the verification of the affidavit of the petitioner apparently shows that it was not in the prescribed form but reading as a whole the verification carries the same sense as intended by the words mentioned in the prescribed form. The mistake of the oaths commissioner was, therefore, held to be insufficient fordismissal of the petition summarily. This view of the Tribunal was approved by the Apex Court. The question involved in the present case is not such. Here the contention is that the affidavit had been sworn before the Deputy Registrar who is not included within the authorities mentioned under Rule 94A. It has to be seen as to whether the Deputy Registrar of the High Court comes within the ambit of oaths commissioner as mentioned in Rule 94A. Thus, to my mind, this authority does not help the learned counsel for the petitioner.
14. The next authority on which much reliance has been placed by the learned counsel for the petitioner is the decision of the Apex Court reported in AIR 1966 SC 436 (Kamal Narain Sharma v. Dwarka Prasad Mishra). In that case the question that has arisen was that the election petition was supported by an affidavit sworn before a District Clerk of Court who was appointed Commissioner of Oaths u/Section 139, CPC for administering oaths. He was a Clerk of District Court, Jabalpur. An objection was raised that the affidavit was not sworn before the proper authority as required under Rule 94A of the Conduct of Elections Rules. It was, therefore, prayed that the election petition should be dismissed or the allegations about corrupt practices should he struck off. The objection was accepted by the Tribunal but the Tribunal allowed filing of proper affidavit and a fresh affidavit was taken on record. No action was taken against that order. A specific issue was struck with respect to the affidavit filed in support of his petition as to whether it was properly sworn before the competent officer to attest and authenticate an affidavit and did not comply with the provisions of Section 83 of the Act and the rules made thereunder. This Court had considered the question as to whether Rule 94A was mandatory or directory but it did not address itself to the question whether the first affidavit was proper or not. The Apex Court observed that it was not considered perhaps due to the fact that the appellant seems to have conceded before the Tribunal that the first affidavit was not proper. This concession was sought to be withdrawn. While considering this question the Apex Court made an enquiry as to whether in the State of Madhya Pradesh there was any provision under which commissioner of oaths could be appointed but none was shown. Under these circumstances the Apex Court held that it may be that the affidavit sworn before the District Clerk may not be good for the purposes of Cr. P.C. or vice versa but that is because the restriction is to be found in Section 139 of the one Code and Section 539 of the other. Rule 94A made no such condition and made receivable an affidavit sworn before a commissioner of oaths without specifying of what kind. In the case in hand the learned counsel contended that as the High Court amended the existing Rule 1 of Chapter III by notification No. 39-1-22-18-27 dated 5-1-72 and introduced the Deputy Registrar, hence he is the competent person to administer oath. Consequently, the affidavit sworn before the Deputy Registrar is a valid affidavit. 1 have carefully gone through the said authority. It may be mentioned that it was specifically held in that case that the affidavit sworn before Clerk of Court undoubtedly was valid as he was commissioner of oaths. Thus, it is important that the emphasis is on commissioner of oaths and as the Clerk of Court was commissioner of oaths empowered by the comptent authority the affidavit sworn before him was held to he valid To my mind, this authorised was down that the affidavit must be before a commissioner of oaths. The Court laid stress upon the fact that the person before whom the affidavit is verified should be acommissioner of oaths. It was, however, observed that Rule 94A did not specify as to what kind of commissioner should be but the fact remains that the person before whom the affidavit has to be verified should be a commissioner of oaths. After 1966 all the rules existing were done away with as the High Court issued notification No. 5798-Teen-l-27-75 dated 25-3-77 under which in exercise of powers conferred Under Section 139, CPC read with Section 122, CPC all the rules framed earlier were superseded and new rules were framed. These rules define 'Oath Commissioner'. Section 139 of the CPC makes a provision for oath on affidavit by whom to be administered. The aforesaid rules of 1977 were framed under this provision. In AIR 1975 SC 968 (Prabhunarayan v. A. K. Shrivastava) it was layed down that the M.P. High Court Rules do not apply to the election petitions. The case of AIR 1966 SC 436 is distinguishable on another ground also. In that case the Court pointed out that the Apex Court made enquiry as to whether in the State of Madhya pradesh there was any provision under which the commissioner of oaths was appointed but none was shown.
15. The question now is as to whether the Deputy Registrar can be included within the definition of 'Oath Commissioner'. I have also said above that the rules framed u/Section 139, CPC define 'Oath Commissioner' in Rule 2("r) as follows :
^^'kiFk vk;Dr** l vfHkir g dkb Hkh O;fDr tk vfHklk{kh dks 'kiFk fnyku d fy, flfoy ifØ;k lafgrk dh /kkjk 139 ¼d½ d v/khu ;k n.M izfØ;k lfgrk dh /kkjk 297 d v/khu ikf/kdr fd; x; flfoy U;k;ky;k ;k eftLVVks ls fHkUu gk ;k dkbZ Hkh vU; U;k;ky; ftl flfoy ifØ;k lfgrk dh /kkjk 139 ¼x½ d v/khu lk/kkj.kr% ;k fo'k"k :i l l'kDr fd;k x;k gk]** Now if we revert to Chapter III Rule 1 of the High Court Rules we find that it makes a provision for administering oaths in case of affidavits to be used in the High Court and the Supreme Court. It authorises three authorities, i.e. Deputy Registrar, a notary public appointed under Notaries Act, 1952, and other persons mentioned in Section 539, Cr. P.C. and Section 139, CPC. To my mind, it clearly goes to show that there are three different authorities who have been empowered to administer oaths or receive affidavits on solemn affirmation. It is useful to mention here that the persons authorised to administer oaths u/Section 539, Cr. P.C. and Section 139 of the CPC have been defined to be oath commissioner in the rules mentioned hereinabovc of 1977. Consequently. Deputy Registrar is a different authority than that of oath commissioner. Of course he loo has been authorised to administer oath and receive on solemn affirmation affidavits in the case to be used in the High Court and the Supreme Court. Thus, I am of the view that Deputy Registrar inspite of the fact that he has an authority to administer oath or receive solemn affirmation in the case of affidavits is a different authority and it cannot be said to be included in the definition of oath commissioner. Rule 94A of the Conduct of Elections Rules does not provide that an affidavit may be sworn before any other competent authority empowered to administer oath. Had there been a specific provision that affidavit may be sworn before any competent authority empowered to administer oath, in thatcase Deputy Registrar could be said to be a competent authority within the ambit of Rule 94A. As it prescribed only three specific authorities hence any rule to the contrary or any authority to whom the power to^dminister oath is conferred cannot be said to be included within the ambit of this rule. The aforesaid case of Murarka Radhey Shyam (AIR 1964 SC 1545), therefore, does not support the contention that affidavits sworn before the Deputy Registrar is a valid affidavit inspite of the fact that the Deputy Registrar is much higher authority than that of District Clerk of Court. The simple reason is that the Apex Court had specifically held that the District Clerk of Court was undoubtedly a commissioner of oaths. I have already said above that the Deputy registrar in spite of the fact that he has been authorised to administer oath, cannot be said to be included within the definition of commissioner of oaths. Hence, the affidavit which was to be filed in accordance with the proviso to Section 83(1)(c) must be as provided under Rule 94A, As the affidavit sworn before the Deputy Registrar cannot be said to be an affidavit sworn before either of the three authorities mentioned in Rule 94A, it cannot be held to be a valid affidavit in compliance with the said law. I, therefore, agree with the learned counsel for the respondent and hold that the affidavit filed along with election petition with respect to the allegations of corrupt practices is not an affidavit in compliance with the law.
16. Learned counsel for the respondent has also attacked the verification of the affidavit filed along with the petition on another ground. He argued that it is also not in consonance with Form 25. The contention is that Form 25 provides the form in which the affidavit has to be filed. If we go through this form we find in the beginning of the affidavit that the deponent has to mention that he states on solemn affirmation/oath. Every paragraph has to be specifically sworn. In para I it has been mentioned that the dependent has to specify the contents of the paragraphs of the accompanying election petition about the commission of the corrupt practice and to say on oath that they were true to his knowledge. In the other paragraph it is required that the dependent must mention that the statements made in paragraphs ............... of the said petition and the paragraphs of the schedule annexed thereto were true to his information. Thus, it has to be specifically sworn as to what paragraphs are sworn to be true to his knowledge and what paragraphs are true to his information. The learned counsel for the petitioner, on the otherhand, contended that the affidavit has been sworn by the dependent in accordance with law. I have carefully considered the contentions of the learned counsel for the parties and have also perused the affidavit in question. A perusal of the affidavit filed by the petitioner which is at page 31 of the petition shows that in para I he has mentioned certain paragraphs about the commission of corrupt practices and has sworn them to be true "to his knowledge and belief". In the second paragraph it appears that it has been sworn on the basis of belief. There is also no mention of schedule. In the verification clause the deponent has made a sweeping verification to the effect that contends of para No. I and 2 of the above affidavit were true to his knowledge and belief. This verification cannot be said to be in confirmity with the above form because there is no specification whatsover as to what contents were true to the knowledge of the dependent and what were true on information. He has no where separated the allegations which were true to his knowledge and which were believed by him to be true. There is also no mention of schedule. I am, therefore, of the view that the affidavit is certainly not in confirmity with the law as contended by the learned counsel for the respondent.
17. Before parting with the question of the validity of the affidavit, I may also mention another argument of the learned counsel for the respondent. It has been contended by the learned counsel for the respondent that in the affidavit it has also to be mentioned by the deponent as to who gave him the information. This question came up for consideration before the Apex Court in the authority relied upon by the learned counsel for the petitioner reported in AIR 1973 SC 2513 (Krishan Chander v. Ramlal). In that case it was laid down that there is nothing in the Form 25 which requires the petitioner to state the source or sources of his information. It was also laid down that when there are specific rules made under the Act which govern the election petitions, no other Rules are applicable. Rule 7 of Chapter III of the M.P. High Court Rules which makes a provision that every affidavit should clearly express how much is a statement of the declarant's knowledge and how much is a statement made on his information or belief and must also state the sources or grounds of the information or belief with sufficient particularity. I have already said above that Rule 9 of Chapter VII which deals with rules relating to election petitions provides that the High Court rules apply in so far as they are not inconsisent with the Representation of People Act, 1951 or the rules made thereunder, As Clause (b) of Form 25 does not require the source or sources of information, this rule being contrary, is not applicable. I, therefore, repel this contention of the learned counsel for the respondent. In view of what has been said above in the foregoing paragraphs I conclude that the affidavit filed by the petitioner along with election petition is not in accordance with law and is an invalid affidavit.
18. Having found that the affidavit filed by the petitioner along with election petition is not a valid affidavit, it has to be seen as to what is its effect. Learned counsel for the respondent placed reliance upon AIR 1996 SC 1 691 (Dr. Shipra v. Shantilal Khoiwal) and contended that as the affidavit relating to corrupt practices is not in accordance with law the election petition has to be dismissed at its thereshold. In this case the question was as to whether the copy of the electron accompanied by supporting affidavit served on the respective respondent along with Form 25 prescribed under Rule 94A of the Conduct of Elections Rules 1961 without attestation part duly verified by the District Magistrate Notary/ Oath Commissioner could be said to be "True and correct copy" of the election petition as envisaged in Section 81(3) of the Act. The Apex Court took into consideration the entire law on the subject and the previous decisions of the Court and observed. "Since the corrupt practices are required to be proved to the hilt, the element of vagueness would immediately vitiate the election petition". It was also laid down : "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 or corrupt practices was duly and solemnly verified to be correct statement to the best of his knowledge or information as specified in the election petition and the affidavit filed in support thereof; that reinforces the assertions. It was further observed in that case that "Form 25 mandates verification before the prescribed authority." Therefore, the compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine quanon contain the due verification and attestation by the prescribed authority and certified to be true copy of the election petitioner in his/ her own signature. The principle of substantial compliance can not be accepted in the fact situation. Thus, this authority specifically shows that Form 25 mandates verification before the prescribed authority and the compliance of this statutory requirement is an integral part of the election petition.
19. The learned Counsel also relied upon another decision of the Apex Court reported in (1997) 1 MPWN Note 66 (Haricharan Singh Josh v. Shri Hari Kishan) in which the aforesaid authority of Dr. Shipra was relied upon. He also referred to a decision of this Court reported in 1997 (1) MPWN Note 174 (Dharrnalal) where also this Court relied upon the aforesaid authority of Dr. Shipra. There are unreported decisions of this Court also on which reliance has been placed i.e. Election Petition No. 21/94 (Bhagwati Sharan) decided on 23-8-1996, and No. 49/94 (Narendra) decided on 31-7-1996. The learned Cousel for the petitioner contended that these authorities are not applicable. The unreported decisions as well as the case of Harcharan Singh show that they have been decided on the basis of Dr. Shipra case (AIR 1996 SC 1691). According to the learned counsel Dr. Shipra's case is not applicable because in that case the supporting affidavit which was served on the respondent,did not contain any verfication. The plea taken by the respondent was that that the copy served on the respondent along with Form 25 without attestation part duly verified cannot be said to be true and correct copy as envisaged under Section 81(3) of the Act. Thus, the question that had arisen for consideration pertained to the absence of any attestation on the copy of the petition served on the respondent as a result of which the respondent was not a position to ascertain whether, in fact, contents of the affidavit were sworn, affirmed and signed before Magistrate or notary or a person in whose presence swearing on affirmation was made had the authority to administer oath and further that the respondent was not in a position to point out whether the person who is said to have administered the oath was in.existence or signature and endorsement on the affidavit purported to have been made by that authority were fake. The Court took into consideration as to what constitutes a true copy. The learned Counsel laid emphasis upon para 10 of the Judgment. I have carefully considered the contention of the learned Counsel for the parties and have also gone through the aforesaid authority. No doubt, it is true that in Dr. Shipra' s case(AIR 1996 SC 169l) a preliminary objection was raised relating to copy of petition together with the affidavit in support of the election petition. It was contended that they did not contain due verification and attestation by the prescribed authority. The petition was not maintainable under Section 81(1)(c) of the Act. While considering the preliminary objection the Apex Court, as pointed out above, took into consideration as to what was the requirement of law. I have already quoted above, the relevant portion from the aforesaid Judgment which clearly goes to show that 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 or corrupt practices was duly and solemnly verified to be correct statement to the best of his knowledge or information as specified in the election petition and the affidavit field in support thereof. Thus, to contend that the authority dealt with the question of copy alone does not appear to be correct. To my mind, this authority specifically lays down that Form 25 must be verified and attested by the prescribed authority and it has been said so in this case. In the teeth of this fact that the Court specifically held that Form 25 mandates verification before the prescribed authority, the contention is wholly unfounded. This authority, to my mind, applies on all force and fully supports the learned Counsel for the respondent. It has also been relied upon in subsequent decision of the Apex Court as well as of this Court in the aforesaid decisions.
20. Learned Counsel for the petitioner argued that the petition cannot be dismissed at its threshold fortwo reasons. Firstly, besides corrupt practices there are also other grounds on which the election has been challenged and secondly Section 86 of the Act provides that the petition can be dismissed only if it does not comply with the provisions of Sections 81 or 82 or 117. In the present case non-compliance of provision to Section 81(3) has been alleged, hence, it cannot be dismissed at its threshold. As far as the first part of the argument isconcerned.lt may reiterate that the contention of the learned counsel for the petitioner is that apart from corrupt practices averments made in para 9 and 10 and their Sub-paragraphs pertain to allegations under Section 101(1)(d)(iv) and they did not require any affidavit as they did not contain corrupt practices. This question has already been discussed in the earlier part of this order and it has been found that even these allegations constitute corrupt practices even according to the petitioner himself. Thus, this contention is not correct. In support of his contention that the petition cannot be dismissed at its threshold under Section 86 because under this section a petition can be dismissed only if there is non-compliance of Sections 81, 82 or 117. The learned counsel placed reliance upon AIR 1975 SC 968 (Prabhunarayan v. A.K. Shrivastava). In that case the Apex Court observed that according to Section 86 only petitions which do not comply with the provisions of Sections 81, 82 or 117 are liable to be dismissed. I may mention here that in that case the affidavit filed in support of the election petition was in accordance with Form 25. In Dr. Shipra' s case (AIR 1996 SC 1691) a similar argument was raised before the Apex Court which has been mentioned in para 12 of the Judgment. There the argument was that the petition could not 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. The Apex Court observed "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". It was specifically held that "Sections 81, 83(1)(c) and 86 read with the Rule 94A of the Rules and Form 25 are to be read conjonly 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 up hold the same, the need to conduct trial would arise. If the Court upholds the preliminary objection, the election petition would result in dismissal at the threshold as the Court is left with no opinion except to dismiss the same". Thus, this observation is complete answer to the argument of the learned counsel for the petitioner based upon Prabhunarayan's case (AIR 1975 SC 968). It has been specifically ruled that Sections 81, 83(1)(c) read with Rule 94A and Form 25 are to be read conjointly as an integral scheme. Consequently there is no escape from the conclusion that as the petitioner did not comply with the requirements of Rule 94A and Form 25 the petition deserves to be dismissed at its threshold as the election has been challenged solely on the ground of corrupt practices, as said above.
21. Apart from what has been said above, I may also mention another argument of the learned Counsel for the respondent. The objection is that copy of the petition served on the respondent is not the true copy as it does not bear an endorsement of the authority before whom the petition was verified and the affidavit was sworn. In support of this contention the respondent has filed copy of the election petition served upon him and which has been taken on record as discussed above. In reply to this contention the argument of the learned counsel for the petitioner is that the copy of the election petition which has been served on the respondent clearly shows that the affidavit was sworn before the Deputy Registrar who was authorised to administer oath. The copy filed by the respondent which was served upon him shows that it was been attested to be true copy by the petitioner himself. Endorsement on the copy is to the effect that "Attested to be a true copy under my own signatures" It purports to have been signed by the petitioner. It does not bear any endorsement of the authority before whom it was verified and the affidavit was sworn. In the aforesaid case of Dr. Shipra copy of affidavit supplied to the respondent did not contain verification by the notary who had attested the original affidavit filed along with election petition certifying to be a true copy. In the case in hand, as said earlier, even the original affidavit was not sworn before the competent authority. The copy shows that the affidavit was sworn before the Deputy Registrar. The law requires that the copy must also show that verification was made by the notary who had attested the original affidavit filed along with election petition. In that case it was held in para 11 that:
"Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine quanon contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petition in his/her own signature. The principle of substantial compliance cannot be accepted in the fact situation."
As the original affidavit itself was not properly sworn before the competent authority it can safely be said that the copy supplied was not in confirmity with the law. This ground too can, therefore, be said to be aground for dismissal of the petition at the threshold.
22. In view of what has been said above I uphold the preliminary objection of the learned counsel for the respondent and hold that essential requirements of law have not been complied with. The election petition is accordingly dismissed at its threshold. The costs of the petition shall, however, be borne by the parties.