Gujarat High Court
Balvant Sinh Rajput vs Patel Ahmed Mohammad on 20 April, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/EA/2/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION APPLICATION NO. 2 of 2017
In ELECTION PETITION NO. 1 of 2017
With
R/ELECTION APPLICATION NO. 3 of 2017
In
ELECTION PETITION NO. 1 of 2017
With
R/ELECTION APPLICATION NO. 6 of 2017
In
ELECTION PETITION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ? YES 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any NO order made thereunder ?
========================================================== BALVANT SINH RAJPUT Versus PATEL AHMED MOHAMMAD ========================================================== Appearance:
MR KAPIL SIBAL, SR. ADVOCATE WITH MR. HARIN P. RAWAL, SR. ADVOCATE WITH MR.P.S. CHAMPANERI, ADVOCATE FOR THE Page 1 of 85 C/EA/2/2017 CAV ORDER APPLICANT (ORIGINAL RESPONDENT No.1 in ELECTION PETITION No.1 of 2017) MR SATYAPAL JAIN, SR. ADVOCATE WITH MR. N. D. NANAVATI, SR. ADVOCATE WITH MR DEVANG VYAS, ADVOCATE (2794) for the RESPONDENT No.1 (ORIGINAL PETITIONER(s) No. 1 in ELECTION PETITION No.1 of 2017) MR P.Y. DIVYESHWAR, ADVOCATE for the RESPONDENT Nos.2 & 3 ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI Date : 20/04/2018 CAV ORDER
1. All the three applications filed in Election Petition No.1 of 2017 being inter-connected with each other, were heard together. Therefore, this common order is being passed in order to avoid repetition and duplication of factual and legal aspects.
2. All the three applications have been filed by the applicant (original respondent No.1), who is the returned candidate elected to the Council of States from the constituency of Members of Gujarat State Legislative Members, seeking dismissal of the Election Petition No.1 of 2017 preferred by the petitioner Balwant Singh Rajput.Page 2 of 85
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3. The election petitioner in the Election Petition has challenged the election of the applicant (original respondent No.1) declared on 9.8.2017 on various grounds as contemplated under Section 100 of the Representation of the People Act, 1951 (hereinafter referred to as "the said Act"), more particularly alleging that the respondent No.1 i.e. the present applicant had committed corrupt practices of bribery as well as undue influence as defined under Sub-sections (1) and (2) of Section 123 of the said Act, as also on the ground that the Election Commissioner of India without any authority of law, had passed the order dated 8.8.2017 misinterpreting the provisions of the Act and had accepted two votes, which were invalid and rejected two votes, which were valid, materially affecting the result of the election. The petition has been resisted by the applicant (original respondent No.1) by filing the written statement on 4.10.2017. On the same day, the present applications have been filed, seeking dismissal of the Election Petition at the threshold on various grounds.Page 3 of 85
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4. The Election Application No.2 of 2017 has been filed by the the applicant (original respondent No.1) under Section 151 of CPC read with Rules 282, 283, 284 and 285 of the Gujarat High Court Rules, 1993 (hereinafter referred to as "the said Rules") seeking following prayers:-
"16. (a) That this Hon'ble Court be pleased to hold that there is non-compliance of Rules 282(ii) & (iii) and as there is no order of the nature contemplated under Rule 284 and since time has elapsed as provided in latter portion of Rule 283, this Hon'ble Court be pleased to pass an appropriate order dismissing the above captioned election petition for non-removal of office objections in exercise of power under Rule 284 after recalling the order dated 21.8.2017."
5. The Election Application No.3 of 2017 has been filed by the applicant (original respondent No.1) under Section 86(1) read with Section 81(3) read with Section 83(1)(c) read with proviso thereof and Section 83(2) of the said Page 4 of 85 C/EA/2/2017 CAV ORDER Act read with Rule 272(ii) of the said Rules, read with Order XIX Rule 3 of CPC seeking following prayers:-
"17. (a) That this Hon'ble Court be pleased to dismiss the election petition No.1 of 2017 on the grounds urged herein above as being non-compliance of provisions of Representation of the People Act read with Gujarat High Court Rules, 1993 as well as the provisions of Order XIX Rule 3 of CPC."
6. The Election Application No.6 of 2017 has been filed by the the applicant (original respondent No.1) under Order VII Rule 11 of CPC read with Section 151 of CPC read with Rules 282, 283, 284 and 285 of the said Rules read with Section 86(1) of the said Act, seeking following prayers:-
"36. (a) That this Hon'ble Court be pleased to order to dismiss the Election Petition No.1 of 2017 as provided under Order VII Rule 11(a) and (d) of the Code of Page 5 of 85 C/EA/2/2017 CAV ORDER Civil Procedure."
7. All the applications have been resisted by the original petitioner of the Election Petition by filing the affidavits-in-reply, to which the the applicant (original respondent No.1) has filed affidavits-in-rejoinder in all the applications.
8. At the outset, it would be beneficial to reproduce the relevant provisions of the Act and the Rules for ready reference. Chapter-II of the said Act pertains to the presentation of the election petitions to High Court. Section 81 thereof reads as under:-
"81. Presentation of petitions. (1) An election petition calling in question any election may be presented on one or more of the grounds specified in subsection (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within fortyfive days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.
Explanation.In this subsection, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
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C/EA/2/2017 CAV ORDER (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."
9. Section 83 pertains to the contents of the petition, which reads as under:-
"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 t1he petition shall also be signed by the petitioner and verified in the same manner as the petition."Page 7 of 85
C/EA/2/2017 CAV ORDER 10. Section 86 empowers the High Court to
dismiss the election petition for non-compliance of the provisions of Section 81 or Section 82 or Section 117 of the said Act. The relevant part thereof reads as under:-
"86. Trial of election petitions. (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.
Explanation.An order of the High Court dismissing an election petition under this subsection shall be deemed to be an order made under clause (a) of section 98."
11. Section 100 enumerates the grounds on which the election could be declared void. The relevant part thereof reads as under:-
"100. Grounds for declaring election to be void. (1) Subject to the provisions of sub section (2) if the High Court is of opinion
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [or the Government of Union Territories Act, 1963 (20 of 1963)]; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned Page 8 of 85 C/EA/2/2017 CAV ORDER candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any noncompliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;Page 9 of 85
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(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void."
12. Part-VI of the said Act pertains to the dispute regarding elections. Chapter-I of Part- VII pertains to the corrupt practices and electoral offences. What shall be deemed to be corrupt practices for the purposes of the said Act have been envisaged in Section 123 of the said Act. Sub-section (1) of Section 123 pertains to "bribery" and Sub-section (2) thereof pertains to the "undue influence". The relevant part thereof reads as under:-
"123. Corrupt practices. The following shall be deemed to be corrupt practices for the purposes of this Act: (1) "Bribery", that is to say(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing Page 10 of 85 C/EA/2/2017 CAV ORDER
(a) a person to stand or not to stand as, or 4 [to withdraw or not to withdraw] from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, or as a reward to
(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature;
or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward
(a) by a person for standing or not standing as, or for 6 [withdrawing or not withdrawing] from being, a candidate; or
(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate 4 [to withdraw or not to withdraw] his candidature. Explanation.For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section
78.] (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person 7 [with Page 11 of 85 C/EA/2/2017 CAV ORDER the consent of the candidate or his election agent], with the free exercise of any electoral right:
Provided that
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."
13. The form of affidavit to be filed with the election petition referred to in the proviso to Sub-section (1) of Section 83 is the Form No.25 prescribed under Rule 94A of the Conduct of Page 12 of 85 C/EA/2/2017 CAV ORDER Election Rules 1961.
14. It may be further noted that the Gujarat High Court in supersession of the Bombay High Court Appellate Side Rules 1960 as made applicable to the Gujarat High Court, and as amended from time to time, has made the Rules called The Gujarat High Court Rules 1993. Rule 272 to Rule 313 thereof pertain to the election petitions. The relevant Rules necessary to appreciate the contentions raised in the applications are reproduced as under:-
"272. Petition.--
(i) Every application invoking the jurisdiction of the High Court under section 80A of the Representation of the People Act, 1951, shall be by petition addressed to the Honourable the Chief Justice and Judges of the High Court.
(ii) The petition shall comply with the provisions of sections 81, 82, 83 and 84 of the Act and the grounds on which the relief are sought shall be clearly stated in the petition which shall be arranged in suitable paragraphs consecutively numbered. The relief sought should be set out at the end of the petition.
(iii) The full names and the full addresses of all the parties to the petition for service of any process shall be stated in the petition. In addition to the permanent Page 13 of 85 C/EA/2/2017 CAV ORDER residence and addresses of the respondent the present address of the respondent at which service of the notice may be effected, shall be stated in the petition.
283. Examination of petition.--
The office shall examine the petition with a view to see whether it is in conformity with the requirements of law and rules applicable to the same, and if it is not in conformity with law and rules, raise objections which should be removed by the party or the Advocate concerned. The office shall complete the examination within two days after filing of the petition and shall bring the office objections to the notice of the party or the Advocate on the date fixed for attendance under rule 282(ii) and such objections shall be removed, subject to the orders of the Court, if any, within three days thereafter.
284. Petition to be placed for orders if objection not removed.--
Immediately after the expiration of time fixed for the removal of objections, the petition shall be placed before the Judge for appropriate orders.
285. Petition to be placed for orders after removal of office objections.--
(i) After the removal of office objections, the petition shall be placed before the Judge for consideration as to whether the petition is liable to be dismissed under section 86(1) of the Act. If the petition is not dismissed under section 86(1) of the Act, the Judge shall direct issue of summons upon the respondent; and the summons shall be issued to the respondent to appear before the High Court on the date fixed and answer the claim or claims made in the petition." Page 14 of 85
C/EA/2/2017 CAV ORDER 15. The learned Sr. Advocate Mr.Kapil Sibal
appearing with the learned Sr. Advocate Mr.Harin P. Rawal has made elaborate submissions on all the three applications, imploring to dismiss the election petition at the threshold mainly on the ground that there was non-compliance of mandatory provisions as contained in the Act and the Rules. The contours of the preliminary objections raised by Mr.Sibal in Election Application No.2 of 2017 may be summarized as under:-
(i) On the presentation of the petition, the office/registry had raised several objections on 18.8.2017, which were required to be removed by the petitioner or his advocate on the third day of the presentation of the petition, as provided under Rule 282(ii) of the said Rules, however, it appears that the objections were not removed and the petition was placed before the Court for consideration on 21.8.2017. Hence, there was non-compliance of Rule 282(ii) and 283 of the said Rules.
(ii) It is only after the removal of the Page 15 of 85 C/EA/2/2017 CAV ORDER office objections by the petitioner, the petition could be placed before the Court as to whether the petition is liable to be dismissed under Section 86(i) of the said Act, and if the petition is not dismissed, the Court could direct to issue summons upon the respondents. In the instant case, the petitioner having not removed all the office objections, the order dated 21.8.2017 passed by the Court is liable to be recalled.
16. However, the learned Sr. Advocate Mr.N. D. Nanavati appearing with the learned Sr. Advocate Mr.Satyapal Jain submitted as under:-
(i) The petitioner had removed all the office objections before the petition was actually placed before the Court on 21.8.2017, and therefore, there was no question of dismissing the petition under Rule 285 for non-
removal of office objections.
(ii) There was no specific allegation made in the application as to which office objection was not removed by the petitioner. Page 16 of 85
C/EA/2/2017 CAV ORDER (iii) The applicant has stated in his application that "it appears that the office objections were not removed", meaning thereby
the applicant himself was not sure as to which office objections were not removed. The application has been filed on conjectures and surmises.
17. So far as Election Application No.3 of 2017 is concerned, the learned Sr. Advocate Mr.Sibal taking the Court to the Election Petition in the light of the contentions raised in the application, and pressing into service various provisions of the said Act made following submissions:-
(i) The copy served on the applicant (respondent No.1) was not attested by the petitioner under his own signature to be a true copy of the original.
(ii) The copy served on the applicant (respondent No.1) is also not a true copy of the petition filed before the Court.
(iii) Assuming that the petition filed in the
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Court with affidavit was in accordance with law, the copy served on the respondent No.1 was not consistent with the original petition, and therefore, could not be said to be the true copy of the original petition. There were many discrepancies in the original affidavit/verification filed in the Court along with the petition and the copy of the said affidavit/verification served to the respondent No.1.
(iv) The petitioner had not furnished sufficient number of copies of the petition as there were respondents, and therefore, there was non-
compliance of Section 81(3) of the said Act.
(v) The Election Petition has not been signed by the petitioner at the end of the petition and has been signed by the Advocate Mr.Devang Vyas. The affidavit made by the petitioner below the election petition is not in the proper format, and the verification made below the said affidavit is not in the manner laid down in CPC for verification of pleadings as required under Section 83(1)(c) of the said Page 18 of 85 C/EA/2/2017 CAV ORDER Act.
(vi) The petitioner having made allegations with regard to the corrupt practices against the applicant (original respondent No.1), the petition is required to be accompanied by an affidavit in the Form 25 prescribed under Rule 94A of the said Rules, however, in the affidavit filed in the Form No.25 the petitioner had stated that the particulars of corrupt practices mentioned in paragraphs 3.3. to 3.12 were true to his knowledge and also stated that the said particulars were true to his information. Similarly, the particulars of corrupt practices contained in paragraphs 3.13 to 3.17 have been stated to be true to his knowledge and true to his information. Such affidavit could not be said to be in conformity with the prescribed Form No.25, and therefore, not in compliance with the proviso to Sub-section (1) of Section
83.
(vii) The affidavit filed by the Election Petitioner in support of the Election Petition was not adhering to the Order XIX Rule Page 19 of 85 C/EA/2/2017 CAV ORDER 3 of CPC, and therefore, not in compliance with Section 83(1)(c) of the said Act.
(viii) The copy of the election petition served upon the applicant (original respondent No.1) bore blanks at page 40 in the verification made to the petition, and there were also blanks in the verification to the enclosures stated to be affirmed at Sr. Nos.9726 to 9754. If the blanks were filled up in the verification below the election petition and in the verification in support of the enclosures, submitted in the Court, the copy supplied to the applicant could not be said to be the exact true copy of the petition filed before the Court, and therefore also, there was non-compliance of Section 81(3) read with Section 83(1)(c) to the said extent.
18. In reply to the said contentions raised by the learned Sr. Advocate Mr.Sibal for the applicant (original respondent) in Election Application No.3 of 2017, the learned Sr. Advocate Mr.Satyapal Jain with the learned Sr. Advocate Mr.Nanavati for the petitioner submitted as under:-
Page 20 of 85
C/EA/2/2017 CAV ORDER (i) There was due compliance of all the
mandatory provisions contained in the Act and the Rules as regards the supply of copies of petition for the respondents and also as regards the attestation and signatures put by the petitioner in the petition as well as in the Annexures produced in support of the petition.
(ii) The word 'copy' used in Sub-section (3) of Section 81 does not mean an absolutely exact copy but means that the copy shall be so true that nobody by any possibility misunderstand it.
(iii) Substantial compliance of Section 81(3) can not entail dismissal of petition at the threshold.
(iv) The petition was signed by the petitioner and duly verified in the manner laid down in CPC for verification of the pleadings, and therefore, there was due compliance of Section 83(1)(c) of the said Act and the proviso thereof.
(v) The petition is accompanied by the
affidavit in the prescribed Form No.25 in
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support of the allegations of corrupt practices and the particulars thereof.
(vi) The applicant had not produced on record the copy of the petition served to him along with his affidavit to substantiate the allegations of blanks contained in the verification of the petition. What is sought to be produced with the Application No.3 of 2018 is the photo-copy of the copy of the petition allegedly served upon the applicant (original respondent No.1), but the actual copy of the petition itself served on the applicant has not been produced on record. Even otherwise, the petitioner has already furnished another copy of the petition duly affirmed to the applicant.
(vii) If there were some minor defects or omissions in the affidavit filed in Form No.25 as regards the particulars of corrupt practices alleged in the petition such defects could not be said to be fatal to the petition, as per the settled position of law.
(viii) Provisions contained in Section 83(1)(c) Page 22 of 85 C/EA/2/2017 CAV ORDER could not be said to be mandatory and non- compliance thereof, if any, could not entail dismissal under Section 86 of the said Act.
19. So far as Election Application No.6 of 2017 is concerned, the learned Sr. Advocate Mr.Kapil Sibal for the applicant (original respondent No.1) has made following submissions:-
(i) Section 81(1) provides that the election petition may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court. Section 100(1) provides for the grounds on which the election of a returned candidate can be declared to be void. However, in the instant case, the petitioner has failed to disclose cause of action for filing the election petition.
(ii) No ground as envisaged under Section 100 is made out from the averments made in the petition. The petition does not contain material facts and full particulars of "bribery"
and "undue influence" so as to construe corrupt Page 23 of 85 C/EA/2/2017 CAV ORDER practice as described in Section 123, and therefore, no cause of action could be said to have been arisen for filing the petition. The petition, therefore, is liable to be rejected under Order VII Rule 11(a) of CPC read with Section 86(1) of the said Act.
20. In reply to the said submissions in Election Application No.6 of 2017, the learned Sr. Advocate Mr.Nanavati appearing with Mr.Satyapal Jain, however, submitted as under:-
(i) The applications have been filed to delay the proceedings after filing of the written statement.
(ii) The Election Petition duly contains the concise statement of material facts, on which the petitioner relies and also sets forth full particulars of corrupt practices as described in Section 123 of the said Act, including the statements of the names of the agents of the respondent No.1, through whom the respondent No.1 committed corrupt practices and the date and place of the commission of such practices, Page 24 of 85 C/EA/2/2017 CAV ORDER as required under Section 83(1) of the said Act.
(iii) The cause of action is bundle of facts, if traversed, are required to be proved by the petitioner by leading evidence in order to get the reliefs claimed in the petition. The petition is required to be tried by permitting the parties to lead evidence for adjudication of the disputes raised in the petition.
(iv) The petitioner has also challenged the action of the Election Commissioner of India in illegally rejecting two valid votes and accepting two invalid votes, and thereby materially affecting the result of the election, which is also one of the grounds on which the election could be declared void.
21. The learned Sr. Advocates appearing for the parties have relied upon plethora of judgements in support of their respective contentions, which shall be dealt with hereinafter at the appropriate place. However, before adverting to the rival contentions raised by the learned Advocates for the parties, it would be Page 25 of 85 C/EA/2/2017 CAV ORDER beneficial to regurgitate the legal position settled by the Supreme Court in catena of decisions as to when the election petition could be dismissed at the threshold under Section 86 for non-compliance of Section 81, or under Order VII Rule 11 read with Section 83(1) of the said Act.
22. The decision in case of Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors, reported in AIR 1964 SC 1545, is the basic authority on the law propounded by the Constitution Bench of the Supreme Court, as to the interpretation of Section 81(3) of the said Act. In the said case, certain preliminary objections were raised by the returned candidate Murarka in the Election Petitions filed by the electors. The said objections were rejected by the Election Tribunal and the High Court, and therefore, the Appeals were filed before the Supreme Court. The objections were with regard to the defects in the verification of the Election Petition and with regard to the copy served on the applicant being not the true copy of the petition, and Page 26 of 85 C/EA/2/2017 CAV ORDER thereby non-compliance of Section 81(3) of the said Act. The objection was also raised with regard to the non-compliance of Sub-section (1) of Section 83 on the ground that the affidavit which accompanied the petition in respect of the corrupt practices alleged against the appellant was neither in the prescribed form nor was properly sworn as required under the Rules. The Constitution Bench dealing with each of the preliminary objections held as under:-
"8. We now go to the second point. But before we do so, it may perhaps be stated that certain defects in the verification of Election Petition No. 269 of 1962 have been brought to our notice, as they were brought to the notice of the Election Tribunal. One of these defects was that though the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on the basis of advice and information received by the petitioner from legal and other sources, the petitioner did not state in so many words that the advice and information received was believed by him to be true. The Election Tribunal took the view that this defect in verification was a matter which came within cl. (c) of subs. (1) of Section 83 and the defect could be removed in accordance With the principles of the Code of Civil Procedure, 1908. The Election Tribunal further held that such, a defect did not attract subs. (3) of Section 90 Page 27 of 85 C/EA/2/2017 CAV ORDER inasmuch as that subsection does not refer to noncompliance with the provisions of Section 83 as a ground for dismissing an election petition. We agree with the view expressed by the Election Tribunal. We have pointed out that subs. (4) of (1) [1954] S.C.R. 892 583 s. 90 originally referred to three sections, namely, is 81, 83 and 117. It said that notwithstanding anything contained in Section 85 the Tribunal might dismiss an election petition which did not comply with the provisions of Section 81, Section 83 or Section 117. Section 90 was amended by Act 27 of 1956. Subs. (3) then said that the Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, Section 81 or Section 117 notwithstanding that it has not been dismissed by the Election Commission under Section 85. There was a further amendment by Act 40 of 1961 and subs. (3) of Section 90 as it now stands has already been quoted by us in an earlier part of this judgment. It seems clear to us that reading the relevant sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by cl. (c) of sub s. (1) of Section 83 is fatal to the maintainability of the petition.
9. xxx
10. xxx
11. We agree with the High Court and the Election Tribunal that the first defect is not a defect at all. When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word "petitioner" was not necessary. Subsection (3) of S. 81 requires that the copy shall be attested by the petitioner under his own Page 28 of 85 C/EA/2/2017 CAV ORDER signature and this was done. As to the second defect the question really turns on the true scope and effect of the word "copy"
occurring in subsec. (3) of S. 81. On behalf of the appellant the argument is that subs. (3) of S. 81 being mandatory in nature all the requirements of the sub section must be strictly complied with and the word "copy must be taken to be an absolutely exact transcript of the original. On behalf of the respondents the contention is that the word "copy" means that which comes so near to the original as to give to every person seeing it the idea created by the original. Alternatively, the argument is that the last part of subs. (3) dealing with a copy is merely directive, and for this reliance is placed on the decision of this Court in Kamaraja Nadar v. Kunju Thevar, 1959 SCR 583 : (AIR 1958 SC 687). We are of the view that the word "copy" in sub s. (3) of S. 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it (see Stroud's Judicial Dictionary third edition, Volume 4, page 3098). In this view of the matter it is unnecessary to go into the further question whether any part of subs. (3) of S. 81 is merely directory. Several English decisions were cited at the bar. The earlier decision cited to us is the decision in Peacock v. Mason, (1834) 131 ER 1111 where it was held that the omission of the words "the" and "by" in the copy of the writ of capias prescribed by the Schedule 2 W. 4, c. 39 did not invalidate an arrest. The reason given was thus expressed :
"To ascertain whether or not an unfaithful copy produces any alteration in the meaning, supposes an exertion of intellect which it may be inconvenient to require at the hands of this who serve the copy. It was to obviate this inconvenience, that the Legislature has Page 29 of 85 C/EA/2/2017 CAV ORDER given a form and required that it should be pursued. Nothing but ordinary care is necessary for taking the copy."
In a later decision Sutton v. Mary Ann Burgess, (1835) 149 ER 1291 the copy of the writ served on the defendant omitted the letter "s" in the word "she". It was held that the omission was immaterial as it could not mislead anybody. In Morris v. Smith, (1835) 150 ER 51 there was a motion to set aside the service of the writ of summons for irregularity, on the ground that the defendant being an attorney, he was only described as of Paper Buildings in the Inner temple, London and the addition of "gentleman" was not given. It was held that the form in the statute 2 Will, 4, C. 39 S. 1, did not require the addition of the defendant to be inserted in the Writ and it was sufficient to state his residence. The writ of summons was therefore valid. In another case in the same volume Cooke v. Vaughan, (1938) 150 ER 1346 it was held that where a writ of capias described the defendant by the addition of "gentleman", but that addition was omitted in the copy served, the copy was not a copy of the writ, in compliance with the stat. 2 Will 4, c. 39, S. 4. On behalf of the respondents a number of decisions under the Bills of Sale Act, 1878 and the Amendment Act, 1882 (45 and 46 Vict c. 43) were cited. The question in those cases was whether the bill was "in accordance with the form in the schedule to this Act annexed" as required by S. 9 of the Bills of Sale Act 1878, and Amendment Act 1882. In re Hewer Ex parte Kahen, (1882) 21 Ch D 871 it was held that a "true copy" of a bill of sale within the Bills of Sale Act 1878, S. 10, subs. (2), must not necessarily be an exact copy, so long as any errors or omissions in the copy filed are merely clerical and of such a nature that no one would be thereby misled. The same view was expressed in several other decisions and Page 30 of 85 C/EA/2/2017 CAV ORDER it is unnecessary to refer to them all. Having regard to the provisions of Part VI of the Act, we are of the view that the word "copy" does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the appellant; therefore there was no failure to comply with the last part of subs. (3) of S. 81. In that view of the matter subs. (3) of S. 90 was not attracted and there was no question of dismissing the election petition under that subsection by reason of any failure to comply with the provisions of S.
81. This disposes of the second preliminary objection raised before us.
12. We now turn to the third preliminary objection and this relates to the affidavit which accompanied the petition in respect of the corrupt practices alleged against the appellant. The argument on this part of the case is that the affidavit was neither in the prescribed form nor was it properly sworn as required by the Rules in the Conduct of Election Rules. 1961; therefore there was a failure to comply with the proviso to subs. (1) of S. 83 of the Act. The argument further is that an election petition under S. 81 must comply with the provisions of S. 83 and unless it complies with those provisions, it is not an election petition under S. 81.
13. We think that this contention has been sufficiently disposed of by what has been stated by the Election Tribunal. The Election Tribunal has rightly pointed out that the affidavit was in the prescribed form but due to inexperience the Oaths Page 31 of 85 C/EA/2/2017 CAV ORDER Commissioner had made a mistake in the verification portion of the affidavit. The Tribunal said :
"It appears that due to inexperience of the Oaths Commissioner instead of "verified before me" words, "verified by me" have been written. The signature of the deponent has been obtained in between the writing with respect to admission on oath of the contents of affidavit by the petitioner and the verification by the Oaths Commissioner. 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 verification of the affidavit of the petitioner is apparently 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 in verifying the affidavit cannot be a sufficient ground for dismissal of the petitioner's petition summarily, as the provisions of S. 83 are not necessarily to be complied with in order to make a petition valid and such affidavit can be allowed to be filed at a later stage also."
This view of the Election Tribunal was affirmed by the High Court. We agree with the view expressed by the Election Tribunal and we do not think that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election petition."
23. In case of Ch. Subbrao Vs. Member, Election Tribunal, Hyderabad and Ors., reported in AIR Page 32 of 85 C/EA/2/2017 CAV ORDER 1964 SC 1027, another Constitution Bench again, while considering the issue whether the omission to add the words 'true copy' in the copies of the petition constituted a non-compliance with Section 81(3) so as to render the petition liable to be rejected under Section 90(3) of the Act, followed the ratio of decision in case of Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors (supra), and held as under:-
"26. ... We do not however consider that there is really need for so much refinement when one has to look at whether there is a substantial compliance with the requirement of this provision. If the signature now found on the copies were intended to authenticate the document to which it is appended, viz., the copy, it would only mean that the copy did not reproduce the signature in the original. There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a noncompliance with Section 81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of the signatory would suffice. The decision of this Court in Murarka's case C.A. Nos.30 and 31 of 1963 D/i 7.3.1963 (SC) is authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. In the circumstances, we consider that there has been substantial compliance with the requirement of Section 81(3) in the petition that was filed by the Page 33 of 85 C/EA/2/2017 CAV ORDER appellant and the learned Judges were in error in directing the dismissal of the petition."
24. Another Constitution Bench of Supreme Court in case of T. M. Jacob Vs. C. Poulose and Ors., reported in AIR 1997 SC 1359 was required to deal with the issue as to whether the election petition could be dismissed at the threshold under Section 86(1) for non-compliance of Section 81(3) of the said Act on the allegation that the copy of the affidavit supplied to the respondent together with the notice of election petition was not a true copy, as it did not indicate the name and designation of the notary and also did not bear the seal and stamp of the notary. In the said case, the Supreme Court while granting leave to appeal had doubted the decision in case of Dr.Shipra Vs. Shanti Lal Khoiwal, reported in 1996(5) SCC 181 and had referred the matter for consideration by the Larger Bench. The Constitution Bench following the decisions of earlier Constitution Benches in case of Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors (supra) and in case of Ch. Subbrao Vs. Member, Election Tribunal, Hyderabad Page 34 of 85 C/EA/2/2017 CAV ORDER and Ors. (supra) and distinguishing the observations made in Dr.Shipra Vs. Shanti Lal Khoiwal (supra) held as under:-
"35. The object of serving a true copy of an Election Petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in Election Petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form.
36. The expression copy in section 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation.
37. xxx
38. We are unable to agree with Mr. Salve that since proceedings in election petitions are purely statutory proceedings and not civil proceedings as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into section 86(1) read with section 81(3) of the Act. It is too late in the day to so urge. The law as settled by the two Constitution Bench decisions of this Court referred to Page 35 of 85 C/EA/2/2017 CAV ORDER above is by itself sufficient to repel the argument of Mr. Salve. That apart, to our mind, the Legislative intent appears to be quite clear, since it divides violations into two classes those violations which would entail dismissal of the election petition under section 86(1) of the Act like non compliance with section 81(3) and those violations which attract section 83(1) of the Act i.e. noncompliance with the provisions of section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam and Ch. Subbarao's cases. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. This position clearly emerges from the provisions of Section 83(1) and 86(5) of the Act, which read thus:
"83. Contents of petition.
(1) An election facts
(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.Page 36 of 85
C/EA/2/2017 CAV ORDER
86. Trial of election petition. (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
39. Applying the test as laid down in Murarka Radhey Shyam Ram Kumars case (supra), to the fact situation of the present case, we come to the conclusion that the defects complained of in the present case were not such as could have misled the appellant at all. The nonmention of the name of the notary or the absence of the stamp and seal of the notary in the otherwise true copy supplied to the appellant could not be construed to be omission or variation of a vital nature and, thus, the defect, if at all it could be construed as a defect was not a defect of any vital nature attracting consequences of Section 86(1) of the Act. Under the circumstances, it must be held that there was no failure on the part of the election petitioner to comply with the last part of subsection (3) of Section 81 of the Act and, under the circumstances, Section 86(1) of the Act was not attracted and the election petition could not have been dismissed by reason of the alleged failure to comply with the provisions of Section 81 of the Act. In this connection, it is also relevant to note that the appellant, neither in the memo of objections nor in the written objections or in C.M.P.No.2903 of 1996 has alleged that he had been misled by the absence of the name, rubber stamp and seal of the notary on the copy of the affidavit Page 37 of 85 C/EA/2/2017 CAV ORDER supplied to him or that he had been prejudiced to formulate his defence. Even during the arguments, learned counsel for the appellant was not able to point out as to how the appellant could have been prejudiced by the alleged omissions on the copy of the affidavit served on him.
40. In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of noncompliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhey Shyams case (supra) are sound tests and are now well settled. We agree with the same and need not repeat those tests. Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of Section 86 (1) of the Act for alleged noncompliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the requirements of Section 81(3) of the Act in supplying true copy of the affidavit to the appellant by the respondent."
25. In case of Sardar Harcharan Singh Brar Vs. Sukh Darshan Singh and Ors., reported in 2004(11) SCC Page 38 of 85 C/EA/2/2017 CAV ORDER 196, it has been held inter alia that failure to comply with the requirement as to filing of the affidavit in Form prescribed in Rule 94A, can not be a ground to dismiss the petition under Section 86 of the Act. The relevant part thereof reads as under:-
"14. So is the case with the defect pointed out by the High Court in the affidavit filed in support of the election petition alleging corrupt practice by the winning candidate. The proviso enacted to subSection (1) of Section 83 of the Act is couched in a mandatory form inasmuch as it provides that a petition alleging corrupt practice shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. The form is prescribed by Rule 94A. But at the same time, it cannot be lost sight of that failure to comply with the requirement as to filing of an affidavit cannot be a ground for dismissal of an election petition in limine under sub Section (1) of Section 86 of the Act. The point is no more res integra and is covered by several decisions of this Court. Suffice it to refer to two recent decisions namely G. Mallikarjunappa and anr. Vs. Shamanur Shivashankarappa and ors. (2001) 4 SCC 428 and Dr. Vijay Laxmi Sadho Vs. Jagdish (2001) 2 SCC 247, both threeJudges Bench decisions, wherein the learned Chief Justice has spoken for the Benches. It has been held that an election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of "Section 81 or Section 82 or Section 117 of the RP Act". The requirement of filing an Page 39 of 85 C/EA/2/2017 CAV ORDER affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Noncompliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly "defective" affidavit, is required to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case."
26. In case of Chandrakant Uttam Chodankar Vs. Dayanand Rayu Mandrakar, reported in 2005 (2) SCC 188, the appeals were filed before the Supreme Court against the order passed by the Bombay High Court dismissing the Election Petitions on the preliminary objections raised by the returned candidate. The question raised before the Supreme Court was, whether the Election Petitions could have been dismissed in limine under Section 86 by reason of non- compliance of Sections 81(3), 83(1)(a), (c) and 83(2) of the said Act. The Three Judge Bench following the decisions of the Constitution Page 40 of 85 C/EA/2/2017 CAV ORDER Bench in case of Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors(supra) and Ch. Subbrao Vs. Member, Election Tribunal, Hyderabad and Ors.(supra), and also considering various other judgements, observed in paragraph 81 thereof that the decisions in case of Satya Narain Vs. Dhuja Ram, reported in 1974(4) SCC 237 and in case of Rajendra Singh Vs. Usha Rani, reported in 1984(3) SCC 339 do not lay down good law. In the said case, the Supreme Court allowing the appeals also held that the burden to prove that the election petition was not maintainable or the same should be dismissed on the threshold lay on the respondents, and that the act of the officers of the High Court would draw of presumption in terms of Section 114(e) of the Evidence Act. Justice S. B. Sinha, as he then was, in his concurring judgement observed as under:-
"85. Concededly, the officers of the High Court are required to perform administrative functions one of which is to scrutinise the election petition so as to ascertain as to whether the petitions filed before the Court are free from any defect. Such an official act would draw a presumption of having been performed in the ordinary course of business Page 41 of 85 C/EA/2/2017 CAV ORDER in terms of Section 114(e) of the Evidence Act.
86. In Jugal Kishore Patnaik v. Ratnakar Mohanty Khanna, J., speaking for a three Judge Bench raised a presumption of correctness as regards endorsement made by an officer of th court in respect of the election petition stating:
"We see no cogent ground to question the correctness of this endorsement which clearly lends support to the inference that the copy filed with the petition had been attested by the respondent and that the petition did not suffer from lack of compliance with the procedural requirement."
27. In case of Umesh Challiyill Vs. K. P. Rajendran, reported in (2008) 11 SCC 740, the Supreme Court while dealing with the preliminary objections that the affidavit in Form 25 was not affirmed, the affirmation was not duly certified, their verification of the election petition was defective, the source of information as regards the allegations of corrupt practices were vague and lacked pleadings as regards material particulars, considered the scope of Section 83 of the said Act and held inter alia that the election petition can not be dismissed under Section 86(1) at the outset on the ground that technical or cosmetic defect, but the election Page 42 of 85 C/EA/2/2017 CAV ORDER petition can be dismissed on the ground of it being not properly constituted as required under the provisions of CPC. The relevant observations read as under:-
"12. Both the defects which have been pointed out by learned Single Judge were too innocuous to have resulted in dismissal of the election petition on the basis of the preliminary objection. The Courts have to view it whether the objections go to the root of the matter or they are only cosmetic in nature. It is true that the election petition has to be seriously construed. But that apart the election petition should not be summarily dismissed on such small breaches of procedure. Section 83 itself says that the election petition should contain material facts. Section 86 says that the High Court shall dismiss the election petition which does not comply with the provisions of Section 81 of Section 82 or Section 117. But not of defect of the nature as pointed out by the respondent would entail dismissal of the election petition. These were the defects, even if the Court has construed them to be of serious nature, at least notice should have been issued to the party to rectify the same instead of resorting to dismissal of the election petition at the outset.
20. However, in fairness whenever such defects are pointed then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case Page 43 of 85 C/EA/2/2017 CAV ORDER of failure to remove/ cure the defects, it could result into dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of the CPC but in the present case we regret to record that the defects which have been pointed out in this election petition was purely cosmetic and it does not go to the root of the matter and secondly even if the Court found them of serious nature then at least the court should have given an opportunity to the petitioner to rectify such defects.
28. In case of G.M. Siddheshwar Vs. Prasanna Kumar, reported in 2013(4) SCC 776, the three Judge Bench of the Supreme Court while considering the question as to whether it is imperative for an election petitioner to file an affidavit in terms of Order VI Rule 15(4) of CPC in support of the averments made in the election petition in addition to an affidavit as required by the proviso to Section 83(1) of the Act, held that there is no such mandate in the Representation of People Act. It also further held that if an affidavit filed in support of the allegations of corrupt practices of a returned candidate is not in the statutory form No.25 prescribed by the Rules, the petition is not liable to be Page 44 of 85 C/EA/2/2017 CAV ORDER summarily dismissed, as long as there is substantial compliance with the statutory form.
29. In case of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy, reported in (2012) 7 SCC 788, also the Supreme Court observed that the format of the affidavit is at any rate not a matter of substance. What is important and at the heart of the requirement is whether the election petitioner has made averments which are testified by him on oath, no matter in a form other than the one that is stipulated in the Rules.
30. In case of Anil Vasudev Salaonkar Vs. Naresh Kushali Shigaonkar, reported in 2009(9) SCC 310 while dismissing the election petition under Order VII Rule 11 read with Section 83(1) of the Act on the ground that it did not contain "material facts" necessary to formulate and complete cause of action, the Supreme Court observed as under:-
"57. It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. Since the Page 45 of 85 C/EA/2/2017 CAV ORDER object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must contain a concise statement of "material facts" on which the petitioner relies.
58. There is no definition of "material facts" either in the Representation of Peoples Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this court has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would constitute a complete cause of action. This court in Harkirat Singh's case (supra) tried to give various meanings of "material facts". The relevant paragraph 48 of the said judgment is reproduced as under: "The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus, (Third Edn.); p.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend Page 46 of 85 C/EA/2/2017 CAV ORDER upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party."
59. In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (respondent herein) is bound to substantiate before he can succeed on that charge. It is also wellsettled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient."
31. In light of the afore-stated legal position let us examine the factual aspects of the matter, inasmuch as the application of the ratio of the decisions would depend upon the context in which such decisions are rendered and would also depend upon the facts of the case to which such application is sought for. It can not be gainsaid that the concepts familiar to common law and equity must remain strangers to the election law unless statutorily embodied. As held by the Supreme Court in case of MS JYOTI BHATT, AGP Basu Vs. Debi Ghosal, reported in Page 47 of 85 C/EA/2/2017 CAV ORDER (1982) 1 SCC 691, an election petition is not an action at common law nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply, but only those Rules, which the statute makes apply. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it.
32. In the instant case, the first and foremost preliminary objection out of the multiple objections raised by the learned Sr. Advocate Mr.Sibal is that the office had placed the petition before the Court without verifying as to whether all the office objections were removed by the petitioner within the prescribed time limit, and therefore, there was non- compliance of Rule 282(ii) and (iii) requiring dismissal of the petition under Rule 284 of the said Rules. According to him, the petition having been presented on 18.8.2017 the office objections were required to be removed within three days i.e. before 21.8.2017, however, it appears that the same were not removed and the Page 48 of 85 C/EA/2/2017 CAV ORDER petition was placed for consideration before the Court under Rule 285 as if the objections were removed. In the opinion of the Court there is basic fallacy in the said submission. It appears that the applicant himself was not sure as to whether the office objections were, in fact, removed or not, when the Election Application No.2 of 2017 was filed by him inasmuch as there is no specific allegation made in the application as to which objections raised by the office/registry of the High Court were not removed, and it is stated that "It appears that the objections which were raised by the office were not removed". The application appears to have been filed on mere conjectures and surmises. That apart, the office was required to place the matter before the Court for appropriate orders under Rule 284 only if the objections were not removed within the time fixed or as per the order, if any, passed by the Court under Rule 283.
33. The petitioner in the reply to the said application, while denying the said allegation, Page 49 of 85 C/EA/2/2017 CAV ORDER has stated on oath that the petitioner had removed all the objections before the petition was actually placed before the Court for consideration. Pertinently, the petition could be placed before the Court for consideration under Rule 285, only after the removal of the office objections, otherwise the matter would be placed for appropriate orders by the office for non-removal of the objections as per Rule 284. No such orders were sought by the office under Rule 284, meaning thereby it has to be presumed that the office after scrutiny of the petition, and after removal of office objections by the petitioner had placed the matter for consideration before the Court. As held by the Supreme Court in case of Chandrakant Uttam (supra), the scrutiny of election petition is one of the administrative functions to be performed by the officers of the High Court, and such an act would draw a presumption of having been performed in terms of Section 114(e) of the Evidence Act.
34. It is also pertinent to note that after the Page 50 of 85 C/EA/2/2017 CAV ORDER matter was placed before the Court as per the roster, the Court had issued summons to the respondents on 21.8.2017, directing the respondents to appear before the Court on 21.9.2017. Thereafter the learned Advocate Mr.Champaneri appearing for the respondent No.1 had stated that he had filed a separate application seeking further time to file written statement. Thereafter the matter was directed to be placed on 6.10.2017. In the meantime, the respondent No.1 had filed the written statement and the present applications on 4.10.2017. At no point of time after the filing of the appearance, the learned Advocate for the applicant (original respondent No.1) had raised such contention to the effect that the petition was placed for consideration before the Court without removing all office objections. It is true that on presentation of the petition on 18.8.2017, the office had pointed out the office objections i.e. No.19, 22, and 23 listed in the prescribed check-list in Form B. Office objection No.19 is as to whether paging is done; No.22 is as to whether copies are true, legible Page 51 of 85 C/EA/2/2017 CAV ORDER and whether typed copies of any written annexures are filed; and No.23 is as to whether copies are true copies signed by the Advocate. The matter was permitted to be circulated before the appropriate Bench on 21.8.2017. Hence, it is just possible that the petitioner had removed the said office objections before the matter was actually placed before the Court for consideration on 21.8.2017. In absence of any positive statement in the application filed by the applicant as to which office objections were not removed by the petitioner before the matter was placed before the Court for consideration, such application No.2 of 2017 filed merely on conjectures and inferences could not be entertained for dismissal of the petition on the ground of non-removal of office objections.
35. Adverting to the next preliminary objections raised by Mr.Sibal in Election Application No.3 of 2017 with regard to the non-compliance of the mandatory provisions of the said Act, more particularly Section 81(3) and Section 83(1) of the said Act, it may be noted that the Page 52 of 85 C/EA/2/2017 CAV ORDER application has been filed on the premise that there were many lapses/defects in the verification of the pleadings and that the copy supplied to and served upon the applicant was not the exact true copy of the petition filed before the Court. At this juncture, it is required to be stated that during the course of hearing, the Court had raised the query as to whether the copy of the petition supplied to and served upon the applicant was produced on record, and the learned Advocate for the applicant on the next date of hearing had sought to produce a photocopy of the copy served on the applicant, by filing a separate application being Election Application No.3 of 2018. The learned Sr. Advocate Mr.Jain for the petitioner had raised the objection to such production of photocopy of the copy allegedly served upon the applicant, on the ground that the applicant was required to produce along with the affidavit, the copy of the petition, which was actually served on the applicant (respondent No.1). Considering the submissions of the learned Advocates for the parties, the Court has passed Page 53 of 85 C/EA/2/2017 CAV ORDER separate order in the Election Application No.3 of 2018, permitting the applicant to produce the photocopy of the copy allegedly served on the applicant, for limited purpose of appreciating the contentions raised by the applicant in the Election Applications No.2 of 2017, 3 of 2017 and 6 of 2017, without the same being construed as the evidence of the copy of the petition allegedly served on the applicant. Under the circumstances, the fact remains that the actual copy of the petition served upon the applicant (respondent No.1) has not been produced by the applicant along with his affidavit. Be that as it may, at this juncture for the purpose of appreciating the contentions raised in the present application, the photocopy of the said copy allegedly served upon the applicant is permitted to be relied upon.
36. It may also be further noted at this juncture that though Mr.Sibal had vehemently submitted that the election petition was not accompanied by as many copies thereof as there are respondents mentioned in the petition and Page 54 of 85 C/EA/2/2017 CAV ORDER thereby there was non-compliance of the first part of Sub-section (3) of Section 81 entailing dismissal of the petition, no such contentions or averments on oath find place in the said application No.3 of 2017. There is not a whisper about the said allegation in the said application. It is needless to say that the non-compliance of Section 81(3) of the said Act being fatal to the petition, such allegation has to be stated on oath by the applicant. Hence, the said allegation orally made by the learned Sr. Advocate Mr.Sibal for the applicant, without there being any pleadings in the application does not deserve any further consideration.
37. Much has been argued by Mr.Sibal relying upon the decision of the Supreme Court in case of Sharif-ud-din Vs. Abdul Gani Lone, reported (1980) 1 SCC 403 on the issue of non-compliance of Section 81(3) of the said Act by submitting that the copy, which was sought to be served on the application was not attested by the petitioner under his signature to be a 'true copy' of the said petition. He also submitted Page 55 of 85 C/EA/2/2017 CAV ORDER that the copy sought to be served on the applicant was not the 'true copy' of the petition, inasmuch as there were many 'blanks' in the verification, which 'blanks' appear to have been filled up in the verification made below the petition. According to him, the provisions contained in Section 89(3) and Section 94(1) of J & K Representation of People Act, 1957 correspond to the Section 81(3) and Section 86(1) of the Representation of People Act, 151 and the Supreme Court in the said decision had categorically held that every copy of the petition, which is intended for service on the respondent should be attested by the petitioner under his own signature and non-
compliance with the said requirement should result in the dismissal of the petition as provided in Section 94 of the J & K Representation Act (Section 86(1) of Representation of People Act, 1951). Reliance
was also placed by Mr.Sibal on the decisions in case of Rajendra Singh Vs. Usha Rani (supra), in which the Supreme Court following the decision in case of Sharif-ud-din Vs. Abdul Gani Lone Page 56 of 85 C/EA/2/2017 CAV ORDER (supra) and in case of Satya Narayan Vs. Dhuja Ram (supra) had held that in absence of proof that the respondent received the correct copy, the petition was liable to be dismissed under Section 81(3) and Section 86 of the Act.
38. Though the submissions made by Mr.Sibal sound impressive, there is hardly any substance in the same. As stated earlier, the actual copy of petition served on the applicant (respondent No.1) has not been placed on record on oath, however, even if the photocopy sought to be produced along with the Election Application No.3 of 2018 is believed to have been served on the respondent No.1, then also the signature of the petitioner is found on each page of the said copy. The only defect appears to be that the words 'true copy' have not been written thereon. It may also be noted that the petitioner has already furnished the duly affirmed copy of the petition certified as the true copy under his own signature, along with the reply to the Election Application No.3 of 2018 filed by the applicant. In any case, such lacuna or defect Page 57 of 85 C/EA/2/2017 CAV ORDER or omission could not be said to be fatal to the petition. The Constitution Bench of the Supreme Court in case of Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors (supra) as quoted earlier has held inter alia that the word 'copy' in Sub-section (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility, misunderstand it. The test whether the copy is 'true one' is whether any variation from the original is calculated to mislead an ordinary person. The said decision of the Constitution Bench has also been followed by another Constitution Bench in case of Ch. Subbrao Vs. Member, Election Tribunal, Hyderabad and Ors.(supra), in which it has been held inter alia that if there is substantial compliance with the requirement of Section 81(3), the election petition can not be dismissed by the Tribunal under Section 90(3) of the said Act. It appears that the Supreme Court in case of Sharif-ud-din Vs. Abdul Gani Lone (supra) relied upon by Mr.Sibal had no occasion to consider the decision of the Constitution Bench in case of Page 58 of 85 C/EA/2/2017 CAV ORDER Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors (supra). The opinions expressed in case of Satya Narayan Vs. Dhuja Ram (supra) and in case of Rajendra Singh Vs. Usha Rani (supra) relied upon by Mr.Sibal have been held to be not laying down good law, in case of Chandrakant Uttam (supra) in view of the two decisions of the Constitution Bench in case of Murarka Radhey Shyam Ram Kumar (supra) and Ch. Subbarao Vs. Member (supra).
39. Further, the learned Sr. Advocate Mr.Sibal had sought to rely upon the decision of the three Judge Bench of the Supreme Court in case of Dr.Shipra Vs. Shanti Lal Khoiwal (supra) in which it was held inter alia that the absence of endorsement of the notary on the copy of the affidavit accompanying the election petition renders the copy as not conforming to Section 81(3) of the Act and the Election Petition was liable to be dismissed on the said omission. In this regard it may be noted that the another three Judge Bench doubting the decision in case of Dr.Shipra Vs. Shanti Lal Khoiwal (supra) had Page 59 of 85 C/EA/2/2017 CAV ORDER referred the matter to the larger Bench in case of T. M. Jacob Vs. C. Poulose and Ors. (supra). The said Constitution Bench also followed the earlier decisions of the two Constitution Benches in the cases of Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors (supra) and Ch. Subbrao Vs. Member, Election Tribunal, Hyderabad and Ors.(supra) to hold that the object of serving a 'true copy' of an election petition and the affidavit filed in support of the allegation of corrupt practice on the respondent in the election petition is to enable the respondent to understand the charge against him, so that he can effectively meet with the same in the written statement and prepare his defence. The requirement is thus of substance and not of form. It was further held that it is not every minor variation in the form but only a vital defect in substance, which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequence under Section 86(1) to follow. While an impermissible variation from the original may entail the dismissal of an election petition Page 60 of 85 C/EA/2/2017 CAV ORDER under Section 86(1) of the Act, an insignificant variation in the true copy can not be construed as a vital defect. So far as the facts of the present case are concerned, the decision of all the three Constitution Benches squarely apply. There is no variation alleged by the applicant between the contents of the original petition and the copy served upon him which could be said to be fatal to the petition. Mere absence of endorsement as true copy on the copy sought to be served on the application, though the signature of applicant was found on each page of the petition, including at the end of the verification made by the petitioner, such omission could not be said to be vital requiring dismissal of petition under Section 86(1) for non-compliance of Section 81(3) of the said Act.
40. It is also very significant to note that the applicant has nowhere alleged in the applicant that such omission or lacuna had misled the applicant or had caused any prejudice to the applicant in preparing his defence in the defence in the written statement. Mr.Sibal has Page 61 of 85 C/EA/2/2017 CAV ORDER placed reliance on the decisions of the Supreme Court in case of Jagat Kishore Prasad Narain Singh Vs. Rajendra Kumar Poddar, reported in (1970) 2 SCC 411 and in case of Mithilesh Kumar Pandey Vs. Baidyanath Yadav, reported in (1984) 2 SCC 1 in which the Supreme Court had dismissed the election petitions for non-compliance of Section 81(3) on number of discrepancies having been found between the contents of the original petition filed in the Court and the contents of the copy served on the respondents, however, Mr.Sibal has failed to point out such discrepancies or variations much less of vital nature in the instant case. Similarly the reliance placed by Mr.Sibal on the decisions in cases of M. Karunanidhi Vs. Dr. H. V. Hande, reported in (1983) 2 SCC 473 and of U. S. Sasidharan Vs. K. Karunakaran, reported in (1989) 4 SCC 482, is also not helpful to him. In the said cases, admittedly the documents like photographs, video cassette etc., which were found to be integral part of the election petition were not supplied to the respondent.
No such allegations have been made in the
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instant case. There is not a whisper about such variation in the contents of the petition and of the copy supplied to the respondents made in any of these applications filed by the applicant. What is alleged is non-attestation of the copy as the true copy by the petitioner. As discussed earlier, on substantial compliance of Section 81(3), the petition could not be dismissed at the threshold as held by the three Constitution Benches in case of Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors (supra) and Ch. Subbarao Vs. Member (supra) and in case of T. M. Jacob (supra).
41. It was next sought to be submitted by Mr.Sibal that the petitioner had not filed the affidavit in the Form No.25 as prescribed under Rule 94A, and therefore, the petition deserves to be dismissed. According to him, in the affidavit filed in the Form No.25, the petitioner has stated that the statements made in paragraph 3.3 to 3.12 of the petition with regard to commission of corrupt practice of 'bribery' were true to his knowledge and also true to his Page 63 of 85 C/EA/2/2017 CAV ORDER information, and similarly the statements made in paragraph 3.13 to 3.17 of the petition about the commission of corrupt practice of undue influence were also stated to be true to his knowledge and true to his information. Such affidavit being not in consonance with the said prescribed form and the petition having not been verified in the manner laid down in the CPC, the petition is liable to be dismissed for non- compliance of Section 83(1)(c) of the said Act. Per contra, Mr.Nanavati for the petitioner submitted that the provisions of Section 83(1) being not mandatory in nature, non-compliance thereof could not entail dismissal under Section 86 of the Act. He also submitted that defects pointed out by Mr.Sibal in the verification and affidavit attached to the petition are of technical or cosmetic nature, and are curable.
42. Having regard to the said submissions, it appears that the moot question posed before the Court is whether the election petition could be dismissed under Section 86(1) for non-compliance of Section 83(1)(c) and of the proviso thereto. Page 64 of 85
C/EA/2/2017 CAV ORDER In the opinion of the Court, question is no more res integra. The Constitution Bench in case of Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors(supra) specifically held that the defect, if any found in verification which is to be made in the manner laid down in CPC for the verification of the pleadings as required by Clause (c) of Sub-section (1) of Section 83, can not be said to be fatal to the maintainability of the petition. The said decision is followed in number of cases including in case of Sardar Harcharan Singh Brar Vs. Sukh Darshan Singh and Ors. (supra) in which it has been held inter alia that though the proviso enacted to sub-section (1) of Section 83 is couched in a mandatory form, the failure to comply with the requirement as to filing of an affidavit can not be a ground to dismiss the petition in limine under Section 86(1) of the Act.
43. In another case of T. Phungzathang Vs. Hangkhanlian, reported in (2001) 8 SCC 358, while dealing with the similar issue as to whether omission of verification or affirmation Page 65 of 85 C/EA/2/2017 CAV ORDER made by the prescribed authority as required in Form No.25 read with Rule 94A of the Rules in the copies supplied to the respondents would ipso facto entail dismissal of the election petition, the Supreme Court answered the issue in negative, holding inter alia that by such omission the copies supplied will not cease to be 'true copy' and there is no possibility of any prudent person being in any manner misled in defending himself or being prejudiced in the defence of his case. Such omissions are only curable irregularities.
44. The reliance placed by Mr.Sibal on Order XIX Rule 3 of CPC to submit that the election petition was not verified in the manner laid down in CPC for verification of pleading is also thoroughly misconceived. It may be noted that Order XIX Rule 3 pertains to the affidavit, where the Court orders that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, and under such circumstances, the affidavit is required to be filed confining to Page 66 of 85 C/EA/2/2017 CAV ORDER such facts as the deponent is able of his own knowledge to prove. So far as the verification contemplated in Section 83(1)(c) is concerned, the same finds place in Order VI Rule 15 of CPC, which pertains to verification of pleadings. As per the said provision every pleading has to be verified at the foot by the party specifying by reference to the number of paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon the information received and believed to be true. Such verification has to be signed by the person making it and has to state the date on which and place at which it was signed. The person verifying the pleading has to furnish an affidavit in support of his pleadings. In the instant case, the petitioner has duly complied with the said provisions contained in Order VI Rule 15. The petitioner has filed the affidavit at the end of the petition and has verified the petition in the manner prescribed for verification of pleadings in CPC. The petitioner has further filed the affidavit in Form 25 in support of the allegations of corrupt Page 67 of 85 C/EA/2/2017 CAV ORDER practices of the respondent No.1. The only objection raised by the learned Sr. Advocate Mr.Sibal is that the statements made in the affidavit Form No.25 with regard to the commission of bribery and undue influence in particular paragraphs of the petition could not be stated to be true to his knowledge as well as true to his information as stated therein. In the opinion of the Court, such defect or irregularity is nothing but technical or cosmetic.
45. Mr.Sibal had also tried to point out that there were 'blanks' in the verification in the copy served on the applicant, which appear to have been filled up in the original petition presented in the Court with the stamp and signature of the notary. According to him such filling up of 'blanks' was made after the petition was notarized, which is not permissible. According to him the serial numbers given by the notary were also not in proper chronology. In this regard, the learned Sr. Advocate Mr.N.D. Nanavati for the respondent Page 68 of 85 C/EA/2/2017 CAV ORDER has rightly placed reliance on the decision of the Supreme Court in case of G.M. Siddheshwar Vs. Prasanna Kumar (supra), in which it has been held that what is required of the election petitioner under Section 83(1)(c) is that the verification should be carried out in the manner prescribed in CPC. The Order VI Rule 15, which requires an affidavit also to be filed , does not mean that the verification of a plaint is incomplete if an affidavit is not filed. The affidavit in this context is stand-alone document. While the Act does require a verification of the pleadings, the plain language of Section 83(1)(c) of the Act does not require an affidavit in support of the pleadings in the election petition. Such affidavit would be required only when the allegations on corrupt practices have been made. The Court also referred the decision of the Supreme Court in case of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy (supra), wherein the issue regarding failure to file an affidavit in accordance with the prescribed format had come up for consideration, and it was held that the format Page 69 of 85 C/EA/2/2017 CAV ORDER of affidavit is not a matter of a substance. What is important and at the heart of requirement is whether the election petitioner has made averments, which are testified by him on oath, no matter in a form other than the one that is stipulated in the Rules. The absence of an affidavit or an affidavit in a form other than the one stipulated by the Rules does not by itself cause any prejudice to the successful candidate so long as the deficiency is cured by the election petitioner by filing a proper affidavit when directed to do so. The Supreme Court in case of G.M. Siddheshwar Vs. Prasanna Kumar (supra) while agreeing with the view taken in case of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy (supra) observed that defective affidavit can not be fatal to the maintainability of the election petition and the High Court should give proper opportunity to the petitioner to cure the defects before the parties go to the trial, so that the returned candidate can meet with the allegations and is not taken by surprise at the trial. In this regard the Supreme Court has also relied upon three Judge Bench decision in Page 70 of 85 C/EA/2/2017 CAV ORDER case of F. A. Sapa and Ors. Vs. Singora and Ors. (supra) and in case of Umesh Challiyill Vs. K. P. Rajendran (supra). In case of R. P. Moidutty Vs. P. T. Kunju Mohammad, reported in (2000) 1 SCC 481 relied upon by Mr.Sibal, a defect in verification of the election petition was pointed out by raising a plea in that regard in the written statement, however, the election petitioner did not cure the defect. Under the circumstances, it was held that until the defect in verification was rectified, the petition could not have been tried. In the instant case, there being substantial compliance of the provisions contained in Section 81(3), the petition could not be dismissed under Section 86 of the Act, in view of the decisions of the Constitution Benches as discussed herein above. The petition also could not be dismissed on the ground of the defects or omissions of technical or cosmetic nature found in the verification or affidavit required under Section 83(1)(c) and the proviso thereto.
46. This takes the Court to the last submission made by the learned Sr. Advocate Mr. Sibal that the petition lacked material facts and full particulars of the corrupt practices allegedly committed by the respondent No.1, and therefore, no cause of action could be said to have arisen Page 71 of 85 C/EA/2/2017 CAV ORDER for seeking declaration with regard to the election of the returned candidate being void under Section 100 of the said Act. According to Mr.Sibal the allegations contained in paragraphs 3.3 to 3.17 were not sufficient to constitute corrupt practices as contemplated under Section 123 of the said Act. Taking the Court to the said paragraphs, Mr.Sibal submitted that the petitioner has not stated the requisite particulars i.e. the names of the parties, who have allegedly committed corrupt practices, nor has he stated the date and place of commission of each such practices. According to him, though in paragraph 3.9 it is alleged that the respondent No.1 took 44 MLAs to a distant place in Karnataka practically confining them in captivity in a resort namely Eagleton Golden Resort at Bidadi on Mysore Road, the material facts and particulars relating to the allegation of captivity have not been set out. Similarly, it was alleged that the respondent No.1 spent Rs.18 lac for full entertainment of 44 MLAs, however, in this regard also material facts and particulars were not stated. The particulars Page 72 of 85 C/EA/2/2017 CAV ORDER with reference to allegations made with regard to commission of bribery by the respondent No.1 through Mr.Shaktisinh Gohil have also not been stated. Similarly, material facts in relation to the respondent No.1' consent and connivance in the issuance of the alleged whip for casting their vote in favour the respondent No.1 have also not been pleaded. According to Mr.Sibal, the allegation that Mr.Bharat Solanki and Mr.Shaktisinh Gohil with the consent and connivance of the respondent No.1 repeated the threat in the press conferences held between 26.7.2017 and 8.8.2017 is also bereft of material facts and particulars and has no basis. The allegations of undue influence is also untenable in absence of material facts and particulars. In this regard, Mr.Sibal has relied upon the decisions of the Supreme Court in case of R. P. Moidutty Vs. P. T. Kunju Mohammad (supra), in case of V. Narayanswamy Vs. C. P. Thunavukkarasu, reported in (2000) 2 SCC 294 and in case of Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, reported in (2009) 9 SCC 310.
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47. As against that, the learned Sr. Advocate Mr.Jain appearing for the petitioner relying upon the relevant paragraphs in the petition with regard to the allegations of bribery and undue influence submitted that the petitioner had disclosed all material facts and full particulars including the statement as to how the respondent No.1 with his consent and through his agent, had committed corrupt practices. He also drew the attention of the Court that the petitioner has also challenged the action of the Election Commission of India in illegally rejecting the two votes, which were valid and accepting two votes, which were invalid. Thus, according to him, trial is required to be held with regard to the said allegations and the petition could not be dismissed under Order VII Rule 11(a) of CPC, read with Section 83(1) of the said Act.
48. In the opinion of the Court, it can not be gainsaid that the material facts and full particulars as regards alleged corrupt practices, constituting the cause of action have Page 74 of 85 C/EA/2/2017 CAV ORDER to be pleaded clearly in the petition, failing which the petition could be dismissed under Order VII Rule 11 of CPC. Of course, the expression 'material facts' has not been defined under the Act, however, has been interpreted by the Supreme Court in various decisions.
49. As observed in case of Anil Vasudev Salaonkar Vs. Naresh Kushali Shigaonkar (supra), all facts necessary to formulate a complete cause of action should be termed as 'material facts'. All basic and material facts, which must be proved by the party to establish the existence of cause of action or defence are 'material facts'. 'Material facts' in other words would mean entire bundle of facts, which would constitute a complete cause of action.
50. In case of Virender Nath Gautam Vs. Satpal Singh and Ors., reported in (2007) 3 SCC 617, the Supreme Court while dealing with the issue as to whether the election petition would be liable to be dismissed if material facts are not stated in the petition as contemplated by Clause (a) of Sub-section (1) of Section 83 of the Act read Page 75 of 85 C/EA/2/2017 CAV ORDER with Clause (a) of Rule 11 of Order VII of the Code, the Supreme Court observed as under:-
"31. The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus, (Third edn.); p.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
32. Xxx
33. xxx
34. A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as Page 76 of 85 C/EA/2/2017 CAV ORDER to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise."
51. The Court in the said case further drawing a distinction between facta probanda and facta probantia observed as under:-
"50. There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue."
52. Considering the afore-stated legal position let us examine the facts of the present case as to whether the election petition contains the concise statement of material facts on which the petitioner relies and sets forth full particulars of the alleged corrupt practices as contemplated in Section 83(1) or not. Page 77 of 85
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53. As stated earlier, the petition has been filed by the petitioner, challenging the election of the applicant (respondent No.1) to the Rajyasabha from the constituency of members of Gujarat State Legislative Members declared on 9.8.2017 on the ground that the applicant had committed corrupt practices of bribery and undue influence within the meaning of Sub-section (1) and Sub-section (2) of Section 123 of the said Act. The said election has also been challenged on the ground that the Election Commission of India had illegally and improperly rejected two valid votes and accepted two invalid votes, which had materially affected the result of the election. So far as the allegations of corrupt practices are concerned, the allegations of bribery have been made in paragraphs 3.3 to 3.12, whereas the allegations of undue influence have been made in paragraphs 3.13 to 3.17. It has been alleged inter alia that though there was serious and heavy flood situation in the State of Gujarat, the respondent No.1 i.e. the present applicant, instead of serving the people of the State had taken 44 MLAs to a distant Page 78 of 85 C/EA/2/2017 CAV ORDER place in Karnataka i.e. Bangalore and practically confined them in captivity in a resort namely Eagleton Golden Resort at Bidadi on Mysore Road. It has been further alleged that the said MLAs were taken to that place from Ahemdabad Airport in Indigo Flight No.6E996 on 29.7.2017 at 12.30 a.m. In that resort, they were not allowed to meet even their family members. The respondent No.1 purposely, willingly and intently took them to Bangalore because there was a Congress Government in Karnataka and it was easier to keep them in captivity, also to make them enjoy the facility and enjoy full entertainment in that resort at the cost of the respondent No.1. It is further alleged that the respondent No.1 spent an amount of Rs.18 lac approximately on the entertainment of these MLAs during their stay in Bangalore. All these 44 MLAs were promised tickets as well as payment of full expenses of their election campaign. This offer was given by the respondent No.1 to all these MLAs collectively and personally while staying in the resort in Bangalore through Shri Shaktisinh Gohil, who was Page 79 of 85 C/EA/2/2017 CAV ORDER the leader of opposition and spokesperson of Congress in the State of Gujarat. The said 44 MLAs accepted this offer and in turn, voted for him. They were also paid huge amounts by the respondent No.1 as gratification for casting their first preference vote. It is further alleged that the respondent No.1 had also exercised undue influence. He had threatened all the Congress MLAs during their stay in the resort in Bangalore as well as during their stay in Ahmedabad on the last date i.e. 7.8.2017 that in case they did not vote for the respondent No.1, they would be denied Congress tickets in the coming election and they would suffer serious injuries in their coming political career. It has also been alleged that Shri Mohansinh Rathwa, the leader of Congress Legislative party in Gujarat Vidhan Sabha issued a three-line whip with the consent and connivance of the respondent No.1 to all the Congress MLAs on 25.7.2017 to cast their first preference vote in favour of the respondent No.1. In the said whip, threat was issued to all the legislators of Congress that if they did Page 80 of 85 C/EA/2/2017 CAV ORDER not cast their first preference vote in favour of the respondent No.1, they would not be able to contest election for six years and that they would be expelled from the Congress party. This whip, clandestinely and in a very surreptitious manner was shown to have been issued on 25.7.2017, but it was actually served on the members by the respondent No.1 after filing his nomination papers. It is further alleged that Shri Shaktisinh Gohil and Shri Bharatsinh Solanki with the consent and connivance of the respondent No.1 repeated this threat during the press conferences held between 26.7.2017 and 8.8.2017. Such action of the respondent No.1 amounted to undue influence on the free exercise of the electoral rights of the Congress MLAs by him and by his election agent with the consent of the respondent No.1 It is further alleged that these 44 MLAs were brought from Bangalore to Ahmedabad on 7.8.2017 in the morning and were taken to Nijanand Resort in Anand District, which is approximately one hour drive from Ahmedabad. The respondent No.1 accompanied these MLAs from Ahmedabad to Anand and remained Page 81 of 85 C/EA/2/2017 CAV ORDER there with them and came back to Ahmedabad in the morning of 8.8.2017 to cast their vote. It is alleged that thus, the action of the respondent No.1 tantamounted to committing corrupt practices of bribery as well as undue influence, which fall under Section 123(1) and Section 123(2) of the said Act.
54. So far as the challenge to the action of an order passed by the Election Commission of India is concerned, it has been alleged that the election, so far as the petitioner and the respondent No.1 were concerned, got materially affected by illegal acceptance of two votes, which were invalid and illegal rejection of two votes which were valid. The petitioner has stated material facts and full particulars with regard to the said allegations in the grounds "C" to "P" in the petition.
55. From the afore-stated statements with regard to the commission of corrupt practices of bribe and undue influence alleged against the applicant (respondent No.1) and the statements with regard to the alleged illegality committed by the Page 82 of 85 C/EA/2/2017 CAV ORDER Election Commission of India, it could not be said that the petitioner had failed to state material facts and particulars constituting cause of action and the grounds contemplated in Section 100 of the said Act for declaring the election of the applicant (respondent No.1) to be void. As observed by the Supreme Court in case of Virender Nath Gautam Vs. Satpal Singh and Ors.(supra) the material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings, but the facts by means of which facta probanda are proved and which are in the nature of facta probantia need not be set out in the pleadings. Facts probantia are not facts in issue, but they are only relevant facts required to be proved at the trial in order to establish the facts in issue.
56. In the cases of V. Narayanswamy Vs. C. P. Thunavukkarasu, (supra) and in case of Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar (supra), relied upon by Mr.Sibal, the Supreme Court had found that the material facts and Page 83 of 85 C/EA/2/2017 CAV ORDER particulars of corrupt practices were not pleaded clearly as contemplated in Section 83(1) constituting cause of action for challenging the election, and therefore, had dismissed the petition under Order VII Rule 11(a) of CPC read with Section 83(1) of the said Act. However, such is not the position in the instant case. As stated herein above, the petitioner has pleaded all the material facts and full particulars constituting corrupt practices allegedly committed by the applicant (respondent No.1) and also stated the material facts with regard to the alleged illegalities committed by the Election Commission of India. Considering all these allegations, the Court is of the opinion that the trial is required to be conducted and the petition could not be dismissed under Order VII Rule 11(a) of CPC read with Section 83(1) of the said Act, as prayed for by the applicant in Election Application No.6 of 2017.
57. In that view of the matter, all the three applications i.e. Election Application Nos.2 of Page 84 of 85 C/EA/2/2017 CAV ORDER 2017, 3 of 2017 and 6 of 2017 being bereft of merits are dismissed.
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(BELA M. TRIVEDI, J) FURTHER ORDER:
1. At this juncture, learned Advocate Mr.P.S.Champaneri makes request to stay the further proceedings of the Election Petition to enable the applicant (original respondent no.1) to approach the Higher Forum for challenging the orders passed by this Court in these three applications.
2. Learned Advocate Mr.Devang Vyas, however, objects against staying the further proceedings of the petition on the ground that now the petitioner will have to take out the summons for directions and thereafter the Court will have to frame the issues, which will take some time, and that the election petition has to be proceeded further at the earliest.
3. Having regard to the submissions made by learned Advocates for the parties, the Election Petition be listed on 04.05.2018 for further proceedings.
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(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 85 of 85