Madhya Pradesh High Court
Abhay Kumar Mishra vs Rajendra Shukla on 20 May, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Eelection Petition No.24/2019
Abhay Kumar Mishra
Vs
Rajendra Shukla and others
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Shri P.D. Gupta, learned counsel for the petitioner.
Shri Sanjay Kumar Agrawal with Shri S.K. Sharma, learned counsel
for the respondent No.1.
Shri Vinay Kumar, learned counsel for the respondents No. 2 to 4.
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ORDER
(20.05.2020) Heard on I.A. No. 7170/2019, an application under order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') r/w Section 86 of the Representation of Peoples Act, 1951 (hereinafter referred to as "Act of 1951") filed by the respondent No. 1 for dismissal of this election petition.
2. Before considering the said application, I would like to mention brief facts of the case. The petitioner has filed this Election Petition under Sections 80, 80-A read with section 100(1) of the Representation of Peoples Act, 1951 (hereinafter referred to as "Act of 1951"), seeking declaration that the election of the Respondent No.1 from Constituency No. 74, Rewa in the Madhya Pradesh Legislative Assembly Election, 2018 (hereinafter referred to as "2018 Assembly Election") be declared as null and void. It is undisputed fact that the Petitioner contested election against the Respondent No.1 2 Eelection Petition No.24/2019 from Constituency No.74, Rewa in 2018 Assembly Election. It is also undisputed fact that results of 2018 Assembly Election were declared on 11.12.18 and the Respondent No.1 was declared as returned candidate from Constituency No. 74, Rewa. The petitioner has challenged election of the Respondent No.1 from aforesaid constituency on the ground that the latter secured votes by indulging in corrupt and illegal practices in violation of the Act of 1951 and Conduct of Election Rules, 1961 (hereinafter referred to as "Rules of 1961"), and has also violated Model Code of Conduct (hereinafter referred to as "MCC"). These violations are stated to have been committed by the Respondent No.1 mainly on account of (a) printing and distribution of unaccounted high quality pamphlets (b) distribution of sweet packets, sarees and gift packets having cash worth Rs. 21,000/- (c) suppression of expenses worth Rs. 59 lakh which were incurred for making high definition audio visual multimedia (d) suppression of expenses incurred in publication by Samdariya Builders of a news item in Dainik Bhaskar, Rewa Edition at the behest of the Respondent No.1 (e) violation of MCC by placing hoardings and banners on public property (f) non-disclosure of bank account details and source of income in the nomination form (g) mismatch of copy of Form 17-C kept with the returning officer after voting with the copy issued to the candidate, at the time of matching before counting (h) mismatch of seal on Form 17-C and Electronic Voting Machine (hereinafter referred to as the "EVM"), and difference in counting of voting against votes casted, and (i) non- consideration of complaints being made by the Petitioner to the 3 Eelection Petition No.24/2019 concerned officials, including those pertaining to discrepancies in EVMs.
3. In the said application, it has been contended that the election petition does not contain a precise statement of material facts. In particular, it has been contended that the said statement in support of allegations as regards unaccounted high quality pamphlets, printing and distribution has not been made. It has further been contended that the petition suffers from non-compliance of section 83(1)(b) of the Act of 1951, as material facts of corrupt practices including names of the parties said to have committed corrupt practice date and place of commission have not been mentioned. It has further been contended that petition has not been verified since source of information has not been disclosed therein. It has further been contended that there is non-compliance of section of sub-section (1) of section 83 of the Act of 1951 and rule 94-A of the Rules of 1961 as the petition is not accompanied with affidavit in prescribed form supporting allegations of corrupt practices and particulars. In this regard, it has been contended that since allegation as regards printed high quality pamphlets pertains to violation of MCC and is corrupt practice covered under sub-section(6) of section 123 of the Act of 1951, said allegation should have been supported with prescribed affidavit and by a general affidavit. Further, no affidavit has been filed as regards allegations pertaining to bribery/distribution of gifts and grants, publicity by advertising of newspaper etc. It has also been contended that allegations made in the petition are vague and lacks material particulars. Further, copy of the petition, which has 4 Eelection Petition No.24/2019 been served to the Respondent, has not been attested by the petitioner and as such, there is non-compliance of section 81(3) of the Act of 1951. Further, annexures filed with the petition does not bear signature of the Petitioner. The Respondent has also made reference to section 86 of the Act of 1951, wherein it is stipulated that an election petition will be dismissed for non-compliance of section 81 or section 82 or section 117. It has been contended by the Respondent that since exact security amount has not been stated by the Petitioner, there is non-compliance of section 117 of the Act of 1951. It has also been contended that the Petitioner has not pointed out any law which required the Petitioner to furnish details of bank a/c and source of income in affidavit filed under Rule 4-A of the Rules of 1961. In support of his submissions, the Respondent has relied on decisions given in Azhar Hussain vs. Rajiv Gandhi 1986 (Supp) SCC 315, Virender Nath Gautam vs. Satpal Singh & Others (2007) 3 SCC 617, Sushil Kumar Khatri vs. Sartaj Singh 2009(4) MPLJ 292, Hari Shanker Jain vs. Sonia Gandhi (2001) 8 SCC 233, V. Narayanswamy vs. C.P. Thirunavukkarasu (2000) 2 SCC 294, R.P. Moidutty vs. P.T. Kunju Mohammad & Another (2001) 1 SCC 481, Rajvinder Singh vs. Janmeja Singh & Others (2000) 8 SCC 191, Kankar Munjare vs. Gaurishankar 2008(1) MPLJ 418, Ram Sukh vs. Dinesh Aggarwal (2009) 10 SCC 541, Virender Nath Gautam vs. Satpal Singh & Ors (2007) 3 SCC 617.
4. Per contra, it has been submitted by the Petitioner that the petition does not suffer non-fulfilment of any mandatory requirements of law and has submitted that even if there is any 5 Eelection Petition No.24/2019 irregularity in procedure, leave may be granted to cure the same under doctrine of curability. It has further been contended by the Petitioner that he has narrated material facts which were under his command, and copy of numerous complaints made to the responsible officers are part of the Petition. The Petitioner has denied that there is non-compliance of section 83(1)(b) of the Act of 1951 and has stated that the petition does not lack in material particulars and the same would be substantiated through cogent evidence at trial. It has further been contended by the Petitioner that affidavit filed by him meets the requirement of law and in any case, the same is curable defect. The Petitioner also contends that each page, including annexures, has been signed by him. It has further been contended that there is violation of section 117 of the Act of 1951, as the required amount has been deposited. So far as question of furnishing details of bank a/c and source of income is concerned, it has been contended by the Petitioner that form no. 26, nomination form and columns of books of accounts prescribed under law mandates the same. In support of his submissions, the Petitioner has placed reliance on decisions in Umesh Challiyil vs. K.P. Rajendran AIR 2008 SC 1577, Ponnala Lakshmaiah vs. Kommuri Pratap Reddy & Ors. AIR 2012 SC 2638, M. Karunanidhi vs. H.V. Handa & Ors. AIR 1983 SC 558, Virender Nath Gautam (supra), Sardar Harcharan Singh Brar vs. Sukh Darshan Singh & Ors. AIR 2005 SC 22, Kuldeep Singh Pathania vs. Bikram Singh Jaryal AIR 2017 SC 593, Dr. Bhagirath Prasad vs. Election Commission of India & Ors. AIR 6 Eelection Petition No.24/2019 2011 MP 93, and Rameshwar Dayal Arale vs. Munna Singh Bhadoria & Ors. AIR 1992 MP 161.
5. Having considered arguments advanced from both the sides, it would be pertinent to examine them sequentially. First contention advanced on behalf of the Respondent is that the election petition does not contain a precise statement of material facts. In my opinion, the said contention does not have substance as when the petition has to be read as a whole, material particulars have been stated by the petitioner. For instance, allegations in respect of unaccounted high quality pamphlets, and their printing and distribution have been made in the petition. It is principle of law that a petition cannot be read in isolation and has to be read as a whole. Respondent has correctly placed reliance on decisions in Ponnalal (supra) wherein it was opined that 'while examining whether a plaint or an election petition discloses a cause of action, the court has a full and comprehensive view of the pleading'. Similarly in Virender Nath Gautam (supra), it has been opined by the Hon'ble Supreme Court that examining correctness of allegations and evidence in support of averments pertaining to the merits of the case would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable. In view of said position of law, aforesaid contention raised on behalf of the Respondent does not have any substance.
6. Next contention which has been raised on behalf of the petitioner is that the petition suffers from non-compliance of section 83(1)(b) of the Act of 1951, as material facts of corrupt practices 7 Eelection Petition No.24/2019 including names of the parties said to have committed corrupt practice date and place of commission have not been mentioned. Section 83 of the Act of 1951 reads as follows:
"83. Contents of petition.--(1) An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."
7. A perusal of the clause (b) of sub-section (1) of section 83 would indicate that election petition 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. Therefore, what the petitioner is required to do is to include full statement 'as possible' in respect of name of the parties allegedly committing corrupt practice and date and place of commission its commission. In other words, depending on the knowledge of the petitioner, he should state such statement as is possible for him. So far as the present petition is concerned, this court does not find any justification in holding at this stage that the petitioner has not set forth full statement as possible, in accordance 8 Eelection Petition No.24/2019 with section 83(1)(b) of the Act of 1951. As observed earlier, the petition cannot be read in pieces and if read in its entirety, including its annexures, it cannot be said at this stage that material particulars have not been stated. Therefore, the said contention of the Respondent is liable to be rejected.
8. Next contention on behalf of the Respondent is that there is non-compliance of section of sub-section (1) of section 83 of the Act of 1951 and Rule 94-A of the Rules of 1961 as the petition is not accompanied with affidavit in prescribed form supporting allegations of corrupt practices and particulars. In this regard, it is pertinent to refer to rule 94-A which is enumerated as follows:
"94-A. Form of affidavit to be filed with election petition.-- The affidavit referred to in the proviso to sub-section (1) of Section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25."
9. A co-joint reading of sub-section (1) of section 83 and Rule 94-A would indicate that the election petition shall contain a concise statement of the material facts on which the petitioner relies and where allegation is in respect of any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form. Further, such affidavit shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25. It means, above-mentioned affidavit is only required when allegation is in respect of corrupt practice and not in any other case. In the case of C.P. John v. Babu M. Palissery, (2014) 10 SCC 547, the Hon'ble Supreme Court has held as follows:
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Eelection Petition No.24/2019 "19. To put it differently, when the election petition is taken up for consideration, the Court which deals with such an election petition, should be in a position to know in exactitude as to what is the corrupt practice alleged as against the parties without giving any room for doubt as to the nature of such allegation, the parties involved, the date, time and the place, etc. so that the party against whom such allegation is made is in a position to explain or defend any such allegation without giving scope for any speculation. In that context, both Sections 83(1)(a) and (1)(b) and the proviso play a very key role since the election petitioner cannot simply raise an allegation of corrupt practice and get away with it, inasmuch as the affidavit to be filed in respect of corrupt practice should specifically support the facts pleaded, as well as, the material particulars furnished. Rule 94-A of the Rules in turn stipulates that the affidavit should be in the prescribed Form 25 and should be sworn before the Magistrate of the First Class or a notary or the Commissioner of Oaths and makes it mandatory for the election petitioner to comply with the said requirement statutorily. The format of the affidavit as prescribed in Form 25 elaborates as to the requirement of specifically mentioning the paragraphs where the statement of facts are contained and also the other paragraphs where material particulars relating to such corrupt practices are alleged. It also mentions as to which of those statements of facts and material particulars are based on the personal knowledge of the election petitioner and such of those statements and particulars that are made based on the information gained by the election petitioner"
10. Evidently, a particular form 25 has been provided in the Rules of 1961 and affidavit in respect of corrupt practice should be in accordance with such form. In the present petition, it is evident that an affidavit has been filed by the petitioner under Rule 94-A and in para 1 and 2 of the said affidavit, it has been stated by the petitioner that statements made in paragraphs 1 to end of the accompanying election petition about the commission of corrupt practice are true to his personal knowledge. However, the election petition also comprises of allegations other than corrupt practice and since proviso to section 83 mandates affidavit only in respect of corrupt practice, 10 Eelection Petition No.24/2019 affidavit filed in the present petition should have been specific in this regard.
11. However, above defect is not of the nature which cannot be cured and in the interest of justice, it would be proper to given reasonable time to the petitioner to cure such defect. In K.P. Rajendran (supra), it has been observed by the Hon'ble Supreme Court that defects cannot be taken as a ground for dismissing the election petition and such defects are curable. It was further opined by the Hon'ble Supreme Court in K.P. Rajendra (supra) that:
"20. However, in fairness whenever such defects are pointed out 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 of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 16 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 CPC but in the present case we regret to record that the defects which have been pointed out in this election petition were purely cosmetic and do 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."
12. Similarly in Sardar Harcharan Singh (supra), it has been held by the Hon'ble Supreme Court 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 sub-section (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 94-A. But at the same time, 11 Eelection Petition No.24/2019 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 v. Shamanur Shivashankarappa [(2001) 4 SCC 428] and Vijay Laxmi Sadho (Dr.) v. Jagdish [(2001) 2 SCC 247] , both three-Judge 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 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. Non-compliance 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."
13. In view of the above observation of the Hon'ble Supreme Court, I am of the considered opinion that the present election petition should not be dismissed at threshold due to defect in affidavit in accordance with proviso to section 83 of the Act of 1951 and Rule 94-A of the Rules of 1961. So far as the contention that the copy supplied to the Respondent No.1 has not been attested by the Petitioner is concerned, the same cannot be accepted as the copy of petition, which has been filed by the Respondent No.1, itself indicates that documents were attested by the Petitioner. Therefore, the said contention is bound to be rejected.
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Eelection Petition No.24/2019
14. It has also been contended by the Petitioner that there is non-compliance of section 117 of the Act of 1951 in respect of failure to deposit security amount. There is nothing on record which shows that such an amount has not been deposited by the Petitioner and therefore, the said contention is rejected. So far as question as regards furnishing details of bank a/c and source of income in affidavit filed under Rule 4-A of the Rules of 1961, the same cannot be looked at this stage of the matter.
15. In view of the above discussion, since defect pertaining to affidavit in accordance with proviso to section 83 of the Act of 1951 and Rule 94-A of the Rules of 1961 has been pointed out at the threshold of the petition, it would be just and proper to give a period of 2 weeks to the Petitioner to file a fresh affidavit in support of allegations corrupt practice and the same should be in accordance with proviso to section 83, Rule 94-A and Form 25.
16. I.A. No. 7170/2019 is disposed off accordingly.
17. List after two weeks.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2020.05.20 16:33:16 +05'30'