Gauhati High Court
Naba Kumar Doley vs Bharat Chandra Narah on 27 February, 2012
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL
PRADESH)
MISC. CASE NO. 2949/2011
MISC. CASE NO. 2952/2011
Election Petition No. 2 of 2011
Sri Naba Kumar Deloy,
Son of Paramananda Doley,
Resident of Ward No. 4,
Dhakuakhana Chariali,
Post office and Police Station -
Dhakuakhana,
District - Lakhimpur, Assam.
......Petitione
r
- VERSUS -
Sri Bharat Chandra Narah,
Son of Late Tileshwar Narah,
At present resident of Village-Boginodi,
Post Office and Police Station- Boginodi,
District-Lakhimpur, Assam.
......Respondent
Advocates for the petitioner : Mr. K Agarwal, Advocate.
Advocates for the respondent : Mr. SS Dey,
Mr. MN Nath,
Advocates.
MC 2959/2011, MC 2952/2011in
Election Pet. 2/2011 Page 1 of 49
- BEFORE -
THE HON'BLE MR. JUSTICE B.P. KATAKEY
Date of Judgment and Order: 27.02.2012
JUDGMENT & ORDER (CAV)
The respondent, in Election petition No. 2/2011, who is the returned candidate, has filed these applications under Order 7 Rule 11 and Order 6 Rule 16 of the Code of Civil Procedure (in short the 'CPC') read with Section 81, 83, 86 and 87 of the Representation of Peoples Act, 1951 (in short the '1951 Act'), for rejection of the election petition for want of cause of action for not disclosing the material facts, lack of proper verification as required under Order 6 Rule 15 of the Code of Civil Procedure, for not filing the affidavit as required under proviso to sub Section 1 of Section 83 of the 1951 Act and non furnishing of documents, which form integral part of the election petition as well as for striking out the pleadings in the election petition. Both these applications are taken up together for hearing and disposal as agreed to by the learned counsel for the parties. MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 2 of 49
2. The opposite party/opposite party (hereinafter referred to as the opposite party) filed the election petition No. 2/2011 under Section 80 and 81 of the 1951 Act calling in question the election of the present petitioner to the legislative assembly of Assam from No. 112 Dhakhuakhana (ST) assembly constituency, basically on the ground of corrupt practices within the meaning of Section 123 of the said Act, namely bribery and booth capturing. The petitioner, who is the respondent in the said election petition, on receipt of the summons entered appearance and filed the application (Misc. Case No. 2951/2011) raising the question of maintainability of the election petition on the ground of violation of Sub Section 1 of Section 81 of the Act contending that the election petition was not presented to the officer authorized by Rule 1 of Chapter VIII A of the Gauhati High Courts Rules within the period of limitation prescribed by sub Section 1 of Section 81 of the aforesaid Act. The said application was rejected vide order dated 28.11.2011. The petitioner/returned candidate (hereinafter referred to as the petitioner) also filed these applications claiming the relief as noticed above.
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 3 of 49
3. I have heard Mr. K Agarwal, learned counsel for the petitioner and Mr. SS Dey, learned counsel appearing for the opposite party.
4. Mr. Agarwal referring to the provisions in Order 6 Rule 15 of the CPC submits that though Sub Rule 4, which has been inserted by the CPC amendment Act, 46 of 1999 and came into effect from 1.7.2000, requires filing of a separate affidavit in support of the pleadings in the election petition, apart from the verification by the opposite party under Sub Rule 3, the election petition is neither properly verified nor a separate affidavit has been filed by the opposite party, entailing rejection of the election petition on the ground of improper verification of the pleadings, that is, for non compliance of the provision of Order 6 Rule 15 of the CPC. Referring to the verification-cum-affidavit filed by the opposite party it has been submitted by Mr. Agarwal, learned counsel for the petitioner that as the law requires verification of the pleadings and furnishing the affidavit separately, composite verification and affidavit would not amount to compliance of the requirements of Sub Rule 3 and 4 of Rule 15 of Order 6 CPC. Mr. Agarwal further submits that even though the defect in the verification can MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 4 of 49 be cured at a subsequent stage and the election petition may not entail dismissal for want of proper verification, such defect in respect of non filing of an affidavit as required by Sub Rule 4 cannot be cured, the same being the mandatory requirement.
5. Referring to proviso to Sub Section 1 of Section 83 of the 1951 Act which requires filing of an affidavit in the prescribed form in support of the allegation of corrupt practice and the particulars thereof, it has also been submitted by Mr. Agarwal that the affidavit disclosing the source of information has not been filed supporting the allegations of corrupt practice i.e. bribery and booth capturing, though such source of information is required to be disclosed. Mr. Agarwal, therefore, submits that the affidavit filed by the opposite party cannot be treated to be an affidavit in compliance with the said provision of law and hence the election petition is to be dismissed for want of mandatory affidavit in the prescribed form i.e. Form No. 25 under Rule 94 A of the Conduct of Election Rules, 1961 (in short the '1961 Rules'). It has also been submitted that the pleadings in paragraphs 15, 18 and 20 of the election petition alleging 'corrupt practices' at least need to be strike MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 5 of 49 out, for want of supporting affidavit as required by proviso to Sub Section 1 of Section 83 of the Act, consequently the election petition is to be dismissed there being no cause of action.
6. The further submission of Mr. Agarwal the learned counsel for the petitioner is that though Clause (a) of Sub Section 1 of Section 83 of the 1951 Act requires that the election petition must contain the concise statements of material facts on which the opposite party relies, in the instant case, though the opposite party in his election petition alleges bribery within the meaning of Section 123 (1) A of the 1951 Act, the material facts to constitute corrupt practice of bribery has not been pleaded i.e. ingredients to constitute the bribery within the meaning of the aforesaid provision of law has not been pleaded and as such the election petition deserves to be dismissed for non compliance of mandatory requirement. Referring to the definition of 'bribery' in Sub Section 1 of Section 123 of the 1951 Act it has been submitted that the factum of inducement being an essential ingredient to constitute 'bribery' within the meaning of Section 123 (1)(A) of the 1951 Act and the opposite party having not pleaded allegation of MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 6 of 49 inducement, even if the allegations made in paragraphs 11 and 12 of the election petition are taken in its face value and treated to be correct the same do not constitute 'bribery' within the meaning of the 1951 Act. It has also been submitted that the factum of inducement having not been pleaded no amount of evidence can be led by the opposite party to prove inducement. The learned counsel, therefore, submits that the election petition deserves to be dismissed or at least the pleadings in paragraphs 11 and 12 are to be strike out as in the absence of necessary ingredients to constitute 'bribery' the trial of the election petition would be an abuse of the process of the Court.
7. Mr. Agarwal, referring to the definition of 'booth capturing' under Section 135 A of the 1951 Act, which is one of the allegations in the election petition filed by the opposite party, has also submitted that pleadings neither in paragraph 13 nor in paragraph 14 of the election petition disclose the material facts to constitute 'booth capturing' within the meaning of the said provision of law as the material fact to constitute seizure have not been pleaded and as such the election petition deserves to be dismissed as MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 7 of 49 Sub Section 1 of Section 83 of the Act mandatorily requires making concise statement of material facts.
8. Referring to paragraphs 15 and 16 of the election petition Mr. Agarwal submits that the election petition also deserves to be dismissed for non furnishing of the documents as mentioned in the said paragraphs of the election petition, as those documents form integral part of the election petition. It is the contention of the learned counsel that the complaints both dated 4.4.2011, one filed with the officer-in-charge of the police station and the other before the District Election Officer, being the documents filed by the opposite party at the earliest point of time alleging booth capturing, those documents form integral part of the election petition and as such are required to be furnished to the petitioner, so that he is not handicapped to counter the allegation effectively in the written statement and he is not caught by surprise at a subsequent stage of the proceeding. The learned counsel, therefore, submits that as the petitioner is deprived from the contents of the said documents by non furnishing the copies thereof the election petition deserves to be dismissed.
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 8 of 49
9. It has also been submitted by the learned counsel that the pleadings in paragraph 14 of the election petition is unnecessary and scandalous as it does not contain any allegation of corrupt practice by the returned candidate and as such the pleadings in the said paragraph of the election petition needs to be strike out in view of the provisions contained in Order 6 Rule 16 of the CPC.
10. Mr. Agarwal the learned counsel in support of his contention has placed reliance on the following decisions of the Apex Court: -
(a) AIR 1986 SC 1253 - Azahar Hussain vs. Rajiv Gandhi.
(b) AIR 1987 SC 1577 - Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi.
(c) AIR 1991 SC 1557 - FA Sapa vs. Singora and ors.
(d) AIR 1996 SC 796 - Manohar Joshi vs. Nitin Bhaurao Patil.
(e) (2000) 2 SCC 294 - V Narayanaswami vs. CP Thiruna Vukkarasu.
(f) (2001) 7 SCC 98 - Mulayam Singh Yadav vs. Dharam Pal Yadav.
(g) (2001) 8 SCC 233- Hari Shanker Jain Vs. Sonia Gandhi.
(h) (2005) 13 SCC 511 - Harkirat Singh Vs. Amrinder Singh.
(i) (2006) 13 SCC 353 Sathi Vijay Kumar vs. Tota Singh & Ors.
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 9 of 49
11. Per contra Mr. Dey, learned counsel appearing for the opposite party, submits that the rules of procedure being hand maids of justice and to facilitate the cause of justice, not designed to trim the same at the threshold, non compliance of the requirements of Order 6 Rule 15 CPC does not entail rejection of the election petition, as defect in verification, which includes furnishing of the affidavit under Sub Rule 4 of Order 6 Rule 15, can be cured. The learned counsel submits that in fact there is no violation of the said provision of law as the opposite party in support of his pleadings filed the verification cum affidavit thereby complying with the requirements of both Sub Rule 3 and Sub Rule 4 of Order 6 Rule 15 of the CPC. Referring to the affidavit filed, as required by Sub Section 1 of Section 83 of the 1951 Act, supporting the pleadings relating to corrupt practice in the election petition, it has been submitted that such affidavit supporting the allegation of corrupt practice having been filed in the Form 25 prescribed, the submission of the learned counsel for the petitioner relating to non filing of the affidavit in the prescribed Form needs to be rejected. The learned counsel further submits that the petitioner could not demonstrate as to how the affidavit filed by the opposite party in support of the allegation of corrupt MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 10 of 49 practices, as required by proviso to Section 83(1) of the 1951 Act, does not conform to the requirement of the 1961 Rules as well as the Form No. 25.
12. Mr. Dey, learned counsel further submits that the opposite party is required to serve on the returned candidate an exact copy of the election petition filed by him and not each and every document, which are mentioned in the election petition, when those documents do not form part of the election petition. It has been submitted that even all the documents which are enclosed with the election petition need not be served on the petitioner unless the same form integral part of the election petition. Referring to the averments made in paragraphs 15 and 17 of the election petition wherein the opposite party has pleaded filing of the complaints both dated 4.4.2011, one before the officer-in- charge of the police station and the other before the District Election Officer, it has been submitted that those documents not being part of the pleadings constituting corrupt practices, namely booth capturing, do not form the integral part of the election petition and hence non filing and non supply of copies of those documents cannot be the ground for rejection of the election petition.
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 11 of 49
13. Referring to paragraphs 15 to 18 and 20 of the election petition it has also been submitted by Mr. Dey that the pleadings in those paragraphs are duly verified as required under Order 6 Rule 15 CPC and there being no allegation of corrupt practices in those paragraphs the opposite party is not required to file affidavit as required by proviso to Section 83 (1) of the 1951 Act. According to the learned counsel the opposite party in those paragraphs has summed up what have been pleaded in the foregoing paragraphs of the election petition relating to the corrupt practices by the returned candidate. The pleadings relating to the corrupt practices having been duly supported by an affidavit as required by proviso to Section 83(1) and the pleadings in those paragraphs having been verified in the manner as required vide Order 6 Rule 15 CPC, the election petition cannot be dismissed, submits the learned counsel. Relating to the submissions of the learned counsel for the petitioner for striking out the pleadings in paragraph 14 of the election petition, on the ground that those are unnecessary and scandalous, it has been submitted the pleadings are neither scandalous nor unnecessary keeping MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 12 of 49 in view the other pleadings in the election petition, so as to strike out the same.
14. Drawing the attention of the Court to the pleadings in paragraphs 11 and 12 as well as Paragraph 13 of the election petition relating to the allegation of corrupt practices by the petitioner it has also been submitted by Mr. Dey, learned counsel for the opposite party that all the materials facts which constitute 'bribery' and 'booth capturing' within the meaning of the 1951 Act, have been pleaded. It is submitted that reading the pleadings in paragraphs 11 and 12 of the election petition together and taking such pleadings in its face value it cannot be said that such pleadings if taken to be true do not constitute 'bribery' within the meaning of Section 123 (1) A of the 1951 Act, as the factum of inducement of a person to stand in the election or to withdraw as a candidate at the election are pleaded. Mr. Dey also submits that there being difference between material facts and material particulars and the opposite party being required to plead the material facts only, the election petition cannot he dismissed on the ground of not pleading the material particulars. According to the learned counsel in any case the factum of inducement is MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 13 of 49 to be deduced from the allegation relating to 'bribery' made in paragraphs 11 and 12, which being a matter of evidence, is not required to be pleaded.
15. Mr. Dey referring to paragraph 13 relating to the pleadings of material facts constituting 'booth capturing' has also submitted that all the material facts to constitute 'booth capturing' are pleaded. The opposite party in that paragraph has pleaded surrounding of the pooling station by the persons named therein giving in details as to how booths were captured. It is, therefore, submitted that the contention of the petitioner that the material facts as required by sub Section 1 of Section 83 of the 1951 Act are not pleaded cannot be accepted. Mr. Dey in support of his contention has placed reliance on the decisions of the Apex Court in: -
(i) AIR 1968 SC 107 Ram Chandra Arya vs. Man Singh & ano.
(ii) 1991 (3) SCC 375 F.A. SAPA & ors vs. Singora & ors.
(iii) 2004 (1) SCC 46 Regu Mahesh alias Regu Maheswar Rao vs. Rajendra Pratap Bhonj Dev and ano.
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 14 of 49
(iv) 2007 (3) SCC 617 Virendra Nath Gautam vs. Satpal Singh & ors.
16. Mr. Agarwal, learned counsel for the petitioner, in reply to the submission made by the learned counsel for the opposite party, reiterating the submissions made by him as noticed above, has further submitted that the defect in the affidavit required to be furnished under proviso to Sub Section 1 of Section 83 of the 1951 Act may be corrected by allowing the opposite party to file the affidavit, which, however, cannot be allowed after expiry of the period of limitation prescribed for filing the election petition as in that case it would amount to extending the period of limitation for filing the opposite party.
17. I have considered the submissions of the learned counsel for the parties and also perused the pleadings in the election petition. Before dealing with the submissions of the learned counsel for the parties, the relevant provision of the 1951 Act and the CPC would first be noticed.
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 15 of 49
18. Chapter II of Part VI of the 1951 Act provides for presentation of the election petition to the High Court. Sub Section 1 of Section 81 of the 1951 Act provides the period of limitation within which the election petition is to be filed by any candidate or any elector, i.e. 45 days from, but not earlier than the date of the election of the returned candidate or if there are more than one returned candidates at the election and the dates of their election are different, the later of those two dates.
19. Sub Section 1 of Section 83 provides that the election petition shall contain a concise statement of the material facts on which the petitioner relies and shall set forth the particulars of corrupt practices the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice, as well as the date and place of the commission of such corrupt practice. Such pleadings are required to be signed and verified in the manner laid down in the CPC for the verification of the pleadings. Proviso to Sub Section 1 of Section 83 of the 1951 Act requires filing of an affidavit, in the prescribed form, by the opposite party in support of the allegations of corrupt practice and the particulars thereof. MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 16 of 49 Sub Section 2 of Section 83 of the 1951 Act requires signing by the opposite party in the schedule or annexures to the petition and verifying in the same manner as the petition. Chapter III of Part VI of 1951 Act deals with the trial of election petition. Sub Section 1 of Section 86 mandates the High Court to dismiss an election petition which does not comply with the provision of Section 81(a), Section 82 or Section 117 of the 1951 Act. Section 87 of the 1951 Act provides that subject to the provision of the Act and the Rules made thereunder every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the CPC to the trial of the suit.
20. For better appreciation, Section 83 of the 1951 Act is reproduced below: -
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, MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 17 of 49 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 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.
21. Rule 94 A of the Conduct of Election Rules, 1961 (in short the 1961 Rules) provides that the affidavit referred to under proviso to Sub Section 1 of section 83 of 1951 shall be sworn before Magistrate 1st Class or a Notary or the Commissioner of oath and in Form 25.
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 18 of 49
22. Sub Section 1 of Section 100 of the 1951 Act stipulates the grounds on which the election of the petitioner can declared to be void. One of the grounds on which the election of the returned candidate can be declared as void by the High Court is commission of corrupt practice by a returned candidate or his agents or by any other persons with the consent of the returned candidate or his election agents.
23. Part VII of the 1951 Act deals with the corrupt practices and electoral offences. Section 123 stipulates which of the acts would constitute corrupt practice, which includes, apart from others, 'bribery' and 'booth capturing'. Section 123(1) defines 'bribery' as under: -
"(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 objects, directly or indirectly, of inducing-
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 19 of 49
(a) a person to stand or not to stands as, or [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 [withdrawing or not withdrawing] from being a candidate; or
(b) by any persons 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 [to withdraw or not to withdraw] his candidature.
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 20 of 49 Explanation - For the purpose 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 bonafide incurred at, or for the purpose of, any election and duly entered in the account of the election expenses referred to in Section 78."
24. Explanation 4 of Sub Section 8 of Section 123 of the 1951 Act provides that the purpose of Sub Section 8 'booth capturing' shall have the same meaning as in Section 135 A of the Act, which reads as follows: -
"135-A. Offence of booth capturing- (1) Whoever commits and offence of booth capturing shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine and where such offence is committed by a person in the service of the Government, he shall be punishable MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 21 of 49 with imprisonment for a term which shall not be less tan three years but which may extend to five years and with fine.
Explanation- For the purpose of [this sub section and section 20-B], "booth capturing"
includes, among other things, all or any of the following activities, namely:-
(a) seizure of a polling station or a place fixed for the poll by any person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other Act which affects the orderly conduct of elections;
(b) taking possession of a polling station or a place fixed for poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and [prevent others from free exercise of their right to vote];
(c) [coercing or intimidating or threatening directly or indirectly] any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote;
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 22 of 49
(d) seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes;
(e) doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of an candidate."
25. Order 6 Rule 15 CPC provides how the pleadings are to be verified. It requires that every pleading shall be verified at the foot by the parties or one of the parties or some other parties to the satisfaction of the Court to be acquainted with the facts of the case. The person verifying is also required to specify by reference to the numbered paragraphs of the pleadings, what he verifies on his own knowledge and what he verifies upon information received and believed to be true. The verification is also required to be signed by the person making it stating the date on which and the place at which it was signed. Sub Rule 4 has been inserted to Rule 15 of Order 6 of the CPC by the CPC MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 23 of 49 Amendment Act 46 of 1999, which came into effect from 1.7.2002, requiring the person verifying the pleadings also to furnish an affidavit in support of his pleadings.
26. Order 6 Rule 16 CPC provides that the Court may at any stage of the proceeding order strike out or amend any part in any pleadings, which (a) may be unnecessary, scandalous, frivolous or vexatious; or (b) may tend to prejudice, embarrass or delay the fair trial of the suit; or (c) is otherwise is an abuse of the process of the court. Order 7 Rule 11 CPC empowers the Court to reject the plaint where it does not disclose the cause of action; or, the relief claimed is under valued and the plaintiff on being required by the Court to correct the value within the time fixed by the Court fails to do so; or, where the relief claimed is properly valued but the plaint is insufficiently stamped and the plaintiff fails to supply the requisite stamp paper within the time fixed by the Court; or, where the suit appears from the statement in the plaint to be barred by any law; or, where it is not filed in duplicate; or, where the plaintiff fails to comply with the provisions of Rule 9. The time fixed by the Court for correction of the value or supply of the requisite stamp paper, however, can be extended by the Court, for the MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 24 of 49 reasons to be recorded, if the plaintiff could demonstrate existence of any cause of exceptional nature for not correcting the value or supply of the requisite stamp, as the case may be, within the time fixed by the Court and when the refusal to extend such time would cause grave injustice to the plaintiff.
27. One of the grounds on which the petitioner has sought rejection of the election petition at the threshold is non compliance of the provisions of Order 6 Rule 15 CPC, inasmuch as, according to the petitioner, the election petition was not verified in the manner provided under the said provision by not filing a separate affidavit as required by Sub Rule 4 of Rule 15 of Order 6. The learned counsel for the petitioner to substantiate his plea, apart from referring to the said provision of law, has also drawn the attention of the Court to the verification filed by the opposite party in support of the pleadings in the election petition.
28. The opposite party verified the pleadings in the election petition by a common verification-cum-affidavit, which reads as under: -
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 25 of 49 "VERIFICATION IN AFFIDAVIT I, BHARAT CHANDRA NARAH, son of Late Tileswar Narah, aged about 54 years, resident of village, P.O. & P.S. - Boginadi, District - Lakhimpur, Assam, do hereby solemnly verify and state that the statements made in this verification and in paragraphs 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21 and 22 of the accompanying Election Petition are true to my knowledge which I believe to be true and those made in paragraphs 3 & 9 are true to my information derived from the relevant records referred to therein which I believe to be true while those made in paragraph 13 including sub-paragraphs (a), (b), (c), (d), (e), (f) & (g) thereunder and paragraph 14 are true to my information derived from voters mentioned therein which I believe to be true and the rest are my humble submissions before this Hon'ble Court.
And in proof of the above and in verification thereof I solemnly affirm and swear this Affidavit by putting my hand hereunto on this the 24th day of June, 2011 at Guwahati."
29. As noticed above, by the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999) Sub Rule 4 has been inserted to Rule 15 of Order 6 CPC requiring furnishing the affidavit in support of the pleadings by the person verifying the same. Prior to insertion of the aforesaid provision there was no requirement to file affidavit with the pleadings. However, after the amendment the plaint is to be MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 26 of 49 accompanied by an affidavit as provided under Section 26(2) of the CPC and the persons verifying the pleadings is to furnish the affidavit in support of the pleadings. The purpose of introduction of the requirement of filing an affidavit under Section 26(2) is to vest additional responsibility on the deponent as to the truth of the fact stated in the pleadings, which affidavit, however, would not be the evidence for the purpose of the trial.
30. It is a settled position of law that defect in verification of the pleadings, required under Order 6 Rule 15 CPC, is a curable defect and on that count the plaint cannot be rejected. The Apex Court in FA SAPA (supra) has held that a defect in the verification, if any, can be cured and hence defect in the verification of the election petition is not fatal to the maintainability. Since the affidavit required to be filed either under Section 26(2) or in support of the pleadings under Order 6 Rule 15(4) would not be evidence for the purpose of the trial, the plaint or the election petition may not be dismissed for non filing of the affidavit the same being part of the verification as provided under Order 6 Rule 15 of the CPC. Such defect can also be removed at any time of the proceeding. That apart the grounds on which the MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 27 of 49 plaint can be rejected at the threshold are stipulated under Order 7 Rule 11 CPC. Defect in verification or non filing of the affidavit as required under Order 6 Rule 15 (4) is not a ground stipulated under Order 7 Rule 11 for rejection of the plaint or the election petition. That being the position the election petition cannot be dismissed for defects in verification which includes non filing of the affidavit as required under Order 6 Rule 15 (4) CPC.
31. In the instant case the opposite party has filed a common verification-cum-affidavit in support of the pleadings in the election petition. The whole object of introduction of the requirement of filing of the affidavit under Order 6 Rule 15(4) CPC, as noticed above, being to vest additional responsibility on the deponent as to the truth of the facts stated in the pleadings which, however, would not be evidence for the purpose of the trial, it cannot be said that the common verification and affidavit would not fulfill the requirement of Order 6 Rule 15 CPC, since apart from the verification of the pleadings as required under Order 6 Rule 15 (2) the opposite party has also verified the statements made by him in the election petition on oath by an affidavit. The contention of the learned counsel for the MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 28 of 49 petitioner that the election petition deserves to be dismissed for want of proper verification as required under Order 6 Rule 15, therefore, cannot be accepted and hence rejected.
32. The further contention of the learned counsel for the petitioner that the election petition deserves to be dismissed for non compliance of proviso to Sub Section 1 of Section 83 of the 1951 Act, inasmuch as, the affidavit as required under Rule 94 A of the 1961 Rules has not been filed, deserves to be rejected as bare perusal of the affidavit filed along with the election petition demonstrates that the opposite party in support of the allegation of corrupt practice i.e. 'bribery' and 'booth capturing' made in paragraphs 11, 12 and 13(a) to 13(g) has filed the affidavit in Form 25 as required under proviso to Section 83(1) of the 1951 Act read with the 94 A of the 1961 Rules.
33. The Apex Court in FA SAPA (supra) upon consideration of the relevant provision of the 1951 Act including the provision of Section 86 (5) of the 1951 Act, Rule 94A of the 1962 Rules, Form 25, Order 6 Rule 15 and Order 3 Rule 9 of the CPC has taken a view that even defects MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 29 of 49 in the affidavit in the prescribed Form 25 can be cured unless affidavit forms integral part of the election petition in which case the defects concerning the material facts is to be dealt with subject to limitation under Section 81(3) of the 1951 Act. The said view has also been reiterated by the Apex Court in HD Revanna vs. G Puttuswamy Gowda reported in (1999) 2 SCC 217, in Regu Mahesh vs. Rajendra Pratap Bhanj Dev reported in (2004) 1 SCC 46 as well as in Umesh Challiyill vs. KP Rajendran reported in (2008) 11 SCC 740. It has further been held that while a defect in verification or an affidavit is curable, if such defect continues in the verification or affidavit without any afford being made to cure the same deemed to be fatal to the election petition. In the instant case, as held above, there is no defect in the affidavit filed by the opposite party as required by proviso to Section 83(1) of the 1951 Act.
34. The next submission of the learned counsel for the petitioner is that as pleadings in paragraph 14 of the election petition is unnecessary and scandalous, the same having not disclosed any allegation of corrupt practice by the petitioner, the same requires to be strike out. The Apex Court in Dhartipakar Mohanlal Agarwal (supra) has MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 30 of 49 opined that since Section 87 of the 1951 Act, made applicable the provisions of the CPC to the trial of the election petition, the provisions of Order 6 Rule 16 relating to the striking out the pleadings and also the provisions of Order 7 Rule 11 CPC for rejection of the election petition at the preliminary stage, even though no written statement has been filed by the respondent, would be applicable to the election petition. The High Court, therefore can strike out the pleadings in the election petition and also reject the same at the preliminary stage, when after striking out the pleadings no triable issues remain.
35. In paragraph 14 of the election petition the opposite party has made the allegation against the presiding officer of the aforesaid polling station as well as the gaonbura and the anganwadi workers present in the respective polling station, mentioned in paragraphs 13(a) to 13(g) of the election petition, of being a mute spectator and thereby facilitating the commission of corrupt practice of booth capturing by the election agent of the returned candidate. The material facts and particulars relating to booth capturing are furnished in paragraphs 13 (a) to 13 (g). Pleadings in paragraph 14 are only in the nature of MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 31 of 49 summing up of the allegations made in the aforesaid paragraphs and hence it cannot be said to be unnecessary or scandalous so as to strike out from the pleadings of the election petition. In any case the election petition cannot be rejected under Order 7 Rule 11 CPC as even if the pleadings in paragraph 14 of the election petition are strike out, it would neither render the election petition issue less for trial nor would not disclose the cause of action for its trial.
36. As discussed above, further ground taken by the petitioner for dismissal of the election petition as incomplete is non filing and non furnishing of the documents mentioned in paragraphs 15 and 17 of the election petition i.e. the complaints both dated 4.4.2011 lodged before the Officer-in- charge of the Police Station and the District Election Officer. According to the learned counsel for the petitioner since the said documents were contemporaneous and filed by the petitioner at the earliest point of time, the same form integral part of the election petition, non filing and non furnishing of the same, hence, would deprive the petitioner to effectively deal with the allegation of corrupt practice levelled by the opposite party in the election petition. The learned counsel, therefore, submits that non filing and non MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 32 of 49 furnishing of the said documents renders the election petition incomplete and hence deserves to be dismissed. It is also the contention that he having not been served with the copies of those complaints there is non compliance of Sub Section 3 of Section 81 of the 1951 Act, which requires furnishing of the attested true copies of the election petition and other documents on the returned candidate, since those documents form integral part of the election petition.
37. In paragraphs 15 and 17 of the election petition the opposite party has pleaded that aforesaid complaints dated 4.4.2011 were filed on receipt of the information from his workers regarding the wide spread act of booth capturing, as mentioned in the foregoing paragraphs of the election petition, in certain polling stations. The allegations of corrupt practice namely booth capturing committed by the returned candidate or his agent are pleaded in paragraphs 13 (a) to 13 (g) of the election petition. In paragraphs 15 and 17 the opposite party has simply pleaded that he filed those complaints based on the information received relating to booth capturing.
MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 33 of 49
38. Section 81(3) of the 1951 Act provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copies shall be attested by the petitioner under own signature to be a true copy of the petition. Section 86 of the 1951 Act requires the High Court to dismiss the election petition which does not comply with the provisions of Section 81 and Section 82 or Section 117. So the election petition can be dismissed by the High Court by invoking the power conferred by Section 86 (1) of the 1951 Act in case of non compliance of Sub Section 3 of Section 81 of the 1951 Act which only provides for supply of the copy of the election petition by the opposite party to the returned candidate duly attested under his own signature to be a true copy of the election petition. Whether non filing and non service of the complaints both dated 4.4.2011 as mentioned in paragraphs 15 and 17 of the election petition would amount to violation of Section 81 (3) of the 1951 Act and consequently entail rejection of the election petition under Section 86, would depend on whether the said documents form integral part of the election petition or not. If those documents constitute integral part, it is to satisfy the requirement of Section 81 (3) of the 1951 Act but if the same MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 34 of 49 do not constitute integral part of the election petition, copies of those documents need not be filed along with the election petition and served on the returned candidate. Determination of such question depends on the facts of each case.
39. In Monohar Joshi (supra) the arguments put forth by the returned candidate, whose election was put to challenge, that since in the election petition reference relating to certain video cassettes were made, which would deem to be incorporated by reference in the election petition, non filing of the video cassette or the transcripts along with the election petition and non supply of the copy thereof to the returned candidate would result in non compliance of section 81(3) which attracts Section 86, has been rejected by the Apex Court by holding that acceptance of such arguments advanced by the returned candidate would amount to reading into Section 86 an additional ground for dismissal of the election petition under section 86 for non compliance of Section 83. It has further been held that since Section 83 is in the nature of a penal provision it is to be confined to its plain language. The Apex Court further held that the election petition cannot be dismissed as neither the MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 35 of 49 video cassettes nor the transcripts were made part of the election petition and the returned candidate was supplied with the exact copy of the election petition along with the documents filed therein.
40. In Mulayam Singh Yadav (supra) the issue raised for decision by the Apex Court was whether the schedule 14 to the election petition and the video cassettes referred to are integral part of the election petition and whether the failure to file the original in the court along with election petition attracts Section 81 and consequently Section 86 (1) of the 1951 Act. The Apex Court taking into consideration the relevant provisions of 1951 Act as well as the schedule 14 of the election petition filed opined that whether or not schedule 14 is an integral part of the election petition does not depend on whether the draftsman of the election petition has so averred. It has further been opined that it is to be decided taking into account all the relevant facts and circumstances. The Apex Court upon consideration of schedule 14 and also the pleadings in the election petition has held that the video cassettes mentioned and verified in schedule 14 is as much an integral part of the election petition and as verified in other schedules. It MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 36 of 49 has also been held that going by the pleadings of the election petition it is evident that the video cassettes mentioned and verified in the schedule was intended to be part of the election petition which is shown by the fact that 15 video cassettes which were copies of the video cassettes mentioned and verified in schedule 14 were filed in the High Court along with the election petition for service on the respondent thereto. Having held so the Apex Court dismissed the election petition under Section 86 of the Act for non compliance of section 81 (3), as though copies thereof were filed for service on the respondent, the video cassettes was not filed and hence the election petition was incomplete.
41. In the instant case the opposite party in paragraphs 15 and 17 of the election petition has made a mention about filing of the aforesaid complaints both dated 4.4.2011, relating to the information received by the opposite party from his workers from the polling stations, as mentioned in the foregoing paragraphs of the election petition i.e. 13(a) to 13 (g) relating to wide spread booth capturing. The opposite party has narrated the allegation relating to the booth capturing in paragraphs 13(a) to 13(g). MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 37 of 49 He has further pleaded in paragraphs 15 and 17 of the election petition about filing of the complaints to demonstrate that there was contemporaneous writing in support of such allegation which the opposite party is to prove in course of trial of the election petition. The allegation of booth capturing having been pleaded in the aforesaid paragraphs 13 (a) to 13(g), on the basis of which both the complaints dated 4.4.2011 were lodged, the petitioner is no way prejudiced for non filing of such complaints along with the election petition and also for non serving of the same on him, as it would not amount to denial of opportunity to the returned candidate to answer the allegations in the written statement to be filed, The aforesaid documents dated 4.4.2011, therefore, do not form integral part of the election petition and hence non filing as well as non service of the same would not attract the penal provision of Section 86(1) of the 1951 Act requiring dismissal of the election petition.
42. It has also been contended by the petitioner that the election petition filed by the opposite party deserves to be dismissed under Section 86 of the 1951 Act for non compliance of Section 83 (1) (a) of the said Act as the election petition does not contain the concise statement of MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 38 of 49 material facts on which the petitioner relies. It is also the contention that since the material facts to constitute the ingredients of 'bribery' and 'booth capturing' have not been pleaded in the election petition it does not disclose any cause of action which entails rejection of the election petition under Order 7 Rule 11 CPC.
43. To appreciate such contention I have gone through the pleadings of the opposite party in paragraphs 11 and 12 as well as paragraphs 13(a) to 13(g) where 'bribery' and 'booth capturing' are alleged.
44. Section 83(1) of the 1951 Act, as noticed above, requires pleadings of material facts on which the opposite party relies. In the present election petition there being allegation of 'bribery' and 'booth capturing', material facts to constitute corrupt practices within the meaning of the 1951 Act need to be pleaded. It, however, does not mean that the opposite party has to plead the evidence, which is required to be adduced during trial of the election petition. MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 39 of 49
45. An allegation involved in corrupt practice, naturally having its impact on the returned candidate and also from the point of view of the electoral to ensure the purity of the election process, must be viewed very seriously and as such, the compliance with the requirement of Section 83 of the 1951 Act must be ensure before the parties go to trial. It is by now well settled that the election law being statutory in character must be strictly complied with since an election petition is neither guided by ever changing common law principles of justice and notions of equity. But at the same time, the purity of the election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. If the returned candidate is proved to have secured his success at the election by corrupt means must suffer for his misdeeds. The provisions relating to the adjudication of the election dispute, as set out in Part-VI of the 1951 Act, which constitutes a self contend code as well as the provisions relating to the contain of the petition as provided in Section 83 of the 1951 Act must also, therefore, be strictly followed and hence, the material facts constituting the corrupt practice must be pleaded in an election petition as required MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 40 of 49 under Clause (a) of Section 83, apart from setting out the full particulars as required under Clause (b). (FA SAPA)
46. The Apex Court in Azhar Hussain (supra) has opined that the whole purpose of rejection of an election petition summarily under the provision of the CPC is to ensure that the litigation which is meaningless and bound to prove abortive should not be permitted to waste the time of the Court and the concerned litigants are relieved of the psychological burden of litigation. The sword of debacles need not be kept hanging over the head of the returned candidate unnecessarily without point or purpose. In exercise of the powers under the CPC, election petition can summarily be dismissed if it does not furnish the cause of action. It has further been held that all primary facts which must be proved by a party to establish the cause of action or his defence are the material facts and in the context of a charge of corrupt practice it would mean the basic facts which will include the entire ingredients of corrupt practice alleged by the petitioner and hence must be specified. Whether in an election petition a particular fact is material or not and as such required to be pleaded, is dependent on the nature of the charge leveled and the circumstances of MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 41 of 49 the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would attract Section 83 (1)(a) of the 1951 Act.
47. In FA SAPA (supra) the Apex Court in paragraph 18 noticing the deference between 'materials facts' and 'particulars' required to be furnished under Section 83(1)(a) and 83(1)(b) of the 1951 Act, has observed that the 'particulars' are obviously different from the 'materials facts' on which the petition is founded and are intended to afford to the returned candidate the effective and adequate opportunity to meet with such allegation. It has also been held that the underlying idea in requiring the opposite party to set out in a concise manner the 'material facts' as well as the 'full particulars', where commission of corrupt practice, is complained of, is to delineate the scope, ambit and limits of the enquiry at the trial of the election petition. It has further been held that 'material facts' means the entire bundle of facts, which would constitute a complete cause of action, which must be concisely stated in the election petition and while the failure to plead material facts is fatal to the opposite party, absence of material particulars can be MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 42 of 49 cured at a later stage by proper amendment, provided the amendment does not have the effect of widening the scope of the election petition by introducing particulars in regard to a corrupt practice not previously alleged or pleaded within the period of limitation in the election petition.
48. The Apex Court in Dhartipakar Madan Lal Agarwal (supra) in paragraph 14 has held that the allegations of corrupt practice being in the nature of criminal charges it is necessary that there should be no vagueness in the allegation so that the returned candidate may know the case he has to meet. It has further been opined that if the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings the trial of the election petition could not proceed for want of cause of action. The emphasis of law being to avoid a fishing and roving inquiry, it is necessary to scrutinize the pleadings relating to corrupt practice in a strict manner. In V Narayanaswamy (supra) the Apex Court having noticed the relevant provisions of 1951 Act and the 1962 Rules has held that while failure to plead material facts as required under section 83(1)(a) is fatal to the MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 43 of 49 election petition, absence of material particulars can be cured at a later stage by a proper amendment.
49. In Hari Shankar Jain (supra) the Apex Court reiterating its earlier view has held that it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as would offer basis for the allegations made in the petition and would constitute the cause of action as understood in the CPC. The Apex Court further held that omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad, as cause of action means every fact which would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court. Requirement to state the material facts is to make the opposite party understand the case he will have to meet. In Harkirat Singh (supra), Sathi Vijar Kumar (supra) as well as in Virendra Nath Gautam (supra) the Apex Court has reiterated its earlier view as noticed above. MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 44 of 49
50. From the aforesaid discussions it, therefore, emerges that the opposite party in the election petition must state such facts, as required under Section 83(1)(a) of the 1951 Act, which would afford the basis to the allegations made in the petition and would constitute the cause of action as understood in the CPC. The material facts would also include the positive statements of facts as also a positive averment of a negative fact, if necessary. The opposite party must plead preliminary facts which must be proved at the trial by a party to establish the existence of the cause of action. The failure to plead material facts is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time prescribed for filing the election petition is over. Whether the opposite party has pleaded the material facts in the election petition the test is to examine, looking at the plaint, whether such pleadings in its face value constitutes the corrupt practice or not. Unless all the necessary facts, which constitute 'material facts' are pleaded there is no question of allowing the opposite party to lead evidence on such facts as no amount of evidence can cure the defects in the pleadings. MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 45 of 49
51. In the case in hand, the opposite party in paragraphs 11 and 12 has alleged 'bribery' within the meaning of Section 123(1)(A)(a) of the 1951 Act. In paragraph 11 it is pleaded that one Ranjit Chitney who initially filed his nomination paper on 17.03.2011 for contesting as a candidate in the election from the constituency in question was offered huge amount of money by the returned candidate, who has also filed nomination paper from the same constituency, to withdraw from being a candidate and not to stand in the election, acting on which promise and offer said Ranjit Chietney ultimately withdrew his nomination paper thereby withdrawing himself as candidate at the election. In paragraph 12 it has been pleaded that the returned candidate made offer and promise to pay huge amount of money to Memud Pagag to stand as an independent candidate in the election from the said constituency to project a demy candidate to further his prospect in the election and accordingly said Memud Pagag acting on such promise filed nomination paper which nomination paper was found to be valid and thus he contested the election as an independent candidate. MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 46 of 49
52. The contention of the petitioner is that though to constitute 'bribery' within the meaning of Section 123 (1)(A) one of the essential element is 'inducement', directly or indirectly, since the opposite party has not pleaded 'inducement' the material fact has not been pleaded so as to constitute the 'bribery' within the meaning of the 1951 Act. The said contention of the petitioner cannot be accepted as all the material facts to constitute 'bribery' are pleaded by the opposite party in the election petition in those paragraphs. The factum of inducement is to be deduced from the material facts and the particulars pleaded by the opposite party in the petition, which is a matter of proof only. It is not that by merely stating that there was inducement it is to be taken that all the material facts are pleaded, so also as because the word 'inducement' has not been used in those paragraphs, it cannot be said that all the material facts to constitute bribery are not pleaded.
53. The opposite party in paragraphs 13(a) to 13(g) has set out the material facts constituting 'booth capturing' within the meaning of Section 135(a) of the Act. The necessary particulars in support of such material facts as required under Section 83(1)(b) have also been given in MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 47 of 49 those paragraphs. The opposite party has given the date, time, name of the election agent of the returned candidate, the poling station number, the number of persons accompanying the election agent of the returned candidate, their action of gheraoing the poling station premises, asking the voters to go away from the polling station as their votes would be cast, including the names of the persons alongwith the returned candidate who seized the poling station making the authority to surrender the voting machine to facilitate them to caste the votes in random in favour of the returned candidate. The opposite party has also mentioned the names of the persons who went to the polling station but could not caste their votes and informed the opposite party about the said incident. Those ingredients, if proved would constitute 'booth capturing' within the meaning of Section 123(8) read with Section 135 A of the 1951 Act, and hence it cannot be said that the material facts relating to booth capturing have not been pleaded by the opposite party as required under Section 83(1)(a) of the 1951 Act so as to dismiss the election petition under Section 86 of the said Act. The petitioner, in view of such pleadings in the election petition relating to 'bribery' and 'booth capturing', cannot MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 48 of 49 said to be deprived from effectively meeting the allegations levelled against him or his election agent.
54. In view of the aforesaid discussions, I am of the view that the petitioner could not make out any ground to dismiss the election petition under Section 86(1) of the 1951 Act as well as for rejection of the election petition for want of cause of action and also for striking out the pleadings.
55. Hence both the miscellaneous applications are dismissed with the cost of Rs. 2000/- (Rupees two thousand).
JUDGE mcd MC 2959/2011, MC 2952/2011in Election Pet. 2/2011 Page 49 of 49