Bombay High Court
Anandrao Gaghoji Patil vs Balasaheb @ Shamrao Pabdurang Patil & ... on 29 March, 2000
Equivalent citations: 2000(3)BOMCR766
Author: F.I. Rebello
Bench: F.I. Rebello
ORDER F.I. Rebello, J.
1. Petitioner, an unsuccessful candidate at the elections held for filling in seats to the Maharashtra Legislative Assembly, has challenged the election of respondent No. 1. The petitioner contested as the official candidate of the Indian National Congress. Respondent No. 1 had contested as a candidate of the National Congress Party. The other respondents are the other unsuccessful candidates, who had contested the elections. At the elections held, the respondent No. 1 secured 59,427 votes and the petitioner secured 42,322 votes. The respondent No. 1 was declared as elected from 266-Karad North City and Rural Areas Legislative Constituency.
2. The present petition by the petitioner is to challenge the said election of respondent No. 1. The challenge is on the ground that the election of respondent No. 1 is liable to be set aside on account of alleged corrupt practices, more specifically booth capturing. It is the case of the petitioner as pleaded in the petition that the corrupt practices committed by the respondent No. 1 are fully covered by the provisions of section 123(8) read with section 135-A of the Representation of the People Act, 1951. He has, therefore prayed for setting aside the election of the respondent No. 1.
3. Respondent No. 1 has entered appearance and filed his written statement. He has contested the contentions as raised by the petitioner. It was more specifically contended that the petition is liable to be dismissed in limine for the following reasons:-
(i) The copy furnished to the respondent No. 1 is not a true copy of the petition. It is further set out that there are several differences as set out in para 2(a) of the written statement in the original petition as filed in this Court and the copy served on the respondent No. 1.
(ii) The affidavit has not been filled in terms of Form 25 read with Rule 94-A and section 83 of the Act.
(iii) The petition is bereft of material facts. The facts as pleaded do not disclose a cause of action and in these circumstances the petition should be rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure.
The respondent No. 1 has also filed written statement.
4. Based on the pleadings the issues had been framed and settled on 1st March, 2000. Amongst them Issue Nos. 1, 2 and 3 were to be heard and decided as preliminary issues. At this stage it may be mentioned that in view of Issue No. 3, Issue No. 4 ordinarily ought not to have been framed and could have been framed only on the decision given on Issue No. 3. To that extent order dated 1st March, 2000 is recalled. Framing of the said issue is recalled and would be framed after disposal of Issue Nos. 1, 2 and 3, if needed.
5. The three issues which are to be decided at the threshold, on the preliminary objections raised by the respondents are as under :
1. Whether respondent No. 1 proves that the election petition is liable to be summarily dismissed under section 86 of the Representation of the People Act, 1951, for breach of section 81(3) of the said Act?
2. Whether the election petition is liable to be summarily dismissed for non-filing of an affidavit in terms of Form No. 25 read with Rule 94-A of the Election Rules?
3. Whether the election petition is liable to be summarily dismissed under Order VII, Rule 11 of the Code of Civil Procedure, 1908 read with section 83 of the Representation of People Act, 1951 for want of cause of action relating to any ground on which the election of respondent No. 1 can be set aside under the provisions of the Act.
6. With that, we may now consider the material pleadings which will be relevant for the purpose of disposing of the said 3 issues.
In so far as Issue No. 1, the challenges are as incorporated in the written statement and more specifically para 2(a) of the written statement. The objections may be briefly reproduced as under :-
(i) That though the original election petition is signed separately by the petitioner as well as his advocate, the copy served on the respondent No. I does not indicate that it has been so signed and what appears only is the words advocates for the petitioner. There is also no indication that it was signed by the advocate. There is, therefore, non-compliance of section 81(3) of the Act.
(ii) It is secondly contended that all pages of election petition have been signed by the petitioner. However, in the copy served on respondent No. 1 signatures are missing.
(iii) In the verification clause at page 24 of the election petition the words "of Satara presently in Bombay" does not find a place in the copy served on respondent No. 1.
(iv) That in the original petition corrections are being initialled the same is not done on the copy.
(v) On various pages of the petition apart from the signature the dates have been put. These are missing from the copy.
(vi) The endorsement of page 31 of the original petition is wrongly made on page 32 of the copy.
(vii) In the original election petition respondent Nos. 5 and 6 are specified as respondent whose nominations were validly accepted. In the copy they are blank.
7. In so far as averments regarding the verification of affidavit are concerned, the same may be reproduced herein below. The verification clause reads as under :-
"I, Anandrao Raghoji Patil, of Satara, presently in Bombay, the petitioner hereinabove, Indian inhabitant, do hereby state on solemn declare that what is stated from paragraph No. I to IV is true to my personal information and what is stated from paragraph No. V to XVIII is stated from records, files and legal advice sought in the matter which are believed to be true and the other paragraphs are legal submissions."
8. In the affidavit as required by Form 25 the verification is as under :-
"At the outset I repeat, reiterate, adopt, maintain and confirm the statements made by me in the accompanying election petition and fully adopt the averments setting out the corrupt practices committed by the respondent No. 1 herein as if the same are specifically set out herein. I say that the statements made in paragraphs are true to my personal knowledge and the statements made in the remaining paragraphs of the petition about the corrupt practices committed by the first respondent, through his agent or other persons with his consent viz,"
9. The averments as to material facts relevant for the discussion and as pleaded by the petitioner are as under :-
"IV. (i) .....
(ii) The petitioner states that the voting had taken place on 11th September, 1999. However, the counting of votes was to be started on 06-10-1999, having a gap of complete one month. The petitioner states that during this period all the ballot boxes were supposed to be in the custody of the authorities assigned the work of election. The petitioner submits that the respondent No. 1 being the influential person, he misused his authority and interfered with the ballot boxes by replacing the ballot papers with the fake ballot papers. The petitioner states that the facts mentioned hereinafter shows the influential power of the respondent No. 1.
(iii) The father of respondent No. 1 is the President of the Karad Municipal Council since 40 years and was the Member of the Legislative Assembly for 10 years. Thus, the father of respondent No. 1 is having a strong hold over the employees of the Karad Municipal Council. The petitioner submits that it is pertinent to note here that the election duty was assigned to the employees of the Municipal Council from where the respondent No. 1 was contesting the election. The petitioner further submits that at the time of actual voting, it was the duty of the Election Officer to see that every ballot paper is having a stamp of the legislative constituency on the back side and whenever there is a request made by the polling agent of any candidate contesting the election, it is the duty of the Election Officer to show the ballot paper to the said polling agent to verify the genuineness of the ballot paper. The petitioner submits that, however, when the polling agent of the petitioner viz. Manohar Bhaskarrao Shinde requested the Election Officer orally to show the ballot papers to verify the genuineness of the ballot paper used by the father, however, Election Officer declined to show the same. The petitioner states that this goes to show how respondent No. 1 is having the influence over the authorities. The petitioner submits that it is pertinent to note here that there were so many discrepancies found in the ballot papers at the time of counting the votes which were complained of by one of the candidates contesting the election viz. Shri Ashok Yeshwant Patil. The copies of the said complaint dated 6th September 1999 are annexed hereto and marked as Exhibits C-1 and C-2 respectively.
(iv) The petitioner states that one of the contesting candidates viz. Ravindra Keshavrao Pawar had disclosed discrepancy and irregularity in conducting the election, as well as counting of votes. The said irregularities and discrepancies are reflected in the Press Conference held by the said candidate. The copies of the publication of the said conference held by the said candidate Ravindra Pawar are annexed hereto and marked as Exhibits D-1, D-2 and D-3. The petitioner states that the publication of D-1 is from the newspaper viz. 'Tarun Bharat' dated 1-10-1999. The publication of D-2 is from the Dainik 'Pudhari' dated 11-10-1999 and the publication of D-3 is from Dainik 'Samana' dated 11-10-1999.
(v) The petitioner states that there were many discrepancies and irregularities found in respect of the ballot papers such as ballot papers supposed to be the postal ballot papers were having the signatures of voters in the same ink, which is impossible unless the ballot papers are fake. The petitioner states that similarly the ink on the seal embossed by the voter in favour of respondent No. 1 and the ink on the other ballot papers showing the embossment of the seal in favour of other candidates are clearly of different colour. The petitioner states that the ballot papers having invalid votes were being collected and replaced by putting the voting marks as valid thereby showing that these were the valid votes in favour of respondent No. 1.
(vi) The petitioner states that the petitioner is a Member of the Karad Taluka Panchayat and the said Panchayat is under the control of the Indian National Congress i.e. Congress-I having 20 members out of 24. Similarly, the Karad North Constituency of the Satara Zilla Parishad is under the control of the members of the said Indian National Congress party having all six members from the said constituency elected to Zilla Parishad. However, if the voting trend is seen, the votes from the constituency under the control of the Indian National Congress party is not in favour of the said party candidates. This creates the doubt of the genuineness of the ballot papers. Not only that, if the size of some of the ballot papers is seen, it is not tallying with the size of the genuine ballot papers. The petitioner further states that the colour of some of the ballot papers is also different from the genuine ballot papers. The petitioner, therefore, submits that it is pertinent to note that all these fake ballot papers shows the voting in favour of respondent No. 1.
(viii) The petitioner, therefore, submits that the circumstances mentioned hereinabove goes to show that the respondent No. 1 has violated the provisions of section 123(8) read with section 135-A of the said Act, meaning thereby that respondent No. 1 has committed the corrupt practices and, therefore, the election of respondent No. 1 is liable to be set aside."
10. The first preliminary objection may now be considered and disposed of. Under section 86 of the act the High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Under section 81(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. Learned Counsel for the respondent No. 1 has filed in the Court, a copy of the election petition which served on him. A perusal of the said election petition would show that on every page of the petition the petitioner has signed the petition as a true copy. Considering that the question that has to be considered and decided is whether the objection as raised by the respondent No. 1 that the petition is not a true copy for the reasons as set out in paragraph 6 can be sustained.
A Constitution Bench of the Apex Court was seized of the issue as to when an election petition can be dismissed for non-compliance of the provisions of section 81(3) of the said Act, in the case of T.M. Jacob v. C. Poulose and others, . After considering the case law and examining the law as laid down in the case of Dr. Shipra (Smt.) and others v. Shantilal Khoiwal and others, and various other judgments the Apex Court was pleased to hold that a petition should be dismissed only in the event it suffers from defects in respect of those section referred to in section 86. In other matters the defects would be curable. The ratio of T.M. Jacob (supra) can be found in the judgment of the Apex Court in Mr. V. Narayanaswamy v. Mr. C.P. Thirunavukkarasu, . Considering various judgments the Apex Court observed as under :-
"Sections 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read if the Court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition."
In paragraph 17 of the judgment the Apex Court after referring to the judgment in T.M. Jacob (supra) and Dr. Shipra v. Shanti Lal Khoiwal (supra) has reproduced the following paragraph, which may also be reproduced herein :-
"(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) of the Act i.e. non-compliance with the provisions of section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Sham Ram Kumar v. Roop Singh Rathore, and Ch. Subbarao v. Member, Election Tribunal, Hyderabad, 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."
With the above, can it be said that the true copy of the petition served on the respondent No. 1 is not a true copy as was required to be served under section 81(3) of the Act. It is not the contention that the petition has not been signed as a true copy. The contention is that there are several differences which has been reproduced above between the copy served on the respondent No. 1 and the original filed before this Court. It is in that context that the argument has been advanced that the copy as served cannot be said to be a true copy. The entire purpose of serving a true copy is to enable the respondent No. 1 to meet the challenges as set out in the petition. Can it be said on perusal of what has been pointed out in paragraph 2(a) of the written submission that those omissions in the true copy served on the respondent No. 1 are such that the Court can come to the conclusion that the true copy is not a true copy as contemplated under section 81(3). On a perusal of the said averments I am of the opinion that the defects as pointed out between the true copy and the original, will not result in the Court coming to the conclusion that the copy served on the respondent No. 1 is not a true copy. Once I so hold, Issue No. 1 must be answered in the negative and against respondent No. 1.
11. We now come to Issue No. 2. I have earlier reproduced both the verification clauses as also the Clause pertaining to affidavit in Form "C". The requirement of the affidavit in Form "C" does not fall under section 81, but under section 83 of the Act. What then is the effect of a defect under section 83 of the Act. Section 86 has been interpreted by the Apex Court in the case of T.M. Jacob (supra) explained in the case of Mr. V. Narayanaswamy (supra). The issue of defect in verification has been an issue before the Apex Court in various judgments. The learned Counsel for the respondent No. 1 contends that considering the verification in the affidavit where even paragraphs are not mentioned in effect there is no affidavit in law and consequently non-compliance with section 83 and, therefore, no effective petition in the eyes of law. It is further contended that even though the respondent No. 1 had raised the objection the petitioner at no point of time had sought permission of the Court to remedy the said defect and has proceeded with the petition as filed. In these circumstances it is contended that the Court must hold that the petition as filed is not a petition at laws and as such under section 86 of the Act the petition must be dismissed. On the other hand on behalf of the petitioner his learned Counsel contends that the defect of verification is a curable defect. Once it is curable the Court cannot dismiss the petition and if it comes to the conclusion that it is a curable defect it must give" an opportunity to the petitioner to carry out changes. Learned Counsel has relied on the judgment of the Apex Court in the case of H.D. Revanna v. G. Puttaswamy Gowda and others, for the proposition that defects in verification of the election petition or affidavit accompanying the election petition has been held to be curable and not fatal. It is, therefore, contended that whether it is verification of the petition or the affidavit itself, the defect is not fatal but curable and under these circumstances this Court should not dismiss the petition but permit the petitioner to cure the defect if it comes to the conclusion that in fact, there is defect in verification and/or in the affidavit.
12. Before I decide the issue, it would be material to decide Issue No. 3. That decision is essential as it will go to the root of the matter whether the defect as pointed out is curable or not. Having said so let us look at the averments in the petition which according to the petitioner are material facts of corrupt practices namely booth capturing. I have reproduced the various paragraphs wherein the material facts have been pleaded. In para IV(i) it is in the nature of a submission by the petitioner, that the definition of booth capturing under section 135 is inclusive. It is then submitted that the corrupt practices committed by the respondent No. 1 are, therefore, fully covered by the provisions of section 123(8) read with section 135(c) of the said Act. These averments, in my opinion, would not be pleading of material facts. These are submissions in law. These averments, therefore, do not constitute material facts.
We then come to paragraph IV(ii). Herein it is set out that the voting had taken place on 11th September, 1999, counting of votes was to start on 6th October, 1999 after a gap of one month. During this period all the ballot boxes were in the custody of the authorities assigned the work of election. It is then averred that the petitioner submits that the respondent No. 1 being an influential person, he misused his authority and interfered with the ballot boxes by replacing the ballot papers with the fake ballot papers. It is then set out that the facts mentioned hereinafter in the petition show the influential power of the respondent No. 1. The essential averments are in the form of submission. Even for the sake of argument let us assume that these are not submissions, but material facts.
From the said paragraph what emerges is that between the date of voting and 6th October, 1999 the respondent No. 1, an influential person has misused his authority and interfered with the ballot boxes to replace the ballot papers with the fake ballot papers.
We then come to para IV(iii). What is set out in this paragraph is that the father of the respondent No. 1 was the President of the Karad Municipal Council since 40 years and was a member of the Legislative Assembly for 10 years. The father of the respondent No. 1 is thus having a strong hold over the employees of the Karad Municipal Council. It is then submitted that the election duty was assigned to employees of the Municipal Council from where the respondent No. 1 was contesting the election. There are then some averments regarding the duty of the Election Officer. Then it is pointed out that when the Polling agent of the petitioner requested the Election Officer orally to show the ballot papers to verify the genuineness of the ballot paper used by the father of the petitioner the Election Officer declined to show the same. This it is contended, would indicate how respondent No. 1 is having influence over the authorities. It is then averred that discrepancies were found in the ballot papers at the time of counting the votes which were complained of by one of the candidates contesting the election viz. Shri Ashok Yeshwant Patil. Reliance is placed on two complaints dated 6th September, 1999 and 15th September, 1999.
In all this there is no specific averment about the role of the respondent No. 1 of booth capturing. The only averment is that the respondent No. 1 is an influential person. The influence is supposed to be because the father of the respondent No. 1 was a President of the Karad Municipal Council for 40 years and an M.L.A. for 10 years.
The next averment is that one of the candidates Shri Ashok Yeshwant Patil, who is the respondent No. 4 had filed some complaints being Exhibit "C-1" and C-2". Exhibit "C-1" is a letter dated 15th September 1999 by Ashok Yeshwant Patil, to the Election Officer. In that there is a complaint that Municipal Councillor Subhash Pandurang Patil, employee of Mahadeo Ghadge and their other colleagues are obtaining signatures on the forms and the ballot papers forcibly and actually giving the ballot papers going in hands of those employees. They were using those ballot papers and that particular act was contrary to law. There is no mention in the said complaint about the role of the respondent No. 1 in so far as the forcible taking of ballot papers either directly or through his election agent or any other agent. Exhibit "C-1" is letter dated 6th September, 1999 which is a complaint by the said respondent No. 1 to the Election Officer that some persons set out therein were making propaganda against the respondent No. 4. This would have no relation in so far as alleged corrupt practice of booth capturing. It may sound in some other corrupt practice but definitely no booth capturing.
We then come to para IV{iv). Here again the averment by the petitioner is that the respondent No. 3, another candidate had held a Press Conference, the report of which was published on 11th October, 1999 in the daily Tarun Bharat, Pudari and Samna. The translations thereof have been set out in the petition. In Exhibit D-1 quotes respondent No. 3 as having complained that respondent No. 1 is the son of Shamrao Pandurang Patil, who rules the Karad Municipal Council. He has expressed surprise as to how in these circumstances the staff of Karad Municipal Council were appointed for counting of votes in Karad North Constituency. He was also complaining about large number of representatives of respondent No. 1 being present at the time of counting. He has pointed out that some ballot papers were crumbled and how this happened and some other defects. He has set out that during the period of the date of elections and actual counting they might have been removed and substantiated by other ballot papers if the same numbers and by putting stamps on the "Clock" symbol. He has also expressed apprehension that the place where the ballot boxes were kept was in thinly populated area and the possibility of the being substituted. He asked for an enquiry. Similarly, Exhibit D-2 is the translation of what appeared in the daily "Pudari" of the same press conference. The said paper has also in the same context reproduced as to what transpired at the Press Conference, to the same effect, as to what appeared in the daily Samna. There is an additional allegation that when respondent No. 1 was in Administrative Service, the Election Officer, i.e. the Collector, Anil Digikar was working under him and fraud is committed because of his support. A perusal of the three translations as annexed to the petition being Exhibits D-1, D-2 and D-3 though it is set out that there is a possibility of ballot boxes being substituted there is no reference that it was respondent No. 1 who had removed the ballot boxes or his agent or any other person with his knowledge.
We now come to the averments in para IV(v). Herein also the pleadings are that the postal ballot papers were having the signatures of voters in the same ink. It is contended, this would be impossible unless the ballot papers are fake. Some other discrepancies in the ballot papers are also set out. It is then averred that the ballot papers having invalid votes were being collected and replaced by putting the voting marks as valid thereby showing that these were the valid votes in favour of respondent No. 1. There is no averment that the respondent No. 1 had scored them or his agent or any other person under his instructions.
We than come to para IV(vi). In the said paragraph the petitioner has expressed his surprise that though the Panchayat was under the control of the Indian National Congress the voting trend was not in favour of the candidate of the Indian National Congress. He then sets out doubts of the genuineness of the ballot papers. There is no specific role adverted to the respondent No. 1 or to his agent or any other person acting under his instructions. In para IV(vii) the petitioner is specific that it is the respondent No. 1 who has violated the provisions of section 123(8) read with section 135-A of the Act and thereby committed corrupt practices. Similarly in para V it is contended that it is the respondent No. 1 who had committed the corrupt practices.
13. From these averments as set out, considering the law and the tests as explained by the Apex Court from time to time on testing the matter on the touchstone of a quasi criminal complaint, do the averments as pleaded constitute a corrupt practice of booth capturing. Can it be said that taking the pleadings unrebutted it is possible for the Court to come to the conclusion that the respondent No. 1 has committed a corrupt practice of booth capturing and consequently his election is liable to be set aside. True, as explained by the Apex Court, a corrupt practice does not necessarily end with the voting. It can be committed as and upto the time when the results are declared. It may also possible to hold that though for the purpose of section 135-A and section 123(8) corrupt practices strictly as pleaded may not fall within section 135-A. The allegations of corrupt practices as understood in the present petition if and at all is that between the date of polling and the date of counting, there has been substitution of the ballot boxes at the place where they were stored and consequently the same amounts to booth capturing. Assuming it to be so, can it be said that-the material facts have been pleaded implicating the respondent No. 1 and necessitating a conclusion that it is the respondent No. 1 who was involved in substituting the ballot boxes. 1 have already referred to earlier that the role assigned is not to the agent or any other person acting on behalf of the respondent No. 1. The petitioner in his petition has alleged that it is the respondent No. 1 who has committed the corrupt practices. Considering this let us consider the law as laid down by the Apex Court and whether in these circumstances, it can be said that the corrupt practice of booth capturing has been established on the pleadings of the petitioner by pleading material facts.
14. The earliest case which needs to be referred to would be that of Azhar Hussain v. Rajiv Ghandi, 1986 (Supp) S.C.C. 315. While considering what is a 'material fact' the Apex Court has observed as under :-
"The material of facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition."
In the case of D. Ramachandran v. R.V. Janakiraman and others, in so far as material facts are concerned and hearing of preliminary objections the Apex Court has observed as under :-
"It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or a triable issue as such. The Court cannot probe into the facts on the basis of the controversy raised in the counter."
In the case of V.S. Achuthanandan v. P.J. Francis and another, , the Apex Court once again has observed as under :-
"It may further be noticed, as observed by this Court in Raj Narain v. Indira Nehru Gandhi, that rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulate to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the Court to ascertain that principle and implement it. The purpose of section 86 of the Act is to ensure that every charge of corrupt practice is brought before the Court within the prescribed period of limitation and not thereafter, so that the trial of the case is not converted into a persecution by adding more and more charges or by converting one charge into another as the trial proceeds."
In the case of Shivajirao B. Patil Kawekar v. Vilasrao D. Deshmukh, the Apex Court has reiterated the legal principles in so far as charge of corrupt practice is concerned. The principles have been carved out as under :-
"Charge of corrupt practice is quasi-criminal in character. If substantiated it leads not only to the setting aside of the election of the successful candidate, but also to his being disqualified to contest an election for a certain period. It may entail extinction of a person's public life and political career. A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mete preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to hilt, the standard of proof being the same as in a criminal trial."
In the case of R.P. Moidutty v. P.T. Kunju Mohammad & another, the Apex Court has again observed us under :-
"The Legislature has taken extra care to make special provision for pleadings in an election petition alleging corrupt practice. Under section 83 of the Act ordinarily it would suffice if the election petition contains a concise statement of the material facts relied on by the petitioner, but in the case of corrupt practice the election petition must set forth full particulars thereof including as full a statement as possible of (i) the names of the parties alleged to have committed such corrupt practice, (ii) the date, and (iii) the place of the commission of each such practice. An election petition is required to be signed and verified in the same manner as is laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. However, if the petition alleges any corrupt practice then the petition has additionally to be accompanied by an affidavit in Form 25 prescribed by Rule 94-A of the Conduct of Elections Rules, 1961 in support of the allegations of such corrupt practice and the particulars thereof. Thus, an election petition alleging commission of corrupt practice has to satisfy some additional requirements, mandatory in nature, in the matter of raising of the pleadings and verifying the averments at the stage of filing of the election petition and then in the matter of discharging the onus of proof at the stage of the trial."
15. Thus having exhaustively set out what the Apex Court has said in its various judgments, can it be said that on the pleadings as they stand and considering the specific averments in paragraphs IV and V, it is the respondent No. 1 who had indulged in the corrupt practice by himself. On a close scrutiny and even if the allegation is accepted that substitution of ballot papers in the ballot boxes between the date of polling and the date of counting amounts to booth capturing which amounts to a corrupt practice has the petitioner averred material facts as to the role of the respondent No. 1 in substituting the ballot papers. As pointed out earlier the averments are by way of submissions. Even if submissions are considered to be material facts, do they show that the respondent No. 1 indulged in the corrupt practice of booth capturing. In the instant case in my opinion the petitioner has failed to discharge that burden. The voting took place on 11th September, 1999. Counting took place on 6th October, 1999. No material fact has been pleaded, when or on what date the respondent No. 1 between the two dates substituted the ballot papers in the ballot boxes. The allegation that the ballot boxes were substituted between the period will be too vague to allege corrupt practice of booth capturing on the part of the respondent No. 1. The petitioner has failed to discharge that burden by pleading material facts. Issue No. 3 must be answered in favour of the respondent No. 1.
16. That leaves us with Issue No. 2. As pointed out earlier as laid down by various judgments of the Apex Court defect in verification by itself is curable. But considering what the Apex Court has said in the case of R.P. Moidutty v. P.T. Kunju Mohammad (supra) in so far as the corrupt practice is concerned there is an additional requirement of an affidavit being filed and verified in the manner required. The petitioner was informed that the affidavit was not verified according to law. I have reproduced earlier the averments in the verification of the affidavit. The purported averments based on personal knowledge are not set out. There is a blank in the original petition. The averments of the corrupt practice committed by the 1st respondent through his agent or other person are also blank. In the absence of filing an affidavit of corrupt practice as required by the proviso to section 83(1) it must be held that the petition as filed was not a petition satisfying the requirements of an election petition. Once that being the case, even though the defect as said earlier could be curable, on the facts of the instant case it must be held that the defect is fatal. No opportunity was sought to cure the defect. Consequently, the question of the Court granting an opportunity as was done in the case of F.A. Sapa & others, would not arise. Therein the Apex Court noted that the High Court itself had come to the conclusion that they were curable defects, but had given no opportunity to the petitioner to cure the defects. In the instant case, as pointed out earlier, the defect goes to the very root of the petition. The petitioner was made aware of it. Even rejecting the argument advanced on behalf of the respondent No. 1 that this cannot be cured as it was beyond the period of limitation, the petitioner choose not to move the Court for curing the same, and instead proceeded with the petition on the basis that the petition and the affidavit have been properly verified. Issue No. 2, therefore, has to be answered in favour of the respondent No. 1.
Once I uphold the preliminary objections the petition must be dismissed. Consequently, the following order :-
17. Election Petition No. 14 of 1999 dismissed. Petitioner to pay costs of respondent No. 1 quantified at Rs. 5,000/-.
A copy of this order be sent to the Election Commission and the Speaker of the Maharashtra Legislative Assembly in terms of section 103 of the Representation of People Act, 1951.
Personal Assistant to issue ordinary copy of this order to the parties. Certified copy expedited.
18. Petition dismissed.