Phani Bhusan Choudhury vs Shankar Prasad Ray

1) Heard Mr. K.P. Pathak, learned senior counsel, assisted by Mr. A. Baruah, learned counsel for the applicant/ respondent as well as Mr. N. Borah,

learned counsel for the opposite party/ petitioner.

2) The applicant herein is the respondent in the connected election petition filed by the opposite party. For the sake of clarity and convenience, in this

order the parties are referred by their respective position in the cause-title of the connected election petition. In the connected election petition, the

election of the respondent from No. 32 Bongaigaon Legislative Assembly Constituency in elections conducted on 06.04.2021 is under challenge.

3) By filing this application under the provisions of Order VII, Rule 11 of the Civil Procedure Code (‘CPC’ for short) and relevant provisions of

the Representation of the People Act, 1951 (hereinafter referred to as the “1951 Actâ€), the respondent (i.e. the returned candidate) has prayed

for rejection of the connected election petition. The learned senior counsel for the respondent has extensively referred to the averments made in the

connected election petition as well as this application and it was submitted that one of the prayers in the election petition was to declare the petitioner

as duly elected. It had been submitted that although there were 9 (nine) candidates in the fray, except for the respondent, no other candidates have

been arrayed as respondents in the connected election petition, for which the election petition was liable to be dismissed for non-joinder of proper and

necessary parties. It was further submitted that in the election petition, the petitioner had failed to disclose and set out the material facts as to whether

any Court had taken cognizance of any offence allegedly committed by the respondent or that any charge(s) has been framed against the respondent

in respect of any criminal case. Hence, it is submitted that no cause of action with triable case was disclosed as to whether the nomination papers filed

by the respondent suffers from any substantial defect. The learned senior counsel for the respondent no. 1 had also submitted that in the election

petition, the allegations relating to alleged corrupt practice are not supported by an affidavit filed under Form No.25 under Rule 94A of the Conduct of

Election Rules, 1961 (hereinafter referred to as the “1961 Rulesâ€). It was further submitted that only after going through the instant petition, the

petitioner had filed I.A.(C) 1447/2021, praying for leave to cure the defect in affidavit at pages 29 and 30 of the election petition. Accordingly, it is

submitted that assuming but not admitting that the said I.A.(C) 1447/2021 is allowed, the affidavit at pages 29-30 of election petition would become an

affidavit as per requirement of proviso to Section 83(1)(c) of the 1951 Act, but the election petition would then not contain affidavit to verify pleadings

as required under Section 83(1)(c) of 1951 Act read with Order VI, Rule 15(4) CPC. Hence, it is submitted that an election petition with absence of

an affidavit in support of verification would be fatal to the maintainability of the election petition. It was also submitted that the election petition does

not contain any grounds mentioned in Section 100 of the 1951 Act for which the election petition was liable to be dismissed. In support of his

submissions, the learned senior counsel for the respondent has submitted a synopsis of argument which is made part of record.

4) In support of his submissions, the learned senior counsel for the respondent has placed reliance on the following cases - (i) Krishan Chander v.

Ram Lal, (1973) 2 SCC 759, (ii) Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294; (iii) Krishnamoorthy v. Sivakumar & Ors.,

(2015) 3 SCC 467; (iv) Muniraju Gowda P.M. v. Munirathna & Ors., (2020) 10 SCC 192.

5) Per contra, the learned counsel for the petitioner had referred to a communication No. 3/4/2019/SDR/Vol-I dated 19th March, 2019, by which 16

“frequently asked questions†(FAQ for short) has been answered by the Secretary, Election Commission of India. It was submitted that in

response to question no. 8 therein as to “whether FIR cases have to be published by the concerned candidates and political parties?â€, the answer

was to the effect that “Yes. Under the heading ‘Case No. and status of case’, details regarding FIRs, mentioned in Item-5 of Form-26, are

required to be mentioned.†It was also submitted that in the present case in hand, while submitting his nomination papers, the respondent had not

disclosed regarding a pending FIR, which made the petitioner guilty of corrupt practice, which would entail the election of the respondent to be set

aside by the Court. Accordingly, it is submitted that the election petition is not liable to be rejected and rather, the instant application is liable to be

dismissed. In support of his submissions, the learned counsel for the petitioner had placed reliance on the following cases, viz., (i) Krishnamoorthy v.

Sivakumar & Ors., (2015) 3 SCC 467; (ii) Public Interest Foundation & Ors. v. Union of India & Anr., (2019) 3 SCC 224; (iii) Muniraju Gowda P.M.

v. Munirathna & Ors., (2020) 10 SCC 192.

6) The prayer in this interlocutory application for rejection of plaint is also founded on two score, firstly, that the election petition is not maintainable for

non-joinder of necessary parties and secondly, it is projected that the election petition lacks material particulars. On the second count, the learned

senior counsel for the respondent had referred to three defects, being (a) the election petition was lacking in material particulars, (b) the defect in

verification of pleadings, and (c) lack of grounds on which the election petition was filed.

7) In so far as the claim of non-joinder of necessary parties is concerned, it may be mentioned that a total of 9 (nine) candidates including the

petitioner and the respondent were in fray for the particular Assembly Constituency. But except for the respondent, the other candidates were not

arrayed as respondents in the election petition. This instant interlocutory application was filed by the respondent on 21.08.2021. Thereafter on

13.09.2021, the petitioner had filed an interlocutory application under Order VI, Rule 16 CPC read with Section 87(1) of 1951 Act for deleting para 25

and prayer no. (1) of the election petition, which was registered as I.A.(C) 1484/2021. The said I.A.(C) 1484/2021 was allowed by a separate order

passed today. It would suffice to record herein that on allowing of the deletion of the statements made in para 25 and prayer (1) of the election

petition, the issue of non-joinder of necessary parties has been rendered otiose and the consequences of such deletion is to the effect that the

petitioner is no longer seeking a declaration of he having been elected/ returned. Therefore, the petitioner appears to be contended by seeking a relief

only regarding nullity of the election of the respondent.

8) In support of his submissions regarding lack of material particulars, the learned senior counsel for the respondent had submitted that the Supreme

Court of India in the case of Association for Democratic Reforms (supra), had held that prior to six months of filing nomination, if a candidate is

accused in any pending case of any offence punishable with imprisonment for 2 (two) years or more, and in respect of which offence either charge is

framed or cognizance is taken by a Court of law, then such information is required to be disclosed in affidavit in Form 26 of the 1961 Rules. Similarly,

relying on the ratio laid down by the Supreme Court of India in the case of Krishnamoorthy (supra), it was submitted that a candidate gets the special

knowledge of cases where cognizance is taken or charges have been framed. Accordingly, it is submitted that there is no pleading regarding material

fact as to cognizance being taken of any criminal case where punishment is for a term extending to 2 (two) years or more or charges have been

framed. It is submitted that in lack of such pleadings the election of the respondent cannot be declared to be void. Thus, in other words, it was

submitted that mere statement that a FIR is pending cannot constitute a complete cause of action with any triable issue.

9) In this case in hand, the respondent has specifically stated in paragraphs 7 and 9 of the present interlocutory application as follows:-

“7. … in the election petition, the petitioner has not sworn any affidavit whatsoever, as prescribed in Form 25 under Rule 94A of the

Conduct of Election Rules, 1961 in support of the allegation of corrupt practice and as such the election petition does not give rise to any

cause of action on the allegation of corrupt practice of undue influence with a triable issue in that regard.â€​

*** *** ***

That an Affidavit in Form 25 under Rule 94-A being an integral part of an election petition, raising allegation of corrupt practice, total

absence of the said affidavit makes such election petition not an election petition under Section 81 of the Representation of the People Act,

1951 and as such the instant election petition is liable to be dismissed at the threshold under Section 86 of the Representation of the People

Act, 1951.â€​

10) In connection with the submissions regarding non-disclosure of pending FIR in the affidavit filed by the petitioner at the time of delivering

nomination papers, it would be relevant to quote Rule 4A of the Conduct of Election Rules, 1961, which reads as follows:-

“4A. Form of affidavit to be filed at the time of delivering nomination paper.- The candidate or his proposer, as the case may be, shall, at

the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33 of the Act, also deliver to him an

affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26.â€​

11) Therefore, as the affidavit in Form no. 26 is a requirement which flows from the provisions of Rule 4A of the 1961 Rules, whether the nomination

form submitted by the applicant is vitiated by non-compliance of the provisions of Rule 4A of the Conduct of Election Rules, 1961 is required to be

heard and decided in course of the trial of the connected election petition and as the issue requires appreciation of facts and law, in the opinion of the

Court, the same cannot be decided as a preliminary issue. Moreover, the Court is of considered opinion that it would not be permissible to dissect the

election petition into parts and by reading one part to hold that the election petition was lacking in material particulars and that the petitioner had failed

to disclose and set out the material facts as to whether any Court had taken cognizance of any offence allegedly committed by the respondent or that

any charge(s) has been framed against the respondent in respect of any criminal case. The case of the petitioner, amongst others, is that the affidavit

in Form 26 did not disclose materials, which in the opinion of the Court constitutes a triable issue. Hence, assuming that the material particulars in

respect of one of the several allegations are lacking, the election petition cannot be rejected for a singular deficiency. Similarly, in the considered

opinion of the Court, the defect, if any, in the verification of pleadings, and the lack of grounds on which the election petition was filed would also not

lead to rejection of election petition at the threshold, but these are contentious issues which is best left to be decided in course of trial of the election

petition. Hence, at this nascent stage, the cases cited by the learned senior counsel for the respondent does not help the respondent.

12) The instant application was filed by the respondent on 21.08.2021. Thereafter on 13.09.2021, the petitioner had filed a connected interlocutory

application under the provisions of Section 151 CPC, being I.A.(C) 1447/2021, with a prayer for a leave of this Court to cure/ remove the defect in

affidavit at pages 29 and 30 of the connected election petition by filing a proper affidavit in support of his allegations of corrupt practice against the

respondent as enumerated in Section 83(1) of the 1951 Act read with Rule 94A of the 1961 Rules. The said application has been allowed by a

separate order passed today, thereby allowing the defect in the election petition regarding non-filing of affidavit in Form 25 under Rule 94-A of the

1961 Rules to be cured. Thus, the objection as to maintainability for non submission of affidavit in Form 25 under Rule 94-A of the 1961 Rules has

been rendered otiose.

13) Therefore, in light of the discussions above, the Court is of the considered opinion that the cases cited by the learned senior counsel for the

respondent are distinguishable on the facts of the present case. Hence, this is not a fit case to reject the accompanying election petition, i.e. El.P. No.

3/2021 at the threshold in exercise of power under Order VII, Rule 11 CPC read with the relevant provisions of the Representation of the People Act,

1951 as prayed for.

14) Accordingly, this interlocutory application stands dismissed.