Sanjay Singh Rana vs Election Commission of India and Others

Dilip Gupta, J.—1. Election Petition No. 3 of 2014 was filed by Sanjay Singh Rana under Section 80/81 of the Representation of the People Act, 19511 for declaring the election of the returned candidate of 35 Lucknow Parliamentary Constituency null void. An application bearing No. 124332 of 2014 has been filed by the returned candidate under Section 86(1) of the Act with a prayer that the election petition may be dismissed. It is this application that has been pressed by learned counsel appearing for the returned candidate.

Sri Raj Nath Singh, who has been impleaded as respondent No. 3 in this election petition, was declared elected on 16 May 2014. The petitioner had submitted his nomination paper before the Returning Officer on 7 April 2014. The date for scrutiny of the nomination papers was notified as 10 April 2014. The petitioner was provided a copy of the order dated 10 April 2014 that his nomination paper had been rejected for the reason that he had not properly filled the affidavit nor had he submitted the notarized affidavit despite notice having been issued to him. The election petition was filed contending that the Returning Officer committed an illegality in rejecting the nomination paper of the petitioner.

Notice was issued to the respondents on 22 August 2014. Dr. L.P. Misra, learned counsel has appeared on behalf of respondent No. 3.

Learned counsel appearing for respondent No. 3 submitted that the election petition should be dismissed as it does not satisfy the requirements of sub-clauses (a), (b) and (c) of Section 83(1) of the Act nor does it satisfy the requirement of sub-section (2) of Section 83. In this connection, learned counsel pointed out that the election petition does not contain a concise statement of the material facts on which the petitioner relies which is a requirement of sub-section (a) of Section 83(1) nor does it satisfy the requirement of sub-section (b) read with the proviso. Learned counsel submitted that the requirement of the proviso to sub-section (1) of Section 83 of the Act in regard to allegation of corrupt practice is that the petition should also be accompanied by an affidavit in the prescribed form in respect of the allegation of such corrupt practice and the particulars thereof, but this has not been complied with. Learned counsel also submitted that the election petition should be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 19082 for the verification of the pleadings. Learned counsel also vehemently urged that the requirement of sub-section (2) of Section 83 that the annexures to the petition should also be signed by the petitioner and verified in the same manner as the petition has not been complied with.

Sri M.P. Pandey, learned counsel for the petitioner, however, submitted that the provisions of Section 83 of the Act have been duly complied with and that in any case the election petition cannot be dismissed even if they are not satisfied as an election petition can be dismissed under Section 86 of the Act only when the requirements of Sections 81, 82 or 117 are not satisfied.

On 6 November 2015, when the matter was heard for sometime, learned counsel for the petitioner took time to examine the matter. The petitioner subsequently filed an application with a prayer that the Court may permit the petitioner to verify the annexures in accordance with the provisions of Section 83(2) of the Act read with Order VI Rule 15 of CPC. Learned counsel for respondent No. 3 raised strong objections and has submitted that no opportunity can now be provided to the petitioner after the expiry of the period of limitation to remove the defects and verify the annexures.

In support of their contentions, learned counsel have relied upon decisions to which reference shall be made.

In order to appreciate the contentions advanced by learned counsel for the parties, it would be appropriate to first refer to the provisions of the Act. Section 80 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act. Section 80-A provides that the Court having jurisdiction to try an election petition shall be the High Court. Section 81 provides that the election petition calling in question any election may be presented on one or more of the grounds specified in Section 100(1) and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate. Sub-section (3) of Section 81 provides that 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 signatures to be a true copy of the petition.

Section 81 of the Act is reproduced below:

"Presentation of petitions.--(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.

Explanation.--In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

(2) omitted

(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."

Section 83, which is relevant for the purpose of deciding this application, deals with the contents of petition and is also 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, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."

Section 86 of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.

The manner of signing an election petition and verifying it is provided for under Order VI Rule 15 of CPC which is as follows:

"15. Verification of pleadings.-(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings."

It is in the context of the aforesaid provisions that the objections raised by learned counsel for respondent No. 3 have to be examined.

Though learned counsel for the petitioner contended that the provisions of Section 83(1)(b) of the Act have been complied with but learned counsel for respondent No. 3 strongly submitted that the election petition should be dismissed as the annexures to the election petition have not been signed and verified in the manner laid down in CPC for the verification of the pleadings.

Section 83(1)(c) provides that the election petition shall be signed by the petitioner and verified in the manner laid down in CPC. Section 83(2) of the Act provides that every annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Order VI Rule 15 of CPC, as noticed above, provides that every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. The contention of learned counsel for the respondent is that the annexures to the petition have not been verified in the manner provided for in Order VI Rule 15 of CPC.

The verification, as it appears at page 14 of the election petition, is as follows:--

"I, the above named plaintiff do hereby verify that the contents of para 1 to 37 are true to my personal knowledge and those of paras 38 are believed to be true on the basis of legal advice.

Signed and verified this 27th day of June 2014 in the premises of High Court, Lucknow."

It is, therefore, clear that the annexures to the petition have not been verified and only the averments made in the petition have been verified.

The affidavit, which is at pages 61 and 62 of the petition, is as follows:

"I, Sanjay Singh Rana, aged about 34 years son of Late Sri Prem Narayan resident of Khadri, P.S. Madiyaon, Sitapur Road, Lucknow 226020, Education-Graduate, Religion-Hindu, Caste-Kshatriya, Occupation-Self Employed, the deponent do hereby solemnly affirm and state on oath as under:

That the deponent is the petitioner in the above noted writ petition and as such he is fully conversant with the facts of the case.

That the contents of paras 1 to 37 of the accompanying writ petition are true to my personal knowledge and those of paras 38 are based on legal advice and those of paras are based on record.

That the deponent verified that Annexure Nos. 1 to 9 of the writ petition are true/photocopies of the original duly compared."

So far as the annexures are concerned, all that has been stated is that the deponent has verified that annexures 1 to 9 to the petition are true/photocopies of the original duly compared. The annexures also contain an endorsement ''True Copy Attested''. Order VI Rule 15 of CPC provides that not only is the verification to be signed by the person making it with the date and the place but the person has also to furnish an affidavit in respect of his pleadings. Sub-clause (2) of Order VI Rule 15 also provides the person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. The affidavit does not indicate whether the annexures have been verified of his own knowledge or whether they have been verified on the basis of information received and believed to be true. All that is stated is that the nine annexures to the petition are true/photocopies of the original and have been duly compared. It is for this reason that an application bearing No. 122115 of 2015 has now been filed by the petitioner to grant permission to verify the annexures so that the defect is removed.

Learned counsel for the petitioner raised two folds submissions in opposition to the application that has been filed by respondent No. 3. The first submission is that Section 86 of the Act envisages dismissal of an election petition only when the requirements of Sections 81, 82 and 117 of the Act have not been satisfied and, therefore, the election petition cannot be dismissed even if the Court was to hold that the requirements of Section 83(2) have not been satisfied by the petitioner. The second submission is that the defects in the verification of the annexures can be permitted to be removed and for this an application has been filed by the petitioner to grant such permission.

Learned counsel for the returned candidate pointed out that the statement of the material facts contained in paragraphs 4, 10, 12, 13, 14, 15, 16, 19, 22, 23, 24 and 25 are based on Annexure Nos. 1, 2, 3, 5, 6 and 7 and, therefore, the annexures not only are an integral part of the election petition but are also integral part of the statement of material facts stated in the election petition. The submission that was advanced was, therefore, that no amendment in the pleadings of the election petition in regard to the material facts nor any amendment by way of verification of the annexures on which the statement of material facts is based is permissible in law after the expiry of the period stipulated for filing an election petition. In support of his submissions, learned counsel has placed reliance upon the decisions of the Supreme Court in Harish Chandra Bajpai & Anr. v. Triloki Singh & Anr. , AIR 1957 SC 444; Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi , AIR 1987 SC 1577; Mohan Raj v. Surendra Kumar Taparia & Ors. , AIR 1969 SC 677; F.A. Sapa & Ors. v. Singora & Ors. , (1991) 3 SCC 375; R.P. Moidutty v. P.T. Kunju Mohammad & Anr. , (2000) 1 SCC 481 and Lalit Kishore Chaturvedi v. Jagdish Prasad Thada & Ors. , 1990 (Supp) SCC 248.

Learned counsel for the petitioner, however, submitted that since Section 86 contemplates dismissal of the election petition for non-compliance of the provisions of Sections 81, 82 and 117 of the Act, it is apparent that the legislature did not intend to place emphasis on non-compliance of the provisions of Section 83 of the Act and, therefore, the defect, if any, in the annexures can be cured at any stage. Learned counsel submitted that in view of the provisions of Order VI Rule 17 of the CPC and in view of the decision of the Supreme Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore & Ors. , AIR 1964 SC 1545, the defect can be cured at any stage and the respondents cannot urge that no amendments can be carried out after the expiry of the limitation period.

It is not possible to accept the contention of learned counsel for the petitioner that an election petition cannot be dismissed even if the requirements of Section 83 of the Act are not fulfilled.

In Mohammad Riyas, the Supreme Court observed:

"In our view, the objections taken by Mr. P.P. Rao must succeed, since in the absence of proper verification as contemplated in Section 83, it cannot be said that the cause of action was complete. The consequences of Section 86 of the 1951 Act come into play immediately in view of Sub-Section (1) which relates to trial of Election Petitions and provides that the High Court shall dismiss the Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the 1951 Act. Although, Section 83 has not been mentioned in Sub-section (1) of Section 86, in the absence of proper verification, it must be held that the provisions of Section 81 had also not been fulfilled and the cause of action for the Election Petition remained incomplete. The Petitioner had the opportunity of curing the defect, but it chose not to do so."

This is also what was observed by the Supreme Court in Lalit Kishore Chaturvedi:

"4. The submission that an election petition could be dismissed, apart from merit, only for one of the reasons mentioned in Section 86(1) is devoid of any substance. Dismissals visualised under Section 86(1) are for lack of verification or presentation of petition beyond time or for defect in joinder of parties or for non-deposit of security for costs. These are defects in frame or presentation of petition. On the other hand dismissal for failure to disclose cause of action under Order VII Rule 11 of Civil Procedure Code is in course of trial. In Azhar Hussain v. Rajiv Gandhi , (1986) Supp SCC 315, it was observed that, "the fact that Section 83 does not find place in Section 86 of the Act does not mean that powers under C.P.C. cannot be exercised."

Thus, an election petition can be dismissed if the provisions of Section 83 of the Act are not complied with.

It is not disputed by learned counsel for respondent No. 3 that the defects in the verification can be cured but what has been contended is that the defects can be cured only within the period of limitation provided for in filing the election petition and not after that. In support of his contention learned counsel relied upon the decision of the Supreme Court in Dhartipakar. The Supreme Court has held that any amendment or removal of defects in the election petition can be carried out only within the limitation period and the relevant observations are:

"31. ...At the conclusion of hearing of the appeal before us appellant made applications for amending the election petition, to remove the defects pointed out by the High Court and to render the allegations of corrupt practice in accordance with the provisions of Section 83 read with Section 123 of the Act. Having given our anxious consideration to the amendment applications, we are of the opinion that these applications cannot be allowed at this stage. It must be borne in mind that the election petition was presented to the Registrar of the High Court, at Lucknow Bench on the last day of the limitation prescribed for filing the election petition. The appellant could not raise any ground of challenge after the expiry of limitation. Order VI, Rule 17 no doubt permits amendment of an election petition but the same is subject to the provisions of the Act. Section 81 prescribes a period of 45 days from the date of the election for presenting election petition calling in question, the election of a returned candidate. After the expiry of that period no election petition is maintainable and the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in Section 81 would amount to contravention of those provisions and is beyond the ambit of Section 87 of the Act. It necessarily follows that a new ground cannot be raised or inserted in an election petition by way of amendment after the expiry of the period of limitation. The amendments claimed by the appellant are not in the nature of supplying particulars instead those seek to raise new ground of challenge. Various paras of the election petition which are sought to be amended do not disclose any cause of action, therefore, it is not permissible to allow their amendment after expiry of the period of limitation. Amendment applications are accordingly rejected."

In R.P. Moidutty, the Supreme Court also observed:

"33. The affidavit filed by the petitioner in support of the election petition as required by Rule 94-A also does not satisfy the requirement of proviso to sub-section (1) of Section 83 of the Act and Form 25 appended to the Rules. The several averments relating to commission of corrupt practice by the first respondent as contained in paras 4 to 12 and 16 of the petition have been verified as true to the best of "my knowledge and information"-both, without specifying which of the allegations were true to the personal knowledge of the petitioner and which of the allegations were based on the information of the petitioner believed by him to be true. Neither the verification in the petition nor the affidavit gives any indication of the source of information of the petitioner as to such facts as were not in his own knowledge."

In F.A. Sapa, the Supreme Court pointed out that the Court would have to decide in each individual case whether the annexures referred to in Section 83(2) constitutes an integral part of the election petition or not.

What is, therefore, of importance is whether the statement of material facts rests wholly or partly on the annexures. The statement of material facts as contained in paragraphs 4, 10, 12, 13, 14, 15, 16, 19, 22, 23, 24 and 25 of the election petition is based on Annexure Nos. 1, 2, 3, 5, 6 and 7. It is, therefore, clear that they are not only integral part of the election petition but are also integral part of the statement of material facts contained in the election petition.

It is, therefore, clear that the defects pointed out in the annexures to the election petition in regard to verification could be removed only within the limitation prescribed for filing an election petition and as, admittedly, the application for curing the defects has been filed after the expiry of the limitation, the election petition deserves to be dismissed for this reason.

Thus, for all the reasons stated above, the application filed by respondent No. 3 for dismissal of the election petition is allowed and the application now filed by the petitioner for seeking permission to verify the annexures is rejected. Consequently, the election petition stands dismissed.

1the Act

2 the CPC