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Judgment
N. A. Britto, J.—Heard learned Counsel and learned Senior Counsel on behalf of the Petitioner and Respondent No. 1, respectively. The Petitioner is the defeated candidate at the election held on 2-6-2007 for Valpoi Assembly Constituency, for which Respondent No.1 was declared as successful candidate on 5-6-2007. The Petitioner has filed the present election petition for disqualification of Respondent No.1 for having indulged, inter alia, in corrupt practices which include, the allegations that Respondent No.1 distributed 6000 wrist watches bearing his own name and photograph and symbol with a slogan to vote for the symbol; distributed sewing machines, television sets, mobile hand sets; money at the Melavas held between 21-5-2007 to 23-5-2007, etc.
Respondent No.1 has raised preliminary objections to the maintainability of the petition and has filed an application dated 27-9-2007 (6/2007) u/s 86 of the Representation of the People''s Act, 1951 (Act, for short) r/w Order 7, Rule 11 C.P.C., for rejection of the petition, and, also filed another application dated 24-10-2007 (7/2007) under Order 6, Rule 16 to strike out the pleadings of paras 9, 11, 12, 14, 16, 17 and 21 as being unnecessary.
The Petitioner has also filed an application dated 9-10-2007 (4/2007) for amendment u/s 86(5) r/w Section 83(1)(b) of the Act so as to include the allegation that Respondent No.1 spent an amount of Rs.23,062-50 towards the said watches. The Petitioner has also filed another application dated 25-10-2007 (9/07) for amendment in an attempt to prove that Respondent No.1 spent more than Rs.5,00,000/-on the election campaign and gifts offered to voters. The Petitioner also filed another application dated 25-10-2007 (8/2007) seeking leave to file a fresh affidavit in form 25 in the light of the objection taken that the earlier affidavit filed was defective.
This order shall deal with all the aforesaid applications.
At the outset, reference is required to be made to Section 86 of the Act which, inter alia, provides that this Court shall dismiss an election petition which does not comply with the provisions of Section 81 - as regards time period during which it is to be filed, or Section 82 - as regards joinder of the Respondents to the petition, or Section 117 - depositing Rs.2000/-by way of security for costs of the petition. In other words, the Act insists upon strict compliance only in case of requirements of Section 86 of the Act. The legislative intent appears to be quite clear, since it divides violations into two classes. Those which would entail dismissal and those which would not. The weight of authorities clearly indicates that a certain amount of flexibility is envisaged. Election petitions are not to be rejected at the threshold on the slightest pretext which may not have bearing on matters to be strictly adhered to, as we shall see in greater detail, herein after.
Way back in Azhar Hussain Vs. Rajiv Gandhi, the Apex Court had stated that the intention to provide for summary dismissal was for failure to comply with requirements of Sections 81, 82 and 117 and not Section 83. All other defects are curable and not fatal. Even as regards non compliance of Section 81(3) is concerned, the Apex Court in Chandrakant Uttam Chodankar Vs. Shri Dayanand Rayu Mandrakar and Others, has held that the defect of non compliance of that Section is curable and if only when despite of opportunities being given that such defect is not cured that the election petition may be dismissed. In Sardar Harcharan Singh Brar v. Sukh Darshan Singh & Ors. (2004 (11) SCC 196/2004 DGSL 776), the Apex Court has stated that an election petition is not liable to be dismissed in limine for non compliance with the provisions of Section 83(1) and (2). Earlier in G. Mallikarjunappa and Another Vs. Shamanur Shivashankarappa and Others, , the Apex Court had ruled that defect in verification and the affidavit is a curable defect and the consequences entailing therefrom is required to be adjudged at the trial. In T.M. Jacob Vs. C. Poulose and Others, the Constitution Bench of the Apex Court also held that non compliance of Section 83(1) is a curable defect. Same is the ratio in Dr. Vijay L. Sadho v. Jagdish (2001 DGLS 19).
Section 87 of the Act, inter alia, provides, that subject to the provisions of this Act and of any 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 Civil Procedure Code, 1908 to the trial of suit. Section 86 of the Act deals with the trial of election petitions and sub-section(5) thereof provides that the High Court may, upon such terms as to costs and otherwise as it may deem fit allow the particulars of any corrupt practices alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. Since the applications for amendment dated 9-10-2007 (4/2007) and 25-10-2007 (9/2007) are by way of amplification of the matters pleaded in the main petition there could be no reasonable objection in not allowing the same. As stated by the Apex Court in F.A. Sapa v. Singora (1991 (3) SCC 375/1991 DGLS 281), if the germ of corrupt practice exists in the petition, the same can be ammended or amplified. The distribution of caps and T shirts is not a new ground of corrupt practices urged in the application dated 25-10-2007 but it is mentioned only to show that the expenditure incurred by Respondent No.1 was more than Rs.5,00,000/-. Since the affidavit in form no.25 earlier filed was found to be defective, the Petitioner has filed the application dated 25-10-2007 (8/2007) and the same also could be allowed since it is by way of curing a defect in the original statutory affidavit filed. There is nothing new in this affidavit except that it connects the facts in terms of law. The contention that defective affidavit is no affidavit in the eyes of law needs to be rejected. The Apex Court in Sardar Harcharan Singh Brar (supra) stated that the Petitioner ought to have been given an opportunity to remove the defect by filing a proper affidavit. In V. Narayanaswami v. C.P. Thirunavukkarasu (2000 (2) SCC 294), the election petition was dismissed by the High Court and the dismissal upheld by the Apex Court because the petition read as a whole did not disclose cause of action or triable issue. In fact the Apex Court observed that the Petitioner had every opportunity to amend the verification and to file the affidavit but for best reasons known to him, he had failed to do so. In the light of that, all the three applications filed by the Petitioner deserves to succeed. The ratio in the case of Ashok T. Patil v. Dr. Gurumukh Mehrumal Jagwani (Election Petition No. 7 of 2005 decided on 8-11-2006) would be inapplicable to the facts of this case for in that case there was no statutory affidavit in form no.25 at all filed, apart from the fact that it does not take into account the above cited decisions of the Apex Court which state that non compliance of Section 83(1) is a curable defect. Reverting to G. Mallikarjunappa (AIR 2001 SC 1829), the Apex Court, speaking through three learned Judges stated thus:
In F.A. Sapa case (supra) a three Judge Bench of this Court specifically dealt with an issue concerning defects in the verification of an election petition as well as of defects in the affidavit accompanying an election petition wherein allegations of corrupt practice are made. After considering the provisions of Sections 83 and 86 of the Act, also the requirements of Form No. 25 prescribed by Rule 94-A of the Rules and relevant provisions of the Code of Civil Procedure, the Court opined: at page 1574, of AIR:
From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above if clearly emerges (i) a defect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and (iv) the defect in the affidavit in the prescribed Form 25 can be cured.......
As regards Respondent No.1''s application dated 24-10-2007 (7/2007), in my view, there is no scope for deleting the averments of para 9 and others mentioned therein. Section 100 of the Act deals with grounds for declaring an election to be void and sub-clause (i) of Clause (d) of Section 100 provides that the election could be declared to be void by improper acceptance of any nomination. The contention of the Petitioner in para 10 of the petition is that the acceptance of the nomination of Respondent No.1 was improper because the stamp paper on which the affidavit was made was purchased by one Pednekar and not by Respondent No.1. This matter certainly can be dealt with as one of the grounds at the trial of the petition. Para 9 contains general allegation of distribution of sewing machines, watches, etc. The other paras, particularly para 17 states that the acts described in other paras mentioned therein amount to corrupt practices. Those are the material pleadings of the Petitioner and considering the same it can be said that none of the predicates of Rule 16, Order 6 are satisfied, and, in case the said paras are struck of, then nothing will remain in the petition, to go for trial, rendering the petition itself infructous. Respondent No.1''s application dated 24-10-2007 (7/2007) therefore needs to be rejected.
The first objection taken, but subsequently given up, is as regards non compliance of Section 82 of the Act i.e. the parties the Petitioner is required to join in the petition. The Petitioner has already deleted Respondent Nos. 3 to 5 and only Respondent No.2 remains and as regards this aspect the Apex Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore (1963 DGLS 133) has held that if one of the parties is in excess of the requirements of Section 82 of the Act it does not amount to non compliance of the provisions of Section 82 and if all the necessary parties have been joined to the election petition, the circumstance that the person who is not a necessary party is also pleaded does not amount to the breach of the provisions of Section 82 of the Act and there is no question of dismissing the petition, and, it is open to the Court to strike out the name of the party who is not a necessary party within the meaning of Section 82 of the Act but the position would be different if the person to be joined is a necessary party. The case at hand is at the most of mis-joinder and not of non-joinder and therefore on that count the petition cannot be dismissed at the threshold.
The next submission advanced on behalf of Respondent No.1 is that the affidavit is not filed as required by Rule 94(A) of the Conduct of Election Rules, 1961. Rule 94-A provides that the affidavit referred to in Section 83 of the Act shall be sworn before the Magistrate of the First Class or a Notary or a Commissioner of Oaths and shall be in form no. 25. Admittedly, the first affidavit filed by the Petitioner was sworn before the Registrar of this Court and subsequently an affidavit duly signed before the Notary on 25-10-2007 has been filed by the Petitioner along with his application of the same day. As far as this aspect is concerned, this Court in Commissioner of Income Tax Vs. Chhatrapati Sahakari Sakhar Karkhana Ltd. and Rahuri Sahakari Sakhar Karkhana Ltd., following the ratio of Kamalnarayan Sharma v. Dwaraprasad Misra (AIR 1966 SC 436) has held that the Registrar is competent to administer oath in the election petition in the light of Clause (a) of sub-section (2) of Section 3 of the Oaths Act. This Court also held that such administration of oath could not be said to be incompetent or illegal. This Court also referred to Pratap Banger v. Ashok Deshmukh (Election Petition No.3 of 1992 decided on 10-2-1992). In that case the oath was administered by an associate of the High Court and such associate was held to be competent to administer oath/verification/affirmation in an election petition. In the case of Kamalnarayan Sharma v. Dwarkaprasad Misra and others (supra) the affidavits were sworn in before the Clerk of the District Court and it was held that the affidavits sworn before him was in accordance with the provisions of Rule 94-A of the Conduct of Election Rules, 1961.
Learned Senior Counsel on behalf of Respondent No.1 has next contended that the petition does not contain material facts on which the petitioner relies or seeks to rely upon nor does it set forth full particulars of any corrupt practices that the Petitioner is alleged including a full statement as regards the names of the parties alleged to have committed such alleged practice and the date and commission of each such practice. The contention is that the averments in the petition do not constitute the concise statement of the material facts and there are no full particulars of the alleged corrupt practice nor the date and place of the commission of such each practice. It is also contended that the statements and the petition are vague and do not satisfy the requirements of Section 83(1)(a) and (b) of the Act and therefore the petition deserves to be dismissed.
Section 83 of the Act deals with the contents of the petition, and, sub-section(1) thereof provides that 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 alleged 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 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.
Sub-Section(2) of Section 83 of the Act further provides that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
The reply of the Petitioner is that the petition does contain a concise statement of material facts and so also it discloses relevant and material facts of the corrupt practices indulged in by Respondent No.1. It is contended on behalf of the Petitioner that apart from that the Petitioner will produce evidence to prove and justify the allegations made. The Petitioner''s contention is that the petition contains all the material ingredients to show the existence of concise statements of clauses (a) and (b) of sub-section(1) of Section 83 having been complied with by the Petitioner.
As far as this aspect of the case is concerned the Apex Court in Azhar Hussain Vs. Rajiv Gandhi, has referred to the expression "material facts" and "particulars" which an election petitioner is required to incorporate in his petition and has stated that material 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 on the basis of the facts pleaded in the petition. It is well settled that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. In my view, there are sufficient averments in the petition as regards both material facts as well as particulars of corrupt practices. It is to be noted that what the Petitioner is required to do, in terms of Clause (b) of sub-section(1) of Section 83 is to give a full statement of corrupt practices as possible, which has been done in this case and Respondent No.1, if he so desires, is always free to obtain better particulars of the corrupt practices alleged by the Petitioner against Respondent No.1, as stated by the Apex Court in F.A. Sappa v. Singora (supra). The Petition has got to be read as a whole and not in parts and then rejected. When so read, in my view, there is substantial and sufficient compliance by the Petitioner as regards the requirements of Clauses (a) and (b) of sub-section(1) of Section 83 of the Act (emphasis supplied). In this context reference to Raj Narain Vs. Indira Nehru Gandhi and Another, could be made wherein the Apex Court stated:
While a corrupt practice has got to be strictly proved but from that it does not follow that a pleading in an election proceeding should receive a strict construction. This Court has held that even a defective charge does not vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the court should accept that construction. The courts are reluctant to frustrate an action on technical grounds. The charge of corrupt practice in an election is a very serious charge. Purity of election is the very essence of real democracy. The charge in question has been denied by the respondent. It had yet to be proved. It may or may not be proved. The allegations made by the appellant may ultimately be proved to be wholly devoid of truth. But the question is whether the appellant should be refused an opportunity to prove his allegations. Should the court refuse to enquire into those allegations merely because the appellant or someone who prepared his brief did not know the language of the law? We have no hesitation in answering those questions in the negative"
The next contention of the learned Senior Counsel is that the provisions of Order 19, Rule 3, C.P.C. as well as Order 6, Rule 15, C.P.C. have not been complied with. In fact, by virtue of Clause(c) of sub-section(1) of Section 83 of the Act the Petitioner is required to sign the petition and verify the same in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. Order 6, Rule 15, inter alia, provides that every pleading shall be verified at the foot by the party or by one of the parties pleading or by some person proved to the satisfaction of the Court to be acquainted with the facts of the case and Sub Rule (2) of Rule 15 of Order 6 further provides that 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. Sub-Rule(2) further provides that the verification shall be signed by the person making it and shall state the date and place at which it was signed. The Petitioner has verified the petition by stating that the statements in paras 1, 2, 3, 4, 6, 12, 13, 14(Partly), 16, 18, 19, 22, 23 and 26 are true to the best of his knowledge and the statements in paras 5, 7, 8, 9, 10, 11, 14(Partly), 15 and 21 are true to the information from the records and the statements in paras 19, 20, 24, 25 and 27 are inferences of facts(legal submissions) best of legal advice which the Petitioner believes to be true. It is contended that the said verification is contrary to Order 6, Rule 15 C.P.C. Incidentally, it may be stated that the verification of the affidavit of Respondent No.1 dated 27-9-2007 annexed to application dated 27-9-2007 is no better, though the same may not be in issue, but it only indicates the manner in which no much attention is paid to the verification aspect of the pleadings. In Makhu Lal v. Bachcha Pathak (AIR 1992 ALLahabad 358) it has been observed that the defect in verification has never been held to be fatal. In coming to that conclusion the Allahabad High Court referred to Murarka Radhey Shyam v. Roop Singh Rathore (AIR 1964 SC 1545)/1963 DGLS 133) wherein it was held that "it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Clause (c) of sub-section(1) of Section 83 is fatal to the maintainability of the petition". Fault is sought to be found with the use of the words "are true to the best of my knowledge" and that expression appears to have been picked up by the Petitioner from Rule 6, Chapter III of the Rules framed by this Court on the Appellate Side, when it ought to have been "true to my own knowledge" but such a trivial defect in the overall circumstances of this case would be insufficient to dismiss the petition at the threshold in the light of the law laid down by the Apex Court. In G. Mallikarjunappa and Another Vs. Shamanur Shivashankarappa and Others, the Apex Court has held that the defect in verification is a curable defect and the petition is not liable to be dismissed on that count and the consequences entailing from such defect are required to be adjudged at the trial. Reference could also be made to H.D. Revanna Vs. G. Puttaswamy and Others, wherein it has been held that defect in verification of the election petition or the affidavit accompanying the election petition has been held to be curable and not fatal. Again, the Apex Court in Ram Prasad Sarma Vs. Mani Kumar Subba and Others, has held that although strict compliance with the statutory provisions is necessary since the rights of an elected representative should not be likely disturbed, an election petition should not be rejected at the threshold on the slightest pretext which may not have bearing on matters to be strictly adhered to. Therefore, the contention that the petition ought to be rejected for improper verification needs to be rejected.
Admittedly, the Petitioner has not filed an affidavit as required by Order 6, Rule 15(4) CPC. The Petitioner has submitted that the Petitioner would be willing to file a more detailed affidavit should an opportunity be given to him. In Vidyawati Gupta and Others Vs. Bhakti Hari Nayak and Others, the Apex Court has stated that the intention of the legislature in bringing about the various amendments in the CPC w.e.f. 1-7-2002 were aimed at eliminating the procedural delays in the disposal of civil matters and being procedural in nature, they are directory in nature and non-compliance thereof would not automatically render the plaint non est. The Apex Court also stated that except for the objection taken that the plaint had not been accompanied by an affidavit it was nobody''s case that the plaint had not been otherwise verified in keeping with the unamended provisions of the Code and Rule 1 of Chapter 7 of the Original Side Rules. It was observed that the plaint was accepted, after due scrutiny and duly registered and only during the hearing of the appeal was such an objection raised. The Apex Court further held that it was the consistent view of three Chartered High Courts that the requirements of Order 6 being procedural in nature, any omission in respect thereof will not render the plaint invalid and that such a defect or omission will not only be curable but will also date back to the presentation of the plaint. Since the Petitioner is willing and ready to file the affidavit, in terms of sub rule (4) of Rule 15, Order 6, CPC, there is no reason why the Petitioner should not be given an opportunity to file such an affidavit in support of the petition. This would be without prejudice whether the aforesaid provision is required to be read into clause (c) of sub section (1) of Section 83 of the Act. What is applicable to a suit in this regard could also be extended to an election petition. Opportunity therefore is given to the Petitioner to file the said affidavit within a period of 10 days. It is made clear that the affidavit to be filed will only affirm what is stated in the petition. This will also be in accordance with the ratio laid down by the Apex Court in Sardar Darshan Singh (supra).
That takes us to the next contention that the annexures including the affidavits of Devidas Gurav and Arun Sawant have not been signed and verified by the Petitioner in the same manner as the petition, as contemplated by sub-section(2) of Section 83 of the Act. Firstly, it is not known why the Petitioner at all filed the two affidavits when there was no such requirement in law. Presumably, the Petitioner filed them to corroborate the allegations in the petition. In Makhu Lal v. Bachcha Pathak (supra) it has been stated that verification of the Schedules is mere irregularity which is curable and is not an illegality. Firstly, the Petitioner has sought leave to cure the said defect. In this context reference could also be made to Sahodrabai Rai Vs. Ram Singh Aharwar, . Referring to, inter alia, to sub-section(2) of Section 83 it was contended that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify but it had to be treated as part of the Election Petition itself and a copy served upon the Respondents. The Apex Court held that it was too strict a reading of the provisions. The Court further held that since the election petition itself reproduced the whole of the pamphlet in English translation, it could be said that the averments in regard to the pamphlets were themselves a part of the petition and therefore the pamphlet was served upon the Respondents although in a translation and not in original and even if this be not the case, it was quite clear that sub-section(2) of Section 83 has reference not to a document which has produced as evidence of the averments of the election petition which are put not in the election petition but in the accompanying schedules or annexures. Again in A. Madan Mohan Vs. Kalavakunta Chandrasekhara, the Apex Court followed the same principle. Considering the facts of this case, in my view, therefore, the said two affidavits which were filed in support of the allegations in the petition were certainly not required to be further signed and verified in the same manner as the petition. No further opportunity to verify the said affidavits need be given to the Petitioner.
In conclusion, it may be stated that, the petition has got to be read as a whole and not in parts and when so read it does disclose a cause of action has material facts stated, as well as necessary particulars of corrupt practices alleged against Respondent No.1. If further particulars are required by Respondent No.1, he is always at liberty to seek the same from the Petitioner but on that count the petition cannot be dismissed. Apart from the liberty given to the Petitioner to file the affidavit in terms of Order 6, Rule 15(4), CPC, none of the objections taken on behalf of Respondent No.1 either individually or collectively are sufficient to dismiss the petition at the threshold. Consequently, the preliminary objections taken on behalf of Respondent No.1 are hereby dismissed.