Sri Narasimhappa vs The Election Commissioner Karnataka Election Commission and Others

B.V. Nagarathna, J.—In this writ petition, the Petitioner has challenged the order dated 12/S/2010 passed by the learned Civil Judge & JMFC, Devanahalli, on I.A.VII in Election Petition No. 3/2010, which is produced as Annexure "K", whereby the election petition has been dismissed.

It is the case of the Petitioner that, he belongs to Scheduled Caste category and has been engaged in social work and for upliftment of the down trodden; that, the State Government: by an order had directed holding of Elections to the Grama Panchayat in the State and accordingly, a notification was issued; that, Respondent No. 2 issued Calendar of Events and the Elections were scheduled to be held on 8/5/2010 and counting of votes to be held on 17/5/2010; that the Petitioner filed his nomination for contesting the Elections to be held for the post of member of Respondent No. 5 � Grama Panchayat and he contested for the Elections held on 8/5/2010. On account of there being several irregularities and discrepancies committed by Respondent No. 7, who is the successful candidate and also on account of there being non-compliance of the relevant Act and Rules, Election Petition was filed before the Court of Civil Judge and JMFC, Devanahalli, seeking declaration that the Election of the 7th Respondent is null and void and the Petitioner is the successful candidate.

After receipt of summons in the Election Petition, the Respondent-candidates entered appearance and filed their written, statement contending that the Petitioner had not filed any Affidavit in support of the allegations of corrupt practice as required u/s 16 of the Karnataka Panchayat Raj Act (hereinafter, referred to as the "Act") and thus, sought dismissal of the Election Petition. Under the circumstances, the Petitioner sought permission to Affidavit, so as to comply with the provisions of Section 16 of the Act, along with the application I.A. VII u/s 151 of CPC. The said application has been rejected and consequently, the Election Petition has also been rejected by the trial Court, by order dated 12/8/2010. The said order is under challenge in this writ petition.

I have heard the learned Counsel for the Petitioner and learned Govt. Pleader for Respondents 2 to 5. There is no representation on behalf of the other Respondents.

It is contended on behalf of the Petitioner that the trial Court was not right in dismissing the election petition in its entirety while dismissing the application filed by the Petitioner. No doubt, the Petitioner had not filed any affidavit along with the election petition in terms of Section 36 of the Act. However, non filing of such an affidavit is not fatal to the election petition: that subsequently, by filing of an application (LA.VII). permission was sought to file an affidavit, so as to cure the defect and under the circumstances, the trial Court ought to have allowed the application and permitted the Petitioners to file the affidavit. She also brought to my notice that the election petition is not filed solely on the ground of the corrupt practice committed by the Respondent No. 7 but on the other grounds as well, in as much as the Act and Rules have not beer; followed on the date of poll and therefore, there were other grounds on which the election petition was filed and merely because the affidavit was not filed in terms of Section 16 of the Act, the election petition could not have been dismissed. She submitted that the trial Court has not considered the other grounds raised in the election petition. Even with regard to the non-filing of the affidavit at the time of filing of the election petition, counsel for the Petitioner contended that the same is not fatal to the election petition and the same is a curable defect and therefore, the trial Court ought to have allowed the application filed by the Petitioner. In support of her submissions, she has relied upon certain decisions of the Apex Court, this Court and other High Courts. She has also brought to my notice that u/s 17 of the Act, an election petition can be dismissed only if there is non-compliance of the provisions of Section 15 of the Act and hence, there is no reference whatsoever to Section 16 and therefore, the trial Court was not right in dismissing both the application as well as the election petition. She therefore, submits that the order impugned has to be set aside and that the election petition has to be restored to file so that the trial in the said petition could commence.

Per contra, learned Govt. Pleader appearing for Respondents 2 to 5 has drawn my attention to Paragraph 7(a) of the election petition, which deals with corrupt practice of bribery and that u/s 22 of the Act, corrupt practice has been defined, which is in pari materia of Section 123 of the Representation of People Act (hereinafter, referred to as the "R.P. Act"; and therefore, any non-compliance of proviso to Section 16 of the Act, is fatal to the election petition in as much as compliance with the said proviso is a mandatory requirement; that any defects in affidavit filed in election petition, could be cured by giving an opportunity to the Petitioner but non-filing of an affidavit is a total violation of the mandatory requirement prescribed u/s 16 of the Act and therefore, the trial Court was justified in dismissing the application filed by the Petitioner. In support or his submission, he has relied upon a decision of the Apex Court reported in JT 2010 SC 583.

Having heard the learned Counsel on both sides and on perusal of the material on record, it is observed that the Petitioner has filed the election petition not only raising the allegation of bribery as against Respondents 7 9 and 11 in Para. 7(a) of the petition. But Para. 7(b) to 7(g) deal with various illegalities and irregularities in the conduct of the election and also subsequently, in the counting of votes. Therefore, the election petition has been filed not only on the allegation of bribery as stated in Para. 7(a) of the petition but also with regard to various other violations, illegalities and irregularities, as stated in Para. 7(b) to 7(g) which according to the Petitioner have materially affected the result of the election.

No doubt, in so far as any allegation of corrupt practice is concerned, when made in an election petition, Section 16 of the Act states that certain procedural requirements have to be complied with. Section 16 of the Karnataka Panchayat Raj Act. 1993 reads as follows:

Contents of the petition and relief that may be claimed.--

(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 Civil Procedure Code, 1908 (Central Act 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 from 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.

(3) A Petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected.

However, Section 17 of the Act categorically states that if there is non-compliance with the provisions of Section 15, then in that case, the election petition has to be dismissed. Therefore, there is no reference to Section 16 in Section 17(1) of the Act in as much as Section 17(1) does not contemplate dismissal of the election petition for violation of any of the requirements stated in Sec-ion }� of the Act. Since in the present case, the controversy is with regard to non-filing of an affidavit in the prescribed form in support of the allegations of corrupt practice and the particulars thereof along with filing, of the election petition. The question as to whether the trial Court could have dismissed the election petition itself while dismissing the application filed by the Petitioner seeking to file an affidavit in terms of the proviso to Clause (c) of Section 16(1) has to be considered.

In this regard, at the outset, it would be necessary to observe that since the Petitioner had raised certain grounds with regard to violation of the Act and the Rules in the conduct, of the poll and subsequently, in the accounting of votes, the dismissal of the entire election petition on the ground that there has been non-compliance with the. requirement of Section 16 is illegal and not in accordance with law. Therefore, at this stage itself, it is necessary to hold that the entire election petition could not have been dismissed. Having said so, the precise question that has to be now answered is as to whether on the ground that the Petitioner had not filed an affidavit in the prescribed form at the time of filing of the election petition, the trial Court was justified in dismissing the application and thereby not enabling the Petitioner to cure the said defect. In this context, it would be of relevance to note that Section 15 of the Act is in pari materia of Section 81 of the RP Act 1951. While Section 16 of the Act is in pari materia with Section 83 of the said Act. Therefore, decisions which have been rendered under the provisions of the RP Act, would also be apposite to answer the question raised in this writ petition.

In ibis context, the citations relied upon by the learned Counsel for Petitioner can be considered in order to answer the question as to whether the trial Court was right in dismissing the application filed by the Petitioner.

In the case of Sardar Harcharan Singh and Ors. reported in 2004 SCW 6205, the Apex Court held that non-compliance with the requirement of filing an Affidavit cannot be a ground for dismissed of the election petition in limine u/s 86 of the Representation of People Act and that the election Petitioner should be given an opportunity of curing a defect by filing an appropriate affidavit. In the said case, the Apex Court held that deficiency in particulars could not be a ground for dismissal of the petition at the threshold. It is only the non supply of particulars though ordered by the Court which could have led to either striking-off the pleadings or refusal to try the related instances of alleged corrupt practice. Further, the Apex Court held that defect pointed out by the High Court that the affidavit filed in support of the election petition alleging corrupt practice by the winning candidate, in the context of the proviso to Section 83(1) of the Act, it was held that non-compliance with the requirement of filing affidavit in conformity with Rule 94-A could not be a ground for dismissal of the election petition. But at the same time, it cannot be lost, sight of the fact that failure to comply with the requirement as to filing of an affidavit cannot be a ground for dismissal of an election petition in limine under Sub-section (1) of Section 86 of the R.P. Act. Referring to two earlier decisions of the Court in the case of G. Mallikarjunappa and Another Vs. Shamanur Shivashankarappa and Others, and Dr. Vijay Laxmi Sadho Vs. Jagdish, , it was held that an election petition is liable to be dismissed in limine u/s 86(1) of the said Act. if the election petition does not comply with either of the provisions of Section 81, 82 or 117 of the R.P. Act, but the requirement of filing an affidavit along with the application in the prescribed form in support of the allegations of corrupt practice contained in Section 83(1) of the Act and non-compliance thereof does not attract the consequence envisaged by Section 86(1) of the said Act. Therefore, an election petition is not liable to be dismissed in limine u/s 86(1) of the said Act for non-compliance of Section 83(1) or (2) of the said Act or of its proviso. The Apex Court held that the defect in the verification and the affidavit is a curable defect. What other consequences, if any may follow from an allegedly "defective" affidavit, is required to be judged at the trial of an election petition but Section 86(1) of the said Act in terms cannot be attracted to such a case.

To the same effect is the decision rendered by various High Courts in as much as in case of Brij Mohan Das Agarwal Vs. Z.A. Ahmad and Others, , it has been held that the election petition could not be dismissed on the ground that the affidavit as required by proviso to Section 83(1) did not accompany the petition but was filed later that is before the petition came on for trial.

In case of N.P. Chengalraya Naidu Vs. G.N. Pattabhi Reddi, , it has been held that, the provisions of Section 83 are not mandatory and the non-compliance with the requirements of the proviso by way of omission on the part of the Petitioner to file an affidavit along with an election petition as required by the proviso to Section 83(1) is not fatal to the maintainability of the petition.

Similarly, in Kidwai Husain Kamil Vs. Yadav Ram Sewak and Others, , it is stated that Section 53 of the R.P. Act. 1951, does not provide for the dismissal of the petition for want of an affidavit to support the allegations relating to corrupt practice.

In Jildar Ram Vs. Gouri Shankar Pandey and Another, , it has been held that Sub-section (3) of Section 90 which enjoins upon the Tribunal to dismiss an election petition in limine refers only to noncompliance with the provisions of Section 81 or 82, and not for non-compliance with any of the provisions of Section 83. It follows that the tribunal cannot dismiss a petition in limine u/s 90(3) on the ground that the affidavit filed with the petition did not comply with the requirements of proviso to Section 83.

Similarly, in Dibyendu Biswas v. Rabin Deb and Ors. AIR 1998 CAL 99, it has been held that when an election petition is filed alleging corrupt practice and the requirement that it should be accompanied by affidavit in the prescribed form is not complied with at the Lime of filing of the election petition but the affidavit is filed later but before commencement of trial and served on the counsel of the Respondent elected candidate, then it cannot be held that there is non compliance of Section 83(1) of the said Act,

Therefore, what emerges from these decisions is the fact that non-compliance of the requirements u/s 83 of the RR Act which is in pari materia of Section 16 of the Act would not result in the dismissal of the election petition since there is also no consequence to that effect under the Act in terms similar to non-compliance of the provisions of Section 15 of the Act or Section 81 of the RR Act but the Petitioner herein should be given an opportunity to file an affidavit if any already filed or the cure the defects in the affidavit. In case there are any defects in the affidavit along with the election petition.

However, learned Govt. Pleader has placed strong reliance upon another decision of the Apex Court in the case of Ravinder Singh Vs. Janmeja Singh and Others, , to contend that in the case of a corrupt practice u/s 123(1) of the R.P. Act, which is in pari materia with Section 22(1) of Act, in case of bribery, non-filing of an affidavit is fatal to the election petition and having regard to the averments made in Para. 7(a) of the election petition, which is nothing but allegation of bribery, since the Petitioner herein did not file an affidavit supporting the said allegation at the time of filing of the election petition, the said failure cannot be cured by permitting the Petitioner to file a supporting affidavit subsequently and hence, the order of the trial Court is justified.

In the said judgment relied upon by the learned Govt. Pleader, the allegations were not merely u/s 123(1) of the R.P. Act but also u/s 123(4) of the said Act. The Apex Court considering the material facts and particulars stated in certain paragraphs of the election petition held that those allegations could not have been put to trial. Further, it was also held that there was no affidavit in support of the corrupt practice of bribery and that the affidavit which had been filed in support of the election petition did not at all deal with the charge of bribery falling u/s 123(1) of the said Act and that the affidavit was also not in the prescribed form and that the affidavit which had been filed was a reproduction of the verification clause of the election petition of cornering corrupt practice u/s 123(4) of the said Act. It is under those circumstances, that the Apex Court held that the corrupt practice u/s 123(1) of the R.P, Act was concerned, there was neither material particulars in the election petition nor was there any affidavit in support of the said corrupt practice and under those circumstances, it was held that the election petition could not be out to trial u/s 123(1) of the said Act. The said decision turns on its own distinctive facts, which cannot be made applicable to the fads of the present case, having regard to the dictum of the Apex Court in the aforesaid decisions. Hence, the trial Court was not justified in dismissing the application filed by the Petitioner, thereby denying an opportunity to the Petitioner to file an affidavit in compliance with Section 16 of the Act. The dismissal of the election petition without having regard to other allegations and grounds raised in the election petition is also not correct. Hence, the impugned order dated 12/8/2010 is quashed. The election petition is restored to file. The trial Court, is directed to permit the Petitioner herein to file an affidavit in accordance with Section 16 of the Act and thereafter, to proceed with the matter in accordance with law. It is needless to observe that since the trial Court in the instant case is dealing with an election petition, the same would be disposed of as expeditiously as possible having regard to the fact that the challenge is made to the validity of the election of Respondent No. 7 to Grama Panchayat.

In the result, the writ petition is allowed. Parties to bear their own costs.