Bombay High Court
Rashmi Digambar Bagal vs The Maharashtra Election ... on 21 September, 2016
Bench: R.M. Savant
aep-5.16&aepl-11.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION NO.5 OF 2016
IN
ELECTION PETITION NO.4 OF 2014
Narayan Govindrao Patil ]
age 43 years, having address at Jeur, ]
Taluka Karmala, Dist. Solapur. ]..... Applicant.
In the matter between
Rashmi Digambar Bagal, ]
age 29 years, having address at 'Digvijay',
ig ]
Vidyanagar, Karmala, Dist.Solapur 413203 ]..... Petitioner
versus
1] The Maharashtra Election Commission ]
Mantralaya, Mumbai 400 032 ]
]
2] The Chief Electoral Officer, ]
General Administration Department, ]
th
5 floor, Mantralaya, Mumbai 400 032 ]
]
3] Mr. Avinash R Hadgal, ]
The Returning Officer, 244 Karmala ]
Assembly Constituency, Karmala, Solapur]
]
4] The Election Commission of India ]
having its office at Nirvachan Sadan ]
Ashoka Road, New Delhi 110001 ]
]
5] The District Collector and District ]
Election Officer, Collector Office, ]
Solapur. ]
]
6] Narayan Govindrao Patil ]
age 43 years, having address at Jeur, ]
Taluka Karmala, Dist. Solapur. ]
]
lgc 1 of 53
::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:56:34 :::
aep-5.16&aepl-11.16
7] State of Maharashtra, through the Chief ]
Secretary, through the office of the ]
Government Pleader, Original Side, High ]
Court, Bombay. ]
]
8] Kamble Roheedas Rajaram ]
At post Shetfal, Taluka Karmala, ]
Dist. Solapur ]
]
9] Jaywantrao Namdevrao Jegtap ]
Satwai Farm House, Nagar Tembhurni ]
Bypass Road, Taluka Karmala, Dist. ]
Solapur 413202 ]
]
10] Jaleendar Gokool Jadhav ]
Rambhapura, Taluka Karmalaig ]
Dist. Solapur ]
]
11] Bhise Hanuman Kisan ]
At Pondhwadee post Vihal, ]
Taluka Karmala, Dist. Solapur ]
]
12] Shinde Sanjay Vithalrao ]
At Post Nimgaon (Te), Taluka Madha ]
Dist. Solapur ]
]
13] Santosh Laxman Salunkhe ]
At Satoli Post Upalwate, Taluka Karmala ]
Dist. Solapur ]
]
14] Parmeshwar Dattatray Talekar ]
At Post Kem, Taluka Karmala Dist.Solapur]
]
15] Rahul Bapurao Deshmukh ]
At Post Wangi No.2 Taluka Karmala ]
Dist. Solapur ]
]
16] Shahu Shamrav Fartade ]
At Post Hivare, Taluka Karmala ]
Dist. Solapur ]
]
17] Shinde Sanjay Namdev, ]
At Post Pothare, Taluka Karmala ]
Dist.Solapur. ]
lgc 2 of 53
::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:56:34 :::
aep-5.16&aepl-11.16
18] Sanjay Mahadev Shinde ]
At Post Jategaon, Taluka Karmala ]
Dist. Solapur. ]
]
19] Sanjay Limbraj Shinde ]
At Post Khambewadi, Taluka Karmala ]
Dist. Solapur. ]..... Respondents.
ALONG WITH
APPLICATION (LODGING) NO.11 OF 2016
IN
ELECTION PETITION NO.4 OF 2014
Rashmi Digambar Bagal, ]
age 29 years, having address at 'Digvijay',
ig ]
Vidyanagar, Karmala, Dist.Solapur 413203 ]..... Applicant.
In the matter between
Rashmi Digambar Bagal, ]
age 29 years, having address at 'Digvijay', ]
Vidyanagar, Karmala, Dist.Solapur 413203 ]..... Petitioner
versus
1] The Maharashtra Election Commission ]
Mantralaya, Mumbai 400 032 ]
]
2] The Chief Electoral Officer, ]
General Administration Department, ]
th
5 floor, Mantralaya, Mumbai 400 032 ]
]
3] Mr. Avinash R Hadgal, ]
The Returning Officer, 244 Karmala ]
Assembly Constituency, Karmala, Solapur]
]
4] Election Commission of India ]
having its office at Nirvachan Sadan ]
Ashoka Road, New Delhi 110001 ]
]
5] The District Collector and District ]
Election Officer, Collector Office, ]
Solapur. ]
lgc 3 of 53
::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:56:34 :::
aep-5.16&aepl-11.16
6] Narayan Govindrao Patil ]
age 43 years, having address at Jeur, ]
Taluka Karmala, Dist. Solapur. ]
]
7] State of Maharashtra, Through The Chief ]
Secretary, Through the office of the ]
Government Pleader, Original Side, High ]
Court, Bombay. ]
]
8] Kamble Roheedas Rajaram ]
At post Shetfal, Taluka Karmala, ]
Dist. Solapur ]
]
9] Jaywantrao Namdevrao Jagtap ]
Satwai Farm House, Nagar Tembhurni ]
Bypass Road, Taluka Karmala, Dist.
ig ]
Solapur 413202 ]
]
10] Jaleendar Gokool Jadhav ]
Rambhapura, Taluka Karmala ]
Dist. Solapur ]
]
11] Bhise Hanuman Kisan ]
At Pondhwadee Post Vihal, ]
Taluka Karmala, Dist. Solapur ]
]
12] Shinde Sanjay Vithalrao ]
At Post Nimgaon (Te), Taluka Madha ]
Dist. Solapur 413210 ]
]
13] Santosh Laxman Salunkhe ]
At Satoli Post Upalwate, Taluka Karmala ]
Dist. Solapur ]
]
14] Parmeshwar Dattatray Talekar ]
At Post Kem, Taluka Karmala Dist.Solapur]
]
15] Rahul Bapurao Deshmukh ]
At Post Wangi No.2 Taluka Karmala ]
Dist. Solapur ]
]
16] Shahu Shamrav Fartade ]
At Post Hivare, Taluka Karmala ]
Dist. Solapur ]
lgc 4 of 53
::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:56:34 :::
aep-5.16&aepl-11.16
]
17] Shinde Sanjay Namdev, ]
At Post Pothare, Taluka Karmala ]
Dist.Solapur. ]
]
18] Sanjay Mahadev Shinde ]
At Post Jategaon, Taluka Karmala ]
Dist. Solapur. ]
]..... Respondents
19] Sanjay Limbraj Shinde ](Resp. nos.1-5 and 7
At Post Khambewadi, Taluka Karmala ]have been deleted by
Dist. Solapur. ]order dated 10.3.2016)
Mr. V P Sawant a/w Mr. Prabhakar M Jadhav, Ms. Tanaya Patankar and Mr.
Veerdhaval Kakade for the Applicant in Application No.5 of 2016 i.e. the
original Respondent No.6 in Election Petition.
Mr. A Y Sakhare, Senior Advocate, a/w Mr. J J Carlos for the Applicant in
Application (L) No.11 of 2016 i.e. the original Petitioner in Election
Petition.
CORAM : R. M. SAVANT, J.
Reserved on : 19th August 2016
Pronounced on : 21st September 2016
JUDGMENT :-
1 The above Application No.5 of 2016 has been filed by the
Respondent No.6 to the above Election Petition who is the returned candidate
for dismissal of the above Election Petition being No.4 of 2014 filed by Rashmi
Digambar Bagal - the Election Petitioner, challenging his election.
2 The election in question is to the 244 Karmala Assembly
Constituency. The elections to the Maharashtra Legislative Assembly were held
on 15/10/2014 and the Election Petitioner and the Respondent No.6 were the
lgc 5 of 53
aep-5.16&aepl-11.16
candidates who had contested the election to the said 244 Karmala
Constituency amongst other candidates. The Respondent No.6 i.e. the
Applicant in Application No.5 of 2016 was declared elected having secured
60674 votes whereas the Election Petitioner had secured 60417 votes. It is not
necessary to refer to the votes secured by other candidates for the purposes of
the present adjudication.
3 The election of the Respondent No.6 has been challenged
principally on the ground of violation of the Rules relating to the counting of
the postal ballots and especially the postal ballots numbering 788 as also on
the ground that a corrupt practice was committed in respect of the said 788
votes by the Returning Officer, colluding and conniving with the Respondent
No.6 herein. In terms of the affidavit filed in support of the allegations of
corrupt practice, the averments made in respect thereof are in paragraphs
2(m), 2(n), 2(p), 3(xix) to 3(xxiii). In so far as paragraphs 2(m), 2(n) and
2(p) are concerned, they contain narration of facts. The allegations relating to
the corrupt practice are more particularly comprised in paragraphs 3(xix) to
3(xxiii). The said paragraphs 3(xix) to 3(xxiii) for the sake of ready reference
are reproduced hereunder :-
"(xix) It is submitted that the Returning Officer
Respondent no.3 being aware of the small margin of
votes which would be deciding factor has intentionally
and with malafide motive rejected the said postal votes
on arbitrary and perverse reason with a view to help
the Respondent no.6. It is submitted that as stated
lgc 6 of 53
aep-5.16&aepl-11.16
above out of the total 1565 postal ballots 776 ballots
(+1 as NOTA) were taken up and counted as valid
votes whereas 788 ballots were kept separately at 7.45
am and even though the said 776 ballots were counted
yet the Returning Officer and his staff had maintained
conspicuous silence as to why the said 788 postal
ballots (PBs) were not being counted, inspite of an oral
objection of the Petitioners counting agent that the
remaining 788 postal votes ought to be counted but
however the election official kept postponing the
counting of said 788 PBs the counting from the
electronic voting machine EVM had started. It is
submitted that the such an act of delaying the result of
the postal ballot and proceeding with the EVM
counting itself is against the CE rules 1961, as rule 54 A
clearly states,
"54A (1) The returning officer shall first
deal with the postal ballot papers in the
manner hereinafter provided.....................
54A(11) The returning office shall count
all the valid votes given by postal ballot in
favour of each candidates, record the total
thereof in the result sheet in Form 20 and
announce the same."
(xx) It is therefore submitted that the entire process of
counting of PB's was carried out in a manner contrary
to the law and it was only by 1.45 pm that after the 21 st
round of counting when it was clear that the result
would be a close call as the contest between the
Petitioner who was leading and the respondent no.6
was of a small margin of votes that the Returning
Officer declared the said 788 PB's as invalid and
rejected the same.
(xxi) It pertinent to note that the manner in which the
788 PBs were kept aside without rejected them or
without even giving the result as per Rule 54 A (12) it
is a definite conclusion that the said express rules were
being violated to ensure that the PBs should be rejected
so that the Resp. no.6 benefits in violation of S 100 &
S123 of RP Act.
lgc 7 of 53
aep-5.16&aepl-11.16
(xxii) It is pertinent to note that the counting of the
PBs and declaring the said result before counting the
regular ballots was mandatory and non observance
mandatory and statutory rules clearly vitiates the entire
rejection on PBs and is conclusive evidence of malafide
on part of the Returning Officer.
(xxiii) It is pertinent to note that the Returning Officer
has connived with the winning candidate to ensure the
defeat of the Petitioner by keeping aside these postal
votes and thus, has acted for the candidate respondent
no.6 against the law and in breach of official duty as
stated in section 134 of the RP Act, 1951 and thus there
was a clear conspiracy between the Respondent no.6
and the Returning Officer to ensure the defeat of the
Petitioner and thus the Respondent no.6 and the
Returning Officer indulged in corrupt practice."
4 The instant Application No.5 of 2016 has been filed by the
Respondent No.6 for the following reliefs :-
(a) That this Hon'ble Court be pleased to dismiss the
above Election Petition at the threshold for non-
compliance with the provision of the
Representation of People Act, 1961 and Rules
framed thereunder;
(b) That this Hon'ble Court be pleased to strike out
paragraphs 3(xxi) and (xxiii) of the Election
Petition.
The Application is founded on the following grounds :-
i] That the concise statement of facts annexed to the Election Petition
is not as per the requirement of law. The Election Petitioner has
not verified the concise statement of facts annexed to the Election
lgc 8 of 53
aep-5.16&aepl-11.16
Petition and therefore there is no concise statement of facts as
mandated by law, and therefore, the Election Petitioner has not
complied with the provisions of the Representation of People Act.
ii] In the affidavit filed in support of the allegations of corrupt
practice as required under Rule 94A and as prescribed in Form 25
of the Conduct of Elections Rules, 1961 the Election Petitioner has
not pleaded the material facts and particulars either in the Petition
or in the affidavit, and the Petition does not disclose with any
clarity, the materials on the basis of which the allegations are made
thereby causing prejudice to the Respondent No.6 in dealing with
the said statements.
iii] The Election Petitioner has failed to verify the translations annexed
to the Election Petition. The Election Petitioner has not mentioned
whether the translation is an official translation or only an office
translation. The translation at page 148 of the Election Petition is
also incomplete on account of which the Respondent No.6 is
prejudiced in dealing with the same.
iv] The annexures to the Petition have not been verified as required by
law. The Election Petitioner has only annexed a separate sheet
lgc 9 of 53
aep-5.16&aepl-11.16
bearing the verification after the annexures and not at the foot of
each annexure. The same amounts to only a formality being
completed as there is no reference to the exhibit. The same
therefore amounts to violation of the mandatory provisions being
Sections 81 and 83 of the Representation of People Act.
v] The Election Petitioner has also failed to annex a true and correct
copy of the alleged written objection as claimed to be filed by her
with the Returning Officer. The copy annexed at Exhibit M shows
that it is not a copy of the written objection claimed to be filed by
the Election Petitioner with the Returning Officer. The said Exhibit
M is addressed to the Observer. The Election Petitioner therefore
has failed to supply a true and correct copy of the alleged written
objection filed by the Election Petitioner with the Returning
Officer. The Election Petition bears the list of documents at page 54
of the Petition. There is no averment in the Petition in respect of
this annexure. This has resulted in causing prejudice to the
Respondent No.6 as he is unable to effectively dealt with the said
annexure.
5 In so far as the above Application No.5 of 2016 filed by the
Respondent No.6 is concerned, the Election Petitioner has filed her reply to the
lgc 10 of 53
aep-5.16&aepl-11.16
said Application. The sum and substance of the case of the Election Petitioner
in the said reply is as under :-
a] That the objections raised by the Respondent No.6 in the said
Application No.5 of 2016 are frivolous.
b] That in so far as the concise statement is concerned, the facts
comprised in the concise statement are also part of the Election
Petition which has been solemnly affirmed and verified and there
is also an affidavit in support of the Petition which very clearly
states at paragraph 2 that the statement of facts be considered to
be a part of the Petition. Hence there is a compliance of Section 83
of the Representation of the People Act.
c] That the material particulars as regards the corrupt practice
committed by the Respondent No.6 have been elaborately stated in
the Election Petition and therefore the Election Petitioner had
fulfilled the requirements of the Act and Rules in so far as the
material facts relating to the corrupt practice are concerned.
d] That in so far as Exhibit M is concerned, even if the correct copy of
the said Exhibit M has not been annexed, the same would not
lgc 11 of 53
aep-5.16&aepl-11.16
amount to violation of any mandatory provision of filing of the
Election Petition but is a curable defect.
Hence the sum and substance of the case of the Election Petitioner
in the said affidavit in reply is that she has complied with the provisions of
Sections 81 and 83 of the Representation of the People Act (for brevity's sake
hereinafter referred to as "the R.P. Act") in the matter of filing of the Election
Petition and that the objections raised by the Respondent No.6 are frivolous. It
is also the case of the Election Petitioner that the defects if any are curable and
that they do not warrant dismissal of the Election Petition at the threshold.
6 In so far as Application (L) No.11 of 2016 is concerned, the same
has been filed by the Election Petitioner for curing the defects in the Election
Petition and thereby seeking amendments to the Election Petition which
Application has been filed during the course of hearing of the above
Application No.5 of 2016. The reliefs sought in the said Application (L) No.11
of 2016 filed by the Election Petitioner are reproduced herein under :-
"(a) That this Hon'ble Court be pleased to permit the
applicant to :
(i) Separately verify the concise statement of facts;
(ii) Carry out amendment to the description of
Exhibit M appearing at all places in the election
petition.
(iii) Annex true translation of the Exhibit M and
lgc 12 of 53
aep-5.16&aepl-11.16
delete the existing translation at page 151 of the
petition;
(iv) Carry out such other and further amendments as
this Hon'ble Court may deem it fit and proper."
7 In so far as Application (L) No.11 of 2016 filed by the Election
Petitioner is concerned, the Respondent No.6 has filed his reply to the said
Application and has opposed the said Application on the ground that the
Election Petitioner cannot be allowed to cure the defects in the Election
Petition at this stage since a right has now accrued in favour of the Respondent
No.6 on account of the said defects.
The sum and substance of the case of the Respondent No.6 in the
affidavit in reply to the Application (L) No.11 of 2016 is that the Election
Petitioner has defended the defects which have been pointed out in the
Application No.5 of 2016 filed by the Respondent No.6 and insists that there
are no defects in the Election Petition and the Election Petition complies with
the provisions of Section 83. The Election Petitioner cannot be allowed to cure
the defects as the defects were pointed out long back in the Written Statement
which was filed by the Respondent No.6 to the Election Petition and that the
instant Application (L) No.11 of 2016 has been filed by the Election Petitioner
during the course of hearing of the Application No.5 of 2016 filed by the
Respondent No.6. That allowing Application (L) No.11 of 2016 filed by the
Election Petitioner would result in the right, if any, which has accrued to the
lgc 13 of 53
aep-5.16&aepl-11.16
Respondent No.6 on account of the said defects, being taken away. That the
defects are not formal in nature but are substantial which go to the root of the
maintainability of the Election Petition.
8 SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.6 BY THE
LEARNED COUNSEL SHRI V.P.SAWANT.
A] That the concise statement of facts having not been verified at all,
the Election Petition suffers from a substantial defect and is
therefore required to be dismissed under Section 86 of the R.P. Act,
read with Order VI Rule 16 or Order VII Rule 11(a) of the Code of
Civil Procedure.
B] That the source of information being not stated in the affidavit
filed in support of the allegations of corrupt practice, the affidavit
filed by the Election Petitioner is not an affidavit as contemplated
by Rule 94A read with Form 25. That the Petition and the said
affidavit lack in material particulars as to the corrupt practice and
therefore the Election Petition as filed is required to be dismissed.
C] That the annexures to the Election Petition are not verified at the
foot of the annexures as required by the Act read with the Civil
Procedure Code. The verification is done on a separate sheet
lgc 14 of 53
aep-5.16&aepl-11.16
without any reference to the Exhibits/Annexures. Hence the
verification is not as per law.
D] The document annexed at Exhibit M is not a document which is
referred to in the body of the Election Petition wherein a reference
is made to the written objection dated 19/10/2014 allegedly filed
by the Election Petitioner with the Returning Officer. The said
document is also not part of the list of documents annexed to the
Election Petition. Out of the documents in the list of documents
Item 13 has not been furnished to the Respondent No.6 thereby
preventing the Respondent No.6 to effectively file a reply to the
same.
E] That the translations annexed to the Election Petition are not
verified. It is also not stated as to whether the translations are the
official translations or office translations thereby the Election
Petitioner has failed to take any responsibility in respect of the said
translations.
F] That inspite of the defects as aforesaid being stated in the written
statement filed by the Respondent No.6 as far back as in July
2015, no steps were taken or attempts were made to cure the
lgc 15 of 53
aep-5.16&aepl-11.16
defects until the Application (L) No.11 of 2016 was filed in July
2016 by the Election Petitioner.
G] That the afore-stated defects being substantial in nature, hence
cannot be allowed to be rectified and cured at this point of time as
the same would result in the right which has accrued in favour of
the Respondent No.6 being taken away.
In support of the aforesaid contentions, the learned counsel
appearing on behalf of the Respondent No.6 Shri V P Sawant relied upon the
following judgments of the Apex Court as well as the learned Single Judges of
this Court.
I] C.P. John vs. Babu M Palissery & ors. reported in (2014) 10 SCC
II] Azhar Hussain vs. Rajiv Gandhi reported in 1986 (Supp) SCC
III] Jaipal Singh vs. Sumitra Mahajan(Smt.) and anr. reported in
(2004) 4 SCC 522
IV] Jagannath Shindu Rahane vs. Manisha Manohar Nimkar
reported in (1996) 5 Bom. CR 451
V] Ram Sukh vs Dinesh Aggarwal reported in (2009) 10 SCC 541
VI] Dhartipakar Madan Lal Agarwal vs Rajiv Gandhi reported in
1987 (supp) SCC 93
VII] Ravinder Singh vs. Janmeja Singh & ors. reported in (2000) 8
SCC 191
lgc 16 of 53
aep-5.16&aepl-11.16
VIII] Gajanan Krishnaji Bapat & Anr. vs. Dattaji Raghobaji Meghe &
ors. Reported in (1995) 5 SCC 347.
IX] R. P. Moidutty vs P. T. Kunju Mohammad & Anr. Reported in
(2000) 1 SCC 481
X] Anant Waman Tare vs Abdul Rehman Abdul Guffur Antulay and
ors. reported in 1996 (98) BLR 684
XI] Ganesh Dadu Shendge vs Dilip Dnyandeo Kamble reported in
2016 SCC Online Bom. 3577.
9 SUBMISSIONS ON BEHALF OF THE ELECTION PETITIONER BY
THE LEARNED SENIOR COUNSEL SHRI A.Y.SAKHARE
i]
That since a concise statement of facts is already appearing in the
Election Petition which has been verified, the non-verification of
the concise statement of facts which is an annexure to the Election
Petition does not violate the mandate of Section 83 of the R.P. Act.
ii] That the allegations of corrupt practice in the instant case are not
the allegations which are based on facts which are complicated. In
the instant case the allegations are in respect of 788 postal ballots
which allegations have also been set out in the memo of the
Election Petition and therefore the non-verification of the concise
statement of facts would have no effect in so far as the
maintainability of the Election Petition is concerned.
iii] That the affidavit in support of the allegations of corrupt practice,
lgc 17 of 53
aep-5.16&aepl-11.16
refers to paragraphs of the Election Petition wherein the averments
relating to corrupt practice are appearing, and therefore, the said
affidavit cannot be said to be an affidavit which is not in
conformity with Rule 94A read with Form 25.
iv] That there is no necessity for the Election Petitioner to state her
source of information as the said aspect is a matter of trial and
therefore not mentioning the source of information cannot make
the affidavit defective.
v] That wrong description of Exhibit M in the memo of Election
Petition cannot be said to be a defect which is of a substantial
nature and in fact is a defect which can be cured.
vi] That incorrect translation annexed in respect of Exhibit M would
also not affect the maintainability of the Election Petition as the
translation is required to be furnished as per the High Court
Original Side Rules and is not a requirement of the R.P. Act. In any
event, the said defect is curable.
vii] That all the defects which are the foundation of the Application
No.5 of 2016 are curable and the Election Petitioner should be
lgc 18 of 53
aep-5.16&aepl-11.16
allowed to cure the said defects by allowing her Application (L)
No.11 o 2016 filed for the said purpose.
On behalf of the Election Petitioner the learned Senior Counsel
Shri A Y Sakhare placed reliance on the following judgments of the Apex
Court:-
a] G.M. Siddheshwar vs Prasanna Kumar reported in (2013) 4
SCC 776
b] F.A. Sapa and ors. Reported in (1991) 3 SCC 375
c] Chandrakant Uttam Chodankar v/s. Dayanand Rayu
Mandrakar and ors. Reported in (2005) 2 SCC 188
10 Reference to the judgments cited (supra) by the learned counsel
for the parties would be made a bit later. However, it would be necessary at
this stage to refer to the relevant provisions of the R P Act. The said provisions
are Section 81, 83, 86 of the R.P. Act, 1951 and Rule 94A of the Conduct of
Elections Rules, 1961 and the same are reproduced hereunder for the sake of
ready reference.
81. Presentation of petitions :-
(1) An election petition calling in question any
election may be presented on one or more of the
grounds specified in 1[sub-section (1)] of section
100 and section 101 to the 3[High Court] by any
candidate at such election or any elector 6[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
lgc 19 of 53
aep-5.16&aepl-11.16
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.
1[***]
2[(3) Every election petition shall be accompanied
by as many copies thereof as there are respondents
mentioned in the petition 6[***] and every such
copy shall be attested by the petitioner under his
own signature to be a true copy of the petition.]
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:
2[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.]
lgc 20 of 53
aep-5.16&aepl-11.16
(2) Any schedule or annexure to the petition shall
also be signed by the petitioner and verified in the
same manner as the petition.
86. Trial of election petitions.--
(1) The High Court shall dismiss an election
petition which does not comply with the provisions
of section 81 or section 82 or section 117.
Explanation.--An order of the High Court
dismissing an election petition under this sub-
section shall be deemed to be an order made under
clause (a) of section 98.
(2) As soon as may be after an election petition has
been presented to the High Court, it shall be
referred to the Judge or one of the Judges who has
or have been assigned by the Chief Justice for the
trial of election petitions under sub-section (2) of
section 80A.
(3) Where more election petitions than one are
presented to the High Court in respect of the same
election, all of them shall be referred for trial to the
same Judge who may, in his discretion, try them
separately or in one or more groups.
(4) Any candidate not already a respondent shall,
upon application made by him to the High Court
within fourteen days from the date of
commencement of the trial and subject to any order
as to security for costs which may be made by the
High Court, be entitled to be joined as a
respondent.
Explanation.--For the purposes of this sub-section
and of section 97, the trial of a petition shall be
deemed to commence on the date fixed for the
respondents to appear before the High Court and
answer the claim or claims made in the petition.
lgc 21 of 53
aep-5.16&aepl-11.16
(5) The High Court may, upon such terms as to
costs and otherwise as it may deem fit, allow the
particulars of any corrupt practice 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.
(6) The trial of an election petition shall, so far as is
practicable consistently with the interests of justice
in respect of the trial, be continued from day to day
until its conclusion, unless the High Court finds the
adjournment of the trial beyond the following day
to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as
expeditiously as possible and endeavour shall be
made to conclude the trial within six months from
the date on which the election petition is presented
to the High Court for trial.
94A - Form of affidavit to be filed with election
petition - The affidavit referred to in the proviso to
sub-section (1) of section 83 shall be sworn before
a magistrate of the first class or a notary or a
commissioner of oaths and shall be Form 25."
11 A reference could now be made to the judgments cited on
behalf of the Applicant - Respondent No.6.
(i) In C.P.John's case (supra), the Apex Court having regard to
Section 83 of the R.P. Act has held that an election petition should
lgc 22 of 53
aep-5.16&aepl-11.16
contain a concise statement of material facts which an election petitioner
relies upon. The said material facts should be stated in a concise form.
Under Section 83(1) it is obligatory on the election Petitioner to set forth
full particulars of any corrupt practice which is alleged by him. In other
words, the particulars relating to corrupt practice should not be lacking
in any respect. One who reads the averments relating to corrupt practice
should be in a position to gather every minute detail about the alleged
corrupt practice such as the names of the persons, the nature of the
alleged corrupt practice indulged in by such person or persons, the place,
the date, the time and every other detail relating to the alleged corrupt
practice.
In the filing of an election petition challenging the successful
election of a candidate, the election petitioner should take extra care and
leave no room for doubt, while making any allegation of corrupt practice
indulged in by the successful candidate and that he cannot be later on
heard to state that the allegations were generally spoken to or as
discussed sporadically and on that basis the petition came to be filed. It
was held by the Apex Court that unless and until the election petitioner
comes forward with a definite plea of his case that the allegation of
corrupt practice is supported by legally acceptable material evidence
lgc 23 of 53
aep-5.16&aepl-11.16
without an iota of doubt as to such allegation, the election petition
cannot be entertained and will have to be rejected at the threshold.
In the context of the present Application No.5 of 2016 what is
required to be noted is that the Apex Court in the said case held that
when the mandatory requirement of the pleadings as stipulated under
Section 83(1) of the R.P. Act and its proviso was brought to the notice of
the Appellant as well as to the Court and when a specific application was
filed for rejecting the election petition for want of particulars and if the
election petitioner chose not to cure the defects and instead that his
election petition can be proceeded with keeping the material defects on
record, he cannot later on be heard to state that at any later point of time
he must be given an opportunity to set right the defects.
(ii) In Azhar Hussain's case (supra) it was held by the Apex
Court that an election petition can be dismissed for non-compliance of
the provisions of Section 83 of the R.P. Act i.e. failure to plead material
facts relating to the alleged corrupt practice. Since the election petition
has to be tried as nearly as may be in accordance with the procedure
applicable under the Code of Civil Procedure to a trial of a suit, the Court
trying the election petition can act in exercise of the powers conferred by
lgc 24 of 53
aep-5.16&aepl-11.16
Order VI Rule 16 or Order VII Rule 11A of the Code, and dismiss the
election petition. It was held that the election petition without material
facts relating to corrupt practice is not an election petition in the eye of
law.
(iii) In Jaipal Singh's case (supra) the Apex Court has held that
material facts have to be pleaded and verified in the manner laid down in
the Code of Civil Procedure. The failure to plead material facts results in
the dismissal of the election petition.
(iv) In Jagannath Shindu Rahane's case (supra), a learned Single
Judge of this Court has held that the election petition can be dismissed
for non-compliance in the matter of verfication as required under Section
83 of the R.P. Act.
(v) In Anant Waman Tare's case (supra) a learned Single Judge
of this Court has held that non-supply of a true copy of the affidavit filed
by the petitioner to the Respondent and if the said copy suffers from
material defects as to the name and designation of the affirming
authority, the said document would not be a true copy and hence there
would be non-compliance of Section 83 of the R.P. Act.
lgc 25 of 53
aep-5.16&aepl-11.16
It is further held that the concise statement of facts is an
integral part of the election petition. It is required to be verified in the
manner laid down in the Code of Civil Procedure for verification of
pleadings. The election petition is required to be dismissed if there is
non-compliance of Section 83 of the R.P. Act.
(vi) In Ram Sukh's case (supra) the Apex Court, relying upon the
judgment in Azhar Hussain's case has held that all the facts which are
essential to clothe the petition with complete cause of action must be
pleaded and omission of even a single material fact would amount to
disobedience of the mandate of Section 83(1)(a) of the Act and an
election petition can be and must be dismissed if it suffers from any such
vice, though Section 83 is not mentioned in Section 86 of the R.P. Act.
(vii) In Dhartipakar Madan Lal Agarwal's case (supra), it was
held by the Apex Court that the allegations of corrupt practice are in the
nature of criminal charges. It is necessary that there should be no
vagueness in the allegations so that the returned candidate may know the
case he has to meet. If the allegations are vague and general and the
particulars of corrupt practice are not stated in the pleadings, the trial of
lgc 26 of 53
aep-5.16&aepl-11.16
the election petition cannot be proceeded for want of cause of action. The
Court is required to scrutinize the pleadings relating to corrupt practice
in a strict manner. The pleadings are regulated by Section 83 and it
makes it obligatory on the election petitioner to give exactitude. If the
election petition fails to make out a ground under Section 100 of the Act,
it must fail at the threshold.
(viii) In Ravinder Singh's case (supra) the Apex Court has held
that the election petition levelling a charge of corrupt practice is required
by law, to be supported by an affidavit in which the election petitioner is
obliged to disclose his source of information in respect of the commission
of that corrupt practice. The rationale behind this is that it is necessary
for an election petitioner to make such a charge with full responsibility
and to prevent any fishing and roving inquiry and save the returned
candidate from being taken by surprise. In the absence of proper affidavit
in the prescribed form to support the corrupt practice, the allegation
pertaining thereto could not be put to trial. The defect is of a fatal
nature.
(ix) In R.P. Moidutty's case (supra) the Apex Court has held that
requirement of verification of an election petition is to clearly fix the
lgc 27 of 53
aep-5.16&aepl-11.16
responsibility for the averments and allegations in the petition on the
person signing the verification and, at the same time, discouraging wild
and irresponsible allegations unsupported by facts. It is held that the
defect of verification is not fatal to the petition, it can be cured. It is held
that unless the defect in verification was rectified, the petition could not
have been tried. It is further held that for want of affidavit in the
required form and also for lack of particulars, the allegations of corrupt
practice could not have been enquired into and tried at all. The Apex
Court in the said case wherein the defects were pointed out, but the
Petitioner insisted for proceeding with the matter, held that the said case
was a fit case where the petition should have been rejected at the
threshold for non-compliance with the mandatory provisions of law as to
pleadings as also for non-compliance of Rule 94A read with Form 25 in so
far as the affidavit is concerned.
(x) In Gajanan Krishnaji Bapat's case (supra) it is held by the
Apex Court that a petition levelling a charge of corrupt practice is
required, by law, to be supported by an affidavit and the election
petitioner is also obliged to disclose his source of information in respect
of the commission of the corrupt practice. It is reiterated in the said
Judgment the reason behind it is to bind the election petitioner to the
lgc 28 of 53
aep-5.16&aepl-11.16
charge levelled by him and to prevent any fishing or roving enquiry and
to prevent the returned candidate from being taken by a surprise. In the
said judgment the judgment of the Apex Court in F.A.Sapa's case has
been considered.
(xi) In Ganesh Dadu Shendge' case (supra) a learned Single
Judge of this Court has held that since the election petitioner has not
given full and complete material facts and the material particulars
relating to the corrupt practice, the same amounts to an incomplete cause
of action and makes the petition liable for dismissal. In the said
judgment the learned Single Judge has referred to judgment of the Apex
Court in the matter of Jeet Mohinder Singh v/s. Harminder Singh
Jassi, reported in (1999) 9 SCC 386 in which judgment the Apex Court
has referred to its judgment in the matter of L.R. Shivaramagowda and
others v/s. T M Chandrashekhar (Dead) by LRs and others reported in
(1999) 1 SCC 666.
12 Now reference to the judgments cited on behalf of the
Election Petitioner would have to be made.
(a) In F A Sapa's case (supra) the Apex Court has held that the
lgc 29 of 53
aep-5.16&aepl-11.16
defect in the verification can be allowed to be cured if it is formal in
nature and not very substantial and is capable of being cured.
In so far as whether in the affidavit in support of the
allegations of corrupt practice the source of information is required to be
given it was held that the failure to disclose the source of information is
not fatal to the election petition. It was concluded by the Apex Court that
even though a defective verification can be cured and the failure to
disclose the grounds or source of information may not be fatal, failure to
place them on record with promptitude may lead the court in a given
case to doubt the veracity of the evidence ultimately tendered. An
exception was however carved out to the extent that if the affidavit of the
schedule or annexure forms an integral part of the election petition itself
then strict compliance of the provisions could be insisted upon.
(b) In G.M. Siddeshwar's case (supra), the dismissal of the
petition was sought on the ground that the petitioner had not filed an
additional affidavit as required by Order VI Rule 15(4) of the Code of
Civil Procedure in support of the election petition, that the affidavit filed
by the election petitioner was not in the format (Form 25) prescribed by
Rule 94A of the Conduct of Election Rules, 1961, that the said affidavit
lgc 30 of 53
aep-5.16&aepl-11.16
did not furnish the material particulars on the basis of which allegations
of corrupt practice were made and that the verification was defective.
The High Court rejected the aforesaid contentions on the basis of which
the dismissal of the election petition was sought, the matter was carried
to the Apex Court. Since there was a divergence of views of two benches
of the Apex Court on the said issue, the two judge bench of the Apex
Court before whom the SLP came up for hearing directed the matter to
be placed before a larger bench of the Apex Court. The matter was
accordingly heard by a three judge bench of the Apex Court.
The larger bench of the Apex Court held that there is no
mandate in the R.P. Act that it is imperative for the election petitioner to
file an affidavit in terms of Order VI Rule 15(4) of the Code of Civil
Procedure in support of the averments made in the election petition in
addition to an affidavit as required to be filed by the proviso to Section
83(1) of the R.P. Act. The larger bench of the Apex Court accordingly
overruled the judgment of the two judge bench in P.A. Mohammed
Riyas v/s. M.K. Raghavan & ors. on the said point. The larger bench
held that a composite affidavit filed in support of the election petition
and corrupt practice satisfies the requirement of law.
lgc 31 of 53
aep-5.16&aepl-11.16
In so far as the ground regarding the affidavit not being in the
format is concerned, it was held that though the affidavit is not in
absolute compliance with Form 25, there was substantial compliance. As
regards verification it was held that though the verification was defective,
it was curable. It was held that if there is a substantial compliance with
the statutory form of the affidavit, the election petition cannot be
summarily dismissed on the said ground. Hence the issue before the
Apex Court was whether two affidavits were required to be filed one in
support of the Petition and one in support of the allegations of corrupt
practice. In the facts of the said case the Apex Court held that there was
substantial compliance and therefore the election petition could not be
dismissed.
Hence the principle underlined was if there is a substantial
compliance and if the defects are curable, then the petition cannot be
dismissed at the threshold and an opportunity to cure the defects is
required to be granted.
(c) In Chandrakant Uttam Chodankar's case (supra) the dismissal
of the election petition was sought on the ground of non-compliance of
Section 81(3) in the matter of non-service of the true copies of the
election petition on the Respondent after limitation for filing of the
lgc 32 of 53
aep-5.16&aepl-11.16
election petition had expired. The dismissal of the election petition was
also sought on the ground that the verification in the election petition
was not in terms of the requirement of law. The Apex Court held that
the bar of limitation shall apply to the filing of the copies of the election
petition and not serving the copies on the Respondent. In the said case
the Apex Court held that the copies had been filed in the Registry within
limitation. The Apex Court further held that in the light of the note of
the Registry of the High Court in the said case the requisite number of
copies had been filed and it could not be held that there was non-
compliance of Section 81(3).
In so far as verification is concerned, the Apex Court held that
the verification in the election petition can be defective but that cannot
be said to be fatal to the maintainability of the petition.
13 The statutory provisions which are in contention in the
instant adjudication have already been reproduced herein above. In so
far as Section 81 of the R.P. Act is concerned, it prescribes the manner in
which the election petition calling in question an election is to be
presented. In so far as Section 83 (1)(a) is concerned, it prescribes the
contents of the election petition and in the context of the present
adjudication the requirement is that the election petition shall contain a
lgc 33 of 53
aep-5.16&aepl-11.16
concise statement of the material facts on which the Petitioner relies. In
terms of Section 83(1)(b) the election petitioner is obliged to set forth
full particulars of any corrupt practice that he alleges including a
statement 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 In terms of Section 83(1)(c) the requirement is that the election
petition shall be signed by the petitioner and verified in the manner laid
down in the Code of Civil Procedure for the verification of pleadings.
Sub-section (2) of Section 83 prescribes that any schedule or annexure to
the petition shall also be signed by the petitioner and verified in the same
manner as the petition.
Now coming to Section 86 of the R.P.Act, it provides for the
dismissal of an election petition which does not comply with the
provisions of Section 81 or Section 82 or Section 117.
As indicated above, Section 83(1)(a) obligates upon the
election petitioner to concisely set out the entire bundle of facts which
constitutes a complete cause of action. In terms of Section 83(1)(b) the
election petitioner is required to set forth full particulars of any corrupt
practice alleged by him against the returned candidate. Then Section
lgc 34 of 53
aep-5.16&aepl-11.16
83(1)(c) requires verification in the manner as laid down by Order VI
Rule 15(4) of the Code of Civil Procedure. The object of requiring
verification of an election petition is clearly to fix the responsibility for
the averments and allegations in the petition on the person signing the
verification and, at the same time, discouraging wild and irresponsible
allegations being made which are unsupported by facts. Under Section
83(2) any schedule or annexure to the pleadings must also be verified.
The object behind verifying the schedule and annexures is the same as
the object behind the verification of the petition viz. to fix the
responsibility on the petitioner in respect of the said schedule or
annexures.
In so far as the allegations relating to the commission of
corrupt practice is concerned, at the cost of repetition it is required to be
stated that they are to be sufficiently clear and stated precisely so as to
afford the person charged a full opportunity of meeting the same. The
election petitioner is therefore required to set forth full particulars of any
corrupt practice including as far as possible a full statement 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.
lgc 35 of 53
aep-5.16&aepl-11.16
It is also trite by the judgments of the Apex Court that if there
is total and complete non-compliance of the provisions of Section 83 of
the R.P. Act, then the petition cannot be described as an election petition
and can be dismissed at the threshold [See the judgment of the Apex
Court in G.M.Siddheshwar's case (supra)]. This is on the basis that
though there is no mention of Section 83 in Section 86 of the R.P. Act, the
powers under Order VI Rule 16 or Order VII Rule 11 of the Code of Civil
Procedure for dismissal of the petition can be exercised. It is in the back
ground of the aforesaid legal position that the grounds urged on behalf of
the Applicant - Respondent No.6 for dismissal of the above Election
Petition would have to be considered.
14 The first ground is that the concise statement of facts which is
annexed to the Election Petition has not been verified. The importance of
verification has been succinctly stated by the Apex Court as well as by the
learned Single Judges of this Court in the judgments cited (supra).
In the instant case the Election Petitioner has chosen to
separately annex a concise statement of facts to the Election Petition as
an Annexure. This would necessarily imply that the Election Petitioner
relies upon the said concise statement of facts in support of her
lgc 36 of 53
aep-5.16&aepl-11.16
allegations of corrupt practice against the Respondent No.6. Once
having chosen to file a separate concise statement of facts, which is an
annexure to the Election Petition, then it was incumbent on the Election
Petitioner to satisfy the mandate of Section 83(2) of the R.P.Act. The
concise statement of facts was therefore required to be verified in the
manner required. However, the concise statement of facts has admittedly
not been verified, and therefore, one of the reliefs sought in the
Application (L) No.11 of 2016 filed by the Election Petitioner is that he
should be allowed to cure the said defect. In so far as non-verification of
the concise statement is concerned, the learned Senior Counsel Shri A Y
Sakhare appearing for the Election Petitioner sought to extricate the
Election Petitioner from the said situation by contending that since the
Election Petition is verified, the concise statement which is a part of the
Election Petition and contains the same facts as contained in the Election
Petition need not be verified. The said submission though looks attractive
cannot be countenanced in the light of the statutory provisions. In the
instant case the concise statement of facts is not pari-materia to the
Petition. As indicated above, the underlying principle for verification of
an Election Petition, annexure or schedule is that the responsibility for
the same is to be fixed on the person who verifies the said document so
that the same discourages wild and irresponsible allegations and thereby
lgc 37 of 53
aep-5.16&aepl-11.16
a fishing and roving inquiry is avoided. The idea undoubtedly seems to
be that an elected candidate is not unnecessarily vexed. The instant case
is not a case where there is a defect in the verification but is a case where
the concise statement has not been verified at all and since the same is a
substantial defect the same goes to the root of the matter as regards
maintainability of the Election Petition, the above Election Petition can
therefore be said to be a Petition which is not an Election Petition in the
eyes of law.
15 The next ground namely that the Election Petitioner has not
pleaded material facts and particulars either in the Petition or in the
affidavit and that the affidavit filed in support of the allegations of
corrupt practice is not in terms of Rule 94A of the Conduct of Elections
Rules 1961 and as prescribed in Form 25. In so far as the said ground is
concerned, it is well settled by the judgments of the Apex Court that the
Election Petitioner must set forth all material facts and particulars which
constitutes the cause of action for him to file the Petition. Absence of
even a single fact would impinge upon the cause of action and would
result in the Election Petition being dismissed. (See Azhar Hussain's
case and Dhartipakar's case (supra)).
lgc 38 of 53
aep-5.16&aepl-11.16
In the context of the legal position as enunciated by the Apex
Court, that the averments made in the Petition will have to be
considered. As indicated above the averments relating to the corrupt
practice are more particularly comprised in Paragraphs 3(xix), 3(xx),
3(xxi), 3(xxii) and 3(xxiii). The said paragraphs have already been
extracted in the earlier part of this Judgment.
(a) In so far as paragraph 3(xix) is concerned, it is stated that the
Returning Officer being aware of the small margin of votes which would
be deciding factor has intentionally and with malafide motive rejected
the said postal votes on arbitrary and perverse reason with a view to help
the Respondent No.6. A reading of the said paragraph therefore discloses
that no particulars as to the basis on which the conclusion of the
Returning Officer acting intentionally and with malafide motive has been
arrived at are mentioned, nor any reason as to why the Returning Officer
conducted himself in the manner as alleged by the Election Petitioner has
been stated. The said ground is therefore based on conjectures and
surmises without there being any facts or particulars, either in the
Election Petition or in the Affidavit in Support of the corrupt practice,
which would constitute a case for an enquiry being caused.
lgc 39 of 53
aep-5.16&aepl-11.16
(b) Now coming to paragraph 3(xx). On what basis the
conclusion has been arrived at, that the Returning Officer declared the
said 788 postal ballots as invalid, when it was clear that the context
between the Election Petitioner, who was leading, and the Respondent
No.6 was of a small margin of votes, has not been stated.
(c) Now coming to paragraph 3(xxi). It is stated that the
Conduct of Elections Rules were being violated to ensure that the postal
ballots should be rejected so that the Respondent No.6 benefits. It is not
stated as to on what basis the said conclusion has been arrived at by the
Election Petitioner, no particulars have been mentioned in that regard.
(d) Now coming to paragraph 3(xxii). It is stated that the action
of the Returning Officer was malafide. On what basis the conclusion
that the said action of the Returning Officer was malafide, according to
the Election Petitioner, has not been stated.
(e) Now coming to paragraph 3(xxiii). It is stated in the said
paragraph that there was conspiracy between the Respondent No.6 and
the Returning Officer to ensure the defeat of the Election Petitioner. No
particulars of the alleged conspiracy is mentioned and only a bald
lgc 40 of 53
aep-5.16&aepl-11.16
statement is made that there was a conspiracy between the Respondent
No.6 and the Returning Officer.
Hence the allegations in respect of the corrupt practice as set
out in the afore-stated paragraphs are far from proving that there was
any consent or connivance of the returned candidate for the manner in
which the Returning Officer conducted himself, are in fact based on
conjectures and surmises, and can be said to be speculative in nature.
The said averments therefore do not meet the requirements for an
enquiry to be conducted in respect of the same. The maintainability of
the Election Petition is therefore affected.
16 In so far as the affidavit is concerned, the Election Petitioner
alleging a corrupt practice is required to file an affidavit in support of the
allegations thereof. The said Affidavit has to be in terms of Rule 94A and
in Form 25. In the instant case, the Election Petitioner has filed such an
affidavit. The question is whether the said affidavit meets the
requirements of the statutory provisions. In the said affidavit a reference
is made to certain paragraphs of the Petition wherein the allegations of
corrupt practice are appearing, especially paragraphs 3(xix) to 3(xxiii) of
the Petition. In so far as the allegations of corrupt practice are
lgc 41 of 53
aep-5.16&aepl-11.16
concerned, the Election Petitioner in terms of the legal position emerging
out of the judgments of the Apex Court is required to set forth full
particulars of any corrupt practice including as full a statement as
possible of the names of the parties alleged to have committed such
corrupt practice, the date and place of such corrupt practice in
sufficiently clear terms and precisely so as to afford the person charged a
full opportunity of meeting the same. In the instant case, how sub-
paragraphs (xix) to (xxiii) of paragraph 3 of the Election Petition are
lacking in details has already been observed herein-above. Since in the
affidavit in support of the allegations of corrupt practice reference is
made to paragraphs 3(xix) to (xxiii), consequently the affidavit in
support of the allegations of corrupt practice also suffers from the vice of
lack of particulars. It would therefore have to be held that the allegations
made in the Petition are vague and based on surmises and conjectures.
In so far as the affidavit is concerned, the same may be in
Form 25 but the question is not of form but of substance. Though the
Election Petitioner has based her allegations on the source of information
which he believes to be true he has not chosen to disclose her source of
information. The same therefore causes prejudice to the Respondent
No.6 who is required to meet with the said allegations. The judgment of
lgc 42 of 53
aep-5.16&aepl-11.16
the Apex Court in F.A. Sapa's case (supra) would not aid the Election
Petitioner to get over the absence of the source of information being
stated, as the Apex Court in the subsequent judgment in Gajanan
Krishnaji Bapat's case (supra) has whilst dealing with the said aspect
impressed upon the need of setting out the source of information in the
affidavit and held that the absence of the source of information in the
affidavit makes the affidavit defective. A three judge bench of the Apex
Court in L.R. Shivaramagowda's case (supra) held that the affidavit
accompany the Election Petition alleging corrupt practice must disclose
the source of information and clearly state which allegations are based on
personal knowledge and which on information received otherwise the
affidavit cannot be held to be inconformity with Form 25 prescribed
under Rule 94A.
Thereafter another three judge bench of the Apex Court in
Jeet Mohinder Singh's case (supra) whilst setting out the contents of the
election petition its forms and documents to be amended in the context
of Sections 81(3) and 83 of the R.P. Act and Rule 94A and Form 25 of the
Conduct of Elections Rules, 1961 has referred to the judgment of the
Apex Court in Gajanan Krishnaji Bapat's case (supra). The Apex Court
by referring to the judgment in Gajanan Krishnaji Bapat's case (supra)
lgc 43 of 53
aep-5.16&aepl-11.16
held that the election petitioner is obliged to disclose his source of
information in respect of the commission of the corrupt practice so as to
bind him to make such a charge with full responsibility and to prevent
any fishing and roving inquiry and save the returned candidate from
being taken by surprise. In all the 3 judgments i.e. Gajanan Krishnaji
Bapat's case (supra), L.R.Shivaramagowda's case (supra) and Jeet
Mohinder Singh's case (supra), the judgment of the Apex Court in F.A.
Sapa's case (supra) has been referred. Hence the position that emerges is
that it is consistently held by the Apex Court that the source of
information is required to be stated in the affidavit as otherwise the
affidavit is defective. In the said context Paragraph 2 of the said Affidavit
wherein paragraphs of the Election Petition comprising the averments
made in respect of the corrupt practice have been referred to is relevant
and is reproduced herein under :-
"2. That the statement made in paragraphs nos
2(m), 2(n), 2(p), 3(xix), 3(xx), 3(xxi), 3(xxii),
3(xxiii) of the said election petition about the
commission of the corrupt practice of the Returning
Office conniving with the Respondent no.6 for
malafide motives and the particulars of such
corrupt practice mentioned in paragraph 2(m),
2(n), 2(p), 3(xix), 3(xx), 3(xxi), 3(xxii), 3(xxiii) of
the same petition and in petition are true to my
information."
Hence the allegations made in the said paragraphs of the Election
lgc 44 of 53
aep-5.16&aepl-11.16
Petition are said to be true to the information of the Election Petitioner.
The said paragraph does not give the source of information nor do the
other paragraphs in the affidavit.
Hence in the absence of the source of information being
stated, the affidavit which is filed in support of the allegations of corrupt
practice is not in terms of the requirements of law and since the affidavit
is filed in support of the allegations of corrupt practice, the affidavit does
not meet the requirements of Section 83 of the R. P. Act and therefore the
objections of the Respondent No.6 on the said ground would have to be
sustained.
17 In so far as the ground of the Election Petitioner having failed
to verify the translation annexed to the Petition is concerned, it is the
requirement of the High Court Original Side Rules that the translation of
the documents on which the Election Petitioner relies and which are
annexed to the Petition has to be provided. In the instant case though
the translations are provided and annexed to the Petition, it is not
mentioned on the translation whether the translation is a official
translation or office translation. This was required to be stated by the
Election Petitioner, as he would be relying upon the said translations and
lgc 45 of 53
aep-5.16&aepl-11.16
also for the Respondent No.6 to know as he would be required to deal
with the documents in question. It appears that the translation of Exhibit
M at page 151 is also not of the said Exhibit M thereby causing prejudice
to the Respondent No.6 in the matter of effectively dealing with the said
document. Non-verification of the translation in the context of the
verification of the original annexure in vernacular may however amount
to a formal defect, however, the fact that it is not stated either in the
Petition or on the document whether the translation is an official
translation or office translation as also the translation of Exhibit M being
not of the said document, the said defect can be said to be a defect which
adds up to the defects which are already there in the Petition and which
have been dealt with in the earlier part of this Judgment and which
impinges upon the maintainability of the Petition.
18 In so far as the ground of the annexures being not verified as
required by law, in the instant case, the annexures have been verified by
a verification which is on a separate paper. Though the verification is on
a separate paper, the said verification mentions the exhibit number which
is verified and therefore though the verification is not at the bottom of
the annexures, the same in my view, satisfies the requirement of law and
cannot be said to be a defect which warrants the dismissal of the Petition.
lgc 46 of 53
aep-5.16&aepl-11.16
19 Now coming to the next ground of the Election Petitioner
having failed to annex a true and correct copy of the alleged written
objection dated 19/10/2014 which the Election Petitioner claims she
addressed to the Returning Officer as also the translation annexed being
not of the said document. It is required to be noted that the document
annexed to the Election Petition is addressed to the Observer whereas the
averments in the Petition relate to a document i.e. the complaint
allegedly addressed by the Election Petitioner to the Returning Officer. In
the Conduct of the Election Rules the Observers have a different role to
play than the Returning Officer as can be seen from the definition of the
term "Observer" in the Conduct of Elections Rules, 1961. The Complaint
to the Returning Officer and the reference to it in the Election Petition is
a fact which the Election Petitioner has stated in the course of making the
allegations of corrupt practice against the Respondent No.6.
20 In so far as the said alleged complaint is concerned, in
paragraph 2(p) of the Election Petition it is stated that the Election
Petitioner's counting agent immediately filed a written objection with the
Returning Officer who was pleased to reject the same. Thereafter in
paragraph 2(q) which is the next paragraph it is stated that on being
lgc 47 of 53
aep-5.16&aepl-11.16
informed by her counting agent the Petitioner herself filed a written
objection on 19/10/2014 with the Returning Officer stating that the
declaration of postal ballot papers were validly attested and they ought to
be counted. However, what is annexed at Exhibit-M is a document which
is addressed to the Observer.
21 The document in question is therefore sought to be relied
upon in support of the allegations of corrupt practice. It is trite that an
Election Petitioner is required to state precisely and with sufficient clarity
all facts which according to him constitute the corrupt practice.
22 The Election Petitioner now wants to change her case that she
had filed the objection with the Observer and not with the Returning
Officer. The Election Petitioner also wants to annex a correct translation
of the said document. The question is whether she can now be permitted
to amend the Election Petition to carry out the said correction. Since the
discrepancy between the averments and the document annexed impinges
upon the compliance of Section 83 of the R.P. Act, such a correction
cannot be permitted, having regard to the fact that the said document
relates to a bundle of facts on which the allegations of corrupt practice
are founded.
lgc 48 of 53
aep-5.16&aepl-11.16
23 The attempt of the Election Petitioner to get over the said fact
by contending that the same is a mistake and therefore a formal defect
which is curable in my view is over simplifying the issue. Reliance placed
by the learned Senior Counsel appearing on behalf of the Election
Petitioner on the judgment of G.M.Siddheshwar's case (supra) is mis-
placed as in the facts of the said case the Apex Court held that there was
substantial compliance and the defects, if any, were curable. However at
the same time the Apex Court observed that if there is a total and
complete non-compliance of the provisions of Section 83, then the
Petition can be dismissed at the threshold. The judgment in
G.M.Siddheshwar's case (supra) therefore cannot be read to mean that
the defects relatable to Section 83 of the R.P. Act are curable and no
election petition can be dismissed for non-compliance of Section 83.
Hence the judgment in G.M.Siddheshwar's case (supra) would not aid
the Election Petitioner to contend that the defects in the instant case are
curable and the Election Petitioner should be allowed to carry out the
necessary corrections.
24 The objection raised on the said ground does not rest there.
In so far as the translation of the said document is concerned, the
lgc 49 of 53
aep-5.16&aepl-11.16
translation annexed is of some other and different document. Hence
apart from wrongly describing the document in the Election Petition, a
translation has been annexed which is not of the said document but of
some other document. The translation not being of a document which is
a part of a bundle of facts on which the allegation of corrupt practice is
founded. The said defect amounts to a substantial defect and cannot be
overlooked as being of a formal nature. The said defect being of a
substantial nature therefore cannot be allowed to be cured. The
submission of the learned Senior Counsel appearing for the Election
Petitioner that the requirement of providing the translation of a
document is not a requirement under the R.P. Act but is a requirement
under the High Court Original Side Rules and the Petition therefore
cannot be dismissed on the said ground cannot be accepted. Though
undoubtedly the requirement of providing a translation is under the High
Court Original Side Rules, the same impinges upon the filing of the
Petition. Since the document relates to a fact upon which the Election
Petitioner seeks to rely upon in support of the allegations of corrupt
practice, the translation cannot be allowed to be replaced by the
translation of the correct document as allowing the same would result in
the Election Petitioner being allowed to amend the Petition after the
limitation period is long over. The contention of the learned Senior
lgc 50 of 53
aep-5.16&aepl-11.16
Counsel for the Election Petitioner that the objection relating to the
translation having not been raised in the Application No.5 of 2016 cannot
be allowed to be raised now, also cannot be accepted. Though the
objection has not been specifically raised in the Application No.5 of 2016,
a general objection regarding non-compliance of Section 83 has been
taken in the Application. However, in the Written Statement filed by the
Respondent No.6, the said objection has been taken in paragraph 20 of
the Written Statement, and therefore the Election Petitioner was very
well aware of the same.
25 It is well settled by the judgments of the Apex Court that the
success of a candidate who has won at an election should not be lightly
interfered with. Hence any Petition seeking such interference must
strictly confirm to the requirements of law. In the facts of the present case
on account of the defects as above the Election Petition cannot be said to
confirm to the requirements of law and in fact amounts to there being no
Election Petition in the eyes of law. Hence no enquiry is warranted. The
Election Petition would have to be dismissed at the threshold under
Section 86 of the R.P. Act. For the conclusion, this Court has reached it is
not necessary to consider prayer clause (b) of the said Application No.5
of 2016.
lgc 51 of 53
aep-5.16&aepl-11.16
26 Now coming to Application (L) No.11 of 2016, the same has
been filed by the Election Petitioner for curing the defects in the Election
Petition and thereby seeking amendments in the Election Petition. It is
required to be noted that the Written Statement has been filed by the
Respondent No.6 sometime in July 2015, when some of the objections on
the basis of which Application No.5 of 2016 came to be filed were raised.
Thereafter the Application No.5 of 2016 came to be filed by the
Respondent No.6 on 20/08/2015. Inspite of the same no steps were
taken to cure the defects. The Application (L) No.11 of 2016 was filed by
the Election Petitioner on 20/07/2016, after the Application No.5 of
2016 was substantially heard. Hence this is not a case where on the
defects being pointed out the Election Petitioner took immediate steps to
cure the defects, in fact this is a case where in the reply to the said
Application No.5 of 2016 the Election Petitioner maintained that there
were no defects and proceeded with the hearing of the said Application
No.5 of 2016. Hence on the said ground the Election Petitioner would
not be entitled to any relief in the Application (L) No.11 of 2016.
27 Apart from the afore-stated reasons this Court has reached a
conclusion that the defects are of a substantial nature and cannot be
lgc 52 of 53
aep-5.16&aepl-11.16
allowed to be cured. If the Election Petitioner is allowed to cure the said
defects, it would amount to allowing the Election Petitioner to amend the
Election Petition long after the period of limitation is over. It would also
result in the right which has accrued in favour of the returned candidate
i.e. the Respondent No.6 being taken away.
28 Hence on both the counts no relief can be granted to the
Election Petitioner in Application (L) No.11 of 2016, the same is
accordingly rejected.
29 For the reasons afore-stated Application No.5 of 2016 is
required to be allowed and is accordingly allowed in terms of prayer
clause (a). Resultantly, the Election Petition No.4 of 2014 is dismissed
under Section 86 of the R.P. Act.
[R.M.SAVANT, J]
lgc 53 of 53
