Bombay High Court
Vinod Ramchandra Ghosalkar vs Manisha Ashok Chaudhary on 7 July, 2017
Bench: G.S. Patel
Vinod Ramchandra Ghosalkar v Manisha Ashok Chaudhary
904-EP26-14-J.doc
Shephali
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ELECTION PETITION NO. 26 OF 2014
Vinod Ramchandra Ghosalkar
Adult, Indian Inhabitant,
Residing at 401 Kumar Kunj, Daulat Nagar
Road No. 9, Borivali (East),
Mumbai 400 066 ... Petitioner
~ versus ~
Manisha Ashok Chaudhary
Adult, Indian Inhabitant,
Residing at 602, Guruvihar, D. N. Mhatre
Road, Aksar, Borivali (West),
Mumbai 400 092 ... Respondent
A PPEARANCES
FOR THE PETITIONER Mr BD Joshi, Advocate.
FOR THE RESPONDENT Mr Mukesh Vashi, Senior Advocate,
i/b Amarendra Mishra.
CORAM : G.S.Patel, J.
DATED : 7th July 2017
ORAL JUDGMENT:
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1. The Petitioner ("Ghosalkar") and the Respondent
("Manisha Chaudhary") were both candidates from Assembly
Constituency No. 153, viz., the Dahisar Assembly Constituency, for
the elections of the Maharashtra Legislative Assembly held on 15th
October 2014. Ghosalkar was the Shiv Sena candidate. Manisha
Chaudhary was the Bharatiya Janata Party ("BJP") candidate.
2. The election results were declared on 19th October 2014.
Ghosalkar lost to Manisha Chaudhary. She secured 77,238 votes
against his 38,660 votes. She was thus declared elected from the
Dahisar Constituency.
3. The present Petition was filed on 3rd December 2014, with
Ghosalkar alleging electoral malpractice by Manisha Chaudhary.
4. Today's order addresses preliminary issues.
5. Before issues were framed, however, on 9th August 2016, I
disposed of an application filed by Manisha Chaudhary under Order
VII Rule 11 of the Code of Civil Procedure 1908 ("CPC"). That
application was on the basis that the Petition disclosed no cause of
action. After hearing both sides at length, I dismissed that
application. I am informed that a Special Leave Petition was also
dismissed.
6. On 16th September 2016, I permitted an amendment to the
Written Statement filed by Manisha Chaudhary. I also framed seven
issues thus:
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Sr.No. ISSUES
1. Whether the Respondent proves that the Election Petition is
liable to be dismissed on account that Exhibit "B" to the
Petition as filed is illegible?
2. Whether the Respondent proves that the Election Petition is
liable to be dismissed because Form No. 25 read with Rule
94(A) annexed to the Petition is not in the prescribed form?
3. Whether the Respondent proves that the Petition is filed is
barred by limitation for the reasons alleged in paragraphs 6B
and 6C of the amended Written Statement?
4. Does the Petitioner prove that the Nomination Form of the
Respondent was improperly accepted and not in the manner
contemplated under Section 100(1)(d)(i) of the Representation
of the Peoples Act?
5. Does the Petitioner proves that the Respondent had not
complied with the Rules and Orders made under the R. P. Act
as contemplated under Section 100(1)(d)(iv)?
6. Does the Petitioner proves that the Respondent has
committed a corrupt practice as defined in Section 100(1)(b)
read with Section 123(1)(A) of the Representation of the People
Act and as alleged by the Petitioner in paragraphs 13, 14 and
15 of the Petition?
7. What relief and what order?
7. It was agreed on 4th October 2016 that Issues Nos. 1, 2 and 3
set out above would be considered and treated as preliminary issues.
Mr Vashi for Manisha Chaudhary led evidence on these issues.
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Manisha Chaudhary filed an Evidence Affidavit and was cross-
examined on 1st December 2016. An officer of the Court Mr SS
Agate, Master and Assistant Prothonotary was also asked to give
evidence. Mr SS Agate gave evidence on 23rd January 2017.
8. Mr Vashi fairly concedes that he is unable to substantiate or
support his case on Issues Nos. 2 and 3 as preliminary objections; he
does not now press those. Issue No.3 is one of limitation and it is
now settled that once taken, that kind of issue cannot be
'withdrawn' or 'not pressed'. It must be decided. I have considered
the material on record and, in particular, the date of filing and the
evidence of Mr Agate. From this it is clear that the petition was
brought within the period of 45 days of the date of election, the
period prescribed in Section 81 of the Representation of People Act,
1951 ("RP Act"). There is no evidence that it was not filed on 3rd
December 2014. The Petition is, therefore, within time.
9. Mr Vashi presses his case on Issue No. 1 as preliminary issue.
This relates to whether Exhibit "B" to the Petition was 'illegible'.
Mr Vashi explains this to mean that if that exhibit is found to be
illegible, then depending on how the Petition is framed several
consequences might follow. One of these requires its dismissal.
Exhibit "B" to the Petition is a copy of Manisha Chaudhary's
affidavit in Form 26 under Rule 4A. It is an affidavit in a standard
form. All candidates are required to file such an affidavit. I
understood Mr Vashi's submission to be this: If the affidavit is
merely the piece of evidence, the substance of it or an extract of it
being set out in the body of the Petition and the alleged electoral
malpractice in respect of that document also being set out in the
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Petition, then the legibility or illegibility of the annexure, at best
then merely evidence, would be inconsequential. If. on the other
hand, the averments in the Petition were insufficient to return a
finding in favour of the Petitioner without a close study of the
annexure at Exhibit "B", and this annexure was to be found illegible,
then the Petition was fatally flawed; a dismissal must follow.
10. First, therefore, to the averments in the Petition in regard to
this document. The substance of the case is that in one particular
portion of the affidavit, part A5(ii)(b), Manisha Chaudhary did not
disclose the 'description of the offence' against her. This, according
to Mr Joshi for Ghosalkar, constitutes a fatal flaw in the disclosure
required, and is sufficient to have the election set aside.
11. Paragraphs 5 to 10 of the Petition are the heart of this:
"5. The Petitioner states that he is preferring the
present election petition challenging the Election of the
Respondent as member of Maharashtra Legislative
Assembly on the ground that the nomination Form of the
Respondent was improperly accepted by the Returning
Officer and the Election of the Respondent is void due to
non compliance of the provisions of the Constitution of
India, the Representations of Peoples Act, 1951 as well as
Rules and orders framed under the said Act. The Petitioner
is also challenging the Election of the Respondent on the
ground that she has committed corrupt practice under
Section 100(1)(b) read with 123(1) of the Representation of
Peoples Act, 1951.
6. The Petitioner states that as per the order of the
Hon'ble Supreme Court of India and as per the orders
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issued by the Election Commissioner of India under Article
324 of the Constitution of India and under the
Representations of Peoples Act every contesting candidate
was required to furnish information with regard to the
Criminal Cases which are pending against the contesting
candidate in which charges have been framed by the Court
of an offence punishable with imprisonment for two years
or more. The Contesting candidate is also required to
furnish information in respect of criminal cases which are
pending against him/her where the offences are
punishable with imprisonment for less than two years. The
Petitioner submits that the contesting candidate was also
required to state on affidavit whether he/she has been
convicted or have not been convicted for any offences
other than referred to hereinabove. The contesting
candidate was also required to state on Affidavit whether
he/she was sentenced to imprisonment in any criminal
case for a period of one year or more. The Petitioner
submits that the contesting candidate is required to state
on affidavit the criminal case Number, the Sections of the
Indian Penal Code under which the said contesting
candidate has been prosecuted, the Court where the said
case is pending, whether the said court has taken
cognizance of the said offence and if taken the date of
taking cognizance should be stated. The Contesting
candidate was also required to state about the
description of the Criminal case pending and/or
decided by competent court. The Petitioner further
submits that the candidates were directed to furnish
such information on duly sworn affidavit with full and
complete information in the format specified by the
Election Commission of India and the said affidavit was
mandatorily required to be filled along with the
nomination papers. The Petitioner further submits that
non-furnishing of such information is to result in
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incomplete information or suppression of material
information which would result in Rejection of the
nomination Form of such contesting candidate as a
defect of substantial character.
7. The Petitioner states that pursuant to the said
statutory/Mandatory directions/ orders of the Election
Commission of India the Respondent filed affidavit dated
27.09.2014 U/Rule 4A of giving details about the Criminal
Cases which are pending against Respondent, regarding
details about the offences pending against her which are
punishable for more than one year and above
imprisonment and which are punishable for the less than
one year imprisonment. The said Affidavit has been
downloaded from website ceo.maharashtra.gov.in. 1 The
true copy of the affidavit dated 27.09.2014 filed by the
Respondent along with her nomination Form is annexed
hereto and marked as Exhibit "B".
8. The Petitioner submits that the Respondent has not
declared full and correct information in respect of criminal
cases pending against her and as a matter of fact the
Respondent has suppressed detail information and/or
description of Criminal Cases pending against her from
the Mandatory affidavit filed along with the nomination
papers. The Returning officer accepted Respondent's
incomplete affidavit without raising objection and/or
instructing her to complete the column especially part
A5(ii)(b) which states that in the mandatory affidavit
the details of the cases where the court has taken
cognizance, sections of the Act and description of the
offences for which cognizance taken. The Petitioner
submits that the description of the offence is not stated
by the Respondent in the mandatory affidavit filed
along with the nomination paper which is contrary to
1 Handwritten insertion in the original petition.
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the mandatory provisions of the law and the affidavit
filed by the Respondent is defective, incorrect on the
face of the record and therefore the Returning officer
ought to have rejected the nomination Forms of the
Respondent herein. Thus, the Respondent has patently
and blatantly violated the mandatory statutory
directions issued by the Election Commission of India
under Article 324 of the Constitution of India. The
Petitioner states that the Respondent had not disclosed
the said information which has resulted in a
disinformation, misinformation or wrong information
about Criminal Cases filed against the Respondent and
further mandatory description of the said cases have
also not been stated on affidavit by the Respondent and
thus the voters who were entitled and had a right to
know the full details or the antecedents of the
Respondent were deprived of this information which
definitely had a significance relevance and bearing
under law. The Petitioner further states that pursuant to
the newly added section 33A of the Representation of
Peoples Act, consequent upon the amendment of 2002 of
the RPA, a candidate standing for election was required to
give the specified information set out in the said section
along with his nomination Form. This relates to disclosing
inter alia whether he is accused of any offence punishable
with imprisonment for two years or more in appending
cases in which a charge has been framed or cognizance
has been taken by a court of competent jurisdiction,
whether or not he has been convicted of any offence there
under and whether or not he has been sentenced to
imprisonment for one year or more. Further, under the
aforesaid section, the candidate standing for election is
required to swear an affidavit verifying the information
given as required which the Returning officer is required to
display at a conspicuous place in his office by affixing a
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copy of the affidavit of the Contesting Candidate for the
information of the electors of the said constituency. The
Petitioner states that as per the Order/direction issued by
the Election Commission of India the candidates standing
for Election were to furnish information in respect of such
offences under and affidavit. Non furnishing of such
information on Affidavit was to result in incomplete
information or suppression of material information would
also result in rejection of the nomination form as a defect of
substantial character. The Petitioner submits that the
Nomination Form of the Respondent was wrongly
accepted since the said Mandatory information regarding
Criminal cases was not stated by the Respondent on
Affidavit and therefore the said defect was of substantial
character and the Returning officer thus wrongly accepted
the nomination Form of the Respondent which was
incomplete, and there was suppression of material
information and thus the said affidavit was faulty/defective
affidavit and was no affidavit in the eyes of law and has
resulted into improper acceptance of the nomination Form
of the Respondent.
9. The Petitioner states that by such improper
acceptance of the nomination Form of the respondent, the
result of the election has been materially affected. The
Petitioner further submits that if the nomination form of the
Respondent would have been rejected on the ground of
defective affidavit the Petitioner could have definitely
succeeded in the Election in question. The affidavit filed
by the Respondent along with the nomination form
suffers from the substantive defect of non disclosure of
Criminal cases and furthermore the description of the
offences wherein the Respondent is accused. The
affidavits with incomplete information, and without
disclosing all the Criminal Cases and the description of the
offences wherein she is accused of, is as such an
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incomplete/defective affidavit and is merely a farce of filing
an affidavit and is no affidavit in the eyes of law. The said
affidavit is not according to the mandate of the law
and/or the order issued by the Election Commission of
India which is founded on the law declared by the Apex
Court. The Petitioner states that as affidavit filed by the
Respondent along with the nomination form suffered
from the substantive defect of non disclosure or
concealment of the complete and correct information
about criminal cases pending against the Respondent
was improperly accepted within the meaning of section
100 (1)(d)(i) of the Representation of People Act 1951. It is
further submitted that the election of the Respondent was
void on account of non compliance and/or violation of the
order /directions issued by the Election Commissioner of
India under Article 324 of the Constitution of India.
10. The Petitioner states that there was/is a substantive
defect in the affidavit and therefore it is necessary follows
that it was the case of improper acceptance of the
nomination form of the Respondent as the same was
deficient in respect of substantive matters in the affidavit
which forms integral part of the nomination form. The
affidavit was/is not a truthful affidavit and was not in
conformity with directions/orders issued by the Election
Commission of India which itself was founded on the law
declared by the Apex Court. IN other words, it is a case of
non compliance of the order of the Election Commission of
India issued under Article 324 of the Constitution of India."
(Emphasis added)
12. There is another malpractice alleged as well, but. for the
purposes of the present issue today, we are not concerned with that
second charge.
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13. Now as to the Affidavit itself and its legibility. The document
annexed to the main Petition filed in the Court is indeed illegible.
There can be no two views on this. In his evidence, Mr Agate
specifically deposed that he objected to the legibility of Exhibit "B".
He pointed this out to Mr Joshi, who then told him that the copy
annexed to the Petition was downloaded from the Election
Commission Website. Mr Agate confirmed that this was the only
objection he had to the Petition. He also said that when he raised the
objection, Mr Joshi inserted a hand written endorsement in
paragraph 7 (noted above) in these terms.
"the said Affidavit has been downloaded from the website,
ceo.maharashtra.gov.in"
This hand written endorsement is very much there in the original
Petition filed in Court.
14. In his evidence, in response to a question that I put to him,
Mr Agate confirmed that this endorsement was in the body of the
Petition and he identified the endorsement in question. He also
reconfirmed that his objection was to the legibility of Exhibit "B".
15. Today, Mr Joshi submits that there is now available a certified
copy of the Affidavit. It is a copy certified by the Election
Commission's Office. It is completely legible. He has given a copy to
Mr Vashi. That is irrelevant in my view. It is also irrelevant that
Manisha Chaudhary has filed a Written Statement and even
amended it.
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16. Mr Vashi's submission does not relate to any of this but is
based on a reading of Sections 81, 83 and 86 of the RP Act, which
read thus:
"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 3[sub-section (1)] of
section 100 and section 101 to the 4[High Court] by any
candidate at such election or any elector 5[within forty-five
days from, but not earlier than the date of election of the
returned candidate, or if there are more than one returned
candidate at the election and the dates of their election are
different, the later of those two dates]
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.
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.
(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.
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(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.
(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."
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17. Mr Vashi submits that the decision in Sahodrabai Rai v
Ramsing Aharwar & Ors2 tells us that where an Election Petition is
not accompanied by the necessary annexures, the Election Petition
is liable to be dismissed. In Sahodrabai, the question was about a
pamphlet, a copy of which was not annexed to the Election Petition.
In paragraph 12, the Supreme Court said:
"12. We may now see whether the election law provides
anything different. The only provision to which our
attention has been drawn is sub-s. (3) of Section 81and
sub-s. (2) of Section 83. The first provides that every
election petition shall be accompanied by as many copies
thereof as there are respondents mentioned in the petition
and that every such copy shall be an authenticated true
copy. The words used here are only "the election petition".
There is no mention of any document accompanying the
election petition. If the matter stood with only this sub-
section there would be no doubt that what was intended to
be served is only a copy of the election petition proper.
Assistance is however taken from the provisions of sub-s.
(2) of Section 83 which provides that any schedule or any
annexure to the petition shall also be signed by the
petitioner and verified in the same manner as the petition.
It is contended that since the pamphlet was an annexure to
the petition it was not only necessary to sign and verify it,
but that it should have been treated as a part of the
election petition itself and a copy served upon the
respondents. In this way, non-compliance with the
provisions of Section 86(1) is made out. In our opinion, this
is too strict a reading of the provisions. We have already
pointed out that Section 81(3) speaks only of the election
petition. Pausing here, we would say that since the
election petition itself reproduced the whole of the
2 (1968) 3 SCR 13.
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pamphlet in a translation in English, it could be said
that the averments with regard to the pamphlet were
themselves a part of the petition and therefore the
pamphlet was served upon the respondents although in
a translation and not in original. Even if this be not the
case, we are quite clear that sub-s. (2) of Section 83 has
reference not to a document which is produced as
evidence of the averments of the election petition but to
averments of the election petition which are put, not in
the election petition but in the accompanying
schedules or annexures. We can give quite a number of
examples from which it would be apparent that many of
the averments of the election petition are capable of
being put as schedules or annexures. For examples, the
details of the corrupt practice there in the former days
used to be set out separately in the schedules and
which may, in some cases, be so done even after the
amendment of the present law. Similarly, details of the
averments too compendious for being included in the
election petition may be set out in the schedules or
annexures to the election petition. The law then
requires that even though they are outside the election
petition, they must be signed and verified, but such
annexures or schedules are then treated as integrated
with the election petition and copies of them must be
served on the respondent if the requirement regarding
service of the election petition is to be wholly complied
with. But what we have said here does not apply to
documents which are merely evidence in the case but
which for reasons of clarity and to lend force to the
petition are not kept back but produced or filed with the
election petitions. They are in no sense an integral part
of the averments of the petition but are only evidence of
those averments and in proof thereof. The pamphlet
therefore must be treated as a document and not as a part
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of the election petition in so far as averments are
concerned. When the election petitioner said that it was to
be treated as part of her election petition she was merely
indicating that it was not to be thought that she had not
produced the document in time. She was insisting upon
the document remaining with the petition so that it could
be available whenever the question of the election petition
or its contents arose. It would be stretching the words of
sub-Section (2) of Section 83 too far to think that every
document produced as evidence in the election petition
becomes a part of the election petition proper. In this
particular case we do not think that the pamphlet could be
so treated. We are, therefore, of the opinion that whether or
not Section 86(1) is mandatory or directory there was no
breach of the provisions of the Representation of the
People Act in regard to the filing of the election or the
service of the copies thereof and the order under appeal
was therefore erroneous."
(Emphasis added)
18. Mr Vashi then relies on the decision of the Supreme Court in
M Karunanidhi vs Dr HV Hande & Ors3 to say that this law is now so
well settled that it admits of no dispute. In Karunanidhi the question
was whether the Election Petition was liable to dismissed at the
threshold for non-compliance inter alia because the Petition was not
accompanied by a copy of a photograph or the original photograph
of any one of the several "fancy banners" that were said to
constitute a corrupt election practice. The case there was the
successful candidate had secured the election by putting up
expensive banners, the cost of each of which was significant, and the
cost of all of which put together far exceeded the permissible
3 (1983) 2 SCC 473.
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expenditure by an electoral candidate. This aspect is of some
importance, because the charge against the electoral candidate was
in respect of banners, not a document personally signed by the
candidate himself. As we shall see this will be a determinative factor.
In paragraphs 27 and 28 of Karunanidhi, the Supreme Court said:
"27. The remaining part of the case is not free from
difficulty. There are two questions that arise, namely: (1)
Whether the photograph referred to in paragraph 18(b)
was a schedule or annexure within the meaning of sub-
Section (2) of Section 83 and therefore formed an integral
part of the election petition and thus the failure to furnish
the appellant with a copy of the photograph along with a
copy of the election petition amounted to a non-
compliance of sub-Section (3) of Section 81 (2) Whether
the High Court was right in relying upon the decision of
this Court in Sahodrabai Rai v. Ram Singh Aharwar(1) in
holding that the photograph was merely a document filed
along with the election petition as a piece of evidence in
proof of the allegation contained in paragraph 18(b) and
therefore there was no need for the respondent to supply
the appellant with a copy of the photograph.
28. To bring out the points in controversy, the
averments in paragraph 18(b) may be set out:
"18. The Petitioner submits that the first
Respondent is guilty of the corrupt practice
under Section 123(6) of the Act by incurring
and authorising expenditure in excess of the
limit of Rs. 35,000/- fixed under Section 77 of
the Act. The first Respondent has submitted a
statement of election expenses disclosing a
total of Rs. 10,125.75 only. A true photostat
copy of the Return filed by him is filed
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herewith as Annexure-V. He has, however,
failed to disclose the following amount
incurred by him in connection with the
election, between the date of his nomination
and the date of the declaration of the result
thereof.
(b) The first Respondent erected fancy
banners throughout the constituency and the
number of such 654 banners is about 50. A
photograph of one such banner is filed
herewith. The cost of each such banner will
be not less than Rs. 1000. The expenditure
involved in erecting these fifty banners is
about Rs. 50,000. It is submitted that the first
Respondent has incurred the above said
expenditure which added to the amount
disclosed in the Return of Election Expenses
exceeds the amount fixed under Section 77
(3) of the Act thus amounting to a corrupt
practice under Section 123(6) of the Act."
Admittedly, a copy of the photograph was not furnished to
the appellant along with a copy of the election petition. The
averment contained in paragraph 18(b) would be
incomplete without a copy of the photograph being
supplied with a copy of the election petition. The averment
therein is that the appellant committed a corrupt practice
under sub-Section (6) of Section 123 of the Act by incurring
or authorising expenditure in contravention of Section 77. It
is alleged that the appellant had set up fancy banners
throughout the constituency and the number of such
banners was about 50, the cost of each such banner being
not less than Rs. 1000 and therefore the expenditure
involved in erecting these 50 banners was not less than Rs.
50,000/-, but that the appellant had not disclosed the
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amount in the return of the election expenses and thus
committed a corrupt practice under sub-Section (6) of
Section 123 of the Act."
19. Paragraphs 29 to 33 are next relevant:
"29. It is not possible to conceive of the dimension of
the large fancy banner unless one has a look at the
photograph. The photograph filed with the election
petition gives a visual description of the fancy banner,
the cost of which at a mere look would show that the
expenditure in setting up each such banner would be
Rs. 1000 or more. The photograph depicts two election
banners. One of them is a huge fancy banner or a
hoarding on the left side of the road and the other on
the right is a smaller election banner. The fancy banner
depicts two groups, and the appellant is present in both.
On the left hand top there is a large picture of the appellant
with the late Sri Annadurai and at the right hand below
there is a smaller picture of the appellant with Smt. Indira
Gandhi. The fancy banner shown in the photograph
contains an election slogan in Tamil appealing to the
electorate to vote for the appellant. This has been
translated for us into English and it reads: ... ... ...
It is true that paragraph 18(b) must be read in conjunction
with the opening part of paragraph 18. Though the words
"in connection with" do not appear in paragraph 18(b),
these words are there in paragraph 18 and therefore it
must be taken that the fancy banners were set up in
connection with the election. Nevertheless, without being
furnished with a copy of the photograph, the averments
in paragraph 18(b) would be incomplete as regards the
allegation of the corrupt practice committed by the
appellant.
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30. We are driven to this conclusion by the
mandatory requirement of sub-Section (3) of Section 81
of the Act which is in two parts. The first part of sub-
Section (3) of Section 81 provides that every election
petition shall be accompanied by as many copies thereof
as there are respondents mentioned in the petition, and the
second part relates to the manner in which such copy shall
be attested by the petitioner under his own signature to be
a true copy of the petition. It has already been stated that
mandatory provisions must be fulfilled exactly whereas it is
sufficient if directory provisions are substantially fulfilled. In
Ch. Subbarao v. Member, Election Tribunal, Hyderabad, (1)
this Court held that (1) if there is a total and complete non-
compliance of the provisions of sub-s.(3) of Section 81 the
election petition might not be "an election petition
presented in accordance with the provisions of this Part"
within the meaning of Section 80 of the Act, and (2) by the
expression "copy" in sub- Section (3) of Section 81, it was
meant not an exact copy but only one so true that nobody
can possibly misunderstand it being not the same as the
original. In Ch.Subbarao's case, supra, there was no
attestation at the foot of the copies that they were true
copies. It was held that the absence in the copy of a note to
the effect that it was a 'true copy' 656 could not detract the
copy from being a true copy. The facts and circumstances
of the case therefore showed that there had been a
substantial compliance with the requirements of sub-
Section (3) of Section 81 of the Act. The wider question
whether sub- Section (3) of Section 81 or a part thereof is
mandatory or directory was left open. On the facts of that
case the Court held that if there was substantial
compliance with the requirements of sub- Section (3) of
Section 81, the election petition could not be dismissed.
31. It was submitted on behalf of the appellant that
there was total and complete non-compliance of the
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requirements of sub- Section (3) of Section 81 and
therefore the election petition was liable to be dismissed in
limine under sub- Section (1) of Section 86. The argument
to the contrary advanced on behalf of the respondent was
that the photograph filed along with the election petition
had to be treated as a document in proof of the allegations
contained in paragraph 18(b) and not as a part of the
election petition. The submission is that there is a
distinction 'between a schedule or annexure to the petition
referred to in sub- Section (2) of Section 83" and "a
document which is merely evidence in the case which is
annexed to the election petition" and to such a document
sub- Section (3) of Section 81 is not attracted.
32. The preliminary issue and the appeal turn on a short
point of construction. The question that arises is whether
the words "copies thereof" in sub- Section (3) of Section 81
comprehend the election petition proper or do they also
include a schedule or annexure annexed thereto. The
controversy whether the photograph was a schedule or
annexure in terms of sub- Section (2) of Section 83 or
merely a document only in proof of the allegations in
paragraph 18(b) must turn on a construction of sub-
Section (3) of Section 81 read with sub-s.(2) of s.83. It
now appears to be well settled by Sahodrabai's case
(supra) that sub- Section (2) of Section 83 applies only
to a schedule or annexure which is an integral part of
the election petition and not to a document which is
produced as evidence of the election petition. In dealing
with sub- Section (2) of Section 83 of the Act it was
observed: ... ... ...
33. The High Court rests its conclusion on the decision
of this Court in Sahodrabai's case, supra, but that decision,
in our opinion, is inapplicable to the facts and
circumstances of the present case. In Sahodrabai's case
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(supra) an election petition was filled together with a
pamphlet as annexure thereto. A translation in English
of the pamphlet was incorporated in the body of the
election petition and it was stated that it formed part of
the petition. A preliminary objection was raised that a
copy of the pamphlet had not been annexed to the copy
of the petition served on the returned candidate and
therefore the election petition was liable to be
dismissed under sub-Section(1) of Section 86 of the
Act. The Madhya Pradesh High Court sustained the
preliminary objection and dismissed the election
petition. On appeal, this Court held that the words used
in sub-Section (1) of Section 81 are only "the election
petition" and there was no mention of documents
accompanying the election petition. Since the election
petition itself reproduced the whole of the pamphlet in
translation 658 in English, it could not be said that the
averments with regard to the pamphlet were
themselves a part of the petition and therefore the
pamphlet had in fact been served on the returned
candidate although in a translation and not in the
original. The Court then stated that even if it were not
so, sub- Section (2) of Section 83 of the Act has
reference not to a document which is produced as
evidence of the averments of the election petition but to
averments of the election petition which are put, not in
the election petition but in the accompanying
schedules or annexures."
(Emphasis added)
20. Referring to Sahodrabai's case the Supreme Court in
Karunanidhi then said that the pamphlet been included a copy of the
Election Petition, the decision in Sahodrabai would have been
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otherwise. In other words, and this is what the Supreme Court said
in paragraph 39 of Karunanidhi:
"39. The test to be applied in determining whether the
photograph referred to in paragraph 18(b) is an integral
part of the election petition or was merely a piece of
evidence in proof of the allegations contained therein,
depends on whether it is a part of the pleadings. Upon
the view that the photograph was not merely a document
accompanying the election petition but was a part and
parcel of the pleading contained in paragraph 18(b), it is
unnecessary for us to deal with the submission based on
order VII, Rule 4 of the Code of Civil Procedure, 1908. Our
attention was drawn to the passage in Sahodrabai's case,
supra, at p.18 of the Report. The Court observed that under
order VII, Rule 14 where a plaintiff sues upon a document in
his possession or power, he is required to file only one
copy of the document and not as many copies as there are
defendants and therefore a copy of the document is not
expected to be deliberate with the copy of the plaint to the
answering defendants when summons is served on them
and that it would be too strict a reading of the provisions of
sub-Section (3) of s.81 and sub-Section (2) of s.83 to lay
down that the election law provides anything different.
These observations cannot, in our opinion, be read out of
context. The decision in Sahodrabai's case, supra, was that
since the election petition itself reproduced the whole
of the pamphlet in a translation in English, the
pamphlet filed along with the petition had to be treated
as a document and not as a part of the election petition
and that being so, the Court observed that it would be
stretching the words of sub-Section (3) of Section 81
and sub-Section (2) of Section 83 too far to think that
every document produced as evidence in the election
petition becomes a part of the election petition proper."
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(Emphasis added)
Since the pamphlet in question in Sahodrabai was bodily
incorporated in the petition, it being missing or unauthenticated as
an annexure was of no consequence. The first sentence of paragraph
41 of Karunanidhi focuses the issue completely:
"41. It is obvious that photograph was a part of the
averment contained in paragraph 18 (b). In the absence
of the photograph the averment contained in paragraph
18 (b) would be incomplete. The photograph referred to
in paragraph 18 (b) was therefore an integral part of the
election petition. It follows that there was total non-
compliance with the requirements of sub-Section (3 of
Section 81 of the Act by failure to serve the appellant
with a copy of the election petition. In Ch. Subbarao's
case, supra, the Court held that if there is a total and
complete non-compliance with the provisions of sub-s. (3)
of Section 81, the election petition could not be treated an
"election petition presented in accordance with the
provisions of this Part" within the meaning of Section 80 of
the Act. Merely alleging that the appellant had put up fancy
banners would be of no avail unless there was a
description of the banner itself together with the slogan."
21. Mr Vashi then turns to the Supreme Court decision in US
Sasidharan v K Karunakaran & Anr4 which is much to the same
effect. It is only necessary to note that in Sasidharan the question
was whether a video cassette formed an integral part of Election
Petition. The Supreme Court said without a copy of the video
cassette the 1st Respondent was in no position to know whether the
4 (1989) 4 SCC 482.
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cassette regarding the speeches of two Government servants could
be said to have been used by the successful candidate to further his
electoral prospects.
22. Finally, Mr Vashi turns to the decision in Manohar Joshi v
Nitin Bhaurao Patil & Anr,5 yet again for the proposition that where
a document is incorporated by reference in the Election Petition
without reproducing its contents in the body of that petition, it
forms an integral part of the petition; if a copy of that document is
not furnished along with the Election Petition, the defect is fatal and
attracts a dismissal of the Petition.6
23. Finally Mr Vashi turns to the decision in Samant N
Balkrishna & Anr v George Fernandes & Ors.7 He relies on paragraph
29 to say that the Petition must contain the entire and complete
cause of action in the shape of material facts, the particulars being
further information to complete the picture. The latter portion of
paragraph 29 is instructive:
5 (1996) 1 SCC 169.
6 For the purposes of this arguments, Mr Vashi treats legibility with the
non-furnishing of a copy. This may not be completely accurate. In one
sense, illegibility is a curable defect. But that in any case, is not the issue
that confronts me.
7 1963 (3) SCC 238.
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"29. ... The power of amendment is given in respect of
particulars but there is a prohibition against an
amendment "which will have the effect of introducing
particulars if a corrupt practice not previously alleged in
the petition." One alleges the corrupt practice in the
material facts and they must show a complete cause of
action. If a petitioner has omitted to allege a corrupt
practice, he cannot be permitted to give particulars of
the corrupt practice. The argument that the latter part of
the fifth sub-section is directory only cannot stand in view
of the contrast in the language of the two parts. The first
part is enabling and the second part creates a positive bar.
Therefore, if a corrupt practice is not alleged, the
particulars cannot be supplied. There is however a
difference of approach between the several corrupt
practices. If for example the charge is bribery of voters
and the particulars give a few instances, other
instances can be added; if the charge is use of vehicles
for free carriage of voters, the particulars of the cars
employed may be amplified. But if the charge is that an
agent did something, it cannot be amplified by giving
particulars of acts on the part of the candidate or vice
versa. In the scheme of election law they are separate
corrupt practices which cannot be said to grow out of
the material facts related to another person.
Publication of false statements by an agent is one
cause of action, publication of false statements, by the
candidate is quite a different cause of action. Such a
cause of action must be alleged in the material facts
before particulars may be given. One cannot under the
cover of particulars of one corrupt practice give
particulars of a new corrupt practice. They constitute
different causes of action."
(Emphasis added)
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24. Mr Joshi for his part relies extensively on a decision of a
learned Single Judge (AM Khanwilkar J, as he then was) in Delkar
Mohanbhai Sanjibhai v Patel Nathubhai Gomanbhai & Ors. 8 This
decision contains an exhaustive review of the authorities and covers
various issues. It specifically deals with the question on illegibility in
paragraph 38. Khanwilkar J held that, following the decision of the
Supreme Court in TM Jacob vs C Poulose & Ors,9 the legislative
intent divides violations into two classes: those violations that would
entail dismissal of the election petition under Section 86(1) such as
non-compliance with Section 81(3), and those violations that only
attracts Section 83(1), i.e. non-compliance with the provisions of
Section 83. It is only violations of Section 81 that attract the
application of the doctrine of substantial compliance. A defect of the
kind found in Section 83 can be dealt with on the doctrine of
curability, on principles analogous to those in the Code of Civil
Procedure 1908. In the words of Khanwilkar J quoting the Supreme
Court:
"it is not as if every minor variation in form, but only a vital
defect in substance which can lead to a finding of non-
compliance with the provisions of Section 81(3) of the Act
with the consequences under Section 86(1) of the Act that
will follow."
25. With this background, the task before me is to see whether on
a fair reading of paragraphs 6 to 10 of this Petition, it could safely be
said there was enough in the body of the Petition for Manisha
Chaudhary to understand precisely the nature of the first charge,
8 2010 (Supp) Bom CR 679.
9 (1999) 4 SCC 274.
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i.e., non-disclosure of the description of the criminal offence in her
statutory Affidavit filed with the Election Commission.
26. There is one material distinction that Mr Vashi's argument
entirely overlooks. In the cases that he cited, the so-called evidence
or annexures -- pamphlets, banners, photographs of banners, audio
cassettes -- were all in a sense 'third party documents', that is to say
not documents of which the Respondent was himself or herself the
author. This is not so in the present case. The reference in the
Petition is to Manisha Chaudhary's own affidavit. It is to the
affidavit that she filed with the Election Commission, and as Mr
Joshi points out, these Affidavits are now immediately uploaded to
the website for all to see. There could be no ambiguity in her or
anybody else's mind as to which affidavit was being referenced.
27. It does not stop at that. It is true that the Petition does not set
out the body of the affidavit but it does focus solely on one
particular portion of that Affidavit, and it identifies that portion
with complete precision: It speaks of, and only of, part A5(ii)(b).
This is how the relevant portion reads:
"5. I am not accused of any offences(s) punishable with
imprisonment for two years or more in a pending cae9s) in
which a charge(s) has/have been framed by the court(s) of
competent jurisdiction.
If the deponent is accused of any such offence(s) he shall
furnish the following information:-
(i) ...
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(ii) The following case(s) is/are pending against me in
which cognizance has been taken by the court [other than
the cases mentioned in item (i) above]-
(a) Name of the Court, Case No. First Class
and date of order taking Magistrate Vasai
cognizance 23/2014
Date 17/04/2014
(b) The details of cases where the Section 37/13 &
Section (s) of the Act(s) and Rasta Roko
description of the offence(s) Andolan
for which cognizance taken Bail Granted
(c) Details of Appeal(s)/ Nil
Application(s) for revision (if
any) filed against the above
order(s)
28. The specific charge is that in this tabulation against row (b),
there is no 'description' of the offence and no one is able to tell what
the involvement of Manisha Chaudhary was in the rasta roko
andolan described there. I am not, of course, at this stage, assessing
the charge on merits. I am only addressing Mr Vashi's preliminary
objection that from the Petition it is not possible to make out what
the electoral malpractice charge was or is in the first place.
29. The portions of the Petition, quoted earlier, show beyond
doubt that Ghosalkar reference could only be to one particular
document -- Manisha Chaudhary's own sworn affidavit -- and to
only portion of it, precisely identified. She could not unaware of its
contents. The charge in the Petition was specifically about non-
disclosure, i.e., about something missing, not about something
impermissible included. Ghosalkar said the Affidavit did not say
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enough; he alleged concealment, not falsehood. The charge is,
therefore, not about what was said, but what was left unsaid and
ought to have been disclosed.
30. There can be no mistaking the nature of the charge and
allegation made in the Petition or where, according to Ghosalkar, it
ought to have been disclosed. There is also no mistaking from the
averments in the Petition the precise nature of the charge: that the
description of the offence was kept out of the so-called disclosure
affidavit, and this was not, therefore, a truthful disclosure in
accordance with the Rules.
31. Again, I am not concerned today with the merits of the
charge. That is not Mr Vashi's case today. His only point is that
without a legible copy of the affidavit annexed, Manisha Chaudhary
could not know the case against her.
32. I do not think this is even remotely correct, and I think it
would be stretching things too far -- as the Supreme Court said --
to hold that she should have been made aware through the annexure
or a reproduction of the Affidavit in the body of the Petition of her
own affidavit filed before the Election Commission. As I have noted
the averments in the Petition are precise enough to highlight the
relevant portion of the Affidavit. They mention what, according to
Ghosalkar, is the electoral malpractice by suppression and non-
disclosure. The document itself is not a third party document that
comes from some other person. Manisha Chaudhary herself is the
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signatory to and the author of the affidavit in question. She could
have been under no misapprehension of the charge against her.
33. There is another reason to reject Mr Vashi's submission. This
is not the only ground in the petition. There is another ground and it
is has nothing at all to do with this affidavit or any part of it. There
can be no question, therefore, of 'dismissing' the petition on this
ground.
34. Indeed, I would go so far as to say that in a case like this, even
if no copy of the affidavit was annexed to the petition at all, it would
make no difference. This is because (a) the affidavit is Manisha
Chaudhary's own document; (b) there is only one such affidavit or
document in existence, and there can be no mistake about its
identity; (c) the portion of the affidavit said to be non-compliant is
very precisely identified; and (d) the petition clearly sets out what is
missing from the identified portion. Ghosalkar could hardly be
expected to supply the missing information himself.
35. If there was any doubt about any of this it is put to rest by
what Manisha Chaudhary herself said in cross-examination. Here
are the relevant questions and answers from her evidence:
3. Q. Are you aware that for an election, after a
candidate submits the completed form and
necessary accompanying documents, before
scrutiny takes place, these are placed on the
notice board outside the office of the Returning
Officer?
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Ans. Yes, that is correct and I am aware of it.
4. Q. Are these documents are displayed on the
website of the Authority that conducts the
election?
Ans. Yes.
... ... ... ...
23. Q. I put it to you that all the allegations of corrupt
practice and material irregularities against you
were made in the Petition itself and that these
were complete in themselves. Do you agree?
Ans. There are allegations in the Petition but they
are not true.
24. To (Shown Petition)
Court: The question to you is whether from the body
of the Petition alone the case of the Petitioner
against you on corrupt practice and material
irregularity was completely set out so that you
understood the charges and case against you?
Ans. Yes.
36. After this, nothing at all remains of the submission that
without a legible copy of her affidavit annexed Manisha Chaudhary
'could not have known or understood' the case against her. She
herself says she did.
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37. There is no substance to the objections taken. Preliminary
Issue No. 1, therefore, is answered in the negative.
38. All three preliminary issues are thus answered in the negative.
39. There will be no order as to costs.
(G.S. PATEL, J.)
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