O.P. Wadhwa vs H.S. Balli
2000 Latest Caselaw 1238 Del

JUDGMENT

Mukul Mudgal, J.

1. This is an election petition, filed by Shri O.P. Wadhwa against the respondent No. 1, Shri Harsharan Singh Balli and after the Order dated 11.2.1999 passed by this Court, deleting the name of the original respondent No. 2, the respondent No. 1 is the sole respondent in this petition.

2. The election petition challenges the election of the respondent No. 1 and seeks the setting aside of the Notification dated 28.11.1998, declaring the respondent to be elected to the Delhi Legislative Assembly from Hari Nagar Constitutency for the 1998 Elections to the Delhi Legislative Assembly, held on 25th November, 1998. The Election Petitioner(hereinafter referred to as the 'petitioner') contested the election on the ticket of the Indian National Congress. The respondent contested the election on the ticket of the Bharatiya Janata Party. The election petition is founded on various corrupt and unfair practices stated to have been practised by the respondent or at his behest by his supporters. For the purpose of the present order, it is not necessary to deal with the corrupt practices averred by the petitioner.

3. On 7th of February, 2000, the counsel for the respondent raised an objection regarding the affidavit in support of the election petition and the manner and method of its filing in this Court. The prayer of the learned Senior Counsel for the respondent, Shri R.P. Bansal, assisted by Shri Pradip Nandrajog was for dismissal of the Election Petition for non-compliance with Section 81 of the Representation of the People Act, 1951(hereinafter referred to as the 'Act') and Election Rules 6 & 8, framed by Delhi High Court vide Notification No. 21, dated 28th of April, 1967. Section 81 of the Act reads as follows:-

"Section 81. Presentation of petition.--(1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section 1 of Section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.

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(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."

4. Consequently this Court passed the following order:-

"Learned counsel for the election petitioner states that he will file an affidavit within a week from today, stating how the petitioner's affidavit dated 12.1.1999, in support of this election petition came to be filed in this Court. Registry to also sent a report as to the exact date of filing of the said affidavit in this Court."

5. Pursuant to the said order the petitioner filed an affidavit dated 23.2.2000 and the registry also sent a report as to the exact date and manner of the filing of this affidavit.

6. The petitioner's affidavit dated 23.2.2000 stated that the election petition was filed personally on 8.1.99 by the petitioner on which date he gave an undertaking to remain present for the scrutiny of the election petition on 11.1.1999 and on 11.1.1999 he appeared in the registry and met the concerned Officer who informed him about the deficiency in the election petition and informed him that the affidavit in the prescribed perform a should be filed. Consequently the affidavit in the prescribed per-forma was got prepared and sworn before the Oath Commissioner on 12.1.1999 and the said affidavit was personally handed over to the concerned official of the Registry on 12.1.1999 who put the same in the file.

7. The report of the registry had been placed on record and reads as follows:-

"Ref. Order dt. 7.2.2000, it is submitted that as per Election Rules 6 and 8, it provided that after the petition is presented the party or advocate shall be asked to attend the office on the third day from the date of the presentation to remove objections, if any. An undertaking in writing will be obtained from the party or advocate to remain present in the office on the date appointed. The petitioner shall furnish his address preferably in Delhi or Simla, as the case may be, where any communication may be addressed to or served on him.

Immediately after the time fixed for the removal of objections has expired, the petition shall be placed before the Court for such orders, as may be required to be passed Under Section 86 of the Act.

Therefore, as per office objection the counsel for the petitioner had given an undertaking on 8-1-99 to the effect that he will remove the objection of the office and will file the necessary affidavit within the stipulated period as provided in the election. The counsel for the petitioner has removed the objection and filed the affidavit on 12-1-99."

This Court on 7th April, 2000 also directed the Deputy Registrar to file a report in respect of the filing of the affidavit dated 12.1.99 in this Court by the petitioner. The said reports of the concerned Dealing Assistant and Shri Vinay Kumar, Deputy Registrar read as under:-

Report of Dealing Assistant

"In compliance with Court's order dated 7.2.2000 and 20.4.2000, it is submitted that Election Petition was filed at the filing counter on 8.1.999. Three days was given by the counter clerk to remove the objections if any after meeting the scrutiny assistant. The Election Petition was given to me on 9.1.99 for scrutiny by the counter clerk.

On 11.1.99 the advocate for the petitioner asked me if there is any objection in the petition. I told the petitioner's counsel that an affidavit in the prescribed form is required. On 12.1.99 counsel for the petitioner handed over to me the required affidavit. This affidavit was taken on record by mistake on 12.1.99 thinking,that it was filed at the filing counter (as a matter of fact the same was not filed at the filing counter but handed over to me straight away).

After completing all the formalities included the required affidavit, the petition was put up before the then Hon'ble Chief Justice on 15.1.99 for nomination of Single Bench. Thereafter, this petition was sent to A.R. (O) fer taking further action.

Submitted please."

Report of the Deputy Registrar

"In pursuance to the Hon'ble Court's order dt. 20.4.2000 it is submitted that after going through the record, I am of the view that the scrutiny assistant should have recorded on the file that the counsel for the petitioner was informed on 11.1.99 to file the proper affidavit as per rules, but instead of recording it he informed him orally which was his mistake.' According to him the affidavit in question was filed on 12.1.99 and the same was tagged on with the file but without having been stamped by the counter clerk. The scrutiny assistant has admitted before me that he thought the same was first filed at the counter and then it was handed over to him by the counsel for the petitioner. In these circumstances, the affidavit was taken on record and thereafter the file was sent to the then Hon'ble the Chief Justice for marking to a particular Hon'ble Judge.

The scrutiny assistant has been warned by me to be more careful in future, particularly while dealing with such type of petitions and has also been directed to record in writing all objections whether material or immaterial.

Inconvenience caused to the Hon'ble Court is regretted."

An affidavit was also filed on 2nd June, 2000 by the respondent in reply to the affidavit dated 23.2.2000, filed by the petitioner and thereafter the reply affidavit was filed by the petitioner in response to the affidavit dated 2.6.2000.

The sum and substance of the respondent's grievance raised in Paragraph 4 of the written statement which is relevant for the present order is in the following terms:-

"4. That the petitioner had presented the present election petition on 8.1.1999 without filing along with it, the requisite affidavit supporting the allegation of corrupt practices. The affidavit filed in support of the allegations of corrupt practices is sworn by the petitioner only on 12.1.1999. Thus, it could have been filed by the petitioner only on 12.1.1999. However, an inspection of the court record of the election petition has revealed that there is no order or noting of the office of this Hon'ble Court stating as to how and when the said affidavit dated 12.1.1999 of the petitioner was placed on record of this case. It is submitted that the petitioner, surreptitiously, has got placed the. said affidavit dated 12.1.1999 on record of the present petition. The said affidavit is a result of tempering with the court record. The same is liable to be removed from the judicial record. The same could not have been filed after the filing of the petition. The requirement of law is to file the affidavit in support of the allegations of corrupt practice along with the election petition. Even the page numbers given to affidavit dated 7.1.1999 are 16A and 17A has deliberately given the continuous page numbers to the said affidavit to convey an impression that the said affidavit was filed alongwith the petition. It is pertinent to mention that save and except the numbers 16 and 17 appearing on the affidavit dated 12.1.1990 which are written in black ink, the page numbering of the petition is in blue ink. Though the petition contain page numbers 16A and 17A but the index of the petition file on record does not make any mention to pages 16A and 17a. Thus, the petition presented by the petitioner on 8.1.1999 is a defective petition for want of necessary affidavit and is liable to be dismissed. Even otherwise though not admitting that the petition is supported by affidavit 12.1.1999 of the petitioner, the same has not been filed within forty five (45) days from the date of election of the answering respondent in as much as record of the present case does not reveal that as to how and when the affidavit 12.1.1999 was filed by the petitioner. Thus, the petition is liable to be dismissed for non compliance of section 81 of the Act."

8. This paragraph was replied to in para 4 of the replication by the election petitioner as follows: -

"4. That para 4 of the Preliminary Objection is wrong and denied. The petitioner had filed an Election petition on 8.1.1999 along with an affidavit. Petitioner, however, filed another affidavit in prescribed Form-25 on 12.1.1999 as a matter of abundant precaution. The allegations of the Respondent of having filed the affidavit are surreptitious or baseless and are vehemently denied. The said affidavit is duly signed and attested by an oath commissioner on 12.1.1999 and filed on the same date in the Hon'ble High Court. The page number was given as 16A and 17A so that the continuity of pagination is not disturbed. It is submitted that there is nothing unusual or fishy about it. It is submitted that even the subsequent affidavit dated 12.1.1999 is within the prescribed period of 45 days being the period of limitation for filing an Election petition under the Representation of Peoples Act."

The learned counsel for the respondent has detailed his objections to the affidavit said to be filed on 12.1.1999 in support of the election petition in the following terms as per his affidavit dated 2.6.2000:-

"(i). That on 8.1.1999, when the petitioner filed the election petition, it was accompanied by an affidavit dated 7.1.1999 only, because on 8.1.1999 the affidavit purportedly sworn by the petitioner on 12.1.1999 was not born. Thus, the same could not have been filed on 8.1.1999 as it could have been filed only on or after 12.1.1999.

(ii). That affidavit dated 7.1.1999, being the affidavit accompanying the petition at the time of filing of the petition on 8.1.1999, had been page-numbered in continuity in blue ink as 16 and 17. However, later on, the page numbers had been changed by the petitioner to read as 16A and 17A by writing letter 'A' in black ink after the numerals 16 and 17 appearing on the affidavit dated 7.1.1999.

(iii). That the index of the petition on the Court record has no reference to the page numbers 16A and 17A i.e. to the affidavit dated 7.1.1999.

(iv). That the petitioner has given page numbers 16 and 17 to the affidavit dated 12.1.1999 in black ink to convey an impression at the first instance that the said affidavit was filed along with the petition. The remaining page numbering of the election petition is in blue ink including the numerals 16 and 17 appearing on page numbers 16A and 17A. Petitioner has admitted . that he changed the page numbers of the affidavits but explains it by saying that page numbers was given as 16A and 17 A so that the continuity of pagination is not disturbed. Thus, it is quite clear that the petitioner had access to the Court record and was able to make changes therein as per his wishes and convenience which is not possible without the connivance of some person(s) of the registry.

(v) That as per the rules of procedure in this Hon'ble Court, at the time of filing of a petition or any document or pleading, the registry is obliged to give a diary number and put a stamp showing date of filing of the petition or document or any pleading. Thereafter, it is sent to scrutiny assistant who, after scrutiny, records the objections, if any, in writing, and if the petition is in order, records it accordingly. If after filing of petition, a petitioner wishes to file any document etc., it has to be filed with a separate index. I submit that there is neither a filing number nor any stamp of date of filing on the backside of the said affidavit. It does not even have any endorsement on the same as to when it was filed or when it was placed on record of the present case. The affidavit purportedly sworn by the petitioner on 12.1.1999 is not even accompanied by any separate index.

(vi). That there is no order or office noting between 8.1.1999 to 14.1.1999 showing any kind of proceeding or any kind of scrutiny or any kind of objection raised by the Registry of this Hon'ble Court or showing removal of the office objection, if any, by the petitioner or by his counsel.

(vii). After filing of the present petition on 8.1.1999, the first office noting is dated 15.1.1999 on which date the election petition has been scrutinized by Shri Balkar Singh, Sr. Judicial Assistant (O)/scrutiny assistant. On scrutiny of the petition, the said scrutiny assistant has recorded that the petition was in order. The noting dated 15.1.1999 did not record any office objection whatsoever in respect of the petition.

(viii). That there is not even a whisper in the office noting dated 15.1.1999 that any proceeding were held on 11.1.19999 or that the affidavit dated 12.1.1999 was filed on 12.1.1999 by the petitioner or by his counsel. (ix). The version of the petitioner that affidavit dated 12.1.1999 was handed over by him to the concerned official on 12.1.1999 who put it in the file, is not worthy of belief. I humbly submit that if the version as stated by the petitioner is correct, there is not one mistake but are a series of mistakes committed by the scrutiny assistant, which is an impossibility. One or two mistakes may occur, but not a series of ten. First mistake, he does not record in writing whether the petitioner or counsel for the petitioner came on 11.1.1999 or not for removing objections, if any. Second mistake, he does not record the alleged objection in writing. Third mistake, he does not record whether petitioner or counsel for the petitioner came on 12.1.1999. Fourth mistake, he accepts a document directly without routing it through the filing counter. Fifth mistake, he accepts it without checking the stamp of date of filing of the affidavit dated 12.1.1999. Sixth mistake, he accepts it without separate index. Seventh mistake, he does not make any endorsement on the affidavit as to the date of its filing. Eighth mistake, he allows the petitioner to have access to the Court record and further allows him to make alterations in page numbering as aforesaid. Ninth mistake, he does not make any mention in office noting dated 15.1.1999 about any objection raised in respect of the petition. Tenth mistake, he does not record even on 15.1.1999 as to whether petitioner or his counsel came on 11.1.1999 or on 12.1.1999 to remove the objections or whether the objections were removed on the said dates. Even otherwise, objections, if any, had to be removed subject to the orders of the Hon'ble Court. However, the record of the case shows that the scrutiny assistant did not make any efforts to obtain the order of the Hon'ble Court in respect of the objection raised by him. I submit further that it was not within the domain of the scrutiny assistant to say that the affidavit filed along with the election petition on 8.1.1999 was defective or was not in prescribed form which is exclusively a power of this Hon'ble Court. The scrutiny assistant could not have and cannot at all express any opinion on the validity or otherwise of an affidavit filed in support of the allegations of the corrupt practices. What he has to see is that whether the petition is accompanied by an affidavit or not and he can not go behind the affidavit to say that it is defective or is not in prescribed form. Thus, a series of mistakes points out only in the direction that the efforts are being made by the petitioner with the connivance of some person(s) of the registry to save himself and his petition.

(x). That the versions of the petitioner, the concerned dealing assistant and the Sr. Judicial Assistant (O)/scrutiny assistant are at great variance with each other. Whereas the scrutiny assistant says that on 11.1.1999, advocate for the petitioner asked him if there is any objection in the petition, but the petitioner in para 2 of his affidavit dated 23.2.2000 has stated that he appeared on 11.1.1999 and met the concerned officer who was dealing with the election petition. Again, the scrutiny assistant has stated that On 12.1.1999, counsel for the petitioner handed over to him the required affidavit, but the petitioner has stated in para 3 of the affidavit under reply that he personally handed over the same to the concerned official of the registry of this Hon'ble Court on 12.1.1999 who put the same in the file. Similarly, the concerned dealing assistant has stated that the counsel for the petitioner had removed the objection and filed the affidavit on 12.1.1999.

(xi). That the connivance of the petitioner with some persons(s) of the registry is evident from the fact that even the concerned dealing assistant has given a report regarding the filing of affidavit dated 12.1.1999 whereas he was not in picture at least till 18.1.1999 i.e. the date when the then Hon'ble Chief Justice assigned the present case to the Hon'ble Single Judge. Falsity of the report of the concerned dealing assistant is evident from the fact that he had stated that the counsel for the petitioner had given an undertaking on 8.1.1999 to the effect that he will remove the objection of the office and will file the necessary affidavit within the stipulated period as provided in the election. I submit that as per the office noting dated 8.1.1999 on the index, it was the petitioner who himself presented the petition and gave an undertaking to appear on 11.1.1999 and not the counsel for the petitioner. Even otherwise, I submit that when there was no scrutiny of the petition on 8.1.1999, there was no question of any objection being raised on that day and thus, there was no question of any undertaking being given by the petitioner or by his counsel to the effect that he will remove the objection by filing the affidavit in prescribed form within prescribed period.

(xii). That the contradictory versions of the office of this Hon'ble Court and . of the petitioner clearly indicate that either of the two sides are not stating true facts. In the facts and circumstances of this case, it is obvious that affidavit purportedly sworn on 12.1.1999 by the petitioner has not been filed on 12.1.1999 and has been got surreptitiously inserted into the judicial record by the petitioner."

9. The stand of the learned counsel for the petitioner, Shri R.M. Bagai in response to the above affidavit dated 2nd June, 2000 is that the respondent has in dulled in baseless allegations and sought to place reliance on the Report of theScrutiny Assistant and the Deputy Registrar which" according to the learned counselforthe petitioner corroborate the statement made by the petitioner at the Bar as contained in the affidavit dated 23.2.2000 about the filing of the supporting affidavit dated12.1.1999.

10. The learned counsel for the petitioner has contended that his stand that the affidavit was filed on 12.1.1999 within the prescribed period of limitation is thus supported by the reports of the registry of this Court.

11. There is no doubt that the acceptance of the affidavit by the registry of this Court on 12th of January, 1999 has not been done in a satisfactory manner. There is some substance in the grievance of the respondent that the affidavit was placed on record without an appropriate noting and/or index. The relevant Delhi High Court Rules 6,7 & 8 under the Representation of the People Act, 1951 read as under:-

ELECTION RULES

"6. After the petition is presented, the party or advocate shall be asked to attend the office on the third day from the date of the presentation to remove objections, if any. An undertaking in writing will be obtained from the party or advocate to remain present in the office on the date appointed. The petitioner shall furnish his address preferably in Delhi or Simla, as the case may be, where any communication may be addressed to or served on him.

7. The office shall examine the petition with a view to See whether it is in conformity with the requirements of law and the rules, applicable to the same, and if it is not in conformity with law and the rules, raise objections which could be removed by the party or the advocate concerned. These objections should be brought to the notice of the party or the advocate on the date fixed for attendance under Rule 6 and such objections shall be removed, subject to the orders of the Court, if any, within two days thereafter.

8. Immediately after the time fixed for the removal of objections has expired, the petition shall be placed before the Court for such order, as may be required to be passed under Section 86 of the Act, a summons, on directions of the Court shall be issued to the respondents to appear before the High Court on a fixed date and answer the claim or claims made in the petition. Such date shall not be earlier than three weeks from the date of the issue of the summons. The summons shall be for written statement and settlement of issues."

12. A perusal of the above noted Rules 6, 7 & 8 read with the Report of the registry shows that while the registry of this Court has by and large acted in a manner stipulated by the aforesaid rules, the steps taken by the registry should have been simultaneously recorded in the file. There is also some substance in the plea that there is no contemporaneous record on the file about the appearance of the petitioner/counsel on 11.1.1999 about the defects in the petition which are said to have been remedied on 12.1.1999. In particular the learned counsel for the respondent has highlighted what according to him is a tell tale sequence of several irregularities/mistakes termed by the learned counsel as detailed in Para 13 (ix) of the affidavit filed on 2nd of June, 2000. However, considering the report of the registry that the disputed affidavit was tendered and received in the registry on 12.1.1999. and the fact that the document is said to be attested on 12.1.1999, 1 am not inclined to hold that this irregular filing and receiving of the affidavit without appropriate index, notation and contemporaneous noting in the file leads straightway to a conclusion that the petitioner had sureptitiosly and at a later date smuggled in the supporting affidavit dated 12.1.1999 and had thus connived with some official of the registry to save himself and his petition from being thrown out on the ground of non-compliance of Section 81 of the Representation of People Act, 1951 and Election Rules 6 & 8 of Delhi High Court.

13. The other grievance made by the learned counsel for the respondent is that there is a discrepancy in the fact that as to who presented the petition, i.e., the counsel for the petitioner or the petitioner himself and who tendered the affidavit whether the petitioner or his counsel. In my view, this discrepancy is not of such seminal importance so as to vitiate the filing of the affidavit in view of the fact that the petitioner himself is a practicing advocate of this Court. Another grievance is that the affidavit dated 12.1.1999 was inserted unauthorisedly by remarking it as pages 16A and 17A. The petitioner's explanation is that this was done to maintain continuity. The explanation is satisfactory and the renumbering of the pages of the disputed affidavit can not lead to an inference of unauthorised insertion when the explanation of the Registry regarding receipt of the affidavit is accepted.

14. In this view of the matter, I am satisfied that though there is avoidable irregularity in the filing/receiving of the affidavit and the notations in the registry of this Court, I am not persuaded to believe the stand of the respondent that the version of the registry of this Court that the affidavit in support of the petition was tendered in this Court on 12.1.1999 cannot be believed and the petition should be thrown out as being hit for non-compliance of Section 81 and the Election Rules 6, 7 & 8, framed by this Court.

15. In consonance with what is stated in the above order, the compliance of rules under the Representation of People Act, 1951, framed by this Court and in particular rules relating to the actions in the registry, particularly Rules 6,7 & 8 would henceforth be accompanied by a contemporaneous notation on the file by the concerned registry official. Furthermore in future the registry would ensure that no document without index and the date bearing filing stamp of the registry should be accepted or placed on file.

16. The matter be placed before the appropriate Court on 10th of January, 2001 for further proceedings, subject to the orders of the Hon'ble the Chief Justice.