Mr. Sushil Choudhery vs Mr. Neeraj Basoya
2009 Latest Caselaw 4424 Del

                   * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                    Date of Reserve : 26.10.2009
                                                                  Date of Order: October 30, 2009


Election Pet. No. 15/2009
%                                                                                 30.10.2009

         Mr. Sushil Choudhery                            ... Petitioner
                         Through: Mr. H.S.Phoolka, Sr. Advocate with
                         Mr. Vivek Goel & Mr. Mohit Mudgal, Advocates

                   Versus

         Mr. Neeraj Basoya                               ... Respondent
                         Through: Mr. A.S.Chandhiok, Sr. Advocate with
                         Mr. Jagdeep Basoya, Mr. Adarsh Aggarwal,
                         Mr. Ritesh & Mr. Sandeep Bajaj, Advocates


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?



ORDER

By this order I shall decide the following two issues which were treated as

preliminary issues:

1) Whether the petition is not maintainable in view of the preliminary objections

raised by the respondent? - OPD

2) Whether the nomination of respondent No.1 was not accompanied by the

validly sworn affidavit and was, therefore, liable to be rejected? - OPP

Issue No.1

2. The onus of proving this issue was on defendant/respondent. Learned

Counsel for the respondent submitted that the petitioner had not stated the full

particulars and material facts in respect of corrupt practices set forth by him in election

petition and on this ground the election petition was liable to be dismissed. He relied on

Subhash Desai v. Sharad J.Rao and Ors. AIR 1994 SC 2277.

3. During arguments, learned Counsel for the respondent pointed that in the

petition in ground „B‟, the petitioner has stated that Mr. Ajay Makan threatened the

electors of Defence Colony area in a meeting that in case they would not vote for the

respondent then the „ganda nalla‟ would be kept open and they would have to bear the

smell and suffer. It is submitted that the petitioner has not given the details as to when

this meeting was held, where this meeting was held, who all were present in the meeting

and who informed the petitioner about this meeting. The allegations in ground „B‟ lacked

the material particulars and the petition was liable to be dismissed. Similarly in ground

„C‟ the petitioner alleged that respondent himself and through his agents and workers

distributed liquor to the voters of the area on 28.11.2008 from 7.30 p.m. to 9.00 p.m. and

Mr. Ashwani Gupta, election agent of the petitioner himself saw distribution of the liquor

by the agents of the respondent and he made a complaint in this regard to police. It is

submitted that it is not given by the petitioner, as to who were the agents and workers of

the respondent who distributed the liquor and who were the persons who received the

liquor. Though, it is claimed that Mr. Ashwani Gupta himself saw the agent but the name

of the agent of respondent has not been given by the petitioner. The allegations lacked

the material particulars and anybody could be brought to the Court by petitioner to show

that he was agent and worker of the respondent irrespective of the fact that respondent

knew him at all or not. He stated that the allegations of this corrupt practices lacked the

material particulars. Similarly in ground „D‟ election petitioner has alleged that

respondent and his agents hired/procured vehicles for the conveyance of the electors to

the polling stations nos. 1-5, 24-31, 59, 60, 63, 65 & 70 and back to their places. The

petitioner has not given the vehicle numbers so hired/procured by the respondent as

alleged by the petitioner and thus the allegation lacked the material particulars.

4. No doubt the three allegations which have been pointed out by the

respondent do not contain details as submitted by the respondent but this election

petition is not based only on these three allegations. In ground „E‟ the petitioner has

alleged that because of 2872 invalid and duplicate votes created at the behest of the

respondent and polled in favour of the respondent, the results of election were materially

affected. In ground „F‟ it is further alleged that 10789 invalid and duplicate votes were

wrongly created by the respondent either himself or with his consent by his agents and

these invalid votes were polled in favour of the respondent which also materially affected

the results of the election. In para „G‟ it is stated that there were 67 number of votes of

the persons who had not completed 18 years of age and details of names of these

voters had been annexed by the petitioner as annexure P-7. In ground „H‟ it is submitted

that 229 votes had been casted from the list of deleted voters and he had annexed

annexure P-8 showing the names of deleted voters who had voted.

5. It may be that some of the corrupt practices alleged by the plaintiff do not

contain all the particulars but other corrupt practices alleged by the petitioner do contain

the material particulars to substantiate the charges. Thus, the petitioner cannot be non-

suited at the initial stage only because some of the allegations do not contain the

material particulars while some of the allegations do contain material particulars. The

election petition, therefore, cannot be dismissed on this ground and the issue can be

decided after trial on the basis of evidence led by the parties. It is ordered accordingly.

Issue No.2

6. The onus of proving this issue was on the petitioner. The petitioner has

drawn attention of the court to the affidavit filed by the respondent along with his

nomination papers. This affidavit is in proforma provided by the Election Commission

and the affidavit is in respect of declaration regarding assets. The copy of affidavit has

been annexed by the petitioner as P-1. In this affidavit in column-3, the respondent was

supposed to give details of liabilities or dues to public financial institutions and

government dues. In this column against different sub-columns the respondent filled

"NA" (not applicable). It is submitted by learned Counsel for the petitioner that writing of

"NA" against the column amounted to leaving the column blank and the requisite

information as sought was not given. I consider that this contention is not correct. "NA"

(not applicable) also means that no loan has been taken therefore, no information could

be given regarding loans and the outstanding dues. If no loan has been taken the

question of outstanding dues and liabilities would not arise. Therefore, filling the column

by writing "NA" does not mean that the respondent had concealed the information or had

not given the requisite information. The first sub-column wanted the respondent to give

name of the bank or financial institution or the department from which loan had been

taken. Writing "NA" only shows that the respondent had not taken loan from any bank or

any financial institution and giving of such names was not applicable and he had not to

pay government dues of any department. I, therefore consider that contention of the

petitioner that the affidavit was not properly filled is baseless contention.

7. The other issue raised by the petitioner is that the affidavit was „attested‟

by Notary Public and the affidavit was not sworn before him. He submitted that affidavit

was required to be sworn before the Notary Public and since affidavit was not sworn

before the Notary Public and it was only attested by the Notary Public, it was no affidavit

in the eyes of law. He relied on Banarasi Dass v. Maman Chand AIR 1992 P&H 145 to

argue that attestation of a document was only one of the functions of Notary Public and

the word „verified‟ and „attested were not synonymous words and they were separate

words. The Notary Public can attest execution of an instrument at the same time, Notary

Public can verify the instrument or show it to be authenticated or can certify its

correctness. He also drew attention to Section 8 of the Notaries Act. Learned Counsel

for the petitioner also submitted that an affidavit must contain statements and

declarations made by the deponent relevant to subject matter sworn and affirmed in the

presence of a person who in law verifies or exhibits the affirmation. He stated that

Notary Public was a person, who was authorized to exhibit the affirmation in the affidavit

truth of the statements made in his presence and verify the oath. However, in this case,

Notary Public did not do so and therefore this affidavit was not a proper affidavit. He

submitted that the nomination papers of the respondent should have been rejected by

the Returning Officer as the affidavit filed along with the nomination papers was no

affidavit in the eyes of law. He also submitted that not raising of this objection at the

time of scrutiny of the nomination papers does not preclude the petitioner from raising

this objection in the election petition. In support of this Counsel for the petitioner relied

on Harikrishna Lal v. Babu Lal Marandi (2003) 8 SSC 613.

8. The Counsel for the respondent on the other hand placed on record the

copy of affidavit furnished by the petitioner along with his own nomination papers. This

affidavit was also attested by the Notary Public and did not contain any statement by the

Notary Public that the affidavit was sworn before him. He stated that attestation by the

Notary Public amounts to certification of the verification and statement on oath made by

the deponent and does not amount to any irregularity. He relied on Ram Prasad Sarma

v. Mani Kumar Subba & Ors. (2003) 1 SCC 289 wherein the Supreme Court held as

under:

19. "x x x x We are unable to appreciate the above submission. Mere indication of the stamp of the Oath Commissioner without any indication in the true copy that the affidavit was attested before the Oath Commissioner and signed by him (Oath Commissioner) will have no different effect from one where nothing is indicated about the stamp and verification before the Oath Commissioner because it is not necessary that mere stamp of the Oath Commissioner must lead to the inference that the affidavit was also sworn before and signed by the Oath Commissioner in attestation thereof. Therefore, such a case would be on the same footing as where nothing is indicated regarding swearing of the affidavit before the Oath Commissioner."

The Supreme Court turned down the contention that the petition has to be dismissed at

the threshold because of a defect in the affidavit.

9. I consider that the present petition of the petitioner cannot be decreed

and allowed holding that the election papers of the respondent were wrongly accepted

by the Returning Officer because of the fact that Notary Public put his stamp of „attested‟

on the affidavit instead of putting the stamp of „sworn before me‟. I decide this issue

against the petitioner and in favour of the respondent.

Election Pet. No. 15/2009

List before the Joint Registrar for recording evidence on 10th November,

2009.

October 30, 2009                                           SHIV NARAYAN DHINGRA, J.
vn