Virendra Kumar vs Umesh Kumar
2022 Latest Caselaw 3760 UK

                                    Reserved
     HIGH COURT OF UTTARAKHAND AT NAINITAL


               Election Petition No.2 of 2022

Virendra Kumar                                    ..........Revisionist

                                   Vs.

Umesh Kumar                                        ........ Respondent



Present :   Dr. I.M. Quddusi, Senior Advocate assisted by Mr. Pooran Singh
            Rawat, Mr. K.C. Sinha, Mr. Jazib Siddiqui, Ms. Babita Jalal,
            Advocates for the petitioner.
            Mr. Aditya Singh, Advocate for the respondent.




Hon'ble Ravindra Maithani, J. (Oral)

This is an election petition challenging the

election of the respondent in the Legislative Assembly of

Uttarakhand from Constituency Seat 32 Khanpur,

District Haridwar. On 22.09.2022, issues were framed in

this case and it has been directed that issue no.4, shall

be decided as preliminary issue.

2. Issue no.4 is as hereunder:-

"As to whether, the election petition is bad for non compliance of proviso to Section 83(1) of the Act and Section 94A of the Rules? If so, its effect?"

3. Heard learned counsel for the parties and

perused the record.

4. In order to appreciate the rival submissions, it

would be apt first to reproduce the provisions of law, as

involved in this issue. Section 83 of the Representation of

People Act, 1951 (for shot, "the Act") is as hereunder:-

"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:

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.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."

5. Rule 94A of the Conduct of Elections Rules,

1961 (for short, "the Rules") is as follows:-

"94A. Form of affidavit to be filed with election petition.--The affidavit referred to in the proviso to subsection (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 in Form 25."

6. A bare reading of these two provisions makes it

abundantly clear that on the one hand, the proviso to

Section 83(1) of the Act requires filing of an affidavit in

prescribed form in cases where corrupt practice in

election is alleged. On the other hand, this proviso to

Section 83 of the Act is extended by Rule 94A of the

Rules. The affidavit is required to be shown before the

Magistrate First Class or a notary, etc. as given under

Rule 94A.

7. Has it not been done? The affidavit in Form 25

is on record.

8. Learned counsel for the respondent would

submit that even the duplicate copy of the election

petition does not have the affidavit in Form 25, as

required by virtue of proviso of Section 83(1) of the Act

and Rule 94A of the Rules. In addition to it, learned

counsel for the respondent would also submit that as

election petition is required to be verified in the manner

as laid down in the Code of Civil Procedure, 1908 (for

short, "the Code"). Order 6 Rule 15 of the Code, provides

for verification of the pleadings, which also requires that,

"the person verifying the pleading shall also furnish

an affidavit in support of his pleadings."

9. It is argued that there is no affidavit for

verification of pleadings, as required under Order 6 Rule

15 of the Code.

10. Learned counsel for the election petitioner

would submit that affidavit in Form 25, as required by

virtue of proviso to Section 83(1) of the Act and Rule 94A

of the Rules have been filed along with the petition. The

petition was presented before the Registry.

11. It is argued that it is not the case of the

respondent that he did not receive a true copy in the

election petition. Therefore, it is argued that merely on

this ascertain that the duplicate copy of the election

petition does not have affidavit in Form No.25 cannot be

construed as violation of the statutory provisions on the

Act.

12. It is argued that, in fact, two affidavits are not

required in an election petition. The verification of the

election petition has been done by the election petitioner.

In cases of corrupt practice, an affidavit is also required

to be filed as per Section 83(1) and Rule 94A of the Rules,

which has been filed.

13. Learned counsel for the election-petitioner

placed reliance on the principle of law as laid down in the

case of G.M. Siddeshwar vs. Prasanna Kumar, (2013)4

SCC 776. In fact, in this case, Hon'ble Supreme Court

discussed the requirement of an affidavit in support of

pleadings as per Order 6 Rule 15 Sub-Rule (4) of the Code

in the cases of election petition where challenge is made

on the ground of corrupt practice. In para 23, 29 and 34

of the judgment, the Hon'ble Supreme Court observed as

hereunder:-

"23. A reading of Section 83(1)(c) of the Act makes it

clear that what is required of an election petitioner is

only that the verification should be carried out in the

manner prescribed in CPC. That Order 6 Rule 15

requires an affidavit "also" to be filed does not mean

that the verification of a plaint is incomplete if an

affidavit is not filed. The affidavit, in this context, is a

stand-alone document.

29. While the necessity of filing an affidavit in support

of the facts stated in a plaint may be beneficial and

may have salutary results, but we have to go by the law

as it is enacted and not go by the law as it ought to be.

CPC no doubt requires that pleadings be verified and

an affidavit "also" be filed in support thereof. However,

Section 83(1)(c) of the Act merely requires an election

petitioner to sign and verify the contents of the election

petition in the manner prescribed by CPC. There is no

requirement of the election petitioner "also" filing an

affidavit in support of the averments made in the

election petition except when allegations of corrupt

practices have been made.

34. We are not inclined to debate the contention

whether Order 6 Rule 15 CPC has been legislated by

reference or by incorporation into the Act for the

reasons already indicated above, namely, that on a

plain reading of Section 83 of the Act, only a

verification and not an affidavit in support of the

averments in an election petition is required, except

when allegations of corrupt practices are made by the

election petitioner. Any amendment in CPC is of no

consequence in this regard unless the meaning of

"verification" is amended to include an affidavit."

14. A bare perusal of the above observation made

by the Hon'ble Supreme Court makes it abundantly

clear that the question was left open by the Hon'ble

Supreme Court. In para 34 of the judgment, the Hon'ble

Supreme Court, in fact, discussed the concept of

legislation by reference or legislation by incorporation,

but has not held, as to whether in the Act the

provisions with regard to verification of pleading is

legislation by reference or legislation by incorporation.

15. It is an election petition, it has to be decided

based on the pleadings. The issue has been framed with

regard to non-compliance of proviso to Section 83(1) of

the Act and Rule 94A of the Rules. It is not argued or

pleaded before this Court that the respondent did not get

affidavit in Form 25. It has also not been argued or

pleaded that the respondent did not receive a true copy of

the election petition. It is argued before the Court that the

duplicate copy does not have an affidavit in Form 25. In

the opinion of this Court, in order to decide the lis

between the parties any duplicate copy left on the file has

less relevance now, particularly, when it is not pleaded

case of the respondent that he did not get a true copy.

16. In the instant case, an affidavit in the Form 25

is on record as per proviso of Section 83(1) of the Act and

Rule 94A of the Rules. It is not the case of the respondent

that the affidavit, so filed, is not in accordance with law.

Therefore, on issue no.4, this Court concludes that the

election petition is not bad for non-compliance of proviso

to Section 83(1) of the Act and Rule 94A of the Rules. The

issue no.4 is decided accordingly.

17. Arguments have been raised with regard to

non-compliance of Order 6 Rule 15 Sub-Rule (4) of the

Code. It is not a pleaded case. There has been no issue

framed on it. Therefore, this Court does not consider it

appropriate to decide an issue which has just been raised

collaterally and incidentally with issue no.4.

18. This is an election petition, which is to be

decided within a time frame. List on 29.11.2022 for

evidence. Before that, the election petitioner shall file list

of witnesses and affidavits in examination-in-chief of the

witnesses. It shall be served at least three days' prior to

the next date fixed. On that date, cross-examination of

the witnesses shall be recorded.

(Ravindra Maithani, J.) 23.11.2022 Sanjay