Shanti Lal v. Guman Mal Lodha — 1993 DIGILAW 689 (RAJ)

Honble SAXENA, J.—The petitioner, who is an elector of Pali Lok Sabha Constituency, has filed this election petition under sec. 80-A of the Representation of the People Act, 1951 (hereinafter referred to as the Act) and challenged the election of respondent Shri Guman Mal Lodha, who has been declared elected as member of Parliament from Pali (Parliamentary Constituency No. 21) on 16.06.1991, on the ground of alleged corrupt practice described in para 3 of the petition and prayed that the impugned election be declared as void. (2). On 6.1.92, Mr. Rajendra Mehta, Advocate, appeared for the respondent in the Court and accepted the notice along with the copy of the election petition. He was also supplied with another copy of the election petition by the Registry on 13.1.92. The respondent filed an application under Ss. 81, 83 r/w sec. 86(1) of the Act and raised inter-alia the following preliminary objections regarding the maintainability of this election petition :– i. That the copy of the election petition served on him is not a true and Correct copy of the original election petition nor it has been attested to be the true copy by the petitioner and, as such, the mandatory provisions of Sec. 81 of the Act have not been complied with; ii. That the copy of the audio cassette Annex. 6 described in sub para (3) of Para 3 of the election petition, which purports to form an integral part of the election petition, has not been furnished; iii. That the copies of petitioners affidavit, which forms an integral part of the election petition, is not the true copy of the affidavit and the same does not bear the endorsement of its attestation and blank space has been left after writing sd/-; and iv. That none of the copies of the Annexs. 3 to 5, which also form integral part of the election petition, have not been duly signed and verified by the petitioner. (3). The respondent has, therefore, prayed that this election petition be dismissed. (4). The petitioner in his reply dt. 12.11.92 asserted that the copies of the election petition and the affidavit furnished to the respondent bear his signatures; that those are true and correct copies and that as such, provisions of Sec. 81(3) have been sufficiently complied with. (3). The respondent has, therefore, prayed that this election petition be dismissed. (4). The petitioner in his reply dt. 12.11.92 asserted that the copies of the election petition and the affidavit furnished to the respondent bear his signatures; that those are true and correct copies and that as such, provisions of Sec. 81(3) have been sufficiently complied with. He, however, admitted that this election petition was filed on the last day of the expiry of limitation i.e. 31.7.91 and that the audio cassette Annex. 6, which was lying with the petitioner, was misplaced and that the same could not be submitted along with the election petition. He informed that he was separately submitting an amendment application for deletion of the relevant para in the election petition. He also admitted that in para No. 3 (c) of the election petition, the date of the meetings held in Pali and various villages of the Parliamentary Constituency was not mentioned in the election petition. He, however, asserted that for such a technical objection the election petition cannot be dismissed. (5). The respondent in his rejoinder dt. 25.1.93 reiterated that the audio cassette Annex.6 and the affidavit in support of election petition, being integral parts of the election petition, non-supply of their true copies is a fatal defect warranting dismissal of the election petition. (6). On 12.11.92, the petitioner also filed an amendment application under 0.6; R.17 CPC praying for deletion of para 3(e) of the election petition. The respondent in his reply dt. 25.1.93 has vehemently opposed this application on the ground that the removal of fatal infirmities in the election petition by Way of amendment will cause substantial prejudice to him. (7). I have heard learned counsel for the parties at length on petitioners amendment application as well as on the preliminary objections raised on behalf of the respondent regarding the maintainability of this election petition and perused the relevant record in extenso. (8). In Re: Amendment Application : The petitioner vide para 3 (ee) of the election petition has pleaded that the respondent with his consent and with the assistance of his supporters/agents got convened various religious meetings in Pali and various villages in Parliamentary Constituency & that those meetings were addressed by Sadhvi Ritumbhara, wherein she used insulting words against muslims and requested the electorate to vote for the respondent in the name of and for Hindu religion. In para 3 (u), it has been pleaded that the audio cassettes (Annex.6) containing speeches given by Sadhvi Ritumbhara were also played and distributed in respondents election campaign. However, the dates of these meetings and the names of the villages were not mentioned. The petitioner now wants to delete the third line of para 3(ee), wherein the dates of those meetings have been left blank and para 3(u) pertaining to audio cassette (Annex.6). (9). Sec. 83 of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies, 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 shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The proviso to this section clearly lays down that where the petitioner alleges any corrupt practice, the petitioner shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. Sub section 2 of sec. 83 of the Act further requires that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. (10). The petitioner has challenged the election of respondent on the basis of the alleged corrupt practice. In such circumstances, the audio cassette (Annex. 6) forms an integral part of the election petition. Admittedly, the petitioner has neither submitted the audio cassette along with the election petition in the Court nor has supplied a copy thereof to the respondent. The petitioner has also not disclosed the material particulars regarding the dates and places and names of the villages where meetings were addressed by Sadhvi Ritumbhara in para 3(ee) of the election petition. The respondent specifically pointed out these vital and material infirmities and raised preliminary objection about the maintainability of the election petition. Thereafter, the petitioner has filed this application for amendment apparently in order to remove those substantial & material defects. Such amendment cannot be allowed/permitted because it will defeat the provisions of Secs. 83, 81 r/w 86(1) of the Act. The respondent specifically pointed out these vital and material infirmities and raised preliminary objection about the maintainability of the election petition. Thereafter, the petitioner has filed this application for amendment apparently in order to remove those substantial & material defects. Such amendment cannot be allowed/permitted because it will defeat the provisions of Secs. 83, 81 r/w 86(1) of the Act. Every election petition can be saved by amendment in this way, but that is not the policy of law. The proposed amendment will also cause substantial prejudice to the respondent. To my mind, this amendment application is malafide and has been filed to remove fatal defects in this election petition. I, therefore, dismiss petitioners application for amendment of the election petition. (11). In Re : Preliminary Objections regarding maintainability of election petition : The respondent has submitted copies of the petition and the affidavit of petitioner Shantilal marked Ex.R/1 and R/2, which were furnished to him by the petitioner and through the Registry. A perusal of these copies reveals that though each paper thereof bears the signature of Shantilal, but the same does not bear the attestation of the petitioner to the effect that it is a true copy of the petition and the affidavit. At page 4 of the affidavit of the petitioner at the place of signature of deponent, only the word "sd/-" has been written and the name and signature of the deponent have not been mentioned. Moreover, the copy of the affidavit also does not bear any endorsement of the Notary Public/Magistrate/Oath Commissioner regarding the attestation of the said affidavit. (12). Section 81(3) of the Act runs as under:— "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." The proviso to clause (c) sub sec. (1) of sec. 83 of the Act mandates 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. Therefore, where any corrupt practice is pleaded, the election petition must be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (13). Therefore, where any corrupt practice is pleaded, the election petition must be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (13). R.94-A of the Conduct of the Election Rules, 1961, in short, "the Rules of" 1961", specifically lays down that the affidavit referred to in proviso to sub sec. 1 of sec.83 of the Act shall be sworn before a Magistrate of the first class or a Notary or a Commissioner of Oaths and shall be in Form 25. (14). Form 25 besides the affidavit of deponent also contains the following endorsement: — "Solemnly affirmed/sworn by Shri/Smt. ...................................................... ................................at........................this.........day of.........19.................. Before me Magistrate of the first Class /Notary/Commissioner of Oaths." Therefore, to constitute an affidavit as required under R.94A of the Rules of 1961, besides the affidavit of the deponent, the endorsement regarding attestation of the affidavit and the name and designation of the person attesting the affidavit is also necessary. In other words, such attestation is a sine qua non for a valid and legal affidavit. (15). In F.A. Sapa etc. vs. Singora and others etc. (1), the Apex Court has pointed out that a charge of corrupt practice has its two dimensional effects; its impact on the returned candidate has to be viewed from the point of view of the candidates future political and public life and from the point of view of the electorate to ensure the purity of the election process. It has further pointed out that any allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirement of sec. 83 before the parties go to trial. Their lordships have held that even though ordinarily a defective verification can be cured and the failure to disclose the grounds or sources of information may not be fatal, failure to place them on record with promptitude may lead the Court in a given case to doubt the veracity of the evidence ultimately tendered, but if however, the affidavit or the schedule or annexure which forms an integral part of the election petition itself, strict compliance would be insisted upon. Therefore, the maintainability of an election petition in the context of the point at hand will depend on whether the affidavit or the schedule or the annexure to the petition constitutes an integral part of the petitioner or not. If it constitutes an integral part, it must satisfy the requirements of sec. 81(3) of the Act and failure in that behalf would be fatal. (16). The Honble Supreme Court in M. Kamlam vs. Dr. V.A. Syed Mohammed (2) has held as under: — "5. Now, the first question which arises is as to what constitutes an election Petition for the purpose of Sec. 81 sub-section (3). Is it confined only to election petition proper or does it also include a schedule or annexure contemplated in sub-section (2) of section 83 or a supporting affidavit referred to in the proviso to section 83, Sub-Sec. (1)? To answer this question, we must turn to section 83, which deals with contents of an election petition. Sub-section (1) of that section sets out what an election petitioner shall contain and provides that it shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. The proviso requires that where the petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit in the accompanied by an affidavit in the prescribed from in support of the allegation of such corrupt practice and the particulars thereof. The context in which the proviso occurs clearly suggests that the affidavit is intended to be regarded as part of the election petition. Otherwise, it need not have been introduced in a section dealing with contents of an election petition nor figured as a proviso to a sub* section which lays down what shall be the contents of an election petition. Sub-section (2) also by analogy supports this inference. It provides that any schedule or annexure to an election petition shall be signed by the petitioner and verified in the same manner as an election petition. Sub-section (2) also by analogy supports this inference. It provides that any schedule or annexure to an election petition shall be signed by the petitioner and verified in the same manner as an election petition. It is now established by the decision of this Court in Sahodrabai Rai v. Ram Singh Aharwar ( AIR 1968 SC 1079 ) that sub section (2) applies only to a schedule or annexure which is an integral part of the election petition and not to a Schedule or annexure, which is merely evidence in the case but which is annexed to the election petition merely for the sake of adding strength to it." Hence, it is well settled that if an affidavit, schedule or annexure is an integral part of the election petition, then it must be signed by the petitioner and verified since it forms part of the election petition. (17). Similarly in M. Karunanidhi v. H.V. Handa and Ors. (3) and AIR 1987 SC 208 (4) , it has been categorically held that an affidavit in support of allegation of corrupt practice forms integral part of the ground of corrupt practice and such an affidavit forms an integral part of the election petition. (18). It is needless to mention that in India, the election law being statutory in character must be strictly complied with and since an election petition is not guided by every changing common law principles of justice and notions of equity being statutory in character, it is essential that it must conform to the requirements of the Act. (19). In Purushottam v. Returning Officer, Amravati and Ors. (5), the election of a member of Maharashtra Legislative Council was challenged on several grounds inter-alia on the allegations of corrupt practice. The returned candidate filed an application for dismissal of the election petition for the violation of the mandatory provisions of Sec. 81(3) r/w 83 and 86 of the Act and a preliminary objection was taken to the effect that copy of the affidavit filed by the petitioner under r. 94A of the Rules of 1961 was not in conformity with Form 25 and the mandate of law and that the said affidavit was also vague and incomplete. There was no endorsement of the Notary on the copy of the affidavit accompanying the election petition. There was no endorsement of the Notary on the copy of the affidavit accompanying the election petition. It was held that the absence of the endorsement of the Notary on the copy of the affidavit accompanying election petition rendered the copy as not conforming the requirements of S.81 (3) of the Act and the election petition was dismissed on account of that omission. (20). In Jhamaklal vs. Dr. L.N. Pande and Anr. (6), the Madhya Pradesh High Court Bench at Indore has held that omission in the copy of affidavit as supplied to the respondent cannot be held to be inconsequential, because the affidavit in support of ground of corrupt practice is an integral part of election petition and that such omission offends the mandatory provision of S.81(3) of the Act and the election petition was dismissed. (21). Similar are the facts of the case in hand. Admittedly, in the copies of the affidavit of the petitioner supplied to the respondent, the endorsement regarding attestation of the affidavit is conspicuously missing. There is neither the name nor the designation nor the stamp of the person, who attested the affidavit nor the endorsement regarding affirmation. Hence, in the eye of law, it is not at all a copy of the affidavit as required under R.94A and Form 25 of the Rules of 1961. The endorsement of an affidavit is not merely formal - but is very vital and material, because it is the affirmation or attestation that gives the sanctity to the affidavit and without such affirmation or attestation such document cannot be held to be an affidavit. Proviso to sub sec. (1) of sec. 83 makes an affidavit necessary in support of the charges for corrupt practice because from the affidavit, the respondent can ascertain whether in fact the contents were sworn, affirmed and signed before the Magistrate or the Notary or the person in whose presence, swearing of the affidavit was made, had the authority to administer oath. In absence of such endorsement regarding affirmation, the respondent shall not be in position to point out that the person who is said to have administered the oath, was not in existence or had no authority to administer oath or that the signature and the endorsement of the document purported to have been made by the alleged Authority were fake. In absence of such endorsement regarding affirmation, the respondent shall not be in position to point out that the person who is said to have administered the oath, was not in existence or had no authority to administer oath or that the signature and the endorsement of the document purported to have been made by the alleged Authority were fake. If the copies of the affidavit are not faithful and do not include these endorsements, a valuable right of the respondent is taken away and considering the purpose which the copy of the endorsement would serve, it cannot be said that this portion would not be integral part of the affidavit. Since, these details form an integral part of the affidavit, furnishing a copy without that portion would not be furnishing a complete copy of the affidavit which, in its turn, is integral part of the election petition. Therefore, simply because the copy of the affidavit has been signed by the petitioner, it cannot be held to be a true copy of the affidavit as required under sec. 81 (3) r/w S. 83 of the Act. Hence, this material omission and glaring lapse on the part of the petitioner cannot be held to be formal or inconsequential. (22). In my considered opinion, this is a clear cut case of violation of the mandatory provisions of S. 81(3) r/w sec. 83 of the Act, which is likely to cause material prejudice to the respondent. In such circumstances, this election petition is liable to be dismissed on this preliminary objection alone keeping in view the mandatory provisions of Sec. 86(1) of the Act. (23). There is also no dispute that the copies of the election petition as well as annexures 3,4 & 5, which pertain to alleged corrupt practice and which also form integral part of the election petition simply bear the signature of the petitioner, but those have not been attested by him that those are true copies of the petition and annexures 3,4 and 5. Therefore, on this count also, the provisions of Sec. 81(3) of the Act have been offended. (24). In such circumstances, the preliminary objections raised on behalf of the respondent are sustained and this election petition is hereby dismissed under sec. 86(1) of the Act as not maintainable with cost, which is quantified as Rs. 2000/-.