Kanak Mal v. Bhikha Bhai — 1995 DIGILAW 874 (RAJ)

Honble ARORA, J. — Shri Kanak Mal, a defeated candidate in the election, by this election petition, called in question the election of respondent Shri Bhika Bhai to the 10th Legislative Assembly of the State of Rajasthan from Sagwara Assembly Constituency (Constituency No. 133 of the State Assembly). The election of Bhikha Bhai was called in question by the election petitioner Kanak Mal on the grounds of (i) corrupt practices committed by the returned candidate, the details of which have been given in para number 7 and its sub-paras of the election petition; and (ii) illegality and mistake committed in the counting of the votes by the Polling Officer, mentioned in para number 8 and its sub-paras of the election petition. The respondent, after the service of notice of the petition on him, by the application dated 17.2.94, raised certain preliminary objections to the maintainability of the election petition. These preliminary objections raised by the returned candidate, were dismissed by this Court vide order dated 21.4.94. After the dismissal of the preliminary objections, the respondent filed the written statement on 6-7-94. On 25-7-94, the petitioner moved an application for amendment of the election petition. That application filed by the petitioner was allowed by this Court vide order dated 23-8-94 on the payment of the cost of Rs. 500/-. The Court further directed the petitioner to pay the cost within the period of ten days and file the amended election petition. The petitioner, in pursuance to this order dated 23-8-94, filed the amended election petition on 2-9-94, i.e., within the period prescribed under the order. On 26-9-94, an objection was raised by the respondent regarding the maintainability of the election petition on the ground that the amended election petition contains the charges of corrupt practices against the respondent but the petition is not supported by any affidavit and, therefore, it cannot be said to be an election petition in the eye of law. A reply to this application was filed by the petitioner. Arguments on these preliminary objections after several adjournments, were heard on 2-3-95 and remained part-heard on that day and the case was adjourned for further arguments on 7-3-95. On 7-3-95, the case was adjourned for further arguments to 14-3-95 but due to heavy cause list, the case could not be taken on that day and it was adjourned to 4-4-95. On 4-4-95 further arguments were heard. On 7-3-95, the case was adjourned for further arguments to 14-3-95 but due to heavy cause list, the case could not be taken on that day and it was adjourned to 4-4-95. On 4-4-95 further arguments were heard. The case remained part heard and the learned counsel for the petitioner took time to explore the case law on the point. On 9-5-95, 18-5-95, 6.7.95, 11.7.95, 20-7-95 and 23-8-95, the election petition was adjourned on the request made by the learned counsel for the petitioner. On 12-9- 95, when the case came-up for further arguments on the preliminary objections, an application was moved by the learned counsel for the petitioner under Section 151 C.P.C. accompanying the fresh amended election petition supported by an affidavit and verified by the Oath Commissioner, and it was prayed that in the interest of justice the amended election petition may be taken on record and the delay in submitting it may be condoned. This application was opposed by the learned counsel for the respondent and a reply was filed. (2). Before dealing with the preliminary objections raised by the learned counsel for the respondent in his application dated 6-9- 94, I think it proper first to decide the application dated 12-9- 95 submitted by the petitioner at the time of arguments. Two objections were raised by the respondent to the maintainability of the election petition. The first objection raised by the learned counsel for the respondent is that while allowing the amendment, the petitioner was granted ten days time to pay the cost and to file the amended election petition. He paid the cost and filed the amended election petition in the Court within the stipulated time of ten days but the amended election petition filed by the petitioner was not supported by an affidavit, as required under proviso to Section 83(1) of the Representation of People Act, 1951 (for short, the Act). The second objection raised in the application is that the copy of the amended election petition, which was served upon the respondent, was not attested by the petitioner under his own signatures to be a true copy of the election petition, as required under Section 81(3) of the Act and, therefore, there is a complete non-compliance of Sections 81(3) and 83 of the Act and the election petition, therefore, deserves to be dismissed under Section 86 of the Act. In order to circumvent these objections, this application along with the amended election petition has been filed after the lapse of about one year. Before the expiry of the period of ten days, granted by the Court or even thereafter, no application for extension of time has been made by the petitioner and when the objections were raised by the respondent, the matter was argued on two days, the lime was sought to study the case law and then this application was filed. Neither the petitioner applied for the time nor the time was extended by the Court. The amendment was allowed on certain conditions. A defective petition cannot be corrected after the expiry of the period which was granted by the Court and the defects, if occurred, cannot be allowed to be cured at this late stage and the election dispute, therefore, has to be decided on the basis of the amended election petition submitted by the petitioner within the period granted by the Court, as after the amendment is allowed and amended petition is filed, it is the only election petition pending before the High Court for adjudication. The petitioner cannot be allowed to file the fresh amended election petition because the time for filing the same has already been elapsed and no request was made for extension of time and only a prayer has been made for condoning the delay and taking the amended election petition on record. The application dated 12.9.95, filed by the petitioner, therefore, deserves to be dismissed and the fresh amended election petition cannot be taken on record. (3). Now I take-up the preliminary objections raised by the learned counsel for the respondent regarding maintainability of the election petition. It is contended by the learned counsel for the respondent that the amended election petition contains the allegations of corrupt practices against the returned candidate Bhikha Bhai but is not accompanied by the affidavit of the petitioner. The copy of the amended election petition served on the respondent is not attested by the petitioner under his own signatures to be a true copy of the petition. There is, therefore, complete non-compliance of Sections 81 (3) and 83 of the Act and the election petition, therefore, deserves to be dismissed. In support of his contention, learned counsel for the respondent has placed reliance over Amin Lal vs. Hunna Mal (1) and Dr. There is, therefore, complete non-compliance of Sections 81 (3) and 83 of the Act and the election petition, therefore, deserves to be dismissed. In support of his contention, learned counsel for the respondent has placed reliance over Amin Lal vs. Hunna Mal (1) and Dr. (Smt.) Shipra vs. Shanti Lal (2). Learned counsel for the petitioner, on the other hand, has submitted that only minor corrections were made by way of amendment and no fresh charges of corrupt practice were taken in the amended election petition and as such it was not necessary that the amended petition should be accompanied by the affidavit. It is further submitted that provisions of Section 81 (3) and 83 are applicable only to the original pleadings and not to the amended pleadings. Of course, an affidavit is required to be accompanied to the amended election petition when the amendment relating to corrupt practice is made as per Section 86(5) of the Act. In support of his contention, learned counsel for the petitioner has placed reliance over Kishori Lal Saklani vs. Ranjeet Singh (3) and F.A. Sapa etc.etc. vs. Singora and others etc. (4). (4). I have considered the submissions made by the learned counsel for the parties. (5). The application filed by the petitioner for amending the election petition was allowed by the Court vide order dated 23-8- 94 and the petitioner filed the amended election petition on 2-9- 95. This amended election petition is not accompanied by the affidavit. The effect of the order of amendment is that after the amendment is allowed and the amended election petition is filed, the Court can look into the amended election petition only and leave out-side consideration the earlier election petition which was before the Court prior to the amendments were made. The amendments made in the election petition relate back to the date when the original election petition was filed. The petitioner filed the amended election petition on 2-9-94 and from that day it was only this amended petition pending for adjudication before this Court. It has been held by the Supreme Court in Amin Lal vs. Hunna Mal (supra) that— "Since the election petition can be permitted by the Tribunal to be amended, the petition, which has been amended, would, from the date of amendment, be the only petition before it. It has been held by the Supreme Court in Amin Lal vs. Hunna Mal (supra) that— "Since the election petition can be permitted by the Tribunal to be amended, the petition, which has been amended, would, from the date of amendment, be the only petition before it. Therefore, that would be the petition with respect to which it could exercise the power conferred upon it by Sub-section (3) of Section 90. To hold otherwise would lead to the result that the powers conferred by the Legislature on the Tribunal by this provision will become in exerciseable in respect of one category of the election petition." In view of the judgment of the Supreme Court, after the amendment was allowed and the amended election petition was filed on 2-9-94, it is only the amended election petition which remains pending before the Tribunal for adjudication. This election petition contains the charges of commission of corrupt practices by the respondent, i.e., the elected candidate Bhikha Bhai. The proviso to Sub-section (1) of Section 83 provides 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 allegations of such corrupt practices and the particulars thereof. Section 83 of the Act is mandatory in nature and is applicable to the amended plead-ings, also which requires the election petitioner to put (i) the concise statement of material fact alleged; (ii) the fullest possible particulars with exactitude and details in relation to each and every corrupt practice; and (iii) these allegations of corrupt practice and the particulars thereof should be supported by an accompanying affidavit in the prescribed form. The object and purpose of giving concise statement of material facts alleged with fullest possible particulars with exactitude supported by an affidavit is (i) to discourage the election petitioner to level wild allegations against the returned candidate with respect to corrupt practice with impunity; (ii) to test the genuineness and authenticity of the averments made in the election petition; and (iii) to fix responsibility on the person who files the affidavit to ensure that false allegations are not made recklessly. Filing of a false affidavit is an offence under Section 191 I.P.C. which is punishable under Section 193 of the Indian Penal Code. (6). Filing of a false affidavit is an offence under Section 191 I.P.C. which is punishable under Section 193 of the Indian Penal Code. (6). The petitioner has not filed any affidavit in support of the amended election petition though it contains the allegations of corrupt practices against the returned candidate. The affidavit is an integral part of the election petition; rather it can be said that the election petition has two parts-one is the main election petition and the second part is the affidavit which is required to accompany the election petition where the allegations of corrupt practices are made. Without the affidavit, the election petition which contains the allegations of corrupt practices, is infirm and is liable to be dismissed under O.7 R. 11 C.P.C. Whether the election petition can be dismissed under O.7 R. 11 C.P.C. for non-compliance of Section 83(1) of the Act, came- up for consideration before the Supreme Court in Azar Hussain vs. Rajeev Gandhi (5) and it was held by the Honble Supreme Court that "(a) the provisions of Section 87 specifically requires that every election petition be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of the suits, (b) the fact that Section 83 does not find place in Section 86, did not mean that the power under the Code of Civil Procedure cannot be exercised;(c) under C.P.C. the Court had power to act at the threshold, the power must be exercised at the threshold itself in case the Court was satisfied that it was a fit case for the exercise of such powers; and (D) in regard to a matter pertaining to the elected representative of the people which was likely to inhibit him in the discharge of his duties towards the nation, the controversy should be set at rest at the earliest if the facts of the case and the law so warrant." In the case of Azar Hussain, since the election petition was lacking the most vital and essential material facts, it was, therefore, dismissed summarily under O.7 R. 11 C.P.C. (7). Specific provision has been made relating to the contents of the election petition under Section 83 of the Act, which provides that the allegations of corrupt practice etc. Specific provision has been made relating to the contents of the election petition under Section 83 of the Act, which provides that the allegations of corrupt practice etc. are not lightly or frivolously made and the petition should be properly verified and the allegations contained in the election petition relating to corrupt practice should be stated with certain amount of definiteness and accuracy and the election petition, where the allegations of corrupt practices are made, shall be supported by an affidavit. The election petition, challenging the election of the returned candidate under the Act, is required strictly to conform to the requirements of the law. In the trial of the election dispute, the Court is put in straight-jacket and possesses no power to waive the non-compliance. The provisions of Section 83(1) of the Act are mandatory in nature. The election petition without a supporting affidavit, where the allegations of corrupt practices are made, is no election petition in the eye of law. The requirement of Section 83 of the Act is applicable to amended pleadings also. The present election petition does not comply with the mandatory requirements of Section 83 of the Act which render the election petition infirm and the same deserves to be dismissed. (8). In the case of Kishori Lal vs. Ranjeet Singh (supra), the verification of the election petition was not properly made and it was agitated before the Allahabad High Court that the election petition filed by the petitioner is not in accordance with Section 83(1)(c) of the Act. In that election petition, the amendment was allowed and the election petitioner was permitted to amend the election petition. The amendment can be allowed by the High Court during the pendency of the election petition under Section 86 of the Representation of People Act, 1951 to remove the vagueness by confining the allegations to the returned candidate only, has been held by the Honble Supreme Court in Sapas case (supra), also/There is no dispute so far as the allowing the amendment is concerned, but the controversy in the present case is whether any affidavit is required to be filed in support of the amended election petition. After filing of the amended election petition on 2-9-94, that is the only election petition pending for consideration before the Court and the original election petition cannot be considered as an election petition. After filing of the amended election petition on 2-9-94, that is the only election petition pending for consideration before the Court and the original election petition cannot be considered as an election petition. As per proviso to Section 83(1) the petition shall be accompanied by an affidavit in support of the allegations of corrupt practices and the particulars thereof where the allegations of corrupt practices are made. The affidavit is an integral part of the election petition and the proviso to Sub-section (1) of Section 83 is mandatory in nature. The amended election petition which is not accompanied by an affidavit required under proviso to Sub-section (1) of Section 83 suffers from this vital infirmity. The judgments, on which reliance has been placed by the learned counsel for the petitioner, are not applicable to the present controversy and they are of no help to the petitioner. (9). The next objection raised by the learned counsel for the respondent regarding the maintainability of the election petition is that the copy of the amended election petition served upon the respondent was not attested by the petitioner under his own signatures to be a true copy of the election petition and there is a complete non-compliance of Section 81(3) and, therefore, the Election petition deserves to be dismissed under Section 86 of the Act. The contention of the learned counsel for the petitioner, on this point, is that the requirement of Section 81(3) of the Act is applicable only to the main election petition arid not to the amended election petition. This argument is bereft of any substance because after the amendment is made and the amended election petition is filed, it is only the amended election petition which is pending for adjudication before the High Court and not the original election petition and the requirement of Section 81(3) of the Act are applicable to the amended election petition, also. The copy of the amended election petition served upon the respondent is admittedly not attested by the petitioner under his own signatures to be a true copy of the election petition. There is, therefore, complete non-compliance of Section 81(3) of the Act. The Legislature viewed the non-compliance of Section 81 (3) of the Act with gravity. The Court has no power to waive the non-compliance of Sections 81(3). There is, therefore, complete non-compliance of Section 81(3) of the Act. The Legislature viewed the non-compliance of Section 81 (3) of the Act with gravity. The Court has no power to waive the non-compliance of Sections 81(3). The Court can try only an election petition which complies with the provision of Section 81 of the Act and has no power to try the election petition which does not comply with the provisions of Section 81(3) of the Act. Disobedience of the mandate of Section 81(3) of the Act attracts Section 86 of the Act and the Court has no alternative except to dismiss the election petition in view of the command given in Section 86 of the Act. The statutory requirement of Section 81(3) of the Act has not been observed by the petitioner in supplying the copy of the amended election petition to the respondent, which attracts Section 86 of the Act and the election petition, therefore, deserves to be dismissed. (10). In the result, the preliminary objections, raised by the respondent (returned candidate Bhikha Bhai) are sustained and the election petition, filed by the election petitioner calling in question the election of Shri Bhikha Bhai from Sagwara Assembly Constituency, is rejected.