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1996 DIGILAW 364 (KER)

A. Mohammed v. Nalakath Soopy

1996-08-22

P.K.BALASUBRAMANYAN

body1996
Judgment :- Baiasubramanyan,J. This Election Petition is filed by the defeated candidate in the election held on 27.4.1996 to the Kerala Legislative Assembly from 42 Perinthalmanna Constituency. The challenge to the election of the respondent from that constituency is on a charge of corrupt practice indulged in by the respondent. The Election Petition is therefore accompanied by an affidavit as enjoined by S.83 of the Representation of the People Act. The respondent was declared elected on 9.5.1996 and the Election Petition was filed on 22.6.1996. Summons was directed to be issued by the assigned judge on 26.6.1996 returnable by 23.7.1996. On 23.7.1996, the respondent appeared and sought some more time to file his written objection. The Election Petition was adjourned to 5.8.1996 on which day, written objections were filed and the Election Petition was adjourned for replication if any by the petitioner. The respondent had raised a preliminary objection to the maintainability of the Election Petition based on the copies of the Election Petition served on him. Since it was felt appropriate to hear that question initially, the Election Petition was adjourned for a hearing on that question. Arguments on the question of maintainability were heard on 12.8.1996 and 13.8.1996. 2. As emerging from the pleadings and the submissions made at the bar and on the suggestions of counsel appearing in the case, the following three issues were framed as preliminary issues. 1. Is the affidavit that accompanies the Election Petition based on allegations of corrupt practice in accord with the requirements of the proviso to S.83(1) of the Representation of the People Act, R.94A of the Conduct of Election Rules, 1961 and Form No. 25 referred to in that Rule? 2) If it is not, is it fatal to the maintainability of the Election Petition? 3) Do the copies of the Election Petition served on the respondent satisfy the mandatory requirement of S.81(3) of the Representation of the People Act and is the Election Petition liable to be dismissed for non-compliance with that Section? 3. Issue 1 and 2: The relief claimed in the Election Petition is on the allegation of corrupt practice indulged in by the respondent. There is therefore, no dispute that the Election Petition should be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice. 3. Issue 1 and 2: The relief claimed in the Election Petition is on the allegation of corrupt practice indulged in by the respondent. There is therefore, no dispute that the Election Petition should be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice. R.94-A of the Rules prescribes that the affidavit referred to in the proviso to sub-s.(1) of S.83 shall be sworn before a Magistrate of the First Class or a Notary or a Commissioner of Oaths and shall be in Form No. 25. Form 25, after setting out the form of the affidavit also provides that the affidavit should have been solemnly affirmed or sworn before a Magistrate of the First Class, a Notary or a Commissioner of Oaths. The affidavit filed in this case was not affirmed by the petitioner either before a Magistrate of the First Class or a Notary or a Commissioner of Oaths as insisted upon by R.94-A of the Rules. It is affirmed before an Advocate practising in this Court. Actually, it is affirmed before counsel who appears for the petitioner and it is attested by him. The contention raised on behalf of the respondent is that this affidavit not having been affirmed before a Magistrate of the First Class or a Notary or a Commissioner of Oaths were insufficient to satisfy the mandatory requirements of the proviso to S.83(1) of the Act and R.94A of the Rules. It is submitted on behalf of the respondent that an Advocate is not any of the officers or authorities referred to in R.94-A of the Rules and hence it is defective. It is further contended that since the affidavit is an integral part of the Election Petition, the defect in the affidavit is fatal to the maintainability of the Election Petition. 4. Learned counsel for the respondent has relied on the recent decision of the Supreme Court in Dr. (Smt) Shipra v. Shanti Lai Khoiwal UT 1996 (5) SC 681) to contend that strict compliance with the requirements of R.94-A of the Conduct of Election Rules and Form 25 is mandatory and the affidavit not having been sworn before any of the persons mentioned in R.94-A of the Rules is obviously defective and consequently the Election Petition itself is not maintainable. He pointed out that in Dr. He pointed out that in Dr. Shipra 's case, even though there was an affirmation before one of the persons referred to in R.94-A of the Rules mere absence of such an affirmation in the copy served on the respondent was found to be fatal to the maintainability of the Election Petition. He urged that the Advocate who had attested the affidavit in this case is admittedly not a Notary and is not a person who has been appointed as Commissioner of Oaths even in terms of S.139 of the Code of Civil Procedure. He also relied on the following passage in the decision in Satya Narain v. Dhuja Ram (AIR 1974 SC 1185) to the effect "It is well settled that it is a special right conferred under a self contained special law and the court will have to seek answer to the questions raised within the four corners of the Act and the powers of the court are circumscribed by its provisions. It is not a common law right and an Election Petition cannot be equated with a plaint in a civil suit." to submit that an election Petition has to strictly comply with the requirements of the Act and the relevant rules enacted in that behalf. In Shipra's case Mr. Justice Ramaswamy has observed as follows: " Verification by a Notary or any other prescribed authority is a vital act which assures that the election petitioner had affirmed before the Notary etc. that the statement containing imputation of corrupt practices was duly and solemnly verified to be correct statement to the best of his knowledge or information as specified in the election petition and the affidavit filed in support thereof; that reinforces the assertions. Thus, affirmation before the prescribed authority in the affidavit and the supply of its true copy should also contain such affirmation so that the returned candidate would not be misled in his understanding that imputations of corrupt practices was solemnly affirmed or duly verified before the prescribed authority. For that purpose, Form 25 mandates verification before the prescribed authority. The object appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy cannot be said lobe a curable irregularity. The object appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy cannot be said lobe a curable irregularity. Allegations of corrupt practices are very serious imputations which, if proved, would entail civil consequences of declaring that he became disqualified for election to a maximum period of six years under S.8A, apart from conviction under S.136(2). Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidates should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petitioner in his/her own signature. The principles of substantial compliance cannot be accepted in the fact-situation". 5. At the same time, in Manohar Joshi v. N.B. Patil (AIR 1996 SC 796) the Supreme Court has observed that: " non-compliance of S.83, is not specified as a ground for dismissal of the election petition under S.86. Thus, the plea that if the contents of the election petition which has been filed and the copy accompanying it do not satisfy the requirement of S.83(1), there is non-compliance of S.81(3) attracting S.86 for dismissal of the election petition, would not be tenable particularly when S.86 being in the nature of a penal provision, has to be construed strictly confined to its plain language". 6. An affidavit to accompany an Election Petition in cases involving allegations of corrupt practice is the requisite of S.83 of the Act. Though the general verification under S.83(1)(c) of the Act regarding the Election Petition is the same as the one laid down in the Code of Civil Procedure for verification of pleadings, regarding corrupt practice the proviso provides that the petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof (emphasis supplied). There cannot be any doubt about the prescribed form. There cannot be any doubt about the prescribed form. The prescription is contained in R.94-A of the Conduct of Election Rules which provides that the affidavit referred to in the proviso to sub-s.(1) of S.83 shall be sworn before a Magistrate of the 1st Class or a Notary or a Commissioner of Oaths and shall be in Form 25. Form 25 also emphasises that the affidavit is to be sworn before the three entities mentioned in the Rule. It is therefore, clear that going by the proviso to S.83(1) of the Act in the light of R.94-A of the rules and Form 25, the affidavit accompanying the present Election Petition does not satisfy the mandate of the proviso to S.83(1) of the Act and R.94-A of the Rules subject of course to the argument of learned counsel for the petitioner that every Advocate is a Commissioner of Oaths within the meaning of R.94-A of the Rules. 7. As noticed the affidavit was sworn to before an Advocate practicing in this court. There is no case that the Advocate who has attested the affidavit has been appointed by the High Court or by any other court empowered by the State Government in that behalf by an order under S.139 of the Code of Civil Procedure. What is contended by learned counsel for the petitioner is that under S.3 of the Oaths Act 1969, High Court can empower an Advocate for attesting affidavits for the purpose of judicial proceedings. He refers to R.76 of the Rules of the High Court of Kerala framed by the High Court by virtue of the powers conferred on it by Art.226 of the Constitution, by S.122 of the Code of Civil Procedure and all other powers enabling it in that behalf which provides that an affidavit may be sworn or affirmed among the various persons referred to therein also before an Advocate. According to learned counsel reference to all other powers enabling the High Court under which the Rules are framed, the authorisation contained in R.76 of the Rules of the High Court of Kerala must be taken to be an appointment by the High Court in terms of S.139 of the Code of Civil Procedure as an Oaths Commissioner. He relies on the decision of this Court in P.R. Francis v. Raghavan Pozhakadavil (AIR 1981 Ker. 64) in support of his contention. He relies on the decision of this Court in P.R. Francis v. Raghavan Pozhakadavil (AIR 1981 Ker. 64) in support of his contention. In that decision dealing with a similar objection to the affidavit being sworn to before an Advocate and attested by him, His Lordship Mr. Justice George Vadakkel after referring to the arguments in that behalf, the proviso to S.83(1) of the Act, R.94-A of the Rules and Form 25 considered the question whether an Advocate could be deemed to be a Commissioner of Oaths and as" such competent to attest the affidavit sworn to or affirmed before him for the purpose of an Election Petition. His Lordship after referring to S.139 of the Code of Civil Procedure and Rule 76 of the Rules of the High Court of Kerala held that the affidavit in support of the allegation of corrupt practice sworn before an Advocate was in conformity with the requirements of law and therefore, the petition was maintainable. His Lordship has postulated that the authorisation given to an Advocate by R.76 of the Rules of the High Court of Kerala would be sufficient to constitute him as a Commissioner of Oaths. His Lordship observed: "Though, perhaps, as argued on behalf of the 1st respondent, it may be that a Commissioner of Oaths appointed under S.139 of the Code of Civil Procedure, 1908 may be competent only to administer oaths and formations where the affidavits are to be filed before Civil Courts, and those commissioners, appointed under S.297 of the Code of Criminal Procedure, 1973 are competent to do so only where such affidavits are to be filed before criminal courts, in so far as the appointment here is by R.76 of the High Court Rules, 1971 made by this Court under all its enabling powers, and since under S.87(1) of the Act, the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits, as nearly as may be, governs the trial of an election petition, there is no merit in the contention advanced on behalf of. the 1st respondent that an advocate is not a Commissioner of Oaths mentioned in R.94-A of the Conduct of Election Rules, 1961". His Lordship derived support from the decision of the Supreme Court in Kamal Narain v. Dwarka Prasad (AIR 1966 SC 436) in support of the above proposition. 8. the 1st respondent that an advocate is not a Commissioner of Oaths mentioned in R.94-A of the Conduct of Election Rules, 1961". His Lordship derived support from the decision of the Supreme Court in Kamal Narain v. Dwarka Prasad (AIR 1966 SC 436) in support of the above proposition. 8. Kamal Narain's case relied on by the learned judge was an instance where there was an appointment of a clerk as an Oaths Commissioner under S.139(c) of the Code of Civil Procedure and the affidavit was sworn to before him. The argument involved in that case was that such an Oaths Commissioner was not a competent person in terms of R.94-A of the Conduct of Election Rules and since R.94-A of the Rules does not state before which Commissioner the affidavit must be sworn, it must be read as including all Commissioners of Oaths duly appointed. With respect, as far as an Advocate conferred with the right to attest affidavits in proceedings to be filed before the court by R.76 of the Rules of the High Court of Kerala, there is no appointment of him as an Officer by any Notification or appointment under S.139 of the Code. In my view, the mere fact that the Rules of the High Court of Kerala have been framed in assumption of all powers in that behalf does not lead to an inference that the authority conferred on an Advocate to attest an affidavit for the purpose of proceedings in the High Court of Kerala in general would amount to an order designating him or appointing him a Commissioner of Oaths within the meaning of S.139 of the Code of Civil Procedure. In my view, therefore the principle of the decision in Kamal Narain's case cannot help the petitioner to contend that every Advocate practicing in this Court must be deemed to be an Oaths Commissioner before whom the necessary affidavit under proviso to S.83(1) of the Act can be sworn to in terms of R.94-A of the Rules. It may be true that every Advocate may be competent to be appointed as an Oaths Commissioner as observed by George Vadakkel, J. in the decision referred to above. It may be true that every Advocate may be competent to be appointed as an Oaths Commissioner as observed by George Vadakkel, J. in the decision referred to above. But, with respect, it does not mean that every Advocate is appointed an Oaths Commissioner merely by the enactment of R.76 of the Rules of the High Court of Kerala which permits the swearing to or affirmation of an affidavit before an Advocate. I am therefore, of the view that the affidavit filed in the case on hand does not comply with the mandate of the proviso to S.83(1) of the Act read with R.94-A of the Rules. 9. The next aspect to be considered is what is the effect of this finding on the Election Petition. S.80 of the Act provides that no election shall be called in question except by an Election Petition presented in accordance with the provisions of Chapter II of the Act. S.81 deals with the presentation of petitions and S.83 provides for affidavits to accompany the Election Petitions in cases involving allegation of corrupt practice. In view of the failure to file a proper affidavit in terms of the proviso to S.83(1) of the Act read with R.94-A of the Rules the Election Petition is obviously defective. The question for consideration at this stage is whether that defect is fatal to the maintainability of the Election Petition. There cannot be any doubt that there must be an affidavit in support of an Election Petition when it contains allegations of corrupt practice. The affidavit is therefore, an integral part of the Election Petition alleging corrupt practice in view of the decision in Shipra, whatever might have been the earlier view in that regard. In Sapa v. Singora (AIR 1991 SC 1557) it is indicated that defect in verification/ affirmation could be got corrected by the High Court and a defect in verification is not itself fatal. But, with respect, the decision in Dr. Shipra appears to take a view that the failure to have the affidavit verified or affirmed in the manner prescribed by R.94-A of the Rules is fatal to the Election Petition. I have quoted the relevant passage in that judgment earlier. This view is also supported by the observations of Paripoornan, J. in the said decision while referring to the decision of the Bombay High Court quoted therein, with approval. I have quoted the relevant passage in that judgment earlier. This view is also supported by the observations of Paripoornan, J. in the said decision while referring to the decision of the Bombay High Court quoted therein, with approval. Since the decision in Dr. (Smt.) Shipra v. Shanti Lai Khoiwal (JT 1996 (5) SC 681) is later of the two decisions rendered by three Judge Benches of the Supreme Court, I think that this court will be acting properly if it follows the later decision. Following the ratio in Dr. Shipra's case I hold that the failure to have the affidavit accompanying the Election Petition sworn to or affirmed before a Judicial Magistrate of the First Class or a Notary or a Commissioner of Oaths is fatal to the maintainability of the Election Petition. Issue No. 3 This issue relates to non-attestation of the copies of the Election Petition by the petitioner in all pages of the Election Petition. The respondent has produced the copy of the Election Petition served on him with a prayer that it may be marked in evidence. I have marked that copy as Ext. XI. On a scrutiny of Ext. XI it is seen that none of the pages in the copy served on the respondent could be said to be a true copy of the Original. Whereas each page of the Original contains the signature of the petitioner and his counsel, the pages in the copy do not contain the signature of counsel or indication that he has signed the original at the appropriate place indicating that it represents the true copy of the original page. Nor do the pages in the copy contain, a second signature of the petitioner certifying that it is a true copy. What is seen is only the mere reproduction of the signature of the petitioner in the original pages 1 to 13 of the Election Petition. At page 14 of the copy, which is the last page of the Election Petition proper, the signature of the petitioner is found at the place where the petitioner has signed in the original as the petitioner in the Election Petition and is also found at the place where the petitioner has verified as in the Original Election Petition. At page 14 of the copy, which is the last page of the Election Petition proper, the signature of the petitioner is found at the place where the petitioner has signed in the original as the petitioner in the Election Petition and is also found at the place where the petitioner has verified as in the Original Election Petition. There is no signature of the petitioner at the bottom of the Election Petition or an attestation by him that that was a true copy of the Election Petition as mandated by S.81(3) of the Act. The same is the position regarding page 15 of the copy served on the respondent which is the copy of the affidavit attested by an Advocate accompanying the Election Petition. In that page also only the signature of the petitioner is found in the place representing the place where the deponent has signed in the original in that respect and is followed by an attestation by counsel. There is no signature or attestation as true copy of the bottom of that page. The same is the position with annexure- a where the signature of the petitioner is only as in the original and not as in token of attestation as true copy of that page. According to learned counsel for the respondent, the failure of the petitioner to attest the copy of the affidavit as true copy and copy of the Election Petition as true copy is fatal to the Election Petition. Learned counsel relies again on the observations in Dr. Shipra 's case in support of his contention. He also relies on the relevant observations of the Supreme Court in Sharif-Ud-Din v. Abdulgani Lone (AIR 1980 SC 303) to emphasise the need for attestation of the copy by the petitioner himself. It is also contended that verification before the specified authority is also absent in the copies served on the respondent and these defects make the copy served on the respondent not one in terms of S.81(3) of the Act. It is also contended that verification before the specified authority is also absent in the copies served on the respondent and these defects make the copy served on the respondent not one in terms of S.81(3) of the Act. Learned counsel for the Election Petitioner does not dispute the factum of absence of signature of the petitioner at the bottom of pages 14,15 and 16 of the copy of the Election Petition served on the respondent; not does he dispute the fact that in the other pages of the Election Petition, there is no indication that the original is signed by counsel and no formal attestation to the effect that the said page is a true copy of the original. But his contention is that those pages contained the signature of the petitioner at the bottom and affixing of such signature even without attestation as true copy would be sufficient in the light of the decision in CH. Subbarao v. Member, Election Tribunal (AIR 1964 SC 1027). He also submits that in the light of the decision of the Supreme Court in Murarka Rodney Shy am v. Roop Singh (AIR 1964 SC 1964 SC 1545), Kamalam v. Dr. Said Mohammed (AIR 1978 SC 840) since signatures are found on all pages though not signifying attestation as true copy, it could be taken as sufficient compliance with the requirements of S.81(3) of the Act. But as indicated in Dr. (Smt.) Shipra 's case, the theory of substantial compliance cannot be extended to cover up cases falling upon S.81(3) of the Act. Moreover, the signature found at pages 1 to 13 and at pages 14,15 and 16 are really signatures that are merely intended to be a copy of those on the original and could not be taken as signatures affixed in token of attestation of the copies as true copies. It is no doubt true that the affixing of the signature in original in the copy at the place where the deponent has signed and at the place where the petitioner has signed in the original and at the place where the petitioner has verified the original may not be necessary as observed in C.H. Subbarao 's case. It is no doubt true that the affixing of the signature in original in the copy at the place where the deponent has signed and at the place where the petitioner has signed in the original and at the place where the petitioner has verified the original may not be necessary as observed in C.H. Subbarao 's case. But in the absence of those signatures at the place where they are now placed, it could not be said that the copies would correspond to the original or that the copies could be considered as true copies of the original. In such a situation, in my view, affixing of at least another signature at the bottom of the concerned pages even if there be no attestation as true copy by the petitioner was needed at least to hold that there was substantial compliance with the requirement of attestation as true copies within the meaning of S.81(3) of the Act. My finding therefore, on this issue is that pages 1 to 13 cannot be deemed to be true copies of the original by not attesting the pages 14,15 and 16 of Ext. XI as true copies of the original, the petitioner has failed to comply with the mandatory requirement of S.81(3) of the Act and consequently, the Election Petition is liable to be dismissed for non-compliance with that Section. In view of my rending on the above issues, it has to be held that the Election Petition filed by the petitioner is not maintainable for want of compliance with S.81 of the Act. In that view, I am constrained to dismiss the Election Petition. Since the Election Petition is being dismissed on technical grounds, I am inclined to direct the parties to suffer their respective costs. The Registrar shall intimate the substance of this decision to the Election Commission and the Speaker of the Kerala State Legislative Assembly without delay and shall sent to the Election Commission an authenticated copy of this decision as soon as possible as required under S.103 of the Act.