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2001 DIGILAW 670 (JHR)

RIT LAL PRASAD VERMA v. TILAKDHARI PRASAD SINGH

2001-09-14

D.N.PRASAD

body2001
Judgment : D. N. PRASAD, J. ( 1 ) THIS is an application (at flag H/i. A. 757/2001) raising preliminary objection regarding maintainability of the Election Petition to be dismissed under S. 86 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) for non compliance of mandatory provision of Ss. 81, 82 and 117 of the Act. ( 2 ) IT is stated that the election petition does not contain the material facts and material particulars as required under the provisions of Section 83 of the Act and so the complete cause of action does not arise. It is further alleged that the election petitioner has also made an allegation of corrupt practice but the full particulars of the said corrupt practice including the nature of the help or favour rendered to the respondent No. 1 has not been given. It is also alleged that the affidavit as required in the prescribed form has not been complied with. It is further alleged that there is an allegation about corrupt practice for procuring the help of Government officers, namely, Sri Mahavir Singh, Circle Officer, Dhanwar and Assistant, Chandrama Sharma for his success, but the full particulars including the date, time and place of canvassing have not been described and as such the Election petition is not maintainable and it is fit to be dismissed. ( 3 ) ON the other hand, the election petitioner filed a petition by way of rejoinder claiming therein that this application raising preliminary objection is fit to be dismissed summarily, as the petitioner has already complied the provisions as required under Sections 81, 82 and 117 of the Act. Material facts as well as material particulars have duly been described in the election petition and full details of corrupt practice have also been stated parawise which have duly been affidavited under the Form 25 of the Conduct of Election Rules, 1961. The election petitioner has already mentioned the name of the person, being an officer posted at Dhanwar block and he has also given the name of the Circle Officer. Thus, there is no merit in the preliminary objection petition, which is fit to be rejected. The election petitioner has already mentioned the name of the person, being an officer posted at Dhanwar block and he has also given the name of the Circle Officer. Thus, there is no merit in the preliminary objection petition, which is fit to be rejected. ( 4 ) THE learned counsel appearing on behalf of the respondent No. 1 submitted that there is no compliance of provision of Sections 81, 82 and 117 of the Act as well as there is no disclosure of material fact and as such the election petition is fit to be dismissed for having no cause of action. It is further argued that there is an allegation of corrupt practice, but no particulars as required under law has been described as well as the affidavit in the prescribed Form has not been affidavited. Thus, the Election petition is fit to be dismissed. The counsel for the respondent No. 1 also relied upon the cases reported in AIR 1996 SC 1691 , (Dr. Smt. Shipra v. Shanti Lal Khoiwal); AIR 1996 SC 3350 , (Harcharan Singh Josh v. Hari Kishan); AIR 1992 Bom 227 , (Purushottam v. Amravati) and AIR 2000 SC 694 , (V. Narayanaswamy v. C. P. Thirunavukkarasu ). ( 5 ) FORM 25 under Rule 94a of the Conduct of Election Rules, 1961 reads as under:"i,. . . . . . . . . . . . . the petitioner in the accompanying election petition calling in question the election of Shri/shrimati. . . . . (respondent No. . . . . . . . in the said petition) make solemn affirmation/oath and say- (a) that the statements made in paragraphs. . . . . . of the accompanying election petition about the commission of the corrupt practice of. . . . . . . and the particulars of such corrupt practice mentiond in paragraphs. . . . . . of the same petition and in paragraphs. . . . . . of the Schedule annexed thereto are true to my knowledge; (b) that the statements made in paragraphs of the said petition about the commission of the corrupt practice of. . . . . . . . and the particulars of such corrupt practice given in paragraphs. . . . . . of the said petition and in paragraphs. . . . . . . . . . . . and the particulars of such corrupt practice given in paragraphs. . . . . . of the said petition and in paragraphs. . . . . of the said petition and in paragraphs of the Schedule annexed thereto are true to my information; (c) and (d) etc. . . . . . . . . . Signature of deponent solemnly affirmed/sowrn by Shri/shrimati. . . . . . . at. . . . . . . this. . . . . . day of. . . . . . 19 before me, magistrate of the First Class/ notary/commissioner of Oaths. " ( 6 ) FROM going through the Election petition, it is apparent that the Election petitioner put his signatue on each page and verification has been made parawise after putting his signature. The Election petitioner furher filed the affidavit dated 18-11-99 describing in para-3 that he statements made in para-2, 7 (Pt.) 8, 9, 12 (pt.), 13 (pt.), 17 etc. are true to my knowledge and the statements made in para-4, 5, 6, 7 (Pt.), 10, 11 etc. are true to my information, which has duly been affidavited before the Commissioner Oath after putting the seal and signature. ( 7 ) IT is true that there is an allegation of corrupt practice made in the Election petition, but the Election petitioner filed the Election petition duly verified and affidavited in accordance with the Rules 94a of Conduct of Election Rules, 1961 under Form 25. ( 8 ) FURTHERMORE, it is apparent from the Election petition that some documents (Annexures) have also been filed showing material particulars in support of the allegations which though are subject to consideration on merit. It is settled that in case of defect in material facts, he Election petition can be rejected at the outset, but in case of defect in material particulars, it can be cured subsequently and for which the Election petition cannot be thrown away. Paras 23, 25, 26, 27 and 30 onward of the Election petition indicating material facts. Thus, the Election Petition contains the material facts constituting cause of action. ( 9 ) IN the case of H. D. Revanna v. G. Puttaswamy Gowda, AIR 1999 SC 768 , the Apex Court held as under :"section 86 provides for dismissal of election petition in limine for non-compliance of Sections 81, 82 and 117. Thus, the Election Petition contains the material facts constituting cause of action. ( 9 ) IN the case of H. D. Revanna v. G. Puttaswamy Gowda, AIR 1999 SC 768 , the Apex Court held as under :"section 86 provides for dismissal of election petition in limine for non-compliance of Sections 81, 82 and 117. Significantly Section 86 does not refer to Section 83 and non-compliance of Section 83 does not lead to dismissal under Sec. 86. Defect in verification of the election petition or the affidavit accompanying election petition is curable and not fatal. Non compliance of Section 83 may lead to dismissal of the petition only if the matter falls within the scope of Order VI Rule 16 or Order VII Rule 11 C. P. C. " ( 10 ) THE same view has been reiterated by the Apex Court in the case of Dr. Vijay Laxmi Sadho v. Jagdish, AIR 2001 SC 600 and it was held as under :"an election petition is liable to be dismissed in limine under Section 86 (1) of the Act only if the Election petition does not comply with either of the provision of Section 81 or 82 or Section 107 of the Act. The requirement of filing an affidavit along with an Election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83 (1) of the Act. Thus, an Election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions f Section 83 (1) of the Act or of its proviso. What other consequences, if any, may follow from an allegedly defective affidavit, is to be judged at the trial of the Election petition but Section 86 (1) of the Act in terms cannot be attracted to such cases. Defect in verification of an affidavit is curable and does not merit dismissal of an election petition in limine under Section 86 (1) of the Act. " ( 11 ) HAVING regard to the above facts and circumstances, coupled with the consistent views taken by he Apex Court in this score, I am constrained to hold that this preliminary objection petition has got no merit, which is accordingly dismissed. --- *** --- .