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2001 DIGILAW 843 (PAT)

Anand Mohan v. Md. Anwarul Haque

2001-09-06

M.L.VISA

body2001
Judgment 1. This is an order on an application filed by respondent No. 1 under section 86(1) of Representation of People Act, 1951 (in short, the Act) read with Order 6, rule 16 and Order 7, rule 11 of the Code of Civil Procedure (in short, CPC) for noncompliance of mandatory provisions of sections 81, 82, 83 and 117 of the Act and rejoinder to this application filed by election petitioner. 2. Respondent No. 1 in this application has stated that election petition was presented within the period of limitation but without affixing requisite court fee stamp on the petition and deficit court fee stamp of Rs. 15/- was filed on 8.3.2000, much beyond the expiry of the period of limitation which expired on 21.11.99 and in this view of the matter election petition is fit to be dismissed summarily under section 86 (1) of the Act. Further case of respondent no. 1 is that election petitioner has made serious allegations of corrupt practices of various kinds such as undue influence, booth capturing and procuring help of gazetted officers including returning officer which are apparent from the pleading of the election petition including various annexures but the election petitioner has failed to give relevant facts and full particulars as required under the law by the mandatory provisions of section 83 of the Act and election petitioner has not given any extra affidavit prescribed under Form-25 read with section 83 of the Act and Rule 94A of the Conduct of Election Rules, 1961 (in short Election Rules). Further case of respondent no. 1 is that the allegations regarding commission of irregularities and illegalities in the counting of ballot papers are vague, scandalous and vexatious and there is no document to support such allegations. So the entire allegation of commission of irregularities and illegalities in the counting of ballot papers is fit to be struck off from the pleading of election petition under Order 6, rule 16 of CPC. The further grievance of respondent no. 1 is that copy of election petition served on him is not a true copy of original election petition presented in this Court and there are many discrepancies betwen the two and such discrepancies have not only prejudiced respondent no. 1 but have also misled him. Prayer has been made for dismissing the election petition summarily as being not maintainable. 3. Opposing the prayer of respondent no. 1 but have also misled him. Prayer has been made for dismissing the election petition summarily as being not maintainable. 3. Opposing the prayer of respondent no. 1, the election petitioner in this rejoinder has stated that requirements of sections 81, 82 and 117 of the Act have been fully complied with by the election petitioner and about non-affixing requisite court fee stamp on the petition it is stated that the election petition was presented within the period ot limitation and election petitioner was granted time by this Court to remove the defects pointed out by the stamp reporter and election petitioner complied this direction in time and in this view of the matter it cannot be said that election petition was not presented within the period of limitation. The further case of election petitioner is that he has not alleged any corrupt practice against any of the contesting candidates and/or election agents and therefore, no extra affidavit prescribed under Form-25 was required to be filed. The further case of election petitioner is that he has given full details of the material facts and particulars as per requirement under section 83 of the Act. About the alleged grievance of respondent no. 1 in respect of discrepancies in the original election petition and copy served on respondent no. 1 it has been stated that true copy of the election petition has been served on respondent no. 1 and only a vague, statement has been made that there are many discrepancies between the original election petition and its copy without citing a single instance of any discrepancy. According to the election petitioner, respondent no. 1 has entered his appearance only after publication of notice in the newspaper and he has not filed written statement in spite of taking time on two occasions and now he has filed the present application under consideration only to delay the disposal of election petition. Prayer has been made for dismissing the application of respondent no. 1. 4. Learned counsel for respondent no. 1 has submitted that the election petitioner has come up before this Court with the allegations of corrupt practices of various kinds such as undue influence, booth capturing and procuring the help of some officials including the returning officers which are apparent from some an-nexures of the election petition. 1. 4. Learned counsel for respondent no. 1 has submitted that the election petitioner has come up before this Court with the allegations of corrupt practices of various kinds such as undue influence, booth capturing and procuring the help of some officials including the returning officers which are apparent from some an-nexures of the election petition. He has pointed out Annexures 3, 3/1, 3/2, 3/3, 3/4, 3/5, 3/6 and 3/7 in this regard. According to him, these annexures are integral part of pleadings and in these annexures the election petitioner has levelled allegations against respondent no. 1 for capturing certain booths with the help of unsocial elements resulting in depriving some voters to caste their votes according to their discretion. According to him, booth capturing by a candidate or his agent or other persons under section 123 (8) of the Act shall be deemed to be corrupt practices for the purpose of the Act and because the election petition has not been supported by an affidavit prescribed under Form 25 as provided by Rule 94A of the Election Rules the election petition suffers from the defect of non-compliance of proviso to sub-section (1) of section 83 of the Act and on this ground the petition is liable to be dismissed. In support of his argument he has relied upon a decision of the Apex Court in the case of Rabinder Singh V/s. Janmeja Singh reported in (2000) 8 SCC 191 . It has further been argued by him that besides the aforesaid defect the ejection petition does not contain full particulars of corrupt practices as alleged and the petition is otherwise defective for want of fulfilment of requirements as provided under section 83(b) of the Act. In support of this argument he has relied upon a decision of this Court in the case of Chandrashekhar Singh V/s. Sarjoo Prasad Singh (AIR 1961 Patna 189). 5. Learned counsel appearing on behalf of the petitioner has submitted that election petitioner has not challenged the election of respondent no. In support of this argument he has relied upon a decision of this Court in the case of Chandrashekhar Singh V/s. Sarjoo Prasad Singh (AIR 1961 Patna 189). 5. Learned counsel appearing on behalf of the petitioner has submitted that election petitioner has not challenged the election of respondent no. 1 on the allegation of corrupt practices and the main grievance of election petitioner is illegalities and irregularities committed in the counting of votes polled and because the ground of corrupt practice has not been taken by the election petitioner, therefore, there was no question of giving an extra affidavit in Form 25 prescribed by Rule 94A of the Election Rules under proviso to sub-section (1) of section 83 of the Act. He has further submitted that the same principle applies for not giving full particulars of corrupt practices regarding name of parties alleged to have committed such corrupt practices and the date and place of commission of each such corrupt practice because petitioner is not challenging election of respondent no. 1 on the ground of corrupt practices. He has further submitted that prayer of election petitioner in the petition is for recounting of votes of the Parliamentary Constituency in question and on the basis of such counting the election petitioner be declared as returned candidate because in para 125 of the election petition the petitioner has clearly stated that because of large scale bungling and irregularities the petitioner was defeated though as a matter of fact he had got the largest number of votes but for the said irregularities only he would have been declared elected and this statement by the election petitioner means that he is challenging the election on the ground of illegalities and irregularities committed in the counting of votes. it has further been argued on behalf of the election petitioner that no doubt annexures as pointed out by the learned counsel appearing on behalf of respondent no. 1 have been filed by the election petitioner but in most of these annexures the grievance of petitioner was because respondent no. 1 had captured some of polling booths with the help of ante-social elements and, therefore, repolling on such booths be held and in some of the annexures the election petitioner has raised apprehension that fair poll would not be possible. 1 had captured some of polling booths with the help of ante-social elements and, therefore, repolling on such booths be held and in some of the annexures the election petitioner has raised apprehension that fair poll would not be possible. But then these annexures have been filed only for the purpose of showing the conduct of persons engaged in the counting of votes and the returning officer that they refused the prayer of petitioner for re-poll and committed illegalities and irregularities in the counting. 6. After considering the submission of both the sides on the point of filing affidavit under Form 25 as prescribed by Rules 94A of the Election Rules and which is required under proviso to subsection (1) of section 83 of the Act, I find that it is the own submission of learned counsel for the election petitioner that he is not challenging the election of respondent no. 1 on the allegation of corrupt practices. The question of filing such an affidavit does not arise since the prayer of election petitioner is for re-counting of votes and learned counsel for election petitioner in his reply to the petition of respondent no. 1 under consideration as well as in his submissions has stated that election of respondent no. 1 is not being challenged on the ground of corrupt practices and petition cannot be dismissed at preliminary stage for want of affidavit in Form 25. About not giving full particulars of material facts in the petition learned counsel appearing on behalf of the election petitioner has submitted that under section 83 (a) of the Act petitioner is required to give a concise particulars of material facts on which he relies and election petitioner in his petition has given concise particulars of irregularities committed in the counting of votes. In the case of Amar Nath V/s. Janardan Prasad Ojha ( AIR 1988 All 116 ) it has been held that election petition is to be read as a whole and allegations are to be construed properly gathering intention of the party concerned primarily from the tenor and terms of the pleadings taken as a whole. Agreeing with his submission I find that because the election petitioner is not challenging the election of respondent no. Agreeing with his submission I find that because the election petitioner is not challenging the election of respondent no. 1 on the ground of any corrupt practice he is not required to give full particulars of such corrupt practice including a full statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such practice as required under section 83(b) of the Act. 7. I further find that objection raised on behalf of respondent no. 1 that the election petition is not supported by an affidavit in Form 25 as mentioned in Rule 94A of the Election Rules and petition does not contain full particulars of the material facts has got no basis. 8. About another objection raised on behalf of respondent no. 1 is that although election petition was filed within time prescribed by law of limitation but it was filed without proper court-fee which was subsequently filed when time of limitation had already expired and in this view of the matter the election petition cannot be said to be filed within time under Rule 6 of Chapter XXl-E of Patna High Court Rules. From perusal of record I find that election petition was filed on 19.11.99 before this Court and this Court after considering certain circumstances in which election petition was filed without stamp report directed the office to make proper stamp report and after report the court allowed time to petitioner to remove the defects and when the defects were removed including the payment of court-fee the petition was admitted on 10.3.2000. it is true that Rule 6 of Chapter XXl-E of Patna High Court Rules prescribes that an election petition has to be presented to the Stamp Reporter of the Court who shall certify thereon if it is within time and in conformity with the requirements of the Act and the Rules in this behalf, or is defective and shall thereafter return the petition to the petitioner for making the formal presentation after removing the defects but then this Rule provides that the aforesaid procedure is subject always to the orders of the Judge. In the instant case, election petition was presented before a Judge of this Court who ordered the office to make proper stamp report and after report allowed time to petitioner for removing defects and the defects were removed within the time granted by Court and thereafter the petition was admitted. So I find that this subject raised on behalf of respondent no. 1 is also without any merit and election petition on this score cannot be dismissed. 9. The last objection raised on behalf of respondent no. 1 is that he has not been supplied a true copy of original election petition presented in the Court and there are many discrepancies between the copies supplied to respondent no. 1 and original petition which has not only prejudiced respondent no. 1 but has also misled him. 10. It is true that according to section 81(3) of the Act every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy of petition shall be attested by the petitioner under his own signature to be a true copy of the petition. In the case of Mithilesh Kumar Pandey V/s. Baidyanath Yadav and ors. In the case of Mithilesh Kumar Pandey V/s. Baidyanath Yadav and ors. ( AIR 1984 SC 305 ) the Apex Court has held the following principles in respect of copy of election petition "(i) That where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petitioner cannot be dismissed straightaway under section 86; (ii) A true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the court may not take notice thereof; (iii) Where the copy contains important omission or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has been a substantial compliance of the provisions of Section 81(3) of the Act; (iv) Prima facie, the statute uses the words "true copy" and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81(3) of the Act, and (v) As Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said section." 11. In the petition under consideration respondent no. 1 has not disclosed any discrepancy between the copy of election petition supplied to him and the original election petition and he has simply stated that such discrepancy will be demonstrated in this Court at the time of arguing the preliminary objection petition but during the course of argument also not a single discrepancy of such nature was pointed out. In absence of stating any discrepancy between the true copy and the original election petition it is very difficult to say that whether there is any discrepancy between the two and if it is there whether it is clerical or typographical or it is insignificant or it has caused prejudice to respondent no. 1. I therefore find that this objection is also without any merit. 12. In the result, I find no merit in the petition filed by respondent no. 1. I therefore find that this objection is also without any merit. 12. In the result, I find no merit in the petition filed by respondent no. 1 praying therein for dismissal of election petition at preliminary stage. The petition of respondent no. 1 is accordingly dismissed. 13. To 19.9.2001 for filing written statement by respondent no. 1.