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Chhattisgarh High Court · body

2005 DIGILAW 173 (CHH)

SHANT KUMAR JAISWAL v. NAND KUMAR PATEL

2005-04-29

L.C.BHADOO

body2005
( 1 ) THIS order shall govern the disposal of I. A. No. 2602/2004 filed on behalf of respondent No. 1-Nand Kumar Patel, the returned candidate, for dismissal of the election petition for non-compliance of the mandatory provisions of law i. e. proviso to section 83 read with Rule 94-A of the Conduct of Election Rules 1961 for not filing the affidavit in Form-25 as prescribed under above Rule 94a of the Conduct of Election Rules, 1961. ( 2 ) BY way of this election petition the petitioner has called in question the election of respondent No. 1 herein as Member of Legislative Assembly of Chhattisgarh from the Constituency No. 18-Kharsiya, which was held on 1-12-2003 and the result was declared on 4-12-2003. The petitioner herein was the independent candidate whereas respondent no. 1, who won the election, was the candidate of Indian National Congress party. The petitioner herein has questioned the election of respondent No. 1 on the ground of corrupt practices as mentioned in Paragraphs No. 8 and 11 and stated that said practices come within the meaning of section 123 (4) and (5) of the Representation of the People Act, 1951 (hereinafter shall be referred as 'act of 1951 ). Paragraph No. 8 of election petition which relates to publication of pamphlets is reproduced herein below :-"8. That, the respondent No. 1 not duly complied the letter/direction dated 14-11-2003 and in contrary for the very purpose to demoralize and defame the petitioner under the corrupt practice printed number of pamphlets and distributed the same. That, the language of the aforesaid pamphlet is not up to the mark of Ideal Conduct Code because object of publishing and distributing the said libelous pamphlets amongst the electorate of the said constituency was to tarnish the fair name and image of the petitioner in the eye of voters. The allegations made in the said pamphlet were per se defamatory besides being false to the knowledge of the respondent No. 1 and in the same pamphlet the respondent No. 1 who was allotted symbol of 'hand' in the constituency election for the very purpose to utilizing the name of Indira Congress he made a prayer to vote me on 'panja' symbol whereas the symbol of the respondent No. 1 was 'hand' and not the 'claw' that is clear from the aforesaid pamphlet. That bare perusal of the impugned pamphlet would convince the hon'ble Court that the contents of the said pamphlet amounted to reckless character assassination in the eye of law. Not only the contents of the impugned pamphlet were false, cooked up and imaginary but they were calculated to discharge the fair name and image of the petitioner and scathing allegation against the personal character of the petitioner. "paragraph No. 11, which is regarding corrupt practices as envisaged under Section 123 (5) of the Act of 1951, reads like this :"11. That, the petitioner also made a complaint on dated 1-12-2002 alleging that agents of the respondent No. 1 namely sukhdeo S/o Tarachand Dansena by way of TATA SUMO CG 04 - A 4899 and CG 04 zp 1056 brought the voters to vote the respondent no. 1 so on the basis of said complaint thana police not taken any action though there is endorsement for enquiry that is clear from the documents. Thereafter, the petitioner sent the representation to the chief Election Officer, Indian Election commission but no one has taken any action on the complaint of the petitioner. "in support of election petition an affidavit has been filed as per requirement of proviso to Section 83 (1) and also as per Form-25 prescribed under Rule 94a of the Conduct of Election Rules, 1961 (hereinafter shall be referred as "rules of 1961)". ( 3 ) IN the application filed on behalf of respondent No. 1 for dismissal of election petition it has been mentioned that the affidavit filed in support of the election petition does not satisfy the requirement of Form-25 prescribed under Rule 94a of the Rules of 1961 and and it has been prayed that therefore, the ejection petition of the petitioner be dismissed. ( 4 ) I have heard the learned counsel for the parties. ( 4 ) I have heard the learned counsel for the parties. ( 5 ) LEARNED counsel for respondent No. 1 argued that the affidavit filed by the petitioner in support of the election petition is not in conformity with the proviso to section 83 (1) read with Rule 94a of the Rules of 1961 as the same is riot as per Form 25, therefore, in view of the decision of the hon'ble Apex Court in the matter of Regu mahesh alias Regu Maheshwar Rao v. Rajendra Pratap Bhanj Dev reported in (2004)1 SCC 46 : (AIR 2004 SC 38) petition deserves to be dismissed at the threshold. ( 6 ) ON the other hand, learned counsel for the petitioner placing reliance on the decision of the Hon'ble Apex Court in the matter of Sardar Haracharan Singh Brar v. Sukh Darshan Singh reported in 2004 AIR scw 6205 : (AIR 2005 SC 22) argued that the petition cannot be dismissed. ( 7 ) IN the above decision of Sardar harcharan Singh Brar (supra) it has been held by the Hon'ble Apex Court that "where the averments made in the petition found to be deficient in material particulars, the petition cannot be dismissed at the threshold and also that the defect in the affidavit is curable and the petitioner should be given opportunity for removing the defect by filing a proper affidavit". Thus, it is settled law that if the election petition is deficient on the material particulars and the affidavit is also defective not in conformity with the form-25 appended under Rule 94a of the rules of 1961, then opportunity should be given to the petitioner to cure the defect. ( 8 ) HOWEVER, in the matter of Ananga Uday singh Deo v. Ranga Nath Mishra reported in AIR 2001 SC 2992 the Hon'ble Apex Court has held that (Para 34) :". . . . . . . Non-compliance with the provisions of Section 83 may lead to dismissal of the petition, if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. . . . . . . Non-compliance with the provisions of Section 83 may lead to dismissal of the petition, if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any Indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired into and tried at all and in such a case the petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no pail of the duty of the court suo motu even to direct furnishing of better particulars when objection is raised by the other side. Where the petition does not disclose any cause of action has to be rejected. . . . . . . . . . "in the matter of Ravinder Singh v. Janmeja Singh reported in AIR 2000 SC 3026 in paragraph No. 7 of the judgment the hon'ble Apex Court has held that :"the election petition is singularly silent of any such averment that the returned candidate, even if, it be assumed for the sake of the arguments, had published and distributed certain documents, as alleged In the election petition either himself or through any other persons with his consent, that those statements were false and that the returned candidate either believed them to be false or did not believe them to be true, though in paragraph 9 of the election petition, which has been verified as correct on the basis of legal advice, this requirement emanating from Section 123 (4) has been mentioned but without any assertion that the returned candidate in this case published the false statements knowing them to be false and/or not believing them to be true. . . . . . . . . . . . . " ( 9 ) IN the matter of Regu Mahesh, (AIR 2004 SC 38) (supra) the Hon'ble Apex Court held that "defect in verification or an affidavit is curable. But further question is what happens when the defect is not cured. . . . . . . . . . . . . " ( 9 ) IN the matter of Regu Mahesh, (AIR 2004 SC 38) (supra) the Hon'ble Apex Court held that "defect in verification or an affidavit is curable. But further question is what happens when the defect is not cured. There is a gulf of difference between a curable defect and a defect continuing in the verification affidavit without any effort being made to cure the defect. " In this connection, if we look into the facts of the present case the affidavit filed in support of the election petition by the petitioner is not in conformity with the affidavit prescribed in Form-25 under Rule 94a of the Rules of 1961. As Clause a of the affidavit requires 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 mentioned in paragraphs--------------------------of the same petition and in paragraphs--------------------------of the Schedule annexed thereto are true to my knowledge and Clause B of the affidavit requires 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-------------of the Schedule annexed thereto are true to my information. Therefore, in the affidavit the petitioner was required to mention the numbers of paragraphs in which material facts of corrupt practices are mentioned as also he should have mentioned the alleged corrupt practices in the affidavit and further that the paragraphs containing the material facts of corrupt practices are whether true to his personal knowledge or true as per his information. But these things are missing in the instant affidavit filed by the petitioner in support of the present election petition alleging corrupt practice. Further if we look into the Paragraph No. 2 of affidavit, it has been mentioned that". . . . . . . . . . . . . . the respondent No. 1 himself and with his consent his agents and workers published the statement of facts which were false. . . . . . . . . . ", but it has not been specifically mentioned that whether respondent No. 1 himself or his agent got them printed or workers got them printed with the consent of respondent No. 1. . . . . . . . . . ", but it has not been specifically mentioned that whether respondent No. 1 himself or his agent got them printed or workers got them printed with the consent of respondent No. 1. In the verification of the affidavit the petitioner has mentioned that Paragraphs No. 1 to 6 are true to his personal knowledge, but he has not mentioned that from where and how he acquired the personal knowledge about the publishing of pamphlets by respondent No. 1 himself or his agents or workers with his consent. In the first instance, the petitioner has not made a clear and concise statement as to whether the pamphlets were got published by the respondent No. 1 himself or his agents or workers with his consent. As that concise statement is not made in the affidavit, respondent No. 1 will not be able to answer specifically the allegation levelled against him in the election petition and that is how the right of respondent No. 1 has been seriously prejudiced. The Court is not required to make fishing and roving enquiry, it is for the petitioner to make specific allegation in the petition and affidavit and then to prove at the trial. It is settled law that since the allegation of corrupt practice is direct attack on the returned candidate, therefore, it must be alleged and proved like criminal case. The petitioner has also not mentioned the source of information about the fact that the pamphlets were got printed by respondent no. 1 himself or his agent or workers with his consent, as has been held by the Hon'ble apex Court in, the case of Ravinder Singh (AIR 2000 SC 3026) (supra) that "an affidavit apart from other requirements must disclose the source of information in respect of commission of that corrupt practice. Proviso to Section 83 (1) of the Act lays down, in mandatory terms, that where an election petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit, in the prescribed form, in support of the allegations of such practice and the particulars thereof. Proviso to Section 83 (1) of the Act lays down, in mandatory terms, that where an election petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit, in the prescribed form, in support of the allegations of such practice and the particulars thereof. ( 10 ) NOW coming to the allegation levelled in Paragraph No. 11 of the election petition which speaks about the corrupt practice as envisaged under Section 123 (5) of the Act, of 1951 that one Sukdeo agent of respondent No. 1 brought the voters by TATA sumo. But to utter surprise about this corrupt practice there is no whisper in the affidavit filed by the petitioner in support of the election petition, as such there is no compliance of proviso to Section 83 (1) of the Act of 1951. ( 11 ) NOW coming to the question that if the affidavit filed by the petitioner herein in support of the election petition is not in conformity with the Form-25 prescribed under rule 94a of the Rules of 1961 then what will be the consequences. As mentioned in previous part of this order that it is the settled law that this is a curable defect and same principle has been laid down by the hon'ble Apex Court in the matter of Sardar harcharan Singh Brar (AIR 2005 SC 22), the case referred earlier. But as per reply filed by the petitioner herein to the application filed by respondent No. 1 for dismissal of the petition on account of not filing the affidavit in conformity with the law. The petitioner herein has specifically mentioned in Paragraphs No. 2, 3 and 4 that it is incorrect to say that the affidavit is not in conformity with the law and the same is in conformity with the law. Therefore, the petitioner instead of realizing that the affidavit filed by him is defective, he persists with that defective affidavit and even after realizing his mistake has not requested for permitting him for rectification of the defect and filing of the affidavit in conformity with the law. Therefore, the petitioner instead of realizing that the affidavit filed by him is defective, he persists with that defective affidavit and even after realizing his mistake has not requested for permitting him for rectification of the defect and filing of the affidavit in conformity with the law. Therefore, as per the law laid down by the hon'ble Apex Court in the matters of Ananga uday Singh Deo's case (AIR 2001 SC 2992) (supra), Ravinder Singh's case (AIR 2000 SC 3026) (supra) as also Regu Mahesh's case (AIR 2004 SC 38) (Supra), this petition deserves to be dismissed at the threshold, as it has been held in the Ravinder Singh's case that it is necessary for the election petitioner to make such a charge with full responsibility and to prevent any fishing and roving enquiry and save the returned candidate from being taken by surprise. In the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practice, the allegation pertaining thereto, could not be put to trial the defect being of a fatal nature. ( 12 ) IN the peculiar facts and circumstances, the respondent No. 1 herein will (sic)not able to reply the points raised by the petitioner in the election petition as no specific charge has been raised in the affidavit and thereby the right of respondent No. 1 stands prejudiced, even then the petitioner persists with the defective affidavit. ( 13 ) IN the result, the I. A. No. 2602/ 2004 filed by respondent No. 1 for dismissal of the election petition deserves to be allowed, the same is allowed and the election petition of the petitioner is dismissed at the threshold. Petition dismissed. --- *** ---