Research › Search › Judgment

Uttarakhand High Court · body

2008 DIGILAW 94 (UTT)

AJAY KUMAR SAXENA v. TILAK RAJ BEHAR

2008-03-05

B.S.VERMA

body2008
JUDGMENT Hon'ble B.S. Verma, J. Heard Sri S.K. Mandal, learned counsel for the election petitioner as well as Sri Sudhanshu Dhulia, Senior Advocate assisted by Sri Vipul Sharma, learned counsel for the returned candidate and Sri D.K. Sharma, learned counsel for the respondent no. 3 on the application under Order 7, Rule 11 of the Code of Civil Procedure (for short the Code) read with Section 86 of the Representation of Peoples Act 1951 (for short the Act) moved on behalf of the respondent no. 1 with the prayer that the election petition may be dismissed in limine. 2. In paragraph no. 6 of the affidavit filed along with the application, it has been stated that the election petitioner did not comply with the mandatory provision of Section 83(1) proviso, wherein it has been provided 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 allegation of such corrupt practice and the particulars thereof. 3. Learned counsel for the election petitioner in reply has submitted that the affidavit as required by law was filed on the same day on the prescribed Form No. 25. 4. I have perused the affidavit filed by the petitioner, which is paper no. 52-A and 52-B on record. The contents of the affidavit (Form No. 25) filed by the petitioner and the grounds shown in the election petition are quite different. From a bare perusal of the affidavit, it is obvious that the contents of affidavit have no relevance to the allegations of corrupt practice as alleged against the returned candidate in the election petition. This affidavit was sworn in by the petitioner on 13.4.2007. Subsequently, on 19.4.2007, another affidavit was filed to cure the defect crept in the earlier affidavit dated 13.4.2007. 5. It is pertinent to mention that this Court in Election Petition No. 03 of 2007, Ram Sukh Vs. Dinesh Aggarwal, has dealt with similar controversy in the order dated 15.01.2008. In that petition, the election petitioner had filed the affidavit after the expiry of limitation of 45 days. Since the affidavit was filed after the expiry of limitation, this Court has held that the defect is fatal and it cannot be cured. 6. Dinesh Aggarwal, has dealt with similar controversy in the order dated 15.01.2008. In that petition, the election petitioner had filed the affidavit after the expiry of limitation of 45 days. Since the affidavit was filed after the expiry of limitation, this Court has held that the defect is fatal and it cannot be cured. 6. This fact is not disputed that in the earlier affidavit, there is no mention of allegation of corrupt practice as alleged against the returned candidate in the election petition. In paper no. 52-A and 52-B, which is affidavit in Form 25, there is mention of corrupt practice of using National Flag showing Ashok Chakra with 24 sticks of wheel in hoarding during election campaign. Moreover, the affidavit also refers to appeal of votes from Muslim Community to vote for respondent only. The affidavit is in support of Grounds C, D and H of the election petition, which do not speak about corrupt practice of using National Flag or appeal of votes from the voters of Muslim community. 7. Learned counsel for the election petitioner has further submitted that another affidavit on the prescribed proforma was also filed on record, which is dated 19.4.2007, wherein the requirement of proviso to Section 83(1) of the Act has been complied with. Section 83 of the Act reads as under :- "83. Contents of petition. - (1) An election petition - (a) shall contain a concise statement of the material facts on which the petitioner relied; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided 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 allegation of such corrupted practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." 8. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." 8. Learned counsel for the returned candidate has vehemently argued that the subsequent affidavit filed by the election paper in Form 25 as late as 19.4.2007 cannot override the mandatory requirement of Section 83(1) Proviso read with Rule 94A of the Conduct of Elections Rules, 1961 (for short the Rules) because the affidavit in Form No. 25 has to be filed with election petition. Learned counsel for the respondent no. 1 further submitted hat even if it may be taken for the sake of argument that proper affidavit in Form No. 25 had been filed on record on 19.4.2007, the same cannot be accepted as the limitation for filing the election petition had already expired on 13.4.2007. 9. The Apex Court in the case of Ravinder Singh V. Janmeja Singh and Others [JT 2000(10) Supreme Court, 583] has dealt with the provisions of Sections 123(1)(A)(b) and 83(1) of the Act and has observed in paragraph no. 9 as under : "9. Coming now to the charge of corrupt practice, falling under Section 123(1) of the Act, for which material facts and particulars have been detailed in paragraphs 28 to 39 of the election petition, we find that those allegations could not be put to trial either. There is no affidavit filed in support of the allegations of corrupt practice of bribery." 10. The ratio of the case of Ravinder Singh (supra) is fully applicable to the facts of the present election petition. 11. In the circumstances of the case, I hold that the subsequent affidavit filed on record on 19.4.2007 cannot be treated to be an affidavit as required under Section 83(1) of the Act read with Rule 94A of the Rules and that cannot be a substitute of the affidavit Paper No. 52-A and 52-B. The defect being fatal, the election petition cannot be put to trial. The application No. 34 of 2008 (preliminary objection under Order 7, Rule 11 of the Code read with Section 86 of the Act) moved by the respondent no. 1 is liable to be allowed and is hereby allowed. 12. The election petition is accordingly dismissed at the threshold. Costs easy.