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Chhattisgarh High Court · body

2010 DIGILAW 116 (CHH)

PINKY SHIVRAJ SHAH v. VS AMBIKA MARKAM

2010-04-20

T.P.SHARMA

body2010
JUDGMENT ( 1 ) BY filing preliminary objections, the respondent has challenged maintainability of the election petition. The respondent has also taken preliminary objection relating to maintainability of the petition in her written response. Substantially the respondent has objected maintainability of the petition on the following grounds :- (1) The petitioner has failed to verify the petition in accordance with Order 6, Rule 15 of the Code of Civil Procedure, 1908 (for short 'the Code', especially in terms of clause (4) of Rule 15 of the Order 6 of the Code. (2) The petitioner has challenged election in terms of clause (d) of sub-section (1)of Section 100 of the Representation of the people Act, 1951 (for short "the Act") on the ground of improper acceptance of nomination of the respondent, but has not pleaded full and material particulars required for nomination of the respondent, illegality committed by the respondent and authority concerned and further not proved that in absence of such material, the petition is liable to be dismissed under Section 86 (1) of the Act. ( 2 ) AS per pleadings of the petitioner, the petitioner along with the respondent and other eight candidates contested election of the State Assembly as a candidate of Constituency No. 56, Sihawa. For contesting the election, the respondent has filed her nomination as required in Rule 4 of the Conduct of Elections Rules, 1961 (for short 'the rules' ). The respondent was under obligation to furnish correct information, but she has deliberately concealed her age and has shown her age as 48 years, however, her date of birth is 30-10-1958. She has submitted the details of her property owned by her name as well as the property owned by joint family, but has not complied with the provisions of the Constitution of India, the Act and the rules made thereunder, especially relating to details of property situated at village gattasilly. The respondent has also concealed the source of her income and has not accounted for the Tavera motor vehicle which stands in the name of her son who is dependant upon her and thereby concealed the truth and has failed to comply the mandatory provisions. The Returning Officer has improperly accepted her nomination which has materially affected the election. The respondent has also concealed the source of her income and has not accounted for the Tavera motor vehicle which stands in the name of her son who is dependant upon her and thereby concealed the truth and has failed to comply the mandatory provisions. The Returning Officer has improperly accepted her nomination which has materially affected the election. ( 3 ) BY filing response to the petition and by filing preliminary objections, the respondent has objected maintainability of the petition on the grounds mentioned in para 1 of this order. ( 4 ) I have heard learned counsel for the parties, perused the petition, documents filed along with the petition and response of the respondent along with preliminary objections. ( 5 ) LEARNED counsel for the petitioner vehemently argued that the petitioner has complied the mandatory provisions of the Constitution of India, the Act and the rules made thereunder. The petitioner has categorically and clearly alleged by requirement of -mandatory law relating to furnishing of information, filing of nomination and material concealment of requirement on behalf of the respondent. Learned counsel further argued that the petitioner has verified the election petition in accordance with Order 6, Rule 15 of the Code and the petitioner is not requirement to file affidavit as required in clause (4) of Rule 15 of Order 6 of the Code in absence of any statutory requirement under the act. The objection filed on behalf of the respondent is not maintainable and non-compliance/concealment of material facts has materially affected the election. ( 6 ) ON the other hand, learned counsel for the respondent vehemently opposed the arguments advanced on behalf of the petitioner and submitted that in accordance with clause (c) of sub-section (1) of Section 83 of the act, the petitioner was under obligation to verify the petition in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings. Rule 15 of Order 6 of the Code has been amended by Act 46 of 1999 and new clause (4) has been inserted with effect from 1-7-2002 which requires furnishing of an affidavit of the person verifying the pleadings, but the petitioner has failed to comply clause (4) of rule 15 of Order 6 of the Code and has not furnished affidavit in support of her pleadings. Therefore, in absence of proper verification and non-compliance of the mandatory provisions of clause (c) of sub-section (1) of section 83 of the Act, the petition is not maintainable. Learned counsel further argued that the petition does not disclose cause of action in absence of material facts and full particulars. The petitioner has pleaded that the respondent herein has concealed the details of property, factum of dependency of her son, the automobile which stands in the name of her son and her age in the affidavit. Documents filed on behalf of the petitioner viz. , document IV clearly show that the respondent has mentioned her age as 48 years in the affidavit, and she has submitted the details of property recorded in her name, in the name of her husband and in the name of members of the joint family situated at village Gattasilly in the form prescribed. The respondent has also furnished the details of property recorded in the name of members of joint family/respondent and in name of her husband vide Document V as record of right (kishtbandi khatauni ). Both are substantially one and the same. Details of property shown in Document V have also been mentioned in document IV which the respondent has filed along with her nomination. The petitioner has failed to show that how it materially affected the election. On the ground of non-compliance of the mandatory provisions of verification, absence of material facts and full particulars in the pleadings the instant petition is not maintainable. ( 7 ) LEARNED counsel for the respondent placed reliance in the matter of Anil Vasudev salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 : (2009 AIR SCW 6812)in which the Apex Court has held that in absence of cause of action and absence of material facts and full particulars required under Sections 83 and 86 of the Act, the election petition may be dismissed summarily. Learned counsel further placed reliance in the matter of Sudarsha Avasthi v. Shiv Pal singh, (AIR 2008 SC 2724) in which the apex Court has held that in case of allegations not precise to show that those are serious allegations to be tried in election petition, mostly unbelievable and impracticable sequence of events and petition lacking in particularity in any allegations of bribery, the petition is liable to be dismissed. Learned counsel also placed reliance in the matter of azhar Hussain v. Rajiv Gandhi, 1986 (Supp)SCC 315 : (AIR 1986 SC 1253) in which the apex Court has held that vague pleadings and non-filing of material documents in support of the pleadings amount to no cause of action disclosed and allegations not sustainable. Learned counsel relied upon the matter of Mulayam Singh Yadav v. Dharam Pal yadav (2001) 7 SCC 98 : (AIR 2001 SC 2565) in which the Apex Court has held that non-filing of article i. e. vide cassette amounts to filing of incomplete petition and in noncompliance of Sections 81 and 83 of the Act, the petition is liable to be dismissed under section 86 of the Act. Learned counsel further relied upon the matter of Baldev Singh v. Shinder Pal Singh (2007) 1 SCC 341 : (AIR 2000 SC 3675) in which the Apex Court has held that verification must be strictly in terms of Order 6, Rule 15 of the Code. ( 8 ) AS regards verification of petition in terms of Order 6, Rule 15 of the Code, Section 83 (1 ) (c) of the Act reads as follows :-"83. Contents of petition.- (1) An election petition - (a) and (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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 corrupt practice and the particulars thereof. ( 9 ) PROCEDURE for verification is provided in Order 6, Rule 15 of the Code which reads as follows : "15. Verification of pleadings.- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. Verification of pleadings.- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings. " ( 10 ) ADMITTEDLY, in the present case, the petitioner has verified her pleadings in accordance with clauses (1), (2) and (3) of Rule 15 of Order 6 of the Code, but she has not furnished affidavit as required under clause (4) of Rule 15 of Order 6 of the Code. ( 11 ) WHILE dealing with the question of requirement of verification of election petition, the Apex Court in the matter of Baldev (AIR 2000 SC 3675) (supra) has held that election petition must be strictly verified in terms of Order 6, Rule 15 of the Code. Para 23 of the said judgment reads thus, "23. The verification of an election petition, it was trite, must be done strictly in terms of Order 6, Rule 15 of the Code of Civil procedure. It was, thus, incumbent on the part of the respondent herein to specifically state as to which statements made in the election petition were true to his knowledge and which were true to his belief. A factual averment made in the election petition cannot be both true to the knowledge and belief of the deponent. " ( 12 ) IN the matter of Sudarsha (AIR 2008 sc 2724) (supra), the Apex Court has held that the petitioner shall verify the petition in the manner as laid down in the Code of Civil procedure and in case of petition on the ground of corrupt practice, he has to file affidavit in prescribed form in support of the allegation of such corrupt practice. ( 13 ) ADMITTEDLY, in this case, election has not been challenged by the petitioner on the ground of corrupt practice, but the petitioner has challenged election on the ground of improper acceptance of nomination form. Clauses (1), (2) and (3) of Order 6, Rule 15 of the Code provide the manner of verification of pleadings and the person verifying the pleadings shall specify, by reference to the numbered paragraphs of the pleading. what he verifies of his own knowledge and what he verifies upon information received and believed to be true, and shall sign and state the date on which and the place at which | it was signed. Clause (4) of Order 6, Rule 15 of the Code has been inserted by Act 46 of 1999 with effect from 1-7-2002 which provides furnishing of affidavit. Inserted provision of clause (4) of Order 6, Rule 15 of the code reads as follows :-" (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings. " the above inserted provision clearly shows that the person verifying the pleading is required to furnish an affidavit in support of his pleadings. Furnishing of affidavit is not an integral part of verification. Clauses (1), (2) and (3) of Order 6, Rule 15 of the code provide the manner for verification of pleadings and inserted clause (4) provides the need of furnishing of an affidavit in support of the pleadings, not in support of verification. ( 14 ) EVEN after amendment of the Code of civil Procedure, 'the Act' or the rules made thereunder have not been amended in terms of clause (4) of Rule 15 of Order 6 of the code. The Act is a special law which provides special and complete procedure for hearing of election petition. In absence of specific provisions for furnishing of affidavit in support of pleadings/petition, the petitioner is not required to furnish affidavit in support of his pleadings/petition in case of election petition as required for pleading in terms of clause (4) of Rule 15 of Order 6 of the Code. In absence of specific provisions for furnishing of affidavit in support of pleadings/petition, the petitioner is not required to furnish affidavit in support of his pleadings/petition in case of election petition as required for pleading in terms of clause (4) of Rule 15 of Order 6 of the Code. ( 15 ) AS per the dicta of the Apex Court in the matters of Anil, Sudarsha, Azhar, (AIR 1986 SC 1253) Malayam (AIR 2001 SC 2565) (supra), the petitioner filing election petition is required to give material facts and full particulars in support of the petition and also required to furnish documents or article in support of his pleadings to make the pleadings complete as required in clause (b) of subsection (1) of Section 83 of the Act to enable the respondent to defend his case. ( 16 ) THE present petition is substantially based on the ground of improper acceptance of nomination of the respondent, the ground available under sub-clause (i) of clause (d)of sub-section (1) of Section 100 of the Act. As per paras 8 (D), (E), (F) and (G) of the election petition, the respondent has not furnished the details of property, factum of dependency of her son, details of automobile tavera recorded in the name of her son, and false age given by the respondent in her affidavit. The petitioner has filed the details of property of the respondent vide Document v which has been substantially included by the respondent in Document IV in addition to the property held in her name. Document iv and V clearly show that the respondent has not concealed the property held by her by her joint family. ( 17 ) THE petitioner has pleaded that the I respondent has concealed the fact that her son is dependent upon her and one automobile Tavera is recorded in the name of her son, but for the reasons best known to the petitioner, the petitioner has not filed any document relating to number of automobile, name of son of the respondent or any material facts relating to dependency of her son upon the respondent. ( 18 ) LIKEWISE, the petitioner has pleaded the date of birth of the respondent as 30-10-1958, but the petitioner has not filed any document in support of such date of birth of the respondent or has not pleaded or filed document to show that how the petitioner knows the said date of birth of the respondent. The petitioner has also not alleged in her pleading that how the mentioning of age of the respondent as 48 years will affect the election, because the petitioner has not challenged the election on the ground that on the date of filing nomination the respondent was not qualified on the ground of her age. ( 19 ) THE petitioner has filed this election petition substantially on the ground of improper acceptance of nomination of the respondent. As discussed above, on close scrutiny of the petition and documents filed on behalf of the petitioner, while considering the preliminary objections filed on behalf of the respondent, I do not find any material/ground in support of improper acceptance of nomination of the respondent. In absence of any ground for improper acceptance of nomination of the respondent, the present election petition does not disclose any cause of action. Consequently, the preliminary objections filed on behalf of the respondent are allowed. The election petition is liable to be dismissed for want of cause of action and it is hereby dismissed. No order as to costs. Order accordingly. --- *** --- .