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2015 DIGILAW 1056 (SC)

Ajay Arjun Singh v. Sharadendu Tiwari

2015-08-20

A.M.SAPRE, J.CHELAMESWAR

body2015
ORDER : These four special leave petitions arising out of Election Petition No. 1 of 2014 on the file of the High Court of Madhya Pradesh, out of which SLP (C) No.33933 of 2014, SLP (C) No.11096 of 2015 and SLP (C) No.4512 of 2015 have been filed by the returned candidate while SLP (C) No.15361 of 2015 has been instituted by the election petitioner, Shri Sharadendu Tiwari who contested the general elections for the state legislative assembly held in the year 2013 from 76-churahat assembly constituency and happened to be the candidate who secured the second highest number of votes. 2. Shri Sharadendu Tiwari challenged the election of the returned candidate on various grounds including the commission of corrupt practices. 3. An application (IA No.43 of 2014) under Order 7, Rule 11 of the Civil Procedure Code came to be filed by the returned candidate praying that the election petition filed by the petitioner be dismissed/rejected for the various reasons stated in the application. One of them being that the election petition is not supported by an affidavit in Form 25 in accordance with Rule 94-A as required under Section 83(1)(c) of the Representation of Peoples Act, 1951 (for short “the Act”). The High Court by the order impugned in Special Leave Petition (C) 33933 of 2014 filed by the returned candidate recorded the finding which reads as follows: “In the instant case, the petitioner has not filed the affidavit in the prescribed Form 25 in accordance with Rule 94-A of the Conduct of Election Rules, 1961. Since aforesaid defect is curable, same can be cured by filing affidavit in the prescribed Form 25.” 4. As a consequence, the High Court directed the election petitioner to file affidavit in Form 25 within 15 days from the date of receipt of certified copy of the order. The application of the returned candidate under Order 7, Rule 11 stood otherwise dismissed but for the above direction. Hence the SLP (C) No.33933 of 2014. 5. Aggrieved by the said order, the returned candidate filed I.A. No.13575 of 2014 seeking review of the order dated 25.08.2014. The said I.A. No.13575 of 2014 came to be dismissed by the High Court vide its order dated 18.03.2015. Hence the SLP (C) No.33933 of 2014. 5. Aggrieved by the said order, the returned candidate filed I.A. No.13575 of 2014 seeking review of the order dated 25.08.2014. The said I.A. No.13575 of 2014 came to be dismissed by the High Court vide its order dated 18.03.2015. Once again in the said order it was recorded by the High Court that:- “a bare perusal of order dated 25.08.2014 reveals that considering the defect of not filing the affidavit in Form No.25 in accordance with Rule 94-A of the Rules of 1961........” 6. The High Court further observed that:- “certainly there was a non-compliance of proviso to Section 83(1) of the Act but Section 83(1) of the Act is not covered under Section 86 of the Act.” 7. The High Court further recorded its findings in the following manner: “As mentioned here in above, in the instant case substantial compliance of Section 81(3) of the Act has already been done by the petitioner by filing first affidavit along with the petition but only defect was that the affidavit was not in prescribed format, therefore, at the most it was a non-compliance of Section 83(1) of the Act and same is curable. 8. Eventually, the review petition was dismissed. 9. Aggrieved by the same, both the election petitioner and the returned candidate carried two SLP (C) No.11096 of 2015 and SLP (C) No.15361 of 2015 respectively before this Court. 10. The matters were argued at some length before us. Learned counsel appearing for the returned candidate has proceeded on the basis that there is no affidavit at all as required under Section 83(1)(c) of the Act whereas it is pointed out by learned counsel on behalf of election petitioner that as a matter of fact two separate affidavits were filed along with the election petition. The first being an affidavit in compliance of requirement of the provisions under Order 6, Rule 15 (4) of Civil Procedure Code and the second an affidavit in compliance with requirement of Section 83(1)(c) of the Act. Xerox copies of both the affidavits are available on record here. 11. The first being an affidavit in compliance of requirement of the provisions under Order 6, Rule 15 (4) of Civil Procedure Code and the second an affidavit in compliance with requirement of Section 83(1)(c) of the Act. Xerox copies of both the affidavits are available on record here. 11. The question whether there was one affidavit or two affidavits filed along with the election petition as mentioned above, the actual date when those affidavits were filed, whether either of the two affidavits is filed in compliance with the requirement of Section 83(1)(c) of the Act or not are matters for examination of the High Court. The High Court is required to record definite findings in the event there is any dispute with respect to the questions mentioned above. Unfortunately, the orders of the High Court are cryptic and the findings recorded by the High Court (extracted earlier in this order) are not clear with regard to the above mentioned questions. 12. In the circumstances, we deem it appropriate to adjourn these matters for the time being in order to enable the election petitioner to seek appropriate clarifications from the High Court of its order dated 25.08.2014 and 18.03.2015. We order accordingly. 13. List the matters again after five weeks.