It is thus beyond any pale of doubt that the allegations of corrupt practice made in the election petition have to be supported by an affidavit as required in Form 25 and Rule 94-A of the Rules of 1961. The affidavit must clearly indicate which part of the allegations are true to the knowledge of the deponent and which allegations are true to the information of the deponent. Stating the allegations to be true to one’s knowledge and information in the same breath has not been found to be acceptable. At the same time, it is equally well settled that a defect in verification or in the affidavit as filed is a curable defect and an opportunity deserves to be given to an election petitioner to cure the same.
In the light of the aforesaid legal position, I am inclined to grant an opportunity to the election petitioners to cure the defects in the affidavits filed under Form 25 by specifying as to which averments in the election petition are true to the knowledge of the election petitioner nos.1 and 2 and which part of the allegations made are true to their information. It is not necessary in this backdrop to probe deeper into the contention of the election petitioners that all allegations made could be true to the personal knowledge and also to the information as believed to be true since that aspect has not been accepted in R. P. Moidutti (supra). On principles analogous to the doctrine of election, an opportunity is given to the election petitioners to cure the defects in the affidavits filed under Form 25 read with Rule 94-A of the Rules of 1961 as stated above. The same be done within a period of fifteen days from today. The adjudication of Exhibits 19, 20 and 26 would be taken up thereafter. {Para 10}
Bombay High Court
JUSTICE A. S. CHANDURKAR
Shri Nana F. Patole & Anr. Vs. Shri Nitin Gadkari & ors.
ELECTION PETITION NO.10/2019
29th October 2021
Citation: 2021 NearLaw (BombayHC Nagpur) Online 1997
1. The election of the returned candidate-respondent no.1 in the general elections to the Lok Sabha from Constituency No.10-Nagpur has been challenged by the petitioners. The petitioner no.1 was a candidate of Indian National Congress Party from the said constituency. The election of the returned candidate has been challenged under the provisions of Section 100 (1) (b) read with Section 123(2), 100 (1) (d) (i), (ii) and (iv) of the Representation of the People Act, 1951 (for short, ‘the Act of 1951’). It is also prayed that it be declared that the election of the returned candidate is null and void. Further relief that the petitioner no.1 be declared elected is also sought.
2. The returned candidate has moved Civil Application No.754/2020 (Exhibit 19) under the provisions of Order VI Rule 16 of the Code of Civil Procedure, 1908 (for short, the Code) for striking out the pleadings in the election petition which according to the returned candidate are unnecessary, vexatious, scandalous, frivolous and are intended to prejudice as well as delay the trial of the election petition. The returned candidate has also filed Civil Application No.11/2021 (Exhibit 20) under the provisions of Order VII Rule 11 of the Code read with Section 86 of the Act of 1951 seeking rejection of the election petition for want of cause of action. Civil Application No.549/2021 (Exhibit 26) has been filed by the returned candidate seeking permission to raise additional grounds in support of the application at Exhibit 20. Replies have been filed by the election petitioners opposing the civil applications and the same are at Exhibits 22, 23, 27 and 29.
3. These applications were heard at length. One of the contentions raised by the learned Senior Advocate for the returned candidate is that the affidavits that have been filed as required under Form 25 read with Rule 94-A of the Conduct of Elections Rules, 1961 (for short, the Rules of 1961) cannot be relied upon for the reason that the said affidavits alongwith its verification are defective. It is urged that according to the election petitioners the statements made in paragraph nos. 1 to 21 with annexures I to IX are true to the knowledge of the election petitioner nos.1 and 2. The very same statements in paragraph nos. 1 to 21 with annexures I to IX of the election petition are also stated to be true to the information of the election petitioner nos.1 and 2. This according to the learned Senior Advocate would not be in compliance with the requirements of a valid affidavit to an election petition as prescribed. In that regard reliance is sought to be placed on the decisions in R. P. Moidutty Vs. P. T. Kunju Mohammad and anr. (2000) 1 SCC 481, L.R.Shivaramagowda and ors. Vs. T.M.Chandrashekar (Dead) By LRs. and ors. (1991) 1 SCC 666, Regu Mahesh alias Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev and anr. (2004) 1 SCC 46 and C. P. John Vs. Babu M. Palissery and ors. (2014) 10 SCC 547 to urge that the affidavits as filed under Form 25 do not deserve to be taken into consideration.
4. According to the learned counsel for the election petitioners, however, it is submitted that the affidavits as filed are in accordance with the requirements of Rule 94-A of the Rules of 1961 read with Form 25. It is urged that the information that is true to the knowledge of the election petitioner nos.1 and 2 is also based on the information received by them which is true. Inviting attention to the reply filed at Exhibit 29, it is urged that a fact which could be true to the knowledge of a person could also be true to the information received by him. The election petitioners could not be compelled to state which part of the election petition was true to the knowledge of the election petitioner nos.1 and 2 and which part was true to the information received by them. Without prejudice to the aforesaid, it was submitted that a defect in verification, if any, was curable and an opportunity to cure the same ought to be given. In that regard reliance was placed on the decisions in Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and ors. AIR 1964 SC 1545, F. A. Sapa and ors. Vs. Singora and ors. (1991) 3 SCC 375, Umesh Challiyill Vs. K. P. Rajendran (2008) 11 SCC 740, K.K.Ramachandran Master Vs. M. V. Sreyamakumar and ors. (2010) 7 SCC 428, Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and Ors. (2012) 7 SCC 788 and G. M. Siddheshwar Vs. Prasanna Kumar (2013) 4 SCC 776.
5. Before proceeding to adjudicate the prayers made in civil application at Exhibits 19, 20 and 26, I deem it appropriate to take up the challenge to nature of affidavits filed under Form 25 read with Rule 94-A of the Rules of 1961 for consideration. This is in view of the observations in V. Narayanaswamy Vs. C. P. Thirunavukkarasu (2000) 2 SCC 294 to the effect that a charge of corrupt practice being quasi-criminal in nature, the Court must always insist on strict compliance with the provisions of law.
6. Perusal of the election petition indicates that challenge to the election of the returned candidate has been raised under Section 100 (1) (b) read with Section 123(2), Section 100 (1) (d) (i), (ii) and (iv) of the Act of 1951. Since the allegation of corrupt practice being committed by the returned candidate has been raised as a ground, an affidavit in Form 25 is required to be filed in support of said allegation. The affidavits as filed in Form 25 along with the election petition read thus:
Affidavit 1
(Form 25) (See Rule 94-A)
(Conduct of Elections Rules, 1961)
(Statutory Rules and Order)
I Shri Nana Falgunrao Patole, aged 56 years, occupation-agriculturist, R/o 101, Keshav-Kala Apt. Rahate Colony, Dikshabhoomi Road, Nagpur, the petitioner no.1 in the accompanying election petition calling in question the election of Shri. Nitin s/o Jairam Gadkari (respondent in the said petition) makes solemn affirmation/oath and say -
(a) That the statements made in all the paragraph nos. 1 to 21 with Annexures - I to IX of the accompanying election petition about the commission of the corrupt practice of Section 123(2) i.e. influence the entire voters and the particulars of such corrupt practice mentioned in paragraph nos. 1 to 21 with Annexures - I to IX of the same petition (including the contents of the all the civil application including the application for amendment in the petition filed vide stamp no.13794/2019 and civil application for grant of permission to amend election petition and permission to file documents on record of election petition and other applications filed till today in the instant petition and its consequential effect in the election petition) and in paragraph nos. 1 to 21 of the Election Petition with Annexures – I to IX of the Schedule annexed thereto are true to my knowledge.
(b) That the statements made in paragraph nos. 1 to 21 with Annexures I to IX of the said petition about the commission of the corrupt practice of *Section 123(2) i.e. influence the entire voters and the particulars of such corrupt practice given in paragraph nos. 1 to 21 with A nnexures – I to IX of the said petition and in paragraph nos. 1 to 21 with A nnexures – I to IX of the Schedule annexed thereto are true to my information;
(c) The petitioner already submitted concise statement in the petition along with annexures to show that how election is materially affected how the respondent kept entire voters in dark by concealing material information and how he misrepresented – deceived public/voters of 10, Nagpur, House of People (Lok Sabha) Parliament Constituency Nagpur Election 2019 Nagpur showing his clean & clear image; mislead the voters by showing cases of public agitation.
(d) That the respondent played fraud by mis-representation and deceived the entire voters and kept them in dark by concealing the material information and brought undue influence on public at large which amounts to corrupt practices as per Section 123(2) of the R. P. Act 1951.
(d) Even otherwise as per the Judgment dated 05.02.2015 given by Hon’ble Apex Court in Civil Appeal No. 1478/2015 and in other rulings in exactly similar type of situation, the Hon’ble Supreme Court has held in concluding observations in clause (e) that the question whether it material affects the election or not will not arise in a case of this nature, etc.
Sd/-
Deponent
Solemnly affirmed/sworn by Shri Nana s/o Falgunrao Patole, Aged –
56 years, R/o 101, Keshav-Kala Apt. Rahate Colony Dikshabhoomi Road,
Nagpur at Nagpur this 07th day of July 2019.
Sd/- Deponent.
Before Me,
Magistrate of the First Class/Notary/
Commissioner of oaths.
(Notarised)
Affidavit 1
(Form 25) (See Rule 94-A)
(Conduct of Elections Rules, 1961)
(Statutory Rules and Order)
I Shri Suresh s/o Shamrao Hedau, Aged major, R/o at Post Arvi, Tah. Koregaon, District Satara -415116, the petitioner no.2 in the accompanying election petition calling in question the election of Shri. Nitin s/o Jairam Gadkari (respondent in the said petition) makes solemn affirmation/oath and say -
(a) That the statements made in all the paragraph nos. 1 to 21 with Annexures - I to IX of the accompanying election petition about the commission of the corrupt practice of Section 123(2) i.e. influence the entire voters and the particulars of such corrupt practice mentioned in paragraph nos. 1 to 21 with Annexures - I to IX of the same petition (including the contents of the all the civil application including the application for amendment in the petition filed vide stamp no.13794/2019 and civil application for grant of permission to amend election petition and permission to file documents on record of election petition and other applications filed till today in the instant petition and its consequential effect in the election petition) and in paragraph nos. 1 to 21 of the Election Petition with Annexures – I to IX of the Schedule annexed thereto are true to my knowledge.
(b) That the statements made in paragraph nos. 1 to 21 with Annexures I to IX of the said petition about the commission of the corrupt practice of *Section 123(2) i.e. influence the entire voters and the particulars of such corrupt practice given in paragraph nos. 1 to 21 with A nnexures – I to IX of the said petition and in paragraph nos. 1 to 21 with A nnexures – I to IX of the Schedule annexed thereto are true to my information;
(c) The petitioner already submitted concise statement in the petition along with annexures to show that how election is materially affected how the respondent kept entire voters in dark by concealing material information and how he misrepresented – deceived public/voters of 10, Nagpur, House of People (Lok Sabha) Parliament Constituency Nagpur Election 2019 Nagpur showing his clean & clear image; mislead the voters by showing cases of public agitation.
(d) That the respondent played fraud by mis-representation and deceived the entire voters and kept them in dark by concealing the material information and brought undue influence on public at large which amounts to corrupt practices as per Section 123(2) of the R. P. Act 1951.
(d) Even otherwise as per the Judgment dated 05.02.2015 given by Hon’ble Apex Court in Civil Appeal No. 1478/2015 and in other rulings in exactly similar type of situation, the Hon’ble Supreme Court has held in concluding observations in clause (e) that the question whether it material affects the election or not will not arise in a case of this nature, etc.
Sd/-
Deponent
Solemnly affirmed/sworn by Shri Suresh S/o Shamrao Hedau, Aged-Major, R/o At Post Arvi, Tah.Koregaon, Dist. Satara – 415116, at Nagpur this
07th day of July 2019.
Sd/- Deponent.
(Notarised)
Before Me,
Magistrate of the First Class/Notary/
Commissioner of oaths.
(The portions underlined are relevant for the present purpose.)
7. It is true that Section 83 of the Act of 1951 prescribes the contents of an election petition. Section 86(1) which empowers the High Court to dismiss an election petition that does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act of 1951 does not refer to Section 83. At the same time, it has been held in V. Narayanaswamy (supra) that in absence of proper verification as contemplated by Section 83(1) of the Act of 1951, the cause of action in the election petition would not be complete and this in turn could result in non-fulfilment of the provisions of Section 81 of the Act of 1951. Noncompliance with the provisions of Section 83(1) could lead to the dismissal of the election petition, if the matter falls within the purview of Order VI Rule 16 or Order VII Rule 11 of the Code.
8. A somewhat similar situation was considered by the Hon’ble Supreme Court in R. P. Moidutti (supra). Therein the averments relating to corrupt practice by the returned candidate were verified as being true to the best of the knowledge as well as information of the election petitioner. This was without specifying which of the allegations were true to the personal knowledge of the election petitioner and which allegations were based on the information of the election petitioner believed by him to be true. Considering the said aspect it was observed in paragraph 14 as under :
“14. …..….. The legislature has taken extra care to make special provision for pleadings in an election petition alleging corrupt practice. Under Section 83 of the Act ordinarily it would suffice if the election petition contains a concise statement of the material facts relied on by the petitioner, but in the case of corrupt practice the election petition must set forth full particulars thereof including as full a statement as possible of (i) the names of the parties alleged to have committed such corrupt practice, (ii) the date, and (iii) place of the commission of each such practice. An election petition is required to be signed and verified in the same manner as is laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. However, if the petition alleges any corrupt practice then the petition has additionally to be accompanied by an affidavit in Form 25 prescribed by Rule 94-A of the Conduct of Election Rules, 1961 in support of the allegations of such corrupt practice and the particulars thereof. Thus, an election petition alleging commission of corrupt practice has to satisfy some additional requirements, mandatory in nature, in the matter of raising of the pleadings and verifying the averments at the stage of filing of the election petition and then in the matter of discharging the onus of proof at the stage of the trial.”
9. The importance of verification is well settled and the same is for deciding the genuineness and authenticity of the allegations as made and to make a deponent responsible for such allegations. Reference in that regard can be made to the decision in State of Bombay Vs. Purushottam Jog Naik AIR 1952 SC 317 wherein it was held that verification should invariably be modelled on the lines of Order XIX Rule 3 of the Code irrespective of the fact whether the Code applies or not. In A.K.K.Nambiar Vs. Union of India and anr. AIR 1970 SC 652 it was observed that the reason for verification of affidavits is to test the genuineness and authenticity of allegations and also to make the deponent responsible for the allegations.
10. It is thus beyond any pale of doubt that the allegations of corrupt practice made in the election petition have to be supported by an affidavit as required in Form 25 and Rule 94-A of the Rules of 1961. The affidavit must clearly indicate which part of the allegations are true to the knowledge of the deponent and which allegations are true to the information of the deponent. Stating the allegations to be true to one’s knowledge and information in the same breath has not been found to be acceptable. At the same time, it is equally well settled that a defect in verification or in the affidavit as filed is a curable defect and an opportunity deserves to be given to an election petitioner to cure the same.
In the light of the aforesaid legal position, I am inclined to grant an opportunity to the election petitioners to cure the defects in the affidavits filed under Form 25 by specifying as to which averments in the election petition are true to the knowledge of the election petitioner nos.1 and 2 and which part of the allegations made are true to their information. It is not necessary in this backdrop to probe deeper into the contention of the election petitioners that all allegations made could be true to the personal knowledge and also to the information as believed to be true since that aspect has not been accepted in R. P. Moidutti (supra). On principles analogous to the doctrine of election, an opportunity is given to the election petitioners to cure the defects in the affidavits filed under Form 25 read with Rule 94-A of the Rules of 1961 as stated above. The same be done within a period of fifteen days from today. The adjudication of Exhibits 19, 20 and 26 would be taken up thereafter.
Stand over to 26.11.2021 for considering compliance with the aforesaid.
No comments:
Post a Comment