Full Judgment Text
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CASE NO.:
Appeal (civil) 1833-1834 of 2003
PETITIONER:
Regu Mahesh @ Regu Maheswar Rao
RESPONDENT:
Rajendra Pratap Bhanj Dev and Anr.
DATE OF JUDGMENT: 30/10/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
In these appeals under Section 116A of the Representation of the
People Act, 1951 (for short ’the Act’) challenge is made to judgment and
order dated 27.12.2002 passed by the Andhra Pradesh High Court
dismissing the election petition filed by the appellant, by accepting
prayers made by the respondent no.1 in that regard. As the issues
involved are pristinely legal, reference to the factual scenario briefly
would suffice.
Election was held to Andhra Pradesh Legislative Assembly on
11.9.1999. The controversy in the present appeal relates to 10 Saluru
(ST) Legislative Assembly Constituency which is reserved for members of
the Scheduled Tribe. Respondent no.1 filed his nomination claiming to
be a member of Scheduled Tribe. His nomination was accepted and
objections to his candidature were rejected. Nominations of some
candidates were also rejected. Respondent no.1 after poll was declared
elected in the election. The appellant filed election petition under
Sections 5 and 100(1)(c) and (d)(i) of the Act before the High Court on
19.11.1999. Primary stand taken in the election petition appears to be
that the claim of respondent no.1 that he is a member of Scheduled Tribe
is not correct. Application was filed by present respondent no.1 under
Order VI Rule 16 and Order VII Rule 11 read with Section 151 of the Code
of Civil Procedure, 1908 (for short ’the CPC’) and Section 86 of the Act
praying for rejection of the election petition on the ground that locus
of the petitioner was not established, no cause of action was disclosed
and affidavit accompanying the petition was not in the prescribed form,
verification done and the affidavit filed did not conform to the
requirements as laid down in the statute in regard to alleged corrupt
practice and, therefore, the same was misconceived and was liable to be
rejected. Appellant filed his response to the application.
On consideration of the rival stands the High Court came to hold
that though essentially there was no definite allegation of corrupt
practices, yet allegations that somebody played fraud and has approached
the electorate claiming that he belongs to Scheduled Tribe and get
selected are similar to, if not higher in gravity than allegations as to
corrupt practices. The allegations are to be treated at par with those
relating to corrupt practices. That being so it was held that the
affidavit was not in the proper form and that election petition was not
maintainable, as material facts were not pleaded, and merely some
unreliable and improper averments were made and that required rejection
of the petition. It was observed that the verification as required to be
done in terms of Order VI Rule 15 CPC were not complied with. The
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verification was extremely vague and it was not stated as to what was
the source of information on which pleadings were based and which part
really was on the basis of personal knowledge and information was also
not indicated. It was additionally noted that the petitioner was very
casual in filing the election petition; even the district to which the
election petitioner claimed to belong was described differently in the
election petition. In conclusion it was noted by the High Court as
follows:
(a) The Election Petition does not disclose a valid
cause of action;
(b) It contains several paragraphs which do not fit
into an Election Petition filed under Sections 5 and
100(1)(d)(i) of the Act;
(c) There does not exist any valid verification of
the pleadings;
(d) The affidavit filed by the petitioner along with
the Election Petition does not conform to the Form
prescribed (Form No.25) under Rule 94-A of the Conduct
of Election Rules, 1961 (in short ’the Rules’).
In support of the appeals, learned senior counsel for the
appellant submitted that the insistence on affidavit in a particular
form is not correct as there was no allegation of corrupt practice and,
therefore, an affidavit envisaged in relations to such allegations is
not required. Since the respondent no.1 committed fraud on the
constituency and the constituents by claiming to be member of Schedule
Tribe, and requisite information was given the election petition should
not have been dismissed. Finally the deficiencies, if any, in the
verification and affidavit are of curable nature and the High Court
should have granted an opportunity to cure the defects.
The petition was not one which could be rejected in terms of
Section 86(1) of the Act. The said provision empowers the High Court to
dismiss the election petition which does not comply with the provisions
of Section 81 or Section 82 or Section 117 of the Act. None of these
provisions have application to the facts of the case.
In response, learned senior counsel for the respondent no.1
submitted that the election petition is extremely vague, the appellant
nowhere stated that he was an elector, it was not specifically indicated
in the verification as to which part of the petition was based on
personal knowledge and which part also based on information and the
source of information if any. The petition which does not contain a
proper verification is not an election petition in terms of Section
83(1) of the Act. There was no cause of action indicated. The pleadings
clearly show allegations of corrupt practices in terms of Section 123
(3). Particular reference is made to paragraph 8 of the petition which
according to him is definite allegation of appealing to the electorate
on the ground of caste.
Respective stands need careful consideration. Before we deal with
the basic issues, it would be appropriate to quote few provisions from
the Act:
"Section 81- Presentation of Petitions- (1) An
election petition calling in question any election
may be presented on one or more of the grounds
specified in sub-section (1) of Section 100 and
Section 101 to the High Court by any candidate at
such election or any elector within forty-five days
from, but not earlier than the date of election of
the returned candidate or if there are more than one
returned candidate at the election and dates of their
election are different, the later of those two dates.
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Explanation- In this sub-section, "elector" means a
person who was entitled to vote at the election to
which the election petition relates, whether he has
voted at such election or not.
(2) x x x x x
(3) Every election petition shall be accompanied by
as many copies thereof as there are respondents
mentioned in the petition and every such copy shall
be attested by the petitioner under his own signature
to be a true copy of the petition.
Section 83-Contents of petition- (1) An election
petition-
(a) shall contain a concise statement of
the material facts on which the petitioner
relies;
(b) shall set forth full particulars of
any corrupt practice that the petitioner
alleged 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 corrupt 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.
Section 86- Trial of election petitions- (1) The High
Court shall dismiss an election petition which does
not comply with the provisions of Section 81 or
Section 82 or Section 117.
Explanation- An order of the High Court dismissing an
election petition under this sub-section shall be
deemed to be an order made under clause (a) of
Section 98.
(2) As soon as may be after an election petition
has been presented to the High Court, it shall be
referred to the Judge or one of the Judges who has or
have been assigned by the Chief Justice for the trial
of election petitions under sub-section (2) of
Section 80A.
(3) Where more election petitions than one are
presented to the High Court in respect of the same
election, all of them shall be referred for trial to
the same Judge who may, in his discretion, try them
separately or in one or more groups.
(4) Any candidate not already a respondent shall,
upon application made by him to the High Court within
fourteen days from the date of commencement of the
trial and subject to any order as to security for
costs which may be made by the High Court, be
entitled to be joined as a respondent.
Explanation:- For the purposes of this sub-section
and of Section 97, the trial of a petition shall be
deemed to commence on the date fixed for the
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respondents to appear before the High Court and
answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to costs
and otherwise as it may deem fit, allow the
particulars of any corrupt practice alleged in the
petition to be amended or amplified in such manner as
may in its opinion be necessary for ensuring a fair
and effective trial of the petition, but shall not
allow any amendment of the petition which will have
the effect of introducing particulars of a corrupt
practice not previously alleged in the petition.
(6) The trial of an election petition shall, so far
as is practicable consistently with the interests of
justice in respect of the trial, be continued from
day to day until its conclusion, unless the High
Court finds the adjournment of the trial beyond the
following day to be necessary for reasons to be
recorded.
(7) Every election petition shall be tried as
expeditiously as possible and endeavour shall be made
to conclude the trial within six months from the date
on which the election petition is presented to the
High Court for trial.
Section 123(3)- The appeal by a candidate or his
agent or by any other person with the consent of a
candidate or his election agent to vote or refrain
from voting for any person on the ground of his
religion, race, caste, community or language or the
use of, or appeal to religious symbols or the use of,
or appeal to, national symbols, such as the national
flag or the national emblem, for the furtherance of
the prospects of the election of that candidate or
for prejudicially affecting the election of any
candidate:
Provided that no symbol allotted under this Act
to a candidate shall be deemed to be a religious
symbol or a national symbol for the purposes of this
clause."
What is "corrupt practice" is set out in Section 123. In terms of
Section 83(b) wherever corrupt practice is alleged, full particulars of
such practice alleged including a full statement as possible of names of
the parties alleged to have committed corrupt practice and the date and
place of commission of such practice has to be indicated. Though
allegation of fraud etc. in obtaining false caste certificate have
serious implications, under the Act and particularly as the language of
Section 123(3) specifies and enumerates they do not per se constitute
corrupt practice. The fact that a candidate obtains a certificate that
he belonged to and is a member of the Scheduled Caste/Tribe to contest
as one belonging to such caste/Tribe, essential and necessary for
contesting as a candidate in a Reserved Constituency, at any rate,
cannot amount to an appeal to vote or refrain from voting on ground of
his caste/Tribe for the reason that what was obligated by the statute
upon any one to be entitled to contest in such a reserved constituency
cannot become condemnable as "corrupt practice". To attract the vice of
the said provisions as amounting to "corrupt practice", independent
appeal or canvassing for votes by the candidate or his agent or by
another person with the consent of the candidate or the election agent
for the furtherance of the prospects of the election of that candidate
or for prejudicially affecting the election of any candidate is an
essential ingredient. Therefore, the provision requiring an affidavit in
the prescribed form (Form-94) may not strictly have any application. But
that is not the omega. As Section 83(c) itself indicates, the petition
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shall be signed by the petitioner and verified in the manner laid down
in CPC for verification of facts. Order VI Rule 15 deals with
verification of pleadings and reads as follows:
"Verification of pleadings â\200\223 (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 pleadings, 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."
As sub-rule (2) of Rule 15 prescribes that a person making a
verification is required to specify by reference to the numbers of
paragraphs of the pleadings what he believes on his own knowledge, and
what he reveals upon information received and believed to be true. This
admittedly has not been done in the present case.
In F.A.Sapa and Ors. v. Singora and Ors. (1991 (3) SCC 375) a
three-Judge Bench of this Court specifically dealt with an issue
concerning defects in the verification of an election petition as well
as of defects in the affidavit accompanying an election petition wherein
allegations of corrupt practice are made. After considering the
provisions of Sections 83 and 86 of the Act, as also the requirements of
Form 25 prescribed by Rule 94-A of the Rules and relevant provisions of
the CPC, it was held: (SCC pp.403-04, para 28)
"28. From the text of the relevant provisions
of the R.P. Act, Rule 94-A and Form 25 as well as
Order 6 Rule 15 and Order 19 Rule 3 of the Code and
the resume of the case-law discussed above it clearly
emerges (i) a defect in the verification, if any, can
be cured (ii) it is not essential that the
verification clause at the foot of the petition or
the affidavit accompanying the same should disclose
the grounds or sources of information in regard to
the averments or allegations which are based on
information believed to be true (iii) if the
respondent desires better particulars in regard to
such averments or allegations, he may call for the
same in which case the petitioner may be required to
supply the same and (iv) the defect in the affidavit
in the prescribed Form 25 can be cured..."
This judgment was followed by a Division Bench of this Court in
H.D. Revanna v. G. Puttaswamy Gowda (1999 (2) SCC 217) and by a three-
Judge Bench in Dr. Vijay Laxmi Sadho v. Jagdish (2001 (2) SCC 247)
It is, therefore, a settled position in law that defect in
verification or an affidavit is curable. But further question is what
happens when the defect is not cured. There is gulf of difference
between a curable defect and a defect continuing in the verification
affidavit without any effort being made to cure the defect.
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In F.A. Sapa’s case (supra) it was held that even though
ordinarily a defective verification can be cured and the failure to
disclose the grounds or sources of information may not be fatal, failure
to place them on record with promptitude may lead the Court in a given
case to doubt the veracity of the evidence ultimately tendered.
In R.P. Moidutty v. P.T. Kunju Mohammad and Another (2000 (1) SCC
481) it was, inter alia, held as follows:
"All the averments made in paras 1 to 17 of the
petition have been stated to be true to the personal
knowledge of the petitioner and in the next breath
the very same averments have been stated to be based
on the information of the petitioner and believed by
him to be true. The source of information is not
disclosed. As observed by this Court in Singora’s
case (supra) the object of requiring verification of
an election petition is to clearly fix the
responsibility for the averments and allegations in
the petition on the person signing the verification
and, at the same time, discouraging wild and
irresponsible allegations unsupported by facts.
However, the defect of verification is not fatal to
the petition, it can be cured (See Murarka Radhey
Shyam Ram Kumar v. Roop Singh Rathore (AIR 1964 SC
1545 and A.S. Subbaraj v. M. Muthiah (5 ELR 21). In
the present case the defect in verification was
pointed out by raising a plea in that regard in the
written statement. The objection was pressed and
pursued by arguing the same before the Court.
However, the petitioner persisted in pursuing the
petition without proper verification which the
petitioner should not have been permitted to do. In
our opinion, unless the defect in verification was
rectified, the petition could not have been tried."
(Underlined for emphasis)
The case at hand has great similarity with the decision in
R.P.Moidutty’s case (supra). Not only defects in the
verification/affidavit were pointed out, but they were pressed into
service seeking dismissal of the election petition. The appellant stated
in his reply that he was filing separate petition with permission for
leave of the High Court for amending the verification. But that was not
done and the appellant continued to stick to his stand that since
corrupt practice was not alleged, there is no need for making any
amendment. The importance of verification has been noted by this Court
in several decisions. In Virendra Kumar Saklecha v. Jagjiwan and Ors.
(1972(1) SCC 826) it was noted as under:
"The importance of setting out the source of
information in affidavits came up for consideration
before this Court from time to time. One of the
earliest decisions is State of Bombay v. Purushottam
Jog Naik (AIR 1952 SC 317) where this Court endorsed
the decision of the Calcutta High Court in Padmadbati
Dasi v. Rasik Lal Dhar ( (ILR) 37 Cal. 259) and held
that the sources of information should be clearly
disclosed. Again in Barium Chemicals Ltd. and Anr. v.
Company Law Board and Ors. (AIR 1967 SC 295) this
Court deprecated slip shod verifications in an
affidavit and re-iterated the ruling of this Court in
Bombay’s case (supra) that verification should
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invariably be modeled on the lines of Order 19, Rule
3 of the Code ’Whether the Code applies in terms or
not’. Again in A.K.K. Nambiar v. Union of India and
Anr. (1969 (3) SCC 864), this Court said that the
importance of verification is to test the genuineness
and authenticity of allegations and also to make the
deponent responsible for allegations.
The real importance of setting out the sources
of information at the time of the presentation of the
petition is to give the other side notice of the
contemporaneous evidence on which the election
petition is based. That will give an opportunity to
the other side to test the genuineness and veracity
of the source of information. The other point of view
is that the election petition will not be able to
make any departure from the sources or grounds, if
there is any embellishment of the case it will be
discovered".
The Constitution Bench in State of Bombay v. Purushotham (AIR 1952
SC 317) noted as follows:
"The verification however states that
everything was true to the best of his information
and belief. We point this out as slipshod
verifications of this type might well in a given case
lead to a rejection of the affidavit. Verification
should invariably be modeled on the lines of Order
19, Rule 3 of the Civil Procedure Code, whether the
Code applies in terms or not. And when the matter
deposed to is not based on personal knowledge the
source of information should be clearly disclosed. We
draw attention to the remarks of Jenkins C.J. and
Woodroffe, J, in Padmabati Dasi v. Rasik Lal Dhar (37
Cal. 259) and endorse the learned Judges’
observations".
An election petition has definite role in the law relating to
election of representatives of the people.
The casual approach of the appellant is not only visible from the
manner in which verification was done, but also from the fact that he
has mentioned two different districts to which he claims to be
belonging. The explanation that the same was given by mistake is too
shallow when considered in the background that he is stated to be a
practicing advocate. An advocate is supposed to know the importance of
verification and the desirability of making statement of correct facts
in any petition and more in case of an election petition. An election
petition is intended to bring to focus any illegality attached to an
election. It essentially and basically puts a question mark on the
purity of election, casts doubt on fairness thereof and seeks a
declaration that mandate of people has been obtained by questionable
means. In a democracy the mandate has sacrosanctity. It is to be
respected and not lightly interfered with. When it is contended that
the purity of electoral process has been polluted, weighty reasons must
be shown and established. The onus on the election petitioner is heavy
as he has to substantiate his case by making out a clear case for
interference both in the pleadings and in the trial. Any casual,
negligent or cavalier approach in such serious and sensitive matter
involving great public importance cannot be countenanced or glossed over
too liberally as for fun.
Above being the position, we find no reason to interfere with the
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impugned judgment dismissing the election petition; though we have not
approved or affirmed some of the reasons for conclusion arrived at by
the High Court, as detailed above. The appeals fail and are dismissed.
No costs.