Dabholkar N.V., J.
1. By this petition under Section 80 of the Representation of the People Act, 1951 (henceforth referred to as the R.P. Act), petitioner challenges the election of the respondent as a Member of the Parliament (Lok Sabha) from Aurangabad Parliamentary Constituency. The brief details of the election are as follows :
(1) Election programme declared 31-3-2004(2) Date for filing nominations 7-4-2004(3) Polling took place 26-4-2004(4) Result was declared 13-5-2004(5) Election petition filed 26-4-2004(6) Application to file affidavit 8-12-2004
To say in brief, petitioner has challenged the election of respondent by contending that respondent has indulged into corrupt practices as contemplated by Section 123(4) of the R.P. Act. It is alleged that respondent or his agent or any other person on this behalf with the consent of respondent, has published an advertisement in the newspapers, Daily 'Sanz Warta' and Daily 'Lokmat' with the text as reproduced in para 4 of the petition (Annexure C), the. statements in the publication are false or maker believes them to be false or does not believe them to be true. Those are relating to personal character and conduct of petitioner. Those were reasonably calculated to prejudice the prospects of petitioner at the election and the said publication has materially affected the result of the election. It is also added that in order to secure wide publicity of the advertisement, respondent contacted Hindustan Lever Limited and also arranged distribution of 20 gms. tube of Pepsodent Tooth Paste free of cost with each edition of the newspaper containing the said advertisement.
2. After considering the petition and written statement, issues are framed on 22-12-2004 at Exhibit 12 and by application (Exh. 14) filed on 14-1-2005. Advocate of respondent has prayed for treating Issue Nos. 5 and 9 as preliminary issues. The issues read as follows :
Issues Findings5. Is petition barred by limitation? Yes, in view of(Section 81(1) of the Act) finding on Issue No. 8.6. Is petition bad for non-compliance ofsection 83(1)(a) & (b)? If As in para 14yes, what effect ?(a) Omission to contain concise state-ments of the material facts onwhich the petition relies ?(b) Omission to set forth full particularsof corrupt practice alleged?7. Is petition bad for non-compliance of sec- Not proved.tion 81(3) of the Act? If yes, what effect?8. Is petition bad for non-compliance of Yes. It is not aproviso to Sub-section (1) of Section 83 petition in theof the Act? If yes, what effect eye of law.9. Is petition bad for non-compliance of As in para 13.section 83(1)(c) (defective verification)?If yes, what effect ?
2004 (7) Supreme 721
2005 (5) All.M.R. 123
83
81(3)
83
81(3)
Contentions raised in application (Exh. 14) praying for decision on Issue Nos. 5 to 9 by treating those as preliminary issues are practically the same as raised in the written statement as also reply to application (Exh. 11) filed by respondent at Exhibit 13. Although by reply filed at Exhibit 15, petitioner prayed for rejection of application (Exh. 14), ultimately by mutual consent, the Advocates have argued out the matter for decision on Issue Nos. 5 to 9 preliminary issues reproduced hereinabove. Consequently, it is desirable to consider applications (Exh. 11 & 14) as also Issue Nos. 5 to 9 simultaneously.
4. Since all the issues, which are being treated as preliminary issues, are based on the averments raised by respondent regarding non-compliance of certain provisions of the Act. The relevant provisions can usefully be reproduced hereinbelow for ready reference :
'Section 81 - Presentation of petition
(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 45 days from but not earlier than the date of election of the returned candidate or if there are more than one returned candidates at the election and dates of their election are different, the latter of those two dates.' 'Section 83 - Contents of the petition
(1) An election petition :
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall setforth 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;
(2)...
(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 petitioner under his own signature to be a true copy of the petitioner.'
'Section 83 - Contents of the petition
(1) An election petition
(a) ...
(b) ...
(c) shall be signed by petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V 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.'
Petitioner has placed reliance on Section 86(1) in order to repeal the arguments of the Counsel for respondent. The said provision reads as follows:
'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 82 or Section 117 ....'
5. During the course of his arguments, Advocate Shri B.D. Joshi, who relied upon a plethora of case law, submitted that non-filing of affidavit as required by Section 83(1)(c) proviso is incurable defect. In the alternative, he submitted that if at all the same was a curable defect, the affidavit ought to have been filed before expiry of the period of limitation i.e. on or before 27-6-2004. Therefore, according to him, affidavit filed on 8-12-2004 is incapable of curing the defect. The doctrine of substantial compliance would, therefore, be not available to petitioner. He pointed out that all the cases relied upon either by him or his counter part are the cases wherein affidavit was filed and was defective. He conceded that he has not been able to lay hands on any decision of the Supreme Court wherein there was total absence of affidavit. He, thus, urged that election petition presented without an affidavit supporting the allegations of corrupt practice on which the petition is based, is no petition in the eye of law and on this count, the matter deserves to be dismissed at the threshold in the light of Section 86(1) for non-compliance of Section 81 r/w 83(1)(c) proviso.
He has not argued that the petition is presented after the period of limitation i.e. 27-6-2004 and, therefore, it is barred by limitation, but issue of limitation is argued in a different way. According to Advocate Shri Joshi, the presentation was completed only on the day the affidavit supporting the petition was filed i.e. on 8-12-2004 and, therefore, the petition presented without affidavit was no petition and what can be termed as petition in the eye of law has come into existence after the expiry of period of limitation.
Regarding non-compliance of Section 83(1)(a) and (b), he contended that the newspaper publication without admitting authorship of the same, does not contain any personal allegations, but the same contained criticism on the function of petitioner in his official capacity and which is not a corrupt practice as contemplated by Section 123(4). Petitioner is not certain about the author of the publication. He does not precisely say whether it is publication by respondent or his election agent or any person other than election agent. Although newspaper and tooth paste is said to have been distributed, there are no details as to who distributed those and where those were distributed and to whom. According to Shri Joshi, there is no material to demonstrate that such distribution has materially affected the election prospects of petitioner. (Respondent is said to have been elected with a margin of 1,22,000 votes). Thus, according to Advocate Shri Joshi, the petition makes out no cause of action due to non-compliance of Section 83(1)(a) and (b) and, therefore, deserves to be rejected in view of Order 7, Rule 11 of the Code of Civil Procedure.
6. While replying, learned Counsel Shri Raghuwanshi for petitioner, has relied upon Section 86(1) of the Act and contended that Issue Nos. 6, 8 and 9 are based on non-compliance of the provisions of Section 83 or its sub-sections. By virtue of Section 86(1), the High Court is empowered to dismiss an election petition, which does not comply with the provisions of Section 81 or 82 or 117 and, therefore, non-compliance of any of the provisions of Section 83 is not available to respondent for praying the dismissal of election petition at the threshold. It is contended that what was argued by the learned Counsel for respondent as requirement of pleading, is in fact matter of evidence and not that of pleading. According to learned Counsel, therefore, unless the evidence is laid, the petition cannot be dismissed by answering Issue Nos. 6, 8 and 9 in favour of respondent. So far as Issue Nos. 5 and 7 are concerned, acco rding to learned Counsel, absence of affidavit is a curable defect and, therefore, the affidavit presented on 8-12-2004 may be accepted on record, which will negative the challenge as contained in Issue No. 7 and consequently Issue No. 5 will not survive as the petition is presented within 45 days.
7. By relying upon Section 86(1) reproduced hereinabove, learned Counsel for petitioner has contended that so far as dismissal of election petition at the threshold is concerned, that would be only if the deficiency attracts Section 81 or Section 82 or Section 117. According to him, so far as points at Sr. Nos. 6, 8 and 9, those are raised because of contention on the part of respondent that there is no compliance of certain part of Section 83. In view of Section 86(1), these grounds shall not be available to the respondent to claim dismissal of the election petition at the threshold. In order to support such a challenge to the application praying dismissal of the election petition at the threshold, learned Counsel has placed reliance upon judicial pronouncements as follows :
(Dr. Vijay Laxmi Sadho v. Jagdish) : [2001]1SCR95 . This was an appeal by special leave, directed against an order of High Court of Madhya Pradesh rejecting interim applications filed by appellant-the returned candidate, seeking rejection of an election petition filed by the respondent challenging his election on various grounds contained in those applications. The order was upheld by the Supreme Court after following earlier decision of the Supreme Court in the matter of (F.A. Sapa v. Singora) : [1991]2SCR752a . The main objection to the maintainability of the election petition was that the affidavit filed in support of allegations of corrupt practice was not drawn up in the manner prescribed by Section 83(1) of R.P. Act r/w Rule 94-A in the prescribed Form 25. The other objection was that the petition and affidavit were drawn in Hindi and not in English. The Supreme Court observed :
'We are in respectful agreement with the view expressed in F.A. Sapa case and in view of settled law the conclusion becomes irresistible that defect in verification of an affidavit is curable and does not merit dismissal of an election petition in limine under Section 86(1) of the Act. The learned Single Judge of the High Court was, therefore, perfectly justified in dismissing IA No. 2806 of 1999.'
Similar was the view taken in the matter of (G. Mallikarjunappa v. Shamanur Shivashankarappa)4, : AIR2001SC1829 , by following ratio in the matter of F.A. Sapa and the case of Dr. Vijay Sadho. The Supreme Court in this matter set aside the order passed by single Judge of Karnataka High Court by which learned Judge had upheld the objection raised by successful candidate that Rule 94-A was not complied with and dismissed the election petition at threshold.
Reliance was also placed on certain observations in the matter of F.A. Sapa v. Singora, : [1991]2SCR752a , by the learned Counsel for election petitioner, which are as follows :
'Mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. Since Section 83 is not one of three provisions mentioned in Section 86(1), ordinarily it cannot be construed as mandatory unless verification is shown to be an integral part of the petition under Section 81.'
It was further observed :
'There can, therefore, be no doubt that such an allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of Section 83 before the parties go to trial. While defective verification of a defective affidavit may not be fatal, the High Court should ensure its compliance before the parties go to trial so that the party required to meet the charge is not taken by surprise at the actual trial. It must also be realised that delay in complying with the requirements of Section 83 read with the provisions of the C.P.C. or the omission to disclose the grounds or sources of information, though not fatal would weaken the probative value of the evidence ultimately lead at the actual trial.'
The head note (B) from which above extracts were relied upon, however, concludes as follows :
'Therefore, 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. If. however, the affidavit or the schedule or annexure forms an integral part of the election petition itself, strict compliance would be insisted upon.'
(emphasis added)
It may be stated here itself that by relying upon other judicial pronouncement, in the matter of Dr. Shipra A.I.R. 1996 S.C. 1691, learned Counsel for the respondent has claimed that affidavit as contemplated by Rule 94-A of Conduct of Election Rules ('Rules' for the sake of brevity) in Form No. 25 is integral part of the election petition and presentation of election petition de hors such an affidavit is incomplete presentation and the petition would be no election petition in the eye of the law.
In the matter of F.A. Sapa in para 32, the Supreme Court has observed as follows :
'If a document does not form an integral part of the election petition but is merely referred to in the petition or filed in the proceedings as evidence of any fact, failure to supply a copy thereof will not prove fatal. Therefore, the maintainability of an election petition, in the context of the point on hand will depend on whether the schedule or annexure to the petition constitutes an integral part of the election petition or not. If it constitutes an integral part, it must satisfy the requirements of Section 81(3) and failure in that behalf would be fatal.'
Advocate Shri Joshi for the successful candidate has repeatedly reminded this Court that in the matter at hands, the affidavit, as contemplated by Rule 94-A in Form No. 25 was not filed alongwith the petition. This is not a matter wherein the affidavit filed was defective and, therefore, this Court could permit the election petitioner to remove the defect. This, is a matter where affidavit was not at all filed. The same is sought to be filed vide application dated 8-12-2004, which was after expiry of period of limitation of 45 days as prescribed by Section 81(1), which expired on 27-6-2004. Thus, according to Shri Joshi, the defect is not curable and if at all it was curable, it was not cured before expiry of period of limitation and hence the petition deserves to be dismissed in limine.
Even in the matter of (Sardar Harcharan Singh Brar v. Sukh Darshan Singh)5 2005 (5) All.M.R. 123, the Supreme Court took a view :
'The form is prescribed by Rule 94-A. But at the same time, it cannot be lost sight of that failure to comply with the requirement as to filing of an affidavit cannot be a ground for dismissal of an election petition in limine under Sub-section (1) of Section 86 of the Act. The defect in the verification and the affidavit is a curable defect.'
This was by relying upon the cases of Dr. Vijay Laxmi Sadho and G. Mallikarjunappa (supra).
8. Shri Joshi has met with above argument on behalf of petitioner by relying upon few judicial pronouncements. In the matter of (Dharatipakar Madan Lal Agrawal v. Shri Rajiv Gandhi) : [1987]3SCR369 , the Supreme Court observed, thus, in para 8 :
'If the Court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI, Rule 15 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the Court finds that no triable issues remain to be considered. It has power to reject the election petition under Order VII, Rule 11.'
These observations are tried to be utilised by Advocate Shri Joshi in more than one ways. According to him, the allegations of corrupt practices in the election petition, not being supported by an affidavit as required by Rule 94-A, are required to be struck down even before commencement of the trial, by exercising powers under Order 6, Rule 15 and once that is done, there remains no cause of action and the petition deserves to be dismissed under Order 7, Rule 11 of the Code. Thus, according to Advocate Shri Joshi, although defect may be one of non compliance with Section 83, the same may entail dismissal at the threshold, may be by exercise of powers under the Code of Civil Procedure and absence of reference to Section 83 in Section 86(1) shall be no impediment for such dismissal at the threshold.
Such a proposition is supported by Advocate Shri Joshi by relying upon observation in the matter of (Azhar Hussain v. Rajiv Gandhi)6, : [1986]2SCR782 , wherein it was observed as follows :
'The Code of Civil Procedure applies to the trial of an election petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the election petition can act in exercise of the powers of the Code including Order 6, Rule 16 and Order 7, Rule 11(a). Therefore, that Section 83 does not find a place in Section 86 of the Act which authorises dismissal of election petitions in certain contingencies does not mean that powers under the C.P.C. cannot be exercised. An election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the C.P.C. and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all.'
In this matter, preliminary objections raised by the successful candidate that there were no averments to show that book was published with consent or knowledge of the returned candidate, facts showing that distribution of book was with the consent of returned candidate, were missing, there were no averments in the petition as to by whom, where and to whom the pamphlets relating to personal character of candidate were distributed, who had printed, published and circulated those pamphlets were also absent, were upheld by Allahabad High Court and dismissal at the threshold was confirmed by the supreme Court.
In the matter of (Samar Singh v. Kedar Nath)7, : AIR1987SC1926 , while upholding the rejection of election petition under Order 6, Rule 11 of C.P.C. the Hon'ble Apex Court took identical view as in the matter of Dharatipakar Madan Lal (supra).
9. (Shipra Dr. v. Shantilal Khoiwal) A.I.R. 1996 S.C. 1691, was relied upon by Advocate Shri Joshi for original respondent. In this matter, in all four election petitions, three from Rajasthan High Court and one from Madhya Pradesh High Court were dismissed by respective High courts by upholding the objection raised by respective respondents to the effect that copy of the election petition accompanied by supporting affidavit served on respective respondents alongwith Form No. 25 prescribed under Rule 94-A of the Conduct of Election Rules, 1961, without attestation part duly verified by the District Magistrate/Notary/Oath Commissioner cannot be said to be true and correct copy of the election petition as envisaged in Section 81(3) of the Act. Requisite number of copies of the election petition accompanied by the summons were attested by appellant under her own signature to be true copy. The copy supplied to respondent admittedly did not bear the attestation part. Rule 94-A of the Rules provides that affidavit containing allegations of corrupt practices shall be in the prescribed form viz. Form 25, which enjoins accompaniment of solemn affidavit to be duly sworn by the election petitioner duly verifying correctness of alleged corrupt practice mentioned in various paragraphs of the election petition and attestation by District Magistrate/ Notary/Oath Commissioner. The copy supplied to the respondent admittedly did not contain such verification by Notary, who had attested the original affidavit filed alongwith election petition certifying it to be a true copy. While upholding the dismissal of election petition at the threshold by dismissing the appeals, the Supreme Court observed :
'The document purporting to be a true copy of the election petition furnished by the appellant to the respondent gave the impression that the appellant's affidavit supporting his allegations of corrupt practice had not been sworn or affirmed and was, therefore, no affidavit at all; it misled in a material particular and its supply was, as the High Court held, fatal to the election petition.'
It was urged by Advocate Shri Joshi that even supply of a true copy of the affidavit, which gave an impression that the affidavit was not duly verified in presence of District Magistrate/Notary /Oath Commissioner was held to be fatal to the election petition. In the matter at hands, there is no affidavit at all and hence copy served on the respondent is also without a copy of an affidavit and, thus, what is served upon the respondent is incomplete petition. In order to support his averment that the election petition without affidavit is incomplete, Advocate Shri Joshi has not relied upon only to the observations of the Supreme Court in the matter of (M. Kamalam v. Dr. V.A. Syed Mohammed), : [1978]3SCR446 , but has placed reliance upon the case of M. Kamalam itself. In the said case, preliminary objection realised by the successful candidate to the election petition was that, copy of election petition served on the respondent was not attested by petitioner. Election petition and affidavit were tagged together and attestation was there at the end of affidavit. Objection of non-compliance of Section 81(3) was upheld by Kerala High Court. The Supreme Court set aside the decision of Kerala High Court by observing that the election petition is in truth and reality one document consisting of two parts, one being the election petition proper and the other being the affidavit referred to in the proviso to Section 83(1). The Supreme Court observed, thus, in para 5 of the judgment :
'Now the first question which arises is as to what constitutes an election petition for the purpose of Section 81, Sub-section (3). Is it confined only to election petition proper or does it also include a schedule or annexure contemplated in Sub-section (2) of Section 83 or a supporting affidavit referred to in the proviso to Section 83, Sub-section (1)? To answer this question, we must turn to Section 83 which deals with contents of an election petition. Sub-section (1) of that section sets out what an election petition shall contain and provides that it shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. The proviso requires that where the petitioner alleges any corrupt practice, the election 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. The context in which the proviso occurs clearly suggests that the affidavit is intended to be regarded as part of the election petition. Otherwise, it need not have been introduced in a section dealing with contents of an election petition nor figured as a proviso to a sub-section which lays down what shall be the contents of an election petition. Sub-section (2) also by analogy supports this inference.'
Thus, according to the Apex Court, the affidavit is integral and inseparable part of election petition and Advocate Shri Joshi was justified in submitting that petition presented without affidavit as contemplated by Rule 94-A in Form 25 is incomplete presentation and, therefore, no petition in the eye of law.
Advocate Shri Joshi fairly conceded that he has not been able to lay hands on any decision of the Supreme Court wherein total absence of affidavit in Form 25 under Rule 94-A was under consideration. But he has come with two judgments, one of a Division Bench of this High Court and another of a Single Judge of Madhya Pradesh High Court, which support the argument submitted by him that petition presented without affidavit is incomplete presentation and, therefore, no petition in the eye of law. (Shrikrushana Dhamankar v. The Nasik Merchants Co-operative Bank Ltd.), : AIR1990Bom90 , is a decision of a Division Bench of this High Court in the matter of election to the managing committee of the respondent-bank. This was a writ petition under Article 227 of the Constitution challenging the order passed by Additional Commissioner of Nashik Division, dismissing the election petition, which was filed by the petitioner challenging the election of respondents 4 to 11 to the Managing Committee of the bank. As rightly argued by Advocate Shri Joshi, Section 144-V of the Maharashtra Cooperative Societies Act, 1960, is pari materiel with Section 83 of the Representation of the People Act, 1951, except the words 'prescribed form' in the proviso to Sub-section (1) of Section 83. Both provisions require the election petition to be accompanied by affidavit in support of the allegations of corrupt practice, when the petition alleges any corrupt practice. In the matter before the Division Bench, the petition filed under Section 144-T of M.C.S. Act was not accompanied by an affidavit in support of the allegation of the corrupt practices alleged and the particulars thereof. It was observed by Division Bench in paras 16 and 17 as follows :
'Looking to this intention of the Legislature, we are of the opinion that an election petition ought to be accompanied and not followed by an affidavit as mentioned in the proviso to Clause (c) of Section 144-V(1) of the Act. The use of the peremptory word 'shall' raises a prima facie presumption that the provision is mandatory and this presumption is not displaced by anything else contained in the Act or the Rules. On the other hand, the presumption is reinforced by the special importance given to an election petition challenging the election on the ground of corrupt practice.
17. A closer look at Section 144-V of the Act suggests that the petition must be complete when it is presented. An incomplete petition not containing the particulars mentioned in Section 144-V of the Act and otherwise not in compliance with the said provisions cannot be treated as a petition at all under Section 144-T of the Act.'
In the matter at hands, the petition de hors affidavit was presented well within period of limitation i.e. on 24-6-2004. The limitation of 45 days was to expire on 27-6-2004. The affidavit in Form 25 is sought to be filed alongwith application dated 8-12-2004, which is much after expiry of period of limitation for presenting an election petition and it is consistent stand on behalf of the successful candidate that an affidavit being an integral part of the election petition can not be allowed to be presented after expiry of period of limitation, since petition presented de hors affidavit was no petition in the eye of law and if the defect is allowed to be cured by allowing the affidavit on record after expiry of period of limitation, that would be tantamount to entertaining an election petition, which is barred by law of limitation. Even such an argument in the light of Section 5 of the Limitation Act will have to be upheld. This is because, election petition shall stand on the same footing as original suit and Section 5 of the Limitation Act does not permit the Court to grant extension of prescribed period of limitation in case of original matters.
Viewed thus, election petition de hors affidavit in Form 25 is bad for non-compliance of proviso to Sub-section (1) of Section 83 and it is no election petition in the eye of law. Complete election petition in the eye of law, if affidavit sought to be filed on record on 8-12-2004 is allowed, would come into existence on that day and, therefore, would be barred by limitation prescribed in Section 81(1) of R.P. Act. Issues 8 and 5 can be answered accordingly at this stage itself.
In (Rameshwar Daya v. Munna Singh), A.I.R. 1992 MP 161, learned Single Judge of Madhya Pradesh High Court was considering interim application on behalf of returned candidate challenging the maintainability of the petition and took a similar view in para 9 of the judgment by relying upon observations in the matter of M. Kamalam (supra). The learned Judge observed :
'Without 'affidavit', an election petition cannot be treated as a complete 'election petition' within the meaning of the term employed in Section 81(3) because of the requirement of the 'affidavit' contemplated under Section 83(1)(b). Proviso, being mandatory.'
10. : [1999]2SCR659 , (T.M. Jacob v. Poulose), a decision of the Constitution Bench of the Supreme Court was relied upon by learned Counsel for the respondent. This was an appeal against order of learned Single Judge from Kerala High Court rejecting the application of appellant (before the Supreme Court) seeking dismissal of election petition on various grounds. It was argued that non-supply of copy of original newspaper report was non-compliance of Section 81(3) of R.P. Act. It was also argued that copy of affidavit in Form No. 25 as per Rule 94-A was defective because verification of Notary public was not contained therein. The appeal was dismissed by the Supreme Court observing that the election petition did not suffer from any defect, which could attract the provisions of Section 86(1) of the Act.
In fact, the matter was relied upon by Advocate Shri Joshi to claim that this decision by a Constitution Bench of the Supreme Court has not overruled the ratio or observations of the Supreme Court in the matter of Dr. Shipra, which was relied upon by learned Advocate to propound that the defect in the verification is incurable defect and also to submit that principle of substantial compliance is not applicable. I am afraid, submission of Advocate Shri Joshi cannot be accepted in the light of observations of the Supreme Court in para 28 of the judgment, which read as follows :
'In our opinion, the principle indicated in Dr. Shipra case has to be considered as confined to the facts and circumstances of that case as opined by Ramaswamy, J., himself, when His Lordship observed:
'The principle of substantial compliance cannot be accepted in the fact situation.'
The observations quoted hereinabove clearly indicate that the Supreme Court did not lay down observations in the matter of Dr. Shipra case as law universally applicable to all election petitions, but those were the observations and conclusions applicable in the fact situation of that case. As to what defects are curable and as to when the doctrine of curability would come into play so also which violations can attract the application of the doctrine of substantial compliance, the Supreme Court observed, thus in para 43 of the judgment:
'That apart, to our mind, the legislative intent appears to be quite clear, since it divides violations into two classes those violations which would entail dismissal of the election petition under Section 86(1) of the Act like non-compliance with Section 81(3) and those violations which attract Section 83(1) of the Act i.e. non-compliance with the provisions of Section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in (Murarka Radhey Shyam v. Roop Singh Rathore), : [1964]3SCR573 and (Ch. Subbarao v. Member, Election Tribunal, Hyderabad), : [1964]6SCR213 . The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. This position clearly emerges from the provisions of sections 83(1) and 86(5) of the Act, which read :
(The provisions were reproduced in para 43 for ready reference.)'
In para 45, the Supreme Court further observed :
'In our opinion, it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhey Shyam's case, : [1964]3SCR573 (supra) are sound tests and are now well settled.'
The test laid down in Murarka's case is referred in para 37 :
'It was held that the test to determine whether a copy was a true one or not was to find out whether any variation from the original was calculated to mislead a reasonable person.'
From the decision, it is evident that non-compliance with Section 81(3) can attract application of doctrine of substantial compliance and the defects of the type provided in Section 83 can be dealt with under the doctrine of curability.
However, this may be sufficient for the petitioner to claim that the affidavit filed on 8-12-2004 may be taken on record because during the course of discussion in paras 41 and 42, the Supreme Court also observed that the vital defect cannot be permitted to be cured after the expiry of period of limitation and affidavit in Form 25 being an integral part of the petition, absence of such an affidavit is a vital and fatal defect, which can not be permitted to be cured after expiry of period of limitation on 27-4-2004.
A.I.R. 2000 Supreme Court 694 (V. Narayanaswamy v. C.P. Thirunavukkarasu), was a case where election petition was dismissed at the threshold, because it did not disclose any cause of action of triable issue and such dismissal was upheld by the Supreme Court observing that election petition not only lacked material facts, it lacked material particulars, effective verification and the affidavit filed was not in the form prescribed. Ingredients of corrupt practices as defined under Section 123(1)(b) and 123(2) of the Act were also held lacking. In this matter, the Supreme Court in its judgment para 22 referred to the observations of the Constitution Bench in the matter of (Balwan Singh v. Lakshmi Narain), : [1960]3SCR91 , in following manner :
'An election petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. On the facts of the case, the Court found that the alleged corrupt practice of hiring a vehicle for the conveyance of the voters to the polling station was sufficiently set out in the pleading. The Court pointed out that the corrupt practice being hiring or procuring of the vehicle for the conveyance of the electors, if full particulars of conveying by a vehicle of electors to or from any polling stations were given, Section 83 was duly complied with, even if the particulars of the contract of hiring, as distinguished from the fact of hiring were not given.
Then this Court referred to the various judgments of the Court drawing distinction between the 'material fact' and 'material particulars' holding that if petition suffers form lack of material facts, it is liable to be summarily rejected for want of cause of action and if the deficiency is only of material particular, the Court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. With regard to the affidavit to be filed along with the election petition in the prescribed Form No. 25, the Court observed that the defect in such affidavit could be cured unless it formed the integral part of the petition in which case, the defect concerning material facts will have to be dealt with subject to limitation under Section 81 of the Act. In this case, the Court observed that 'if the above well settled principles are applied in this case, there is no doubt whatever that the election petition suffers from a very serious defect of failure to set out material facts of the alleged corrupt practice. The defect invalidates the election petition in that regard and the petitioner ought not to have been permitted to adduce any evidence with reference to the same.' The affidavit filed along with the petition does not disclose the source of information. Nor does it set out which part of the election petition was personally known to the petitioner and which part came to be known by him on information. The Court said that the affidavit was not in conformity with the prescribed Form No. 25 and, thus, there was a failure to comply with Rule 94-A of the Conduct of Elections Rules and that it is a very serious defect.'
From the observations borrowed, it is clear that defect concerning material facts can be allowed to be cured subject to limitation under Section 81 of the Act. This Court will be justified in saying that their application for supplementing the petition with affidavit in the prescribed Form No. 25, as contemplated by Rule 94-A filed alongwith the application dated 8-12-2004, which is beyond prescribed period of limitation, now can not be allowed to be brought on record. The application (Exhibit 11), therefore, will have to be rejected. In para 28 of this judgment, the Supreme Court also observed :
'The existence of material facts, material particulars, correct verification and the affidavit are relevant and important when the petition is based on the allegation of corrupt practice and in the absence of those, the Court has jurisdiction to dismiss the petition. High Court has undoubtedly the power to permit amendment of the petition for supply of better material particulars and also to require amendment of the verification and filing of the required affidavit but there is no duty cast on the High Court to direct suo motu the furnishing of better particulars and requiring amendment of petition for the purpose of verification and filing of proper affidavit. In a matter of this kind, the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with the provisions of law is on the petitioners.'
Observations in the matter of Balwan Singh referred in this judgment were also followed in the matter of Sardar Harcharan Singh Brar (relied upon the respondent) 2005 (5) All.M.R.123, in its judgment para 11 as follows:
'Thus whereas it may be permissible for a party to furnish particulars even after the period of limitation for filing an election petition has expired, with the permission of the Court, no material fact unless already pleaded, can be permitted to be introduced, after the expiry of the period of limitation.'
11. Although it was submitted on behalf of returned candidate that petition lacks material facts and material particulars, for that purpose, it was submitted that petitioner is not certain as to whether publication was by respondent or by his election agent or by person other than election agent with his consent. The petition does not disclosed who caused the publication, who caused the distribution of tooth paste, to whom those were distributed and at what place and by whom. To this aspect, we shall turn little later. But without admitting the authorship of publication and distribution of tooth paste, it was contended that the publication does not contain any allegations in relation to the personal character or conduct of petitioner and, therefore, no offence under Section 123(4) is made out. It is, therefore, contended that the election petition makes out no cause of action and is, therefore, required to be dismissed in limine.
Relevant portion of Section 100 of the R.P. Act reads as follows :
'100. Grounds for declaring election to be void:
(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion-
(a) ...
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) ...
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -(i) ....
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or ....'
Thus, in order to get the election of the returned candidate declared as void, election petitioner is required to establish indulgence into corrupt practice either by the returned candidate or his election agent or by any other person with their consent of returned candidate or his election agent. In the alternative, election petition can succeed by demonstrating that a corrupt practice committed in the interests of returned candidate by an agent other than election agent has materially affected the result of election. (In the present election petition, it can be said that even while approaching the Court, petitioner does not seem to have sufficient material regarding who caused the publications in Daily Lokmat and Sanz Warta).
Consequently, we are required to refer to Section 123, which defines corrupt practices at the election. In view of the pleadings of petitioner, we are concerned with Sub-section (4) of the same, which reads thus :
'123(4). The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.'
The objection raised on behalf of respondent is that the publication in both the newspapers, which is identical, does not relate to personal character or conduct of petitioner. If at all that relates to his functioning in public life, criticism against which is permissible during the election and does not attract Section 123(4) of the R.P. Act. Reliance was place on few judicial pronouncements on this aspect.
In the matter of (Jagjit Singh Dr. v. Giani Kartar Singh), : AIR1966SC773 , the Supreme Court, thus, observed in para 20 :
'The question as to what allegations can be said to amount to allegations in regard to the personal character of a candidate, as distinguished from his public character, is not always easy to decide on consideration of abstract principles. The policy underlying the present provision is that in the matter of elections, the public and political character of a candidate is open to scrutiny and can be severely criticised by his opponents, but not so his private or personal character. In order that the elections in a democratic country should be freely and fearlessly conducted, considerable latitude has to be given to the respective competing candidates to criticise their opponents political or socio-economic philosophy or their antecedents and character as public men. That is why even false statements as to the public character of candidates are not brought within the mischief of Section 123(4), because the legislature thought that in the heat of election, it may be permissible for competing parties and candidates to make statements in relation to the public character of their opponents, and even if some of the statements are false, they would not amount to corrupt practice. Having regard to this policy of the statute, it often becomes necessary to examine carefully whether the false statement impinges on the personal character of the candidate concerned. Though it is not easy to lay down any general considerations which would help the determination of this issue in every case, in actual practice, it may not be very difficult to decide whether the false statement impinges on the personal character of the candidate or on his public character. It would be inexpedient and undesirable to lay down any general principle in that behalf.'
In : AIR1990SC1731 , (Lalit Kishor Chaturvedi v. Jagdish Prasad), it was observed :
'Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition.'
It was averred in this election petition that the elected candidate got the election pamphlets published and circulated, which stated that he candidate of opposite party i.e. petitioner had given a threat that if he was not elected, the house tax should be imposed and the houses of the electors would be bulldozed. It was held that none of these could be said to reflect on personal character of the petitioner-candidate, but his political character. It did not fulfil the requirements of Section 83(1)(b) and the petition was held liable to be dismissed under Order 7, Rule 11.
Even in the matter of (Ram Chand Bhatia v. Hardyal), : [1986]1SCR177 , it was observed :
'One of the ingredients of Section 123(4) is that the statement of the offending document must be false and the person making it either believes it to be false or does not believe it to be true in relation to the personal character or conduct of the candidate. In the instant case, the High Court has referred to the contents of the impugned poster, but the Court has got to record its own finding whether the statements of facts about the personal character of the respondent was false to the knowledge of the appellant or in any case believed by him to be false and not true.'
Thus, it must be said that if the statements allegedly made by the returned candidate are not relating to personal character or conduct of the defeated candidate, the election petitioner will not be in a position to say that returned candidate has indulged into corrupt practice as defined by Section 123(4). This brings us to consider the text of the publication.
Copies of the publication in Daily Sanz Warta and Daily Lokmat dated 25th April, 2004, are available at Exhibit C and one original edition of both the newspapers is produced alongwith document list Exhibit 17. Having gone through the text, it is evident that the text published in both the newspapers is verbatim identical. The text is in Marathi and its English translation is available in petition paragraph 4. It can be ascertained that English translation is reasonably accurate. From black dots to the left hand side, it can be seen that there are 15 items and contents can be summarized as follows :
(1) In Ramkrishna Lift Irrigation Scheme, more expenditure that estimated had been incurred, yet, the scheme is in scattered condition after affecting several agriculturists and dislodging them.
(2) Amount of rupees 2 to 3 crores was borrowed as a loan for Ramkrishna Godavari Lift Irrigation Scheme and utilized for the Parliamentary Elections of 1998.
(3) Crores of rupees were shows as loans in the name of agriculturists and employees of Vinayak Co-operative Sugar Factory for the purpose of diverting those funds towards Ramkrishna Lift Irrigation Scheme.
(4) Misappropriation of rupees 2 crores and 80 lacs is established during an enquiry under Section 83 of the Maharashtra Co-operative Societies Act during the years 1987 to 1990.
(5) The audit report shows Vinayak Co-operative Sugar Factory as the factory consuming maximum diesel and petrol.
(6) During the years 1997 to 1999, 400 bags of sugar from Vinayak Cooperative Sugar Factory were sold @ Rs. 705 per bag, when prevailing market rate was Rs. 1,250/- per bag, by showing that the sugar had become wet, which has caused the factory loss of rupees fifty lacs.
(7) In the same years, about 43,000 sugar bags were sold at the rate lower by Rs. 100/- to Rs. 125/- than the rates of Kannad, Gangapur and Paithan sugar factories, thereby causing misappropriation of rupees 50 lacs and loss to tune of rupees 1 crore to the sugar factory.
(8) Audit report shows misappropriation of Rupees 7 crores 29 lacs 24 thousand in the finances of Vinayak Sugar Factory.
(9) Loan of rupees 3 crores obtained at the rate of interest of 15% p.a. is disbursed amongst relatives.
(10) In all 26,600 bags of sugar was sold at Rs. 1,300/- per bag, when prevailing market rate was Rs. 1,650/- per bag.
(11) Amount of rupees 65 lacs is said to have been advanced for harvesting, and transporting workers of the sugar factory, but the said amount, has not reached the workers. Amount of Rs. 8.48 lacs has also not reached the workers who have left the job.
(12) In Sant Eknath Factory, there was an amount of Rs. 1.25 crores in processional account. The factory since 1998-99 spent heavy finances towards modernization and there has been misappropriation of lacs of rupees in the same. Consequently, the factory is required to be closed down and hundreds of workers are starving. The factory is facing an enquiry under Section 83 of the Maharashtra Co-operative Societies Act and the calculations reveal misappropriation to the tune of Rs. 75/- lacs.
(13) In the recruitment of 380 workers for Aurangabad District Central Cooperative Bank, so also, in the recruitment of 150 Assistant Secretaries, corruption has taken place and candidates only who could pay the amount are recruited.
(14) While being the Chairman of District Central Co-operative Bank, an amount of rupees 7 lacs is spent on mineral water (when the people are facing scarcity of water), further amount of rupees 25 lacs towards air fare and amounts are also spent for purchasing mobiles for self, two Private Secretaries and the Driver. This is misuse of amount of the agriculturists.
(15) The lands of poor, backward and Adiwasis are forcibly acquired by relatives.
Having gone through all these allegations, question arises : whether these can be said to be allegations against personal character and conduct of petitioner? As rightly observed by the Apex Court in the matter of Jagajit Singh (supra), no general considerations can be laid down, which would help the determination of the issue as to whether the imputations impinge upon personal character of the candidate or on his public character. On examination of the text of the publication, the same is comprehended as above. It may be added that every item is concluded with a question mark by saying, 'Who has done it?' In fact, it would ordinarily be onus of proof to be discharged by petitioner that these imputations are aimed at his personal character or conduct.
On reference to para 3 of the petition, petitioner has claimed to be a person continuously being in the social work and public life. He says that he is in active politics as well as acting as a social worker in co-operative movement. He was a member of Legislative Assembly of the State for ten years. In the past, he had been a member of the Parliament. He is Chairman of Ramkrishna Godavari Lift Irrigation Scheme (Upasa Jal Sinchan Yojana). He was Chairman of Vinayak Sahakari Sakhar Karkhana (Co-operative Sugar Factory) for ten years. His son is also in active politics and was Chairman of Shri Sant Eknath Sahakari Karkhana Ltd., Paithan. Petitioner was also Chairman of Aurangabad District Central Co-operative Bank for about more than five years. Petitioner was also Director of Maharashtra State Co-operative Bank. He was also President of the Panchayat Samiti, Vaijapur, for five years.
If we read the imputations in the publications, those are related to affairs of Ramkrishna Lift Irrigation Scheme, Vinayak Sahakari Sakhar Karkhana, Sant Eknath Sahakari Sakhar Karkhana, Aurangabad District Central Co-operative Bank. Only matters at serial Nos. 9 and 15 regarding loan obtained from Industrial Development Bank of India and acquisition of lands of Adiwasis, do not appear to be related to any of these institutions. If petitioner had held the post and the character, as pleaded in para 3 of the petition, he is/was connected with all these institutions. The simple test, that can be applied for considering whether imputations are aimed at impinging personal character and conduct of petitioner, would be to question about each matter. 'Whether petitioner in his individual capacity could have indulged into any of these affairs, had he not held the official character in the public life, either as Chairman of the project factory, or Director of the Bank?' The answer would be No. If imputations in the public life are aimed at petitioner, those are aimed at him in the light of his character in the public life, either as a Chairman of the project factory or the Bank. I have, therefore, no hesitation to record a finding that, except paras 9 and 15 of the publication, all paragraphs ex facie referred to public life (of petitioner and those do not refer to personal character/conduct of petitioner).
So far as loan of rupees 3 crores from Industrial Development Bank of India at the rate of interest of 15% p.a., it is alleged to have been disbursed amongst the relatives and it is questioned, 'By whom?'. It is not clear, whether loan is obtained through any of the above institutions or Central Co-operative Bank. If that be so, the allegation would again stick to public character of petitioner and not to his private life. But, if it is presumed that loan is obtained in private capacity, in that case, the distribution of the same amongst relatives, cannot be blame worthy or defamatory to petitioner. In that case, that would not remain character assassination.
Last Item No. 15 is an accusation, but if at all it is an accusation against personal character, it is an accusation against the relatives and not petitioner, because it says that, 'Whose relatives have acquired the lands of Adiwasis?' in any case, even these 2 imputations by remoteness referred to public character of petitioner that relatives are taking benefit and relatives could not have been successful in taking any such benefit had petitioner not held such public office/character.
If we take into account the above aspects, it must be said that publications do not refer to personal character and conduct of petitioner as required by Section 123(4) of R.P. Act and petitioner, therefore, fails to make out any cause of action, thereby, entailing rejection under Order VII, Rule 11(a).
12. Issue No. 7 reads as follows :
'Is petition bad for non-compliance of Section 81(3) of the Act? If yes, what effect?' Section 81(3) reads thus :
'(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.'
In the matter at hands, we have only one respondent and it is not the claim of respondent that copy of the petition is not served upon him. Therefore, it will have to be presumed as copy of the petition was accompanying the election petition. The written statement of the respondent cannot be said to be challenging the petition on the ground of first part of Section 81(3). The second part requires that such copies accompanying the election petition are required to be attested by the petitioner under his own signature, to be a true copy of the petition. While raising an objection regarding non-compliance of this section, the successful candidate alongwith his application (Exh. 14) or by independent application, has not presented before this Court copy of the writ petition served upon him. The copy served upon him was also not referred to be learned Counsel for the successful candidate during the course of his arguments. As such it will have to be said that the respondent, while raising this objection, has not even demonstrated to this Court as to what is the defect in a true copy served upon him regarding attestation of the petitioner under his signature that the same is true copy of the petition. It will have to be, therefore, said that the ground of challenge is not at all crystallized by the respondent and the same, therefore, must fail. In this context, observations of the Supreme Court in the matter of Murarka Radhey Shyam : [1964]3SCR573 , already referred and discussed while considering the observations of another Constitution Bench decision of the Supreme Court in the matter T.M. Jacob, : [1999]2SCR659 , may be usefully referred. Regarding non-compliance of Section 81(3), the Supreme Court observed in para 11 :
'The word 'copy' in Sub-section (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstood it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person.'
The observations in the matter of Murarka are referred with approval by subsequent Constitution Bench in the matter of T.M. Jacob.
Thus, if at all, respondent desired dismissal of the election petition in limine in the light of non-compliance of Section 81(3), it was necessary for respondent to demonstrate by production of a copy served upon him as to what is the defect in the attestation by the petitioner of the true copy of election petition served upon the respondent and it was further necessary to demonstrate that the defect was so grave as to mislead the respondent. Eventually, both these requirements are not established by the respondent and, therefore, the ground of objection has not materialized at all. Issue No. 7, therefore, will have to be answered as not proved and once first part of issue is so answered, the objection will have no adverse effect on the fate of the election petition.
13. Issue No. 9 as under is framed in the light of averments in the written statement :
'Is petition bad for non-compliance of Section 83(1)(c) (defective verification)? If yes, what effect?'
The relevant provision if reproduced in para 4 ante. The said provision requires the election petition to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. Order 6, Rule 15 Sub-rule (2) reads thus :
'(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.'
On reference to petition and more particular verification below the same, which is at page 16, the relevant portion reads as under :
'...do hereby state on oath that the contents of above election petition in paragraphs 1 to 13 are true and correct to the best of my knowledge, which I believe to be true and correct.'
The election petition runs into 14 paragraphs and paragraph No. 14 prayer clause. If the verification is taken into account, it can be said that petitioner has verified all paragraphs 1 to 13 to be true and correct to the best of his knowledge and as also tried to strengthen it by the tail piece 'which I believe to be true and correct'. Upon taking into consideration Rule 15(2) of Order 6 of C.P.C., the verification ought to have come practically in the same form as Form No. 25 i.e. paragraphs ... to ... are true to my knowledge and paragraphs ... to ... are true to my information. The verification to some extent is not strictly in conformity with requirement of Order 6, Rule 15(2). Even the reason as for the same are obvious on record. Inspite of notices to the editors of two newspapers in which the publication had appeared, petitioner does not seem to have received the information as to who had requested for such publication. Consequently, by the time petitioner approached this Court, he is still in dark as to at whose behest the publication appeared in the two newspapers.
We have discussed at length observations of the Supreme Court in the matter of T.M. Jacob v. Poulose, : [1999]2SCR659 , which was relied upon by Advocate Shri Joshi for the respondent only to claim that the same has not overruled the view taken by the Supreme Court in the matter of Dr. Shipra. During the discussion, it is also pointed out that although matter of Dr. Shipra was not overruled, by observing that the observations in the mater of Dr. Shipra's case were observations in the fact situation of that case, the Supreme Court clearly indicated that view taken in Dr. Shipra's case was not a law down for universal application to all election petitions. Eventually, it must be said that the three decisions of the Supreme Court, all by Constitution Bench do not favour the submission on behalf of respondent. Observations from para 45 of the judgment of the Supreme Court in the matter of T.M. Jacob are reproduced in para 10 ante. At the cost of repetition, it may be said that the Supreme Court has laid down that the defects of the type provided in Section 83 of the Act can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. The case of T.M. Jacob has thus, reiterated the ratio laid down by earlier two judicial pronouncements both by Constitution Benches.
In the matter of Murarka Radhey Shyam v. Roop Singh Rathore : [1964]3SCR573 , the Supreme Court observed thus :
'A defect in verification in the mater of the election petition is a matter which comes within Clause (c) Sub-section (1) of Section 83. The defect can be removed in accordance with the principles of the Code of Civil Procedure, 1908. Such a defect does not attract Sub-section (3) of section 90 inasmuch as that sub-section does not refer to non-compliance with the provisions of Section 83 as a ground for dismissing an election petition. Hence, reading the relevant sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Clause (c) of subsection (1) of Section 83 is fatal to the maintainability of the petition.
In that matter, Sub-section (3) of section 90 was reproduced in para 5 of the judgment and referred, which was a provision identical to present section 86(1). From the foot notes in the text book of representation of the People Act referred, it is evident that original sections 86 to 92 were substituted by only sections 86 and 87 on the statute book, by Amendment Act 47 of 1966.
In the light of ratio laid down by the Supreme Court in the judicial pronouncements referred to hereinabove, the defect in the verification apparently, is not such that it could have misled a reasonable person. Although fact remains that verification is defective, defects due to non-compliance of Section 83 of the Act can be dealt with under the doctrine of curability and in view of Section 86(1) r/w 86(5), such non-compliance would not entail dismissal of the writ petition at the threshold. Issue No. 9 is, therefore, answered accordingly i.e. verification is defective (not strictly in conformity with Order 6. Rule 15(2), however, the defect is curable and would not have entailed dismissal of election petition in limine.
14. Issue No. 6 :
When we refer to the pleadings of the respondent due to which this issue has arisen, one cannot avoid a feeling that the pleadings in fact are not sufficient. The written statement has reproduced the language of Section 83(1)(a) and (b), but has not specifically pleaded which material facts and full particulars are not provided in the election petition. This is not done even by any illustration. The details have come out for the first time during the course of arguments by Advocate Shri Joshi. According to Shri Joshi, the petition does not specifically say that publication was at the behest of respondent. The argument to this effect is justified to some extent, because petition pleads that publication is by respondent or his election agent or by any other person with the consent of respondent or his election agent. According to him, election petition also does not plead as to where the copies of these newspapers were distributed, to whom and by whom. Even about distribution of the tooth paste, details are missing as to who might have contacted Hindustan Liver and how the distribution is linked with the publication. Thus, allegations are vague. The accusation by the respondent that allegations are vague is not correct. The allegation is specific. According to petitioner, the publication in two newspapers was published aimed at affecting his election chances adversely and it was also accompanied by a free Pepsodent tooth paste. But the accusation of Advocate Shri Joshi that other details and links are missing is fully justified. Petitioner has served notices on both the newspapers wherein the publication is said to have appeared and admittedly the notices have remained unreplied. Consequently, by the time petitioner filed election petition, he really does not know as to at whose behest, the material appeared in the newspapers. There is no material in the petition that can indicate distribution of tooth paste together with the edition of the newspapers in which the material appeared and, therefore, the link between publication and tooth paste is not available in the pleadings. Although the handicap is result of absence of response from the newspapers to the notice served by petitioner. These two vital particulars are missing in the pleadings i.e. (1) at whose behest the publication appeared in the newspapers; and (2) link between the tooth paste and the publication.
Other details pleaded by Advocate Shri Joshi cannot be said to be material facts i.e. who distributed, to whom distributed and where distributed. Being newspapers, must have been distributed by the distributors and agents of the newspapers, those must have been distributed to the subscribers of the newspapers and must have been delivered at the residence of the subscribers apart from occasional purchasers at the newspaper stalls. These details can not be called to be 'material facts'. The material facts of the petition can be said to be as follows :
(1) Material containing imputations against respondent appeared in the newspapers;
(2) A free tooth paste was distributed alongwith the publication; and
(3) Both above events were allegedly at the behest of the respondent.
(Eventually there are seven candidates including petitioner and respondent, who contested the election from the said Constituency, as can be seen from Exhibit B).
The material particulars can be enlisted as follows :
(1) The publication (text) and the newspapers in which it was published;
(2) The name, address etc. of the person at whose behest it was published;
(3) Details confirming distribution of tooth paste alongwith the same newspapers in which publication had appeared; and
(4) Details at whose behest the tooth paste was distributed.
Material particulars at Sr. Nos. 2 to 4 above are missing from the pleading, because petitioner stood handicapped due to absence of response from the newspapers to notice served by him. In the fact situation of the case, these details must be said to be vital details and without presence of those details on record, the election petition could not have been proceeded with for hearing on merits. Yet whether petition could have been dismissed in limine for those defects, observations of the Constitution Bench of the Supreme Court in the matter of T.M. Jacob : [1999]2SCR659 (supra) can be usefully referred and more particularly the observations in paras 43 and 45 of the said judgment. By virtue of observations in para 43, violations which attract Section 83 can be dealt with doctrine of curability and by virtue of Section 86(1), non-compliance of Section 83 does not entail dismissal of the election petition in limine.
Constitution Bench of the Supreme Court in the matter of Balwan Singh v. Lakshmi Narain : [1960]3SCR91 , laid down the practice to be followed in cases where insufficient particulars of corrupt practice are set forth in an election petition :
'An election petition is not liable to be dismissed in limine merely because full particulars of a corrupt practice alleged in the petition, are not set out. Where an objection is raised by the respondent that a petition is defective because full particulars of an alleged corrupt practice are not set out, the Tribunal is bound to decide whether the objection is well founded. If the Tribunal, upholds the objection, it should give an opportunity to the petitioner to apply for leave to amend or amplify the particulars of the corrupt practice alleged: and in the event of non-compliance with that order the Tribunal may strike out the charges which remain vague. Insistence upon full particulars of corrupt practices is undoubtedly of paramount importance in the trial of an election petition, but if the parties go to trial despite the absence of full particulars of the corrupt practice alleged, and evidence of the contesting parties is led on the plea raised by the petition, the petition cannot thereafter be dismissed for want of particulars, because the defect is one of procedure and not one of jurisdiction of the Tribunal to adjudicate upon the plea in the absence of particulars. The Appellate Court may be justified in setting aside the judgment of the Tribunal if it is satisfied that by reason of absence of full particulars, material prejudice has resulted, and in considering whether material prejudice has resulted, failure to raise and press the objection about the absence of particulars before going to trial must be given due weight.'
In view of the mandate of the Supreme Court Constitution Bench as underlined in the quotation hereinabove, this Court would be required to call upon the petitioner to amplify the petition by giving material particulars, which are vital (2 to 4 enlisted hereinabove) and the petition would have been required to be dismissed only upon failure on the part of petitioner to furnish material particulars.
In the light of discussion hereinabove, Issue No. 6 is required to be answered thus:
Petition is bad for non-compliance of Section 83(1)(b) and not Section 83(1)(a). However, before dismissal in limine, this Court would have been required to call upon petitioner to furnish the material particulars, which are missing. Dismissal in limine would have been the result only in case of default on the petitioner to fulfil such requirement even after being called upon to do so.
The argument on the part of petitioner that these details are matter of proof Father than pleadings is to some extent justifiable. But petitioner could not have been allowed to take the respondent by surprise. If we were to proceed with the election petition for hearing on merits by recording evidence, petitioner was obliged to furnish these material particulars before entering into the witness box. However, in view of findings on Issue Nos. 5 and 8 as also a finding that the imputations in the publication do not relate to personal character or conduct of petitioner, the election petition is required to be dismissed at the threshold and, therefore, the procedure as prescribed by the Supreme Court in the matter of Balwan Singh is not required to be followed.
15. By relying upon observations in the matters of (M.J. Zakharia Sait v. T.M. Mohammed and Ors.), : [1990]2SCR719 and (Manmohan Kalia v. Yash), : [1984]3SCR383 , it was urged by Advocate Shri Joshi that the publication nowhere names the petitioner and yet it is the claim of the petitioner that it is aimed at him. According to Shri Joshi, the doctrine of innuendo is applied and, therefore, it was duty of the petitioner to prove that the defamatory allegations were made in respect of himself. In para 3 of the petition, the petitioner has already indicated the details of his character in the public life. He has been associated with all the institutions referred in the publication i.e. Ramkrishna Lift Irrigation Scheme, Vinayak Co-operative Sugar Factory, Aurangabad District Central Co-operative Bank and, therefore, the foundation for establishment of innuendo was laid down in the petition. How the imputations attached to petitioner was a matter of proof and if petition was to meet the fate of dismissal for the reasons already discussed hereinabove, on this count, it would have left petition without any damage.
16. To sum up, the petition without affidavit as contemplated by Rule 94-A in Form No. 25 was incomplete presentation and the affidavit having been offered after expiry of period of limitation, the petition must be said to be barred by prescribed limitation. The petition also fails because imputations in the publication are not regarding personal character and conduct of petitioner. The petition fails at the threshold due to these two defects. The petition is not defective for non-compliance of Section 83(1). Although there is defect in the verification and, thus, there is non compliance of Section 83(1)(c), the defect is curable and would not entail dismissal of the petition at threshold. The material facts as required by Section 83(1)(a) can not be said to be missing, but some material particulars are missing and those would be required to be furnishing before entering hearing on merits. The petition would have invited dismissal at threshold on that count only in case of default on the part of petitioner to furnish such material particulars even if being invited to.
17. The petition is, therefore, dismissed so also application (Exhibit 11). Although the petition has not entered the stage of final hearing, a challenge to election to the seat of Parliament is being dismissed with this order and I, therefore, feel that the requirement of Section 103 ought to be complied with.