Raj Singh, Sarpanch Vs. Gurcharan Singh, M.L.A. - Court Judgment

Sarojnei Saksena, J.

1. Petitioner Raj Singh has filed this election petition against Gurcharan Singh - returned candidate challenging his election from 87 - Dirba Assembly Constituency of Punjab State, result of which was declared on 10.2.1997.

2. In a nutshell, relevant facts mentioned in the election petition are that the petitioner is a resident of Village Ghanaur Jattan and is registered an elector in the electoral roll pertaining to 87-Dirba. Punjab Legislative Assembly Constituency, a part of the 10 - Sangrur Parliamentary Constituency of the Punjab State. The respondent filed his nomination Papers for election to the Punjab Vidhan Sabha from 87- Dirba Assembly Constituency on 18.1.1997. As earlier he was a sitting M.L.A. and an Ex-Minister of the Punjab Government, before election programme for holding poll was announced by the Election Commission of India, respondent started convassing at different places forming part of the 87-Dirba Assembly Constituency with the object of convassing his candidature. In this attempt, he started giving grants for the items of development of the choice of electors by arranging the same from the government department concerned if they promise to support and vote for him in the coming election as respondent was a Member of the District Planning Board, Sangrur. In view of the policy decision of the erst - while Congress Government, he collected cheques issued by the Block Development and Panchayat Officer and kept the same with himself in order to bargain for the votes and support of the different Panches and Sarpanches to promote his chance of electoral success by giving them as grants bait. On 19.1.1977 respondent assured financial help for grave-yard for the Muslim community in village Khanal Khurd. Similarly in village Dialgarh Jejian, the respondent addressed a gathering and promised that he would give the grant for constructing a shed at the Shamshanghat if they would vote and support for his candidature. In village Naraingarh, respondent not only gave a promise for giving a cheque of good amount for executing the development work in the village, but actually he handed over a cheque to Sarpanch Bhurpur Singh on the promise that the people gathered there would vote for him. Same tactics were adopted by him in village Ramgarh and Bijalpur as well. In village Ghanaur Jattan, he addressed a pre-arranged gathering on 13.1.1997 and promised them that he would upgrade school of that village provided the villagers vote for him. He also promised to give a development grant to that village.

3. The petitioner further averred that on 1.2.1997 the respondent went to Bhattiwal Kalan where before pre-arranged gathering, he offered to give a grant of Rs. one lac provided the villagers vote for him, but as the Sarpanch declined, the respondent kept back the cheque with him. In village Bhattiwal Khurd also the same-thing happened. The respondent offered to give a cheque of Rs. 50,000/-, but as the Sarpanch and other villagers refused to sell, their votes, the respondent came back with the cheque. Thus, the petitioner contended that the respondent has committed corrupt practice of bribe by asking for votes by promising and/or delivering cheques on the condition of being supported in the electron and oh this ground, he prayed that the respondent's election be declared void.

4. Along with election petition the petitioner filed his own affidavit running in three pages and annexed Forms B and BB running from pages 14 to 17.

5. Along with the election petition, petitioner filed two copies of the election petition with a copy of his affidavit and annexures.

6. Respondent filed written statement inter alia denied all the alleged allegations of corrupt practice and raised preliminary objection that this election petition which rests on the allegation of corrupt practice is liable to be dismissed under Rule 94-A of the Conduct of Election Rules as the copy of the election petition is not accompanied by the affidavit in the prescribed form in support of the allegations of such corrupt practice and particulars thereof. The respondent averred that the true copy of the affidavit filed by the petitioner in support of his election petition was not given to the respondent as required Under Section 81(3) of the Representation of People Act (in short the 'Act'). Respondent, pleaded that since the vague assertions are made in the election petition with regard to the alleged corrupt practices, on this count alone, the election petition is not maintainable. Lastly, it was also challenged on the ground that since the petitioner is not an elector of 87-Dirba, Punjab Assembly Constituency, he is not entitled to file this election petition. On the basis of these pleadings, the following issues were framed:-

1. Whether the respondent has committed the corrupt practice of bribery by asking for votes by promising and/or delivering cheques on the condition of being supported in the election?

2. Whether the petitioner has no right to challenge the respondent's election as he is not the elector of 87-Dirba Assembly Constituency?

3(a) Whether the affidavit filed by the petitioner along with the election petition is not in accordance with Rule 94-A of the Conduct of Election Rules?

3(b) Whether the true copy of this affidavit was not given to the respondent as required Under Section 81(3) of the Representation of People Act? If so, whether on this count the election petition is liable to be dismissed Under Section 86 of the said Act?

4. Whether vague assertions are made in the election petition with regard tothe alleged corrupt practices? -

Issues 3(a) and 3(b) were taken as preliminary issues.

7. Arguments were heard and as per order date 2.9.1997 parties were directed to adduce evidence with regard to these issues.

8. The petitioner and respondent examined themselves and closed their evidence. The petitioner tendered in evidence copies of election petition and affidavit (Annexures P-1 and P-2) which be received with the notice of election petition.

Issues 3(a) and (b)

9. For convenience sake, both these issues are taken up together for decision.

10. Respondent stated on oath that 6/7 months back, he was served with a copy of the election petition along with copy of affidavit, which are marked as Exhibits P-1 and P-2. He. testified that these copies were received by him in the same state in which they are produced in the Court. Copies of the election petition and affidavits (Annexures P-1 and P-2) bear the signature of the petitioner on each and every page in portion 'A' to 'A'. During cross-examination, he denied the suggestion that copies of election petition and affidavit (Annexures P-1 and P-2) are not in the same state in which he received them. He has also denied the suggestion that he has removed the last page of the affidavit which was a photo copy.

11. In rebuttal, petitioner examined himself and stated that along with election petition, he filed two copies of the election petition. He admitted that copies of the election petition (AnnexureP-1) and affidavit (Annexure P-2) bear his signature on each page in portion 'A' to 'A'. He stated that he has attached the last page of the affidavit, but the copy of last page of his affidavit is not attached with Annexure P-2. He admitted that he has not changed the number paged in the index as well because he was to attest it as a true copy. During cross-examination he admitted that the original affidavit attached with the election petition runs from pages 11 to 13 and Form-B is at page 14. He also admitted that he has not changed the numbers in the true copy of the affidavit supplied to the respondent as his verification would have gone wrong. He also admitted that he has put in an index of the copies supplied to the respondent, which is also attested and signed by him. He had to admit that as per this index, copy of the affidavit supplied to the respondent runs from pages 11 to 13 and Form-B is at page 14. He denied the suggestion that he has wrongly stated that another page was appended with the copy of the affidavit (Annexure P-2) incorporating verification clause, which is not produced by the respondent. The petitioner admitted in cross-examination that he is a Graduate. In the original affidavit attached with the election petition, last page of the original affidavit is at page 13 which bears the attestation of the Oath Commissioner while on the last page of the copy of the affidavit (Annexure P-2), there is no such attestation verification by the Oath Commissioner.

12. Petitioner's learned counsel argued that the petitioner has stated on oath that along with copy of the affidavit (Annexure P-2), he has also attached photo copy of the endorsement of verification, which is not produced by the respondent along with copy annexure P-2 which he has filed with his written statement. He further argued that on this minor lapse, his election petition does not entail dismissal and he should be given a full opportunity to adduce evidence with regard to the corrupt practices alleged to have been committed by the respondent in the course of the election' petition.

13. The learned counsel further clarified that the petitioner has signed the index which he has submitted along with election petition and in this index, he has mentioned that the election petition runs from pages 1 to 10 and affidavit runs from pages 11 to 13. Form-B is at page 14. Copy of the election petition also runs from pages 1 to 10 copy of the affidavit (Annexure P-2) runs from pages 11 to 13 and copy of Form-B is at page 14. Petitioner's learned counsel explained that as the petitioner was required to attest his verification, he has not changed the page numbers, but as the petitioner has stated on oath, he attached verification/attestation of the affidavit done by the Oath Commissioner on a separate page, which was a photo copy of this endorsement. That last page in the form of a photo copy was attached with the copy of the affidavit (Annexure P-2), which is not produced by the respondent deliberately.

14. To support his above contention, the petitioner's learned counsel submitted that the petitioner has strictly followed the directions of Rules 13(b) and (c) of Chapter 4 Volume-5 of Rules and Orders of Punjab and Haryana High Court, which provide that all copies of the election petition shall be similarly prepared and all copies of the election petition shall conform to the original age by page and line by line. Thus, according to the petitioner's learned counsel the petitioner has produced the verification/attestation/endorsement of his affidavit along with copy of the affidavit (Annexure P-2), but as he was not entitled to put a separate page number on the last page of the affidavit, i.e. on the photo copy containing the endorsement of the attestation/verification by the Oath Commissioner, in the index, he has shown that the affidavit runs from pages 11 to 13.

15. Respondent's learned counsel argued with all vehemence at his command that from a plain perusal of original affidavit attached with the election petition and copy of the affidavit (Annexure P-2) received by the respondent along with election petition it is evident that attestation/verification of this affidavit by the Oath Commissioner is done on the last page, i.e., page 13 of the affidavit and on each page of this affidavit, there is seal of the Oath Commissioner, but in the copy of the affidavit (Annexure P-2), neither on pages 11,12 and 13 there is any indication that the Oath Commissioner has put his seal thereon nor on the last page, i.e., page No. 13, the endorsement/attestation of the Oath Commissioner is reproduced. He submitted that this assertion is wrong that the photocopy of this attestation/endorsement made by the Oath Commissioner was attached with the affidavit on a separate page which was a Photostat of this attestation/endorsement of the Oath Commissioner. He pointed out that the respondent also received Form-B, which is marked by the petitioner as page 14 and Form-BB which runs from pages 15 to 17. These were only papers received by the respondent with the election petition. If really, he would have attached this attestation/endorsement of the Oath Commissioner on a separate sheet of paper as the petitioner has tried to state on oath, he would have page marked it separately and in that event, Form-B would not have been marked as page 14 and would have been marked as page 15 and thereafter pages of Form-BB would have run from 16 onwards. Thus, according to him, copy of the affidavit (Annexure P-2) supplied to the respondent was not in accordance with Section 81(3) of the Act and therefore, on this ground alone, the election petition is liable to be dismissed Under Section 86 of the Act.

16. Petitioner's learned counsel also argued that under Rule 14, Volume-5, Chapter 4 of High Court Rules and Orders, the Registrar is directed to get the security of each election petition and its accompanying documents done under his personal supervision, he submitted that if the copy of the attestation would not have been attested along with copy of affidavit (Annexure P-2), the Registrar would have pointed out this defect and petitioner would have removed this defect, but as the Registrar has not pointed out such a defect while scrutinising the election petition, it should be presumed that copy of the attestation was attested with copy of the affidavit (Annexure P-2).

17. Respondent's learned counsel also submitted that if the Registrar of the High Court has not pointed out this defect in the copy of the affidavit (Annexure P-2), it cannot be presumed that the copy of the attestation was attested along with affidavit (Annexure P-2) and simply on the basis of this lapse on the part of the registry the respondent cannot be deprived to raise this legal objection about the maintainability of the election petition.

18. To support the above contentions, he has relied on Purshottam v. Returning Officer, Amravati and Ors., A.I.R. 1992 Bombay 227 and Dr. (Smt.) Shipra etc. v. Shanti Lal Khoiwal etc., A.I.R. 1996 Supreme Court 1691.

19. Petitioner's learned counsel has not disputed the legal point raised by the respondent's learned counsel. In Purshottam's case (supra), the Apex Court has held that 'the absence of the endorsement of the Notary on the copy of the affidavit accompanying election petition renders the copy as not conforming the requirements of Section 81(3) of the Act. And therefore, the election petition is liable to be dismissed on account of that omission.'

20. Approving the judgment rendered in Purshottam's case (supra), the Apex Court has held in Dr. (Smt.) Shipra's case (supra).

'The concept of substantial compliance with statutory provisions cannot be extended to overlook serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy. Verification by a Notary or any other prescribed authority is a vital Act which assures that the election petitioner had affirmed before the notary etc. that the statement containing imputation of corrupt practices was duly and solemnly verified to be correct statement to the best of his knowledge or information as specified in the election petition the affidavit filed in support thereof; that reinforces the assertions. Thus affirmation before the prescribed authority in the affidavit and the supply of its true copy should also contain such affirmation so that the returned candidate would not misled in his understanding that imputation of corrupt practices was solely affirmed or duly verified before the prescribed authority. For that purpose, Form 25 mandates verification before the prescribed authority. The objection appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy cannot be said to be a curable irregularity. Allegations of corrupt practices are very serious imputations which, if proved, would entail civil consequences of declaring that he became disqualified for election to a maximum period of six years Under Section 8-A, apart from conviction Under Section 136(2). Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy of the election petitioner in his/her own signature. The principle of substantial compliance cannot be accepted in the fact situation.'

In Dr. (Smt.) Shipra's case (supra), the Apex Court has also considered the plea that if there was any such defeat in the election petition, the Registry of the High Court should have pointed out that the defect and on this minor lapse, her election should not be thrown at the threshold. Rejecting the said argument, the Apex Court has held:-

'The plea that the election petition cannot be dismissed Under Section 86 at the threshold on account of the omission on the part of the Registry of the High Court to point out the same as per its procedure, cannot countenanced. Lapse on the part of the Registry is not an insurance to deny to the returned candidate the plea that the attestation of the affidavit and its certification to be a true copy is an integral part of the pleadings in the election petition. Sections 81, 83(1)(c) and 86 read with Rule 94-A of. the Rules and Form 25 are to be read conjointly as an integral scheme. When so read, if the Court finds on an objection being raised by the returned candidate, as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objections. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objection, the election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same.

21. The petitioner in his statement stated that along with copy of the affidavit (Annexure P-2)', he has attached a photo copy of the attestation made by the Oath Commissioner on his affidavit on a separate sheet of paper, which the respondent has not produced. Petitioner's this sworn testimony cannot be relied on. A bare perusal of election petition, affidavit and Form-B and BB, copies of which are supplied to the respondent, reveals that the election petition runs from pages 1 to 10, affidavit runs from pages 11 to 13, Form-B, is at page 14 and Form-BB runs from pages 15 to 17 as the petitioner has mentioned in his index attached along with election petition, which is signed by the petitioner as well as by his learned counsel. There was hardly any occasion for the petitioner to file photo copy of the attestation made by the Oath Commissioner on his affidavit, which is at page 13, on a separate sheet of paper if really he would have attached such a separate sheet of paper along with copy of the affidavit (Annexure P-2), the number of that page would hive been 14 and in that event page of the copy of Form-B would have been 15.

22. Relevant Sub-clause (b)(c)(d) and (e) of Rule 13 of Volume-5, Chapter 4 which are reproduced below :-

'13. General requirements regarding petitions :-

(a) x x x x x x

(b) All copies of the petition shall be similarly prepared, but on ordinary paper.

(c) All copies of the petition shall conform to the original, page by page and line by line.

(d) The petition and the copies shall be page-marked legibly and the Annexures and Schedules, if any, attached to the petition shall be consecutively page-marked in the same manner.

(e) A clearly typed, cyclostyled or printed index will be put at the top of the petition showing the serial number of the document, its date, particulars and the page or pages on which it occurs in the papers filed by the petitioner or the Advocate in charge and shall be signed and dated by the petitioner or such Advocate.'

23. As per Sub-clause (b) all copies of the petition shall be similarly prepared, but on ordinary paper. Sub-clause (c) requires that all copies of the petition shall conform to the original, page by page and line by line. Thus, it is apparent that petitioner could not have appended a separate page showing the attestation made by Oath Commissioner on his affidavit. Sub-clause (d) requires that the petition and the copies shall be page marked legibly and the Annexures and Schedules, if any, attached to the petition shall be consequently page marked in the same manner. Its Clause (e) further directs that a clearly typed, cyclostyled or printed index will be put at the top of the petition showing the serial number of the document, its date, particulars and the page or pages on which it occurs in the papers filed by the petitioner or the Advocate in charge and shall be signed and dated by the petitioner or such Advocate.

24. Thus, from the conjoint reading of all these rules, it is evident that the petitioner was recquired to file copies of the election petition and affidavit similarly prepared and conforming to the original page by page and line by line and each page of the petition as well as of the copies was required to be page marked legibly, which was required to be shown in the index, which is also required to be signed by the petitioner or by his Advocate.

25. Thus, from the copies of the affidavit (Annexure P-2), it is evident that the copy of the attestation made by Oath Commissioner on the original affidavit of the petitioner was not supplied to the respondent. If at all, he would have supplied it, he would have shown it on the last page of the affidavit i.e., page 13 because as per Sub-clause (c) ibid, the petitioner was recquired to prepare all copies of the petition conforming to the original page by page and line by line. The legal proposition is not disputed that affidavit in this election petition is an integral part of the election petition. Hence, I find that the copy of affidavit (Annexure P-2) was filed by the petitioner along with copy of the election petition (Annexure P-1) to be sent to the respondent. I also find that copy of the affidavit (Annexure P-2) does not contain the attestation made by the Oath Commissioner on the original affidavit (Annexure P-2).

26. In Dr.(Smt.) Shipra's case (supra), the Apex Court has held that copy of the affidavit supplied to the respondent without attestation by the Prescribed Authority cannot be considered as true copy of the affidavit. Rule 94-A of the Conduct of Election Rules, 1961, mandates that the affidavit referred to in the proviso to Sub-Section (1) of Section 83 shall be sworn before a Magistrate of the First Class or a Notary or a Commissioner of Oaths and shall be in Fonn-25. Form-25 prescribes the form in which affidavit attached with the election petition is required to be prepared and signed by the deponent and attested by the magistrate of the First Class/Notary/Commissioner of Oaths.

27. The Apex Court has also held that the concept of substantial compliance of filing of the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy of corrupt practices are very serious imputations which, if proved, would entail civil consequences of declaring that he become disqualified for election to a maximum period of six years Under Section 8-A, apart from conviction Under Section 136(2). Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petitioner in his/her own signature. The principle of substantial compliance cannot be accepted in the fact situation.

28. Under Rule-14 of the Chapter 4, Volume-5 of Rules and Orders of Punjab and Haryana High Court, if at the time of scrutiny, the Registrar could not point out that the affidavit is not a true copy of the original affidavit as verification clause is missing there from, it cannot render any help to the petitioner. In this election petition, only allegations of corrupt practices are made against the respondent. Hence, I find that in the absence of the endorsement of the Oath Commissioner on the copy of the affidavit (Annexure P-2) accompanying the election petition renders the copy as not conforming to the requirements of Section 81(3) of the Act and therefore, the election petition is liable to be dismissed on account of this omission.

29. Hence, I find that the affidavit filed by the petitioner along with election petition is not in accordance with Rule 94-A of the Conduct of Election Rules, 1961, as true copy of affidavit (Annexure P-2) was not given to the respondent as required under Section 83(1) of the Act and on this count, the election petition is liable to be dismissed Under Section 86 of the Act.

Since preliminary issues 3(a) and (b) have been decided against the petitioner, there is no necessity to record the evidence or to give finding on the remaining issues.

In view of the above findings, this election petition is hereby dismissed.