Special Leave Petition Civil No 5383 of 1990
From the Judgment and Order dated 931990 of the Bombay High Court in Appeal No 231 of 1990 in WP No 3016 of 1989
747 KK Venugopal GL Sanghi Sudhir Shah and PN Misra for the Petitioners
KK Singhavi NB Shetye DN Mishra and AS Bhasme for the Respondents
The Judgment of the Court was delivered by KASLIWAL J
This petition under Article 136 the Constitution of India is directed against the order of Bombay High Court dated 9th March 1990
Facts necessary and shorn of details are given as under
Pratibha Cooperative Housing Society Ltd hereinafter referred to as the Housing Society  made some unauthorised constructions in a 36 storeyed building in a posh and important locality of the city of Bombay
The Bombay Municipal Corporation issued a showcause notice dated 7th August 1984 calling upon the Housing Society to showcause within 7 days as to why the upper right floors of the building should not be demolished so as to limit the development to the permissible Floor Space Index FSI
In the notice it was gained by the Housing Society and that the construction work had already reached 36 floors and that on the basis of the actual area of the building the upper eight floors were beyond the permissible FSI limit and as such were required to be removed
The Housing Society submitted a reply to the showcause notice by their letter 13th August 1984
The Administrator of the Bombay Municipal Corporation made an order on 21st September 1984 requiring the Housing Society to demolish 24000 sq
on the eight upper floors of the building on the basis of 3000 Sq
on each floor
The Housing Society made a representation but the same was dismissed by the Administrator by order dated 31st October 1984
An appeal submitted by the Housing Society was also dismissed by the State Government on 7th October 1985
The Housing Society then filed a writ petition No 4500 of 1985 in the High Court
A Division Bench of the High Court dismissed the writ petition on 28th October 1985
However the High Court while dismissing the writ petition also observed as under It would however be fair and just in the circumstances of the case to give a choice to the society to reduce the construction up to permissible limit or whatever other method they can think of
It is of course for the society to come 748 forward with a proposal in that behalf
We therefore direct that in case the society comes with any such alternative proposal within the four corners of the rules and regulations within one month from today the Municipality may consider
 The case of the Housing Society is that in pursuance to the said order it submitted application to the Municipal Corporation giving several alternative proposals on 21st November 1985
It may be noted at this stage that the Housing Society had preferred a special leave petition No 17351 of 1985 before this Court against the judgment of the High Court dated 28th October 1985 and the said special leave petition was dismissed by this Court on 17th january 1986
Further allegation of the Housing Society was that it submitted another proposal to the Municipal Corporation on 17th February 1986 and thereafter wrote to the Municipal Council on 14th August 1986 to consider their alternative proposals
A similar letter was also written to the Chief Minister of Maharashtra
On 29th August 1986 the Municipal Commissioner fixed up a meeting for hearing the alternative proposals of the Housing Society
It has been alleged that in the said meeting the Housing Society had put forward its case in support of the new proposals and the Municipal commissioner had thereafter informed the Housing Society that he would consider the said proposals and take decision
However no decision was taken till the filing of the present special leave petition before this Court
it has been further alleged that on 27th December 1988 the Housing Society wrote a letter to the Municipal Commissioner to consider the alternative proposals mainly of vertical demolition of the building instead of demolishing the eight upper floors
It had been alleged that a meeting took place between the architects of the Housing Society as well as the officers of the Municipal Corporation in January 1989 wherein the officers of the Corporation agreed that instead of demolishing eight upper floors demolition can be made vertically so as to bring the entire construction within the permissible FSI
It has been further alleged that immediately thereafter the Housing Society was informed that henceforth it should contact the Municipal Commissioner directly and not any officers of the Corporation
It has been further alleged that the Corporation without considering the proposals of the Housing Society entrusted the work of demolition of the upper eight floors of the building to a company
In these circumstances the Housing Society filed writ petition No 3016 of 1989 in the High Court
Learned Single Judge dismissed the writ petition by order dated 19th December 1989 and the appeal preferred against the said order was dismissed by the Division Bench of the High 749 Court by order dated 9th March 1990
In view of the fact that the main grievance of the Housing Society was that its alternative proposal of demolishing the building vertically instead of eight upper floors was not considered on merits by the Corporation a serious effort was made by this Court to get the feasibility of such proposal examined by the Corporation
Orders in this regard were passed by this Court on several occasions but ultimately no agreeable solution could fructify
The proposal was got examined at the highest level by the Municipal Corporation and ultimately the Commissioner rejected the proposal on 13th November 1990 and submitted a detailed report in writing for the perusal of this Court
In the above report it has been stated that in pursuance to the order of this Court dated 22nd October 1990 the proposals submitted by the Housing Society on 27th October 1990 and 29th October 1990 in supersession of all alternative proposals to demolish vertically one bedroom and servant quarters on all the floors to bring the building in tune with the FSI was considered but on the grounds stated in the report the proposal submitted by the Housing Society cannot be approved
In the circumstances mentioned above on the request of learned counsel for both the parties to decide the case on merits we heard the arguments in detail on 2341991
Thereafter in order to clarify some points we directed the Chief Engineer cum Architect and the Municipal Commissioner to remain present on the next date namely 151991 and to keep the record of the case also ready for our perusal
We have heard learned counsel for the parties at great length and have thoroughly perused the record
It may be noted that the Housing Society had made illegal constructions in violation of FSI to the extent of more than 24000 sq
and as such an order for demolition or eight floors was passed by the Administrator Municipal Council as back as 21st September 1984
The writ petition filed against the said order was dismissed by the High Court on 28th October 1985 and special leave petition against the said order of the High Court was also dismissed by this Court
The High Court in its order dated 28th October 1985 had granted an indulgence to the Housing Society for submitting an alternative proposal within the four corners of the rules and regulations within one month and the municipality to consider the same
The proposal was submitted on 21st November 1985 but in the said proposal there was no mention of any vertical demolition of the building
The proposal with regard to the demolition vertically of one 750 bedroom and servant quarters on all the floors was submitted for the first time on 27th December 1988
During the pendency of the special leave petition before this Court this proposal was got examined by the Municipal corporation
The Municipal commissioner submitted a report on 13th November 1990 giving detailed reasons for rejecting such proposal
It is well settled that the High Court under Article 226 of the Constitution is not an Appellate Court on the administrative decisions taken by the authorities
It cannot be said that the decision taken by the Municipal Commissioner suffers from any want of jurisdiction or is violative of any law or rules
The proposal submitted by the Housing Society was got examined by the architects and engineers and thereafter the order was passed by the Municipal Commissioner
It cannot be said that the action of the Municipal Corporation is tainted with mala fides
It was submitted by the learned counsel for the Corporation that the Corporation has entrusted the matter for investigation by the CBI and suitable action is being processed against the guilty officers of the Corporation with whose connivance these illegal constructions were made by the Housing Society
It is an admitted position that six floors have been completely demolished and a part of seventh floor has also been demolished
It was pointed out by Mr KK Sighvi learned counsel for the Corporation that the tendency of raising unlawful constructions by the builders in violation of the rules and regulations of the Corporation was rampant in the city of Bombay and the Municipal Corporation with its limited sources was finding it difficult to curb such activities
We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands
Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings
The violation of FSI in the present case was not a minor one but was to an extent of more than 24000 sq
Such unlawful construction was made by the Housing Society in clear and flagrant violation and disregard of FSI and the order for demolition of eight floors had attained finality right upto this Court
The order for demolition of eight floors has been substantially carried out and we find no justification to interfere in the order passed by the High Court as well as in the order passed by the Municipal Commissioner dated 13th November 1990
In the result we find no force in the petition and the same is dismissed with no order as to costs
Before parting with the case we would like to observe that this case should be a pointer to all the 751 builders that making of unauthorised constructions never pays and is against the interest of the society at large
The rules regulations and bylaws and made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the Citizens to obey and follow such rules which are made for their own benefits
SB Petition dismissed


Summary:
The respondents who lost the State Assembly elections as candidates of the Mezo National FrontMNF from different constituencies of Mizoram challenged the election of the Congress I candidates on the ground of corrupt practices in the High Court
The appellants the returned candidates raised certain preliminary objections regarding the maintainability of each petition
On the basis therefore two preliminary issues were raised for consideration
The appellants moved for striking off the pleadings
Thereupon the original petitioners the respondents applied for amendment of their election petitions which was strongly opposed by the appellants
The preliminary objections the applications for striking off the pleadings and the amendment applications were heard together
The two preliminary issues raise were i whether the election petitions were in conformity with the requirements of Section 81 and 83 753 of the Representation of the Peoples Act 1951 and the Rules framed thereunder by the High Court and ii whether rule 1 and the other related rules and notes thereto enabling the filing of the Election Petition before the Stamp Reporter assigned to the election court by the Chief Justice were ultra vires Article 329 of the Constitution and Section 169 read with Sections 80 80A and 81 of the RP Act
The appellants contended that the election petitions being photo copies could not be treated as election petitions as contemplated by law that the copies of petitions served on them were not attested to be true copies of the original petitions as required by Section 813 that the election petitions were not signed and verified in the manner laid down by the Code of Civil Procedure inasmuch as the source of information had not been disclosed in the verification or in the affidavit in Form 25 as required by rule 94A of the Conduct of Election Rules 1961 the Rules that no schedule of material particulars of corrupt practice had been annexed to the affidavit purporting to be under Form 25 and that the presentation of the election petitions before the Stamp Reporter was inconsistent with Sections 80 80A and 81 of the RP Act and Article 329 of the Constitution
The averments in each election petition were identical
The High Court rejected the preliminary objections and party allowed the applications for striking off the averments in the election petitions and partly permitted certain amendments to the election petitions against which order the present appeals are filed in this Court under Article 136 of the Constitution
The returned candidate the appellant contended that paragraph 3 of the election petition was the most crucial paragraph inasmuch as it disclosed the names of towns and villages as well as the period during which the alleged corrupt practices were committed had been deliberatedly omitted from the verification clause and the affidavit that failure to mention paragraph 3 of the election petition in both the verification clause of the petition and the affidavit was fatal and cannot be cured after the expiry of the limitation period of 45 days that the affidavit was not in Form No 25 prescribed under Rule 94A of the Rules and since Section 83 of the RP Act is mandatory and failure to adhere to Form No 25 was fatal as the doctrine of substantial compliance had no place in election law but even if that doctrine could be invoked the respondent failed to make substantial compliance that the election petitions being photocopies could not be entertained as valid 754 election petitions that copies of the election petitions served on the returned candidates were not attested as true copies of the original as required by Section 813 that the election petitions and the schedule and annexures were not signed and verified as required by the Code that an election dispute founded on the allegation of corrupt practice being quasi criminal in nature calls for strict adherence to the requirements of election law as was evident from Section 86I of RP Act which provided for dismissal of an election petition which failed to comply with the requirements of Section 81 82 or 117 of the statute and that if the Code did not apply to Mizoram it applied to an election petition because section 83Ic obligates that an election petition shall be signed by the petitioner and verified in the manner laid down in the Code for the verification of pleadings 
This Court partly allowing the appeals HELD 1
Our election law being statutory in character must be strictly complied with since an election petition is not guided by ever strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity
Being statutory in character it is essential that it must conform to the requirements of our election law
But at the same time the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation
If the returned candidate is shown to have secured his success at the election by corrupt means he must suffer for his misdeeds
772B D 2
A charge of corrupt practice has a two dimensional effect its impact on the returned candidate has to be viewed from the point of view of the candidate s future political and public life and from the point of view of the electorate to ensure the purity of the election process
There can therefore be no doubt that such an allegation involving corrupt practice must be viewed very seriously and the the High Court should ensure compliance with the requirements of Section 83 before the parties go to trial
783D E 3
What is essential is that the petitioner must take the responsibility of the copy being a true copy of the original petition and sign in token thereof
No particular form of attestation is prescribed all that the sub section enjoins is that the petitioner must attest the copy under his own signature to be a true copy of the petition
By certifying the same as true copy and by putting his signature at the foot thereof the petitioner of each election petition had clearly complied with the letter and spirit of section 813 of the RP Act
786A B 755 4
Section 86I mandates that the High Court shall  dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the RP Act
The language of this sub section is quite imperative and commands the High Court in no uncertain terms to dismiss an election petition which does not comply with the requirements of section 81 of section 82
773B D 5
Election of a returned candidate can be rendered void on proof of the alleged corrupt practice
In addition thereto he would incur a subsequent disqualification also
This harshness is essential if we want our democratic process to be clean free and fair
Eradication of corrupt practice from our democratic process is essential if we want it to thrive and remain healthy
Our democratic process will collapse if unhealthy corrupt practices like appeals to voters on basis of caste creed community religion race language etc are allowed to go unchecked and unpunished
Use of corrupt practices in elections to secure short term gains at the cost of purity of our democratic process must be frowned at by every right thinking citizen
773D F 6
It is for that reason that the law has provided for double jeopardy to deter candidates their agents and others from indulging in such nefarious practices their agents and others from indulging in such nefarious practices
But while there is sufficient justification for the law to be harsh with those who indulge in such practices there is also the need to ensure that such allegations are made with a sense of responsibility and concern and not merely to vex the returned candidate
It is with this in view that the law envisages that the particulars of such allegations shall be set out fully disclosing the name of the party responsible for the same and the date and place of its commission
A simple verification was considered insufficient and therefore the need for an affidavit in the prescribed form
These procedural precautions are intended to ensure that the person making the allegation of corrupt practice realises the seriousness thereof as such a charge would be akin to a criminal charge since it visits the party indulging in such practice with a two fold penalty
773E H 7
If full particulars of an alleged corrupt practice are not supplied the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to that opportunity that part of the charge may be struck down
775F G 8
Once the amendment sought falls within the purview of section 865 the High Court should be liberal in allowing the same unless in the facts and circumstances of the case the Court finds it unjust and 756 prejudicial to the opposite party to allow the same
Such prejudice must however be distinguished from mere inconvenience
775G H 9
The power conferred by section 865 cannot be exercised to allow any amendment which will have the effect of introducing a corrupt practice not previously alleged inthe petition
If it is found that the proposed amendments are not in the nature of supplying particulars but raise new grounds the same must be rejected but if the amendments are sought for removing vagueness by confining the allegations to the returned candidate only such an amendment would fall within the parameters of section 865 of the RP Act
789B D 10 Clausec of sub section 83 provides that an election petition shall be signed by the petitioner and verification of the pleadings
Under section 832 any schedule or annexure to the pleading must be similarly verified
Order 6 Rule 15 is the relevant provision in the Code
Sub rule 2 of Rule 15 says that the person verifying shall specify with reference to the numbered paragraphs of the pleading what he verifies on his own knowledge and what he verifies upon information received and believed to be true
The verification must be signed by the person making it and must state the date on and the place at which it was signed
The defect in the verification can be i of a formal nature and not very substantial ii one which substantially complies with the requirements and iii that which is material but capable of being cured
776A C 11
The object of requiring verification of an election petition is clearly to fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time discouraging wild and irresponsible allegations unsupported by facts
776C D 12
In cases where corrupt practice is alleged in the petition the petition shall also be supported by an affidavit in the prescribed form ie Form No 25 prescribed by Rule 94A of the Rules
776D E 13
While defective verification or 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
783E F 14
The charge of corrupt practice has to be proved beyond reasonable doubt and merely preponderance of probabilities
757 Allegation of corrupt practice being quasi criminal in nature the failure to supply full particulars at the earliest point of time and to disclose the source of information promptly may have an adverse bearing on the probative value to be attached to the evidence tendered in proof thereof at the trial
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 of the schedule or annexure forms an integral part of the election petition itself strict compliance would be insisted upon
783G 784B 15
The requirements of section 813 are mandatory and failure to comply with them would render the petition liable to summary dismissal under section 86I of the RP Act
784G 16
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 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 813 and failure in that behalf would be fatal
But if it does not constitute an integral part of the election petition a copy thereof need not be served along with the petition to the opposite party
787A C 17
The High Court is directed to issue directions to the election petitioner of each petition to remove the defects within such time as it may allow and if they or any of them fail to do so pass appropriate consequential orders in accordance with law
789A B Gurumayam section Sarma vs K Ongbi Anisija Devi Civil Appeal No 659 of 1957 dated 921961 State of Nagaland vs Rattan Singh   VLRohlus vs Deputy Commissioner Aizawal  Raj Narain vs Indira Gandhi  at 1307   Manphul Singh vs Surinder Singh 1973 2 SCC 599 at 608 KM Mani vs PJ Antony   Samant N Bal Krishna vs George Fernandez   DP Mishra vs Kamal Narayan Sharma   Balwan Singh vs Lakshmi Narain  Murarka Radhey Shyam vs Roop Singh Rathore   State of Bombay vs Purushottam Jog Naik   The Barjum Chemicals Ltd The Company Law 758 Board 1966 Supp
SCR 311 KK Nambiar vs Union of India  at 125 Jadav Gilua vs Suraj Narain Jha AIR 1974 Patna 207 Ms Sunder Industries Ltd vs GE Works AIR 1982 Delhi 220 KK Somanathan vs KK Ramachandran AIR 1988 Kerala 259 Kamalam vs Dr Syed Mohammad   Ms Sukhwinder Pal vs State of Punjab   ZB Bukhari vs Brij Mohan  Prabhu Narayan vs KK Srivastava   Satya Narain vs Dhuja Ram   M Karunanidhi vs Dr HV Hande  Mithlesh Kumar Pandey vs Baidyanath Yadav 1984 2 SCR 278 Rajender Singh vs Usha Rani 1984 3 SCC 339 US Sasidharan vs K Karunakaran  and Ch
Subba Rao vs Member ET Hyderabad Referred to
When by the same statute the words Election Commissioner  were substituted by the expression High Court  with effect from December 14 1966
Even though by the said Amendment Act jurisdiction was conferred on High Court in place of the Election Commission surprisingly the title of chapter II continues to read Presentation of election petitions to Election Commission 
Parliament will well to correct this slip by substituting the words High Court  for the expression Election Commission  to bring it in conformity with the changes introduced by Act 47 of 1966
768E F