1 EP No[ENTITY]5/2014 HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR SB: HON'BLE SHRI JUSTICE SUJOY PAUL Election Petition No[ENTITY]5/2014 Radhe Shyam Dhakad vs[ENTITY] Jaivardhan Singh and others Shri [ENTITY], Advocate for the petitioner[ENTITY] Shri [ENTITY], Sr[ENTITY] Advocate with Shri [ENTITY], Advocate for the respondent No[ENTITY]1[ENTITY] Shri [ENTITY], Advocate for the respondent No[ENTITY]4[ENTITY] ORDER
(04/07/2014) Parties are heard on IA No[ENTITY] 2492/2014[ENTITY] This IA is filed under [SECTION] of [ACT] (for brevity, the '[ACT]') for dismissing the petition[ENTITY]
2[ENTITY] Shri [ENTITY], learned senior counsel with Shri [ENTITY], Advocate for the respondent No[ENTITY]1 submits that the petition deserves to be dismissed for following counts :-
(i) Copy of the petition, affidavit and annexures supplied to the respondent No[ENTITY]1 have not been verified by the petitioner[ENTITY]
(ii) Petition and documents do not contain the signature of petitioner at the place it should have been[ENTITY]
(iii) There is no verification in the annexures whereas as per [SECTION]/[SECTION] of [ACT], the election petition must be filed accompanied by as many as copies thereof as there are respondents mentioned in the petition[ENTITY] Thus, identical copies of the petition were required to be sent[ENTITY] It is argued that the word "shall" is employed in [SECTION] and, therefore, the provision is mandatory and any violation thereof must result into dismissal of the petition[ENTITY]
(iv) The petition is not supported by affidavit mentioning particulars of the corrupt practices[ENTITY] Reliance is placed on [SECTION] of the [ACT][ENTITY]
(v) It is strenuously argued that as per [SECTION] of the [ACT], the petitioner needs to file another affidavit when allegations of corrupt practices are made[ENTITY] Proviso under [SECTION] is heavily relied upon for this purpose[ENTITY]
(vi) The election petition is admittedly presented at 5[ENTITY]00 p[ENTITY]m[ENTITY] whereas as per "Rules relating to Election Petition", the election petition could have been presented during court hours, i[ENTITY]e[ENTITY], upto 4[ENTITY]30 p[ENTITY]m[ENTITY] only[ENTITY]
(vii) The election petition is required to be filed in white paper whereas it is typed in green paper[ENTITY] On this ground, it is prayed that election petition be dismissed[ENTITY]
(viii) In the affidavit filed in support of election petition, the petitioner has not mentioned the names/description of corrupt practices[ENTITY]
3[ENTITY] The prayer is opposed by Shri [ENTITY], learned counsel for the petitioner[ENTITY] He submits that an application under [SECTION] can be entertained only if there is non-compliance with the provisions of [SECTION], [SECTION] or [SECTION] of the [ACT][ENTITY] He submits that the points raised by the respondent No[ENTITY]1 are no more res integra and curtains are drawn on the said aspect by the judgment of Supreme Court, reported in [PRECEDENT] (T[ENTITY]Phungzathang vs[ENTITY] Hangkhanlian and others) and [PRECEDENT] ([ENTITY] vs[ENTITY] Sukh Darshan Singh and others)[ENTITY]
4[ENTITY] Shri [ENTITY], learned counsel for the respondent No[ENTITY]4 has not advanced any argument on this application and prayed for time to file written statement[ENTITY]
5[ENTITY] No other point is pressed by learned counsel for the parties[ENTITY]
6[ENTITY] [SECTION] of the [ACT], in no uncertain terms makes it clear that the High Court shall dismiss an election petition, which does not comply with the provisions of [SECTION] or [SECTION] of the [ACT][ENTITY] Thus, the scope of judicial review is limited to examine at this stage whether the election petition suffers from any substantial non-compliance with [SECTION] or [SECTION] or [SECTION] of the [ACT][ENTITY]
7[ENTITY] In points (i), (ii) and (iii) aforesaid, the respondent No[ENTITY]1 has contended that the copy of election petition given to him is not exact true copy of the petition[ENTITY] It is not verified by the petitioner nor it is photo copy of verified petition because there is no signature of petitioner at the place where the petitioner was supposed to sign[ENTITY] The annexures do not bear any verification of the petitioner[ENTITY] In absence of signature in the copy of petition, the petition needs to be dismissed[ENTITY]
8[ENTITY] A Constitution Bench in [ENTITY] v[ENTITY] Poulose [(1999) 4 SCC 274] has reaffirmed the view taken by two earlier Constitution Benches in [ENTITY] Ram Kumar v[ENTITY] Roop Singh Rathore (AIR 1964 SC 1545) and [ENTITY][ENTITY] [ENTITY] v[ENTITY] Member, Election Tribunal (AIR 1964 SC 1027) and has also explained and expounded the principles laid down by two earlier Constitution Benches[ENTITY] In [ENTITY]'s case, copy of election petition delivered to the contesting respondent did not show that the verification of the Notary to be required as per rules was contained in the original and, therefore, the copy was objected to as being defective and amounting to non-compliance with the requirement of [SECTION] of the [ACT][ENTITY] The case was placed before the Constitution Bench for reconsidering the earlier three-Judges Bench judgment in Shipra (Dr[ENTITY]) v[ENTITY] Shanti Lal Khoiwal, reported in (1996) 5 SCC 181[ENTITY] The Constitution Bench also noticed another three-Judges Bench judgment[ENTITY] In [ENTITY] (supra), Supreme Court culled out the following principles flowing from said judgment:-
(i) The object of serving a "true copy" of an election petition and the affidavit filed in support of the allegations of corrupt practice of the respondent in the election petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence[ENTITY] The requirement is of substance and not of form[ENTITY]
(ii) 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[ENTITY]
(iii) The word "copy" does not mean an absolutely exact copy[ENTITY] It means a copy so true that nobody can by any possibility misunderstand it[ENTITY]
(iv) Substantial compliance with [SECTION] was sufficient and the petition could not be dismissed, in limine, under [SECTION] where there had been substantial compliance with the requirements of [SECTION] of the Act[ENTITY]
(v) There is a distinction between non-compliance with the requirement of [SECTION] and [SECTION][ENTITY] A substantial compliance with the requirements of [SECTION] read with the proviso to [SECTION] of the Act is enough[ENTITY] Defects in the supply of the true copy under [SECTION] of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent[ENTITY] The prejudice caused to the respondent in such cases would attract the provisions of [SECTION] of the Act[ENTITY] The same consequence would not follow from non-compliance with [SECTION] of the Act[ENTITY]
(vi) The argument that since proceedings in election petitions are purely statutory proceedings and not civil proceedings as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into [SECTION] read with [SECTION] of the Act, cannot be accepted and has to be repelled[ENTITY]
(vii) It is only the violation of [SECTION] of the Act which can attract the application of the doctrine of substantial compliance as expounded in [ENTITY] and [ENTITY][ENTITY][ENTITY] cases[ENTITY] The defect of the type provided in [SECTION] of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the [ACT][ENTITY]
This clearly emerges from the scheme of [SECTION] and [SECTION] of the Act[ENTITY]
(viii) A certain amount of flexibility is envisaged[ENTITY] While an impermissible deviation from the original may entail the dismissal of an election petition under [SECTION] of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect[ENTITY] 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[ENTITY] It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed[ENTITY] The tests suggested in [ENTITY] and [ENTITY][ENTITY][ENTITY] case are sound tests and are now well settled[ENTITY]"
9[ENTITY] As per the aforesaid principles, it is clear that the requirement of furnishing true copy is of substance and not of forum[ENTITY] The basic test to determine whether a copy is a true one or not is to examine whether any variation from the original was calculated to mislead a reasonable person[ENTITY] In no uncertain terms, the Apex Court made it clear that the word "copy" does not mean an absolutely exact copy[ENTITY] It only means that copy must be so true that nobody can be possibly misunderstand it[ENTITY]
10[ENTITY] If the copy supplied to the respondent No[ENTITY]1 is examined on the anvil of aforesaid principles, it will be clear that there is no scope of any misunderstanding or misrepresentation[ENTITY] There exists no scope of misleading because nothing could be pointed out to show that there is any difference in the original election petition and the copy supplied to the respondent except that it does not contain signatures at some places or certain other defects, which are pointed out in IA No[ENTITY] 2492/2014[ENTITY] None of these defects are of the nature by which it can be said that the copy given will lead to any misunderstanding or misleading[ENTITY] In [ENTITY] (supra), the Apex Court opined that as per [SECTION] of the [ACT], an affidavit in support of the allegation of corrupt practice needs to be filed[ENTITY] A statutory form by [SECTION] is prescribed[ENTITY] However, it cannot be lost sight that failure to comply with the requirement as to filing of an affidavit cannot be a ground for dismissal of election petition in limine under [SECTION] of the [ACT][ENTITY] After considering various judgments, the Apex Court opined that requirement of filing an affidavit along with an election petition in the prescribed form in support of allegation of corrupt practice is contained in [SECTION] of the Act[ENTITY] Non-compliance with the provisions of [SECTION] of the Act, however, does not attract the consequences envisaged by [SECTION] of the [ACT][ENTITY] Thus, the objections raised in points (i), (ii) and (iii) are devoid of substance and are hereby rejected[ENTITY]
11[ENTITY] So far points (iv) and (v) are concerned, the election petition is supported by verification and in support of allegations of corrupt practices an affidavit is filed[ENTITY] Heavy reliance is placed by Shri [ENTITY], learned senior counsel on [SECTION] and proviso appended to it, which reads as under:-
"83[ENTITY] Contents of petition[ENTITY] (1) An election petition
(a) xxx xxx xxx (b) xxx xxx xxx
(c) shall be signed by the petitioner and verified in the manner laid down in the [ACT] 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[ENTITY]"
12[ENTITY] Shri [ENTITY], learned senior counsel placed heavy reliance on the words employed in the proviso, i[ENTITY]e[ENTITY], "petition shall also be accompanied by an affidavit in the prescribed form "[ENTITY] To elaborate, learned senior counsel submits that in fact, two affidavits are required, one in support of the election petition and another in support of the allegations of corrupt practices[ENTITY] He submitted that in the present case admittedly only one affidavit is filed and thus, the petition needs to be dismissed[ENTITY]
13[ENTITY] The aforesaid defect pointed out is based on [SECTION] of the [ACT][ENTITY] At the cost of repetition, it may be remembered that as per [SECTION], the petition can be dismissed only if it does not comply with the provisions of [SECTION], [SECTION] and [SECTION] of the [ACT][ENTITY] The violation or default arising out of [SECTION] is not included in [SECTION][ENTITY] Apart from this, as per [SECTION], the election petitioner is required to support the petition by verification in the manner laid down in the [ACT] for verification of pleadings[ENTITY] This election petition is supported by verification[ENTITY] The affidavit is filed in support of the allegations of corrupt practices[ENTITY] The Division Bench of Supreme Court in [ENTITY] v[ENTITY] M[ENTITY]K[ENTITY]Raghvan, reported in (2012) 5 SCC 511, opined that two affidavits are required to be filed, one under [SECTION] [ACT] and another in Form 25[ENTITY] There was inconsistent view of Supreme Court on the aforesaid issue and, therefore, it was placed before the Larger Bench by the Apex Court[ENTITY] The said matter is reported in (2013) 4 SCC 776 (G[ENTITY]M[ENTITY]Siddeshwar vs[ENTITY] Prasanna Kumar)[ENTITY] The Apex Court overruled the judgment of [ENTITY] (supra) on the point of requirement of two affidavits[ENTITY] The Apex Court opined that there is no mandate in R[ENTITY]P[ENTITY]Act to maintain an election petition (in a case where resort to corrupt practice has been alleged against the returned candidate), it is imperative for an election petitioner to file an affidavit in terms of [SECTION] [ACT] in support of averments made in the election petition in addition to an affidavit required to be filed by the proviso to [SECTION] of the [ACT][ENTITY] The Apex Court considered the impact of the word employed in [SECTION], i[ENTITY]e[ENTITY], "also" (the word on which Shri [ENTITY] placed heavy reliance) and opined as under:-
"[SECTION] [ACT] no doubt requires that a verification of the plaint is necessary and in addition to the verification, the person verifying the plaint is "also"
required to file an affidavit in support of the pleadings[ENTITY] However, [SECTION] of the R[ENTITY]P[ENTITY]Act merely requires an election petitioner to sign and verify the contents of the election petition in the manner prescribed by [ACT][ENTITY] There is no requirement of the election petitioner "also" filing an affidavit in support of the averments made in the election petition except when allegations of corrupt practices have been made[ENTITY] That [SECTION] requires an affidavit "also" to be filed does not mean that the verification of a plaint is incomplete if an affidavit is not filed[ENTITY] The affidavit, in this context, is a stand-alone document[ENTITY] A plain and simple reading of [SECTION] of the [ACT] clearly indicates that the requirement of an additional affidavit is not to be found therein[ENTITY] While the requirement of "also" filing an affidavit in support of the pleadings filed under [ACT] may be mandatory in terms of [SECTION] [ACT], the affidavit is not a part of the verification of the pleadings - both are quite different[ENTITY] While the [ACT] does require a verification of the pleadings, the plain language of [SECTION]
(c) of the [ACT] does not require an affidavit in support of the pleadings in an election petition[ENTITY] The Court is being asked to read in a requirement that does not exist in [SECTION] of the [ACT][ENTITY]"
In view of this judgment, it is clear that the argument that two affidavits, one in support of petition and another in support of allegations of corrupt practices, are required, has no force[ENTITY] Admittedly, an affidavit in support of allegations of corrupt practice is filed by petitioner[ENTITY] Affidavit discloses the nature of corrupt practice[ENTITY] Thus, points No[ENTITY] (iv) and (v) are also decided against the respondents[ENTITY]
14[ENTITY] Another objection [point No[ENTITY] (vi)] is regarding filing of election petition at 5[ENTITY]00 p[ENTITY]m[ENTITY] This is said to be the violation of the relevant rules[ENTITY] In the opinion of this Court, this is beyond the purview of [SECTION] of the [ACT][ENTITY] The question of timing of filing of petition is not flowing from [SECTION], [SECTION] and [SECTION] of the [ACT] and, therefore, it cannot be a ground for dismissing the petition[ENTITY]
15[ENTITY] It is also argued [point No[ENTITY] (vii)] that as per rules, the petition should be filed in white copy[ENTITY] However, this ground is not taken in the present IA No[ENTITY] 2492/2014[ENTITY] In addition, this is merely a technical aspect[ENTITY] It does not have any impact of misleading or misrepresentation etc[ENTITY] It is outside the purview of [SECTION] of the [ACT][ENTITY] Thus, this contention is also rejected[ENTITY]
17[ENTITY] Lastly, it is argued [point No[ENTITY] (iv) and (viii)] that the petitioner has not mentioned the names of corrupt practices[ENTITY] [SECTION] of [ACT] deals with "corrupt practices"[ENTITY] Sub-section (3) makes it clear that in appeal by a candidate or his agent or any other person with the consent of candidate or his election agent to vote or refrain from voting on the ground of his religion, race, caste, community or language or use of, or appeal to religious symbols etc[ENTITY] prejudicially affecting the election of the candidate, will be within the purview of corrupt practices[ENTITY] In the affidavit, filed by the petitioner (page 21), the petitioner has stated that the statements made in certain paragraphs of the election petition are about the commission of corrupt practices of appeal by religion of returned candidate with the use of religious symbol[ENTITY] The details of such allegations are mentioned in certain paragraphs of the election petition[ENTITY] Thus, I am unable to hold that the petitioner has not mentioned the nature of corrupt practices[ENTITY]
18[ENTITY] In the result, I find no force in this application[ENTITY] IA No[ENTITY] 2492/2014 is rejected[ENTITY] The respondent No[ENTITY]4 is given four weeks' time to file written statement[ENTITY]
19[ENTITY] List this matter on 12th August, 2014[ENTITY]
([ENTITY]) Judge (Yog)