1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. LETTERS PATENT APPEAL NO.39 OF 2010 IN WRIT PETITION NO.6273 OF 2009 Trimbak Raibhan Patil Medge ..APPELLANT VERSUS The Additional Divisional Commissioner and ors. ..RESPONDENTS Mr S.S. Thombre, Advocate holding for Mr M.S. Karad for the appellant; Mr Jiwan Patil, Advocate for respondent no.5. CORAM : P.V. HARDAS AND N.D. DESHPANDE,JJ. (Date of Reserving the Order : 10.6.2010 Date of Pronouncing the Order : 14.6.2010) ORDER (PER P.V. HARDAS, J.) This Letters Patent Appeal has been filed by the appellant challenging the judgment of the learned Single Judge of this Court, in Writ Petition No.6273 of 2009, dated 13.1.2010. The appellant herein had filed the aforesaid petition challenging the order passed by the Additional 2 Divisional Commissioner, Aurangabad, dated 3.9.2009 in an election petition filed by the respondent herein. 2. It appears that the present appellant and the respondent no.5 had contested the election of the Aurangabad District Central Co-operative Bank and the appellant herein came to be elected as a candidate from the Constituency of Weakers Section. His election was challenged by the present respondent by filing appropriate proceedings before the Additional Divisional Commissioner, Aurangabad. The appellant herein had submitted an application before the Additional Divisional Commissioner praying therein for dismissal of the petition by framing a preliminary issue regarding the maintainability of the same. The appellant alleged that as per the provisions of section 244V of the Maharashtra Co-operative Societies Act, the petition filed by the respondent herein suffered from several defects. The appellant highlighted that the respondent herein had not verified the annexures which were annexed to the election petition and the respondent had also not filed his affidavit in support of the annexures and, therefore, the petition was not maintainable and, therefore, prayed for framing of an additional issue. The aforesaid application filed by the present appellant came to be dismissed by the Additional Commissioner by the order which was impugned before the learned Single Judge of this Court. The Additional Commissioner has observed that the respondent herein had not signed the annexures to the petition as per the requirement of section 3 144V (2) and held that the defect was curable defect by placing reliance on the judgment of the Supreme Court in Owners & Parties interested in M.V. "Vali Pero" Vs. Fernandeo Lopez & ors., AIR 1990 Supreme Court 2206. The Additional Commissioner also recorded a finding that the election petition pending before him did not involve any issue in respect of allegations of corrupt practices and, therefore, the judgment of the Division Bench of this Court in Ashok s/o Tapiram Patil @ A.T. Nana Patil vs. Dr. Gurumukh Mehrumal Jagwani & ors., 2007 (1) ALL MR 355 did not apply to the facts of the case before him. 3. As pointed out by us, the appellant being aggrieved by the decision of the Additional Commissioner filed Writ Petition No.6273 of 2009 before the learned Single Judge of this Court. The learned Single Judge in his order dismissing the petition has observed that the learned Single Judge had perused the entire petition and had found that no grounds in respect of the corrupt practices were either alleged or made out by the respondent herein and, therefore, the filing of the affidavit in support of the allegations of corrupt practices was not mandatory. The learned Single Judge has further observed that the simple affidavit which was filed by the respondent herein in support of the petition was sufficient compliance as no corrupt practices were alleged. The learned Single Judge, therefore, dismissed the petition. The order of the learned Single Judge is subject-matter of challenge in the present appeal. 4 4. At this juncture it would be useful to refer to the provisions of section 144V, which read as under :- "144V. Contents of petition (1) An election petition shall - (a) contain a concise statement of the material facts on which the petitioner relies; (b) set forth 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; and (c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 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 support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." Consideration of the above provision would indicate that the election petition should contain the concise statement of the material facts on which the petitioner relies and it should set forth full particulars of any corrupt practices which the petitioner may allege including a statement 5 about the names of the parties alleged to have committed such corrupt practices and the particulars of the date and place of the commission of such corrupt practices. Clause (c) to sub-section (1) of the said provision requires the election petitioner to sign and verify the petition in the manner laid down by the Code of Civil Procedure for verification of pleadings. The proviso to the said provision further mandates that where the petitioner alleges any corrupt practice the petition shall be accompanied by an affidavit in support of the allegations of such corrupt practice and the particulars of the alleged corrupt practice. Sub-section (2) requires that any schedule or annexure to the petition should be signed by the petitioner and verified in the same manner as in petition. 5. Mr Thombre, learned Counsel for the appellant has urged before us, by relying on the judgment of this Court in Shrikrushna Sadashiv Dhamankar vs. Nasik Merchants Co-operative Bank Ltd. & others, 1990 (1) Bom. C.R. 223 , 1990 (1) Bom. C.R. 223. According to Shri Thombre, learned Counsel for the appellant the Division Bench of this Court had construed section 144V of the Maharashtra Co-operative Societies Act and has held that the requirement of affidavit accompanying the petition was mandatory and a petition not accompanied by the affidavit would not be maintainable. The learned Single Judge while dealing with the said judgment of the Division Bench of this Court has held that the requirement to file an affidavit was restricted to cases where the corrupt practices were alleged by the 6 petitioner. This is obvious even from the bare perusal of section 144V. The proviso amply makes it clear that in cases where the petitioner alleges any corrupt practices, the petition shall also be accompanied by an affidavit in support of the allegations of such corrupt practices. Therefore, the mandatory requirement of filing an affidavit is restricted to cases where corrupt practices were alleged. 6. Mr Thombre, learned Counsel for the appellant has further urged that the petitioner undisputedly had not signed and verified the schedule/annexures to the election petition and, therefore, the Additional Commissioner was in error in permitting the respondent herein to rectify the said defect. Learned Counsel for respondent has urged before us that in the light of several judgments of the Supreme Court the order of the Additional Commissioner cannot be faulted with. 7. Learned Counsel for the appellant has relied upon the judgment of the learned Single Judge in Ashok Tapiram Patil @ A.T. Nana Patil vs. Gurumukh Mehrumal Jagwani & ors., 2006 (6) Bom. C.R., 832. The learned Single Judge of this Court by relying upon the provisions of the Rules under the Representation of People Act, 1951 held that non filing of a separate affidavit in an election petition alleging corrupt practices would be fatal and no opportunity could be tendered to the petitioner therein to rectify the said defect as the petition would be rendered incomplete. In our opinion, the ratio of the aforesaid judgment 7 in the light of the facts stated above is not applicable. 8. The learned Counsel for the appellant has further referred to the judgment of the Division Bench of this Court in Maruti Bandu Patil vs. Village Panchayat Sidhnorli & ors., 1981 Bom. C.R. 405 to urge before us that in the light of the fact that the Legislature had used the word "shall", the entire section was mandatory. Similar reference is made in the judgment of Supreme Court in Khub Chand and others. vs. State of Rajasthan and others, AIR 1967 S.C. 1074. The said judgment, according to us in the present Letters Patent Appeal is not applicable to the facts of the case. 9. Reliance is placed on the judgment of Supreme Court in Ram Sukh vs. Dinesh Aggarwal, (2009) 10 Supreme Court Cases 541. In the aforesaid election petition it was alleged by the petitioner about the failure of the Returning Officer to circulate the attesting signatures of polling agents of the petitioner therein in time and by the time they were circulated, 80% of the polling was over and because of the absence of polling agent of the petitioner therein the voters were confused and voted in favour of respondent no.1 therein. The Supreme Court held that the pleadings were vague and did not spell out as to how the election results were materially affected because of these factors. The Supreme Court, therefore, upheld the order of the High Court rejecting the petition at the threshold on the ground of failure to plead material facts and full 8 particulars. The aforesaid judgment, according to us, is not applicable to the facts of the present case. 10. At this juncture a reference may usefully be made to the judgment of the Supreme Court in Umesh Challiyil vs. K.P. Rajasthan, 2008 AIR SCW 1744, wherein the Supreme Court has observed "but not on defects of minor or cosmetic nature such as defect in verification or affidavit in support of allegations of corrupt practices. These are not the grounds mentioned in section 86 for dismissal of election petition. But nonetheless even if it is to entail serious consequence of dismissal of the election petition for not being properly constituted, then too at least the petitioner should have been given an opportunity to cure these defects and put the election petition in proper format. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 of Code of Civil Procedure. 11. In the light of what has been held by us above, we do not notice any perversity in the reasoning of the learned Single Judge to warrant 9 any interference in this Letters Patent Appeal. Consequently, this Letters Patent Appeal being sans merit is summarily dismissed with no order as to costs. (N.D. DESHPANDE, J.) ( P.V.HARDAS, J.) amj/lpa39.10