1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH CIVIL APPLICATION NO. 4325 OF 2005 IN ELECTION PETITION NO. 4 OF 1994 Vasantrao s/o Balajipant Itkelwar ... PETITIONER Versus 1. Shri Rajendra s/o Bhausaheb Mulak 2. The Returning Officer. ... RESPONDENTS Shri S.V. Bhutda, Advocate for the petitioner. Shri N.W. Sambre, Advocate with Shri Patil, Advocate for respondent No.1. CORAM : B.P. DHARMADHIKARI, J. AUGUST 10, 2006. ORDER : The Civil Application is filed by Respondent No.1, a returned candidate for dismissal of Election Petition itself on the grounds that; (1) the petitioner has not supplied true and correct copy of Election Petition as contemplated by the provisions of Act and Rule 94-A of Conduct of Election Rules, 1961; (2) the verification of petitioner and affidavit in support of petition also are not in accordance with Section 83(1)(c) of 2 Representation of People Act, 1951, Rule 94-A of Conduct of Election Rules or Form 25 with it; (3) the affidavit is not sworn before the competent authority as per Rule 94-A; (4) the document annexed i.e. copy of Civil Writ Petition (PIL) No. 191 of 2004 is not true copy or certified copy; and (5) lastly the allegations about tempering or manipulation of Electronic Voting Machines (EVS) are vague and do not constitute any corrupt practice/ cause of action. 2. The Election Petition is filed by the petitioner questioning the election of Respondent No.1 basically on the ground that there was every chance and possibility of manipulation and tempering with Electronic Voting Machines and also an opportunity therefor in view of various contraventions of Rules and regulations prescribed in this respect. This application for dismissal of said Election Petition has been filed on 7.7.2005 and reply thereto has been filed on 15.7.2005. A written statement filed by present respondent on 4.7.2005 has been accepted on record after detailed hearing on 17.4.2006. On 31.8.2005, Civil Application No. 3939 of 2005 moved by Respondent No.3 – Election 3 Commissioner of India for its deletion has also been allowed. 3. I have heard Shri N.W. Sambre, Advocate with Shri Patil, Advocate for respondent No.1 and Shri Bhutda, Advocate for the petitioner on this civil application. None of them have urged for framing of issues, for opportunity to lead evidence or to carry out any amendment or rectification. 4. Shri Sambre, Advocate has invited attention to provisions of Section 83, 81(3) and 86 of Representation of People Act, 1951 as also Rule 94-A and Form 25 of Conduct of Election Rules, 1961, and Order VI, Rule 15 of Civil Procedure Code to contend that supply of true and correct copy of Election Petition was must and its non supply is, therefore, fatal. He has further stated that endorsement of authority administering oath is necessary on the copy of affidavit supporting the petition supplied to returned candidate and as these provisions are not complied with, it needs to be dismissed. Reliance has been placed upon AIR 1992 Bom. 227 and in Dr. Shipra v. Shantilal Khoiwal, reported at (1996) 5 SCC 181 in this 4 respect. 5. He has further stated that the above provisions also show how Election Petition is to be verified and how it is to be supported by affidavit. He states that even in this respect there is total failure to comply with requirements because source of information on which the allegations in the petition are based are not disclosed anywhere. It is contended that verification and affidavit are also contradictory because what can be true to ones own knowledge cannot at the same time be true to his information. In this respect attention has been invited to judgment of the Hon'ble Apex Court in the case of L.R. Shivaramagowda v. T.M. Chandrashekar reported at (1999) 1 SCC 666 and in Kamal Nath v. Sudesh Verma, reported at (2002) 2 SCC 410. The attention has been particularly invited to allegations in paragraphs 2, 7, 9, 10 to 12, 13 to 21, 23 and 24 of Election Petition. It is contended that on this count also the petition is liable to be dismissed. It is further stated that Section Officer of this High Court is not competent to administer oath to Election Petitioner and affidavits sworn before him cannot be accepted and relied upon in 5 these proceedings. Again reliance has been placed on above mentioned provisions as also Section 139(b) and (c ) as also Section 122 of Civil Procedure Code. The provisions of Rules 196 and 197 of High Court Original Side Rules and Section 3(2) read with Section 6 of Oaths Act are also pressed into service in this respect. It is contended that there has to be a specific authorization to enable oath administering authority to administer oath for Election Petition and as there is no compliance with Rule 94-A of Conduct of Election Rules, the Election Petition is liable to be dismissed. It is contention that authorization in favour of Section Officer under High Court Appellate Side Rules is no substitute for compliance with Rule 94-A. The Advocate has contended that judgment of learned Single Judge of this Court in the case of Bhagwan R. Karankal v. Chandrakant, reported at 2000 (Supp) Bom. C.R. 727 does not consider the technical aspect of Rule 94-A and the effect of absence of authorisation in favour of Additional Registrar or Section Officer under the provisions of special rules of this High Court governing the Election Petitions. 6. Lastly, it is contended that the petition is based mostly on 6 hypothesis and inferences and the allegations therein are extremely vague. It is contended that no particulars of any specific instance are given and no details like date, time or names are also disclosed. It is the contention that the provisions of Section 83(1)(a) and Section 100(1)(d) (iii) and (iv) of Representation of People Act, 1951, are therefore violated. Reliance has been placed on judgments reported at in L.R. Shivaramagowda v. T.M. Chandrashekar, reported at (1999) 1 SCC 666, in Jaipal Singh v. Sumitra Mahajan , reported at (2004) 4 SCC 522, in V. Narayanaswami v. C.P. Thirunavukkarasu, reported at (2000) 2 SCC 294, in Jeet Mohinder Singh v. Harminder Singh Jassi, reported at (1999) 9 SCC 386 and (1995) 5 SCC 347. It is stated that these lacunae are fatal and writ petition is liable to be dismissed and the same cannot be allowed to be removed or cured. Reliance has been placed upon in Regu Mahesh v. Rajendra Pratap Bhani Dev, reported at (2004) 1 SCC 46. It is lastly argued that the lacuna has been pointed out in written statement and also in this application which has been filed in the month of July 2005 and since last about 11 months no steps have been taken by the Election Petitioner to cure them. Therefore, even if it is held that the defects are 7 curable but as sufficient opportunities are already given and has not been utilised by the petitioner, now petition deserves to be dismissed. 7. Shri Bhutda, Advocate for the Election Petitioner has contended that the application has been filed only with oblique motive to delay the disposal of Election Petition. He contends that written statement was also filed belatedly only with that purpose. He points out that insofar as objection about supply of true and correct copy or endorsement on affidavit or on documents is concerned, no evidence whatsoever has been led by Respondent No.1 to prove the facts on the basis of which the law can thereafter be applied. He states that objections in this respect are to be raised at the earliest possible opportunity and hence even otherwise the present objections are not tenable. He also argues that the objections are curable and substantial compliance is sufficient in the eye of law. He relies upon the judgment of the Hon'ble Apex Court reported at Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar, reported at 2005 (2) SCC 188 to support his arguments. He states that the burden was upon Respondent No.1 to prove that there was no substantial 8 compliance and as he has failed to do so, this objection is liable to be rejected. Similarly, in relation to the objection about defective verification, it is his contention that the verification has been done as contemplated by provisions of Civil Procedure Code and he further argues that technical requirements on which respondent No.1 is placing reliance are not required to be met with in present matter. He contends that the affidavit in form No.25 as contemplated by Rule 94-A of Conduct of Election Rules is not necessary and affidavit with Election Petition is in accordance with provisions of Order VI Rule 15 of Civil Procedure Code and there is no contradiction between affidavit and the verification. He states that again these objections are to be raised at the earliest and the same are curable. He places reliance upon the above referred judgment of the Hon'ble Apex Court i.e. Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar (supra) also in support of his contention. He points out that the Hon'ble Apex Court has in this matter considered the earlier judgment in T.M. Jacob vs. C. Poulose, reported at (1999) 4 SCC 274 and has held that if the objections are not removed after they are pointed out within the reasonable time, the Election Petition is liable to be 9 dismissed. According to him, therefore, the application as filed even raising this ground is not tenable and is liable to be dismissed. In relation to competency of Section Officer of this Court to administer oath to the Election Petitioner, he contends that Respondent No.1 is trying to over stretch the requirements. He points out that as per Chapter II Rule 9 of Bombay High Court Appellate Side Rules, this Court has authorised its Section Officer to administer such oath. He states that this is as per provisions of Section 139 of Civil Procedure Code and hence no objection in this respect can be raised. He further points out that the affidavit otherwise meets the requirement of Rule 94-A and also form No.25 and as such the objection should be rejected. He invites attention to the judgment of this Court reported at Bhagwan R. Karankal vs. Chandrakant, reported at 2000 (Supp.) Bom. C.R. 727 to state that identical issue has been considered by the learned Single Judge of this Court in Election Petition and oath administered by the Additional Registrar of this Court has been held to be valid. He states that same law needs to be followed here. He contends that the objection raised that authorisation in favour of Section Officer under Appellate Side Rules is not valid as there is no 10 authorisation in his favour under the Rules framed by the Bombay High Court for trial of Election Petitions is misconceived and he states that perusal of all provisions show that the only intention is to fasten liability and responsibility upon deponent for facts disclosed by him in such affidavit. He states that the Section Officer is Commissioner of oaths as contemplated by Section 3(2)(a) of Oaths Act and hence the objection as raised is liable to be rejected. He states that Bombay High Court Appellate Side Rules are framed by the High Court under Section 122 of Civil Procedure Code. He also contends that the insistence upon words “in this behalf” used in Section 3(2) of Oaths Act by Respondent No.1 is not proper and the Oaths Commissioner can administer oath for any judicial proceedings. 8. About the pleadings, he contends that in view of the provisions of Order 7 of Civil Procedure Act, defect, if any in this respect is not fatal and opportunity needs to be given to the Election Petitioner to cure the lacuna if any. He further contends that the basic challenge of Election Petitioner is to the violation of guidelines by its Election Commissioner and it is 11 covered by Section 100(1)(d)(iv) of Representation of People Act and necessary pleadings are already incorporated in the Election Petition. He states that the effort of Respondent NO.1 is only to harass the present petitioner and hence frivolous objections have been raised. According to him, there is no merit in the application and the same is liable to be dismissed. 9. The objection that Election Petitioner has not supplied true copy or the copies of documents are not certified or that there is no endorsement of oath administering officer on copy of affidavit supplied to Respondent No.1 are basically questions of facts. Respondent No.1 has not adduced any oral evidence before this Court to show that these defects exist. He has also not produced on record the copies of Election Petition or documents or affidavit served upon him by Election Petitioner so as to enable this Court to note the alleged non-compliance. It is, therefore, clear that the non-compliance itself has not been established. In this respect when the judgment of the Hon'ble Apex Court in Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar, (supra) is 12 looked into, the Hon'ble Apex Court has held that the provisions of Section 81(3) in relation to attestation by the petitioner under his own signatures to be true copy only need substantial compliance and the said defects are curable and non fatal in nature. The Hon'ble Apex Court has in paragraph 18 of this judgment found that the fact of service of copies by Election Petitioner on respondent therein was not proved and High Court could not have relied upon the copies of Election Petition alleged to have been supplied by Registry of High Court to learned counsel for Respondent No. 1. Thereafter in paragraph 20, the Hon'ble Apex Court has also noted that objection in this respect was not taken immediately and application under Order 7, Rule 11 of Civil Procedure Code was filed after more than one month. The Hon'ble Apex Court noted that if the objection is removed immediately and there is substantial compliance, the matter cannot be dismissed. If despite opportunities such defects are not cured then only the Election Petition can be dismissed. 10. Shri Bhutda, Advocate has relied upon the provisions of Rule 8 of Bombay High Court Rules in regard to Election Petitions under 13 Representation of People Act as contained in Appendix II of Bombay High Court Original Side Rules, 1980. The said rule required the office to examine the petition with a view to see whether it is in conformity with requirements of law and rules applicable to the same and if it is not so, to raise objections which are then to be removed by the party or advocate concerned. The Rule also specifies that these objections are to be removed by concerned party or by advocate after two days after the office brings the same to their notice as contemplated in Rule 7. The argument is in present case, office did not raise any objection about verification or about affirmation or about supply of true copies and as such the petitioner has been deprived of opportunity available to him to remove the same within two days after the same were brought to their knowledge. 11. Learned counsel for Respondent No.1 has contended that objections have in fact been brought to the knowledge by present Respondent No.1 immediately in July 2005 itself. It is the argument that the objections of present nature are not covered under Rule 8 and office is not expected to point out such objections about which arguments are 14 required to be advanced and the Court is required to adjudicate. The contention is only non-fulfillment of provisions or any lacuna which can be noticed by clerk like absence of signature, absence of proper court fee etc. are contemplated under Rule 8. As this Court has already held that the objections of present nature are not fatal and the petitioner is to be given opportunity to remove the same and if after grant of opportunity he does not remove them, then only the matter can be dismissed; it is not necessary to consider scope of above referred Rule 8. Here, the very existence of these defects itself is not established. 12. In this respect, perusal of judgment of Hon'ble Apex Court in Kamal Nath v. Sudesh Verma, (supra) reveals that the Hon'ble Apex Court there, after considering Rule 94-A of Conduct of Election Rules and also Form 25 therein has recorded a finding that the affidavit filed in support of Election Petition disclosing source of information in respect of commission of corrupt practice is must in view of Section 83(1) of Representation of People Act. In paragraph 6 thereof, the Hon'ble Apex Court has considered the contents of Election Petition to hold that there was no infraction of proviso to Section 83(1) so as to reject the petition on that 15 score at threshold. 13. In this respect reference is already made to the judgment of the Hon'ble Apex Court reported at Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar, (supra) to point out that the requirements being considered here are not fatal and substantial compliance therewith is sufficient. It has been held that mere defect in verification would not warrant rejection of Election Petition at threshold and a defective affidavit would not entail in limine dismissal of Election Petition. Such defects have been held to be curable. 14. Rule 94-A of Conduct of Election Rules, 1961 requires that the affidavit referred to in proviso to sub-section (1) of Section 83 is to be sworn before the Magistrate of First Class or a Notary or a Commissioner of Oath and shall be in form 25. The form of said affidavit i.e. form 25 shows the requirements of affidavit in this respect. In present case the affidavit has been sworn before Section Officer of this Court. Respondent No.1, therefore, states that affidavit as filed does not meet the 16 requirements of Rule 94-A and hence the affidavit is liable to be ignored and consequently the Election Petition is also liable to be dismissed. Respondent No.1 has pointed out this High Court has framed rules in regard to Election Petitions and Section Officer is not one of the persons authorised to administer oath for that purpose. Under the Original Side Rules in view of Rule 28 of these Rules in regard to Election Petitions. It is, therefore, stated that the Oath administered by the Section Officer is incompetent. 15. As against this, the Election Petitioner has invited attention to provisions of Section 139 of Civil Procedure Code and also to provisions of Chapter II Rule 9 of Bombay High Court Appellate Side Rules to state that Section Officer has been authorised to administer oath as per High Court Appellate Side Rules and hence the affidavit sworn before him is competent. Both the advocates have invited attention to the judgment of this Court in Bhagwan R. Karankal v. Chandrakant, (supra) which actually is in favour of Election Petitioner and against the stand of Respondent No. 1. However, Respondent No.1 has contended that the issue whether oath 17 administered by an authority under High Court Appellate Side Rules can be treated as valid for the purposes of Rule 94-A has not been gone into in this ruling. 16. As already discussed above, failure to file appropriate affidavit or failure to verify by itself is not fatal and opportunity needs to be given to Election Petitioner to cure the defect. Similarly, the other objections about the contradiction in verification and affidavit is required to be considered in the light of pleadings in Election Petition and therefore is being considered little later while trying to find out whether the petitioner has made out any case so as to show accrual of cause of action in his favour. 17. The judgment of learned Single Judge of this Court referred to above in paragraph 15 considers the provisions of Rule 28 of Bombay High Court Rules in regard to Election Petitions and finds that when there is no provision made in the Representation of People Act or in the Civil Procedure Code or those rules, rules of Bombay High Court on Original Side are to be looked into. Thereafter Rule 44 of these Original Sides Rules 18 is looked into to note that it provides for mode and manner of verification of plaints. Rule 126 of Original Side Rules and 197 thereof has thereafter been looked into and it is observed that the Additional Registrar or Section Officer at Benches is not covered therein. After recording this finding, in view of Rule 28, the learned Single Judge has then referred to provisions of Section 139 of Civil Procedure Code and has found that an officer or other person appointed by High Court in this behalf is competent to administer oath. It is also observed that provision requires specific appointment or authorisation in the name of that officer by his designation as either Additional Registrar or Assistant Registrar or Section Officer as the case may be. Paragraph 17 shows that no such authorisation was produced before this Court in that matter. Thereafter in paragraph 19 provisions of Order VI, Rule 15(1) of C.P.C. and Bombay amendment thereto are considered and it has been observed that even reading of this provision makes it clear that a reference has to be made only to Section 139 of the Code of Civil Procedure. Again observation is no such authorisation under Section 139 in favour of Additional Registrar was placed before it. Then provisions of Rule 9 of Chapter II are considered in 19 paragraph 20 and the contention of Election Petitioner there (Shri Bhagwan) that said rules would apply mutatis mutandis to all proceedings has been considered. In paragraph 22, this Court then observed that their definitely was a missing link so far as issuance of authorisation in the name of Additional Registrars of Benches of High Court was concerned. However, then it is observed that it will not make Additional Registrars of the Benches of the Bombay High Court incompetent to administer oath or get the verification done. Then provisions of Chapter III in Part II of the Bombay High Court Appellate Side Rules are referred and it is noted that Rule 2 thereof provides for entitling of affidavits relating to proceedings in High Court and Rule 3 speaks of entitling of affidavits in respect of cause not in High Court. Then the question as to when these provisions of Appellate Side Rules can be brought into operation in Original Side Rules has been considered and it has been observed that the Benches at Aurangabad, Nagpur and Goa do not have Original Side Benches except such specially assigned work of election petitions and hence that was the reason why post of Additional Registrar or Section Officer did not figure in Rule 197 of the High Court Original Side Rules. It is further observed that 20 it did not mean that if said affidavit was sworn before the Additional Registrar or Section Officer, it will be totally illegal. The provisions of Oaths Act, 1969, particularly Section 3(2) has been relied upon for this purpose. The similar issue dealt with by the Hon'ble Apex Court in Kamal Narain vs. Dwarka Prasad, AIR 1966 SC 436 has also been considered and it has been noted that when affidavit done before the clerk of the District Court who described himself to be officer for administering oath in view of his appointment as such by District Judge under Section 139(c) of Civil Procedure Code, the affidavit was before the competent person as contemplated by Rule 94-A of Conduct of Election Rules, 1961. The Hon'ble Apex Court has held that Rule 94-A does not make any difference between oath administering authority as done by Section 139(c) of C.P.C. or old Section 539 of Criminal Procedure Code. View in an earlier unreported ruling of this Court in Election Petition No. 3 of 1992 decided on 10.2.1992 has also been relied upon