1 AEPL 4/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICITON APPLICATION NO. 4 OF 2011 IN ELECTION PETITION NO. 3 OF 2009 Ghumare Bhalchandra Shantaram Aged : 63 years, Retired Class II Govt. Officer, Residing at Sundervan Society, Plot No. 23, Silvassa 396 230 – ....Ori. Petitioner Vs. Patel Natubhai Gomanbhai, Indian Inhabitant, Residing at H.No. 120-1, Uttan Falia, Plot No. 31, Yogi Sadan, Opp. Silvassa Police Station, Applicant Silvassa, U.T. of Dadra & .... Ori.Respondent Nagar Haveli Mr. V.C. Kotwal senior counsel with L.M. Acharya, Advocate for petitioner. Mrs. Anjali Helekar, Advocate for respondent. Coram : Smt. R.P. SondurBaldota, J. Date : 29th August , 2011. PC:- 2 AEPL 4/2011 1. This application is filed by the respondent praying for dismissal of the petition under the Provisions of The Representation of People Act ( RP Act for short) for violation “ ” of Sections 81(3) and 82 of The RP Act. In the alternative, the respondent seeks dismissal of the petition under the provisions of Order 7, Rule 11, Code of Civil Procedure for violation of Section 83 of the RP Act. The petitioner and the respondent contested election in respect of parliamentary constituency of Dadra and Nagar Haveli, U.O. -III in the 15th Lok Sabha Election held on 30th April 2009. The petitioner had contested the election as nominated candidate of Indian National Congress Party, whereas the respondent contested as nominated candidate of Bhartiya Janata Party. The respondent was successful in the election and has been declared as the elected candidate for the Constituency. The petitioner has challenged his election alleging that the respondent himself, his agent and other persons had indulged in corrupt practice within the meaning of Section 123(1)(a) and 123(2) and 123 (3) of the RP 3 AEPL 4/2011 Act by filing the election petition herein. 2. The first ground alleged in the application for dismissal of the petition is that the petitioner has not filed six true copies of the election petition at the time of its filing, thereby violating Section 81(3) of the RP Act. The petition as filed originally was against three respondents. Notice of the petition was however, issued by the court only against the present respondent who had been arrayed as respondent no.1. Later the court allowed the petitioner to delete respondent nos. 2 and 3, who were Chief Election Officer and the Returning Officer respectively, from the proceedings. The respondent claims that he had taken inspection of the proceedings and found that there are no extra copies of the petition available on record. According to him in view of the subsequent deletion of respondents no. 2 and 3 from the election petition, the copies meant for service upon them ought to have been in the proceedings. It is submitted that the absence of the extra copies indicates that the same were not filed at all. There can 4 AEPL 4/2011 no merit in this submission, in view of the specific endorsement of the office of the court on the docket of the petition that it was accompanied by six copies at the time of its filing. It is to be noted that there is no dispute raised by the respondent about the endorsement of the office. 3. The second ground alleged for dismissal is about the service of summons in the election petition upon the respondent. He refers to Rules 9 and 10 of The Bombay High Court Original Side Rules in regard to election petition under the RP act , which provide for personal service of summon and additional service by registered Post A/D. The respondent again claims on the basis of the inspection of the records that it does not contain any correspondence with the District Court of Dadra and Nagar Haveli in respect of the personal service upon the respondent. The learned counsel for the respondent submits that personal service under Rule 9 is mandatory and it must be treated as the first service and service by registered Post A/D under Rule 10 alone cannot be said to be proper 5 AEPL 4/2011 service. There is no dispute that the petitioner has received the summons in the election petition along with copy of the election petition and its annexures. The petitioner in his affidavit-in-reply states that the writ of summons has been served twice upon the respondent. The first service is effected through the office of Sheriff of Bombay. He relies upon affidavit of service dated 2nd September 2009 filed by the Bailiff in the Office of Sheriff of Bombay. The 2nd service was by the Advocate for the petitioner through registered Post A/D. For the second service he relies upon the acknowledgment of receipt of registered post by the respondent on 7th August 2009. An appearance on behalf of the respondent was entered in the proceedings on 10th September 2009 and his written statement filed on 6th November 2009. In these facts, no grievance there can be made by the respondent as regards service of summons. The respondent, however, taking up a hyper-technical and rigid approach ,contends that the additional service through registered post A.D. by the Advocate for the petitioner must be 6 AEPL 4/2011 ignored, since there is no specific order for service by the Advocate. For the same reason, he wants receipt of second copy of the petition by him also ignored to enable him to contend that since only one copy of the petition is served upon him, he has lost his right to seek dismissal of the petition, had the other copy to be served upon him were to be defective. In my opinion this argument is only required to be stated to be rejected. The rules provide for service of summons by two modes i.e,. personal service and by registered post A.D. ,only for the purpose of facilitating the service of summons and saving time. Therefore, once the respondent receives the summons along with copy of the petition, it will not be open for him to complain that the other mode of service of summons has not been adopted. 4. The third ground taken for dismissal of the petition is the alleged violation of Section 81 of the RP Act. This Section requires that every copy of the petition is attested by the petitioner under his own signature to be a true copy of the 7 AEPL 4/2011 petition. The respondent points out that no signature of the petitioner is found at the foot of the pages 9, 12, 48, 54, 60, 64, 70, 73, 76,80, 84, 88, 100, 106, 112, 117, 121, 125, 128, 132, 139, 142, 143, 145 and 146 of the election petition to submit that there is violation of Section 81 of the RP Act. It is not the case of respondent that these pages are completely devoid of the signature of the petitioner. The pages contain verification by the petitioner and his signature by way of verification. According to the respondent, the signatures made in verification cannot be said to be compliance with Section 81 of the RP Act and there ought to have been signatures at the foot of even the pages of verification in order to satisfy the requirement of Section 81 of the RP Act. I find no substance in the argument, since the signature made for verification on the pages would undoubtedly meet the purpose of attestation of the page. Even if non attestation of these pages is to be treated as a defect, the same is too trivial for dismissal of the petition. 8 AEPL 4/2011 5. The fourth ground urged for dismissal of the petition is that some of the pages of the copy of election petition served upon the respondent are illegible. According to the respondents, the pages illegible are 16 to 47, 49, 50, 62, 63, 72, 78, 79, 86, 87, 87, 102, 103, 114, 115, 116, 123, 124, 130 and 131. The learned counsel for respondent submits that illegibility of the annexures renders the copy served as not a true copy “ ” and hence violation of Section 81(3) of the R.P. Act. There is one more contention taken in the same regard and that is the translation of the documents in vernacular language i.e. Gujarathi. The respondent contends that there is no official English translation of such pages given and that the office translation made by the Advocate for the petitioner is not correct. According to the respondent, Advocate Avinash Fatangare, who has issued certificate regarding correctness of English translation of Gujarati documents is not sufficient, since Advocate Fatangare is not familiar with Gujarati language. The petitioner in his affidavit-in-reply denies that Advocate 9 AEPL 4/2011 Fatangare does not know Gujarati language. This denial, in my opinion, is sufficient to take care of the objection as regards the translation of Gujarati documents. In any case, there is no dispute that the respondent is familiar with the Gujarati language. 6. I have perused copy of the petition served upon the respondent and find that the only pages that can be said to be not legible are pages 86 and 87. These two pages constitute copy of the charge-sheet in C.R. No.81 of 2006 filed in court of Chief Judicial Magistrate, Dadra and Nagar Haveli, Silvassa. It is in Gujarati language. These two pages are required to be treated as illegible only for the reason that the handwriting of the handwritten portion is not good. It is submitted on behalf of the petitioner that the annexures to the petition except for Annexure 'A" are not integral parts of the petition. The other annexures are only by way of evidence and that because of illegibility alone, the annexures are not to be branded as not “ a true copy . In my opinion, the election petition cannot be ” 10 AEPL 4/2011 dismissed for the reason that one of the several annexures to the petition is not in proper handwriting. This defect can be cured by giving the necessary directions to the petitioner to furnish a typed copy of the charge-sheet. 7. The next defect alleged by the respondent is in respect of the variance in the verification clause below the election petition and the mandatory affidavit filed under Section 83 of the RP Act. In the verification clause below the election petition, the petitioner has declared that what is stated in paras 1 to 4(b) and 4(d) to 6 is true to his own knowledge and what is stated in para 4(c) and 7 to 15 is on the information given to him which he believe to be true. The mandatory affidavit does not make reference to para 4(d) of the election petition. Ms. Helekar submits that this defect in the mandatory affidavit has not been removed by the petitioner despite an opportunity made available to him. She points out that this aspect was referred to in the earlier application filed by the respondent. But the petitioner has not taken the necessary steps. The 11 AEPL 4/2011 purpose of the verification clause is to afford a proper opportunity to the opposite party to cross-examine the applicant. The line of cross-examination of the petitioner in respect of the facts known to him personally would be different from the facts known by him on information. It therefore cannot be a ground for dismissal of the petition. In any case,it is the contention of the petitioner that para 4(d) merely restates the allegations of corrupt practices alleged at para 4(b) and 4(c) and does not state any new or separate facts constituting corruption. 7. Under Section 83 of RP Act, an election petition must contain a concise statement of material facts, on which the petitioner relies and also full particulars of any corrupt practices that the petitioner alleges. If the material facts with full particulars are not set out, the election petition is liable to be dismissed/rejected under Order 7, Rule 11 CPC. Ms. Helekar submits that the petition does not disclose the material facts constituting the cause of action. According to her, several 12 AEPL 4/2011 particulars of the allegations are missing rendering the same vague. She refers to para 4(b) of the petition to submit that the respondent is alleged to have campaigned for votes on the basis of the religion without specifying the words of appeal. What is alleged at para 4(b) is not any speech given containing appeal to the voters on the basis of the religion. According to the petitioner, the respondent had made use of his acquaintance with Mr. Lalit Patel of Shiv Sena which has alliance with BJP. A magazine by name Luhari Times is “ ” owned and published by Mr. Lalit Patel and circulated in Dadra and Nagar Haveli. The magazine for April issue contains photograph of the respondent along with Pramukh Swami Maharaj of Swami narayan faith. The respondent and his canvassers with his consent are alleged to have distributed the magazine along with BJP voters slip from door to door in Sunderban Society, Silvassa, which is a Hindu colony. This being the main allegation, any words of appeal at the time of handing over of the magazine and the voters slip would not be 13 AEPL 4/2011 very relevant. In any case, it would be more appropriate to consider this question at the time of trial. It has further been submitted by Ms. Helekar that the allegations made at para 4(c) are also without particulars. It is alleged at Para 4(c)that on 28th April 2009, two agents of BJP were caught red-handed bribing the general public to vote in favour of the candidate of BJP. FIRs were lodged against two agents of BJP u/s 154 of Cr.P.C. and Sections 171(4) and 188 of Indian Penal Code. According to the respondent, the names of two agents of BJP are not disclosed in the petition. This submission is not correct since the paragraph further states that the first FIR was lodged against one Rakesh Uttam Patel and the second FIR against one Rone Raosaheb. She submits that the allegation of corrupt practice of bribing requires involvement of the candidate himself. Mr. Kotwal, the learned Senior Counsel for the petitioner, on the other hand has submitted by referring to the provisions of Section 123 that any gift offered or promised or any gratification given can be either by the candidate himself 14 AEPL 4/2011 or his agent or by any other person with the consent of a candidate or his election agent. I find substance in the argument. In the circumstances, in my opinion, it is not necessary to go deeper into the allegations made at para 4, at this stage of the proceedings. Besides I find that the particulars contained in para 4 are not so insufficient as to dismiss the petition. 7. Considering the contents of the application filed, I find substance in the submission of Mr. Kotwal that it is a frivolous application filed with the sole purpose of delaying the trial of the petition. Hence, the application is dismissed with costs. The costs to be costs in cause. (Smt. R.P. SondurBaldota, J.)