Case: F.A. Sapa Etc. Etc Vs. Singora And Ors. Etc

We are afraid this criticism is not wholly correct because the High Court has also observed that `no specific omission or deviation in the copy from the original was pointed out nor was it shown that the respondents were misled on that account. We have also closely scrutinised the application made by the returned candidate in the High Court and except for a general allegation that the annexure served along with the petition was not a true copy, no specific allegation is found. However, in the special leave petition filed in this Court question No. (vi) states that certain pages were missing from the copy of the annexure served on the returned candidate. Then in paragraph 11 it is averred that pages 15 and 16 of Annexure II were missing. Since no such specific allegation was made in the application filed by the returned candidate, the High Court had no occasion to go into this allegation and to ascertain if the missing pages contained material forming an integral part of the election petition. We would not like to embark upon an inquiry in this behalf and would leave it to the appellants to agitate the question before the High Court. We would request the High Court to examine the contention on merits, if raised, and answer the same in accordance with law. Although we have come to the conclusion that the defect in verification is not fatal and can be cured, no attempt has been made by the election petitioners to cure the same nor has the High Court directed the petitioners to do so. By way of a sample our attention was draw n to the election petition No. 7 of 1989 which has given rise to Civil Appeal No. 179 of 1991. The said petition had 47 paragraphs besides the prayer clause. The verification clause shows that paragraphs 1, 2, 4, 5, 18, 19, 28, 35, 30, 33, 36 , 38, 41 to 47 of the election petition are on knowledge whereas paragraphs 7 to 15, 20, to 24 , 26, 27, 29, 32, 34, 37, 40 and 41 are on information received and believed to be true. It will be seen from the above that paragraphs 3, 6, 16, 17, 25, 3 1 and 39 are not verified at all. It was submitted by counsel for the appellants that paragraph 3 contained vital allegations regarding corrupt practice and since that paragraph has not been verified at all, the appellant is likely to be handicapped at the trial. It was contended that such was the position in as many as six petitions if not more. Further some of the paragraphs, e.g., 41 are verified under both heads of the verification clause, thereby causing confusion. In the affidavit sworn in compliance of the proviso to section 83(1) it is stated that particulars and details of corrupt practice are contained in paragraphs 4 to 40 of the election petition. Then the petitioner states that what he has alleged by way of corrupt practice in the election petition is correct `to the best of my knowledge and to the information received by e and believed by me to be true. It is thus not clear which allegation of corrupt practice is based on his knowledge and which information he believes to be true. Besides when this affirmation is compared with the verification clause of the election petition, the confusion is worst confounded. Similar is the case with the verification of the annexures.There, therefore, considerable force in the submission of the learned counsel for the appellants that even if the High Court concluded that the defect in verification/affirmation was not fatal, the High Court ought to have directed the petitioners to cure the defects within the time stipulated by it so that the appellants would know the exact position before the trial and would not be taken by surprise. We think the High Court committed an error in failing to give appropriate directions in the matter. More or less similar defects are also found in the verification/affirmation clause in the other election petitions/affidavits. We would, therefore, request the High Court 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. The High Court has applied the correct test while permitting the amendments. The High Court has rightly pointed out that the power conferred by section 86(5) cannot be exercised to allow and amendment which will have the effect of introducing a corrupt practice not previously alleged in the 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 86(5) of the R.P. Act. It was on this correct understanding of the legal position that the High Court scrutinised the amendment application. It was not shown at the hearing of these appeals that any particular averment introduced by way of an amendment had the effect of introducing a totally new allegation of corrupt practice not previously pleaded in the election petitions . Yet, if the appellants can point out any inconsistency, the High Court will remove the same.These were all the submissions made before us. We have dealt with them in extenso and have clarified the legal position. We have suggested certain modifications in the impugned orders and have indicated the course of action to be adopted by the High Court. We need not recapitulate the modifications and the future course of action. The impugned order of the High Court in each petition will and modified to the extent it is inconsistent with the legal position explained hereinabove. The High Court will pass appropriate orders to remove the inconsistencies.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The High Court has applied the correct test while permitting the amendments. The High Court has rightly pointed out that the power conferred by section 86(5) cannot be exercised to allow and amendment which will have the effect of introducing a corrupt practice not previously alleged in the 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 86(5) of the R.P. Act. It was on this correct understanding of the legal position that the High Court scrutinised the amendment application. It was not shown at the hearing of these appeals that any particular averment introduced by way of an amendment had the effect of introducing a totally new allegation of corrupt practice not previously pleaded in the election petitions . Yet, if the appellants can point out any inconsistency, the High Court will remove the same.These were all the submissions made before us. We have dealt with them in extenso and have clarified the legal position. We have suggested certain modifications in the impugned orders and have indicated the course of action to be adopted by the High Court. We need not recapitulate the modifications and the future course of action. The impugned order of the High Court in each petition will and modified to the extent it is inconsistent with the legal position explained hereinabove. The High Court will pass appropriate orders to remove thea plain reading of this provision it is manifest that it is incumbent on the petitioner to set forth `full particulars of any corrupt he alleges against the returned candidate. This should be accompanied by `as full a statement as is possible of the names of those who have indulged in such corrupt practice and the date and place of the commission thereof. Clause (c) of(1) enjoins that the election petition shall not only be signed but also verified in the manner laid down in the Code. The proviso then prescribes an additional safeguard in cases where corrupt practice is alleged, as in the present case, namely, that the election petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. This provision reflects the anxiety of t he legislature to ensure that allegations of corrupt practice are not lightly made; not only that but it ensures that the responsibility thereof is fixed on the petitioner himself by asking him to swear an affidavit in support thereof. `Prescribed says Section 2(g) means prescribed by rules made under the said Act. Form 25 is the form of the affidavit prescribed by Rule 94A of the Rules. Next subsection (2) of this section provides that any schedule or annexure to the petition shall also be signed and verified in the same manner as the petition itself. Section 84 sets out what relief the petitioner can claim in such an election petition. That brings us to chapter III entitled `Trial of election petitions. Only two sections from this chapter require to be noticed. The first is section 86, the relevant part whereof reads:``86. Trial of electionThe High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or sectionmode for calling in question the election of a returned candidate is by presenting an election petition `in accordance with the provisions of this Part (Section 80). Such a petition has to be presented within 45 days from the date of election of the returned candidate.(3) of section 81 provides that such an election petition must be accompanied by as many copies thereof as there as there are respondents and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. This provision which explains how a copy of an election petition shall be attested, emphasises that such attestation will be under the petitioners own signature. What the contents of an election petition shall be is enumerated in Section 83. It must contain a concise statement of material facts on which the petitioner relies but where a petition is founded on the allegation of corrupt practice, it shall set forth full particulars of the corrupt practice alleged by the petitioner, including as full a statement as possible of the names of the parties who have indulged in such corrupt practice together with the date and place of the commission thereof. Such an election petition as well as every schedule or annexure thereto must be signed by the petitioner and verified in the manner provided by the Code for the verification of pleadings. But, in cases where the petitioner has alleged corrupt practice that is not enough, the proviso demands that the petition shall be accompanied by an affidavit in the prescribed from supporting the allegation of such corrupt practice and the particulars thereof. Therefore, an election petition in which corrupt practice is alleged stands on a different footing from an election petition which does not carry such an allegation. The legislature has taken special care to ensure that ordinary verification will not suffice, it must be supported by an affidavit in the prescribed form.Form 25 has been prescribed for such an affidavit under rule 91A of the Rules. That rule says that the affidavit referred to in the proviso to Section 83(1) shall be in Form 25. The form of the affidavit requires the deponent to state which of the paragraphs of the election petition in which allegations of corrupt practice are made are based on his own knowledge and which are based on this information. Section 86(1) then 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 R.P. Act. The language of thisis quite imperative and commands the High Court, in no uncertain terms, to dismiss an election petition which does not comply with the requirements section 81 or section 82. This mandate is, however, qualified by(5) referred to earlier.Election of a returned candid ate 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.