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

Special granted in all SLPs. Mizoram acquired Statehood on February 20, 1987. At the general election held on January 21, 1989, the respondents of this batch of appeals con tested the State Assembly elections as candidates of the Mizo National Front (MNF) from different constituencies. The results of the election were declared on January 23, 1989. They lost to candidates fielded by the Indian National Congress (I). The unsuccessful MNF mainly on the ground that they had indulged in and were guilty of corrupt practices. As many as fifteen such election petitions came to be filed in the Gauhati High Court on one single day, March 9, 1989. Although fifteen petitions were filed, one Congress (I) candidate had succeeded from two constituencies and one candidate belonged to the Mizo National Front (Democratic) Party. On service of notice of the filing of the election petitions, the returned candidates entered appearance and raised certain preliminary objections regarding the maintainability of each petition. On the basis thereof two preliminary issues were raised for consideration. The returned candidates moved for striking off the pleadings.Thereupon the original petitioners applied for amendment of their election petitions which was strongly opposed by the returned candidates. The preliminary objections, the applications for striking off the pleadings and the amendment applications were heard together.The two preliminary issues raised by the learned Judge hearing the election petitions were (i) whether the election petitions were in conformity with the requirements of Sections 81 and 83 of the Representation of the People Act, 1951 (R.P. Act), and the Rules framed there under by the Gauhati High Court and (ii) whether rule 1 and the other related rules and notes thereto enabling the filing of the Election Petition before the Stamp Reporter assigned to the election court by the learned Chief Justice were ultravires Article 329 of the Constitution and Section 169 read with Sections 80, 80A and 81 of the R.P. Act. so far as the first objection was concerned, the returned candidates contended that the election petitions wereand could not, therefore, be treated as election petitions as contemplated by law, the copies of petitions served on the returned candidates were not attested to be true copies of the original petitions as required by Section 81(3), the copies served on them with the annexures were not true copies of the original; the election petitions were not signed and verified in the manner laid down by the Code of Civil Procedure inasmuch as the source of information had not been disclosed in the verification or the affidavit in Form 25 as required by rule 94A of the Conduct of Election Rules, 1961 (the Rule) and no schedule of material particulars of corrupt practice had been annexed to the affidavit purporting to be under Form 25. In regard to the second objection the contention was that the presentation of the election petitions before the Stamp Reporter was inconsistent with Sections 80, 80A and 81 of the R.P. Act and Article 329 of the Constitution inasmuch as the law requires that an election petition shall be present ed to the High Court. The learned Judge in the High Court overruled both the preliminary objections holding, in the case of the first, that there was substantial compliance with the requirements of the relevant provisions and on the second point he ruled that the presentation of the election petition to the Stamp Reporter appointed or authorised under the Rules was presentation in accordance with the Rules and the same did not conflict with Article 329(b) of the Constitution. Thus both the preliminary objections stood rejected.The returned candidates had applied under Order VII Rule 16 of the Code of Civil Procedure. (the Code), for striking out certain averments from the memo of the election petitions on the ground of failure to disclose a cause of action. A prayer was also made for dismissal of the petitions on that ground. The learned Judge in the High Court rejected this contention observing that under the election law the High Court is empowered to permit amendment of the election petition with a view to amplifying the averments bearing on the question of corrupt practice which it considers necessary for ensuring a fair and effective trial of the election dispute. In this view of the matter the learned Judge examined the averments of each paragraph in detail and directed the deletion or modification of certain paragraphs, the averments wherein were vague of benefit of necessary particulars. He directed that paragraphs 6, 9, 12, 13, 21, 22, 38 and 40 shall stand deleted whereas paragraphs 3, 4, 5, 8, 14 to 20, 25 to 27, 30 to 37, 39 and 45 of the petition giving rise to CA No. 179 of 1991 shall stand modified. All allegations against the election agent or other agents of the returned candidates were ordered to be struck off. In other words he directed that the allegations of corrupt practice shall be confined to the returned candidates only. Similar orders were passed in the other electi on petitions subject to the variation in number of paragraphs, etc. For convenience we will take the pleadings of C.A. No. 179/91 as representative since we are told that the averments in each election petition are identical except for some variations here and there. Thus the learned Judge rejected the preliminary objections and partly allowed the application for striking off the averments in the election petitions and partly permitted certain amendments to the election petitions. It is against the said order that the returned candidates have approached this Court under Article 136 of the Constitution.At the time of admission of these appeals two questions were formulated for examination and we will confine ourselves to them in the course of this Judgment. These two questions are as under:(1)``The Election Petitions are liable to be dismissed in limine under Section 83 of the Representation of the People Act, 1951 as the affidavit filed by the Election Petitioner in each case is not strictly in conformity with Form 25, inasmuch as the verification as regards the averments based on knowledge and the averments based on information has not been made separately as required by the said Form prescribed under Ruleof the Representation of the People Rules, 1951; and(II) The copies of the Election petitions served on the petitioners herein (the respondents in the Election Petitions) not being true copies of the Election Petitions , the Election Petitions w ere not maintainable and were liable to be dismissed in limine in view of Section 81 read with Section 86 of the Representation of the People Act, 1951."The appellants herein are the returned candidates. Elect ion Petitions were filed against them challenging their election on more or less identical grounds. Since the Election Petitions are stated to be based on a single master copy, we would refer to the averments of E.P. No. 7 of 1989 filed against the appellant F. Sapa of Civil Appeal No. 179 of 1991.On a perusal of the cause title of the petition it becomes evident that the name of the constituency and the particulars of the petitioner and the respondents are left blank and filled in hand. The petition is stated to be under Sections 80 and 81 of the R.P. Act. Paragraph 1 furnishes the dates concerning the election programme and the particulars regarding the petitioner. In paragraph 2 the particulars regarding the total votes, votes pulled by each candidate, etc., have been set out. While the various heads are typed, the figures are hand written. The various typed heads would show that particulars up to five respondents figure. That is why the columns regarding three respondents have been filled in while serial Nos. 6 and 7 meant for respondents 4 and 5 have been left blank. This supports the appellants say that one master copy of the election petition were prepared and thereafter particular s in respect of each petitioner were filled in hand. In paragraph 3 it is averred that the M.P.C.C. (I) had with the consent and knowledge of the returned candidate conceived and executed the entire election campaign of the returned candidate between December 31, 1988 and January 19, 1989. So also the returned candidate had on his own and with the help of M.P.C.C. (I), its functionaries and workers organised and addressed public meetings and undertook door to door canvassing to promote his chances for success. Thereafter the list of towns and villages where he held such meetings, etc., are written in hand in the blank space left for that purpose. This is also indicative of that fact that a master copy was prepared to challenge all the fifteen elections. In paragraphs 4 and 5 the details regarding the campaign literature or material, such as stickers,pamphlets, press publications etc., have been furnished. These have been produced with their English translations at Annexures I to VI(a). It is averred that this campaign literature was widely distributed throughout the length and breadth of the entire constituency between the aforestated dates and was also air dropped by helicopter on January 20, 1989 throughout the constituency. These were also read out and explained to the voters in the constituency during the aforesaid period. After making this averment in paragraph 6, the petitioner proceeds to add in paragraph 7 as under:``That by publishing printing, circulating, distributing and by reading out and explaining to the audiences including the electors and their family members throughout the length and breadth of the constituency as indicated above, Respondent No. 1 (returned candidate) has been guilty of corrupt practices under Section 123............."The details in regard to the M.P.C.C. (I) s Election Manifesto produced at Annexure I (English translation Annexure 1A) have been set out in paragraphs 8 to 22 along with comments, inferences, etc. In paragraph 23 there is a mention of Annexure II which is merely a repeat of Annexure I dealt with in the aforesaid paragraphs 8 to 22. In paragraph 24 reference is to Annexure III which is merely the summary of the Election Manifesto dealt with in the preceding paragraphs. Paragraphs 25 to 29 refer to thend submission thereon. The next two paragraphs 30 and 31 contain reference is to ah appeals to the religious sentiments of those following the Christian faith and states: ``Let us vote Mizoram Congress(i) for Mizos and Christians"which, it is contended, constitutes corrupt practice. Then come paragraphs 32 to 40 which relate to ad ``what our vote will bring about" and then proceeds to add ``Christian Government" and ``promise of visit of the holy land (Israel)". Then, after referring to the activities aforestated, it is alleged in paragraph 41 that this has materially affected the election prospects of the other contesting candidates also.Paragraphs 42, 43 and 44 refer to Press publications in `India Today, `Statesman and the Assam Tribune and Sentinals. Paragraph 45 enumerates the grounds on which the election of the returned candidate is liable to be set aside. Paragraphs 45A to 47 deal with sundry items. This in brief is the nature of the Election Petition. The petition is verified as under:``I. SANGURA the petitioner herein verify that the facts mentioned in paragraphs 1, 2, 4, 5, 18, 19, 28, 35, 30, 33, 36, 38, 41, 42, 43, 44, 45, 45A, 46 &47 are true to my knowledge and facts mentioned in paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 20, 21, 22, 23, 24, 26, 27, 29, 32, 34, 3 35, 37, 40 &41 are based on information received and believed to be true. Grounds A, B &C and the legal submissions are based on legal advice. Verified a t Guwahati on 7th March, 1989."The verification is typed but the petitioners name and the paragraph numbers at both the places are hand written. It will be seen from the above verification clause that paragraphs 3, 16, 17, 25, 31 &39 have not been verified at all either as true to knowledge or on information and/or belief whereas paragraph 41 is mentioned at both the places. It may also be noted at this stage that in regard to the second part of the verification based on `information received and believed to be true it is not clarified which of the paragraphs are based on `information received (nor is the source of information disclosed) and which are founded on `believed to be true.Appended to the petition is the petitioners typed affidavit, which runs into six paragraphs. The name of the petitioner, his age and address appear to be filled in on a typewriter. In paragraph 2 of the affidavit it is stated that the petitioner (unsuccessful candid ate) has alleged several corrupt practices on the part of the Respondent No. 1 (the returned candidate), his election agent and other agents and virtually the same phrase is repeated in paragraph 3. The in paragraph 4 it is stated: `for brevity the details of the corrupt practices alleged by me which have been given in the Election Petition and are not being repeated in this affidavit and the same may be treated and read as part of this affidavit and then the deponent proceeds to add `The said particulars and details of corrupt practices and contained in paragraphs 4 to 40 of the said election petition. The word and figures `4 to 40 are written in hand after scoring out the words and figures `7 to 47. Then comes paragraph 5 which may be reproduced:``That I solemnly state and affirm that all that has been stated in the election petition by way of corrupt practices as a correct to the best of my knowledge and to the information received by me and believed by me to be true".

Reasoning: 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.