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CASE NO.: Appeal (civil)  1833-1834 of 2003

PETITIONER: Regu Mahesh @ Regu Maheswar Rao                  

RESPONDENT: Rajendra Pratap Bhanj Dev and Anr.                       

DATE OF JUDGMENT: 30/10/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       In these appeals under Section 116A of the Representation of the  People Act, 1951 (for short ’the Act’) challenge is made to judgment and  order dated 27.12.2002 passed by the Andhra Pradesh High Court  dismissing the election petition filed by the appellant, by accepting  prayers made by the respondent no.1 in that regard.  As the issues  involved are pristinely legal, reference to the factual scenario briefly  would suffice.   

       Election was held to Andhra Pradesh Legislative Assembly on  11.9.1999.  The controversy in the present appeal relates to 10 Saluru  (ST) Legislative Assembly Constituency which is reserved for members of  the Scheduled Tribe.  Respondent no.1 filed his nomination claiming to  be a member of Scheduled Tribe.  His nomination was accepted and  objections to his candidature were rejected. Nominations of some  candidates were also rejected.  Respondent no.1 after poll was declared  elected in the election. The appellant filed election petition under  Sections 5 and 100(1)(c) and (d)(i) of the Act before the High Court on  19.11.1999. Primary stand taken in the election petition appears to be  that the claim of respondent no.1 that he is a member of Scheduled Tribe  is not correct.  Application was filed by present respondent no.1 under  Order VI Rule 16 and Order VII Rule 11 read with Section 151 of the Code  of Civil Procedure, 1908 (for short ’the CPC’) and Section 86 of the Act  praying for rejection of the election petition on the ground that locus  of the petitioner was not established, no cause of action was disclosed  and affidavit accompanying the petition was not in the prescribed form,  verification done and the affidavit filed did not conform to the  requirements as laid down in the statute in regard to alleged corrupt  practice and, therefore, the same was misconceived and was liable to be  rejected. Appellant filed his response to the application.   On consideration of the rival stands the High Court came to hold  that though essentially there was no definite allegation of corrupt  practices, yet allegations that somebody played fraud and has approached  the electorate claiming that he belongs to Scheduled Tribe and get  selected are similar to, if not higher in gravity than allegations as to  corrupt practices.  The allegations are to be treated at par with those  relating to corrupt practices. That being so it was held that the  affidavit was not in the proper form and that election petition was not  maintainable, as material facts were not pleaded, and merely some  unreliable and improper averments were made and that required rejection  of the petition. It was observed that the verification as required to be  done in terms of Order VI Rule 15 CPC were not complied with.  The

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verification was extremely vague and it was not stated as to what was  the source of information on which pleadings were based and which part  really was on the basis of personal knowledge and information was also  not indicated.  It was additionally noted that the petitioner was very  casual in filing the election petition; even the district to which the  election petitioner claimed to belong was described differently in the  election petition.  In conclusion it was noted by the High Court as  follows:

(a)     The Election Petition does not disclose a valid  cause of action; (b)     It contains several paragraphs which do not fit  into an Election Petition filed under Sections 5 and  100(1)(d)(i) of the Act; (c)     There does not exist any valid verification of  the pleadings; (d)     The affidavit filed by the petitioner along with  the Election Petition does not conform to the Form  prescribed (Form No.25) under Rule 94-A of the Conduct  of Election Rules, 1961 (in short ’the Rules’).

       In support of the appeals, learned senior counsel for the  appellant submitted that the insistence on affidavit in a particular  form is not correct as there was no allegation of corrupt practice and,  therefore, an affidavit envisaged in relations to such allegations is  not required. Since the respondent no.1 committed fraud on the  constituency and the constituents by claiming to be member of Schedule  Tribe, and requisite information was given the election petition should  not have been dismissed. Finally the deficiencies, if any, in the  verification and affidavit are of curable nature and the High Court  should have granted an opportunity to cure the defects.

The petition was not one which could be rejected in terms of  Section 86(1) of the Act. The said provision empowers the High Court to  dismiss the election petition which does not comply with the provisions  of Section 81 or Section 82 or Section 117 of the Act. None of these  provisions have application to the facts of the case.

In response, learned senior counsel for the respondent no.1  submitted that the election petition is extremely vague, the appellant  nowhere stated that he was an elector, it was not specifically indicated  in the verification as to which part of the petition was based on  personal knowledge and which part also based on information and the  source of information if any. The petition which does not contain a  proper verification is not an election petition in terms of Section  83(1) of the Act. There was no cause of action indicated. The pleadings  clearly show allegations of corrupt practices in terms of Section 123  (3).  Particular reference is made to paragraph 8 of the petition which  according to him is definite allegation of appealing to the electorate  on the ground of caste.

       Respective stands need careful consideration. Before we deal with  the basic issues, it would be appropriate to quote few provisions from  the Act:

       "Section 81- Presentation of Petitions- (1) An  election petition calling in question any election  may be presented on one or more of the grounds  specified in sub-section (1) of Section 100 and  Section 101 to the High Court by any candidate at  such election or any elector within forty-five days  from, but not earlier than the date of election of  the returned candidate or if there are more than one  returned candidate at the election and dates of their  election are different, the later of those two dates.

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       Explanation- In this sub-section, "elector" means a  person who was entitled to vote at the election to  which the election petition relates, whether he has  voted at such election or not.         (2)     x       x       x       x       x         (3)     Every election petition shall be accompanied by  as many copies thereof as there are respondents  mentioned in the petition and every such copy shall  be attested by the petitioner under his own signature  to be a true copy of the petition.  

       Section 83-Contents of petition- (1) An election  petition-         (a)     shall contain a concise statement of  the material facts on which the petitioner  relies;         (b)     shall set forth full particulars of  any corrupt practice that the petitioner  alleged 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)     shall be signed by the petitioner and  verified in the manner laid down in the  Code of Civil Procedure, 1908 (5 of 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 the prescribed form 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.  

       Section 86- Trial of election petitions- (1) The High  Court shall dismiss an election petition which does  not comply with the provisions of Section 81 or  Section 82 or Section 117.         Explanation- An order of the High Court dismissing an  election petition under this sub-section shall be  deemed to be an order made under clause (a) of  Section 98.         (2)     As soon as may be after an election petition  has been presented to the High Court, it shall be  referred to the Judge or one of the Judges who has or  have been assigned by the Chief Justice for the trial  of election petitions under sub-section (2) of  Section 80A.         (3)     Where more election petitions than one are  presented to the High Court in respect of the same  election, all of them shall be referred for trial to  the same Judge who may, in his discretion, try them  separately or in one or more groups.         (4)     Any candidate not already a respondent shall,  upon application made by him to the High Court within  fourteen days from the date of commencement of the  trial and subject to any order as to security for  costs which may be made by the High Court, be  entitled to be joined as a respondent.         Explanation:- For the purposes of this sub-section  and of Section 97, the trial of a petition shall be  deemed to commence on the date fixed for the

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respondents to appear before the High Court and  answer the claim or claims made in the petition.         (5)     The High Court may, upon such terms as to costs  and otherwise as it may deem fit, allow the  particulars of any corrupt practice alleged in the  petition to be amended or amplified in such manner as  may in its opinion be necessary for ensuring a fair  and effective trial of the petition, but shall not  allow any amendment of the petition which will have  the effect of introducing particulars of a corrupt  practice not previously alleged in the petition.  

       (6)     The trial of an election petition shall, so far  as is practicable consistently with the interests of  justice in respect of the trial, be continued from  day to day until its conclusion, unless the High  Court finds the adjournment of the trial beyond the  following day to be necessary for reasons to be  recorded.          (7)     Every election petition shall be tried as  expeditiously as possible and endeavour shall be made  to conclude the trial within six months from the date  on which the election petition is presented to the  High Court for trial.                   Section 123(3)- The appeal by a candidate or his  agent or by any other person with the consent of a  candidate or his election agent to vote or refrain  from voting for any person on the ground of his  religion, race, caste, community or language or the  use of, or appeal to religious symbols or the use of,  or appeal to, national symbols, such as the national  flag or the national emblem, for the furtherance of  the prospects of the election of that candidate or  for prejudicially affecting the election of any  candidate:                 Provided that no symbol allotted under this Act  to a candidate shall be deemed to be a religious  symbol or a national symbol for the purposes of this  clause."           What is "corrupt practice" is set out in Section 123. In terms of  Section 83(b) wherever corrupt practice is alleged, full particulars of  such practice alleged including a full statement as possible of names of  the parties alleged to have committed corrupt practice and the date and  place of commission of such practice has to be indicated.  Though  allegation of fraud etc. in obtaining false caste certificate have  serious implications, under the Act and particularly as the language of  Section 123(3) specifies and enumerates they do not per se constitute  corrupt practice. The fact that a candidate obtains a certificate that  he belonged to and is a member of the Scheduled Caste/Tribe to contest  as one belonging to such caste/Tribe, essential and necessary for  contesting as a candidate in a Reserved Constituency, at any rate,  cannot amount to an appeal to vote or refrain from voting on ground of  his caste/Tribe for the reason that what was obligated by the statute  upon any one to be entitled to contest in such a reserved constituency  cannot become condemnable as "corrupt practice". To attract the vice of  the said provisions as amounting to "corrupt practice", independent  appeal or canvassing for votes by the candidate or his agent or by  another person with the consent of the candidate or the election agent  for the furtherance of the prospects of the election of that candidate  or for prejudicially affecting the election of any candidate is an  essential ingredient. Therefore, the provision requiring an affidavit in  the prescribed form (Form-94) may not strictly have any application. But  that is not the omega. As Section 83(c) itself indicates, the petition

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shall be signed by the petitioner and verified in the manner laid down  in CPC for verification of facts.  Order VI Rule 15 deals with  verification of pleadings and reads as follows:

"Verification of pleadings â\200\223 (1) Save as otherwise  provided by any law for the time being in force,  every pleading shall be verified at the foot by the  party or by one of the parties pleading or by some  other person proved to the satisfaction of the court  to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference  to the numbered paragraphs of the pleadings, what he  verifies of his own knowledge and what he verifies  upon information received and believed to be true.

(3)     The verification shall be signed by the person  making it and shall state the date on which and the  place at which it was signed."    

       As sub-rule (2) of Rule 15 prescribes that a person making a  verification is required to specify by reference to the numbers of  paragraphs of the pleadings what he believes on his own knowledge, and  what he reveals upon information received and believed to be true.  This  admittedly has not been done in the present case.

       In F.A.Sapa and Ors. v. Singora and Ors. (1991 (3) SCC 375) a  three-Judge Bench of this Court specifically dealt with an issue  concerning defects in the verification of an election petition as well  as of defects in the affidavit accompanying an election petition wherein  allegations of corrupt practice are made. After considering the  provisions of Sections 83 and 86 of the Act, as also the requirements of  Form 25 prescribed by Rule 94-A of the Rules and relevant provisions of  the CPC, it was held: (SCC pp.403-04, para 28)

       "28. From the text of the relevant provisions  of the R.P. Act, Rule 94-A and Form 25 as well as  Order 6 Rule 15 and Order 19 Rule 3 of the Code and  the resume of the case-law discussed above it clearly  emerges (i) a defect in the verification, if any, can  be cured (ii) it is not essential that the  verification clause at the foot of the petition or  the affidavit accompanying the same should disclose  the grounds or sources of information in regard to  the averments or allegations which are based on  information believed to be true (iii) if the  respondent desires better particulars in regard to  such averments or allegations, he may call for the  same in which case the petitioner may be required to  supply the same and (iv) the defect in the affidavit  in the prescribed Form 25 can be cured..."

       This judgment was followed by a Division Bench of this Court in  H.D. Revanna v. G. Puttaswamy Gowda (1999 (2) SCC 217) and by a three- Judge Bench in Dr. Vijay Laxmi Sadho v. Jagdish (2001 (2) SCC 247)                        It is, therefore, a settled position in law that defect in  verification or an affidavit is curable. But further question is what  happens when the defect is not cured.  There is gulf of difference  between a curable defect and a defect continuing in the verification  affidavit without any effort being made to cure the defect.                     

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       In F.A. Sapa’s case (supra) it was held that even though  ordinarily a defective verification can be cured and the failure to  disclose the grounds or sources of information may not be fatal, failure  to place them on record with promptitude may lead the Court in a given  case to doubt the veracity of the evidence ultimately tendered.     

In R.P. Moidutty v. P.T. Kunju Mohammad and Another (2000 (1) SCC  481) it was, inter alia, held as follows:                  "All the averments made in paras 1 to 17 of the  petition have been stated to be true to the personal  knowledge of the petitioner and in the next breath  the very same averments have been stated to be based  on the information of the petitioner and believed by  him to be true. The source of information is not  disclosed. As observed by this Court in Singora’s  case (supra) the object of requiring verification of  an election petition is to clearly fix the  responsibility for the averments and allegations in  the petition on the person signing the verification  and, at the same time, discouraging wild and  irresponsible allegations unsupported by facts.  However, the defect of verification is not fatal to  the petition, it can be cured (See Murarka Radhey  Shyam Ram Kumar v. Roop Singh Rathore (AIR 1964 SC  1545 and A.S. Subbaraj v. M. Muthiah (5 ELR 21). In  the present case the defect in verification was  pointed out by raising a plea in that regard in the  written statement. The objection was pressed and  pursued by arguing the same before the Court.  However, the petitioner persisted in pursuing the  petition without proper verification which the  petitioner should not have been permitted to do. In  our opinion, unless the defect in verification was  rectified, the petition could not have been tried."

                        (Underlined for emphasis)  

       The case at hand has great similarity with the decision in  R.P.Moidutty’s case (supra). Not only defects in the  verification/affidavit were pointed out, but they were pressed into  service seeking dismissal of the election petition. The appellant stated  in his reply that he was filing separate petition with permission for  leave of the High Court for amending the verification. But that was not  done and the appellant continued to stick to his stand that since  corrupt practice was not alleged, there is no need for making any  amendment.  The importance of verification has been noted by this Court  in several decisions.  In Virendra Kumar Saklecha v. Jagjiwan and Ors.  (1972(1) SCC 826) it was noted as under:

"The importance of setting out the source of  information in affidavits came up for consideration  before this Court from time to time. One of the  earliest decisions is State of Bombay v. Purushottam  Jog Naik (AIR 1952 SC 317) where this Court endorsed  the decision of the Calcutta High Court in Padmadbati  Dasi v. Rasik Lal Dhar ( (ILR) 37 Cal. 259) and held  that the sources of information should be clearly  disclosed. Again in Barium Chemicals Ltd. and Anr. v.  Company Law Board and Ors. (AIR 1967 SC 295) this  Court deprecated slip shod verifications in an  affidavit and re-iterated the ruling of this Court in  Bombay’s case (supra) that verification should

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invariably be modeled on the lines of Order 19, Rule  3 of the Code ’Whether the Code applies in terms or  not’. Again in A.K.K. Nambiar v. Union of India and  Anr. (1969 (3) SCC 864), this Court said that the  importance of verification is to test the genuineness  and authenticity of allegations and also to make the  deponent responsible for allegations.

       The real importance of setting out the sources  of information at the time of the presentation of the  petition is to give the other side notice of the  contemporaneous evidence on which the election  petition is based. That will give an opportunity to  the other side to test the genuineness and veracity  of the source of information. The other point of view  is that the election petition will not be able to  make any departure from the sources or grounds, if  there is any embellishment of the case it will be  discovered".  

       The Constitution Bench in State of Bombay v. Purushotham (AIR 1952  SC 317) noted as follows:

       "The verification however states that  everything was true to the best of his information  and belief. We point this out as slipshod  verifications of this type might well in a given case  lead to a rejection of the affidavit. Verification  should invariably be modeled on the lines of Order  19, Rule 3 of the Civil Procedure Code, whether the  Code applies in terms or not. And when the matter  deposed to is not based on personal knowledge the  source of information should be clearly disclosed. We  draw attention to the remarks of Jenkins C.J. and  Woodroffe, J, in Padmabati Dasi v. Rasik Lal Dhar (37  Cal. 259) and endorse the learned Judges’  observations".          

       An election petition has definite role in the law relating to  election of representatives of the people.

       The casual approach of the appellant is not only visible from the  manner in which verification was done, but also from the fact that he  has mentioned two different districts to which he claims to be  belonging. The explanation that the same was given by mistake is too  shallow when considered in the background that he is stated to be a  practicing advocate. An advocate is supposed to know the importance of  verification and the desirability of making statement of correct facts  in any petition and more in case of an election petition. An election  petition is intended to bring to focus any illegality attached to an  election.  It essentially and basically puts a question mark on the  purity of election, casts doubt on fairness thereof and seeks a  declaration that mandate of people has been obtained by questionable  means. In a democracy the mandate has sacrosanctity. It is to be  respected and not lightly interfered with.  When it is contended that  the purity of electoral process has been polluted, weighty reasons must  be shown and established.  The onus on the election petitioner is heavy  as he has to substantiate his case by making out a clear case for  interference both in the pleadings and in the trial.  Any casual,  negligent or cavalier approach in such serious and sensitive matter  involving great public importance cannot be countenanced or glossed over  too liberally as for fun.           

       Above being the position, we find no reason to interfere with the

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impugned judgment dismissing the election petition; though we have not  approved or affirmed some of the reasons for conclusion arrived at by  the High Court, as detailed above. The appeals fail and are dismissed.   No costs.