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CASE NO.: Appeal (civil) 2720  of 2000

PETITIONER: DR.  VIJAY LAXMI SADHO

       Vs.

RESPONDENT: JAGDISH

DATE OF JUDGMENT:       05/01/2001

BENCH: S.V.Patil , R.C.Lahoti

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     This  appeal  by special leave is directed against  an order  of  the  High  Court  of  Madhya  Pradesh  dated  4th February,  2000 rejecting applications (I.A.  Nos.   2806/99 and 5957/99) filed by the appellant, the returned candidate, seeking  rejection  of  an  electio petition  filed  by  the respondent  challenging  his  election  on  various  grounds contained in those applications.

     In  the  elections to the Madhya  Pradesh  Legislative Assembly,  held in 1998, the appellant was declared  elected from  Assembly  Constituency  No.    290,  Maheshwar.    The defeated  candidate  (Respondent herein) filed  an  election petition  challenging  his  election  n  various  ground  of commission of corrupt practices, detailed in paragraphs 5 to 17 of the election petition.  The election petition had been drawn-up  in Hindi language.  The affidavit filed in support of the election petition was also drawn up in Hindi anguage. The  main objection projected by the appellant in IA 2806/99 to  the  maintainability of the election petition  was  that since  the  affidavit  filed in support  of  allegations  of corrupt  practice was not drawn up in the manner  prescribed by  Section  83(1) of t e Representation of the People  Act, 1951  (hereinafter referred to as ’the Act’) read with  Rule 94-A (hereinafter ’the Rules’) in the prescribed form No.25, the defect was fatal and the election petition was liable to be   dismissed   under  Section  86(1)  of  t  e   Act   for non-compliance with the provisions of Section 83 of the Act. The precise objection raised in I.A.  No.5957 of 1999 was to the effect that since election petition had been drawn-up in Hindi  language and not English language the same was liable to be dismissed not having been drawn up in English language as  required  by Rule 2(b) of the Madhya Pradesh High  Court Rules  (hereinafter referred to as ’the High Court  Rules’). Both  applications were resisted by the election petitioner. Vide  order dated 4th February, 2000 a learned Single  Judge of the High Court rejected b th applications.

     Mr.   G.L.   Sanghi, learned senior counsel  appearing for  the  appellant,  submitted   that  there  was  material

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difference  between the verification of the affidavit  filed in  support of the election petition and the verification of the  election petition which rend red the election  petition defective  and thus liable to be dismissed.  Elaborating the objection, it was submitted that in the affidavit dated 11th January,  1999  filed  along with the election  petition  in paragraph  KA, the election petitioner had verifie the facts relating  to  commission  of   corrupt  practice  stated  in paragraphs  5 to 17 of the petition as true to his "personal knowledge"  but in paragraph KHA of the same affidavit,  the election  petitioner  had  verified  the  contents  of  same "information  received by him".  It was submitted that  this variation  in  verifying the same facts, both  on  "personal knowledge"    and   on     "information   received",   being self-contradictory,  rendered the affidavit as paragraphs  5 to  1  of  the  election  petition as  being  based  on  "no affidavit"  in the eye of law and such a defective affidavit could  not  be taken into account for trying allegations  of corrupt practice in an election petition and, therefore, the election petition was liable to be dismissed in limine under Section  8 of the Act.  A perusal of the record reveals that the  election petitioner had later on, (possibly to meet the objection regarding defective affidavit) filed an additional affidavit  in support of the allegations of corrupt practice verifying the facts stated in parag aphs 5 to 17 as based on his   ’personal  knowledge’  and  not   on  the   basis   of ’information   received’  from  any   other  source.    That affidavit  appears to have been taken on record.   According to  learned  counsel for the respondent on the  other  hand, none  of  the  grounds raised by the appellant in  both  the applications could warrant dismissal of an election petition under  Section  86  (1) of the Act and the High  Court  thus rightly  dismi sed both the applications.  We have given our thoughtful  consideration to the submissions made at the bar and  for what follows we are unable to persuade ourselves to agree  with  the  submissions  of learned  counsel  for  the appellant.   An election petition is liable to be  dismissed in  limine  under  Section  86(1) of the  Act  only  if  the election petition does not comply with either the provisions of  ’Section  81 or Section 82 or Section 107 of  the  Act’. The  requirement  of  filing  an affi  avit  along  with  an election  petition,  in the prescribed form, in  support  of allegations  of  corrupt  practice is contained  in  Section 83(1)  of the Act.  Thus an election petition is not  liable to  be dismissed in limine under Section 86 of the Act,  for all  ged non-compliance with provisions of Section 83(1)  of the Act or of its proviso.  What other consequences, if any, may  follow from the an allegedly ’defective’ affidavit,  is to  be  judged  at  the trial of an  election  petition  but Section 86(1) of the Ac in terms cannot be attracted to such a  case.  In F.A.  Sapa and others vs.  Singora and others : (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 el ction 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 No.25 prescribed by Rule 94-A of  the Rules  and relevant provisions of the Code of Civil rocedure , it was held :

     "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

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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 elieved 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 prescr bed Form 25 can be cured........"

     This judgment was followed by a Division Bench of this Court  in H.D.  Revanna vs.  G.  Puttaswamy Gowda and others :   (1999)  2 SCC 217.  We are in respectful agreement  with the  view expressed in F.A.  Sapa’s case (supra) and in view of  settled  law  the conclusion becomes  irresistible  that defect  in verification of an affidavit is curable and  does not  merit dismissal of an election petition n limine  under Section  86 (1) of the Act.  The learned Single Judge of the High Court was, therefore, perfectly justified in dismissing I.A.  No.2806 of 1999.

     This  now takes us to consideration of the  objections raised  in  I.A.  No.5957 of 1999 seeking dismissal  of  the election  petition on the ground that the election  petition and the affidavit filed in support thereof had been drawn-up in Hindi language and not in English language.  The argument raised in the High Court and reiterated at the Bar before us by  Mr.   Sanghi is that Rule 2(b) of the High  Court  Rules provides  that  every election petition shall be written  in English  language  and since the election peti ion filed  by the  respondent  was  written  in   Hindi  and  not  English language,   the  same  was  liable   to  be  dismissed   for non-compliance with the said rule, in limine.

     The  Madhya  Pradesh High Court has framed  Rules  for trial  of  election  petitions  under  Article  225  of  the Constitution.   Under Rule 9 thereof it is provided that the Rules  of the High Court shall apply, in so far as they  are not inconsistent with the Repre sentation of the People Act, 1951  or  the  rules, if any, made thereunder or  the  Civil Procedure  Code  in respect of all matters.  The  import  of Rule  9  (supra) was considered in Prabhu Narayan vs.   A.K. Srivastava :  (1975) 3 SCC 788 and this Court opined:

     "Moreover,  it  appears to us that the  provisions  of Rule  9 of the Madhya Pradesh High Court Rules regarding the election  petitions framed by the Madhya Pradesh High  Court by  reference  to  Rule 7 of the Madhya Pradesh  High  Court Rules  found  in Chapter III r garding affidavits cannot  be made  use of for this purpose.  The former set of rules  are made  under Article 225 of the Constitution and cannot  make any substantive law and the rules themselves on a perusal of them  would  show  that  they relate merely  to  pro  edural matters  unlike rules made under Section 122 of the Code  of Civil Procedure." (Emphasis supplied)

     Rejecting   the   preliminary     objection   to   the maintainability  of the election petition for non-compliance with  the  High  Court Rules, in Prabhu Narain’s  case  this Court held :

     "Further   more  according  to   Section  86  of   the Representation  of  People  Act only petition which  do  not comply  with  the provision of Sections 81 or 82 or 117  are

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liable  to  be  dismissed.   We,  therefore,  over-rule  the preliminary objection."

     To  appreciate the effect of non-compliance with  Rule 2(b)  of  the High Court Rules, it is appropriate to  notice some  of  the relevant statutory provisions at  this  stage. Rule 2 of the High Court Rules provides:

     "2.  Every Election petitions shall be -

     (a) typewritten or printed fairly and legibly on white foolscap  size paper of reasonable quality, one side of  the paper  only being used, leaving a quarter margin on the left and  at least 1/2 inches open space on the top and bottom of each  sheet;  (b) written in the English language, numbering separately  the  paragraph thereof;  (c) couched  in  proper language,  and  in conformity with section 81, 82 and 83  of the Representation of the People Act, 1951."

     Article 329(b) lays down:

     "329.   Bar  to  interference by courts  in  electoral matters -

     (a) ...  ...  ...

     (b)  no  election to either House of Parliament or  to the  House  or  either House of the Legislature of  a  State shall  be called in question except by an election  petition presented  to  such authority and in such manner as  may  be provided  for  by or under any l w made by  the  appropriate Legislature."

     Article 348 (1) provides :

     "348.  Language to be used in the Supreme Court and in the   High   Courts  and  for   Acts,   Bills,   etc.    (1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides-

     (a)  all proceedings in the Supreme Court and in every High Court ..............................

     shall be in the English language."

     Article 348(2) provides as follows:-

     "Notwithstanding  anything in sub-clause (a) of clause (l),  the Governor of a State may, with the previous consent of  the President, authorise the use of the Hindi  language, or  any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State:

     Provided  that  nothing in this clause shall apply  to any  judgment,  decree or order passed or made by such  High Court.

     Rules  framed  by the High Court relating to trial  of election  petitions are only procedural in nature and do not constitute  "substantive law".  Those Rules have to be  read

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alongwith  other  statutory  provisions  to  appreciate  the consequences  of non-complia nce with the High Court  Rules. Article  329(b) mandates that no election to either House of Parliament  or to either House of the State Legislature  can be  called  in question except through an election  petition presented  to  such  authority  and in such  mann  r  as  is provided  for  by or under any law made by the  legislature. Section  81  of  the Act deals with the presentation  of  an election petition while Section 82 deals with parties to the election  petition  and Section 83 with contents of  such  a petition.

     Article  348  expressly deals with the language to  be used  in the Supreme Court and the High Courts and lays down in  Article 348 (1) (a) that all proceedings in the  Supreme Court and every High Court shall be in the English language. Article 348(2) (supra ), however, carves out an exception to the above general rule.

     The  non-abstante  clause  with which  Article  348(2) opens, unmistakably shows that the Governor of a State, with the  previous consent of the President may authorize the use of  Hindi  or any other language in proceedings in the  High Court  having  its princip al seat in that State,  save  and except  that  "judgment, decree or order passed or  made  by such  High  Court",  shall  be in the  English  language  as required  by  Article 348(1).  By a Notification dated  18th September, 1971 issued by the Governor of Madhya Pradesh, in exercise  of  the powers conferred by clause (2) of  Article 348  of the Constitution of India, with the previous consent of  the  President  of  India, authorised the  use  f  Hindi language in all proceedings of the High Court other than for drawing  up decrees, orders and judgments of the High Court, subject to certain conditions.  Under the said Notification, appeals,  petitions  etc.  could thus, be presented  in  the High Cou t of Madhya Pradesh drawn-up in the Hindi language, notwithstanding  the  provisions of High Court Rules.   Rule 2(b)  of  the High Court Rules cannot be so construed as  to render  the  constitutional provisions contained in  Article 348(2)  as ’meaningless’.  ule 2(b) of the High Court  Rules has  to  be read along with the Notification issued  by  the Governor on 18th September, 1971 under Article 348(2) of the Constitution  and  when  so construed, it  follows  that  an election  petition  may  be filed in Hindi language  and  it cannot be dismissed at the threshold under Section 86 of the Act  for  alleged non-compliance with Rule 2(b) of the  High Court  Rules.   The  question whether an  election  petition drawn  up  in Hindi language is maintainable or not came  up for  consideration before a learned Single Judge of the High Court  of Madhya Pradesh in Election Petition No.  9 of 1980 titled  Devilal  s/o.   Shriram Khada  vs.   Kinkar  Narmada Prasad  and  others.  While rejecting the challenge  to  the maintainability  of the election petition drawn up in  Hindi language, it was said :-

     "Now  it is true that Rule 2(b) of the aforesaid Rules does  provide that every election petition shall be  written in  the  English  language.   But  in  the  absence  of  any provision  in  the  Act or the Rules  made  thereunder,  non compliance with Rule 2(b) of the a oresaid Rules cannot be a ground for dismissal of the petition under Section 86 of the Act."

     A  contrary  view was, however, expressed  by  another Single Judge of that High Court in Jai Bhansingh Pawaiya vs.

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Shri  Madhavrao  Scindia.  In this case it was held that  an election petition filed in Hindi language being violative of Rule  2(b)  of  the Ru es, relating to  filing  of  election petitions,  was  not  maintainable  and  was  liable  to  be dismissed  under Section 86 of the Act.  The learned  Single Judge opined :

     "The  Special  Rules framed by the High Court, in  the circumstances,  taking into account the implications arising under  Article 329(b) of the Constitution of India read with Section  80  of the Representation of the People Act,  1951, relating  to  election pet tions prescribing the manner  for presentation   of  the  election   petition   by   necessary implication  stand  clothed with such a statutory  character which  could not be deemed to have been affected by an order relating to authorization contemplated under Article 348 (2) of  the  Constitution of India so as to take away  statutory rigour of the Rules prescribing a requirement of an election petition  to  be  written  in  English  language,  numbering separately  the paragraphs thereof as provided in rule 2  of the aforesaid ules relating to election petitions."

     The  interpretation placed on rule 2 of the High Court Rules,  giving it almost primacy over Article 348(2) of  the Constitution,  in  Jai  Bhansingh’s  case  to  our  mind  is fallacious.   The learned single Judge appears to have  lost sight of the position that R les framed by the High Court in exercise  of powers under Article 225 of the Constitution of India  are  only  rules of procedure and do  not  constitute substantive  law and those rules cannot effect the import of constitutional  provisions contained in Articl 348(2) of the Constitution.   The high pedestal on which Rule 2(b) of  the High  Court  Rules has been placed in Jai Bhansingh’s  case, not  only violates clear constitutional provisions but  also introduces  a clause in Section 86 of the Act which does not xist.  The entire approach to consideration of the effect of the  notification issued under Article 348(2) appears to  be erroneous.   That apart, the defect of not fling an election petition  in  accordance with Rule 2(b) of the Rules is  not one  of the defec s which falls either under Sections 81, 82 of  117 of the Act so as to attract the rigour of Section 86 of  the  Act  as  rightly held in  Devilal’s  case  (supra). Whether  any other consequences may follow on account of the alleged  defects  would  depend  upon  ther  factors  to  be determined at the trial of the election petition but to hold that  Section  86(1)  of  the Act  would  be  attracted  for non-compliance with Rule 2(b) of the High Court Rules is not correct.  The learned Single Judge of the High Court was rig t  in  rejecting  application, I.A.  No.  5957 of  1999  and holding  that  an election petition filed by the  respondent could  not  be dismissed under Section 86(1) of the Act  for alleged  non-compliance  with  Rule 2(b) of the  High  Court Rules relating to presentati n of election petitions.

     It  appears  that the earlier judgment of the  learned Single  Judge  in Devilal’s case (supra) was brought to  the notice  of the learned Single Judge hearing Jai  Bhansingh’s case.   The  learned  Judge in the later  case  noticed  the identical  nature  of the two ca ses, but did not share  the view  of the Bench in Devilal’s case and a contrary view was expressed.   It  was  observed:   "It may  be  noticed  that although  like  cases  should  be  decided  alike  but  this principle  is  not  in  absolute   rule  nor  of   universal application.   It does admit exceptions.  Where there is  no discussion regarding applicability of the relevant statutory

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provis  ons and the decision has been reached by a Bench  in the  absence  of knowledge of a decision binding on it or  a statute  and  in either case it is shown that had the  Court had  the  said  material before it, it must have  reached  a contrary  decision,  it is clear y a case of a decision  per incuriam  which has no binding effect.  This principle  does not  extend to a case where if different arguments had  been placed  before  the said Bench or a different  material  had been  placed  before it, it might have reached a  diffe  ent conclusion." (Emphasis supplied)

     We  are unable to appreciate as to how the judgment in Devilal’s  case  could  be styled as "per  incuriam".   That apart,  the  ground on which the judgment in Devilal’s  case (supra) has been distinguished does not stand to reason.  We have   not  been  able  to   appreciate  the  logic  of  the observations  of the learned Single Judge in Devilal’s  case (supra)  that  the cont oversy in Jai Bhansingh’s  case  was "quite  different" and not confined to the applicability  of section 86 of the Act alone.  A reference to paragraph 41 of the judgment in Jai Bhansingh’s case dismissing the election petition   in  limine,  brings  out   the  fal  acy  of  the "difference",  as perceived by the learned Single Judge.  It was observed :

     "In  view  of what has been indicated  hereinabove,  I have  no  hesitation  in holding that the  present  election petition  as framed is not at all entertainable.  Since even the  limitation  for  filing a fresh  election  petition  in accordance with law and in the anner prescribed has also run out,  it  is  not  possible or  permissible  to  permit  the petitioner  to remove the defect in the presentation of  the election  petition,  the  present election petition  in  the circumstances is not at all triable."

     (Emphasis supplied)

     How  could it then be said that the controversy in the two  cases was, "different" is not understandable ?  We  are of  the  considered  opinion  that  the  view  expressed  in Devilal’s case was correct view of law and the contrary view expressed  in Jai Bhansingh’s case does not lay down correct law.   As the learned Single Judge was not in agreement with the  view  expressed in Devilal’s case, it would  have  been proper, to maintain judicial discipline, to refer the matter to  a larger Bench rather than to take a different view.  We note  it with regret an d distress that the said course  was not  followed.   It  is  well settled that  if  a  Bench  of coordinate  jurisdiction  disagrees  with another  Bench  of coordinate  jurisdiction whether on the basis of  "different arguments"  or  otherwise,  on  a  question  of  law,  it  s appropriate  that  the matter be referred to a larger  Bench for  resolution  of  the  issue rather  than  to  leave  two conflicting  judgments to operate creating confusion.  It is not proper to sacrifice certainty of law.  Judicial decorum, no  less  than legal p opriety forms the basis  of  judicial procedure  and  it must be respected at all  costs.   Before parting with this aspect of the case, we wish to recall what was  opined in Mahadeolal Kanodia vs.  Administrator-General of  W.B.   :  [1960] 3 SCR 578 :  "...If one thing  is  more necessary  in law than any other thing, it is the quality of certainty.   That quality would totally disappear if  judges of co-ordinate jurisdiction in a High Court start overruling one  another’s  decision.  If one division bench of  a  High Court  is  unable  to  distinguish a  previous  decision  of

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another  division  bench,  and  holding the  view  that  the earlier  decision is wrong, itself gives effect to that view the  result would be utter confusion.  The position would be equally  bad where a Judge sitting singly in the High  Court is  of opinion that the previous decision of another  single Judge on a question of law is wrong and gives effect to that view  instead of referring the matter to a larger Bench.  In such  a  case  lawyers would not know h w  to  advise  their clients  and all courts subordinate to the High Court  would find  themselves  in an embarrassing position of  having  to choose  between  dissentient  judgments of  their  own  High Court..."

     These  salutary  principles appear to have  been  over looked  by the learned Judge deciding Jai Bhansingh’s  case. Thus,  for what we have said above, we are not persuaded  to take  a view different than the one taken by the High  Court in  the present case.  This appeal has no merits.  It  fails and is accordingly dismissed but with no order as to costs.

     We  request the High Court to expeditiously dispose of the election petition.  .........................CJI.