TMI Blog2016 (3) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to Section 83(1) of the RP Act filed along with the election petition - The fact that the ELECTION PETITIONER chose to file yet another affidavit pursuant to the order dated 25.8.2014 is another circumstance sought to be relied upon by the RETURNED CANDIDATE in support of his submission that there was no second affidavit filed along with the election petition, In the circumstances of the case, the inference such as the one suggested by the RETURNED CANDIDATE cannot be drawn because the ELECTION PETITIONER in his reply to the OR VII R 11 petition (specifically stating that he had filed an affidavit in Form 25 along with the election petition) took a stand by way of abundant caution that if the court comes to a conclusion that his affidavit is found to be defective for any reason, he is willing to file further affidavit to cure the defect. Unfortunately, the High Court took a shortcut without examining the question whether the affidavit at page nos.394- 395 satisfies the requirement of Form 25 and (without recording a definite finding in that regard) simply recorded a conclusion that the defect is curable and the same can be cured by filing an affidavit in the Form 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication for review (I.A. No.13575/2015 hereinafter referred to as the Review Petition ), which was also dismissed by the High Court by an order dated 18.3.2015. 6. Therefore, the RETURNED CANDIDATE filed SLPs No.33933/2014 and 11096/2015 aggrieved by orders dated 25.8.2014 and 18.3.2015 respectively. 7. Aggrieved by certain findings recorded by the High Court (the details of which will be considered later) in the order dated 18.3.2015 in the Review Petition, the ELECTION PETITIONER preferred SLP No.15361/2015. 8. To adjudicate the correctness of the various impugned orders, an examination of the issues which fell for the consideration of the High Court is required to be identified. 9. The prayer in the OR VII R 11 petition filed by the RETURNED CANDIDATE is as follows: It is, therefore, prayed that the present election petition be dismissed. (i) Para 8 of the OR VII R 11 petition reads as follows: That, besides the above, affidavit sworn and filed along with the petition by the petitioner is not in conformity with Form 25 of the Conduct of Election Rules, 1961. The name of the corrupt practice has not been specified which is required to be specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner has also filed affidavit in support of the election petition and has also filed an affidavit in the prescribed format, therefore, there is no defect in this regard . 12. It can be seen from the above that the ELECTION PETITIONER has also made a submission that if in the opinion of the Court if there is any defect, the ELECTION PETITIONER is willing to cure the same . Such a statement appears to have been made by way of abundant caution in a bid to save the election petition from being dismissed on the ground of non-compliance with the proviso to Section 83 (1) in the event of the High Court reaching the conclusion that the affidavit filed by the ELECTION PETITIONER along with the election petition is not in fact compliant with the requirement of law. 13. The High Court, by its order dated 25.8.2014 while dismissing OR VII R 11 petition recorded: In the instant case, the petitioner has not filed the affidavit in the prescribed Form 25 in accordance with Rule 94-A of the Conduct of Election Rules, 1961. Since aforesaid defect is curable, same can be cured by filing affidavit in the prescribed Form 25. The High Court further directed: the petitioner is di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be inserted to the Code by Act 46 of 1999 stipulates that the person verifying the pleadings shall also furnish an affidavit in support of such pleadings. 15. An election petition challenging the validity of an election can be filed on any one of the various grounds specified under Section 100 of the RP Act. The commission of a corrupt practice either by the returned candidate or his election agent or by any other person with the consent of either the returned candidate or his agent is one of the several grounds on which the High Court can declare the result of a returned candidate to be void. The election of a returned candidate can also be set aside on the ground of the commission of corrupt practice in the interest of the returned candidate by an agent other than his election agent and by virtue of such corrupt practice the result of the election, insofar as it concerns a returned candidate, has been materially affected . In either case, in view of the stipulation contained in proviso to Section 83(1) RP Act, the election petition is required to be accompanied by an affidavit in the prescribed form. 16. In exercise of the power under Section 169 of the RP Act, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... composite affidavit, both in support of the averments made in the election petition and with regard to the allegations of corrupt practices by the returned candidate. This procedure is not contrary to law and cannot be faulted. Such a composite affidavit would not only be in substantial compliance with the requirements of the Act but would actually be in full compliance thereof. The filing of two affidavits is not warranted by the Act nor is it necessary, especially when a composite affidavit can achieve the desired result. 19. The issue before this Court in this batch of appeals is whether the election petition was accompanied by an affidavit which is compliant with the requirement of statute under the proviso to Section 83(1)(c). For answering the issue, it is incidentally necessary to determine whether the ELECTION PETITIONER filed two affidavits along with the election petition to satisfy the requirement of the law. 20. Unfortunately, the High Court did not examine, when it passed the orders dated 25.08.2014 or 18.03.2015, the question whether there were two affidavits filed by the ELECTION PETITIONER along with the election petition and whether the affidavit said to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a finding that there was no affidavit in the Form No.25 came to be recorded without recording any finding regarding the existence or otherwise of the affidavit which is said to have been annexed in the election petition at page nos.394 and 395 nor its content. Since the Interlocutory Application was dismissed, the ELECTION PETITIONER had neither a reason nor the necessity to challenge the correctness of the findings recorded in the order as the decision is in his favour. 21. Aggrieved by the said order, the RETURNED CANDIDATE filed the Review Petition seeking review of the said order. The application hinged on the finding recorded in the order dated 25.08.2014 that the petitioner has not filed the affidavit in the prescribed Form No.25 . It is, therefore, pleaded in the Review Petition that the direction of the High Court permitting the ELECTION PETITIONER to cure the defect in the affidavit filed along with the election petition is unsustainable and hence the order dated 25.08.2014 is to be reviewed. Interestingly, in the rejoinder dated 24.12.2014 filed by the RETURNED CANDIDATE to the reply of the ELECTION PETITIONER dated 8.11.2014 in the said Review Petition, the RETURNED ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Form-25 , the ELECTION PETITIONER preferred SLP No.15361 of 2015 on the ground that such a conclusion came to be recorded on an erroneous identification of the affidavit. Aggrieved by the dismissal of the Review Petition, the RETURNED CANDIDATE filed SLP No.11096 of 2015. 25. When the appeals were argued before this Court on 20.08.2015, the ELECTION PETITIONER made a submission that two separate affidavits were filed along with the election petition and the High Court s observation (supra) are based on an erroneous identification of the affidavit. The RETURNED CANDIDATE took a stand that there was no 2nd affidavit as alleged by the ELECTION PETITIONER in compliance with the proviso to Section 83(1) of the RP Act filed along with the election petition. 26. In view of the abovementioned imprecise findings recorded by the High Court without any reference to the pleadings or evidence on record and the contradictory stands taken before this Court by the parties, this Court thought it fit to adjourn the matter in order to enable the parties to seek a clarification regarding the true state of facts whether there was one or two affidavits filed along with the election petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on petition is filed in compliance with the requirement of proviso appended to section 83(1)(c) of the Representation of People Act, 1951. 38. I.A. No. 11665/2015 stands disposed of accordingly. 28. The said order is the subject matter of challenge in SLP No.31051 of 2015 filed by the RETURNED CANDIDATE. Apart from the various grounds on which the correctness of the findings recorded by the High Court are challenged, the cryptic and the findings recorded by the High Court (extracted earlier in this order) are not clear with regard to the above mentioned questions. RETURNED CANDIDATE took a preliminary objection that the order dated 29.9.2015 suffers from lack of jurisdiction and therefore, it is required to be set aside on that ground alone See Ground No.8 of SLP (C) No.31051 of 2015 Whether the impugned order has been passed in violation of the provisions of Chapter IV Rule 13 of the Madhya Pradesh High Court Rules, 2008? If yes, whether the impugned order is liable to be set aside on the ground alone? 29. According to the RETURNED CANDIDATE, I.A. No.11665 of 2015 ought to have been heard by a Division Bench because of the stipulation contained in Rule 13(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or modification of only judgments, decrees and final orders but not to the interlocutory orders such as the order of which clarification was sought. 31. We reject the preliminary objection raised by the RETURNED CANDIDATE: The Reason: The adjudication of election petitions including the examination of all incidental questions in interlocutory proceedings arising during the course of the adjudication of the election petition is entrusted by Section 80A of the Representation of People Act, 1951 to the High Court within whose jurisdiction the election dispute arises. Section 80A(2) stipulates that the jurisdiction shall be exercised ordinarily by a Single Judge who is to be designated by the Chief Justice Sec. 80A(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose. Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court. (a) Though the said Section indicates that the Chief Justice has a discretion to entrust trial of an election petition to a Bench consisting of more than one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ELECTION PETITIONER filed two affidavits on 20.01.2014 at the time of presenting the election petition, the second of which being the affidavit (at page nos.394-395) referred to at Serial No.57A of the Index appended to the election petition purportedly in Form 25 to satisfy the requirement of law flowing from the proviso to Section 83(1); and if such an affidavit was in fact filed on 20.01.2014 as contended by the ELECTION PETITIONER whether such an affidavit satisfies the prescription contained in Form 25. 33. By order dated 29.09.2015 in IA No.11665 of 2015, the High Court recorded a finding that the ELECTION PETITIONER filed two affidavits along with the election petition on 20.01.2014 (the date on which the election petition was presented to the High Court). The High Court also recorded a finding that the affidavit at page nos.394-395 of the election petition which finds mention at Sr. No.57A in the index is in compliance with the requirement of proviso appended to section 83(1)(c) of the Representation of People Act, 1951 . 34. If the abovementioned two findings are legally tenable, three appeals (arising out of SLP Nos.33933 of 2014, 11096 of 2015 and 31051 of 2015) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n handwriting in an otherwise completely typewritten index. Hence there is non-compliance with the requirement of the mandate contained in proviso to Section 83(1) warranting the dismissal of the election petition in limine. 36. The ELECTION PETITIONER s response to the above submissions of the RETURNED CANDIDATE is: (i) the High Court did not record any finding in its order dated 25.08.2014 regarding the existence or otherwise of the affidavit at page nos.394-395 or the content of the said affidavit in spite of the specific plea of the ELECTION PETITIONER. The High Court only recorded a vague finding that the ELECTION PETITIONER has not filed the affidavit in the prescribed Form 25 in accordance with Rule 94A of the Conduct of Election Rules, 1961 . It is not clear from the said order as to which one of the two affidavits was in the mind of the High Court when it recorded such a conclusion. The High Court should have recorded a categoric finding in that regard in view of the specific pleading in the reply of the ELECTION PETITIONER that the ELECTION PETITIONER had in fact filed a separate affidavit to be found at page nos.394-395 to satisfy the requirement of law under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard and finally decided. (ii) The question whether two affidavits were filed along with the Election petition though was not directly in issue as the RETURNED CANDIDATE never filed a rejoinder (to the reply of the ELECTION PETITIONER wherein it was stated that he had filed two affidavits alongwith the election petition). In deciding the OR VII R 11 petition the High Court never examined the question (it is an issue of fact) whether there were two affidavits as pleaded by the ELECTION PETITIONER in his reply to the said petition. We have already recorded that the order in OR VII R 11 petition is too casual. It does not take note of either the facts in issue or identify the point to be decided. Any finding of fact recorded in such circumstances is required to be set aside if appealed against by the aggrieved party if such an order is an appealable order. Since the learned Judge dismissed the OR VII R 11 petition though the finding is adverse to the ELECTION PETITIONER, he need not have filed an appeal Hardevinder Singh v. Paramjit Singh, (2013) 9 SCC 261, para 21 at page 268: (iii) Therefore, we do not see any legal principle on the basis of which the RETURNED CANDIDATE can su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an issue or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended Code. 24. However, the Registrar, in compliance with sub-rule (4) of rule 8, has affixed his seal and signatures at every page of the election petition and the affidavit at page no.70 and 71. However, no such seal or signature of the Registrar is to be found upon the affidavit at page nos.394 395. Further, at para 25 of the order, it is recorded: 25. In this regard, it has to be kept in mind that all official acts are presumed to be properly done. It is true that affidavit at page nos.394 395 does not bear the seal or signatures of the Registrar; however, it appears that it was not sealed and signed by the Registrar because it was annexed almost at the end of the petition. Since, as per rules, documents annexed to an election petition are not required to be signed and sealed by the Registrar, none of the documents filed along with the petition f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rar or not regarding the existence of the affidavit. d) If the existence of the 2nd affidavit at page nos.394- 395 of the ELECTION PETITIONER is not in dispute but the question is whether the non-compliance of the rule by the Registrar is fatal to the election petition, perhaps the answer would be that it is not . Because it is the settled proposition of law that the act or omission of the Court shall not harm any party. e) But when the question is whether such an affidavit was filed along with the election petition on 20.01.2014, different considerations arise. The question whether the ELECTION PETITIONER filed the 2nd affidavit is a pure question of fact. The burden of proving such a fact in law is on the ELECTION PETITIONER if such a question is really in issue. Because if he failed, the allegations of the commission of corrupt practices by the RETURNED CANDIDATE cannot be adjudicated in the absence of an affidavit in Form 25. However, such a question was never in issue in OR VII R 11 petition. 38. As already noticed at para 10 (supra) at the earliest point during the course of the proceedings of the election petition when the question arose whether an affidavit in For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the election petition) took a stand by way of abundant caution that if the court comes to a conclusion that his affidavit is found to be defective for any reason, he is willing to file further affidavit to cure the defect. Unfortunately, the High Court took a shortcut without examining the question whether the affidavit at page nos.394- 395 satisfies the requirement of Form 25 and (without recording a definite finding in that regard) simply recorded a conclusion that the defect is curable and the same can be cured by filing an affidavit in the Form 25 . 42. Mr. P.P. Rao, learned senior counsel submitted that the ELECTION PETITIONER having availed the benefit of the order in OR VII R 11 petition by filing another affidavit cannot now question the correctness of the finding that he did not file an affidavit which is compliance with proviso to Section 83(1). In support of the said submission, Mr. P.P. Rao relied on two judgments i.e. State of Punjab Others v. Krishan Niwas, (1997) 9 SCC 31 and Banku Chandra Bose Another v. Marium Begum Another, AIR 1917 Cal. 546. 43. In our opinion, the principle laid down in the said judgments is of no relevance to the controversy on ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
