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Jai Parkash & Ors. v. Randeep Singh & Ors.
Summary of the Opinion delivered by V.K. Jhanji, J.
Factual and Procedural Background
This order disposes of preliminary issues framed on objections raised by Respondent No. 1 challenging the election to the Haryana Vidhan Sabha from the 45-Narwana constituency. The election of the returned candidate (R. S. Surjewala) was challenged on grounds including: (a) improper rejection of nomination papers of two independent candidates (Ram Sarup and Sube Singh), (b) wrongful acceptance of nomination papers of the returned candidate and of Om Parkash (son of Devi Lal) by the Returning Officer, and (c) commission of corrupt practice. Declaration was also sought against Respondent No. 2 (Des Raj) for corrupt practice. The Court framed three preliminary issues addressing (i) whether allegations in paras 4–7 amounted to corrupt practice under Section 123(7) of the Representation of the People Act, 1951 and whether an affidavit was required and the effect of non-filing, (ii) whether the election petition is liable to be dismissed for non-compliance with procedural requirements (paras 2–7 of preliminary objections), and (iii) whether paragraph 10 of the election petition is vague and should be struck off. Counsel for the petitioners did not wish to lead evidence on the preliminary issues; the returned candidate argued in person. The Court heard the parties and delivered the order described below.
Legal Issues Presented
- Whether the allegations in paragraphs 4–7 of the Election Petition amount to corrupt practice as defined in Section 123(7) of the Representation of the People Act, 1951, and if so whether an affidavit in support was required; and what is the effect of non-filing of such an affidavit.
- Whether the Election Petition is liable to be dismissed for non-compliance with the requirements of Section 81(3)/Section 83 (and thereby under Section 86(1)) in respect of documents referred to in paragraphs 4–9 (i.e., whether certain documents were integral parts of the petition and were not supplied to the respondent).
- Whether paragraph 10 of the Election Petition is vague and lacks material facts and is liable to be struck off (not pressed by respondent).
Arguments of the Parties
Returned Candidate's Arguments (Mr. R. S. Surjewala)
- Paras 4–7 of the Election Petition fall within the ambit of "corrupt practice" as defined in Section 123(7) of the Representation of the People Act, 1951.
- The proviso to Section 83(1)(c) mandates that an affidavit in support of allegations of corrupt practice and particulars thereof must be filed; absence of such affidavit renders the Election Petition invalid and liable to be dismissed.
- Allegations that the Returning Officer (a gazetted officer) assisted the returned candidate amount to corrupt practice under Section 123(7); therefore the affidavit requirement is mandatory.
- The documents (nomination papers and related endorsements/forms of oath) relied upon by the petitioners were in their possession and copies were filed in Court but were not supplied to the returned candidate with the copy of the petition; such non-supply is fatal under Section 81(3)/86(1).
- Only one of two petitioners filed an affidavit in support of para 10 (bribery allegation); absence of affidavit by the second petitioner renders the petition incomplete because the proviso to Section 83(1) uses "petitioner" in the singular (arguing singular should be read as plural via General Clauses Act).
- Relied on multiple precedents of the Supreme Court and High Courts to support the above contentions.
Petitioners' Arguments (Mr. Bhoop Singh)
- Allegations in paras 4, 6 and 7 do not constitute corrupt practice under Section 123(7); they allege illegality by the Returning Officer in rejecting nomination papers and therefore do not require an affidavit under the proviso to Section 83(1).
- The documents referenced (nomination papers, oath forms, endorsements) are not an integral part of the pleading but are evidence or materials by which the allegations are intended to be proved; non-supply of evidence-documents does not amount to non-compliance of Section 81(3) requiring dismissal under Section 86(1).
- With respect to paragraph 10 (allegation of bribery), the affidavit filed by petitioner No.1 is sufficient; non-filing by petitioner No.2 is not a fatal defect.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dr. Shirpa & Anr. v. Shanti Lal Khoilwal (1996)5 SCC 181 | Supports that allegations relating to corrupt practice should be covered by an affidavit required by the proviso to Section 83. | Cited as part of authorities establishing the mandatory nature of affidavits accompanying allegations of corrupt practice. |
| Har Charan Singh Joshi v. Hari Kishan (AIR 1996 SC 3350) | Authority referenced on requirement of affidavit/support for corrupt practice allegations. | Referred to as one of the Supreme Court decisions confirming affidavit requirement in corrupt practice allegations. |
| M. Kamalam v. Dr V.A. Syed Mohammed (1978) 2 SCC 659 | Authority on electoral petition procedure and requirements (referenced). | Mentioned among cases establishing the need for affidavit support where allegations of corrupt practice are made. |
| Rameshwar Dayal v. Munna Shah Bhandoria (AIR 1992 Madhya Pradesh 161) | High Court authority cited in support of affidavit/pleading requirements in election petitions. | Referred to as part of supporting jurisprudence on affidavit requirement. |
| Abraham Kuria Kose v. P.T. Thomas (AIR 1992 Kerala 19) | High Court authority cited regarding election petition pleadings/affidavits. | Included among authorities referred to by respondent in support of his affidavit argument. |
| Shri Krishan Sadashiv Dhamankar v. The Nasik Merchants Coop. Bank Ltd. & Ors. (AIR 1990 Bombay) | Cited on matters of pleading/supporting affidavits (referenced). | Referential support for the proposition that corrupt practice allegations require affidavit backing. |
| Smt. Sahodrabai Rai v. Ram Singh (AIR 1968 SC 1079) | Distinction between documents that are incorporated in body of petition and documents that are annexures forming integral part; annexures/schedules that are integral must be served with copies of petition. | Cited for the principle that when contents of a document are reproduced in the petition the document may be treated as evidence and not as an annexure integral to the petition; used in analysis of whether annexed documents were integral. |
| Satya Narain v. Dhuja Ram & Ors. (AIR 1974 SC 1185) | Held Section 81(3) to be mandatory; non-compliance may result in dismissal of petition. | Relied upon for the mandatory nature of Section 81(3) compliance. |
| M. Karunanidhi v. H.V. Hande (1983) 2 SCC 473 | Photograph annexed to petition formed an integral part; failure to supply copy was fatal under Section 81(3)/86(1). | Applied to emphasize that where annexed document constitutes part of the averment and is not reproduced in the petition, non-supply is fatal. |
| A. Madan Mohan v. Kalavakunta Chandrasekhara (AIR 1984 SC 871) | Distinguished earlier decisions; held that not every annexed document forms an integral part; facts determine whether annexure is integral. | Referred to for the proposition that an annexure may not always be integral depending on facts; supports careful factual inquiry. |
| U.S. Sasidharan v. K. Karunakaran & Anr. (1989) 4 SCC 482 | Video cassette treated as integral where contents were necessary to understand the averments; when document is incorporated by reference it becomes part of petition and must be supplied. | Used to explain the principle that documents incorporated by reference become integral and non-supply violates Section 81(3). |
| Manohar Joshi v. Nitin Bhaurao Patil & Anr. (1996) 1 SCC 169 | Clarified distinction: (a) documents incorporated by reference (not reproduced) form integral part and non-supply is fatal; (b) documents whose contents are pleaded in petition do not form integral part and non-supply is not fatal. | Adopted as the controlling exposition of the law governing when annexed documents are integral and the consequences of non-supply under Sections 81(3) and 86(1). |
| Bimla Kaur Khalsa v. Sujan Singh M.L.A. & Ors. (AIR 1987 P&H 145) | Explained object of requiring affidavit: to prevent wild allegations and roving inquiries regarding corrupt practice. | Used to support the Court's view on the purpose of the proviso to Section 83(1) and affidavit requirement. |
Court's Reasoning and Analysis
The Court proceeded in two main strands of analysis corresponding to the framed preliminary issues.
1. Whether paras 4, 6 and 7 allege a corrupt practice under Section 123(7) and whether affidavit was required:
- The Court examined the text of paras 4, 6 and 7. Those paragraphs mainly alleged that the Returning Officer illegally and improperly rejected nomination papers of two independent candidates (Ram Sarup and Sube Singh) at the behest of the returned candidate, and described clerical/technical defects in the nomination papers and why such defects were not of a substantial character. The allegations were framed to demonstrate illegality in rejection, not to charge the returned candidate with the corrupt practice specified in Section 123(7) (i.e., obtaining or attempting to obtain assistance of a gazetted officer for furtherance of election prospects) or any other corrupt practice under Section 123(7).
- The Court held that merely alleging the Returning Officer (who happened to be a gazetted officer) assisted the returned candidate in rejecting nomination papers does not automatically equate to an allegation of corrupt practice under Section 123(7). The petitioners did not allege that the assistance rendered by the Returning Officer constituted the corrupt practice described in Section 123(7).
- Therefore, the proviso to Section 83(1) (which requires an affidavit in support of allegations of corrupt practice and particulars thereof) did not apply to paras 4, 6 and 7. Where petitioners specifically charged corrupt practice (for example in para 10 alleging bribery), an affidavit was filed in support of those allegations.
- Conclusion on Issue No.1: the Court decided that paras 4, 6 and 7 do not amount to allegations of corrupt practice under Section 123(7) and no affidavit was required for those paragraphs; issue decided in favour of petitioners and against the returned candidate on that point.
2. Whether the petition should be dismissed for failure to supply copies of documents (Issue No.2):
- The Court analysed the authorities (Sahodrabai Rai, M. Karunanidhi, U.S. Sasidharan, Manohar Joshi and others) to extract the governing principle: if a document is incorporated by reference in an election petition without reproducing its contents in the body of the petition, the document becomes an integral part of the petition and a copy must be furnished to each respondent with the copy of the petition; failure to supply such a copy renders the copy served not a 'true copy' within Section 81(3) and is fatal, attracting dismissal under Section 86(1). Conversely, if the contents of the document are fully incorporated in the body of the petition, the annexed document may be only evidence and non-supply is not fatal.
- The Court examined paragraphs 5–9 and found that the election petition made elaborate references to nomination papers (of Ram Sarup, Sube Singh, the returned candidate and Om Parkash) and to forms of oath and endorsements of the Returning Officer without reproducing their contents in the body of the petition. Those documents were therefore incorporated by reference and formed an integral part of the petition according to the principles in the cited precedents.
- Although copies of those documents had been filed with the Registrar of the High Court along with the first copy of the petition, they were not supplied to the returned candidate with the copy of the Election Petition served on him. The Court concluded that the copy supplied was therefore not a 'true copy' within Section 81(3).
- On that basis, the Court held non-supply of those incorporated documents to be a fatal defect, and ordered dismissal of the Election Petition under Section 86(1) for non-compliance with Section 81(3) of the Act.
3. Affidavit filing by multiple petitioners (related to para 10):
- The Court considered the contention that each petitioner (plural) should have filed an affidavit in support of allegations of corrupt practice, invoking the General Clauses Act to read the singular "petitioner" as plural. The Court rejected that argument, finding no reason to read the singular as plural in the proviso to Section 83(1).
- The Court held that the affidavit filed by petitioner No.1 was sufficient and the non-filing by petitioner No.2 was not a fatal defect.
Issue No.3 was not pressed by the returned candidate and was decided against him by the Court.
Holding and Implications
Holding: Election Petition Rejected.
Implications and direct consequences:
- The Election Petition is dismissed under Section 86(1) for non-compliance with the requirement of Section 81(3) (failure to supply true copies of documents that were incorporated by reference and formed an integral part of the petition).
- The Court directed the Registry to intimate the substance of the decision to the Election Commission and the Speaker of the Haryana Legislative Assembly without delay, and to send an authenticated copy of the decision to the Election Commission as required by Section 103 of the Act.
- The Court held that paras 4, 6 and 7 did not constitute allegations of corrupt practice under Section 123(7) and therefore did not require the affidavit mandated by the proviso to Section 83(1); where corrupt practice was specifically alleged (para 10), an affidavit was filed and sufficed notwithstanding absence of an affidavit by the second petitioner.
- No novel rule of law was laid down by this order; the Court applied established Supreme Court jurisprudence regarding when annexed documents form an integral part of an election petition and the consequences of failing to supply true copies as required by Section 81(3). The effect of the decision is limited to dismissal of the petition on the stated procedural ground and the procedural notifications ordered to the Election Commission and the Speaker.
Result: Petition rejected. Registry to notify Election Commission and the Speaker; authenticated copy to be sent to the Election Commission pursuant to Section 103 of the Representation of the People Act, 1951.
V.K. Jhanji, J. - This order will dispose of preliminary issue framed on the basis of objections raised by Respondent No. 1 whose election to the Haryana Vidhan Sabha from 45-Narwana constituency has been challenged on the ground of improper rejection of nomination papers of S/Sh. Ram Sarup and Sube Singh and wrongful acceptance of nomination papers of returned candidate and of Om Parkash son of Devi Lal by the Returning Officer. 2. Challenge to the election is also on the ground of committing corrupt practice by respondent No. 1. Declaration has also been sought that respondent No. 2, Des Raj be held guilty for committing corrupt practice. 3. The following issues were directed to be treated as preliminary issues. (1) Whether allegations of corrupt practice as envisaged under Section 123(7) of the Act have been levelled against the returned candidate as alleged in para 1 of the preliminary objections and whether affidavit regarding those was required to be filed and if so, what is the effect of non-filing of affidavit supporting those allegations ? (2) Whether the election petition is liable to be dismissed on the grounds mentioned in paragraphs 2 to 7 of the preliminary objections ? OPR. (3) Whether para 10 of the election petition is vague and lacks material facts and so, liable to be struck off ? OPR. 4. Counsel for the parties to the petitioner have stated that they do not want to lead evidence on the preliminary issues. 5. Mr. R.S. Surjewala, returned candidate has argued his case in person. 6. Mr. Surjewala has contended that allegations contained in paras 4 to 7 of the Election Petition fall within the ambit of `corrupt practice' as defined in Section 123(7) of the Representation of People Act, 1951 (hereinafter referred to as 1951 Act). He contended that proviso to Section 83(1)(c) of the 1951 Act mandates that affidavit in support of allegations of corrupt practice and particulars thereof must be filed whenever allegation of corrupt practice is made. Mr. Surjewale contended that in case of levelling of allegations of corrupt practice, affidavit that is required to be filed in support of such allegations forms an integral part of the Election Petition and the petitioner instituted without filing such an affidavit in support of the allegations of corrupt practice is not an Election Petition in the eyes of law. He contended that in the present case, no affidavit has been filed in support of the allegations of corrupt practice levelled in paras 4 to 7 of the Election Petition and that being so. Election Petition is liable to be dismissed being an invalid Election Petition. In the alternative, he contended that paras 4 to 7 of the petitioner are liable to be deleted. In answer to these submissions, Mr. Bhoop Singh, counsel for the petitioner, has contended that allegations contained in paras 4 to 7 do not fall within the ambit of 'corrupt practice' as defined in Section 123(7) of the 1951 Act. Counsel contended that what has been stated in paras 4 to 7 is illegality committed by the Returning Officer in rejecting of nomination papers of Sh. Ram Sarup and Sube Singh. Counsel thus, contended that since allegations made in paras 4, 6 and 7 do not constitute `corrupt practice' as envisaged in Section 123(7), there was no need to file an affidavit in support of the allegations. 7. In order to appreciate the respective contention of counsel for petitioner and Mr. R.S. Surjewala, returned candidate, it is necessary to notice the relevant portion of the allegations contained in paras 4, 6 and 7 of the Election Petition : "4. That Shri Yadhvir Singh, SDO (Civil), Narwana, was appointed as Returning Officer of 45-Narwana Assembly Constitutency was got transferred at Narwana by Shri Shamsher Singh Surjewala, father of respondent No. 1 Shri Yadhvir Singh in order to help the respondent No. 1 in a most arbitrary and whimsical manner at the behest of respondent No. 1 illegally and improperly rejected the nomination papers of S. Shri Ram Sarup son of Shri Gopi Ram, resident of village Ujhana. Tehsil Narwana, District Jind and that of Sube Singh Verma son of Shri Ram Sarup, Nambardar, resident of village Belarkha, Tehsil Narwana, District Jind. Respondent No. 1 was interested in getting their nomination papers rejected as he was of the view that the Scheduled Castes and Backward Classes as a whole are supporters and voters of the Congress party (rather the Indian National Congress party as a whole was considering the Scheduled Castes and Backward classes as their definite vote bank) and in case any scheduled castes and backward class candidate contests the election then he would get a large number of Scheduled Caste and Backwaerd Classes votes and that would damage/lessen his chances in the election. It may be submitted here that Shri Ram Sarup above said belongs to Scheduled Caste whereas Shri Sube Singh Verma belongs to Backward class. With that motive in mind, respondent No. 1 prevailed upon the Returning Officer Shri Yadhvir Singh and got their nomination papers wrongly and improperly rejected, though none of the candidates present at the time of scrutiny raised any objection regarding their nomination papers as their nomination papers were quite in order and there was no defect of any substantial character. The unwarranted, illegal and improper manner in which the nomination papers of the above said two candidates were rejected by the Returning Officer would be spelt out in the later part of this petition. The Returning Officer by ignoring the provisions of law that is the Act in a most arbitrary and unwarranted manner improperly rejected their nomination papers." "6. The Returning Officer has improperly rejected the nomination paper of Sh. Jai Singh not because there was any defect of a substantial character in the nomination paper rather it was rejected at the behest of respondent No. 1 for the reasons mentioned in para 4 above." "7. So, he has wrongly and illegally rejected the nomination paper of Shri Sube Singh at the behest of respondent No. 1, so the election of the Returned candidate, i.e. respondent No. 1 is liable to be set aside and declared void." 8. Paragraph 5 of the Election Petition is not necessary to be reproduced as it contains only the orders which had been passed by the Returning Officer while rejecting the nomination papers. 9. The contention of Mr. Surjewala is that Sh. Yudhbir Singh, Returning Officer, is a member of HCS and is gazetted officer. According to him, to obtain assistance from a gazetted officer in furtherance of prospectus is a corrupt practice within the meaning of Section 123(7) of the 1951 Act and the affidavit in support of such an allegation was required to be filed, but the same was not filed and therefore, Election Petition without filing of such an affidavit is no Election Petition in the eyes of law. In support of his argument, Mr. Surjewala has referred to following judgments of the Supreme Court. i) Dr. Shirpa & Anr. v. Shanti Lal Khoilwal, 1996(2) RRR 179 (SC) : 1996(5) SCC-181. ii) Har Charan Singh Joshi v. Hari Kishan, AIR 1996 SC-3350; iii) M. Kamalam v. Dr V.A Syed Mohammed., 1978(2) SCC-659; (iv) Rameshwar Dayal v. Munna Shah Bhandoria, AIR 1992 Madhya Pradesh 161; (v) Abraham Kuria Kose v. P.T. Thomas, AIR 1992 Kerala 19; (vi) Shri Krishan Sadashiv Dhamankar v. The Nasik Merchants Coop. Bank Ltd. & Ors., AIR 1990 Bombay-90. 10. It is not necessary for me to notice the judgments in detail as it is settled that allegations contained in the Election Petition relating to corrupt practice should be covered by the affidavit. Without "affidavit", an Election Petition cannot be treated as a complete "Election Petition" within the meaning of term employed in Section 81(3) because of the requirement of 'affidavit' contemplated under proviso to Section 83(1)(b) being mandatory. If the petition is not accompanied by an affidavit in support of the allegations of corrupt practice and particulars as required under proviso to Section 83(1)(b) of the 1951 Act, it is a ground for rejection of the petition. 11. On going through the allegations contained in paras 4, 6 and 7, I am of the view that in paras 4, 6 and 7, petitioners have not challenged the election of returned candidate for committing corrupt practice as envisaged under Section 123(7) of the 1951 Act. The only allegation made by the petitioners is that the Returning Officer in order to help the returned candidate and at his behest, illegally and improperly rejected the nomination papers of Ram Sarup and Sube Singh. Petitioners have nowhere alleged that on the basis of allegations made in paras 4, 6 and 7, election of the returned candidate be termed void for committing corrupt practice of obtaining or attempting to obtain assistance of a gazetted officer in government service for the furtherance of the prospectus of his election. Nor the petitioners in paragraphs 4, 6 and 7 have alleged any other corrupt practice against the returned candidate as envisaged under Section 123(7) of the Act. The facts stated by the petitioners regarding role played by the Returning Officer allegedly at the behest of returned candidate has been stated just to prove illegality committed in rejecting the nomination papers. Simply because the Returning Officer happened to be gazetted officer and an allegation is made that the Returning Officer helped the returned candidate, would not be taken to mean that assistance rendered by the Returning Officer would be a corrupt practice within the meaning of Section 123(7) of the Act. Wherever petitioners wanted to charge the returned candidate with corrupt practice, they were specifically levelled allegations of corrupt practice as envisaged under Section 123(1)(A)(a) of the 1951 Act. In para 10 of the Election Petition petitioners have charged the returned candidate with corrupt practice and have sought declaration of returned candidate's election as void as having committed corrupt practice of bribery. In support of the allegations of corrupt practice of bribery levelled in para 10, an affidavit has been filed. In paras 4, 6 and 7 no allegation of commission or allegation of corrupt practice or charging the returned candidate with the commission of corrupt practice has been levelled. Petitioners thus, were not required to file an affidavit in support of the allegations contained in paras 4 to 7 of the Election Petition as provided by proviso to Section 83(1(c) of the Act. This issue is thus, decided in favour of the petitioners and against the returned candidate. Issue No. 2 :- 12. Arguing on issue No. 2, Mr. Surjewala contended that paras 4, 6 and 7 of the Election Petition contain allegations with regard to illegal rejection of nomination papers of two independent candidates, namely, Ram Sarup and Sube Singh. He contended that in order to substantiate the pleas raised in these paras, reliance has been placed on the copies of nomination papers of these independent candidates. Mr. Surjewala contended that petitioners have filed copies of nomination papers with the election petition which clearly reflects that these documents were in possession of the petitioners. He contended that copies of the nomination papers of Ram Sarup or Sube Singh Verma were not supplied to him along with copy of the Election Petition. It is contended that even the contents of these nomination papers have not been reproduced in the body of the petition. Further, according to him, the contents of these documents, form an integral part of the Election Petition and non-supply of the documents along with copy of the Election Petition served upon the returned candidate is fatal, attracting dismissal under section 86 of the 1951 act. 13. Mr. Surjewala next contended that allegations have been made in paras 8 and 9 of the Election Petition with regard to illegal acceptance of nomination papers` of returned candidate and Mr. O.P. Chautala respectively on account of their having not made and substantiated to a valid oath before the Returning Officer or, any other authorised person. It is contended that in order to substantiate this plea, reliance has been placed on the certified copies of the nomination papers of returned candidate and Sh. O.P. Chautala and Sh. O.P. Chautala along with endorsements made by the Returning Officer, It is contended that the afore-mentioned documents have been incorporated by reference in paras 8 and 9 of the Election Petition without reproducing the contents thereof in the body of the petitioner, nor copies of the same have been supplied to the returned candidate along with copy of the Election Petition, although the documents have been filed in Court along with first copy of the Election Petition, although the documents have been filed in Court along with first copy of the Election Petition. He contended that non-supply of the documents, reference of which has been made in paras 8 and 9, is also fatal and the petition is liable to be dismissed in terms of section 86 of the 1951 act. In answer to the submissions of Mr. Surjewala, Mr. Bhoop Singh, counsel appearing on behalf of petitioners, has contended that the only allegations levelled in paragraphs referred to by Mr. Surjewala are regarding wrong rejection and wrong acceptance of nomination papers of Ram Sarup, Sube Singh, returned candidate and Mr. O.P. Chautala respectively. Mr. Bhoop Singh contended that the documents referred to above do not constitute an integral part of the pleadings, but are merely materials by which the allegations in the Election Petition are intended to be proved. It is contended that the documents in question do not form an integral part of the Election Petition and non-supply thereof would not result in dismissal of the Election Petition. 14. Section 86(1) of the 1951 Act mandates the dismissal of the Election Petition for non-compliance of Section 81 of the Act. Section 81(3) of the Act mandates that every Election Petition shall be accompanied by as many as `copies' as there are respondents and every copy shall be attested by the election petitioner under his own signatures to be treated as copy of the petitioner. Section 81(3) thus, requires supply of `true copy'. 15. In Smt. Sahodrabai Rai v. Ram Singh, AIR 1968 SC-1079, election of the first respondent therein was challenged on various grounds. One of the grounds was in regard to corrupt practice inasmuch a respondent had appealed to religion through pamphlet. In the body of the Election Petition, a translation in English of the Hindi pamphlet, was incorporated Original pamphlet was attached to the petitioner and marked as Annexure 'A'. Upon notice of the Election Petition respondent complained that copy of the pamphlet had not been annexed to the copy of the Election Petition and therefore, Election Petition was liable to be dismissed in accordance with the provisions of Section 86 of the 1951 Act. The High Court dismissed the Election Petition under Section 86 of the Act on finding that copy of the Election Petition served upon the respondent was not accompanied by pamphlet and thus, was not a complete Election Petition. In appeal to the Supreme Court their Lordships of the Supreme Court held that Section 81(3) speaks only of the Election Petition. Since Election Petition itself reproduced the whole of the pamphlet in translation in English, it could be said that averments with regard to pamphlet were themselves a part of the petition and therefore, pamphlet was served upon the respondents although in a translation and not in original. Their Lordships further observed : "Even if this be not the case, we are quite clear that sub-section (2) of Section 83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the selection petition which are put in not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable for being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondents if the requirement regarding service of the election petition is to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments are concerned." 16. In Satya Narain v. Dhuja Ram & Ors., AIR 1974 SC-1185, Section 81(3) has been held to be mandatory and non-compliance with it would result in dismissal of the election petition. 17. In M. Karunanidhi v. H.V. Hande & Ors., (1983)2 Supreme Court Cases 473, one of the allegations in the election petition against the returned candidate was putting up of fancy banners throughout the constituency and the number of such banners was about 50, the cost of each such banner being not less than Rs.1000/- and therefore, expenditure involved in erecting these 50 banners was not less than Rs. 50,000/-, but the returned candidate had not disclosed the amount in the return of election expenses. Election petitioner thus charged the returned candidate with corrupt practice under Section 123(6) of the Act. Election petitioner averred that photograph of such banner was filed along with the petition furnished to the returned candidate, but admittedly, no copy of the photograph was annexed. The question before the High Court was whether the petition was liable to be dismissed in limine under Section 81(6) of the Act on the ground of contravention of Section 81(3) due to failure to furnish copy of the photograph of the fancy banner referred to in the petition. The High Court held that petition was maintainable. However, in appeal to the Supreme Court, it was held that the photograph was a part of the averment contained in paragraph 18(b) and an integral part of the election petition and not merely a piece of evidence as to the nature and type of fancy banners erected by the returned candidate. In absence of photograph, the averment contained in paragraph 18(b) was held to be incomplete and the election petition was dismissed under Section 86(1). Their Lordships of the Supreme Court held : "The mandatory requirements of Section 81(3) are in two parts. The first part provides for the number of copies that should be accompanied with the election petitioner and second part relates to the manner in which such copy shall be attested to be a true copy of the petition. If there is a total and complete non-compliance of the provisions of Section 81(3) the election petition might not be "an election petition presented in accordance with the provisions of this Part" within the meaning of Section 80. The words "copies thereof in sub-section (3) read in the context of sub-section (3) read in the context of sub-section (2) of Section 83 must necessarily refer not only to the election petition proper but also to schedules or annexures thereof containing particulars of any corrupt practice alleged therein. Section 83(2) applies only to a schedule or annexure which is an integral part of the election petition and not to a document which is produced as evidence of the averments of the election petition." Their Lordships while referring to judgment in Sahodrabai Rai's case (supra), observed : "It follows as a necessary corollary that if the pamphlet had not been incorporated in the body of the election petition, the decision of the Court in Sahodrabai case would have been otherwise. That precisely is the case here." 18. In A. Madan Mohan v. Kalavakunta Chandrasekhara, AIR 1984 SC-871, their Lordship of the Supreme Court pointed out that Sahodrabai Rai's case (supra) was not affected by M. Karunanidhi's case (supra). It was held that the mere fact that copy of the election petition served on the respondent was not accompanied by copies of the schedule, did not violate Section 81(3) as it was proved that petition was accompanied by necessary number of attested copies and requirements of Section 83 were also satisfied. On the facts of that case, it was held that document or Schedule did not form an integral part of the petition. 19. In U.S. Sasidharan v. K. Karunakaran & Anr., (1989)4 SCC-482, the election petitioner challenged the election of the respondent on various grounds of corrupt practice. In paragraph 5(D)(xi) of the petition, election petitioner stated that at the instigation of 1st respondent, a video cassette showing the progress in the constituency in which 2 government servants had spoken, had been used in the constituency. The cassette was produced before the Court in a sealed cover with a request to keep it in sealed cover till the examination of the witnesses. 1st respondent opposed the election petition stating inter alia that as the copy of the video cassette was not supplied to the Ist respondent along with copy of the election petition, the election petition was liable to be dismissed in limine under Section 86(1) for non-compliance with Section 83(1) of the Act. The High Court accepted the contention of the Ist respondent and dismissed the election petition. In appeal, the Hon'ble Supreme Court dismissed the appeal of the election petitioner and held that the video cassette formed an integral part of the election petition because without copy of the video cassette, Ist respondent was not in a position to know whether video cassette recording the speeches of two government servants could be said to have been used by the first respondent for the purpose of any assistance in furtherance of the prospects of his election. Their Lordships of the Supreme Court held that the material fact on which election petitioner relies may be contained in a document and the election petitioner without pleading the facts or particulars in the election petition, may refer to the document. When such a reference is made in the election petition, document becomes incorporated and forms an integral part of the election petition. By virtue of Section 81(3), a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the election petition. Copy of such document must, therefore, be served on the respondents. Their Lordships further held that when the document does not form an integral part of the election petition but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition. Similarly, when a document has been filed in the proceedings, but is not referred to in the petition either directly or indirectly, a copy of such document need not be served on the respondent. While referring to Sahodrabai Rai's case (supra), their Lordships observed : "The decision in Sahodrabai case does not, in our opinion, lend any assistance to the contention of the appellant that the video cassette is only evidence and does not form part of the election petition. In that case, the election petition reproduced the whole of the pamphlet and, accordingly, it was held that it was only an evidence and not a party of the election petition. What has been stressed in that case is that each and every document does not form part of the election petition. Moreover, the court was considering the scope of Section 83(2) of the Act before it was amended. We are unable to accept the contention made on behalf of the appellant that a document, in no circumstances, can form an integral part of the election petition. As has been noticed already, the pamphlet in that case was fully reproduced in the election petition and, therefore, it was merely an evidence and did not form a part of the election petition." 20. The afore-mentioned decision in Sahodrabai Rai's, A. Madan Mohan's and U.S. Sasidharan's cases (supra) came up for consideration before their Lordships of the Supreme Court in Manohar Joshi v. Nitin Bhaurao Patil & Anr., (1996)1 Supreme Court Cases 169. On consideration of these judgments, their Lordships of the Supreme Court held : "24. The distinction brought out in the above decisions is that in a case where the document is incorporated by reference in the election petition without reproducing its contents in the body of the election petition. It forms an integral part of the petitioner and if a copy of that document is not furnished to the respondent with a copy of the election petition, the defect is fatal attracting dismissal of the election petition under Section 86(1) of the R.P. Act. On the other hand, when the contents of the document are fully incorporated in the body of the election petition and the document also is filed with the election also is filed with the election petition not furnishing a copy of the document with a copy of the election petition in which the contents of the document are already incorporated, does not amount to non-compliance of Section 81(3) to attract Section 86(1) of the R.P. Act. In other words, in the former case the document filed with the election petition is an integral part of the election petition being incorporated by reference in the election petition and without a copy of the document, the copy is an incomplete copy of the election petition and therefore, there is non-compliance of Section 81(3). In the other situation, the document annexed to the petition is mere evidence of the averment in the body of the election petition and therefore, non-supply of a copy of the document is mere non-supply of a document which is evidence of the averments in the election petition and therefore, there is no non-compliance of Section 81(3). In U.S. Sasidharan, this distinction is clearly brought out as under : (SCC p. 489, paras 15 and 16). "The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81(3) provides for giving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81(3) and, as such, the court has to dismiss the election petition under Section 86(1) for non-compliance with Section 81(3). On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provisions of Section 81(3). The document may be relied upon as an evidence in the proceedings. In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition." 25. It may be mentioned that in all the above decisions cited at the Bar, the document in question had been filed in the court along with the election petition, but a copy of that document was not supplied to the respondent with the copy of the election petition. In those cases wherein the annexed document was treated to be incorporated by reference in the election petition forming an integral part of the election petition, non-supply of a copy of the document was held to be fatal warranting dismissal of the election petition under Section 86(1) for non-compliance of Section 81(3). In the other cases, the document was filed with the election petition, but the contents thereof were also incorporated in the body of the election petition, a copy of which had been supplied to the respondent even though copy of that document was not furnished in addition. In those cases, non-supply of a copy of the document was held not to be non-compliance of Section 81(3) because the document annexed to the election petition was treated as evidence of the averments contained in the body of the election petition, a copy of which had been furnished to the respondent. This is the gist of these decisions which also indicates that the question has to be answered with reference to the kind of use made of the document annexed to the petition, whether as an integral part of the election petition or merely as evidence of the pleadings contained in the body of the election petition." 21. In Manohar Joshi's case (supra), there was a mention in paras 32 and 33 of the election petition to certain video cassettes and since the video cassettes or a transcript of its contents was not filed along with the election petition and were not supplied to the returned candidates, it was urged that it has resulted in non-compliance of Section 81(3) which attracts Section 86. The argument was not accepted on the ground that only a mere mention of video cassettes was made in paras 32 and 33 of the election petition without incorporation its contents by reference of enumerating it in the election petition. Since it was not a case of the election petitioner that the full contents of the video cassettes or their transcription were incorporated by reference in the election petition in order to make the video cassette an integral part of the election petition inasmuch as no video cassette was filed along with the election petition, it was held that the contents of the video cassette except to the extent pleaded in paras 32 and 33 of the election petition, cannot be treated to be incorporated by reference in the election petition as a part of pleadings and its use was sought to be made by the election petitioner only as evidence of the averments contained in paras 32 and 33 of the election petition. 22. It has, thus, been settled by the Apex Court that where the document is incorporated by reference in the election petition without reproducing its contents in the body of the election petition, it forms an integral part of the election petition. If a copy of that document is not furnished to the respondent along with copy of the election petition, it is not a true copy within the meaning of Section 81(3) of the Act. Such a defect is fatal attracting dismissal of the election petition under Section 86(1) of the Act, It is more so when a copy of such a document is supplied along with the petition and submitted to the Registrar of the High Court, but not furnished to the respondent along with copy of the election petition. 23. In order to test the contention of Mr. Surjewala that documents namely, nomination papers of the two independent candidates, Ram Sarup and Sube Singh and of returned candidate and Sh. O.P. Chautala and also forms of oath have been incorporated by reference in paragraphs 5, 6, 7, 8 & 9 of the election petition, it becomes necessary to notice the relevant portion of the said paragraphs : "5. That the election of the returned candidate i.e. respondent No. 1 is liable to be set aside and declared void as the nomination papers of S/Shri Ram Sarup and Shri Sube Singh referred to above have wrongly, illegally and improperly been rejected by the Returning Officer." 6. That the Returning Officer has improperly rejected the nomination paper of Shri Ram Sarup. In the nomination paper of Shri Ram Sarup, Part number of Voters List of the proposer of Shri Jai Singh is mentioned as 20 whereas serial number is mentioned as 659. The Returning Officer was required to over-look and ignore this clerical error (as done by him at the time of presentation of the nomination paper) at the time of scrutiny of the nomination paper. As a matter of fact, the Returning Officer has checked and looked into the incorrect voter's list pertaining to part No. 28 and not that of part No. 20 which was mentioned in the nomination paper. xxx xxx xxx Furthermore, incorrect description of serial number is no ground to reject the nomination paper in case it can be ascertained from that very voter's list. The inaccurate description of serial number is not a defect of a substantial character as to entail the rejection of the nomination paper. The Returning Officer could have very easily identified and ascertained that Shri Jai Singh's name is entered at serial No. 656 in the voter's list pertaining to part No. 20. He was required to do nothing except to check the voter's list of part No. 20 and no further evidence and enquiry was required in this matter. So his nomination paper has improperly been rejected by the Returning Officer so, the election of respondent No. 1 is liable to be set aside and declared void." "7. That the Returning Officer has also illegally and improperly rejected the nomination paper of Shri Sube Singh for the reason that serial number of candidate is incorrect. The serial number in the nomination paper is mentioned as 168 in part No. 47 and further Shri Sube Singh in the declaration made by him in the nomination paper has mentioned his age that he has completed 36 years of age. xx xxx xxx. The defect in the nomination paper of Shri Sube Singh cannot be said to be of substantial character by any stretch of imagination and there was no difficulty for the Returning Officer to locate/identify him at serial No. 38, House No. 168 in the voter's list of part 47. So, he has wrongly and illegally rejected the nomination paper of Shri Sube Singh at the behest of respondent No. 1, so the election of the Returned candidate, i.e. respondent No. 1 is liable to be set aside and declared void." "8. That the election of the Returned candidate i.e. respondent No. 1 is also liable to be set aside as his nomination paper has wrongly and improperly been accepted by the Returning Officer which has materially effected the result of the election so far as it concerns the Returned candidate. xxx xxx xxx. The Returned candidate. i.e. respondent No. 1 was required to make an oath either by swearing in the name of God or by making a solemn affirmation. He has only submitted the form of oath signed by him along with his nomination paper to the Returning Officer on 29.3.1996 at 2.00 P.M. but did not make or subscribe the author solemn affirmation before him. Both the alternatives i.e. "ISHWAR KI SHAPATH LETA HUN" AND "NISHTHA PURVAK PRATIGYA KARTA HUN" find mentioned in the form of oath and also the endorsement of the Returning Officer dated 3.4.1995 none of the alternatives has been struck off from the form of oath which clearly establishes that the Returned candidate had not made or subscribed the oath by swearing in the name of God or on solemn affirmation before the Returning Officer. xxx xxx xxx. 9. That the election of the returned candidate, i.e. respondent No. 1 is also liable to be declared void as the nomination paper of Shri Om Parkash son of Shri Devi Lal resident of House No. 652, V. & P.O Chautala, Tehsil Dabwali, District Sirsa. xxx xxxx xxx He has not made and subscribed the oath before the returning officer after he was nominated as a candidate for 45-Narwana Assembly Constituency. Said Shri Om Parkash only submitted the form of oath signed by him along with his nomination papers to the Returning Officer at 2.10 P.M. on 3.4.1996 and after the Returning Officer examined his nomination paper from technical point of view after presentation of nomination paper at 2.10 P.M. on 3.4.1996 he came out of his office and did not make and subscribed the oath. The fact that he had not made and subscribed the oath before the Returning Officer as both the alternatives i.e. "ISHWAR KI SHAPATH LETA HUN" AND "NISTHA PURVAK PRATIGYA KARTA HUN" find mentioned in the form of oath and also the endorsement of the Returning Officer dated 3.4.1996 none of the alternatives has been struck off from the form of oath." 24. A reading of the aforementioned paragraphs shows that these contain allegations with regard to rejection of nomination papers of two independent candidates, namely, Ram Singh and Sube Singh Verma. Likewise, allegations have also been made with regard to illegal acceptance of nomination papers of Randeep Singh Surjewala, returned candidate and Sh. Om Parkash Chautala, on account of not having subscribed to a valid oath before the Returning Officer or any other authorised person. In order to substantiate the pleas taken in these paragraphs, reliance has been placed and elaborate reference has been made to the nomination papers of Ram Singh and Sube Singh Verma, Randeep Singh Surjewala, Om Parkash Chautala and also forms of oath of the returned candidate and also of Sh. Om Parkash Chautala, Samta Party candidate, containing endorsement of Returning Officer. However, copies of nomination papers, forms of oath along with endorsement of the Returning Officer which stand incorporated by reference without reproducing the contents thereof in the body of the election petition, have not been supplied along with the election petition. Admittedly, copies of the documents, referred to above, which stand incorporated by reference in paras 4, 6, 7, 8 and 9 were furnished with the Registrar of the High Court along with copy of the election petition, but concededly were not supplied to the returned candidate although the documents constitute an integral part of the petition. In my view, non supply of these documents is fatal as the copy supplied to the returned candidate was not a 'true copy' within the meaning of Section 81(3) of the Act. Therefore, I have no option but to order dismissal of the election petition in terms of Section 86(1) for non-compliance of provisions of Section 81 of the Act. 25. Mr. Bhoop Singh, counsel for petitioner, also contended that non-compliance of Section 81(3) has to be seen only in the context of Section 83(1). According to the counsel, only that election petition which does not contain concise statements of material facts or does not set forth full particulars of any corrupt practice that the petitioner alleges or is deficient in its contents as required under Section 83(1) would attract Section 86 providing for dismissal of the election petition. I do not find any merit in this contention of the counsel for the reason that this very argument was considered and rejected by their Lordships of the Supreme Court in Manohar Joshi's case (supra) and in para 21 of the judgment, it was observed : "21. Acceptance of the argument of Shri Jethmalani would amount to reading into Section 86 an additional ground for dismissal of the election petition under Section 86 for non-compliance of Section 83. There is no occasion to do so, particularly when Section 86 being in the nature of a penal provision, has to be construed strictly confined to its plain language." 26. Mr. Surjewala next contended that allegations of corrupt practice of bribery contained in para 10 are supported by affidavit of petitioner No. 1, Jai Parkash only. No affidavit has been filed by petitioner No. 2, Balbir Singh, in support of allegations of corrupt practice of bribery. It is contended that failure to file affidavit by petitioner No. 2 in support of the allegations of corrupt practice of bribery contained in para 10 renders the election petition incomplete and therefore, the same deserves to be dismissed on this ground as well. The contention of Mr. Surjewala is that Section 13(2) of the General Clauses Act mandates that in all Central Acts, singular shall include plural. It is contended that in view of the provisions contained in proviso to Section 83(1) of the Act, it was a mandatory requirement that each of the petitioners should have filed an affidavit in support of the allegations of corrupt practice of bribery contained in para l0 of the election petition. Against this, it is contended by counsel for petitioners that requirement of law in this regard is that the facts mentioned in the election petition relating to allegation of corrupt practice should be covered by an affidavit. It is contended that affidavit of petitioner No. 1 is sufficient to meet the requirement of law and non-submission of affidavit by petitioner No. 2 is not a fatal defect. 27. Proviso to Section 83(1) of the mandates filing of an affidavit in support of allegations of corrupt practice and practice and particulars thereof. Such an affidavit constitutes an integral part of the election petition and failure to file affidavit renders the election petition incomplete. Such a defect is fatal leading to dismissal of the election petition. Earlier, there was no requirement to file an affidavit in support of the allegations of corrupt practice and particulars thereof. Proviso to Section 83 was inserted by act 40 of 1961 w.e.f. 20.9.1961. The reason is that the Legislature amended Section 83 to introduce the proviso by amending act 40 of 1961 with a view to bind down a person to the allegation of corrupt practice and to check levelling of false allegations and roving enquiry. In Bimla Kaur Khalsa v. Sujan Singh M.L.A. & Ors., AIR 1987 P&H 145, learned Single Judge of this Court held that the object of introducing provisions for filing an affidavit is that petitioner may not make wild allegations with impunity regarding corrupt practices. In the context in which proviso to Section 83 was inserted, I am of the view that the language in singular with reference to `petitioner' in proviso to Section 83(1) cannot be read in plural with the aid of provisions of General Clauses Act. There is thus, no reason to hold that the affidavit filed by one of the petitioners alone cannot bind down other petitioner or it would not be considered sufficient or substantial compliance of Section 83(1) of the Act. Hence, the election petition is not liable to be dismissed being an incomplete petition as no affidavit has been filed by petitioner No. 2 in support of allegations of corrupt practice of bribery. Mr. Surjewala has not pressed issue No. 3 and therefore, the same is decided against him. No other point was urged. 28. In the result, the election petition is rejected. Office will intimate the substance of the decision to the Election Commission and the Speaker of the Haryana Legislative Assembly without any delay. Thereafter, an authenticated copy of the decision shall be sent to the Election Commission as per Section 103 of the Act. Petition rejected.
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