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Smt. Kamla Beniwal Vs. Dhir Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberElection Petn. No. 6 of 1967
Judge
Reported inAIR1968Raj282
ActsRepresentation of the People Act, 1951 - Sections 83(1); Conduct of Election Rules, 1961 - Rule 94; Code of Civil Procedure (CPC) , 1908 - Order 19, Rule 3; Election Law
AppellantSmt. Kamla Beniwal
RespondentDhir Singh and ors.
Appellant Advocate J.S. Rastogi and; M.C. Bhoot, Adv.
Respondent Advocate M.M. Tiwari and; S.K. Tiwari, Advs. for Respondent (No. 1) and M.M. Vyas, Govt. Adv. for Respondent (
Cases ReferredKamalNarain Sharma v. Dwarka Prasad
Excerpt:
- - his case in that the disclosure is vague and the petitioner has failed to describe sufficiently for the purpose of identifying the person or persons from whom the information was received by her. briilal nandlal bivani, air 1955 sc 610 and contended that when the matter deposed to is not based on personal knowledge the source of information should be clearly disclosed and with sufficient particularity. the verification however states that every thing was true to the best of his information and belief. we point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. and when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed......11th september, 1967, objecting to the affidavit filed by the petitioner disclosing source of information as 'received from my workers' came up for consideration and orders on 13-9-67. 2. a few facts relevant for the disposal of the application may be stated at the outset. initially with the election petition thepetitioner filed an affidavit in which there was no reference to schedule 'c'. it may be pointed out that schedule 'c' was referred to in paragraph 32 of the petition and supplemented the allegations in para 32. in paragraph 32 the petitioner stated that the respondent no. 1 hired a number of vehicles for the purpose of his election and has paid them about rs. 10,000/- as fare to those vehicles. in schedule 'c' she gave the details of the expenditure of about rs. 10,000/-......
Judgment:
ORDER

L.N. Chhangani, J.

1. The application of respondent No. 1 dated 11th September, 1967, objecting to the affidavit filed by the petitioner disclosing source of information as 'received from my workers' came up for consideration and orders on 13-9-67.

2. A few facts relevant for the disposal of the application may be stated at the outset. Initially with the election petition thepetitioner filed an affidavit in which there was no reference to schedule 'C'. It may be pointed out that schedule 'C' was referred to in paragraph 32 of the petition and supplemented the allegations in para 32. In paragraph 32 the petitioner stated that the respondent no. 1 hired a number of vehicles for the purpose of his election and has paid them about Rs. 10,000/- as fare to those vehicles. In Schedule 'C' she gave the details of the expenditure of about Rs. 10,000/-. Further, the petitioner while verifying some of the paragraphs in the petition on the basis of information did not disclose the source of information

3. On an earlier occasion the respondent contended on the basis of the omission of reference to Schedule 'C' in the affidavit that the allegations contained in schedule 'C' should be ignored and struck off and no notice should be taken of them. A further objection was taken by the respondent that the affidavit was defective as it did not disclose the source of information. In connection with this objection the controversy was joined whether the provisions of Section 83 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) and Rule 94(a) of the Conduct of Election Rules, 1961 (hereinafter referred to as the Rules) read with form No. 25 were of a mandatory nature or not. By my detailed order dated 4-9-1967 I Rave decisions on the objections. Without deciding whether the provisions referred to above were of a mandatory nature or not, I held that it was not open to the respondent to contend that in the absence of affidavits supporting the allegations in the Schedule the petitioner could not claim a trial on them. I pointed out that schedule 'C' related to the allegations contained in para 32 and the petitioner having made specific allegations in para 32 the petitioner was entitled to claim trial on the allegations contained in paragraph irrespective of the details in the schedule and that the details could be furnished even at a later stage. I also held that the affidavit was defective on the ground that the petitioner did not disclose the source of information The petitioner was given permission to file a fresh affidavit in the prescribed form disclosing the source of information. The petitioner brought on record a fresh affidavit dated 5-2-67 in which she verified the facts made in the petition in three paragraphs on the basis of information received from her workers.

The respondent has taken objection to this affidavit. His case in that the disclosure is vague and the petitioner has failed to describe sufficiently for the purpose of identifying the person or persons from whom the information was received by her. The respondent submits that the affidavit be rejected and the allegations of corrupt practice be struck of and that the election petition be dismissed. In supporting his case the respondent's counsel pointed out a distinction between a verified pleading andan affidavit as brought out in Bhikaji Keshao Joshi v. Briilal Nandlal Bivani, AIR 1955 SC 610 and contended that when the matter deposed to is not based on personal knowledge the source of information should be clearly disclosed and with sufficient particularity. The learned counsel relied upon the observations made in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317, Duraiswami Chetty v. Govindu Chettv. AIR 1914 Mad 366 (2), Durga Das v. Nalin Chandra, AIR 1934 Cal 694, and also referred to English cases and books of English and American laws. The learned counsel also relied upon Mahesh Prasad Sinha v. Manjay Lal, AIR 1964 Pat 53, where it was held that even in an affidavit required under Section 83(1) proviso and Rule 94 (a) should disclose the source of information.

4. In reply, the counsel for the peti-tioner contended that the Act and the Rules having made specific provisions relating to affidavit the applicability of Order 19 Rule 3. Civil P. C. is ousted. The learned counsel emphasised the language of Section 87 of the Act under which the Civil Procedure Code is applicable to the trial of the election petition as nearly as may be possible, and is subject to the provisions of the Act and the Rules made thereunder According to the learned counsel, the Representation of the People Act is a self-contained Code governing the trial of the election petitions and consequently, when the Act and the Rules have made specific provisions for the form of the affidavit the provisions of the Civil Procedure Code cannot be invoked It was submitted that Section 83(1) proviso provides that the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice and the particulars thereof. Rule 94 (A) of the Rules further provides that such an affidavit shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25. Form 25 indicates that the deponent need only state that the statements in particular paragraphs are true to his knowledge. The form does not indicate that the source of information is to be disclosed

5. The learned counsel relied upon some Supreme Court cases in this behalf, namely, Harish Chandra Bajpai v. Triloki Singh. AIR 1957 SC 444, Inamati Mallappa Basappa v. Desai Basavaraj Awappa. AIR 1958 SC 698. The learned counsel also relied upon Husain Kamil v. Yadav Ram Sewak. AIR 1964 All 86 where an affidavit stating facts on information but not disclosing the source of information was not rejected and it was held that there is nothing in the Code or any local amendment which can apply in derogation of the Representation of the People Act. 1951 or the rules framed thereunder.

6. Now, the principles governing the application of the Civil Procedure Codehave been firmly settled by the decision of the Supreme Court, In AIR 1957 SC 444 considering the applicability of Order 6 Rule 17 Civil P. C. to the election petitions and interpreting similar language appearing then in Section 90, their Lordships observed as follows:

'The true scope of the limitation enacted in Section 90 (2) on the application of the procedure under the Civil Procedure Code is that when the same subject-matter is covered both by a provision of the Act or the rules and also of the Civil Procedure Code, and there is a conflict between them, the former is to prevail over the latter. This limitation cannot operate when the subject-matter of the two provisions is not the same.'

Their Lordships pointed out that Section 83(3) of the Act was not a comprehensive enactment and whole subject of enactment and consequently, the applicability of Order 6 Rule 17 Civil P. C. in appropriate cases could not be ousted.

7. In AIR 1958 SC 698 their Lordships observed that 'an election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in it.' Further, after noticing provisions of Sections 108 to 110 and 112 to 117 their Lordships concluded that 'the election petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of petition by the respondent but is liable to be continued by any person who might have been a petitioner.' It was in this background that their Lordships held that the effect is to constitute a self-contained Code governing trial of election petitions and it appears that neither Section 90 (1) of the Act nor the provisions of Order 23 Rule 1 C. P. C. would be applicable to the election petition by the Tribunals,

8. The crucial question emerging for consideration is whether the provisions in the Act and the Rules read with the form constitute a comprehensive enactment relating to the affidavits and that there is a conflict between the Election Law and the provisions of the Civil Procedure Code Order 19 Rule 3.

9. At the out-set, it will be proper to consider Order 19, Rule 3 Civil P. C. in its proper context and setting. Ordinarily evidence has to be recorded viva voce in Court as provided in Order 18, Rule 4. However, in some cases evidence by affidavit can be given. Under Order 19, Rule 1 Civil P. C. for sufficient reasons the Court may order that any particular fact or facts may be proved by affi-davits. This course is permissible with the consent of the parties as the proviso seems to indicate. In p. 19, Rule 2, Civil P. C. the Court may permit evidence by affidavit upon applications Rule 2, it may be observed, isnot restricted to interlocutory applications and evidence by affidavit can be given even in relation to applications of substantive nature. The question of leading evidence in connection with applications may arise at two stages. Evidence may be required at the initial stage before the application can be entertained and acted upon. Further, evidence may be necessary for the final disposal of the application. Whatever may be the occasion for requiring evidence on affidavit it is necessary before a Court can act on affidavits that care must be taken to see that they represent the real facts.

In this background we have to consider Order 19, Rule 3, Civil P. C. In the first instance, it lays down the general rule that affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove. This is necessary to ensure that the affidavit represents the true facts. In the very nature of things, an exception had to be made and was made in respect of interlocutory application and Order -19, Rule 3 Civil P. C. provides in the latter part of Sub-section (1) that on interlocutory applications statements of belief may be admitted provided the grounds thereof are stated. While permitting statements of belief, that is, statement on information believed to be correct, the Code made it obligatory that the grounds of the belief must be stated. In other words, the deponent is required to disclose the source of information with sufficient particularity. This was considered necessary to secure the object that the affidavit should represent the true facts. It should be clear from the above discussions that Order 19. Rule 3, Civil P. C. contains provisions of a substantive nature and that they cannot be treated as providing for mere matters of form. This conclusion finds support from the various observations of the courts on the need of proper affidavits in accordance with law.

10. The counsel for the respondent cited a number of cases but I need only quote the observations of their Lordships of the Supreme Court in AIR 1952 SC 317:--

'We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that every thing was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modelled on the lines of Order 19, Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. We draw attention to the remarks of Jenkins C. J. and Woodroffe J. in 'Padmabati Dasi v. Rasik Lal Dhar', (1910) ILR 37 Cal 259 and endorse the learned Judges' observations. It is because of the importance of the affidavits that Rule 44 of the Rajasthan High Court Rules, 1952requires that the deponent shall sufficiently describe for the purposes of identification the person or persons from whom information was received. The Rules of the Allahabad High Court go a little further than the Rules of this Court. I must, therefore, hold that the provisions of Order 19. Rule 3, Civil P C. are of a substantive nature and are not, matters of form.

11. Now, examining the provisions of the Election Law, Section 83(1) proviso of the Act merely provides that the petition shall also be accompanied by an affidavit in the prescribed form. Rule 94(a) of the Rules inter alia provides that it shall be in form 25. Form 25 of course does not give any indication whether the source of information should be disclosed or not. These provisions are, in my opinion, in relation to the form of an affidavit. Those provisions do not make any provision relating to the substantial requirement of an affidavit. To me, it is clear that Order 19, Rule 3, Civil P. C., and the provisions of the Election Law do not cover the same field. It is also remarkable that the Act and the Rules merely left the form to be determined by the Government and it cannot be expected that the legislature while delegating the authority to the Government to prescribe the form intended to delegate to the Government the power to prescribe the form so as to be in conflict with the substantial requirements relating to affidavits. On a proper consideration of all the relevant provisions I cannot accept that the provisions of the Election Law should be construed so as to oust the applicability of Order 19, Rule 3. Civil P. C

The learned counsel, however, pointed out one inconsistency between the two. It was submitted that Order 19, Rule 3 Civil P. C. provides that excepting interlocutory applications the affidavits in support of all applications should be such that deponent may be able to prove facts of his own knowledge. An affidavit in support of the particulars of corrupt practice as required by Section 83(1) of the Act is in the majority of cases bound to be one which cannot be exclusively based upon facts within the personal knowledge of the deponent. Consequently, the affidavit mav have to contain statements on belief. No controversy was raised on behalf of the respondent whether an affidavit in support of the election petition should be only on facts provable on the personal knowledge of the deponent. This inconsistency may affect the applicability of the first part of the Sub-section (1) of Order 19, Rule 3 Civil P. C. but cannot have any bearing upon the requirements of law that in relation to statements on belief made in affidavits the grounds of belief must be stated.

12. A review of the history of the legislation and the object and reasons for the introduction of proviso to Section 83(1) also lend support to this conclusion. Before the Amendment Act No. 27 of 1956 the election law did not require an affidavit in support of the allegations of corrupt practices. Therequirement of law was that the election petition and the various schedules and an-nexures were required to be verified in accordance with law. It was found in practice that the petitioner made allegations of corrupt practice in more careless manner without realising the seriousness of the allegations and it was to discourage such reckless allegations that the legislature thought it proper to provide that the petition shall be accompanied by an affidavit in the prescribed form.

As observed by this Court in Satish Kumar v. Election Tribunal, Alwar 1963 Raj LW 85 = (AIR 1963 Raj 157), 'the intention of the Legislature to introduce this proviso was to prevent the petitioner filing an election petition from makine wild allegations about corrupt practices and to impose on him a reasonable restraint, so that if false statements were made he could be prosecuted for perjury.' Now, if the person or persons who provide information are not sufficiently described even in spite of availability of opportunities to do so, the chances of the prevention of reckless allegations and successful prosecutions of persons committing perjury are likely to be lessened and consequently, it will be frustrating the very object of the amendment if it is held that in filing affidavits in support of the particulars of the corrupt practice the petitioner should be permitted to ignore the salutary requirements laid down in Order 19. Rule 3 Civil P. C.

13. Now, proceeding to cases, I first refer to AIR 1964 Pat 53. The Patna High Court treated the form 25 as defective and emphasised the importance of proper compliance with the provisions of Order 19, Rule 3 Civil P. C. and quoted observations of the Supreme Court in AIR 1952 SC 317. The Court further observed that if possible, the names of the agents and voters from whom the information was received should also be stated in the affidavit

14. Some observations supporting the petitioner, however, have been made in AIR 1964 All 86. In that case the controversy centered over an affidavit filed in support of the first application for the inspection of the ballot papers. It was contended that the affidavit was not in a proper form and had not been verified in accordance with law inasmuch as it was not shown in the verification clause as to at whose knowledge the paragraphs 1, 2, 3 and 7 of the affidavit had been sworn to be true. The Court observed in the first instance, that the verification clause was not verv happily worded. It, however, took into consideration the fact that at the time when the affidavit was filed neither the Tribunal nor the contesting respondent nor his counsel objected to the acceptance of the same. The Court also noticed that had an objection been taken another affidavit could have been filed. It was further observed that no prayer was made for cross examination of the deponent on the affidavit and that the affidavit was not intended to be a piece of evidence in the case. After setting out these circumstances, the Court referred to the Rules and the Form and then proceeded to observe that :--'there is nothing in the Code or any local amendments which can apply in derogation of the Act or the Rules framed thereunder, and quoted the observation of the Supreme Court in Mallappa Basappa v. Desai Basava-raj Ayyappa and finally concluded as follows :-

'It cannot be said that the defect is vital and the praver for inspection was rightly refused.'

15. Having regard to the various factors emphasised by the High Court for ignoring the defects in the affidavits and the language in which the final conclusion was stated, I do not think that the learned Judges intended to lay down that the applicability of Order 19, Rule 3 Civil P. C. was ousted by the provisions of the Election Law. If the observations in the above case are to be construed to lay any such rule, I very respectively find myself unable to subscribe to such a view.

16. On a careful examination of the various provisions of law and the cases cited at the Bar. I have no hesitation in coming to the conclusion that an affidavit filed under Section 83(1) proviso should satisfy the requirement of Order 19, Rule 3 Civil P. C. and the deponent should disclose with sufficient clarity the source of information. On an application of this principle there can be no doubt that the affidavit of the petitioner is defective. In the affidavit she has merely stated that the information was received from the workers. No attempt has been made to describe the workers and to give their names, for establishing identity. It is significant that the petitioner's counsel made no submission why the names of the workers from whom the petitioner derived knowledge were not disclosed and why the present disclosure should not be considered as insufficient. He made a vague hint that in other cases similar affidavits have been filed. A reference to other cases without a proper appraisal of the circumstances of those cases cannot be helpful. It may have been that no objection might have been taken in those cases on this aspect of the case. It cannot but be held that the affidavit is not proper in law.

17. The learned counsel joined another controversy over the consequences of the non-compliance with the provisions of law relating to affidavits, the main point of difference being whether the provisions contained in Section 83(1) proviso and Rule 94(a) are mandatory or directory. The petitioner's counsel wanted them to be treated as directory while the respondent's counsel pressed for holding them mandatory.

The judicial opinion on the point is not uniform. The Allahabad High Court has taken the view that the proviso to Section 83(1) of the Act is not in the nature of mandatory provision (See AIR 1964 All 86) and Brij Mohan Das Agarwal v. Z. A. Ahmad, AIR 1964 All 528. In arriving at this conclusion, the Court emphasised -

1. That Section 85 of the Act is exhaustive of the grounds of which the election petition can be dismissed and that the absence of an affidavit in support of the allegations of corrupt practice is not a ground within the language of Section 85.

2. That the Act does not provide any penalty for the non-obedience of the proviso.

The Madhya Pradesh High Court in Dwarka Prasad v. Kama! Narain. AIR 1964 Madh Pra 273, however, took a contrary view and held that the requirement of the proviso to Section 83(1) of the Act is mandatory. Noticing the cases taking the contrary view, it was observed that controversy in those cases was raised in relation to the dismissal' of the election petition for non-compliance with the proviso. It was observed that the election petition need not be dismissed for want of compliance with the proviso to Section 83(1) and that the proper effect of such non-compliance would be that the petitioner would not be entitled to seek a trial on those allegations. In this case it was however, observed that the question whether an affidavit along with an election petition and sworn before an authority prescribed by Rule 94(a) but which is not in the prescribed form can be regarded as a valid one for the purpose of proviso and Rule 94(a) did not arise for determination and this question was left open.

18. In 1963 Raj LW 85 = (AIR 1963 Raj 157), this Court took the view:--

'It is noteworthy, that it is Section 83 which deals with the contents of the petition and it is in that Section that the proviso requiring the petitioner to file an affidavit along with the election petition appears. Section 83 does not find place either in Section 85 or in Section 90(3) of the Act, and therefore it is not obligatory for the Election Tribunal to dismiss the election petition on account of every non-compliance of Section 83.'

19. The Patna High Court in AIR 1964 Pat. 53 stated the position as follows:--

'Reading the proviso to Sub-section (1) of Section 83 of the Act in the light of the principles of interpretation of statutes stated above, it seems that the substance and the matter of the essence embodied in the proviso is that, when allegations of corrupt practices are made in the election petition, it must be accompanied by an affidavit, but the requirement of its being in the prescribed form is not of the essence and is directory'.

20. Reference may be made to two Supreme Court cases also. In Murarka Radhay Shyam Ram Kumar v. Roop Singh, AIR 1964 SC 1545 the Supreme Court quoted a portion of the Tribunal's Judgment containing a statement that the provisions of Section 83 are not necessarily to be complied with in order to make a petition valid and such affidavit can be allowed to be filed at a later stage,' and then observed as follows:--

'This view of the Election Tribunal was affirmed by the High Court. We agree withthe view expressed by the Election Tribunal and we do not think that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election petition.'

The later Supreme Court case is KamalNarain Sharma v. Dwarka Prasad, AIR 1966SC 436 which was given in an appeal fromthe decision of the Madhya Pradesh HighCourt in AIR 1964 Madh Pra 273. TheSupreme Court in that case left the questionopen.

21. The question whether the substantial requirement of the proviso that an affidavit sworn before a competent authority should be produced along with the election petition is mandatory or not and whether complete absence of an affidavit should entail the striking out of the allegations of corrupt practices does not arise in the present case and I need not express any opinion. However, after a critical examination of the cases, I have no hesitation in holding that the requirements as to the mere form and of the provisions of Order 19. Rule 3 Civil P. C. cannot be considered of a mandatory nature, and any defect in the affidavit in relation to form or on account of non-compliance with the provisions of Order 19, Rule 3, Civil P. C. cannot be held necessarily fatal. Such defects can be permitted to be removed even at subsequent stages.

22. In the result, I hold that the petitioner having not disclosed the source of information with sufficient clarity the affidavit is not satisfactory and strictly in accordance with law. I, however, do not feel justified in striking out the allegations of corrupt practices on this ground at this stage. The petitioner is given an opportunity to remove the defects in the affidavit and to file proper affidavit within a weekfrom today.


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