CAUSE TITLE:
Naresh Gyanchandani Vs Shri Rameshwar Sharma
DATE OF ORDER:
7 September 2022
JUDGE(S):
HON’BLE JUSTICE VISHAL DHAGAT
PARTIES:
Petitioner: NARESH GYANCHANDANI
Respondent: SHRI RAMESHWAR SHARMA
SUBJECT
This judgment deals with an important question regarding the mandate of affidavit under section 83 and Rule 94A. It deals with whether non-compliance of the above-mentioned provisions will lead to dismissal of the petition along with the validity of ‘breach of Model Code of Conduct’ as a ground for declaring an election as null and void.
IMPORTANT PROVISIONS
Representation of People’s Act 1951
Section 83
83. Contents of petition.—(1) An election petition—
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the
petition.
BRIEF FACTS
- The polling was conducted in pursuance of an election notification issued on 02.11.2018, result of which was declared on 11.12.2018.
- The petitioner who is a candidate of Indian National Congress (hereinafter referred to as “Congress”) secured 91563 votes whereas the respondent who is a candidate of B.J.P secured 1,07,288 votes.
- The Petitioner filed an election petition on 25.01.2019 seeking the declaration of the above-mentioned election as null and void on the ground of breach of ‘Model Code of Conduct’ by creating a rift between Hindu and Sindhi community on religious and sectional lines by delivering speeches. Audio recording of the respondent was made viral. It was contended that by doing so, the respondent has managed to get more votes than the petitioner.
- Along with the election petition, audio CD, transcript, and a complaint made at Police Station Bairagarh were filed. It was pleaded by the petitioner that the election should be declared null and void as per Section 100(1)(a) of the Representation of the People Act, 1951 which deals with disqualification of a candidate.
- Respondent filed an Interlocutory Application regd. as I.A. No.7058/2019 seeking dismissal of the petition as full particulars of corrupt practices along with specific date and place was not pleaded. An affidavit under Section 94-A in Form-25 has also not been filed.
- Petitioner further contended that the respondent had alleged breach of Model Code of Conduct in the petition but has filed a petition for corrupt practices.
- After the above-mentioned I.A. seeking dismissal of the petition, the petitioner filed an application for amendment of petition regd. as I.A. 8031/2019 by way of which date and place and cause of action had been mentioned in the application. Petitioner had also filed I.A. by which an affidavit as per Section 94-A was filed by him.
QUESTIONS OF LAW
The hon’ble court framed 2 questions of law:-
- Whether there is non-compliance of Section 83 of the Representation of People Act, 1951, and petition may be dismissed?
- Whether there is defect in affidavit due to non-compliance of Section 83(1) of the Representation of People Act, 1951 and Rule 94-A of the Conduct of Election Rules, 1961?
ARGUMENTS BY PETITIONER
- The petitioner relied on the judgment delivered by the Hon’ble Supreme Court in the case titled Siddeshwar Vs. Prasanna Kumar in which it was held as under:
"65. Applying these principles to the facts of the present case, it seems quite clear that the affidavit filed by Prasanna Kumar in compliance with the requirements of the proviso to Section 83(1) of the Act was not an integral part of the election petition, and no such case was set up. It also seems quite clear that the affidavit was in substantial compliance with the requirements of the law. Therefore, the High Court was quite right in coming to the conclusion that the affidavit not being in the prescribed format of Form No.25 and with a defective verification were curable defects and that an opportunity ought to be granted to Prasanna Kumar to cure the defects."
- The petitioner by way of this judgment, contended that the affidavit under proviso of Section 83 is not an integral part of the petition and same can be complied with. The interim application was not to fill in any loopholes in the petition but to give details of the facts already pleaded. No new case is made by the petitioner by way of an application filed under Order 6 Rule 17 of CPC.
ARGUMENTS BY RESPONDENT
- The respondent relied on the contrary decisions of the Supreme Court in cases of Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, Ravinder Singh Vs. Janmeja Singh and others, Jeet Mohinder Singh Vs. Harminder Singh Jassi, Shushil Kumar Vs. Sartaj Singh and Harmohinder Singh Pradhan Vs. Ranjeet Singh Talwandi and others.
- Through the above-mentioned judgments, it was contended by the respondent that the petitioner ought to have given full details of alleged corrupt practices and how the election was vitiated. It was contended that the requirement of the affidavit is mandatory and the court should not interfere with the election of a returned candidate as it would have serious consequences.
- It was also submitted that the petition for amendment was filed after the expiry of the limitation of 45 days, hence it should not be allowed.
ANALYSIS BY COURT
- The ground raised by the petitioner in the election petition i.e. breach of Model Code of Conduct is not a ground under section 100 of the Representation of Peoples Act.
- Further, the court analyzed if there was a violation of section 83. The court observed that since there is no allegation of corrupt practices, there is no violation of section 83 of the act. Concise statement of material facts has been given and the petition has been verified as per Section 83 (1) (c).
- Due to the same reason, non-compliance of Rule 94A is ruled out and it cannot be said that the election petition be dismissed for violation of Conduct of Election Rules, 1961.
- The court observed that vague and general pleadings has been made by the petitioner in his petition. No date for cause of action has been specified in the petition. Pleadings in the election petition is to be construed strictly.
CONCLUSION
- The Hon’ble court dismissed the petitioner’s application for amendment of the election petition as it was barred by limitation. The court held that right to file an election petition is a statutory right and in the absence of precision and defects, it is ought to be dismissed.
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