MANOHAR NARAYAN JOSHI Vs. RAMU MHATANG PATEL
HIGH COURT OF BOMBAY (AT: NAGPUR)
MANOHAR NARAYAN JOSHI
RAMU MHATANG PATEL
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(1.) IN this petition, issues Nos. 1 (a) and 1 (b) have been argued by the parties as preliminary issues. These issues are : -1 (a ). Is the affidavit filed by the petitioner defective? (b) If yes, is the petition liable to be dismissed?
(2.) THE facts, which are not required to be stated in detail, in this case are that the respondent No. 1 Ramu son of Mhatang Patel, was elected from the Melghat (S. T.) Assembly Constituency No. 110 at the General Elections to the State Legislative Assembly held on 5th March 1972. The petitioner, who claims to be an elector in the said Constituency, has filed this election petition challenging the election of the respondent No. 1 on the ground that the respondent No. 1 was guilty of corrupt practices under Section 123 (4) of the Representation of the People Act, 1951 (hereinafter referred to as the Act ). This election petition is filed under Section 80 of the Act. Section 83 of the Act deals with the contents of an election petition, and under the proviso to sub-section (1) of Section 83, where the petitioner alleges any corrupt practice, the petition is also required to be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. The form of the affidavit is prescribed under Rule 94-A of the Conduct of Election Rules, 1961 (hereinafter referred to as the Rules ). This rule provides that the affidavit referred to in the proviso to sub-section (1) of Section 83 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 requires statements to be made by the deponent showing which parts of the statements in the petition are true to the personal knowledge of the deponent and which parts of the statements regarding the particulars of corrupt practices are true to his information. The petitioner in this petition has filed an affidavit along with the petition in which he has stated that the statements made in paragraphs 4, 6 and 7 of the accompanying petition about the commission of corrupt practices were true to his personal knowledge, while those made in paragraphs 8 to 11 about the same were true to the information received by him and believed to be true. One of the contentions raised by the respondent No. 1 in his written statement filed in reply to the allegations made in the election petition is that the affidavit filed by the petitioner is defective and, therefore, the petition should be rejected without making any inquiry into the allegations with regard to corrupt practices. In view of this contention, the issues which are now being tried as preliminary issues were taken up at the instance of the respondent No. 1 and I have heard arguments of the parties on these issues.
(3.) THE learned counsel appearing for the respondent No. 1 contends that the affidavit filed by the petitioner is defective because it was necessary for the petitioner to state the source of information and the grounds of belief on the basis of which the averments with regard to the corrupt practices are made in the petition and were believed by the petitioner to be true. IT is not disputed that the affidavit which is filed is in full compliance with the requirements of Form 25 prescribed under the Rules; but what is contended is that though the form does not require the source of information and the grounds of belief to be disclosed in the affidavit, the petitioner was duty bound to disclose these in view of the provisions of Order 19, Rule 3 of the Code of Civil Procedure. Order 19, Rule 3 (1) provides that affidavits shall be confined to such facts as the deponent is able to his own knowledge to prove except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated. This contention is based on the decision of the Supreme Court in Virendra Kumar Saklecha v. Jagjiwan, (1972) 1 SCC 826 on which the respondent No. 1 has placed heavy reliance, and according to the learned counsel for the respondent No. 1, the observations made by the Supreme Court in paragraph 14 of the judgment in that case must be read to mean that in all cases even though the form prescribed by the Central Government under the Rules does not require the source of information to be disclosed, the provisions of Order 19 Rule 3 of the Code of Civil Procedure require the disclosure of such information, and where such information is not disclosed there cannot be said to have been any compliance with the provisions of Section 83 of the Act. Since the contention is founded on the decision in Saklecha's case, (1972) 1 SCC 826 (supra), it is necessary to refer to the facts of that case.;
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