T PHUNZATHANG Vs. HANGKHANLIAN

JUDGEMENT

(1.) I am in respectful agreement with the order proposed by my learned brother N. Santosh Hegde, J. and place on record my concurrence with the reasoning and conclusion arrived at by him. However, I propose to assign additional reasons in support of the view taken by my learned brother.

(2.) The relevant facts have been succinctly stated and relevant provisions of law quoted by my learned brother, yet a quick recap of the facts and relevant statutory provisions, as a prologue to this opinion of mine, would be in order. It is undisputed that the election petition filed by the appellant, putting in issue the election of respondent No. 1, alleges commission of corrupt practice by the respondent No. 1 and also pleads grounds other than commission of corrupt practice, in support of the relief for declaring the election of retuirned candidate to be void. The election petition is signed and verified by the petitioner in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The petition is accompanied by an affidavit in Form 25 as required by proviso to sub-section (1) of S. 83 of the Representation of the People Act, 1951 (hereinafter, 'the Act') and Rule 94-A of the Conduct of Election Rules, 1961 (hereinafter, 'the Rules'). The affidavit so filed has been sworn before a Commissioner of Oaths and bears, to that effect, an endorsement, signature and rubber stamp of the Oath Commissioner administering oath to the deponent in the manner and form contemplated by Form 25. It is also not disputed that the set of the copies which accompanied the election petition at the time of filing and which was delivered to the respondent No. 1 along with the writ of summons was complete in all respects excepting that the endorsement made by the Oath Commissioner attesting the affidavit to have been sworn by the deponent before him, his signature and rubber stamp do not appear on the copy of the affidavit delivered along with the copy of election petition to respondent No. 1. On 22-5-2000 an application was filed by respondent No. 1 before the learned Disginated Election Judge under Ss. 83 and 86 of the Act calling for dismissal of the election petition on the ground that the verification on the election petition was defective and material facts and particulars as to the alleged corrupt practice were not given but therein no grievance was raised that the copy delivered to the respondent No. 1 was not in conformity with the original and, therefore, the respondent No. 1 was prejudiced in his defence. On 5-6-2000 another application was filed by respondent No. 1 wherein such an objection was taken. Soon on receipt of the copy of the application, served on the petitioner out of the Court, the counsel for the election petitioner delivered another set of copy of election petition with affidavit which had the endorsement and rubber stamp of the Oath Commissioner as it was on the original and this was done before the application came up for hearing before the learned designated Election Judge. However, the learned Judge felt that there was non-compliance of S. 83(1) proviso read with S. 81(3) and hence the petition was liable to be dismissed under S. 86(1) of the Act.

(3.) Section 83(1) of the Act requires an election petition to plead material facts setting forth full particulars of alleged corrupt practice and to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. The proviso enacted to sub-section (1) requires 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. Rule 94-A (Introduced by an amendment in the Rules w.e.f. 27th February, 1962) requires that an affidavit referred to in the proviso to sub-section (1) of S. 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 appended to the Rules requires the election petitioner to verify on solemn affirmation or oath the statements about the commission of corrupt practice and the particulars of such corrupt practice distinctly stating to what extent they are true to his knowledge and to what extent they are true to his information. The form also prescribes the following endorsement to appear below the signature of the deponent on affidavit :-