2016 (3) TMI 1383 - SC - Indian Laws

Election of the RETURNED CANDIDATE - challenge on the grounds that the RETURNED CANDIDATE is guilty of commission of two corrupt practices falling under sub-sections (1) and (6) of Section 123 of the Representation of the People Act 1951 i.e. (1) making appeal to the voters in the name of religion and bribery; and (2) incurring expenditure in contravention of Section 77 of the RP Act respectively - RETURNED CANDIDATE could not be served with the summons in the normal course by the High Court. Whether the election petition was accompanied by an affidavit which is compliant with the requirement of statute under the proviso to Section 83(1)(c)? HELD THAT - When the appeals were argued before this Court on 20.08.2015 the ELECTION PETITIONER made a submission that two separate affidavits were filed along with the election petition and the High Court s observation (supra) are based on an erroneous identification of the affidavit. The RETURNED CANDIDATE took a stand that there was no 2nd affidavit as alleged by the ELECTION PETITIONER in compliance with the proviso to Section 83(1) of the RP Act filed along with the election petition - The fact that the ELECTION PETITIONER chose to file yet another affidavit pursuant to the order dated 25.8.2014 is another circumstance sought to be relied upon by the RETURNED CANDIDATE in support of his submission that there was no second affidavit filed along with the election petition In the circumstances of the case the inference such as the one suggested by the RETURNED CANDIDATE cannot be drawn because the ELECTION PETITIONER in his reply to the OR VII R 11 petition (specifically stating that he had filed an affidavit in Form 25 along with the election petition) took a stand by way of abundant caution that if the court comes to a conclusion that his affidavit is found to be defective for any reason he is willing to file further affidavit to cure the defect. Unfortunately the High Court took a shortcut without examining the question whether the affidavit at page nos.394- 395 satisfies the requirement of Form 25 and (without recording a definite finding in that regard) simply recorded a conclusion that the defect is curable and the same can be cured by filing an affidavit in the Form 25 . Appeal dismissed.

Summary

Issues Involved:
1. Compliance with the affidavit requirements under Form 25 of the Conduct of Election Rules, 1961.
2. The validity of the election petition based on the alleged non-disclosure of a cause of action.
3. The procedural propriety of the High Court's handling of the election petition and related interlocutory applications.

Issue-Wise Detailed Analysis:

1. Compliance with the Affidavit Requirements Under Form 25:

The central issue was whether the election petition was accompanied by an affidavit compliant with the proviso to Section 83(1)(c) of the Representation of the People Act, 1951 (RP Act). The RETURNED CANDIDATE argued that the affidavit filed by the ELECTION PETITIONER was not in conformity with Form 25 of the Conduct of Election Rules, 1961. The ELECTION PETITIONER contended that two affidavits were filed, one of which complied with Form 25.

The High Court initially concluded that the affidavit was not in the prescribed Form 25 but allowed the ELECTION PETITIONER to cure this defect. The RETURNED CANDIDATE's review application was dismissed, leading to further appeals. The Supreme Court found that the High Court had not adequately examined whether the affidavit at page nos. 394-395 was compliant with Form 25. Upon remand, the High Court clarified that two affidavits were filed on 20.01.2014, and the affidavit at page nos. 394-395 complied with the requirements of Form 25.

2. The Validity of the Election Petition Based on the Alleged Non-Disclosure of a Cause of Action:

The RETURNED CANDIDATE filed an application under Order VII Rule 11 of the Code of Civil Procedure (CPC), asserting that the election petition did not disclose a cause of action. The High Court dismissed this application, finding that the petition did disclose a cause of action and allowed the ELECTION PETITIONER to file a compliant affidavit.

The RETURNED CANDIDATE argued that the High Court's finding that the affidavit was not in Form 25 should lead to the dismissal of the election petition. However, the Supreme Court noted that the High Court's order was ambiguous and did not clearly address whether the affidavit at page nos. 394-395 was compliant. The Supreme Court ultimately upheld the High Court's later finding that the affidavit was compliant, thereby validating the election petition.

3. Procedural Propriety of the High Court's Handling of the Election Petition and Related Interlocutory Applications:

The RETURNED CANDIDATE raised a procedural objection, arguing that the High Court's order on the clarification application should have been heard by a Division Bench as per Rule 13 of the Madhya Pradesh High Court Rules, 2008. The Supreme Court rejected this objection, stating that the adjudication of election petitions and all incidental questions are entrusted to a Single Judge of the High Court under Section 80A of the RP Act. The Supreme Court held that the High Court's rules could not override the statutory discretion vested in the Chief Justice to assign election petitions to a Single Judge.

The Supreme Court found that the High Court's handling of the procedural aspects, including the review and clarification applications, was within its jurisdiction and did not warrant interference.

Conclusion:

The Supreme Court dismissed the appeals filed by the RETURNED CANDIDATE, upholding the High Court's findings that the ELECTION PETITIONER had filed two affidavits on 20.01.2014, one of which complied with Form 25. Consequently, the election petition was valid and could proceed. The Supreme Court also allowed the appeal filed by the ELECTION PETITIONER, thereby affirming the procedural propriety of the High Court's handling of the case.