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2001(1) Supreme 41
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and Shivaraj V. Patil, JJ.
Dr. Vijay Laxmi Sadho -Appellant
versus
Jagdish -Respondent
Civil Appeal No. 2720 of 2000
Decided on 5-1-2001
Counsel for the Parties :
For the Appellant : G.L. Sanghi, Sr. Advocate, Farukh Rashid, Mrs. Promila S. Kumar, Ashok Kumar Gupta, Advocates.
For the Respondent : A.K. Chitale, Sr. Advocate, Niraj Sharma, Advocate.
An election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the election petition does not comply with either the provisions of Section 81 or Section 82 or Section 107 of the Act . The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Thus an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) of the Act or of its proviso. What other consequences, if any, may follow from the an allegedly defective affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case. Defect in verification of an affidavit is curable and does not merit dismissal of an election petition in limine under Section 86(1) of the Representation of People Act. (Paras 9 and 11)
(ii) Representation of People Act, 1951-Section 86-Madhya Pradesh High Court Rules-Rule 2(b)-Election petition-Drawn in Hindi language-Cannot be dismissed at the threshold under Section 86.
The non-abstante clause with which Article 348(2) opens, unmistakably shows that the Governor of a State, with the previous consent of the President may authorize the use of Hindi or any other language in proceedings in the High Court having its principal seat in that State, save and except that "judgment, decree or order passed or made by such High Court", shall be in the English language as required by Article 348(1). By a Notification dated 18th September, 1971 issued by the Governor of Madhya Pradesh, in exercise of the powers conferred by clause (2) of Article 348 of the Constitution of India, with the previous consent of the President of India, authorised the use of Hindi language in all proceedings of the High Court other than for drawing up decrees, orders and judgments of the High Court, subject to certain conditions. Under the said Notification, appeals, petitions etc. could thus, be presented in the High Court of Madhya Pradesh drawn-up in the Hindi language, notwithstanding the provisions of High Court Rules. Rule 2(b) of the High Court Rules cannot be so construed as to render the constitutional provisions contained in Article 348(2) as meaningless . Rule 2(b) of the High Court Rules has to be read along with the Notification issued by the Governor on 18th September, 1971 under Article 348(2) of the Constitution and when so construed, it follows that an election petition may be filed in Hindi language and it cannot be dismissed at the threshold under Section 86 of the Act for alleged non-compliance with Rule 2(b) of the High Court Rules. (Paras 18 & 19)
Whether any other consequences may follow on account of the alleged defects would depend upon other factors to be determined at the trial of the election petition but to hold that Section 86(1) of the Act would be attracted for non-compliance with Rule 2(b) of the High Court Rules is not correct. (Para 22)
(iii) Judiciary-Judicial decorum-If a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction matter should be referred to a larger Bench for resolution.
It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of "different arguments" or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs. (Para 26)
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JUDGMENT
This appeal by special leave is directed against an order of the High Court of Madhya Pradesh dated 4th February, 2000 rejecting applications (I.A. Nos. 2806/99 and 5957/99) filed by the appellant, the returned candidate, seeking rejection of an election petition filed by the respondent challenging his election on various grounds contained in those applications.
2. In the elections to the Madhya Pradesh Legislative Assembly, held in 1998, the appellant was declared elected from Assembly Constituency No. 290, Maheshwar. The defeated candidate (Respondent herein) filed an election petition challenging his election on various ground of commission of corrupt practices, detailed in paragraphs 5 to 17 of the election petition. The election petition had been drawn-up in Hindi language. The affidavit filed in support of the election petition was also drawn up in Hindi language.
3. The main objection projected by the appellant in IA 2806/99 to the maintainability of the election petition was that since the affidavit filed in support of allegations of corrupt practice was not drawn up in the manner prescribed by Section 83(1) of the Representation of the People Act, 1951 (hereinafter referred to as the Act ) read with Rule 94-A (hereinafter the Rules ) in the prescribed form No. 25, the defect was fatal and the election petition was liable to be dismissed under Section 86(1) of the Act for non-compliance with the provisions of Section 83 of the Act.
4. The precise objection raised in I.A. No. 5957 of 1999 was to the effect that since election petition had been drawn-up in Hindi language and not English language the same was liable to be dismissed not having been drawn up in English language as required by Rule 2(b) of the Madhya Pradesh High Court Rules (hereinafter referred to as the High Court Rules ). Both applications were resisted by the election petitioner. Vide order dated 4th February, 2000 a learned Single Judge of the High Court rejected both applications.
5. Mr. G.L. Sanghi, learned senior counsel appearing for the appellant, submitted that there was material difference between the verification of the affidavit filed in support of the election petition and the verification of the election petition which rendered the election petition defective and thus liable to be dismissed. Elaborating the objection, it was submitted that in the affidavit dated 11th January, 1999 filed along with the election petition in paragraph KA, the election petitioner had verified the facts relating to commission of corrupt practice stated in paragraphs 5 to 17 of the petition as true to his "personal knowledge" but in paragraph KHA of the same affidavit, the election petitioner had verified the contents of same paragraphs 5 to 17 of the election petition as being based on "information received by him". It was submitted that this variation in verifying the same facts, both on "personal knowledge" and on "information received", being self-contradictory, rendered the affidavit as "no affidavit" in the eye of law and such a defective affidavit could not be taken into account for trying allegations of corrupt practice in an election petition and, therefore, the election petition was liable to be dismissed in limine under Section 86 of the Act.
6. A perusal of the record reveals that the election petitioner had later on, (possibly to meet the objection regarding defective affidavit) filed an additional affidavit in support of the allegations of corrupt practice verifying the facts stated in paragraphs 5 to 17 as based on his personal knowledge and not on the basis of information received from any other source. That affidavit appears to have been taken on record.
7. According to learned counsel for the respondent on the other hand, none of the grounds raised by the appellant in both the applications could warrant dismissal of an election petition under Section 86 (1) of the Act and the High Court thus rightly dismissed both the applicatio
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