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High Court Of Calcutta
S. K. SEN
DIBYENDU BISWAS - Appellant
Versus
RABIN DEB - Respondent
ELECTION PETITION 1 Of 1996
Decided On : 07/16/1997
{'KEYWORD': 'ELECTION PETITION - MAINTAINABILITY - AFFIDAVIT IN FORM NO. 25 - ACCOMPANIMENT WITH PETITION - ELECTION PETITION RULES, 1967 - REPRESENTATION OF THE PEOPLE ACT, 1951', 'SUBJECT': 'Maintainability of an Election Petition and the Requirement of Affidavit in Form No. 25 under the Representation of the People Act, 1951', 'ACT SECTION LIST': ['SECTION 81(3)', 'SECTION 83(1)', 'SECTION 86', 'RULE 94A', 'RULE 18', 'RULE 9(H)']}
Fact of the Case:
The petitioner challenged the election of the respondent as a returned candidate on the basis of alleged corrupt practices and improper reception, refusal, and rejection of votes. The respondent raised preliminary objections regarding the maintainability of the petition due to non-compliance with Section 81(3) and the absence of an affidavit in Form No. 25.
Finding of the Court:
The court held that the copy of the petition served on the respondent was a true copy, despite the absence of attestation on every page, as the petitioner's signature appeared on each page. The court also found that the affidavit in Form No. 25, though not filed along with the petition, was filed before the trial commenced and a copy was supplied to the respondent. Therefore, the court concluded that there was no non-compliance with the mandatory provisions of the statute and the election petition was maintainable.
Issues: ['Whether the Election Petition is liable to be dismissed for non-compliance with Section 81(3) of the Representation of the People Act, 1951.', 'Whether the Election Petition is liable to be dismissed for not having been filed together with an affidavit in Form No. 25 as required under the Conduct of Election Rules, 1961 and the proviso to Section 83(1) of the Representation of the People Act, 1951.', 'Whether there were any corrupt practices as alleged in the Election Petition.', 'Whether there was any improper reception, refusal, and rejection of votes as alleged in paragraphs 9 to 21 of the petition.']
Ratio Decidendi: 1. The court relied on the Supreme Court's decision in F. A. Sappa v. Singori, which held that the requirement of Section 81(3) is met by the petitioner attesting the copy of the petition under his own signature, and that the absence of the word 'attestation' does not render the copy untrue. 2. The court referred to the judgment in Brij Mohan Das Agarwal v. Z. A. Ahmed, which held that the affidavit in support of allegations of corrupt practices need not necessarily accompany the election petition but can be filed before the Election Tribunal before any effective proceedings are taken for the trial of the petition. 3. The court distinguished the case of Dr. (Smt.) Shipra v. Shantilal Khoiwal, which dealt with the requirement of supplying a copy of the affidavit in Form No. 25 to the returned candidate, and held that in the instant case, a copy of the affidavit was supplied to the respondent before the trial commenced.
Final Decision: The court held that the preliminary objections raised on the maintainability of the Election Petition were not valid and the petition was maintainable. The court proceeded to frame issues for further hearing.
( 1 ) THE instant Election Petition has been filed by the petitioner challenging the election of respondent No. 1 as a returned candidate from 152 Ballygunge Assembly Constituency on the basis of declaration of result made by the concerned Returning Officer on 11th May, 1996. The case of the election petitioner is based on alleged corrupt practices committed by the respondent No. 1 and his election agent with the help of the Counting Officials, Assistant Returning Officer and the Returning Officer at the time of counting.
( 2 ) IT has further been alleged that there were improper reception, refusal and rejection of votes which materially affected the result of the election. It has further been alleged that the result of the election in so far as the returned candidate is concerned is illegal and void and as such the said election of the returned candidate be declared void and the petitioner be declared elected upon proper recounting, scrutiny and inspection of all ballot papers used in the said election including rejected ballot papers and other ballot papers as also the statutory forms and returns.
( 3 ) THE Election Petition was filed by the Election petitioner on or about June 6, 1996 and thereafter an order was passed on 9th July, 1996 after the copies of the Election Petition was served upon the respondents, inter alia deleting the names of the respondent Nos. 1-6 being Government officials who cannot be made parties in the Election petition and further leave was given to the Advocate for the respondent No. 1 to file the written statement and on the prayer of the said Advocate, leave was also granted to raise preliminary objection.
( 4 ) THE Election Petition affirmed an affidavit on 1st July, 1996 dealing with the allegations of the corrupt practices alleged in the Election Petition in terms of the provisions of Section 83 (1) and proviso thereto of the Representation of the People Act, 1951 (hereinafter referred to as the said Act ). The said affidavit has been duly filed with the department of this Court after the same being affirmed and the same after being sent by the department to the Registrar, Original Side, forms part of the election case. Copy of the said affidavit has also been sent by the Advocate of the Election Petitioner to the learned Advocate of the respondent No. 1.
( 5 ) THE Election Petition was taken upon 3rd September, 1996 where the following issues were 0 settled at the suggestion of the parties. The issues are set out hereinbelow :-1. Is the Election Petition liable to be dismissed under the provisions of Section 86 of the Representation of the People Act, 1951 for non-compliance with Section 81 (3) of the said Act due to non-attestation by the petitioner under his own signature on the copy of the Election Petition served on this respondent?2. Is the Election Petition liable to be dismissed, for not having been filed together with any affidavit in Form No. 25 prescribed by Rule 94a of the Conduct of Election Rules, 1961 read with the proviso to Section 83 (1) of the Representation of the People Act, 1951 entire petition rests upon imputation of corrupt practices?3. Was there any corrupt practice as alleged in the Election Petition?4. Was there any improper reception, refusal and rejection of votes as alleged in paragraphs 9 to 21 of the petition?5. To what relief, if any, the petitioner is entitled to?
( 6 ) MR. Salil Ganguly, learned Advocate for the respondent No. 1 has submitted that the Election Petition is not maintainable and the first two preliminary issues should be taken up for hearing before other issues are considered by the Court. Accordingly, the hearing on the said two preliminaries were taken up for hearing.
( 7 ) THE main contention of Mr. Ganguly is that Section 81 (3) of the Act provides that "every Election Petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petit
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