Defects in the verification and format of the affidavit are curable and should be addressed during the trial. Non-disclosure and false declaration of educational qualifications could constitute a corrupt practice under Section 123(4) of the 1951 Act.

JUDGMENT

Rajiv Shakdher, J.

I.A. No.296/2021

Preface:

1. This is an application preferred on behalf of respondent no.1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 [in short "CPC"] read with Section 86 of the Representation of the People Act, 1951 [in short "1951 Act"].

1.1. The application is predicated on the ground that the election petition read as a whole along with the documents filed, does not disclose a cause of action, and hence, ought to be rejected.

2. According to the applicant/respondent no.1, the election petition preferred under Section 80 read with Section 100(1)(b) & (d) as also Section 101 of the 1951 Act, which seeks direction from this Court, to the effect, that the result of the election qua Assembly Constituency-23, Karol Bagh, NCT of Delhi [hereafter referred to as "Karol Bagh Constituency"] held on 08.02.2020 be declared null and void, is founded on the assertions which do not disclose any cause of action.

2.1. In this context, applicant/respondent no.1 has averred that the petitioner has made two principal allegations against him:

(i) First, that the applicant/respondent no.1 has disclosed in his affidavit filed in the prescribed form i.e., Form-26 along with his nomination, that his educational qualification is "Matric (10th) passed from National Institute of Open Schooling (NIOS) (2003)"; which according to the petitioner is false.

(ii) Second, that there is no disclosure concerning the pendency of the First Information Report (FIR) registered at Police Station, Paharganj, Delhi in Form-26.

2.2. Insofar as the first allegation is concerned, reference is made to paragraph 12(iii) of the election petition.

2.3. As regards the second allegation, the applicant/respondent no.1, says that registration of an FIR does not tantamount in law to pendency of the criminal proceedings, and therefore, would also not furnish any cause of action against him.

2.4. It is also asserted by applicant/respondent no.1 that the alleged false declaration in Form-26 i.e., the affidavit filed with the nomination papers does not amount to corrupt practice within the meaning of Section 123(4) of the 1951 Act.

2.5. Independent of the aforesaid, the applicant/respondent no.1 says that the election petition should be rejected at this stage itself given the fact it has not been framed in accordance with Form-25, prescribed in Rule 94A of the Conduct of Elections Rules, 1961 [in short "1961 Rules"]. The petitioner has neither specified the name of the person whose election is being questioned nor adverted to the corrupt practice undertaken by the applicant/respondent no.1; an aspect which is required to be stated in the affidavit prescribed under Form-25.

2.6. Furthermore, the applicant/respondent no.1 avers that the affidavit filed along with the election petition does not conform to the requirements of the proviso to sub-section (1) of Section 83 of the 1951 Act. In this context, the assertions made qua alleged corrupt practice referred to in paragraphs 8, 12, 13 and the grounds contained in the election petition, have not been verified as per law. In this context, it is averred that there is no distinction made while verifying the assertion made in the election petition, as to the averments, which are true to the knowledge of the deponent and those, which are based on the information received and believed to be true.

Submissions of the counsel for the parties:

3. The petitioner has, broadly, made the following assertions in the reply to the above-captioned application:

(i) Firstly, the averment made by the applicant/respondent no.1 that he had passed the Class-X examination via NIOS in 2003 was false, which is evident upon a perusal of the mark sheet, which is appended on page 97 of the documents filed by the petitioner. As per the rules of NIOS, one learner/student has at disposal nine attempts, albeit over in five years, to sit for and clear the examination. Once admission is taken, no learner is allowed to take re-ad