CASE NO.: Appeal (civil) 2720 of 2000 PETITIONER: DR. VIJAY LAXMI SADHO Vs. RESPONDENT: JAGDISH DATE OF JUDGMENT: 05/01/2001 BENCH: S.V.Patil , R.C.Lahoti JUDGMENT:
L…..I………T…….T…….T…….T…….T…….T..J
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 electio petition filed by the
respondent challenging his election on various grounds
contained in those applications.
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 n 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 anguage.
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 t e 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 t e Act for
non-compliance with the provisions of Section 83 of the Act.
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 b th applications.
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 rend red 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 verifie 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
“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 paragraphs 5
to 1 of the election petition as being based on “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 8 of the Act. 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 parag aphs 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. 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 dismi sed both the applications. We have given our
thoughtful consideration to the submissions made at the bar
and for what follows we are unable to persuade ourselves to
agree with the submissions of learned counsel for the
appellant. 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 affi avit 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
all ged 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 Ac in terms cannot be attracted to such
a case. In F.A. Sapa and others vs. Singora and others :
(1991) 3 SCC 375 a three Judge Bench of this Court
specifically dealt with an issue concerning defects in the
verification of an election petition as well as of defects
in the affidavit accompanying an el ction petition wherein
allegations of corrupt practice are made. After considering
the provisions of Sections 83 and 86 of the Act, as also the
requirements of Form No.25 prescribed by Rule 94-A of the
Rules and relevant provisions of the Code of Civil rocedure
, it was held :
“From the text of the relevant provisions of the R.P.
Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and
Order 19 Rule 3 of the Code and the resume of the case law
discussed above it clearly emerges (i) a defect in the
verification, if any, can be cured (ii) it is not essential
that the verification clause at the foot of the petition or
the affidavit accompanying the same should disclose the
grounds or sources of information in regard to the averments
or allegations which are based on information elieved to be
true (iii) if the respondent desires better particulars in
regard to such averments or allegations, he may call for the
same in which case the petitioner may be required to supply
the same and (iv) the defect in the affidavit in the prescr
bed Form 25 can be cured……..”
This judgment was followed by a Division Bench of this
Court in H.D. Revanna vs. G. Puttaswamy Gowda and others
: (1999) 2 SCC 217. We are in respectful agreement with
the view expressed in F.A. Sapa’s case (supra) and in view
of settled law the conclusion becomes irresistible that
defect in verification of an affidavit is curable and does
not merit dismissal of an election petition n limine under
Section 86 (1) of the Act. The learned Single Judge of the
High Court was, therefore, perfectly justified in dismissing
I.A. No.2806 of 1999.
This now takes us to consideration of the objections
raised in I.A. No.5957 of 1999 seeking dismissal of the
election petition on the ground that the election petition
and the affidavit filed in support thereof had been drawn-up
in Hindi language and not in English language. The argument
raised in the High Court and reiterated at the Bar before us
by Mr. Sanghi is that Rule 2(b) of the High Court Rules
provides that every election petition shall be written in
English language and since the election peti ion filed by
the respondent was written in Hindi and not English
language, the same was liable to be dismissed for
non-compliance with the said rule, in limine.
The Madhya Pradesh High Court has framed Rules for
trial of election petitions under Article 225 of the
Constitution. Under Rule 9 thereof it is provided that the
Rules of the High Court shall apply, in so far as they are
not inconsistent with the Repre sentation of the People Act,
1951 or the rules, if any, made thereunder or the Civil
Procedure Code in respect of all matters. The import of
Rule 9 (supra) was considered in Prabhu Narayan vs. A.K.
Srivastava : (1975) 3 SCC 788 and this Court opined:
“Moreover, it appears to us that the provisions of
Rule 9 of the Madhya Pradesh High Court Rules regarding the
election petitions framed by the Madhya Pradesh High Court
by reference to Rule 7 of the Madhya Pradesh High Court
Rules found in Chapter III r garding affidavits cannot be
made use of for this purpose. The former set of rules are
made under Article 225 of the Constitution and cannot make
any substantive law and the rules themselves on a perusal of
them would show that they relate merely to pro edural
matters unlike rules made under Section 122 of the Code of
Civil Procedure.” (Emphasis supplied)
Rejecting the preliminary objection to the
maintainability of the election petition for non-compliance
with the High Court Rules, in Prabhu Narain’s case this
Court held :
“Further more according to Section 86 of the
Representation of People Act only petition which do not
comply with the provision of Sections 81 or 82 or 117 are
liable to be dismissed. We, therefore, over-rule the
preliminary objection.”
To appreciate the effect of non-compliance with Rule
2(b) of the High Court Rules, it is appropriate to notice
some of the relevant statutory provisions at this stage.
Rule 2 of the High Court Rules provides:
“2. Every Election petitions shall be –
(a) typewritten or printed fairly and legibly on white
foolscap size paper of reasonable quality, one side of the
paper only being used, leaving a quarter margin on the left
and at least 1/2 inches open space on the top and bottom of
each sheet; (b) written in the English language, numbering
separately the paragraph thereof; (c) couched in proper
language, and in conformity with section 81, 82 and 83 of
the Representation of the People Act, 1951.”
Article 329(b) lays down:
“329. Bar to interference by courts in electoral
matters –
(a) … … …
(b) no election to either House of Parliament or to
the House or either House of the Legislature of a State
shall be called in question except by an election petition
presented to such authority and in such manner as may be
provided for by or under any l w made by the appropriate
Legislature.”
Article 348 (1) provides :
“348. Language to be used in the Supreme Court and in
the High Courts and for Acts, Bills, etc. (1)
Notwithstanding anything in the foregoing provisions of this
Part, until Parliament by law otherwise provides-
(a) all proceedings in the Supreme Court and in every
High Court …………………………
shall be in the English language.”
Article 348(2) provides as follows:-
“Notwithstanding anything in sub-clause (a) of clause
(l), the Governor of a State may, with the previous consent
of the President, authorise the use of the Hindi language,
or any other language used for any official purposes of the
State, in proceedings in the High Court having its principal
seat in that State:
Provided that nothing in this clause shall apply to
any judgment, decree or order passed or made by such High
Court.
Rules framed by the High Court relating to trial of
election petitions are only procedural in nature and do not
constitute “substantive law”. Those Rules have to be read
alongwith other statutory provisions to appreciate the
consequences of non-complia nce with the High Court Rules.
Article 329(b) mandates that no election to either House of
Parliament or to either House of the State Legislature can
be called in question except through an election petition
presented to such authority and in such mann r as is
provided for by or under any law made by the legislature.
Section 81 of the Act deals with the presentation of an
election petition while Section 82 deals with parties to the
election petition and Section 83 with contents of such a
petition.
Article 348 expressly deals with the language to be
used in the Supreme Court and the High Courts and lays down
in Article 348 (1) (a) that all proceedings in the Supreme
Court and every High Court shall be in the English language.
Article 348(2) (supra ), however, carves out an exception to
the above general rule.
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 princip al 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 f 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 Cou t 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’. ule 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. The question whether an election petition
drawn up in Hindi language is maintainable or not came up
for consideration before a learned Single Judge of the High
Court of Madhya Pradesh in Election Petition No. 9 of 1980
titled Devilal s/o. Shriram Khada vs. Kinkar Narmada
Prasad and others. While rejecting the challenge to the
maintainability of the election petition drawn up in Hindi
language, it was said :-
“Now it is true that Rule 2(b) of the aforesaid Rules
does provide that every election petition shall be written
in the English language. But in the absence of any
provision in the Act or the Rules made thereunder, non
compliance with Rule 2(b) of the a oresaid Rules cannot be a
ground for dismissal of the petition under Section 86 of the
Act.”
A contrary view was, however, expressed by another
Single Judge of that High Court in Jai Bhansingh Pawaiya vs.
Shri Madhavrao Scindia. In this case it was held that an
election petition filed in Hindi language being violative of
Rule 2(b) of the Ru es, relating to filing of election
petitions, was not maintainable and was liable to be
dismissed under Section 86 of the Act. The learned Single
Judge opined :
“The Special Rules framed by the High Court, in the
circumstances, taking into account the implications arising
under Article 329(b) of the Constitution of India read with
Section 80 of the Representation of the People Act, 1951,
relating to election pet tions prescribing the manner for
presentation of the election petition by necessary
implication stand clothed with such a statutory character
which could not be deemed to have been affected by an order
relating to authorization contemplated under Article 348 (2)
of the Constitution of India so as to take away statutory
rigour of the Rules prescribing a requirement of an election
petition to be written in English language, numbering
separately the paragraphs thereof as provided in rule 2 of
the aforesaid ules relating to election petitions.”
The interpretation placed on rule 2 of the High Court
Rules, giving it almost primacy over Article 348(2) of the
Constitution, in Jai Bhansingh’s case to our mind is
fallacious. The learned single Judge appears to have lost
sight of the position that R les framed by the High Court in
exercise of powers under Article 225 of the Constitution of
India are only rules of procedure and do not constitute
substantive law and those rules cannot effect the import of
constitutional provisions contained in Articl 348(2) of the
Constitution. The high pedestal on which Rule 2(b) of the
High Court Rules has been placed in Jai Bhansingh’s case,
not only violates clear constitutional provisions but also
introduces a clause in Section 86 of the Act which does not
xist. The entire approach to consideration of the effect of
the notification issued under Article 348(2) appears to be
erroneous. That apart, the defect of not fling an election
petition in accordance with Rule 2(b) of the Rules is not
one of the defec s which falls either under Sections 81, 82
of 117 of the Act so as to attract the rigour of Section 86
of the Act as rightly held in Devilal’s case (supra).
Whether any other consequences may follow on account of the
alleged defects would depend upon ther 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. The learned Single Judge of the High Court was rig
t in rejecting application, I.A. No. 5957 of 1999 and
holding that an election petition filed by the respondent
could not be dismissed under Section 86(1) of the Act for
alleged non-compliance with Rule 2(b) of the High Court
Rules relating to presentati n of election petitions.
It appears that the earlier judgment of the learned
Single Judge in Devilal’s case (supra) was brought to the
notice of the learned Single Judge hearing Jai Bhansingh’s
case. The learned Judge in the later case noticed the
identical nature of the two ca ses, but did not share the
view of the Bench in Devilal’s case and a contrary view was
expressed. It was observed: “It may be noticed that
although like cases should be decided alike but this
principle is not in absolute rule nor of universal
application. It does admit exceptions. Where there is no
discussion regarding applicability of the relevant statutory
provis ons and the decision has been reached by a Bench in
the absence of knowledge of a decision binding on it or a
statute and in either case it is shown that had the Court
had the said material before it, it must have reached a
contrary decision, it is clear y a case of a decision per
incuriam which has no binding effect. This principle does
not extend to a case where if different arguments had been
placed before the said Bench or a different material had
been placed before it, it might have reached a diffe ent
conclusion.” (Emphasis supplied)
We are unable to appreciate as to how the judgment in
Devilal’s case could be styled as “per incuriam”. That
apart, the ground on which the judgment in Devilal’s case
(supra) has been distinguished does not stand to reason. We
have not been able to appreciate the logic of the
observations of the learned Single Judge in Devilal’s case
(supra) that the cont oversy in Jai Bhansingh’s case was
“quite different” and not confined to the applicability of
section 86 of the Act alone. A reference to paragraph 41 of
the judgment in Jai Bhansingh’s case dismissing the election
petition in limine, brings out the fal acy of the
“difference”, as perceived by the learned Single Judge. It
was observed :
“In view of what has been indicated hereinabove, I
have no hesitation in holding that the present election
petition as framed is not at all entertainable. Since even
the limitation for filing a fresh election petition in
accordance with law and in the anner prescribed has also run
out, it is not possible or permissible to permit the
petitioner to remove the defect in the presentation of the
election petition, the present election petition in the
circumstances is not at all triable.”
(Emphasis supplied)
How could it then be said that the controversy in the
two cases was, “different” is not understandable ? We are
of the considered opinion that the view expressed in
Devilal’s case was correct view of law and the contrary view
expressed in Jai Bhansingh’s case does not lay down correct
law. As the learned Single Judge was not in agreement with
the view expressed in Devilal’s case, it would have been
proper, to maintain judicial discipline, to refer the matter
to a larger Bench rather than to take a different view. We
note it with regret an d distress that the said course was
not followed. 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 s
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 p opriety forms the basis of judicial
procedure and it must be respected at all costs. Before
parting with this aspect of the case, we wish to recall what
was opined in Mahadeolal Kanodia vs. Administrator-General
of W.B. : [1960] 3 SCR 578 : “…If one thing is more
necessary in law than any other thing, it is the quality of
certainty. That quality would totally disappear if judges
of co-ordinate jurisdiction in a High Court start overruling
one another’s decision. If one division bench of a High
Court is unable to distinguish a previous decision of
another division bench, and holding the view that the
earlier decision is wrong, itself gives effect to that view
the result would be utter confusion. The position would be
equally bad where a Judge sitting singly in the High Court
is of opinion that the previous decision of another single
Judge on a question of law is wrong and gives effect to that
view instead of referring the matter to a larger Bench. In
such a case lawyers would not know h w to advise their
clients and all courts subordinate to the High Court would
find themselves in an embarrassing position of having to
choose between dissentient judgments of their own High
Court…”
These salutary principles appear to have been over
looked by the learned Judge deciding Jai Bhansingh’s case.
Thus, for what we have said above, we are not persuaded to
take a view different than the one taken by the High Court
in the present case. This appeal has no merits. It fails
and is accordingly dismissed but with no order as to costs.
We request the High Court to expeditiously dispose of
the election petition. …………………….CJI.
