G MALLIKARJUNAPPA Vs. SHAMANUR SHIVASHANKARAPPA

JUDGEMENT

(1.) A very unusual situation has arisen in this litigation in so far as the first respondent who is the elected candidate, through his learned Counsel, has submitted an application to the Court for dismissal of these petitions on the ground of procedural non-compliance. It shall briefly enumerate in the course of this order what the various heads of charge are but I need to prefix the judgment with the observation that Election Law unlike in almost all other fields of litigation presents situation wherein the rule of strict compliance is not only observed but scrupulously insisted upon by the Courts. There are many reasons for this, the main on being that the outcome of these petitions must necessarily be time bound because where an election has been challenged, if the challenge is a valid one the wrongly elected candidate should be dislodged from office at the earliest point of time whereas on the other hand, if the challenge is unfounded then the cloud that hangs over the elected candidate must necessarily be cleared without any undue delay. Experience has shown that one of the main reasons for any form of litigation taking not only years but decades is because of procedural non-compliance and the corrective processes that plod on virtually for years together. I also take cognisance of the fact that the Courts have come across a class of cases where the challenge is far from valid or substantial and the protracted litigation can have its own hazardous effect vis-a-vis the elected candidates. For all these reasons, the Supreme Court and the High Courts have, with a degree of locus standi and consistency insisted upon absolutely strict compliance with the requirements of law. The Representation of the Peoples Act itself by virtue of the provisions contained in Section 86 makes it mandatory for the High Court to dismiss a petition which does not comply with the provisions of Section 81 or 82 or Section 117 of the Act. Undoubtedly, it may appear to be rather harsh because a dismissal on the ground of procedural non-compliance is construed by virtue of Section 86 as a dismissal on merits and in this view of the matter, an argument is sometimes advanced that strict adherence to the requirements may have a very far reaching consequences. It is for good reason that the Legislature has incorporated special provisions in this Act and I have enumerated the reasons for them and it is for the same reason that the Courts have also interpreted the provisions in keeping with the legislative intent. This Court had occasion to deal with one such situation in Election Petition No. 2 of 1995 and by judgment and order dated 19th July 1996, I had occasion to examine the case law on the Point virtually threadbare and to uphold the view that if procedural non-compliance is demonstrated, that the Court has no option except to dismiss the petition. That view represents the crystallised thinking of the Courts over the years.

(2.) ). An Application I. A. I has been presented by the first respondent wherein, dismissal of the petitions has been prayed for on several grounds. The first of them is that Rule 19 (4) requires that the requisite affirming Affidavit in the prescribed form must be appended to the petition. The applicant's learned Counsel pointed out to me from of the petition that the affirming Affidavit is not in keeping with From No. 25. Hesought to elaborate his submission by pointing out that in a petition of the present type particularly where the contention is that the R-1 has indulged in various corrupt practices, that the factual aspect of each of the incidents is of paramount consequence because each of these are virtually in the nature of a separate charge. The corrupt practice is something very serious and Courts would normally not take cognisance of something that is hearsay, something that is generalised or something that is remote but if the incidents have been set out, it is equally necessary for the party making the allegations to very clearly indicate to the Court as to whether each of these is on the basis of one's personal knowledge or on the basis of information which one believes to be true. There is a prescribed requirement in Form No. 25 and the submission is that unless a party swearing the Affidavit makes it very clear with regard to each paragraph or each incident as to whether that party has personal knowledge or whether it is on the basis of information that it would be impossible to either attach credibility to the statement but more importantly to fastened the liability on a particular member individual. I see considerable substance in this argument because it is not a mere formality but it is a requirement of law because these are serious proceedings and they are not to be equated with general roving enquiries. If an election is to be set aside, it has got to be on the basis of specific evidence placed before the Court in the form of a petition and substantiated thereafter and therefore, even for purposes of taking cognizance of the petition and proceeding, the Courts insist that there has go to be sufficiently reliable material before the Court even at that point of time when the petition is presented. Factually, it is true that the affirming Affidavit is not in compliance with Form No. 25 in this case.

(3.) I need to however point out that the petitioners' learned Counsel Mr. Phadke was quick to bring it to my notice that Order 6, Rule 15, CPC prescribes the manner in which pleadings are required to be verified and it is generally provided that the affirmation is required to be done before a designated authority and secondly, that it is necessary to generally indicate as to whether the material is on the basis of one's own knowledge or on the basis of information. Mr. Phadke is right when he points out that the general provision of law as enunciated in the CPC governs pleadings but what one needs to take cognisance of is that if there is a special enactment which makes provision for a procedure that is different, that the latter will prevail in proceedings under that enactment. It is in this background, that it becomes necessary for the Court to uphold the view that the form as prescribed in the Representation of Peoples Act will have to have an overriding effect and that one cannot go back to the CPC for this purpose. This is an Election Petition and the Court cannot ignore that fact and cannot at the same time give a go-by to what is prescribed in the Act and the Rules framed thereunder.