SHRI DAYANAND NARVEKAR Vs. SMT. FERMEENA P. KHAUNTE

JUDGEMENT

(1.) This Order shall dispose of preliminary objections taken to the maintainability of the petition with applications dated 28-9-2007 (AEP 3/2007), 1/11/2007 (AEP 11/2007) and 29-11-2007 (AEP 13/2007) filed on behalf of the Respondent under Sec. 86 of the Representation of People's Act, 1951(Act, for short) r/w O VI, Rule 10 and Order 7, Rule 11 , C.P.C. along with application dated 4-10-2007, filed on behalf of the Petitioner. The Petitioner has not objected, application dated 29-11-2007 being considered along with application dated 28-9-2007.

(2.) The Petitioner was defeated with 5298 votes whilst Respondent No.1 (referred to herein as the Respondent) was declared elected with 9251 votes at the elections declared on 8-5-2007 and held on 2-6-2007 to the Aldona Assembly Constituency in the State of Goa. The next highest number of votes 6217 were polled by Respondent No.6, a candidate of Bharatiya Janata Party who continues to be the Respondent in the Petition, for best reasons known to the Petitioner although many of the Respondents have been subsequently deleted.

(3.) The Petitioner's application dated 4-10-2007 needs to be considered first. The Petitioner has averred that she has filed an affidavit in support of her Petition and that the Petitioner did not repeat the nomenclature of the corrupt practices in the body of the affidavit for she bonafidely believed that by filing the affidavit she had complied with the requirements of law and that the Respondent has pointed out that the Petitioner has not filed an affidavit in form No.25 as required by Rule 94-A of the Election Rules, 1961 but the said objection of the Respondent has no substance, but with a view to bring more clarity, the Petitioner be permitted to file the affidavit in form No.25 with a view to bring more clarity to her said affidavit and the said affidavit was being filed without prejudice to the Petitioner's submissions that her earlier affidavit dated 18-7-2007 filed along with the petition was in substantial compliance of the requirements of law. As per the Petitioner, the affidavit filed earlier served the purpose intended to be achieved by law. Along with the said application, the Petitioner has filed the said affidavit in form No.25 and the application has also been supported by an affidavit. The application has been opposed by the Respondent contending that Sec. 83 of the Act mandated filing of an affidavit in the prescribed form in support of the allegations of corrupt practices and on its failure the Petition is liable to be summarily rejected in exercise of powers under Sec. 86 of the Act. As per the Respondent, the defect is fatal and is not curable by producing an affidavit at a later point of time. It is the case of the Respondent that the Petitioner admitted that the Petitioner has not mentioned corrupt practices in the body of the affidavit filed along with the petition which does not satisfy the mandate of the proviso to Sec. 83 of the Act and this is sufficient to dismiss the Petition. The Respondent has stated that the filing of the affidavit in form No.25 is too late to be condoned. It is also contended that the said affidavit does not comply with the requirements of law. According to the Petitioner, the non filing of the said affidavit vitiates the Petition at the threshold. On behalf of the Respondent, it is submitted that the affidavit be not taken on record and the application be dismissed. It is further submitted that in the absence of the affidavit filed within 45 days, there was no petition at all in the eyes of law.