Election Petition No. 7 of 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 El.Pet..No. 7 of 2011() ----------------------- PETITIONER ------------------ C MOHANACHANDRAN, AGED 60 YEARS S/O.SRI.CHELLAPPAN “SUDHA BHAVAN”, MURUKUMPUZHA PO THIRUVANANTHAPURAM – 695 302 BY ADV. SRI.JACOB VARGHESE (SR), S.M.PREM, K P SANTHI & NIJOY P K RESPONDENTS --------------------- 1. KOLIAKODE N KRISHNAN NAIR AGED 73 YEARS, S/O.SRI.NEELAKANTA PILLAI VILAKOTTUKONAM HOUSE, KOLIYAKODE PO THIRUVANANTHAPURAM 695 607 2. SASI R CHERAMAN, AGED 41 YEARS S/O.SRI.RAGHAVAN, VAYALARIKATHU VEEDU THUMBANOOR, PANACODE PO THIRUVANANTHAPURAM – 695 542 3. SIVAPRASAD, AGED 41 YEARS S/O.SREEDHARAN PILLAI BIJU BHAVAN, (CHITTEDATH VEEDU) THENGUMKONAM, PULIMATH THIRUVANANTHAPURAM 695 612 4. SHAJAHAN, AGED 40 YEARS, S/O.MUHAMMED KANNU YASEEN MANZIL, PERAYATHUMUGAL PIRAPPANCODE PO, THIRUVANATHAPURAM 695 607 5. KRISHNAN NAIR, AGED 71 YEARS S/O.PARAMESWARAN PILLAI ARUNIMA, VEIYLOOR, MURUKKUMPUZHA PO MANAGALAPURAM, THIRUVANANTHAPURAM – 695 302 EP 7/11 -2- 6. P BALAKRISHNA PILLAI AGED 70 YEARS, S/O.K.PADMANABHA PILLAI BHARATHAM, ALUMPURAM LANE MUDAVANMUGAL POOJAPPURA, THIRUVANANTHAPURAM 695 012 7. P SURESHKUMAR, AGED 32 YEARS, S/O.SRI.G.PUSHPANGADAN MEKKUMKARA KUNNIL VEEDU, MEENMUDU IRINJAYAM PO, NEDUMANGAD, THIRUVANANTHAPURAM – 695 561 8. SALEENA PJ, AGED 32 YEARS, W/O.SRI.N K VIJAYAN NAGAVARA PUTHEN VEETIL PRAKKANAM PO, PATHANAMTHITTA 689 643 ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE )( ADV.NAGARAJ NARAYANAN, SAIJO HASSAN, )( PRATHAP PILLAI, BINOJ C.AUGUSTINE, )( FOR R1 NOOHU KUNJU SAHIB, I J AUGUSTINE, )( SEBIN THOMAS & V K RAFEEK )( THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ------------------------------------------------------Election Petition No.7 of 2011 ------------------------------------------------------Dated this the 29[th] day of November 2011 ## Judgment The petitioner calls in question the return of the first respondent in the Assembly Elections held on 13.04.2011 to the Kerala Legislative Assembly from Vamanapuram Constituency. The petitioner and respondents 1 to 8 contested the election held on 13.4.2011. The first respondent secured 57381 votes and the petitioner 55145. Therefore, the first respondent was declared elected. 2. Shorn off unnecessary details, the election of the first respondent is assailed on two grounds, namely : 1) The first respondent's nomination papers were defective. The affidavit filed by him pursuant to Rule 4A of the Conduct of Election Rules 1961, was not properly attested and that is fatal. EP 7/2011 2 2) The first respondent had not correctly filled up Form 26 as stipulated in Rule 4A of the Conduct of Election Rules 1961 and as prescribed by the Election Commission. 3. The statement of allegations and material facts are contained in paragraphs 12 to 19 and Ground H of the petition. To summarise the relevant facts, the challenge relates to the failure on the part of the first respondent to disclose certain assets of his wife and himself and that of the members of his family, which amounts to non-compliance with the mandate laid down in the decision in **Peoples Union for Civil Liberties v. Union of India** (2003) 4 SCC 399) and the consequent notification issued by the Election Commissioner. Regarding the other ground namely, defective attestation, it is contended that there are two affidavits as contemplated under the Act and they have to be properly attested by the Notary. The attestation in the case on hand is not in accordance with the Notaries Act and Rules. The notarisation in the present EP 7/2011 3 case falls short of the statutory requirements and the attestation cannot be said to be proper and valid. It is, therefore, alleged that the above two defects are fatal and they make the nominations filed by the first respondent defective. The improper acceptance of the nomination, therefore, was in violation of the provisions of the Representation of the People Act, 1951 and that has materially affected the election of the first respondent in the Constituency. In fact, the grounds relied on are 100(1)(d)(i) and 100(1)(d)(iv) of the Representation of the People Act, 1951 (hereinafter referred to as “the Act”). 4. The first respondent has filed a preliminary objection, challenging the maintainability of the petition, on the ground that it does not disclose material facts, that it does not disclose any cause of action and also that there is no triable issue at all. It is pointed out that the respective affidavits have been properly attested and there is no particular form for attestation. No form as such is prescribed either under Rule 4A of the Conduct of Election EP 7/2011 4 Rules or as per Form 26. Even assuming that there is some defect in the attestation, there is substantial compliance with the relevant rules and no prejudice is caused to any of the candidate by the infirmities. It is further contended that defective affidavit is not a ground on which an election can be set aside as per Section 100 of the Act. As regards disclosure of assets and contents of Form 26 are concerned, it is pointed out that the first respondent had made a full and complete disclosure of his and his relatives' assets as contemplated under the Act and the relevant Rules and the allegations to the contrary are incorrect. It is pointed out that even assuming there is some omission in filling up Form 26, that too does not provide a ground for setting aside the election. On the above contentions, it is pointed out that the election petition does not disclose any cause of action and it has to be rejected at the threshold itself. 5. Sri.K.Ramakumar, learned Senior Counsel appearing for the first respondent pointed out that the EP 7/2011 5 petition does not furnish the material facts regarding deficiency in attestation of the affidavit as contemplated in Rule 4A of the Conduct of Election Rules. Highlighting on this aspect, it was pointed out that the details as to how the attestation is defective and what are the provisions of law violated, are not seen stated in the petition. It was contended that the petitioner is bound to disclose those material facts so that the first respondent may be put on alert as to what exactly are the defects, to enable him to furnish an effective reply. Merely stating that the attestation is not proper and it is not in accordance with the Notaries Act and Rules, will not be sufficient to meet the requirements of pleadings in an election petition. In support of his contention, the learned counsel relied on the decision in **Nandiesha Reddy v. Kavitha Mahesh** (2011) 7 SCC 721) and **Sudarsha Avasthi v. Shiv Pal Singh** (2008) 7 SCC 604). It was also urged that even if there is any violation of the rule relating to attestation of the affidavit, EP 7/2011 6 accompanying Form 4A, that does not enable the petitioner to challenge the return of the first respondent as it is not a ground provided under the Act to set aside an election. 6. As regards the non-disclosure of assets, according to the learned counsel, even if all the allegations are taken as true, there is no violation of any of the provisions of the Act or Rules framed thereunder. Merely because the form issued by the Election Commissioner is not properly filled up or there are certain omissions in filling up the form does not give rise to a ground to challenge the election. Neither Section 33 nor Section 36 of the Act provides for rejection of nominations as a consequence of the infirmity in not providing information as per From 26. Therefore, the election cannot be challenged on that ground also. In support of the said contention, the learned Senior Counsel relied on the decisions in **Mani.C.Kappan v. K.M.Mani** (2007(1) KLT 228), **Anil.V.Babu v. Babu.M.Pallissery** (2006(4) KLT 809) and an unreported EP 7/2011 7 decision by this court in EP No.4/09. It is pointed out that the Representation of the People Act, 1951 and the Rules framed thereunder, is a self contained code and courts cannot import other grounds to set aside an election, which are not stipulated in the Act. In support of the said proposition, the learned counsel relied on the decision in **Charanlal v. Nandakumar Bhatt** (AIR 1973 SC 2464). 7. In reply, the learned counsel for the petitioner contended that paragraph 10 of the petition gives details of the defects in the attestation of the affidavit and that discloses the necessary particulars. This is further highlighted in ground J of the petition. It was, therefore, contended that the complaint that the material facts regarding the allegation are not furnished, is incorrect. 8. The learned counsel for the petitioner, then pointed out the circumstances under which Form 26 mentioned in Rule 4A of the Conduct of Election Rules came to be in its present form. The necessity for a candidate to disclose his personal details was highlighted EP 7/2011 8 in the decision reported in **Union of India v. Association for Democratic Reforms** (2002) 5 SCC 294) wherein the Apex Court held that the electorate is entitled to know the details of the candidate for whom they are going to vote. Pursuant to that decision, Sections 33A, 33B of the Act and Rule 4A of the Conduct of Election Rules with Form 26 were introduced by amending the Act of 2002. Those amendments were challenged before the Apex Court and the Apex Court struck down Section 33B and directed the Election Commission to prescribe the form that is contemplated under Rule 4A of the Conduct of Election Rules, exercising its powers under Article 324 of the Constitution. It is pursuant to that direction that Form 26 as it now stands, has been issued by the Election Commission. Therefore, it is contended that the importance of Form 26 cannot be lost sight of and merely because it is not specifically enumerated as a ground for setting aside election, it cannot be ignored. It is also contended that the EP 7/2011 9 notifications issued by the Election Commission have statutory force and they will be deemed to form part of the Act and the Rules framed thereunder. 9. To the contention taken by the first respondent that the objections now raised had not been taken before the Returning Officer, the learned counsel for the petitioner pointed out that if the nomination was defective and could not have been accepted, the mere fact that no objection had been raised, is not a ground to throw out the election petition. The learned counsel cautioned this court that the High Court, while exercising its jurisdiction under Section 81 of the Act, is not sitting in appeal against the order of the Returning Officer, but, is exercising its original jurisdiction. In support of the above contention, the learned counsel relied on the decisions in **K.Prabhakaran v. P.Jayarajan** (AIR 2005 SC 688), **Uttamrao Shivdas Jankar v. Ranjit Sinh Vijay Sinh Mohite Patil** (2009 SC 2975) and **S.M.Banerji v.** EP 7/2011 10 **Srikrishna** (1960 SC 368). Finally, it was contended by the learned counsel for the petitioner that even assuming that the defect or omission in Form 26 does not furnish a cause of action, that is not so in the case of the infirmity in the attestation of the affidavit, which stands on a different footing. At any rate, the learned counsel pointed out that as regards the contents of the affidavit and also the question as to whether it has been properly attested, are all matters to be decided after taking evidence and there is no justification for contending that the petition does not disclose any cause of action and it has to be summarily rejected. 10. Before going into the rival contentions, certain aspects may be noticed. It is well settled that the Representation of People Act is a self contained code. See the decision in **Charanlal v. Nandakumar Bhatt** (AIR 1973 SC 2464). An election is not to be easily interfered with and a petition challenging the election of a candidate EP 7/2011 11 has to be strictly in terms of the provisions of the Act and Rules and can only be on grounds provided for under the Act. It is also well settled that the pleadings in the election petition are to be construed strictly and all material facts should be disclosed in the petition itself. In the decision in **M.Chandra v. M.Thangamuthu** (2010) 9 SCC 712), the Apex Court has held as follows : “79. It is a settled legal position that an election petition must clearly and unambiguously set out all the material facts which the petitioner is to rely upon during the trial and it must reveal a clear and complete picture of the circumstances and should disclose a definite cause of action. In the absence of the above, an election petition can be summarily dismissed. To see whether material facts have been duly disclosed or whether a cause of action arises, we need to look at the averment and pleadings taken up by the party. EP 7/2011 12 80. In V.S.Achuthanandan v. P.J.Francis (1999) 3 SCC 737), it was held that failure to plead material facts is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.” 11. Before going further, it will be useful to refer to the provisions relevant for the present case. 12. Chapter VI of the Act deals with disputes regarding election. Section 79 in Part VI of the Act is a definition clause. Section 80 stipulates that no election shall be called for in question except by an election petition presented in accordance with the provisions of the Act. Section 80A empowers the High Court to try an election petition. Section 81 deals with presentation of petition and Section 82 with parties to the petition. Section 83 deals with the contents of the petition. Section 86 deals with trial of election petitions and 87 deals with the procedure to be followed in the trial of election petitions. The next relevant EP 7/2011 13 provision is Section 100, which provides the grounds on which an election can be declared to be void. 13. Sections 33 and 36 which fall within Part V of the Act deal with presentation of nomination papers and the requirements of a valid nomination. Section 36 deals with scrutiny of nominations and grounds for rejection of nominations. 14. First, one may refer to the grounds on which an election can be assailed. That is provided for in Section 100 of the Act which reads as follows : - “100. Grounds for declaring election to be void – - (1) Subject to the provisions of sub-section (2) if the High Court is of opinion - (a) that on the date of his election, a returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963) ; or - (b) that any corrupt practice has been committed EP 7/2011 14 by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent ; or - (c) that any nomination has been improperly rejected ; or - (d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected -- - (i) by the improper acceptance of any nomination or - (ii) by any corrupt practice committed in the interests of the returned candidate (by an agent other than his election agent) or - (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or - (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, EP 7/2011 15 the High Court shall declare the election of the returned candidate to be void. - (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied -- - (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent; (clause (b) omitted by Act 58 of 1958) - (c) that the candidate and his election agent took - all reasonable means for preventing the commission of corrupt practices at the election and - (d) that in all other respects, the election was free from any corrupt practice on the part of the EP 7/2011 16 candidate or any of his agents, then, the High Court may decide that the election of the returned candidate is not void.” The case on hand falls under Section 100(1)(d)(i) and 100 (1)(d)(iv) of the Act. A reading of the above provision will clearly show that it is not sufficient for the petitioner to establish that the nomination has been improperly accepted or that any of the provisions of the Act or Rules has been violated but, he will have to, in addition, also prove that by the said Act, the result of the election of the first respondent has been materially affected. 15. First, the issue regarding the omissions in Form 26 shall be considered. The petitioner has narrated in the petition, especially in paragraphs 15, 16 and 18 of the petition, the various assets which have not been disclosed by the first respondent in Form 26. It is further alleged that the nomination ought not to have been accepted by the Returning Officer and the acceptance, at any rate, was improper. EP 7/2011 17 16. As already noticed, Sections 33A and 33B of the Act, Section 4A of the Conduct of Election Rules and Form 26 were introduced pursuant to the decision in **Union of India v. Association for Democratic Reforms** (2002) 5 SCC 294). The Apex Court found Section 33B to be totally inadequate to meet the requirements laid down in its earlier decision and in fact, Section 33B was a mockery and the provision was struck down. While doing so, by the decision in **Peoples Union for Civil Liberties v. Union of India** (2003(4) SCC 399), the Apex Court directed the Election Commission to exercise its powers under Article 324 of the Constitution of India and issue a proper form containing all necessary details. Thus, Annexure II form came to be issued. 17. The complaint of the petitioner is that the various assets made mention of by him in the petition have not been included in the form submitted by the first respondent. The first respondent would say that those EP 7/2011 18 allegations are untrue and in addition to that, he would also submit that even assuming there are some omissions, that is not a ground to set aside the election. 18. If one looks at Section 33A of the Act, it can easily be seen that it is a mandatory requirement. Section 33 deals with filing of nominations. Section 36, as already noticed, deals with scrutiny of nominations and grounds on which rejection of nominations can be made. It is significant to notice that S.36 contemplates rejection of nominations only for violation of Sections 33 and 34 of the Act and certain provisions of the Constitution. Section 36 of the Act does not provide for a ground to reject a nomination on the basis that there are omissions or false statements contained in Form No.26 as prescribed by the Election Commission. 19. May be that Form No.26 was prescribed and brought out by the Election Commission, pursuant to the directions of the Apex Court. But the question is whether the omission to furnish relevant details or false statements EP 7/2011 19 contained therein provide a ground for setting aside an election. As already noticed, in order to ascertain the grounds on which an election can be set aside, one has to refer to Section 100 of the Act. 20. It will be interesting at this juncture to note one aspect. Section 102(1)(ca) read with Section 52(1A) of the Kerala Panchayat Raj Act and Section 178(1)(ca) read with Section 108(1A) of the Kerala Municipality Act contain provisions to set aside the election of a candidate if he either fails to provide a form similar to Form 26 as provided under the Conduct of Election Rules or furnishes false or incomplete statements therein. Surprisingly enough, there is no such provision in the Representation of the People Act. 21. Being a self contained code, it will not be possible for this court to import grounds which are not available under Section 100 of the Act or the Rules framed thereunder, to set aside the election of a returned candidate. The challenge to an election thus remains EP 7/2011 20 confined to the grounds available under Section 100 of the Act. Therefore, if the petitioner wants to assail the election of the first respondent, he has to urge and establish one of the grounds falling within Section 100 of the Act. In the case on hand, the stand of the petitioner is that Form No.26 submitted by the first respondent is incorrect, making his nomination defective. Such a nomination could not have been accepted and therefore, improper acceptance falls within Sections 100(1)(d)(i) and 100(1)(d) (iv) of the Act. 22. The issue as to whether the furnishing of a defective Form 26 can be a ground for setting aside an election was considered in the decision _**Mani.C.Kappan v. K.M.Mani**_ (2007(1) KLT 228). In the said decision, it was held as follows : “14. In _PUCL_ (supra), S.33B of the Act, inserted by Act 72/2002 was held as unconstitutional. Dilating on the question of disclosure of assets EP 7/2011 21 and liabilities, it was held that Direction No.4 of Paragraph No.14 of the EC Order dated 28[th] June 2002, in so far as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing of wrong information or suppressing material information, should not be enforced. Accordingly, Annexure-A revised EC Order dated 27.3.2003 was issued clarifying that the earlier direction of the Election Commission in so far as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing of wrong information or suppressing material information is not enforceable as per the decision of the Apex Court in PUCL (supra). Even going by the EC Order, even if the affidavit field by the respondent following the EC Order did not disclose the dues allegedly outstanding EP 7/2011 22 from him to the Tourism Department, the same could not have led to the rejection of the nomination paper. 15. It is further urged on behalf of the election petitioner that the non-compliance of the directions of the Election Commission is to be treated as a situation where the election becomes liable to be set aside on the ground of non-compliance with the provisions of the Constitution, falling within S.100(1)(d)(iv) of the Act. While Article 324 is a provision of the Constitution of India, the orders issued by the Election Commission under that provision cannot be treated as provisions of the Constitution. Therefore, any non-compliance of the EC Order cannot be treated as noncompliance with the provisions of the Constitution, to set aside an election under subs.(1)(d)(iv) of S.100 of the Act. EP 7/2011 23 23. The issue was again considered by this Court in an unreported decision (EP No.4 of 2009) wherein it was held as follows : “8. The case is that one item of property owned by he respondent and his wife not disclosed in Annexure C filed along with the nomination paper and it is in violation of the order dated 27.3.2003. In view of the decision in Mani.C.Kappan's case, violation of the said order is not a ground under Section 100(1)(d)(iv) to set aside the election. Moreover, the learned counsel appearing for the petitioner admitted that respondents had transferred the said property much earlier to the submission of the nomination paper.” 24. The question as to whether a defective attestation can form the basis of setting aside an election, was considered in **Anil v. Babu.M.Palissery** (2006(4) KLT 809), the relevant portion of which reads as follows: EP 7/2011 24 “33. The allegation is that the affidavit in Form 26, in terms of R.4A of the C E Rules and the affidavit required in terms of Order NO.3/ER/2993/JSII dated 27.3.2003 of the Election Commission of India are sworn to by the respondent by describing himself in terms of his description as is presently available in the electoral roll and without disclosing his educational pursuits. While the respondent has, admittedly sworn to the affidavits with his name and description as in the electoral roll, any nondisclosure of the institutions where he studied is no ground to set aside the election. The affidavit required as part of the right to information of the electors also cannot form the foundation to set aside an election under the law as it stands. The aid allegations also do not, therefore, constitute, a triable case.” EP 7/2011 25 25. A reading of the above decisions will clearly show that unless and until the grounds urged for setting aside an election fall within the ambit of Section 100 of the Act and the provisions of the Constitution of India, the petitioner cannot succeed. The complaint now made regarding the omission in Form 26 does not form a ground to assail the election. The petitioner was unable to show any provision of the Act or Rules which provide that a candidate's nomination is to be rejected on the ground of infirmity regarding the entries in Form 26. Therefore, even assuming there are omissions in Form 26, they do not furnish a cause of action to the petitioner. 26. The next ground urged for assailing the election is defective affidavit. Ground J highlights the infirmity in the affidavit filed by the first respondent. It reads as follows : “J. A separate affidavit was sworn by the first respondent as required by the Returning Officer, affirming hat he is not disqualified under Section EP 7/2011 26 8 of the Act as provided in Form 26 and delivered the same in support of his nomination paper. The said affidavit of the first respondent is shown to be signed before Sr.V.S.Udayakumar, Advocate and Notary, Attingal. The particulars regarding the serial number, volume number, fee receipt number and the page number of he statutory register maintained by the Notary are not shown in the affidavit. There is non-compliance with the provisions under the Notaries Act and Rules and the Returning Officer ought to have noticed the deficiency in the nomination paper at the time of scrutiny and decision under sub-section (6) of Section 36 of the Act and rejected the nomination.” 27. The relevant rule is Rule 4A of the Conduct of Election Rules. A reading of the said provision does not indicate that any particular form is prescribed for EP 7/2011 27 attestation. The purpose appears to be that by attestation in the presence of a Notary or such other Officer as mentioned therein, the deponent undertakes to be liable for the information revealed by him through the affidavit. In cases where it was thought fit and proper to prescribe forms of attestation, the relevant rules provide for the same. Rule 94A of the Conduct of Election Rules stipulates that the affidavit shall be in Form 25. But, there is no such stipulation in Rule 4A. 28. The learned counsel for the petitioner relied on the decision in **V.R.Kamath v. Divisional Controller, KSRTC** (AIR 1997 Karnataka 275) and contended that unless and until the provisions under the Notaries Act and Rules are strictly complied with, the attestation cannot be deemed to be proper. The relevant portion of the said decision reads as follows : “When a Notary/Oath Commissioner administers an oath/affirmation, he is mandatorily required to EP 7/2011 28 enter the name an particulars as prescribed and obtain the signature of the deponent in their registers. Such entries are required to be made seriation by assigning a separate serial number for each transaction. The prescribed procedure for attesting affidavits makes it clear that making of endorsements on the affidavit and recording the particulars and obtaining the signature in the Register, is an integral part of the act o attestation or act of administering oath/affirmation. It, therefore, follows that while making necessary endorsements in the affidavit, the Attesting Officer will have to mention the reference number of the transaction (as entered in the Register) in the endorsement made at the end of the affidavit. It is also necessary that he Attesting Officer should mention his address to show the place where the affidavit is attested. Judicial notice can be taken of the fact that only EP 7/2011 29 some of the Notaries and Oath Commissioners note the serial number (reference number) of the attestation as entered in their Registrar in the affidavit/document and state their address while making the endorsement. In most of the affidavits, it is seen that merely the official seal of the Notary is affixed and the endorsement that “the affidavit is sworn to or solemnly affirmed in his presence” is made giving only the date of attestation and the name of the Notary Public. The serial number of the transaction and the place of attestation (address) is not mentioned. Having regard to the requirement of the relevant Rules, this is insufficient. For attestation or administration of oath affirmation to be complete, necessary particulars have to be entered and signatures affixed in the Register and the endorsement made on the affidavit should contain the serial number of the EP 7/2011 30 transaction as entered in the Register and also contain the place of attestation (address of the Notary/Oath Commissioner). Mentioning the serial number of the transaction (as entered in the Register) in the affidavit while making the endorsement of attestation is the only way of ensuring that a record of attestation is maintained by the Oath Commissioner/Notary. This requirement is also evident from a combined reading of the relevant provisions governing the matter. Unless the transaction particulars are entered and the signatures are affixed in the Register as required and the serial number of the transaction in the Register and the place of attestation (address) are mentioned in the endorsement made, the act of administration of oath/affirmation will be incomplete and it cannot be said that in such circumstances, the affidavit is duly attested. It EP 7/2011 31 ## will be a defective affidavit.” 29. It may not be possible to refer to the provisions of the Notaries Act to determine whether the affidavit as per the Act is proper or not. At the risk of repetition, one may notice that the Representation of the People Act being a self contained code, restrictions and conditions will have to be culled out from the provisions of the Act itself. It is unnecessary to dilate on this aspect for the simple reason that the very same question has been considered in **Anil v. Babu.M.Palissery,** the relevant portion of which has already been referred to. It can, thus, be seen that the two grounds urged for setting aside the election do not fall within the ambit of Section 100 of the Act. 30. A defective affidavit, even assuming it is alleged to be correct, as is now raised by the petitioner, does not provide a ground to set aside the election, it will be an idle exercise to adduce evidence in that regard. It will be a sheer waste of time. It follows that the learned EP 7/2011 32 counsel for the first respondent is fully justified in his submission that the petition does not disclose a cause of action and it has to be summarily rejected. That this court has the power to reject a petition at the threshold itself is concluded by the decision in **Sapna v. United India Insurance Company Limited** (2008) 7 SCC 613) wherein it was held as follows : - “21. The learned Single Judge, after review of the allegations contained therein has rightly concluded that these allegations are no precise allegations so as to show that these are serious allegations to be tried in the election petition. The learned Single Judge has gone through all these allegations and it also appears to us to be most unbelievable and impracticable sequence of events. It is easy to allege without giving the detailed particulars whether the whole thing transpired within a hearing distance. We are in EP 7/2011 33 full agreement with the view taken by the learned Single Judge and we are of the opinion that the learned Single Judge has correctly appreciated that this case lacks in particularity, any allegation of bribery as contained in Section 123 read with Section 83 of the Act. 22. The appellant in person has taken us through various decisions of this court. The following are the list of cases cited by the appellant. - (i) Roop Lal Sathi v. Nachhattar Singh Gill (1982) - 3 SCC 487 - (ii) F.A.Sapa v. Singora (1991) 3 SCC 375 - (iii) T.M.Jacob v. C.Poulose (1999) 4 SCC 274) - (iv) Sardar Harcharan Singh Brar v. Sikh Darshan Singh (2004) 11 SCC 196) - (v) Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511. No useful purpose will be served by referring to EP 7/2011 34 all these cases. The ratio of all these cases is that the election petition should contain the allegation of bribery in a concise manner within material particulars. Material particulars disclosed in the petition as mentioned above, are not sufficient to be gone into for trail We are in full agreement with the view taken by the learned Single Judge. Therefore, we find no merit in he appeal and the same is dismissed.” 31. In **Samar Singh v. Kedal Nath** (AIR 1987 SC 1926), the Apex Court has held as follows : “If an election petition does not disclose cause of action, it can be dismissed summarily at the threshold of the proceeding under Order 7 Rule 11 of the Code of Civil Procedure. If an election petition can be summarily rejected at the threshold of the proceeding, the same can also be rejected at any state of subsequent proceeding. If, after framing of issues, basic EP 7/2011 35 defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition be rejected, under Order 7 Rule 11 and the Court would be acting within its jurisdiction, in considering the objection. Order 7 Rule 11 does not place any restriction or limitation on the exercise of Court's power ; it does not either expressly or by necessary implication provide that power under Order 7 Rule 11 CPC should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision, it is open to the court to exercise that power at any stage. While it is true that ordinarily preliminary objection as to maintainability of the petition on the ground of absence of cause of action should be raised by he respondent as early as possible but if a party raises objections after filing written statement, EP 7/2011 36 the preliminary objection cannot be ignored. If the election petition does not disclose any cause of action, the respondent's right to raise objection to the maintainability of the petition or the court's power to consider the objection is not affected adversely merely because the objection is raised after filing of written statement or framing of issues. The court would be acting within its jurisdiction in exercise of its power under Order 7 Rule 11 in rejecting the same even after settlement of issues. AIR 1963 Guj.79 overruled.” In the result, for the reasons already stated, the Election Petition is rejected for want of cause of action. Send copies as per law. ## **P.Bhavadasan, Judge** sta EP 7/2011 37 EP 7/2011 38