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D. Sanjeevayya Vs. the Election Tribunal, Hyderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1183 of 1963
Judge
Reported inAIR1966AP9
ActsRepresentation of the People Act, 1951 - Sections 86 and 86(1)
AppellantD. Sanjeevayya
RespondentThe Election Tribunal, Hyderabad and anr.
Appellant AdvocateT. Lakshmaiah and ;K. Venkataramaiah, Advs.
Respondent AdvocateP. Ramachandra Reddy, 3rd Govt. Pleader and ;B. Balmukunda Reddy, Adv.
DispositionPetition dismissed
Excerpt:
.....not fulfilling conditions of section 86 - whether it is incumbent on election commission to cause copy of affidavit accompanying election petition to be published in official gazette and to be served on petitioner before referring petition to election tribunal - legislature had not intended so otherwise it would have provided in section 81 (3) - section 86 (1) does not require copy of affidavit to be published in gazette or copy to served on each of respondents to an election petition - held, such non publication and non service of affidavit does not constitute incurable illegality. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in..........and to be sewed on the respondent to an election petition, before inferring the petition to an election tribunal for trial2. before answering this question, it is necessary to get out a few preliminary facts which are not in dispute. at the last general election to the andhra pradesh legislative assembly held in february, 1962, the petitioner in this writ petition and the 2nd respondent were the contesting candidates for election from the kodumuru constituency in kurnool district. on february 25, 1962, the petitioner was declared to have been elected by a majority of about seven thousand votes. the result of the election was duly notified in the andhra pradesh gazette on march 3, 1962.3. on april 11, 1962, the 2nd respondent presented an election petition (election petition no. 180.....
Judgment:

Basi Reddy, J.

1. Although arguments in this case have travelled far and wide, the central question that falls for determination is a short and simple one, and may be formulated thus:

Whether under Section 86(1) of the Representation of the People Act, 1951, it is incumbent on the Election Commission to cause a copy of an affidavit accompaying in election petition, to be published in the Official Gazette and to be sewed on the respondent to an election petition, before inferring the petition to an Election Tribunal for trial

2. Before answering this question, it is necessary to get out a few preliminary facts which are not in dispute. At the last General Election to the Andhra Pradesh Legislative Assembly held in February, 1962, the petitioner in this writ petition and the 2nd respondent were the contesting candidates for election from the Kodumuru Constituency in Kurnool District. On February 25, 1962, the petitioner was declared to have been elected by a majority of about seven thousand votes. The result of the election was duly notified in the Andhra Pradesh Gazette on March 3, 1962.

3. On April 11, 1962, the 2nd respondent presented an election petition (Election Petition No. 180 of 1962) under Section 81 of the Representation of the People Act, 1951--hereinafter called 'the Act'--calling in question the election of the petitioner on various grounds including certain corrupt practices specified therein. The election petition was in the form prescribed by Section 83 of the Act and contained a statement of the material facts on which the 2nd respondent sought to rely as also the particulars of the several corrupt practices alleged to have been committed by the petitioner and the names of the parties involved in them. The petition was signed and verified by the 2nd respondent as required by Section 83(1)(c) of the Act. Furthermore, as contemplated by the Proviso to Sub-section (1) of Section 83, the petition was accompanied by an affidavit in the prescribed form in support of the allegations of corrupt practices and the particulars thereof.

4. In pursuance of the provisions of Sub-section (1) of section 86 of the Act, the Election Commission published a copy of the election petition in the Official Gazette on April 27, 1962 and also caused a copy of the petition to he served on the writ-petitioner, that is to say, the respondent to the election petition. Thereafter, on July 31, 1962 the election petition was referred to the Election Tribunal, Hyderabad -- respondent No. 1 in this writ petition -- for trial. In due course, the writ petitioner filed his written statement, and on the pleadings, the Tribunal framed as many as twenty-two issues on February 27, 1963. Five months thereafter, in July 1963, the petitioner filed an application before the Tribunal (Interlocutory Application No. 20 of 1963) putting forward a fresh plea, challenging the validity of the reference made by the Election Commission and the competence of the Tribunal to proceed with the trial of the election petition upon such reference. The Tribunal framed a new issue as issue No. 23 as follows:

'Is the reference to the Tribunal by the Election Commission of Election Petition No. 180 of 1962 ultra vires and invalid for the reason that it was not preceded by the fulfilment of the conditions viz., publication of the affidavit in the Gazette and the service of the affidavit on the respondent.'

5. After hearing elaborate arguments and afler taking note of the fact that the plea was a belated one and but for the fact that it related to the jurisdiction of the Tribunal to hear and dispose of the petition, it would have been summarily rejected, the Tribunal, by a well-reasoned order dated September 10, 1963, dismissed the Interlocutory Application.

6. Thereafter, on October 21, 1963, the present writ petition was filed in this Court on the same grounds as those urged in the application filed before the Tribunal. A rule nisi was issued by this Court on October 22, 1963 and by an ad interim order, the proceedings before the Tribunal were stayed. For one reason or another the writ petition did not come up for hearing till the last week with the result that the writ petition has been pending in this Court for over a year. It came up for hearing before us on December 15, 1964. The previous day i.e. on December 14, 1961, a petition numbered as C.M.P. No. 13639 of 1964 was filed on behalf of the writ petitioner purporting to be one under Order 1, Rule 10 Civil Procedure Code with a prayer that the Election Commission of India, New Delhi, may be added as party-respondent to the writ petition, in that it was the reference made by it that was being assailed in the writ petition. It is to be mentioned that in the writ petition filed over a year earlier, only the Election Tribunal, Hyderabad, and P. Rajaratna Rao, the petitioner in the Election Petition, were impleaded as respondents. By a separate order, we have summarily rejected that petition on the grounds that it had been filed at the eleventh hour and that the Election Commission is neither a necessary nor a proper party to the writ petition.

7. We now turn to the arguments advanced by Mr. T. Lakshmaiah, the learned advocate for the writ-petitioner. His first contention was that by virtue of the Proviso to Sub-section (1) of Section 83 of the Act, an affidavit accompanying an election petition forms an integral and inseparable part of it, and as such, under the terms of Section 86, before an election petition is referred to an Election Tribunal for trial, not only a copy of the petition but also a copy of the affidavit should be published in the Official Gazette and a copy should be served on the respondent to the election petition. It was maintained that such publication and service of the affidavit, are conditions precedent to a valid reference and they are the essential pre-requisites to the exercise of the jurisdiction by the Election Commission to refer an election petition to a Tribunal for trial. It was further urged that the requirement as to publication and service of the affidavit, is mandatory and not directory, and a disregard of it does not constitute a mere procedural irregularity which is capable of being cured.

8. In our considered opinion, this contention is far-fetched and wholly untenable. In the first place, there is nothing in the terms of section 86 of the Act which countenances the argument of the learned advocate for the petitioner that in addition to a copy of an election petition, a copy of the affidavit accompanying such petition should also be published in the Gazette and served on a respondent to an election petition. SECTION 86(1), which is material for the present purpose, providers:

'86. Appointment of Election Tribunal: (1) if the petition is not dismissed under Section 85, the Election Commission shall cause a copy thereof to be published in the Official Gazette and a copy to be served by post on each respondent, and shall then refer the petition to an Election Tribunal for trial.'

If the Legislature had intended to place an affidavit on a par with an election petition, one would have expected some reference to an affidavit in Sub-section (1) of Section 86; but there is no mention at all of an affidavit in that sub-section.

9. It was, however, argued with pointed reference to the Proviso to Sub-section (1) of Section 83 of the Act, that an affidavit forms part and parcel of an election petition and an election petition unaccompanied by an affidavit, is no petition in the eye of the law for any purpose. This argument again is devoid of force. Sub-section (1) of Section 83 runs as follows:

'83. Contents of petition -- (1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.' This proviso was inserted by Amendment Act XL of 1961 and as a consequence, a new Rule was added as Rule 94-A to the Conduct of Election Rules, providing for the form of the affidavit to be filed along with an election petition. The prescribed form is Form No. 25, which is as follows:

'Form No. 25 (Affidavit) (See Rule 94-A)

I ..... the petitioner in the accompanyingelection petition calling in question the electionof Sri/Srimati ... ... (Respondent No. ....

in the said petition) make solemn affirmation/ oath and say:

(a) that the statements made in paragraphs .....of the accompanying election petition about the commission of the corrupt practice of and the particulars of such corrupt practice mentioned in paragraphs .... .of the same petition and in paragraphs ...... of the schedule annexed thereto are true to my knowledge

(b) that the statements made in paragraphs. . . of the said petition about the commission ofthe corrupt practice of .... and the particularsof such corrupt practice given in paragraphsof the said petition and in paragraphs . . ofthe schedule annexed thereto are true to my information.'

10. The intention of the legislature in insisting on an affidavit, was presumably to put a curb on reckless allegations of corruption, by holding out a threat of prosecution for perjury in the event of the allegations turning out to be false. It does not seem to serve any other purpose. In this context, it in important to note that the affidavit referred to in the Proviso is more or less a replica of the verification already provided for by Section 83(1)(c) and as envisaged by Order VI, Rule 15 of the Civil Procedure Code, except that the affidavit is required to be solemnly affirmed or sworn to before a Magistrate of the First Class or a notary or a Commissioner of Oaths, Besides, an affidavit in Form No. 25 does not furnish any additional information touching the corrupt practices alleged and amplified in the election petition and it would therefore he of little use to a respondent in an election petition, in preparing his written statement in answer to the allegations made against him. That being so, the publication or service of an affidavit would be nothing but an idle and purposeless formality. That was apparently the reason why the legislature did not deem it necessary to provide for the service of a copy of the affidavit on a respondent to an election petition or for its publication in the Official Gazette.

11. A reading of section 81 reinforces this conclusion. That section deals with the presentation of election petitions and prescribes the time within which and the manner in which, an election petition should be presented. Sub-section (3), which is material, was added by the same amending Act (Act XL of 1961) which added the Proviso to Sub-section (1) of Section 83, requiring an affidavit to accompany an election petition. By Sub-section (3) of Section 81, it is provided:

'Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.'

12. It will be observed that this sub-section requires as many copies of an election petition as there are respondents, to be sent along with an election petition, obviously with a view to enable the Election Commission to cause a copy of the petition to be served on each of the respondents to the election petition. It is pertinent to note that this sub-section does not require copies of an affidavit to be forwarded to the Election Commission along with copies of an election petition and this is so because Section 86(1) does not require a copy of the affidavit to be published in the Gazette or a copy to be served on each of the respondents to an election petition. Had the legislature thought the publication and service of an affidavit were necessary under Section 86(1), it would certainly have provided in Sub-section (3) of Section 81 for the sending of copies of the affidavit along with copies of the election petition to the Election Commission, The absence of such a provision is, in our opinion, a sure indication that the affidavit which has to accompany an election petition by virtue Of the Proviso to Section 83(1), is not meant to be published in the Gazette or served on the respondent to an election petition under Section 86(1) of the Act. For the above reasons, we hold that the contention of the learned advocate for the petitioner is devoid of substance and we unhesitatingly overrule it.

13. Since we are definitely of the view that Section 86(1) does not contemplate the publication or service of an affidavit which accompanies an election petition, the further question mooted by Mr. Lakshmaiah as to whether the non-publication and non-service of an affidavit, would constitute an incurable illegality or a curable irregularity, does not arise.

14. However, since the learned advocate for the petitioner has complained in the course of his arguments before us that he does not even know what the affidavit filed by the 2nd respondent contains, we direct the Election Tribunal to cause a copy of the affidavit to be supplied to the petitioner's advocate and then proceed with the trial of the election petition.

15. In the result, the writ petition fails and is dismissed with costs of the 2nd respondent. Advocate's fee Rs. 100.


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