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N.P. Chengalraya Naidu Vs. G.N. Pattabhi Reddi - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberSpecial Appeal No. 3 of 1963
Judge
Reported inAIR1964AP164
ActsRepresentation of the People Act, 1951 - Sections 83 and 83(1); Code of Civil Procedure (CPC) - Order 6, Rule 15; Indian Penal Code (IPC) - Sections 191
AppellantN.P. Chengalraya Naidu
RespondentG.N. Pattabhi Reddi
Appellant AdvocateM. Krishna Rao, Adv. for ;D. Narsa Raju, Adv. General, ;S. Parvatharao and ;A. Subbarao, Advs.
Respondent AdvocateP. Ramchandra Reddy, Adv.
DispositionAppeal allowed
Excerpt:
.....in absence of affidavit required under relevant provisions of act - petition filed before election commission at new delhi - petition transferred to additional district court judge at chittoor designated as election tribunal - tribunal dismissed petition - appeal before high court - lack of penal provisions in absence of affidavit means it is not mandatory - held, appeal allowed and case reverted back to tribunal for adjudication after receiving affidavit from appellant. - - it is now well settled that the defect is one of procedure and not of jurisdiction. 27. the present case is an a fortiori case and stands on a better footing. it is one of the rules of construction that a provision like this is not mandatory unless non-compliance with it is made penal. the tribunal is..........of 333 votes.3. shortly thereafter, on april 6, 1962, the appellant presented a petition to the election commission at new delhi, in which he alleged that the respondent had committed several corrupt practices, and claimed a declaration that his election was void. the petition was, in due course, transmitted by the election commission to the additional district judge, chittoor who has been designated as an election tribunal.4. the respondent filed his written statement on september 27, 1962, denying the allegations made against him. in paragraph 3 of his written statement, he pleaded that the averments in the petition were vague and devoid of necessary particulars and it was therefore liable to be dismissed in limine. in paragraph 4, he raised the contention that the appellant was, in.....
Judgment:

Satyanarayana Raju, J.

1. This is an appeal, under section 116A of the Representation of the People Act (hereinafter referred to as 'the Act') from an order made by the Election Tribunal, Chittoor, dismissing an election petition filed by the appellant.

2. In February 1962, general elections were held for the Andhra Pradesh Legislative Assembly.

The appellant and respondent were the contestants from the Vepanjeri constituency in the District of Chittoor. The poll was held in the various polling stations of the constituency on February 19, 1962. The total number of votes polled was 51,278. The respondent secured 25,131 votes and the appellant, 24,798. The invalid votes were 1,349. The Returning Officer declared the respondent to have been duly elected by a majority of 333 votes.

3. Shortly thereafter, on April 6, 1962, the appellant presented a petition to the Election Commission at New Delhi, in which he alleged that the respondent had committed several corrupt practices, and claimed a declaration that his election was void. The petition was, in due course, transmitted by the Election Commission to the Additional District Judge, Chittoor who has been designated as an Election Tribunal.

4. The respondent filed his written statement on September 27, 1962, denying the allegations made against him. In paragraph 3 of his written statement, he pleaded that the averments in the petition were vague and devoid of necessary particulars and it was therefore liable to be dismissed in limine. In paragraph 4, he raised the contention that the appellant was, in law, bound to file an affidavit in the prescribed form in support of the allegations of corrupt practices referred to in the petition and that this requirement not having been complied with, the petition should be rejected.

5. The Tribunal framed the necessary issues for trial. The first issue was as follows:

'Whether the petition is liable to be dismissed in limine for any of the reasons stated in paragraphs3 and 4 of the written statement?'

6. As this issue raised a substantial question of law, the Tribunal posted the petition for hearing on that issue. Before the date fixed for the hearing of the petition, the appellant filed a rejoinder and also an application, I. A. No. 2 of 1962, requesting the Tribunal to receive an affidavit. The respondent filed a counter on October 16, 1962 opposing the petition. By its order dated October 20, 1962, the Tribunal held that the requirement of law laid down by the proviso to Section 83 of the Act not having been complied with, there was no valid representation of the election petition. In this view, the Tribunal dismissed the election petition under Section 90(3) of the Act.

7. It is contended by the learned counsel for the appellant that the order of the Tribunal on the preliminary issue is erroneous and contrary to the provisions of the Act. It is contended on behalf of the respondent that the proviso to Section 83 made it obligatory on the part of the appellant, to file an affidavit in the prescribed form and that non-compliance with the mandatory requirement of that proviso, rendered that petition ineffectual.

8. Before considering the respective contentions of the parties, if is necessary to set out the material provisions of the Act, relevant to the matters canvassed before us.

9. Part VI of the Act deals with disputes regarding elections. Chapter I of this part is the definition chapter. Chapter II consists of six sections. Section 80, which occurs in this chapter, provides that:

'No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.'

10. Section 81 provides that an election petition calling in question any election may be presented on one or more of the grounds specified in Subsections (1) and (2) of Section 100 and Section 101 to the Election Commission by any candidate al such election of any elector within forty-five days from, but not earlier than, the date of publication of he name or Dames of the returned candidate or candidates. Section 82, prescribes who are the necessary parties to such petition.

11. Section 83, which is material for the purpose of the present appeal, reads as follows:

'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 practices 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 (V of 1903) 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.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.'

The proviso has been introduced by Amendment Act XL of 1961.

12. Section 84 provides for the reliefs that may be claimed by the petitioner. Section 85 enjoins the Election Commission to dismiss the petition if the provisions of Section 81, or Section 82 or Section 117 have not been complied with, provided however, that the petition is not to be dismissed without giving the petitioner an opportunity of being heard. Section 90 prescribes the procedure to be followed by the Election Tribunal, and Section 90(3) enjoins the Tribunal to dismiss an election petition which does not comply with the provisions of Section 81, or Section 82 or Section 117, notwithstanding that it has not been dismissed by the Election Commission under Section 85. Section 117 refers to the deposit of security by the petitioner for the costs of the petition.

13. Now, we may refer to the Conduct of Election Rules made by the Union Government. Rule 94-A. which was added subsequent to the amendment of Section 83, is in the following terms:

'Form of affidavit to be filed with election petition: The affidavit referred to in the proviso to Subsection (1) of Section 83 shall be sworn before a Magistrate of the First Class or a Notary or a Commissioner of Oaths and shall be in Form 25.'

14. Pursuant to the rule, Form No. 25 was added, which is as follows

'Form No. 25 (Affidavit)

(See Rule 94-A).

I.....the petitioner in the accompanying election petition calling in question the election of Shri/Shrimathi ..... (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 theparticulars of such corrupt practice mentioned in paragraphs ..... of the same petition and inparagraphs ..... of the schedule annexed thereto are true to my knowledge:

(b) that the statement made in paragraphs ......of the said petition about the commission of the corrupt practice given in paragraphs ..... of the laidpetition and in paragraphs ..... of the schedule annexed thereto are true to my information.'

15. Section 83, even before its amendment by Act XL of 1962 contained a specific provision that the petition should set forth full particulars of any corrupt practice that the petitioner alleges, and should be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The proviso says that where the petition contains allegations of any corrupt practice, it shall also be accompanied by an affidavit in the prescribed form. Therefore, in addition to the verification required by Section 83(1)(c), it is now necessary that the petitioner should file an affidavit in conformity with Rule 94-A and Form No. 25.

16. The form of verification, as provided in the Civil Rules of Practice, is as follows:

'I declare that what is stated in paragraph (......)is true to my knowledge and that what is stated in paragraph (.....) is stated on information and belief and I believe the same to be true.'

The form of affidavit requires that the petitioner make a solemn affirmation/oath subscribing to the allegations.

17. It should be remembered that charges of corrupt practice are quasi criminal in character and involve penal consequences. It would appear that the intention of the Legislature in adding the proviso to Sub-section (1) of Section 83, was to make the petitioners realise the seriousness of making allegations of corrupt practices. We find on a reference to Section 191 of the Indian Penal Code, that a verification which implies the making of a declaration and a statement made on affirmation which is implied in swearing to an affidavit, both stand on the same footing.

18. Section 191, Indian Penal Code reads:

'Whoever being legally bound by an oath or by an express provision of law to stale the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.'

19. From the above provision, it is manifest that tie making of a false statement or a statement which the deponent does not believe to be true, either on oath or by a declaration are both within the ambit of the definition of 'giving false evidence' and involve the same consequences which arc provided in Section 193 of the Indian Penal Code.

20. Sri Ramachandra Reddy has rightly contended that the Legislature has introduced the proviso to Section 83 by means of the Amending Act, and it must be concluded that the Legislature has made a purposeful addition. Even so, the question still remains as to whether the non-compliance with the requirements of the proviso to Section 83 entails the dismissal of the petition in limine.

21. It is argued by Sri Ramchandra Reddy that Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of the Act, and that, therefore, there can, in law be no valid presentation of a petition if it does not comply with the requirements of Section 83.

22. In the context of this contention, we may refer to Order 6, Rule 3 5 of the Code of Civil Procedure, which provides for the verification of pleadings. That Rule reads:

'...Every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.'

Sub-rule (2) of Rule 15 says that the person verifying shall specify, by reference to the number of paragraphs of the pleading, what he verified of his own knowledge and what he verifies upon information received and believed to be true.

23. Section 83(1)(c) of the Act, in fact, provides that an election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. This provision, therefore, incorporates by reference the provisions of Order VI, Rule 15, C. P. C.

24. We need only refer to three decisions which were rendered by the High Courts of Calcutta, Allahabad and Bombay. In Ram Gopal Ghose v. Dhirendranath Sen, ILR 54 Cal 380: (AIR 1927 Cal 376) Page, J., held that

'when a pleading docs not conform to the provisions of Order 6, Rule 15, the defect therein is a mere irregularity that can be cured by amendment.' The learned Judge held that the plaint must be taken to have been presented on the date when it was originally filed and not on the date when the verification was made. Quoting from a Judgment of Lindley, L. J., in Sidebotham v. Holland, (1895) 1 QB 378, the learned Judge observed that the right of litigants ought not to be decided upon 'the splitting of a straw'.

25. In Wali Mohammed Khan v. Ishak Ali Khan, ILR 54 All 57: (AIR 1931 All 507) a Full Bench of the Allahabad High Court, consisting of Sulaiman, Ag. C. J., Young and Sen JJ., held that the omission to comply with the provisions regarding the presentation of a plaint was a mere irregularity and did not amount to an absence of jurisdiction. A similar view was taken by the Bombay High Court in Ephrayim v. Turner Morrison and Co. AIR 1930 Bom 511.

26. From the above decisions, it is clear that a pleading, which is not verified in the manner required by Order 6, Rule 15, C. P. C., may be verified at a later stage of the suit, even after the expiry of the period of limitation and the omission to verify a pleading is a mere irregularity which can be cured by allowing the matter to be rectified by a subsequent amendment. It is now well settled that the defect is one of procedure and not of jurisdiction.

27. The present case is an a fortiori case and stands on a better footing. It is not disputed that the election petition is in conformity with the requirements of Section 83(1))(b) and (c). The petition has set out the particulars of the corrupt practices and has been verified in the manner laid down in the Code of Civil Procedure. The only omission is that it is not accompanied by an affidavit in support of the corrupt practices.

28. It is, however, argued that Section 83 is mandatory and non-compliance with its requirements entails the dismissal of the petition. This contentionrests on the use of the word 'shall'. As we have already indicated even Order 6, Rule 15, C.P.C., uses the word 'shall'. That apart, as pointed out by their Lordships of the Supreme Court in Collector of Monghyr v. Keshav Prasad, : [1963]1SCR98 :

'It is needless to add that the employment of the auxiliary verb 'shall' is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof.'

29. The following passage from the judgment of their Lordships of the Supreme Court in Jagannath v. Jaswant Singh, : [1954]1SCR892 is apposite:

'It is one of the rules of construction that a provision like this is not mandatory unless non-compliance with it is made penal.'

30. The next of the questions for consideration is whether any penal consequences have been provided for non-compliance with the provisions of Section 83. Under Section 85, the Election Commission is given power, in express terms, to dismiss a petition which does not comply with the requirements of Section 81 or Section 82 or Section 117. Even here, the proviso says that the petition shall not be dismissed without giving the petitioner an opportunity of being heard. So too, Section 90(3) empowers the Tribunal to dismiss an election petition which does not comply with the provisions of section 81 or Section 82, notwithstanding that it has not been dismissed by the Election Commission under Section 85. The reason for omitting Section 117 from the purview of Section 90(3) is obvious. If the necessary deposit as required by Section 117 is not made, the Election Commission itself is empowered to dismiss the petition and it is only after the petition has been entertained by the Election Commission that it is sent to the Tribunal for trial.

31. Now, it is plain from Sections 85 and 90(3) that if is only non-compliance with the provisions of Section 81 or Section 82 that would empower the Election Commission or the Tribunal to dismiss a petition. Section 81 deals with the manner of presentation of an election petition. Section 82 deals with the parties to the petition. It is here necessary to refer to Section 98, which provides that an election petition can only be dismissed at the conclusion of the trial and on grounds sufficient to dismiss it. It is manifest that the penalty of dismissal is not provided for in the case of non-compliance with the terms of Section 83. We are, therefore, unable to accept the contention that the provisions of this section arc mandatory.

32. There is authority even in the judgment of their Lordships of the Supreme Court, on which this conclusion can be supported. In : [1954]1SCR892 their Lordships had to consider the effect of non-observance of the provisions of Section 82. They held that the non-joinder of a duly nominated candidate, who had withdrawn his candidature, was not fatal to the maintainability of the petition. The judgment of their Lordships of the Supreme Court was rendered with reference to Sections 82 and 83 as they stood before their amendment in 1956. The learned Chief Justice, observed:

'It is significant that both the Election Commission and the Tribunal have been given powers in express terms to dismiss an election petition which does not comply with the requirements of Sections 81, 83 and 117 but no such powers are given to dismiss a petition in limine which does not comply with the provisions of Section 82. Such a petition can only be dismissed at the conclusion of the trial and on grounds sufficient to dismiss it.'

33. In Balwan Singh v. Lakshmi Narain, : [1960]3SCR91 the Supreme Court had to consider the question as to the consequences of the omission to comply with the procedure indicated in Section 83. It was held by their Lordships of the Supreme Court that the Act, as amended by Act 27 of 1956, did not impose the penalty of dismissal of a petition or the striking out of the plea of corrupt practice merely because particulars in that behalf were not set out. The following observations of their Lordships are pertinent in the present context:

'Where an objection is raised by the respondent that a petition is defective because full particulars of an alleged corrupt practice are not set out; the Tribunal is bound to decide whether the objection is well founded. If the Tribunal upholds the objection, it should give an opportunity to the petitioner to apply for leave to amend or amplify the particulars of the corrupt practice alleged; and in the event of non-compliance with that order, the Tribunal may strike out the charges which remain vague.'

34. In recent judgment in Dantu Bhaskara Rao v. C. V. K. Rao, Special Appeal No. 52 of 1962 (AP), a Division Bench of this Court, consisting of the Chief Justice and Gopaiakrishnan Nair, had to consider a somewhat similar question. There, the facts were these: The poll took place in February 1962 and the defeated candidate presented an election petition before the Election Commission, New Delhi, on April 7, 1962. The petition contained allegations of corrupt practices falling within the terms of the Act. It was accompanied by an affidavit in support of the allegations of corrupt practices as required by the relevant statutory provisions. The petition was forwarded to the Election Tribunal, Eluru, in due course. Before the trial was taken up it was discovered that the affidavit did not conform to Rule 94-A in that the affidavit was not sworn to before a Magistrate of the First Class or a Notary or Commissioner of Oaths. The petitioner filed an application before the Election Tribunal on August 25, 1962, more than four months after the presentation of the petition, requesting the Tribunal to accept an affidavit in the prescribed form and to condone the delay in the filing of the affidavit. This was opposed by the successful candidate, the respondent in the petition. But in spite of his opposition, the application was allowed and the trial of the petition proceeded with. It was contended before the Division Bench that the Election petition not having been presented in accordance with the requirements of the proviso in Sub-section (1) of Section 83 it was not a valid petition and should have been dismissed by the Election Tribunal on that ground. This contention was elaborately considered by the learned Judges and was repelled, as not sustainable.

35. Sri Ramachandra Reddy has, however, argued that the decision is distinguishable for the reason that there an affidavit was in fact filed though it was defective in form, and that the conclusions reached by the learned Judges would not apply to the present case. We may point that a defective affidavit is no affidavit in the eye of law and, therefore, the case where no affidavit is filed at all is not distinguishable from a case where defective affidavit is filed. It would be seen that the Election-Tribunal allowed the petitioner to rectify the defects in the affidavit after the expiry of the period of 45 days provided by Section 81(1) of the Act. In the present case also, the petitioner filed an affidavit before the Tribunal with a petition to excuse the delay in filing thesame. But the Tribunal rejected the petition, with the consequence that the main election petition itself was held to be not maintainable. We may observe that the reasoning by which the learned Judges of the Division Bench came to conclusion that non-compliance with the requirements of the proviso to Sub-section (1) of Section 83 would not entail the dismissal of an election petition, applies with equal force to the present case. We are unable to agree with the learned counsel's contention that the above decision is distinguishable.

36. Sri Ramachandra Reddy has then contended that the omission to include Section 83 within the ambit of Sections 85 and 90(3) might have been the result of inadvertence or oversight. We do not think that we can attribute either inadvertence or oven-sight to the legislature. Indeed in the Representation of the People Act, 1951, Section 83 was one of the Sections, the non-compliance with the provisions of which, entailed the dismissal of an election petition under Sections 85 and 90. But the Legislature has since amended the Act by Act 27 of 1956, substituting Section 82 for Section 83 the amendment was designedly made and we are unable to agree with the contention that the omission of Section 83 in the present Sections 85 and 90 of the Act was by inadvertence or over-sight.

37. It only remains to refer to the decision, which the Tribunal has relied upon in support of the conclusion which it has reached. The first of them is Balakrishna Industrial Works v. C.S. Venkatachari, : AIR1954Mad883 where Subba Rao and Panchapakesa Ayyar JJ. held that the provisions of Order 41, Rule I of the Code of Civil Procedure were imperative and the presentation of a memorandum of Civil Miscellaneous Appeal without a copy of the decretal order appealed against was not a valid presentation. It may be noted, however, that in that case the appellant filed a petition subsequently requesting the Court to receive the certified copy of the decretal order which was not originally filed. The learned Judges held that the delay in filing the decretal order should be condoned and the appeal should be entertained.

38. The provisions of Order 41, Rule 1, C. P. C.,were also considered by their Lordships of the Supreme Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava, : [1961]2SCR918 . Their Lordships while holding that the requirement of Order 41, Rule 1, that a certified copy of the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent, observed as follows:

'.....no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order 41, Rule 1. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects.'

39. These observations indicate that a defect of the present nature can be subsequently remedied and docs not warrant the dismissal of the election petition in limine.

40. It is not necessary to refer to the other two cases relied upon by the Election Tribunal. They are clearly distinguishable and do not apply to the facts of the present case.

41. As a result of the foregoing discussion and on a consideration of the relevant sections in Part VI of the Act, we hold that the omission on the part of the petitioner to file an affidavit along with his election petition, as required by the proviso to Section 83(1), is not fatal to the maintainability of the petition.

42. We may now notice a contention raised by the learned counsel for the respondent that in any view of the matter, the Election Tribunal should not now be directed to receive the affidavit, but that the question of its reception should be left to its discretion. As we have already indicated, the appellant had already filed an application requesting the Tribunal to receive the affidavit, in I. A. No. 2 of 1962. The Tribunal dismissed the application as well as the main election petition. Having regard to the conclusion which we have reached that the main election petition should not have been dismissed on the ground that it was not maintainable, by reason of the non-compliance with the provisions of Section 83, we hold that the Election Tribunal ought not to have dismissed the application for receiving the affidavit. The order of the Tribunal in I. A. No. 2 of 1962 is set aside.

43. The Election Tribunal, Chittoor, will now re-entertain the Election Petition on its file and after receiving the affidavit, dispose of the petition in accordance with law.

44. In the result, this appeal is allowed withcosts. Advocate's fee Rs. 250/-.


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