A. MANJU versus PRAJWAL REVANNA @ PRAJWAL R & ORS on 13 December 2021

1. The moot point for consideration in the present appeal is whetherBan election petition can be thrown out at the threshold on a plea of therespondent/elected candidate that the petition is not supported by anaffidavit in Form 25, as prescribed under Rule 94A of Conduct of ElectionRules, 1961, even though the petition is based on allegations of corruptpractices.C2. The appellant was a candidate from 16 Hassan (General)Parliamentary Constituency (for short ‘Constituency’) in the 2019elections and was stated to have been sponsored by the Bharatiya JanataParty. Respondent No.1 was sponsored by Janatha Dal Secular Partyand was also a candidate from the Constituency. Respondent Nos. 2 to6 were sponsored by local/regional parties but, as transpired from theDelections, were not serious contestants in real terms. The ElectionCommission of India issued a notification on 12.01.2019 appointing aReturning Officer to the Constituency where elections were held on18.04.2019. The appellant secured 5,35,282 votes while respondent no.1secured 6,76,606 votes. The other respondents secured only marginalvotes.E

3. The appellant preferred an election petition under Section 81 ofthe Representation of People Act, 1951 (hereinafter referred to as the‘RP Act’) on 26.06.2019 challenging the election of respondent no.1.The appellant sought a declaration that respondent no.1’s election wasFliable to be declared void on account of respondent no.1 having filed afalse affidavit and consequently the appellant should be declared as dulyelected on account of his having secured the second highest votes. Thispetition was resisted by respondent no.1 at the threshold who filed anapplication under Order VII Rule 11 read with Section 151 of the Codeof Civil Procedure, 1908 (hereinafter referred to as the ‘said Code’) andGSection 86(1) of the RP Act seeking dismissal of the election petition onaccount of non-compliance of Section 81(3) and the proviso to Section83(1) of the RP Act.

4. In order to appreciate the rival submissions of the learnedcounsel for the parties, it would be appropriate to extract the relevantHSections of the RP Act. Chapter II under Part VI of the RP Act deals with the Presentation of Election Petitions to the High Court. Thepresentation of petitions has to be as per Section 81 of the RP Act. Thecontents of an election petition are as set out in Section 83. The relevantprovisions read as under:

“81. Presentation of petitions.—

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[(3) Every election petition shall be accompanied by as manycopies thereof as there are respondents mentioned in the petition,and every such copy shall be attested by the petitioner under hisown signature to be a true copy of the petition.]”

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“[83. Contents of petition.—(1) An election petition—

(a) shall contain a concise statement of the material facts on whichthe petitioner relies; (b) shall set forth full particulars of any corrupt practice that thepetitioner alleges, including as full a statement as possible of thenames of the parties alleged to have committed such corruptpractice and the date and place of the commission of each suchpractice; and

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

[Provided that where the petitioner alleges any corrupt practice,the petition shall also be accompanied by an affidavit in theprescribed form in support of the allegation of such corrupt practiceand the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be signedby the petitioner and verified in the same manner as the petition.]”

Chapter III under Part VI of the RP Act deals with trial of electionpetitions. The relevant portion of Section 86 is extracted as under:

“[86. Trial of election petitions.—(1) The High Court shalldismiss an election petition which does not comply with theprovisions of section 81 or section 82 or section 117.”

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ASubmissions of Respondent No.1 before the High Court:

5. In the conspectus of the aforesaid provisions, we first set outthe pleas of respondent no.1 which it raised in its application before theHigh Court and on the basis of which the election petition was sought tobe dismissed at the threshold. The grievance in a nutshell is set outBbelow:

(a) non-compliance of Section 81(3) of the RP Act on the groundthat the election petition was not attested by the appellantunder his own signature as a true copy. Respondent no.1sought to rely on the mandatory nature of such complianceCas enunciated in Sharif-ud-din v. Abdul Gani Lone[1]andthe consequence of non-compliance was rejection of theelection petition under Section 86 of the RP Act. The objectof this rule is to ensure that the petitioner takes fullresponsibility of its contents and then the respondent in turnreceives a true and accurate copy of the petition.D

(b) Respondent no.1 alleged that the appellant had madeallegations against him in the election petition which wouldconstitute an allegation of “corrupt practice”. The provisoto Section 83(1) of the RP Act mandates that all allegationsof corrupt practice must be accompanied by an affidavit inEthe prescribed form in support of the allegations. The formof affidavit is as set out in Form 25 as per the mandate ofSection 94A of the Conduct of Election Rules, 1962(hereinafter referred to as the ‘Election Rules’). Themandatory requirement of the filing of such an affidavitFhas formed part of the observations in B.R. Patil v. RajeevChandrashekhar & Ors.[2]of the Karnataka High Courtand Purushottam v. Returning Officer, Amravati & Ors.[3]of the Bombay High Court.

Submissions of the Appellant before the High Court:

G6. On the other hand, the appellant sought to contest this applicationfiled by respondent no.1. It was urged that the appellant had in any casesubstantially complied with Section 81(3) by ascribing his signature and 1 (1980) 1 SCC 403

2 ILR 2007 Kar 317H3 AIR 1992 Bom 227

duly verifying every page of the election petition, including on the copiesfurnished to respondent No.1. Further, the index and synopsis of thepetition were not required to be attested as they were not part of theelection petition by their very description. In any case this was stated tobe substantial compliance in terms of Section 81(3) of the RP Act, whichrequired an election petition to be admitted in light of the observations ofthe Supreme Court in Ch. Subbarao v. Member, Election Tribunal,Hyderabad & Ors.[4]

7. On the second plea advanced by respondent No.1, the appellantcontended that the question of filing Form 25 would arise only if thereare any allegations of corrupt practice as defined by Section 123 of theRP Act. The appellant pleaded that the election petition actually fellwithin the purview of Section 33A of the RP Act as inserted by Act 72of 2002 which required certain information to be furnished by a candidate.Section 33A of the RP Act reads as under:

“33A. Right to information.—

(1) A candidate shall, apart from any information which he isrequired to furnish, under this Act or the rules made thereunder, inhis nomination paper delivered under sub-section (1) of section33, also furnish the information as to whether—

(i) he is accused of any offence punishable with imprisonmentfor two years or more in a pending case in which a charge hasbeen framed by the court of competent jurisdiction;

(ii) he has been convicted of an offence [other than any offencereferred to in sub-section (1) or sub-section (2), or covered insub- section (3), of section 8] and sentenced to imprisonmentfor one year or more.

(2) The candidate or his proposer, as the case may be, shall, at thetime of delivering to the returning officer the nomination paperunder sub-section (1) of section 33, also deliver to him an affidavitsworn by the candidate in a prescribed form verifying theinformation specified in sub-section (1).

(3) The returning officer shall, as soon as may be after thefurnishing of information to him under sub-section (1), display theaforesaid information by affixing a copy of the affidavit, delivered AB

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under sub- section (2), at a conspicuous place at his office for theinformation of the electors relating to a constituency for whichthe nomination paper is delivered.”

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The allegation in the election petition dealt with suppression ofinformation. The appellant did not allege Section 123 of the RPBAct against Respondent No.1 and the specific averment to corruptpractice made in para 32 was simply alluding to the observationsof this Court in Krishnamoorthy v. Sivakumar & Ors.[5], opiningthat non-disclosure of assets and income amounts to corruptpractice.

CThe decision of the High Court:

8. The learned single Judge of the High Court allowed theapplication filed by respondent no.1 by the impugned judgment dated17.01.2020. The learned Judge analysed the circumstances under whichthe election petition could be dismissed at the threshold by referring toDthe observations of this Court in H.D. Revanna v. G. PuttaswamyGowda & Ors.[6]and T. Phungzathang v. Hangkhanlian & Ors.[7]setting out only two circumstances in which the petition could bedismissed in limine: (i) non-compliance of Sections 81, 82 and 117 of theRP Act; and (ii) non- compliance of Section 83 only when the matterfalls within the scope of Order VI Rule 16 or Order VII Rule 11 of theEsaid Code.

9. In the conspectus of the pleas advanced, it was opined that asubstantial compliance of Section 81(3) of the RP Act saves an electionpetition from dismissal. We may add here that the only issue here wasabout the index and the synopsis not being signed by the appellant. In theFgiven facts, the appellant had attested the election petition with hisendorsement that it was a correct copy of the election petition and hencehad substantially complied with the requirements.

10. The more crucial issue examined by the High Court whichresulted in an adverse order against the appellant was qua the requirementGof submission of Form 25. The submission of respondent no.1 that filingof Form 25 would arise only if the allegations made in the election petitionpertained to Section 123 of the RP Act was repelled by the learned 5 (2015) 3 SCC 467

6 AIR 1999 SC 768

H7 (2001) 8 SCC 358

Single Judge. The learned Single Judge held that the use of the phrase“any corrupt practice” in the proviso to Section 83 of the RP Act coversallegations of every manner of corrupt practice envisaged under the RPAct. In any case, the High Court was of the view that the appellant hadalleged undue influence and improper acceptance of respondent No.1’snomination under Sections 123 and 100 of the RP Act respectively.Accordingly, the appellant’s submission that the allegations againstrespondent No.1 were confined only to Section 33A of the RP Act wasliable to be rejected.

11. The High Court thereafter proceeded to examine theconsequences of non-submission of Form 25 and opined that in view ofthe dictum laid down in Ponnala Lakshmaiah v. Kommuri PratapReddy & Ors.,[8]the absence of an affidavit or an affidavit in a formother than the one stipulated, would not itself cause prejudice to theelection petitioner so long as the deficiency was cured. However, in thecase at hand the appellant had not filed any affidavit. Thus, the PonnalaLakshmaiah[9]case would not come to the aid of the appellant. However,a closer case on facts would be of G.M. Siddeshwar v. PrasannaKumar[10]where a Three Judge Bench enumerated triple principles: (i)total non-compliance of Section 83 of the RP Act means that a petitioncannot be described as an election petition and must be dismissed at thethreshold; (ii) if defects are curable, then the petition cannot be dismissedsummarily as Section 86 of the RP Act sanctioned dismissal only fornon-compliance with Sections 81, 82 & 117 of the RP Act; and (iii) adetermination of the gravity of defects would have to be made in thefacts of each case, to determine whether there had been non-compliancewith an integral part of Section 83 or not. The High Court opined thatForm 25 was an integral part of the election petition and its completeabsence would mean that there was total non-compliance of Section 83of the RP Act. The election petition was, thus, held as not maintainable.

12. In the conspectus of the aforesaid finding the scope ofarguments before this Court became narrower.

Appellant’s submissions before the Supreme Court:

13. Learned counsel for the appellant sought to contend that thegrounds in the election petition were specific to Section 100(1)(d)(i) and 8 AIR 2012 SC 2638

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10 (2013) 4 SCC 776

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A(iv) of the RP Act. Section 100(1) of the RP Act reads as under:

“100. Grounds for declaring election to be void. –

[(1) Subject to the provisions of sub-section (2) if [the High court]is of opinion—

B(a)that on the date of his election a returned candidate wasnot qualified, or was disqualified, to be chosen to fill theseat under the Constitution or this Act [or the Governmentof Union Territories Act, 1963 (20 of 1963)]; or (b)that any corrupt practice has been committed by a returnedCcandidate or his election agent or by any other person withthe 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, in so far as it concerns aDreturned candidate, has been materially affected—

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests ofthe returned candidate [by an agent other than hiselection agent], orE

(iii) by the improper reception, refusal or rejection of anyvote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of theConstitution or of this Act or of any rules or ordersFmade under this Act, [the High Court] shall declare the election of the returned candidateto be void.]”

14. It was, thus, contended that the allegations deal with theimproper acceptance of the nomination and non-compliance with statutoryGprovisions. The allegations of corrupt practice are contained in Section123 and Section 100(1)(d)(ii) of the RP Act and the election petitiondoes not relate to either of these provisions. Thus, the submission ofForm 25 was not necessary.

15. It was further sought to be urged by referring to Section 83 ofHthe RP Act that the signing and verification of pleadings in terms of

Section 83(1)(c) of the RP Act if not complied with, cannot be fatal andthe circumstances in which a petition could be thrown out at the thresholdin terms of Section 86(1) of the RP Act were only non-compliance ofSections 81, 82 and 117 of the RP Act. This issue was urged not to beres integra in view of the judgment of this Court in PonnalaLakshmaiah[11]case, wherein this Court opined against the rejection ofan election petition at the threshold stage on hyper-technical grounds.The observations in this case by the Supreme Court have received theimprimatur of a larger Bench of three Judges in G.M. Siddeshwar[12]case, where the relevant portion from Ponnala Lakshmaiah[13]casehas been extracted as under:

“43. More recently, the issue was again considered in PonnalaLakshmaiah and relying upon Sardar Harcharan Singh Brarv. Sukh Darshan Singh, (2004) 11 SCC 196 it was held:(Ponnala Lakshmaiah case SCC p. 799 para 22)

“22. Even otherwise the question whether non-compliance withthe proviso to Section 83(1) of the Act is fatal to the electionpetition is no longer res integra in the light of a three-JudgeBench decision of this Court in Sardar Harcharan SinghBrar v. Sukh Darshan Singh. In that case a plea based on adefective affidavit was raised before the High Court resultingin the dismissal of the election petition. In appeal against thesaid order, this Court held that non-compliance with the provisoto Section 83 of the Act did not attract an order of dismissal ofan election petition in terms of Section 86 thereof. Section 86of the Act does not provide for dismissal of an election petitionon the ground that the same does not comply with the provisionsof Section 83 of the Act. It sanctions dismissal of an electionpetition for non-compliance with Sections 81, 82 and 117 ofthe Act only. Such being the position, the defect if any in theverification of the affidavit filed in support of the petition wasnot fatal, no matter the proviso to Section 83(1) was couchedin a mandatory form.”

44. The issue having been considered several times by this Courtmust now be allowed to rest at that.”

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A16. Lastly it was contended that in any case non-filing of anaffidavit or non-filing of proper verification is a technical defect which iscurable and at best the High Court ought to have given an opportunity tocure the defect by allowing the appellant to file a proper affidavit.Dismissal of the election petition under Order VII Rule 11 of the saidCode at the threshold was not warranted.B

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Respondent’s submissions before the Supreme Court:

17. Learned counsel for respondent no.1, however, contendedthat there could not be any waiver of the non-compliance of a mandatoryaffidavit in the prescribed Form 25 as provided under Section 83(1) ofthe RP Act, especially when grave charges of corrupt practices haveCbeen made. The plea of the appellant in the election petition was basedon the submission of a false affidavit vide Form 26 by respondent no. 1at the stage of filing nomination papers, amounting to non-disclosure ofassets, which in turn constituted corrupt practice under Section 123 ofthe RP Act. No such affidavit had been filed and this defect could not beDcured at a later stage as observed in Ravinder Singh v. Janmeja Singh& Ors.[14]

18. In substance the submission of learned counsel for respondentNo.1 was that the absence of an affidavit stands on a different footingfrom submission of a defective affidavit, as recognised in the G.M.Siddeshwar[15]case which opined that total non-compliance of SectionE83 of the RP Act cannot be cured. It was urged that permitting an affidavitto be filed at a later stage would provide an opportunity for embellishmentof the case and defeat the statutory requirement of an affidavit. Thenature of allegations made by the appellant against the respondent, itwas urged, were in the nature of undisclosed profits from commercialFoperations through a partnership, and receipt of money from a sittingRajya Sabha member. The allegations were made without disclosingany sources of information by way of an affidavit in Form 25.

Conclusion:

19. We must begin at the inception by stating that intrinsically,Gelection law is technical in nature. In the present matter, an electionconducted under an independent body like the Election Commission issought to be assailed, where the mandate of the public has gone in aparticular way. The allegations must strictly fall within the parameters 14 (2000) 8 SCC 191H15 (supra)

of the manner in which such a mandate can be overturned. The primaryplea taken by the appellant is largely that success in the elections wasobtained by concealment of material, which would have been germanein determining the opinion of the electorate. In effect, were such materialto be available with the electorate, they would have exercised anotheroption on the basis of it. However, while the requirements to be met inthe election petition may be technical in nature, they are not hyper-technical, as observed in the Ponnala Lakshmaiah[16]case. We haveconsidered the aforesaid aspect by quoting the observations made thereinwhich have received the imprimatur of a larger Bench.

20. In the conspectus of the aforesaid, if we examine the facts ofthe present case, the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis has been rightlyrejected by the High Court.

21. Thus, the real and core question before us is that in view ofthe allegations of the alleged non-disclosure of assets in Form-26 byrespondent No.1 being cited as “corrupt practice”, would it be mandatoryfor the election petitioner to file an affidavit in Form-25 and what wouldbe the consequences of not filing such an affidavit.

22. We may take note of the Constitution Bench judgment of thisCourt in Murarka Radhey Shyam Ram Kumar v. Roop SinghRathore[17]which opined that the defect in verification of an affidavitcannot be a sufficient ground for dismissal of the petitioner’s petitionsummarily and such an affidavit can be permitted to be filed later. ThisConstitution Bench judgment was also referred to in G.M. Siddeshwar[18]case to come to a conclusion that non-compliance with proviso to Section83(1) of the RP Act was not fatal to the maintainability of an electionpetition and the defect could be remedied, i.e., even in the absence ofcompliance, the petition would still be called an election petition. Wecannot say that the High Court fell into an error while considering theelection petition as a whole to come to the conclusion that the allegationsof the appellant were not confined only to Section 33A of the RP Act,but were larger in ambit as undue influence and improper acceptance ofnomination of respondent No.1 were also pleaded as violation of themandate under Sections 123 and 100 of the RP Act.

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17 AIR 1964 SC 1545 : (1964) 3 SCR 573

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A23. However, we are not persuaded to agree with the conclusionarrived at by the High Court that the non-submission of Form 25 wouldlead to the dismissal of the election petition. We say so because, in ourview, the observations made in Ponnala Lakshmaiah[19]case whichhave received the imprimatur of the three Judges Bench in G.M.Siddeshwar[20]case appear not to have been appreciated in the correctBperspective. In fact, the G.M. Siddeshwar[21]case has been cited by thelearned Judge to dismiss the petition. If we look at the election petition,the prayer clause is followed by a verification. There is also a verifyingaffidavit in support of the election petition. Thus, factually it would notbe appropriate to say that there is no affidavit in support of the petition,Calbeit not in Form 25. This was a curable defect and the learned Judgetrying the election petition ought to have granted an opportunity to theappellant to file an affidavit in support of the petition in Form 25 in additionto the already existing affidavit filed with the election petition. In fact, aconsideration of both the judgments of the Supreme Court referred to bythe learned Judge, i.e. Ponnala Lakshmaiah[22]as well as G.M.DSiddeshwar[23], ought to have resulted in a conclusion that the correctratio in view of these facts was to permit the appellant to cure thisdefect by filing an affidavit in the prescribed form.

24. The arguments of learned counsel for respondent No.1 wereEpredicated on the distinction between the absence of an affidavit and adefective affidavit. This pre-supposes that for an opportunity of cure tobe granted, there must be the submission of a Form 25 affidavit whichmay be defective. This would be very narrow reading of the provisions.Once there is an affidavit, albeit not in Form 25, the appropriate coursewould be to permit an affidavit to be filed in Form 25. We have toFappreciate that the petition is at a threshold stage. It is not as if theappellant has failed to cure the defect even on being pointed out so. Thisis not a case where the filing of an affidavit now in Form 25 would grantan opportunity for embellishment as is sought to be urged on behalf ofrespondent No.1.

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25. The appellant states the case clearly and in no uncertain termswith supporting material in the election petition. Whether the violation ismade out by respondent no.1 or not would be a matter of trial but certainlynot a matter to be shut out at the threshold.

26. The result of the aforesaid is that the impugned order of thelearned single Judge dated 17.1.2020 is set aside and the applicationfiled by respondent no.1 under Order 7 Rule 11, S. 151 of the said Codeand S. 86(1) of the RP Act would stand dismissed with liberty to theappellant to file an appropriate affidavit in Form 25 within fifteen (15)days from today. The further proceedings in the election petition arerequired to be taken up urgently as almost two and a half years havegone on the preliminary skirmishes rather than the meat of the matter,which we are sure the learned single Judge of the High Court would sodo.

27. The appeal is accordingly allowed leaving the parties to beartheir own costs.

Devika Gujral

Appeal allowed.

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