The requirement of filing an affidavit under Section 83 of the Representation of the People Act, 1951, is not mandatory and the non-compliance with this requirement does not entail the dismissal of an election petition.

SATYANARAYANA RAJU, J.

( 1 ) THIS is an appeal, under section 116-A 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 19/02/1962. 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 6/04/1962, 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 paragraphs 3 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 16/10/1962 opposing the petition. By its order dated 20/10/1962, 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

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