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PATNA HIGH COURT
V.Ramaswami and N.L.Untwalia JJ.
Mahesh Prasad Sinha
Versus
Manjay Lal
Miscellaneous Judicial Case No. 965 of 1962 ;
Decided On : AUGUST 30, 1963
ELECTION - Affidavit in support of allegations of corrupt practices - Whether mandatory or directory - Representation of the People Act, 1951 (43 of 1951), S. 83(1) proviso.
Fact of the Case:
The petitioner challenged the order of the Election Tribunal, which held that the requirement of filing an affidavit in the prescribed form in support of allegations of corrupt practices under the proviso to Section 83(1) of the Representation of the People Act, 1951, is directory and not mandatory. The petitioner argued that the affidavit was not in the prescribed form and should be struck out, while the respondent contended that the affidavit substantially complied with the requirements of the proviso.
Finding of the Court:
The Court held that the requirement of filing an affidavit in the prescribed form under the proviso to Section 83(1) of the Act is directory and not mandatory. The Court observed that the intention of the legislature in introducing the proviso was to prevent wild allegations of corrupt practices and impose a reasonable restraint on the petitioner to avoid false statements and prosecution for perjury. The Court further held that the affidavit filed by the respondent substantially complied with the requirements of the proviso and achieved the intended object.
Issues: 1. Whether the requirement of filing an affidavit in the prescribed form under the proviso to Section 83(1) of the Representation of the People Act, 1951, is mandatory or directory? 2. Whether the affidavit filed by the respondent substantially complied with the requirements of the proviso?
Ratio Decidendi: 1. The Court relied on principles of statutory interpretation to determine the mandatory or directory nature of the requirement. It considered factors such as the importance of the provision, the consequences of non-compliance, and the intention of the legislature. The Court concluded that the requirement is directory, as non-compliance does not result in dismissal of the petition and the intention of the legislature is to prevent wild allegations and promote fair play. 2. The Court examined the affidavit filed by the respondent and found that it contained a statement on oath, specified the particulars of corrupt practices, and was signed and verified in the prescribed manner. The Court held that the affidavit substantially complied with the requirements of the proviso, even though it was not in the prescribed form.
Final Decision: The Court modified the order of the Election Tribunal and directed it to require the respondent to file a fresh affidavit either in the prescribed form or in the form already filed after removing the defects. The Court made no order as to costs.
N.L.Untwalia, J.
1. The petitioner has obtained a rule from this Court against the respondents to show cause why the order dated the 10th September, 1962, passed by the 4th respondent, the Member, Election Tribunal, Patna, in Election Petition No. 149 of 1962, filed by respondent No. 1 for setting aside the election of the petitioner as a member of the Bihar Legislative Assembly, be not quashed in exercise of the powers of this Court under Article 226 or 227 of the Constitution of India, and why the said Tribunal be not prohibited from recording and admitting any evidence in relation to the said election petition bearing on the question of any corrupt practice alleged to have been committed by the petitioner or his election agents. Cause has been shown on behalf of respondent No. 1.
2. Two issues were argued and pressed before the Election Tribunal on behalf of the petitioner for decision as preliminary points before proceeding with the hearing of the election petition. The said issues are
"No. 1 : Are the petition and the annexures thereto properly verified? No. 2 : Has the petitioner filed with his petition an affidavit in the prescribed form as laid down in the proviso to Section 83 (1) of the Representation of the People Act, 1951, in support of his allegations of corrupt practices? If not, are the said allegations liable to be struck out from the petition?"
In support of the first issue, the defect in the verification has been allowed to be rectified by a petition for amendment and no further grievance was made in this regard. The decision of the Tribunal on the second issue is in favour of respondent No. 1 and it has been held by the learned Member of the Tribunal that the affidavit substantially complies with the requirements of the proviso to Section 83 (1) of the Representation of the People Act, 1951 (Act 43 of 1951), hereinafter referred to as the Act. This part of the decision of the Tribunal has been attached by Mr. Balbhadra Prasad Singh, learned counsel for the petitioner, by advancing a forceful argument. He submitted that the entire requirement of the proviso aforesaid is mandatory and must be strictly complied with; the affidavit being not in the prescribed form is no affidavit in the eye of law and the allegation about commission of corrupt practices in the election petition must be struck out as being unnecessary under Order VI, Rule 16 of the Code of Civil Procedure, 1908. In any event, learned counsel submitted , the affidavit which has been filed by respondent No. 1 is defective and not in "accordance with law; it must, therefore, be ignored or rejected. A number of text books dealing with the rules of interpretation of statutes and other authorities have been cited on behalf of the petitioner. I shall, in course of my judgment, refer to or deal with many of them. It will not be necessary to refer to all. 2A. Section 83 of the Act reads thus:
"(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 whore 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 to Sub-section (1) is new and was introduced by Act 40 of 1961 which came into force on 20-9-61. The Conduct of Election Rules, 1961, were framed
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