( 1 ) THIS is an appeal under the Representation of the People Act, 1951 against an order dismissing an election petition.

( 2 ) THE first respondent, Z. A. Ahmad, was declared elected on February 28, 1962 to the U. P. Legislative Assembly from the Kopaganj Assembly Constituency in the district of Azamgarh. An election petition challenging the validity of his election was presented by the appellant, who was one of the contesting candidates and had received the next highest number of votes in the election. The election petition was referred by the Election Commission to the Election Tribunal, azamgarh for trial. The petition contained a number of allegations of corrupt practices, and it is admitted that when presenting it before the Election Commission no affidavit in support of these allegations was filed with it.

( 3 ) IN his written statement and also by a separate application, the first respondent raised a preliminary objection to the maintainability of the election petition contending that as no affidavit in support of the allegations of corrupt practices and their particulars had been filed along with the petition the provisions of Section 83 of the Act had been contravened and therefore the petition was liable to be dismissed. It was also pleaded that in any event for want of the affidavit the allegations of corrupt practice should not be tried.

( 4 ) THE requisite affidavit was filed by the appellant before the Election Tribunal on July 24, 1962 together with an application stating that the omission to file it with the election petition was inadvertent, that the amendment of the rules was not known and the form prescribed for the affidavit had not yet been published. This application was opposed by the first respondent.

( 5 ) THE Election Tribunal framed an issue on the question whether the election petition was liable to be dismissed on the ground that it had not been accompanied by the affidavit, and coming to the conclusion that it was so liable, it passed an order dismissing the election petition. Against this order the present appeal has been filed.

( 6 ) WE have heard learned counsel for the parties, and, in our judgment, this appeal must be allowed.

( 7 ) SECTION 83 of the Representation of the People Act, 1951 provides: "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 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. "

( 8 ) THE proviso requiring the filing of an affidavit in support of the allegations of a corrupt practice and its particulars was added by the Representation of the People (Amendment) Act, 1961.

( 9 ) LEARNED counsel for the appellant contends that the Election Tribunal was not bound to dismiss the election petition because of the failure of the petitioner to file the affidavit at the time of presenting the petition. He urges that the requirement that the affidavit should accompany the petition was not mandatory, and that it could be filed subsequently before the Election Tribunal. On the other hand, it is contended for the first respondent that the omission to comply with this requirement is fatal to the petition. It is said that as Article 329 (b) of the Constitution prohib