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High Court Of Madhya Pradesh
P. V. Dixit, C. J. and K. L. Pandey, J.
DWARKA PRASAD MISHRA - Appellant
Versus
KAMALNARAIN SHARMA - Respondents
Misc. Petn. 90 Of 1964
Decided On : 04/15/1964
The requirement of the proviso to section 83 (1) of the Representation of the People Act, 1951, that where the election petitioner alleges any corrupt practice the election petition shall he accompanied by an affidavit sworn before the authority prescribed under Rule 94-A of the Conduct of Election Rules, to support the allegations of corrupt practice and the particulars thereof, is mandatory.
Where with the election petition was filed with an affidavit sworn before the clerk of Court of a District Judge and not before any authority prescribed in Rule 94-A, there was no compliance with the above requirement. The Tribunal could not get the defect cured by permitting election petitioner to file a fresh affidavit.
The result of non-compliance of this mandatory provision by the election petitioner is that the allegations made by him in the election petition about corrupt practices cannot be enquired into, and the Election Tribunal has no jurisdiction to try any issue raised by those a legations. (Para 13 and 20)
When the proviso requires that an election petition containing allegations of corrupt practice should be accompanied by an affidavit, the requirement is not a condition precedent for the proper presentation of an election petition under section 81, so that if no affidavit is filed the election petition cannot be dismissed under section 85 or 90 (3) of the Act. But it is an essential requisite for invoking the exercise of the judicial power of the Tribunal to whom the petition is referred by the Election Commission for the trial of the issue raised by the allegations of corrupt practices. (Para 13)
AIR 1947 Cal. 307, AIR 1950 Bom. 206, AIR 1960 SC 770 relied on 1963 JLJ 547. AIR 1954 SC 210, AIR 1964 SC 1027, AIR 1963 Raj. 157 DISTINGUISHED; AIR 1954 All 86, AIR 1964 A. P. 77, AIR 1964 Pat. 53, AIR 1964 A. P. 164 DISSENTED FROM.
(2) Interpretation of Statutes - mandatory or directory nature of a provision - tests to determine.
It is well settled that there is no rule of universal application for determining whether a provision in a statute is absolute or directory. The question in each case has to be decided on a consideration of the scope and object of the provision, the importance of the provision in question in relation to general object intended to be secured by the Act, and considerations of justice and convenience. The use of the word "shall" is not decisive of the provision being mandatory. So also, the absence of any provision laying down the consequences of the omission to observe a requirement is inconclusive. At the same time it is well settled that where a statute creates or grants a new right, privilege or immunity and regulates the manner of its exercise; it must be construed as mandatory. AIR 1955 SC 233, AIR 1961 SC 849, AIR 1962 S.C. 1694 referred.
(3) Interpretation of statute - a provision should not be rendered mugatary or needless.
A statutory provision cannot be construed so as to make it nugatory or needless, if a meaning or purpose could be given to it, 4 QBD 245 relied on. (Para 11
(4) Penal Code - S. 1921 - affidavit not sworn before the prescribed authority -prosecution under this section does not lie.
When the statute requires that the affidavit shall be sworn before a particular authority, then for the validity of the affidavit it is essential that it must be sworn or affirmed before that authority. When by a statutory provision a particular authority is nominated for the swearing of an affidavit in any matter, then the effect is that no authority other than the one prescribed has any jurisdiction to take an affidavit in the matter.
If the affidavit is not sworn before the prescribed authority but is sworn before some other authority was has no jurisdiction in the matter, then, if that affidavit is false, a prosecution under section 191 IPC in respect of that affidavit cannot be sustained. (Para 13
(5) Contempt of Court - application pointing out mistakes in all order and praying to review it - no contempt.
A party making an application to a Court or Tribunal praying that a certain decision of it should be reviewed as a mistake had crept in the decision on some point or points or that some questions remain to be decided can in no sense be regarded as having committed contempt of the Court or Tribunal in making that application. (Para 20
( 1 ) IN this application under Articles 226 and 227 of the Constitution, the question for consideration arises, upon what the Election Tribunal, Raipur, determined in regard to a preliminary objection of the petitioner to the election petition filed by the respondent No. 1 challenging the petitioner's election to the State Legislative assembly from Kasdol constituency.
( 2 ) THE relevant facts are these. The petitioner was duly etected to the M. P. State legislative Assembly at a bye-election held in May rg63 from Kasdol constituency. The respondent No. 1, who was defeated at the election, filed an election petition praying that the petitioner's election be declared void as the petitioner was guilty inter alia of having committed certain corrupt practices enumerated in the petition. To support the allegations of corrupt practices and the particulars thereof the respondent No. 1 filed an 'affidavit' along with the election petition. In his reply to the petition, the. applicant raised the preliminary objection that the proviso to section 83 (1) of the Representation of the People Act, 1951, (hereinafter referred to as the Act) required that if allegations of any corrupt practices are made in an election petition then the petition should be accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice or practices and the particulars thereof; that this provision was mandatory; that the affidavit filed by the respondent No. 1 wasnot in the form prescribed by Rule 94-A of the Conduct of Election Rules, 1961, (hereinafter referred to as the Rules) in that it was not sworn before a Magistrate at the first class or a notary or a Commissioner of oaths; that the non-compliance of Rule 94-A rendered the petition ineffective and liable to be dismissed under Section 90 (3) of the Act; and that in any case the allegations of corrupt practices in the petition were liable to be struck out as they were not supported by any affidavit in conformity with the proviso to Section 83 (1)and Rule 94-A. On this objection, the Tribunal framed the following preliminary issues: "no. 18. Whether the affidavit filed by the petitioner in support of his petition is bad in law, as not properly sworn before a competent officer duly authorised to attest and authenticate an affidavit and does not comply with the provisions of Section 83 of the R. P. Act and the rules made thereunder? If so, whether the petition is liable to be dismissed on this ground? no. 20. Whether the various alleged acts of corrupt practices mentioned in the petition are duly supported by an affidavit as required Under section 83 (1) of the R. P. Act? If not, what is the effect on this petition?" on the first of the two issues reproduced above, the Tribunal held that the affidavit filed by the respondent No. 1 was sworn not before any authority specified in Rule 94-A but before the Clerk of Court of. the Court of District Judge, Jabalpur; and that the affidavit was thus defective but on that defect alone the election petition could not be dismissed. The Tribunal further observed that the affidavit, purported to be in the prescribe form, supported the allegations of corrupt practices made in the election petition. In regard to the other issue, the Tribunal stated its finding, thus:
"the petitioner has alleged various acts of corrupt practices against the respondents. They are set forth in the various paragraphs of the petition and in the affidavit filed by the petitioner he has parawise supported the various alleged acts of corrupt practices and their particulars. Nothing was shown as to how, in what manner and to what extent the affidavit purports to omit to support the alleged acts of corrupt practices and the particulars thereof. In view of the finding given on issue No. 18, if the petitioner seeks leave to file another affidavit and if he is so permitted, then this question will, if necessary be considered. However, for the time being the
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