Important points
1. Non-compliance of Section 83 of the Representation of People Act does not lead to dismissal of Election Petition under Section 86.
2. Defects in verification of election petition or affidavit accompanying election petition are cureable.

Headnote:Representation of People Act-Section 86-Dismissal of Election petition-Non-compliance of statutory provisions-Election petition alleging corrupt practice and illegality in recounting-Application for summary dismissal on grounds that affidavit supporting election petition was not in conformity with Rule 94A or Form 25 and petitioner had not specifically set out which allegations were to his personal knowledge and which were on information-Application whether sustainable-No-Section 86 does not refer to Section 83-Non-compliance of Section 83 does not lead to dismissal under Section 86 -Defects in verification of election petition or affidavit are cureable-Details of corrupt practice and illegality in recounting described in election petition-In election petition matters which petitioner had knowledge of his own and which he got through information from others set out-Non-mention of paragraphs separately in affidavit or verification did not affect validity of election petition-Application for summary dismissal of election petition rightly dismissed by High Court.
       Held : Section 86 provides for dismissal of election petition in limine for non-compliance of Sections 81, 82 and 117. Section 81 relates to presentation of election petition. It is not the case of the appellant before us that the requirements of Section 81 were not complied with though in the High Court a contention was urged that a true copy of the election petition was not served on the appellant and thus the provisions of Section 81 were not complied. Sections 82 and 117 are not relevant in this case. Significantly Section 86 does not refer to Section 83 and non-compliance of Section 83 does not lead to dismissal under Section 86. This Court has laid down that non-compliance of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 or Order 7 Rule 11 ref=act:10444>CPC. Defect in verification of the election petition or the affidavit accompanying election petition has been held to be curable and not fatal. (Para 14)
       A defect in the verification of an election petition as required by Section 83(1)(c) of the Act was not fatal to the maintainability of the petition and that a defect in the affidavit was not a sufficient ground for dismissal of the petition. A defect in the verification of the petition as well as a defect in the affidavit can be cured and it is not fatal to the maintainability of the petition. (Paras 15 & 17)
       There is no merit in the contention that the Election Petition does not set out any illegality committed at the time of recounting. The various averments in the petition are to the effect that the order directing recount was itself an illegality vitiating the result of the election and also that in the course of such recounting, several illegalities were committed whereby the result of the election was materially effected. It is specifically averred in the petition that a large number of ballot papers which were invalid and were liable to be rejected were counted as valid votes in favour of the appellant. The attempt of the learned counsel for the appellant is to divide the Election Petition into two separate compartments, one dealing with recounting and the other with corrupt practices. It is not possible to dissect the Election Petition in that manner. The allegations regarding invalid votes no doubt find a place in paragraph 3 but they have to be read together with averments relating to recounting. (Para 20)
       This Court has repeatedly pointed out the distinction between ‘material facts’ and ‘particulars’. In so far as ‘material facts’ are concerned, this Court has held that they should be fully set out in the Election Petition and if any fact is not set out, the petitioner can not be permitted to adduce the evidence relating thereto later; nor will he be permitted to amend the petition after expiry of the period of limitation prescribed for an Election Petition. As regards particulars, the consistent view expressed by this Court, is that the petition can not be dismissed in limine for want of particulars and if the Court finds that particulars are necessary, an opportunity should be given to the petitioner to amend the petition and include the particulars. (Para 23)
       The test in all cases of preliminary objection is to see whether any of the reliefs prayed for could be granted to the petitioner if the averments made in the petition are proved to be true. If the answer to the question is in the affirmative, the maintainability of the petition has to be upheld. In the present case we have no doubt that if the allegations contained in the election petition are proved to be true by the petitioner therein, he will be entitled to get the relief set out in the prayer portion. Hence, we do not find any merit in the appeals and they are hereby dismissed with costs. (Para 27)

Judgment

Srinivasan, J.-The appellant was declared elected on 11.12.1994 in the election held on 26.11.94 for the 133 Holenarasipura Assembly Constituency in Karnataka State. The first respondent filed Election Petition No. 16 of 1995 in the High Court of Karnataka on the following grounds :-

(a) Non compliance with Rule 63 of the Conduct of Election Rules, 1961, (hereinafter referred to as ‘the Rules’) attracting the provisions of Section 100(1)(d)(iv) of the Respresentation of the People Act, 1951 (hereinafter referred to as ‘the Act’).

(b) Commission of corrupt practices by the appellant and his father with the consent of the appellant falling within the scope of Section 100 (1)(b) and Section 100(1)(d)(ii) read with Section 123(2), 123(7)(f), and 123(8) of the Act.

2. The allegations in the Election Petition were mainly that after completion of counting by the Returning Officer, without announcing the result and recording the same in the prescribed form, a request made by the appellant for recount was entertained by the said official who was unduly influenced by the father of the appellant, H.D. Devegowda who later became the Chief Minister of the State and in course of time and Prime Minister of the Country. It was alleged that the first respondent was leading by four votes and the father of the appellant who was by then declared elected to the Assembly, told the Returning Officer through telephone communication that a recount should be ordered and the appellant should be helped to win the election by hook or crook. According to the petition, recount was ordered without compliance of Rule 63 brushing aside the objections raised by the first respondent arbitrary and whimsically. Such recounting ordered by the Returning Officer who was unduly influenced by the father of the appellant was in utter disobidence of the mandate of law and vitiated the election. Secondly it was alleged that the vociferous and threatening conduct of the first respondent coerced and influenced the voters to vote for him as they were threatened with dire consequences otherwise. There was an atmosphere of terrorism in several places which prevented the voters from exercising their franchise freely accordingly to their will and choice. The agents of Janata Dal party to which the appellant belonged were in total control of some polling booths and they were interfering in every election affair. It was also alleged that quite a number of invalid votes were counted in favour of the appellant as if they were valid. On such allegations, the first respondent prayed for declaring the election of the appellant to be void and declaring himself to be duly elected while holding that the order of recount was void and the result of such recount was non-est.

3. After entering appearance, the appellant filed three applications for summary dismissal of the Election Petition for non-compliance with certain statutory provisions which are mandatory. I.A. No. IX, was on the ground that the petition did not disclose a cause of action as the allegations of undue influence and recounting were not followed by any averment that the result of the election was materially affected; nor was there any averment in the petition as to any defect or malpractice in the course of recounting. I.A. No. X was for rejection of the affidavit filed by the petitioner along with the Election Petition as it did not fulfil the requirements of law and consequent dismissal of the petition. I.A. No. XV was for dismissal of the petition on the ground that allegations of corrupt practices were vague and not supported by material facts or particulars.

4. There were some other applications filed by the first respondent and respondents 7 and 8 for other reliefs. The High Court disposed them all by a common order dated 21.3.96. The applications I.A. Nos. IX, X and XV filed as aforesaid by the appellant were dismissed. Aggrieved thereby, the appellant has obtained special

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1999 Supreme(SC) 64

Important points1. Non-compliance of Section 83 of the Representation of People Act does not lead to dismissal of Election Petition under Section 86.2. Defects in verification of election petition or affidavit accompa­nying election petition are cureable.

Cases Referred (13)

Important points
1. Non-compliance of Section 83 of the Representation of People Act does not lead to dismissal of Election Petition under Section 86.
2. Defects in verification of election petition or affidavit accompanying election petition are cureable.