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2004(7) Supreme 721
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
R.C. Lahoti, CJI and C.K. Thakker, J.
Sardar Harcharan Singh Brar -Appellant
versus
Sukh Darshan Singh and Ors. -Respondents
Civil Appeal No. 8102 of 2003
Decided on 27-10-2004
Counsel for the Parties :
For the Appellant : Rajiv Dutta, Sr. Advocate, Motian Lal Saggar and Manoj Ohri, Advocates.
For the Respondents : Rajinder Sachar, Sr. Advocate, A. Mariarputham and Ms. Aruna Mathur, Advocates, for M/s. Arputham Aruna & Co. Advocates.
Held : Having gone through the contents of the election petition, we are satisfied that the High Court has not been right in directing the petition to be dismissed at the threshold by forming an opinion that the averments made in the election petition were deficient in material facts. It is not necessary to burden this judgment with reproduction of the several averments made in the election petition. The High Court has already done it. The test laid down in the several authorities referred to hereinabove and in particular in the case of Raj Narain (supra) is fully satisfied. The grounds of corrupt practice and the facts necessary to formulate a complete cause of action have been stated. Even the particulars have been given. However, if the Court feels that the particulars as given in the petition are deficient in any manner the petitioner can be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars could not have been a ground for dismissing the petition at the threshold. It is only the non-supply of particulars though ordered by the Court which could have led to either striking off of the pleadings or refusal to try the related instances of alleged corrupt practice. We cannot countenance the view taken by the High Court. So is the case with the defect pointed out by the High Court in the affidavit filed in support of the election petition alleging corrupt practice by the winning candidate. The proviso enacted to sub-Section (1) of Section 83 of the Act is couched in a mandatory form inasmuch as it provides that a petition alleging corrupt practice shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. The form is prescribed by Rule 94A. But at the same time, it cannot be lost sight of that failure to comply with the requirement as to filing of an affidavit cannot be a ground for dismissal of an election petition in limine under sub-Section (1) of Section 86 of the Act. The point is no more res integra and is covered by several decisions of this Court. Suffice it to refer to two recent decisions namely G. Mallikarjunappa and Anr. Vs. Shamanur Shivashankarappa and Ors. (2001) 4 SCC 428 and Dr. Vijay Laxmi Sadho Vs. Jagdish (2001) 2 SCC 247, both three-Judges Bench decisions, wherein the learned Chief Justice has spoken for the Benches. It has been held that an election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of "Section 81 or Section 82 or Section 117 of the RP Act". The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly "defective" affidavit, is required to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case. (Paras 13 and 14)
JUDGMENT
R.C. Lahoti, CJI-Elections to the Punjab Legislative Assembly were held in the month of January-February, 2002. We are concerned with 105 Muktsar Assembly Constituency. There were 12 candidates in the fray. The constituency went to polls and after counting the result was declared on 24.2.2002. Sukh Darshan Singh, respondent No.1, who contested as an independent candidate, secured 32,465 valid votes while the appellant Sardar Harcharan Singh Brar, who was fielded by the Congress party, secured 32,265 valid votes. Other candidates secured lesser votes. The respondent No.1 was declared elected.
2. The appellant filed an election petition under sections 80, 80A and 81 of the Representation of the People Act, 1951 (hereinafter the Act , for short). The main grounds on which the election of respondent No.1 was sought to be set aside were that the nomination of one on the respondents was improperly accepted which had resulted in the result of the election being materially affected and that the respondent No.1 was guilty of having committed the corrupt practice of obtaining the assistance of a police officer within the meaning of Section 123(7) of the Act. Several instances of commission of such corrupt practice were set out in the election petition.
3. On the pleadings being completed, the learned Designated Election Judge of the High Court framed six issues, out of which the following two have been heard and decided as preliminary issues by the impugned judgment:-
1. Whether the averments made in the election petition lack in material facts and do not disclose any cause of action? If so, its effect? OPR
2. Whether the affidavit filed in support of the election petition is not valid? If so, its effect? OPR
4. Both the issues have been answered against the election petitioner-appellant with the result the election petition has been held liable to be dismissed and dismissed accordingly. The election petitioner has come up in appeal under Section 116A of the Act.
5. The short point which arises for decision in this appeal is whether the election petition could have been held liable to be dismissed at the threshold and without being tried and heard on merits. Under Section 86(1) of the Act, an election petition is liable to be dismissed without being set down for trial, if it does not comply with the provisions of Section 81 or Section 82 or Section 117. Sections 81, 82 and 117 respectively provide for presentation of petition, parties to the petition and security for cost. Obviously the objections raised by the contesting respondents forming basis of the two preliminary issues are not covered by Section 86(1) of the Act. The High Court has proceeded on the premises that inasmuch as the averments made in the election petition alleging the commission of corrupt practice do not disclose material facts as required by Section 83 of the Act and the election petition is also not supported by an affidavit as required by proviso to sub-Section (1) of Section 83 of the Act read with Rule 94A of the Conduct of Elections Rules, 1961 (hereinafter the Rules , for short), the election petition does not disclose any cause of action and therefore does not raise any triable issue. It is the correctness or otherwise of the view taken by the High Court which arises for consideration:
6. Section 83 of the Act and Rule 94A of the Rules provide as under:
Act
"83. Contents of petition-(1) An election -
(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
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