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Election
Order VI Rule 16 and Order VII Rule 11 of the CPC. = whether, to maintain an election petition, it is imperative for an election petitioner to file an affidavit in terms of Order VI Rule 15(4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices have been alleged against the returned candidate) as required by the proviso to Section 83(1) of the Representation of the People Act, 1951. In our opinion, there is no such mandate in the Representation of the People Act, 1951 and a reading of P.A. Mohammed Riyas v. M.K. Raghavan & Ors., (2012) 5 SCC 511 which suggests to the contrary, does not lay down correct law to this limited extent. Another question that has arisen is that if an affidavit filed in support of the allegations of corrupt practices of a returned candidate is not in the statutory Form No. 25 prescribed by the Conduct of Election Rules, 1961, whether the election petition is liable to be summarily dismissed. In our opinion, as long as there is substantial compliance with the statutory form, there is no reason to summarily dismiss an election petition on this ground. However, an opportunity must be given to the election petitioner to cure the defect. Further, merely because the affidavit may be defective, it cannot be said that the petition filed is not an election petition as understood by the Representation of the People Act, 1951 From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges (i) a defect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and (iv) the defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, under Section 81(3) as indicated earlier. Similarly the court would have to decide in each individual case whether the schedule or annexure referred to in Section 83(2) constitutes an integral part of the election petition or not; different considerations will follow in the case of the former as compared to those in the case of the latter.” “However, in fairness whenever such defects are pointed out then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 16 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of CPC but in the present case we regret to record that the defects which have been pointed out in this election petition were purely cosmetic and do not go to the root of the matter and secondly even if the Court found them of serious nature then at least the Court should have given an opportunity to the petitioner to rectify such defects.” 65. Applying these principles to the facts of the present case, it seems quite clear that the affidavit filed by Prasanna Kumar in compliance with the requirements of the proviso to Section 83(1) of the Act was not an integral part of the election petition, and no such case was set up. It also seems quite clear that the affidavit was in substantial compliance with the requirements of the law. Therefore, the High Court was quite right in coming to the conclusion that the affidavit not being in the prescribed format of Form No.25 and with a defective verification were curable defects and that an opportunity ought to be granted to Prasanna Kumar to cure the defects. No submissions were made with regard to the striking out, in accordance with Order VI rule 16 of the CPC, of specifically objectionable paragraphs in the election petition. In any event this is a matter for trial and we see no reason to take a view different from that taken by the High Court. Conclusion: 67. There is no merit in these appeals and they are, accordingly dismissed, but without any costs.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2250-2251 OF 2013 Arising out of SLP(C) Nos. 14172-14173 OF 2010 G.M. Siddeshwar … Appellant Versus Prasanna Kumar … Respondent WITH CIVIL APPEAL NOS. 2252-2255 OF 2013 Arising out of SLP (C) Nos. 24886-24889 OF 2010 J U D G M … Continue reading
the Parliament (Prevention of Disqualification) Act, 1959 as amended by the Amendment Act No.31 of 2006 has no application insofar as election to the office of the President is concerned. The disqualification incurred by a Presidential candidate on account of holding of an office of profit is not removed by the provisions of the said Act which deals with removal of disqualification for being chosen as, or for being a Member of Parliament. If, therefore, it is assumed that the office of Chairman, ISI is an office of profit and the Respondent had held the said office on the material date(s) consequences adverse to the Respondent, in so far as the result of the election is concerned, are likely to follow. The said facts, will therefore, be required to be proved by the election Petitioner. No conclusion that a regular hearing in the present case will be a redundant exercise or an empty formality can be reached so as to dispense with the same and terminate the Election Petition at the stage of its preliminary hearing under Order XXXIX Rule 13. The Election Petition, therefore, deserves a regular hearing under Order XXXIX Rule 20 in accordance with what is contained in the different provisions of Part III of the Supreme Court Rules, 1966. = Election Petition does not deserve a regular hearing.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION ELECTION PETITION NO.1 OF 2012 PURNO AGITOK SANGMA … PETITIONER VERSUS PRANAB MUKHERJEE … RESPONDENT J U D G M E N T ALTAMAS KABIR, CJI. 1 1. The Petitioner herein was a candidate in the Presidential elections held on 19th July, 2012, the results … Continue reading
elections =improper rejection of nomination papers =the Returning Officer erred in acting in hot haste in rejecting the nomination paper of the proposed candidate and not postponing the scrutiny to the next day, particularly, when a request was made by the authorised representative of the proposed candidate. The election petitioners have been successful in proving the improper rejection of the proposed candidate’s nomination paper. In other words, they have been able to prove the ground for setting aside appellant’s election to 89-Athagarh Assembly Constituency under Section 100(1)(c) of the 1951 Act.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4956 OF 2010 Ramesh Rout …. Appellant Versus Rabindra Nath Rout ….Respondent WITH CIVIL APPEAL NO. 4962 OF 2010 JUDGMENT R.M. Lodha, J. The returned candidate — Ramesh Rout – whose election to the 14th Orissa Legislative … Continue reading
election petition against Feroze Varun Gandhi — an election petition, which does not conform to the statutory requirements, is a dead petition and must be dismissed out rightly. In the present matter, in view of the findings on the aforesaid points the election petition suffers from material infirmities as it does not inter alia fulfil the statutory requirements of section 81 (3) and 83 (1) of the Act. Therefore, the contention that the election petition discloses triable issues, does not appear to have any merit. 84. For the aforesaid reasons, the election petition is liable to be dismissed.
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- ELECTION PETITION No. – 9 of 2009 Petitioner :- V.M.Singh S/O Mander Singh Respondent :- Feroze Varun Gandhi Petitioner Counsel :- In Person,Dr. Archana Pandey,M.N.Krishnamani,R.K. Pandey,Rajeev Kumar Singh,Ravi Shankar Prasad,U.N.Sharma Respondent Counsel :- K.N.Tripathi,K.R.Singh Hon’ble Shri Kant Tripathi,J. 1. Heard Mr. M.N. Krishnamani, learned senior counsel … Continue reading
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