Summary
Non-compliance with the proviso to Section 83(1)(c) of the Representation of the People Act, 1951 (affidavit in Form 25 supporting allegations of corrupt practice) is a curable defect and substantial compliance suffices, but whether there has been substantial compliance is a question of fact requiring a reasoned examination. The High Court's order refusing to reject the election petition and granting time to cure defects was remitted because it neither enumerated the defects nor examined substantial compliance or the effect of limitation.
Issues
- Whether non-compliance with the proviso to Section 83(1)(c) of the RP Act is a fatal defect rendering an election petition non-maintainable at the threshold.
- Whether defects in a Form 25 affidavit must be cured by a fresh affidavit within the period of limitation or may be cured at any stage, and whether the High Court can condone delay in filing it.
Provisions considered
- Section 83(1)(c), proviso, read with Rule 94-A of the Conduct of Elections Rules, 1961 (Form 25), Representation of the People Act, 1951Where an election petition alleges corrupt practice it must be accompanied by an affidavit in the prescribed Form 25. Following G.M. Siddeshwar, A. Manju and Thangjam Arunkumar, the Court treated the requirement as not mandatory in character: total non-compliance with Section 83 means the pleading is not an election petition, but a defective affidavit is curable and the petitioner must be given an opportunity to file a corrected one before trial, provided there is substantial compliance. (¶¶ 2, 13, 15, 16, 17, 18, 22)
- Chapter XXXIII, Rules 7 and 21, Rules of the High Court of Orissa, 1948Rule 7 requires every election petition on presentation to be examined by the Stamp Reporter, who certifies conformity with law and reports defects to the Judge assigned for orders under Section 86; Rule 21 applies the CPC and the High Court's rules on applications and affidavits. The impugned order did not disclose whether this scrutiny was carried out, what defects were noticed, or whether time to cure was granted before or after limitation expired. (¶¶ 19, 20, 21, 23)
- Order VII Rule 11 and Order VI Rule 16, Code of Civil Procedure, 1908The returned candidate sought rejection of the election petition at the threshold under Order VII Rule 11 and, alternatively, striking out of pleadings under Order VI Rule 16. The impugned order arose at the Order VII Rule 11 stage; the Court did not decide the rejection plea itself but remitted the matter with directions, including striking out the pleadings relating to a third candidate that both parties agreed to expunge. (¶¶ 6, 9, 21, 24)
Held
- The law on the proviso to Section 83(1)(c) is settled and no longer res integra: non-compliance is curable provided there is substantial compliance; in cases of total non-compliance with Section 83 the pleading cannot be regarded as an election petition and is liable to be rejected, but where an affidavit is on record though not in Form 25, the proper course is to afford the election petitioner an opportunity to file a corrected affidavit, and the High Court must ensure the defect is cured before trial so the returned candidate is not taken by surprise. (¶¶ 15, 16, 17, 18)
- Whether an affidavit substantially complies with Form 25 is essentially a question of fact, to be determined by juxtaposing the allegations of corrupt practice in the election petition against the contents of the supporting affidavit. Substantial compliance means almost actual compliance with the essence of the enactment, not mere lip service. The High Court concluded that the affidavit substantially complied without detailing the examination by which it reached that conclusion. (¶ 22)
- Under Chapter XXXIII of the Orissa High Court Rules the election petition must be scrutinised on presentation and any defects placed before the assigned Judge. The impugned order, passed at the Order VII Rule 11 stage, simply granted three weeks to cure defects without indicating whether that scrutiny occurred, the nature of the defects, or whether the opportunity to rectify was given before or after the limitation period, leaving unanswered whether a supplementary affidavit must be filed within limitation and whether the Election Tribunal can condone delay. (¶¶ 18, 19, 20, 21, 23)
Result
Appeal disposed of; matter remitted to the High Court to enumerate the defects in the Form 25 affidavit and decide as preliminary issues whether it is defective, whether it substantially satisfies Form 25, whether a supplementary affidavit must be filed within limitation, and whether the Election Tribunal can condone delay. The High Court is to strike out the pleadings the parties agreed to expunge (relating to a third candidate), allow consequential amendments, and then frame issues on merits. Pending applications disposed of in the same terms.