Election Petition Can't Be Rejected Summarily For Curable Defects : Supreme Court

A bench of Justice Sanjay Kaul and Justice M.M.Sundresh was presiding on a matter regarding lack of attachment of affidavit in support of claims made in an election petition, where the appellant had later attached the affidavit, and observed, "Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25." Appreciating that the petition was at the threshold stage, the bench further added that, "It's not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of respondent no.1"

In this case, the appellant A Manju and respondent Prajwal Revanna both were candidates in the 16 Hassan Parliamentary Constituency, sponsored by BJP and Janatha Dal (Secular) respectively during the 2019 elections. The respondent secured more votes than the appellant and the appellant filed an election petition in High Court under S.81 of Representation of People Act, 1951 (henceforth RP Act) challenging the election of the respondent while seeking a declaration that respondent's election was liable to be declared void on account of him having filed a false affidavit and consequently argued that the appellant is declared duly elected since he secured second highest votes. The respondent resisted this petition at the threshold by applying Order VII Rule 11 read with S.151 of the CPC and S.86(1) of the RP Act, seeking dismissal of the election petition on account of non-compliance of S.81(3) and proviso to S.83(1) of RP Act.

A single-judge bench of High Court took observations made in H.D. Revanna v. G. Puttaswamy Gowda & Ors. and T. Phungzathang v. Hangkhanlian & Ors., into consideration and it was opined that "substantial compliance of S.81(3) of the RP Act saves an election petition from dismissal. The only issue here was about the index and synopsis not being signed by the appellant and the appellant had attested the election petition with his endorsement that it was a correct copy of the election petition and hence, substantially complied with requirements." But HC further stated that Form 25 was an integral part of the election petition and its complete absence would mean that there was total non-compliance of S.83 of the RP Act and thus, the High Court held that the election petition was not maintainable. Hence, the appellant filed this appeal in Supreme Court.

Before this bench, the appellant's counsel argued that the grounds in the election petition were specific to S.100(1)(d)(i) and (iv) of the RP Act and dealt with improper acceptance of nomination and non-compliance with statutory provisions and since the allegations of corrupt practice are contained in S.123 and S.100(1)(d)(ii) of the RP Act, the election petition does not even relate to these provisions and thus the submission of form 25 was not necessary. It was further argued that the signing and verification of pleadings in terms of S.83(1)( c ) of the RP Act, if not complied with, could not be fatal and the circumstances in which a petition could be thrown out at the threshold in terms of S.86(1) of the RP Act were only non-compliance of Sections 81, 82 and 117 of the RP Act. It was also contended by the appellant's counsel that non-filing of an affidavit was a technical defect that was curable and HC should have allowed them to cure that defect and dismissal of the election petition was not warranted.

On the other hand, the respondent's submission before the Court was that there could not be any waiver of the non-compliance of the mandatory affidavit in form 25 under S.83(1), more so in the light of the fact that grave charges of corrupt practices had been made. Besides, the respondent's counsel argued, "the plea of the appellant in the election petition was also based on the submission of a false affidavit vide form 26 by respondent no.1 at the stage of filing of nomination papers, amounting to non-disclosure of assets, which in turn constituted corrupt practice under S.123 of RP Act. Now, since no such affidavit had been filed by the appellant, the defect could not be cured at a later stage. And even permitting that an affidavit be filed at a later stage would provide an opportunity for the embellishment of the case and defeat the statutory requirement of an affidavit."

The bench, after considering arguments from both sides, began by stating that, "intrinsically, election law is technical. However, while the requirements to be met in the election petition may be technical in nature, they are not hyper-technical, as observed in the Ponnala Lakshmaiah Case. Thus, the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis has been rightly rejected by the HC." The bench then proceeded to look into the core question that if a corrupt practice is being alleged in the election petition then whether it's mandatory for the election petitioner to file an affidavit in form 25 and what were the repercussions of not filing such an affidavit.

The bench referred to the judgment in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathod where it was held that "the defect in the verification of an affidavit cannot be a sufficient ground for dismissal of the petitioner's petition summarily and such an affidavit can be permitted to be filed later." Further citing the observations made in the G.M. Siddheswar case the bench observed that "Non-compliance with the proviso to S.83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e. even in the absence of compliance, the petition would still be called an election petition."

The bench proceeded to state that, "if we look at the election petition, the prayer clause is followed by verification. There is also a verifying affidavit in support of the election petition and thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in form 25. This was a curable defect and the learned judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in form 25 in addition to the already existing affidavit filed with the election petition."

The bench further added, "the appellant states his case clearly and in no uncertain terms with supporting material in the election petition. Whether the violation is made out by respondent no.1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold."

The impugned order of learned single judge was set aside, the application filed by the respondent under Order 7, Rule 11, S. 151 of CPC and S.86(1) of RP Act was dismissed, liberty was given to the appellant to file an appropriate affidavit in form 25 within 15 days and the appeal was allowed, leaving parties to bear their own costs.

Case Title : A Manju versus Prajwal Revanna

Citation : LL 2021 SC 743

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