& Anr Vs. Shamanur Shivashankarappa & Ors  Insc 196 (4 April 2001)
R.C. Lahoti & Doraiswamy
Raju Dr. A.S.
from 6th Davanagere Constituency to the 12th Lok Sabha was held on 22nd of
February, 1998. The result of election was declared on 2nd March, 1998. First appellant besides
respondents 1 to 7 were candidates at the election.
second appellan t is the son of the first appellant. He is an elector of the
Constituency, who had also acted as the election agent of the first appellant.
The first respondent was declared elected by a margin of 11,332 votes. The
election of first respondent was cha lenged by filing an election petition by
both the appellants on various grounds of commission of corrupt practices.
According to the appellants, it was to meet a procedural objection raised by
the Registry of the High Court that two sets of court fee we e paid and the
original joint election petition was bifurcated into two separate election
petitions being Election Petition Nos. 4 and 5 of 1998. Besides seeking setting
aside of the election of the first respondent, the appellants also sought a declarat
on to the effect that the first appellant be declared elected. After
respondents were served, the first respondent filed an application (I.A.1)
under Order 7 Rule 11 read with Section 151 C.P.C. praying for dismissal of
Election Petition in limine unde Section 86 of the Representation of People Act
firstly on the ground that the affidavit filed in support of the Election
Petition, was not in the proper format and there was, thus, violation of
Section 83(2) of the Representation of the People Act. It as also alleged that
verification of the affidavit and the Election Petition did not tally and the
election petitions were liable to be dismissed in limine.
other objection raised was the alleged incapacity of appellant No.2 to maintain
an Election etition on the ground that the name of appellant No.2 as given in
the Election Petition did not tally with the name of appellant, as contained in
the form for appointment of election agent and because of "difference of
identity" the Election Petition co ld not proceed to trial and was liable
to be rejected at the threshold. Some other objections were also raised but
those touch upon the merits of the case and we are not concerned with those at
appellants resisted the application and asserted that Election Petition could
not be dismissed in limine under Section 86(1) of the Representation of People
Act on the alleged grounds mentioned in I.A.1. A learned Single Judge of the
High Court of Karnataka vide order of 3rd November, 1998 allowed the
application (I.A.1) and dismissed both the Election Petitions (Election
Petition Nos. 4 and 5 of 1998) in limine. It was held that there had been
non-comp liance with Rule 94-A of the Rules inasmuch as the affidavit filed in
support of the allegations of corrupt practices with the Election Petitions did
not comply with the requirements of the format as prescribed in Form No.25. As
regards the other object on to the maintainability of the Election Petitions,
namely, that appellant No.2 was shown as "G.M. Siddheshwarappa" in
the election petition whereas in the election agent form, the election agent of
appellant No.1, namely, appellant No.2, had signed his name as "Siddeshwar"
and not as "G.M. Siddeshwarappa". The learned single Judge found that
there was "difference of identity" of the petitioner in the Election
Petition and the election agent form, rendering the election petitions as not maintaininable
Order of the learned Single Judge dismissing both the election petitions has
been put in issue before us in these appeals.
A.K. Goel, learned senior counsel appearing on behalf of the appellants,
submitted that the High Court fell in error in dismissing the Election Petition
for alleged non-compliance with Section 83(2) of the Representation of the
People Act and that ev en if there was some defect in the affidavit on its
verification, it was a curable defect and Election Petition did not merit
dismissal in limine.
in this behalf was placed on F.A. Sapa and others vs. Singora and others,
1991(3) SCC 375. Mr. oel submitted that affidavit did not suffer from any defect
and that even if it was defective and not in accordance with Rule 94A as
alleged, non-compliance with provisions of Section 83(2) of the R.P. Act, did
not attract Section 86(1) of the Act and th election petitions could not be
dismissed in limine. Mr. Goel further submitted that the name of appellant No.2
is G.M. Siddheshwarappa. He is an elector of the Constituency and his name also
appears in the voters' list as G.M. Siddheshwarappa. That e is the son of
appellant No.1 but the mere fact that in the form for appointment of appellant
No.2 as an election agent of appellant No.1, he had signed as "Siddheshwar"
is wholly immaterial and of no consequence and there was no "crisis of
identity" or "difference of identity" as held by the learned
single Judge of the High Court.
G.L. Sanghi, learned senior counsel for first respondent, on the other hand
submitted that verification of the affidavit was not at all proper and that the
affidavit filed by the appellants was also not in the format (Form No.25)
prescribed under Rul e 94-A of the Act. He submitted that since an Election
Petition making allegations of corrupt practices is required to be supported by
an affidavit, defect in the affidavit would render such an Election Petition
incompetent and it was liable to be dismi sed in limine.
have given our thoughtful consideration to the submissions made at the Bar. 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 R.P. Act'. The requirement of
filing an affi avit 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 ttracted to
such a case.
F.A. Sapa case (supra), a three Judge Bench of this Court specifically dealt
with an issue concerning defects in the verification of an election petition as
well as of defects in the affidavit accompanying an election petition wherein
allegations of c rrupt practice are made. After considering the provisions of
Sections 83 and 86 of the Act, as also the requirements of Form No.25
prescribed by Rule 94-A of the Rules and relevant provisions of the Code of
Civil Procedure , the Court opined: "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
defect in the verification, if any, can be cured
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 elieved to be true
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
defect in the affidavit in the prescr bed Form 25 can be cured........"
in Dr. Vijay Laxmi Sadho v. Jagdish, JT 2001(1) SC 382, this Court opined:
"We are in respectful agreement with the view expressed in F.A. Sapa's
case (supra) and in view of settled law the conclusion becomes irresistible
that defect in verification of an affidavit is curable and does not merit
dismissal of an election petition in limine under Section 86 (1) of the Act."
Thus, we have no hesitation in holding that the view of the learned single
Judge to the contrary is unsustainable.
far as the second ground on which the Election Petitions were dismissed namely
the alleged "difference of identity", the least said the better. In
fairness to learned senior counsel, Mr. Sanghi appearing for the first
respondent, we must record t hat he did not pursue the challenge to the
maintainability of the Election Petition on that ground. The learned Single
Judge of the High Court, in our opinion, was in error in holding that there was
any "difference of identity" of appellant No.2 and th t the Election
Petitions were not maintainable on that ground. An Election Petition
challenging the election of a returned candidate can be filed not only by other
candidate/candidates at the election but also by a voter.
No.2, the son of ap ellant No.1, who had also acted as an agent of appellant
No.1, challenged the election of first respondent in his capacity as a voter.
There is no dispute that the name of the second appellant as given in the
election petition tallies with his name as ap earing in the voters list. There
was, thus, no discrepancy in the name of appellant No.2 in the election
petition let alone any "difference of identity". The High Court was
in error in finding that since there was difference in the name of the appellan
No.2 as given in the Election Petition and the voters' list from the one given
in the form for his appointment as an election agent, the defect was "fatal".
view is clearly erroneous. As a result of the above discussion we find that the
order of the learned Single Judge cannot be sustained. The election petitions
could not have been dismissed on either of the two grounds in limine.
impugned order is, therefore, set aside. Both these expression of opinion on
the merits of other objections raised in the written statement filed by the
returned candidate. succeed and are allowed. The Election Petitions are
remanded to the High Court for their disposal on merits in accordance with law.
We clarify that our order shall not be construed as any expression of opinion
on the merits of other objections raised in the written statement filed by the
returned candidate. Petitions expeditiously. We request the High Court to
dispose of the Election There shall be no order as to costs so far as these
appeals are concerned.