G. Mallikarjunappa and Another Vs. Shamanur Shivashankarappa and Others
EmailAppeal: Civil Appeal Nos. 4172-73 of 1999
From the judgment and Order dated 3.11.1998 of the Karnataka High Court in EPs Nos. 4 and 5 of 1998
From the judgment and Order dated 3.11.1998 of the Karnataka High Court in EPs Nos. 4 and 5 of 1998
Petitioner: G. Mallikarjunappa and Another
Respondent: Shamanur Shivashankarappa and Others
Apeal: Civil Appeal Nos. 4172-73 of 1999
From the judgment and Order dated 3.11.1998 of the Karnataka High Court in EPs Nos. 4 and 5 of 1998
From the judgment and Order dated 3.11.1998 of the Karnataka High Court in EPs Nos. 4 and 5 of 1998
Judges: Dr. A.S. ANAND, CJI., R.C. LAHOTI & DORAISWAMY RAJU, JJ.,
Date of Judgment: Apr 04, 2001
Appearances:
Mr. Adarsh Kr. Goel, Senior Advocate, Mr. N.P.S. Panwar, Mr. D.P. Chaturvedi, Mr. Ananga Bhattacharya and Mr. S.N. Bhat, Advocates, with him for the Appellants.
Mr. G.L. Sanghi, Senior Advocate, Mr. S.K. Kulkarni, Mr. B.P. Pati and Ms. Sangeeta Kumar, Advocates, with him for the Respondents.
Head Note:
ELECTION
Representation of the People Act, 1951
Sections 86(1), 83(2) with Conduct of Election Rules, 1952 – Rule 94A – Election petition – Defects – Dismissal in limini – When permissible – Defect in verification of affidavit – Difference in identity of petitioner, who was election agent of defeated candidate – However, name tallying with voters’ list – Effects. Held that defects or noncompliance of section 83 does not envisage consequences under section 86. They are curable. Case law discussed.
Representation of the People Act, 1951
Sections 86(1), 83(2) with Conduct of Election Rules, 1952 – Rule 94A – Election petition – Defects – Dismissal in limini – When permissible – Defect in verification of affidavit – Difference in identity of petitioner, who was election agent of defeated candidate – However, name tallying with voters’ list – Effects. Held that defects or noncompliance of section 83 does not envisage consequences under section 86. They are curable. Case law discussed.
Held:
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 practices is contained in section 83(1) of the Act. Noncompliance 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 noncompliance 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. (Para 7)
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. Appellant 2, the son of appellant 1, who had also acted as an agent of appellant 1, challenged the election of the 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 appearing in the voters’ list. There was, thus, no discrepancy in the name of appellant 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 appellant 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”. The view is clearly erroneous. (Para 10)
Cases Reffered:
1. Vijay Laxmi Sadho (Dr.) v. Jagdish (JT (2001) 1 SC 382) (Para 9)
2. F.A. Sapa v. Singora (JT 1991 (2) SC 503) (Para 4)
2. F.A. Sapa v. Singora (JT 1991 (2) SC 503) (Para 4)
JUDGEMENT:
Dr. A.S. Anand, cji.
1. Election from 6th Davangere constituency to the 12th Lok Sabha was held on 22.2.1998. The result of election was declared on 2.3.1998. The first appellant besides respondents 1 to 7 were candidates at the election. The second appellant 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 the first respondent was challenged 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 were paid and the original joint election petition was bifurcated into two separate election petitions being election petitions nos. 4 and 5 of 1998. Besides seeking setting aside of the election of the first respondent, the appellants also sought a declaration to the effect that the first appellant be declared elected. After the respondents were served, the first respondent filed an application (IA no.1) under order 7, rule 11 read with section 151 CPC praying for dismissal of election petitions in limine under section 86 of the Representation of the People Act, 1951 firstly, on the ground that the affidavit filed in support of the election petitions, was not in the proper format and there was, thus, violation of section 83(2) of the Representation of the People Act. It was also alleged that verification of the affidavit and the election petitions did not tally and the election petitions were liable to be dismissed in limine. The other objection raised was the alleged incapacity of appellant 2 to maintain an election petition on the ground that the name of appellant 2 as given in the election petition did not tally with the name of the appellant, as contained in the form for appointment of election agent and because of “difference of identity” the election petitions could not proceed to trial and were 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 this stage.
2. The appellants resisted the application and asserted that election petitions could not be dismissed in limine under section 86(1) of the Representation of the People Act on the alleged grounds mentioned in IA no.1
3. A learned single judge of the High Court of Karnataka vide order of 3-11-1998 allowed the application (IA no. 1) and dismissed both the election petitions (election petition nos. 4 and 5 of 1998) in limine. It was held that there had been noncompliance 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 25. As regards the other objection to the maintainability of the election petitions, namely, that appellant 2 was shown as “G.M. Siddhesh-warappa” in the election petition whereas in the election agent form, the election agent of appellant 1, namely, appellant 2, had signed his name as “Siddeshwar” and not as “G.M. Siddheshwarappa”. 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 maintainable. Order of the learned single judge dismissing both the election petitions has been put in issue before us in these appeals.
4. Mr. A.K. Goel, learned senior counsel appearing on behalf of the appellants, submitted that the High Court fell in error in dismissing the election petitions for alleged noncompliance with section 83(2) of the Representation of the People Act and that even if there was some defect in the affidavit on its verification, it was a curable defect and the election petitions did not merit dismissal in limine. Reliance in this behalf was placed on F.A. Sapa v. Singora (JT 1991 (2) SC 503). Mr. Goel submitted that the affidavit did not suffer from any defect and that even if it was defective and not in accordance with rule 94-A as alleged, noncompliance with provisions of section 83(2) of the RP Act, did not attract section 86(1) of the Act and the election petitions could not be dismissed in limine. Mr. Goel further submitted that the name of appellant 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 he is the son of appellant 1 but the mere fact that in the form for appointment of appellant 2 as an election agent of appellant 1, he had signed as “Siddeshwar” 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.
5. Mr. G.L. Sanghi, learned senior counsel for the 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 25) prescribed under rule 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 dismissed in limine.
6. We have given our thoughtful consideration to the submissions made at the bar.
7. 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 practices is contained in section 83(1) of the Act. Noncompliance 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 noncompliance 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.
8. In F.A. Sapa’s case 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 corrupt practices are made. After considering the provisions of sections 83 and 86 of the Act, as also the requirements of form 25 prescribed by rule 94-A of the rules and relevant provisions of the Code of Civil Procedure, the Court opined:
“28. From the text of the relevant provisions of the RP 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 that (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…”
9. Again in Vijay Laxmi Sadho (Dr.) v. Jagdish (JT (2001) 1 SC 382) this Court opined :
“12. We are in respectful agreement with the view expressed in F.A Sapa’s case 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.
10. Insofar 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 that he did not pursue the challenge to the maintainability of the election petitions 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 2 and that 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. Appellant 2, the son of appellant 1, who had also acted as an agent of appellant 1, challenged the election of the 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 appearing in the voters’ list. There was, thus, no discrepancy in the name of appellant 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 appellant 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”. The view is clearly erroneous.
11. 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. The impugned order is, therefore, set aside. Both these appeals succeed and are allowed. The election petitions are remanded to the High Court for their disposal on merits in accordance with law.
12. 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.
13. We request the High Court to dispose of the election petitions expeditiously.
14. There shall be no order as to costs so far as these appeals are concerned.
1. Election from 6th Davangere constituency to the 12th Lok Sabha was held on 22.2.1998. The result of election was declared on 2.3.1998. The first appellant besides respondents 1 to 7 were candidates at the election. The second appellant 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 the first respondent was challenged 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 were paid and the original joint election petition was bifurcated into two separate election petitions being election petitions nos. 4 and 5 of 1998. Besides seeking setting aside of the election of the first respondent, the appellants also sought a declaration to the effect that the first appellant be declared elected. After the respondents were served, the first respondent filed an application (IA no.1) under order 7, rule 11 read with section 151 CPC praying for dismissal of election petitions in limine under section 86 of the Representation of the People Act, 1951 firstly, on the ground that the affidavit filed in support of the election petitions, was not in the proper format and there was, thus, violation of section 83(2) of the Representation of the People Act. It was also alleged that verification of the affidavit and the election petitions did not tally and the election petitions were liable to be dismissed in limine. The other objection raised was the alleged incapacity of appellant 2 to maintain an election petition on the ground that the name of appellant 2 as given in the election petition did not tally with the name of the appellant, as contained in the form for appointment of election agent and because of “difference of identity” the election petitions could not proceed to trial and were 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 this stage.
2. The appellants resisted the application and asserted that election petitions could not be dismissed in limine under section 86(1) of the Representation of the People Act on the alleged grounds mentioned in IA no.1
3. A learned single judge of the High Court of Karnataka vide order of 3-11-1998 allowed the application (IA no. 1) and dismissed both the election petitions (election petition nos. 4 and 5 of 1998) in limine. It was held that there had been noncompliance 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 25. As regards the other objection to the maintainability of the election petitions, namely, that appellant 2 was shown as “G.M. Siddhesh-warappa” in the election petition whereas in the election agent form, the election agent of appellant 1, namely, appellant 2, had signed his name as “Siddeshwar” and not as “G.M. Siddheshwarappa”. 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 maintainable. Order of the learned single judge dismissing both the election petitions has been put in issue before us in these appeals.
4. Mr. A.K. Goel, learned senior counsel appearing on behalf of the appellants, submitted that the High Court fell in error in dismissing the election petitions for alleged noncompliance with section 83(2) of the Representation of the People Act and that even if there was some defect in the affidavit on its verification, it was a curable defect and the election petitions did not merit dismissal in limine. Reliance in this behalf was placed on F.A. Sapa v. Singora (JT 1991 (2) SC 503). Mr. Goel submitted that the affidavit did not suffer from any defect and that even if it was defective and not in accordance with rule 94-A as alleged, noncompliance with provisions of section 83(2) of the RP Act, did not attract section 86(1) of the Act and the election petitions could not be dismissed in limine. Mr. Goel further submitted that the name of appellant 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 he is the son of appellant 1 but the mere fact that in the form for appointment of appellant 2 as an election agent of appellant 1, he had signed as “Siddeshwar” 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.
5. Mr. G.L. Sanghi, learned senior counsel for the 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 25) prescribed under rule 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 dismissed in limine.
6. We have given our thoughtful consideration to the submissions made at the bar.
7. 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 practices is contained in section 83(1) of the Act. Noncompliance 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 noncompliance 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.
8. In F.A. Sapa’s case 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 corrupt practices are made. After considering the provisions of sections 83 and 86 of the Act, as also the requirements of form 25 prescribed by rule 94-A of the rules and relevant provisions of the Code of Civil Procedure, the Court opined:
“28. From the text of the relevant provisions of the RP 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 that (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…”
9. Again in Vijay Laxmi Sadho (Dr.) v. Jagdish (JT (2001) 1 SC 382) this Court opined :
“12. We are in respectful agreement with the view expressed in F.A Sapa’s case 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.
10. Insofar 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 that he did not pursue the challenge to the maintainability of the election petitions 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 2 and that 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. Appellant 2, the son of appellant 1, who had also acted as an agent of appellant 1, challenged the election of the 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 appearing in the voters’ list. There was, thus, no discrepancy in the name of appellant 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 appellant 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”. The view is clearly erroneous.
11. 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. The impugned order is, therefore, set aside. Both these appeals succeed and are allowed. The election petitions are remanded to the High Court for their disposal on merits in accordance with law.
12. 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.
13. We request the High Court to dispose of the election petitions expeditiously.
14. There shall be no order as to costs so far as these appeals are concerned.
