A. Manju vs Prajwal Revanna @ Prajwal R

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1774 OF 2020

A. MANJU … Appellant

Versus

PRAJWAL REVANNA @ PRAJWAL R & ORS …Respondents

JUDGMENT

SANJAY KISHAN KAUL, J.

Facts:

1. The moot point for consideration in the present appeal is whether

an election petition can be thrown out at the threshold on a plea of the

respondent/elected candidate that the petition is not supported by an

affidavit in Form 25, as prescribed under Rule 94A of Conduct of

Election Rules, 1961, even though the petition is based on allegations of Signature Not Verified Digitally signed by RASHI GUPTA corrupt practices.

Date: 2021.12.13 17:16:47 IST Reason: 1

2. The appellant was a candidate from 16 Hassan (General)

Parliamentary Constituency (for short ‘Constituency’) in the 2019

elections and was stated to have been sponsored by the Bharatiya Janata

Party. Respondent No.1 was sponsored by Janatha Dal Secular Party and

was also a candidate from the Constituency. Respondent Nos. 2 to 6 were

sponsored by local/regional parties but, as transpired from the elections,

were not serious contestants in real terms. The Election Commission of

India issued a notification on 12.01.2019 appointing a Returning Officer

to the Constituency where elections were held on 18.04.2019. The

appellant secured 5,35,282 votes while respondent no.1 secured 6,76,606

votes. The other respondents secured only marginal votes.

3. The appellant preferred an election petition under Section 81 of the

Representation of People Act, 1951 (hereinafter referred to as the ‘RP

Act’) on 26.06.2019 challenging the election of respondent no.1. The

appellant sought a declaration that respondent no.1’s election was liable

to be declared void on account of respondent no.1 having filed a false

affidavit and consequently the appellant should be declared as duly

elected on account of his having secured the second highest votes. This

petition was resisted by respondent no.1 at the threshold who filed an

2 application under Order VII Rule 11 read with Section 151 of the Code

of Civil Procedure, 1908 (hereinafter referred to as the ‘said Code’) and

Section 86(1) of the RP Act seeking dismissal of the election petition on

account of non-compliance of Section 81(3) and the proviso to Section

83(1) of the RP Act.

4. In order to appreciate the rival submissions of the learned counsel

for the parties, it would be appropriate to extract the relevant Sections of

the RP Act. Chapter II under Part VI of the RP Act deals with the

Presentation of Election Petitions to the High Court. The presentation of

petitions has to be as per Section 81 of the RP Act. The contents of an

election petition are as set out in Section 83. The relevant provisions

read as under:

“81. Presentation of petitions.— xxxx xxxx xxxx xxxx

[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]”

.... .... .... .... ....

“[83. Contents of petition.—(1) An election petition—

(a) shall contain a concise statement of the material facts on which the petitioner relies;

3 (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.]”

Chapter III under Part VI of the RP Act deals with trial of election

petitions. The relevant portion of Section 86 is extracted as under:

“[86. Trial of election petitions.—(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.”

Submissions of Respondent No.1 before the High Court:

5. In the conspectus of the aforesaid provisions, we first set out the

pleas of respondent no.1 which it raised in its application before the High

Court and on the basis of which the election petition was sought to be

dismissed at the threshold. The grievance in a nutshell is set out below:

(a) non-compliance of Section 81(3) of the RP Act on the ground that the

4 election petition was not attested by the appellant under his own

signature as a true copy. Respondent no.1 sought to rely on the

mandatory nature of such compliance as enunciated in Sharif-ud-din v.

Abdul Gani Lone1 and the consequence of non-compliance was rejection

of the election petition under Section 86 of the RP Act. The object of this

rule is to ensure that the petitioner takes full responsibility of its contents

and then the respondent in turn receives a true and accurate copy of the

petition.

(b) Respondent no.1 alleged that the appellant had made

allegations against him in the election petition which would constitute an

allegation of “corrupt practice”. The proviso to Section 83(1) of the RP

Act mandates that all allegations of corrupt practice must be

accompanied by an affidavit in the prescribed form in support of the

allegations. The form of affidavit is as set out in Form 25 as per the

mandate of Section 94A of the Conduct of Election Rules, 1962

(hereinafter referred to as the ‘Election Rules’). The mandatory

requirement of the filing of such an affidavit has formed part of the

observations in B.R. Patil v. Rajeev Chandrashekhar & Ors. 2 of the

1 (1980) 1 SCC 403 2 ILR 2007 Kar 317 5 Karnataka High Court and Purushottam v. Returning Officer, Amravati

& Ors.3 of the Bombay High Court.

Submissions of the Appellant before the High Court:

6. On the other hand, the appellant sought to contest this application

filed by respondent no.1. It was urged that the appellant had in any case

substantially complied with Section 81(3) by ascribing his signature and

duly verifying every page of the election petition, including on the copies

furnished to respondent No.1. Further, the index and synopsis of the

petition were not required to be attested as they were not part of the

election petition by their very description. In any case this was stated to

be substantial compliance in terms of Section 81(3) of the RP Act, which

required an election petition to be admitted in light of the observations of

the Supreme Court in Ch. Subbarao v. Member, Election Tribunal,

Hyderabad & Ors.4

7. On the second plea advanced by respondent No.1, the appellant

contended that the question of filing Form 25 would arise only if there

are any allegations of corrupt practice as defined by Section 123 of the

RP Act. The appellant pleaded that the election petition actually fell

3 AIR 1992 Bom 227 4 AIR 1964 SC 1027 6 within the purview of Section 33A of the RP Act as inserted by Act 72 of

2002 which required certain information to be furnished by a candidate.

Section 33A of the RP Act reads as under:

“33A. Right to information.— (1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of section 33, also furnish the information as to whether—

(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;

(ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-

section (3), of section 8] and sentenced to imprisonment for one year or more.

(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1).

(3) The returning officer shall, as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under sub- section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.”

The allegation in the election petition dealt with suppression of

information. The appellant did not allege Section 123 of the RP Act

7 against Respondent No.1 and the specific averment to corrupt practice

made in para 32 was simply alluding to the observations of this Court in

Krishnamoorthy v. Sivakumar & Ors.5, opining that non-disclosure of

assets and income amounts to corrupt practice.

The decision of the High Court:

8. The learned single Judge of the High Court allowed the application

filed by respondent no.1 by the impugned judgment dated 17.01.2020.

The learned Judge analysed the circumstances under which the election

petition could be dismissed at the threshold by referring to the

observations of this Court in H.D. Revanna v. G. Puttaswamy Gowda &

Ors.6 and T. Phungzathang v. Hangkhanlian & Ors. 7 setting out only

two circumstances in which the petition could be dismissed in limine: (i)

non-compliance of Sections 81, 82 and 117 of the RP Act; and (ii) non-

compliance of Section 83 only when the matter falls within the scope of

Order VI Rule 16 or Order VII Rule 11 of the said Code.

9. In the conspectus of the pleas advanced, it was opined that a

substantial compliance of Section 81(3) of the RP Act saves an election

5 (2015) 3 SCC 467 6 AIR 1999 SC 768 7 (2001) 8 SCC 358 8 petition from dismissal. We may add here that the only issue here was

about the index and the synopsis not being signed by the appellant. In the

given facts, the appellant had attested the election petition with his

endorsement that it was a correct copy of the election petition and hence

had substantially complied with the requirements.

10. The more crucial issue examined by the High Court which resulted

in an adverse order against the appellant was qua the requirement of

submission of Form 25. The submission of respondent no.1 that filing of

Form 25 would arise only if the allegations made in the election petition

pertained to Section 123 of the RP Act was repelled by the learned Single

Judge. The learned Single Judge held that the use of the phrase “any

corrupt practice” in the proviso to Section 83 of the RP Act covers

allegations of every manner of corrupt practice envisaged under the RP

Act. In any case, the High Court was of the view that the appellant had

alleged undue influence and improper acceptance of respondent No.1’s

nomination under Sections 123 and 100 of the RP Act respectively.

Accordingly, the appellant’s submission that the allegations against

respondent No.1 were confined only to Section 33A of the RP Act was

liable to be rejected.

9

11. The High Court thereafter proceeded to examine the consequences

of non-submission of Form 25 and opined that in view of the dictum laid

down in Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors.,8 the

absence of an affidavit or an affidavit in a form other than the one

stipulated, would not itself cause prejudice to the election petitioner so

long as the deficiency was cured. However, in the case at hand the

appellant had not filed any affidavit. Thus, the Ponnala Lakshmaiah9

case would not come to the aid of the appellant. However, a closer case

on facts would be of G.M. Siddeshwar v. Prasanna Kumar10 where a

Three Judge Bench enumerated triple principles: (i) total non-compliance

of Section 83 of the RP Act means that a petition cannot be described as

an election petition and must be dismissed at the threshold; (ii) if defects

are curable, then the petition cannot be dismissed summarily as Section

86 of the RP Act sanctioned dismissal only for non-compliance with

Sections 81, 82 & 117 of the RP Act; and (iii) a determination of the

gravity of defects would have to be made in the facts of each case, to

determine whether there had been non-compliance with an integral part

of Section 83 or not. The High Court opined that Form 25 was an

8 AIR 2012 SC 2638 9 (supra) 10 (2013) 4 SCC 776 10 integral part of the election petition and its complete absence would

mean that there was total non-compliance of Section 83 of the RP Act.

The election petition was, thus, held as not maintainable.

12. In the conspectus of the aforesaid finding the scope of arguments

before this Court became narrower.

Appellant’s submissions before the Supreme Court:

13. Learned counsel for the appellant sought to contend that the

grounds in the election petition were specific to Section 100(1)(d)(i) and

(iv) of the RP Act. Section 100(1) of the RP Act reads as under:

“100. Grounds for declaring election to be void. –

[(1) Subject to the provisions of sub-section (2) if [the High court] is of opinion--

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [or the Government of Union Territories Act, 1963 (20 of 1963)]; or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--

(i) by the improper acceptance or any nomination, or

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(ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

[the High Court] shall declare the election of the returned candidate to be void.]”

14. It was, thus, contended that the allegations deal with the improper

acceptance of the nomination and non-compliance with statutory

provisions. The allegations of corrupt practice are contained in Section

123 and Section 100(1)(d)(ii) of the RP Act and the election petition does

not relate to either of these provisions. Thus, the submission of Form 25

was not necessary.

15. It was further sought to be urged by referring to Section 83 of the

RP Act that the signing and verification of pleadings in terms of Section

83(1)(c) of the RP Act if not complied with, cannot be fatal and the

circumstances in which a petition could be thrown out at the threshold in

terms of Section 86(1) of the RP Act were only non-compliance of

12 Sections 81, 82 and 117 of the RP Act. This issue was urged not to be

res integra in view of the judgment of this Court in Ponnala

Lakshmaiah11 case, wherein this Court opined against the rejection of an

election petition at the threshold stage on hyper-technical grounds. The

observations in this case by the Supreme Court have received the

imprimatur of a larger Bench of three Judges in G.M. Siddeshwar12 case,

where the relevant portion from Ponnala Lakshmaiah13 case has been

extracted as under:

“43. More recently, the issue was again considered in Ponnala Lakshmaiah and relying upon Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196 it was held: (Ponnala Lakshmaiah case SCC p. 799 para 22)

“22. Even otherwise the question whether non-compliance with the proviso to Section 83(1) of the Act is fatal to the election petition is no longer res integra in the light of a three-Judge Bench decision of this Court in Sardar Harcharan Singh Brar v. Sukh Darshan Singh. In that case a plea based on a defective affidavit was raised before the High Court resulting in the dismissal of the election petition. In appeal against the said order, this Court held that non-compliance with the proviso to Section 83 of the Act did not attract an order of dismissal of an election petition in terms of Section 86 thereof. Section 86 of the Act does not provide for dismissal of an election petition on the ground that the same does not comply with the provisions of Section 83 of the Act. It sanctions dismissal of an election petition for non-compliance with Sections 81, 82 and 117 of the Act only. Such being the position, the defect if any in the verification of the affidavit filed in support 11 (supra) 12 (supra) 13 (supra) 13 of the petition was not fatal, no matter the proviso to Section 83(1) was couched in a mandatory form.”

44. The issue having been considered several times by this Court must now be allowed to rest at that.”

16. Lastly it was contended that in any case non-filing of an affidavit

or non-filing of proper verification is a technical defect which is curable

and at best the High Court ought to have given an opportunity to cure the

defect by allowing the appellant to file a proper affidavit. Dismissal of

the election petition under Order VII Rule 11 of the said Code at the

threshold was not warranted.

Respondent’s submissions before the Supreme Court:

17. Learned counsel for respondent no.1, however, contended that

there could not be any waiver of the non-compliance of a mandatory

affidavit in the prescribed Form 25 as provided under Section 83(1) of

the RP Act, especially when grave charges of corrupt practices have been

made. The plea of the appellant in the election petition was based on the

submission of a false affidavit vide Form 26 by respondent no. 1 at the

stage of filing nomination papers, amounting to non-disclosure of assets,

which in turn constituted corrupt practice under Section 123 of the RP

Act. No such affidavit had been filed and this defect could not be cured

14 at a later stage as observed in Ravinder Singh v. Janmeja Singh &

Ors.14

18. In substance the submission of learned counsel for respondent

No.1 was that the absence of an affidavit stands on a different footing

from submission of a defective affidavit, as recognised in the G.M.

Siddeshwar15 case which opined that total non-compliance of Section 83

of the RP Act cannot be cured. It was urged that permitting an affidavit

to be filed at a later stage would provide an opportunity for

embellishment of the case and defeat the statutory requirement of an

affidavit. The nature of allegations made by the appellant against the

respondent, it was urged, were in the nature of undisclosed profits from

commercial operations through a partnership, and receipt of money from

a sitting Rajya Sabha member. The allegations were made without

disclosing any sources of information by way of an affidavit in Form 25.

Conclusion:

19. We must begin at the inception by stating that intrinsically,

election law is technical in nature. In the present matter, an election

conducted under an independent body like the Election Commission is

14 (2000) 8 SCC 191 15 (supra) 15 sought to be assailed, where the mandate of the public has gone in a

particular way. The allegations must strictly fall within the parameters of

the manner in which such a mandate can be overturned. The primary plea

taken by the appellant is largely that success in the elections was

obtained by concealment of material, which would have been germane in

determining the opinion of the electorate. In effect, were such material to

be available with the electorate, they would have exercised another

option on the basis of it. 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 Lakshmaiah16 case. We have

considered the aforesaid aspect by quoting the observations made therein

which have received the imprimatur of a larger Bench.

20. In the conspectus of the aforesaid, if we examine the facts of the

present case, 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 High Court.

21. Thus, the real and core question before us is that in view of the

allegations of the alleged non-disclosure of assets in Form-26 by

respondent No.1 being cited as “corrupt practice”, would it be mandatory 16 (supra) 16 for the election petitioner to file an affidavit in Form-25 and what would

be the consequences of not filing such an affidavit.

22. We may take note of the Constitution Bench judgment of this

Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore 17

which opined that the defect in 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. This Constitution

Bench judgment was also referred to in G.M. Siddeshwar18 case to come

to a conclusion that non-compliance with proviso to Section 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. We cannot say that the

High Court fell into an error while considering the election petition as a

whole to come to the conclusion that the allegations of the appellant were

not confined only to Section 33A of the RP Act, but were larger in ambit

as undue influence and improper acceptance of nomination of respondent

No.1 were also pleaded as violation of the mandate under Sections 123

and 100 of the RP Act.

17 AIR 1964 SC 1545 : (1964) 3 SCR 573 18 (supra) 17

23. However, we are not persuaded to agree with the conclusion

arrived at by the High Court that the non-submission of Form 25 would

lead to the dismissal of the election petition. We say so because, in our

view, the observations made in Ponnala Lakshmaiah19 case which have

received the imprimatur of the three Judges Bench in G.M. Siddeshwar20

case appear not to have been appreciated in the correct perspective. In

fact, the G.M. Siddeshwar21 case has been cited by the learned Judge to

dismiss the petition. If we look at the election petition, the prayer clause

is followed by a verification. There is also a verifying affidavit in support

of the election petition. 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. In fact, a consideration

of both the judgments of the Supreme Court referred to by the learned

Judge, i.e. Ponnala Lakshmaiah22 as well as G.M. Siddeshwar23, ought

19 (supra) 20 (supra) 21 (supra) 22 (supra) 23 (supra) 18 to have resulted in a conclusion that the correct ratio in view of these

facts was to permit the appellant to cure this defect by filing an affidavit

in the prescribed form.

24. The arguments of learned counsel for respondent No.1 were

predicated on the distinction between the absence of an affidavit and a

defective affidavit. This pre-supposes that for an opportunity of cure to

be granted, there must be the submission of a Form 25 affidavit which

may be defective. This would be very narrow reading of the provisions.

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. We have to

appreciate that the petition is at a threshold stage. It is 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.

25. The appellant states the 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.

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26. The result of the aforesaid is that the impugned order of the

learned single Judge dated 17.1.2020 is set aside and the application filed

by respondent no.1 under Order 7 Rule 11, S. 151 of the said Code and S.

86(1) of the RP Act would stand dismissed with liberty to the appellant to

file an appropriate affidavit in Form 25 within fifteen (15) days from

today. The further proceedings in the election petition are required to be

taken up urgently as almost two and a half years have gone on the

preliminary skirmishes rather than the meat of the matter, which we are

sure the learned single Judge of the High Court would so do.

27. The appeal is accordingly allowed leaving the parties to bear their

own costs.

...……………………………J. [Sanjay Kishan Kaul]

...……………………………J. [M.M. Sundresh] New Delhi.

December 13, 2021.

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