DWARKA PRASAD MISHRA Vs. KAMALNARAIN SHARMA

JUDGEMENT

(1.) IN this application under Articles 226 and 227 of the Constitution, the question for consideration arises, upon what the Election Tribunal, Raipur, determined in regard to a preliminary objection of the petitioner to the election petition filed by the respondent No. 1 challenging the petitioner's election to the State Legislative assembly from Kasdol constituency.

(2.) THE relevant facts are these. The petitioner was duly etected to the M. P. State legislative Assembly at a bye-election held in May rg63 from Kasdol constituency. The respondent No. 1, who was defeated at the election, filed an election petition praying that the petitioner's election be declared void as the petitioner was guilty inter alia of having committed certain corrupt practices enumerated in the petition. To support the allegations of corrupt practices and the particulars thereof the respondent No. 1 filed an 'affidavit' along with the election petition. In his reply to the petition, the. applicant raised the preliminary objection that the proviso to section 83 (1) of the Representation of the People Act, 1951, (hereinafter referred to as the Act) required that if allegations of any corrupt practices are made in an election petition then the petition should be accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice or practices and the particulars thereof; that this provision was mandatory; that the affidavit filed by the respondent No. 1 was not in the form prescribed by Rule 94-A of the Conduct of Election Rules, 1961, (hereinafter referred to as the Rules) in that it was not sworn before a Magistrate at the first class or a notary or a Commissioner of oaths; that the non-compliance of Rule 94-A rendered the petition ineffective and liable to be dismissed under Section 90 (3) of the Act; and that in any case the allegations of corrupt practices in the petition were liable to be struck out as they were not supported by any affidavit in conformity with the proviso to Section 83 (1)and Rule 94-A. On this objection, the Tribunal framed the following preliminary issues: "no. 18. Whether the affidavit filed by the petitioner in support of his petition is bad in law, as not properly sworn before a competent officer duly authorised to attest and authenticate an affidavit and does not comply with the provisions of Section 83 of the R. P. Act and the rules made thereunder? If so, whether the petition is liable to be dismissed on this ground? no. 20. Whether the various alleged acts of corrupt practices mentioned in the petition are duly supported by an affidavit as required Under section 83 (1) of the R. P. Act? If not, what is the effect on this petition?" on the first of the two issues reproduced above, the Tribunal held that the affidavit filed by the respondent No. 1 was sworn not before any authority specified in Rule 94-A but before the Clerk of Court of. the Court of District Judge, Jabalpur; and that the affidavit was thus defective but on that defect alone the election petition could not be dismissed. The Tribunal further observed that the affidavit, purported to be in the prescribe form, supported the allegations of corrupt practices made in the election petition. In regard to the other issue, the Tribunal stated its finding, thus:

(3.) THEREAFTER on 14th February 1964, the petitioner presented an application before the Tribunal stating inter alia that after having reached the finding that the affidavit accompanying the election petition was not sworn before the prescribed authority and was thus not in conformity with the proviso to Section 83 (1) of the act and Rule 94-A and holding that for that reason the election petition could not be dismissed, the Tribunal should have proceeded to decide the effect of that defect in the affidavit on the allegation of corrupt practices made in the election petition, that the second part of issue No. 20 specifically referred to the effect on the election petition of the various alleged acts of corrupt practices mentioned in the election petition not being duly supported by an affidavit as required by section 83 (1) of the Act and further that the Tribunal had also not decided the petitioner's objection that the affidavit accompanying the election petition not having been properly stamped as requited by the Indian Stamp Act, 1899, there did not exist in law any affidavit. The petitioner further said in the application dated 14th February 1064, that: