HEERA SINGH CHOUHAN Vs. C D DEWAL

JUDGEMENT

(1.) An application has been filed on behalf of respondent-applicant praying inter alia that the affidavit filed along with the election petition is not in conformity with the provisions of Section 83(1) of the Representation of the People Act (hereinafter referred as 'the Act'). Since the mandatory provisions of Section 83(1) of the Act have not been complied with, the election petition be dismissed. It be held that there is no affidavit accompanying the election petition in the prescribed pro forma. The petition Is based on allegation of corrupt practice, in absence of an affidavit in Form 25, the election petition is not liable to be sustained and hence it entails dismissal.

(2.) Another argument of the learned counsel for the respondent-applicant is that even after filing of the objection that the affidavit filed by the election-petitioner is not in accordance with proviso to Section 83(1) of the Act as the same is not in Form 25. the election-petitioner has failed to correct the defect. Thus, the petitioner is not liable to be granted any indulgence because compliance has not been made even after the election- petitioner was made aware of the defect in the affidavit filed. He has supported his argument by a judgment of this Court reported in 1996 (1) RLW 543 in the matter of Kanak Mal v, Bhikha Bhai. He has further relied upon a Supreme Court decision reported in 2004 (1) SCC 46 : (AIR 2004 SC 38) in the matter of Regu Mahesh alias Maheshwar Rao v. Rajendra Pratap Bhanj Dev. Learned counsel for the respondent on the strength of the aforesaid cases urged that the provisions of Section 83(1) of the Act have been held to be mandatory. The election petition without an affidavit, where the allegations of corrupt practice are made, is no 'election petition' In the eye of law and, therefore, the petition deserves to be dismissed.

(3.) Per contra, the learned counsel for the election-petitioner urged that an affidavit has been filed. No doubt, it is not in the form prescribed. However, subsequent to the filing of the election petition, the election- petitioner has filed an affidavit in the form prescribed in the Rules. According to him defect in affidavit is a curable defect. He places reliance on a Supreme Court decision decided in the matter of H. D. Revanna v, G. Puttaswammy Gowda reported in, AIR 1999 SC 768 in which it has been held as under: