Case Note & Summary
The dispute arose from an election petition filed under Section 80 of the Representation of the People Act, 1951, challenging the election of respondent No. 1 as a Member of the Maharashtra Legislative Council from the Jalgaon Local Authorities Constituency. The election was held on 30-11-2004 and the result declared on 02-12-2004, with respondent No. 1 securing 246 votes against the petitioner's 240 votes. The petitioner, a candidate of the Nationalist Congress Party, alleged that respondent No. 1, an independent candidate, had obtained Indian citizenship by fraud and was thus ineligible; that there was illegal rejection and acceptance of votes; and that respondent No. 1 resorted to corrupt practices like bribery and undue influence. The election petition was filed on 17-01-2005. The respondent No. 1 filed applications leading to deletion of the Returning Officer and Union of India as parties. Subsequently, he filed an application (Exhibit-9) claiming that the petition should be dismissed for non-compliance with the proviso to Section 83(1) of the Act because no separate affidavit in Form No. 25 had been filed along with the petition. The petitioner had filed an affidavit on 19-01-2005, beyond the 45-day limitation period. The respondent argued that the petition without such an affidavit is incomplete and cannot be treated as an election petition, and that the defect could not be cured after expiry of limitation. The petitioner contended that the High Court Registry had accepted the petition on 17-01-2005 and only raised the objection later, allowing the affidavit on 19-01-2005; that the petition was otherwise verified and sworn on the filing date; and that non-compliance with Section 83 does not entail dismissal under Section 86, which covers only Sections 81, 82, and 117. The court heard detailed arguments from both sides, with extensive case law cited, and reserved judgment on 01-08-2006, pronouncing it on 08-11-2006. The text provided does not contain the final holding of the court, but it extensively discusses the preliminary objection regarding the affidavit requirement.
Headnote
A) Election Law – Election Petition – Corrupt Practices Allegations – Requirement of Separate Affidavit – Representation of the People Act, 1951, Section 83(1) proviso – The respondent filed an application contending that the election petition was not accompanied by a separate affidavit in Form No. 25 as mandated by the proviso to Section 83(1) of the Act, and the affidavit filed on 19-01-2005 after expiry of the 45-day limitation period could not be considered, rendering the petition liable to be dismissed under Section 86 and Order VII Rule 11 of the Code of Civil Procedure, 1908. The court heard arguments on whether such non-compliance is fatal and when the petition would be dismissed at threshold. (Paras 8-13)
Issue of Consideration
Whether an election petition alleging corrupt practices is liable to be dismissed at the threshold for non-compliance with the proviso to Section 83(1) of the Representation of the People Act, 1951, due to failure to file a separate affidavit in Form No. 25 within the limitation period.
Case Details
2006 LawText (BOM) (11) 2
Election Petition No. 7 of 2005
S.B. Talekar, P.M. Shah, P.S. Shendurnikar
Ashok s/o Tapiram Patil @ A.T. Nana Patil
Dr. Gurumukh Mehrumal Jagwani, The Returning Officer, Jalgaon Local Authorities Constituency, Jalgaon, The Union of India through its Secretary, Ministry of External Affairs
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Nature of Litigation
Election Petition under Section 80 of the Representation of the People Act, 1951 challenging the election of respondent No. 1 as a Member of Maharashtra Legislative Council.
Remedy Sought
Petitioner sought a declaration that the election of respondent No. 1 is null and void, to set aside the election, and to declare the petitioner duly elected.
Filing Reason
Allegations that respondent No. 1 had obtained Indian citizenship by fraud and was not eligible; illegal rejection/acceptance of votes; undue influence; and bribery.
Previous Decisions
Earlier, on applications by respondent No.1, the petitioner deleted respondents No.2 and 3 from the petition. The matter then proceeded on the preliminary objection regarding non-compliance with Section 83(1) proviso.
Issues
Whether the Election Petition is liable to be dismissed for non-compliance with the proviso to Section 83(1) of the Representation of the People Act, 1951, due to failure to file a separate affidavit in Form No. 25 along with the petition within the limitation period.
Submissions/Arguments
Respondent No.1 argued that a separate affidavit in Form No. 25 is mandatory under the proviso to Section 83(1); without it, the petition is incomplete and cannot be considered an election petition; filing such affidavit after expiry of the 45-day limitation period is impermissible; the High Court Registry's acceptance of the late affidavit does not cure the statutory defect; and the copy of the petition served was not endorsed as required.
Petitioner argued that the High Court Appellate Side Rules allowed him to file the affidavit on 19-01-2005 after the Registry raised the objection; the petition was already verified and sworn on 17-01-2005; non-compliance with Section 83 does not attract the provisions of Section 86 and cannot be a ground for dismissal in limine; and the petition was in substance compliant.
Judgment Excerpts
the petition without an affidavit can be said to be an incomplete petition.
non-compliance of the provisions of Section 83 does not attract the provisions of Section 86 of the Act
Let us first consider as to whether there is non-compliance of requirements of Section 83 of the Representation of the People Act, 1951
Procedural History
Election Programme declared on 10-11-2004; nominations filed on 11-11-2004; polling held on 30-11-2004; result declared on 02-12-2004 declaring respondent No.1 elected with 246 votes against petitioner's 240. Election Petition filed on 17-01-2005. Affidavit in Form No. 25 filed on 19-01-2005. Respondent No.1 filed applications Exhibit-14 and Exhibit-15 contending that respondents No.2 and 3 are not necessary parties; the petitioner subsequently deleted their names and those applications were disposed of. Respondent No.1 then filed application Exhibit-9 and affidavit Exhibit-13 alleging non-compliance of Section 83(1) proviso and seeking dismissal of the petition. The court heard arguments on this preliminary objection.
Acts & Sections
- Representation of the People Act, 1951: 80, 81, 82, 83(1), 86, 117
- Code of Civil Procedure, 1908: Order VII Rule 11
