SLPs.(C).Nos. 14172-173 of 2010

1. We have heard Mr. V. Giri, learned Senior Counsel for the petitioner, and Ms. Basava Prabhu S. Patil, learned Senior Counsel for the respondent.

2. Mr. V. Giri, learned Senior Counsel for the petitioner, placed heavy reliance upon a judgment of this Court in P.A. Mohammed Riyas v. M.K. Raghavan (2012) 5 SCC 511 [LQ/SC/2012/412] ) in support of his submission that since the election petitioner, who is the respondent herein, has not filed any affidavit as required under Order 6 Rule 15(4) of the Code of Civil Procedure, 1908 (CPC) in support of the election petition, the High Court was clearly wrong in taking the view (Prasanna Kumar v. G.M. Siddeshwar, (2010) 6 Kant LJ 78), that such an affidavit was not necessary since the election petitioner has already furnished an affidavit in Form 25 in compliance with proviso to Section 83(1)(c) of the Representation of the People Act, 1951 (for short “the 1951 Act”). He also relied upon a decision of this Court in R.P. Moidutty v. P.T. Kunju Mohammad (2000) 1 SCC 481 [LQ/SC/1999/938] ), particularly para 35 thereof.

3. Mr. V. Giri, learned Senior Counsel for the petitioner, submitted that in P.A. Mohammed Riyas (supra), as a matter of fact, the impugned judgment (Prasanna Kumar v. G.M. Siddeshwar, (2010) 6 Kant LJ 78) was cited by the appellant therein but this Court did not accept the view taken by the Karnataka High Court. On the other hand, Mr. Basava Prabhu S. Patil, learned Senior Counsel for the respondent, submitted that the view taken by this Court in P.A. Mohammed Riyas (supra) was not consistent with the earlier larger Bench decisions of this Court. He submitted that in para 46 of the judgment of this Court in P.A. Mohammed Riyas (supra) what the Court read in F.A. Sapa v. Singora (1991) 3 SCC 375 [LQ/SC/1991/287] ) is not at all stated in that judgment. He would submit that in F.A. Sapa (supra) this Court has not held that an election petition filed under the 1951 Act not strictly complying with requirements of Section 83 is not an election petition as contemplated in Section 81 and such election petition would attract dismissal under Section 86(1) of the 1951 Act.

4. The learned Senior Counsel for the respondent referred to a three-Judge Bench decision of this Court in G. Mallikarjunappa v. Shamanur Shivashankarappa (2001) 4 SCC 428 [LQ/SC/2001/931] ) in support of the proposition that an election petition is not liable to be dismissed in limine under Section 86 of the 1951 Act for non-compliance with the provisions of Section 83(1) or (2) of the 1951 Act or of its proviso. Such defect is a curable defect and such defect can be judged at the trial of an election petition but Section 86(1) of the 1951 Act in terms cannot be attracted to such a case. The learned Senior Counsel for the respondent further submitted that the three-Judge Bench decision in G. Mallikarjunappa (supra) is consistent with the earlier Constitution Bench decisions of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore (AIR 1964 SC 1545 [LQ/SC/1963/144] : (1964) 3 SCR 573 [LQ/SC/1963/144] ) and Subbarao v. Election Tribunal (AIR 1964 SC 1027 [LQ/SC/1964/3] : (1964) 6 SCR 213 [LQ/SC/1964/3] ).

5. P.A. Mohammed Riyas (supra) was a case where a preliminary objection was raised by the returned candidate that the election petition was incomplete since no affidavit in Form 25 as required under the proviso to Section 83(1) of the 1951 Act read with Rule 94-A of the Conduct of Elections Rules, 1961 was filed and thus the election petition did not disclose a cause of action and was liable to be dismissed. On the other hand, on behalf of the election petitioner in response to the preliminary objection raised by the returned candidate, it was submitted that the election petition could not be dismissed in limine under Section 86(1) for non-compliance with the provisions of Section 83(1). The election petitioner contended that in an election petition based entirely on the allegations of corrupt practices, it was not necessary to file two affidavits – one under Order 6 Rule 15(4) CPC and another in Form 25. The High Court accepted the preliminary objection of the returned candidate and it was from this order that the matter reached this Court.

a. In paras 6 to 26 of the Report in P.A. Mohammed Riyas (supra), the submissions made on behalf of the election petitioner have been elaborately noted. The Court also noticed the earlier decisions of this Court in Murarka Radhey Shyam Ram Kumar (supra), F.A. Sapa (supra), Sardar Harcharan Singh Brar v. Sukh Darshan Singh (2004) 11 SCC 196 [LQ/SC/2004/1239] ), K.K. Ramachandran Master v. M.V. Sreyamakumar (2010) 7 SCC 428 [LQ/SC/2010/623] and V. Narayanaswamy v. C.P. Thirunavukkarasu (2000) 2 SCC 294 [LQ/SC/2000/128] ), and as indicated above, the judgment (Prasanna Kumar v. G.M. Siddeshwar, (2010) 5 Kant LJ 78) of the Karnataka High Court which is impugned in the present special leave petitions.

b. In Paras 27 to 38, the Court noted the submissions advanced on behalf of the returned candidate and also referred to the judgments of this Court relied upon by the returned candidate particularly, M. Kamalam v. V.A. Syed Mohammed (1978) 2 SCC 659 [LQ/SC/1978/97] ), Hardwari Lal v. Kanwal Singh (1972) 1 SCC 214 [LQ/SC/1971/639] ), Azhar Hussain v. Rajiv Gandhi (1986 Supp SCC 315) [LQ/SC/1986/152] , Samant N. Balkrishna v. George Fernandez (1969) 3 SCC 238 [LQ/SC/1969/63] , Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987) Supp SCC 93) [LQ/SC/1987/471] , and Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar (2009) 9 SCC 310 [LQ/SC/2009/1716] ). The Court also referred to Section 83 of the 1951 Act and Order 6 Rule 15 CPC. Then in paras 45, 46 and 47 of the Report, this Court held as under: (P.A. Mohammed Riyas case (supra), SCC pp. 521-22).

“45. Of Course, it has been submitted and accepted that the defect was curable and such a proposition has been upheld in the various cases cited by Mr. Venugopal, beginning with the decision in Murarka Radhey Shyam Ram Kumar case (supra) and subsequently followed in F.A. Sapa case (supra), Sardar Harcharan Singh Brar case (supra) and K.K. Ramachandran Master case (supra), referred to hereinbefore. In this context, we are unable to accept Mr. Venugopal’s submission that despite the fact that the proviso to Section 83(1) of the 1951 Act provides that where corrupt practices are alleged, the election petition shall also be accompanied by an affidavit in the prescribed form, it could not have been the intention of the legislature that two affidavits would be required, one under Order 6 Rule 15(4) CPC and the other in Form 25. We are also unable to accept Mr. Venugopal’s submission that even in a case, where the proviso to Section 83(1) was attracted, a single affidavit would be sufficient to satisfy the requirements of both the provisions.”

46. Mr. Venugopal’s submission that, in any event, since the election petition was based entirely on allegations of corrupt practices, filing of two affidavits in respect of the selfsame matter, would render one of them redundant, is also not acceptable. As far as the decision in F.A. Sapa case (supra) is concerned, it has been clearly indicated that the petition, which did not strictly comply with the requirements of Section 83 of the 1951 Act, could not be said to be an election petition an contemplated in Section 81 and would attract dismissal under Section 86(1) of the 1951 Act. On the other hand, the failure to comply with the proviso to Section 83(1) of the Act rendered the election petition ineffective, as was held in Hardwari Lal case (Hardwari Lal v. Kanwal Singh (1972) 1 SCC 214 [LQ/SC/1971/639] ) and the various other case cited by Mr. P.P. Rao.

47. “In out view, the objections taken by Mr. P.P. Rao must succeed, since in the absence of proper verification as contemplated in Section 83, it cannot be said that the cause of action was complete. The consequence of Section 86 of the 1951 Act come into play immediately in view of sub-section (1) which relates to trial of election petitions and provides that the High Court shall dismiss the election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the 1951 Act. Although Section 83 has not been mentioned in sub-section (1) of Section 86, in the absence of proper verification, it must be held that the provisions of Section 81 had also not been fulfilled and the cause of action for the election petition remained incomplete. The petitioner had the opportunity of curing the defect, but it chose not to do so.”

c. The Court thus concluded in P.A. Mohammed Riyas (supra) that Section 83 although has not been mentioned in sub-section (1) of Section 86 of the 1951 Act, in the absence of proper verification, the cause of action for the election petition remains incomplete and it must be held that the provisions of Section 81 has also not been fulfilled.

d. While negating the submission that a defect in the affidavit in an election petition making allegations of corrupt practices renders the election petition incompetent and liable to be dismissed in limine, a three-Judge Bench of this Court in G. Mallikarjunappa (supra) held as under: (SCC p. 431, para 7).

“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 practice in contained in Section 83(1) of the Act. Non-compliance 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 non-compliance with the 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 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.”

e. In G. Mallikarjunappa (supra), a three-Judge Bench thus has held that an election petition was not liable to be dismissed in limine under Section 86 of the 1951 Act for non-compliance with the provisions of Section 83(1) or (2) of the 1951 Act or of its proviso; the defect in the verification and the affidavit is a curable defect. G. Mallikarjunappa (supra) has not been referred and considered by this Court in P.A. Mohammed Riyas (supra).

6. Having regard to the above, in appropriate if these special leave petitions are heard by a Bench of at least three Hon’ble Judges. Let the special leave petitions be placed by the Registry before the Hon’ble the Chief Justice of India for listing of the special leave petitions before an appropriate Bench. Ordered accordingly.