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TMI Blog1963 (8) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... n agents. Cause has been shown on behalf of respondent No. 1. 2. Two issues were argued and pressed before the Election Tribunal on behalf of the petitioner for decision as preliminary points before proceeding with the hearing of the election petition. The said issues are "No. 1 : Are the petition and the annexures thereto properly verified? No. 2 : Has the petitioner filed with his petition an affidavit in the prescribed form as laid down in the proviso to Section 83(1) of the Representation of the People Act, 1951, in support of his allegations of corrupt practices? If not, are the said allegations liable to be struck out from the petition?" In support of the first issue, the defect in the verification has been allowed to be rectified by a petition for amendment and no further grievance was made in this regard. The decision of the Tribunal on the second issue is in favour of respondent No. 1 and it has been held by the learned Member of the Tribunal that the affidavit substantially complies with the requirements of the proviso to Section 83(1) of the Representation of the People Act, 1951 (Act 43 of 1951), hereinafter referred to as the Act. This part of the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portions of the form prescribed are as follows : ".....the petitioner in the accompanying election petition calling in question the election of Shri/ Shrimati .....(respondent No. ... in the said petition) make solemn affirmation/oath and say -- (a) that the statements made in paragraphs ..... of the accompanying election petition about the commission of the corrupt practice of ....... and the particulars of such corrupt practice mentioned in paragraphs ..... of the schedule annexed thereto are true to my knowledge; (b) that the statements made in paragraphs ...... of the said petition about the commission of the corrupt practice of ..... and the particulars of such corrupt practice given in paragraph ..... of the said petition and in paragraphs ..... of the schedules annexed thereto are true to my information. The affidavit in question filed by respondent No. 1 states: "I, Manjay Lal, son of etc. hereby solemnly affirm and declare as follows: (1) That I am the petitioner of the election petition ' being filed against the election of Sakra Constituency of Bihar Legislative Assembly. (2) That the contents of the election petition have been read over and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner. It reads: "Enactments regulating the procedure in Courts seem usually to be imperative and not merely directory. If, for instance, a right of appeal from a decision be given with provision requiring the fulfilment of certain conditions, such as giving notice of appeal and entering into recognisance or transmitting documents within a certain time, a strict compliance would be inoperative and non-compliance would be fatal to the appeal." In Article 656 of the Halsbury's Laws of England, 3rd Edition, Volume 36 at page 435, it is stated : "No universal rule can be laid down for determining whether provisions are mandatory or directory; in each case the intention of the legislature must be ascertained by looking at the whole scope of the statute and in particular, at the importance of the provision in question in relation to the general object to be secured ..... Although no universal rule can be laid down, provisions relating to the steps to be taken by the parties to legal proceedings in the widest sense have been construed with some regularity as mandatory; and it has been observed that the practice has been to construe provisions as no more t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded as mandatory." In the same book at page 516, the following passage from the decision of People v. De Renna, 2 N.Y.S. (2) 694, 168 Misc. 582 has been quoted, which has also been quoted with approval by the Supreme Court of India in State of U.P. v. Manbodhan Lal Srivastava, (S) AIR 1957 SC 912: "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intention is cloth-ed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other ....." I would also like to quote a few passages from Sutherland, Statutory Construction, 3rd Edition, Volume 3, Section 5813 at page 95 says -- "With respect to the question of mandatory and directory operation, as with any question of statutory construction, the primary consideration is that of determining the intention of the legislature. "Each case stands pretty much on its own facts, to be determined on an interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be that in that event the allegations of corrupt practices in the petition have got to be struck out as being unnecessary under Order 6, Rule 16 of the Code of Civil Procedure or some other consequences may follow even though not specifically provided for in the Act. I am not called upon to decide and express any opinion in this case in regard in such a situation. But I have no doubt in my mind that, if the election petition is accompanied by an affidavit, the allegations of corrupt practices made in the election petition cannot bo struck out merely because the affidavit is not in the prescribed form or is a defective one. As pointed out by a Bench of the Rajasthan High Court in Satish Kumar v. Election Tribunal, AIR 1963 Raj 157, the intention of the Legislature in introducing the proviso by Act 40 of 1961 is "to prevent the petitioner filing an election petition from making wild allegations about corrupt practices and to impose on him a reasonable restraint, so that if false statements were made he could be prosecuted for perjury". That being so, the intention is carried out and the object is substantially achieved if an affidavit is filed in support of the allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-compliance with the provisions of Section 83 entailed dismissal of the application under Sections 85 and 90 (3) of the Act. Section 83(2) of the Act, as it then stood, provided: "The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice." Another objection in Bhikaji Keshao's case, (S) AIR 1955 SC 610 was that the particulars of the instances furnished in schedule A to the petition were all vague and not in compliance with the above provision. Even so, it was said -- ".....in a case of this kind the Tribunal when dealing with the matter in the early stages should not have dismissed the application. It should have exercised its powers and called for better particulars. On non-compliance therewith, it should have ordered a striking cut of such of the charges which remained vague and called upon the petitioners to substantiate the allegations in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the requirement that certified copy of the decree should be filed along with the memorandum of appeal is mandatory and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent. The principle decided in that case, however, has no application to the facts of the instant case, firstly, because, as I have said above, under the present law the filing of the election petition is not "incomplete, defective, or incompetent" and does not make it liable to dismissal in limine for non-compliance with the provisions of Section 83 of the Act, and, secondly, this is not a case where the election petition was not accompanied by an affidavit. The affidavit was there but it was not in the prescribed form or was defective. 7. The facts of the present case are similar to those of the Rajasthan case, AIR 1963 Raj 157. The Election Tribunal in that case had, instead of dismissing the election petition, permitted respondent No. 2 to tile a new affidavit in the prescribed form according to law and this was held to be quite legal and proper by the Bench of the Rajasthan High Court. 8. Two defects have been pointed out in the affidavit file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; The observations in the Padmabali Oasi's cas ILR 37 Cal 259 were endorsed in the above decision. 10. In the light of the observations referred to above, it would be noticed that in the prescribed form of the affidavit in clause (b) as to statements in certain paragraphs of the election petition to say for the deponent merely that they are true to his information is not correct. Be that as it may, it is also clear that paragraph 3 of the affidavit filed by respondent No. 1 is not quite in accordance with law. The deponent had to specify as to which portions of paragraphs 12, and 13 were true to his knowledge and which portions were based upon information received from agents and voters which he believed to be true. If possible, the names of the agents and the voters should also be stated in the affidavit. I may, however, point out that it would appear from the order of the Election Tribunal (vide discussion under issue No. 1) that a similar defect was there in the verification of the petition also but that was sought to be rectified by filing a petition for amendment whereby it was stated that the statements contained in paragraphs 12 and 13 were wholly based upon informa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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