Decided on April 15,1963



Krishna Rao, J. - (1.) This is a petition under Article 226 of the Constitution for a writ of certiorari quoshing the order made on 7th November, 1962 in Election Petition No.195 of 1962, by the Election Tribunal, Hyderabad (first respondent) on the ground of errors apprarent on the face of the record. The petitioner is the Minister for Finance of the State of Andhra Pradesh.
(2.) At the last General Elections, he was declared elected on 26th February, 1962 as a member of the Andhra Pradesh Legislative Assembly from the Phirangipuram Constituency in Guntur district. He got 27,494 votes as agaiust 26,991 votes obtained by Sri Chandramouli (2nd respondent), who was the only other contesting candidate. On 11th April, 1962, a voter of the constituency named Subba Rao (3rd respondent), presented through his authorised agent, an Election Petition to the Election Commission praying that the election of the petitioner be declared void and that the 2nd respondent might be declared to have been duly elected. He alleged that bribery and certain other corrupt practices were committed by the petitioner and his Election Agent, that there was impersonation of dead voters at the instance of the petitioner and his Election Agent and that various voters voted twice contrary to law. A copy of the petition was published in the Official Gazette of the State on 17th May, 1962 and the petition was referred to the first respondent for trial. On 15th September, 1962, the petitioner filed his counter to the Election Petition traversing the allegations on which his election was challenged. In paragraph 3 of the counter, he contended that the Election Petition was liable to be dismissed in limine, because the third respondent's affidavit in support of the allegations of the corrupt practices did not comply with the proviso to section 83 (1) of the Representation of the People Act, 1951 (hereinafter called the Act). The second respondent also filed his counter on 15th September, 1962 in which he supported the charges made in the Election Petition and made additional allegations questioning the election. On 24th September, 1962, the petitioner filed objections to the maintainability of the Election Petition and of the second respondent's counter and prayed that these may be decided as preliminary issues. The second and the third respondents contended that the petitioner was not entitled to raise the objections.
(3.) The following preliminary issues were framed by the Election Tribunal. 1. Is the Election Petition liable to be dismissed in limine for the reason that it is not accompanied by an affidavit in the prescribed form as required by the Proviso to section 83 of the Act ? 2. (a) Is the first respondent entitled to raise the plea mentioned in paragraph 2 that by reason of the requirement of section 81 (3) not having been complied with, the petition is liable to be dismissed ? (b) Is the Election Petition liable to be dismissed for the reason that the copies of the Election Petition are not attested as true copies as required by section 81 (3) ? 3. (a) Is it not open to the first respondent to raise the plea that the allegations of corrupt practices are liable to be struck off, because this specific legal objection has not been raised in the original counter? (b) Are the allegations of corrupt practice in the petition to be struck down because no affidavit has been filed in support of the petition ? 4. Is it open to the 2nd respondent to call in question the election of the first respondent on averments and allegations not adverted to in the main Election Petition? It may be mentioned that the reference to the first and second respondents in these issues is to the petitioner and to the 2nd respondent herein respectively. By its order made on 7th November, 1962, the Election Tribunal found issues 2 (a) and 3 (a) in favour of the petitioner ; but found all the other issues against him. With regard to issues 1 and 3 (b), it held that the word "shall" 0ccurring in the Proviso to section 83 (1) is directory and not mandatory, that the requirement of an affidavit along with the petition is only to prevent election-petitioners from making irresponsible and indiscriminatory allegations, that even if the requisite affidavit has not been filed along with the petition, the Court can always call upon the petitioner to file such an affidavit later on. With regard to issue 2 (b), the Tribunal was of the view that sub-section (3) of section 81 was introduced to relieve the Election Commission of getting the copies made and that the use of the word 'shall' in the sub-section did not import a mandatory character to the requirements.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.