- (1.)THIS is an application under Article 133 (1) (c) of the Constitution for a certificate for appeal to the Supreme Court from our decision, dated 15th April 1964, in miscellaneous Petition No. 90 of 1964. By that decision we allowed an application filed by the opponent No. 1 under Articles 226 and 227 of the Constitution and issued a writ of certiorari quashing an order of the Election Tribunal, Raipur, permitting the petitioner to file a fresh affidavit for purposes of Section 83 of the representation of the People Act, 1951, (hereinafter referred to as the Act) and directed the Tribunal to determine, in the light of cur decision sought to be appealed against, the effect of the petitioner's failure to file an affidavit along with the election petition as required by the proviso to Section 83 (1) of the Act on the allegations of corrupt practices made by him in his election petition.
(2.)THE material facts, briefly stated, are that the petitioner filed an election petition questioning the validity of the election of the opponent No. 1 to the madhya Pradesh Legislative Assembly at a bye-election held in May 1963 from kasdol constituency mainly on the ground that the opponent was guilty of having committed corrupt practices enumerated in the petition. Along with the election petition the applicant filed an affidavit in support of the allegations of corrupt practices which had not been sworn before any authority specified in Rule 94-A of the Conduct of Elections Rules, 1961, (hereinafter called the Rules) but which was sworn before the Clerk of Court of the District Judge's Court, Jabalpur. The opponent No. 1 raised before the Tribunal the objection that the proviso to Section 83 (1) of the Act laying down that where an election petition alleges any corrupt practices, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practices and the particulars thereof was mandatory that as the affidavit filed by the petitioner was not in the form prescribed by Rule 94-A of the Rules, the election petition was liable to be dismissed under Section 90 (3) of the Act for non-compliance with Rule 94-A; and that in any case the allegations of corrupt practices in the petition were liable to be struck out, and could not be investigated. Before the Tribunal, the petitioner did not dispute that the affidavit, which he had filed along with the election petition, had not been sworn before any authority specified in Rule 94-A. The Election tribunal also held that the affidavit sworn before the Clerk of Court of the Court of district Judge, Jabalpur, was defective in that it had not been sworn before any authority specified in Rule 94-A, but further held that on that defect alone the election petition could not be dismissed. The Tribunal, without deciding the question of the effect of non-compliance, of Rule 94-A on the allegations of corrupt practices made in the election petition by the applicant, permitted him to file a new affidavit sworn before any authority prescribed by Rule 94-A in substitution of the affidavit filed along with the election petition.
(3.)AT the time of the hearing of the petition under Articles 226 and 227 of the constitution, the controversy centred round the question of the effect of the petitioner's failure to file along with the election petition an affidavit as required by the proviso to Section 83 (1) of the Act on the allegations of corrupt practices made in the election petition. The petitioner did not dispute before us that the affidavit, which he had filed along with the election petition, had not been sworn before any authority prescribed by Rule 94-A. The opponent No. 1 also did not question the correctness of the order of the Tribunal that the election petition could not be dismissed for non-compliance with the, proviso to Section 83 (1 ). It was, however, contended on his behalf that the proviso was mandatory and made it obligatory on the petitioner to file an affidavit in the pre-scribed form while presenting the election petition before the Election Commission; that his failure to do so rendered the petition ineffectual so far as the allegations of corrupt practices made therein were concerned; that those allegations not having been supported by an affidavit in the prescribed form were non est; that, therefore, there were no allegations of corrupt practices which the Tribunal could enquire into; and that the tribunal had no power of curing this non-compliance with the proviso by permitting the petitioner to file a proper affidavit subsequently and of proceeding to try and investigate into the allegations of corrupt practices.