'Sec. 83 of Representation of Peoples Act mandatory'

By T. Padmanabha Rao

NEW DELHI, OCT. 7. Failure on the part of an election-petitioner to file a `proper affidavit', in the prescribed form, in support of allegation of any `corrupt practice' and particulars thereof, the allegation pertaining thereto, cannot be put to trial, the defect being of a fatal nature, the Supreme Court has said.

``Section 83 of the Representation of Peoples Act (election law) - dealing with ``contents in an election petition - is `mandatory' and requires not only a concise statement of material facts and full particulars of the alleged corrupt practice, so as to present a full and complete picture of the action to be detailed in the election petition but under the `proviso' to Section 83(1) of the Act, the `election petition' levelling a charge of corrupt practice is required, by law, to be supported by an affidavit in which the election petitioner is obliged to disclose his source of information in respect of the commission of that corrupt practice,'' the Bench said.

The Bench comprising the chief justice, Dr. A. S. Anand and Mr.Justice N.Santosh Hedge dismissed on appeal from Mr. Ravinar Singh (appellant election petitioner) against an order of the Punjab and Haryana High Court (HC) dismissing his `election petition' at the threshold.

The appellants's election petition (EP) in the HC was directed against the election of first respondent, Mr.Janmeja Singh to the Punjab legislative Assembly from Ferozepur Cantt constituency in the election held in 1997.

The EP alleged commission of two main `corrupt practices' by the returned candidate in connection with this election, one, `bribery' falling under section 123(1) (A) (B) and the other, publication of false statement of fact on personal character or conduct of any candidate, falling (under section 123 (4) of the election law.

The reason for ``this insistence'' (an making concise statement of material facts and particulars of alleged `corrupt practice' supported (by an affidavit) ``is obvious'', the Bench said and added that ``it is necessary for an election petitioner to make such a charge with full responsibility and to prevent any fishing and roving enquiry and save the returned candidate from being taken by surprise''.

``The election-petition ``is singularly silent'' of any such averment that the returned candidate (first respondent) even if, it be assumed for the sake of the arguments, had published and distributed certain documents, as alleged in the election petition either himself or through any other persons with his consent, that those statements were false and that the returned candidate either believed them to be false or did not believe them to be true'', the Bench said.

Rejecting a plea of the appellant that at the `trial' (of the election petition) he could have said so in his evidence, the Bench noted that ``it is an established practice that no evidence can be led on a plea not raised in the pleadings and that no amount of evidence can cure defect in the pleadings''

In the face of the pleadings, no charge could have been framed insofar as `corrupt practice' under Section 123(4) of the Act is concerned in this case, the Bench said.

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