SC bench`s split verdict on election petition maintainability

Split verdict by SC on whether a defeated candidate can file modified petition after failing to furnish material facts related to alleged corruption.

New Delhi: The Supreme Court has given a split verdict on whether a defeated candidate can file a modified petition after failing to furnish material facts pertaining to alleged corrupt practices of the winning candidate.

While Justice Altamas Kabir heading the bench ruled that the defeated candidate has a right to amend the petition, Justice J Chelameshwar held that a defective petition cannot be cured subsequently as it is prohibited under Representation of Peoples Act.

The split verdict came on a special leave petition filed by BJP MLA Ishwardas Rohani challenging the petition filed by Alok Mishra of the Congress who lost the 2008 elections to the Jabalpur Assembly constituency in Madhya Pradesh.

Rohani had challenged the high court`s decision to admit the election petition filed by Mishra on the ground that material facts relating to the alleged corrupt practices indulged in by the former were not pleaded.

It was Rohani`s contention that the allegations against him were not supported by any material fact like establishing that they were done either with his or agent`s consent which is mandatory under the RPA Act.

The allegations related to distribution of cheques, gifts, and exerting influence on the district collector.

The high court while acknowledging that the petition by Mishra were not supported by material facts allowed him to modify his pleading which was basis of challenge in Rohani`s petition before the apex court.

"There is little doubt that the provisions have to be strictly construed, but that does not mean that any defect in the election petition cannot be allowed to be cured in the public interest," Justice Kabir said.

"If after an opportunity is given, still no steps are taken by the election petitioner to cure the defects which are noticed, then the rigours of the procedure indicated by the 1951 Act, come into effect with full vigour.

"In this case, while accepting the case made out by the appellant regarding the deficiencies in the election petition, the division bench of the high court, in my view, did not commit any error in directing the election petitioner to cure the defects in the election petition, which had been brought out during the hearing of the election petition."

However, Justice Chelameshwar said that it would be an absolute travesty of justice and opposed to all the settled principles of law regarding the election disputes if such amendment was allowed in the petition.

"An election petition is required to contain all the material facts, which, either if proved or went uncontraverted, would be sufficient to constitute the cause of action for setting aside the election of the returned candidate on one or some of the grounds specified under Section 100 of the R P Act.”
"In my opinion, the election petition on hand hopelessly lacks in stated material facts constituting the various corrupt practices mentioned in the election petition to enable the declarations sought by the election petitioner."
According to Justice Chelameshar, consent by the candidate or his election agent is an essential material fact, which is required to be pleaded and proved when the allegation is that somebody other than the candidate or his election agent committed a corrupt practice.


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