Untwalia, J.:— The petitioner has obtained a rule from this Court against the respondents to show cause why the order dated the 10th September, 1962, passed by the 4th respondent, the Member, Election Tribunal, Patna, in Election Petition No. 149 of 1982, filed by respondent No. 1 for setting aside the election of the petitioner as a member of the Bihar Legislative Assembly, be not quashed in exercise of the powers of this Court under Article 226 or 227 of the Constitution of India, and why the said Tribunal be not prohibited from recording and admitting any evidence in relation to the said election petition bearing on the question of any corrupt practice alleged to have been committed by the petitioner or his election 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?”
3. 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.
4. This part of the decision of the Tribunal has been attacked by Mr. Balbhadra Prasad Singh, learned counsel for the petitioner, by advancing a forceful argument. He submitted that the entire requirement of the proviso aforesaid is mandatory and must be strictly complied with; the affidavit being not in the prescribed form is no affidavit in the eye of law and the allegation about commission of corrupt practices in the election petition must be struck out as being unnecessary under Order VI, Rule 16 of the Code of Civil Procedure, 1908. In any event, learned counsel submitted, the affidavit which has been filed by respondent No. 1 is defective and not in accordance with law; it must, therefore, be ignored or rejected. A number of text books dealing with the rules of interpretation of statutes and other authorities have been cited on behalf of the petitioner. I shall, in course of my judgment, refer to or deal with many of them. It will not be necessary to refer to all.
5. (2A) Section 83 of the Act reads thus:
“(1) An election petition—
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 2908 (5 of 1908), for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.”
6. The proviso to sub-section (1) is new and was introduced by Act 40 of 1981 which came into force on 20-9-61. The Conduct of Election Rules, 1961, were framed and published on the 15th of April, 1961. After the introduction of the proviso by Act 40 of 1961, a new rule No. 94-A was introduced in the Conduct of Election Rules by a notification dated February 27, 1962, and the form of affidavit was prescribed by this rule, being Form No. 25. The material portions of the form prescribed are as follows:
“1 ………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.
*******
*Here specify the name of the corrupt practice.”
7. The affidavit in question filed by respondent No. 1 states:
“1, 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 explained to me in Hindi which I have understood.
(3) That the contents of paragraphs 12 and 13 read with annexure 1 ‘A’ are partly true to my knowledge and are partly based on information receive from agents and voters which are believed to be true……
(4) That the contents of paragraphs 14, 15 read with annexures ‘B’ and ‘C’ are based on information received from the agents and workers which are believed to be true”.
8. The point for determination in this case is as to whether the requirement under the proviso to sub-section (1) of Section 83 of the Act, of the filing of the affidavit in the prescribed form is mandatory or directory. The guiding principles for determination of the point in dispute are well established and well known and the question has got to be answered with reference to them. “When a statute requires that something snail be done, or done in a particular manner of form, without expressly declaring what shall be the consequence of non-compliance, the question often arises. What intention is to be attributed by inference to the legislature?” (vide Maxwell on Interpretation of Statutes, 11th Edition, page 362). At page 364 a passage runs:
“It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequences in its disregard, or as imperative, with an implied notification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by consideration of convenience and justice, and when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not (sic.) be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory “enactment be obeyed or fulfilled substantially.”
9. At page 367 of the book is a passage on which strong reliance was placed on behalf of the 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 recognizance or transmitting documents within a certain time, a strict compliance would be inoperative and non-compliance would be fatal to the appeal.”
10. 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……
11. 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 than directory, if they relate to the performance of a public duty, and the case is such that to hold null and void acts done in neglect of them would work serious general inconvenience, or injustice, to persons who have no control over those entrusted with the duty, without at the same time promoting the main object of the legislature.”
12. Lord Campbell's observations in Liverpool Borough Bank v. Turner, (1860) 29 LJ Ch 827, affirmed in (1860) 30 LJ Ch 379, to the effect:
“No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.”,
13. Has been quoted with approval in Howard v. Bodmgton, (1877) 2 PD 203. Before quoting the said passage, Lord Penzance has said at page 210—
“In the case of statutes that are said to be imperative, the Courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the Courts hold a provision to be mandatory “or directory” they say that, although such provision may not have been complied with, the subsequent proceedings do not fail.”
14. It has been pointed out in note (b) at page 434 of Volume 36 of Halsbury's Laws of England, 3rd Edition, that Lord Penzance has used the term ‘mandatory’ as synonymous with ‘directory’ in contradistinction of the term ‘imperative’. In Crawford's Statutory Construction, it has been said at page 515 in S. 261—
“…….if the provision involved relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or directs certain actions with a view to the proper, orderly, and prompt conduct of public business, the provision may be regarded as directory, but where it directs acts proceedings to be done in a certain way and indicates that a compliance with such provisions is essential to the validity of the act or proceedings, or requires some antecedent and prerequisite conditions to exist to the exercise of the power, or be performed before certain other powers can be exercised, the statute may be regarded as mandatory.”
15. In the same book at page 516, the following passage from the decision of People v. De Renna, 2 N.Y.S (2) 694 : 166 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 clothed. 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 ……….”
16. 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 interpretation of the particular language used — various methods of attacking the problem are employed. One oft-repeated formula is that statutory requirements that are of the essence of the thing required by statute are mandatory, while those things which are not of essence are directory.”
17. In regard to statutes relating to procedure, the learned author has said in Section 5826 at pages 122-23.
“The cases in which statutes regulating Court procedure are construed show a considerable lack of uniformity on the question of mandatory and directory construction, so that little can be done by way of rationalizing them. However, a few generalizations can be made. Where a statute specifies acts to be done by parties litigant to entitle them to maintain action or to perfect an appeal, it is generally mandatory. Where rights or privileges are denied an individual because of his own failure to comply strictly with statutory directions, he has no cause for complaint. And statutory regulations intended to protect the rights of litigation or of persons accused of crime are mandatory. On the theory that procedural statutes should be liberally construed to avoid setting up technical obstacles to the prosecution of a law suit, provisions intended for the benefit of the litigant, or involving only inconsequential matters, where no private rights are involved, should be directory.”
18. Reading the proviso to sub-section (1) of Section 83 of the Act in the light of the principles of interpretation of statutes stated above, it seems that the substance and the matter of the essence embodied in the proviso is that, when allegations of corrupt practices are made in the election petition, it must be accompanied by an affidavit, but the requirement of its being in the prescribed form is not of the essence and is directory. Before the amending Act 27 of 1956, for non-compliance with the provisions of Section 83, the penalty provided in the Act was dismissal of the application by the Election Commissioner under Section 85 or by the Election Tribunal under Section 90(3) of the Act. But no such consequence is provided in the Act as it stands now after the amendment of 1956. It is, therefore, clear that even for the non filing of the affidavit along with the election petition as required by the proviso in question, the whole of the petition cannot be dismissed in liming. It may well 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 to 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 be struck out merely because the affidavit is not in the prescribed form or is a defective one.
19. 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”.
20. That being so, the intention is carried out and the object is substantially achieved if an affidavit is filed in support of the allegations of the commission of corrupt practices and the particulars thereof.
21. It was submitted on behalf of the petitioner that “a statute granting a new right is mandatory; and a right which exists only by virtue of statutory grant comes into being only after strict compliance with the statute and all of its conditions” (vide Section 5812 at page 94 of Sutherland Statutory Construction, volume III), and that an election contest is not an action at law or a suit in (sic) enquiry but is a purely statutory proceeding unknown to the common law which creates new rights and the statutory requirements must be strictly complied with for getting relief by this new remedy. I am not impressed by this argument. It has been said by Mahajan, C.J, at page 212 in Jagan Nath v. Jaswant Singh & Others, AIR 1954 SC 210:
“………if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it”,
22. The principle that an election petition seeking interference with the success of a candidate must strictly conform to the requirements of law, has no application. In that case, according to the provision of law, as it then stood in the Act, it was held that non-compliance with the provisions of Section 82 of the Act relating to the joining of parties in an election petition is not necessarily fatal and can be cured. In Bhikaji Keshao Joshi v. Brijlal Nandlal Biyanl, (S) AIR 1955 SC 610, the verifications of the election petition were defective only as regards the requirements of dates thereof and the question was as to whether the petition was liable to dismissal on that ground. Delivering the judgment of the Court, Jagannadhadas, J., said at page 615 (column 1)—
“Though there may be cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of absence of date of verification. In such a case the applicants should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission.”
23. It has to be noted that it was so held by the Supreme Court even at the time when 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.”
24. 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 out of such of the charges which remained vague and called upon the petitioners to substantiate the allegations in respect of those which were reasonably specific.”
25. Considering the provisions of Section 117 of the Act, as it stood before the amendment of Act 58 of 1958, the Supreme Court has held in K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687 at page 697 (column 1):
“It would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would-not be sufficient compliance with the provisions of S. 117 and would involve a dismissal of the petition under S. 35 or S. 90(3). The above illustration is sufficient to demonstrate that the words ‘in favour of the Secretary to the-Election Commission’ used in S. 117 are directory and not mandatory in their character. What is of the essence of the provision contained in S. 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it lit the manner authorised by law and is under its control and payable on proper application being made in that behalf to the Election Commission or to any person duly authorized by it to receive the same, be in the Secretary to the Election Commission or any one else.”
26. Mr. Balbhadra Prasad Singh placed reliance upon the decision of the House of Lords in the case of Thomas v. Kelly, (1888) 13 AC 506, where it was held confirming the decision of the Court of appeal that the bill of sale being not in accordance with the form in the schedule to the Bills of Sale Act (1878) as required by Section 9 of the Act as amended by amendment Act of 1882, was altogether void. It is sufficient to point out that Section 9 of that Act provided—
“A bill of sale made or given by way of security for the payment of money by the granter thereof shall be void, unless made in accordance with the form in the schedule to this Act annexed.”
27. In the Representation of the People Act, 1951, however, there is no such provision. Mr. Singh also cited the decision of Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832, with reference to the provisions of Order XLI, Rule 1 of the Code of Civil Procedure where it has been 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 liming 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.
28. The facts of the present case are similar to those of the Rajasthan case, AIR 1963 Raj 157. The Section Tribunal in that case had, instead of dismissing the election petition, permitted respondent No. 2 to file 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.
29. Two defects have been pointed out in the affidavit Tiled by respondent No. 1 with his election petition: (i) that the third paragraph of the affidavit does not specify as to which portions of paragraphs 12 and 13 read with annexure 1(a) were true to the knowledge of the deponent and which part was based upon information received from agent and voters which the deponent believed to be true; and (ii) that the 10th paragraph of the election petition contains allegations as to commission of certain corrupt practices and there is no affidavit in support of such allegations.
30. At the outset I may point that even the form prescribed by Rule 94-A of the Conduct of Election Rules, 1931, is defective in that in clause (b) it is required to be stated that the statements made in certain paragraph? of the election petition are true to the information of the deponent. It has been repeatedly pointed cut that under Order 19, Rule 3 of the Code of Civil Procedure affidavit should be confined to such facts as the deponent is able of his own knowledge to prove, or to facts which the deponent has been informed, which facts he believes to be true. In Padmabati Dasi v. Rasik Lal Dhar, ILR 37 Cal 259, Jenkins, C.J, and Woodroffe, J., have said:
“We desire to impress on those who propose to rely on affidavits that, in future the provisions of O. XIX, R. 3, must be strictly observed and every affidavit should clearly express how much is a statement of the deponent's knowledge and how much is a statement of his belief, and that grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be safe to act on the deponent's belief.”
31. In the case of State Of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317, the copy of the affidavit sworn by the Secretary disclosed that certain matters were known to him personally but the verification stated that everything was true to the best of his information and belief. Bose, J., delivering the judgment of the Supreme Court said:
“We point this out as slipshod verification of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modelled an the lines of O. 19, R. 3, of the CPC, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed.” The observations in the Padmabati Dasi's case, ILR 37 Cal 259 were endorsed in the above decision.
32. 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.
33. 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 information. The verification of the election petition has been allowed to be amended under O. VI R. 17 of the Code of Civil Procedure in accordance with the decision of the Supreme Court in (S) AIR 1955 SC 610 and so also in view of the decision of the Supreme Court in Harish Chandra Bajpai v. Triloki Singh, (S) AIR 1957 SC 444. But a question arises as to whether a defective affidavit can be rectified by a petition of amendment under O. VI R. 17 of the Code. In my opinion, the affidavit filed in compliance with the proviso to sub-sec. (1) of Sec. 83 is not a part of the pleading, i.e, the election petition. It is a statement on oath by way of some evidence for the object stated above and it cannot be allowed to be amended by a petition of amendment filed in accordance with R. 17 of O. VI of the Code. But the defect can be removed by filing another affidavit either in the prescribed form or substantially in the form in which it has been filed after removing such defects, as may be there, one of which I have referred to above. In regard to the alleged defect, of there being no affidavit in support of the allegations of corrupt practices in paragraph 10 of the election petition, the contention of Mr. K.P Verma, learned counsel for respondent No. 1 is that those allegations are mainly and chiefly not with reference to the commission of any corrupt practices but have been made with reference to the commission of certain illegalities in the conduct of the election on the part of the officers concerned. It is not necessary for me to decide this matter. Respondent No. 1 while filing a fresh affidavit, may adopt such course in regard to the allegations in paragraph 10 of the election petition as he may be advised to do. In the result, while upholding the decision of the Election Tribunal that the requirement of the proviso to sub-sec. (1) of Sec. 83 of the Act for the filing of the affidavit in the prescribed form is directory and not mandatory, 1 do not feel persuaded to uphold the hole of the order when it says that the defect or the irregularity in the affidavit filed by respondent No. 1 “should not however affect the jurisdiction of the Tribunal to try the case of corrupt practice raised by the petitioner”, as it seems, in its view, the defect does not require any rectification. In exercise of the powers of this Court under Article 227 of the Constitution of India, I modify the order of the Election Tribunal and direct it to require respondent No. 1 to file within the time to be fixed by it another proper affidavit either in the prescribed form or in the form in which it has already been filed after removing the defects therefrom. The application is accordingly allowed to the extent indicated above but in the circumstances I would make no order as to cost.
Ramaswami, C.J:— I agree.
IG/R.G.D
34. Application allowed in part.