Tripunithura Assembly Election 2021: Supreme Court dismisses plea of Congress MLA K Babu challenging maintainability of election petition filed against him
Justices Aniruddha Bose & Sanjay Kumar [12-02-2024]

Read Order:  K. Babu v. M. Swaraj and others [SC- CIVIL APPEAL NO. 5975 OF 2023]

LE Correspondent

New Delhi, February 14, 2024: While reiterating that the defects in an election petition which constitute non-compliance with Section 83 of the Representation of the People Act, 1951 are curable defects, the Supreme Court has rejected the appeal of Congress MLA K Babu challenging the election petition moved by CPI(M) leader M Swaraj.

The issue before the Division Bench of Justice Aniruddha Bose and Justice Sanjay Kumar was whether the election petition filed against the appellant by the first respondent was liable to be rejected at the threshold. The appellant had approached the Top Court as the High Court of Kerala answered this question in the negative.

The appellant and the six respondents contested in the election to the 15th Kerala Legislative Assembly, held on 06.04.2021, from 081-Tripunithura Legislative Assembly Constituency. The appellant was declared elected on 02.05.2021, having polled 992 votes more than the next candidate, viz., the first respondent. Thereupon, Election Petition was filed by the first respondent before the High Court of Kerala under Sections 80, 81, 83, 84, 100, 101 and 123 of the Representation of the People Act, 1951 seeking a declaration that the election of the appellant was void and, in consequence, to declare him duly elected.

The appellant filed preliminary objections in the election petition. Therein, he contended that the petition was liable to be dismissed under Section 86 of the Act of 1951 for non-compliance with Section 81 thereof. He claimed that a complete election petition, after the curing of defects, was placed before the Court beyond the period of limitation and, further, sufficient number of copies, as required under Rule 212 of the Rules of the High Court of Kerala, 1971were not filed. He also claimed that the copy of the election petition furnished to him was not a true copy of the petition filed.

The second ground urged by the appellant in his objections was in relation to Section 83 of the Act of 1951, which requires an election petition to contain a concise statement of material facts and full particulars of any corrupt practice, including the names of the parties alleged to have committed such corrupt practice along with the date and place of commission of each such practice. The appellant asserted that the pleadings in the election petition lacked material facts and particulars of the corrupt practices attributed to him and, therefore, the election petition did not disclose a cause of action. He prayed that the election petition be dismissed at the threshold under Order VII Rule 11 CPC.

The High Court held that the lapses did not amount to non-compliance with Section 81(3) of the Act of 1951 and the election petition was not liable to be rejected by invoking the provisions of Section 86(1) thereof. Aggrieved by the aforestated order, the appellant filed the present case before the Supreme Court.

It was the appellant’s case that the election petition was not in compliance with Section 83 of the Act of 1951, as sufficient number of copies of the petition were not filed at the time of its presentation. According to him, facts relating to printing and publishing of the slips with the religious symbol were not furnished to the extent required and the election petition also did not disclose the source of information regarding distribution of such slips by and on behalf of the appellant.

“…it is well settled that non-compliance with the requirements of Section 83 of the Act of 1951 is not fatal, as Section 86(1) thereof only speaks of non-compliance with Sections 81, 82 or 117 being the basis for dismissal of an election petition at the outset. Defects in an election petition that constitute non-compliance with Section 83 of the Act of 1951 have been held to be curable defects”, the Bench held while referring to the judgments in Phungzathang vs. Hangkhanlian and others [LQ/SC/2001/1881] ; Umesh Challiyill vs. K.P. Rajendran [LQ/SC/2008/500] ; Ponnala Lakshmaiah vs. Kommuri Pratap Reddy and others [LQ/SC/2012/545] ; G.M. Siddeshwar vs. Prasanna Kumar (2013) 4 SCC 776 [LQ/SC/2013/267] ; and A. Manju vs. Prajwal Revanna alias Prajwal R and others  [LQ/SC/2021/3204].

It was also held by the Bench that once the High Court opined that a triable issue under Section 123(3) of the Act of 1951 is made out, there were grounds to interfere therewith.

Placing reliance upon Rule 212, the Bench held that the three authenticated copies are for the use of the Court only. Further, copies of petitions are to be furnished under this Rule are clearly in addition to what is required to be filed under Section 81(3) of the Act of 1951.

It was also noticed that though the appellant also made a bald statement in his preliminary objections that the copy of the petition furnished to him was not a true copy of the election petition, he did not elaborate on what he meant by that. More importantly, a specific allegation was never made by him that the copy of the petition furnished to him was not attested by the first respondent under his own signature to be a true copy of the election petition.

“When the statutory provision unequivocally stipulates as to what is required to be done to comply with the mandate thereof, it is not permissible in law to read something more into that provision. Rule 212 of the Rules of 1971 introduces additional requirements prescribed by the High Court and the same cannot, by any stretch of imagination, be read into and be made part and parcel of Section 81(3) of the Act of 1951”, the Bench asserted.

Thus, dismissing the appeal, the Bench held that the objections raised by the appellant against the maintainability of the election petition filed by the first respondent had no merit and the order of the High Court holding to that effect warranted no interference.