Supreme Court: In an appeal concerning certain procedural and technical requisites, generally ancillary to the filing of election petitions mandated under Section 83 of the Representation of the People Act, 1951 (‘RP Act’), the Division Bench of Surya Kant* and Joymalya Bagchi, JJ. asked the Orissa High Court to identify and assess the defects, if any, in the Form 25 affidavit accompanying the petition challenging BJP MLA Tankadhar Tripathy’s (appellant) election, which alleged corrupt practices.
The Court emphasised that the requirement for filing an affidavit under the proviso to Section 83(1)(c) of the RP Act is not strictly mandatory, and instead, ‘substantial compliance’ with the provisions would be sufficient. The High Court was further tasked with determining whether any defects in the affidavit were curable and could be rectified in accordance with the principles of substantial compliance.
Background
The Governor of Odisha issued a notification on 26-04-2024 for holding General Elections to constitute a new State Assembly. Both Tankadhar Tripathy and Politician Dipali Das (respondent) filed their nominations from the 07-Jharsuguda Assembly Constituency. Polling took place on 20-05-2024, and counting followed on 04-06-2024. The appellant was declared elected by a margin of 1,333 votes.
The respondent, who secured the second-highest votes, filed election petition before the Orissa High Court, seeking to set aside the appellant’s election on two grounds: (i) failure to fully disclose assets, liabilities, and criminal antecedents, along with non-publication of criminal history in a widely circulated newspaper, amounting to corrupt practices under Section 123 of the RP Act; and (ii) discrepancies in the EVM Control Unit Identification Numbers, which allegedly rendered 6,313 votes void, exceeding the margin of victory.
The appellant objected to the petition’s maintainability under Order VII Rule 11 of the Civil Procedure Code, 1908, (‘CPC’), citing non-joinder of necessary parties, vague and vexatious pleadings, and non-compliance with the affidavit requirement under Section 83(1)(c) of the RP Act. Alternatively, the appellant sought to strike out portions of the pleadings under Order VI Rule 16 CPC.
The High Court, via its order dated 21-03-2025, dismissed the appellant’s objections. It held that substantial compliance with the affidavit requirement was met, and any deficiency could be cured. It further found that the petition disclosed specific allegations with material facts and thus raised triable issues.
Aggrieved, the appellant filed the present appeal.
Issue
Whether non-compliance with the proviso to Section 83(1)(c) of the RP Act is a fatal defect, rendering the Election Petition non-maintainable at the threshold?
Analysis and Decision
The Court noted that, in support of his claim, the appellant contended that the affidavit accompanying the Election Petition, particularly with respect to allegations of ‘corrupt practices’ was defective, as it had not been filed in the prescribed format of Form 25. The appellant argued that this defect struck at the root of the petition’s maintainability and, therefore, warranted its rejection at the threshold. In support of this argument, reliance was placed on Ravinder Singh v. Janmeja Singh, (2000) 8 SCC 191, wherein the Court observed, particularly in paragraph 11, that Section 83 of the RP Act was mandatory in nature, and that any Election Petition alleging corrupt practices must be accompanied by a duly sworn affidavit in the prescribed form. It was further held that the absence of such an affidavit amounted to a fatal defect justifying immediate dismissal.
In response, the respondent contended that no separate affidavit was necessary to accompany an Election Petition raising allegations of corrupt practices. It was further submitted that even in cases where an affidavit in Form 25 was entirely absent, such a procedural lapse was curable, and the Court should afford the petitioner an opportunity to rectify the defect prior to proceeding to trial.
The Court further noted that, after Ravinder Singh, the issue of non-compliance with the proviso to Section 83(1)(c) of the RP Act and its impact on maintainability was revisited by a three-Judge Bench in G. M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776. In that case, the Court held that while technical non-compliance with Section 83 was curable, there must nonetheless be substantial compliance with its requirements.
The Court noted that it had been clarified in earlier decisions that a total and complete non-compliance with Section 83 of the RP Act would render the pleading incapable of being treated as an Election Petition, making it liable to be rejected at the threshold. However, proceeding on this premise, the Court further held that while a defective affidavit might not, by itself, render an Election Petition non-maintainable, the High Court must ensure that such defects are cured before the commencement of trial. This safeguard is necessary to enable the returned candidate to meet the allegations effectively and avoid being taken by surprise at a later stage. The decision in G. M. Siddeshwar (supra) thus reflected a more liberal approach toward the substance of a Form 25 affidavit, in contrast to the stricter position adopted in Ravinder Singh (supra).
The Court highlighted that this evolved position of the law has since been affirmed by the Court in more recent judgments, such as A. Manju v. Prajwal Revanna, (2022) 3 SCC 269 and Thangjam Arunkumar v. Yumkham Erabot Singh, (2023) 17 SCC 500.. In these cases, the Court reiterated that the requirement to file an affidavit under the proviso to Section 83(1)(c) of the RP Act is not mandatory in nature, and that substantial compliance would suffice. Where an affidavit is already on record, though not in the exact prescribed format, the proper course would be to grant the Election Petitioner an opportunity to file a corrected affidavit in conformity with Form 25.
In the Court’s considered view, the legal position on this issue stood well-settled by the aforementioned decisions, and the matter was no longer res integra. However, one unresolved question remained: as per G. M. Siddeshwar (supra), whether defects in a Form 25 affidavit must be cured by filing a fresh affidavit within the prescribed limitation period, or whether such correction can be made at any stage during the proceedings, even beyond the limitation period.
The Court observed that, in this context, the first point of reference ought to have been the Rules to Regulate Proceedings under Section 80-A of the RP Act, as set out in Chapter XXXIII of the High Court Rules. Rules 7 and 21 of this Chapter prescribed the procedure for the scrutiny of an Election Petition and outlined the process to be followed during the conduct of the proceedings.
The Court noted that a perusal of the relevant Rules made it evident that, at the stage of presenting an Election Petition, it was the duty of the prescribed officer of the High Court to examine the petition along with its accompanying documents to ensure conformity with the requirements of law and the applicable rules. If, during this scrutiny, any defects or omissions were found in the petition or its annexures, the matter was required to be placed before the Judge-cum-Election Tribunal. Thereafter, judicial proceedings were to be conducted in accordance with the procedure laid down in Rule 21. This procedure also contemplated strict adherence to the format and contents of the affidavit as described in Chapter VI of the High Court Rules.
In the present case, the Court observed that the Impugned Order failed to clarify whether this process of preliminary scrutiny was duly followed by the prescribed officer at the time of filing the Election Petition. There was no reference to whether any defects were noticed at the stage of admission. Likewise, the Order did not indicate whether the Election Petitioner had been granted an opportunity to cure such defects at the initial stage by the Judge to whom the petition was assigned. Instead, the Impugned Order, passed during adjudication under Order VII Rule 11 CPC, merely granted the respondent three weeks’ time to “cure defects,” without identifying the nature of the defects or clarifying whether the opportunity to rectify them was granted before or after the expiry of the limitation period.
The Court noted that the legal position, as evolved through the recent decisions cited in paragraphs 15 to 17 above, placed an obligation on the Election Petitioner to file an affidavit that demonstrated substantial compliance with the prescribed format. Whether an affidavit appended to an Election Petition met this threshold or fell short was essentially a question of fact, to be determined by juxtaposing the allegations of ‘corrupt practices’ made in the petition against the contents of the supporting affidavit.
The Court clarified that substantial compliance generally meant near or actual adherence to the core requirements of the law, doing all that is reasonably expected to satisfy the substance of the statute. It could not, however, be interpreted as mere formal or superficial compliance.
In this light, although the High Court had concluded that the affidavit substantially complied with the proviso to Section 83(1)(c) of the RP Act, it failed to elaborate on the nature of the examination conducted to arrive at that conclusion. Consequently, the necessary fact-based analysis appeared to have been overlooked.
The Court observed that, in light of the apparent deficiencies in the impugned order, namely, (i) the failure to specify the extent of compliance with the High Court Rules; (ii) the omission to enumerate the defects necessitating rectification; and (iii) the absence of any analysis as to whether the principles of substantial compliance had been followed, it was appropriate to remit the matter to the High Court. The Court requested the High Court to address these specific questions and to re-determine whether the identified defects, if any, were curable and could be permitted to be rectified. The Court further noted that remand was also warranted since the High Court had rightly identified certain grounds, apart from allegations of ‘corrupt practices,’ on which the Election Petition merited further consideration on its merits.
Thus, the Court gave the following directions:
a. The High Court was requested to identify and enumerate the defects, if any, in the Form 25 affidavit and to determine whether such defects were curable. For this purpose, the High Court was to treat the following as preliminary issues:
i. Whether the affidavit filed in the present case, alleging ‘corrupt practices,’ was defective and failed to meet the requirements of Form 25.
ii. If found defective, whether it nonetheless amounted to substantial compliance with Form 25, in light of the principles laid down in the decisions cited in paragraphs 15 to 17 above.
iii. If the defect was curable, whether it was mandatory to file a supplementary or corrected affidavit within the statutory period of limitation?
iv. Whether the High Court, acting as the Election Tribunal, possessed the jurisdiction to condone delay and permit the Election Petitioner to file the affidavit in the prescribed Form 25 beyond the limitation period.
b. Additionally, the proposals mutually agreed upon by the parties were accepted, and the High Court was requested to strike out those portions of the pleadings which the parties had consented to expunge from the record.
c. Following the striking out of such pleadings, the High Court was to grant the parties reasonable time to carry out the necessary consequential amendments to the Election Petition and the Written Statement(s). Thereafter, the High Court was to proceed to frame issues and adjudicate the matter on its merits.
The present appeal was accordingly disposed of in the above terms.
[Tankadhar Tripathy v. Dipali Das, 2025 SCC OnLine SC 1793, decided on 22-08-2025]
*Judgment Authored by: Justice Surya Kant
Advocates who appeared in this case:
For Petitioner(s): Mr. Maninder Singh, Sr. Adv. Mr. Gopal Agarwal, Sr. Adv. Ms. Mithu Jain, AOR Mr. Sanchit Garga, Adv. Mr. Kunal Rana, Adv. Mr. Shashwat Jaiswal, Adv. Ms. Bhanu Pratap Singh, Adv. Mr. Milind Rai, Adv. Mr. Amarpal Singh Dua, Adv. Ms. Diksha Arora, Adv.
For Respondent(s): Dr. Abhishek Manu Singhvi, Sr. Adv. Mr. Gaurav Agrawal, Sr. Adv. Mr. K Parameshwar, Sr. Adv. Mr. Tarani Kanta Biswal, Adv. Mr. C. George Thomas, AOR Mr. Uday Bhatia, Adv. Mr. Ansh Mittal, Adv. Mr. Gurkaranbir Singh, Adv.
