Justice Surya Kant, Justice Joymalya Bagchi, Supreme Court
Identify Defects In Form 25 Affidavit: Supreme Court Remands BJP MLA Tankadhar Tripathy Election Dispute Case To Orissa High Court
|The Supreme Court was considering a matter revolving around the degree of ‘substantial compliance’ with the prescribed Form 25 affidavit, as encapsulated in the proviso to Section 83(1)(c) of the Representation of the People Act.
The Supreme Court has asked the Orissa High Court to identify and assess the defects in the Form 25 affidavit in a petition filed against BJP MLA Tankadhar Tripathy’s election, alleging corrupt practices. The Apex Court also reiterated that the requirement of filing an affidavit under the proviso to Section 83(1)(c) of the RP Act is not of a mandatory character, and ‘substantial compliance’ therewith would suffice.
The Apex Court was considering a matter revolving around the degree of ‘substantial compliance’ with the prescribed Form 25 affidavit, as encapsulated in the proviso to Section 83(1)(c) of the Representation of the People Act, 1951 (RP Act) read with Rule 94-A of the Conduct of Elections Rules, 1961.
The Division Bench of Justice Surya Kant and Justice Joymalya Bagchi held, “The High Court is requested to identify and enumerate the defects in the Form 25 affidavit and assess whether such defects, if any, were curable.”
Senior Advocate Maninder Singh represented the Appellant while Senior Advocate Abhishek Manu Singhvi represented the Respondent.
Factual Background
The Governor of the State of Odisha issued a notification on April 26, 2024, to hold General Elections to constitute a new State Assembly. The election schedule was released, and both the Appellant and the Respondent filed their nominations from the 07-Jharsuguda Assembly Constituency. The Appellant was eventually declared elected as the returned candidate by a margin of 1,333 votes. The Respondent, having gotten the second highest votes, filed an Election Petition before the Orissa High Court seeking the Appellant’s election to be declared void and set aside. The Appellant, in turn, objected to the maintainability of the Petition on the sheet anchor of Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), praying for its rejection at the very threshold.
The Appellant sought an order under Order VI Rule 16 of the CPC to strike out the portions of the pleadings mainly about the allegations of ‘corrupt practices’ contained in the Election Petition. The High Court dismissed the Appellant’s application and granted the Respondent three weeks’ time to file an affidavit in the prescribed Form 25. The High Court concluded that the matter raised triable issues and did not merit rejection at the outset. Aggrieved, the Appellant approached the Apex Court.
Reasoning
Referring to the judgments in Ravinder Singh v. Janmeja Singh and Others (2000) and A. Manju v. Prajwal Revanna (2022), the Apex Court noted that in these decisions, it had further underscored that the requirement of filing an affidavit under the proviso to Section 83(1)(c) of the RP Act is not of a mandatory character, and that ‘substantial compliance’ therewith would suffice. It was also observed that where an affidavit is already on record, albeit not in the prescribed Form 25, the proper course would be to afford the Election Petitioner an opportunity to file a corrected affidavit in conformity with the prescribed form.
It was noticed that the Impugned Order, which emanated from an adjudication at the Order VII Rule 11 stage, simply granted the Respondent an opportunity to “cure defects” and further provided a period of three weeks to do so. The Impugned Order neither shed any light on the nature of the defects so recognised, nor clarified whether the opportunity to rectify such defects was accorded before or after the expiry of the period of limitation.
“Whether an affidavit appended with an Election Petition has ‘substantially complied’ with or ‘omitted’ to do so is essentially a question of fact to be determined by juxtaposing the allegations of ‘corrupt practices’ averred in the Election Petition vis-à-vis the contents of the supporting affidavit. Substantial compliance in ordinary terms means, almost, actual compliance with the essence of the enactment, or perhaps, in simpler terms, to do all that is reasonably expected, which satisfies the substance of the Statute. It, however, cannot be inferred to mean mere lip service to the requirements of the law”, it said.
The Bench further noted that although the High Court had concluded that the affidavit ‘substantially complied’ with the proviso to Section 83(1)(c), it had not detailed the examination conducted in order to reach such a conclusion. As a result, the necessary facts-based analysis appears to have escaped attention.
The Bench disposed of the appeal by remitting the case to the High Court with a request to identify and enumerate the defects in the Form 25 affidavit and assess whether such defects, if any, were curable. The Bench also allowed the proposals submitted by the parties and requested the High Court to strike out the portions of the pleadings that they had mutually agreed to expunge from the record.
“Upon striking out of such pleadings, the High Court shall afford the parties reasonable time to carry out the consequential amendments to the Election Petition and the Written Statement(s). Thereafter, the High Court may proceed to frame issues on the merits of the matter”, it concluded.
Cause Title: Tankadhar Tripathy v. Dipali Das (Neutral Citation: 2025 INSC 1017)
Appearance
Appellant: Senior Advocates Maninder Singh, Gopal Agarwal, AOR Mithu Jain, Advocates Sanchit Garga, Kunal Rana, Shashwat Jaiswal, Bhanu Pratap Singh, Milind Rai, Amarpal Singh Dua, Diksha Arora
Respondent: Senior Advocates Abhishek Manu Singhvi, Gaurav Agrawal, K Parameshwar, Tarani Kanta Biswal, AOR C. George Thomas, Advocates Uday Bhatia, Ansh Mittal, Gurkaranbir Singh