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The necessary implication of the decision, of the Tribunal permitting the respondent No. 1 to. file a fresh affidavit is that the Tribunal regarded the requirement of the proviso to Section 83(1) and Rule 94-A as merely directory and not mandatory and further the ught that even if the election petition was not accompanied by an affidavit in the prescribed form, the defect could be cured by filing a proper affidavit at a later stage before the Tribunal itself.

The main question that, therefore, arises for determination in this case is whether the requirement laid down by the proviso to Section 83(1) that where the petitioner alleges any corrupt practice the petition shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof is mandatory or directory. It is obvious that if it is held that this requirement is mandatory and there must be at the time o4 the presentation of such an election petition an affidavit in the prescribed form along with the petition, then if no such affidavit is filed at the time of the presentation of an election petition before the Election Commission, the omission cannot be cured by permitting the election petitioner to file an affidavit before the Tribunal. If the proviso is mandatory, then an affidavit filed not in the manner or form prescribed by it can have no effect or validity; the proviso has to be obeyed exactly and there can be no question of its being carried out substantially by filing an affidavit subsequently before the Election Tribunal.

11b. In our opinion, the object with which the proviso was inserted by Act No. 40 of 1961 in the Representation of the People Act, 1951 would be wholly defeated and the protection afforded by it to the person, against whom allegations of corrupt practices are made, nullified if it were to be held that the requirement that where allegations of corrupt practices are made the petition shall be accompanied by an affidavit in the prescribed form is directory and not mandatory.

12. It is no doubt true that in the Act there is no provision setting out the consequence or consequences of the omission to file an affidavit as required by the proviso at the time of the presentation of the election petition itself. But this omission, as pointed out by the Supreme Court in AIR 1962 SC 1694 is in no way decisive of the proviso being directory. The statement in that case that "the question whether any requirement is mandatory or directory has to be decided no merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement" is very significant. It emphasizes that the presence or absence of such a provision is not decisive of the matter whether any requirement is mandatory or directory. Indeed, the 'question whether a provision is mandatory or directory generally arises not when the statute sets out the consequences of non-compliance of a provision, but when it does not do so. Therefore, to say that, inasmuch as there is no provision is the Act laying down the consequences of non-compliance with the proviso, the proviso is directory, is to beg the question.

14. Turning now to the authorities cited by the learned counsel for the respondent No. 1, it must first be stated that on the topic of the matters to be taken into consideration for determining whether a statutory provision is mandatory or directory, there is a superfluity of authority. But no case holding that a particular statutory provision is directory or mandatory can be of any guide in the determination of the question whether another statutory provision is imperative or directory. Each case is distinguishable on its own facts and on the language of the particular provision considered therein and on the scheme of the Act in which it occurs. But so far as the principles to be followed for determining whether a statutory provision is directory or mandatory are concerned, there is no conflict. These principles have been followed in all cases where the question for determination was whether any statutory provision is mandatory or directory.

The learned Judges of the Allahabad High Court then proceeded to consider the question whether the proviso to Section 83(1) was mandatory or directory and expressed the view that it was not mandatory inasmuch as the Act did not prescribe a penalty for the non-obedience of the proviso. With all respect to the learned Judges of the Allahabad High Court, we do not agree with their view that the proviso to Section 83(1) is not mandatory. It is dear that in the Allahabad case the charges of corrupt practice having been withdrawn and not tried at all by the Tribunal, no question arose as regards the effect of failure on the part of the election petitioner to file an affidavit as required by the proviso on the allegations of corrupt practice made by him. The question whether an election petition could be dismissed for failure to comply with the proviso turned on sections 85 and 90 (3) of the Act and it was wholly unnecessary to consider in that connection whether the proviso was mandatory or directory. From what we have said above, it is clear that while we agree with the view of the Allahabad High Court that an election petition cannot be dismissed for non-compliance with the proviso we do not find ourselves in agreement with the view that the proviso is not mandatory.