Rajendra Bharti v. Narottam Mishra

ABHAY M. NAHC, J.

(1.) Challenge has been made to the election of respondent to Vidhan Sabha Constituency No.22 Datia on alleged ground of corrupt practices by submitting the election petition under Sections 81, 100 and 100 (1) of the Representation of People Act, 1951 (in short 'the Act'), wherein preliminary objections are raised by moving 1. A.No. 1327/10, praying thereby for dismissal of election petition. This order disposes of the said interlocutory application.

(2.) Shri Anand Bharadwaj and Shri Ankur Mody, learned counsel for the parties made their respective submissions, which have been considered in the light of the material on record and the law governing the situation.

(3.) Dismissal of the election petition has been sought mainly on the following grounds :-

(i) Copy of election petition is not attested as true copy; (ii) True copy of the postal receipt pasted on the reverse of Annexure P/38 was not supplied to the respondent while serving him with the true copy of the election petition along with annexures; (iii) There is variance between the election petition and the true copy served on the respondent inasmuch as;

(a) true copy of the postal receipt pasted on the reverse of Annexure P/38 was not supplied, (b) Verification on the true copy of Annexure P/72 is not legible, (c) there is incomplete verification on the true copy of Annexures P/73, P/74 and P/76.

(iv) Date and place of verification is not mentioned on annexures, which amounts to violation of Section 83 (1) (c) and 83 (2) of the Act read with Order 6 Rule 15 (3) of CPC.

(v) Affidavit being defective for want of verification is violative of Rule 94-A of the Conduct of Elections Rules 1961 and Form 25. (vi) Verification of Election Petition as well as paragraph B of affidavit in support of election petition is vague and not specific.

(4.) Before entering into the merits of the contentions, I feel it apposite to reproduce Sections 81, 83 and 86 (1) of the Representation of People Act for convenience :- 81. Presentation of petitions.-(l) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. Explanation.- In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (2) **** (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. 83. Contents of petition.- (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 as 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, 1908 (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. 86, Trial of election petitions. - (1) The High Court shall dismiss as election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Explanation.- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98. Perusal of sub section (1) of Section 86 of the Act makes it clear that the legislative mandate is for dismissal of election petition in case of non-compliance of Section 81 or section 82 or section 117. Non inclusion of Section 83 is quite significant as observed by the Apex Court from time and again in various decisions. In the case of Dr. Vijay Laxmi Sadho v. Jagdish. (AIR 2001 SC 600), it has been observed :

"An election petition is liable to be dismissed in limine under Section 86 (1) of the Act only if the election petition does not comply with either the provisions of 'Section 81 or Section 82 or Section 107 of the Act. The recruitment of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section S3 (1) of the Act or of its proviso. What other consequences, if any, may follow from an allegedly 'defective' affidavit, is to be judged at the trial of an election petition but Section 86 (1) of the Act in terms cannot be attracted to such as case."

(5.) It has been contended by Shri Anand Bharadwaj, learned counsel that true copy served on the respondent is not attested as true copy and the same being in violation of sub section (3) of Section 81 of the Act, the election petition is liable to be dismissed under Section 86 (1) of the Act. Reliance has been placed on AIR 2000 Bombay 362 (Narendra Bhikahi Darade v. Kalyanrao Jaywantrao Patil) and AIR 1997 Delhi 116 (Mukhtiar Singh v. Chief Election Officer).

(6.) In the case of Narendra (supra), copy furnished to the respondent was attested as true copy by advocate and not by the petitioner, whereas in the case of Mukhtiar Singh (supra), substantial variance was found in the annexures and the copies served upon the respondent. In the case in hand, it has been admitted by the learned counsel for the respondent that each page of the copy of election petition does bear the original signature of the petitioner. It is submitted that copy of the election petition has not been attested as true copy and mere signature of the petitioner on each page of the copy does not amount to attestation thereof as true copy.

(7.) Sub section 3 of Section 81 of the Act requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. This sub section is in two parts. First part requires that there must be as many copies of the election petition along with the election petition itself, as there are respondents mentioned in the petition. This has been held as mandatory requirement by the Apex court in the case of Ch.Subbarao v. Member, Election Tribunal (AIR 1964 SC 1027).

(8.) In the case of Ch.Subbarao v. Member, Election Tribunal (AIR 1964 SC 1027), copies accompanying the election petition were carbon copies of the type script. The copies bore two signatures in original of the Election Petitioner. The petitioner did not however insert the words "true copy" before or above his signatures. Considering it, it was held that if the signature of the petitioner whose name is set out in the body of the petition is appended at the end, surely it authenticates the contents of the document. Accordingly, it was held that there was substantial compliance of Section 81 (3) of the Act. It was observed by the apex court that Murarka's case, C.A.Nos-30 and 31 of 1963 D/- 7-5-1963 (SC) is authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy.

(9.) Further submission about absence of copy of postal receipt on the reverse of Annexure P/38 is not liable to be accepted. Long back the apex court in the case of Murarka Radhy Shyam Ram Kumar v. Roop Singh Rathod and others (AIR 1964 SC1545) has observed that the test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Moreover, the respondent has been served with fresh copy of the election petition with annexures, which does contain a photo copy of the postal receipt pasted on the reverse of Annexure P/38. Applying the test prescribed by the apex court as aforesaid, it is found that the respondent was not mislead in any manner and thus, there is substantial compliance of Section 81 (3) of the Act. I may here successfully refer the following passage contained in paras 35 and 36 of the decision of the apex court in the case of Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar and others (2005) 2 SCC 188.

"35......The question that was raised by the learned counsel for Respondent 1 before us was whether subsequent supply of such true copies on Respondent 1 could be treated to be a sufficient compliance with Section 81 (3) of the Act. Apart from the conclusions made hereinbefore, we are also of the view that in view of the decision of this Court in Anil R.Deshmukh v. Onkar N. Wagh this question needs to be decided in favour of the appellant and against Respondent 1. In para 17 of the aforesaid decision this Court observed as follows : (SCC p.212) 'We have already referred to the fact that even before arguments were heard on the preliminary objection by the High Court in this case, the true copies of the affidavits had been served on the first respondent and his counsel. In the facts and circumstances of this case, we have no doubt that there was sufficient compliance with the provisions of Section 81 (3) read with Section 83 (1) (c) of the Act even if it could be said that the copies served in the first instance on the first respondent were not in conformity with the provisions of the Act."

(emphasis supplied) 36. Such being the position, we hold that the High Court was not justified in rejecting the election petitions for non-compliance with Section 81 (3) of the Act. I may here successfully refer to the Single Bench decision of this court in the case of Dinanath Sharma v. Tarun Prasad Chatterjee 2001 (4) MPLJ 1, wherein it is observed :-

"As noticed above, in the instant case, copy of the petition and annexures thereof, furnished to the respondent were undisputably the true copies of the election petition as well as of the annexures thereof. In fact, they were prepared by the same mechanical process in which the original election petition and the annexures enclosed therewith were prepared, inasmuch as the copy of the petition furnished to the respondent were prepared simultaneously by preparing photocopies. The above factual aspect is not disputed, and it is not contended on behalf of the respondent that the copy of the petition and the annexures thereof are not the true copies of election petition or the annexures. Each of the copies bar the signature in original of the petitioner. Therefore, there appears to be substantial compliance of Section 81 (3) of the Act."

(10.) Illegibility or incompleteness in the matter of verification on the copy of Annexures P/72, P/73, P/74 and P/76 is not a substantial defect because the defect in verification itself is of curable in nature. Supreme Court of India in the case of T.M.Jacob v. C.Poulose and others (AIR 1999 SC 1359), has clearly observed :

"The law as settled by the two Constitution Bench decisions of this Court referred to above is by itself sufficient to repel the argument of Mr. Salve. That apart, to our mind, the Legislative intent appears to be quite clear, since it divides violations into two classes - those violations which would entail dismissal of the election petition under Section 86 (1) of the Act like non- compliance with Section 81 (3) and those violations which attract Section 83 (1) of the Act i.e. non-compliance with the provisions of section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam ( AIR 1964 SC 1545) and Ch.Subbarao's cases ( AIR 1964 SC 1027). The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure."

(11.) In view of the aforesaid discussion, reliance by Shri Anand Bharadwaj, learned counsel for the respondent on T.Phungzathang v, Sri Hangkhanlian (MLA) and others (AIR 2001 Gauhati 52) and Vijay Somani Vs. Capt. Ajay Singh (AIR 2002 Punjab and Haryana 215) is of no avail. AIR 1980 SC 303 (Sharif-Ud-Din v. Abdul Gani Lone.) is distinguishable on facts inasmuch as the attestation is found to have been made by the advocate, which could not be treated as the equivalent of attestation by the petitioner under his own signature. It has been clearly observed :-

"The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition appears to be that the petitioner should take full responsibility for its contents and that the respondent or respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the original petition after it is filed into court."

In the case of Rajendra Singh v. Smt Usha Rani and others (AIR 1984 SC 956), it was found that the respondent was served with an incorrect copy of election petition. Case in hand is again distinguishable because there would be distinction between incorrectness and incompleteness of the copy. Copy of postal receipt pasted on the reverse of Annexure P/38 was missing in the copy served upon the respondent in first round. Thus, provision under the law was substantially complied with, more so when the deficiency was made good after serving a fresh copy. Additionally, the respondent could not be shown to have been mislead nor prejudiced in any manner. Decision of the Supreme Court in the case of Ramsukh v. Dinesh Aggarwal (2009) 10 SCC 541, deals with the question of maintainability on account of lack of material facts and full particulars. This being not the case of the respondent, decision of the apex court can not be harnessed into operation.

(12.) With regard to objection about absence of date and place in the verification, it is observed that the defect in verification itself has been held to be curable by the Supreme Court of India in the case of R.P.Moidutty v. P.T. Kunju Mohammad and another (2000) 1 SCC 481.

(13.) Lastly, it is contended that the affidavit to the election petition is defective for want of verification. On perusal, it is found that the affidavit accompanying the election petition is substantially in Form 25 as required under Rule 94-A of the Conduct of Elections Rules, 1961. Para A thereof relates to the specific paragraphs, which are within the knowledge of the petitioner himself, whereas para B relates to specific paragraphs, which are sworn on the basis of the knowledge received from the persons named therein. On perusal of election petition, it is further found that the information provided by particular individual named in para B is also mentioned in specific in the particular paragraph of the election petition. Thus it can not be said that there is vagueness in the affidavit or there is no specific mention in the affidavit.

(14.) At this stage, I would also further like to mention the contention of Shri Ankur Mody as correct one that there being no complete and total non-compliance of Section 81 (3) of the Act, the election petition can not be legally dismissed in limine. It has also been observed long back by the apex court in the case of Ch.Subbarao v. Member, Election Tribunal (AIR 1964 SC 1027) :

"We are not impressed by this argument. When S.81 (3) requires an election petition to be accompanied by the requisite number of copies, it becomes a requirement for the presentation of the election petition to the Commission, and therefore a condition precedent for the proper presentation of an election petition. If that is a requirement of S.81, no distinction can be drawn between the requirements of sub-sections (1) and (2) and of sub-sec.(3). We might add that if there is a total and complete non-compliance with the provisions of S. 81 (3), the election petition might not be "an election petition presented in accordance with the provisions of this Part" within S.80 of the Act."

In the case of Chandrakant Uitam Chodankar v. Dayanand Rayu Mandrakar and others (2005) 2 SCC 188, the Supreme Court has rejected the similar preliminary objection for dismissal of the election petition at the threshold. Recently, the apex court in the case of Umesh Challiyill v. K.P Rajendran. (2008) 11 SCC 740 has held that the test for dismissal of election petition at the outset is whether the defects would go to the root of the matter or only are cosmetic in nature. It has been observed :

"The courts have to view whether the objections go to the root of the matter or they are only cosmetic in nature. It is true that the election petition should not be summarily dismissed on such small breaches of procedure. Section 83 itself says that the election petition should contain material facts. Section 86 says that the High Court shall dismiss the election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. But not of defect of the nature as pointed out by the respondent would entail dismissal of the election petition. These were the defects, even if the Court has construed them to be of serious nature, at least notice should have been issued to the party to rectify the same instead of resorting to dismissal of the election petition at the outset."

In the case of Jagat Kishore Prasad Narain Singh v.,Rajendra Kumar Poddar and others (AIR 1971 SC 342), respondent was found to have been mislead and prejudiced in his defence on account of discrepancies, whereas no such case is pleaded or made out by the respondent in the present case. Therefore, respondent does not get any assistance from this. Respondent in this case has failed to establish that the defects pointed out by him go to the root of the case. On the contrary, they appeared to be cosmetic in nature. Accordingly, such defects in the opinion of this court will not lead to dismissal of the election petition at the outset.

(15.) Although, it is submitted in the reply that a strict adherence to the provisions of the Act is to be made as observed by the Supreme Court of India in the case of G. V.Sreerama Reddy and another v. Returning Officer and others (2009) 8 SCC 736, the same does not render any assistance to the respondent because the same is distinguishable on facts inasmuch as non compliance of mandatory provisions was found to have been made in that case. Reliance of the counsel for the respondent on AIR 1999 Karnataka 241 (G,MMikarjunappa and another v. Shamanur Shivashankarappa and others) and AIR 1994 Punjab and Haryana 32 (Boota Singh v. Sher Singh and others) is also of no avail being distinguishable on facts.

(16.) In the result, it is held that there is no total non compliance of Section 81 (3) of the Act or any mandatory provisions of law. Objections raised by the respondent vide I.A.No.1327/10 do not go to the roots of the case and the respondent having not been mislead or prejudiced in any manner in the facts and circumstances of the case, more so in view of substantial compliance, preliminary objections are not liable to be accepted. Resultantly, I.A.No.1327/10 is hereby dismissed with no order as to costs. Petition dismissed.