PETITIONER:
MITHILESH KUMAR PANDEY
Vs.
RESPONDENT:
BAIDYANATH YADAV AND ORS.
DATE OF JUDGMENT02/01/1984
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
REDDY, O. CHINNAPPA (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1984 AIR 305 1984 SCR (2) 278
1984 SCC (2) 1 1984 SCALE (1)1
CITATOR INFO :
F 1990 SC 924 (28)
ACT:
Representation of the People Act, 1951, Section 81(3)-
Construction of the provisions of the section-copy of the
election petition containing several mistakes of vital
character, not found in the original-Election petition is
not maintainable and must be dismissed.
HEADNOTE:
In the general elections held in June 1980, the
appellant fought as a Congress(1) candidate from Harlakhi
Assembly constituency in Bihar and was declared elected. The
respondent who was defeated filed an election petition in
the Patna High Court listing a large number of persons
through when corrupt practices were alleged to have been
practised by the appellant. Since the copy of the petition,
though attested by the election petitioner under his own
signature to be a true copy, contained several mistakes
which were of a very vital character, the appellant
contested the petition alleging that the mandatory
provisions of section 83(3) of the Representation of People
Act not having been complied with at all, the petition
should be dismissed in limine without going into the merits
of the case. Though the High Court found as a fact that a
large number of mistakes were there in the copy of the
election petition supplied to the appellant. Yet, as they
were of a superficial and insignificant nature bordering on
clerical or typing mistakes, on the whole, there was a
substantial compliance of the provisions of Section 81(3) of
the Act. Hence the appeal against the interlocutory order.
Allowing the appeal and dismissing the election
petition the Court,
^
HELD: 1:1 A perusal of Sections 81(3) and 86 of the
Representation of the People Act reveals that the statute
intended that before an election petition can be
entertained, the copy sent to the elected candidate must be
a true copy, failing which there would be a serious
disobedience of the mandate contained in s.81(3) which would
be fatal to the maintainability of the said petition. [281
F]
1:2 It is now well settled by a large catena of
authorities of this Court that the electoral process by
which the verdict of the people has been given is a
sacrosanct one and cannot be lightly set at naught unless
the grounds mentioned in the Act for setting aside an
election are held to be proved. In these circumstances, it
is manifest that the provisions of s.81(3) of the act should
be construed to the letter and spirit of the law because if
the election petitioner does not give full and complete
notice of the allegations made against the returned
candidate, he runs the risk of his petition being dismissed
in limine. [281 G-H]
279
2 On a careful consideration and scrutiny of the law on
the subject, the following principles are well established;
(1) that where the copy of the election petition
served on the returned candidate contains only
clerical or typographical mistakes which are of no
consequence, the petition cannot be dismissed
straightway under s.86 of the Act, [283 F]
(2) A true copy means a copy which is wholly and
substantially the same as the original and where
there are insignificant or minimal mistakes, the
court may not take notice thereof, [283 G]
(3) where the copy contains important omissions or
discrepancies of a vital nature, which are likely
to cause prejudice to the defence of the returned
candidate, it cannot be said that there has been a
substantial compliance of the provisions of
s.81(3) of the Act, [284 A]
(4) Prime facie, the statute uses the words "true
copy" and the concept of substantial compliance
cannot be extended too far to include serious or
vital mistakes which shed the character of a true
copy so that the copy furnished to the returned
candidate cannot be said to be a true copy within
the meaning of s.81(3) of the Act, and [284 B]
(5) As s.81(3) is meant to protect and safeguard the
sacrosanct electoral process so as not the disturb
the verdict of the voters, there is no room for
giving a liberal or broad interpretation to the
provisions of the said section. [284 C]
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore &
Ors. [1964] 3 SCR 573; Jagat Kishore Prasad Narain Singh v.
Rajendra Kumar Poddar & Ors. [1971] 1 SCR 821; Satya Narain
v. Dhuja Ram & Ors., [1974] 23 SCR 20; Sharif-ud-din v.
Abdul Gani Lone, [1980] 1 SCR 1177; M. Karunanidhi etc. etc.
v. H.V. Hande & Ors. etc. etc. [1983] 1 SCR 1177; M.
Karunanidhi etc. etc. v. H.V. Hande & Ors. etc. etc. [1983]
1 SCALE 344 referred to. [284 D-E, 285 G; 286 A; 285 C]
3. In the instant case, the mistakes in the copy
supplied to the returned candidate related to corrupt
practices, have to be proved to the hilt just like a
criminal charge and any mistake which contains an element of
vagueness would immediately vitiate the election petition
and merit its dismissal under s.86 of the Act. Among the
many more mistakes given in Schedule I, the few selected
items themselves are vital and may seriously prejudice the
defence of the appellant because it will be very difficult
for him to find out the persons, named in the copy supplied
to him who are said to have indulged in corrupt practices at
his instance. The present case is a much worse case than
Murarka Radhey Shyam Ram Kumar's case (supra) where only a
slight difference in the title led this Court to hold that
the mistake was a vital one was a valid one. Further, the
omission of names cannot be said to be a typing mistake but
a very vital and serious on which is sufficient to entail
the dismissal of the election petition. [284 D-E; 285 G; 286
A; 285 C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeal No. 5307 of
1983
Appeal by Special leave from the Judgment and Order
dated the 7th January, 1983 of the Patna High Court in
Election Petition
280
S.N. Kacker, L.R. Singh and Gopal Singh for the
Appellant.
R. K. Garg and D.K Garg for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. By Order dated November 29, 1983 we had
allowed the appeal. We now proceed to give the reasons for
the said Order.
This election appeal is directed against an
interlocutory Order dated January 7, 1983 passed by the
Patna High Court overruling a preliminary objection taken by
the appellant (elected candidate) that the election petition
of the respondent (election petitioner) should be dismissed
straightaway under the provisions of s.86 of the
Representation of the People Act. 1951-as amended uptodate-
(hereinafter referred to as the ‘Act’)
The appellant’s case is that in the general election
held in June 1980 he fought as a Congress (I) candidate from
Harlakhi Assembly constituency in Bihar in which he was
declared elected, defeating the respondent who filed the
election petition in the High Court. He further submitted
that the copy of the election petition served on him
contained a large number of mistakes in respect of persons
through whom corrupt practices were alleged to have been
practised by the appellant during the election, He contended
that in view of the very large number of mistakes, which
were of a very vital character, the mandatory provisions of
s.81(3) of the Act were not complied with at all, which
infirmity by itself would be sufficient to dismiss the
election petition in limine without going into the merits of
the case.
The stand taken by the respondent was that the mistakes
were undoubtedly there but they were of a minor and
significant nature and did not affect his case on merit.
The learned Judge of the High Court found as a fact
that a large number of mistakes were there in the copy of
the election petition supplied to the appellant but as they
were of a superficial and insignificant nature bordering on
clerical or typing mistakes, on the whole there was a
substantial compliance of the provisions of s.81(3) of the
Act. The learned Judge has entered into a detailed
discussion of
281
the various decisions of this Court and also of High Courts
and has correctly held that the provisions of s.81(3) are
mandatory and if the court finds that they have not been
complied with it has no alternative but to dismiss the
election petition straightaway. Unfortunately, however, in
the process of applying the principles laid down by this
Court he has completely glossed over the nature of the
mistakes by describing them as merely clerical or typing
ones. On a perusal of the aforesaid mistakes (listed at pp.
64-65 of the Paperbook) they do not appear to be so. Section
81(3) of the Act thus:
“81. Presentation of petitions
(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.”
The consequence of non-compliance of this section has
been mentioned in s.86(3) which may be extracted thus:
“86. Trial of election petitions
(1) The High Court shall dismiss an election
petition which does not comply with the provisions of
section 81 or section 82 or section 117.”
A perusal of the above reveals that the statute
intended that before an election petition can be
entertained, the copy sent to the elected candidate must be
a true copy, failing which there would be a serious
disobedience of the mandate contained in s.81(3) which would
be fatal to the maintainability of the said petition.
It is now well settled by a large catena of authorities
of this Court that the electoral process by which the
verdict of the people has been given is a sacrosanct one and
cannot be lightly set at naught unless the grounds mentioned
in the Act for setting aside an election are held to be
proved. In these circumstances, it is manifest that the
provisions of s.81(3) of the Act should be construed to the
letter and spirit of the law because if the election
petitioner does not give full and complete notice of the
allegations made against the returned candidate, he runs the
risk of his petition being dismissed in limine.
282
In the instant case, it is the admitted case of the
parties that the mistakes in the copy supplied to the
appellant related to corrupt practices indulged in by him
through various persons who have been named at pages 64-65
of the Paperbook. In Muraka Radhey Shyam Ram Kumar v. Roop
Singh Rathore & Ors.(1) this Court made the following
observations:-
“Having regard to the provisions of Part VI of the
Act we are of the view that the word “copy” does not
mean an absolutely exact copy. It means a copy so true
that nobody can by any possibility misunderstand it.
The test whether the copy is a true one is whether any
variation from the original is calculated to mislead an
ordinary person.”
In other, words, this Court merely meant to indicate
that where the variation is so minimal and insignificant
that it is incapable of misleading any person as to the true
purport of the allegation, it would be a substantial
compliance of the provisions of s.81(3) of the Act. The High
Court has largely relied on the ratio of this particular
case.
There can be no dispute regarding the principle laid
down by this Court but the main difficulty arises when we
approach the facts of a particular case in order to find out
whether the copy supplied to the returned candidate is
really a true copy or not.
In Jagat Kishore Prasad Narain Singh v. Rajendra KUmar
Poddar & Ors.(2) the same principle was laid down. In this
case, the mistake was that in the election petition it was
stated that money was offered to on Jetha Kisku by Munshi
Hansda but in the copy served on the returned candidate
instead of Munshi Hansda the name of Paul Hansda was
mentioned. Apparently, the mistake was a verbal one but this
court held that it was sufficient to prejudice the defence
and accordingly came to the conclusion that the petition was
liable to be dismissed under s.86 of the Act.
We shall presently show that in the instant case the
mistakes were of a greater nature than those with which this
Court was dealing
283
with in the aforesaid case. In Satya Narain v. Dhuja Ram &
Ors.(1) this Court clearly pointed out that where the first
part of s.81(3) was not complied with, the provision being a
peremptory one, total noncompliance with the same would
entail dismissal of the election petition under s.86 of the
Act. In a later case in Sharif-ud-Din v. Abdul Gani Lone(2)
this Court observed thus
“It is true that section 89(3) of the Act is
purely procedural in character and that ordinarily
procedural law should not be given that primacy by
courts as would defeat the ends of justice. But if a
law even though it may be procedural in character
insists that an act must be done in a particular manner
and further provides that certain consequences should
follow if the act is not done in that manner, courts
have no option but to enforce the law as it is.”
In a latest decision of the Court in M. Karunanidhi
etc. etc. v. H. V. Hande & Ors. etc. etc.,(3) the following
observations were made :
“It is obvious that the photograph was a part of
the averment contained in paragraph 18(b). In the
absence of the photograph the averment contained in
paragraph 18(b) would be incomplete. The photograph
referred to in paragraph 18(b) was therefore an
integral part of the election petition. It follows that
there was total non-compliance with the requirements of
sub-s.(3) of s.81 of the Act by failure to serve the
appellant with a copy of the election petition.”
On a careful consideration and scrutiny of the law on
the subject, the following principles are well established ;
1) that where the copy of the election petition
served on the returned candidate contains only
clerical or typographical mistakes which are of no
consequence, the petition cannot be dismissed
straightaway under s.86 of the Act,
2) A true copy means a copy which is wholly and
substantially the same as the original and where
there are insignificant or minimal mistakes, the
court may not take notice thereof,
284
3) where the copy contains important omissions or
discrepancies of a vital nature, which are likely
to cause prejudice to the defence of the returned
candidate, it cannot be said that there has been a
substantial compliance of the provisions of
s.81(3) of the Act.
4) Prima facie, the statute uses the words “true
copy” and the concept of substantial compliance
cannot be extended too far to include serious or
vital mistakes which shed the character of a true
copy so that the copy furnished to the returned
candidate cannot be said to be a true copy within
the meaning of s. 81(3) of the Act, and
5) As s.81(3) is meant to protect and safeguard the
sacrosanct electoral process so as not to disturb
the verdict of the voters, there is no room for
giving a liberal or broad interpretation to the
provisions of the said section.
We might mention here that in the instant case the
mistakes in the copy supplied to the returned candidate
related to corrupt practices which, as has been held by this
Court in a large number of cases, have to be proved to the
hilt just like a criminal charge and any mistake which
contains an element of vagueness would immediately vitiate
the election petition and merit its dismissal under s.86 of
the Act.
In the view that we take, it is not necessary for us to
wade through a detailed discussion of the mistakes because a
few mistakes pointed out by the Judge himself clearly reveal
that they were of a very vital and material nature so as to
mislead the returned candidate and prejudice him in his
defence. Schedule I to the election petition contained the
list of persons through whom the corrupt practices were
alleged to have been committed. An analysis of these
mistakes may be placed in three categories-(1) where there
is complete omission of some names which have been mentioned
in the election petition but not in the copy supplied to the
returned candidate, (2) giving absolutely wrong names which
are bound to mislead the appellant in his defence as the
persons bearing the wrong names could not be traced out, and
(3) some names given in the petition appear to be males but
in the copy given to the appellant they appear to be
females.
Coming to the first category, a few examples will
suffice to
285
illustrate our point
Sl. No. in Name in the Name in the
Schedule I original petition copy
17 Yogendra Jha Omitted
37 Bulari Devi Omitted
188 Bal Bhogia Omitted
445 Ramdeo Paswan Omitted
486 Jugeshwari Devi Omitted
The omission of names cannot be said to be a typing
mistake but a very vital and serious one which is sufficient
to entail the dismissal of the election petition. Under the
second category (giving wrong names), the following names
may be mentioned
Sl. No. in Name in original Name in copy
Schedule I
42 Nanpuran Mitra Mahpuran Mitra
62 Bilas Jha Biml Jha
105 Dukhi Devi Sudama Devi
179 Bhekai Paswan Mokai Paswan
385 Mauki Tetri
440 Kalasiya Kalya
466 Kalish Jandra Jha Kali Janwa Jha
479 Gayatri Devi Sati Devi
498 Udit Mishra Udit Mitra
579 Yashodara Mishra Yashoda Devi
679 Jhularia Devi Kaushilya Devi
Third Category
29 Kiran Jha Kiran Devi
(May be a male or a female) (Must be a female)
444 Dulaira Ramdeo Paswan
675 Rajsunair Yadav Rajsunari Yadav
There are many more mistakes given in schedule I but we
have selected only those which are vital and may seriously
prejudice the defence of the appellant because it will be
very difficult for him to find out the persons, named in the
copy supplied to him, who are said to have indulged in
corrupt practices at his instance.
Thus, on an overall consideration of the facts and
circumstances
286
of this case, we are unable to agree with the High Court
that the mistakes in the copy were either verbal,
typographical or clerical. The present case appears to be a
much worse case than Murarka Radhey Shyam Ram Kumar’s case
(supra) where only a slight difference in the title led this
Court to hold that the mistake was a vital one.
We are, therefore, of the opinion that the High Court
committed a serious error of law in holding that there had
been a substantial compliance of the provisions of s.81(3)
of the Act so as to exclude the application of s.86 of the
Act.
For the reasons given above, we allow the appeal and
dismiss the election petition filed in the High Court but in
the circumstances without any order as to costs. As a result
of our judgment, nothing now survives in the High Court.
S.R. Appeal allowed.
287