ORDER
K.K. Lahoti, J.
1. This petition is directed against order dated 4-10-2005 passed by the Collector cum Prescribed Authority under Section 122 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred as ‘the Act’). A preliminary objection was raised by the petitioner under Rule 8 of M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as ‘the Rules’) for dismissal of the election petition for the non-compliance of Rule 3(2) of the Rules, which has been turned down.
2. Facts of the case are that the petitioner is a returned candidate for the office of President, Janpad Panchayat, Gunnore, District Panna. The election was held on 14-2-2005. Respondent No. 1 Anjana Sharma challenged the election of the petitioner by filing an election petition under Section 122 of the Act on various grounds. The petitioner was served with a notice of the election petition. Petitioner filed reply of the election petition in which in Paragraph 16, petitioner raised an objection that the copy of the petition supplied to him was not attested as true copy by respondent No. 1, while Sub-rule (2) of Rule 3 of the Rules provides that the copy shall be attested by the petitioner under his own signature to be a true copy of the election petition. For the non-compliance of the Rule 3(2) the Election Petition itself was liable to be dismissed under Rule 8 of the Rules. The Election Tribunal by the impugned order found that the copy of election petition supplied to the petitioner was signed on every page by the election petitioner and mere omission to write words ‘attested to be true copy’ will not entail dismissal of election petition. On the aforesaid grounds, the Election Tribunal rejected the preliminary objection raised by the petitioner. This order is under challenge in this petition.
3. Learned Counsel for the petitioner submitted that the provision of Rule 3(2) is mandatory in nature and effect of non-compliance of the provision is envisaged under Rule 8 of the Rules, which provides dismissal of the election petition. He has placed his reliance on two judgments of this Court in Rambharosa v. State of M.P. 1996 (I) MPWN 81 and Lalaram v. Laxman Singh 1996(11) MPWN 132 and submitted that this petition be allowed and the election petition filed by respondent No. 1 be dismissed with costs.
4. To appreciate the contention of the petitioner firstly Rule 3(2) may be seen, which reads thus:
Rule 3. (2) 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.
5. In this case, it is not disputed that the copy of the election petition which was served on the petitioner was a Photostat copy of the election petition filed before the Election Tribunal and every page of the election petition was signed by respondent No. 1 Anjana Sharma. The only question which is to be seen is the effect of omission to write ‘attested true copy’ under her own signature. The Tribunal found that the election petitioner has complied with the provisions substantially and on this omission, the election petition cannot be dismissed. Rule 3(2) of the Rules provides that the election petitioner shall, accompany alongwith the election petition 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. So far as the supply of true copy of the petition to the respondent is concerned, no doubt the aforesaid provision is mandatory as consequence of this has been given under Rule 8 which provides that for the non-compliance of Rule 3(2), the election petition shall be dismissed by the specified officer. But proviso of Rule 8 provides that the petition shall not be dismissed under this Rule without giving the petitioner an opportunity of being heard.
6. The Apex Court considering the question of supply of true copy of election petition held in T.M. Jacob v. C. Paulose :
37. We have already referred to the defect, which has been found in the copy of the affidavit served on the appellant in the present case. There is no dispute that the copy of the affidavit served on the appellant contained the endorsement to the effect that the affidavit had been duly signed, verified and affirmed by the election petitioner before a Notary. Below the endorsement of attestation, it was also mentioned : Sd/- Notary. There, however, was an omission to mention the name and particulars of the Notary and the stamp and seal of the Notary in the copy of the affidavit served on the appellant. There was no other defect pointed out either in the memo of objection or in CMP No. 2903 of 1996 or even during the course of arguments in the High Court or before us. Could this omission be treated as an omission of a vital or material nature which could possibly mislead or prejudice the appellant in formulating his defence ? In our opinion, No. The omission was inconsequential. By no stretch of imagination can it be said that the appellant could have been misled by the absence of the name and seal or stamp of the Notary on the copy of the affidavit, when endorsement of attestation was present in the copy which showed that the same had been signed by the Notary. It is not denied that the copies of the Election Petition and the affidavit served on the appellant bore the signatures of respondent No. 1 on every page and the original affidavit filed in support of the Election Petition had been properly signed, verified and affirmed by the election petition and attested by the Notary. There has, thus, been a substantial compliance with the requirements of Section 81(3) read with the proviso to Section 83(1)(c) of the Act. Defects in the supply of true copy under Section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provisions of Section 81(3) read with Section 86(1) of the Act. Same consequence would not follow from non-compliance with Section 83 of the Act.
In similar circumstances, the Apex Court in Ram Prasad Sarma v. Mani Kumar Subba considering the law held thus:
17. The purpose of the provision to furnish a true copy of the petition is not to frustrate the cause of the petitioner approaching the Court by adhering strictly to technicalities of little consequence. On the other hand, the anxiety is that the respondent must have correct idea of the allegations of corrupt practices made against him with some responsibility and that he may not be misled in any material respect by furnishing of a copy of the affidavit which may not be a correct copy having vital variation from the original. It is true that in the matters relating to elections and election petitions, strict compliance of the legal provisions is necessary and full care is to be taken to see that rights of an elected representative are not lightly disturbed and rightly so. But an election petition is not to be thrown at the threshold on the slightest pretext of one kind or the other which may or may not have any material bearing on the factors to be strictly adhered to in such matters. It is substance not form which would matter. If it is permitted otherwise, the returned candidate would only be in the look out microscopically for any kind of technical lacuna or defect to abort the endeavour of the petitioner to bring to trial the issues relating to corrupt practices in the elections. The purpose of the law on the point cannot be to allow the returned candidate to avoid the trial of the issues of corrupt practices raised against him on the basis of any little defect which may not result in any vital variation between the original and the true copy so as to have the effect of misleading the returned candidate. As it is, the prevailing situation of elections and practices often said to be adopted now and then and here and there does not always give a very happy picture. Free, fair and fearless election is ideal to be achieved and not to be defeated for the sake of pretentious and frivolous technicalities.
The proviso provides an opportunity to the election petitioner to meet out the aforesaid objections. In the matters relating to election petitions, strict compliance with the legal provision is necessary and full care is to be taken to see that rights of an elected representative should not be lightly disturbed. But an election petition is not to be thrown at the threshold on minor omission or errors may or may not have any material bearing on the factors to be strictly adhered to in such matters. It is substance not the form which would matter. The purposes of the law on one hand is to safe-guard legal rights of an elected person, than on the other hand, the returned candidate cannot be allowed to avoid the trial of the issues raised against him on the basis of any minor defect or omission. A photocopy of election petition under the signature of election petition was supplied but omission of writing words ‘True copy’ would not be a fatal defect resulting dismissal of petition.
7. Now the facts of the present case may be seen. In this case, it is not in disputed that photostat copy of the election petition duly signed by the election petitioner was supplied to the petitioner. There was omission only in respect of writing of the words ‘attested true copy’. The petitioner filed the reply of the election petition and in the reply this objection has been taken. Except this objection the petitioner has not stated that in fact the copy of the election petition which was supplied to the petitioner was in fact was not a true copy of the election petition. Even before the Election Tribunal this allegation was not made by the petitioner and only this technical objection was raised by the petitioner that because of the omission to write ‘attested true copy’ by the election petitioner on the copy of the petition supplied to the petitioner, election petition may be dismissed. Though in past the law of this Court was that the aforesaid requirement is mandatory as reflects from the judgment of this Court in Ram Bharosa & Lalaram (supra), but in view of the law laid down by the Apex Court in T.M. Jacob and Ram Prasad (supra), the matter is to be examined in the light of the law laid down by the Apex Court. In this case, photostat copy of the election petition was supplied to the petitioner and there is no allegation that the copy of the election petition supplied was in fact not a true copy of the election petition filed before the Election Tribunal and in any manner any prejudice is caused to the petitioner because of non-writing of the word “attested true copy”. The aforesaid defect is curable defect under Rule 8, which provides that before dismissal of the election petition for the non-compliance of the Rule 3 of the Rules, an opportunity of hearing shall be extended to the election petitioner. The election petition is such a circumstance, is entitled to say that in fact the copy of the election petition supplied to the respondent(s) is in fact is a true copy and the defect by not writing the word ‘attested true copy’ may be permitted to be cured. The position becomes weightier in favour of election petitioner when photostat copy of election petition filed before the Tribunal is supplied to the respondents.
8. Under Rule 3(2) supply of a true copy of election petition to the respondents under the signature of election petitioner is mandatory. But mere omission to write words ‘true copy’ is a curable defect which may be cured under Rule 8 of the Rules. When the election petitioner at the time of filing of election petition had accompanied as many as copies thereof as there are respondents and every such copy is attested under his signature, if words ‘true copy’ has not been written on the copy, the aforesaid defect is not fatal which may result dismissal of election petition. The aforesaid provision provide that every election petition shall be accompanied by as many as copies thereof as there are respondents mentioned in the petition and every such copy shall be an attested to a true copy. There would be no doubt that what is intended is to serve a true copy of the election petition to the respondents. When the photostat copy of the election petition has been supplied to the petitioner and it bears the signature of election petitioner on each and every page, mere by omission to write words ‘true copy’ will not be fatal. Until and unless the petitioner is able to show that the copy supplied to him is in fact is not a true copy of the election petition. On raising such an objection, the Election Tribunal shall consider the objection after extending an opportunity of hearing to the election petitioner under proviso of Rule 8 of the Rules and if the Election Tribunal is satisfied on perusal of the copy supplied to the respondents that in fact it is not a true copy of the election petition filed before the Election Tribunal, the Election Tribunal shall dismiss the election petition under Rule 8 of the Rules. The omission of writing word true copy when the photostat copy of the election petition is supplied is not fatal. Though the aforesaid procedure ought to have been followed by the election petitioner so that there may not be any confusion in the minds of the respondents that the copy supplied to the respondents is not a true copy of the petition. But it is a curable defect under the proviso of Rule 8, and on extending an opportunity in this regard, it may be cured. In the present case, nothing has been shown by the respondents that any prejudice was caused to him in the matter or in fact the copy supplied to him was not the true copy of the election petition.
9. The Apex Court in Chandrakant Uttam (2005) 2 SCC 188 held that the substantial compliance of the aforesaid provision is enough where the defects in copies were curable or non-fatal in nature, the election petition cannot be dismissed at the threshold for the non-compliance of the provision. Only in case where there is absence of signature of election petition (after prayer and verification) then it is fatal and the election petition may be dismissed but when the election petitioner signed each and every page of the copies of the election petition supplied to the respondents, the defect will not be material, vital or fatal warranting dismissal of election petition at the preliminary stage. The Apex Court in Chandrakant Uttam (supra), held thus:
27. In view of our discussion made above and in the absence of any material to show that true copies of the election petitions were also not filed at the presentation of election petitions, we are unable to hold that there was non-compliance of Section 81(3) of the Act inasmuch as the copies alleged to have been supplied to the returned candidate were not true copies of the petitions.
28. Even if the copies of the election petitions which were alleged to have been served on the respondent No. 1 could be accepted and relied upon then also, in our view, the High Court had committed an error in holding that the election petitions must be rejected for non-compliance of Section 81(3) of the Act on the ground that “true copies” of the election petitions were not served upon the respondent No. 1. As noted herein earlier, the successful candidates/respondent No. 1 in both the election petitions sought rejection of the election petitions inter alia on the following grounds:
(1) Internal Page 10 of Exhibit R.W. 1, which is the copy of the election petition after the prayer clause and verification there is no signature of the election petitioner.
(2) The stamp in respect of the swearing of the affidavit was also absent on the copy of the election petition.
(3) The affidavit accompanying the petition also does not bear the signature of the election petitioners.
In view of the recent pronouncement in Chandrakant Uttam (supra), the defect to write ‘true copies’ in the copies supplied to the respondents, petitioner herein will not be either vital or fatal in nature so as to warrant dismissal of the petition at the threshold.
10. The Collector has rightly held that the respondent (election petitioner) has substantially complied with that Rule 3(2) and the objection of the petitioner herein is without merit. In the aforesaid order, there is no jurisdictional error warranting interference of this Court. This petition is accordingly dismissed with no order as to costs.