PETITIONER:
RAJENDRA SINGH & ORS. ETC.
Vs.
RESPONDENT:
SMT. USHA RANI & ORS. ETC.
DATE OF JUDGMENT27/02/1984
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
MISRA RANGNATH
CITATION:
1984 AIR 956 1984 SCR (3) 22
1984 SCC (3) 339 1984 SCALE (1)440
CITATOR INFO :
R 1991 SC1557 (29)
ACT:
Representation of the People Act 1951, Sections
81(3) and 86.
Election Petition-Service of true and exact copy of
election petition on respondents-Duty of election
petitioner-Consequences of failure of-Dismissal in limini of
election petition.
Amendment of election petition-Whether permissible.
HEADNOTE:
The respondent filed an Election Petition for setting
aside the election of the appellant to the State Legislative
Assembly. The appellant filed a petition for rejection of
the said Election Petition in limine under Section 86 of the
Representation of the People Act, 1951 on the ground that
the copy of the petition served on him was neither attested
to be a true copy nor a correct copy of the original
petition, as contemplated by the provisions contained in
section 81(3). The case of the respondent-election
petitioner was that two sets of copies were filed, one set
being correct as required by the Act and the other set
incorrect containing vital omissions and mistakes, the
appellant having got a correct copy as required by section
81(3) there was compliance with the requirement of the
section.
The High Court held that as the respondent had filed
correct copies, the provisions of section 81(3) were not
violated and it was for the appellant to have chosen the
correct copy from the two sets and invoked the doctrine of
benefit of-doubt in order to cure the non-compliance of the
mandatory provisions of section 81(3), and rejected the
application to dismiss the Election Petition.
In the connected appeals, the 1st Respondent had filed
separate Election Petitions for setting aside the election
of the appellants to the Rajya Sabha. When the said
petitions came up before the High Court for hearing an
application was made by the respondent for amendment of the
original petition by insertion of page 17 which was allowed.
The appellants filed petitions before the Election judge for
rejecting the Election Petition on the ground that no
amendment could be allowed which would have the effect of
defeating or bypassing the provisions of section 81(3) of
the Act, and that the original petition served on the
appellants did not contain page 17 and hence was not the
correct and exact copy of the election petition.
The High Court rejected the application to dismiss the
Election Petition.
Allowing the Appeals.
23
^
HELD: 1. The mandate contained in section 81(3) is
clear and specific and requires that every copy of the
election petition must be a true and exact copy of the
petition. The consequences of this mandatory provision
cannot be got over by praying for an amendment of the
election petition because that would defeat the very object
and purpose of section 81(3). [28 F, 29 B]
In the instant cases, the judgment of the High Court
are set aside, and the election petitions dismissed in
limine under section 86 of the Act. [30 D]
Sharif-ud-Din v. Abdul Gani Lone, [1980] 1 SCR 1177;
referred to.
2. Section 81(3) and 86 of the Act do not contemplate
the filing of incorrect copies and if an election petitioner
disregards the mandate contained in section 81(3) by filing
incorrect copies, he takes the risk of the petition being
dismissed in limine under section 86. It is no part of the
duty of the respondent to wade through the entire record in
order to find out which is the correct copy. If out of the
copies filed, the respondent's copy is found to be an
incorrect one, it amounts to non-compliance of the
provisions of section 81(3) which is sufficient to entail a
dismissal of the election petition at the behest of the
respondent.
[27 B; C]
3. If an election petitioner files a number of copies,
some of which may be correct and some may be incorrect, it
is his duty to see that the copy served on the respondent is
a correct one. [27 A]
In the instant case, it has not been proved by the
respondent that correct copies of the election petition had
been filed or, that the appellant got the correct copy and
not the incorrect one, in the face of the clear and
categorical assertion by him that he did not receive the
correct copy. [27 F]
4. The mandate contained in Section 81(3) cannot be
equated with s. 537 of the Code of Criminal Procedure which
makes certain omissions as a curable irregularity. No. such
concept can be imported into the election law because the
object of the law is that the electoral process should not
be set at naught and an elected candidate should not be
thrown out unless the grounds mentioned in the Act are
clearly and fully proved. [27 D]
5. Parliament in its wisdom has not made any attempt to
interfere with the preemptive and mandatory provisions of
section 81 (3) resulting in the consequence of dismissal of
the petition under section 86 despite the observations in
Satya Narain. v. Dhija Ram & Ors. [1974] 3 SCR 20. [30 C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3702
(NCE) of 1982.
Appeal by Special leave from the judgment and order
dated the 2nd August, 1983 of the Allahabad High Court in
Election Petition No. 28 of 1980.
24
With
Civil Appeal No. 9 of 1983
Appeal by Special leave from the Judgment and Order
dated the 15th October/Ist December, 1982 of the Allahabad
High Court in Election Petition No. 1 of 1982.
And
Civil Appeal No. 10 of 1983
Appeal by Special leave from the Judgment and Order
dated the 15th October, 1982 and 1st December, 1982 of the
Allahabad High Court in Election Petition No. 1 of 1982.
S.N. Kacker, R.L. Srivastava, Rajesh and V.K. Verma for
the Appellants in CA. No. 3702 of 1982.
Appellant in person in CA. No. 10 of 1983.
M.C. Bhandare and V.K. Verma for the Appellant in CA.
9/83.
Yogeshwar Prasad, Ms. R. Chhabra, Sujat Ullah and K.K.
Gupta for the Respondents.
The Judgment of the Court was delivered by
FAZAL ALI J. As these appeals involve common points of
law, we propose to decide them by one judgment.
Civil Appeal No. 3702 of 1982
This appeal arises out of election to ‘375-Iglas
Assembly Constituency, Aligarh to the Uttar Pradesh
Legislative Assembly’ which was held on May 28, 1980 and the
result of which was declared on June 1, 1980, in which the
appellant was declared elected. Respondent No. 1, Smt. Usha
Rani had also contested the above mentioned election but was
defeated. Aggrieved by the result of the aforesaid election,
Smt. Usha Rani filed an election petition on
25
July 15, 1980, at the residence of the Registrar of the
Allahabad High Court. Thereafter, on September 24, 1981, the
appellant filed a petition before the High Court for
rejection of the election petition filed by the respondent,
on the ground that the copy of the petition served on him
was neither attested to be a true copy nor a correct copy of
the original petition, as contemplated by the provisions
contained in s. 81 (3) of the Representation of the People
Act (hereinafter referred to as the ‘Act’) and hence the
election petition should be rejected in limine under s. 86
of the Act. Sub-s. (3) of s. 81 may be extracted thus;
“81. Presentation of petitions-
XX XX XX
(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.”
An analysis of this sub-section would reveal that every
election petition should be accompanied by as many copies as
there are respondents and that every copy should be attested
by the petitioner under his own signature. If these
requirements are not followed strictly and literally, it
would result in dismissal of the election petition without
any trial as provided by s. 86 of the Act.
In the instant case, the main point raised by the
appellant was that two sets of copies were filed by the
election-petitioner in the High Court, one set being a
correct and exact one and the other containing vital
omissions and mistakes. This position is not disputed by the
respondent (election-petitioner). In reply to the
preliminary objection raised by the appellant, the
respondent rebutted the charge on the ground that the
appellant had got a correct copy as required by s. 81 (3) of
the Act and, therefore, he could not be heard to complain of
any non-compliance with the provisions of the aforesaid sub-
section.
After going through the judgment of the High Court it
is not clear whether the appellant received the correct copy
of the petition or an incorrect one. On the other hand, on
the evidence and admitted facts the following circumstances
appear to be undisputed;
26
(a) that two sets of copies were filed by the
election-petitioner in the High Court,
(b) that one set was correct as required by the Act,
and
(c) the other set was incorrect as it contained vital
omissions and mistakes regarding the details of
corrupt practices alleged against the appellant.
There is, however, no clear evidence or finding to show
that the copies which were received by the appellant were
correct or incorrect and there is some divergence on this
point. The High Court seems to have come to the conclusion
that as the respondent had filed correct copies also, she
did not violate the provisions of s. 81 (3) and it was for
the appellant to have chosen the correct copy from the two
sets. The learned Judge of the High Court has also invoked
the doctrine of benefit-of-doubt in order to cure the non-
compliance of the mandatory provisions of s. 81 (3).
On going through the relevant evidence we find that
there is overwhelming material to show that the appellant
did not receive the correct copy and even the respondent in
her evidence did not categorically deny this fact. The
respondent in her evidence before the Court admitted that
out of the 22-23 copies filed by her, 10 copies were correct
and were duly signed by her and the rest were left with the
counsel with instructions to get them corrected. Therefore,
she was not at all sure whether all the copies were
corrected or not. She further admitted that in some of the
copies she did not initial the various corrections and that
Exts. R-1, R-2, R-3 and R-4 were not out of those 10 copies
which had been filed by her along with the election petition
at the residence of the Registrar. There is, however, clear
evidence to show that the copies which were received by the
appellant were Exts. R-1 to R-4, which admittedly were not
correct copies of the election petition.
This being the position, it is manifest that the
appellant did not receive the correct copies as contemplated
by s. 81 (3) of the Act. The respondent has also not been
able to prove that the copies served on the appellant were
out of the 10 corrected copies which she had signed and
filed. It appears that in view of a large number of copies
of the petition having been filed, there was an utter
confusion as to which one was correct and which was not. It
is obvious that if an
27
election-petitioner files a number of copies, some of which
may be correct and some may be incorrect, it is his duty to
see that the copy served on the respondent is a correct one.
A perusal of ss. 81 (3) and 86 of the Act gives the
impression that they do not contemplate filing of incorrect
copies at all and if an election-petitioner disregards the
mandate contained in s. 81 (3) by filing incorrect copies,
he takes the risk of the petition being dismissed in limine
under s. 86. It is no part of the duty of the respondent to
wade through the entire record in order to find out which is
the correct copy. If out of the copies filed, the
respondent’s copy is found to be an incorrect one, it
amounts to non-compliance of the provisions of s. 81 (3)
which is sufficient to entail a dismissal of the election
petition at the behest.
Hence, the mandate contained in s. 81 (3) cannot be
equated with s. 537 of the Code of Criminal Procedure which
makes certain omissions as a curable irregularity. No such
concept can be imported into the election law because the
object of the law is that the electoral process should not
be set at naught and an elected candidate should not be
thrown out unless the grounds mentioned in the Act are
clearly and fully proved. An election dispute concerns the
entire constituency and in a parliamentary democracy it is
of paramount importance that duly elected representatives
should be available to share the responsibility in the due
discharge of their duties. That is why the law provides
time-bound disposal of election disputes and holds out a
mandate for procedural compliance.
In these circumstances, therefore, in the instant case
there was absolutely no justification for the learned Judge
to have invoked the doctrine of benefit-of-doubt. We are
satisfied that it has not been proved by the respondent that
she filed correct copies of the election petition or, for
that matter the appellant got the correct copy and not the
incorrect one, in the face of the clear and categorical
assertion by him that he did not receive the correct copy.
For these reasons, therefore, the appeal is allowed and
the election petition filed by the respondent is dismissed
under s. 86 of the Act. There will be no order as to costs.
Civil Appeal Nos. 9 & 10 of 1983
There two connected appeals also involve more or less
the same point of law as was involved in Civil Appeal No.
3702 of 1982, with the difference that in Civil Appeal No. 9
of 1983, J.P. Goyal,
28
and in Civil Appeal No. 10 of 1983, Bishamber Nath Pandey,
(appellants) were declared elected to the Rajya Sabha on
March 29, 1982. An election petition to set aside their
election was filed on May 10, 1982 by the Respondent (Raj
Narain) making a number of allegations. When the case came
up before the Court on 5.7.82, an application was made by
the respondents for amendment of the original petition by
insertion of page 17, which was allowed. The appellants
filed a petition before the Election Judge for rejecting the
election petition of the respondents because no amendment
could be allowed which would have the effect of defeating or
bypassing the provisions of s.81 (3) of the Representation
of the People Act (for short, referred to as the ‘Act’).
It may be stated here that Shri Bishamber Nath Pandey
has in the meantime been appointed as Governor of Orissa and
has resigned his membership of the Rajya Sabha, Therefore,
as requested at the Bar, his name is deleted from the
category of appellants.
The main argument on behalf of the remaining appellants
was that 11 copies of the election petition were filed on
10.5.1982 and although the copies which were served on them
did contain page 17 yet the original petition did not
contain page 17 and was sought to be added only by way of
approaching the Court for amendment of the petition. It was
further contended that the Court had no jurisdiction to
accede to the prayer for amendment of the petition when at
the time of filing the petition, the mandate contained in s.
81 (3) was not complied with. In other words, the position
seems to be that while the copies which were served on the
appellants did contain page 17 yet the original election
petition did not contain page 17. This being the admitted
position, it could not be said that the copies served on the
appellants were the correct and exact copies of the election
petition. The provision of s. 81 (3) is clear and specific
and requires that every copy of the election Petition must
be a true and exact copy of the petition.
The learned counsel for the respondent submitted that
this is a highly technical objection and did not cause any
prejudice to the appellants because so far as their copies
were concerned they already contained page 17. Mr. Bhandare,
counsel for the appellants, however, submitted that this is
beside the point and does not cure the invalidity of the
election petition filed on 10.5.82. The mandate contained in
s. 81 (3) enjoins that there should be no difference of
29
any kind whatsoever barring some typographical or
insignificant omissions between the petition filed and the
copy served on the respondent. If an entire page is missing
in the petition but it is there in the copy served on the
respondent, then it is manifest that the copy served was not
an exact and true copy of the petition. The consequences of
the mandatory provisions of s.81 (3) could not be got over
by praying for an amendment of the election petition because
that would defeat the very object and purpose of s. 81 (3).
It is not disputed that this discrepancy between the
election petition and the copies served on the appellants
was undoubtedly there. In these circumstances, the High
Court was wrong and committed a serious error of law in
allowing the amendment of the petition. The High Court
should have tried to appreciate the tenor and spirit of the
mandate contained in s.81 (3) of the Act. In the case of
Sharif-ud-Din v. Abdul Gani Lone(1) this Court dismissed the
election petition only on the ground that the words
“attested to be a true copy” were not signed by the
election-petitioner and held that this was not a sufficient
compliance with the provisions of s.89 (3) of the Jammu &
Kashmir Representation of the People Act, which is the same
as s.81 (3) of the Act. In the instant case, the
inconsistency is much greater than in Sharif-ud-Din’s case.
Similarly, in an earlier case of Satya Narain v. Dhuja
Ram & Ors(2)., this Court held as follows:-
“If there is any halt or arrest in progress of the
case, the object of the Act will be completely
frustrated. We are, therefore, clearly of opinion
that the 1st part of section 81 (3) with which we
are mainly concerned in this appeal is a
peremptory provision and total non-compliance with
the same will entail dismissal of the election
petition under section 86 of the Act”.
This view has been consistently taken all through in
all the decided cases of this Court so far. Reliance was,
however, placed by the counsel for the respondents on the
following observations of Dwivedi, J., in Satya Narain’s
case:
30
“Our decision restores that primacy of procedure
over justice. It make s.86 (1) a tyrannical
master. The rigidity of the rule of precedent ties
me to its chains. My only hope now is that
Parliament would make a just choice between the
social interest in the supply of copies by the
election petitioner alongwith his election
petition and the social interest in the purity of
election by excluding s.81 (3) from the purview of
s.86 (1) of the Act.
The aforesaid observations express a pious wish but do
not at all detract from what has been decided in this case
and with which the learned Judge also agreed. Despite these
observations, the Parliament in its wisdom has not made any
attempt to interfere with the peremptive and mandatory
provisions of s. 81 (3) resulting in the consequence of
dismissal of the petition under s.86 of the Act.
For the reasons given above, we allow the appeals, set
aside the judgment of the High Court and dismiss the
election petitions in limine under s.86 of the Act. In the
circumstances, there will be no order as to costs.
N.V.K. Appeals allowed.
31