JUDGMENT
Misra, J.
1. The appellant, Sant Prasad Singh, filed a petition questioning the validity of the election of the respondent, Dasu Sinha, to the Bihar Legislative Assembly from the Naubatpur Assembly Constituency. The poll was held in the constituency on the 25th February, 1962, and the result was declared on the 28th of February, 1962. The appellant-petitioner made the election petition as a voter from that constituency, the other candidates Being Bhubneshwar Sharma, Tek Narain Lal Yadav, Jugeshwar Prasad, Mahendra Dusadh and J.N. Sahai. The relevant dates can be briefly set out as follows :
20-1-62
—
Last date for filing the nomination papers.
22-1-62
—
Date of scrutiny.
25-2-62
—
Date of polling.
27-2-62
—
Date of counting.
28-2-62
—
Date when the result was announced.
Respondent Dasu Sinha secured 16,723 votes and Bhubneshwar Sharma obtained the next highest number of votes, being 16,422. Thus, the margin between the two was of 301 votes. The grounds mentioned in the election petition for setting aside the election of the respondent were as follows :
(1) false personation of voters; (2) double voting, in the sense that some voters were enrolled in two constituencies and they voted at both the places; (3) the names of some of the voters were expunged from the electoral roll and yet they voted in favour of the respondent; (4) counting of votes not properly done; some invalid votes secured by Dasu Sinha were counted and many valid votes of Bhubneshwar Sharma not counted and (5) the respondent published a pamphlet appealing to the voters in the name of caste as also touching the personal character of the candidates, both of which were corrupt practices within the meaning of Section 123(3) and (4) of the Representation of the People Act (hereinafter called the Act). The next ground was the donation by the respondent of Rs. 201/- to a pustakalaya in village Shambhupur cm the 18th February, 1962. The respondent denied all the allegations.
2. The Election Tribunal of Patna has given a finding against the appellant on all the points except in regard to the publication of the pamphlet appealing in the name of caste to the voters. The Tribunal has also found that the election petition is not maintainable on account of non-compliance of Sub-section (3) of Section 81 of the Act.
3. Learned Counsel for the appellant has taken up the question of maintainability of the election petition as the first point in his argument. He has contended that the application has been held to be not maintainable by the Election Tribunal on the ground that it suffers from the defect of non-compliance with the mandatory provisions of Section 81(3) of the Act, inasmuch as the copy meant for the respondent who is only one in number, was not attested by the petitioner under his own signature to be the true copy of the, original; secondly, it was also not accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice and the particulars thereof as required by the proviso to Subsection (1) of Section 83 of the Act. It is admitted that in the original, which was filed before the Election Commission, there is no defect, but in the copy which was attached to it for being served on the respondent as required under Section 81(3) of the Act, the petitioner did not mention that it was a true copy of the original nor were the particulars in support of the allegation of corrupt practice mentioned in the petition.
The respondent filed before the Election Tribunal on the 6th September, 1962, the copy of the
election petition alleging it to be the copy which was received by him from the Election Commission. A technical objection was, however, raised pa behalf of the petitioner that this copy was inadmissible, alleging that it was not the genuine copy and it was not formally proved to have been the copy served on him. The copy, however, exhibit M, has been held by the Election Tribunal to be admissible on the ground that the respondent Dasu Sinha stated on affidavit that this was the copy which was served on him through the Election Commission. But the petitioner could not swear an affidavit to controvert the allegation. The stamp marks on exhibit M were compared with the original election petition which was forwarded to the Tribunal by the Election Commission and, on a detailed comparison of the two, the Election Tribunal came to the conclusion that this was the copy which was satisfactorily shown by the respondent to have been served on him. It contained the entry that it was a true copy of the original which was certified to be so by the Election Commission and not by the petitioner. Section 81(3) lays down that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission, and every such copy shall be attested by the petitioner under his own signature to be the true copy of the petition. Since there was only one respondent in this case, one copy would have been sufficient. The certification of the copy served on the respondent Dasu Sinha, being a true copy of the original, was given by Sri K.K. Sethi, Under Secretary of the Election Commission, on the 16th of April, 1962.
Mr. Birendra Prasad Sinha appearing for the appellant has contended that assuming that the copy served on the respondent was the copy marked exhibit M and even assuming that the petitioner did not attest it in his own handwriting or under his authority to be a true copy of the original, it was a mere irregularity inasmuch as the copy forwarded to the Election Tribunal by the Election Commission tallies in all respects with the copy served on the respondent and as such the irregularity, if any, is only formal and not real. Section 85, no doubt, lays down that the Election Commission shall dismiss the election petition if it has failed to comply with the provisions of Section 81, and similar power has been given to the Election Tribunal under Section 90(3) of the Act, providing that the Tribunal shall dismiss the election petition which does not comply with the provisions of Section 81, even though it has not been dismissed by the Election Commission under Section 85. The mere fact, therefore, that the Election Commission has not dismissed it, prima facie, would not preclude the Election Tribunal from exercising that power. Taking that view of the defect, the Election Tribunal has held the election petition to be not maintainable.
4. Mr. Sinha has urged that the Election Tribunal has erred in proceeding on this footing. It is true, no doubt, that Sections 85 and 90(3) provide the penalty for non-compliance with the provisions of Section 81(3), but that, however, should be confined to a substantial defect and not a formal defect which has not prejudiced the respondent in the sense that he has not been misled by such omission. The provision to the effect that the election petition shall comply with the requirement of Section 81(3) is merely directory and not mandatory. He has drawn our attention in support of this contention to a decision of the Supreme Court in the case of Kamaraja Nadar v. Kunju
Thevar, 14 ELR 270 at p. 292: (AIR 1958 SC 687 at p. 697) in which the chalan accompanying the election petition showing the deposit of the amount required was made in favour of the Election Commission and not the Secretary of the Election Commission as required under Section 117 of the Act prior to its amendment in 1958. It was urged on behalf of the respondent that the penalty for non-compliance with the provision being the rejection of the election petition and fulfilment of the requirement of the manner in which the election petition was to be drafted and deposit of the amount of security in a particular manner to be made being mandatory, failure to put in the description of the deposit in terms of Section 117 vitiated the election petition and rendered it liable to rejection. Their Lordships of the Supreme Court in the above case, however, held this provision to be directory and not mandatory. The same principle should apply to this case inasmuch as although the original filed before the Election Commission contained the attestation of the petitioner and although the copy to be served on the respondent was not mentioned as true copy of the original under the signature of the petitioner but under the signature of the Under Secretary of the Election Commission, the contents of the two petitions being the same, the respondent was not in the least prejudiced in his defence by this irregularity and, as such, the Tribunal was not correct in holding that the application was not maintainable on account of this defect. The consideration arising in reply to this contention is based on the mandatory provisions of Sections 85 and 90 (3) of the Act and it is urged that where a provision has been made in the Statute itself laying down the penalty for non-compliance with a mandatory provision, it leaves no scope for interpretation by the Court of law as to whether the mandatory provision is as such or directory only although mandatory in forms as came in for discussion in course of the argument. Maxwell on The Interpretation of Statutes at page 362 (11th edition) has made the following statement of the legal position :
“When a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, the question often arises; what intention is to be attributed by inference to the legislature”?
It is thus clear that where a specific penalty has been provided for in a Statute for non-compliance with the particular provision in the Act itself, no discretion is left to the Court to determine whether such a provision is directory or mandatory. Learned Counsel for the appellant has urged, however, that the Supreme Court has taken a different view of the matter. In my opinion, the principle of interpretation governing a case where a mandatory provision is incorporated in the Act, accompanied by the consequences of non-compliance in the self-same Act, leaves no room for interpretation as to whether the mandatory provision can also be directory and this proposition is settled beyond reasonable doubt. If it were not so, there would be no sense in the Legislature laying down the consequence of non-compliance. In the above case, however, the correct position was that putting down the words “Election Commission” in the form of chalan instead of “the Secretary, Election Commission” did not make any difference at all, because the Secretary, Election Commission, had no independent status of his own and the amount was deposited in his favour on behalf of the Election Commission. If the
petitioner, therefore, put down in his election petition the expression “in favour of the Election Commission” instead of “the Secretary, Election Commission,” it did not make any material difference at all and the expression actually used amounted to the Secretary, Election Commission, and vice versa. The question as td whether Section 117 was directory or mandatory as such with! reference to Sections 85 and 90 (3) did not arise and the view of the Court that it was directory and not mandatory was merely in the nature of an obiter dictum. The position has been made clear beyond doubt in the case of Baru Ram v. Smt. Prasanni AIR 1959 SC 93 at p. 100 wherein Gajendragadkar, J., has stated the legal position as follows :
“There is no doubt that in the present casts there was failure on the part of Jai Bhagwan to comply with Section 33 (5) and prima facie Section 36 (2) (b) seems to justify the rejection of his nomination paper on that ground. Section 33 (5) requires She candidate to supply the prescribed copy and Section 36 (2) (b) provides that on his failure to comply with the said requirement, his nomination paper is liable to be rejected. In other words, this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty for his failure to do so. In such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of Section 33 (5) is not mandatory but is directory, because the statute itself has made it clear that failure to comply with the said requirement leads to the rejection of the nomination paper. Whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement
should lead to any other consequence”.
This view has been further clarified as follows :
"Where, however, the statute requires specific facts to be proved in a specific way and it also provides for the consequence of non-compliance
with the said requirement it would be difficult to resist the application of the penalty clause on the ground that such an application is based on a technical approach. Indeed it was precisely this approach which was adopted by this Court in the case of Rattan Anmol Singh v. Atma Ram 1955-1 SCR 481 : (AIR 1954 SC 510) Their Lordships of the Supreme Court have in this case carefully analysed all aspects of the question relating to the technicality involved in an election contest and it is unnecessary to labour this point farther. No doubt in the case of Collector of Monghyr v. Keshav Prasad Goenka, AIR 1962 SC 1694 at p. 1701 occurs the following passage :
“It is needless to add that the employment of the auxiliary verb “shall” is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be
decided not merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the
other provisions of the Act and the general scheme thereof”.
Mr. Gorakh Nath Singh has rightly contended that this passage should be construed to mean only this much that whether the provision is directory or mandatory will depend not merely on the insertion of a penalty after failure to observe the
provision in question but also the general scheme of the Act But it does not go to the length of laying down that where a penalty has been provided for failure to comply with a certain provision, it can be construed, in any case, as directory and not mandatory. The position, however, would be quite different where there is in fact no violation of the spirit of the provision with the reference to a verbal departure or inexactitude as in Kamaraja Nadar’s case 14 ELR 270 : (AIR 1958 SC 687). It may be stated that the decision of the Supreme Court in the case of Kaushalendra Prasad Narain Singh v. Nand Kishore Prasad Singh, 22 ELR 484 (SC) was a case of verbal inexactitude as in the case of Kamraj Nadar. In view of the statement of law as contained in Maxwell referred to above, and as laid down by the Supreme Court in the above case (AIR 1959 SC 93) it must be held that the provision in Clause (3) of Section 81 of the Act laying down that “Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission, and every such copy shall be attested by the petitioner under his signature to be a true copy of the petition.” is a mandatory provision so that the respondent may be certain that the contents of the petition cannot be departed from on any plea and failure to comply with this makes the petition liable to dismissal in terms of Clause (3) of Section 90 of the Act. The Election Tribunal was, therefore, right in coming to that conclusion and the appeal would fail even on this solitary ground.
5. Learned Counsel of the appellant has, however, urged further that the election of the respondent was liable to be set aside on the ground that he published a pamphlet a copy of which is annexure B to the petition, in which he made systematic appeal to the voters to support him on the ground of caste. The respondent is a Kurmi by caste and in the pamphlet, he appealed to the Kurmis, Jadavs, Koeris and Harijans to vote for him on account of his affinity with them. The respondent denied the allegation and brought on record a leaflet (Exhibit J) to show that what he published and circulated among the voters was exhibit 3 and not annexure B, a copy of which was exhibited as Exhibit 9 on behalf of the petitioner. It was urged further that even if exhibit 9 was taken to have been circulated by him, it would not amount to a corrupt practice, because it did not contain any appeal to the voters of any particular caste to cast their votes in his favour. The Tribunal did not accept the plea of the respondent so tar as the publication of exhibit 9 was concerned. Exhibit J has been held by the Tribunal as having been brought into existence subsequently to counteract the case of the petitioner. It may be stated that both the leaflets are headed as
uksfVl tkfr ikafr
(After discussion of evidence His Lordship proceeded 🙂
6. The content of the leflet runs as follows :
^^tkfr ikfr ds uke ls oksV ekxus
okyks ls lko/kku lko/kku lko/kku A HkkbZ;ksa ns’kesa lcls egku laLFkk dkaxzsl gS
A dkaxzsl us fg ns’k dks vktkn fd;k tehunkjh;ka [kre djds xqykeh ds cU/kuks dks
rksMk] ;kstuk cukdj ns’kdks mlhus mUur cuk;k gS A Hkkjr dh izfr”Bk fons’kks
esa Hkh c<h gS A rc dqN gks jgk gS vkSj gksusokyk gS A fdUrq] dqN LokFkhZ
t;pUn cudj ns'kdks rckg vkSj cckZfn djus ij rqys gwq;s gS A bu gFk daMksls
vkidks cpdj jguk pkfg;s A vius oksV ls gh vki dk HkkX; cusxk ;k foxMsxk ;g vkids
thou eju dk iz'u gS A
,d O;fä dq'kokgk tkfr ds uke ij
[kMs gq;s gS vkSj dgrs gS fd ge tkfr dh jk; ls [kMs gq;s gSas A ysfdu ,slh ckr
ugha gS A gekjh vf[ky Hkkjrh; dq'kokgk egklHkk dkaxszl ds lkFk gS A bl fy;s Hkh
lHkh dq'kokgk HkkbZ dkaxzsl dks gh oksV ns fdlh Hkh nwljs dks ugha A
nwljs O;fä ;kno ds uke ij oksV
ekaxrs gS vkSj dgrs gS fd viuh tkfr dh jk; ls [kMs+ gaS A fdUrq vf[ky Hkkjrh; ;kno
egklHkk dkaxzsl ds lkFk gS A bl fy;s lHkh ;kno HkkbZ;ksa dks dkaxzsl dks gh oksV
nsuk vfuok;Z gS A Hkqydj ,d oksV Hkh ;kno HkkbZ nwljs dks u ns nwljks dh oksV
nsuk vius esjs es dqYkgMh ekjuk gS A
frljs HkkbZ vius nqlk/k tkfr ds
uke ij [kM+s gS vkSj tkfr&HkkbZ;ks ls oksV ekaxrs gS A fdUrq gfjtu HkkbZ;ksa
dh lc ls cM+h laLFkk ^^gfjtu lsok la?k** dkaxzsl ds lkFk gS A dkaxszl us gfjtuks
ds fy;s cgqr dqN fd;k gS A bl fy;s izR;sd gfjtu HkkbZ dk izfrKk djuh pkfg;s fd
dsoy ,d ek= gh dkaxzsl dks gh oksV nsaxs A
blh izdkj tkfr ds uke ij oksV
ekax dj ns'k dks cokZn djus okys vkSj yksx Hkh gS A ge lHkh ls turk dks lko/kku
jgdj dsoy ,d ek= dkaxszl dks gh oksV nsuk pkfg;s A ge yksx tksMs cSyokys fu'kku
esa dkaxzsl dks oksV nsaxs A**
An analysis of the leaflet shows that the first paragraph is general in so far as it lands the activities of the Congress which set up respondent No. 1 as a candidate from this constituency. No objection has been raised to paragraph one. Objection has, however, been taken to paragraph two. The sentence occurring in that paragraph is
^^gekjh vf[ky Hkkjrh; dq'kokgk egklHkk dkaxzsl
ds lkFk gS** bl fy;s Hkh lHkh dq'kokgk HkkbZ dkaxzsl dks gh
oksV ns] fdlh Hkh nwljs dks ugh A
Learned Counsel for the appellant has contended that the respondent being a Kurmi by caste, this line refers to appeal by him to his castemen to support his candidature, because The All India Kushwaha Mahasabha supported the Congress. Learned Counsel for the respondent has urged that the respondent is not a Kushwaha, which refers to Koeri, but an Awadhia Kurmi, an altogether different caste, and reference, therefore, to
^^gekjh vf[ky Hkkjrh; dq'kokgk egklHkk**
cannot refer to the caste
to which the respondent belongs. Similar appeal has been made to the Jadav community on the ground that the All India Jadav Mahasabha supported the Congress and the same thing occurs in the last paragraph where appeal has been made
to the Dusadhs and the Harijans in general. So far as paragraph two is concerned, respondent is a Kurmi and Kushwaha refers to Koeris and there is no inter-marriage between the Koeris and the Kurmis. I am, therefore, unable to accede to the argument of Mr. Birendra Prasad Sinha that the respondent referred to his castemen when he said
^^gekjh vf[ky Hkkjrh; dq'kokgk egklHkk**-
Confronted with this difficulty learned Counsel has contended that, in any case, what Section 123 prohibits as a corrupt practice is appeal to voters in the name of caste and creed. Even if the respondent did not belong to the Kushwaha community, and appeal was made to the Jadavas and Harijans as well to vote for him because their caste organisations approved of his candidature which would amount to appealing for votes in the name of caste and would bring this case within the ambit of Sub-section (3) of Section 123. That sub-section is worded as follows :
“The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or, appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate”.
7. It is clear that the expression “for any person on the ground of his religion, race, caste, community or language” distinctly lays down that the appeal to be made by the candidate to the voters to support him should be on the ground that he belongs to a particular religion, caste, etc, In the present case, there is no reference at all to the Kurmis. If the respondents had appealed to the Kurmis to support him on the ground that he was an Awadhia Kurmi and that his castemen should support him on that ground, the case might have been one hit by Sub-section (3). As it is, however, reference to Kusbahas, Yadavas, Dusadhs and other Harijans to support him because their caste organisations supported the Indian National Congress does not appear to me to be covered by Sub-section (3) of Section 123. Moreover, whether the leaflet Exhibit 9, would bring the case within Sub-section (3) would depend upon the construction to be put upon the document read as a whole and not a sentence here and there. After having referred to the various castes, in the leaflet it was mentioned that the voters must not cast their votes in favour of those who demanded their votes on the ground of caste. Such people were out to damage the cause of the country. Avoiding the trap laid by castists, public should cast their votes exclusively in favour of the Congress. In my opinion, even if paragraphs 2, 3 and 4 were construed as asking for votes in the name of castes, the last paragraph of which distinctly exhorted the people not to cast their votes on the ground of castes, etc., would nullify the effect of the appeal in the three preceding paragraphs and, therefore, read as a whole this document would have the effect of warning voters against exercising their franchise under the influence of a caste-feeling and not inviting them to do so on that ground. In my opinion, therefore, the Tribunal came to the correct conclusion in holding that the content of Exhibit 9 could not be regarded as a corrupt practice within the meaning of Sub-section (3) of Section 123 of the Act.
Mr. Gorakh Nath Singh has urged that full particulars of the corrupt practice in respect of this pamphlet having been not disclosed in the election petition, it was not open to the appellant to agitate this question by leading evidence on that point in course of the proceedings before the Election Tribunal. Mr. Birendra Prasad Sinha has referred, in reply, to the decisions in Bhagwan Datt Shastri v. Ram Ratan Gupta, 11 ELR 448: (AIR 1960 SC 200): Sheopat Singh v. Harish Chandra, 16 ELR 103 : (AIR 1958 Raj 324); and, Saw. Ganesan v. M.A. Muthiah Chettiar, 19 ELR 16 (Ele. Trib. Madurai) for the proposition that where full particulars of corrupt practice are not supplied in the election petition, but evidence on both sides is allowed to be given and taken, the petition cannot be dismissed for want of full particulars unless the want of full particulars has caused material prejudice. In my opinion, there is no dispute on this matter and the proposition of law contended for on behalf of the appellant by Mr. Birendra Prasad Sinha must be accepted. This, however, is immaterial so far as the decision of this appeal is concerned. The issues Nos. 1 and 7 alone having been pressed by Mr. Birendra Prasad Sinha and my conclusion, being in agreement with the finding of the Tribunal, it must be held that the appeal has no merit and is accordingly dismissed.
Bahadur, J.
8. I agree.