{"id":229827,"date":"1984-02-27T00:00:00","date_gmt":"1984-02-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-singh-ors-etc-vs-smt-usha-rani-ors-etc-on-27-february-1984"},"modified":"2019-04-13T06:56:05","modified_gmt":"2019-04-13T01:26:05","slug":"rajendra-singh-ors-etc-vs-smt-usha-rani-ors-etc-on-27-february-1984","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-singh-ors-etc-vs-smt-usha-rani-ors-etc-on-27-february-1984","title":{"rendered":"Rajendra Singh & Ors. Etc vs Smt. Usha Rani & Ors. Etc on 27 February, 1984"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rajendra Singh & Ors. Etc vs Smt. Usha Rani & Ors. Etc on 27 February, 1984<\/div>\n
Equivalent citations: 1984 AIR 956, \t\t 1984 SCR (3)\t 22<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nRAJENDRA SINGH & ORS. ETC.\n\n\tVs.\n\nRESPONDENT:\nSMT. USHA RANI & ORS. ETC.\n\nDATE OF JUDGMENT27\/02\/1984\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nVARADARAJAN, A. (J)\nMISRA RANGNATH\n\nCITATION:\n 1984 AIR  956\t\t  1984 SCR  (3)\t 22\n 1984 SCC  (3) 339\t  1984 SCALE  (1)440\n CITATOR INFO :\n R\t    1991 SC1557\t (29)\n\n\nACT:\n\t  Representation of  the People\t Act 1951,  Sections\n81(3) and 86.\n     Election Petition-Service\tof true\t and exact  copy  of\nelection   petition    on   respondents-Duty   of   election\npetitioner-Consequences of failure of-Dismissal in limini of\nelection petition.\n     Amendment of election petition-Whether permissible.\n\n\n\nHEADNOTE:\n     The respondent  filed an  Election Petition for setting\naside the election of the appellant to the State Legislative\nAssembly. The  appellant filed\ta petition  for rejection of\nthe said Election Petition in limine under Section 86 of the\nRepresentation of  the People  Act, 1951  on the ground that\nthe copy  of the petition served on him was neither attested\nto be  a true  copy nor\t a  correct  copy  of  the  original\npetition, as  contemplated by  the provisions  contained  in\nsection\t 81(3).\t  The  case   of   the\t respondent-election\npetitioner was\tthat two  sets of copies were filed, one set\nbeing correct  as required  by the  Act and  the  other\t set\nincorrect  containing  vital  omissions\t and  mistakes,\t the\nappellant having  got a\t correct copy as required by section\n81(3) there  was compliance  with  the\trequirement  of\t the\nsection.\n     The High  Court held  that as  the respondent had filed\ncorrect copies,\t the provisions\t of section  81(3) were\t not\nviolated and  it was  for the  appellant to  have chosen the\ncorrect copy  from the\ttwo sets and invoked the doctrine of\nbenefit of-doubt  in order to cure the non-compliance of the\nmandatory provisions  of section  81(3),  and  rejected\t the\napplication to dismiss the Election Petition.\n     In the  connected appeals, the 1st Respondent had filed\nseparate Election  Petitions for  setting aside the election\nof  the\t appellants  to\t the  Rajya  Sabha.  When  the\tsaid\npetitions came\tup before  the High  Court  for\t hearing  an\napplication was\t made by the respondent for amendment of the\noriginal petition by insertion of page 17 which was allowed.\nThe appellants filed petitions before the Election judge for\nrejecting the  Election\t Petition  on  the  ground  that  no\namendment could\t be allowed  which would  have the effect of\ndefeating or  bypassing the  provisions of  section 81(3) of\nthe Act,  and that  the\t original  petition  served  on\t the\nappellants did\tnot contain  page 17  and hence\t was not the\ncorrect and exact copy of the election petition.\n     The High  Court rejected the application to dismiss the\nElection Petition.\n     Allowing the Appeals.\n23\n^\n     HELD: 1.  The mandate  contained in  section  81(3)  is\nclear and  specific and\t requires that\tevery  copy  of\t the\nelection petition  must be  a true  and exact  copy  of\t the\npetition.  The\tconsequences  of  this\tmandatory  provision\ncannot be  got over  by praying\t for  an  amendment  of\t the\nelection petition  because that would defeat the very object\nand purpose of section 81(3). [28 F, 29 B]\n     In the  instant cases,  the judgment  of the High Court\nare set\t aside, and  the  election  petitions  dismissed  in\nlimine under section 86 of the Act. [30 D]\n     Sharif-ud-Din v.  Abdul Gani  Lone,<\/a> [1980]\t 1 SCR 1177;\nreferred to.\n     2. Section\t 81(3) and  86 of the Act do not contemplate\nthe filing of incorrect copies and if an election petitioner\ndisregards the\tmandate contained in section 81(3) by filing\nincorrect copies,  he takes  the risk  of the petition being\ndismissed in  limine under  section 86. It is no part of the\nduty of\t the respondent to wade through the entire record in\norder to  find out  which is the correct copy. If out of the\ncopies filed,  the respondent's\t copy  is  found  to  be  an\nincorrect  one,\t  it  amounts\tto  non-compliance   of\t the\nprovisions of  section 81(3) which is sufficient to entail a\ndismissal of  the election  petition at\t the behest  of\t the\nrespondent.\n\t\t\t\t\t\t   [27 B; C]\n     3. If  an election petitioner files a number of copies,\nsome of\t which may  be correct and some may be incorrect, it\nis his duty to see that the copy served on the respondent is\na correct one. [27 A]\n     In the  instant case,  it has  not been  proved by\t the\nrespondent that\t correct copies of the election petition had\nbeen filed  or, that  the appellant got the correct copy and\nnot the\t incorrect  one,  in  the  face\t of  the  clear\t and\ncategorical assertion  by him  that he\tdid not\t receive the\ncorrect copy. [27 F]\n     4. The  mandate contained\tin Section  81(3) cannot  be\nequated with  s. 537 of the Code of Criminal Procedure which\nmakes certain  omissions as a curable irregularity. No. such\nconcept can  be imported  into the  election law because the\nobject of  the law  is that the electoral process should not\nbe set\tat naught  and an  elected candidate  should not  be\nthrown out  unless the\tgrounds mentioned  in  the  Act\t are\nclearly and fully proved. [27 D]\n     5. Parliament in its wisdom has not made any attempt to\ninterfere with\tthe preemptive\tand mandatory  provisions of\nsection 81  (3) resulting in the consequence of dismissal of\nthe petition  under section  86 despite\t the observations in\nSatya Narain. v. Dhija Ram & Ors.<\/a> [1974] 3 SCR 20. [30 C]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.\t3702
\n(NCE) of 1982.\n<\/p>\n
     Appeal by\tSpecial leave  from the\t judgment and  order
\ndated the  2nd August,\t1983 of\t the Allahabad High Court in
\nElection Petition No. 28 of 1980.\n<\/p>\n
24<\/span><\/p>\n
\t\t\t    With
\n\t\t Civil Appeal No. 9 of 1983
\n     Appeal by\tSpecial leave  from the\t Judgment and  Order
\ndated the  15th October\/Ist  December, 1982 of the Allahabad
\nHigh Court in Election Petition No. 1 of 1982.\n<\/p>\n
\t\t\t    And
\n\t\tCivil Appeal No. 10 of 1983
\n     Appeal by\tSpecial leave  from the\t Judgment and  Order
\ndated the  15th October,  1982 and 1st December, 1982 of the
\nAllahabad High Court in Election Petition No. 1 of 1982.\n<\/p>\n
     S.N. Kacker, R.L. Srivastava, Rajesh and V.K. Verma for
\nthe Appellants in CA. No. 3702 of 1982.\n<\/p>\n
     Appellant in person in CA. No. 10 of 1983.\n<\/p>\n
     M.C. Bhandare  and V.K.  Verma for the Appellant in CA.
\n9\/83.\n<\/p>\n
     Yogeshwar Prasad,\tMs. R. Chhabra, Sujat Ullah and K.K.
\nGupta for the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     FAZAL ALI\tJ. As these appeals involve common points of
\nlaw, we propose to decide them by one judgment.
\nCivil Appeal No. 3702 of 1982
\n     This  appeal  arises  out\tof  election  to  ‘375-Iglas
\nAssembly  Constituency,\t  Aligarh  to\tthe  Uttar   Pradesh
\nLegislative Assembly’ which was held on May 28, 1980 and the
\nresult of  which was  declared on June 1, 1980, in which the
\nappellant was  declared elected. Respondent No. 1, Smt. Usha
\nRani had also contested the above mentioned election but was
\ndefeated. Aggrieved by the result of the aforesaid election,
\nSmt. Usha Rani filed an election petition on
\n25<\/span>
\nJuly 15,  1980, at  the residence  of the  Registrar of\t the
\nAllahabad High Court. Thereafter, on September 24, 1981, the
\nappellant  filed  a  petition  before  the  High  Court\t for
\nrejection of  the election petition filed by the respondent,
\non the\tground that  the copy  of the petition served on him
\nwas neither attested to be a true copy nor a correct copy of
\nthe original  petition, as  contemplated by  the  provisions
\ncontained in  s. 81  (3) of the Representation of the People
\nAct (hereinafter  referred to  as the  ‘Act’) and  hence the
\nelection petition  should be  rejected in limine under s. 86
\nof the Act. Sub-s. (3) of s. 81 may be extracted thus;\n<\/p>\n
\t       “81. Presentation of petitions-\n<\/p><\/blockquote>\n
\t\t    XX\t       XX\t XX
\n\t       (3)  Every   election   petition\t  shall\t  be
\n\t  accompanied by as many copies thereof as there are
\n\t  respondents mentioned\t in the\t petition, and every
\n\t  such copy  shall be  attested\t by  the  petitioner
\n\t  under his  own signature  to be a true copy of the
\n\t  petition.”<\/p><\/blockquote>\n
     An analysis of this sub-section would reveal that every
\nelection petition should be accompanied by as many copies as
\nthere are respondents and that every copy should be attested
\nby  the\t  petitioner  under  his  own  signature.  If  these
\nrequirements are  not followed\tstrictly and  literally,  it
\nwould result  in dismissal  of the election petition without
\nany trial as provided by s. 86 of the Act.\n<\/p>\n
     In the  instant case,  the main  point  raised  by\t the
\nappellant was  that two\t sets of  copies were  filed by\t the
\nelection-petitioner in\tthe High  Court,  one  set  being  a
\ncorrect\t and  exact  one  and  the  other  containing  vital
\nomissions and mistakes. This position is not disputed by the
\nrespondent   (election-petitioner).    In   reply   to\t the
\npreliminary  objection\t raised\t by   the   appellant,\t the
\nrespondent rebutted  the  charge  on  the  ground  that\t the
\nappellant had got a correct copy as required by s. 81 (3) of
\nthe Act and, therefore, he could not be heard to complain of
\nany non-compliance with the provisions of the aforesaid sub-
\nsection.\n<\/p>\n
     After going  through the  judgment of the High Court it
\nis not clear whether the appellant received the correct copy
\nof the\tpetition or  an incorrect one. On the other hand, on
\nthe evidence  and admitted facts the following circumstances
\nappear to be undisputed;\n<\/p>\n
26<\/span><\/p>\n
     (a)  that\ttwo   sets  of\tcopies\twere  filed  by\t the
\n\t  election-petitioner in the High Court,\n<\/p><\/blockquote>\n
     (b)  that one  set was  correct as required by the Act,
\n\t  and\n<\/p><\/blockquote>\n
     (c)  the other  set was incorrect as it contained vital
\n\t  omissions and\t mistakes regarding  the details  of
\n\t  corrupt practices alleged against the appellant.<\/p><\/blockquote>\n
     There is, however, no clear evidence or finding to show
\nthat the  copies which\twere received  by the appellant were
\ncorrect or  incorrect and  there is  some divergence on this
\npoint. The  High Court\tseems to have come to the conclusion
\nthat as\t the respondent\t had filed  correct copies also, she
\ndid not\t violate the  provisions of s. 81 (3) and it was for
\nthe appellant  to have\tchosen the correct copy from the two
\nsets. The  learned Judge  of the High Court has also invoked
\nthe doctrine  of benefit-of-doubt  in order to cure the non-
\ncompliance of the mandatory provisions of s. 81 (3).\n<\/p>\n
     On going  through the  relevant evidence  we find\tthat
\nthere is  overwhelming material\t to show  that the appellant
\ndid not\t receive the correct copy and even the respondent in
\nher evidence  did not  categorically  deny  this  fact.\t The
\nrespondent in  her evidence  before the\t Court admitted that
\nout of the 22-23 copies filed by her, 10 copies were correct
\nand were  duly signed by her and the rest were left with the
\ncounsel with  instructions to get them corrected. Therefore,
\nshe was\t not  at  all  sure  whether  all  the\tcopies\twere
\ncorrected or  not. She\tfurther admitted that in some of the
\ncopies she  did not initial the various corrections and that
\nExts. R-1,  R-2, R-3 and R-4 were not out of those 10 copies
\nwhich had been filed by her along with the election petition
\nat the\tresidence of the Registrar. There is, however, clear
\nevidence to  show that the copies which were received by the
\nappellant were\tExts. R-1  to R-4, which admittedly were not
\ncorrect copies of the election petition.\n<\/p>\n
     This being\t the  position,\t it  is\t manifest  that\t the
\nappellant did not receive the correct copies as contemplated
\nby s.  81 (3)  of the  Act. The respondent has also not been
\nable to\t prove that  the copies served on the appellant were
\nout of\tthe 10\tcorrected copies  which she  had signed\t and
\nfiled. It  appears that\t in view of a large number of copies
\nof the\tpetition having\t been  filed,  there  was  an  utter
\nconfusion as  to which one was correct and which was not. It
\nis obvious that if an
\n27<\/span>
\nelection-petitioner files  a number of copies, some of which
\nmay be\tcorrect and some may be incorrect, it is his duty to
\nsee that the copy served on the respondent is a correct one.
\nA perusal  of ss.  81 (3)  and\t86  of\tthe  Act  gives\t the
\nimpression that\t they do not contemplate filing of incorrect
\ncopies at  all and  if an election-petitioner disregards the
\nmandate contained  in s.  81 (3) by filing incorrect copies,
\nhe takes  the risk of the petition being dismissed in limine
\nunder s.  86. It is no part of the duty of the respondent to
\nwade through the entire record in order to find out which is
\nthe  correct   copy.  If   out\tof  the\t copies\t filed,\t the
\nrespondent’s copy  is found  to\t be  an\t incorrect  one,  it
\namounts to  non-compliance of  the provisions  of s.  81 (3)
\nwhich is  sufficient to\t entail a  dismissal of the election
\npetition at the behest.\n<\/p>\n
     Hence, the\t mandate contained  in s.  81 (3)  cannot be
\nequated with  s. 537 of the Code of Criminal Procedure which
\nmakes certain  omissions as  a curable irregularity. No such
\nconcept can  be imported  into the  election law because the
\nobject of  the law  is that the electoral process should not
\nbe set\tat naught  and an  elected candidate  should not  be
\nthrown out  unless the\tgrounds mentioned  in  the  Act\t are
\nclearly and  fully proved.  An election dispute concerns the
\nentire constituency  and in  a parliamentary democracy it is
\nof paramount  importance that  duly elected  representatives
\nshould be  available to\t share the responsibility in the due
\ndischarge of  their duties.  That is  why the  law  provides
\ntime-bound disposal  of election  disputes and\tholds out  a
\nmandate for procedural compliance.\n<\/p>\n
     In these  circumstances, therefore, in the instant case
\nthere was  absolutely no justification for the learned Judge
\nto have\t invoked the  doctrine of  benefit-of-doubt. We\t are
\nsatisfied that it has not been proved by the respondent that
\nshe filed  correct copies  of the  election petition or, for
\nthat matter  the appellant  got the correct copy and not the
\nincorrect one,\tin the\tface of\t the clear  and\t categorical
\nassertion by him that he did not receive the correct copy.\n<\/p>\n
     For these reasons, therefore, the appeal is allowed and
\nthe election  petition filed  by the respondent is dismissed
\nunder s. 86 of the Act. There will be no order as to costs.
\nCivil Appeal Nos. 9 & 10 of 1983
\n     There two\tconnected appeals  also involve more or less
\nthe same  point of  law as  was involved in Civil Appeal No.
\n3702 of 1982, with the difference that in Civil Appeal No. 9
\nof 1983, J.P. Goyal,
\n28<\/span>
\nand in\tCivil Appeal  No. 10 of 1983, Bishamber Nath Pandey,
\n(appellants) were  declared elected  to the  Rajya Sabha  on
\nMarch 29,  1982. An  election petition\tto set\taside  their
\nelection was  filed on\tMay 10,\t 1982 by the Respondent (Raj
\nNarain) making\ta number  of allegations. When the case came
\nup before  the Court  on 5.7.82,  an application was made by
\nthe respondents\t for amendment\tof the\toriginal petition by
\ninsertion of  page 17,\twhich was  allowed.  The  appellants
\nfiled a petition before the Election Judge for rejecting the
\nelection petition  of the  respondents because\tno amendment
\ncould be allowed which would have the effect of defeating or
\nbypassing the  provisions of  s.81 (3) of the Representation
\nof the People Act (for short, referred to as the ‘Act’).\n<\/p>\n
     It may  be stated\there that Shri Bishamber Nath Pandey
\nhas in the meantime been appointed as Governor of Orissa and
\nhas resigned  his membership  of the Rajya Sabha, Therefore,
\nas requested  at the  Bar, his\tname  is  deleted  from\t the
\ncategory of appellants.\n<\/p>\n
     The main argument on behalf of the remaining appellants
\nwas that  11 copies  of the  election petition were filed on
\n10.5.1982 and  although the copies which were served on them
\ndid contain  page 17  yet  the\toriginal  petition  did\t not
\ncontain page  17 and  was sought  to be added only by way of
\napproaching the\t Court for amendment of the petition. It was
\nfurther contended  that the  Court had\tno  jurisdiction  to
\naccede to  the prayer  for amendment of the petition when at
\nthe time of filing the petition, the mandate contained in s.
\n81 (3)\twas not\t complied with. In other words, the position
\nseems to  be that  while the copies which were served on the
\nappellants did\tcontain page  17 yet  the original  election
\npetition did  not contain  page 17.  This being the admitted
\nposition, it could not be said that the copies served on the
\nappellants were the correct and exact copies of the election
\npetition. The  provision of  s. 81 (3) is clear and specific
\nand requires  that every  copy of the election Petition must
\nbe a true and exact copy of the petition.\n<\/p>\n
     The learned  counsel for  the respondent submitted that
\nthis is\t a highly  technical objection and did not cause any
\nprejudice to  the appellants  because so far as their copies
\nwere concerned they already contained page 17. Mr. Bhandare,
\ncounsel for  the appellants, however, submitted that this is
\nbeside the  point and  does not\t cure the  invalidity of the
\nelection petition filed on 10.5.82. The mandate contained in
\ns. 81 (3) enjoins that there should be no difference of
\n29<\/span>
\nany  kind   whatsoever\t barring   some\t  typographical\t  or
\ninsignificant omissions\t between the  petition filed and the
\ncopy served  on the respondent. If an entire page is missing
\nin the\tpetition but  it is  there in the copy served on the
\nrespondent, then it is manifest that the copy served was not
\nan exact  and true copy of the petition. The consequences of
\nthe mandatory  provisions of  s.81 (3) could not be got over
\nby praying for an amendment of the election petition because
\nthat would  defeat the very object and purpose of s. 81 (3).
\nIt  is\tnot  disputed  that  this  discrepancy\tbetween\t the
\nelection petition  and the  copies served  on the appellants
\nwas undoubtedly\t there. In  these  circumstances,  the\tHigh
\nCourt was  wrong and  committed a  serious error  of law  in
\nallowing the  amendment of  the\t petition.  The\t High  Court
\nshould have  tried to appreciate the tenor and spirit of the
\nmandate contained  in s.81  (3) of  the Act.  In the case of
\nSharif-ud-Din v. Abdul Gani Lone<\/a>(1) this Court dismissed the
\nelection  petition   only  on  the  ground  that  the  words
\n“attested to  be  a  true  copy”  were\tnot  signed  by\t the
\nelection-petitioner and\t held that this was not a sufficient
\ncompliance with\t the provisions\t of s.89  (3) of the Jammu &
\nKashmir Representation\tof the People Act, which is the same
\nas  s.81   (3)\tof   the  Act.\tIn  the\t instant  case,\t the
\ninconsistency is much greater than in Sharif-ud-Din’s case.\n<\/p>\n
     Similarly, in  an earlier case of Satya Narain v. Dhuja
\nRam & Ors<\/a>(2)., this Court held as follows:-\n<\/p>\n
\t  “If there is any halt or arrest in progress of the
\n\t  case, the  object of\tthe Act\t will be  completely
\n\t  frustrated. We  are, therefore, clearly of opinion
\n\t  that the  1st part of section 81 (3) with which we
\n\t  are  mainly\tconcerned  in\tthis  appeal   is  a
\n\t  peremptory provision and total non-compliance with
\n\t  the same  will entail\t dismissal of  the  election
\n\t  petition under section 86 of the Act”.<\/p><\/blockquote>\n
     This view\thas been  consistently taken  all through in
\nall the\t decided cases\tof this\t Court so far. Reliance was,
\nhowever, placed\t by the\t counsel for  the respondents on the
\nfollowing observations\tof Dwivedi,  J., in  Satya  Narain’s
\ncase:\n<\/p>\n
30<\/span><\/p>\n
\t  “Our decision\t restores that\tprimacy of procedure
\n\t  over\tjustice.  It  make  s.86  (1)  a  tyrannical
\n\t  master. The rigidity of the rule of precedent ties
\n\t  me to\t its  chains.  My  only\t hope  now  is\tthat
\n\t  Parliament would  make a  just choice\t between the
\n\t  social interest  in the  supply of  copies by\t the
\n\t  election   petitioner\t  alongwith   his   election
\n\t  petition and\tthe social interest in the purity of
\n\t  election by excluding s.81 (3) from the purview of
\n\t  s.86 (1) of the Act.<\/p><\/blockquote>\n
     The aforesaid  observations express a pious wish but do
\nnot at\tall detract  from what has been decided in this case
\nand with  which the learned Judge also agreed. Despite these
\nobservations, the  Parliament in its wisdom has not made any
\nattempt to  interfere  with  the  peremptive  and  mandatory
\nprovisions of  s. 81  (3) resulting  in the  consequence  of
\ndismissal of the petition under s.86 of the Act.\n<\/p>\n
     For the  reasons given above, we allow the appeals, set
\naside the  judgment  of\t the  High  Court  and\tdismiss\t the
\nelection petitions  in limine  under s.86 of the Act. In the
\ncircumstances, there will be no order as to costs.\n<\/p>\n
N.V.K.\t\t\t\t\t    Appeals allowed.\n31<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rajendra Singh & Ors. Etc vs Smt. Usha Rani & Ors. Etc on 27 February, 1984 Equivalent citations: 1984 AIR 956, 1984 SCR (3) 22 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: RAJENDRA SINGH & ORS. ETC. Vs. RESPONDENT: SMT. USHA RANI & ORS. ETC. DATE OF JUDGMENT27\/02\/1984 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-229827","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRajendra Singh & Ors. Etc vs Smt. Usha Rani & Ors. 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