Bombay High Court
Baban S/O Dattatraya Yadav vs Shri Abdul Kabir S/O Abdul Wahed ... on 7 May, 1997
Equivalent citations: AIR1998BOM60, 1998(1)BOMCR25, AIR 1998 BOMBAY 60, (1997) 2 MAHLR 708, (1998) 2 ALLMR 744 (BOM), (1998) 1 BOM CR 25, 1998 (1) BOM LR 585, 1998 BOM LR 1 585
ORDER S.S. Dani, J.
1. The petitioner challenges the election of respondent No. 1 to the Maharashtra Legislative Assembly from the constituency No. 184- Partur Assembly Constituency.
2. The petitioner and the respondents No. 1 to 12 are the candidates contesting the said election held on 9-2-1995.The counting of the said election was done on 11 -3-1995 and in the said counting the respondent No. 1 secured highest numbers of votes i.e. 37,911 while the present petitioner and the respondent No. 2 secured 37,790 and 28,782 votes respectively. The respondent No. 1 has, therefore, been declared duly elected from the said constituency having secured highest number of votes. The petitioner was contesting the said election as an official candidate of Bhartiya Janata Party with the symbol of LOTUS while the respondent No. 1 was Congress-I candidate contesting with the election symbol of HAND and the respondent No. 2, who is the independent candidate with the symbol of UMBRELLA. The respondent No. 3 to 12 were independent candidates contesting the said election from the constituency. It is alleged by the petitioner that the actions and decisions of the Returning Officer respondent No. 13 were illegal and in bad faith and without any propriety and had affected the out come of the election materially. It is further alleged that the respondent No. 1 committed corrupt practice within the meaning of provisions of section 100 and 123 of the Representation of the People Act, 1951. It is also a challenge to the election on the ground that many irregularities were committed by the Returning Officer-respondent No. 13 in conduct of the election as well as counting of votes and receiving void votes. The petitioner also alleges corrupt practice by the respondent No. 2 affecting the out come of the election materially.
3. The petition is resisted stoutly by the respondent No. 1 by his written statement (Exh. 17) and all the allegations raised in the petition are refuted. The respondent No. 13 the Returning Officer for the said election also resisted the petition by a separate written statement (Exh. 19) and also refuted the allegations made by the petitioner. So also the respondent No.2 has filed his written statement (Exh. 14) resisting the petition. None of the remaining respondents has filed any written statement.
4. The respondent No. 1 the returned candidate has filed an application (Exh. 23) raising preliminary objections of maintainability of the election petition on the ground of non compliance of section 81 to 83 of the Representation of the People Act, 1951. Similarly, the respondent No. 13 has also filed application (Exh. 30) raising similar preliminary objections of maintainability of the election petition. It is the common ground of the respondents No. 1 and 13 that the election petition suffers because of the non compliance of the provisions of sections 81 to 83 of the said Act and the Rules made thereunder and as such, the petition itself needs to the dismissed under section 86 of the said Act. The respondent No. 1 attacked the election petition by raising the following grounds of non compliance of the said provisions :
A) The petition is not signed and verified in accordance with the provisions of the Act.
B) Copy supplied is not in accordance with the provisions of law and does not show that the petitioner has signed at the foot of the petition nor does the verification clause shows that the same has been signed by the petitioner. It does not bear the date on which it was verified or lodged and there is no designation of the Officer before whom the verification is done nor there is signature or the date on it.
C) The verification stating receipt of the information for villagers of Kathala as well as information of para 10 of the petition from N.T. Ghatge and others. It is not naming the persons as well as the verification made on information from Polling and Counting agents is without particulars.
D) Form No. 25 is not in accordance with the law and does not specify which as was committed by whom.
E) The petition is not in proper form required under the law and rules.
F) Each and every page of the petition served on the respondent is not signed and as such, the petition suffers from non compliance of the provisions of the rules.
G) Paging and the copies of the documents served on the respondents differs from the petition filed in the Court and the documents are also not verified
5. The respondent No. 13 also raises the following grounds raising preliminary objections :--
A) The copy served does not show that the petitioner has signed at the foot of the petition nor is attested to be a true copy nor verification clause is signed by the petitioner and does not bear the date and even designation and the signature of the Officer.
B) The petition suffers from proper verification as required by the provisions of the C.P.C.
C) Form No. 2 does not specify which act was committed by whom, by whose consent.
D) The verification clause does not specify the names from whom the information is alleged to have been received.
E) Every page of the petition served on the respondent is not signed as true copy.
F) The election petition is not in proper form.
G) Separate affidavits as per section 83(1) of the Act and Rule 94-A are not tiled and the copy of the affidavit with due attestation is not served on the respondent.
H) Copy of the petition served on the respondent suffers from several lacunas and is not signed as true copy and the documents filed along with the petition are also not signed as true copy.
6. The petitioner filed his say (Exh.24) to these applications and denied the grounds of non compliance raised by the respondents.
7. It is submitted on behalf of the respondent No. 1 by Shri Salunke, learned Counsel that the petition suffers from defects as contemplated by section 81(3) as well as section 83 of the Act and they entail outright rejection of the petition. Before considering the concerned provisions as well as the recent pronouncements of the judgments of this Court as well as the Supreme Court, it is initially necessary to ascertain as to what are the defects which are found actually in the copy of the petition served on the respondent No. 1. For this purpose, it is further necessary to compare the copy of the petition to the original petition filed in this Court (Exh. 1). By an order dated 24-6-1996 this Court directed the respondent No. 1 to place on record the copy of the petition served on him through the Court. Accordingly, the copy of the petition along with its annexures as served through Court is placed on record and is marked as EXHIBIT 25. Further, it may be noted that the respondent No. 2 as well as the respondent No. 13 have also placed on record the copies of election petition which are served on them. The copies of the petition served on these respondents do not differ and as such, they together are to be compared with the original petition (Exh. 1) filed by the petitioner before this Court. On perusal of the copy of the petition (Exh. 25) with the original petition (Exh. 1), it is found thus-
A) Some of the pages are not signed and/or verified.
B) Some of the translations of documents are also not signed and/or verified.
C) The copy of the petition supplied to respondent No. 1 does not tally with the petition filed in the Court in view of paging of the Copy differing from original petition.
D) The copy of the petition supplied to the respondents does not bear, at certain places, the date and verification as well as the name and designation of the authority. On close scrutiny and comparison of these two documents, it is found even at the time of passing the order dated 18-6-1996 that page Nos. 22, 22B, 23 and 52 to 56 are signed by the petitioner but there is no endorsement of "true copy" on any of these pages. It is also further found that there are two pages bearing the same number as "28" and out of these two pages, one is signed but the other is not signed by the petitioner. It is further found that the page which is signed by the petitioner does not bear the endorsement of "true copy" .On further scrutiny and comparison of the copy of the petition served on the respondents and the original petition, it is also found that out of page Nos. 58, 59, 60 to 64, 74, 76, 79, 84, 85, 113, 114, 117 and 121, some are signed but do not bear the necessary endorsement while some are not signed at all. Further, the translations of pages 58 and 59 are also not signed but the original pages are signed. In addition to these defects, material defects entailing the outright rejection of the petition is to the effect that the copy of the petition served on the respondents does not disclose the signature and the date of the verification by the concerned officer. On perusal and scrutiny of the petition (Exh. 1) filed in Court, it is disclosed that the prayer Clauses from (A) to (J) are mentioned in para No. 25 of the petition at page 52 and the petition ends on page 53 with the signature of the petitioner and his three Advocates. Further, it is disclosed that the verification clause starts on page 54 and ends at page 55 of the petition and it is also signed by the petitioner, his Advocate and at the fag end of the said page, there is verification made by the Additional Registrar, High Court of Bombay, at Aurangabad. Below that verification, the signatures of the petitioner and his Advocate appear. It is further disclosed that below the signature of the Additional Registrar, the rubber stamp of his designation as well as the date as 26-4-95 appear. If this is compared to Exh. 25 i.e. the copy of the petition served on the respondent No. 1, it is found that the petition ends on page No. 53 and there is only the signature on the left corner of the petition under the words "true copy". It is further disclosed that on page 54 and 55 i.e. the verification clause, the signature of the petitioner is on the left margin under the words "true copy". It is conspicuous to note that there is no endorsement, signature, designation stamp and the date of the concerned officer. Page 55 of this Exh. 25 is totally blank so far as the verification, its endorsement, signature, official seal, designation and the date of the concerned officer are concerned. Same is the position in respect of the copies of the petition Exh. 29 and Exh. 30-1 which are the copies of this petition served on the respondent No. 2 and 13. It is, therefore, clearly brought on record that the copies of the petition served on these respondents do not at all bear the verification nor there is any signature or date or designation of the concerned officer.
8. In addition to the defects noted above, the following defects and comparison of the original petition with the copies of the petition served on respondents 1, 2 and 13. It is material to note that the petition Exh. 1 as well as the copies of the petition served on respondent No. 1 (Exh. 25) and respondent No. 2 (Exh. 29), are typed on one side of the paper. However, the copy of the petition (Exh. 30) served on the respondent No. 13, differs with the petition as typed on both sides of the paper. It is further to be noted that the copy of the petition served on the respondent No. 1 (Exh. 25) contains two pages of the same number "50" while there is no page of page number "52".
9. On the background of these defects which are disclosed on careful scrutiny and comparison, the concerned provisions of law are required to be considered. Section 81 of the Representation of the People Act, 1951 deals with the presentation of the petition and sub-section (3) of it provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Section 86 of the said Act further provides that the High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. The position of law is found in the latest decision of the Supreme Court in the case of Or. Smt. Shipra v. Shantilal, A.I.R. 1996 S.C. 1691. In the said case, it was contended that the copy of the election petition served on the respondent along with the summons did not bear attestation to affirmation part i.e. the endorsement of the officer, Court Commissioner, administering oath/affirmation to the petitioner and the place and the date of the administering oath were also missing. The omission to supply endorsement part in the affidavit which is essential part of the affidavit which in turn, is integral part of the petition, according to the respondent, constituted a non compliance under section 83 of the Act and rendered the election petition to be liable to be dismissed under section 86(1) of the Act. The contention found favour with the High Court as well as their Lordships of the Supreme Court. In the said case, the question for determination was thus,--
"The only question that arises for consideration is whether the copy of the election petition accompanied by supporting affidavits served on the respective respondents without attestation part duly verified by the District Magistrate/Notary/Oath Commissioner can be said to be "true and correct copy" of the election petition as envisaged in section 81(3) of the Act."
10. In para 8 of the judgment it is ruled, thus,--
"It would thus, be clear that a true copy is a transcript identical to or substitute to the original but not absolutely exact copy. But nobody can by any possibility, misunderstand it to be not a true copy. It is seen that the test, as stated earlier, is whether by any variation from the original is calculated to mislead an ordinary person. When a petitioner is enjoined to file an election petition accompanied by an affidavit duly sworn by the applicant duly verifying diverse allegations of corrupt practices imputed to the returned candidate and attested by the prescribed authority it would be obvious that the statute intended that it shall be performed in the same manner as prescribed in Form 25 read Rule 94-A of the Rules. The attestation of the affidavit by the prescribed authority, therefore, is an integral part of the election petition. The question, therefore, is : whether copy of the affidavit supplied to the respondent without the attestation portion contained in it (though contained in the original affidavit) can be considered to be a "true copy"?"
In para 11 of the judgment of the Supreme Court, it is observed thus,--
"For that purpose, Form 25 mandates verification before the prescribed authority. The object appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy cannot be said to be a curable irregularity."
11. It is therefore, clear that the copy of the election petition which is required to be served on the respondent has to be a true copy i.e. a copy which is substantially a reproduction of the original and if there is omission of vital nature in the copy as compared to the original election petition, it cannot be ignored and if there is such a omission, the copy of the petition served on the respondent cannot be a true copy of the original. If the copy of the election petition served on the respondent contains omission as regards the endorsement by the prescribed authority before whom the petition is verified, such a omission is considered as a vital omission and would entail the dismissal of the petition under section 86(1) of the Act.
12. In this connection, a useful reference may also be made to the judgment of this Court reported in Purshttom v. Returing Officer, Amravati, ), which is affirmed in Dr. Smt. Shipra v. Shantilal A.I.R. 1996 S.C. 1691. A further useful reference may also be made to the decision of this Court in Chagan Bhujbal v. Balaram, 1996(2) M.L.R. 215 as well in case of Anil Gote v. Raiwardhan, Election Petition No. 16/95 decided on 1-12-1995, and in the case of Baburao Pacharne v. Popatrao, Election Petition No. 13 of 1995 decided on 20-7-96. The net result is that if the copy supplied to the respondent does not contain the name and designation of the person before whom it is sworn or the seal of the office and identity not disclosed, the omission is material and petition is liable to be dismissed under section 86 of the Act for non compliance of the mandatory provisions of section 81(3) of the said Act.
13. As stated above, in the copies of the petition served on the respondents, when compared with the original election petition, the material defects are noted as discussed above. The omissions consist in respect of signature, the name as well as seal and the date of the officer before whom the election petition is said to have been verified or affirmed and as said above, all these things are conspicuously absent in the copies of the petition served on the respondents. In the case at hand, the officer of this Court was authorized to administer oath to the deponent and verification/affirmation made by the election petitioner before the authority could not be faulted as he had an authority to administer the oath. However, as staled above, in the copies of the petition served on these respondents the name of the officer who administered oath to the petitioner or before whom the petitioner verified the petition, is not mentioned nor there is anything to show that it was so verified or affirmed before the said officer. The failure to mention anything in this respect in the copies of the petition has deprived the respondents to know whether as a matter of fact the petitioner had verified the contents and also to know as to whether the officer before whom the petition is purported to be verified was authorized to administer the oath. This could not be known to the respondent as the name, the seal, signature and the date of the said officer is absent on the copies of the petition. In the absence of anything in respect of the name, date, signature and the verification or attestation clause made by the concerned officer, prejudice is clearly caused to the respondents and these omissions are therefore, of Substantial nature and as such, the copies of the election petition served on these respondents cannot be taken to be "true copy" of the petition and as such, there is non compliance of the requirement of section 81(3) of the said Act and as such, it would entail dismissal of the petition under section 86 of the Act.
14. In view of the foregoing discussions, I find that the copy of the election petition supplied to the respondents is not a "true copy" of the original election petition. The election petition is liable to be rejected for non compliance of section 81(3) of the Act by virtue of section 86 of the Act.
15. In the result, the Applications (Exh. 23 and Exh. 30) of respondents No. 1 and 13 respectively, are allowed and the Election Petition No. 7 of 1995 is dismissed under section 86 of the Act. There shall be no order as to costs.
A copy of this order be sent to the Election Commission and the Speaker of State Legislature as required under section 103 of the Act and Rule 19 of the High Court (O.S.) Rules. The amount deposited by the election petitioner be refunded to the petitioner.