Jharkhand High Court
Amit Kumar vs Sudesh Kumar Mahto on 6 September, 2012
Author: R.R. Prasad
Bench: R.R. Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Election Petition No. 7 of 2010
Amit Kumar ... ... Petitioner
Versus
Sudesh Kumar Mahto ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE R.R. PRASAD
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For the Petitioner : Mr. Anuj Kumar, Advocate
For the Respondent : M/s B.P. Pandey, Sr. Advocate, Manish Kumar,
S.N. Singh & B.N. Ojha, Advocates
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I.A. No. 178 of 2012
24/6.09.2012The aforesaid interlocutory application has been filed under Section 86(1) of the Representation of People Act, 1951 read with Order VI Rule 16 and Order VII Rule 1 of C.P.C. for summary dismissal of the election petition.
An election petition has been filed by the petitioner for declaring the election of Sudesh Kumar Mahto-respondent, who was elected as Member of Jharkhand Assembly from Silli Assembly Constituency, as void on the ground that the District Returning Officer and other officials connected with the election adopted corrupt practices so as to secure win for the respondent.
The case, which has been made out, is that the petitioner after the election was shown to have secured 37,966 votes whereas the respondent was shown to have secured 45,673 votes whereby the respondent secured 7707 more votes than the petitioner and thereby the respondent was declared elected. Resultantly, a certificate was granted to him, who has been favoured by the District Returning Officer by adopting corrupt practices, which would be evident from the fact that there has been difference of 174 votes in between final result sheet and the report of the Polling Officer concerning Polling Booth Nos. 4, 28, 52, 111 and 155.
Further, it has been stated that number of votes polled in each of Booth Nos. 8 and 28 were shown in the final result sheet as 467 but as per the report of the Polling Officer, the votes polled in Booth No. 28 was 507 and thereby there was difference of 40 votes. Petitioner has gone further to say that certain E.V.Ms. had been replaced but those replacement of E.V.Ms. have not been made from the E.V.Ms. which have been kept as reserved and this was done to secure the success of the returned candidate.
2In order to substantiate this allegation, following chart has been given to show number of votes polled in favour of the respondent and the petitioner in the polling stations given thereunder :-
Sl. No. Polling Station No. Total No. of Vote Total No. of to Respondent Vote to No. 1 Petitioner 1. 139 158 117 2. 140 196 36 3. 186 259 279 4. 189 208 278 5. 23 267 200 6. 40 54 38 7. 46 232 208 8. 63 304 120 9. 85 198 188 10. 93 182 203 11. 100 218 258 12 129 122 95 13 66 114 106 14 05 273 161 15 16 172 184 16. 12 374 66 In this context, it has also been stated that in Booth Nos. 186, 40, 93 and 100, EVM Control Units as well as ballet unit had been replaced but those EVM Control Units and ballet units had been replaced from the reserved list, whereas EVM Control Units and ballet units of Booth Nos.
139, 140, 189, 23, 46, 63, 85, 129, 66, 5, 16 and 12 had never been replaced from the reserved list and only in these booths there appears to be mark difference between the votes polled in favour of the petitioner and the respondent, whereas votes polled in the polling stations where E.V.Ms. had been replaced from the reserved list never shows any considerable difference of the votes polled in favour of the petitioner and the respondent and this goes to establish that the Returning Officer by adopting corrupt practices got the respondent elected.
The respondent having appeared filed his written statement wherein the statement made by the petitioner of getting undue favour from the Returning Officer through illegal means was denied. At the same time, objection was also taken that the election petition is not maintainable by virtue of the provision as contained in Section 86(1) of the Representation of People Act 1951 (hereinafter referred to as the said Act) on account of non-compliance of the mandatory provision of Sections 81, 3 82 and 117 of the said Act.
That apart, other technical objections were also taken which do not require to be mentioned, as presently the matter is never required to be dealt with on its merit. On filing written statement, issues were framed on 5.1.2012. On the same day, an Interlocutory Application bearing No. 178 of 2012 was filed purportedly under Section 86(1) of the said Act read with Order VI Rule 16, Order VII Rule 1 of C.P.C. for summary dismissal of the election petition.
Heard the parties on the said interlocutory application. Mr. Pandey, learned senior counsel appearing for the respondent, submits that Section 81 (3) of the said Act does stipulate that each and every copy which is to be filed by the petitioner is necessarily required to be attested by the petitioner under his signature to be a 'true copy' of the petition which does mean that the copy/copies filed by the petitioner should be wholly and substantially the same as that of the original. If there happens to be any variation, omission or addition/subtraction in the copy, it can never be taken to be a true copy and in such situation, there would be no compliance of the provision as contained in Section 81(3) of the said Act and thereby the election petition would be liable to be dismissed summarily in view of the provision as enshrined under Section 86 of the said Act.
Learned counsel in this regard submitted that the copy served upon the respondent can never be said to be a 'true copy' of the petition filed, as no attestation has been made in any of the pages of the election petition as 'true copy of the petition'. For other reason also, the copy served cannot be said to be a true copy, as the verification made in the original copy would go to show that the statements made in Paragraph-31 along with other paragraphs are by way of submission but in the copy, Paragraph-31 is missing. Similar is the position with respect to the affidavit. In the affidavit at Paragraph-7 of the original copy, "signed and sworn" have been written whereas same is missing in the copy. Likewise, by referring to certain pages, annexed with the election petition, it was pointed out that it contains seal in the original copy whereas the same is absent in the copy served to the respondent.
Under the circumstances, it was stated that the copy served cannot be said to be a true copy of the original and thereby the election petition is fit to be dismissed summarily in view of the provision contained in Section 86 of the said Act, as under the circumstances stated above, it would be a case of non-compliance of the mandatory provision of Section 4 81(3) of the said Act.
Learned counsel in support of his submission has referred to a decision rendered in a case of Sharif-ud-Din Vs. Abdul Gani Lone {AIR 1980 SC 303}, wherein the issue fell for consideration under the Jammu & Kashmir Representation of the People Act as to whether non- compliance of the provision as contained in Section 89(3) of the said Act, which is in para-materia to Section 81(3) of the Representation of People Act, 1951, is mandatory or not. Their Lordships did hold that since the requirement under Section 89(3) is mandatory, non-compliance of it will entail dismissal of the election petition under Section 94 of the J & K Act which is in para-materia to Section 86 of the Central Act.
It was further pleaded that in compliance of the provision as contained in Section 83(1)(b) of the said Act, one is required to give full particulars of the corrupt practice alleged and thereby it was required on the part of the petitioner to put the name of the parties alleged to have done such corrupt practice and the date and place of the commission of each such corrupt practices, but here in the instant case, full particulars of the material facts have not been given and as such, the election petition is also liable to be dismissed under Section 86 of the said Act.
Lastly, it was submitted that even if it is accepted that the petitioner did receive less votes on account of the respondent being favoured by the Returning Officer by adopting corrupt means, it is not going to affect the result of the election materially, as assuming all the votes, which were polled in favour of the petitioner in the polling stations, referred to above, and also the other votes (174 + 40) would have gone in favour of the petitioner the petitioner could have received maximum votes to the extent of 2439 whereas according to the petitioner, the respondent won the election by margin of 7707 votes. Therefore, if the allegations, on which election is being sought to be declared void, are accepted to be true, it hardly affects the election materially and hence, the election petition is required to be dismissed at its threshold and is bound to be rejected in view of the decision rendered in a case of Mangani Lal Mandal Vs. Bishnu Deo Bhandari {(2012) 3 SCC 314}.
As against this, learned counsel appearing for the petitioner submits that whatever defects have been pointed out, those are formal in nature which can never be levelled as a material in nature and hence, it is curable as has been laid down by the Hon'ble Supreme Court in a case of H.D. Rewana Vs. G.R. Puttaswami Gowda {AIR 1999 SC 768}.
It was further submitted that once the issues have been framed, 5 the respondent cannot be allowed to raise the question of maintainability, rather the point of maintainability be decided along with the other issues when the matter be taken up for its trial. It was also submitted that since the election of the respondent is being challenged on the ground that the respondent was favoured by the Returning Officer by adopting corrupt practices, the issue cannot be decided summarily, rather it can be decided only when the Court takes the matter for trial. Thus, it was submitted that the Interlocutory Application filed on behalf of the respondent is fit to be dismissed.
Having heard learned counsel appearing for the parties, it does appear that the question of maintainability has been raised on the ground that the election petitioner has failed to comply with the provision of Section 81 (3) of the said Act effect of which is dismissal of the election petitioner by virtue of the provision as contained in Section 86 of the said Act. Section 81 (3) reads as follows :-
"81. Presentation of petitions.-- .......................
(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."
What is required under the aforesaid provision is that (i) the election petition is to be accompanied by as many copies as there are respondents and that each copy be attested by the petitioner to be true copy of the petition. But in the instant case according to the respondent, copy accompanied the petition does not bear the attestation 'true copy of the petition'. Further objection is that the copies accompanied with the petition cannot be said to be the true copy of the original, as the affidavits and the verification appeared with the petition are not exactly the same as it is there in the original petition. In this background, submission was made that since the provision as contained in Section 81 (3) of the said Act is mandatory, dismissal is the consequence of non-compliance of the provision as contained in Section 81 (3) of the said Act and that once it is mandatory, the defect, which has been pointed out, cannot be cured. The issue, which has been raised, no longer remains res integra. Somewhat similar proposition had been advanced way back in the year 1964 before the Hon'ble Supreme Court in a case of Ch. Subbarao Vs. Member, Election Tribunal, Hyderabad {AIR 1964 SC 1027} wherein also the question of non-compliance of the provision as contained in Section 81(3) of the Central Act had been raised. The fact of that case was that the petitioner had filed along with the election petition sufficient number of 6 copies as required by Section 81(3) of the Central Act. The election petition was type-written and the copies which accompanied the petition were carbon copies of the type-script. Each of the copies bore the signature of the petitioner. The petitioner had not, however, inserted the words "true copy" before or above his signature. On the said fact the Hon'ble Supreme Court without going into the question whether Section 81(3) of the Central Act or any portion of it was merely directory or mandatory held that the signatures in original found on the copies were intended to authenticate the documents to which they were appended and that in the circumstances of that case, the absence of the words "true copy" above the signature of the election petitioner in the copies was not fatal and hence the Court had held that there was substantial compliance with the requirement of Section 81(3) of the Central Act.
Here in the instant case, the documents, appended to, though have been attested to be true copies, but every page of the petition accompanied by original copy did not bear the attestation 'true copy of the petition' though on each and every page signature of the petitioner is there. Since the signature of the petitioner is there on each and every page of the copy of the election petition, it, in terms of the ratio laid down by the Hon'ble Supreme Court in the case referred to above, can easily be said that the signatures were put in intending the petition to be a true copy of the original and thereby, the aforesaid defects can never be said to be fatal.
So far as the other defect, which has been pointed out by the respondent is that the affidavit and the verification appeared with the petition are not exactly the same as it is there in the original petition and thus the same cannot be said to be the true copy of the original. That objection is also not sustainable in view of the decision of the Hon'ble Supreme Court. Some matter came up before the High Court wherein the objection was taken that since last page did not contain signature, the petition cannot be said to be attested to be true copy and the other objection was that the verification attached with the copy does not correspond to the original copy. The High Court overruled the objection by holding that since every page of the copy of the petition was attested to be a true copy, it would not matter if the last page did not contain signature. As regards the second objection, High Court did hold that the failure to include the paragraph in the verification was only a clerical defect which had crept in due to oversight. The said decision when was challenged before the Hon'ble Supreme Court in C. A. 30 & 31 of 1963, disposed of on 7 7.5.1963, the Hon'ble Supreme Court upheld the decision of the High Court. The said case has been taken notice of in a case of Ch. Subbarao (supra). Subsequently, Hon'ble Supreme Court in a case of F. A. Sapa and others Vs. Singora and others {(1991) 3 SCC 375} also held that the verification of the petition as required by Section 83 (1) (c) must be in the manner laid down by Rule 15 of Order 6 , Civil Procedure Code. The defect in the verification can be (i) of a formal nature and not very substantial (ii) one which substantially complies with the requirements and (iii) that which is material but capable of being cured. The object of requiring verification of an election petition is clearly to fix the responsibility for the averments made in the petition on the person signing the verification and at the same time, discouraging wild and irresponsible allegations unsupported by facts.
Keeping in view those decisions, referred to above, it can easily be said that the defects pointed out by the respondent seem to be quite formal and hence on that ground election petition never warrants to be rejected.
So far the decision rendered in a case of Sharif-ud-Din Vs. Abdul Gani Lone {AIR 1980 SC 303} (supra) is concerned, fact is somewhat different where election petition had been signed by his Advocate and it was the Advocate who had authenticated the copies to be true copy of the petition whereas sub-section (3) of Section 89 of the Jammu & Kashmir Representation of the People Act provides that the copy of the petition shall be attested by the petitioner. In such situation, the Hon'ble Supreme Court held that there is non-compliance of mandatory provision. Thus, it is not applicable in this case.
Now coming to the third aspect of the matter, it be stated that the election of the respondent has been challenged on the ground that the Returning Officer did favour the respondent by adopting corrupt practices whereby EVM Control Units as well as Ballet Units were replaced though those Control Unit and Ballet Units were never in the reserved list. An attempt has been made to indicate that the respondent could not have fetched the votes which he has been shown to have secured at the polling stations, where the E.V.Ms. had been replaced. The numbers of votes polled in favour of the petitioner and the respondent at those polling stations have been given in detail hereinabove.
That apart, it has also been alleged that certain discrepancies were found in the result sheets and the report of the Polling Officer whereby there is difference of 40 and 174 votes.
8Under the circumstances, if the case of the petitioner is accepted that certain irregularities were committed whereby the respondent fetched more votes than the votes polled in favour of the respondent rather going further to presume to the extent that not a single vote would have been polled in favour of the respondent at Polling Booth Nos. 139, 140, 189, 23, 46, 63, 85, 129, 66, 5, 16 and 12 whether it will be affecting the result of the election materially.
It is the case of the petitioner itself that the petitioner lost election by margin of 7707 votes, whereas total numbers of votes, polled in favour of the respondent in the polling booths where the EVMs. have been replaced, come out to 2618. Further according to the case of the petitioner, there appears to be discrepancies in number of votes, polled in between the result sheets and the report of the Returning Officer. That figure has been given as 174 and 40. If these votes are added with 2618, total comes to 2832. If these votes are detected from the margin of votes by which the respondent won and even if it is added in the total votes, polled in favour of the petitioner, it hardly affects the result of the election. In such eventuality, election of the returned candidate can never be declared void in view of the provision as contained in Section 100 which provides for ground of declaring the election to be void. Section 100 of the Act reads as follows:-
"100. Grounds for declaring election to be void.-- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion.--
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected;
or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance or any nomination, or
(ii)by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules 9 or orders made under this Act, the High Court shall declare the election of the returned candidate to be void."
On mere reading of the aforesaid provision, it does appear that if the election is sought to be declared void on the ground mentioned in sub- section (d), it is essential for election petitioner to aver and prove by pleading material facts that result of election insofar as it concerns, a returned candidate, has been materially affected by adopting such corrupt practices. In other words, it can be said that sine qua non for declaring the election of returned candidate to be void is that the material facts of corrupt practices being adopted are proved and that it materially affects the result of the returned candidate, natural corollary would be that if one succeeds in proving the fact of indulgence in corrupt practices but fails to establish that it affects the result of the returned candidate election of the returned candidate would never be warranted to be set aside. In this regard, I may refer to a decision of Mangani Lal Mandal (supra), wherein it has been held that mere non-compliance of the breach of constitution or the statutory provision by itself does not invalidate the election of returned candidate. It has further been held that it is essential for the election petitioner to ever and prove by pleading material facts that result of election of returned candidate was materially affected by such breach or non-compliance. The court has further gone to say that if it does not affect the result of the election materially then the application should be rejected at the threshold.
Here in the instant case, as stated above, the allegation of the petitioner even if is accepted to be correct, it hardly affects the result of the returned candidate (the respondent) materially.
Accordingly, the election petition filed by the petitioner is rejected as not maintainable.
Thus, I.A. No. 178 of 2012 stands allowed.
(R.R. Prasad, J.) AKT