Calcutta High Court
Sharif Hossain Alias Dalim Master vs Kalimuddin Shams And Ors. on 7 January, 1998
Equivalent citations: AIR1998CAL162, AIR 1998 CALCUTTA 162
ORDER Shyamal Kumar Sen, J.
1. In the instant election petition the petitioner has challenged the election of Kalimuddin Shams, the respondent No. 1, in 293-Naihati Assembly Constituency and has prayed inter alia for the following declaration (a) A declaration that the purported election of the respondent No. 1 in the said Constituency of 12th West Bengal Legislative Assembly election on 2nd May, 1996 be void, illegal and be declared to be cancelled; (b) A declaration that the purported declaration of result dated9th May, 1996 made by the Returning Officer of the said constituency declaring the respondent No. 1 as duly returned candidate from the said constituency be void and the same be set aside; (c) Further declaration be made that the petitioner who secured second highest valid voles in the said Constituency be elected from the said constituency in the West Bengal Legislative Assembly election held on 2-5-96; (d) An order of in junction be issued against the respondent No. 1 restraining him from holding the office as a Member of the Legislative Assembly and from attending Legislature or drawing perquisites therefore until the disposal of the application; (e) An ad-interim order in terms of prayer (d) above; (f) An order allowing the petitioner to adduce evidence to prove that the election of his candidature would have been void if he had been the returned candidate if a petition had been presented calling in question his election in case such a corrupt practice would have been performed by the petitioner and the petitioner claims such recrimination as he is claiming the said Assembly seat as a duly elected candidate; (g) Leave may be granted to the petitioner to give notice to the High Court showing the petitioner's intention to adduce evidence within 14 days from the presentation of this petition and the petitioner has already deposited Rs. 2020/- as contemplated under Sections 117 and 118 of the Representation of the People Act, 1951 (hereinafter referred as to the said Act) respectively.
2. The question that arises for determination is if the election-petition has been filed in compliance with Section 81(3) of the said Act, It appears that on 24-6-96 which is the last date for filing of election petition learned advocate for the petitioner mentioned before me and submitted that the election petition was drafted on 21-6-96, the petitioner came to court and put his signature on the main petition in accordance with rules and that very moment news reached from his native village Nalhati which is 300 Km. from Calcutta that his wife was lying seriously ill and then and there he left the Court premises for his home on 21-6-96. An order was passed by me on such mentioning to the following effect:--
"The petition is noted as made today. Leave is granted to the petitioner to file the petition before the Registrar, Original side of this Court on his undertaking to be personally present in Court on 2-7-96 when this matter appear in the list.
The petitioner is directed to serve a copy of this petition on each of the contesting candidates and inform them that this matter will appear in the list on 2-7-96."
3. It has been submitted on behalf of the respondent No. 1 that that there is no proper filing in the petition since mandatory requirement of Section 81(3) of the said Act has not been complied with.
4. Mr. Chatterjee learned advocate for the respondent No. 1 has also submitted that the copy of the petition which has been served upon the respondent No 1 pursuant to the direction dated 24-6-96 docs not contain any signature of the petitioner. It has further been submitted that the said copy was not at all attested nor was it signed in any page. Moreover, the mandatory requirement of Section 81(3) has not been complied with.
5. Mr. Chatterjee has submitted that there exists no election petition in the eye of law and no election-petition was presented on behalf of the petitioner in compliance with the mandatory provisions of Section 81 of the said Act.
6. Learned advocate for the respondent No. 1 has referred to Sections 81(3) and 86 of the said Act and Rules 20, 21, 23 and 24. He has submitted that no election petition has been presented on behalf of the petitioner herein before the Registrar, Original side of this Court in terms of Rule 20 referring to election petition and as such Registrar had no occasion to take steps in terms of the Rule 23 of the said Rules.
7. It has further been submitted by Mr. Chatterjee that the provisions of law regarding presentation of petition under the said Act arc mandatory. The provisions are extremely strict. In support of his contention lie has relied upon the judgment and decision in the case of Harcharan Singh Josh v. Hari Kishan of the said judgment.
8. He has further submitted that each and every requirement relating to presentation of petitions has to be complied with. In case of non-compliance the only order that can be passed by the court is an order of dismissal. It has further been contended by Mr. Chatterjee that no question arises of amendment of such petition or giving leave to correct or to remove the defects in any manner whatsoever. In this connection he has relied upon the judgment and decision in the case of Bashir Musa Patel v. Satyawan Ganpat Jawkar, .
9. It is the contention of Mr. Chatterjee that the provisions of the said Act make it clear that election-petition has to be presented in the manner specified in the Act and unless the same is complied with that is the provisions of Sections 81, 82 or 117, the High Court shall dismiss the election-petition.
10. It has also been submitted by Mr. Chatterjee that there is no discretion left to the Court in view of the mandatory provisions of the Act. He has submitted that since there is no election-petition in the eye of law, it is a case of non est factum. It is the further contention of respondent No. 1 that there is jurisdictional bar as well as mandate on the Court to dismiss any petition which did not comply with the provisions of Sections 81. 82 or 117. It has further been contended that the election petition is required to be presented within 45 days of the date of election of the returned candidate in terms of the rules framed by this Court.
11. It has further been argued by Mr. Chatterjee that the presentation of the petition has to be made before the Registrar, Original side of this Court within 45 days and at the time of such presentation, the original petition was required to be accompanied by at least 10 attested copies of petition since there are 10 respondents which has not been complied with in this case. It has been argued that the presentation of the petition was not admittedly made before the Registrar, Original Side, as was incumbent in terms of Rule 20 and as such the same cannot be treated to be presentation of the election-petition under Rule 21.
12. It has been further contended on behalf of the respondent No. 1 that Rule 23 of the Rules contemplates scrutiny by the Registrar which could not be carried out since it was not presented to the Registrar. Annexure to the petition is also required to be signed by the petitioner in terms of Section 82 of the Act which also contemplates the unnexure to the petition shall be verified in the same manner as petition.
13. It has been contended for the respondent No. 1 that by order dated 24-6-96 leave was granted to present the petition before the Registrar, Original side of this Court but the same does not mean that the petitioner would be at liberty to present the same without fulfilling the mandatory requirement of the provisions of the said Act or the Rules framed under this Court. It has further been contended that by the said order the conditions or stipulations as provided in the said Act or Rules framed there under have not been dispensed with.
14. Further contention of the learned Advocate for the respondent No. 1 is that in terms of the Section 81(3) of the said Act 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 true copy of the petition and on non-compliance of such mandatory requirements as mentioned in Section 81(3) the High Court shall dismiss the election petition as has been provided in Section 86(1) of the said Act.
15. In support of his contention learned advocate for the respondent No. 1 has relied upon the following decisions:--
i) Sharifuddin v. Abdul Gani ;
ii) Rajendra Singh v. Usha Rani ;
iii) Satya Narain v. Dhuja Ram ;
iv) Om Prakash Soni v. Ashok Kumar Bhargava ;
v) F. A. Sapa v. Singora .
16. It has also been argued that in fact the order passed by me on 24-6-96 has not been complied with since leave was granted to the petitioner to present the petition before the Registrar. The petitioner instead of doing so left the petition in Court without complying with the mandatory requirements of the statute and the Rules.
17. Mr. Pratap Chatterjee and Mr. Pranab Chattopadhyay learned Advocates for respondent No. 1 have referred to Article 329(b) of the Constitution and submitted that the presentation of election petition in terms of the Act and the Rules is a constitutional requirement and/or mandate and there is no scope for exercising discretion by the Court so far as such requirement is concerned. Apart from the Constitutional requirement of compliance with the statute with regard to presentation of the election petition it has also been argued on behalf of the respondent No. 1 that when the statute provides the manner in which an act has to be performed, it has to be performed in that manner only and not otherwise. In support of his contention they have relied upon the judgment and decision in the case of Ramchandra Keshab Adke (Dead) by LRs. v. Govind Joti Chavare .
18. The contention of the learned Advocate for the petitioner, on the other hand, is that the election petition has been filed pursuant to the leave granted by the Court on 24-6-96 and as such there is no question of non-compliance of the statute. Moreover, in the petition itself it has been endorsed by the Registrar with the note and Registration No. has also been given and as such it cannot be said that the petition has not been properly presented or has not been filed as required.
19. However, Mr. Mukherjee learned advocate for the petitioner has fairly admitted that the petition was not presented to the Registrar with the copies of the petition duly attested as true copy, as required under Section 81(3). It has also not been disputed that the Court granted leave to present petition before the Registrar, but instead of doing so, the petition has been filed in Court after such mentioning was made and from the court it went to the Registrar. He has further submitted that such irregularity can easily be waived although there is non-compliance with the provisions of Section 81(3). Moreover, since Registration No. has been given, it cannot be said that the petition has not been duly filed.
20. Mr. Mukherjee learned Advocate for the petitioner has relied upon the judgment and decision in the case of Lalit Kishore Chaturvedi v. Jagadish P. Thada and has submitted that even in election petition Civil Procedure Code is applicable and the Court can under inherent jurisdiction exercise power to correct errors or infirmity. He has submitted that while hearing the election petition the High Court " retains power under charter granted by the Letters Patent 1865, Govt. of India Act, 1858, the Govt. of India Act, 1959 and 1935 and the Constitution of India and had no such power been there, the Court could not have granted leave to file the petition and as such it cannot be said that there is no proper presentation of the election petition.
21. I have considered all aspects of the matter. Parties have agreed not to file any affidavit on the question of objection raised by the respondent No. 1, returned candidate, i.e. on the question if the petition has been filed in accordance with law and agreed to proceed on the basis of oral and written notes of submissions made and filed in Court. There is no dispute also that by my order dated 24-6-96, I granted liberty to the petitioner to present the application to the Registrar Original Side of this Court. According to the Rules framed by the Court, Registrar is to scrutinise the said petition after the same is presented and to submit a report to the learned Judge taking up election petition as to if the election-petition has been filed in compliance with all the requirements for filing as contemplated under the said Act.
22-23. In the instant case the petitioner admittedly did not present the same at the office of the Registrar. In the said order dated 24-6-96 it was ordered that the petition was noted as made today and endorsement was made on 24-6-96 by the Registrar that "the petition presented before the Court as noted as made today". Admittedly, the petition did not accompany as many number of copies as required for effecting service upon the respondents duly attested by the petitioner. The order passed on 24-6-96 does not dispense with the requirement or the mandate of the statute and the Rules framed under the said Act. In this connection, it is necessary to consider the relevant Sections of the said Act and the Rules framed thereunder which are set out hereinbelow :--
"81. (1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any election within forty live days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different the later of those two dates.
(2)...........,........;.................,.,,.....
(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."
A petitioner shall join as respondents to his petition -
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice arc made in the petition."
"86 (1) -- The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117".
"117 -- Security for costs -- (1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a sum of two thousand rupees as security for the costs of the petition.
(2) During the course of the trial of an election petition the High Court may, at any time, call upon the petitioner to give such further security for costs as it may direct."
Rule 20'-- Upon an election petition by any candidate relating to an election being presented in accordance with the provisions of the Act these Rules before the Registrar, Original Side, of this Court within the time prescribed by Sub-section (1) of Section 81 of the Act, such petition shall be deemed to have been presented before the High Court at Calcutta under Section 81 of the Act.
Rule 21 (1) -- So soon as an election petition is presented before the Registrar, Original Side, the petition shall be numbered and entered in the Register maintained for the purpose in the form prescribed in Appendix II to these Rules.
Rule 23 - After the registration of the election petition, the Registrar, Original side shall cause the petition to be scrutinised according to the provisions of Sections 81, 82, 83, 84 and 117 of the Act as well as these rules, and shall submit a report of such scrutiny for directions of the Judge. The matter shall appear in the Daily Cause List of the Judge within two day after registration as aforesaid, and thereafter on such dates as ordered by the Judge.
Rule 24 -- If the Judge is satisfied that the election petition is not liable to be dismissed under Section 86(1) of the Act, he shall direct issue of notice to each of the respondents to be sent per registered post with 'acknowledgment due' fixing a date for the respondent or respondents, as the case may be to appear and answer the claim made in the election petition. The notice shall be in the form prescribed as in Appendix III to these rules. The Registrar, Original Side, shall thereupon cause the envelope containing copies of the election petition etc?, to be sent per registered post with 'acknowledgment due' to the address of each of the respondents. The office of the Registrar, Original Side, shall enter the date of appearance in the notice before issuing such notice. .
24. As appears from the said order dated 24-6-96 the petition was presented in Court when the same was noted as made today and leave was granted to file the petition before the Registrar. In normal cases when a petition is noted as made today, the Assistant Registrar attached to the Court usually makes an endorsement in back sheet of the petition. In the instant case Asstt. Registrar, attached to court found when he was going to make such endorsement that this, being an election petition, should be endorsed by the Registrar, Original Side and accordingly got it endorsed as noted as made today by the Registrar. Since, however, the petition was not presented to the Registrar in the manner as was required to be done, the Registrar did not verify the petition which was required under the Rules.
25. The aforesaid fact has been ascertained on enquiry made at the office of Registrar, Original Side of this Court. It appears that none appeared before the Registrar when such endorsement was made. Since leave was granted to the petitioner to present the petition before the Registrar, the petitioner or his Advocate on record should have been present before the Registrar at the time for the purpose of scrutiny by the Registrar as to if the petition has been presented in proper form as required under the said Act and Rules. In fact, it has not been disputed by the learned Advocate for the petitioner as already noted that the petition has not been presented as required under the Act and the statute and there is irregularity with regard to filing and that the requirement of filing according to the statute and Rules has not been dispensed with. In fact, finding said difficulty Mr. Mukherjee has submitted that even in case of election petition, the High Court retains its inherent jurisdiction under the Charter granted by Letters Patent and the Court has the power to direct filing of any petition and as such irregularity, if any, under the statute does not really affect the case of the petitioner.
26. In my view, when the statute and the Rules prescribes the procedure, the question of dispensing with the same does not arise. In fact the said provisions in the statute and Rules with regard to filing of election petition is mandatory in nature and cannot be waived.
27. It also appears that by my order dated 24-6-961 directed the petition to be presented to the Registrar thereby meaning that the presentation should be in accordance with the statute and the Rules. By way of abundant caution, since the question of limitation was involved, the application, however, was directed as noted as made today and leave was granted to present the same as prayed for by the petitioner and as it was pointed out that the petitioner could not sign the copies of the petition and attest the same under the circumstances noted as above. Since, however, leave was obtained from the court to present it with the Registrar, under the unusual circumstances as noted hereinbefore the petitioner was directed to serve copies to the respondents and the matter was directed to appear in the list on 2-7-96, so that it would be open to the respondents also to raise objection as they may be advised. On 2-7-96 when the matter appeared in the list, learned advocate for the respondent No. 1 who is the returned candidate appeared through his advocates and raised serious objection that this election petition is not a petition in the eye of law for the reasons which have already been mentioned in details hereinbefore.
28. In my view, the petitioner was not entitled to take the matter so lightly as has been done in the instant case, Representation of the People Act, 1951 and the Rules framed therein require strict compliance of the Act and Rules and the same being mandatory in nature are to be observed with meticulous care and caution. Otherwise, an elected candidate will be unnecessarily harassed and the democratic system will be seriously disturbed. The Court cannot encourage such lackadaisical approach of a candidate and entertain petitions made contrary to the provisions of the statute, Otherwise, the Court will be flooded with election petitions which will jeopardise the interest of democracy.
29. It also appears that the annexures to the petition have not at all been verified which is required under the statute. Under Section 82 of the said Act any annexure to the petition is also required to be signed by the petitioner and the same shall also be verified in the same manner as the petition. Although there are 7 annexures to the petition, none of them has been signed nor verified which amounts to violation of Section 83(2) of the said Act.
30. It appears from the Rules of our Court that, even assuming the registration of election petition has been made as alleged, since it is contended that a number has been given with a report of scrutiny by the Registrar, the matter should have thereafter appeared in the list within 2 days of such registration and thereafter on such dates as ordered by the Judge.
31. Rule 24 contemplates that only if the Judge is satisfied that the election petition is not liable to be dismissed under Sub-section (1) of Section 86 of the Act, he shall direct issue of notice to be sent to each of the respondents by Registered Post by the candidate with acknowledgment due fixing a date for the respondent or respondents, as the case may be, to appear.
32. In the instant case in fact there was no report by the Registrar but the matter was placed in the list on 2-7-96 to ascertain if the election petition complies with all the requirements and by way of abundant caution the respondents were also directed to be served with the petition. Apart from the question of presentation, it therefore appears the Court should be satisfied as to whether the mandatory requirements of the statute namely Section 81 has been complied with by the petitioner or to ascertain if the requirements have been complied with and for that purpose the matter was fixed on 2-7-96 when the respondent No. 1 appeared and raised objection. Even if, such objection by respondent No. 1 is not there, in my view, the Court cannot proceed with the election petition without being satisfied that the statutory requirements have been complied with for filing or presentation of the petition.
33. In the absence of the report by the Registrar as required under the Rule it is more so the duty of the Court to see if the mandatory requirements of the statute, that is to say, Sections 81, 82, 83 and 84 have been complied with. There is nothing on record to show that the election-petition has been accompanied by as many copies thereof as there are respondents mentioned in the petition. The petitioner himself sent a copy to the respondent No. 1 which has been produced which does not contain any signature of the petitioner. The said fact is not disputed.
34. In that view of the matter it is apparent that there is non-compliance with Section 81 of the petition which entails dismissal of the election-petition. I am unable to accept the contention of the learned Advocate for the petitioner that the Court retains its power to waive any irregularity while hearing the election-petition.
35. It is clear from mandatory provision of Section 86(1) of the petition that the High Court shall dismiss an election petition which does not comply with the provision of Section 81 or Section 82 or Section 117 of the Representation of the People Act, 1951.
36. The Supreme Court in the case of Sharif-ud-Din, v. Abdul Gani Lone held that non-compliance with the mandatory requirement entails dismissal of the election petition under Section 89(3) of the J & K Act which corresponds to Section 81(3). In that case the attestation was made by the signature of the Advocate even then, it was held that the petitioner has signed the petition. It was further held that the object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition is that the petitioner should take full responsibility for its contents and that the respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the original petition after it is filed into Court.
37. The Supreme Court also dealt with the difference between mandatory rule and directory rule. It was further held that the difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Whenever a statute prescribed that a particular act is 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 hold that the requirement is not mandatory and the specified consequence should not follow.
38. The same view has been subsequently followed by the Supreme Court in its decision in the case of Rajendra Singh v. Smt. Usha Rani . It was held in the said decision that the mandate contained in Section 81(3) cannot be equated with Section 537 of the Code of Criminal Procedure which makes certain omissions as a curable irregularity. The Supreme Court in para 9 at page 958 of the said report held and observed as follows :--
"Hence the mandate contained in Section 81(3) cannot be equated with Section 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."
39. In the instant case it appears that the irregularity which appears on the face of the record is not a curable irregularity since the mandatory provisions of the statute have not been complied with.
40. Decisions on behalf of the petitioner namely the case of Lalit Kishore Chaturvedi v. Jagdish Prasad Thada and the case of Monohar Joshi v. Nitin Bhaurao Patil cannot assist the petitioner in the instant case.
41. In the case of Lalit Kishore Chaturvedi (supra) it was held that the election petition lacking in material particulars relating to corrupt practice cannot be dismissed under Section 86(1) but the same is required to be considered at the time of trial.
42. The same view has also been taken in Monohar Joshi's case (supra). In the said case it was held that Section 86 empowers the High Court to dismiss an election petition at the threshold if it does not comply with the provisions of Section 81 or Section 82 or Section 117 of the said Act all of which are patent defects evident on a bare examination of the election petition as presented. The compliance of Sections 81, 82 and 117 is to be seen with reference to the evident facts found in the election petition and the documents filed along with it at the time of its presentation. This is a ministerial act. There is no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 of the R.P. Act which is a judicial function. For this reason, the non-compliance of Section 83, is not specified as a ground for dismissal of the election petition under Section 86.
43. In the decision, the deficiency in Section 83 has however been distinguished. While making a distinction between the two, the Supreme Court in the aforesaid context held in para 23 at as follows:--
"Section 86 empowers the High Court to dismiss an election petition at the threshold if if does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, all of which are patent defects evident on a bare examination of the election petition as presented. Sub-section (1) of Section 81 requires the checking of limitation with reference to the admitted facts and Sub-section (3) thereof requires only a comparison of the copy accompanying the election petition with the election petition itself, as presented. Section 82 requires verification of the required parties to the petition with reference to the relief claimed in the election petition. Section 117 requires verification of the deposit of security in the High Court in accordance with Rules of the High Court. Thus, the compliance of Sections 81, 82 and 117 is to be seen with reference to the evident facts found in the election petition and the documents filed along with it at the time of its presentation. This is a ministerial act. There is no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 of the R.P. Act which is a judicial function. For this reason, the non-compliance of Section 83, is not specified as a ground for dismissal of the election petition under Section 86."
44. Admittedly, in the instant case Section 81(3) of the Respresentation of the People Act, 1951 has not been complied with.
45. Accordingly, I am of view that this election-petition is liable to be rejected in limine at the threshold and there is no scope for trial of the election petition.
46. The instant election petition is accordingly rejected.