Bombay High Court
Vinod Ramchandra Gosalka vs Sunil Dattatray Tatkare And Ors. on 23 December, 1996
Equivalent citations: 1997(3)BOMCR110
JUDGMENT R.G. Vaidyanatha, J.
1. These are four Election Petitions filed by the respective petitioners challenging the election of returned candidates. In all these cases the respective respondents have taken a preliminary objection about the maintainability of the Election Petition on the ground that true copy of the petition is not served on the respondent. In Election Petition No. 7/95 Chamber Summons No. 1205/96 and in Election Petition No. 8/95 Chamber Summons No. 106/96 are taken out raising preliminary objection that the petition is not maintainable. In Election Petition No. 11/95 a precipe is filed stating that the respondent is taking identical preliminary objection as in Chamber Summons No. 1205/96 filed in E.P. No. 7/95. In Election Petition No. 10/95 the respondent has filed an application dated 3-12-1996 stating that the petition is not maintainable. I have heard the learned Counsel appearing for the respondents in all the four cases. I have heard the learned Counsels for the petitioners. Since, common question of law arise for consideration, I am disposing of the preliminary objection in all the four cases by this common order.
2. In E.P. No. 7/95 the petitioner has challenged the Election of the first respondent, Shri Sunil Dattatray Tatkare, who is the returned candidate. This pertains to Assembly Election in Constituency No. 14, which is called as Mangaon Legislative Assembly Constituency in Raigad District. Elections were held on 12th February, 1995 and results were declared on 12th March, 1995 declaring the first respondent as duly elected by getting highest votes.
3. In E.P. No. 8/95 the petitioner has challenged the election of the respondent Shri Raj K. Purohit, who is the returned candidate. This petition pertains to the Assembly Election in Constituency No. 21 which is called as Mumbadevi Constituency in Bombay city. Elections were held on 12th February, 1995 and after counting the results were declared on 12th March, 1996 declaring that the respondent was duly elected by getting highest votes.
4. In E.P. No. 10/95 the petitioner has challenged the election of the respondent Shri Dhatrak A. Gangaram, who is the returned candidate. This petition pertains to the Assembly Election from Constituency No. 19, which is called as Colaba Constituency in Bombay city. Elections were held on 12th February, 1995 and results were declared on 12th March, 1995 declaring that the respondent was duly elected after getting highest votes.
5. In E.P. No. 11/95 the petitioner has challenged the election of the respondent Shri Anant N. Thopde, who is the returned candidate. This petition pertains to the Assembly Election from Constituency No. 257, known as Bhor Legislative Assembly Constituency in District Pune. Elections were held on 12th February, 1995 and results were declared on 12th March, 1995 declaring that the respondent was duly elected after getting highest votes.
6. In all these cases the petitioners are challenging the elections of the respondents on the ground of corrupt practices committed by the returned candidates.
7. In view of proviso to section 83(1) of the Representation of the People Act, 1951 an affidavit is filed by the petitioners in support of the allegations in the petitions making allegations of corrupt practices.
8. Mr. V.R. Manohar, Mr. R.S. Desai, Mr. V.G. Kotwal, Mr. S.R. Borulkar and Mr. R.D. Soni, who appeared for the four returned candidates in these four cases addressed common arguments. The main argument is that true copy of the affidavit. which is an integral part of the Election petition, is not furnished to the respondent, in as much as, copy furnished does not contain the signature or name of the officer who administered the oath to the respective petitioners and further the date put by the officer is also not furnished on the copy. It is further argued that the true copy of the verification of the petition is not furnished to the respondents, in as much as, the name of the Court officer, who administered the oath and date put by him are not furnished in the copy furnished to the respondents. It is also argued that the concise statement, which is filed in all these cases, has not been verified according to law of verification of pleadings. It is also their argument that the affidavit is not in the prescribed form and hence it is bad in law. It is also argued that the annextures filed alongwith the Election Petitions are not signed by the petitioners, though they are verified under the signatures of the petitioners. It is therefore submitted that the petitions are not maintainable for violating the mandatory provisions of section 81(3) of the R.P. Act.
On the other hand the learned Counsel Mr. F.E. D'vitre and Mr. B. D. Joshi appearing for the petitioners in these cases contended that there is substantial compliance of section 81(3) of the R.P. Act and no prejudice is caused to the respondents even if there is any mistake in the copies supplied to them. It is, therefore, submitted that there is no merit in the technical objection taken by the respondents and the same is liable to be over ruled.
9. The first point for consideration is whether copy of the election petition furnished to the returned candidate is not true copy and consequently the petition is liable to be dismissed.
10. Requirement of supplying true copy in Election Petition is found in section 81 of the R.P. Act, 1951. For our present purpose Sub Clause 3 of section 81 is relevant, which reads as follows :-
"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".
Therefore we find that there is a statutory mandate directing the election petitioner to furnish a true copy under his signature to the respondent.
11. Then we come to section 86 of R.P. Act. We are only concerned with first sub clause for our present purpose.
section 86(1) reads as follows :-
"High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117".
By a combined reading of section 81(3) and section 86(1) of the R.P. Act, we can safely hold that the petitioner is under a statutory obligation to furnish true copy to the respondent and if there is a default then election petition is liable to be dismissed. This point is no logger res integra and is on covered by number of decisions of the Apex Court. In fact this position of law has not been disputed by the learned Counsels appearing for the petitioners.
12. In Sharif-ud-Din v. Abdul Gani Lone, it has been held that the above two provisions are mandatory. There is also latest decision of the Apex Court in the case of Dr. (Smt.) Shipra v. Shanti Lal Khoiwal reported in A.I.R. 1996 S. C. 1691, where the Apex Court has ruled that the petition is liable to be dismissed if a true copy of the petition is not furnished by the petitioner to the respondent.
13. Now therefore, we have to find out whether copies furnished to the respondent in all these cases were true copies or not? Before going to the facts of the case, let me also refer to some of the decisions, which were cited at the bar.
14. In Dr. (Smt.) Shipra v. Shanti Lal Khoiwal, A.I.R. 1996 S.C. 1691's case, the Apex Court found that the copy of the affidavit furnished to the respondent did not contain the endorsement of affirmation made by the Notary, though such an endorsement was available in the original affidavit filed alongwith the Election petition. The Supreme Court considered all the earlier decisions on the point and came to the conclusion that the petitioner is under an obligation to furnish an identical true copy of the election petition with an affidavit to the respondent failing which the petition is liable to be dismissed. The Supreme Court rejected the argument of substantial compliance and observed that supply of defective copy to the respondent is not a curable irregularity. It is pointed out that the principle of substantial compliance cannot be applied in the circumstances of the case.
Another argument advanced before me was that office should have pointed out the defect at the earliest point of time and then the petitioner could have rectified the mistake. Such an argument was pressed before the Supreme Court in Dr. (Smt.) Shipra's case. The Supreme Court rejected that argument and observed in para 12 of the reported judgment that the lapse on the part of the registry is not an insurance to deny the returned candidate to plead that the copy supplied to him is not a true copy.
An identical question arose before a learned Single Judge of this Court in a case Purshottam v. Returning Officer, Amravati Even in that case the endorsement of verification and the name and designation of the Notary who administered the oath were not available in the true copy furnished to the returned candidate. The learned Single Judge reviewed the case law and took a view that the copy supplied is defective and is not a true copy and hence the Election Petition came to be dismissed. The said judgment of the learned Single Judge has been approved by the Supreme Court in Dr. (Smt.) Shipra's case referred to above.
The view of the learned Single Judge of Rajasthan High Court Dr. Smt. Shipra case was confirmed by the Apex Court in Dr. Smt. Shipra's case in A.I.R. 1996 S.C. 1609. The learned Single Judge has considered the law bearing on the point in detail and held that if the copy supplied to the respondent is not a true copy then the petition has to fail.
The decision of the Apex Court in Dr. Smt. Shipra's case was subsequently followed by another Bench in Sh. Hareharan Singh Josh v. Sh. Hari Kishan's case . In that case it was found that the copy supplied to the respondent did not have the endorsement of verification by the Oath Commissioner and it is a fatal defect. This Bench also observed that the concept of substantial compliance has no application in such a case. It is pointed out that the defect is not a curable defect.
15. There is also another judgment of a learned Single Judge of Rajasthan High Court, who had taken identical view in a case reported in A.I.R. 1994 NOC 377 RAJ. Shantilal v. Guman Mal Lodha In this case we are concerned with head note (B), which is relevant for our present purpose. In this case also the endorsement of affirmation of oath was not available in the copy furnished to the respondent. It was pointed out that if copy of affirmation had not been given then, the respondent cannot find out whether the officer who administered the oath had the authority to administer the oath. It is further pointed out as follows :-
"In absence of such endorsement regarding affirmation, the respondent shall not be in a position to point out that the person who is said to have administered the oath was not in existence or had no authority to administer the oath or that the signature and the endorsement of the document purported to have been made by the alleged Authority were fake..... there was neither the name nor the designation nor the stamp of the person., who attested the affidavit nor the endorsement regarding affirmation, in the eye of law, it was not at all a copy of the affidavit as required under R. 38-A and Form 25 of the Rules of 1961".
The emphasis is that there must be endorsement of verification which must contain the name and designation of the officer who administered the oath. If that is given the respondent will have a chance to find out whether person who administered the oath had the authority to do so and whether he has really made such an endorsement etc.
16. Then we may make reference to another decision of the Apex Court in A.I.R. 1981 S.C. 956 Rajendra Singh v. Smt. Usha Rani, and others. The Supreme Court pointed out that if true and correct copy is not furnished to the respondent, then, the election petition is liable to be dismissed in limine. Another thing pointed out by the Apex Court was that it is no part of the duty of the respondent to wade through the entire record to find out whether copy is correct or not. Hence, the argument that prejudice is caused to the respondent and he could have checked the record or called for better particulars is not sustantainable when the statute requires that the true copy should be furnished to the respondent and if such a copy is not furnished then the petition is liable to be dismissed.
Then we come to another decision of the Apex Court Sharif-ud-Din v. Abdul Gani Lone. That was the case where a true copy had been furnished to the respondent attested by the petitioner's advocate. But the requirement of law under section 81(3) of the R.P. Act is that the true copy must be attested under the petitioner's signature; though the copy supplied was a true copy, but since it did not contain the signature of the petitioner, but only his advocate had signed as true copy, it was held that there was violation of mandatory provisions of section 81(3) of the Act and consequently, the dismissal of the Election petition by the High Court was confirmed by the Apex Court. If theory of substantial compliance had been applied then it could be argued that though there is no signature of the petitioner on the copy still the respondent had been furnished with a true copy and attested by an advocate and it amounts to substantial compliance. But such an argument has not been found favour with the Apex Court.
Another decision which was cited at the bar on this point is a case Mithilesh Kumar Pandey v. Baidyanath Yadav and others. In that case there were number of mistakes in the copy of the petition supplied to the respondent. After referring to number of decisions, the Apex Court formulated its views in para 15 of the reported judgment. It is pointed out that clerical and typing mistakes which are of no consequences may be ignored. If there are insignificant or minimal mistakes then they may be ignored. But if the copy contains important omissions or discrepancies of a vital nature which are likely to cause prejudice to the defence of the returned candidate, then the theory of substantial compliance cannot be applied. Of course, on facts the said decision may not be applicable to this case since, in that case there were number of mistakes in the copy supplied to the respondent.
17. I have already pointed out that section 81(3) of the R.P. Act has been held to be mandatory and if there is failure to comply with the same the election petition has to fail. I am fortified in this view by the decision of the Apex Court in Satya Narain v. Dhuja Ram and others. That was a case where the true copy of the election petition had been furnished to the respondent. But the defect pointed out was that the required number of copies had not been filed alongwith the election petition as required in section 81(3) of R.P. Act and therefore, the petition was not maintainable. The Apex Court upheld this objection and held that the petitioner is bound to furnish the required number of copies alongwith the election petition and cannot be permitted to furnish the copies after the period of limitation. If we apply the theory of substantial compliance or theory of no prejudice then it can be argued that respondents were furnished true copies, what prejudice is there for them if the copies had not been furnished alongwith the petition, but few days later. But the Supreme Court has ruled that the law has to be interpreted as it is and the High Court cannot even confer power on the Registrar to permit to correct or removal of defect after the lapse of the period of limitation. It is pointed out that the powers of the Court are circumscribed by the provisions of the section and the Court cannot go beyond the provisions of section.
My attention was drawn to an unreported decision of this Court. In an unreported judgment dated 8th October, 1996 in Election Petition No. 3/95 a learned Single Judge of this Court (Mr. Justice A.P. Shah) in the case of Hemant Bhaskar Deshmukh v. Purshottam Kalu Patil has taken a view that copy of the petition supplied to the respondent does not contain the endorsement of verification of affidavit then it is a fatal mistake and election petition is liable to be dismissed.
Then we have another recent decision of (Justice K.G. Shah) a learned Single Judge of this Court dated 17/22-10-1996 in Election Petition No. 1/96 Anant Waman Tare v. Shri Abdul Rehman Abdul Gaffur Antulay & another, where on an identical question as raised in the present petition, the learned Judge has taken the view that the defect is fatal and the election petition is not maintainable. In that case the identical question which is raised in the present petition was raised namely that the name of the Associate and the date put by him in the original petition were missing in the copies supplied to the respondents and this is a fatal defect which goes to the root of the matter which warrants dismissal of the election petition at the threshold. I have gone through the judgment of the learned Single Judge and I am in agreement with the view taken by him. His view is based on the decision of the Apex Court in Dr. Shipra's case and the earlier decision of another learned Single Judge in Purshottam v. Returning Officer's case .
18. As against this the learned Counsel for the petitioners invited my attention to some of the decisions on the point.
In Ch. Subbarao v. Member, Election Tribunal, the question was about the correctness of the true copy furnished to the respondent. In that case there was no dispute that correct copy had been supplied to the respondent. There was no dispute that the copy supplied had been signed by the petitioner. The only thing missing was there was no mention of the words "True Copy" above the signature of the petitoner. In those circumstances. It is held that there is substantial compliance with the mandate of law and where the copy supplied is a correct copy and bears the signature of the petitioner, then it is sufficient, though there was no endorsement as "True Copy" on the copy supplied to the respondent. Hence, the decision is distinguishable on facts.
In Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and others, the question was about the correctness of the true copy furnished to the respondent. The objection was that the copies served on the respondents were correct copies and the petitioner had signed on every page of the copy, still he had not signed in the last page below the word " Petitioner" and therefore it was a defective copy. This contention was rejected by the Supreme Court stating that the petitioner has signed on all the pages of the copies and there was no necessity for one more signature on the last page below the word "petitioner" and it is not a fatal defect.
Then there was an objection about the defect in the endorsement of the Oath Commissioner, who had used the words "verified by me" instead of "before me" in the affidavit. It was pointed out that it is only a minor omission on the part of the Oath Commissioner due to lack of experience and it will not affect the validity of the affidavit.
In F.A. Sapa Etc.Etc. v. Singora and others, the question was about the defect in verification and defect in the supply of true copy to the respondent.
As far as the defect in the verification is concerned, it is not relevant for our present purpose, since, there is no allegation by the respondents that there is any defect in the verification of the election petition.
Coming to the question of copy, admittedly an exact true copy had been furnished to the respondent. The petitioner had signed the copy with an endorsement as "Certified, True Copy". The Apex Court observed that there is no defect either in the copy or in the attestation made by the petitioner and hence, the argument that true copy was not furnished to the respondent was rejected.
In Bhikaji Keshao Joshi and another v. Brijlal Nandlal Biyani and other, the question was about some defect in the verification of the election petition which is not relevant for our present purpose.
In the case of M. Kamalam v. Dr. V..A. Syed Mohammed, , one objection was taken that the copy supplied was not a true copy. In fact it is pointed out in para 3 of the judgment that if there is no compliance of section 81(3) of the R.P. Act, then the Court has no other option but to dismiss the election petition. In that case true copy of the election petition and affidavit had been furnished to the respondent. The petitioner had signed only at the foot of the affidavit and not at the foot of election petition. It is therefore pointed out that the copy was defective. The Supreme Court pointed out that an affidavit is an integral part of the election petition and therefore, Signing of the affidavit amounts to signing of the election petition and if there is no separate signature on the copy of the election petition, it is not fatal, when there is a signature at the end of the affidavit, which is a part of the election petition.
Then my attention was drawn to another recent decision of the Apex Court in the case of Manohar Joshi v. Nitin Bhaurao Patil & another, , where a point was raised before the Apex Court that the copy supplied to the respondent was not a true copy and it violates the mandate of section 81(3) of the R.P. Act. In that case there was no dispute about the true copy of the petition being not furnished to the respondent. But what was pointed out was that in the election petition there was reference to certain video cassettes but the video cassettes had not been furnished alongwith the election petition nor their copies or transcript were furnished to the respondent. Therefore, that was not a case where copies supplied were in any way defective since, the original cassettes had not been produced to Court at all. Therefore, it is not a case of there being any defect in the copies supplied to the respondent. As far as not furnishing the video cassettes to Court or giving its transcript to the respondent, the Supreme Court observed that video cassettes were only in the nature of evidence and not an integral part of the election petition and therefore not filing them in Court alongwith the petition was not fatal defect. Hence, in my view that decision has no bearing on the point under consideration.
19. In the light of the discussion of the above decisions what follows is that the petitioner is under a statutory obligation to furnish a true copy of the election petition to the returned candidate.
20. As already pointed out in the latest decision in Dr. Shipra's case, the Apex Court has ruled that a true copy is a transcript identical to or substitute to the original, but not absolutely exact copy. The test which the Apex Court observed is whether by any variation from the original is calculated to mislead an ordinary person ( Vide para 8 of the reported judgment in Dr. Smt. Shipra's case). Now let us find out from the 4 petitions before me, as to whether a true copy of the petition has been furnished to the respondent in these four cases or not?
21. It may also be noted that in all the four cases, the petitioners are challenging the election of the respondents on the ground of corrupt practices. In such a case, the petitioner is bound to file an affidavit as per proviso to section 83(1) of the R.P. Act In this case, an affidavit has been filed in all the four cases. There is no dispute that such an affidavit is an integral part of the Election petition.
22. In Election Petition No. 7/95, the entire copy of the petition served on the respondent is placed on record alongwith the affidavit and annextures.
In the original election petition, at page 17 there is a verification and below it the signature of the petitioner and below that there is a signature and date of the Associate, who administered oath to the petitioner regarding verification. But in the copy furnished to the respondent at page 17, name, signature and designation of the officer and the date put by him are missing. The verification has to be done before an officer who is empowered to administer the oath. In this case, it is not disputed that the Court Associate of the High Court is an authorised officer to administer the oath regarding affidavit and verification of pleadings. Since, in the copy furnished to the respondent there is no indication that it has been signed and verified before the Court officer, much less his name and designation and date, which are missing. Hence, it is not possible for the respondent to know whether the petition has been verified at all and if so before which authority and on what date. The date is also important to know whether the verification has been done on or before the last date of limitation.
In Election Petition No. 7/95, the petitioner has filed an affidavit as required by proviso to section 83(1) of the Act, which is an integral part of the petition and the copy of the same has been furnished to the first respondent, the returned candidate. Now the question is whether the true copy of the affidavit is given or not?
23. In the original petition, the affidavit is at page 51 and at page 52, below the signature of the petitioners, after the words "Before me" there is signature of the Court Associate with date. But in the copy of page 52 furnished to the returned candidate, the signature of the Associate or the name of the Associate does not find place, it is simply written as "Sd/-" and no date is put. In other words, copy does not contain either the signature or name of the Associate and the date but by him, which finds a place in the original affidavit.
24. In Election Petition No. 8/95, in the original petition, the last page of the petition is page 33.
The learned Counsel for the respondent has produced a zerox copy of page 32 of the copy of the petition furnished to him. It is seen that in the copy the signature of the Associate or the name of the Associate and the date put by him are missing though in the original at page 32, we have the signature of the Associate with date as 24-4-1995. Further, the copy at page 32 does not contain the signature or the name of the advocate though in the original petition, there is a signature of the advocate for the petitioner.
Further, we find that in the original affidavit at page 303, there is signature of the Associate and also the signature of the advocate for petitioner. But in the zerox copy of page 303 given to the respondent, we do not find the name and signature of the Associate or date put by him or the name or the signature of the advocate who has signed in the original petition.
25. In Election Petition No. 10/95, the respondent has produced the entire copy of the petition, affidavit with all the annextures supplied to him.
In the original petition, at page 13, there is signature of the Associate with date as 26-4-1995 and also signature of the advocate for the petitioner. But in the copy at page 13 of the petition supplied to the respondent, the signature or name of the Associate and the date put by him and the signature or name of the advocate are missing. Further we find in the original the designation of the officer is shown as Associate by striking out the alternative designation Asst. Master. But in the copy furnished to the respondent, it is simply shown as "Sd/- Associate/Asst. Master." That means the person who has signed may be either Associate or Asst. Master. But in the original, Asst. Master is struck up and only Associate is retained.
26. In this case, in the last page of the affidavit of the petitioner namely page 39, there is signature of the Associate with date and also the signature of the advocate for the petitioner, but in the copy at page 39, the name and signature and date put by Associate are missing and name or signature of the advocate for petitioner is also not shown.
27. In the last case namely 'Election Petition No. 11/95, the respondent has produced the entire copy of the petition served on him alongwith all the annextures and affidavit.
In the original petition, in the last page namely page 16, the verification is made before the Associate, whose signature finds place with date as 26-4-1995, but in the copy furnished to the respondent, the name or signature of the Associate alongwith date are missing . But it is only shown as "Sd/- Associate".
The same mistake has occurred at page 52 of the copy of the affidavit, where the name and signature of the Associate with date are missing though they find a place in the original affidavit at page 52.
28. It is therefore seen in all these four cases, in the copies furnished to the respondents, the name or signature of the Associate and the date put by him are missing. The question is whether this mission is substantial and causes prejudice to the respondent in order to warrant the dismissal of these petitions.
29. I have already referred to the decisions of the Apex Court. We have seen that in one case true copy of the petition had been served on the respondent but attested as "true copy" by his advocate, but did not contain the signature of the petitioner as required by section 81(3) of the Act. The Apex Court held that it was a fatal mistake and the petition is liable to be dismissed. Similarly, in another case, we find that though true copy of the petition had been furnished to the respondent, the petition was dismissed on the ground that required number of copies were not filed in Court alongwith petition, as required by section 81(3). It shows how the Courts have strictly interpreted the statutory mandate of section 81(3) of the R.P. Act.
There is no doubt that purity of election should be maintained at all costs. If corrupt practice is alleged and proved then the election is liable to be set aside. The other principle of public policy involved is that when the electors have given a verdict in favour of the returned candidate and he is elected by getting highest number of votes, the verdict of the people should be respected and should not be set at naught, unless, the petitioner proves the corrupt practices. We must also bear in mind that this is an action in common law. It is well settled that in common law people have no right to challenge the validity of an election. Similarly, there is no fundamental right or other right under the Constitution to challenge an election. The Challenge to an election is conferred by the statute namely Representation of People Act, 1951. It is a statutory right. That right can be exercised within the parameters of law. That law namely section 81(3) provides as to how an election petition should be filed and how copies to be furnished etc. Therefore strictly speaking we cannot go to the realm of substantial compliance or prejudice to the returned candidate. If there is a statutory mandate that a particular thing should be done in a particular way, then it must be done in that way, failing which an action fails. I have already referred to some of the decisions of the Apex Court, where it is ruled that section 81(3) of the R.P. Act is mandatory and if there is a violation the, the election petition is liable to be dismissed in limine.
30. We have already seen in some of the above decisions that if there is omission in supplying the true copy of the petition, it may prejudice the defence of the returned candidate. Now in this case, the verification of the petition is made before the Associate and the affidavit is sworn before the Associate, but whose name or signature and the date put by him do not occur in the copies furnished to the respondents in all these cases. Can it be said that this is an insignificant omission which need not be taken notice of. In the original the Associate has put a date. That means the date put by the Associate shows that the petition is verified by him on that particular date and the affidavit was sworn to before him on the particular date. If these dates are missing in the copy supplied to the respondent, then respondent will not be in a position to know as to on what date the verification was affirmed before the Associate or on what date the affidavit was sworn to before the Associate. The date is very relevant, since, it has a bearing on the question of limitation. Suppose the affirmation of the affidavit or verification of the petition had been done after the period of limitation, then the respondent will have a right to say that petition is barred by limitation. If those crucial dates are not furnished in the copy supplied to the respondent, then he cannot take the reference of limitation or his defence will be prejudiced since, he is kept in the dark about the date of affirmation of verification or affirmation of affidavit. It could be argued and in fact it was argued before me that respondent could have asked for particulars or the respondent could have perused the original petition and found out date, but that is not the intendment of the law. We have already seen how for want of signature of the petitioner on the true copy furnished to the respondent or not supplying required number of the copies of the petition were held to be fatal defects which entails the dismissal of the election petition. It could be easily argued in that case that no prejudice will be caused to the respondent since true copy attested by the Advocate is furnished or in the other case, true copies of the petition have been subsequently furnished to the respondent and he could file his defence. As already pointed out, the Supreme Court has clearly observed that it is no part of the duty of the respondent to wade through the entire record to find out the facts and that he is entitled to correct copy to be supplied to him and it is further observed that provisions of section 81(3) of the R.P. Act are mandatory and non-compliance is fatal and it is not a case of curable irregularity. A.I.R. 1981 S.C. 956, Rajendra Singh v. Smt. Usha Rani and others. Since, the date of affirmation of verification and the date of swearing of the affidavit is not given on the copy supplied to the respondent, it seriously prejudices his defence and therefore, it is a case of not supplying true copy as required by section 81(3) of the Act.
We find that in the original there is signature of the Associate. In the copy, it is simply shown as "Sd/-, Associate". Now the question is whether this amounts to sufficient compliance. It may be the petitioner could not have given signature of the Associate in the copy, but could have mentioned instead of word. "sd/-" as "signature of particular Associate" by giving his name. That would have given information to the respondent as to who is the Associate, who signed the verification and the affidavit. When such name is not given , the respondent will not be in a position to plead that the person who has signed as Associate was not an Associate at all or he was not empowered to administer the oath or it is a fake certificate etc.
31. I therefore hold that in these cases, since the copy supplied to the respondent do not contain the signature or name of the Associate and the date put by him, the copy supplied is not a true copy within the meaning of section 81(3) of the Act, therefore, is a fatal defect which warrants the dismissal of the election petition for non-compliance of provisions of section 81(3) of the Act.
32. In all these cases, another serious argument is that the affidavit filed under proviso to section 83 is an integral part of the Election Petition and the affidavit has to be filed in a particular form given in the rules. But the affidavit produced before the Court is no affidavit in a proper form and hence, there is non compliance of the proviso to section 83(1) of the R.P. Act. In fact the proviso to section 83(1) of the R.P. Act reads as follows :---
"Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof"
(Underlining is mine).
This is not disputed by the learned Counsel appearing for the petitioner. In fact the affidavits were filed by the petitioners as required by law, but only defect is that the affidavit is not in the prescribed form.
In all the four cases, the affidavits are similar. Hence, it is sufficient if I refer to one of the affidavits. In Election Petition No. 7/95 the original affidavit at page No. 51 and the affirmation form is at page No. 52. Relevant portion at page 52 is as follows :---
"Solemnly affirmed at Bombay) this 26th day of April, 1995) Sd/-
Petitioner, Sd/-
Advocate for the petitioner, Before me, Sd/- x 26-4-1995 Associate, High Court, O.S. The Rules framed under Rule 94-A of the conduct of Election Rules, 1961 provides that the affidavit shall be sworn in form No. 25. In Form No. 25 the verification column is as follows :---
Signature of deponent.
Solemnly affirmed/sworn by Shri/Shrimati........at....... this..........day..........of..........19........ Before me, Magistrate of the First Class, Notary/Commissioner of Oaths) If we compare the prescribed form with the affidavits filed in these cases, we find that there is no endorsement of affirmation by the Court associate As required by law except the endorsement as "before me", which is signed by the Associate. There is no endorsement made by him as mentioned in the form. In the petition solemnly sworn is just above the signatures of the advocate and the petitioner, as if it is a statement made by the petitioner. But there must be an endorsement by the Magistrate or the Notary of the Court. Associate that so and so solemnly affirmed before him at a particular place on a particular date. This endorsement as mentioned in the prescribed form is conspicuously absent in the affidavit filed in this case. Hence, it has to be held that the affidavits filed in these cases are defective and affidavits are not in the prescribed form and hence, there is violation to the mandate of proviso to section 83(1) of the Act.
In fact, in Shipra's case, one of the Judges (His Lordship Justice Bharucha) has observed in para 16 of the reported judgment as follows :---
"Where corrupt practice is alleged the election petitioner must support the allegation by making an affidavit in the format prescribed. An affidavit must be sworn or affirmed in the manner required by law, or it is not an affidavit."
. (Underlining is mine) Therefore, position of law is very clear that the affidavit must be in the prescribed form and if there is no affirmation in the affidavit as required by law, it is not an affidavit at all.
An affidavit contains two parts, one is a statement made by the petitioner about certain facts, then an endorsement by the concerned officer that the statement was made on oath before him. In the present case, the endorsement of the concerned officer about confirmation on oath "before me" on a particular day and at a particular place as provided in the prescribed form is conspicuously absent. Hence, I am constrained to hold that the affidavits filed in the present cases are no affidavits at all in the eye of law and when there is no such affidavit, then an election petition is not maintainable because in the case of Election Petition alleging corrupt practice filing an affidavit under proviso to section 83(1) is mandatory.
33. On behalf of the petitioner reliance was placed on , which I have already referred to above on some other points. In that case, the Oath Commissioner had mentioned above his signature as "by me" instead of "before me". The Apex Court observed that it is a mistake committed by the Oath Commissioner and it is not such a serious mistake to affect the validity of the affidavit. In my view this decision has no application to the facts of these cases.
34. In all these cases what we find that the entire endorsement which should be made by the Oath Commissioner as per the prescribed form namely Form 24-A is missing. Therefore, this is a case where there is no affidavit before the Court as per the prescribed Form 24-A Therefore, it is a case where an Election Petition is not supported by an affidavit as prescribed as provided in proviso to section 83(1) of the R.P. Act and this is a serious fatal defect, which affects the maintainability of the Election Petition. Hence, even on this ground all the four Election Petitions are held to be not maintainable since there is no affidavit in prescribed form in support of the Election Petition as required by law.
35. Mr. D' Vitre who is appearing for the petitioner in Election Petition No. 8/95 contended that there is no proper application by the respondent pointing out defects in the election petition. In my view there is no merit in this submission.
In the Written Statement filed in Election Petition No. 8/95, the respondent has taken a specific stand that the election petition does not comply with the provisions of sections 81, 82 & 83 of the R.P. Act and hence, the petition deserves to be dismissed at the threshold. Then in para 53 of the Written Statement there is a specific plea that the petition is bad since the mandatory requirement of filing an affidavit in prescribed form is not complied with by the petitioner and one affidavit which is filed is not in accordance with the form prescribed under Rule 24 A. Then, in the Chamber Summons No. 106/96 taken out by the respondent, it is clearly mentioned that the petition is not maintainable since, the petition does not comply with the provisions relating to verification of pleading as required by the Act and Rules. It is further mentioned that the petition is liable to dismissed for non-compliance of the mandatory requirement of sections 81 and 83 of the Act.
In my view there is sufficient pleadings both in the Written Statement and in the Chamber Summons to show that the petition is contrary to the mandatory requirement of sections 81 and 83 of the Act.
36. It was also argued by Mr. D'vitre that there is delay in filing the Chamber Summons. When the preliminary objection is going to the root of the matter and there is a violation of the mandatory provision, the question of delay does not arise at all. The respondent is under no obligation to wade through the record and then file an application immediately. Issues are not yet framed, trial has not yet begun, the matter is still at the stage of pleadings therefore, it cannot be said that there is any delay so as to reject this Chamber Summons as not maintainable.
37. In all these petitions, the learned Counsel appearing for the respondents, further contended that the petitioners have filed concise statement but the concise statements are not verified as required by law, but they are only signed by the petitioners. When the concise statement is an integral part of the petition then if it is not signed and verified as required by law pleadings, then it will be a fatal defect.
On the other hand, the learned Counsel appearing for the petitioners submitted that the concise statement is filed only as formality and all that is mentioned in the concise statement is already included in the election petition, which has been duly signed and verified and therefore, any defect in the concise statement will not affect the maintainability of the election petition.
38. One more point that was canvassed by Mr. V.R. Manohar in Election Petition No. 7/95 is that there are number of annextures to the election petition and they are to be signed and verified with the signature of the petitioners, but there is no signature for the annexture as such.. We know that if an annexture has to be signed and verified, then at the end of the annexture there must be one signature and then there should be verification and below that there should be another signature of the petitioner. But what we find in Election petition No. 7/95 is that there is only one signature below the verification and no signature at the end of the annexture and above the verification portion. It was therefore argued that the annextures are not duly signed though verified and it is a fatal defect.
On behalf of the petitioner in Election Petition No. 7/95 it was argued that the alleged defect is no defect since the petitioner has signed below the verification clause.
Since, I have come to the conclusion that all the four election petitions are not maintainable for two defects already pointed out, it is not necessary to consider the argument regarding the defect in the concise statements in all the cases and the defect in signing of the annextures in Election petition No. 7/95. Since the finding on either way is not helpful when in view of my upholding two preliminary objections, the election petitions are liable to be dismissed as not maintainable.
39. In Election Petition No. 10/95, the learned Counsel Mr. Soni appearing for the respondent raised one more additional point. He pointed out that the copy of the verification of the petition supplied to the respondent is not a true copy and this amounts to violation of section 81(3) of the Act.
In Election Petition No. 10/95, the verification of the petition is at page 13. The relevant portion is " ............... What is stated in paragraphs Nos. 1 to 13..........is true to my knowledge and what is stated in the paragraphs Nos. 14 to 20 ..........to be true."
The learned Counsel for the respondent has produced Zerox copy of page 13 of the copy of the petition supplied to him. In the copy supplied to the respondent, we find that the paragraphs. Nos. at both the places are left blank. We have found that in the original petition paragraphs Nos. 1 to 13 are shown at one place and paragraphs Nos. 14 to 20 at another place. But in the copy supplied to the respondent, these paragraphs Nos. are not at all shown and that portion is left blank.
The learned Counsel for the respondent is therefore right in his submission that copy furnished to him is not a true copy of the petition in view of the blank portion in the verification of the copy supplied to the respondent, though blanks are filled up in the original petition filed in Court. To such a situation the mandatory provisions of section 81(3) are attracted and on this ground also the Election Petition No. 10/95 is liable to be dismissed.
The learned Counsel for the respondent also invited my attention to unreported judgment dated 8-10-1996 of Justice Shri A.P. Shah of this Court in Election Petition No. 3/95 Hemant Bhaskar Deshmukh v. Purshottam Kalu Patil, where the learned Judge has taken a view that if there is a defect in the verification in the copy supplied to the respondent, then it is a fatal defect. I respectfully agree with the view taken by the learned single Judge.
40. A submission was also made at the bar that the question may be referred to a Division Bench for decision. In my view, there is no necessity to refer the case to Division Bench. An Election Petition is assigned to a single Judge for disposal. I have agreed respectfully with the view taken by the learned single Judge of this Court namely Justice K.G. Shah and Justice A.P. Shah in two decisions mentioned above. Further view taken by me and by these learned Judges are on the basis of latest decision of the Apex Court in Shipra's case. When the matter is concluded by the decision of the Apex Court, there is no necessity to refer the point involved in the case to a Division Bench.
41. I fully agree with the contentions of Mr. D' vitre and Mr. Joshi that each case has to depend on its own facts and circumstances. But after considering the law bearing on the point and applying the said law to the facts of this case, I have no hesitation in reaching the conclusion that all the four election petitions suffer from two major defects, namely that the copy of the election petition and the accompanying affidavit supplied to the respondent are defective being not true copies and this is a fatal defect, which goes to the root of the matter. Then, other point is that the affidavits filed in support of the election petitions in all the four cases are not in the prescribed form and there is no endorsement of affirmation by the Court Associate as provided in the prescribed form and this also is a defect, which affects the maintainability of the petition. In one case, I have found that the copy supplied to the respondent is also not a true copy, since the copy of verification of the petition is defective, since the columns are not filled up. Hence, for these reasons, I have reached to the conclusion that all the four election petitions are liable to be dismissed as not maintainable.
42. In the result all the four election petitions Nos. 7/95, 8/95, 10/95 & 11/95 are hereby dismissed as not maintainable for the reasons mentioned above. Chamber Summons No. 1205/96 (in E.P. No. 7/95), Chamber Summons No. 106/96 (in E.P. No. 8/95), Application dated 3-12-1996 in E.P. No. 10/95 and precipe dated 28-11-1996 in E.P. No. 11/95 are hereby allowed. Since, I am disposing of all the four petitions on preliminary and technical objections and on a point of law, I do not want to pass any order as to costs. Hence, all the parties are directed to bear their own costs. The amount deposited by the election petitioners as security for costs in each case shall be refunded to them after the appeal period is over.
The Registrar is directed to intimate the result of this decision to the Election Commission and speaker of Maharashtra Legislative Assembly immediately as required under section 103 of the R.P. Act. Further the Registrar to send a copy of this order to the Election Commission as soon as the copy is ready, as provided in section 103 of R.P. Act.
Petition dismissed.