Punjab-Haryana High Court
Boota Singh vs Sher Singh And Others on 8 September, 1993
Equivalent citations: AIR1994P&H32, AIR 1994 PUNJAB AND HARYANA 32, (1992) 1 ACC 518
ORDER
1. Boota Singh, defeated candidate, has challenged the election of Sher Singh, respondent No. 1, to the Punjab Legislative Assembly, which was held on 19-2-1992 regarding Assembly Constituency No. 115, Mansa, District Bhatinda, Punjab.
2. Briefly, it has been alleged that Sher Singh, respondent No. 1, secured 6137 votes as against 6101 votes, which were secured by the petitioner; that the ballot box at Booth No. 79 on counting table No. 8 was found without any seal and when Shri Gora Singh son of Teja Singh the counting agent of the petitioner raised an objection it was turned down by the Returning Officer; that the supporters of respondent No. I numbering about 40 came in a truck at about 2.00 p.m. and in collusion with the polling staff cast the votes although these persons did not belong to village Gharangana; that the polled votes from Booth Nos. 155 and 156 were 32 while actually only one vote was polled on the day of polling; that about 40 supporters of respondent No. 1, the returned candidate had come in a truck at 11 a.m. to cast votes to village Mann Bibrian although they were not voters of the village, that though the mother of the returned candidate was already dead yet he got her vote polled through some other woman. Besides this, the petitioner has given the particulars of 9 dead persons in lieu of whom the votes were allegedly cast with the consent of respondent No. 1; that the petitioner made an application for re-counting at table Nos. 3, 5, 9 yet this proposal was ignored and result was declared; that the result of the election has been materially affected on account of improper reception of the votes and the petitioner has prayed for re-counting regarding Booths Nos. 115 and 116 and also prayed for setting-aside the election of the returned candidate.
3. There is a preliminary objection that the affidavit filed with the election petition is not in conformity with the statute and is no affidavit in the eye of law and that the election petition is liable to be dismissed on this ground alone; that even the election petitioner has not properly verified the election petition. 0The verification is wholly defective and theelection petition is thus, not maintainable; that the averments made in the election petition regarding improper reception of votes are baseless and lack material facts and full particulars; that the true copy of the election petition as required under S. 81(3) of the Representation of the People Act, 1951 supplied to the answering respondent was not an attested true copy. Besides this the alleged affidavit as furnished by the petitioner was not notarised and the election petition is liable to be dismissed. The other allegations were also controverted. The issues were framed on 30-10-1992. However at present only five preliminary issues have come up for decision and these are reproduced as under :--
1. Whether the affidavit filed with the petition is in accordance with the law and the Rules?
2. Whether the petition is properly verified, if not, what is its effect ?
3. Whether the copy of Election Petition with Annexures and affidavit supplied to the Respondent No. 1 is a true copy and conform the mandatory requirement of Section 81(3) of the Act?
4. Whether the petition does not disclose material particulars regarding receiption of improper votes by the returned candidate?
5. Whether the Election Petition is liable to be dismissed because of non-compliance of provision of Section 81(3) of the Act?
4. Issues Nos. 1, 3 and 5.
These issues are inter-conneced and taken up together.
5. Section 81(3) of the Representation of the People Act, 1951 reads as under :--
"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 signatures to be a true copy of the petition."
The learned counsel for the respondent has specifically pointed out that every copy required attestation by the petitioner under his own signatures. The copy of the affidavit of Boota Singh petitioner which is now Annexure R-1 is not a true copy was pointed out by the learned counsel for the respondent.
It does not contain the name, designation and particulars of the attesting authority. The learned counsel for the respondent has referred to Purushottam v. Returning Officer, Amravati, AIR 1992 Bom 227 where the requirement of S. 81(3) of the Representation of the People Act, was in question and it was held that the absence of the endorsement of the Notary, "affirmed and signed before me", his designation and tb - stamped endorsement regarding the affirmation, could not be regarded as inconsequential. It was an omission of a vital nature and the Court came to the conclusion that it was not possible to hold that there has been substantial compliance of the provision of Section 81(3) of the Act. The learned counsel for the respondent has also referred to Mithlesh Kumar Pandev v. Baid-nath Yadav, AIR 1984 SC 305, wherein it was observed that Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving liberal or broad interpretation to the provisions of the said section. In other words, it goes to show that the provisions of Section 81(3) required strict compliance. Besides this attention has also been invited to Rajendra Singh v. Smt. Usha Rani, AIR 1984 SC 956 wherein it was observed that it was manifest that a party should receive a correct copy as contemplated by Section 81(3) of the Act. The learned counsel for the respondent has referred to Iqbal Singh v. Avtar Singh, 1993 (2) 104 PLR 255 wherein it has been observed that it was difficult to hold that the absence of endorsement by the Notary on the copy of the petition supplied to the returned candidate was only a clerical or typographical mistake. The plea of the learned counsel for the petitioner that the petition was in conformity with the Rule 12 of Chapter 4-GG of Rules and Orders of this High Court, Vol. I as such is not acceptable inasmuch as the requirements of Section 81 of the Representation of the People Act, which is a special law has not been fulfilled. The conclusion is that issues Nos. 1, 3 and 5 are decided in favour of the respondent and against the petitioner.
Issue No. 2.
The verification of the petition which also bears the signatures of the petitioner is a detailed one. This issue is decided in favour of the petitioner and against the respondent.
Issue No. 46. The petitioner has not made any reference to the allegations made in paras 5, 6 and 7 in his affidavit dated 3-4-92 which is at page 12 of the record. The affidavit has been sworn in respect of paragraphs 8 to 12.
7. As regards para 8 it has been alleged that the supporters of the returned candidate numbering about 40 came in a truck at about 2.00 P.M. and in collusion with the polling staff cast their votes though these persons did not belong to village Gharangana. The learned counsel for the respondent has pointed out that this para does not find mention as to who was the owner of the truck or what were the names of the persons and who was driving it and does not contain even the registration number which it carried on its plate or body. The learned counsel for the respondent has referred to Udav Singh v. Madhav Rao Scindia, AIR 1976 SC 744 and pointed out that material facts would mean all the basic facts constituting the ingredients of the particular corrupt practice which the petitioner is required to substantiate.
8. In para 9 there is an allegation that Karnail Singh alias Bhola Singh son of Gujjar Singh of village Mann Bibrian only had cast his vote and he too has been killed by the militants on 28-2-1992 and a report has been entered regarding his death at Police-Station Mansa. The alleged death of a voter after about 9 days of the polling is immaterial and this plea does not contain any alleged corrupt practice.
9. Para 10 of the petition does not contain any specific corrupt practice either committed by the respondent or by any of his authorised agents.
10. In para No. 11, again there is a plea similar to that taken in para No. 8 and it does not contain the details, about the truck in which 40 supporters of the returned candidate allegedly came to village Mann Bibrian, There is no mention as to when this alleged corrupt practice came to the notice of the petitioner nor there is any mention that it was brought to the notice of the returning officer in writing.
11. In para 12 there is an allegation that the supporters of the returned candidate came in a truck which was having posters with election symbol 'Hand'. Here also the name of the owner of the truck, the name of the driver or Conductor or its registration number or its colour do not find mention and it too lacks material particulars. In this para there is also no specific mention that the alleged corrupt practice of booth capturing was committed with the 'consent' of the returned candidate. Thus, it is a case where the number, colour or make of any of the trucks alleged to have been used by the respondent does not find mention. Similarly, the names or description or identity of the persons alleged to have indulged in booth-capturing also does not find mention. There is no specific allegation that any particular member of the polling staff was in collusion with the respondent No. I for the alleged casting of votes in his favour. There are no material facts as to how the respondent No. 1 obtained the service of any Government official nor his identity finds mention. The conclusion is that the petition lacks material facts and necessary particulars regarding corrupt practices and for this reason this issue No. 4 is decided against the petitioner and in favour of the respondent.
12. Since the preliminary issues Nos. 1,3, 4 and 5 have been decided in favour of the respondent the present petition fails and is hereby dismissed. There is no order as to costs.
13. Petition dismissed.