Madhya Pradesh High Court
Dinesh Kumar Jain @ Boss vs Bahadursingh Chouhan on 29 May, 2020
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
1
THE HIGH COURT OF MADHYA PRADESH
Election Petition No.28/2019
(Dinesh Kumar Jain @ Boss Vs. Bahadursingh
Chouhan)
Shri Vivek Tankha, learned Senior Counsel with Shri
Jerry Lopez, learned counsel for the petitioner.
Shri Vivek Patwa, learned counsel for the respondent
No.2.
Shri S.R. Madrosiya, learned counsel for the
respondent No.5.
ORDER
(Passed on 29/05/2020) This order shall govern the disposal of I.A. No. 5452/2019 filed by Respondent no. 1 under order 7 rule 11 of the CPC, 1908 read with Sections 80,81 and 83 of the Representation of People's Act,1951 (in short "RP Act"). (2). The facts necessary for the disposal of the instant application are that, the Election Commission of India issued a press note dated 6/10/2018 and declared the schedule for the General Elections to the State Legislative Assembly of Madhya Pradesh. As per the schedule, the General Elections were to take place on 230 Assembly seats. The instant Election Petition relates to Legislative Constituency No. 213 (Mahidpur, District - Ujjain). (3). The Election Commission of India after the conclusion of the counting of votes declared respondent no. 1 as Returned Candidate whereas the present Election Petitioner was placed 2nd in the list of candidates based on number of votes received by each candidate. After notification of Respondent No. 1 as Returned Candidate on 11/12/2018, the present election petitioner filed petition in terms of Section 81 of the RP Act alleging multiple 2 misconducts on the part of Respondent No. 1 while the moral code of conduct was in effect and allegedly the same were sufficient for declaring the election of Respondent No. 1 as null and void.
(4). This court issued notices to the respondents on 27/02/2019 and invited the respondents to submit their written statement.
(5). The respondent no. 1 entered appearance on 29/04/2019 thereafter on 19/06/2019, the counsel for Respondent No. 1 alleged that, he did not receive the copy of Annexure P/5 which is a CD along with the copy of the Election Petition served on him by this court. Upon this plea of the respondent, the learned counsel for the petitioner sought time to supply such annexure to the Respondent no.
1. Later, the order sheet dated 26/06/2019 indicates that the learned senior counsel for Respondent no. 1 acknowledged the receipt of CD one day prior to the date of hearing and consequently sought more time to file the reply of the election petition.
(6). The order sheet dated 25/7/2019 indicates that the learned counsel for the petitioner was served with IA No. 5452/2019 seeking rejection of the Election Petition. In return the learned counsel for the petitioner sought time to file his response to such application which was eventually filed on 06/11/2019 bearing Document No. 6948/2019. (7). Broadly, the contents of the application filed by the respondent no. 1 allege non-compliance of Section 81 and Section 83 of the RP Act leading to the submission which has its foundation under Section 80 of the RP Act i.e. This 3 election cannot be called in question as the election petition has not been presented in adherence with Part VI Chapter II of the RP Act. In order to substantiate this submission, learned counsel for the Respondent No. 1 invited attention of this court to the copy of the Election Petition which was served upon the Respondent No. 1 to contend that, neither the pages of the copy of the Election Petition bears attestation by the Election Petitioner that, the same is true copy of the original nor bears the original signature of the Election Petitioner, thereby violating Section 81 (3) of the RP Act.
(8). In addition to the above, it has also been submitted by the Respondent No. 1 that the petition suffers from non- compliance of Section 83(2) of RP Act, as the same mandates the annexure of the petition to be signed and verified in the same manner as the petition, which is lacking in the instant case. Since the CD presented by the petitioner and marked as Annexure P/5 has not been verified and attested in the same manner as the petition. Moreover, the petitioner did not attach the CD along with the copy of the Election Petition furnished for the sake of Respondents, which renders the non-adherence of Part VI Chapter II of the RP Act more grave and thus petition be dismissed.
(9). Per contra learned senior counsel for the Election Petitioner contended that, the non-compliance highlighted by the Respondent No. 1 are at best abrasions and cannot be termed as the foundational errors which may warrant rejection of the Election Petition. Further, it has been 4 submitted with respect to non-compliance of Section 81(3) of the RP Act that, it is vivid from the perusal of copy of Election Petition that it bears original seal of the notary and also bears the carbon copy of the signatures of the Election Petitioner, since the copies supplied to the respondents are exact xerox of the Election Petition.
(10). It has also been contended by the learned senior counsel for the Election Petitioner that, the allegation of non-compliance of Section 83(2) is incorrect, since the CD was duly attached with the copy of the Election petition and its supply on 25/06/2019 was merely to avoid delay in adjudication of the case. Since the counsel for the Respondent No. 1 was repeatedly insisting for the copy of the same and therefore such resupply of the CD cannot be treated as an admission on the part of the Election petitioner that the CD was not supplied along with the copy of the Election Petition.
(11). Apart from above, it has also been contended that these issues can only be looked into at the time of presentation of the Election Petition by the Registry of the High Court and the petition cannot be defeated on mere hyper technicalities. Further, the annexure attached to the Election Petition bears verification and attestation and thus such attestation is sufficient compliance of Section 81 (3) of the RP Act. In order to buttress this submission, the learned counsel for the Election Petitioner placed reliance on the judgment of the Apex Court in M. Kamalam v Dr. V.A. Syed Mohd. 1978 (2) SCC 615. Moreover, the learned senior counsel for the Election Petitioner invited attention of this 5 court to the judgment of the Apex court in M. Kamalam v Dr. V.A. Syed Mohd. 1978 (2) SCC 615., to bring home the submission that substantial compliance with Section 81 (3) is sufficient and petition cannot be defeated for partial non- compliance with Section 81 (3) of the RP Act. (12). I have given my thoughtful consideration to the rival contentions of both the parties and have carefully perused the record including the copy of the Election Petition. (13). Before venturing into the merits of the application, it would be appropriate to refer to the provisions which are attracted for adjudication of the present case. The enabling provision in RP Act is Section 86, the relevant portion of which, reads as under:-
86. Trial of election petitions.--
(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. Explanation.--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A.
(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation.--For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on 6 which the election petition is presented to the High Court for trial.
(14). It is unambiguous that only in case of non-compliance with Section 81, 82 and Section 117 of the RP Act, the petition could be dismissed in limine. However, in the fact of the present case, the respondent no. 1 has alleged non- compliance of both Section 81 and 83 of the RP Act.
(15). So far as non-compliance of Section 83 is concerned, the same would be beyond the purview of the enabling provision. Consequently, this court shall only examine the effect of non-compliance of Section 81 of the RP Act. In order to proceed further, it would be fruitful to draw the framework of Section 81 (3) of the RP Act and thereafter considers the facts in the context of said framework. (16). In the case of Muraka Radhe Shyam Ram v. Roop Singh Rathore AIR 1964 SC 1545, the following observations were recorded by the Hon'ble Apex Court in para 11.
"11. We agree with the High Court and the election tribunal that the first defect is not a defect at all. When every page of the copy served on the appellant was attested to be true copy under the signature of the petitioner, a fresh signature below the word "petitioner" was not necessary. Sub- section (3) of Section 81 requires that the copy shall be attested by the petitioner under his own signature and this was done. As to the second defect, the question really turns on the true scope and effect of the word "copy" occurring in sub-section (3) of Section 81. On behalf of the appellant the argument is that sub-section (3) of Section 81 being mandatory in nature all the requirement of the sub-section must be strictly complied with and the word "copy" must be taken to be an absolutely exact transcript of the original. On behalf of the respondents the contention is that the word "copy" means that which comes sp near to the original. On behalf of the respondents the contention is that the word "copy" means that which comes so near to the original as to give to every person seeing it the idea created by the original. Alternatively, the argument is that the last part of sub- section (3) dealing with a copy is merely directive, and do this reliance is placed on the decision of this court in Kamaraja Nadar v. Kunju Thewar 1959 SCR 583. We are of the view that the word "copy" in sub section (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can be any possibility misunderstand it ( see Stroud's judicial Dictionary, 3 rd 7 Edn., Vol. 4, p. 3098). In this view of the matter it is unnecessary to go into the further question whether any part of sub section (3) of Section 81 is merely directory. Several English decisions are cited at the Bar. The earliest decision cited to us is the decision of Pocock v. Mason 131 ER 1111 where it was held that the omission of the words "the" and "by" in the copy of the writ of capias prescribed by the schedule 2 W.4, c.39 did not invalidate an arrest. The reason given was thus expressed:
"To ascertain whether or not an unfaithful copy produces any alteration in the meaning, supposes an exertion of intellect which it may be inconvenient to require at the hands of those who serce the copy. It was to obviate this inconvenience, that the legislature has given a form, and required that it should be pursued. Nothing but ordinary care is necessary for taking the copy."
In a later decision Sutton v Mary and Burgess 149 ER 1291, the copy of the writ served on the defendant omitted the letter "s" in the word "she". It was held that the omission was immaterial as it could not mislead anybody. In Morris v. Smith 150 ER 51 there was a motion to set aside the service of the writ of summons for irregularity, on the ground that the defendant being an attorney, he was only described as of Paper Buildings in the Inner Temple, London and the addition of "gentleman" was not given. It was held that the form in the Statute 2 Will. 4 c.39 Section 1 did not require the addition of the defendant to be inserted in the writ and it was sufficient to state his residence. The writ of summons was therefore valid. In another case in the same volume Cooke v. Vaughan 150 ER 1346 it was held that where a writ of capias described the defendant by the addition was omitted in the copy served, the copy was not a copy of the writ, in compliance with the Statute 2 Will. 4, C. 39, S. 4. On behalf of the respondent a number of decisions under the Bills of Sale Act, 1878 and the Amendment Act. 1882 (45 and 46 Vict.c.43) were cited. The question in those cases was whether the bill was "in annexed" as required by Section 9 of the Bills of Sale Act 1878 , and Amendment Act 1882. In re Hewer. Ex parte kahen it was held that a "true copy of a bill of sale within the Bills of Sale Act 1878, Section 10, sub election petition under that sub-section2, must not necessarily be an exact copy, so long as any errors or omissions in the copy filed are merely clerical and of such a nature that no one would be thereby misled. The same view was expressed in several other decisions and it is unnecessary to refer to them all. Having regard to the provisions of Part VI of the Act, we are of the view that the word "copy" does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the appellant; therefore there was no failure to comply with the last part of sub-section (3) of Section 81. In that view of the matter sub-section (3) of Section 90 was not attracted and there was no question of dismissing the election petition under that subsection by reason of any failure to comply with the provisions of Section
81. This disposes of the second preliminary objection raised before us."
8(17). In the case of Ch Subba Rao v. Member Election Tribunal, Hyderabad and others AIR 1964 SC 1027, The Hon'ble Court adjudicated the issue where the photocopies of the election petition did not contain the attestation that the same is true copy of the original. However it contained original signature of the Election Petitioner. The Hon'ble Apex Court has treated this signature to be the substantial compliance of Section 81 and remanded the matter on adjudication of the merits.
(18). This issue of Section 81 being mandatory or directory has been the subject matter of consideration in a catena of judgements by the Apex Court. In the case of M.A. Kamalam v. Dr. V.A.Syed Mohd. AIR 1978 SC 840, the Hon'ble Apex Court adjudicated upon the issue where the copy of the election petition supplied to the returned candidate did not contain attestation and signatures of the Election Petitioner on each page of the photocopy of the election petition except a signature on the photocopy of the affidavit attached with the photocopy of the election petition. In the said context, the Hon'ble Supreme Court held that, the signature on the copy of the affidavit is the sufficient compliance of the Section 81 (3) of the RP Act. As the affidavit clearly stated that, it is in affirmation of the pleading in the election petition.
(19). Whereas in the case of Sharif-ud-din v. Abdul Gani 1980 1 SCR 1177, the Hon'ble Supreme Court held the compliance of Section 81 (3) of the RP Act as mandatory and did not approve the signatures of the advocate of the 9 Election Petitioner in place of the Election Petitioner himself in the photocopy of the Election Petition and consequently, dismissed the election petition.
(20). In the case of T.M. Jacob v. C. Poulose and others 1999 (4) SCC 274, the constitutional bench of the Apex Court discussed several judgements on the issue of compliance of Section 81 and 83 of the RP Act and held that the issue raised in the application under Section 86 that the photocopies served upon the returned candidate did not contain the name of the Notary and there was absence of stamp and seal of the Notary, was held to be immaterial so far as the compliance of Section 81 of the RP Act was concerned and such omission will not entail the consequence of the Section 86 of the RP Act.
(21). Thereafter, the Hon'ble Apex Court in the case of T Phungzathang v Hangkhanlian and others (2001) 8 SCC 358 was considering the effect of non-affixation of seal by the oath commissioner in the photocopy of the election petitioner and went on to held that such non-affixation is at best an irregularity and shall not entail dismissal. The finding of the Hon'ble Court in para 17 is reproduced below:
" 17. In the above-declared legal position, If we examine the case in hand, we notice that the only lacuna pointed out by the contesting respondent in his application in Civil Miscellaneous Election Case No. 3 of 2000 is that the copy supplied to him did not contain the verification or affirmation made by the Oath Commissioner or the prescribed authority as required in Form 25 and Rule 94-A of the Conduct of Elections Rules, 1961. It is not the case of Respondent 1 that the original affidavit filed along with the election petition in Form 25 did not contain such verification or affirmation. On the contrary, it is an admitted fact that such affirmation or verification was made in the original affidavit filed before the High Court. Therefore, the question arising in this appeal is: would this omission as pointed out by the respondent in his petition, ipso facto entail dismissal of the election petition under Section 86(1) of the Act? In view of the 10 law laid down in Jacob case the answer then should be "no"
because by such omission the copy supplied will not cease to be a "true copy" and there is no possibility of any prudent person being in any manner misled in defending himself or being prejudiced in the defence of his case. Further, such omissions are only curable Irregularities. "
(22). Thereafter, in the case of Ram Prasad Sarma (2003) 1 SCC 289, the Hon'ble Apex court was presented with the fact that the true copy of the affidavit served upon the respondent no. 1 along with the copy of the election petition did not contain the attestation and the stamp of the oath commissioner and thus it violates Section 81(3) of the RP act. In response the Hon'ble court made the following observations in para 21:
"21. The only grievance is that the stamp and the name of the Oath Commissioner is not indicated in the true copy of the affidavit. We feel that if it was there it would have been better but absence of stamp and the name of the Oath Commissioner will not be a vital or material deviation from the original nor it may in any manner mislead the returned candidate. Prima facie perusal of the heading of the affidavit and detailed verification of the contents of the paragraphs, as indicated above, would normally lead one to believe that the averments have been made on affidavit. In para 1 of the affidavit there is a specific mention that the petitioner was acquainted with the facts of the case for the purpose of swearing of the affidavit in support of contention of corrupt practices taken recourse to by Respondent 7. In the end the petitioner signs as "deponent" and he is identified by the Advocate's Clerk. That being the position, mere omission of indicating the name of the Oath Commissioner or an endorsement in the true copy that the affidavit was attested by an Oath Commissioner bearing his stamp and seal etc. would not be material. Once an averment is there that affidavit was being sworn in support of allegations of corrupt practices and that the petitioner had put his signature, thereon, prima facie fulfilment of such a legal requirement is adequately reflected even in absence of name and seal etc. of the Oath Commissioner in the true copy"
(23). In another case of Ajay Maken v. Adesh Kumar Gupta (2013) 3 SCC 489 the Apex Court drew a distinction between Failure to sign and verify the copies of the election petition and Failure to attest the copies served upon the respondent to be the true copy of election petition and 11 made following observation in para 7:
"7. Legally there is a distinction between failure to sign and verify the original copy of the election petition filed in the court and failure to attest the copy served on the respondent to be a true copy of the election petition. While the latter failure falls within the scope of Section 81(3), the earlier failure falls under sub-section (1)(c) and sub-section (2) of Section 83. While the failure to comply with the requirements of Section 81 obligates the High Court to dismiss the election petition, the failure to comply with the requirements of Section 83 is not expressly declared to be fatal to the election petition. The said distinction is explained by this Court in Manohar Joshi v.Nitin Bhaurao Patil in paras 20 and
21."
(24). After having discussed the relevant judicial pronouncements by the Apex Court it has clearly emerged that, the Hon'ble Supreme Court has resorted to Doctrine of Substantial Compliance in cases where there are absence of affixation of seal of the notary, attestation by oath commissioner and omission to declare in photocopy of the Election petition that the same is true copy of the original and even in cases where original signature solely on Affidavit attached to the photocopy of election petition, and discouraged dismissal of the election petition at the threshold. Whereas, in the case of Sharif Ud Din 1980 1 SCR 1177 the apex court held that, the affixation of signatures by advocate in place of election petitioner will not qualify as compliance of section 81. Thereby emphasising on strict compliance of section 81(3) of the RP Act and that, obligation of the Election Petitioner to affix the original signature cannot be delegated.
(25). Applying the principle discussed hereinabove to the facts of the present case the only plausible outcome which emerges is that, the Election Petitioner has not fulfilled the 12 mandate of Section 81 (3) of the RP Act. the circumstance which has compelled this court to make such observations is the undisputed factual scenario that none of the pages of the photocopy of the election petition served upon the Respondent No.1 contained original signature much less attestation or verification. In order to wriggle out of this conundrum, the learned counsel for the Election Petitioner submitted that even though the original signature are absent but all pages bear the original seal of the Notary and contain carbon copy of the signature affixed by the Election Petitioner in the original Petition. Moreover, the annexure attached to the election petition clearly bears verification slip with original signatures of the Election Petitioner. (26). This court has no hesitation in observing that the existence of original Notary Seal is undisputed as also the existence of verification slip over the annexures attached to the photocopy of the petition but the perusal of the scheme of the RP Act particularly Chapter II of Part VI, the requirement of Notary Seal and verification of annexures is mandated under Section 83 of the RP Act which cannot be relied upon for indicating compliance of Section 81, which is an independent provision prescribing independent set of requirement to be fulfilled by the Election Petitioner. In any case, in the earlier part of the judgement, this court has already discussed that even absence of such Notary Seal or verification of the annexures will not entail dismissal of the Election Petition. However, it does not mean that, the obligation prescribed under Section 81 may be given a go by. Further, it is well-established principle of Law that, if a 13 thing is prescribed to be performed in a particular manner by Rule or Statute, it should be done in that manner or not at all. At this stage, it is also worthy to observe that the term used in Section 81 (3) of the RP Act is "Shall" which by its very meaning makes the condition mandatory. (27). Now adverting to the submission of learned counsel of the Election Petition that, the photocopy of the petition contains carbon copy of the signatures. Suffice, it is to observe that if such submission is accepted, the same would render mandate of Section 81 (3) redundant and therefore such interpretation can never be endorsed. (28). Upon cumulative consideration of the above, this court is of the considered view that the Election Petition deserves to be dismissed in terms of Section 86, as the requirement prescribed by Section 81 needs to be meticulously followed and the present case is not such where the Election Petitioner may claim substantial compliance of the provision. Since, this matter is a case of no compliance, the doctrine of Substantial Compliance cannot be invoked. Resultantly, I.A.No. 5452/2019 filed by Respondent no. 1 under order 7 rule 11 of the CPC, 1908 read with Sections 80,81 and 83 of the Representation of People's Act,1951 is hereby allowed and the present Election Petition is dismissed. The costs of the petition shall be bear by the parties.
(S. K. AWASTHI) JUDGE praveen PRAVEEN Digitally signed by PRAVEEN KUMAR NAYAK DN: c=IN, o=DISTRICT AND SESSION KUMAR COURT INDOR, postalCode=452005, st=Madhya Pradesh, 2.5.4.20=e98f729464903facdd39c45471 5d6eccc5a350c9111fb019b34dace6d05 NAYAK b8fd5, cn=PRAVEEN KUMAR NAYAK Date: 2020.05.29 14:04:27 -12'00'