Madhya Pradesh High Court
Masarrat Shahid vs Umakant Sharma on 29 July, 2019
Equivalent citations: AIRONLINE 2019 MP 885
The High Court of Madhya Pradesh
Election Petition No. 23/2019
(Masarrat Shahid vs. Umakant Sharma)
1
Gwalior, 29.07.2019
Shri V.K.Bharadwaj, learned senior counsel with Shri Chetan
Kanoongo, Advocates for the petitioner.
Shri M.P.S. Raghuvanshi, learned counsel for the respondent.
Heard on IAs No.2107/2019 and 2417/2019, filed by the respondent for dismissing the election petition.
It is contended by learned counsel for the respondent that Section 81 of the Representation of the People Act, 1951 is provided for the presentation of election petition and under Section 81(3) of the Representation of People Act, 1951, 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/her own signature to be a true copy of the petition. It is submitted that the copy of the election petition along with the documents received by the respondent is not bearing attestation by the petitioner under her own signatures to be a true copy of the petition and there is no attestation with original signatures of the election petitioner. More so, on the election petition filed by the election petitioner before this Court, the Advocate has signed the copy of election petition, which is in violation of Section 81(3) of the Representation of People Act. It is further submitted that The High Court of Madhya Pradesh Election Petition No. 23/2019 (Masarrat Shahid vs. Umakant Sharma) 2 present petition has been filed by the election petitioner on the ground of alleged corrupt practice played by the respondent during the course of election process, but no specific pleading of corrupt practice has been made in the election petition. Therefore, it is prayed that the election petition filed by the petitioner is liable to be dismissed at this stage itself.
In support of the submissions, learned counsel for the respondent has placed reliance on the judgments in the cases of Sharif-ud-Din v. Abdul Gani Lone [AIR 1980 SC 303]; Dr. Omprakash Soni vs. Ashok Kumar Bhargava and others [AIR 1996 MADHYA PRADESH 43]; T.M.Jacob vs. C. Poulose and others [(1999) 4 SCC 274]; Sarla Tripathi (Smt.) v. Smt. Kaushilya Devi and others [2004 (2) JLJ 263]; Baijulal Verma vs. Additional Collector, Chhindwara and others [2009 (4) MPLJ 548]; G.V. Sreerama Reddy & Anr. vs. Returning Officer & Ors. [AIR 2010 SC 133]; Sanjay vs. Lal and others [2011 (2) MPLJ 461]; Kalu Ram v. State of MP [2014 (1) MPWN 14]; and, Rasal Singh vs. Election Commission of India [2015 (1) MPLJ 160];
2. In reply, learned senior counsel for the election petitioner has submitted that the petitioner has fulfilled all statutory requirements for filing the election petition as from perusal of the copy supplied to The High Court of Madhya Pradesh Election Petition No. 23/2019 (Masarrat Shahid vs. Umakant Sharma) 3 the respondent it is evident that the signatures of the petitioner by way of authentication appears at the foot of the copy of the affidavit, which is referrable not only to the copy of the affidavit but also to the copy of the election petition, hence the requirement of last part of sub-section (3) of Section 81 of the Representation of People Act has been properly complied with. It is submitted that the law does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. The petitioner placed her signature in original at the foot of the copy of the affidavit and copy of the affidavit was part of a composite document, namely, copy of the election petition and, therefore, the signatures of the petitioner must be regarded as having been appended on the copy of the election petition. With regard to the objection that election petition lacks in specific pleading about corrupt practice, learned counsel for the petitioner drew attention of this Court to paragraphs 6.7.1 to 6.7.7 of the election petition and submitted that specific, detailed and precise averments and assertions regarding corrupt practice are spelled out. Hence, prayed that the objection as canvassed by the respondent is devoid of any substance and is liable to be rejected.
Learned senior counsel for the petitioner has placed The High Court of Madhya Pradesh Election Petition No. 23/2019 (Masarrat Shahid vs. Umakant Sharma) 4 reliance on the judgments in the cases of M. Kamalam vs. V.A. Syed Mohammed [(1978) 2 SCC 659]; F.A. Sapa & Ors. vs. Singora & Ors. [(1991) 3 SCC 375]; Anil R. Deshmukh vs. Onkar N. Wagh & Ors. [(1999) 2 SCC 205]; T.M. Jacob vs. C. Poulose [(1999) 4 SCC 274]; Ponnala Lakshmaiah vs. Kommuri Pratap Reddy [(2012) 7 SCC 788]; and, G.M. Siddeshwar vs. Prasanna Kumar [(2013) 4 SCC 776].
3. Heard the learned counsel for both the parties and perused the available record.
4. Chapter II of Part VI of of the Representation of People Act, 1951 governs the procedure for presentation of the election petitions to High Court. Sections 80, 80A and 81 thereof read as under :-
"80. Election petitions.-- No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.
80A. High Court to try election petitions.
--(1) The Court having jurisdiction to try an election petition shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose:
Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
The High Court of Madhya Pradesh Election Petition No. 23/2019 (Masarrat Shahid vs. Umakant Sharma) 5 (3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.
81. Presentation of petitions.--(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 elector within forty-five 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 the dates of their election are different, the later of those two dates.
Explanation.--In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(2) Omitted.
(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."
5. The main contention of the learned counsel for the respondent is that sub-section (3) of Section 81 of the Representation of People Act is a mandatory provision, wherein it is provided that every The High Court of Madhya Pradesh Election Petition No. 23/2019 (Masarrat Shahid vs. Umakant Sharma) 6 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/her own signature to be a true copy of the petition.
6. Learned senior counsel for the petitioner by placing reliance on M. Kamalam's case (supra) has submitted that if the signature was placed at the foot of the copy of the affidavit, which is sufficient compliance and is covered by Section 81(3) and place of signature is immaterial, but the facts of the present case are different. In the present case, copy of the election petition has not been signed by the petitioner.
7. Learned senior counsel has further placed reliance on the judgment of Hon'ble Apex Court in Anil R. Deshmukh (supra), and submitted that in Murarka Radheshyam Ram Kumar vs. Roop Singh Rathore and others [MANU/SC/0122/1963 :(1964) 3 SCR 573]; Ch. Subbarao v. Member, Election Tribunal, Hyderabad [MANU/SC/0176/1964 : (1964) 6 SCR 213] and Kamalam (M) v. Dr. VA. Syed Mohamad [MANU/SC/0242/1978 : (1978) 3 SCR 446], the word 'copy' has been defined.
8. It is apparent that the case of Anil R. Deshmukh (supra) relates to true copies of the affidavit but in the present case the issue The High Court of Madhya Pradesh Election Petition No. 23/2019 (Masarrat Shahid vs. Umakant Sharma) 7 relates to signature on the copies of the election petition.
9. In F.A. Sapa (supra) relied on by learned senior counsel, the Hon'ble Apex Court has observed that mere defect in verification of election petition is not fatal.
10. The judgment in F.A. Sapa (supra) is not applicable in the present case as in the instant petition objection is with regard to signatures on the copies of the petition.
11. In the case of T.M.Jacob (supra), the Hon'ble Apex Court has observed as under :-
"39. The expression 'copy' in section 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation."
12. Besides that, the objection raided is with regard to compliance of sub-section (3) of Section 81, which is mandatory provision under the Act. The reliance placed by learned senior counsel on the aforesaid judgments of the Hon'ble Apex Court is not applicable in The High Court of Madhya Pradesh Election Petition No. 23/2019 (Masarrat Shahid vs. Umakant Sharma) 8 the facts and situations of the present case as the same speaks about the curable mistakes with regard to Section 83 of the Act. Similarly, since the objection raised by the other side is only with regard to the signatures on the copies of the election, hence, the judgments in the cases of Ponnala Lakshmaiah (supra) and G.M. Siddeshwar (supra) cited by learned senior counsel for the petitioner are of no help to the election petitioner.
13. In Rasal Singh vs. Election Commission of India [2015 (1) MPLJ 160], this Court has observed in paras 27 and 28 as under :-
"(27) In I.As. No. 2952/2014 and 3224/2014, it is contended that the mandatory requirements of Section 81(3) of the RP Act is not followed by the petitioner in as much as the copy of election petition served on the respondent No. 5 does not contain the signature of the petitioner. His signatures are not there in the annexures. To elaborate, it is argued that the signatures of the petitioner must be there in the copy in original whereas in the copy received by respondent No. 5, the photocopy of the signature of the petitioner are mentioned. It is argued by Shri Anil Mishra that the Registry has shown its satisfaction at the time of filing of election petition by making and endorsement and hence, there is no defect.
(28) In the opinion of this Court, in Sharif-
Ud-Din (supra), the Apex Court opined that Section 81(3) is mandatory and the defects are not The High Court of Madhya Pradesh Election Petition No. 23/2019 (Masarrat Shahid vs. Umakant Sharma) 9 curable. Para 20 reads as under:-
"We are, therefore, of the view that the requirement that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non-compliance with that requirement should result in the dismissal of the petition as provided in section 94 of the Act. The High Court was, therefore, right in dismissing the petition on the above ground."
This view is consistently followed by various High Courts in the cases reported in AIR 1964 Patna 26 [Sant Prasad Singh Vs. Dasu Sinha]; AIR 1984 Delhi 280 [Gopal Prasad Shastri Vs. Mrs. Archana Kumar and others]; AIR 1987 Allahabad 51 [Shitla Prasad Sonkar Vs. Arun Kumar Nehru and others]; AIR 1998 Calcutta 162 [Sharif Hossain alias Dalim Master Vs. Kalimuddin Shams and others] and AIR 2000 Bombay 362 [Narendra Bhikahi Darade Vs. Kalyanrao Jaywantrao Patil and others].
14. In Sanjay vs. Lal and others [2011 (2) MPLJ 461], Division Bench of this Court has held as under :-
"16. In the present case, there is no signature of respondent No.1, who filed the election petition, on the copy of the election The High Court of Madhya Pradesh Election Petition No. 23/2019 (Masarrat Shahid vs. Umakant Sharma) 10 petition, which was served on the appellant. Hence, there is non-compliance of the mandatory provision of Rule 3 of the Rules of 1995. In such circumstances, the election petition is liable to be rejected."
15. In Baijulal Verma vs. Additional Collector, Chhindwara and others [2009 (4) MPLJ 548], it has been observed as under:-
"10. In the circumstances, the contention of the learned counsel for the petitioner which is based on the aforesaid judgment is misconceived. In the case at hand, the Election Tribunal has recorded categorical findings that the copies of the election petition served on the respondent did not bear his signatures, were not verified and did not bear attestation as required by Rule 3(2) of the Rules of 1995 and has accordingly dismissed the election petition. In my considered opinion, the finding cannot be found faulted with as has been held by a Division Bench of this Court in the case of Babulal Kaluram Kirar 1985 MPLJ 411 (supra). I am also of the opinion that the Election Tribunal can take and decide the aforesaid issue regarding defect of non-compliance of the rules at any stage and it is not incumbent upon the authority to do so only at the threshold. The decision of the Division Bench of this Court also makes it clear that there can be no waiver of the requirement of rule 8 of the Rules of 1995 and failure of the authority to dismiss the petition at the threshold would not prohibit or prevent the authority from doing so at the later The High Court of Madhya Pradesh Election Petition No. 23/2019 (Masarrat Shahid vs. Umakant Sharma) 11 stage. In the circumstances, the contention of the petitioner to the contrary also deserves to be rejected."
16. In view of the aforesaid annunciation of law, since the provision under sub-section (3) of Section 81 of Representation of People Act is mandatory in nature and the intention behind the aforesaid provision is that if any averment/content is made in the election petition, that should be conveyed to the respondent with full responsibility and the provision is meant to protect the safeguard the sacrosanct electoral process, as observed in Boota Singh v. Sher Singh and others [AIR 1994 PUNJAB AND HARYANA 32].
17. As analyzed above, since the mandatory provision of sub- section (3) of Section 81 of the Representation of People Act, 1951 has not been complied with by the petitioner, therefore, the election petition is liable to be and is hereby dismissed. Accordingly, IAs No. 2107/2019 and 2417/2019 are allowed. Election petition is dismissed.
(Rajeev Kumar Shrivastava)
(yog) Judge
YOGESH VERMA
2019.07.30
17:16:05 +05'30'