Delhi High Court
Mukhtiar Singh vs Chief Election Officer on 18 April, 1996
Equivalent citations: AIR 1997 DELHI 116, (1996) 37 DRJ 344
JUDGMENT Anil Dev Singh, J.
(1) This is an application on behalf of the second respondent under Order 7 Rule Ii and section 151 Civil Procedure Code . read with section 86 of the Representation of the Peoples Act, 1951 (for short 'the Act' of 1951). On November 28, 1993, the Returning Officer declared the second respondent to have been elected to the Delhi Legislative Assembly from Palam Constituency No.30. The petitioner who was also a candidate from the said constituency filed the present election petition under sections 80A and 81 of the Act of 1951, challenging the election of the second respondent. By the instant application the second respondent prays for the dismissal of the election petition on various grounds.
(2) Learned counsel appearing for the applicant has raised the following contentions in support of the application for dismissal of the election petition :-
(1)that the election petition does not comply with the provisions of section 81 of the Act' of 1951;
(2)that the copy of the election petition marked 'Z' furnished to the applicant has not been duly attested by the petitioner;
(3)that the copy of the election petition is not the true copy of the original petition as required by law;
(4)that copy of the election petition furnished to the applicant has not been attested and verified in the manner laid down in section 83(1)(c) and section 83(2) of the Act of 1951;
(3) Elaborating his pleas the learned counsel for the second respondent pointed out that the petitioner has not furnished a copy of the memo of parties alongwith the copy of the election petition supplied to the respondent, that in the copy of the 'index of papers' given to the respondent, there was an omission, in that serial No.l5-A relating to receipt of translation fee is missing, that in para 6 of the copy of the election petition furnished to the respondent, the receipt number and the date in regard to deposit of a sum of Rs.2000.00 on account of security for costs of the petition are not given, that the verification at the bottom of the copy of the election petition is incomplete in as much as numbers of the paragraphs which are based on information and those based on legal advise are not mentioned, that the copy of the election petition also does not mention the date in the penultimate line of the last para thereof, that portions of Annexure P-5 accompanying the copy of election petition are illegible, & that the election petition has not been properly attested by the petitioner in the manner contemplated by Section 81(3) of the Act of 1951. On the ground of aforesaid omissions and deficiencies, learned counsel for the petitioner contended that the election petition was liable to be dismissed under section 86 read with sub-section (3) of Section 81 and sub-section (2) of Section 82 of the Act.
(4) At this stage, it will be convenient to refer to Section 81(3), which 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 signature to be a true copy of the petition."
(5) According to the aforesaid sub-section, the election petition has to be accompanied by the requisite number of copies and every such copy is required to be attested by the petitioner under his own signatures to be true copy of the petition. The consequence of the violation of sub-section (3) of Section 81 is provided in sub-section (1) of Section 86 of the Act. Section 86(1) reads as follows:- "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."
(6) As is clear from the above, the filing of the election petition in violation of subsection (3) of Section 81 must lead to the dismissal of the election petition under subsection (1) of Section 86 of the Act. At this stage it will also be appropriate to notice sub-section (2) of Section 83. This sub-section reads as under:- "ANY schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."
(7) The submissions of learned counsel for the second respondent, therefore, have to be examined in the light of the aforesaid provisions. In so far as the contention of the learned counsel for the respondent that some of the copies of the Annexures which have been furnished to the petitioner were illegible and, therefore, can not be considered as true copies contemplated to be delivered to the respondent under section 81(3) of the Act needs to be examined in detail. One of the pleas which has been raised by the election petitioner in para 4 of the petition is that the election of the second respondent to the Delhi Legislative Assembly to the single member Parliamentary Constituancy is void as certain areas falling in Nasirpura were tagged alongwith Palam constituancy and certain areas of Palam constituancy were tagged alongwith certain areas of Nasirpur Constituancy and as a consequence thereof certain voters of Palam constituancy voted in Nasirpura constituancy and some voters of Nasirpur voted in Palam constituancy. In this regard, the election petition, interalia, states as under:-
IT is submitted that similarly a colony in the name of Nanda Block having roughly around 2000 voters is also a part and parcel of Mirzapur revenue estate which falls within the areas specified in the Palam Assembly constituency seat No.30 and these voters were also shifted unlawfully and without any justification, in contravention of the delimitation order, to the adjacent Nasirpur Assembly Constituency seat No.29.
Similarly, respondent No.2 has acted in an illegal manner and has violated the delimitation order and the provisions of law as contained in the Act in case of Mahavir Enclave-111 also. The petitioner also submits that Mahavir Enclave- is a part and parcel of Palam revenue estate and this fact is quite evident from the letter dated 26.8.93 issued by Shri Ramesh Tiwari, ADM(R), Delhi.
IT is pertinent to note that Mahavir Enclave-111 has 4548 voters as evidenced by the voters list issued-by the respondent No.2 and the action of the respondent No.2 in shifting these voters to the adjacent assembly constituency seat No.29 goes against the delimitation order i.e. the areas once specified as comprising a particular assembly constituency seat cannot be taken out by respondent No.2 in a whimsical and illegal manner. Therefore, the action of the respondent No.2 in depriving 4548 voters of Palam Constitutency seat to cast their vote in Palam Assembly Constituency Seat No.30 has materially affected the process and conduct of election in Palam Assembly Constituency seat No.30 and on this pound also, the election of the respondent No.3 is liable to be declared as void. The voter lists of Mahavir Enclave-III is annexed as Annexure F5 and the same may be read as part of this petition."
(8) As would be seen from above,the voters list of Mahavir Enclave-111 has been annexed as Annexure P-5 and is required to be read as per the aforesaid para as part of the election petition. A perusal of copy of Annexure P-5 and even Annexure P-9 show that several of the names and particulars of the voters occuring therein are illegible. Such names and particulars appear at pages 75 to 83, 106, 107, 110, 114, 142 and 154 of the copy of the election petition. According to the petition, Annexure P-5 has to be treated as part of the election petition. The details of the persons who are alleged to have been deprived of the opportunity to cast their votes in the correct constituancy are given in Annexure P-5. This Annexure has to be treated as an integral part of the election petition and is not merely a piece of evidence to back the petition. The petitioner rightly treated Annexure P-5 to be a part of the election petition as instead of giving the names and particulars of all the persons who had been allegedly deprived of the opportunity to vote in the Palam constituancy are mentioned separately as Annexure to the Petition. In the absence of the names and particulars the averments made in the aforesaid para would be incomplete. The names and particulars, therefore, referred to in Annexure P-5 would form an integral part of the election petition. In M.Karunanidhi v. H. V. Handa and others, , the Supreme Court was considering the question whether the photograph of a banner used by the successful candidate adverted to in the election petition and annexed thereto was to be treated as an integral part of the election petition or merely a piece of evidence as to the nature and type of the banner erected by the successful candidate. In this connection it was observed as under-
"IT is obvious that the photograph was a part of the averment contained in paragraph 18(b). In the absence of the photograph the averment contained in paragraph 18(b) would be incomplete. The photograph referred to in paragraph 18(b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of subsection (3) of Section 81 of the Act by failure to serve the appellant with a copy of the election pettion. In Ch.Subbarao's case , supra, the Court held that if there is a total and complete non-compliance with the provisions of sub-section (3) of Section 81, the election petition could not be treated an "election petition presented in accordance with the provisions of this Part" within the meaning of Section 80 of the Act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan.
THE conclusion is irresistible that the words "copies thereof" in sub-section (3) of Section 81 read in the context of sub-section (2) of Sec.83 must necessarily refer not only to the election petition proper but also to schedules or annexures thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it hold that the photograph of the fancy banner adverted to in paragraph 18 (b) could not be treated to be integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub-section (3) of Section 81 of the Act."
(10) As is apparent from the aforesaid observations of the Supreme Court, the photograph of the banner was considered as an integral part of the election petition and failure to supply a copy of the same was held to be violative of the provisions of sub-section (3) of section 81 of the Act.
(11) Learned counsel for the petitioner, on the other hand, submitted that Annexure P-5 is not to be treated as part of the election petition and the same is merely accompanying the petition as an. Annexure. He relied upon the decision of the Supreme Court in Smt.Sahodrabai Rai v Ram Singh Aharwar and others, . I am afraid the contention of the learned counsel for the petitioner is not well founded. The argument of the learned counsel for the petitioner over looks the stand taken by the petitioner in the election petition. As already pointed out, there is a categorical statement in para 4(B) of the election petition that Annexure P5 should be treated as a part of the election petition. The Annexure according to the own showing of the petitioner is not outside the election petition. In view of the large number of names contained in Annexure P-5, the same could not be conveniently included in the body of the petition itself and were set out in Annexure P-5. The said Annexure is to be treated as having integrated with the election petition. The judgment of the Supreme Court in Smt.Sahodrabai Rai v Ram Singh Aharwar and others (supra) also does not advance the case of the petitioner. In that case the Supreme Court determined that where the details of the averments being too compendious for being included in the election petition arc set out in the schedule or Annexure to the election petition, the same have to be treated as part of the election petition and the copies thereof have to be served on the respondents. In this regard, the Supreme Court observed as follows:- "WE have already pointed out that Section 81(3) speaks only of the election petition. Pausing here, we would say that since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet was served upon the respondents although in a translation and not in original. Even if this be not the case, we are quite clear that sub-section (2) of Section 83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put in not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition arc capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondents if the requirement regarding service of the election petition is to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. "
(12) Learned counsel for the petitioner also relied upon the decision of the Supreme Court in A. Madan Mohan vs. Kalavakunta Chandrasekhara . This was a case where copies of the Annexures were not served on the successful candidate. In view of the peculiar facts of that case, the Supreme Court came to the conclusion that the Annexures were not an integral part of the election petition but were only evidence in support of the averments made therein. This case is, therefore, distinguishable.
(13) Having regard to the aforesaid discussion, I am of the opinion that Annexure P-5 is an integral part of the averments contained in the election petition and therefore, has to be treated as part and parcel of the election petition. The illegibility of certain particulars of the copy of Annexure P-5 which has been furnished to the second respondent, renders it not a true copy of Annexure P-5 of the election petition.
(14) Besides, there is no dispute that para 6 as contained in the copy of the election petition and para relating to verification has certain blanks.' Para 6 of the copy of the election petition and the verification read as follows:-
"6.That the petitioner has deposited in the Hon'ble Court, in accordance with the Delhi High Court Rules, 1952 relating to the election petition and section 117 of the Act, 1951, a sum of Rs.2000.00 (Rupees two thousand only) on account of security for cost of the petition vide receipt No.________ dated VERIFICATION "THATI, the above named petitioner do hereby verify that the contents of paragraphs I to of the petition are true to my knowledge and the contents of paragraphs to are based on information received from the voters of the constituency, workers and agents of the Cong(I) Party and other parties, records and notifications of the concerned authorities; and the contents of paras to are based on legal advice received and believed to be true. Last paragraphs is a prayer to this Hon'ble Court. Annexures to the petition are the true certified copies of their originals.
Verified at New Delhi this...........................day of January 1994."
IN order to see whether there is any difference between the election petition and the copy thereof furnished to the petitioner, it would be necessary to extract para 6 of the verification as contained in the election petition:- "6.That the petitioner has deposited in the Hon'ble Court, in accordance with the Delhi High Court Rules, 1952 relating to the election petition and section 117 of the Act, 1951, a sum of Rs.2000.00 (Rupees two thousand only) on account of security for cost of the petition vide receipt No. 9 dated 10.1.94."
VERIFICATION "THATI, the above named petitioner do hereby verify that the contents of paragraphs 1 to 3 of the petition are true to may knowledge and the contents of paragraphs Ground A to Ground G are based on information received from the voters of the constituency, workers and agents of the Cong(l) Party and other parties, records and notifications of the concerned . authorities; and the contents of paras 4 to 7 are based on legal advice received and believed to be true. Last paragraphs is a prayer to this Hon'ble Court. Annexures to the petition are the true certified copies of their originals.
VERIFIED at New Delhi this day 7th of January 1994."
(15) A perusal of para 6 and the verification as contained in the copy of the election petition and para 6 and verification contained in the election petition shows that copy of the election petition could not be said to be a true copy of the election petition as there is variance between the two. There are certain other deficiencies in the copy of the election petition (marked 'Z'). Serial No.l5-A mentioned in the index to the election petition is missing in the copy furnished to the second respondent. Even memo of parties which is accompanying the election petition does not form part of the copy of the election petition given to the second respondent. Internal page 2 of the election petition containing part of Para 1 and paras 2 and 3 and part of para 4 does not form part of the copy of the election petition marked 'Z'. It is also noteworthy that the copy of the election petition marked 'Z' furnished to the second respondent does not bear the attestation of the petitioner to the effect that the same is a true copy of the election petition, though each page forming part of the copy bears an endorsement of being a true copy. In my opinion such an endorsement will not be sufficient. To illustrate the point, if an election petition consists of ten pages and the petitioner furnishes to the other party copies only of eight pages thereof, each bearing an endorsement "true copy" under the signatures of the election petitioner, can it be said that the petitioner complied with the provisions of section 81(3) of the Act of 1951. The answer obviously would be in the negative. In such a case endorsement on each page of the copy would only mean that the pages which carry such an endorsement are true copies of the corresponding pages of the election petition. It seems to me that the legislature has designedly and deliberately laid down that every copy of the election petition shall be attested by the petitioner under his own signatures to be a true copy of the petition. The mandatory form in which sub-section 3 of Section 81 of the Act of 1951 is couched shows that the importance which the legislature attaches to such an endorsement. This view is further fortified by sub-section I of Section 86 of the Act of 1951 which provides for dismissal of the election petition in the event of non-compliance with subsection 3 of Section 81 thereof. The whole idea appears to be that the respondents to the election petition should be able to get the copies of the election petition complete in all respects so that at the very threshold they are made aware of the entire case they have to meet and the matter could proceed with expedition and without undue loss of time. In the present case the copy of the election petition does not bear the endorsement of the petitioner that it is an attested true copy of the petition. As already seen, the copy supplied to the petitioner is incomplete and deficient in many ways. In the instant case the petitioner not having made an endorsement in the copy of the election petition marked 'Z' that the same is a true copy of the election petition, has violated the provisions of section 81(3) of the Act of 1951. Even if deficiency in the verification contained in the copy of the election petition is ignored, there is still substantial variance between the election petition and the copy thereof which has been furnished to the second respondent, and, therefore, the latter cannot be considered as a true copy of the former. On this score the election petition must fail.
(16) In Harcharam Singh Josh v. Hari Krishan, , it was held that election petition is not to be equated to proceedings at common law or in equity but as the rights are purely the creature of the statute, if the statute renders any particular, requirement mandatory, the Courts possess and can exercise no dispensing power to waive non compliance. In Ved Parkash Gaur v. Sukhan and others, it was held that the provisions of section 86 are mandatory and the same must be complied with in letter and spirit.
(17) In the circumstances, I hold that sub-section 3 of Section 81 has been violated by the petitioner and, accordingly, the consequence mentioned in sub-section (1) of section 86 will follow.
(18) Accordingly, the election petition is dismissed.