IMPORTANT POINT
Copy of the election petition accompanied by supporting affidavit served on the respective respondents along with form 25 prescribed under Rule 94A of the conduct of Elections Rules without attestation party duly verified by the District Magistrate/Notary/Oath Commissioner cannot be said to be true and correct copy of the election petition as envisaged in section 81(3) of the RP Act.

Headnote:Representation of the People Act, 1951-Sections 81(3), 83 & 86-Election petition-Corrupt practices-Copy of affidavit filed in support of petition supplied to respondent, did not contain verification by notary-Objections-Whether copy of election petition accompanied by supporting affidavit served on respondents along with form 25 without attestation part duly verified by District Magistrate/Notary/Oath Commissioner can be said to be true and correct copy of the election petition as envisaged in Section 81(3) ?-(No)-Meaning of expression true copy -Principle of substantial compliance-Such a lapse would result in dismissal of election petition.
       Held : As per K. Ramaswamy, J.-When a petitioner is enjoined to file an election petition accompanied by an affidavit duly sworn by the applicant duly verifying diverse allegations of corrupt practices imputed to the returned candidate and attested by the prescribed authority it would be obvious that the statute intended that it shall be performed in the same manner as prescribed in Form 25 read with Rule 94-A of the Rules. The attestation of the affidavit by the prescribed authority, therefore, is an integral part of the election petition. The question, therefore, is: whether copy of the affidavit supplied to the respondent without the attestation portion contained in it (though contained in the original affidavit) can be considered to be a "true copy"? (Para 6)
       Verification by a Notary or any other prescribed authority is a vital act which assures that the election petitioner had affirmed before the notary etc. that the statement containing imputation of corrupt practices was duly and solemnly verified to be correct statement to the best of his knowledge or information as specified in the election petition and the affidavit filed in support thereof; that reinforces the assertions. Thus affirmation before the prescribed authority in the affidavit and the supply of its try copy should also contain such affirmation so that the returned candidate would not be misled in his understanding that imputation of corrupt practices was solemnly affirmed or duly verified before the prescribed authority. For that purpose, Form 25 mandates verification before the prescribed authority. The object appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy cannot be said to be a curable irregularity. Allegations of corrupt practices are very serious imputations which, if proved, would entail civil consequences of declaring that he became disqualified for election to a maximum period of six years under Section 8A, apart from conviction under Section 136 [2]. Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petitioner in his/her own signature. The principle of substantial compliance cannot be accepted in the fact situation. (Para 9)
       As per S.P. Bharucha, J.- (Concurrent judgment)-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. The document purporting to be a true copy of the election petition furnished by the appellant to the respondent gave the impression that the appellant s affidavit supporting his allegations of corrupt practice had not been sworn or affirmed and was, therefore, no affidavit at all; it misled in a material particular and its supply was, as the High Court held, fatal to the election petition. (Para 15)
       As per K.S. Paripoornan, J.-(Con-current judgment)-A mere look of the proviso to Section 83(1) along with Section 83(2) will show that the affidavit referred to in the election petition. The election petition is in truth and reality one document, consisting of two parts-One being the election petition proper and the other being the affidavit referred to in the proviso to Section 83(1) of the Act. So, the copy of the election petition required to be filed under Section 81(3) read along with Section 83 will include a copy of the affidavit. (Para 18)

JUDGMENT

K. Ramaswamy, J.-Since the question involved is common to all the appeals, they are disposed of together.

2. The first appeal, viz., C.A. No. 6359 of 1994 arises from the judgment dated August 30, 1994 of a Division Bench of the Rajasthan High Court made in Election Petition No. 6 of 1994. The appellant s nomination from Constituency No. 1, viz., Rajsamand, reserved for Scheduled Castes for 10th Legislative Assembly of the Rajasthan State was rejected on the ground that appellant does not belong to Scheduled Caste. The respondent s election, after poll, was challenged by the appellant on the ground that the respondent had committed corrupt practices. After service of the notice, the respondent raised preliminary objections contending, inter alia that copy of the notice together with the affidavit in support of the election petition, i.e., Annexures 5 and 6, served on him, did not contain the verification by the notary; hence the election petition was not maintainable in accordance with Section 83(1)(C) of the Representation of the People Act, 1951 (for short, the Act ). The objections found favour with the High Court which accordingly dismissed the election petition by the impugned order dated August 30, 1994.

3. In C.A. No. 8080 of 1994, elections to the Assembly Constituency No. 152, viz., Sahada in the Rajasthan State were held on November 11, and respondent was declared elected on November 28, 1993. The appellant, after he lost the election, filed Election Petition No. 4 of 1994 challenging election of the respondent on the ground of corrupt practices alleged to have been committed by him. Similar to the case of Mrs. Shipra, copy of the affidavit filed in support of the election petition supplied to the respondent, did not contain the verification by the notary. When objection in that regard was raised by the respondent, the learned single Judge by judgment dated September 22, 1994 dismissed the election petition.

In C.A. No. 6635 of 1995, elections were held to the Assembly Constituency No. 160, viz., Raipur in Pali District for 10th Legislative Assembly of the Rajasthan State. The appellant had contested the elections against the respondent who was declared elected on November 28, 1993. The appellant, after he lost the election, filed Election Petition No. 9 of 1994 challenging the election of the respondent on the ground of corrupt practices imputed to have been committed by the respondent. Similar to earlier appeals, the copy of the affidavit supplied along with the election petition to the respondent admittedly did not contain verification by the notary. When objection in that regard was raised by the respondent, the learned single Judge by impugned judgment dated May 26, 1995 upheld the objection and dismissed the election petition.

In Civil Appeal No. 200 of 1993, the respondent was declared elected to the Lok Sabha from the Parliamentary Constituency of Mandsaur in Madhya Pradesh. The appellant, an elector, filed Election Petition No. 9 of 1991 challenging the election of the respondent imputing corrupt practices to have been committed by him. The copy of the affidavit supplied to the respondent did not contain the verification by the notary or oath commissioner. When preliminary objection was raised by the respondent, the learned single Judge of the High Court of Madhya Pradesh upheld the same and dismissed the election petition.

4. Thus in all the appeals, the only question that arises for consideration is: whether the copy of the election petition accompanied by supporting affidavit served on the respective respondents along with Form 25 prescribed under Rule 94-A of the Conduct of Elections Rules, 1961 (for short, the Rules ) without attestation part duly verified by the District Magistrate/Notary /Oath Commissioner can be said to be "true and correct copy" of the election petition as envisaged in Section 81(3) of the Act? An election petition calling any election in question, presented under

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1996 Supreme(SC) 710

1996(3) Supreme 694SUPREME COURT OF INDIAK. Ramaswamy, S.P. Bharucha and K.S. Paripoornan, JJ.Dr. (Smt.) Shipra etc. etc. -AppellantversusShanti Lal Khoiwal etc. etc. -RespondentCivil Appeal No. 6359 of 1994withCivil Appeal Nos. 8080/94, 6635/95andCivil Appeal No. 200 of 1993Decided on 3-4-1996

Cases Referred (8)