IMPORTANT POINT
High Court was wrong in dismissing Election Petition u/s 86(1) of the Representation of People Act, 1951 for non compliance with Section 81(3) [non-supply of true copy of affidavit]. The findings of High Court, repelling, the other two grounds as raised by respondent No. 1 relating to limitation and defective mention of the name of Abdul Khyer as respondent No. 11 are upheld.

Headnote:(i) Representation of People Act, 1951-Section 80-Election petition-Application u/s 86 for its dismissal on the ground that there was non-supply of true copy of affidavit with the election petition to respondent No. 1-High Court holding it was violation of S. 81(3) of the Act and dismissed election petition-Whether correct? (No)-Appeal allowed-Case law discussed.
       Held : From the various decisions noted above, it clearly emerges out that the correctness of the decision Dr. Shipra s case (supra) was doubted and it has been held by the Constitution Bench in the T.M. Jacob s case (supra) that it was confined to the facts of that case. Therefore it cannot be said that Dr. Shipra s case lays down any proposition of law of binding nature. The two decisions of the Constitution Benches, namely, Radhey Shyam Murarka and T.M. Jacob (supra) hold the field as well as the decision in the case of Sri T. Phungzathang (supra). The law as laid down in the above noted decisions would be the guiding precedents in deciding a question relating to a true copy of an affidavit. (Para 17)
       We may now consider the fact situation of the present case in relation to attestation of the affidavit in support of the election petition before an Oath Commissioner. At the very outset, it may be indicated that the original election petition in the end bears the stamp and due attestation and signature of the Oath Commissioner. Above the stamp of the Oath Commissioner there are signatures of the petitioner above the word deponent . Before that on Page 25 of the petition, a full verification of the affidavit has been made. (Para 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 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 on 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 Paragraph one 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 No.1 and respondent No.7. In the end the petitioner signs as deponent and he is identified by 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 fulfillment of such a legal requirement is adequately reflected even in absence of name and seal etc. of Oath Commissioner in the true copy. (Para 22)
       (ii) Representation of People Act, 1951-Section 80-Election petition alleging corrupt practices-Application u/s 86 for its dismissal on the grounds that it was barred by limitation and that all contesting candidates not properly impleaded particularly respondent No. 11-Plea of limitation not pressed in appeal-Plea of non-joinder found to be a typographical error-Both pleas rejected by High Court-Whether correct? (Yes).
       Held : Learned senior counsel Shri Bachawat then referred to two other points raised by Respondent No. 1 but repelled by the High Court. So far the first point is concerned, about the petition being time barred, he has very fairly given up the said point on being indicated referring to the original that the petition was filed on November 20, 1999 and not on 28.11.1999. (Para 23)
       That the test is whether the election petition complies with provisions of Section 82, not whether the election petitioner has failed to comply with Section 82. The substance of the matter must govern, because hyper technicality when the public policy of the Statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat the vital judicial process, namely, investigation into the merits of the case. We find no force in this point too raised by Respondent No.1. No other point has been urged. In the result, we allow the Civil Appeal No. 6593 of 2000 and set aside the judgment and order passed by the High Court dismissing the Election Petition under Section 86 (1) of the Representation of Peoples Act for non- compliance with provisions of Sub-section (3) of Section 81 of the Act. The findings of the High Court, however, repelling the two other grounds as raised by the respondent No. 1 relating to limitation and mention of the name of Abdul Khyer as respondent No. 11 are upheld. This disposes of SLP (C) ......... (CC 8664/01) also accordingly. (Paras 25 and 26)

JUDGMENT

Brijesh Kumar, J.-The appellant Ram Prasad Sarma and Respondent No.1 Mani Kumar Subba, amongst others contested election, for No. 9 Tezpur Parliamentary Constituency, Assam in the elections held in the year 1999. Respondent No. 1 Mani Kumar Subba was declared elected on 7.10.1999 from the aforesaid constituency. The appellant who secured the next highest number of votes, challenged the election of Respondent No. 1 by filing an election petition under Section 80 of the Representation of the Peoples Act 1951 on the ground that large scale rigging and booth capturing had taken place at the instance of Respondent No.1 who adopted and resorted to corrupt practices in the election. Hence, election of Respondent No. 1 was liable to be declared void. It was also prayed that the appellant may be declared as duly elected candidate from No. 9 Tezpur Constituency. Notice was issued to the respondents on the election petition.

2. The Respondent No.1 Mani Kumar Subba on receipt of the notice, moved an application under Section 86 of the Representation of the Peoples Act 1951 (hereinafter to be referred as the Act ) praying for dismissal of the election petition at the threshold on three grounds, firstly that the election petition was filed beyond a period of 45 days which is the prescribed period of limitation for filing an election petition under Section 81(1) of the Act. The next ground was that where the election petitioner prays for a declaration in his favour or in favour of any other candidate for having been duly elected from the constituency all the contesting candidates have to be impleaded as respondents in the election petition. One Shri Abul Khayer who had also contested the election was not impleaded as respondent instead one Abdul Khyer was impleaded as Respondent No. 11. It amounted to non compliance of Section 82 of the Act. Thirdly, the true copy of the affidavit served upon the respondent No.1 along with copy of the election petition does contain the attestation and stamp etc. of the Oath Commissioner. It violates Section 81 (3) of the Act.

3. The aforesaid relevant provisions may be perused, which read as follows:-

Section 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 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 dates of their election are different, the later of those two dates]

Explanation ........................

* * * * * * * * *

(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.

Section 82. Parties of the petition.-A petitioner shall join as respondents to his petition:-

(a) Where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates; and

(b) Any other candidate against whom allegations of any corrupt practice are made in the petition.

Section 83. Contents of petition.-(1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleged including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practi

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2002 Supreme(SC) 1068

Cases Referred (10)