Vinod Ramchandra Ghosalka vs Sunit Dattatray Tatkare and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1996 Supreme(Bom) 714

IN THE HIGH COURT OF BOMBAY
R.G. Vaidyanatha, Jr.
Vinod Ramchandra Ghosalka ....Petitioner.
Versus
Sunit Dattatray Tatkare others...... Respondents.
Chamber Summons No. 1205 of 1996 in Election Petition No. 7 of 1995 and Chamber
Summons No. 106 of 1996 in Election Petition No. 8 of 1995 and Election Petition No. 10 of 1995 and 11 of 1995, decided on 23-12-1996.
Advocates appeared :
B.D. Joshi, for petitioner.
V.R. Manohar with R.S. Desai and S.R. Borulkar, for respondents.
F.D. D’vitre with Manoj Bhatt, for petitioner.
V.G. Kotwal and R.D. Soni and J.K. Hegde, for respondent.
Nusrat Shah with C.J. Pooniwala, for petitioner.
R.D. Soni with, D.F. Sharma, for respondent

Headnote:Sections 81(3) and 86(1)Supply of copies to respondent by petitioner of election petition 81(3)-A mandatory provision-Absence of date in affidavit, verification and affirmation in the copy supplied-Non-compliance of provision of Section 81(3)-Petition dismissed-Proper.-In an election petition challenging election of a returned candidate on the ground of corrupt practice, preliminary objection was raised on behalf of the respondents that the petition was not maintainable as true copy of the election petition as filed was not supplied to the respondents and the mandatory provisions of Section 81(3) of the Representation of the People Act had been violated. It was contended that in the original election petition, there was verification by the petitioner and below it there was the signature of the Associate who had administered oath to the petitioner regarding verification. However, in the copy furnished to the respondents the name, signature and designation of the officer and the date put by him were missing, It was therefore contended that It was not possible for the respondents to know whether the petition had been verified at all and if so before which authority and on what date.
Held, that the provisions of Section 81(3) of the Representation of the People Act are mandatory and non-compliance is fatal. If there is a statutory mandate that a particular thing should be done in a particular way, then it must be done in that way, failing which the action fails. If the relevant dates were missing in the copy supplied to the respondents, he would not be in a position to know on what date the verification was affirmed or on what date the verification was affirmed or on what date the affirmation was sworn. The date is very relevant as it has bearing on the question of limitation-Section 81(3) provides as to how the election petition should be filed and how many copies should be furnished. The Court cannot go into the realm of substantial compliance or prejudice to the returned candidate. As the copy supplied to the respondents did not contain the signature or name of the Associate and date put by him, the copy supplied was not a true copy within the meaning of Section 81 (3) of the Act. There was fatal defect which warranted dismissal of the election petition for non-compliance of provisions of Section 81 (3) of the Act. Election petition dismissed.

JUDGMENT - R.G. VAIDYANATHA, J.:---These are four Election Petitions filed by the respective petitioners challenging the election of returned candidates. In all these cases the respective respondents have taken a preliminary objection about the maintainability of the Election Petition on the ground that true copy of the petition is not served on the respondent. In Election Petition No. 7/95 Chamber Summons No. 1205/96 and in Election Petition No. 8/95 Chamber Summons No. 106/96 are taken out raising preliminary objection that the petition is not maintainable. In Election Petition No. 11/95 a precipe is filed stating that the respondent is taking identical preliminary objection as in Chamber Summons No. 1205/96 filed in E.P. No. 7/95. In Election Petition No. 10/95 the respondent has filed an application dated 3-12-1996 stating that the petition is not maintainable. I have heard the learned Counsel appearing for the respondents in all the four cases. I have heard the learned Counsels for the petitioners. Since, common question of law arise for consideration, I am disposing of the preliminary objection in all the four cases by this common order.

2.In E.P. No. 7/95 the petitioner has challenged the Election of the first respondent, Shri Sunil Dattatray Tatkare, who is the returned candidate. This pertains to Assembly Election in Constituency No. 14, which is called as Mangaon Legislative Assembly Constituency in Raigad District. Elections were held on 12th February, 1995 and results were declared on 12th March, 1995 declaring the first respondent as duly elected by getting highest votes.

3.In E.P. No. 8/95 the petitioner has challenged the election of the respondent Shri Raj K. Purohit, who is the returned candidate. This petition pertains to the Assembly Election in Constituency No. 21 which is called as Mumbadevi Constituency in Bombay city. Elections were held on 12th February, 1995 and after counting the results were declared on 12th March, 1996 declaring that the respondent was duly elected by getting highest votes.

4.In E.P. No. 10/95 the petitioner has challenged the election of the respondent Shri Dhatrak A. Gangaram, who is the returned candidate. This petition pertains to the Assembly Election from Constituency No. 19, which is called as Colaba Constituency in Bombay city. Elections were held on 12th February, 1995 and results were declared on 12th March, 1995 declaring that the respondent was duly elected after getting highest votes.

5.In E.P. No. 11/95 the petitioner has challenged the election of the respondent Shri Anant N. Thopde, who is the returned candidate. This petition pertains to the Assembly Election from Constituency No. 257, known as Bhor Legislative Assembly Constituency in District Pune. Elections were held on 12th February, 1995 and results were declared on 12th March, 1995 declaring that the respondent was duly elected after getting highest votes.

6.In all these cases the petitioners are challenging the elections of the respondents on the ground of corrupt practices committed by the returned candidates.

7.In view of proviso to section 83(1) of the Representation of the People Act, 1951 an affidavit is filed by the petitioners in support of the allegations in the petitions making allegations of corrupt practices.

8.Mr. V.R. Manohar, Mr. R.S. Desai, Mr. V.G. Kotwal, Mr. S.R. Borulkar and Mr. R.D. Soni, who appeared for the four returned candidates in these four cases addressed common arguments. The main argument is that true copy of the affidavit. which is an integral part of the Election petition, is not furnished to the respondent, in as much as, copy furnished does not contain the signature or name of the officer who administered the oath to the respective petitioners and further the date put by the officer is also not furnished on the copy. It is further argued that the true copy of the verification of the petition is not furnished to the respondents, in as much as, the name of the Court officer, who

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