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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
S.S. Dani, J.
Baban s/o Dattatraya Yadav ..... Petitioner.
Versus
Shri Abdul Kadir s/o Abdul Wahed Deshmukh and others ...... Respondents.
Election Petition No. 7 of 1995, decided on 7-5-1997.
Advocates appeared :
S.B. Talekar, for petitioner.
V.D. Salunke, for respondent No. 1.
D.J. Choudhari, for respondent No. 2.
V.K. Deshpande, for respondent No. 6.
Bhushan Kulkarni, for respondents 5,7,9,10, and 12.
K.B. Chaudhari, A.G.P., for respondent No. 13.
- original election petitioner, it cannot be ignored and if, there is such a omission, the copy of the petition served on the respondent cannot be a true copy of the original If, the copy of the election petition served on the respondent contains omission as regards the endorsement by the prescribed authority before whom the petition is verified, such a omission is considered as a vital omission and would entail the dismissal of the petition under Section 86(1).
Sections 81(3) and 86-Non-pliance of Section 81(3) of Act-Election petition-Supply of its true copy to opposite party-Copy as supplied not containing signature, date and verification or attestation clause by concerned officer-Held, such copy of petition not being true copy of original petition, it is non-compliance of Section 81(3) of Act and hence, petition dismissed.
Sections 81(3) and 86-Allegation of corrupt practices in election- Defects in petition-Effects of-Challenged-Ground-Copies of petition suffering from defects and differences -Held-Materials defects in copies of petition-Improper attestation-Amounts to non-compliance with Sections 86 and 81(3),-The copies of the petition served on the respondents, when compared with the original election petition, the material defects are noted. The omissions consist in respect of signature, the name as well as seal and the date of the officer, before whom the election petition is said to have been verified or affirmed and as, all these things are conspicuously absent in the copies of the petition served on the respondents. In the case at hand, the officer of this Court was authorised to administer oath to the deponent and verification/ affirmation made by the election petitioner before the authority could not be faulted as he had an authority to administer the oath. However, in the copies of the petition served on these respondents, the name of the officer who administered oath to the petitioners or before whom the petitioners verified the petition, is not mentioned nor there is anything to show that it was to so verified or affirmed before the said officer. The failure to mention anything in this respect in the copies of the petition has deprived the respondents to know whether as a matter of fact the petitioner had verified the contents and also to know as to whether the officer before whom the petition is purported to be verified was authorised to administer the oath. This could not be known to the respondent as the name, the seal, signature and the date of the said officer is absent on the copies of the petition. In the absence of anything in respect of the name, date, signature and the verification or attestation clause made by the concerned officer, prejudice is clearly caused to the respondents and these omissions are, therefore, of substantial nature and as such, the copies of the election petition served on these respondents cannot be taken to be true copy of the petition and as such there is non compliance of the requirement of Section 81(3) of the said Act and as such, it would entail dismissal of the petition under Section 86 of the Act.
Sections 81(3) and 86-Lacuna in hue copy of election petition-Vital omission like date, name and signature of competent authority- Not a true copy.-A true copy i.e., a copy which substantially a reproduction of the original and if, there is omission of vital nature in the copy as compared to the original election petition, if, cannot be ignored and if, there is such an omission.
2.The petitioner and the respondents No. 1 to 12 are the candidates contesting the said election held on 9-2-1995. The counting of the said election was done on 11-3-1995 and in the said counting the respondent No. 1 secured highest numbers of votes i.e. 37, 911 while the present petitioner and the respondent No. 2 secured 37,790 and 28,782 votes respectively. The respondent No. 1 has, therefore, been declared duly elected from the said constituency having secured highest number of votes. The petitioner was contesting the said election as an official candidate of Bhartiya Janata Party with the symbol of LOTUS while the respondent No. 1 was Congress- I candidate contesting with the election symbol of HAND and the respondent No. 2, who is the independent candidate with the symbol of UMBRELLA. The respondent No. 3 to 12 were independent candidates contesting the said election from the constituency. It is alleged by the petitioner that the actions and decisions of the Returning Officer respondent No. 13 were illegal and in bad faith and without any propriety and had affected the out come of the election materially. It is further alleged that the respondent No. 1 committed corrupt practice within the meaning of provisions of section 100 and 123 of the Representation of the People Act, 1951. It is also a challenge to the election on the ground that many irregularities were committed by the Returning Officer--respondent No. 13 in conduct of the election as well as counting of votes and receiving void votes. The petitioner also alleges corrupt practice by the respondent No. 2 affecting the out come of the election materially.
3.The petition is resisted stoutly by the respondent No. 1 by his written statement (Exh. 17) and all the allegations raised in the petition are refuted. The respondent No. 13 the Returning Officer for the said election also resisted the petition by a separate written statement (Exh. 19) and also refuted the allegations made by the petitioner. So also the respondent No. 2 has filed his written statement (Exh. 14) resisting the petition. None of the remaining respondents has filed any written statement.
4.The respondent No. 1 the returned candidate has filed an application (Exh. 23) raising preliminary objections of maintainability of the election petition on the ground of non compliance of section 81 to 83 of the Representation of the People Act, 1951. Similarly, the respondent No. 13 has also filed application (Exh. 30) raising similar preliminary objections of maintainability of the election petition. It is the common ground of the respondents No. 1 and 13 that the election petition suffers because of the non compliance of the provisions of sections 81 to 83 of the said Act and the Rules made thereunder and as such, the petition itself needs to the dismissed under section 86 of the said Act. The respondent No. 1 attacked the election petition by raising the following grounds of non compliance of the said provisions :
A) The petition is not signed and verified in accordance with the provisions of the Act.
B) Copy supplied is not in accordance with the provisions of law and does not show that the petitioner has signed at the foot of the petition nor does the verification clause shows that the same has been signed by the petitioner. It does not bear the date on which it was verified or lodged and there is no designation of the Officer before whom the verification is done nor there is signature or the date on it.
C) The verification stating receipt of the information for villagers of Kathala as well as information of para 10 of the petition from N.T. Ghatge and others. It is not naming the persons as well as the verification made on information from Polling and Counting agents is without particulars.
D) Form No. 25 is not in accordan
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