2000 Supreme(Bom) 384

IN THE HIGH COURT OF BOMBAY
T.K. Chandrashekhara Das, J.
Narendra Bhikahi Darada..... Petitioner.
Versus
Kalyanrao Jaywantrao Patil others..... Respondents.
Election Petition No. 5 of 1999, decided on 5-5-2000.
Advocates appeared :
A.C. Singh i/b. S. Subramanniyam, for petitioner.
Balkrishna D. Joshi, for respondent No. 1.

Headnote:Sections 81, 83 and 86-Attes~n of Election Petition-Where each page or each annexure is signed by the petitioner but the copy thereof was attested as true copy by his advocate, that is enough for non-compliance of the provisions of Section 81(3) where by it is essential to sign as attested true copy by the petitioner in his own signature and thus is liable to be thrown out at the threshold without trial under Section 86 of the Act, 1951.-It is well settled that a true copy of the Election Petition need not be the identical replica of the Election Petition. In Murarka redheshyam Ram Kumar v. Roopsingh, reported in AIR 1964 SC 1545, it has been held that copy in Section 81(3) of the Act does not mean absolute, exact copy but a copy to be true that he could not be misunderstood. But it has to be noted that the contentions of the learned counsel for the petitioner that each page of the copy of the Election Petition need not be attested to be true copy under the signature of the Petitioner cannot be accepted. Each page or each annexure were signed by the Petitioner, in the Election Petition but copy was attested as true copy by the advocate for the petitioner as a substantial compliance of Section 81(3). Court does not think this view is right for the reasons stated below.

       It is well settled by now that an Election Petition is liable to be thrown out at the threshold without the trial under Section 86 of the Representation of People Act if the Election Petition violates the mandatory provisions contained in Section 81. Mandatory provision contained in sub-section 3 of Section 81 says that 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 signed hue to be true copy of the petition. In the light of this legal paradigm we have to examine the defects pointed out by the counsel for the first respondent in sub para (i).

       In this context a decision of the Supreme Court reported in AIR 1980 SC page 393, Sharif-ud-Din v. Abdul Gani lone, and in para 19 it has been held thus :

       "The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature. The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition is that the petitioner should take full responsibility for its contents and that the respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorized alteration or tampering of the contents of the original petition after it is filed into court."

       In the light of the above observations omissions to write name of the attesting officer held to be not fatal and can be found that Section 81(3) has been substantially complied with. But T.M. Jacobs case 1999 (3) IT 72 (SC) cannot be used by the petitioner in this case. In that case only signature of the officer was missing. Instead, it was written "Sd" and below that name of the officer was written. In that circumstance, Supremeo Court has held that defect is not fatal and held to be substantially complied with. But here in this case, name of the officer was missing and verification is also not there. If one receives a copy of the Election Petition, naturally doubt may arise and confusion may creep in as to whether it was signed by a proper officer and as to what objection has to be raised in the Election Petition. Therefore, absence of the name of the officer before whom the petitioner put signature cannot be said to be one that can be substantially complied with. It is really a fatal defect. Other defects pointed out that the absence of verification as prescribed under law in the annexure and absence of attestation of true copy under the signature of the petitioner has also to be found to be fatal. Moreover, defect no. (iii) of supplying document/and annexures along with copy different from that of the original is liable to mislead the respondent No.1 in formulating his defence held in Dr. Shipras case which reads thus in para 11 :

       "In Purshottam v. Returning Officer, Amravati, AIR 1992 Born 227, the present question had arisen. In that case the copy contained omission of vital nature, viz. the attestation by the prescribed authority. The High Court had held that the concept of substantial compliance cannot be extended to overlook serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy. We approve of the above view, 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 true copy should also contain such affirmation so that the returned candidate would not be misled in his under standing 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 8-A 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."

       Supplying a different copy Exh. E1 along with copy of the petition assumes importance in this case, because petitioner challenges the election of the returned candidate of irregular counting also. The annexure El relates to the number of votes obtained in a particular round of counting. The Petitioner is relying on this document to establish his case that there were irregularity in counting of votes.

       Though the observation in Dr. Shipras case has critically been examined by the Supreme Court in T.M. Jacobs case (supra) it has not overruled Dr. Shipras case. As I indicated earlier Supreme Court was distinguishing the fact of each case and held that defect in T.M. Jacobs case was found to be one which can be substantially complied with. Therefore, I find that the defects pointed out in sub-para (i) to (iii) are fatal and is to be held that Section 81(3) has been vitiated as the defect pointed out here was similar to the facts situation in Dr. Shipras case.

       Sections 81, 83 and 86-Noncompliance of the provisions-The name of officer before whom the petitioner had put his signature must be in the copy of the petition supplied to the returned candidate otherwise it would result a fatal defect not curable by way of any amendment sine the same is non-compliance of Section 81(3) of the Act, 1951.-Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of .the petition as to the facts stated in petition which are not to his knowledge and the petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of duty of the court SILO motu even to direct furnishing of better particulars when objection is raised by other side. Where the petition does not disclose any cause of action it has to be rejected. Court however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. Petition has to be considered as a whole. There cannot be a partial rejection of the petition.

       Counsel for the Petitioner, however, contends that for the above defect the election petition is not liable to be dismissed. The aforesaid observation of the Supreme Court cannot be relied on by the petitioner. In Narayanswamy case the material particular has not been supplied by the petitioner and in that context the Supreme Court said that, that defect could be curable by seeking amendment of the petition. But in the aforesaid para Supreme Court has in unambiguous terms held that if an Election Petition contains no material facts, constituting cause of action it is fatal. Here in the present (case) it is not non-supply of material particular only but non-verification of concise statement and affidavit. Therefore, it cannot be said that a true copy has been supplied to respondent No. 1. In view of the above observations of the Narayanaswami case, non-verification of concise statement of material facts and affidavit in the copy of the Election Petition cannot be considered to be curable defect by way of an amendment of the Election Petition.

       In the copy of the Election Petition absence of verification of concise statement and affidavit can be treated as not only a defect under Section 83(2), but also a non-compliance of the Section 81(3) of the Act as the true copy of the Election Petition cannot be said to be served on the respondent.

       Sections 81, 83 and 86-Nonsupply of material particulars-In the copy of the election petition verification of the concise statement and affidavit must be there alongwith the affidavit there on otherwise it would constitute a defect under Section 81(2) and noncompliance of the provisions under Section 81(3) of the Act, 1951. This will amount as copy not served to the respondent and will not be curable by any amendment.