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PATNA HIGH COURT
S.C.Misra and R.J.Bahadur JJ.
Sant Prasad Singh
Versus
Dasu Sinha
Election Appeal No. 2 of 1962 ;
Decided On : SEPTEMBER 05, 1963
ELECTION LAW - Representation of the People Act, 1951 - Section 81(3) - Mandatory provision - Non-compliance - Dismissal of election petition - Section 123(3) - Appeal to voters in the name of caste - Leaflet published by respondent - Interpretation - Not a corrupt practice.
Fact of the Case:
The appellant challenged the election of the respondent to the Bihar Legislative Assembly on grounds of false personation, double voting, expunging of voters' names, improper counting of votes, and publication of a pamphlet appealing to voters in the name of caste. The Election Tribunal found against the appellant on all points except the publication of the pamphlet, but held the election petition not maintainable due to non-compliance with Section 81(3) of the Representation of the People Act, 1951.
Finding of the Court:
The Court held that the provision in Section 81(3) of the Act requiring attestation of copies of the election petition by the petitioner is mandatory and failure to comply with it renders the petition liable to dismissal under Section 90(3). The Court also held that the pamphlet published by the respondent did not amount to a corrupt practice under Section 123(3) of the Act as it did not contain any appeal to voters of any particular caste to cast their votes in his favor.
Issues: 1. Whether the non-compliance with the mandatory provision of Section 81(3) of the Representation of the People Act, 1951, renders the election petition not maintainable? 2. Whether the publication of a pamphlet by the respondent appealing to voters in the name of caste constitutes a corrupt practice under Section 123(3) of the Act?
Ratio Decidendi: 1. The Court held that the provision in Section 81(3) of the Act requiring attestation of copies of the election petition by the petitioner is mandatory and failure to comply with it renders the petition liable to dismissal under Section 90(3). The Court relied on the plain language of the statute and the consequences prescribed for non-compliance. 2. The Court held that the pamphlet published by the respondent did not amount to a corrupt practice under Section 123(3) of the Act as it did not contain any appeal to voters of any particular caste to cast their votes in his favor. The Court interpreted the provision narrowly, requiring a direct appeal to voters on the ground of caste, religion, race, community, or language.
Final Decision: The Court dismissed the appeal, upholding the decision of the Election Tribunal.
S.C.Misra, J.
1. The appellant, Sant Prasad Singh, filed a petition questioning the validity of the election of the respondent, Dasu Sinha, to the Bihar Legislative Assembly from the Naubatpur Assembly Constituency. The poll was held in the constituency on the 25th February, 1962, and the result was declared on the 28th of February, 1962. The appellant-petitioner made the election petition as a voter from that constituency, the other candidates Being Bhubneshwar Sharma, Tek Narain Lal Yadav, Jugeshwar Prasad, Mahendra Dusadh and J.N. Sahai. The relevant dates can be briefly set out as follows :
20-1-62Last date for filing the nomination papers.
22-1-62Date of scrutiny.
25-2-62Date of polling.
27-2-62Date of counting.
28-2-62Date when the result was announced.
Respondent Dasu Sinha secured 16,723 votes and Bhubneshwar Sharma obtained the next highest number of votes, being 16,422. Thus, the margin between the two was of 301 votes. The grounds mentioned in the election petition for setting aside the election of the respondent were as follows :
(1) false personation of voters; (2) double voting, in the sense that some voters were enrolled in two constituencies and they voted at both the places; (3) the names of some of the voters were expunged from the electoral roll and yet they voted in favour of the respondent; (4) counting of votes not properly done; some invalid votes secured by Dasu Sinha were counted and many valid votes of Bhubneshwar Sharma not counted and (5) the respondent published a pamphlet appealing to the voters in the name of caste as also touching the personal character of the candidates, both of which were corrupt practices within the meaning of Sec.123(3) and (4) of the Representation of the People Act (hereinafter called the Act). The next ground was the donation by the respondent of Rs. 201/- to a pustakalaya in village Shambhupur cm the 18th February, 1962. The respondent denied all the allegations.
2. The Election Tribunal of Patna has given a finding against the appellant on all the points except in regard to the publication of the pamphlet appealing in the name of caste to the voters. The Tribunal has also found that the election petition is not maintainable on account of non-compliance of Sub-section (3) of Section 81 of the Act.
3. Learned Counsel for the appellant has taken up the question of maintainability of the election petition as the first point in his argument. He has contended that the application has been held to be not maintainable by the Election Tribunal on the ground that it suffers from the defect of non-compliance with the mandatory provisions of Section 81(3) of the Act, inasmuch as the copy meant for the respondent who is only one in number, was not attested by the petitioner under his own signature to be the true copy of the, original; secondly, it was also not accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice and the particulars thereof as required by the proviso to Subsection (1) of Section 83 of the Act. It is admitted that in the original, which was filed before the Election Commission, there is no defect, but in the copy which was attached to it for being served on the respondent as required under Section 81(3) of the Act, the petitioner did not mention that it was a true copy of the original nor were the particulars in support of the allegation of corrupt practice mentioned in the petition.
The respondent filed before the Election Tribunal on the 6th September, 1962, the copy of the election petition alleging it to be the copy which was received by him from the Election Commission. A technical objection was, however, raised pa behalf of the petitioner that this copy was inadmissible, alleging that it was not the genuine copy and it was not formally proved to have been the copy served on him. The copy, however, exhibit M, has been held by the Election Tribunal to be admissible on the ground that the respondent Dasu Sinha
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