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1981 Supreme(Goa) 8
Goa High Court
K. M. MISHRA, Ag., J.C.
Narayan Srinivas Fugro - Appellant
Versus
Samjibhai Bhika Solanki - Respondents
Election Petn. No. 1 of 1980
Decided On : 16 June 1981
M.S. Usgaoncar, for Petitioner; S.K. Kakodkar, for Respondent.
Non-compliance with the requirements of Section 81(3) of the Representation of the People Act, 1951 is not fatal to the petition if there is substantial compliance with the requirement.
Headnote:
ELECTION PETITION - Maintainability - Non-joinder of withdrawn candidate - Whether fatal to the petition - Representation of the People Act, 1951, Ss. 81(3), 82(b), 83, 86(1), 123(4).
Fact of the Case:
In an election petition challenging the election of the respondent to the Legislative Assembly of Goa, Daman and Diu, the petitioner alleged that the respondent had committed corrupt practices of undue influence and publication of false statements. The respondent filed a preliminary objection that the petition was not maintainable as it did not comply with the requirements of Section 81(3) of the Representation of the People Act, 1951, as the copies of the petition were not attested by the petitioner under his own signature to be true copies, and that there was no statement in the petition that the false statements in the publication were not believed to be true or believed to be false by the returned candidate. The respondent also contended that the petition was not maintainable as it did not implead the withdrawn candidate against whom there were allegations of corrupt practice.
Finding of the Court:
The Court held that the petition was maintainable. It held that the requirement of Section 81(3) of the Act was substantially complied with as the copies of the petition were signed by the petitioner and his advocate, and the objections raised by the Registrar were removed within the time stipulated by him. The Court also held that the petition contained a statement that the author of the publication, as well as the respondent, knew very well that the statements made therein were false, which was sufficient to satisfy the requirement of Section 123(4) of the Act. The Court further held that the non-impleading of the withdrawn candidate was not fatal to the petition as there was no clear allegation of corrupt practice against him in the petition.
Issues: 1. Whether the petition was maintainable in view of the non-compliance with the requirements of Section 81(3) of the Representation of the People Act, 1951? 2. Whether the petition was maintainable in view of the absence of a statement that the false statements in the publication were not believed to be true or believed to be false by the returned candidate? 3. Whether the petition was maintainable in view of the non-impleading of the withdrawn candidate against whom there were allegations of corrupt practice?
Ratio Decidendi: 1. The requirement of Section 81(3) of the Representation of the People Act, 1951 is mandatory and non-compliance with it results in dismissal of the election petition. However, substantial compliance with the requirement is sufficient. 2. Section 123(4) of the Act requires that the publication of a false statement of fact in relation to the personal character or conduct of a candidate or with regard to his candidature or withdrawal is not a corrupt practice by itself unless it is proved that the candidate publishing the statement does not believe such statement to be false or believes the same to be true. 3. Section 82(b) of the Act requires that an election petition shall be dismissed if there is no allegation of corrupt practice against the candidate in the petition suggesting or indicating that the candidate has committed a corrupt practice or is guilty thereof.
Final Decision: The Court dismissed the preliminary objection and held that the election petition was maintainable.
ORDER :- In the recent elections for Diu Constituency to the Legislative Assembly of Goa, Daman and Diu held on 3-1-80, three persons were duly nominated as candidates for election. Of these, only two, that is the petitioner and the respondent contested for the seat, the other, one Shri Babubhai Solanki, having ultimately withdrawn from the contest. Eventually as a result of the poll, the respondent was returned from the aforesaid constituency by securing 6032 votes as against 4633 polled by the petitioner. The election of the respondent has now been called in question by means of an election petition which has been registered as Election Petition No. 1/80 in this Court.
2. The election of the respondent is challenged substantially on the grounds of corrupt practices consisting of:
(i) undue influence, interfering with free exercise of electoral rights so as to compel the electors to vote in favour of the respondent as against the petitioner;
(ii) publication of false statements regarding personal character and conduct of the petitioner, reasonably calculated to prejudicially affect the election of the petitioner.
The respondent has filed his written statement traversing all the allegations in the petition of election.
3. On 18-12-1980 the Court framed five issues for the disposal of the petition. The petitioner has already filed list of witnesses on 2nd Feb., 1981. The respondent filed a petition for permission to assail the maintainability of the petition on the following grounds :-
"Shri Babubhai Ranshod Solanki, a candidate against whom the petitioner has purported to make allegations against corrupt practices has not been joined as respondent to the petition."
Accordingly the maintainability of the election petition has been taken up as a preliminary issue. I need not therefore refer to the pleadings in detail for at this stage I am concerned only with whether the petition is liable to be dismissed in limine for non-compliance with certain requirements of law. The points which have been argued on behalf of the respondent as preliminary objections, may now be stated as under :-
(1) The petition is to be considered as entered on the date when objections were removed. The date of presentation is within time, but the date of removal of the objection is outside limitation. Hence petition is barred by time.
(2) There is no statement in the petition that corrupt practices have materially affected the result of the petition so far as the returned candidate is concerned.
(3) There is no statement in the petition that the false statements in the publication are not believed to be true or believed to be false by the returned candidate.
(4) Non-impleading of the withdrawn candidate against whom there are allegations of corrupt practice is fatal to the petition.
4. Point No. 2 not being pressed in course of argument only three points survive for consideration.
5. The first point may now be taken up. It relates to presentation of petition which is dealt in S.81 of the Representation of the People Act, 1951, which reads as under :-
"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 S.101 to the High Court 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 the dates of their election are different, the later of those two dates.
Explanation.- In this sub-section elector means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
xx xx xx xx
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition xx xx xx, and every such copy shall be attested by the petitioner under his own signature to be a true c
