Rajendra Singh & Ors Vs. Smt. Usha
Rani & Ors [1984] INSC 47 (27 February 1984)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J) MISRA RANGNATH
CITATION: 1984 AIR 956 1984 SCR (3) 22 1984
SCC (3) 339 1984 SCALE (1)440
CITATOR INFO :
R 1991 SC1557 (29)
ACT:
Representation of the People Act 1951,
Sections 81(3) and 86.
Election Petition-Service of true and exact
copy of election petition on respondents-Duty of election
petitioner-Consequences of failure of-Dismissal in limini of election petition.
Amendment of election petition-Whether
permissible.
HEADNOTE:
The respondent filed an Election Petition for
setting aside the election of the appellant to the State Legislative Assembly.
The appellant filed a petition for rejection of the said Election Petition in
limine under Section 86 of the Representation of the People Act, 1951 on the
ground that the copy of the petition served on him was neither attested to be a
true copy nor a correct copy of the original petition, as contemplated by the
provisions contained in section 81(3). The case of the respondent-election
petitioner was that two sets of copies were filed, one set being correct as
required by the Act and the other set incorrect containing vital omissions and
mistakes, the appellant having got a correct copy as required by section 81(3)
there was compliance with the requirement of the section.
The High Court held that as the respondent
had filed correct copies, the provisions of section 81(3) were not violated and
it was for the appellant to have chosen the correct copy from the two sets and
invoked the doctrine of benefit of-doubt in order to cure the non-compliance of
the mandatory provisions of section 81(3), and rejected the application to
dismiss the Election Petition.
In the connected appeals, the 1st Respondent
had filed separate Election Petitions for setting aside the election of the
appellants to the Rajya Sabha. When the said petitions came up before the High
Court for hearing an application was made by the respondent for amendment of
the original petition by insertion of page 17 which was allowed.
The appellants filed petitions before the
Election judge for rejecting the Election Petition on the ground that no
amendment could be allowed which would have the effect of defeating or
bypassing the provisions of section 81(3) of the Act, and that the original
petition served on the appellants did not contain page 17 and hence was not the
correct and exact copy of the election petition.
The High Court rejected the application to
dismiss the Election Petition.
Allowing the Appeals.
HELD: 1. The mandate contained in section
81(3) is clear and specific and requires that every copy of the election
petition must be a true and exact copy of the petition. The consequences of this
mandatory provision cannot be got over by praying for an amendment of the
election petition because that would defeat the very object and purpose of
section 81(3). [28 F, 29 B] In the instant cases, the judgment of the High
Court are set aside, and the election petitions dismissed in limine under
section 86 of the Act. [30 D] Sharif-ud-Din v. Abdul Gani Lone, [1980] 1 SCR
1177;
referred to.
2. Section 81(3) and 86 of the Act do not
contemplate the filing of incorrect copies and if an election petitioner
disregards the mandate contained in section 81(3) by filing incorrect copies,
he takes the risk of the petition being dismissed in limine under section 86.
It is no part of the duty of the respondent to wade through the entire record
in order to find out which is the correct copy. If out of the copies filed, the
respondent's copy is found to be an incorrect one, it amounts to non-compliance
of the provisions of section 81(3) which is sufficient to entail a dismissal of
the election petition at the behest of the respondent.
[27 B; C]
3. If an election petitioner files a number
of copies, some of which may be correct and some may be incorrect, it is his
duty to see that the copy served on the respondent is a correct one. [27 A] In
the instant case, it has not been proved by the respondent that correct copies
of the election petition had been filed or, that the appellant got the correct
copy and not the incorrect one, in the face of the clear and categorical
assertion by him that he did not receive the correct copy. [27 F]
4. The mandate contained in Section 81(3)
cannot be equated with s. 537 of the Code of Criminal Procedure which makes
certain omissions as a curable irregularity. No. such concept can be imported
into the election law because the object of the law is that the electoral
process should not be set at naught and an elected candidate should not be
thrown out unless the grounds mentioned in the Act are clearly and fully
proved. [27 D]
5. Parliament in its wisdom has not made any
attempt to interfere with the preemptive and mandatory provisions of section 81
(3) resulting in the consequence of dismissal of the petition under section 86
despite the observations in Satya Narain. v. Dhija Ram & Ors. [1974] 3 SCR
20. [30 C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 3702 (NCE) of 1982.
Appeal by Special leave from the judgment and
order dated the 2nd August, 1983 of the Allahabad High Court in Election
Petition No. 28 of 1980.
24 With Civil Appeal No. 9 of 1983 Appeal by
Special leave from the Judgment and Order dated the 15th October/1st December,
1982 of the Allahabad High Court in Election Petition No. 1 of 1982.
And Civil Appeal No. 10 of 1983 Appeal by
Special leave from the Judgment and Order dated the 15th October, 1982 and 1st
December, 1982 of the Allahabad High Court in Election Petition No. 1 of 1982.
S.N. Kacker, R.L. Srivastava, Rajesh and V.K.
Verma for the Appellants in CA. No. 3702 of 1982.
Appellant in person in CA. No. 10 of 1983.
M.C. Bhandare and V.K. Verma for the Appellant
in CA.
9/83.
Yogeshwar Prasad, Ms. R. Chhabra, Sujat Ullah
and K.K.
Gupta for the Respondents.
The Judgment of the Court was delivered by
FAZAL ALI J. As these appeals involve common points of law, we propose to
decide them by one judgment.
Civil Appeal No. 3702 of 1982 This appeal
arises out of election to '375-Iglas Assembly Constituency, Aligarh to the
Uttar Pradesh Legislative Assembly' which was held on May 28, 1980 and the
result of which was declared on June 1, 1980, in which the appellant was
declared elected. Respondent No. 1, Smt. Usha Rani had also contested the above
mentioned election but was defeated. Aggrieved by the result of the aforesaid
election, Smt. Usha Rani filed an election petition on 25 July 15, 1980, at the
residence of the Registrar of the Allahabad High Court. Thereafter, on
September 24, 1981, the appellant filed a petition before the High Court for
rejection of the election petition filed by the respondent, on the ground that
the copy of the petition served on him was neither attested to be a true copy
nor a correct copy of the original petition, as contemplated by the provisions
contained in s. 81 (3) of the Representation of the People Act (hereinafter
referred to as the 'Act') and hence the election petition should be rejected in
limine under s. 86 of the Act. Sub-s. (3) of s. 81 may be extracted thus;
"81. Presentation of petitions- XX XX XX
(3) 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 signature to be a true copy of the
petition." An analysis of this sub-section would reveal that every
election petition should be accompanied by as many copies as there are respondents
and that every copy should be attested by the petitioner under his own
signature. If these requirements are not followed strictly and literally, it
would result in dismissal of the election petition without any trial as
provided by s. 86 of the Act.
In the instant case, the main point raised by
the appellant was that two sets of copies were filed by the election-petitioner
in the High Court, one set being a correct and exact one and the other
containing vital omissions and mistakes. This position is not disputed by the
respondent (election-petitioner). In reply to the preliminary objection raised
by the appellant, the respondent rebutted the charge on the ground that the
appellant had got a correct copy as required by s. 81 (3) of the Act and,
therefore, he could not be heard to complain of any non-compliance with the
provisions of the aforesaid sub- section.
After going through the judgment of the High
Court it is not clear whether the appellant received the correct copy of the
petition or an incorrect one. On the other hand, on the evidence and admitted
facts the following circumstances appear to be undisputed;
26 (a) that two sets of copies were filed by
the election-petitioner in the High Court, (b) that one set was correct as
required by the Act, and (c) the other set was incorrect as it contained vital
omissions and mistakes regarding the details of corrupt practices alleged
against the appellant.
There is, however, no clear evidence or
finding to show that the copies which were received by the appellant were
correct or incorrect and there is some divergence on this point. The High Court
seems to have come to the conclusion that as the respondent had filed correct
copies also, she did not violate the provisions of s. 81 (3) and it was for the
appellant to have chosen the correct copy from the two sets. The learned Judge
of the High Court has also invoked the doctrine of benefit-of-doubt in order to
cure the non- compliance of the mandatory provisions of s. 81 (3).
On going through the relevant evidence we
find that there is overwhelming material to show that the appellant did not
receive the correct copy and even the respondent in her evidence did not
categorically deny this fact. The respondent in her evidence before the Court
admitted that out of the 22-23 copies filed by her, 10 copies were correct and
were duly signed by her and the rest were left with the counsel with
instructions to get them corrected. Therefore, she was not at all sure whether
all the copies were corrected or not. She further admitted that in some of the
copies she did not initial the various corrections and that Exts. R-1, R-2, R-3
and R-4 were not out of those 10 copies which had been filed by her along with
the election petition at the residence of the Registrar. There is, however,
clear evidence to show that the copies which were received by the appellant
were Exts. R-1 to R-4, which admittedly were not correct copies of the election
petition.
This being the position, it is manifest that
the appellant did not receive the correct copies as contemplated by s. 81 (3)
of the Act. The respondent has also not been able to prove that the copies
served on the appellant were out of the 10 corrected copies which she had
signed and filed. It appears that in view of a large number of copies of the
petition having been filed, there was an utter confusion as to which one was
correct and which was not. It is obvious that if an 27 election-petitioner
files a number of copies, some of which may be correct and some may be
incorrect, it is his duty to see that the copy served on the respondent is a
correct one.
A perusal of ss. 81 (3) and 86 of the Act
gives the impression that they do not contemplate filing of incorrect copies at
all and if an election-petitioner disregards the mandate contained in s. 81 (3)
by filing incorrect copies, he takes the risk of the petition being dismissed
in limine under s. 86. It is no part of the duty of the respondent to wade
through the entire record in order to find out which is the correct copy. If
out of the copies filed, the respondent's copy is found to be an incorrect one,
it amounts to non-compliance of the provisions of s. 81 (3) which is sufficient
to entail a dismissal of the election petition at the behest.
Hence, the mandate contained in s. 81 (3)
cannot be equated with s. 537 of the Code of Criminal Procedure which makes
certain omissions as a curable irregularity. No such concept can be imported
into the election law because the object of the law is that the electoral
process should not be set at naught and an elected candidate should not be
thrown out unless the grounds mentioned in the Act are clearly and fully
proved. An election dispute concerns the entire constituency and in a
parliamentary democracy it is of paramount importance that duly elected representatives
should be available to share the responsibility in the due discharge of their
duties. That is why the law provides time-bound disposal of election disputes
and holds out a mandate for procedural compliance.
In these circumstances, therefore, in the
instant case there was absolutely no justification for the learned Judge to
have invoked the doctrine of benefit-of-doubt. We are satisfied that it has not
been proved by the respondent that she filed correct copies of the election
petition or, for that matter the appellant got the correct copy and not the
incorrect one, in the face of the clear and categorical assertion by him that
he did not receive the correct copy.
For these reasons, therefore, the appeal is
allowed and the election petition filed by the respondent is dismissed under s.
86 of the Act. There will be no order as to costs.
Civil Appeal Nos. 9 & 10 of 1983 There
two connected appeals also involve more or less the same point of law as was
involved in Civil Appeal No.
3702 of 1982, with the difference that in
Civil Appeal No. 9 of 1983, J.P. Goyal, 28 and in Civil Appeal No. 10 of 1983,
Bishamber Nath Pandey, (appellants) were declared elected to the Rajya Sabha on
March 29, 1982. An election petition to set aside their election was filed on
May 10, 1982 by the Respondent (Raj Narain) making a number of allegations.
When the case came up before the Court on 5.7.82, an application was made by
the respondents for amendment of the original petition by insertion of page 17,
which was allowed. The appellants filed a petition before the Election Judge
for rejecting the election petition of the respondents because no amendment
could be allowed which would have the effect of defeating or bypassing the
provisions of s.81 (3) of the Representation of the People Act (for short,
referred to as the 'Act').
It may be stated here that Shri Bishamber
Nath Pandey has in the meantime been appointed as Governor of Orissa and has
resigned his membership of the Rajya Sabha, Therefore, as requested at the Bar,
his name is deleted from the category of appellants.
The main argument on behalf of the remaining
appellants was that 11 copies of the election petition were filed on 10.5.1982
and although the copies which were served on them did contain page 17 yet the
original petition did not contain page 17 and was sought to be added only by
way of approaching the Court for amendment of the petition. It was further
contended that the Court had no jurisdiction to accede to the prayer for
amendment of the petition when at the time of filing the petition, the mandate
contained in s.
81 (3) was not complied with. In other words,
the position seems to be that while the copies which were served on the
appellants did contain page 17 yet the original election petition did not
contain page 17. This being the admitted position, it could not be said that
the copies served on the appellants were the correct and exact copies of the
election petition. The provision of s. 81 (3) is clear and specific and
requires that every copy of the election Petition must be a true and exact copy
of the petition.
The learned counsel for the respondent
submitted that this is a highly technical objection and did not cause any
prejudice to the appellants because so far as their copies were concerned they
already contained page 17. Mr. Bhandare, counsel for the appellants, however,
submitted that this is beside the point and does not cure the invalidity of the
election petition filed on 10.5.82. The mandate contained in s. 81 (3) enjoins
that there should be no difference of 29 any kind whatsoever barring some
typographical or insignificant omissions between the petition filed and the
copy served on the respondent. If an entire page is missing in the petition but
it is there in the copy served on the respondent, then it is manifest that the
copy served was not an exact and true copy of the petition. The consequences of
the mandatory provisions of s.81 (3) could not be got over by praying for an
amendment of the election petition because that would defeat the very object
and purpose of s. 81 (3).
It is not disputed that this discrepancy
between the election petition and the copies served on the appellants was
undoubtedly there. In these circumstances, the High Court was wrong and
committed a serious error of law in allowing the amendment of the petition. The
High Court should have tried to appreciate the tenor and spirit of the mandate
contained in s.81 (3) of the Act. In the case of Sharif-Uddin v. Abdul Gani
Lone(1) this Court dismissed the election petition only on the ground that the
words "attested to be a true copy" were not signed by the
election-petitioner and held that this was not a sufficient compliance with the
provisions of s.89 (3) of the Jammu & Kashmir Representation of the People
Act, which is the same as s.81 (3) of the Act. In the instant case, the
inconsistency is much greater than in Sharif-ud-Din's case.
Similarly, in an earlier case of Satya Narain
v. Dhuja Ram & Ors(2)., this Court held as follows:- "If there is any
halt or arrest in progress of the case, the object of the Act will be
completely frustrated. We are, therefore, clearly of opinion that the 1st part
of section 81 (3) with which we are mainly concerned in this appeal is a
peremptory provision and total non-compliance with the same will entail
dismissal of the election petition under section 86 of the Act".
This view has been consistently taken all
through in all the decided cases of this Court so far. Reliance was, however,
placed by the counsel for the respondents on the following observations of
Dwivedi, J., in Satya Narain's case:
30 "Our decision restores that primacy
of procedure over justice. It makes.86 (1) a tyrannical master. The rigidity of
the rule of precedent ties me to its chains. My only hope now is that
Parliament would make a just choice between the social interest in the supply
of copies by the election petitioner alongwith his election petition and the
social interest in the purity of election by excluding s.81 (3) from the
purview of s.86 (1) of the Act.
The aforesaid observations express a pious
wish but do not at all detract from what has been decided in this case and with
which the learned Judge also agreed. Despite these observations, the Parliament
in its wisdom has not made any attempt to interfere with the peremptive and
mandatory provisions of s. 81 (3) resulting in the consequence of dismissal of
the petition under s.86 of the Act.
For the reasons given above, we allow the
appeals, set aside the judgment of the High Court and dismiss the election
petitions in limine under s.86 of the Act. In the circumstances, there will be
no order as to costs.
N.V.K. Appeals allowed.
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