Mithilesh Kumar Pandey Vs. Baidyanath
Yadav & Ors [1984] INSC 1 (2 January 1984)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J)
CITATION: 1984 AIR 305 1984 SCR (2) 278 1984
SCC (2) 1 1984 SCALE (1)1
CITATOR INFO :
F 1990 SC 924 (28)
ACT:
Representation of the People Act, 1951,
Section 81(3)- Construction of the provisions of the section-copy of the
election petition containing several mistakes of vital character, not found in
the original-Election petition is not maintainable and must be dismissed.
HEADNOTE:
In the general elections held in June 1980,
the appellant fought as a Congress (1) candidate from Harlakhi Assembly
constituency in Bihar and was declared elected. The respondent who was defeated
filed an election petition in the Patna High Court listing a large number of
persons through when corrupt practices were alleged to have been practiced by
the appellant. Since the copy of the petition, though attested by the election
petitioner under his own signature to be a true copy, contained several
mistakes which were of a very vital character, the appellant contested the
petition alleging that the mandatory provisions of section 83(3) of the
Representation of People Act not having been complied with at all, the petition
should be dismissed in liming without going into the merits of the case. Though
the High Court found as a fact that a large number of mistakes were there in
the copy of the election petition supplied to the appellant. Yet, as they were
of a superficial and insignificant nature bordering on clerical or typing
mistakes, on the whole, there was a substantial compliance of the provisions of
Section 81(3) of the Act. Hence the appeal against the interlocutory order.
Allowing the appeal and dismissing the
election petition the Court,
HELD: 1:1 A perusal of Sections 81(3) and 86
of the Representation of the People Act reveals that the statute intended that
before an election petition can be entertained, the copy sent to the elected
candidate must be a true copy, failing which there would be a serious
disobedience of the mandate contained in s.81(3) which would be fatal to the
maintainability of the said petition. [281 F] 1:2 It is now well settled by a
large catena of authorities of this Court that the electoral process by which
the verdict of the people has been given is a sacrosanct one and cannot be
lightly set at naught unless the grounds mentioned in the Act for setting aside
an election are held to be proved. In these circumstances, it is manifest that
the provisions of s.81(3) of the act should be construed to the letter and
spirit of the law because if the election petitioner does not give full and
complete notice of the allegations made against the returned candidate, he runs
the risk of his petition being dismissed in limine. [281 G-H] 279 2 on a
careful consideration and scrutiny of the law on the subject, the following
principles are well established;
that where the copy of the election petition
served on the returned candidate contains only clerical or typographical
mistakes which are of no consequence, the petition cannot be dismissed
straightway under s.86 of the Act, [283 F] (2) A true copy means a copy which
is wholly and substantially the same as the original and where there are
insignificant or minimal mistakes, the court may not take notice thereof, [283
G] (3) where the copy contains important omissions or discrepancies of a vital
nature, which are likely to cause prejudice to the defence of the returned
candidate, it cannot be said that there has been a substantial compliance of
the provisions of s.81(3) of the Act, [284 A] (4) Prime facie, the statute uses
the words "true copy" and the concept of substantial compliance
cannot be extended too far to include 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 within the meaning of s.81(3) of the Act, and
[284 B] (5) As s.81(3) is meant to protect and safeguard the sacrosanct electoral
process so as not the disturb the verdict of the voters, there is no room for
giving a liberal or broad interpretation to the provisions of the said section.
[284 C] Murarka Radhey Shyam Ram Kumar v.
Roop Singh Rathore & Ors. [1964] 3 SCR 573; Jagat Kishore Prasad Narain
Singh v. Rajendra Kumar Poddar & Ors. [1971] 1 SCR 821; Satya Narain v.
Dhuja Ram & Ors., [1974] 23 SCR 20; Sharif-ud-din v. Abdul Gani Lone,
[1980] 1 SCR 1177; M. Karunanidhi etc. etc. v. H.V. Hande & Ors. etc. etc.
[1983] 1 SCR 1177; M. Karunanidhi etc. etc. v. H.V. Hande & Ors. etc. etc.
[1983] 1 SCALE 344 referred to. [284 D-E, 285 G; 286 A; 285 C]
3. In the instant case, the mistakes in the
copy supplied to the returned candidate related to corrupt practices, have to
be proved to the hilt just like a criminal charge and any mistake which
contains an element of vagueness would immediately vitiate the election
petition and merit its dismissal under s.86 of the Act. Among the many more
mistakes given in Schedule I, the few selected items themselves are vital and
may seriously prejudice the defence of the appellant because it will be very
difficult for him to find out the persons, named in the copy supplied to him
who are said to have indulged in corrupt practices at his instance. The present
case is a much worse case than Murarka Radhey Shyam Ram Kumar's case (supra)
where only a slight difference in the title led this Court to hold that the
mistake was a vital one was a valid one. Further, the omission of names cannot
be said to be a typing mistake but a very vital and serious on which is
sufficient to entail the dismissal of the election petition. [284 D-E; 285 G;
286 A; 285 C]
CIVIL APPELLATE JURISDICTION Civil Appeal No.
5307 of 1983 Appeal by Special leave from the Judgment and Order dated the 7th
January, 1983 of the Patna High Court in Election Petition 280 S.N. Kacker,
L.R. Singh and Gopal Singh for the Appellant.
R. K. Garg and D.K Garg for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. By Order dated November 29, 1983 we had allowed the appeal. We
now proceed to give the reasons for the said Order.
This election appeal is directed against an
interlocutory Order dated January 7, 1983 passed by the Patna High Court
overruling a preliminary objection taken by the appellant (elected candidate)
that the election petition of the respondent (election petitioner) should be
dismissed straightaway under the provisions of s.86 of the Representation of
the People Act. 1951-as amended uptodate- (hereinafter referred to as the
'Act') The appellant's case is that in the general election held in June 1980
he fought as a Congress (I) candidate from Harlakhi Assembly constituency in
Bihar in which he was declared elected, defeating the respondent who filed the
election petition in the High Court. He further submitted that the copy of the
election petition served on him contained a large number of mistakes in respect
of persons through whom corrupt practices were alleged to have been practised
by the appellant during the election, He contended that in view of the very
large number of mistakes, which were of a very vital character, the mandatory
provisions of s.81(3) of the Act were not complied with at all, which infirmity
by itself would be sufficient to dismiss the election petition in limine
without going into the merits of the case.
The stand taken by the respondent was that
the mistakes were undoubtedly there but they were of a minor and significant
nature and did not affect his case on merit.
The learned Judge of the High Court found as
a fact that a large number of mistakes were there in the copy of the election
petition supplied to the appellant but as they were of a superficial and
insignificant nature bordering on clerical or typing mistakes, on the whole there
was a substantial compliance of the provisions of s.81(3) of the Act. The
learned Judge has entered into a detailed discussion of 281 the various
decisions of this Court and also of High Courts and has correctly held that the
provisions of s.81(3) are mandatory and if the court finds that they have not
been complied with it has no alternative but to dismiss the election petition
straightaway. Unfortunately, however, in the process of applying the principles
laid down by this Court he has completely glossed over the nature of the
mistakes by describing them as merely clerical or typing ones. On a perusal of
the aforesaid mistakes (listed at pp. 64-65 of the Paper book) they do not
appear to be so. Section 81(3) of the Act thus:
"81. Presentation of petitions (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."
The consequence of non-compliance of this section has been mentioned in s.86 (3)
which may be extracted thus:
"86. Trial of election petitions (1) The
High Court shall dismiss an election petition which does not comply with the
provisions of section 81 or section 82 or section 117." A perusal of the
above reveals that the statute intended that before an election petition can be
entertained, the copy sent to the elected candidate must be a true copy,
failing which there would be a serious disobedience of the mandate contained in
s.81(3) which would be fatal to the maintainability of the said petition.
It is now well settled by a large catena of
authorities of this Court that the electoral process by which the verdict of
the people has been given is a sacrosanct one and cannot be lightly set at
naught unless the grounds mentioned in the Act for setting aside an election
are held to be proved. In these circumstances, it is manifest that the
provisions of s.81(3) of the Act should be construed to the letter and spirit of
the law because if the election petitioner does not give full and complete
notice of the allegations made against the returned candidate, he runs the risk
of his petition being dismissed in limine.
282 In the instant case, it is the admitted
case of the parties that the mistakes in the copy supplied to the appellant
related to corrupt practices indulged in by him through various persons who
have been named at pages 64-65 of the Paperbook. In Muraka Radhey Shyam Ram
Kumar v. Roop Singh Rathore & Ors.(1) this Court made the following
observations:- "Having regard to the provisions of Part VI of the Act we
are of the view that the word "copy" does not mean an absolutely
exact copy. It means a copy so true that nobody can by any possibility misunderstand
it.
The test whether the copy is a true one is
whether any variation from the original is calculated to mislead an ordinary
person." In other, words, this Court merely meant to indicate that where
the variation is so minimal and insignificant that it is incapable of
misleading any person as to the true purport of the allegation, it would be a
substantial compliance of the provisions of s.81(3) of the Act. The High Court
has largely relied on the ratio of this particular case.
There can be no dispute regarding the
principle laid down by this Court but the main difficulty arises when we
approach the facts of a particular case in order to find out whether the copy
supplied to the returned candidate is really a true copy or not.
In Jagat Kishore Prasad Narain Singh v.
Rajendra KUmar Poddar & Ors.(2) the same principle was laid down. In this
case, the mistake was that in the election petition it was stated that money
was offered to on Jetha Kisku by Munshi Hansda but in the copy served on the
returned candidate instead of Munshi Hansda the name of Paul Hansda was
mentioned. Apparently, the mistake was a verbal one but this court held that it
was sufficient to prejudice the defence and accordingly came to the conclusion
that the petition was liable to be dismissed under s.86 of the Act.
We shall presently show that in the instant
case the mistakes were of a greater nature than those with which this Court was
dealing 283 within the aforesaid case. In Satya Narain v. Dhuja Ram &
Ors.(1) this Court clearly pointed out that where the first part of s.81(3) was
not complied with, the provision being a peremptory one, total noncompliance
with the same would entail dismissal of the election petition under s.86 of the
Act. In a later case in Sharif-ud-Din v. Abdul Gani Lone(2) this Court observed
thus "It is true that section 89(3) of the Act is purely procedural in
character and that ordinarily procedural law should not be given that primacy
by courts as would defeat the ends of justice. But if a law even though it may
be procedural in character insists that an act must be done in a particular
manner and further provides that certain consequences should follow if the act
is not done in that manner, courts have no option but to enforce the law as it
is." In a latest decision of the Court in M. Karunanidhi etc. etc. v. H.
V. Hande & Ors. etc. etc.,(3) the following observations were made :
"It is obvious that the photograph was a
part of the averment contained in paragraph 18(b). In the absence of the
photograph the averment contained in paragraph 18(b) would be incomplete. The
photograph referred to in paragraph 18(b) was therefore an integral part of the
election petition. It follows that there was total non-compliance with the
requirements of sub-s.(3) of s.81 of the Act by failure to serve the appellant
with a copy of the election petition." On a careful consideration and
scrutiny of the law on the subject, the following principles are well
established ;
1) that where the copy of the election
petition served on the returned candidate contains only clerical or
typographical mistakes which are of no consequence, the petition cannot be
dismissed straightaway under s.86 of the Act, 2) A true copy means a copy which
is wholly and substantially the same as the original and where there are
insignificant or minimal mistakes, the court may not take notice thereof, 284
3) where the copy contains important omissions or discrepancies of a vital
nature, which are likely to cause prejudice to the defence of the returned
candidate, it cannot be said that there has been a substantial compliance of
the provisions of s.81(3) of the Act.
4) Prima facie, the statute uses the words
"true copy" and the concept of substantial compliance cannot be
extended too far to include 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 within the meaning of s. 81(3) of the Act, and 5) As
s.81(3) is meant to protect and safeguard the sacrosanct electoral process so
as not to disturb the verdict of the voters, there is no room for giving a
liberal or broad interpretation to the provisions of the said section.
We might mention here that in the instant
case the mistakes in the copy supplied to the returned candidate related to
corrupt practices which, as has been held by this Court in a large number of
cases, have to be proved to the hilt just like a criminal charge and any
mistake which contains an element of vagueness would immediately vitiate the
election petition and merit its dismissal under s.86 of the Act.
In the view that we take, it is not necessary
for us to wade through a detailed discussion of the mistakes because a few
mistakes pointed out by the Judge himself clearly reveal that they were of a
very vital and material nature so as to mislead the returned candidate and
prejudice him in his defence. Schedule I to the election petition contained the
list of persons through whom the corrupt practices were alleged to have been
committed. An analysis of these mistakes may be placed in three categories-(1)
where there is complete omission of some names which have been mentioned in the
election petition but not in the copy supplied to the returned candidate, (2)
giving absolutely wrong names which are bound to mislead the appellant in his
defence as the persons bearing the wrong names could not be traced out, and (3)
some names given in the petition appear to be males but in the copy given to
the appellant they appear to be females.
Coming to the first category, a few examples
will suffice to 285 illustrate our point Sl. No. in Name in the Name in the
Schedule I original petition copy 17 Yogendra Jha Omitted 37 Bulari Devi
Omitted 188 Bal Bhogia Omitted 445 Ramdeo Paswan Omitted 486 Jugeshwari Devi
Omitted The omission of names cannot be said to be a typing mistake but a very
vital and serious one which is sufficient to entail the dismissal of the
election petition. Under the second category (giving wrong names), the
following names may be mentioned Sl. No. in Name in original Name in copy
Schedule I 42 Nanpuran Mitra Mahpuran Mitra 62 Bilas Jha Biml Jha 105 Dukhi
Devi Sudama Devi 179 Bhekai Paswan Mokai Paswan 385 Mauki Tetri 440 Kalasiya
Kalya 466 Kalish Jandra Jha Kali Janwa Jha 479 Gayatri Devi Sati Devi 498 Udit
Mishra Udit Mitra 579 Yashodara Mishra Yashoda Devi 679 Jhularia Devi Kaushilya
Devi Third Category 29 Kiran Jha Kiran Devi (May be a male or a female) (Must
be a female) 444 Dulaira Ramdeo Paswan 675 Rajsunair Yadav Rajsunari Yadav
There are many more mistakes given in schedule I but we have selected only
those which are vital and may seriously prejudice the defence of the appellant
because it will be very difficult for him to find out the persons, named in the
copy supplied to him, who are said to have indulged in corrupt practices at his
instance.
Thus, on an overall consideration of the
facts and circumstances 286 of this case, we are unable to agree with the High
Court that the mistakes in the copy were either verbal, typographical or
clerical. The present case appears to be a much worse case than Murarka Radhey
Shyam Ram Kumar's case (supra) where only a slight difference in the title led
this Court to hold that the mistake was a vital one.
We are, therefore, of the opinion that the
High Court committed a serious error of law in holding that there had been a
substantial compliance of the provisions of s.81(3) of the Act so as to exclude
the application of s.86 of the Act.
For the reasons given above, we allow the
appeal and dismiss the election petition filed in the High Court but in the
circumstances without any order as to costs. As a result of our judgment,
nothing now survives in the High Court.
S.R. Appeal allowed.
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