Sri T.
Phungzathang Vs. Sri Hangkhanlian & Ors [2001] Insc 430 (28 August 2001)
R.C.
Lahoti R.C. Lahoti, J.
I am
in respectful agreement with the order proposed by my learned brother N. Santosh
Hegde, J. and place on record my concurrence with the reasoning and conclusion
arrived at by him.
However,
I propose to assign additional reasons in support of the view taken by my
learned brother.
The
relevant facts have been succinctly stated and relevant provisions of law
quoted by my learned brother, yet a quick recap of the facts and relevant
statutory provisions, as a prologue to this opinion of mine, would be in order.
It is undisputed that the election petition filed by the appellant, putting in
issue the election of respondent no.1, alleges commission of corrupt practice
by the respondent no.1 and also pleads grounds other than commission of corrupt
practice, in support of the relief for declaring the election of returned
candidate to be void. The election petition is signed and verified by the
petitioner in the manner laid down in the Code of Civil Procedure for the
verification of pleadings. The petition is accompanied by an affidavit in Form
25 as required by proviso to sub-section (1) of Section 83 of the
Representation of the People Act, 1951 (hereinafter, the Act) and Rule 94-A of
the Conduct of Election Rules, 1961 (hereinafter, the Rules). The affidavit so
filed has been sworn before a Commissioner of Oaths and bears, to that effect,
an endorsement, signature and rubber stamp of the Oath Commissioner administering
oath to the deponent in the manner and form contemplated by Form 25. It is also
not disputed that the set of the copies which accompanied the election petition
at the time of filing and which was delivered to the respondent no.1 alongwith
the writ of summons was complete in all respects excepting that the endorsement
made by the Oath Commissioner attesting the affidavit to have been sworn by the
deponent before him, his signature and rubber stamp do not appear on the copy
of the affidavit delivered alongwith the copy of election petition to
respondent no.1. On 22.5.2000 an application was filed by respondent no.1
before the learned Designated Election Judge under Sections 83 and 86 of the
Act calling for dismissal of the election petition on the ground that the
verification on the election petition was defective and material facts and
particulars as to the alleged corrupt practice were not given but therein no
grievance was raised that the copy delivered to the respondent no.1 was not in
conformity with the original and, therefore, the respondent no.1 was prejudiced
in his defence. On 5.6.2000 another application was filed by respondent no.1
wherein such an objection was taken. Soon on receipt of the copy of the
application, served on the petitioner out of the Court, the counsel for the
election petitioner delivered another set of copy of election petition with
affidavit which had the endorsement and rubber stamp of the Oath Commissioner
as it was on the original and this was done before the application came up for
hearing before the learned designated Election Judge. However, the learned
Judge felt that there was non-compliance of Section 83(1)(c) proviso read with
Section 81(3) and hence the petition was liable to be dismissed under Section
86(1) of the Act.
Section
83(1) of the Act requires an election petition to plead material facts setting
forth full particulars of alleged corrupt practice and to be signed by the
petitioner and verified in the manner laid down in the Code of Civil Procedure,
1908 for the verification of pleadings. The proviso enacted to sub-section (1)
requires that where the petitioner alleges any corrupt practice, the petition
shall also be accompanied by an affidavit in the prescribed form in support of
the allegation of such corrupt practice and the particulars thereof. Rule 94-A
(introduced by an amendment in the Rules w.e.f. 27th February, 1962) requires
that an affidavit referred to in the proviso to sub- section (1) of Section 83
shall be sworn before a magistrate of the first class or a notary or a
commissioner of oaths and shall be in Form 25.
Form
25 appended to the Rules requires the election petitioner to verify on solemn
affirmation or oath the statements about the commission of corrupt practice and
the particulars of such corrupt practice distinctly stating to what extent they
are true to his knowledge and to what extent they are true to his information.
The form also prescribes the following endorsement to appear below the
signature of the deponent on affidavit:- Solemnly affirmed/sworn by Shri/Shrimati
.
. . .
. . . . . . . . . . . at . . . . . . . . . . . . . . . . . . . .
. . .
. this . . . . . . . . . .. . day of . . . . . . . . . . . . , 19 .
Before
me, Magistrate of the first class/Notary/ Commissioner of Oaths.
The
requirement of Section 83(1) proviso is of an affidavit in prescribed form. An
endorsement by the specified officer before whom the affidavit is sworn is not
the requirement mentioned in the Section. Rule 94-A can be dissected into two
parts:
(i) the
affidavit shall be in Form 25, and
(ii)
it shall be sworn before a magistrate of the first class or a notary or a
commissioner of oaths. What is prescribed is the form of affidavit. Swearing in
before one of the three officers is mode and manner of swearing in the
affidavit.
The
later requirement does not relate to form of affidavit; it prescribes the
persons recognised by the Act and the Rules as competent to administer oath to
the deponent of affidavit for the purpose of Section 83(1) read with Rule 94-A
and suggests, for the sake of convenience and consistency, the manner of
endorsement to be made by the magistrate, notary or commissioner of oaths
administering oath to the deponent. Such endorsement made by the officer
administering oath to the deponent is not an integral part of the affidavit.
Preparing, signing and swearing an affidavit are acts of the deponent; administering
oath and making an endorsement in proof thereof on the affidavit are acts of
the officer administering the oath.
Constitution
Bench has reaffirmed the law as stated earlier by two Member, Election
Tribunal, Hyderabad, (1964) 3 SCR 213 and has also
explained and expanded the principles laid down by the earlier two Constitution
Benches. In T.M. Jacobs case, copy of the election petition delivered to the
contesting respondent did not show that the verification of the Notary Public
required as per Rule 94-A and Form 25 was contained in the original and,
therefore, the copy was objected to as being defective and amounting to
non-compliance with the requirements of Section 81(3) of the Act. The case was
placed before the Constitution Bench specifically for reconsidering the
Three-Judges 181 and while doing so the Constitution Bench also noticed another
later Three-Judges Bench decision of this court in Anil R. Deshmukh
Constitution Bench may be summed up as under:-
(i)
The object of serving a true copy of an election petition and the affidavit
filed in support of the allegations of corrupt practice of the respondent in
the election petition is to enable the respondent to understand the charge
against him so that he can effectively meet the same in the written statement
and prepare his defence. The requirement is of substance and not of form.(Para 35)
(ii)
The test to determine whether a copy was a true one or not was to find out
whether any variation from the original was calculated to mislead a reasonable
person. (Para 33)
(iii)
The word copy does not mean an absolutely exact copy. It means a copy so true
that nobody can by any possibility misunderstand it. (Para 34)
(iv)
Substantial compliance with Section 81(3) was sufficient and the petition could
not be dismissed, in limine, under Section 86(1) where there had been
substantial compliance with the requirements of Section 81(3) of the Act. (Para 34)
(v)
There is a distinction between non-compliance with the requirement of Section
81(3) and Section 83. A substantial compliance with the requirements of Section
81(3) read with the proviso to Section 83(1) of the Act is enough. Defects in the
supply of true copy under Section 81 of the Act may be considered to be fatal,
where the party has been misled by the copy on account of variation of a
material nature in the original and the copy supplied to the respondent. The
prejudice caused to the respondent in such cases would attract the provision of
Section 81(3) read with Section 86(1) of the Act The same consequence would not
follow from non-compliance with Section 83 of the Act. (Para 37)
(vi)
The argument that since proceedings in election petitions are purely statutory
proceedings and not civil proceedings as commonly understood, there is no room
for invoking and importing the doctrine of substantial compliance into Section
86(1) read with Section 81(3) of the Act, cannot be accepted and has to be
repelled. (Para 38)
(vii)
It is only the violation of Section 81 of the Act which can attract the
application of the doctrine of substantial compliance as expounded in Murarka Radhey
Shyam and Ch. Subbarao cases. The defect of the type provided in Section 83 of
the Act, on the other hand, can be dealt with under the doctrine of curability,
on the principles contained in the Code of Civil Procedure. This clearly
emerges from the scheme of Sections 83(1) and 86(5) of the Act. (Para 38)
(viii)
A certain amount of flexibility is envisaged. While an impermissible deviation
from the original may entail the dismissal of an election petition under
Section 86(1) of the Act, an insignificant variation in the true copy cannot be
construed as a fatal defect. It is, however, neither desirable nor possible to
catalogue the defects which may be classified as of a vital nature or those
which are not so. It would depend upon the facts and circumstances of each case
and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhye
Shyam case are sound tests and are now well settled.
(Para 40) Dr. Shipras case, (1996) 5 SCC 181, was referred
to, doubted and distinguished in Anil R. Deshmukh, (1999) 2 SCC 205, which also
is a three-Judge Bench decision. Both these decisions were placed before the
Constitution Bench in T.M. Jacobs case.
In Dr.
Shipras case, the Constitution Bench decisions in Ch. Subharao and Murarka Radhey
Shyam have been just referred to vide para 10 but not dealt with. In T.M. Jacobs
case the Constitution Bench has clearly held that the view taken in Dr. Shipras
case must be confined to the fact-situation of that case and cannot be
considered to be of general application. The statement of law in Anil R. Deshmukhs
case has been approved wherein the copy of the affidavit delivered to the
respondent did not bear the endorsement of attestation or the seal or stamp of
the attesting officer found on the original. But for the absence of the notarial
endorsement, it was a true copy of the original as it was a zerox copy and was
attested as true copy under the signature of the election-petitioner. A copy
along with notarial endorsement was later on furnished to the respondent.
Applying the theories of substantial compliance and of curability this Court
held that the election petition was not liable to the dismissed in limine. In
defect in the copy of the affidavit supplied to the respondent was the same as
is in the present case and a three-Judge Bench of this Court, solely by relying
on Dr. Shipras case held that the election petition was liable to be dismissed
in limine. In Dr. Shipra and Harcharan Singh Josh __ both three-Judge Bench
decisions, this Court has held the defect to be not curable and the concept of
substantial compliance having no application in such a case. In Murarka Radhey Shyams
case and T.M. Jacobs case the Constitution Benches have held such a defect to
be curable and the test of substantial compliance to be applicable. The very premise
on which the decisions in Dr. Shipra and Harcharan Singh Josh proceed, thus,
runs counter to the view taken by Constitution Bench. In view of the
Constitution Bench decisions, Dr. Shipras case and Harcharan Singh Joshs case
cease to be good law.
There
is another angle from which the point at issue may be examined. In Murarka Radhey
Shyams case the Constitution Bench has held that where an affidavit is in the
prescribed form but there is a mistake in the verification portion of the
affidavit such mistaken verification of the oath commissioner cannot be a
sufficient ground for dismissal of the election petition summarily as the
provisions of Section 83 are not mandatarily to be complied with nor make a
petition invalid and such affidavit can be allowed to be filed at a later stage
also. Obviously when the defect in the original affidavit is removed at a later
stage, copy of such affidavit would also be supplied to the respondent only at
such later stage. If the view of the High Court in the order impugned before us
is to be upheld, an election-petitioner having filed an affidavit fully
satisfying the requirement of Section 83(1) provisio and Rule 94-A in all
respects but having made an omission in the copy of the affidavit delivered to
the respondent would be placed in a position worse than an election- petitioner
whose original affidavit filed with the election petition itself did not
satisfy the requirement of Section 83(1) proviso read with Rule 94-A. This
could not have been the intendment of law. Such an interpretation would, to say
the least, make a mockery of justice. That non-compliance with Section 83
cannot be a ground for dismissal of the election petition under Section 86 and
the defect, if any, is curable, Nitin Bhaurao Patil and Anr. - (1996) 1 SCC 169
and also in H.D. wherein all the decisions available till then have been
considered. In (1966) 1 SCR 478, affidavit was sworn in before the clerk of
Court attached with the office of the District Judge empowered by the District
Judge under Section 139(c) of Code of Civil Procedure for the purpose of
administration of oaths on affidavits made under the Code of Civil Procedure.
The Election Tribunal allowed a fresh affidavit to be filed in place of such
affidavit treating it to be defective. On the matter reaching this Court, a
Constitution Bench held that an extreme and technical view was not justified.
The affidavit was held to be proper and the second affidavit was held to be not
necessary.
In the
case before us, the copy of affidavit supplied to the respondent no.1 fulfilled
the object which the copy is intended to serve. There was no such variation
from the original, as was calculated to mislead the respondent. There was no
scope of misunderstanding for the respondent. The affidavit satisfied the test
of substantial compliance, as propounded in Murarka Radhey Shayam and
reaffirmed in T.M. Jacob. The respondent no.1 was not prejudiced. This is clear
from the fact that no objection in this regard was taken in the application
dated 22.5.2000. In the next application dated 5.6.2000, objection in this
regard was taken and immediately the election petitioner made available to the
respondent another copy of affidavit without defect. Thus the defect, if any,
stood cured as held in Anil R. Deshmukhs case.
For
the abovesaid additional reasons I agree with my learned brother that the
judgment of the High Court has to be set aside and the case remanded to the
High Court for trial and disposal of the election petition on merits.
. . .
. . . . . . . . . . . . . . . .J.
( R.C.
Lahoti ) August 28, 2001.
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