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PETITIONER: SH.HARCHARAN SINGH JOSH

       Vs.

RESPONDENT: SH.HARI KISHAN

DATE OF JUDGMENT:       23/04/1996

BENCH: K. RAMASWAMY, B.L. HANSARIA, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                 THE 23RD DAY OF APRIL, 1996 Present:               Hon’ble Mr. Justice K.Ramaswamy               Hon’ble Mr. Justice B.L.Hansaria               Hon’ble Mr. Justice S.B.Majmudar R.C.Pathak, Ravinder Bagai, R.K.Gupta, Ms.Prerna  Tandon   and  Ms.Naresh  Bakshi,  Advs.  for  the appellant R.P.Bansal, Sr.  Adv., Pramod  Dayal, Ajay K.Jain and Shashi Bhushan, Advs., with him for the Respondent                          O R D E R      The following order of the Court was delivered:      This appeal  arises against  to the  order of the Delhi High Court  made 26.5.1995 in Election Petition No.6/94. The appellant is  an unsuccessful candidate in respect of one of the Assembly  Constituency known  as No.64,  Sadar Bazar, to the  National  Capital  Territory  of  Delhi  Assembly.  The elections were  held on  6th November,  1993. The respondent secured 27216 votes while the appellant secured 25786 votes. The latter  filed an  election petition  on diverse  grounds including  corrupt   practices  under  Section  123  of  the Representation of  the People  Act,  1951.  The  High  Court dismissed his  election petition under Section 86 of the Act on its  findings on  four issues  framed in that case. While upholding the  findings in favour of the appellant on issued Nos.1 to 3, it held that the requisite number of true copies of  the   election,  petition   were  not  supplied  to  the respondent in  compliance with  Section 81(3)  of  the  Act. Reasons in support thereof are some grave mistakes including omission to  supply full  text of page No.18 of the election petition. Another  contention raised  by the  respondent was that the  affidavit is  not a  true of copy of the affidavit which was  filed  in  the  Court  along  with  the  election petition. Though it was rejected by the High Court as one of the grounds  against the rejection of the election petition, the respondent has filed cross objections.      It is  not necessary  for us  to go into the grounds on which the election petition was dismissed by the High Court. Suffice it  to state  that  the  objections  raised  by  the respondent regarding  non-supply of  the true  copy  of  the

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affidavit is a formidable objections which merits acceptance in view  of the  recent judgment of this Court in Dr. (Smt.) Shipra etc.etc. vs. Shantilal Khoiwal etc. etc. [JI 1996 (4) SC 67].  Therein the  copy of  the affidavit supplied to the respondent was  not attested  by the Oath Commissioner. This Court, after  considering the entire case law, held that the affirmation before the prescribed authority in the affidavit and the  supply of  its true  copy is  mandatory so that the returned candidates could not be misled in his understanding that imputation  of the  corrupt  practices  ere  prescribed authority. For  that purposes, Form 25 prescribed by Section 83 requires  verification before  prescribed authority.  The concept of substantial compliance has no application in such a case.  It is  seen that the copy of the affidavit supplied to the  respondent does  not contain  the affirmation by the Oath Commissioner.  Under these circumstances, the defect is not a  curable  defect.  Therefore,  the  dismissal  of  the election petition on this ground is sustainable in law.      Learned counsel for the appellant placed reliance on an order of  this Court  C.A. No.  925 of 1995 (boots Singh vs. Sher Singh  & Ors.)  decided on March, 13, 1996. It would be seen that  a Bench  of two  Judges of  this  Court  has  not expressed any  conclusive opinion on the controversy. On the other hand, this Court remitted the matter to the High Court for reconsideration  in accordance  with  law.  Under  these circumstances, the  ratio therein is of no assistance to the appellant.      The appeal  is dismissed.  But, in  the  circumstances, without costs.