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PETITIONER: JAGAT KISHORE PRASAD NARAIN SINGH

       Vs.

RESPONDENT: RAJENDRA KUMAR PODDAR AND ORS.

DATE OF JUDGMENT: 14/08/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C. GROVER, A.N.

CITATION:  1971 AIR  342            1971 SCR  (1) 821  CITATOR INFO :  RF         1974 SC1185  (12)  RF         1980 SC 303  (14)  RF         1983 SC 558  (36)  F          1984 SC 305  (12)  R          1989 SC 100  (16)

ACT: Representation  of the People Act, 1951, Ss. 81, 82, 86  and 117--serious  discrepancies  between original  petition  and copy  supplied  to  respondent--If  non-compliance  with  s. 81(3)--Whether petition liable to be dismissed under s. 86.

HEADNOTE: By  an  election  petition,  the  appellant  challenged  the validity  of  the first respondent’s election to  the  Rajya Sabha  from  Bihar  held in March,  1968.   The  grounds  of challenge  included allegations of corrupt practice  by  the first  respondent.   The High Court found  that  there  were serious discrepancies between the original petition filed in the Court and the copy supplied to the first respondent.  It dismissed the petition on the ground, inter alia, that there was non-compliance with the provisions of ss. 81, 82 and 117 of the Representation of the People Act, 1951. On appeal to this Court, HELD : Dismissing the appeal, On a reference to only one of the discrepancies found by the High Court which related to allegations of corrupt  practice it was clear that this discrepancy was bound to mislead  the contesting   respondents   and  prejudice   their   defence. Pleadings  in a case have great importance and that is  more so  in  election petitions particularly  when  the  returned candidate  is charged with corrupt practice.  He  must  know what  the charge against him is so that he may  prepare  his defence.  If replying on the allegations in the copy of  the petition  served on him, the first respondent had  collected evidence  to show that allegation was false then the  entire basis  of  him is so that he may prepare  his  defence.   If relying on the allegations to meet a totally different case. The  law requires that a true copy of the election  petition should  be served on the respondents.  That requirement  had not  been  either  fully  or  substantially  complied  with.

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Therefore  the election petition was liable to be  dismissed under s. 86 of the Act.[825 A-C] Murarka  Radhey  Shyam Ram Kumar v. Roop Singh  Rathore  and Ors.,  [1964]  3 S.C.R. 573 and, Ch.   Subbarao  v.  Member, Election Tribunal, Hyderabad, [1964] 6 S.C.R. 213;  referred to

JUDGMENT: CIVIL  APPELLATE  JURISDICTION Civil Appeal  No.   1925-  of 1969. Appeal  under s. 116-A of the Representation of  the  people Act, 1951 from the judgment and order dated July 1969 of the Patna High Court in Election Petition No. 1 of 1968. M.   C.  Chagla,  D. N., Mishra, and B. P.  Singh,  for  the appellant. 822 K.   P. Verma, R. Goburdhun and D. Goburdhun, for respondent No. 1. S. Saukat Hussain, for respondent No. 13. The, Judgment of the Court was delivered by Hegde,   j.-This  is  an  appeal  under  S.  116A   of   the Representation  of the People Act, 1951 (to  be  hereinafter referred  to as the Act) from the judgment and  order  dated July  14, 1969 of the Patna High Court in Election  Petition No. 1 of 1968. A  biennial  election to the Rajya Sabha was held  in  March 1968.   In that election, Bihar Legislative Assembly had  to elect  seven  members to the Rajya  Sabha.   Twenty  persons contested  for those seven seats.  The appellant is  one  of them.   The appellant failed to get the required  number  of votes.   By  means of an election petition which  has  given rise  to  this appeal, he challenged the  validity  of  the- election of the 1st respondent on two grounds viz.-(1)  that the  nomination of respondent No. 1 was improperly  accepted inasmuch  as  he  was not qualified to  be  enrolled  as  an elector  in  the  electoral  roll  of  West  Patna  Assembly constituency for the time being in force on the ground  that he   was   then  not  ordinarily  resident   in   the   said constituency, but was on the other hand, ordinarily resident in  Alipur  constituency  of  the  West  Bengal  Legislative Assembly  and  (2) that he was guilty  of  corrupt  practice within  the meaning of sub-s. (1) of S. 123 of the Act,  in- asmuch  as he had not only made offers but also payments  of money to various electors as motive or reward for voting  in his favour. The election petition was resisted by the 1st respondent  on various  grounds. One of the contention taken by  him  was that the petition was not in accordance with the  provisions of  ss. 81, 82 and 117 of the Act and therefore it  was  not maintainable.  The High Court has accepted that  contention. It has also rejected the other pleas taken by the appellant. As we are in agreement with the High Court that the election petition is liable to be dismissed under S. 8 6 of the  Act, we  do not think it necessary to go into the merits  of  the case.               Section 86(1) of the Act provides               "The  High  Court shall  dismiss  an  election               petition  which  does  not  comply  with   the               provisions  of  section 81 or  section  82  or               section 117." Section  81(3)  requires (1) that  every  election  petition shall be accompanied by as many copies thereof as there  are respondents  mentioned in the petition and (ii)  that  every

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such copy shall be attested by the petitioner under his  own signature to be a true 823 copy of the petition.  The contention of the 1st  respondent is that the copy served on him which is marked Exh.  O’  in the  trial  court  is  not the true  copy  of  the  election petition filed in court.  In the High Court it was contended that Exh.  O’ is not a genuine document but that contention was not pressed before us.  Therefore we have to proceed  on the  basis  that  Exh.  O is a copy  served  on  the  1‘st respondent. The  discrepancies  between the election petition  filed  in court  and  Exh.  O’  are set out by  the  High  Court  in paragraph 15 of its judgment.  That paragraph to the  extent material for our present purpose reads               (a)   In paragraph 12, as also in paragraph 13               of  the original, it has been stated that  the               total  number of elected members of the  Bihar               Legislative  Assembly  at  the  time  of   the               impugned election was 316, whereas in Ext.  O’               this figure has been stated to be 317 in  both               these paragraphs.               (b)   In  paragraph 16 of the original it  has               been stated that respondents 2 and 3 had  been               set  up as candidates in the election  by  the               Samyukta   Socialist   Party,   and   as    to               respondents  6 and 5, it was stated that  they               had  been  set up by the  Communist  Party  of               India and the Jana Sangh respectively.  But in               Ext.  O’  it  has  been  stated  that   the               candidates  who were- set up by  the  Samyukta               Socialist  Party  were, respondents 2  and  6,               while  respondents 3 and 5 had been set up  by               the  communist  Party of India  and  the  Jana               Sangh respectively.               (c)   In  paragraph  28 of the  original,  the               following passage occurs :               "Particular  of the ON and  gratifications  in               the form of bribe offered by respondent No.  8               and his election agent and his agent with  the               connivance and consent of the said  respondent               No.  8 and his election agent are set  out  in               Annexure D’ hereto annexed.,,               But the passage in Ext. 10, reads:               "Particulars  of the gifts and  gratifications               in the form of bribe Offered by respondent No.               8  and his election agent and his  agent  with               the   connivance  and  consent  of  the   said               respondent  No. 1 and his election  agent  are               set out in Annexure D hereto annexed."               (d)   In  paragraph 3 of the  verification  at               page  25 of the original, it has been  stated,               inter alia, that the state-               824               ments  made  in. paragraph 3 of  the  election               petition   are   true  to   the   petitioner’s               information, but in Exh.  O’ no  verification               has  been made with respect to the  statements               made in paragraph 3 of the election  petition,               and  instead verification has been made  twice               with   respect  to  the  statements  made   in               paragraph 2, once as true to the petitioner’s,               knowledge   and   again   as   true   to   his               information.               (e)  In paragraph 3 of Annexure "B" a list  of

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             20  persons  has been given, one of  which  is               Shri Brindaban Swana, M.L.A., in the  original               and Shri Brindaban Swansi, M.L.A. in Ext. O’.               (f)   In   Annexure C’  relating   to   the               particulars  of corrupt practice mentioned  in               paragraph 25 of the election petition, it  has               been  stated in the original that Shri  Munshi               Hansda, M.L.A. had offered money and  promised               to  pay money to Shri Jetha Kiski, M.L.A.  for               casting his first preference vote in favour of               respondent  No. 1 at the M.L.A. Flat on  19-3-               1968,  but in Ext.  O’ mention has been  made               of  the  name of Paul Hangda,  M.L.A.  as  the               alleged offerer of money to Shri Jethu  Kisku,               M.L.A.; and               (g)   In  Annexure C’ again,  the,  original               reads  that the offer of money and promise  of               payment  of  money was made  to  Shri  Mahabir               Paswan  by respondent No. 1 and  Shri  Balwant               Nath  Singh, M.L.A. on 26-3-1968 but  in  Ext.               O’ this date has been stated as 28-3-1968." Mr.  M.  C. Chagla, learned Counsel for the  appellant  con- tended that s. 81(3) is merely directory and not  mandatory. We do not think it necessary to go into that question, as in our  opinion that provision has not even been  substantially complied with.  The requirements of s. 81(3) have been  laid down by this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors.(1) In that case this Court ruled that the  word copy’  in s. 81(3) of the Act did  not  mean  an absolutely  exact copy but a copy so true that nobody  could by  any  possibility  misunderstand it, and  that  the  test whether a copy was a true one was whether any variation from the  original was calculated to mislead an ordinary  person. The  same view was taken by this Court in Ch.   Subbarao  v. Member, Election Tribunal, Hyderabad(2).  In our opinion, it is  not necessary to refer to the discrepancies between  the original  petition  and  the  copy  served  excepting   that referred to in cl. (f) of paragraph 15 of the trial  court’s judgment.  Admittedly Shri Munshi Hansda and Paul Hansda are members of the Patna Legislative Assembly.  In the  election petition it was stated that (1) [1964] 3 S. C. R.573. (2) (1964) 6S.  C. R. 213. 825 money  was  offered to Shri Jetha Kisku,  M.L.A.  by  Munshi Hansda but in Exh.  O’ it was stated that money was offered to the said Jetha Kisku by Paul Hansda.  This divergence was bound  to mislead the contesting respondents and  prejudice, their defence.  Pleadings in a case has great importance and that is more so in election petitions particularly when  the returned  candidate  is charged with corrupt  practice.   He must  know  what the charge against him is so  that  he  may prepare  his defence.  If relying on the allegations in  the copy  of the petition served on him that the money was  paid to  Jetha Kisku through Paul Hansda, the 1st respondent  had collected evidence to show that allegation is false then the entire  basis’  of  his defence would have  fallen  to  the, ground  because  at a later stage he had to meet  a  totally different  case.  The law requires that a true copy  of  the election petition should be served on the respondents.  That requirement  has  not, been either  fully  or  substantially complied with.  Therefore we have no doubt in our mind  that the election petition is liable to be dismissed under s. 8.6 of the Act. Mr. Chagla tried to extricate his client from the  difficult

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position  in which he had placed himself by urging that  two copies  of the election petition had been served on the  1st respondent as required by the rules of the Patna High Court, one  through the court and another through registered  post; the  1st respondent has produced, only one of those  copies; it  is not known whether the other copy was  also  defective and  therefore  there is no ground to reject  the election petition at the very threshold.  We are unable to  entertain this contention.  If it was the case of the appellant  that the  1st  respondent was, not prejudiced by the  service  of Exh: ’O’, he should have got summoned the other copy said to have been  served on him.  No such attempt appears  to  have been  made.   No explanation was offered how  several  wrong statements  came to be made,in Exh.  O’.  There  is  hardly any doubt that the relevant papers filed in court on  behalf of the appellant were prepared in a callous manner. For  the  reasons mentioned above we agree  with  the  trial court  that the petition is liable to be dismissed under  s. 86 of the Act.  Hence this appeal is dismissed with costs. R.K.P.S.                          Appeal dismissed. 826