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PETITIONER: RAJENDRA SINGH & ORS. ETC.

       Vs.

RESPONDENT: SMT. USHA RANI & ORS. ETC.

DATE OF JUDGMENT27/02/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: 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

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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. 23 ^      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]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.  3702 (NCE) of 1982.

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    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/Ist  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

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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

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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.

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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-ud-Din 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  make  s.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

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         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. 31