Full Judgment Text
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PETITIONER:
DR. [SMT.] SHIPRA ETC. ETC.
Vs.
RESPONDENT:
SHANTI LAL KHOIWAL ETC. ETC.
DATE OF JUDGMENT: 03/04/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
BHARUCHA S.P. (J)
PARIPOORNAN, K.S.(J)
CITATION:
1996 AIR 1691 1996 SCC (5) 181
JT 1996 (5) 681 1996 SCALE (3)369
ACT:
HEADNOTE:
JUDGMENT:
WITH
Jhammak Lal
V
Laxminarayan Pande & Ors.
J U D G M E N T
K. Ramaswamy, J.
Since the question involved is common to a the
appeals, they are disposed of together.
The first appeal, viz., C.A. No.6359 of 1994 arises
from the judgment dated August 30, 1994 of a Division Bench
of the Rajasthan High Court made in Election Petition No.6
of 1994. The appellant’s nomination from Consistency No.1,
viz., Rajasthan, reserved for Scheduled Castes for 10th
Legislative Assembly of the Rajasthan State was rejected on
the ground that appellant does not belong to Scheduled
Caste. The respondent’s election, after poll, was challenged
by the appellant on the ground that the respondent had
committed corrupt practices, After service of the notice,
the respondent raised preliminary objections contending,
inter t that copy of the notice together with the affidavit
in support of the election petition, i.e., Annexures 5 and
6, served on him, did not contain the verification by the
notary; hence the election petition was not maintainable in
accordance with Section 83 [1] (c) of the Representation of
the People Act, 1951 [for short, the ’Act’]. The objections
found favour with the High Court which accordingly dismissed
the election petition by the impugned order dated August 30,
1994.
In C.A. No.8080 of 1994, elections to the Assembly
Constituency No.152, viz., Sahada in the Rajasthan State
were held on November 11, and respondent was declared
elected on November 28, 1993. The appellant, after he lost
the election, filed Election Petition No.4 of 1994
challenging election of the respondent on the ground of
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corrupt practices alleged to have been committed by him.
Similar to the case of Mrs. Shipra, copy of the affidavit
filed in support of the election petition supplied to the
respondent, did hot contain the verification by the notary.
When objection in that regard was raised by the respondent,
the learned single Judge by judgment dated September 22,
1994 dismissed the election petition.
In C.A. No.6635 of 1995, elections were held to the
Assembly Constituency No.160, viz., Raipur in Pali District
for 10th Legislative Assembly cf the Rajasthan State. The
appellant had contested the elections against the respondent
who was declared elected on November 28, 1993. The
appellant, after he lost the election, Filed election
Petition No.9 of 1994 challenging the election the
respondent on the ground of corrupt practices imputed to
here been committed by the respondent. Similar earlier
appeals, the copy of the affidavit supplied along with the
election petition to the respondent admittedly did not
contain verification by the notary. When objection in that
regard was raised by the respondent, the learned single
Judges by impugned judgment dated May 26, 1995 upheld the
objection and dismissed the election petition.
In Civil Appeal No.200 of 1993, the respondent was
declared elected to the Lok Sabha from the Parliamentary
Constituency of Mandsaur in Madhya Pradesh. The appellant,
an elector, filed Election Petition No.9 of 1991 challenging
the election of the respondent imputing corrupt practices to
have been committed by him. The copy of the affidavit
supplied to the respondent did not contain the verification
by the notary or oath commissioner. When preliminary
objection was raised by the respondent, the learned single
Judge of the High Court of Madhya Pradesh upheld the same
and dismissed the election petition.
Thus in all the appeals, the only question that arises
for consideration is: whether the copy of the election
petition accompanied by supporting affidavit served on the
respective respondents along with Form 25 prescribed under
Rule 94-A of the Conduct of Elections Rules, 1961 [for
short, the ’Rules’ without attestation part duly verified by
the District Magistrate/Notary/Oath Commissioner can be said
be "true and correct copy" of the election petition as
envisaged in Section 81 [3] of the Act? An election petition
calling any election in question, presented under Section 81
[1] of the Act, shall contain a concise statement of the
material facts on which the petitioner relies, set forth
full particulars of pay corrupt practice alleged therein,
including "as full a statement as possible" of the names of
the parties alleged to have committed such corrupt practice
and the date and place of the commission of each such
practice; and the election petitioner shall sign the
petition and verify in the manner laid down in the Civil
Procedure Code, 1908 for the verification of the pleadings.
Subsection [3] of Section 81 envisages that "[E]very
election position shall be accompanied by as many copies
thereof as there are respondents mentioned in the election
petition ind every such copy shall be attested by the
petitioner under his own signature to be "true copy of the
petition". Indisputably, requisite number of copies of the
election petition accompanied by the summons were attested
by the appellant under her own signature to be true copy.
The copy supplied to the respondent admittedly did not bear
the attestation part. Rule 94-A of the Rules provides that
the affidavit containing allegations of corrupt practices
shall be in the prescribed form, viz., Form 25 which enjoins
accompaniment of solemn affidavit to be duly sworn by the
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election petitioner duly verifying correctness of alleged
corrupt practice mentioned in various paragraphs of the
election petition and attestation by District
Magistrate/Notary/Oath Commissioner. The copy supplied to
the respondent admittedly did not contain such a
verification by the Notary who had attested the original
affidavit filed along with election petition certifying it
to be a true copy,
The question, arises as to the meaning of the
expression true copy". In "Sarkar on Evidence" [14th Edition
- 1993] it is stated at page 2183 under "Appendix A" that
[A]n affidavit is a statement in writing on oath or
affirmation before a person having authority to administer
an oath or affirmation. The affidavit should be in statutory
Form 25 prescribed under Rule 94-A. It should be supplied
along with the election petition which contains allegations
of corrupt practices as grounds for assailing the validity
of the election of a returned candidate. In Black’s Law
Dictionary [6th Edition] "copy" is defined at page 336 to
mean "[A] transport , double imitation, or reproduction or
an original writing, painting, instrument, or the like.
Under best evidence rule, a copy may not be introduced until
original is accounted for". At page 1508, the word "true"
has been defined as "[C]onformable to fact; correct; exact;
actual; genuine; honest. In one sense, that only is "true’
copy which is conformable to the actual state of things. The
expression "true copy is defined to mean ;[A] true copy does
not mean an absolutely exact copy but means that the copy
shall be so true that anybody can understand it". In
Webster’s Comprehensive Dictionary [International Edition]
"true copy" is defined as "[A]n exact, verbatim transcript
of any document, report, etc.; especially, one certified as
correct by a qualified authority. In Stroud’s Judicial
Dictionary [5th Edition] [Vol.5] "true copy’ is defined at
page 2694 thus: "A ’true copy’ does not mean an absolutely
exact copy; but it means that the copy shall be 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".
It would thus be clear that a true copy is a transcript
identical to or substitute to the original but to absolutely
exact copy. But nobody can by any possibility, misunderstand
it to be not a true copy. It is seen that the test, as
stated earlier, is whether by any variation from the
original is calculated to mislead an ordinary person. When a
petitioner is enjoined to file an election petition
accompanied by an affidavit duly sworn by the applicant duly
verifying diverse allegations of corrupt practices imputed
to the returned candidate and attested by the prescribed
authority it would be obvious that the statute intended that
it shall be performed in the same manner as prescribed in
Form 25 read with Rule 94-A of the Rules. The attestation of
the affidavit by the prescribed authority, therefore, is an
integral part of the election petition. The question,
therefore, is: whether copy of the affidavit supplied to the
respondent without the attestation portion contained in it
[though contained in the original affidavit] can be
considered to be a "true copy"?
In Mithilesh Kumar Pande V. Baidvanath Yadav Ors. [1984
[2] SCR 278], in a situation analogous to the present one,
question had arisen: whether the Copy of an election
petition, though attested by the
election petitioner under his own signature, when it
contained mistakes of vital character, could be considered
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to be a true copy and whether the mandatory requirement of
Section 83 [3] of the Act had been complied with? This
Court, after considering the including those cited across
the bar by entire case law the counsel for the appellant,
had held thus:
"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 petitioner 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,
[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 word "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."
Since the corrupt practices are required to be proved
to the hilt, the element of vagueness would immediately
vitiate the election petition. A true copy supplied with
mistakes of vital and serious nature would, therefore,
entail dismissal of the election petition. Each case has to
be considered on its own facts and circumstances. No general
principle of universal application could possibly be laid.
The learned counsel for the appellant contended that the
affidavit is not an integral part of the election petition.
Substantial compliance would be sufficient. We find no force
in the contention. True that the defects could be rectified
on being pointed out by the Registry of the High Court. As
per Rules 8 and 9 of the High Court Rules, the Registrar is
enjoined to point out the defects but the same was not done.
It is contended that the respondent was in any way misled or
prejudiced. The defect was a curable one. Opportunity should
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have been given to the appellant to have the defects
corrected. In case the appellant had not carried out the
correction, that part of the allegations which mentioned in
the election petition alone is required to be struck off.
The election petition cannot be dismissed under Section 86
of the Act since it is duly presented under Section 81. It
would be done only at the trial, on proof of prejudice or
the omission or prejudice caused to the respondent. In this
case that step was not taken. In support thereof, the
counsel cited catena of decisions of this Court, viz.,
Manohar Joshi v. Nitim Bhaurao Patil & Anr. [(1996) 1 SCC
169]; Subhash Desai v. Sharad J. Rao & Ors. [(1994)] Supp. 2
SCC 446]; Ch. Subharao v. Member, Election Tribunal,
Hyderabad [(1964) 6 SCC 213]; Bhikaji Keshao Joshi & Anr. v.
Brijlal Nandlal Biyani & Ors. [(1955) 2 SCR 428 at 429];
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore & Ors.
[(1964) 3 SCR 579] and Sahodrabai Rai v. Ram Singh Aharwar
[(1968) 3 SCr 13]. We have carefully gone through all the
cited decisions and given our anxious consideration
to the respective contentions. In none of the cases
the present question had arisen. In all the cases,
though the affidavit or the election petition contained
allegations of corrupt practices and true copies were
served, the omissions in the copies were not of material
facts which become an integral part of the election petition
or of the pleadings. Therefore, this Court had not insisted
upon strict standard of the scrutiny as required under
Section 86.
In Purushottam v. Returning Officer, Amravati & Ors.
[AIR 1992 Bombay 227], the present question had directly
arisen. In that case the copy contained omission of vital
nature, viz., the attestation by the prescribed authority.
The High Court had held that the concept of substantial
compliance cannot be extended to overlook 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. We approve of the above view. Verification
by a Notary or any other prescribed authority is a vital act
which assures that the election petitioner had affirmed
before the notary etc. that the statement containing
imputation of corrupt practices was duly and solemnly
verified to be correct statement to the best of his
knowledge or information as specified in the election
petition and the affidavit filed in support thereof; that
reinforces the assertions. Thus affirmation before the
prescribed authority in the affidavit and the supply of its
try copy should also contain such affirmation so that the
returned candidate would not be misled in his understanding
that imputation of corrupt practices was solemnly affirmed
or duly verified before the prescribed authority. For that
purpose, Form 25 mandates verification before the prescribed
authority. The object appears to be that the returned
candidate is not misled that it was not duly verified. The
concept of substantial compliance of filing the original
with the election petition and the omission thereof in the
copy supplied to the returned candidate as true copy cannot
be said to be a curable irregularity. Allegations of corrupt
practices are very serious imputations which, if proved,
would entail civil consequences of declaring that he became
disqualified for election to a maximum period of six years
under Section 8A, apart from conviction under Section 136
[2]. Therefore, compliance of the statutory requirement is
an integral part of the election petition and true copy
supplied to the returned candidate should as a sine qua non
contain the due verification and attestation by the
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prescribed authority and certified to be true copy by the
election petitioner in his/her own signature. The principle
of substantial compliance cannot be accepted in the fact-
situation.
The contention that the election petition cannot be
dismissed under Section 86 at the threshold on account of
the omission on the part of the Registry of the High Court
to point out the same as per its procedure, cannot be
countenanced. Lapse on the part of the Registry is not an
insurance to deny to the returned candidate the plea that
the attestation of the affidavit and its certification to be
a true copy is an integral part of the pleadings in the
election petition. Sections 81, 83 [1] (c) and 86 read with
Rule 94-A of the Rules and Form 25 are to be read conjointly
as an integral scheme. When so read, if the Court finds on
an objection, being raised by the returned candidate, as to
the maintainability of the election petition, the Court is
required to go into the question and decide the preliminary
objection. In case the Court does not uphold the sane, the
need to conduct trial would arise. If the Court upholds the
preliminary objection, the election petition would result in
dismissal at the threshold, as the Court is left with no
option except to dismiss the same.
It is true that in Mrs. Shipra’s case i.e., C.A.
No.6359 of 1994, yet another contention was raised by her,
viz., that rejection of her nomination was invalid in law.
The High Court has held that even if more grounds were
raised assailing the legality of the result of the election
declared and if the mandatory requirement of Section 83 [1]
(c) read with Rule 94-A was not complied with, the entire
petition would have entailed dismissal. That view, we are of
the firm opinion, is not correct in law. It is well settled
that only those parts of the petition which contain
allegations of corrupt practices and which are not pleaded
in conformity with Form 25 read with Rule 94-A and Section
83 [1], alone are required to be struck off and other
independent issues are required to be tried and decided on
merits. In this case, though validity of the rejection of
her nomination was questioned by the appellant, it would
appear that in the High Court it was not seriously canvassed
and the main thrust of the argument in the High Court, by
the counsel for the appellant, was on corrupt practices and
curability of the defect which did not find favour with the
High Court. In view of the above finding, we are of the
considered view that the question of barring the appellant
to contest elections on the ground of improper rejection or
nomination, does not arise for serious consideration. The
entire election petition rested only on imputation of
corrupt practices. Consequently, when the election petition
was held not maintainable due to the material defect in the
true copy of the affidavit which is an integral part of the
election petition, dismissal of the election petition cannot
be faulted.
In other appeals, no other ground except the
allegations of corrupt practices, was pleaded. Under these
circumstances, we are of the considered view that the
learned Judges have not committed any error of law
warranting our interference.
The appeals are accordingly dismissed, but in the
circumstances, without costs.