Full Judgment Text
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CASE NO.:
Appeal (civil) 4605 of 2000
PETITIONER:
SRI T. PHUNGZATHANG
Vs.
RESPONDENT:
SRI HANGKHANLIAN & ORS.
DATE OF JUDGMENT: 28/08/2001
BENCH:
CJI & N. Santosh Hegde
JUDGMENT:
SANTOSH HEGDE, J.
The appellant before us had preferred Election Petition
No.1/2000 before the Imphal Bench of the Gauhati High Court
challenging the declaration of the results made in favour of
respondent No.1 herein as the elected candidate in the elections
held for the 48-Churachandpur Assembly Constituency in the
7th Manipur Legislative Assembly Election. One of the grounds
of attack in the said petition was that respondent No.1 indulged
in corrupt practice as contemplated in Section 123 of the
Representation of People Act, 1951 (hereinafter referred to as
the Act) among other grounds, hence, he had prayed that the
declaration made in favour of respondent No.1 be set aside and
he be declared as the elected candidate from the said
Constituency.
Respondent No.1 herein moved an application being
Civil Miscellaneous (Election) Case No.3/2000 contending that
the copies of the affidavits filed in support of the corrupt
practices alleged in the election petition and supplied to him,
did not contain due verification and attestation by the Oath
Commissioner or by the Prescribed Authority, hence there was
a violation of the mandatory requirement of Sections 81(3) and
83(1) of the Act and, therefore, the election petition in question
was liable to be dismissed. It is to be noted herein that on
coming to know of the Civil Misc. Petition, the plaintiff
supplied fresh copies of the affidavits containing full particulars
of the attestation/verification made in support of the affidavit
filed in Form No.25 before the High Court to the respondents
and their advocates, a few days before the Civil Miscellaneous
Petition was taken up for hearing.
The High Court relying on the two judgments of this
Court in Dr. Shipra (Smt.) & Ors. v. Shanti Lal Khoiwal & Ors.
(1996 (5) SCC 181) and Harcharan Singh Josh v. Hari Kishan
(1997 (10) SCC 294) accepted the contention of the first
respondent and by its order dated 27.6.2000 dismissed the
election petition under Section 86(1) of the Act on the ground
of non-compliance of sub-section (3) of Section 81 read with
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Section 83(1)© of the Act.
In this appeal, it is contended on behalf of the appellant
before us that the High Court erred in placing reliance solely on
the judgments of this Court in Dr. Shipra and Harcharan Singh
Josh (supra). It was contended that the judgment of this Court
in Dr. Shipras case had been explained by a Constitution
Bench of this Court in the case of T M Jacob v. C. Poulose &
Ors. (1999 (4) SCC 274) and the observation in Dr.Shipras
case has been held to be not universally applicable and is
confined to the facts of that case only. While in regard to
Harcharan Singh Joshs case, it was contended that in view of
the judgment of the larger Bench in Jacobs case (supra), the
Joshs case stands impliedly overruled. It was further contended
that Section 81(3) does not contemplate the supply of a true
copy in the sense that it should be an identical copy of the
original filed before the court. According to the appellant, it
would suffice that if the copy supplied is substantially correct
and the omissions pointed are not such omissions as would in
any manner mislead the respondent in presenting his case or
would prejudice his defence in any manner. At any rate, it was
argued that the omission in the copy having been rectified by
the supply of copies containing entire verification, the question
of the election petition being dismissed on that technical ground
did not arise. It was further contended that assuming for
arguments sake that the defect pointed out by the respondents
did vitiate that part of the election petition attracting the
provisions of Section 86(1) of the Act even then since the
defect pointed out was with reference to only one of the
grounds raised in the election petition pertaining to corrupt
practice, the entire election petition could not have been
dismissed on that score because the said petition raised other
substantial and independent grounds in regard to which
respondents objections did not apply and they by themselves
were sufficient to set aside the election of respondent No.1.
On behalf of the contesting respondents, it was contended
before us that the judgment in Dr. Shipra (supra) has not been
overruled by the Constitution Bench in Jacobs case (supra). It
was further argued that the facts involved in the cases of Dr.
Shipra and Harcharan Singh Josh (supra) were identical with
the facts involved in the present case, hence, the ratio laid down
in the said judgment squarely applied to the facts of the present
appeal. It was also contended that the omissions or irregularities
mentioned in Sections 81(1) and 83(1) are not of curable
character, they being mandatory in nature, same cannot be
condoned or cured by subsequent corrections.
We have carefully considered the arguments addressed
on behalf of the parties and perused the records.
So far as Dr.Shipras case is concerned, this Court in
T.M.Jacobs case (supra), in clear terms has held that the
opinion expressed therein is applicable to the fact situation in
that case only because the Constitution Bench came to the
conclusion that the defect pointed out in Dr.Shipras case
pertained to those in the original affidavit filed before the Court
in support of the allegations of corrupt practice and not with
reference to the copies supplied to the respondents. This is clear
from the following observations of the Constitution Bench in
paragraph 16 of Jacobs case:
Thus, from the facts noted by Bharucha,
J., it transpires that in Dr.Shipra case the true
copy of the election petition furnished to the
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respondent gave an impression that the election
petitioners affidavit supporting his allegations
of corrupt practice had not been duly sworn and
verified by the election petitioner before the
Notary, who also had not attested the same
thereby rendering that document as no
affidavit at all in the eye of the law. The defect
found in the true copy of the affidavit, was
thus, not merely the absence of the name of the
Notary or his seal and stamp but a complete
absence of notarial endorsement of the
verification as well as absence of an
affirmation or oath by the election
petitioner. It was in that context that the Bench
had found in Dr.Shipra Case that the returned
candidate would have got the impression, on a
perusal of the true copy of the affidavit, that
there was no duly sworn and verified affidavit
filed in support of the allegations of corrupt
practice by the election petitioner. It was
precisely on account of this fatal defect that
K.Ramaswamy, J. opined that the principle of
substantial compliance cannot be accepted in
the fact situation. (emphasis supplied)
Proceeding further, the Constitution Bench in Jacobs
case (supra) reiterated its view of Dr. Shipras case (supra) in
the following words :
27. We, therefore, reject the argument of
learned counsel for the appellant regarding
the applicability of the observations from
Dr Shipra case to the fact situation in the
present case.
28. Thus, our answer to the reference is that
the judgment in Dr Shipra case is confined
to the fact situation as existing in that case
and has no application to the established
facts of the present case and the wide
observations made therein were made in the
context of the facts of that case only. (See
paras 27 & 28).
From the above law laid down by the Constitution Bench
in Jacobs case, it is crystal clear that the principle found in Dr.
Shipras case is not universal in its application, per contra, it is
confined to the facts of that case only.
Apart from holding that the views expressed in Dr.
Shipra case are only confined to the fact-situation of that case
in Jacobs case, the Constitution Bench turned down the
contention advanced on behalf of the appellant that if the copy
of the affidavit supplied to the respondent in an election petition
does not contain the name and other particulars of the Notary or
the stamp and seal of the Notary which had been affixed on the
affidavit filed along with the election petition, the same would
amount to violation of Section 81(3) of the Act, and such
variation between the original affidavit filed before the High
Court and the copy supplied to the respondent would render the
copy as not a true copy of the original, hence, the election
petition is liable to be rejected.
While rejecting the above contention of the appellant in
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Jacobs case, the Bench placed reliance on two earlier
judgments of the Constitution Bench of this Court in the cases
of Murarka Radhey Shyam Ram Kumar vs. Roop Singh
Rathore & Ors. (1964 (3) SCR 573) and Ch. Subbarao vs.
Member, Election Tribunal, Hyderabad (1964 (6) SCR 213). In
the first of the above cases, i.e. Murarkas case, the Constitution
Bench discussing the meaning of the words true copies as
found in the Representation of People Act had observed:
Having regard to the provisions of Part VI
of the Act, we are of the view that the word
copy does not mean an absolutely exact copy.
It means a copy 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. Applying that test we have
come to the conclusion that the defects
complained of with regard to Election Petition
No.269 of 1962 were not such as to mislead the
appellant; therefore there was no failure to
comply with the last part of sub-section (3) of
Section 81. In that view of the matter sub-
section (3) of Section 90 was not attracted and
there was no question of dismissing the election
petition under that sub-section by reason of any
failure to comply with the provisions of Section
81.
When every page of the copy served on the
appellant was attested to be a true copy under
the signature of the petitioner, a fresh signature
below the word petitioner was not necessary.
Sub-section (3) of Section 81 requires that the
copy shall be attested by the petitioner under
his own signature and this was done. As to the
second defect the question really turns on the
true scope and effect or the word copy
occurring in sub-section (3) of Section 81. On
behalf of the appellant the argument is that sub-
section (3) of Section 81 being mandatory in
nature all the requirements of the sub-section
must be strictly complied with and the word
copy must be taken to be an absolutely exact
transcript of the original. On behalf of the
respondents the contention is that the word
copy means that which comes so near to the
original as to give to every person seeing it the
idea created by the original. Alternatively, the
argument is that the last part of sub-section (3)
dealing with a copy is merely directive, and for
this reliance is placed on the decision of this
Court in K.Kamaraja Nadar v. Kunju Thevar.
We are of the view that the word copy in sub-
section (3) of Section 81 does not mean an
absolutely exact copy, but means that the copy
shall be so true that nobody can by any
possibility misunderstand it (see Strouds
Judicial Dictionary, Third Edn., Vol.4, p.3098).
In this view of the matter it is unnecessary to go
into the further question whether any part of
sub-section (3) of Section 81 is merely
directory.
And after considering the similar views expressed by a latter
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Constitution Bench judgment in Ch. Subbaraos case, this Court in
Jacobs case held the object of serving a true copy of an election
petition and the affidavit filed in support of the allegations of
corrupt practice on 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, thus, of substance and not
of form. Having come to the said conclusion, this Court in Jacobs
case held:
The expression copy in Section 81(3) of
the Act, in our opinion, means a copy which is
substantially so and which does not contain any
material or substantial variation of a vital nature as
could possibly mislead a reasonable person to
understand and meet the charges/allegations made
against him in the election petition. Indeed a copy
which differs in material particulars from the
original cannot be treated as a true copy of the
original within the meaning of Section 81(3) of the
Act and the vital defect cannot be permitted to be
cured after the expiry of the period of limitation.
From the above conclusion of this Court in Jacobs case,
two principles can be deduced; (a) The expression copy in
Section 81(3) of the Act means a copy which is substantially
the same as original, variation if any from the original should
not be vital in nature or should not be such that can possibly
mislead a reasonable person in meeting the allegation; (b) If the
copy differs in material particulars from the original same
cannot be cured after the period of limitation.
Having laid down the law as stated above, the Court in
Jacobs case proceeded to apply the same to the facts of that
case, and came to the conclusion that non-mention of the name
of the Notary or the absence of the stamp and seal of the Notary
in the otherwise true copy supplied to the appellant could not be
construed to be an omission or variation of a vital nature and
the defect, if at all it could be construed as a defect, not
attracting the consequences of Section 86(1) of the Act. It
further held that under the circumstances, it must be held that
there was no failure on the part of the election petitioner to
comply with the last part of sub-section (3) of Section 81 of the
Act, hence, Section 86(1) was not attracted entailing the
dismissal of the election petition.
At this stage, it will be useful for us to refer to another
judgment of this Court which had an occasion to consider
Dr.Shipras case in an almost similar fact situation as in this
appeal i.e. the case of Anil R.Deshmukh vs. Onkar N. Wagh
(1999 (2) SCC 205) which judgment was also relied on by the
Constitution Bench in Jacobs case. In the case of Deshmukh
(supra), one of the defects pointed out to attract the dismissal of
the election petition was the absence of the endorsement of
verification and the stamp and seal of the attesting officer on
the copy of the affidavit supplied to the first respondent and the
argument was that in absence of such endorsement in the copy
supplied to that respondent will not make it to be a true copy.
Negating the said contention and reversing the judgment of the
High Court, this Court held that there was sufficient compliance
of the provisions of Section 83 read with Section 81(3) of the
Act because absence of notarial endorsement in the copies
supplied to the respondent did not attract the dismissal of the
election petition on the ground of non-compliance of the
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requirement of Section 81 or 83 of the Act. In that case the
Court took note of the fact that correct copies of the affidavit
containing endorsement of verification etc. were served on the
respondent as well as his counsel before the arguments were
heard, hence, the irregularities were cured.
Here we must notice that the judgment in Deshmukhs
case (supra) was delivered prior to the judgment in Jacobs case
and it had the benefit of examining the law laid down by this
Court in Dr.Shipras case, and finding it not applicable to the
facts of its case, the Court distinguished the same. It also
noticed the fact that by the law laid down in Dr. Shipras case
was already referred to a larger Bench on the ground that the
same ran counter to the judgments of the Constitution Bench in
the cases of Murarka and Subbarao (supra). It is to be noted
here that this judgment in Deshmukh case was specifically
approved in the Constitution Bench judgment of Jacobs case,
and in para 20 of the said judgment it is stated thus : In Anil R.
Deshmukh case Srinivasan, J. has correctly distinguished the
case of Dr Shipra bringing out the difference in the type of
defects found in the two cases.
In the above declared legal position, if we examine the
case in hand, we notice that the only lacunae pointed out by the
contesting respondent in his application in Civil Miscellaneous
Election Case No.3/2000 is that the copy supplied to him did
not contain the verification or affirmation made by the Oath
Commissioner or the Prescribed Authority as required in Form
25 and Rule 94A of the Conduct of Election Rules, 1961. It is
not the case of respondent No.1 that the original affidavit filed
along with the election petition in Form 25 did not contain such
verification or affirmation. On the contrary, it is an admitted
fact that such affirmation or verification was made in the
original affidavit filed before the High Court. Therefore, the
question arising in this appeal is: would this omission as
pointed out by the respondent in his petition, ipso facto entail
dismissal of the election petition under Section 86(1) of the
Act? In view of the law laid down in Jacobs case (supra), the
answer then should be no because by such omission the copy
supplied will not cease to be a true copy and there is no
possibility of any prudent person being in any manner misled
in defending himself or being prejudiced in the defence of his
case. Further, such omissions are only curable irregularities.
In this appeal, it is also to be noted that on coming to
know of the omission pointed out by the respondent, the
appellant had on 6.6.2000 a few days before the starting of the
arguments supplied fresh copies of the affidavit containing the
verification as found in the original affidavit in its entirety,
hence, as was laid down in the case of Deshmukh (supra), it
should be held that the defects pointed out in the petition being
curable, have been cured.
Having come to the conclusion that the facts of the
present appeal are fully covered by the Constitution Bench
judgment of this Court in Jacobs case and Deshmukhs case,
we will now discuss the applicability of Harcharan Singh Joshs
case (supra) to the facts of this case bearing in mind that the
High Court has relied on this case also to dismiss the election
petition. It is true that in Joshs case, this Court extended the
principle laid down in Dr. Shipras case but then this Court in
Jacobs case in clear terms held that the application of the
principle found in Dr.Shipras case is confined only to the facts
of that case; meaning thereby that it is applicable only in cases
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where the original affidavit filed before the High Court
contained the omissions and not to copies of the affidavit
supplied to the respondents. Therefore, it is clear that the
application of the principle in Dr.Shipras case to the facts of
Joshs case is clearly impermissible. In that view of the matter,
the decision in Joshs case being contrary to Jacobs case, the
same cannot be construed as a good law any more. Therefore,
the High Court in the instant case could not have relied on
Joshs case to dismiss the election petition.
Before we conclude, we must note that the appellant had
in support of his argument raised an additional contention to the
effect that assuming that irregularities pointed out by the
respondent in the copy of the affidavit supplied to him is an
incurable defect, even then the election petition could not have
been dismissed in its entirety because it had raised other
substantial grounds questioning the declaration of result in
favour of respondent No.1. In our opinion, it is not necessary
for us to express any opinion on this issue because of the view
expressed on the main contention argued in this appeal.
For the reasons stated above, this appeal succeeds and the
same is allowed. The impugned judgment and order is set aside
and the matter is remanded to the High Court for disposal of the
election petition on merits. No costs.
CJI.
....J.
(N.Santosh Hegde)
August 28, 2001