Full Judgment Text
REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA NO. 16682/2009 IN ELECTION PETITION NO. 05/2009
DR. ANITA BABBAR ..... Petitioner
Through: Mr.K.C. Mittal, Advocate with
Mr. N. Safaya and Mr. Tarunesh
Kumar, Advocates.
versus
SH. O.P. BABBAR & ORS. ..... Respondents
Through: Mr. H.S. Phoolka, Sr. Advocate
with Mr. Ashok Kashyap,
Advocate for respondent No.1.
% Date of Decision : June 02, 2011
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
J U D G M E N T
: REVA KHETRAPAL, J.
1. By way of this application under Section 151of the Code of
Civil Procedure read with Section 86 of the Representation of
EL. PETITION No. 5/2009 Page 1 of 79
the People Act, 1951 (hereinafter referred to as “the Act”), the
respondent No.1 prays for dismissal of the petition as not
maintainable in view of non-compliance of the provisions of
Sections 81 and 83 of the Act.
2. It is stated in the application that the petitioner has failed to
supply a complete set of papers alongwith the petition to the
respondent No.1. It is further stated that the counsel for the
respondent No.1 appeared before the Court on 20.05.2009 and
requested the counsel for the petitioner to supply the complete
set to enable him to file reply to the petition. The counsel for
the petitioner held out an assurance that the complete set would
be supplied the same day. However, a set of the petition
alongwith the annexures was supplied to the counsel for the
respondent No.1 on 6.7.2009, but even this copy was not
complete and not a true copy of the petition filed in this Court.
Thus, Set No.1, which was received with the notice and Set
No.2, which was received on 6.7.2009, were both not complete
and did not tally with the original. On inspection of the Court
records, the following deficiencies were found in both the sets:-
EL. PETITION No. 5/2009 Page 2 of 79
Set No.1. (Received with Notice)
―(a) Page18 – Para 19 of the petition, there
are blanks. No receipt number or date is
mentioned.
(b) Page 18 – No date is given at the bottom
as well as it is no where stated that it was
signed by the counsel.
(c) The verification of the petition is not
verification in accordance with law. No
number of paragraphs have been mentioned
and the date also not mentioned. Memo of
parties as well as index does not contain the
signature of the counsel and even the date is
kept blank.
(d) Page 14 – Para 11 – About 10 lines from
th
the bottom and 14 line from the top of the
page are not legible. The copy supplied is not
true copy of the petition as filed in the court.
(e) Similarly, at page 15, about 4 lines from
th
top to the 10 line onwards are not legible and
there is no attestation at page 15 as attested
true copy. The copy supplied is not true copy
of the petition as filed in the court.
(f) The copy of the petition furnished to the
answering Respondent is illegible at the end of
each of the page, as the petitioner has put
stamp of ‗True Attested Copy‘ on the contents
of the page itself. It appears that this has been
done with a view that the answering
respondent may not be able to file an effective
reply.
EL. PETITION No. 5/2009 Page 3 of 79
(g) The petitioner failed to supply first page
of the affidavit to the petitioner in the first set
supplied and in the second page of the
affidavit, date of affidavit is kept blank.
(h) At page 19 of the copy supplied column
of paras and date are not filled in the
verification clause.
Set No.2. (Containing Annexures supplied on 6-7-2009)
(a) Page 18 – Para 19 of the Petition, there are
blanks. No receipt number or date is
mentioned.
(b) Page 18 – No date is given at the bottom as
well as it is no where stated that it was
signed by the counsel.
(c) The verification of the Petition is not
verification in accordance with law. No
number of paragraphs have been mentioned
and the date is also not mentioned. Memo
of Parties as well as index does not contain
the signature of the counsel and even the
date is kept blank.
(d) Page 14 – Para 11 – About 10 lines from
th
the bottom and 14 line from the top of the
page are not legible. The copy supplied is
not true copy of the Petition as filed in the
court.
(e) Similarly, at page 15, about 4 lines from top
th
to the 10 line onwards are not legible and
there is no attestation at page 15 as attested
true copy. The copy supplied is not true
copy of the Petition as filed in the court.
EL. PETITION No. 5/2009 Page 4 of 79
(f) At page 19, columns of para and date are
not filled in the verification clause.
(g) Annexure D has not been properly verified
and its legible stated to be fairly typed copy
has not also been properly verified. All
other alleged to be fair typed copies of the
annexures have not been properly verified
in accordance with law.
(h) That there is no pagination about page 23.
Stated to be Annexure C pertains to the
photographs of the scooters alongwith the
alleged stepney covers bears no pagination.
On perusal of the photographs it is found
that no verification is done as attested true
copies as provided U/s 81(3) of the
Representation of People Act 1951. The
petitioner has also failed to supply the
alleged photographs of 20 scooters. The
copy supplied of the alleged photographs
under signatures are of 10 scooters only
and the six are duplicate and four are
illegible. Therefore such photographs not
duly verified in accordance with the
provisions of law have been supplied has
nothing but only piece of paper and has
been manipulated by the petitioner. Such a
manipulated photographs carry no weight
and it is only handiwork of the petitioner.
No full particulars in this regard also
submitted by the petitioner. In these
circumstances narrated above the petition
deserves summarily rejections.‖
EL. PETITION No. 5/2009 Page 5 of 79
It may be mentioned at this juncture that both the
sets on the prayer of the counsel for the respondent No.1
were ordered to be kept in a sealed cover.
3. It is further alleged in the application:-
―4. On inspection of the court record it is
found that there are additions in the affidavit
made by hand at two places without
countersignature by the petitioner or her
counsel or the person who attested the same. It
appears after the alleged attestation of the
affidavit some interpolation have been made.
Thus such an interpolation are purgery and
were not sworn before the Oath Commissioner.
Thus, the affidavit is no affidavit in the eyes of
law. No attested true copy of the affidavit filed
before this Hon‘ble Court has been supplied to
the answering respondent even while the
second set was supplied on 6.7.2009.
5. The alleged affidavit of corrupt practices
is also not true copy of the original filed before
this Hon‘ble Court, as there is no name of the
notary public or oath commissioner mentioned
on it and it does not bear the stamp of the oath
commissioner or notary public. It also does
not bear the date and there is no certificate on
the copy of the affidavit that the same was
sworn before Oath Commissioner or Notary
Public. The affidavit filed before the Hon‘ble
Court the name of the person who attested the
same is not mentioned, thus it is not an
affidavit, which is required to be filed under
EL. PETITION No. 5/2009 Page 6 of 79
the provisions of law. On this count also the
petition is also liable summarily rejected (sic.).
6. That from the perusal of record it has
come to the notice that the petitioner presented
the petition on 21.1.2009 containing 22 pages,
though there is overwriting without any
signature but the caveat report obtained on
22.1.2009 suggestive of that the petition was
taken back unauthorisedly to fill the material
lacunae and annexures were added
subsequently which is not permissible. The
overwriting on 22 numerical itself suggest that
there are subsequent interpolations, thus the
petition is liable to be rejected on this ground
alone.
7. The endorsement on the index shows that
the petitioner failed to file as many copies of
the petition as there are seventeen respondents
mentioned in the petition at the time of filing
the petition, which is a mandatory requirement
of Section 81(3) of the said Act. Thus, the
mandatory requirement having not complied
with, therefore, the petition must fail (sic.).
8. That the copies of the petition supplied
to the answering respondent do not bear date
and signature of counsel on index, memo of
parties and the petition. The requirement of
law is that the petitioner is to submit necessary
copy as attested true copy filed before the
Hon‘ble Court. Thus the petition is liable to be
rejected as it does not meet the requirement of
law.
9. That the petition does not comply with
the requirements of Section 83 (a & b). It does
EL. PETITION No. 5/2009 Page 7 of 79
not contain a concise statement of material
facts on which the petitioner relies nor does it
set forth full particulars of any corrupt practice
that the petitioner alleges. It does not disclose
the name of persons who received the gifts or
even particulars of the alleged corrupt practice
including time, date, place of the commission
of each corrupt practice. The petition is devoid
of any material particulars and therefore,
liable to be dismissed as lack of these
particulars amounts to no cause of action
being disclosed in the petition. In this regard,
particular submission is made with regard to
paragraphs 5 to 13 of the petition. Vague
allegations without any material particulars or
other requirements of law have been made. On
this short ground, the petition is liable to be
dismissed.
10. That the petitioner has failed to file
proper affidavit as provided under Rule 94A
and in Form 25 of the Conduct of Election
Rules 1961, of the alleged corrupt practices.
Therefore, the petition is liable to be summarily
rejected.‖
4. Relying upon the judgment of the Hon‟ble Supreme Court in
the case of Harcharan Singh Josh Vs. Harkishan reported as
AIR 1996 SC 3350 , it is further submitted in the application
that the aforesaid defects are not curable defects. Strict
compliance has to be made in a case such as the case in hand
EL. PETITION No. 5/2009 Page 8 of 79
and the concept of substantial compliance has no application in
such a case.
5. Reply to the aforesaid application was filed by the petitioner,
asserting that the application was liable to be dismissed as the
same was not signed by the respondent No.1 and was an abuse
of the process of law, having been filed with the sole purpose
of delaying the disposal of the petition on merits. It was denied
that either of the copies supplied to the respondent No.1 were
not complete or were not true copies of the petition filed in this
Court. It was asserted that the petitioner had complied with the
provisions of law regarding submission of copies of petition
and annexures, and a noting in this regard has been made by
the Registry at the time of the filing of the petition itself. It
was stated that the respondent was raising false and frivolous
objections, which were without merit. The petition of the
petitioner suffered from no defect and copy of the same had
been supplied to the respondent No.1 as per law. Each and
every averment made in the application was also specifically
denied.
EL. PETITION No. 5/2009 Page 9 of 79
6. A rejoinder to the aforesaid reply of the petitioner was filed by
the respondent No.1, reiterating and re-affirming the contents
of the application and denying the corresponding paragraphs of
the reply of the petitioner.
7. Detailed arguments were advanced by Mr. H.S. Phoolka, the
learned senior counsel for the respondent No.1 and by Mr. K.C.
Mittal, the learned counsel for the petitioner. Precedents were
also cited at the bar by both the counsel. In the midst of
arguments, on the plea taken up by the learned counsel for the
petitioner that, in law, in so far as Section 83 is concerned,
Section 86 of the Act has no application, the counsel for the
respondent No.1 for the purposes of the present application
withdrew the averments relating to Section 83 of the Act.
Subsequently, the learned counsel for the respondent No.1 also
withdrew the averments made in the application with regard to
non-compliance with Form 25 of the Conduct of Election
Rules, 1961, as stated in para 10 of the application, reproduced
hereinabove. Substantially, thereafter, the counsel for the
respondent No.1 confined his arguments to violation of Section
EL. PETITION No. 5/2009 Page 10 of 79
81 (3) of the Act with casual references to Section 82 and
Section 117 thereof. In so far as Section 117 of the Act is
concerned, it relates to the deposit of security of costs and
admittedly the same had been deposited by the petitioner in
compliance with the Rules framed by this Court. The fact of
deposit of security of costs is not disputed by the respondent
No.1 nor the Registry has raised any objection and, therefore,
Section 117 has been complied with. Similarly, so far as
Section 82 is concerned, the respondent No.1 has not alleged
that the Election Petition is bad for non-joinder of parties and
since it is not in dispute that all the contesting candidates have
already been made parties to the Election Petition, Section 82
of the Act cannot be said to be attracted.
8. Mr. H.S. Phoolka, the learned senior counsel for the respondent
No.1, the returned candidate, in support of his prayer for
dismissal of the petition under Section 86 of the Act
highlighted the differences in the original petition on the one
hand, and the set No.1 and set No.2 furnished to the respondent
No.1 on the other hand. Mr. Phoolka contended that on the
EL. PETITION No. 5/2009 Page 11 of 79
first date of hearing, that is, on 20.05.2009 the counsel for
respondent No.1 requested for a complete set to be supplied.
th
On 6 July, 2009, the counsel for the petitioner supplied the
second set to the counsel for respondent No.1, however, the
second set which was supplied was also defective. Thus, both
the sets, the first set as well as the second set supplied, were in
total violation of Section 81(3) of the Act.
9. The precedents relied upon by the learned senior counsel for
the respondent No.1 in support of his contention that the
petition was liable to be rejected by virtue of the provisions of
Section 86 read with Section 81 of the Act are as under.
10. In M. Karunanidhi Vs. H.V. Handa AIR 1983 SC 558 , which
decision was strongly relied upon by Mr. Phoolka, the question
arose as to whether the Election Petition was liable to be
dismissed as the copy of the Election Petition furnished to the
appellant was not accompanied by a copy of the photograph of
the fancy banner referred to in paragraph 18(b) of the petition.
Reversing the judgment of the High Court, the Supreme Court
held that the photograph of the fancy banner adverted to in the
EL. PETITION No. 5/2009 Page 12 of 79
petition being an integral part of the petition, the failure to
supply a copy of the photograph to the appellant alongwith the
copy of the Election Petition amounted to non-compliance of
sub-Section (3) of Section 81 and, therefore, the Election
Petition must be dismissed summarily under Section 86 of the
Act.
11. In K.K. SHUKLA VS. VIJAY KUMAR GOEL & ORS. 64
(1996) DLT 56, relied upon by the counsel for the respondent
No.1, the subject of controversy was within a very narrow
compass, namely, as to whether an Election Petition presented
without as many copies thereof as there were respondents was
maintainable or not? The further issue was if there was non-
compliance of the provisions of sub-section (3) of Section 81,
whether the Election Petition was maintainable and whether the
Election Petition could be dismissed for such non-compliance
at the very threshold itself? A learned Single Judge (Dr. M.K.
Sharma, J. as His Lordship then was) held that since the
petitioner had not filed copies of the petition at the time of the
presentation of the Election Petition and the Election Petition
EL. PETITION No. 5/2009 Page 13 of 79
admittedly was not accompanied by as many copies thereof as
there were respondents with attestation of the petitioner under
his own signatures, the petition was not maintainable and was
liable to be dismissed. The Court accordingly dismissed the
petition.
12. The next decision relied upon by Mr. Phoolka was U.S.
SASIDHARAN VS. K. KARUNAKARAN AND ANOTHER
AIR 1990 SC 924 . In this case, it was submitted by the first
respondent that as copies of the notice, photographs and video
cassette were not supplied to the first respondent alongwith the
Election Petition, the Election Petition was liable to be
dismissed in limine under Section 86 (1) for non-compliance
with Section 81 (3) of the Act. Significantly, in this case, the
video cassette was used in the constituency at the instigation of
the first respondent and it contained the speeches of the
Government servants allegedly used for the furtherance of the
prospects of the election of the first respondent, which
constituted corrupt practice. The Supreme Court, affirming the
judgment of the High Court, with reference to the video
EL. PETITION No. 5/2009 Page 14 of 79
cassette held that when a document forms an integral part of
the Election Petition and a copy of such document is not
furnished to the respondent alongwith the copy of the Election
Petition, the copy of the Election Petition will not be a true
copy within the meaning of Section 81 (3) and, as such, the
Court has to dismiss the Election Petition under Section 86(1)
for non-compliance with Section 81(3).
13. Mr. Phoolka next referred to the case of MULAYAM SINGH
YADAV VS. DHARAM PAL YADAV & ORS. 2001 (7) SCC
98. In this case, the original of the video cassette mentioned
and verified in the Schedule to the Election Petition was not
filed alongwith the petition although copies thereof were filed
for service on the respondents to the petition. A three-Judge
Bench of the Supreme Court held that it was satisfied that the
video cassette mentioned and verified in Schedule 14 was an
integral part of the Election Petition and that it should have
been filed in Court alongwith copies thereof for service upon
the respondents to the Election Petition. The Election Petition
as filed was, therefore, not complete. The Court further held
EL. PETITION No. 5/2009 Page 15 of 79
that Section 81 contemplates the presentation of an Election
Petition that is complete and satisfies the requirements of
Section 83. An Election Petition that is not complete must,
having regard to the imperative mandate of Section 86, be
dismissed. The Election Petition was, therefore, dismissed.
14. Next, the learned counsel for the respondent No.1 relied upon
a three-Judge Bench decision of the Supreme Court in
MITHILESH KUMAR PANDEY VS. BAIDYANATH
YADAV AND OTHERS AIR 1984 SC 305. In this case, the
copy of the Election Petition served upon the first respondent
contained a large number of mistakes in respect of the names of
the persons through whom corrupt practices were alleged to
have been practised during the Election. A learned Judge of
the Patna High Court overruled a preliminary objection taken
by the elected candidate that the election petition should be
dismissed straightaway under the provisions of Section 86 of
the Act, holding that the mistakes were of a superficial and
insignificant nature, bordering on clerical or typing mistakes,
and on the whole there was a substantial compliance of the
EL. PETITION No. 5/2009 Page 16 of 79
provisions of Section 81(3) of the Act. On a review of the law
on the subject, the Supreme Court held that the mistakes in the
copy supplied to the returned candidate related to corrupt
practices, which have to be proved to the hilt just like a
criminal charge and any mistake which contains an element of
vagueness would immediately vitiate the Election Petition and
merit its dismissal under Section 86. The Supreme Court
observed that 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
the “true copy” so that the copy furnished to the returned
candidate cannot be said to be a true copy within the meaning
of Section 81(3) of the Act. Opining that the High Court had
committed a serious error of law in holding that there had been
a substantial compliance of the provisions of Section 81(3) of
the Act, the Supreme Court dismissed the Election Petition
filed in the High Court.
15. In the case of REGU MAHESH ALIAS RAGU MAHESWAR
RAO VS. RAJENDRA PRATAP BHANJ DEV AND
EL. PETITION No. 5/2009 Page 17 of 79
ANOTHER AIR 2004 SC 38 which was also referred to, the
dismissal of the Election Petition under Section 86 of the Act
was prayed for on the ground that the verification to the
petition and the affidavit accompanying the petition did not
conform to the requirement of the statute, inasmuch as there
was no specification of the paragraphs which the petitioner had
verified of his knowledge and which he had verified upon
information. The Supreme Court held that in view of its
Division Bench decision in H.D. Revanna Vs. G. Puttaswamy
Gowda (1999) 2 SCC 217 and three-Judge Bench decision in
Dr. Vijay Laxmi Sadho Vs. Jagdish (2001) 2 SCC 247 , the
settled position in law was that the defect in verification or an
affidavit was curable, but there was a gulf of difference
between a curable defect and a defect continuing in the
verification of the affidavit without any effort being made to
cure the defect. (See F.A. Sapa v. Singora, 1991 (3) SCC 375
and R.P. Moidutty v. P.T. Kunju Mohammed, 2000 (1) SCC
481). This being the position, the dismissal of the Election
EL. PETITION No. 5/2009 Page 18 of 79
Petition by the Andhra Pradesh High Court was held to be
justified.
16. Mr. Phoolka next relied upon three decisions of the Hon‟ble
Supreme Court which reiterated certain settled legal principles
in the field of election jurisprudence. The first of these three
cases was the case of JEET MOHINDER SINGH VS.
HARMINDER SINGH JASSI AIR 2000 SC 256 wherein the
legal principles were adumbrated as follows:-
―(i) The success of a candidate who has won at an
election should not be lightly interfered with. Any
petition seeking such interference must strictly
conform to the requirements of the law. Though the
purity of the election process has to be safeguarded
and the Court shall be vigilant to see that people do
not get elected by flagrant breaches of law or by
committing corrupt practices, the setting aside of
an election involves serious consequences not only
for the returned candidate and the constituency, but
also for the public at large inasmuch as re-election
involves enormous load on the public funds and
administration ( See Jagan Nath v. Jaswant Singh
AIR 1954 SC 210; Gajanar krishnaji Bagat v
Dattaji Raghobaj Megha (1995) 5 SCC 347: (1995)
AIR SCW 3407: AIR 1995 SC 2284)
(ii) Charge of corrupt practice is quasi-criminal in
character. If substantiated it leads not only to the
setting aside of the election of the successful
candidate, but also of his being disqualified to
contest an election for a certain period. It may
EL. PETITION No. 5/2009 Page 19 of 79
entail extinction of a person's public life and
political career. A trial of an election petition
though within the realm of civil law is akin to trial
on a criminal charge. Two consequences follow.
Firstly, the allegations relating to commission of a
corrupt practice should be sufficiently clear and
stated precisely so as to afford the person charged
a full opportunity of meeting the same. Secondly,
the charges when put to issue should be proved by
clear, cogent and credible evidence. To prove
charge of corrupt practice a mere preponderance
of probabilities would not be enough. There would
be a presumption of innocence available to the
person charged. The charge shall have to be
proved to hilt, the standard of proof being the
same as in a criminal trial. (See Qnamarul Ham
v. S.K. Kanta [1994] 1 SCR 210, F.A. Sapa v.
Singora [1991] 2 SCR 752a, Manohar Joshi etc.
v. Damodar Tatyaa @ Dada Saheb Rupwati etc.
[1991] 1 SCR 759, Ram Singh v. Col. Ramsingh
AIR 1986 SC 3 )‖
17. The second case cited by Mr. Phooka on legal principles
relating to elections was BALDEV SINGH MANN VS.
SURJIT SINGH DHIMAN AIR 2009 SC 1045. In this
case, the Supreme Court in paragraph 25 referred to the
above mentioned three-Judge Bench judgment of that
Court in Jeet Mohinder Singh’s case (supra) and in
paragraphs 25 to 29 discussed the law on this aspect as
under:-
EL. PETITION No. 5/2009 Page 20 of 79
―25. A three-Judge Bench of this Court in
Jeet Mohinder Singh versus Harminder
Singh Jassi (1999) 9 SCC 386 has held that
the success of a candidate who has won at
an election should not be lightly interfered
with. Any petition seeking such interference
must strictly conform to the requirements of
the law. Though the purity of the election
process has to be safeguarded and the court
shall be vigilant to see that people do not get
elected by flagrant breaches of law or by
committing corrupt practices, the setting
aside of an election involves serious
consequences not only for the returned
candidate and the constituency, but also for
the public at large inasmuch as re-election
involves an enormous load on the public
funds and administration. Similar opinion
has been expressed in Jagan Nath versus
Jaswant Singh & Others 1954 SCR 892,
Gajanan Krishnaji Bapat & another versus
Dattaji Raghobaji Meghe & Others (1995)
5 SCC 347. The will of the people who have
exercised their franchise in an election in
favour of a returned candidate must be
respected to protect the interest of the
returned candidate.
26. The court in a number of cases held that
charge of corrupt practice is a quasi-
criminal in character and it has to be proved
as a criminal charge and proved in the
court.
27. In Jeet Mohinder Singh's case (supra),
the court observed as under:
EL. PETITION No. 5/2009 Page 21 of 79
Charge of corrupt practice is quasi-criminal
in character. If substantiated it leads not
only to the setting aside of the election of the
successful candidate, but also of his being
disqualified to contest an election for a
certain period. It may entail extinction of a
person's public life and political career. A
trial of an election petition though within the
realm of civil law is akin to trial on a
criminal charge. Two consequences follow.
Firstly, the allegations relating to
commission of a corrupt practice should be
sufficiently clear and stated precisely so as
to afford the person charged a full
opportunity of meeting the same. Secondly,
the charges when put to issue should be
proved by clear, cogent and credible
evidence. To prove charge of corrupt
practice a mere preponderance of
probabilities would not be enough. There
would be a presumption of innocence
available to the person charged. The charge
shall have to be proved to the hilt, the
standard of proof being the same as in a
criminal trial.
28. The court has expressed similar opinion
in the cases Quamarul Islam versus
S.K.Kanta & Others (1994) Supp. (3) SCC 5
F.A. Sapa & Others versus Singora &
Others (1991) 3 SCC 375, Manohar Joshi
versus Damodar Tatyaba & Others (1991) 2
SCC 342, Ram Singh & Ors. Versus Col.
Ram Singh (1985) Supp. SCC 611 and
Kripa Shankar Chatterjee versus Gurudas
Chatterjee & Others (1995) 5 SCC 1 .
EL. PETITION No. 5/2009 Page 22 of 79
29. In Ram Phal Kundu versus Kamal
Sharma (2004) 2 SCC 759, the court
reiterated the principle of election
jurisprudence and observed that the election
of the returned candidate should not be
lightly interfered with though at the same
time the purity of the election process has to
be maintained.‖
18. The third case cited by Mr. Phoolka on election
jurisprudence was the decision rendered in RAM SUKH
VS. DINESH AGGARWAL 2009 (10) SCC 541. In this
case also, the Supreme Court referred to the principles
laid down by the Constitution Bench in Jagan Nath
versus Jaswant Singh & Others AIR 1954 SC 210 in
respect of the statutory requirements of election law, as
reiterated in Jeet Mohinder Singh’s case (supra) :-
―Before examining the merits of the issues
raised on behalf of the election petitioner
with reference to the relevant statutory
provisions, it would be appropriate to bear
in mind the observations of this Court in
Jagan Nath v. Jaswant Singh and Ors .
Speaking for the Constitution Bench, Mehr
Chand Mahajan, C.J., had said that the
statutory requirement of election law must
be strictly observed and that the election
contest is not an action at law or a suit in
equity, but is purely statutory proceeding
EL. PETITION No. 5/2009 Page 23 of 79
unknown to the common law and that Court
possesses no common law power. It is also
well settled that the success of a candidate
who has won at an election should not be
lightly interfered with and any petition
seeking such interference must strictly
conform to the requirements of the law.
Nevertheless, it is also to be borne in mind
that one of the essentials of the election law
is to safeguard the purity of the election
process and, therefore, the courts must
zealously ensure that people do not get
elected by flagrant breaches of that law or
by indulging in corrupt practices, as
enumerated in the Act.‖
19. The next case cited by Mr. Phoolka in support of his prayer for
dismissal of the petition for non-compliance of Section 86(1) of
the Act was the decision rendered in DR. (SMT.) SHIPRA VS.
SHANTI LAL KHOIWAL ETC. AIR 1996 SC 1691 . This case
was strongly relied upon by the learned counsel for the
respondent No.1 and it is, therefore, proposed to deal with it
elaborately at a later stage.
20. Mr. Phoolka next referred to the decision of the Bombay High
Court in the case of NARENDRA BHIKAHI DARADE VS.
KALYANRAO JAYWANTRAO PATIL AIR 2000 BOMBAY
362 . In this case, a learned Single Judge of the Bombay High
EL. PETITION No. 5/2009 Page 24 of 79
Court held that non-verification of the concise statement of
material facts and affidavits in the copy of the Election Petition
cannot be considered to be a defect curable by way of an
amendment of the election petition.
21. The next case cited by Mr. Phoolka was the decision rendered
by the Supreme Court in G.V.Sreerama Reddy & Anr. Vs.
Returning Officer & Ors.2009 (8) SCC 736. In this case, the
High Court‟s order holding that there was no proper
presentation of the Election Petition under Section 81 (1) of the
Act, since the Registrar (Judicial) had recorded that the
petitioners were not present while presenting the petition, was
upheld by the Supreme Court by holding that an Election
Petition is to be presented by any candidate or elector relating
to the election personally to the authorized officer of the High
Court and failure to adhere to such course would be contrary to
the said provision and would render the Election Petition liable
to be dismissed on the ground of improper presentation.
22. Mr. Phoolka next relied upon the decision in the case of
R.P.MoiduttyVs. P.T. Kunju Mohammed & Anr. AIR 2000
EL. PETITION No. 5/2009 Page 25 of 79
SC 388 . This case related to defects in the affidavit filed by the
petitioner, inasmuch as all the averments made in paras 1 to 17
of the petition were stated to be true to the personal knowledge
of the petitioner and in the next breath the very same averments
were stated to be based on the information of the petitioner and
believed by him to be true. The source of the information was
also not disclosed. The Supreme Court held that want of
affidavit in the required form and also lack of particulars
rendered the petition liable to be rejected at the threshold as the
allegations of corrupt practice could not have been enquired
into and tried at all.
23. The next case cited by Mr. Phoolka was the case of Quamarul
Islam Vs. S.K. Kanta & Ors. AIR 1994 SC 1733. In this case,
in the affidavit filed in support of the allegations of corruption
in the Election Petition, certain averments were stated to be
based on personal knowledge and information. Subsequently,
the petitioner filed a second affidavit, after evidence was led
and arguments were over, wherein the said averments were
stated to be on personal knowledge. It was held that filing of
EL. PETITION No. 5/2009 Page 26 of 79
such affidavit was impermissible, this being a novel procedure
unknown to civil law or election law.
24. Mr. Phoolka next referred to the decision of the Supreme
Court rendered in Ravinder Singh Vs. Janmeja Singh & Ors.
AIR 2000 SC 3026. The ratio decidendi in this case relates to
Section 83 of the Act and is that in the absence of proper
affidavit in the prescribed form, filed in support of the corrupt
practice of bribery, the allegations pertaining thereto could not
be put to trial, the defect being of a fatal nature.
25. The next case relied upon by Mr. Phoolka was the decision of
this Court in Gopal Parsad Shastri Vs. Mrs. Archana
Kumar and Others AIR 1984 DELHI 280. In this case, the
petitioner did not file copies of the Election Petition in
accordance with the requirement of sub-section (3) of Section
81. In fact, he did not file any copies with the Election
Petition. The Office of the High Court raised an objection to
the issuance of notice and thereupon the petitioner filed copies.
The limitation for the presentation of the petition expired in the
meanwhile. It was held that when the limitation had expired,
EL. PETITION No. 5/2009 Page 27 of 79
the Judge had no power to condone the delay and to extend the
time for the filing of copies.
26. On behalf of the election petitioner, Mr. K.C. Mittal, the
learned counsel for the petitioner sought to rebut the
contentions raised by Mr. Phoolka. According to Mr. Mittal, it
is clear from the record that in present case, the petitioner was
present at the time of the presentation of the Election Petition
on 21.01.2009 and an endorsement to this effect was made by
the Registry. It is also apparent from the record that the present
Election Petition was never returned by the Registry for the
removal of objections nor, in fact, any objections were raised.
From the record, it is also evidenced that on 22.01.2009, the
scrutiny of the petitioner‟s Election Petition was done by the
Registry and the concerned official recorded the following
Note:-
“The case has been posted for date: 27-JAN-09
The petition/appeal being in order, may be registered.
SCRU Assistant: SH.DHARMENDER JOSHI
Signature
Dealing Assistant
Sd/-
EL. PETITION No. 5/2009 Page 28 of 79
AOJ/AR (Filing)
22.01.2009”
27. Mr. Mittal, the learned counsel for the petitioner, contended
that the aforesaid facts clearly show that the petition was in
order when it was presented and there was no objection by the
Registry calling for dismissal under Section 86 of the Act. The
petition was processed in accordance with the law and the
Rules framed by the High Court as applicable, and the
respondent No.1 has not only failed to establish any violation
of the nature required in law for the dismissal of the Election
Petition at the threshold, but has also failed to show that any
prejudice was caused to him.
28. Mr. Mittal further submitted that not only the record shows
that the Election Petition was never returned by the Registry,
but infact it could not have been returned by the Registry in
terms of the Office Order dated 18.10.1995 and hence the
allegation of the respondent No.1 that it was returned on
21.01.2009 and re-filed on 22.01.2009 with annexures is
EL. PETITION No. 5/2009 Page 29 of 79
without basis. The Office Order dated 18.10.1995 relied upon
by Mr. Mittal in this regard is extracted below:-
“High Court of Delhi; New Delhi
No.303/Rules/DHC
Dated: 18.10.1995
OFFICE ORDER :
It has been noticed that a practice is prevalent
in the Registry of this Court to return election
petitions to the party filling them for the purpose of
rectifying the defects/objections pointed out by the
Registry and then refilling the same. Such a practice
is contrary to the provisions of the Representation of
Peoples Act and Election Rules framed by the High
Court. The endorsement made in the Registry
simultaneously with the filing of election petition is in
the form of a rubber stamp which has no provision
for mentioning the name of the person presenting the
petition and the person(s) accompanying or
identifying him at the time of presentation. This
practice is also contrary to the provisions of Section
81 of the Representation of Peoples Act, 1951. Both
these points came up for judicial scrutiny in the case
of ―Harcharan Singh Josh vs. Hari Kishan,‖ EP 6/95
decided on 26.5.1995.
In accordance with the observations made in
the said judgment, Hon‘ble the Chief Justice vide
order dated 23.8.1995 passed in a separate case, has
been pleased to order that
(i) The Registry shall not return election petitions
to the party filing the same under any
EL. PETITION No. 5/2009 Page 30 of 79
circumstances once it has been presented. The
defects/objections if any pointed out by the
Registry shall be placed before the Election
Judge for orders;
(ii) The following endorsement shall be made on
the election petition at the time of
presentation:-
Presented by Shri
Petitioner/s in person
Accompanied by identified by Shri
Advocate on
At AM/PM. (DATE)
Time
The above directions shall be strictly complied
with by the relevant officer/officers with immediate
effect.
Sd/-
(M.A.KHAN)
REGISTRAR‖
29.Mr. Mittal, the learned counsel for the petitioner, also drew the
attention of this Court to the alleged deficiencies in the copy of
the petition received by the respondent No.1, which, according
to the respondent No.1, was received from the Registry
(hereinafter referred to as the “first set”), and to the alleged
deficiencies in the copy of the petition, which according to the
EL. PETITION No. 5/2009 Page 31 of 79
respondent No.1, was received from the counsel for the
petitioner (hereinafter referred to as the “second set”). He
pointed out that paras (a) to (e) of the alleged deficiencies were
common in both the sets, whereas paras (f) and (g) of the first
set do not exist in the second set, and para (h) of the first set is
para (f) in the second set. Further, two new grounds as
mentioned in paras (g) and (h) in the second set had been added
subsequently, which did not exist in the first set. This clearly
established that there were no defects with regard to paras (g)
and (h) of the second set in the first set, which it is claimed by
the respondent No.1 was received from the Registry. It was,
therefore, clear that paras (g) and (h) of the second set had been
concocted and as such the allegations contained therein were
frivolous and the respondent No.1 had received Annexure „D‟
properly verified alongwith fair typed copies of all the other
annexures properly verified as well as all the photographs of
the scooters alongwith alleged stepney covers stated to be filed
as Annexure „C‟. Mr. Mittal‟s contention is that this was not a
matter of drawing inference, but the respondent No.1‟s
EL. PETITION No. 5/2009 Page 32 of 79
pleadings indisputably established these facts. As such there
are no defects, as far as paras (g) and (h) of the second set are
concerned. In this view of the matter, all complaints regarding
Annexures „C‟ and „D‟ with regard to the scooter photographs
etc., were baseless, and it stands established on record that the
respondent No.1 did receive the documents mentioned in
paragraphs (g) and (h) of the second set.
30. It was next contended by Mr. Mittal that the details of the
second set as set out in the application also prove that the
complaint as made was only an afterthought, baseless and
concocted. He contended that Mr. Phoolka had highlighted the
fact that the photographs as filed with the original petition had
not been received by the respondent No.1 or at any rate an
incomplete set of the said photographs had been received.
However, had he not received such copies and records
alongwith the first set from the Registry, he would have
immediately made complaint, but there is no such averment
made in the application. This by itself demolishes the case of
the respondent No.1. Thus, it is pointed out that the defects
EL. PETITION No. 5/2009 Page 33 of 79
even according to the respondent No.1 were those only, which
were contained in paras (a) to (e) and (h) of the first set, [para
(h) in the first set is para (f) in the second set] as in any case,
as regards paras (f) and (g) of the first set, there was no such
grievance by the respondent No.1 in the second set.
31.Viewed in the above light, Mr. Mittal contended that the only
surviving alleged deficiencies in the copy furnished to the
respondent No.1, according to the respondent No.1 himself, are
the following:-
―(a) Page18 – Para 19 of the petition, there are
blanks. No receipt number or date is mentioned.
(b) Page 18 – No date is given at the bottom as
well as it is no where stated that it was signed by the
counsel.
(c) The verification of the petition is not
verification in accordance with law. No number of
paragraphs have been mentioned and the date also
not mentioned. Memo of parties as well as index does
not contain the signature of the counsel and even the
date is kept blank.
(d) Page 14 – Para 11 – About 10 lines from the
th
bottom and 14 line from the top of the page are not
legible. The copy supplied is not true copy of the
petition as filed in the court.
EL. PETITION No. 5/2009 Page 34 of 79
(e) Similarly, at page 15, about 4 lines from top to the
th
10 line onwards are not legible and there is no
attestation at page 15 as attested true copy. The copy
supplied is not true copy of the petition as filed in the
court.
(f) At page 19, columns of para and date are not
filled in the verification clause.
32.The question, according to Mr. Mittal, which arises for
consideration in the present case, therefore, is whether the
aforesaid deficiencies in the copy supplied to the respondent
No.1 by the counsel for the petitioner are of such a nature as to
entail dismissal of the Election Petition under Section 86 of the
Act for non-compliance with the provisions of Section 81 (3) of
the Act.
33. In the aforesaid context, a number of decisions of the Hon‟ble
Supreme Court were referred to and relied upon by the learned
counsel for the petitioner, being the following:-
(i) T.M. Jacob Vs. C. Poulose AIR 1999 SC 1359;
(ii) Ram Prasad Sharma Vs. Mani Kumar Subba (2003) 1
SCC 289;
EL. PETITION No. 5/2009 Page 35 of 79
(iii) Sri T. Phunzathang v. Sri Hangkhanlian & Ors. JT
2001 (7) SC 439;
(iv) Chandrakant Uttam Chodankar Vs. Dayanand Rayu
Mandrakar & Ors. AIR 2005 SC 547;
(v) Bhagwan Rambhau Karankal v. Chandrakant
Batesingh Raghuwanshi & Ors. JT 2001 (5) SC 245.
34.The common thread running through all these cases is that an
Election Petition cannot be dismissed at the threshold on the
ground of any technical lacunae or defects so as to abort or
frustrate the endeavour of the petitioner to bring to trial the
issues relating to corrupt practices in the election. This is quite
obviously on the premise that this country being a democracy,
free, fair and fearless elections are intended to maintain the
vibrancy of the democratic process and cannot be sacrificed at
the altar of superficial technicalities.
35.The learned counsel for the petitioner also emphasized that the
copy of the petition having been furnished to the returned
candidate by the Registry of this Court, there is presumption
under Section 114 (2) of the Evidence Act that the copy
EL. PETITION No. 5/2009 Page 36 of 79
furnished was in order. Reference in this context was made to
the judgment of the Supreme Court in the case of Chandrakant
Uttam Chodankar (supra), wherein it was unequivocally laid
down that the presence of endorsement of the Registry of High
Court that true copies were filed at the time of presentation of
the Election Petition and that “Election Petitions were in order”
raises presumption that true copies were served upon the
respondents. The onus is upon the respondent to adduce
evidence and bring on record adequate material so as to rebut
the presumption of correctness of official work having been
done in the regular course of business. Where no such material
to the contrary is brought on record by the respondent, the
petition is not liable to be rejected for non-compliance of
Section 81(3). Significantly also, in this case, the Court
observed:
―How an incorrect copy came in possession of the
learned Advocate of the First Respondent herein is
not a matter which would fall for our
determination but we can record our satisfaction
that sufficient number of true copies must be
presumed to have been filed having regard to the
endorsement made by the Assistant Registrar.‖
EL. PETITION No. 5/2009 Page 37 of 79
It further observed:-
―It is now well-settled that the statutory
requirements of Sections 81 and 83 would be met if
substantial compliance thereof is made.‖
In paragraphs 41, 42 and 45 of the said judgment, it was
observed as under:-
―41. Concededly, the officers of the High Court are
required to perform administrative functions one of
which is to scrutinize the election petition so as
ascertain as to whether the petitions filed before
the Court are free from any defect. Such an official
act would draw a presumption of having been
performed in ordinary course of business in terms
of Section 114(2) of the Indian Evidence Act.
42. In Jugal Kishore Patnaik vs. Ratnakar Mohanty
(AIR 1976 SC 2130), Khanna, J. speaking for a 3-
Judge Bench raised a presumption of correctness
as regard endorsement made by an Officer of the
Court in respect of the election petition stating:
"We see no cogent ground to question the
correctness of this endorsement which clearly lends
support to the inference that the copy filed with the
petition had been attested by the respondent and
that the petition did not suffer from lack of
compliance with the procedural requirement."
45. The burden to prove that the election petition
was not maintainable or the same should be
dismissed at the threshold lay on the First
EL. PETITION No. 5/2009 Page 38 of 79
Respondent. The said burden on the First
Respondent became heavier having regard to the
fact that the Registry of the High Court
categorically arrived at a finding that the said
election petition did not contain any detect. A
wrong principle of law as regard burden of proof
as also drawing a presumption which in law could
not have been raised and failure to raise a
presumption in terms of Section 114(e) of the
Evidence Act the High Court must be held to have
committed a manifest error. It posed a wrong
question and thus, misdirected itself in law.‖
36. This court having heard the detailed submissions of Mr. H.S.
Phoolka, the learned senior counsel for the applicant and Mr.
K.C. Mittal, the learned counsel for the non-applicant, before
adverting to the law laid down by the Hon‟ble Supreme Court
deems it appropriate to enumerate a few facts which stand
established from the record:-
(i) On the index of the Election Petition, there is an
endorsement to the following effect:-
“This petition is present by Dr. Anita Babbar alongwith
Mr. Vivek Srivastava, Advocate alongwith 22 pages duly
self attested.
Sd/-
21.1.09
AOJ/Filing”
EL. PETITION No. 5/2009 Page 39 of 79
This shows that the petitioner was present at the time of
the presentation of the petition on 21.1.09.
(ii) On the index itself, there is a caveat report dated 22.1.09
to the effect that no caveat had been received in this case.
(iii) At the back of page No. „D‟ containing part of the memo
of parties, there is stamp of filing dated 22.01.09 of the
Deputy Registrar with the filing number as 13329. This
shows that the Election Petition had been entered at
serial number 13329 of the special register maintained
for the aforesaid purpose in accordance with the Rules.
(iv) The file of office notings on its very first page contains
the following endorsement:-
“The case has been posted for date: 27-JAN-09
The petition/appeal being in order, may be registered.
SCRU Assistant: SH.DHARMENDER JOSHI
Signature
Dealing Assistant
Sd/-
AOJ/AR (Filing)
22.01.2009”
EL. PETITION No. 5/2009 Page 40 of 79
This shows that there is no office noting to the effect that
the requisite number of copies duly attested by the
petitioner were not furnished by the petitioner and
further shows that no office objection was raised as to
the manner of filing or presentation of the Election
Petition in the instant case.
(v) On May 20, 2009, the respondent No.1 entered
appearance for the first time through counsel, Mr. P.K.
Rawal, Advocate, who made no grievance either of the
fact that the copy had not been furnished to him by the
Registry or that an incomplete copy had been furnished.
(vi) The case was thereafter adjourned to 31.08.09 for the
service of the unserved respondents, on which date on an
application under Section 5 of the Limitation Act read
with Section 151 of Code of Civil Procedure filed on
behalf of the respondent No.1, this Court condoned the
delay in filing the written statement on the ground that it
was stated in the application that incomplete copy was
th
furnished to the respondent No.1 on 6 July, 2009,
EL. PETITION No. 5/2009 Page 41 of 79
thereby rendering it incumbent on the respondent No.1 to
inspect the Court records.
(vii) A perusal of the aforesaid application for condonation of
delay, being IA No.388/2010, shows that this was the
first time that the respondent No.1 chose to bring on
record the fact that there were deficiencies in the copy
furnished to him by the petitioner by alleging in the
application that the complete set of the petition was not
supplied to the respondent. It was further asserted in the
said application that this fact was pointed out by the
counsel for the respondent to the counsel for the
petitioner who promised to supply a complete set, but
even the second set of the petition and annexures “were
not ditto copy of the Election Petition and Annexures, as
filed in the Court.”
(viii) A perusal of the written statement shows that the alleged
deficiencies in the two sets of the petition were
enumerated therein in the preliminary objections with the
assertion that non-compliance of the mandatory
EL. PETITION No. 5/2009 Page 42 of 79
requirements like attestation, notarization etc. on the
copies furnished to the respondent amounts to an
omission of vital nature rendering the petition not
maintainable.
(ix) The order dated 21.02.2011 passed in the present
application shows that in the midst of arguments, Mr.
Phoolka, the learned senior counsel for the applicant
made a statement confining his prayer in the present
application for rejection of the Election Petition to non-
compliance with the provisions of Section 81(3) and 117
of the Representation of the People Act, 1951. He
further clarified that all references made by him to
Section 83(1) and (2) of the Act were not being pressed
for the purpose of the present application.
(x) The order dated 23.02.2011 passed in the present
application further shows that on the said date, Mr.
Phoolka stated on instructions that he did not press at
this stage the objection taken by him in paragraph 10 of
the application relating to Form No.25, which pertained
EL. PETITION No. 5/2009 Page 43 of 79
to the affidavit not being in consonance with the said
Form as well as Rule 94 A.
(xi) As noted hereinabove, in view of the fact that a second
set of papers was furnished to the respondent No.1, the
only surviving deficiencies in the copy furnished to the
counsel for respondent No.1, as alleged, are those
enumerated in paragraphs (a) to (f) of the second set of
documents. The alleged deficiencies set out in
paragraphs (g) and (h) in the second set do not find
mention in the first set and presumably the documents
mentioned in paragraphs (g) and (h) must have been
furnished to the respondent No.1 with the first set.
Likewise, paragraph (g) in the first set does not find
mention in the second set and presumably this deficiency
had been removed by the petitioner furnishing to the
respondent No.1 the first page of the affidavit and filling
up the blanks in the second page of the affidavit. Para
(h) of the first set as pointed out is the same as para (f) of
the second set.
EL. PETITION No. 5/2009 Page 44 of 79
37.With the aforesaid factual background, it is deemed appropriate
to reproduce the relevant provisions of law having a bearing on
the present petition.
38.The procedure for presentation of an Election Petition to the
High Court is laid down in Chapter II of the Act, which
contains the provisions extracted below:-
“80. Election petitions .—No election shall be called in
question except by an election petition presented in
accordance with the provisions of this Part.
80A. High Court to try election petitions .—(1) The Court
having jurisdiction to try an election petition shall be the
High Court.
(2) Such jurisdiction shall be exercised ordinarily by a
single Judge of the High Court and the Chief Justice shall,
from time to time, assign one or more Judges for that
purpose:
Provided that where the High Court consists only of one
Judge, he shall try all election petitions presented to that
Court.
(3) The High Court in its discretion may, in the interests of
justice or convenience, try an election petition, wholly or
partly, at a place other than the place of seat of the High
Court.
81. Presentation of petitions .—(1) An election petition
calling in question any election may be presented on one
or more of the grounds specified in [sub-section (1)] of
EL. PETITION No. 5/2009 Page 45 of 79
section 100 and section 101 to the [High Court] by any
candidate at such election or any elector [within forty-five
days from, but not earlier than, the date of election of the
returned candidate, or if there are more than one returned
candidate at the election and the dates of their election are
different, the later of those two dates
Explanation.—In this sub-section, "elector" means a
person who was entitled to vote at the election to which the
election petition relates, whether he has voted at such
election or not.
[] *
(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.
83. Contents of petition .—(1) An election petition—
(a) shall contain a concise statement of the material facts
on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice
that the petitioner alleges, 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
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908 (5
of 1908) for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt
practice, the petition shall also be accompanied by an
EL. PETITION No. 5/2009 Page 46 of 79
affidavit in the prescribed form in support of the allegation
of such corrupt practice and the particulars thereof.]
(2) Any schedule or annexure to the petition shall also be
signed by the petitioner and verified in the same manner as the
petition.
39.Chapter III of the Act which deals with trial of election
petitions, contains Section 86 which reads as follows:
86. Trial of election petitions .—(1) The High Court shall
dismiss an election petition which does not comply with the
provisions of section 81 or section 82 or section 117.
Explanation.—An order of the High Court dismissing an
election petition under this sub-section shall be deemed to
be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been
presented to the High Court, it shall be referred to the
Judge or one of the Judges who has or have been assigned
by the Chief Justice for the trial of election petitions under
sub-section (2) of section 80A.
(3) Where more election petitions than one are presented
to the High Court in respect of the same election, all of
them shall be referred for trial to the same Judge who may,
in his discretion, try them separately or in one or more
groups.
(4) Any candidate not already a respondent shall, upon
application made by him to the High Court within fourteen
days from the date of commencement of the trial and
subject to any order as to security for costs which may be
EL. PETITION No. 5/2009 Page 47 of 79
made by the High Court, be entitled to be joined as a
respondent.
Explanation.—For the purposes of this sub-section and of
section 97, the trial of a petition shall be deemed to
commence on the date fixed for the respondents to appear
before the High Court and answer the claim or claims
made in the petition.
(5) The High Court may, upon such terms as to costs and
otherwise as it may deem fit, allow the particulars of any
corrupt practice alleged in the petition to be amended or
amplified in such manner as may in its opinion be
necessary for ensuring a fair and effective trial of the
petition, but shall not allow any amendment of the petition
which will have the effect of introducing particulars of a
corrupt practice not previously alleged in the petition.
(6) The trial of an election petition shall, so far as is
practicable consistently with the interests of justice in
respect of the trial, be continued from day to day until its
conclusion, unless the High Court finds the adjournment of
the trial beyond the following day to be necessary for
reasons to be recorded.
(7) Every election petition shall be tried as expeditiously
as possible and endeavour shall be made to conclude the
trial within six months from the date on which the election
petition is presented to the High Court for trial.‖
40.The Delhi High Court has also framed a set of Rules called
Election Rules vide notification No. 21 dated 28.04.1967 and
published in Delhi Gazette, Part II, Section 18 dated
EL. PETITION No. 5/2009 Page 48 of 79
18.05.1967. The relevant provisions having a bearing on the
present petition are extracted below:-
― Rule 5. The election petition along with the
necessary copies may be presented at any time during
the Court Hours. Immediately after it is presented,
the date of presentation shall be endorsed thereon,
and the petition shall be entered in the special
register maintained for the registration of election
petitions.
Rule 6. After the petition is presented, the party
or Advocate shall be asked to attend the office on the
third day from the date of the presentation to remove
objections, if any. An undertaking in writing will be
obtained from the party or Advocate to remain
present in the office on the date appointed. The
petitioner shall furnish his address preferably in
Delhi or Simla, as the case may be, where any
communication may be addressed to or served on
him.
Rule 7. The office shall examine the petition
with a view to see whether it is in conformity with the
requirements of law and the rules applicable to the
same, and if it is in conformity with law and the rules,
raise objections which could be removed by the party
or the Advocate concerned. These objections should
be brought to the notice of the party or the Advocate
on the date fixed for attendance under Rule 6 and
such objections shall be removed, subject to the
orders of the Court, if any, within two days thereafter.
Rule 8. Immediately after the time fixed for the
removal of objections has expired, the petition shall
be placed before the Court for such order, as may be
required to be passed under Section 86 of the Act. If
EL. PETITION No. 5/2009 Page 49 of 79
the petition is not dismissed under Section 86(1) of
the Act, a summon on direction of the Court shall be
issued to the respondents to appear before the High
Court on a fixed date and answer the claim or claims
made in the petition. Such date shall not be earlier
than three weeks from the date of the issue of the
summons. The summons shall be for written
statement and settlement of issues.
41.It is borne out from the aforesaid Rules that after the
presentation of an Election Petition in this Court, the Registry
of this Court, under the aforesaid Rules framed by the High
Court, scrutinizes the Election Petition. As noted above, Rule
5 requires that the Election Petition alongwith the necessary
copies may be presented at any time during Court hours, which
is required to be endorsed by the Registry and entered in a
special register maintained for the registration of the Election
Petitions. According to Rule 6, the date is fixed for removal of
the objections, if any, while under Rule 7 the Registry is
required to thoroughly examine the petition with a view to see
whether it is in conformity with the requirements of law and
the Rules applicable to the same. This Rule also provides that
if the petition is not in conformity with the law and the Rules
EL. PETITION No. 5/2009 Page 50 of 79
framed by the High Court, the Registry is required to raise
objections, which can be removed by the party or the Advocate.
According to Rule 8, the petition is required to be placed before
the Court for such orders as may be required to be passed. The
Court may dismiss the petition under Section 86 (1) of the Act
if the objections have not been removed by the party presenting
the petition and if there are no objections, the Court shall issue
summons to the respondents to appear before it on a date to be
fixed.
42. A look now at the legal decisions governing the field of
election law. Before adverting to the case of T.M. Jacob
(supra) , which is locus classicus and has been strongly relied
upon by the counsel for the petitioner, it may be noted that the
Constitution Bench in the said case has re-affirmed the law as
stated by the earlier two Constitution Benches in Murarka
Radhey Shyam Ram Kumar Vs. Roop Singh Rathore & Ors
1964 SCR (3) 573 and Ch. Subbarao v. Member, Election
Tribunal, Hyderabad and Ors. 1964 SCR (3) 214 and also
explained and expanded the principles laid down in the said
EL. PETITION No. 5/2009 Page 51 of 79
decisions. It is accordingly proposed to refer first to the said
two decisions.
43.In Murarka’s case (supra) , the two main objections raised by
the returned candidate were that there was non-compliance
with Section 81(3) of the Act since copy of the Election
Petition served on the respondent was not true copy of the
original filed before the Election Tribunal nor was it properly
attested to be a true copy under the signatures of the petitioner.
The other ground was with regard to the non-compliance with
Section 83 of the Act since the affidavit in respect of corrupt
practices was not in the prescribed form. This court is not
concerned with the second objection, for, as noted above, the
provisions of Section 83 are not being pressed into service at
this stage. As regards the first objection, the Court held as
under:-
―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
EL. PETITION No. 5/2009 Page 52 of 79
effect of 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
Stroud‘s 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‖.
It was further 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
EL. PETITION No. 5/2009 Page 53 of 79
dismissing the election petition under that sub-section by
reason of any failure to comply with the provisions of
section 81………..‖
44.In Ch. Subbarao’s case (supra), the question for consideration
before the Constitution Bench was whether the omission of the
words “true copy” in the copies, which were admittedly exact
copies of the petition, constituted non-compliance with Section
81(3) so as to render the petition liable to be rejected. In this
case as in Murarka’s case (supra) , the petition was
accompanied with the requisite number of copies specified in
Section 81(3), but what was urged was as regards certain
defects in the copies filed. The Court observed:
―These defects fell into two types. First there
were two matters which it was stated rendered
the copies filed not ―true copies‖. If the
expressions ―copy‖ or ―true copy‖ were read
as exact copies of the original, the copies filed
did not satisfy that test. The two defects were:
(1) The original petition contained the
signature of the petitioner at the foot of the
petition as required by Section 83(1)(c) of the
Act. In the copy filed there was no copy of this
signature. To that extent therefore the copy
was not an exact copy. (2) The second matter
under this head was that the verification in the
copy served on the appellant did not exactly
correspond to that in the original in that in the
EL. PETITION No. 5/2009 Page 54 of 79
latter one of the paragraphs was stated to be
true to the personal knowledge of the petitioner
while in the former that paragraph was omitted
from this group. The other type of defect which
was claimed to constitute non-compliance with
Section 81(3) was that the words ―true copy‖
with the signature of the petitioner underneath
were not put down in one of the annexures to
the petition, copies of which were annexed to
the copies of the petition filed.‖
Following Murarka’s case (supra), the Court held as under:-
―We do not however consider that there is really need
for so much refinement when one has to look at whether
there is a substantial compliance with the requirement of
this provision. If the signatures now found on the copies
were intended to authenticate the document to which it is
appended viz. the copy, it would only mean that the copy
did not reproduce the signature in the original. There is
no compelling necessary to hold that the signatures were
merely intended to be a copy of those on the original in
order to spell out a non-compliance with S.81(3), seeing
that a signature in original was not needed on the copy
and a writing copying out the name of the signatory
would suffice……‖
45. At this stage, it will be useful to refer to the judgment in the
case of Dr. Shipra (supra) , which has been strongly relied
upon by the learned counsel for the respondent No.1 and to the
judgment in Harcharan Singh Josh’s case (supra) , the
relevant portion of which is quoted in the application filed by
EL. PETITION No. 5/2009 Page 55 of 79
the respondent No.1 as well as to the judgment in Anil R.
Deshmukh vs. Onkar N. Wagh and Others 1999 (2) SCC 205,
which was specifically approved in T.M. Jacob’s case and in
which the Supreme Court examined the judgment in Dr.
Shipra’s case in an almost identical fact situation.
46.In Dr. Shipra’s case, 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. On appeal to the Supreme Court, the Supreme Court
held that the principle of substantial compliance was
inapplicable. It observed that:
―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. Section 81, 83(1)(c) and 86
EL. PETITION No. 5/2009 Page 56 of 79
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
same, 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.‖
47.In the case of Anil R. Deshmukh (supra) , one of the defects
pointed out to press for dismissal of the Election Petition was
the absence of the endorsement of the 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 the absence of such endorsement in the copy supplied to
the respondent, it could not be said to be a true copy. Negating
the aforesaid contention and taking note of the fact that correct
copies of the affidavit containing endorsement of verification,
etc. had been served on the respondent as well as his counsel
before the arguments were heard, the Supreme Court held that
the absence of notarial endorsement in the copies furnished to
EL. PETITION No. 5/2009 Page 57 of 79
the respondent did not attract the penalty of dismissal of the
Election Petition on the ground of non-compliance with Section
81 or Section 83 of the Act. As it is clear, the findings
rendered in Anil R. Deshmukh’s case (supra) were rendered
by the Supreme Court in an almost identical fact situation as in
Dr. Shipra’s case. These were further specifically approved by
the Constitution Bench in T.M. Jacob’s case.
48.In T.M. Jacob’s case (supra) , a Division Bench of the Supreme
Court finding that the matter required reconsideration by a
Larger Bench in view of the reliance placed by the learned
counsel for the appellant upon the decision in Dr. Shipra’s
case (supra) ordered that the papers be laid before the Chief
Justice for constitution of a Larger Bench. The Constitution
Bench, thus, examined the question whether the word “copy”
occurring in Section 81(1) of the Act meant an absolutely exact
copy or whether it meant a copy so true that nobody could by
any possibility misunderstand it, and held that the matter was
no longer res integra in view of the fact that the test to
determine the same had been laid down in Murarka’s case
EL. PETITION No. 5/2009 Page 58 of 79
(supra) and a similar view had been reiterated by another
Constitution Bench in Ch. Subbarao’s case (supra). The
Constitution Bench in T.M. Jacob’s case (supra) further held:-
―40. 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
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.
41. 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.
42. We have already referred to the defect which has
been found in the copy of the affidavit served on the
appellant in the present case. There is no dispute that the
copy of the affidavit served on the appellant contained
the endorsement to the effect that the affidavit had been
duly signed, verified and affirmed by the election
petitioner before a Notary. Below the endorsement of
attestation, it was also mentioned: Sd/-Notary. There,
however, was an omission to mention the name and
particulars of the Notary and the stamp and seal of the
EL. PETITION No. 5/2009 Page 59 of 79
Notary in the copy of the affidavit served on the
appellant. There was no other defect pointed out either
in the memo of objection or in C.M.P. No. 2903 of 1996
or even during the course of arguments in the High
Court or before us. Could this omission be treated as an
omission of a vital or material nature which could
possibly mislead or prejudice the appellant in
formulating his defence? In our opinion No. The
omission was inconsequential. By no stretch of
imagination can it be said that the appellant could have
been misled by the absence of the name and seal or
stamp of the Notary on the copy of the affidavit, when
endorsement of attestation was present in the copy which
showed that the same had been signed by the Notary. It
is not denied that the copies of the Election Petition and
the affidavit served on the appellant bore the signatures
of respondent No. 1 on every page and the original
affidavit filed in support of the Election Petition had
been properly signed, verified and affirmed by the
election petitioner and attested by the Notary. There has,
thus, been a substantial compliance with the
requirements of section 81(3) read with the proviso to
section 83(1)(c) of the Act. Defects in the supply of true
copy under section 81 of the Act may be considered to be
fatal, where the party has been misled by the copy on
account of variation of a material nature in the original
and the copy supplied to the respondent. The prejudice
caused to the respondent in such cases would attract the
provisions of section 81(3) read with section 86(1) of the
Act. Same consequence would not follow from non-
compliance with Section 83 of the Act.
43. We are unable to agree with Mr. Salve that since
proceedings in election petitions are purely statutory
proceedings and not ―civil proceedings‖ as commonly
understood, there is no room for invoking and importing
the doctrine of substantial compliance i to section 86(1)
read with section 81(3) of the Act. It is too late in the day
EL. PETITION No. 5/2009 Page 60 of 79
to so urge. The law as settled by the two Constitution
Bench decisions of this Court referred to above is by
itself sufficient to repel the argument of Mr. Salve. That
apart, to our mind, the Legislate intent appears to be
quite clear, since it divides violations into two classes-
those violations which would entail dismissal of the
election petition under section 86(1) of the Act like non-
compliance with section 81(3) and those violations
which attract section 83(1) of the Act i.e. non-
compliance with the provisions of section 83. It is only
the violation of Section 81 of the Act which can attract
the application of the doctrine of substantial compliance
as expounded in Murarka Radhey Shyam (AIR 1964 SC
1545) and Ch. Subbarao‘s cases (AIR 1964 SC 1027).
The defect of the type provided in Section83 of the Act,
on the other hand, can be dealt with under the doctrine
of curability, on the principles contained in the Code of
Civil Procedure……
44. ……………………………
45. In our opinion it is not every minor variation in form
but only a vital defect in substance which can lead to a
finding of non-compliance with the provisions of Section
81(3) of the Act with the consequences under Section
86(1) to follow. The weight of authority clearly indicates
that a certain amount of flexibility is envisaged. While an
impermissible deviation from the original may entail the
dismissal of an election petition under Section 86(1) of
the Act, an insignificant variation in the true copy cannot
be construed as a fatal defect. It is, however, neither
desirable nor possible to catalogue the defects which
may be classified as of a vital nature or those which are
not so. It would depend upon the facts and circumstances
of each case and no hard and fast formula can be
prescribed. The tests suggested in Murarka Radhey
Shyam‘s case (AIR 1964 SC 1545)(supra) are sound
tests and are now well settled. We agree with the same
EL. PETITION No. 5/2009 Page 61 of 79
and need not repeat those tests. Considered in this
background, we are of the opinion that the alleged defect
in the true copy of the affidavit in the present case did
not attract the provisions of Section 86(1) of the Act for
alleged non-compliance with the last part of Section
81(3) of the Act and that there had been substantial
compliance with the requirements of Section 81(3) of the
Act in supplying ‗true copy‘ of the affidavit to the
appellant by the respondent.
49.Learned senior counsel for the respondent No.1 contended
before this court that the judgment in Dr. Shipra’s case (supra)
has not been overruled by the Constitution Bench in T.M.
Jacob’s case (supra) and since the facts involved in the case of
Dr. Shipra’s case (supra) and Harcharan Singh Josh’s case
(supra) were para materia with the facts involved in the
present case, the ratio laid down in the aforesaid two decisions
was squarely applicable to the present case. This Court is
unable to agree with the aforesaid contention for the reason that
the Constitution Bench in T.M. Jacob’s case (supra) in clear
and unequivocal terms held that the opinion expressed in the
Dr. Shipra’s case was applicable to the “fact situation” of that
case only.
EL. PETITION No. 5/2009 Page 62 of 79
50.Following the judgment in Jacob’s case, a three-Judge Bench
of the Supreme Court in Bhagwan Rambabu’s case, relied
upon by the petitioner‟s counsel, held as follows:-
―The returned candidate did not point out either in his
written statement or in his application filed on 22.9.1998
as to what was the variation, if any, between the original
and the copy of Election Petition supplied to him and
how was he prejudiced. Merely, because the words
―true copy‖ were not endorsed on each page of the copy
of the Election Petition, though the copy otherwise is a
true copy and bears the signatures of the election
petitioner on each page of the copy, it cannot be said
that there has been a total non-compliance with the
provisions of Section 81(3) of the Act. In fact, there was
substantial compliance with the requirements of Section
81(3) of the Act.‖
51.In the case of Sri T. Phunzathang (supra) , which too was
relied upon by the counsel for the petitioner, the copy supplied
by the Election Petitioner to the respondent did not contain the
verification or affirmation by Oath Commissioner or prescribed
authority, though such affirmation or verification had been
made in the original affidavit filed before the High Court.
Relying upon the two judgments of the Supreme Court in Dr.
Shipra’s case (supra), and Harcharan Singh Josh’s case
(supra) , the High Court dismissed the Election Petition under
EL. PETITION No. 5/2009 Page 63 of 79
Section 86(1) on the ground of non-compliance with sub-
section (3) of Section 81 read with Section 83(1)(c) of the Act.
On appeal, a three-Judge Bench of the Supreme Court after re-
visiting the law on the subject held that the petition could not
have been dismissed on the aforesaid ground because by such
omission the copy supplied did not cease to be the “true copy”
and there was 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 omission was only a curable
irregularity. In coming to the aforesaid conclusion, the
Supreme Court relied upon the decision of the Constitution
Bench in T.M. Jacob’s case (supra) . It further held:-
― It is true that in Josh’s case , this Court extended the
principle laid down in Dr. Shipra’s case but then this
Court in Jacob’s case in clear terms held that the
application of the principle found in Dr. Shipra’s case is
confined only to the facts of that case; meaning thereby
that it is applicable only in cases 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. Shipra’s case to the
facts of Josh’s case is clearly impermissible. In that view
of the matter, the decision in Josh’s case being contrary
to Jacob’s case , the same cannot be construed as a good
EL. PETITION No. 5/2009 Page 64 of 79
law any more. Therefore, the High Court in the instant
case could not have relied on Josh’s case to dismiss the
election petition.
It also summed up the law laid down in T.M. Jacob’s case
(supra) as under:-
―(i) The object of serving a ―true copy‖ of an
election petition and the affidavit filed in
support of the allegations of corrupt practice of
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 of substance and
not of form. (para 35)
(ii) The test to determine whether a copy
was a true one or not was to find out whether
any variation from the original was calculated
to mislead a reasonable person. (para 33)
(iii) The word ―copy‖ does not mean an
absolutely exact copy. It means a copy so true
that nobody can by any possibility
misunderstand it. (para 34)
(iv) Substantial compliance with Section 81
(3) was sufficient and the petition could not be
dismissed, in limine, under Section 86 (1)
where there had been substantial compliance
with the requirement of Section 81 (3) of the
Act. (Para 34)
(v) There is a distinction between non-
compliance with the requirement of Section 81
EL. PETITION No. 5/2009 Page 65 of 79
(3) and Section 83. A substantial compliance
with the requirements of Section 81 (3) read
with the proviso to Section 83 (1) of the Act is
enough. Defects in the supply of true copy
under Section 81 of the Act may be considered
to be fatal, where the party has been misled by
the copy on account of variation of a material
nature in the original and the copy supplied to
the respondent. The prejudice caused to the
respondent in such cases would attract the
provision of Section81 (3) read with Section 86
(1) of the Act. The same consequence would
not follow from non-compliance with Section
83 of the Act. (Para 37)
(vi) The argument that since proceedings in
election petitions are purely statutory
proceedings and not civil proceedings as
commonly understood, there is no room for
invoking and importing the doctrine of
substantial compliance into Section 86 (1) read
with Section 81 (3) of the Act, cannot be
accepted and has to be repelled. (Para 38)
(vii) It is only the violation of Section 81 of
the Act which can attract the application of the
doctrine of substantial compliance as
expounded in Murarka Radhey Shyam and
Ch. Subbarao cases . The defect of the type
provided in Section 83 of the Act, on the other
hand, can be dealt with under the doctrine of
curability, on the principles contained in the
Code of Civil Procedure. This clearly emerges
from the scheme of Sections 83(1) and 86 (5)
and of the Act. (Para 38)
(viii) A certain amount of flexibility is
envisaged. While an impermissible deviation
EL. PETITION No. 5/2009 Page 66 of 79
from the original may entail the dismissal of an
election petition under Section 86 (1) of the Act,
an insignificant variation in the true copy
cannot be construed as a fatal defect. It is,
however, neither desirable nor possible to
catalogue the defects which may be classified
as of a vital nature or those which are not so. It
would depend upon the facts and circumstances
of each case and no hard and fast formula can
be prescribed. The tests suggested in Murarka
Radhey Shyam case are sound tests and are
now well settled.‖
52.In the case of Ram Prasad Sharma (supra) , which also was
relied upon by the petitioner‟s counsel, after referring to the
entire gamut of case law on the subject, the Supreme Court
observed:
―16. From the various decisions noted above, it
clearly emerges out that the correctness of the
decision in Dr. Shipra's case was doubted and
it has been held by the Constitution Bench in
the T.M. Jacob case that it was confined to the
facts of that case. therefore it cannot be said
that Dr. Shipra case lays down any proposition
of law of a binding nature. The two decisions of
the Constitution Benches, namely, Radhey
Shyam Murarka and T.M. Jacob hold the field
as well as the decision in the case of T.
Phungzathang . The law as laid down in the
above noted decisions would be the guiding
precedents in deciding a question relating to a
true copy of an affidavit.
EL. PETITION No. 5/2009 Page 67 of 79
17. The purpose of the provision to furnish a
true copy of the petition is not to frustrate the
cause of the petitioner approaching the Court
by adhering strictly to technicalities of little
consequence. On the other hand the anxiety is
that the respondent must have a correct idea of
the allegations of corrupt practices made
against him with some responsibility and that
he may not be misled in any material respect by
furnishing of a copy of the affidavit which may
not be a correct copy having vital variation
from the original. It is true that in the matters
relating to elections and election petitions,
strict compliance of the legal provisions is
necessary and full care is to be taken to see that
rights of an elected representative are not
lightly disturbed and rightly so. But an election
petition is not to be thrown at the threshold on
the slightest pretext of one kind or the other
which may or may not have any material
bearing on the factors to be strictly adhered to
in such matter. It is substance not form which
would matter. If it is permitted otherwise, the
returned candidate would only be in the look
out microscopically for any kind of technical
lacuna or defect to abort the endeavour of the
petitioner to bring to trial the issues relating to
corrupt practices in the elections. The purpose
of the law on the point cannot be to allow the
returned candidate to avoid the trial of the
issues of corrupt practices raised against him
on the basis of any little defect which may not
result in any vital variation between the
original and the true copy so as to have the
effect of misleading the returned candidate. As
it is, the prevailing situation of elections and
EL. PETITION No. 5/2009 Page 68 of 79
practices often said to be adopted now and then
and here and there does not always give a very
happy picture. Free, fair and fearless elections
is ideal to be achieved and not to be defeated
for the sake of pretentious and frivolous
technicalities.‖
53.Adverting now to the legal decisions relied upon by Mr.
Phoolka, the learned counsel for the petitioner, which have
been referred to hereinbefore, the same are clearly
distinguishable on facts and/or have been considered in
subsequent decisions of the Hon‟ble Supreme Court and held to
be no longer good law:
(i) M. Karunanidhi’s case (supra) was elaborately
considered by a three-Judge Bench of the Supreme
Court in A.Madan Mohan Vs. K. Chandrasekhara
AIR 1984 SC 871 . In this case, it was vehemently
contended that the schedules and other documents
forming an integral part of the petition should have
been served on the returned candidate and in the
absence of the such compliance, the petition was
liable to be dismissed in limini under Section 86 of
EL. PETITION No. 5/2009 Page 69 of 79
the Act. The Supreme Court affirming the decision
of the High Court however held that all that was
necessary was done in this case and there was no
requirement that the documents or the schedules
should also have been served on the petitioner
because if they were filed in the Court, it was always
open to the petitioner to inspect them and find out the
allegations made in the petition. Opining that the
documents or the schedules were in no sense an
integral part of the petition, being merely evidence in
the case, the Court held that copies of such annexures
were not required to be served on the respondent.
(ii) In K.K. Shukla’s case (supra) , the Registry of the
High Court had found nine defects and raised
objections in respect of the said nine defects,
including that of the Election Petition not being
accompanied by as many copies thereof as there were
respondents mentioned in the petition, and attested by
the petitioner under his own signatures to be true
EL. PETITION No. 5/2009 Page 70 of 79
copies of the petition. With the aforesaid objections,
the Election Petition was put up for necessary orders
before the Court. This case is clearly distinguishable
as in the present case it is clear from the record that
no defects were pointed out or objections raised by
the Registry. It is not even the case of the returned
candidate that the Election Petition was not
accompanied by the requisite number of copies.
(iii) In Sasidharan’s case (supra) , the Supreme Court was
dealing with the video cassette which formed an
integral part of the election petition, copy whereof
had not been furnished to the first respondent along
with the election petition. In the present case there is
not even an averment that any video cassette was
used in the constituency, which formed an integral
part of the petition.
(iv) The case of Mulayam Singh Yadav is also
distinguishable from the present case as clearly the
defect related to the presentation and filing of the
EL. PETITION No. 5/2009 Page 71 of 79
original petition and was not with reference to the
copies furnished as in the present case.
(v) The case of Mithilesh Kumar Pandey contained a
large number of mistakes in respect of the names of
the persons through whom corrupt practices were
alleged to have been practised during the election.
This case clearly has no bearing on the facts of the
present case, which is for technical defects in the
copies furnished to the returned candidate.
(vi) In Regu Mahesh’s case (supra) , the election petition
was dismissed on the ground that the verification to
the petition and the affidavit accompanying the
petition did not conform to the requirement of the
statute. In the instant case, the averments in respect
of Section 83 and Form 25 are not being pressed at
this stage.
(vii) The cases of Jeet Mohinder Singh (supra), Baldev
Singh Mann (supra) and Ram Sukh (supra) relate to
EL. PETITION No. 5/2009 Page 72 of 79
the principles of election jurisprudence, which are
admittedly well settled.
(viii) Dr. (Smt.) Shipra’s case (supra) , as elaborately
discussed above, is no longer good law and was
rendered in the peculiar “fact situation” of the said
case.
(ix) Narendra Bhikahi Darade’s case (supra) , which
relates to the concise statement of material facts, is
not relevant as the objection with regard to the non-
compliance of Section 83 is not being pressed at this
stage.
(x) In G.V. Sreerama Reddy’s case (supra) , the objection
was that the petition was not presented by the election
petitioner. In the present case, indisputably the
petition was presented by the election petitioner
herself.
(xi) R.P. Moidutty’s case (supra) pertains to the defects
in the original petition and the objection with regard
EL. PETITION No. 5/2009 Page 73 of 79
to the form of the affidavit and again has no
application to the facts of the present case.
(xii) The judgment in Quamarul Islam (supra) relates to
the provisions of Section 83 of the Act and in view of
the fact that non-compliance with the provisions of
the said Section are not being pressed at this stage has
no application.
(xiii) Ravinder Singh’s case (supra) pertains to the absence
of proper affidavit in the prescribed form. This
decision again has no relevance to the facts of the
present case as it pertains to Section 83 of the Act and
Form No.25.
(xiv) In Gopal Parsad Shastri’s case (supra) , the petitioner
did not file copies of the Election Petition in
accordance with the requirement of sub-section (3) of
Section 81 and an objection was raised by the
Registry. In the present case, the requisite number of
copies were admittedly filed and no objection was
raised by the Registry in this regard.
EL. PETITION No. 5/2009 Page 74 of 79
54.On a conspectus of the facts and law discussed hereinabove, I
am of the view that the onus on the respondent No.1 to prove
that the copy furnished to him was an incomplete one entailing
dismissal of the Election Petition is a heavy one, which cannot
be said to have been satisfactorily discharged in the instant
case. It was at the time of the filing of the written statement
that a plea was taken for the first time by the respondent No.1
that the written statement could not be filed in time on account
of the fact that a complete set had not been furnished to the
respondent No.1. Insofar as the present application is
concerned, it was filed belatedly, even subsequent to the filing
of the written statement. It also deserves to be noted that the
application is not one under Order VII Rule 11 of the Code of
Civil Procedure, 1908, but under Section 151 of the Code read
with Section 86(1) of the Act.
55.Further, as already discussed hereinabove, the only defects left
in the copy furnished to the respondent No.1 by the petitioner,
according to the respondent No.1 himself, are those mentioned
in paras (a) to (f) of the second set. A bare glance of the
EL. PETITION No. 5/2009 Page 75 of 79
deficiencies enumerated in paras (a) to (f) of the second set, in
my opinion, shows that the said deficiencies cannot be said to
be of a vital nature. Rather, the alleged deficiencies appear to
me of a superficial nature with no bearing at all on the
allegations made in the petition. It is not the case of the
respondent No.1 that the petitioner had not filed the requisite
number of copies alongwith the filing of the Election Petition
so as to attract the provisions of Section 81(3). It is also not the
case of the respondent No.1 that the verification to the original
petition is not in accordance with the law, or that the affidavit
filed in support of the petition is not duly attested and verified,
or that any document which forms an integral part of the
petition has not been filed with the petition.
56. It is also on record that the written statement, belatedly filed by
the respondent No.1, was after inspection of the court records,
and thus, even prima facie, no prejudice was caused to the
respondent No.1, even assuming some deficiencies did exist in
the copy furnished to the respondent No.1 by the Registry. A
perusal of the written statement conclusively shows and
EL. PETITION No. 5/2009 Page 76 of 79
establishes that all allegations of corruption in the petition have
been replied to specifically and explicitly by the respondent
No.1, and that the respondent No.1 has understood each and
every charge levelled against him in the petition and has
individually dealt with the same in the written statement. In the
course of hearing also, Mr. Phoolka, the learned senior counsel
for the respondent No.1 was unable to point out as to how any
prejudice had been caused to respondent No.1, so as to entitle
him to press into service the provisions of Section 86(1) of the
Act read with Section 81 thereof. On a specific query put by
this court as to which averment could not be properly replied to
in the written statement by the respondent No.1 for want of
material particulars in the copy furnished to him, no
satisfactory response was received.
57.To conclude, the defects complained of in the present case
cannot be said to be such as would have misled the respondent
No.1 at all with regard to the nature of his defence. Merely
because in the copy furnished to the respondent No.1 the
receipt number or date of the statutory deposit of ` 2,000/- are
EL. PETITION No. 5/2009 Page 77 of 79
not mentioned (though the said amount was admittedly
deposited), the date of filing is not mentioned, the para
numbers in the verification clause are not filled-up, there is no
verification of Annexure “D” as true copy (though it is signed
by the petitioner) and certain pages are slightly dim (though not
illegible), do not appear to me to be the adequate reasons to
throw out the election petition at the threshold. As regards the
non-furnishing of the photographs of the scooter, as already
pointed out, no such deficiency was stated to be there in the
first set and this amounts to an admission on the part of the
respondent No.1 that he had received the same. Even
otherwise, it is the case of the petitioner that the said
photographs have been annexed with the petition not as an
integral part of the petition, but merely as evidence. The
controversy, in fact, relates to the expenditure incurred for the
printing of the stickers and the stepney covers, which the
respondent No.1 got printed from M/s. Saraswati Printers. It is
admitted by the respondent No.1 that he got the stickers and the
stepney covers printed from M/s. Saraswati Printers and as a
EL. PETITION No. 5/2009 Page 78 of 79
matter of fact, it is stated by him that the expenses incurred in
relation thereto have been reflected by him in the statement of
account filed by him. The respondent No.1 having accepted
the fact that he had got the stickers and stepney covers printed,
the onus stands shifted on the petitioner to show that proper
account was not submitted and that the alleged distribution of
the aforesaid stickers and stepney covers amounted to bribery.
58.Most importantly, at the risk of repetition, it needs to be
emphasized that it cannot be lost sight of that respondent No.1
has extensively and elaborately answered all the allegations
levelled in the Election Petition on merits and it is more than
evident that no prejudice has been caused to the respondent
No.1 in putting forth his defence.
59.In view of the aforesaid, there is no merit in the present
application. The same is accordingly dismissed.
60.There will be no order as to costs.
REVA KHETRAPAL
(JUDGE)
June 02, 2011
sk
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