Full Judgment Text
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PETITIONER:
SH.HARCHARAN SINGH JOSH
Vs.
RESPONDENT:
SH.HARI KISHAN
DATE OF JUDGMENT: 23/04/1996
BENCH:
K. RAMASWAMY, B.L. HANSARIA, S.B. MAJMUDAR
ACT:
HEADNOTE:
JUDGMENT:
THE 23RD DAY OF APRIL, 1996
Present:
Hon’ble Mr. Justice K.Ramaswamy
Hon’ble Mr. Justice B.L.Hansaria
Hon’ble Mr. Justice S.B.Majmudar
R.C.Pathak, Ravinder Bagai, R.K.Gupta,
Ms.Prerna Tandon and Ms.Naresh Bakshi, Advs. for the
appellant
R.P.Bansal, Sr. Adv., Pramod Dayal, Ajay K.Jain and Shashi
Bhushan, Advs., with him for the Respondent
O R D E R
The following order of the Court was delivered:
This appeal arises against to the order of the Delhi
High Court made 26.5.1995 in Election Petition No.6/94. The
appellant is an unsuccessful candidate in respect of one of
the Assembly Constituency known as No.64, Sadar Bazar, to
the National Capital Territory of Delhi Assembly. The
elections were held on 6th November, 1993. The respondent
secured 27216 votes while the appellant secured 25786 votes.
The latter filed an election petition on diverse grounds
including corrupt practices under Section 123 of the
Representation of the People Act, 1951. The High Court
dismissed his election petition under Section 86 of the Act
on its findings on four issues framed in that case. While
upholding the findings in favour of the appellant on issued
Nos.1 to 3, it held that the requisite number of true copies
of the election, petition were not supplied to the
respondent in compliance with Section 81(3) of the Act.
Reasons in support thereof are some grave mistakes including
omission to supply full text of page No.18 of the election
petition. Another contention raised by the respondent was
that the affidavit is not a true of copy of the affidavit
which was filed in the Court along with the election
petition. Though it was rejected by the High Court as one of
the grounds against the rejection of the election petition,
the respondent has filed cross objections.
It is not necessary for us to go into the grounds on
which the election petition was dismissed by the High Court.
Suffice it to state that the objections raised by the
respondent regarding non-supply of the true copy of the
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affidavit is a formidable objections which merits acceptance
in view of the recent judgment of this Court in Dr. (Smt.)
Shipra etc.etc. vs. Shantilal Khoiwal etc. etc. [JI 1996 (4)
SC 67]. Therein the copy of the affidavit supplied to the
respondent was not attested by the Oath Commissioner. This
Court, after considering the entire case law, held that the
affirmation before the prescribed authority in the affidavit
and the supply of its true copy is mandatory so that the
returned candidates could not be misled in his understanding
that imputation of the corrupt practices ere prescribed
authority. For that purposes, Form 25 prescribed by Section
83 requires verification before prescribed authority. The
concept of substantial compliance has no application in such
a case. It is seen that the copy of the affidavit supplied
to the respondent does not contain the affirmation by the
Oath Commissioner. Under these circumstances, the defect is
not a curable defect. Therefore, the dismissal of the
election petition on this ground is sustainable in law.
Learned counsel for the appellant placed reliance on an
order of this Court C.A. No. 925 of 1995 (boots Singh vs.
Sher Singh & Ors.) decided on March, 13, 1996. It would be
seen that a Bench of two Judges of this Court has not
expressed any conclusive opinion on the controversy. On the
other hand, this Court remitted the matter to the High Court
for reconsideration in accordance with law. Under these
circumstances, the ratio therein is of no assistance to the
appellant.
The appeal is dismissed. But, in the circumstances,
without costs.