1979 (11) TMI 225 - SC - Indian Laws

Signature requirement under J&K election law upheld as mandatory, dismissal of appeal affirmed

The court held that compliance with Section 89(3) of the Jammu and Kashmir Representation of the People Act, 1957, requiring the petitioner's attestation ... Mandatory and directory distinction in statutory procedure - attestation of copies 'under his own signature' - substantial compliance - statutory consequence of non compliance - dismissal under section 94 - object of requiring petitioner's own attestation to prevent tampering and to fix responsibilityAttestation of copies 'under his own signature' - statutory consequence of non compliance - dismissal under section 94 - Requirement that copies of an election petition be attested by the petitioner under his own signature is mandatory and non compliance attracts dismissal under section 94 of the Jammu and Kashmir Representation of the People Act, 1957. - HELD THAT: - The Court examined the language, context and object of section 89(3) which requires that every copy 'shall be attested by the petitioner under his own signature to be true copy of the petition' and noted that section 94 mandates dismissal where section 89 is not complied with. The provision was inserted to ensure the petitioner takes responsibility for contents and to give respondents an authenticated copy to guard against post filing alteration or tampering. Precedents were considered: Satya Narain established the mandatory character of the part of the provision requiring filing of copies; Ch. Subbarao and Kamalam show that authentication by the petitioner on documents forming part of the petition can satisfy the requirement where the signature is in original and referable to the copy. Despite procedural character, where a statute prescribes a manner and prescribes a consequence for non compliance, courts must give effect to the statutory consequence. In light of the express words 'under his own signature' and the statutory dismissal provision, the Court held the attestation requirement to be mandatory.The attestation by the petitioner under his own signature is mandatory; non compliance warrants dismissal under section 94.Substantial compliance - attestation by advocate is not equivalent to petitioner's signature - purpose based construction of procedural requirements - Attestation of the copies by the petitioner's advocate does not constitute substantial compliance with the statutory requirement that the copies be attested by the petitioner under his own signature. - HELD THAT: - The appellant relied on notions of substantial compliance and earlier decisions where technical defects were cured by looking to substance (K. Kamaraja Nadar; Ch. Subbarao; Kamalam). The Court acknowledged those authorities but distinguished them: where the petitioner's original signature appears on a document forming part of the petition it may authenticate the whole, but attestation by counsel cannot be equated with attestation 'under his own signature' by the petitioner. The legislative objective - to place responsibility on the petitioner and to give respondents assurance that the served copy corresponds to the petition filed - would be frustrated if counsel's attestation were treated as equivalent. Consequently, the endorsement 'Attested true copy, [Advocate]' did not satisfy section 89(3).The advocate's attestation on the copies is not substantial compliance with section 89(3); the copies required petitioner's own signature.Final Conclusion: The High Court correctly dismissed the election petition for failure to comply with section 89(3); the appeal is dismissed with costs. Issues Involved:1. Compliance with Section 89(3) of the Jammu and Kashmir Representation of the People Act, 1957.2. Mandatory vs. Directory nature of Section 89(3).3. Consequences of non-compliance with Section 89(3) under Section 94 of the Act.Detailed Analysis:1. Compliance with Section 89(3) of the Jammu and Kashmir Representation of the People Act, 1957:The primary issue was whether the appellant complied with Section 89(3) of the Act, which mandates that every election petition must be accompanied by copies attested by the petitioner under his own signature to be true copies of the petition. The appellant admitted that the copies were not attested under his own signature but argued that attestation by his advocate constituted substantial compliance.2. Mandatory vs. Directory Nature of Section 89(3):The court examined whether Section 89(3) is mandatory or directory. The appellant contended that since the copies were signed by his advocate, it should be considered substantial compliance, arguing that the provision is procedural and should be treated as directory. However, the court emphasized that the critical words in Section 89(3) are 'under his own signature,' indicating a mandatory requirement. The court noted that the object of this provision is to ensure that the petitioner takes full responsibility for the contents of the petition and to prevent any unauthorized alterations.The court cited several precedents to illustrate the principles for determining whether a statutory provision is mandatory or directory. It concluded that procedural provisions that prescribe a specific manner for performing an act and specify consequences for non-compliance are generally considered mandatory.3. Consequences of Non-Compliance with Section 89(3) under Section 94 of the Act:Section 94(1) of the Act mandates the dismissal of an election petition that does not comply with Section 89. The court found that the appellant's failure to attest the copies of the election petition under his own signature constituted non-compliance with Section 89(3). The court emphasized that the requirement for the petitioner's own signature is crucial to ensure authenticity and prevent tampering.The court rejected the appellant's argument that attestation by an advocate should suffice, noting that the statute explicitly requires the petitioner's signature. The court also highlighted that the provision's mandatory nature is reinforced by the explicit consequence of dismissal for non-compliance as stated in Section 94.Conclusion:The court concluded that the requirement for the petitioner to attest copies of the election petition under his own signature is mandatory. Non-compliance with this requirement necessitates dismissal of the petition under Section 94 of the Act. Consequently, the appeal was dismissed with costs, upholding the High Court's decision to dismiss the election petition for non-compliance with Section 89(3).