TaxTMI 
TaxTMI 
TaxTMI 
1979 (11) TMI 225
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....he appellant filed an election petition before the High Court of Jammu & Kashmir challenging the validity of the respondent's election on various grounds. The respondent raised two preliminary objections to the election petition-(1) that the petition had not been presented in accordance with sub- section (1) of section 89 of the Act and (2) that the copy of the election petition had not been attested by the appellant under his own signature to be a true copy of the petition as required by section 89(3) of the Act. The respondent contended that the petition was liable to be dismissed in view of section 94 of the Act which provided that the High Court should dismiss an election petition which did not comply with the provisions of section 89 or section 90 or section 125 of the Act. We are not concerned with the first ground as it has been held by the High Court that the petition had been validly presented in accordance with section 89(1) of the Act. The appellant while admitting that the copies of the election petition had not been attested by him under his own signature to be true copies of the petition pleaded that section 89(3) of the Act had been substantially complied with as the....
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....0 and 125 of the Act are the same as the topics dealt with by sections 81, 82 and 117 of the Central Act. Section 89 of the Act and section 81 of the Central Act deal with presentation of election petitions. Section 90 of the Act and section 82 of the Central Act deal with the parties to the petition and section 125 of the Act and section 117 of the Central Act deal with security for costs. It is admitted that neither of the two copies of the election petition which had been filed along with it had been signed by the appellant. Both the copies contained identical endorsements at the foot which read: "Attested true copy, Piyare Lal Handoo, Advocate". The advocate had presented the election petition alongwith his Vakalatnama. The crucial part of section 89(3) of the Act with which we are concerned provides that "every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition" and the critical words in this part are "under his own signature". The case of the respondent is that the requirement of section 89(3) of the Act that the copy of the election petition should be attested by the petitioner under his own signature is a mandatory one....
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.... by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow. We shall now proceed to deal with some of the decisions cited before us at the hearing of the appeal. In one of the connected appeals which was disposed of by this Court by its common Judgment in K. Kamaraja Nadar v. Kunju Thevar & Ors., [1959] SCR 583 the person who had filed the election petition had deposited in the Government Treasury a sum of Rs. 1,000/- towards security under section 117 of the Central Act for the costs in favour of the Election Commission instead of in favour of the Secretary to the Election Commission as required by that section as it stood then. It was contended that section 117 of the Central Act had been contravened thereby and that the petition was liable to be dismissed....
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....he petitioner in that election petition as there was nothing else in the relative provisions which precluded the Court from taking that view. In Ch. Subbarao v. Member, Election Tribunal, Hyderabad [1964]6 SCR 213 the question of non-compliance with section 81(3) of the Central Act directly arose for consideration. The facts of that case were these: The petitioner had filed alongwith the election petition sufficient number of copies as required by section 81(3) of the Central Act. The election petition was type-written and the copies which accompanied the petition were carbon copies of the type- script. Each of the copies bore the signature of the petitioner. The petitioner had not, however, inserted the words 'true copy" before or above his signature. Without going into the question whether section 81(3) of the Central Act or any portion of it was merely directory, this Court held that the signatures in original found on the copies were intended to authenticate the documents to which they were appended and that in the circumstances of that case, the absence of the words "true copy" above the signature of the election petitioner in the copies was not fatal. The Court held that ther....
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....tion. The law does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. It may be at the top of the copy or in the middle or at the end. The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy. When original signature is made by the petitioner on the copy of the election petition, it can safely be presumed, as pointed out by this Court in Ch. Subbarao's case (supra), that the signature is made by the petitioner by way of authenticating the document to be a true copy of the election petition. Now, here the appellant placed her signature in original at the foot of the copy of the affidavit and the copy of the affidavit was part of a composite document, namely, copy of the election petition, and hence the signature of the appellant must be regarded as having been appended on the copy of the election petition. In fact, the copy of the affidavit constituted the end-portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the affidavit was, therefore, clearly referable to the entire copy precedin....
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.... own signature, there was no justification for treating the second part of section 89 of the Act as mandatory. It is true that section 89(3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is. A rule of limitation, for example, which is generally considered as procedural in character is strictly enforced by courts since the rule lays down that no court shall entertain a suit, an appeal or an application which is barred by time. An election to a Legislative Assembly can be called in question only by filing an election petition and not otherwise. The right to challenge the election by filing an election petition is a statutory right and not a common law right. A successful candidate is entitled to enjoy the privileges attached to the membership of the Legislative Assembly unless his right to do so is successfull....
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....f the contents of the original petition after it is filed into court. We have no doubtthat the records and documents in the custody of courts are taken due care of by the courts and the courts would not by themselves give any scope for tampering with them. But still experience shows that allegations are sometimes made that records in the court have been tampered with notwithstanding the care and caution taken by courts. Such allegations may not always be without basis. It is probably to obviate any scope for such an allegation being made or to protect the interest of the respondent, the Legislature thought of enacting sub-section (3) of section 89 of the Act so that the respondent may rely on the copy served on him when he finds that the original document in the court contains allegations different from those in the copy in his custody. A respondent would not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself. The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature. If the requirement of the second part of section 89(3) that ....