TaxTMI 
TaxTMI 
2002 (10) TMI 782
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....ant may be declared as duly elected candidate from No. 9 Tezpur Constituency. Notice was issued to the respondents on the election petition. The Respondent No.1 Mani Kumar Subba on receipt of the notice, moved an application under Section 86 of the Representation of the Peoples Act 1951 (hereinafter to be referred as the 'Act') praying for dismissal of the election petition at the threshold on three grounds, firstly that the election petition was filed beyond a period of 45 days which is the prescribed period of limitation for filing an election petition under Section 81 (1) of the Act. The next ground was that where the election petitioner prays for a declaration in his favour or in favour of any other candidate for having been duly elected from the constituency all the contesting candidates have to be impleaded as respondents in the election petition. One Shri Abul Khayer who had also contested the election was not impleaded as respondent instead one Abdul Khyer was impleaded as Respondent no.11. It amounted to non compliance of Section 82 of the Act. Thirdly, the true copy of the affidavit served upon the respondent No. 1 along with copy of the election petition does contain ....
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....actice 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. Section 86(1). Trial of election petitions - the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117." The appellant contested the plea of the dismissal of the election petition under Section 86 (1) of the Act. According to him there was no non compliance of any provision of the Act as alleged by Respondent No.1. The High Court negatived the plea raised on behalf of the Respondent No.1 for dismissal of the writ petition on the ground of limitation and non- impleadment of Abul Khayer as a respondent in the election petition. However, it was held that copy of the affidavit supplied to the Respondent No.1 does not contain the affirmation by the appellant before the Commissioner of oath or the Oath Commissioner's endorsement. On this ground it was held that there was non compliance of Sub-section (3) of Section 81 of the Act. Hence, the petition was dismissed under Section 86(1) of the Act. It may be mentioned here that Respon....
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....scribed authority is a vital fact which assures that the election petitioner had affirmed before the Notary that the statement containing imputation of corrupt practices was duly and solemnly verified to be a correct statement to his knowledge or information as specified in the election petition and the affidavit filed in support thereof and the respondent would not be misled on that score. Such an omission in the copy supplied to the returned candidate as true copy is not a curable irregularity and concept of substantial compliance will not be applicable. The other decision relied upon is Harcharan Singh Josh (supra). In this case one of the grounds among at others was that the affidavit supplied to the respondent was not a true copy of the affidavit since it did not contain the affirmation by the Oath Commissioner. This contention was upheld. The High Court followed the decisions in the cases of Dr. Shipra and Harcharan Singh Josh (supra), while holding that the defect was not curable and the election petition was liable to be dismissed on that ground. The High Court has also referred to the decision of Three Judges Bench of this Court reported in 1998 (2) SCC 31- T.M. Jacob v....
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.... of Dr. Shipra (supra) is enumerated in Paragraph 16 of the judgment which reads as under: "Thus, from the "facts" noted by Bharucha, J., it transpires that in Dr. Shipra case the "true copy" of the election petition furnished to the respondent gave an impression that the election petitioner's affidavit supporting his allegations of corrupt practice had not been duly sworn and verified by the election petitioner before the Notary, who also had not attested the same thereby rendering that document as "no affidavit" at all in the eye of the law. The defect found in the "true copy" of the affidavit, was thus, not merely the absence of the name of the Notary or his seal and stamp but a complete absence of "notarial endorsement" of the verification as well as absence of an "affirmation" or "path" by the election petitioner. It was in that context that the Bench had found in Dr. Shipra case that the returned candidate would have got the impression, on a perusal of the "true copy" of the affidavit, that there was no duly sworn and verified affidavit filed in support of the allegations of corrupt practice by the election petitioner. It was precisely on account of this "fatal" defe....
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....servations on the correctness of the view expressed in Dr. Shipra case but it is unnecessary in the present case to dwell on the same. - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - We have already referred to the fact that even before arguments were heard on the preliminary objection by the High Court in this case, the true copies of the affidavits had been served on the first respondent and his counsel. In the facts and circumstances of this case, we have no doubt that there was sufficient compliance with the provisions of Section 81(3) read with Section 83(1) ( c ) of the Act. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - " It is thus clear that the correctness of broad proposition as laid in the case of Dr. Shipra (supra), was doubted in the case of T.M. Jacob as well as Anil R. Deshmukh' case (supra) . The Constitution Bench in T.M. Jacob's case (supra) has indicated the correct position. Any defect of whatever nature, in the true copy supplied to the respondent would not render the petition li....
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....had endorsed 'verified by me' instead of "verified before me". The signature of the deponent had also been obtained on at a wrong place The verification was also not apparently in the prescribed form. It is observed that "the mistake of the Oath Commissioner in verifying the affidavit cannot be a sufficient ground for dismissal of the petitioner's petition summarily". It was further pointed out that the defect can be remedied in accordance with the principles of Code of Civil Procedure relating to verification of pleadings accordingly even a correct affidavit could be filed later to rectify the defect. In yet another decision reported in 2001 (5) SCALE 599- Sri T.Phungzathang versus Sri Hangkhanlian and others, it has been held that the case of Harcharan Singh Josh (supra) does not lay the correct law. It has also been observed that an election petition accompanied by an affidavit has two parts out of which the verification part by the Oath Commissioner is not an integral part of the petition and the affidavit. If the copy furnished to the returned candidate does not contain the words as the true copy so far the attestation part by the Oath Commissioner is concerned, it would no....
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.... the Court by adhering strictly to technicalities of little consequence. On the other hand the anxiety is that the respondent must have 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 matters. 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....
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.... not necessary that mere stamp of the Oath Commissioner must lead to the inference that the affidavit was also sworn before and signed by the Oath Commissioner in attestation thereof. Therefore, such a case would be at the same footing as where nothing is indicated regarding swearing of the affidavit before the Oath Commissioner. We may now consider the fact situation of the present case in relation to attestation of the affidavit in support of the election petition before an Oath Commissioner. At the very outset, it may be indicated that the original election petition in the end bears the stamp and due attestation and signature of the Oath Commissioner. Above the stamp of the Oath Commissioner there are signatures of the petitioner above the word 'deponent'. Before that on Page 25 of the petition, a full verification of the affidavit has been made. Pages 25 and 26 of the petition are as under: Page 25 "AFFIDAVIT" 1. That I am the instant petitioner in this case and as such I am acquainted with the facts and circumstances of the case for the purpose of swearing this affidavit in support of the contention of the corrupt practices taken recourse to by Responde....
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....gations of corrupt practices and that the petitioner had put his signature, thereon, prima facie fulfillment of such a legal requirement is adequately reflected even in absence of name and seal etc. of Oath Commissioner in the true copy. Learned senior counsel Shri Bachawat then referred to two other points raised by Respondent No.1 but repelled by the High Court. So far the first point is concerned, about the petition being time barred, he has very fairly given up the said point on being indicated referring to the original that the petition was filed on November 20, 1999 and not on 28.11.1999. The only other point which remains to be considered is that in the election petition name of Respondent No.11 has been indicated as "Shri Abdul Khyer" Nij Biswanath, Biswanathghat, District Sonitpur, Assam." According to Respondent No.1 Abul Khayer is the person who had contested the election but he has not been impleaded as a party instead some Abdul Khyer has been impleaded. The submission is that all the candidates who contested the election have thus not been impleaded as mandataorily required under Section 82 of the Act i.e. in cases where the petitioner prays for being declared a....
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....leaded e.g. the address of the person, the averment that the Respondents 7 to 18 had contested the election as well as the form of election return indicating names of all those who had contested the election and the names with correct spelling is on the record namely 'Abul Khayar' . The respondent therefore gets no advantage out of above-noted point sought to be made out. The parties have however placed reliance on certain decisions on the point. On behalf of Respondent No.1 reliance has been placed on Gorelal Shakya versus Maharaj Singh Yadav 1995 Supp. (3) S.C.C. 407 wherein Respondent No.10 was shown as Sanjay Kumar whereas correct name should have been Sanjiv Kumar. Similar arguments seems to have been advanced that notice was not served on the correct respondent and the person who ought to have been impleaded, has not been impleaded. The High Court dismissed the petition for non compliance of Section 82(a) of the Act. This Court upset the decision of the High Court observing that High Court had made a mountain out of a mole hill as it was a mere typographical mistake. Then this Court noted that in the body of the petition at one place his name was indicated as Sanjiv Kumar ....