TaxTMI 
TaxTMI 
2004 (12) TMI 692
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....nkar out of which C.A. No. 6622/2003 arises, the appellant challenged the validity of the Assembly election of Siolim Constituency, Goa under section 86 of the Act in which he contested but the respondent No.1 was declared elected. The election of the returned candidate was questioned inter alia on the ground that the returned candidate ( Respondent No.1 ) on the date of nomination and the date of election of the constituency in question was disqualified as he was the Chairman of Goa Khadi and Village Industries Board which is a statutory authority and, as such he was holding an office of profit under the Government of Goa . So far as the facts of the Election Petition No.2 of 2002 filed by the other appellant Jose Philips Domingo D'Souza which has given rise to filing of C.A. No. 6750 of 2003 are concerned, only distinguishing factor was that in that petition, the constituency and the parties were different and in addition to the grounds taken in Election Petition No.1 of 2002 an additional ground for setting aside the Election Petition was also taken. Both the election petitions were filed on 16th of July 2002. The High Court issued notice to the parties on 2nd of August, 200....
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....hether the appellants had served copies of the election petitions to the number of respondents mentioned in the petitions in compliance with section 81 (3) of the Act or not ? (iii)Whether the verification of the election petitions and document was made by the appellant or not ? However, the High Court rejected both the election petitions of the appellants on question No.1 and 2 and rejected election petition NO.2 of 2002 also out of which CA No.6623 of 2003 has arisen, on an additional ground for non-compliance of section 83(1)(c) of the Act. Before we take up the aforesaid three questions for our decision, we feel it appropriate at this stage to refer to some of the relevant provisions of the Act. Chapter II of the Act deals with Election Petitions to High Court. Section 80 of the Act says that no election shall be called in question except by an election petition presented in accordance with the provisions of part VI of the Act.. Section 80A of the Act confers power on the High Court to try election petitions. Section 81 of the Act deals with presentation of election petition which reads as under:- "81. Presentation of petitions - (1) An election pe....
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....s under:- "116A. Appeals to Supreme Court (1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the Supreme Court on any question (whether of law or fact) from every order made by a High Court under section 98 or section 99." (Emphasis supplied ) A bare perusal of section 116A of the Act, it is clear that an appeal shall lie from an order made by the High Court to the Supreme Court on any question of law and fact. Therefore, under section 116A of the Act the Supreme Court is conferred with power not only to decide an appeal filed under this section on a question of law but it would also be open to the Supreme Court to decide the appeal on facts as well. Keeping the power conferred on this Court under section 116A of the Act that is to say this Court is also conferred with power to decide an appeal on facts, let us first examine whether the High Court was justified in relying on the copies of the election petitions which were alleged to have been served on the Learned Counsel for the Respondent No.1 in dealing with the questions in hand. In support of the prayer for dismissal of the election petitions, the Respo....
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....plied by the Registry of the High Court to the learned counsel for the respondent No.1. As said hereinabove, it is not in dispute that two true copies of the election petitions were duly served upon the Learned Counsel for Respondent No.1 by the bailiff of the High Court after the period of limitation for filing an election petition under section 86 of the Act was over. We have carefully examined the copies of the election petitions alleged to have been supplied to the learned counsel for the Respondent No.1. From the facts stated hereinearlier, it would be difficult for us to hold that reliance could at all be placed by the High Court on such copies. The first reason is that the High Court ought to have drawn an adverse inference against the respondent No.1 for not filing the applications under Order VII Rule 11 of the Code of Civil Procedure immediately after receiving those copies from the Registry of the High Court as, according to us, the Respondent No.1 ought not to have waited for more than a month to file the applications under Order VII Rule 11 of the Code of Civil Procedure for rejection of election petitions when true copies were already served on the Respondent No.1.....
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....e election petitions were served upon the Respondent No.1 by the Court Bailiff. In the absence of any material to show that the true copies of the election petitions were not filed with the election petitions at the time of their presentation and in view of our discussions herein earlier that no reliance could be placed on the copies relied on by the High Court, we are unable to sustain the orders of the High Court. We are also unable to agree with Mr.Thali that no reliance could be placed on the true copies served by the Court Bailiff because they were served after the expiry of the period of limitation. It is difficult to understand that the period of limitation shall start from the date of serving the copies and not from the filing of copies of the election petitions. From the records it does not appear that such copies were filed after the period of limitation. For the reasons aforesaid, we may safely conclude that the election petitions were not liable to be rejected relying on the copies of the election petitions alleged to have been served upon the Respondent No.1 especially when true copies of the same were duly supplied to the Respondent No.1. However, when two question....
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.... examining the Assistant Registrar of the High Court. We are unable to accept this view of the High Court. It is no longer res integra that the onus to prove that a copy of the election petition is not served on him, must be on the person who alleges such fact. We are therefore of the view that in presence of the endorsement of the Assistant Registrar of the High Court dated 19th of July, 2002 that the election petitions were in order which would raise a presumption, it would be for the successful candidate/Respondent No.1 to rebut such presumption and discharge his initial burden. In this case, the Respondent No.1 having failed to discharge such onus, it is not open for the Respondent No.1 to say that true copies of the election petitions were not filed at the time of presentation of election petitions. It is not in dispute that true copies of the election petitions were duly served upon the Learned Counsel for the Respondent No.1 before the preliminary hearing of the Election Petitions. According to Mr.Thali, that could not cure the defect in supplying to the Respondent No.1 a true copy of the election petition as such petitions were served on the Respondent No.1 at a time when t....
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....itions on which reliance was placed by the Respondent No.1 were found to be not true copies of the election petitions that were filed. In our view, the defects as shown above would not entail the High Court to dismiss the election petition under section 86 of the Act. Section 81(3) has two parts - The first part relates to filing of as many as copies of the election petitions as that of number of respondents in the same. The second part is that copy shall be attested by the petitioner under his own signature to be a true copy of the petition. In our view, the second part of section 81(3) of the Act requires that every such copy should be attested by the election petitioners under their own signature to be true copies. Second part of section 81(3) of the Act, in our view, is satisfied if the copy is attested by the election petitioner to be true copies of the election petitions under their own signature. In our view, the defects as noted above cannot lead us to hold that election petitions should be rejected for non-compliance of section 81(3) of the Act as copies served on the respondent No.1 cannot be treated to be "true copies" within the meaning of the second part of section 81(....
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....ion petitioner was made by the election petitioners. Therefore, mere omission to sign by the election petitioners in the affidavit accompanying the petition would not also be material. From the above, we can only conclude that such defects in the copies of the election petitions cannot lead us to reject the election petitions. Even otherwise, the election petitions ought not to have been rejected by the High Court for non compliance of section 81(3) of the Act. What should be the meaning of 'true copy' in section 81(3) of the Act was considered by this Court in Dr.Shipra (Smt.) & Ors. Vs. Shanti Lal Khoiwal & Ors. [1996 (5) SCC 181] in which it was held that the defects of the aforesaid nature were not curable, and therefore, the election petition was liable to be dismissed on that ground. This decision of the Supreme Court, namely, Dr.Shipra's case was doubted in a latter decision in the case of T.M.Jacob Vs. C.Poulose and Others [1999 (4) SCC 274] and the matter was referred to the Constitution Bench of this Court. The Constitution Bench in T.M. Jacob's case held- "it is not every minor variation in form but only a vital defect in substance which can lead....
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....lars from the original the same cannot be cured after the period of limitation." The same principle was enunciated following the Constitution Bench decision of this Court in T. Phunyzatha Vs. H.K. & Ors. [2001 (8) SCC 358]. In this decision also it was held that the defects indicated in these cases for which dismissal of the election petition was sought for did not attract Section 86(1) of the Act for dismissal of the election petitions for non-compliance of Section 81(3) of the Act. For the reasons aforesaid and applying the principles laid down in the aforesaid decisions of this Court, we are of the view that the High Court ought not to have rejected the election petitions for non-compliance of the provisions of Section 81(3) of the Act as the defects shown by the Respondent No.1 cannot be said to be fatal and the copies which were alleged to have been served or supplied to the Respondent No.1 were wholly and substantially the same as the original. That apart, it is an admitted position, as noted hereinearlier, true copies of the election petitions were duly served or supplied to the Respondent No.1. The question that was raised by the learned counsel for the Respondent No.1 befo....
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....ady held that the copies of the election petitions alleged to have been served /supplied to the learned counsel for the respondent No.1 on 2nd of August, 2002 could not be relied on. We have already seen earlier that in absence of any material to show that the election petitions were not presented with the requisite number of copies of the same and the admitted fact was that the Bailiff of the Court had served true copies of the election petitions on the Respondent No.l in our view, the High Court had committed an error by placing the onus on the election petitioners to prove that the requisite number of true copies were filed. As said herein earlier, the onus to prove that a true copy is not served on the person, will be on the person alleging such a fact. In presence of a certificate of the Registry of the High Court that there was no defect in the writ petition which would certainly raise a presumption, it would be for the respondent to rebut that presumption and discharge his initial burden. In this case admittedly note of the Registry of the High Court clearly says that requisite number of copies had been duly filed and the election petition was in order. That being the positi....
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.... and decide this question as well. As noted herein earlier, the High Court on question No.3 held that the Election Petition No.2 of 2002 was liable to be rejected for non-compliance of section 83(1)(c) of the Act. We are however unable to sustain this finding arrived at by the High Court. Before we take up the question, we may consider Section 83(1) of the Act. Section 83 of the Act deals with the contents of the petition. Since in this case we are concerned with section 83(1)(c) of the Act, we at the risk of repetition refer to this section which is as follows:- "83(1)(c) - "Election petition shall be signed by the petitioner and verify in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleading." On a careful reading of this provision, we are of the view that the said provision is not mandatory in nature. That is to say, the verification in the election petition although was defective but that cannot be said to be fatal to the maintainability of the petition. In view of our discussions made herein above to the extent that the election petitions were in order even if it was not so at the time of presenting the election petitions, t....
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....ying on the decision in the case of Satya Narain Vs. Dhuja Ram & Ors. [1974 (3) SCC 20], a 3-Judge Bench of this Court held that when the period of limitation for filing an election petition was over, it was not open for the appellant to file documents or other materials for compliance of Sections 81 (3) and 83(1)(c) of the Act. In that decision, this Court was considering whether first part of Section 81 (3) of the Act was a pre-emptory provision and for total non-compliance of it would entail dismissal of the election petitions under section 86 of the Act. Relying on this decision of this Court, Mr. Thali argued that the High Court was fully justified in rejecting the election petitions on the ground that subsequent compliance would not entail the High Court to dismiss the election petitions. The Supreme Court held in the facts situation of the said decision that there was non-compliance of section 81(3) of the Act by not filing as many copies of the election petitions as there were respondents. In that factual situation, the Supreme Court has held that total non-compliance of the first part of section 81(3) of the Act entails dismissal of the election petitions under section 81(....