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Ashok Shankar Gholap Vs. Krishnarao H. Deshmukh and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberElection Petn. No. 8 of 1978
Judge
Reported inAIR1980Bom224
ActsRepresentation of the People Act, 1951 - Sections 34(1), 81, 81(3), 83, 83(2), 86 and 103; Election Rules - Rule 4
AppellantAshok Shankar Gholap
RespondentKrishnarao H. Deshmukh and anr.
Appellant AdvocateM.V. Paranjpe,;A.P. Shah and;D.M. Hargolkar, Advs.
Respondent AdvocateV.R. Bhandare,;A.M. Vernekar,;A.H. Vyas, Advs. and;A.R. Shinde, Asstt. Govt. Pleader
Excerpt:
.....petitions filed under the representation of thepeople act, 1951, it is very clearly provided that in cases of election petitions arising from areas other than akota, amravati, bhandara, buldana, chandrapur, nagpur, wardha and yeotmal they must be presented to the prothonotary and senior master, high court, bombay, or such other officer as may be appointed by him in this behalf. looking, however, merely to the language of section 81(3) would not be conclusive on a matter like this. 1. 13. considering that the petitioner is a poor person the costs are quantified at rs......election petition to him. the clerk however found the office crowded and therefore he went to the board department of the high court which adjoins the office of the assistant prothonotary and put the four copies of the election petition duly attested by the petitioner in the bundle of papers kept in the board department. on the next day, that is to say, on 14-4-1978 the advocate of the petitioner, who was presumably unaware of what had been done by the clerk, went to the office of the master and assistant prothonotary for removing the office objections, if any. he found that the first objection pertained to not filing four copies of the petition. at that time, his clerk who had accompanied him told him that he had filed 4 copies of the election petition with the board department and the.....
Judgment:
ORDER

1. The petitioner in this election petition was a candidate for the election to the Maharashtra State Legislative Assembly from Barsi Constituency. The election was to be held in the month of Feb. 1978, The nominations were required to be filed by the candidates on or before 1-2-1978. Accordingly the Petitioner filed his nomination paper on 1-2-1978. Under Section 34(1)(b) of the Representation of the People Act, 1951, in the case of an election to the Legislative Assembly a candidate is required to deposit a sum of Rs. 250/-. However, if the candidate is a member of a Scheduled Caste or Scheduled Tribe, he is required to deposit a sum of Rs. 125/- only. The petitioner deposited the sum of Rs. 125/- on the ground that he belonged to a Scheduled Caste, namely Khatik community. When the nomination papers were scrutinised on 2-2-1978 the nomination of the petitioner was rejected by the Returning Officer, Barsi Constituency, who is the Respondent No. 2 herein, on the ground that the petitioner had not proved that he belonged to a Scheduled Caste and that as he had not deposited Rs. 250/- his nomination paper was bad, It is the petitioner's case that the people of Khatik community describe themselves as 'Hindu Dhangar' and that he had produced a Certificate dated 23-3-1968 signed by the Taluka Magistrate, Barsi in which the petitioner's caste was described as 'Hindu Dhangar'. According to the petitioner, on the basis of this Certificate his nomination paper should have been accepted by the Respondent No. 2. He has, therefore, filed the present election petition, inter alia, for a declaration that the election of the returned candidate the Respondent No. 1 is void and should be set aside.

2. In reply the Respondent No. 1 has, inter alia, raised certain preliminary issues, which by consent of the parties are being tried as preliminary issues. These issues relate to the presentation of petition as required under Section 81 of the Representation of the People Act, 1951. These issues are Issues Nos. 1 and 1-A, which are as follows :

(1) Whether the petition is liable to be dismissed for non-compliance with provisions of Section 81(3) of the Representation of the People Act, 1951 as stated in Para 1 (a) of the written statement?

(1-A) Whether the High Court Rules can confer on the Prothonotary and Senior Master or the Master and Assistant Prothonotary any power to permit the petitioner to correct or remove defects under Section 81(3) or Section 83 of the Representation of the People Act, 1951 beyond the period of limitation?

The Respondent No. 1 had also raised two other preliminary issues being Issues Nos. 2 and 3 which are as follows:

(2) Whether the petition is signed in the manner laid down in the Code of Civil Procedure? If not, whether the same is liable to be dismissed for non-compliance with the provisions of Section 83(1)(c) of the Representation of the People Act, 1951?

(3) Whether the annexure to the petition is signed and verified in the manner laid down in the Code of Civil Procedure? If not, whether the petition is liable to be dismissed for non-compliance with Section 83

(2) of the Representation of the People Act, 1951?

These two issues are however not pressed by the Respondent No. 1.

3. The last date for presenting an election petition in connection with the election in question was admittedly 13th Apr. 1978. The present petition was presented on 13-4-1978. There is an endorsement dated 14-4-1978 at the back of the petition made by the Master and Assistant Prothonotary, who is an Officer authorised under the Election Rules framed by this High Court for accepting election petitions. According to this endorsement the petition was not accompanied by four copies of the election petition. This objection appears to have been complied with on 14-4-1978, because there is an endorsement of the petitioner's Advocate to that effect on the back of the petition immediately after the endorsement of the Master and Assistant Prothonotary, Section 81, Sub-section (3) of the Representation of the People Act, 1951 is as follows:

'Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the Petition.

Under Section 86 of the Representation of the People Act the High Court is required to dismiss an election petition which does not comply with the provisions of Section 81. The Respondent No. 1 has, therefore, urged that this election petition should be dismissed because the petitioner has not complied with the provisions of Section 81, Sub-section (3). There are two respondents to the election petition. According to the 1st Respondent, the election petition should have been accompanied by two copies thereof in compliance with the provisions of Section 81(3). Under the Election Rules framed by the Bombay High Court, two copies are required to be Submitted per respondent. Hence four copies should have accompained the petition at the time of its presentation.

4. Evidence has been led by the Petitioner in order to show that the petitioner has substantially complied with the provisions of Section 81, Sub-section (3). The case of the petitioner is that on 13-4-1978, which was the last date for filing an election petition, the Advocate of the petitioner had given to his clerk the petition along with four copies of the petition which were attested by the petitioner under his own signature to be true copies of the petition. There was some difficulty about making the deposit of Rs. 2000/-. But ultimately the petitioner was permitted to make the deposit of Rs. 2000/- and thereafter the petition was presented to the Master and Assistant Prothonotary, on the afternoon of 13-4-1978. Under Rule 4 of the Election Rules framed by the High Court in regard to election petitions under the Representation of the People Act, 1951 an election petition arising from 'the rest of the areas of the State of Maharashtra' shall be presented to the Prothonotary and Senior Master, High Court, Bombay, or such other officer as the said Prothonotary and Senior Master, may, by special or general orders passed from time to time, appoint in this behalf. Admittedly the Master and Assistant Prothonotary is an Officer so appointed by the Prothonotary and Senior Master before whom an election petition can be presented. In the present case the petition was presented to him on 13-4-1978. Sometime thereafter on the same day, according to the Petitioner, the clerk of the Advocate realised that he had not given four duly attested copies of the election petition to the Master and Assistant Prothonotary. According to the Petitioner's version, the clerk accompanied by the petitioner and the petitioner's friend Handure went first to the Office of the Master and Assistant Prothonotary for handing over 4 copies of the election petition to him. The clerk however found the Office crowded and therefore he went to the Board Department of the High Court which adjoins the Office of the Assistant Prothonotary and put the four copies of the election petition duly attested by the Petitioner in the bundle of papers kept in the Board Department. On the next day, that is to say, on 14-4-1978 the Advocate of the Petitioner, who was presumably unaware of what had been done by the clerk, went to the Office of the Master and Assistant Prothonotary for removing the Office objections, if any. He found that the first objection pertained to not filing four copies of the petition. At that time, his clerk who had accompanied him told him that he had filed 4 copies of the election petition with the Board Department and the clerk immediately went tothe Board Department and brought the copies which were then handed over to the Master and Assistant Prothonotary. Thereafter the Advocate for the Petitioner made an endorsement inter alia that Objection No. 1 had been complied with. The question is, whether the Petitioner has, under these circumstances, substantially complied with the requirements of Section 81, Sub-section (3), relating to the presentation of the election petition. If there is no substantial compliance with these provisions, then, however hard the case may be, the petition is required to be dismissed under the mandatory provision of Section 86.

5. The Petitioner's case taken at its highest is that on 13-4-1978 the election petition was presented to an Officer so appointed for the purpose by the High Court. Although the petition was not accompanied by the requisite number of copies. Nevertheless on the same day, requisite number of copies were filed by the petitioner in the High Court in a different department, namely the Board Department. The Petitioner has, therefore, substantially complied with the requirements of Section 81, Sub-section (3), of the Representation of the . People Act, which lays down that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition. There is no dispute relating to the second half of Section 81, Sub-section (3) of the Act, which lays down that the copies must be attested by the Petitioner under his own signature to be true copies.

6. The Petitioner has led his own evidence as well as the evidence of his friend Handure who is supposed to have accompanied the Petitioner at the time of the filing of the petition. He has also led the evidence of his Advocate and of Acharya, the clerk of the Advocate. In addition he has also examined the Master and Assistant Prothonotary and the clerk in the Board Department. The Petitioner, Handure and Acharya have all deposed to the effect that after presenting the election petition to the Master and Assistant Prothonotary they went to the canteen to have tea when Acharya remembered that he had forgotten to give 4 copies of the election petition to the Master and Assistant Prothonotary. There are some minor variations in their testimony but taken by and large they all say that all of them immediately went to the Office of the Master and Assistant Prothonotary. The Office was crowded. Therefore, at the suggestion of Acharya they went to the Board Department and Acharya put the four copies of the election petition in a bundle in the Board Department. The rest of the testimony is not really material for the purpose of considering the preliminary issues. The testimony of the Advocate does not carry the matter much furtherbecause admittedly he was not present on the occasion when the copies of the election petition were put in the bundle of papers in the Board Department by Acharya. He has however deposed that on the next day when he went to remove the objections in the Office of the Master and Assistant Prothonotary, Acharya told him that he had kept the copies of the election petition in the Board Department and that Acharya thereafter went to the Board Department and brought the copies to him which he then gave to the Master and Assistant Prothonotary. The two independent material witnesses who have been examined by the Petitioner are the Master and Assistant Prothonotary and the clerk in the Board Department in whose presence Acharya put the four copies of the election petition in a bundle of papers in the Board Department. Unfortunately neither of them is able to recollect what happened either on 13-4-1978 or on 14-4-1978. The Master and Assistant Prothonotary has relied upon the endorsement put by him on the docket of the petition at the back. He is not able to recollect anything beyond what is endorsed at the back of the petition. The clerk in the Board Department, who was admittedly a new clerk in that department at the material time, also says that he cannot remember anything about the incident in question. Therefore the only witnesses whose evidence can throw any light on the question are the Petitioner, his friend Handure and Acharya and Advocate Mr. Hargolkar. The Petitioner's testimony is obviously interested and it cannot be relied upon per se. However, his statement have been confined by Handure and Acharya in their testimony. It is true that Handure's name has not been mentioned in any of the affidavits filed by the Petitioner when an application was made for amendment of the Chamber Summons or in the Petition itself. Mr. Bhandare, who appears for the Respondent No. 1, has, therefore, urged that his alleged presence at the time of the filing of the election petition is an afterthought and he was in fact not present at the material time. But in this connection I am inclined to accept the evidence given by the Advocate to the effect that Handure had accompanied the Petitioner when he came to file the election petition. Hence Handure's testimony cannot be rejected out-right. It has also beenurged by Mr. Bhandare that Handure is also an interested witness. He has cometo the Court on a number of occasions at his own expense in connection with thiselection petition and admittedly he is interested in the outcome of the election petition. He is also a close friend of the Petitioner. His evidence therefore should not be relied upon. In my view, this is not a ground for rejecting Handure's testimony outright. As a friend of the Petitioner he is bound to have an interest in the Petition. Nevertheless there is no reason to believe that he would deliberately give false evidence in a case like this. He has stated that he and the Petitioner had accompanied Acharya when he went to the Board Department to put the copies of the election petition in the bundle of papers in the Board Department and I am inclined to accept this part of his testimony. Acharya himself has also deposed to the same effect. His testimony further reveals that he seemed to carry an impression that copies could be put in the Board Department because, on a previous occasion, he had managed to obtain a precedent of an election petition from that department. He has however tried to justify his conduct by going a step further and saying that on another occasion he had been directed by the Master and Assistant Prothonotary to give the copies of the election petition in the Board Department. This part of his testimony cannot be believed at all. In fact, the Master and Assistant Prothonotary has categorically denied that he had directed any clerk to give copies of an election petition in the Board Department. It is, therefore, clear that Acharya, on his own, had deposited the copies of the election petition in the Board Department on 13-4-1978. The question is whether this constitutes sufficient compliance with the provisions of Section 81, Sub-section (3), of the Representation of the People Act, 1951.

7. Mr. Paranjpe drew my attention to a number of decisions of the Supreme Court which lay down the proposition that a total non-compliance with the provisions of Section 81, inter alia, of the Act would result in a dismissal of an election petition. But in a case where the provisions of this section were substantially complied with, the election petition should not be dismissed. In this connection he relied upon the observations of the Supreme Court in : [1964]3SCR573 Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore. This is a case where there was a dispute as to whether, inter alia, the copies of the election petition, which are required to accompany an election petition, were attested as provided under Section 81 Sub-section (3) of the Representation of the People Act, 1951, and theCourt came to the conclusion that the petitioner had substantially complied with the provisions relating to attestation of copies. This decision was followed by the Supreme Court in : [1965]1SCR38 Dr. Anup Singh v. Abdul Ghani where also in considering whether the copies of an election petition were true copies properly attested, the Court came to the conclusion that there was substantial compliance with Section 81 Sub-section (3) of the Act and the petition should not be dismissed. The other decisions of the Supreme Court cited before me in this connection are : [1974]3SCR20 Satya Narain v. Dhuja Ram and : [1978]3SCR446 M. Kamalam v. V. A. Syed Mohammed. Reliance has also been placed on the observations of Krishna Iyer, J. in the judgment reported in : [1979]1SCR520 Shiv Chand v. Ujagar Singh where he has stated that hyper-technicality, when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat a vital judicial process, namely, investigation into the merits of the election petition.' It is necessary therefore to examine what is the 'public policy' underlying Section 81(3). In the decision reported in : [1974]3SCR20 (Supra) the Supreme Court itself has explained the principle underlying Section 81 Sub-section (3). It has stated : 'The purpose of enclosing the copies of the election petition for all the respondents is to enable quick despatch of the notice with the contents of the allegations for service on the respondent or respondents so that there is no delay in the trial at this very initial stage when the election petition is presented.' In view of this purpose, it requires to be examined whether the filing of copies of the election petition in a wrong department of the High Court can be considered as a substantial compliance with the provisions of Section 81, Sub-section (3). The High Court is a very complex entity consisting of a large number of departments which deal with different matters pertaining to the administration of the High Court. Filing of papers in the wrong department can easily result in considerable delay before papers can be traced and properly filed. The administration of the High Court is regulated under various rules which are framed by the High Court for this purpose. Under the Election Rules which have been framed by this High Court concerning petitions filed under the Representation of thePeople Act, 1951, it is very clearly provided that in cases of election petitions arising from areas other than Akota, Amravati, Bhandara, Buldana, Chandrapur, Nagpur, Wardha and Yeotmal they must be presented to the Prothonotary and Senior Master, High Court, Bombay, or such other officer as may be appointed by him in this behalf. The Master and Assistant Prothonotary is such an officer appointed by the Prothonotary and Senior Master to whom election petitions are required to be presented. If the petitioner presents his election petition to somebody else in the High Court -- a clerk in the High Court instead, for example, it cannot be said that he has presented the election petition to the High Court under Section 81. When Section 81 talks about presentation of petitions to the High Court, it must he taken to mean presenting such a petition to such an officer of the High Court as may be appointed for the purpose. It would be a mockery of the rules framed for proper administration of a High Court and for a proper conduct of litigation in the High Court if as petitioner can be permitted to disobey the rules framed by the High Court for this purpose. It would make it impossible for the High Court to deal with election petitions which may be filed anywhere before any officer of the High Court. What is more important, it would defeat the basic purpose underlying Section 81, particularly Sub-section (3) thereof, namely that there should not be any delay in proceeding with the election petition and that alt the respondents must be immediately intimated about the filing of the petition. For this purpose it is essential that the petition accompanied by the requisite number of copies is presented to an officer, whose duty it is to see that the petition is properly presented and to see that all procedure in connection with such an election petition is properly complied with. It cannot, therefore, be said that by giving copies of the election petition to the Board Department, the Petitioner has presented the election petition with the requisite number of copies to the High Court under Section 81, Sub-section (3), of the Representation of the People Act, 1951. The Petitioner has not even filed his copies, although they may be with the wrong department. The clerk of the Advocate merely kept the copies of the election petition in a bundle of papers in the Board Department. Therefore, in the present case it cannot even be said that copies were filed in the wrong department though on the same day. The Petitioner merely put hiscopies in the wrong department of theHigh Court. It has been argued that this department was also under the jurisdiction of the Master and Assistant Prothonotary. But that cannot help the Petitioner in any way because the Board Department has nothing to do with the presentation, of election petitions. Admittedly the copies were presented to the Master and Assistant Prothonotary on the next day after the time specified for filing an election petition had expired. Such a filing cannot save the election petition.

8. Mr. Bhandare has also argued that even assuming that the election petition is presented and thereafter on the same day the copies of the election petition are subsequently presented, that itself will amount to non-compliance with Section 81, Sub-section (3) because the section provides that the election petition should be accompanied by the requisite number of copies of the election petition. Hence the election petition must be presented along with the copies. If the copies are filed subsequently, it will amount to non-compliance with the section. He has pointed out that in the case reported in : [1974]3SCR20 Satya Narain v. Dhuja Ram, which was a case in appeal from the judgment of the Punjab and Haryana High Court, the Punjab and Haryana High Court had held that if the requisite number of spare copies of the election petition were not filed along, with the petition in the High Court, the defect would not be cured subsequently even, within the period of limitation prescribed for filing an election petition. On the facts of that case the High Court had, held that such spare copies were filed beyond the period of limitation. I have not had the benefit of looking at the judgment of the Punjab and Haryana High Court in question. The Supreme Court has not considered this aspect of the question at ail-Hence the decision of the Supreme Court does not throw any light on this aspect of the matter. Looking, however, merely to the language of Section 81(3) would not be conclusive on a matter like this. It is true that the words used in the section are '.... petition shall be accompanied by.... copies'. Therefore, prima facie it would appear that what Mr. Bhandare contends is correct, namely that the copies must accompany the election petition at the time when it is presented. However, the section need not be construed so literally. The purpose of the section, is to ensure that copies are immediately available for service on the respondents so that the hearing of the election petition is not unnecessarily delayed at the initial stage. Bearing this purpose in mind, if the copies are given by the Petitioner on the same day or soon after the presentation of the election petition at the time of removal of objections, it cannot be said that the Petitioner has violated Section 81(3) of the Act because the copies are supplied in such a case by the Petitioner within a reasonable time for service on the Respondents and his conduct does not cause any unreasonable delay in proceeding with the hearing of the election petition at the initial stage, provided, of course, the copies are given by the Petitioner within the period of limitation prescribed under the Representation of the People Act, 1951. Hence it cannot be said that simply because copies are furnished subsequently by the Petitioner though on the same day his petition is liable to be dismissed for non-compliance with Section 81(3) of the Act. Compliance with the provisions of Section 81(3) of the Act, however, after the expiry of the period of limitation, is not permissible. The petition must be presented as prescribed under Section 81(3) within the period of limitation.

9. In the present case the Petitioner did not give copies of the election petition to the Officer of the High Court designated for the purpose until after the period of limitation for filing an election petition had expired. In such a case the mandatory provisions of Section 86 of the Act must come into operation and the petition must be dismissed because within the period prescribed under the Act the Petitioner had not presented the petition accompanied by the requisite number of copies as provided under Section 81 Sub-section (3) of the Act.

10. It is also not open to the Petitioner to argue that under the Election Rules framed by the High Court the Officer concerned has a right to ask the parties or Advocate to attend the Office on the third day from the date of presentation of petition to remove the objections and the Advocate or the party is entitled to remove such objections within two days thereafter. From these rules it cannot be deduced that even in a case where an election petition is filed on the last date of limitation, the petitioner would get an additional 5 days for removing objections. Before the expiry of the period of limitation the petition must be before the High Court without any objections relating to non-compliance with Section 81(3). In other words, all such objections must be removed by the Petitioner before the period of limitation expires. This is the view expressed by the Supreme Court in the casereported in : [1974]3SCR20 , and the Petitioner has not seriously argued to the contrary. He has attempted to show that copies were in fact filed before the expiry of the period of limitation. For the reasons stated by me earlier I am not inclined to accept this argument of the Petitioner.

11. Under the circumstances issue No. 1 is answered in the affirmative and issue No. 1A is answered in the negative.

12. In the result the election petition is dismissed. Petitioner to pay the costs of Respondent No. 1.

13. Considering that the Petitioner is a poor person the costs are quantified at Rs. 750/-.

14. There will be no order as to costs in favour of Respondent No. 2 for the same reasons and also because the Respondent No. 2 has submitted to the orders of the Court as far as preliminary issues are concerned.

15. The Prothonotary and Senior Master to intimate the substance of the decision in this petition to the Election Commission and to the Speaker, Maharashtra Legislative Assembly as provided under Section 103 of the Representation of the People Act, 1951 and send to the Election Commission a copy of the decision.

16. Liberty to the 1st Respondent to withdraw the sum of Rs. 750/- from out of the security deposit made by the Petitioner in the present election petition. Liberty to the Petitioner to withdraw the balance amount lying with the Prothonotary after payment of costs to the 1st Respondent.

17. Prothonotary and Senior Master to act on the certified copy of the Minutes of Order on the undertaking given by the Advocate of the Petitioner to draw up the Order within eight weeks from today.

18. Petition dismissed.


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