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Krishan Goyal Vs. Purshottam Lal Badhwar (Rajaji) and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 382 of 1962
Judge
Reported inAIR1964All363
ActsRepresentation of the People Act, 1951 - Sections 81(3) and 90(3)
AppellantKrishan Goyal
RespondentPurshottam Lal Badhwar (Rajaji) and anr.
Appellant AdvocateG.P. Bhargava and ;M.L. Agerwal, Advs.
Respondent AdvocateS.N. Misra and ;S.C. Khare, Advs.
DispositionAppeal allowed
Excerpt:
election - attestation - sections 81(1), 81(3) and 90(3) of representation of the people act, 1951 - annexures accompanying election petition filed by candidate was not duly attested as true copies - clerical errors in petition - held, an election petition does not become invalid. - - having considered this aspect of the matter we are satisfied that the contention of the appellant that because of the mere fact of having signed on each page of the copy, the signatures must be treated for the purposes of attesting as true copy, must be rejected......which were signed on each page by the petitioner but the attestation regarding the copies being true copies under the signature of the petitioner had not been appended to the copies. there are some typing and other clerical mistakes in the copies but they are not substantial in the sense that the copies which had been filed are still copies of the petition and it cannot be said that they are something very different. in his statement the petitioner stated that he had attached to each copy a slip of paper on which he had written the relevant attestation and that he had signed each page of the copy so that no interpolation may be made and the pages of the copies may not be changed.3. in this appeal the contention of the learned counsel for the appellant sri krishna goyal was that the.....
Judgment:

B. Dayal, J.

1. This is an appeal under Section 116A read with Section 90(3) of the Representation of the People Act. The respondent Sri Purshottam Lal Badhwar was elected and against his election an election petition was filed by the appellant Sri Krishna Goyal. That election petition has been dismissed by the Tribunal on the ground that that petition has not complied with the provisions of Section 81(3) of the Representation of the People Act.

2. The facts found by the Tribunal and ascertained by us from the record are that the petition was accompanied by the relevant number of copies of the petition which were signed on each page by the petitioner but the attestation regarding the copies being true copies under the signature of the petitioner had not been appended to the copies. There are some typing and other clerical mistakes in the copies but they are not substantial in the sense that the copies which had been filed are still copies of the petition and it cannot be said that they are something very different. In his statement the petitioner stated that he had attached to each copy a slip of paper on which he had written the relevant attestation and that he had signed each page of the copy so that no interpolation may be made and the pages of the copies may not be changed.

3. In this appeal the contention of the learned counsel for the appellant Sri Krishna Goyal was that the signatures of the petitioner on each page of the copy really amounted to the attestation of the copy and literal compliance with the form prescribed was not necessary. It was contended, on the other hand, by the learned counsel for the respondents that the signatures on each copy could not be treated to be for the purposes of attestation as the petitioner has himself clarified the purpose for which the signatures were put on it. Having considered this aspect of the matter we are satisfied that the contention of the appellant that because of the mere fact of having signed on each page of the copy, the signatures must be treated for the purposes of attesting as true copy, must be rejected. The petitioner has himself stated that he put the signatures so that any page may not be changed. This does not amount to attestingthat the matter which was contained in that page was a true copy of the original petition. The case must therefore proceed on the basis that the copies were filed which were unattested.

4. The point then arises whether this election petition which is accompanied by true copies but which have not been attested is a petition which has not complied with the requirements of Section 81 of the Representation of the People Act Section 81 is as follows :

'81. Presentation of Petitions: An election Petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the Election Commission by any candidate at such election or any elector (within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates).

Explanation: In this subjection, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

2. An election petition shall be deemed to have been presented to the Election Commission :

(a) when it is delivered to the Secretary to the Commission or to such other officer as may be appointed by the Election Commission in this behalf--(i) by the person making the petition, or (ii) by a person authorized in writing in this behalf by the person making the petition, or

(b) when it is sent by registered post and is delivered to the secretary to the Commission or the officer so appointed.

3. Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.'

Under Section 90 (3) 'The Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81..............'

There is no dispute that this election petition complies with the provisions of Section 81(1) and (2). All that is contended is that it is not accompanied by copies as required by Sub-section (3) of Section 81. This sub-section requires that the election petition shall be accompanied by true copies and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. If copies are not supplied at all, there would, of course, be no question of copies being attested.

The only purpose of this sub-section requiring attestation is to ensure that the copies are true copies so that those who are served with them may not be misled and if untrue copies are supplied, the responsibility may be laid on the shoulders of the petitioner who has to take the responsibility of true copies being supplied. It is, therefore a requirement merely ancillary to the primary requirement of true copies being supplied. In the present case true copies have been supplied but they did not contain the necessary attestation. These copies also contained signatures of the petitioner who, therefore, could always be made responsible for the incorrectness of thesecopies as he would not be able to say that he had not supplied these copies. It, therefore, appears to us that the purpose for which this sub-section was added to Section 81 has been fulfilled and it cannot be said that there is non-compliance of this sub-section. The penalty provided for in Section 90 (3) is applicable in case the petition does not comply with the requirements.

This subsection does not provide that a strict literal compliance of Section 81 is essential. Thus a substantial compliance of the provisions of Section 81(3) would, to our mind, be sufficient to hold that the petition is not liable to dismissal under Section 90 (3). The contention of the learned counsel for the respondent that in each case where penalty is provided for non-compliance, the compliance must be strict and literal, does not appeal to us. So long there is a compliance a penalty does not come into operation. Whether in the circumstances of the case a substantial compliance is sufficient within the meaning of law is a matter which is to be considered on the facts of each case. In the present case looking to the purpose for which Sub-section (3) has been added it appears to us that the supply of true copies with the signatures of the appellant who could always be made responsible for the correctness of the copy is sufficient compliance with the requirements of this sub-section. In this view of ours we can take support from a decision of their Lordships of the Supreme Court reported in K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687 in which in spite of a security having been supplied in a form which did not comply strictly with the requirement of law it was held to be a compliance sufficient not to entail the penalty of dismissal.

5. The second contention of the learned counsel for the appellant that mere clerical error in the copies were not sufficient to hold that the copies supplied were not copies of the petition has also force. What has to be seem is whether the copies supplied are such as in common parlance would be said to be copies of the original petition and we have no doubt that in spite of the minor errors those copies are copies of the original petition. This point has been recently considered by their Lordships of the Supreme Court in Civil Appeals Nos. 30 and 31 of 1963 Murarka Radhey Shyam Ramkumar v. Roop Singh, D/- 7-5-1963.

6. After having considered the arguments of the parties, we are of the opinion that this appeal must be allowed and the election petition must be sent back to the Tribunal for disposal according to law. Costs of this appeal will be costs in the petition.


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