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Ramashanker Parmanand Vs. Jugalkishore Ramasahaya Bajaj and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberElection Petn. No. 36 of 1967
Judge
Reported inAIR1969MP243
ActsRepresentation of the People Act, 1951 - Sections 37, 81, 81(3), 86(1) and 86(5); Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 11
AppellantRamashanker Parmanand
RespondentJugalkishore Ramasahaya Bajaj and ors.
Appellant AdvocateR.S. Dabir, Adv.
Respondent AdvocateG.P. Singh, Adv. for Respondent No. 1
DispositionPetition dismissed
Cases Referred and Amur Lal v. Hunna Mal
Excerpt:
.....all the three annexures (a), (2) and (3). he has further urged that the defect of non-supply of copies of the said annexures for being served on the respondents does not entail the penalty of dismissal of the petition as the petition can be dismissed only if there is a failure to comply with the provisions of section 81(3) in respect of 'copy of the petition' and not 'annexures thereof' and the defect being merely a technical one, caused by clerical inadvertence, and the application for amendment having been made bona fide and without delay, the defect should be allowed to be cured so that the trial of the petition on merits is secured. ' the object of copies supplied by the petitioner being attested by him as true copies and served on the respondents is clearly to inform the..........on the aforesaid objection, a preliminary issue was framed as under on 12-7-1967:'whether due to copies of annexures (a), (2) and (3) not having been furnished for being supplied to the respondents, the petition is liable to be dismissed under section 86(1) of the representation of the people act, 1951?'5. later, on 17-7-1967, the petitioner filed an application under section 86(5) of the representation of the people act read with order 6, rule 17 read with section 151 of the code of civil procedure seeking permission of the court to incorporate the contents of annexures (a), (2) and (3) in the body of the petition itself by way of better particulars.6. the application for amendment was opposed by the learned counsel for the first respondent. as it is convenient to consider the.....
Judgment:
ORDER

S.P. Bhargava, J.

1. This election petition was filed by the petitioner Ramshanker challenging the election of respondent No. 1 Jugalkishore who was elected from a constituency known as 'Hatta 162' constituency of the Vidhan Sabha of Madhya Pradesh. In the election which took place on 17-2-1967, in all fifteen candidates including the petitioner had taken part. The petitioner and the first ten respondents contested the election while respondents 11 to 14 withdrew their candidature after the acceptance of their nomination papers within the time allowed for such withdrawal. The election of the first respondent is challenged on the ground that he resorted to the corrupt practice described in Section 123(5) of the Representation of the People Act, 1951 (hereinafter called the Act.) The particulars of the said corrupt practice have been specified in paragraphs 6 to 17 of the peti-tion, which, briefly stated, consisted of procuring and hiring vehicles for conveyance of the voters to the different polling stations and the vehicles procured or hired were used for the said purpose on the date of Voting.

2. In Paragraph 4 of the petition it was averred that annexed to the petition and as part thereof is annexure A showing the number of votes obtained by each of the candidates who contested at the poll. The petition referred to annexure (2) and annexure (3) also. Annexure (2) is a schedule showing the names of persons who worked for the returned candidate. Annexure (3) is the schedule showing the names of electors who were carried In the vehicles for casting their votes. It is admitted on behalf of the petitioner and is stated so in paragraph 8 of the application for amendment of the petition that by inadvertence copies of the said three annexures (A), (2) and (3) were not given for being served on the respondents. It is averred in the said amendment that copies supplied to the respondents were copies of the petition minus the said annexures.

3. The first respondent in his written-statement raised a preliminary objection to the effect that in paragraphs 4, 16 and 17 of the petition reference is made by the petitioner to annexures (A), (2) and (3) and the petitioner himself states that these annexures are parts of the election petition but in spite of this the petitioner did not file copies of these annexures along with the copies of the petition as required by Section 81(3) of the Act. It is pleaded that as there were fourteen respondents in the petition, the petitioner was bound to file fourteen copies of the entire petition including the said annexures. It is urged that as there was non-compliance of Section 81(3), the petition should be dismissed under Section 86 of the Representation of the People Act, 1951.

4. On the aforesaid objection, a preliminary issue was framed as under on 12-7-1967:

'Whether due to copies of annexures (A), (2) and (3) not having been furnished for being supplied to the respondents, the petition is liable to be dismissed under Section 86(1) of the Representation of the People Act, 1951?'

5. Later, on 17-7-1967, the petitioner filed an application under Section 86(5) of the Representation of the People Act read with Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure seeking permission of the Court to incorporate the contents of annexures (A), (2) and (3) in the body of the petition itself by way of better particulars.

6. The application for amendment was opposed by the learned Counsel for the first respondent. As it is convenient to consider the application for amendment and the firstpreliminary issue reproduced above together, arguments on both the application for amendment and the preliminary issue were heard together.

7. Shri G. P. Singh, learned Counsel for the first respondent, has reiterated the objections raised in the written-statement. He has urged that the provision contained in Section 81(3) with regard to the supply of true copies is mandatory, that the copies filed by the petitioner did not contain the said annexure and therefore could not be treated to be 'copies of the petition' within the meaning of Section 81(3); that the petition on account of the omission of the supply of true copies of the petition suffered from a defect of presentation under Section 81(3) of the Act and it could not be allowed to be cured later by any amendment or by permitting the petitioner to file copies of the annexures subsequently; that on the ground of non-compliance of the mandatory provision of Section 81(3), the petition should be dismissed under Section 86(1) of the Act. With regard to the amendment application, the argument advanced by the learned Counsel is that the petition as filed in Court did not suffer from any defect of particulars which are now sought to be supplied. In the petition itself it was clearly averred that annexures (A), (2) and (3) were parts of the petition and if they were so, according to the petitioner himself the question of amending the petition which incorporated these very particulars though, in another form, was wholly unnecessary and the question of amendment really did not arise at all. Further it has been urged that possibly the application for amendment has been made only to get over the defect of presentation of the petition, but such a defect could not be allowed to be cured under Section 86(5) of the Act or even under Order 6, Rule 17 of the Code of Civil Procedure as under the general provisions of law only that amendment could be allowed which was not in contravention of the provisions of the Act.

8. Shri R. S. Dabir, learned Counsel for the petitioner, urged in reply that there is no defect in the petition as the petition contains all the three annexures (A), (2) and (3). He has further urged that the defect of non-supply of copies of the said annexures for being served on the respondents does not entail the penalty of dismissal of the petition as the petition can be dismissed only if there is a failure to comply with the provisions of Section 81(3) in respect of 'copy of the petition' and not 'annexures thereof' and the defect being merely a technical one, caused by clerical inadvertence, and the application for amendment having been made bona fide and without delay, the defect should be allowed to be cured so that the trial of the petition on merits is secured. He further urged that the requirement of the annexures being served along with the copy of the petition on the respondents is merely technicaland cannot be held to be mandatory. It has also been urged that the application for amendment of the petition falls squarely within the provision of Section 86(5) of the Act and the general provisions of law contained in Order 6, Rule 17, C. P. C., and there could be no valid objection to the amendment being permitted and therefore the petition should not be dismissed under Section 83(1) of the Act.

9. It would be convenient to consider the arguments advanced in connection with the preliminary issue first and then to take up the question as to whether the petition should be allowed to be amended.

10. The first question which arises for consideration is whether the provision with regard to the supply of copies made in Section 81(3) is a mandatory provision. Section 81(3) reads 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.'

The object of copies supplied by the petitioner being attested by him as true copies and served on the respondents is clearly to inform the respondents of the grounds on which the election is challenged. Where a statute requires an act to be done at or within a particular time, or in a particular manner, the question arises whether the validity of the act is affected by a failure to comply with what is prescribed. If it appears that Parliament intended disobedience to render the act invalid, the provision in question is described as 'mandatory' 'absolute,' 'imperative' or 'obligatory' ; if, on the other hand, compliance was not intended to govern the validity of what is done, the provision is said to be 'directory.' (See Halsbury's Laws of England, Simonds Edition, Vol. 36, Article 656). In the foot-note (b) to Article 656, the following passage is found :--

'It has also been said that mandatory provisions must be fulfilled exactly, whereas it is sufficient if directory provisions are substantially fulfilled, see, e. g., (1875) 10 CP 733; at p. 746; Philips v. Goff, (1886) 17 QBD 805 at p. 812. It appears, however, from the authorities (see, e.g., notes (i) --(I), pp. 435, 436, post) that acts have frequently been held valid notwithstanding a total failure to comply with what is prescribed, and the foregoing proposition would seem to amount to no more than an inaccurate description of the over-all position where a provision laying down a number of requirements is held to be mandatory as to some and directory as to the rest: see e. g., Pope v. Clarke, (1953) 2 All ER 704, (the facts of which are mentioned in note (h), p. 435, post).'

In K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687 their Lordships held the provisions of Section 81 to be mandatory. In Sardar Mal v. Smt. Gayatri Devi, AIR 1964 Raj 223 in paragraph 26 the learned Judge expressed the view that the requirements of Section 81(3), both about the re-quisite number of copies to be supplied and their attestation under the signature of the petitioner are mandatory as they have a purpose and a public policy behind them and are essential elements of the provisions contained in that sub-section. To my mind, the requirement of the copies being supplied to the respondents according to Section 81(3) is as important a requirement of the Section as the necessity of supplying the requisite number of copies after getting them attested under the signature of the petitioner.

11. In Baru Ram v. Smt. Prasanni, 1959 SCR 1403=AIR 1959 SC 93 it has been explained that whenever the statute requires a particular act 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 accept the argument that the failure to comply with the said requirement should lead to any other consequence. In such a case, the requirement is a mandatory requirement which must be strictly complied with. Applying this test to the instant case, it is clear that Section 81(3) in unmistakable terms lays down the manner in which an election petition should be presented and it is also clearly laid down in Section 86(1) as to what the consequence would be in case the provisions of Section 81 are not complied with. I, therefore, hold that the said requirement is mandatory.

12. The next question which arises for consideration is as to whether the copies of the petition given by the petitioner with the omission of the annexures (A), (2) and (3) for being served on the respondents can be treated to be copies or true copies of the petition within the meaning of Section 81(3) of the Act. In Murarka Radhey Shyam Ram Kumar v. Roop Singh, AIR 1964 SC 1545 their Lordships of the Supreme Court took the view that the word 'copy' as used in Section 81(3) does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it. Their Lordships' dictum indicates that a substantially true copy would be a copy within the meaning of that section.

It is true that in the ultimate analysis in every case the question involved is one of construction of a relevant provision of a particular statute which proceeds on the basis of the words used as understood in the context of the statute, but it appears to be plain that where the portion which is omitted in the copy exhibited was a material portion, there can be little doubt that such a copy which differs in material particulars from theoriginal is not a copy within the meaning of Section 81(3) of the Act. The petition itself declares that the copies of the annexures (A), (2) and (3) are parts of the petition. One of the recognised ways of incorporating documents or other matter which is not reproduced in the petition itself is to include it in the annexures and schedules and to state that such annexures and schedules may be treated as part of the petition. The word ''petition' as used in Section 81(3), in my opinion, includes the annexures to the petition containing particulars of corrupt practice alleged therein. I am fortified in my view by the observations made by the Rajasthan High Court in Sardar Mal's case, AIR 1964 Raj 225 (supra) in para 31 of the judgment. Section 83 which deals with the contents of the petition clearly provides for schedules or annexures to the petition in Sub-section (2) thereof. The entity of an annexure may be different but nevertheless it is a part of the petition when it contains material particulars of the corrupt practice.

13. It is obvious that any one who has the original petition before him and the copy of the petition supplied to the respondents cannot fail to notice that they are neither identical or substantially the same, as the particulars given in the annexures annexed to the petition are lacking in the copies of the petition supplied to the respondents. These particulars are so material that without them the election petition cannot be said to be complete. It lacks something so vital that without the annexures the copies served cannot be said to be copies of the petition. Under Section 81(3) it is the duty of the petitioner to supply the copies for being served on the respondents. By attesting copies under his own signatures to be true copies of the petition, the petitioner assures that they have been duly compared with the original and then served on the respondents without any further comparison as the copies of the original. The copies supplied are so defective that on their basis it is obviously impossible to file a complete written-statement meeting the objections raised against the returned candidates in the petition. In annexure (2) and list of workers of respondent No. 1 has been given by the petitioner. Without knowing the names he could not accept or deny as to whether the particular persons mentioned in annexure (2) were his workers or not. Similarly, in annexure (3) the list of those electors has been given who were allegedly carried to the polling stations in the vehicles hired or procured by the first respondent. (In the heading of annexure 3 the word 'labourers' appears to have been wrongly written instead of 'electors'). Again, unless the names of these electors were communicated to the respondents when the copies of the election petition were served on them, it was not possible for them to meet the case of corrupt practice set up in thepetition and to file their written-statement on the date required by the Court

The defect thus is of a fundamental natureand therefore the copies of the petition served on the respondents with the omission of the said annexures cannot be treated to be copies or true copies of the petition within the meaning of Section 81(3) of the Act.

14. The third question which arises for consideration is as to whether the defect produced by the non-supply of copies is a defect of presentation of the petition and so cannot be allowed to be cured subsequently. I may straightway refer to the decision of their Lordships in Ch. Subbarao v. Member, Election Tribunal, Hyderabad, AIR 1964 SC 1027. In that case it was urged on behalf of the appellant that the jurisdiction of the tribunal under Section 90(3) to dismiss an election petition which does not comply with the provisions of Section 81 was attracted only if there was a defect in the petition itself and that a defect merely in the copy accompanying the petition would not be a case of a petition not complying with the provisions of Section 81 so as to require or even permit the tribunal to dismiss the petition. Their Lordships rejected this argument in Para 14 of their judgment and significantly observed:

'When Section 81(3) requires an election petition to be accompanied by the requisite number of copies, it becomes a requirement for the presentation of the election petition to the Commission, and therefore a condition precedent for the proper presentation of an election petition. If that is a requirement of Section 81 no distinction can be drawn between the requirements of Sub-sections (1) and (2) and of Sub-section (3). We might add that if there is a total and complete non-compliance with the provisions of Section 81(3), the election petition might not be 'an election petition presented in accordance with the provisions of this Part' within Section 80 of the Act. We are therefore inclined to consider that if there had been such a non-compliance with the requirement of Subsection (3) not merely the Election Commission under Section 85 but the Election Tribunal under Section 90 (3) would prima facie not merely be justified but would be required to dismiss the election petition.'

In my opinion, these observations aptly apply with full force in the instant case where the provision made in Section 81(3) with regard to the supply of copies or true copies as stated above has not been complied with.

15. I may now consider the application for amendment of the election petition. The amendment which is sought to be introduced in the petition is to lift the particulars given in the annexures bodily from them and to incorporate them in the petition. Under Section 86(5) the High Court may upon such terms as to costs or otherwise, as itmay deem fit, allow the particulars of any corrupt practice alleged in the petition to bs amended or amplified in such a manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

A perusal of the decisions in Harish Chan-dra Bajpai v. Triloki Singh, AIR 1957 SC 444, AIR 1958 SC 687, Inamati Mallappa Bassappa v. Desai Basavaraja Ayyappa, AIR 1958 SC 698, Chaturbhuj Chunnilal v. Election Tribunal, Kanpur, AIR 1958 All 809 and Amur Lal v. Hunna Mal, AIR 1965 SC 1243 makes it clear that even in the absence of the said provision the Court has wide powers for allowing amendments under Order 6, Rule 17, Civil Procedure Code but plainly enough there are two limitations on the powers of the Court; (i) that it cannot allow any amendment which will enable the petitioner to remove the defect pertaining to the presentation which is dealt with under Section 81, and (ii) that it cannot allow a defect of non-joinder of parties to be cured after the [imitation for making the election petition is run out. The third limitation is to be found in the provision under Section 86(5) of the Act which prohibits any amendment being allowed which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. With these limitations the High Court can permit the same amendments in the election petition as it could in a plaint or an application under the Code of Civil Procedure. However, it is plain that only those amendments can be permitted which are necessary for the purpose of determining the real question in controversy between the parties. If the an-nexures were parts of the election petition according to the petitioner himself, as they really are, there is no point in permission being granted to introduce the same matter by incorporating the particulars given in the annexures in the body of the petition. This would be a change of form without any substance and such an amendment is obviously unnecessary and futile. On the other hand, if the amendment were desired for the purpose of getting over the mandatory provisions of Section 81(3) read with Section 86(1), the amendment would defeat a provision of law and therefore could not be allowed. The most significant reason for not allowing the amendment, in my opinion, is that the amendment, if permitted, would enable the petitioner to remove the defect of presentation which cannot be allowed to be done.

16. For the aforesaid reasons I hold that the copy of tie petition supplied to the respondents was not a copy of the election petition within the meaning of Section 81(3) and therefore the election petition is liable to be dismissed under Section 86(1). I fur-ther hold that the petitioner is not entitled to introduce the amendment in the petition which is sought to be made by his application dated 17-7-1967. For these reasons, the election petition is dismissed with costs. Counsel's fee Rs. 400/-.


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