1. The election of Dhaja Ram respondent (the official Congress(R) Candidate) from the Safidon Assembly Constituency (Number 30) of the Haryana Legislative Assembly has been called in question by Satya Narain petitioner, an Advocate of Jind, who was defeated in the election in spite of securing 19462 votes as the first respondent secured 19570 votes, that is, 108 votes more than the petitioner. The petitioner has also claimed a declaration under Section 101 of the Representation of the People Act, 1951 that the petitioner be declared to have been duly elected. In the circumstances detailed hereinafter, it is not necessary to travel into the merits of the allegations of corrupt practices etc., made by the petitioner. Whereas respondent No. 1 contested the petition the other defeated candidates, that is, respondents 2 to 4 did not put in appearance and were proceeded against ex parte. In his written statement dated May 22, 1972, respondent No. 1 (hereinafter called the respondent) took up various preliminary objections, out of which the first one was in the following words:--
'That the election petition and the Schedules A and B Annexed with the petition and affidavits are not attested to be true copies of the petition as required by Rule 12(f) of the Rules of procedure framed by the Hon'ble Court.'
2. After hearing the counsel for the parties on the above mentioned preliminary objections, I noticed their respective arguments in my order dated May 26, 1972. It was not disputed that the copy of the petition furnished to the respondent had not been attested by the petitioner under his own signatures to be a true copy of the petition. The identity of the copy of the petition produced before me by the respondent as being one of the copies which had been furnished by the petitioner was not disputed. Counsel for the petitioner, however, pointed out that this single copy had by mistake been left defective in the above mentioned sense but as may as ten other copies prepared by him did not suffer from that defect. It was argued that whereas one copy of the petition had been served on the respondent in the ordinary manner through a process server, another copy had been served on him by registered post. This fact was admitted by the respondent. He was, therefore, called upon the produce the other copy of the petition which had been served on him. The argument of the learned counsel for the petitioner to the effect that the copy of the petition served on the respondent being signed by the petitioner both at the place meant for his signatures and also under the verification, it should be held that there has been substantial compliance with the requirements of sub section (3) of Section 81 of the Representation of People Act, 1951 (hereinafter called the Act) was left over to be decided after seeing the duplicate copy of the petition served on the respondent. At the joint request of the counsel for the parties, the hearing of the arguments on the preliminary points was, therefore, adjourned to the next day. Mr. Jagan Nath Kaushal the learned counsel for the respondent, submitted on the next day that his client did not receive the duplicate copy of the election petition by registered post. After hearing the remaining arguments of the counsel for the parties, it was thought unnecessary to travel into the merits of the controversy in view of the law settled in this respect by their Lordships of the Supreme Court in Ch. Subbarao v. Member, Election Tribunal, Hyderabad, AIR 1964 SC 1027.
During the course of dealing with the first preliminary objection, the record of the case was scrutinised by me as well as by the counsel for the parties. As a result of that scrutiny, Mr. Kaushal urged another point which, according to him, was fatal to the maintainability of the election petition. Mr. Kaushal submitted that the petition when filed on April 18, 1972, was not accompanied by any spare copy and this defect was noticed by the Deputy Registrar (Judicial) at the time of the scrutiny of papers on April 24, 1972. Inasmuch as the limitation for filing the petition expired on April 27, 1972. Mr. Kaushal's argument was that the Deputy Registrar had no jurisdiction to allow the fatal defect under Section 81(3) of the Act to be removed and that in any case there was nothing to show that the requisite spare copies were filed by the petitioner in the Registry of the Court on or before April 27, 1972, the last date of limitation for filing the petition. Mr. Anand Sarup the learned counsel for the election-petitioner, conceded the fact that the petition when filed on April 18, 1972, was defective in this respect but submitted that the requisite copies had been filed before the expiry of the period of limitation. He could not, however, at that time specify any date on which the copies had been filed. Mr. Kaushal also referred tot he defect regarding the schedules to the petition not having been filed by April 22, 1972, and submitted that this matter may also be taken up as a part of the issues to be framed in respect of his new objection. By my detailed order dated May 27, 1972. I repelled the first preliminary objection that had been raised by the respondent in his written statement; but put the new objections raised by the counsel for the respondent in issues Nos. 2 to 4. By the same order, I framed all the nineteen issues that arose in the case but directed that the first six out of those issues would be treated as preliminary. Evidence was led by the parties on those issues. In the course of hearing arguments on the preliminary issues, counsel for the parties prayed vide their statements dated November 30, 1972, that issue No. 6 relating to the claim of the petitioner for recounting of votes may not be treated as preliminary and may be decided only if and after the evidence of the petitioner has been led on issues Nos. 7 to 14 also. In these circumstances, I am dealing in this judgment with preliminary issues Nos. 1 to 5 only and I am not entering into the merits of the controversy covered by issues Nos. 6 to 19.
Following are the first five issues:--
'(1) Whether the affidavit attached to the election petition is defective as being not in the form prescribed under the proviso to Section 83 of the Act read with Rule 94-A, inasmuch as there is no separate verification of the contents of the affidavit at the foot thereof? If so, what is the effect of the said defect?
(2) Whether the Registrar had the power to permit the defects referred to in Section 81(3) of the Act (namely, the non-filing of the schedules and the spare copies) to be removed by the election-petitioner within the period of limitation?
(3) Whether the requisite schedules to the petition and the spare copies of the petition were or were not filed within the period of limitation, that is, on or before April 27, 1972?
(4) If either issue No. (2) or issue No. (3) is decided against the election-petitioner, is the petition not liable to be dismissed under Section 86 of the Act?
(5) Whether the allegation of corrupt practice made in paragraphs 7(a) and 7(b) of the election petition lacks in material particulars? If so, what is its effect?'
3. I will deal with each of the above mentioned five preliminary issues seriatim.
Issue No. 1
4. The affidavit of the petitioner filed in support of the election petition does not have a separate verification at its bottom. Proviso to Section 83(1) states that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the 'prescribed form' in support of the allegation of such corrupt practice and in support of the particulars thereof. The manner of filing the affidavit has been prescribed in Rule 94-A of the Conduct of Election Rules, 1961 (hereinafter called the 1961 rules). That rule provides that the affidavit referred to in the proviso to sub-section (1) of Section 83 'shall be sworn before a Magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25.' The prescribed Form 25 shows that the deposition in the form of the affidavit has to be signed by the deponent and under it there is to be an endorsement to the following effect:--
'Solemnly affirmed/sworn by Shri/Shrimati....................................... at................................. this.................... day of........................... 196.' This endorsement has to be signed by the Magistrate of the first class or the Notary or the commissioner of Oaths in evidence of the deposition having been solemnly affirmed before him. The verification is not required to be signed by the deponent.
5. Ch. Bakhtawar Singh Advocate who appeared for the respondent at the hearing of arguments on these preliminary issues referred to Rule 12 of the 'Rules of Procedure and Guidance in the matter of trial of election petition under Part VI of the Representation of the People Act, 1951 as amended' which have been framed by this Court and which have been published in Chapter 4 Part-GG of Volume V of the Rules and Orders of this Court. (These rules are hereinafter called the High Court Rules). Clause (a) of Rule 12 of the High Court Rules provides that every election petition shall be accompanied:--
'Where the petitioner alleges any corrupt practice in the petition, by an affidavit, in the prescribed form, duly sworn before a competent judicial authority or an Oath Commissioner under his seal or stamp in support of the allegation of such practice and the particulars thereof. In the verification the petitioner shall separately specify, by reference to the numbered paragraphs of the affidavit, the facts which he verifies of his personal knowledge and those which are verified on information received and believed to be true. In the latter class of averments, the petitioner shall further specify the source of his information.'
6. Counsel submitted that the petitioner not having specified separately in the verification of the affidavit with reference to its numbered paragraphs the facts which he verifies of his personal knowledge as distinct from those which he has verified on information received and believed by him to be true, the requirement of Rule 12 of the High Court Rules in that respect has not been satisfied. He, however, admitted that the defect in the affidavit in this respect is not fatal and it can be removed by the petitioner by now verifying the affidavit in the requisite manner. In my opinion, the objection of the respondent against the verification of the affidavit of the petitioner is misconceived. No rule framed by the High Court can go beyond or abrogate the requirements of the Act. The Proviso to Section 83 requires the affidavit to be in the prescribed form. Form 25 prescribed under Rule 94-A does not require any separate verification of the type referred to by the petitioner being made at the foot of the body of the affidavit of the petitioner. Moreover, the affidavit in Form 25 under Rule 94-A is itself really a separate verification of certain allegations in the election petition and there can be no question of such a verification being re-verified by the petitioner. In the body of the affidavit the petitioner has merely stated as to what allegations in the petition are true to his knowledge and which of those are true according to information received and believed by him to be correct. In the absence of any statutory requirement to that effect, it does not appear to be necessary to verify an affidavit of this type separately. I, therefore, decide the first preliminary issue in favour of the petitioner.
Issue No. 2:
7. Lengthy arguments have been addressed by the counsel for the parties on this issue. It is the common case of both sides that this election petition when originally filed by the petitioner on April 18, 1972, did not comply with the mandatory requirements of sub-section (3) of Section 81 of the Act. It is also not disputed that the limitation for filing this petition for calling in question the election of the respondent was upto April 27, 1972. Counsel for the petitioner has not controverted the proposition that if the petitioner had not rectified the defect in question within the period of limitation (as he claims to have done) the Court would have been bound to dismiss this petition under the mandatory provisions of Section 86 of the Act and nobody could have helped the petitioner. The only question of fact on which parties have joined issue (and that is the subject-matter of Issue No. 3) in respect of this objection relates to the date on which the spare copies of the petition, (and the schedules attached thereto) were filed by the petitioner. Whereas the case of the petitioner as ultimately brought out at the stage of evidence is that all those papers were filed with the Superintendent of the Election Branch in the afternoon of April 24, 1972, the argument of the counsel for the respondent is that the said papers could not have been filed by the petitioner before April 28, 1972, and that, in fact, the same appear to have been filed sometime in the afternoon of that date or on the morning of April 29, 1972, before the resumed date of final scrutiny by the Deputy Registrar (Judicial). As the non-filing of the copies of the election petition is admittedly fatal to the petition and as it is the common case of both sides that the other papers (schedules and lists etc.) were also filed at the same time as the spare copies of the petition, I will confine the legal as well as the factual aspect of this matter to the non-filing of the copies of the petition only.
8. The contention of Chaudhry Bakhtawar Singh which forms the subject-matter of Issue No. 2 is that even the Court itself has no power to permit the defect referred to in Section 81 of the Act (and, in fact, any of the three defects referred to in Section 86(1) of the Act) to be removed by the election petitioner at any time after the petition has once been presented. In the alternative he argued that if the Act by any implication permits such a defect to be removed within the period of limitation, it can be removed only with the permission of the Judge designated to hear the petition. Counsel submitted that neither the petitioner can remove such a fatal defect as a matter of right nor even with the permission of the Registrar or the Deputy Registrar. According to Mr. Bakhtawar Singh, neither the Act nor the 1961 Rules empower the Court to delegate such a function to the Registrar or to any other officer in the Registry of the Court. He further argued that even if the High Court delegate such a power to the Deputy Registrar, the High Court has, in fact, not delegated any such power to the Deputy Registrar and a reading of rules 14 and 15 clearly shows that the High Court expressly kept back that power from the Deputy Registrar.
9. Sub-Section (1) of Section 86 provides inter alia that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81. Sub-Section (3) of Section 81 requires that every election petition shall be accompanied by as may copies thereof as there are respondents mentioned in the petition. Section 83 refers to the contents of an election petition. Section 80A(2) provides that the jurisdiction to try an election petition shall be exercised ordinarily by a Single Judge of the High Court and the Chief Justice shall from time to time, assign one or more Judges for that purposes. Section 81(1) requires inter alia that an election petition may be 'presented' by any candidate within forty-five days from the date of election of the returned candidate. The argument of Mr. Bakhtawar Singh is that a combined reading of sub-(1) and (3) of Section 81 shows that an election petition, when 'presented' must be 'accompanied by' the requisite copies thereof; and in as much as this election petition when presented on April 18, 1972, was admittedly not accompanied by any copy of the petition, the Court has no discretion but to enforce the penalty provided in Section 86 of the Act and to dismiss the petition on that short ground. Counsel submitted that in the absence of any specific power conferred by the Act or by the rules framed thereunder, the Court has no power to allow the defect to be removed after the petition has actually been presented to the Court irrespective of whether limitation for filing the petition has or has not expired.
Since reference has been made by counsel for both sides to Rules 14 and 15 of the High Court Rules, also, I may quote those rules verbatim in order to show that the High Court has not even purported to authorise the Deputy Registrar to allow the rectification of any a defect mentioned in Section 86 of the Act at any stage:--
'14. Scrutiny of papers.--(a) The Registrar shall cause the petition and its accompanying documents to be scrutinised under his personal supervision. On the conclusion of such scrutiny, the Registrar shall make an endorsement on the back of the last page of the index to the effect that the papers have been scrutinised and if the same have been found to be in order or not, if the Registrar finds that the papers are not complete or do not, otherwise comply with the requirements of these rules or the provisions of Part VI of the Act, an endorsement to that effect would be made specifying the defaults or the omissions which require rectification. The endorsement would also show separately if the security for costs referred to above has been deposited by the petitioner before the filing of the petition, and, if the petition has been filed within limitation.
(b) On such scrutiny if it is found that the petition does not comply with the requirements of Section 81 or Section 82 of S. 117 of the Act, the Registrar shall make a specific endorsement to that effect.
(c) If some other defect is detected in the petition or it is found that it does not comply with any other rule, the petition will be returned with such endorsement as herein-before specified to the petitioner or the Advocate-incharge, on the date specified in the receipt under Rule 11(ii). The said endorsement shall specify the time within which the defect or defects mentioned therein shall be removed and the said time shall not exceed seven days in any case. The rectified petition shall be refiled by the petitioner or the Advocate incharge within the time so specified.
(d) A list of all the petitions, which are not in conformity with the mandatory provisions of Sections 81, 82 or 117 of the Act, shall be put on a special notice-board meant for notices relating to election petitions and a copy of such list shall be sent to the Secretary of the High Court Bar Association before 3.30 p.m. on the day preceding the date for which these petitions are directed to be placed before any one of the designated Judges. The list shall specify the date on which and the name of the designated Judge before whom the petition will be placed for necessary directions or orders in respect of non-compliance with the rules. Such date of hearing shall also be communicated to the petitioner or the Advocate incharge on the date specified in the receipt under Rule 11(ii).
15. Preliminary hearing of defective petitions.--(a) All such petitions, (i) which have been prima facie found by the Registry as not complying with the provisions of Sections 81 or S. 82 or S. 117 of the Act or (ii) which have been filed incomplete or in any other way not complying with these rules and which the petitioners or the Advocates incharge may not have taken back or (iii) which may have been refiled without necessary compliance or (iv) which may have been refiled after the expiry of the period allowed by the Registry, shall be brought up before any of the designated Judges on a date which has either been noted by the petitioners or the Advocates incharge or which has been specified in the list prepared, notified, and sent to the High Court Bar Association before 3.30 p.m. on the preceding date, or which has been notified to an un-represented petitioner by registered post.
(b) If the petition does comply with the provisions of the aforesaid three sections of the Act, but does not comply with any of the other rules or requirements contained in this Chapter, the High Court may allow the petitioner or the Advocate incharge such further time not exceeding one week to do the needful on such terms as it may deem fit to impose.
(c) All such cases reported by the Registry shall be included at the top of the Daily Cause list of the designated Judge.
(d) If the High Court finds that Sections 81, 82, and 117 of the Act have been duly complied with and that there has been substantial compliance with the other rules and it is not necessary to have any other rectification or amendment made in the petition or other papers, the High Court shall order notice of the petition to issue to the respondent or respondents, as the case may be.'
10. An analysis of the above-quoted High Court Rules clearly brings out the distinction between fatal defects in a petition which are referred to in Section 86 of the Act on the one hand and other ordinary procedural defects on the other. That distinction is clearly maintained throughout the fabric of Rules 14 and 15. Clause (a) of Rule 14 contains the general provisions for scrutiny of an election petition by the Registrar. Clause (b) of that rule refers specifically to the three fatal defects which entail consequences of dismissal of the petition under Section 86(1). The provision contained in clause (C) of Rule 14 authorising the Registrar to return the election petition to the petitioner for removal of any defects within the period specified by the Registrar in his endorsement specifically excludes the defects mentioned in clause (b) by confining its operation (operation of clause (c)) to 'some other defect', i.e., some defect other than the defects mentioned in clause (b) of R. 14. The water tight distinction between the two kinds of defects is maintained in Rule 15 also. Clause (a) of that rule refers to all defective petitions, and categorises them into three distinct categories, namely:--
(i) those which prima facie suffer from any of the three defects mentioned in Section 86(1) of the Act;
(ii) those suffering from defects referred to in clause (c) of Rule 14 and which have not been taken back by the petitioners for rectification; and
(iii) those which were returned under Rule 14(c), but have been refiled either without compliance with the directions of the Registrar, or refiled after the expiry of the period allowed by the registry.
The Registrar is not permitted to pass any order condoning any of the three defaults referred to above in any circumstances. A duty is cast on him by clause (a) of Rule 15 to put up all such cases before the Judge to whom election work has been assigned by the Chief Justice. Clause (b) of Rule 15 authorises the High Court to allow the petitioner to rectify any defect of the second or third category referred to above within a further period of one week, but does not at all refer to any power in the High Court to allow rectification of any of the fatal defects referred to in sub-clause (i) of clause (a) of Rule 15, that is any of the three defects mentioned in Section 86(1) of the Act. Again in clause (d) the rule of substantial compliance is referred to only in respect of the defects in an election petition other than the defects mentioned in Section 81, 82 or 117 of the Act. The High Court rules do not, therefore, help the petitioner at all.
11. It appears to be appropriate to set out at this stage the history of the election petition from the date of its presentation to the date of final scrutiny by the Deputy Registrar. When the petition was filed on April 18, 1972, the following endorsement was made thereon by the Deputy Registrar (Judicial):--
'Presented personally by Shri R. S. Mittal, Advocate, today at 4 p.m. Put up on 24-4-1972 for scrutiny.
D. D. Khanna
C. P. Popli, dealing assistant in the Election Branch, then prepared a typed defect list under his signature, dated April 22, 1972, specifying therein the following defects in the petition:--
'1. Schedules not filed along with the petition;
2. Spare copies not filed;
3. Index Sheet is not attached with the petition;
4. Petition is not page-marked; and
5. Registered A. D. envelopes not filed.'
It will be noticed from the above-mentioned defect list prepared by the Election Branch that whereas defect No. 2 falls within Sections 81(3) and 86(1) of the Act, objections Nos. 3 to 5 are ordinary procedural defects which fall within the scope of clause (c) of Rule 14 of the High Court Rules. When the petition came up before the Deputy Registrar for scrutiny on April 24, 1972, in pursuance of his order, dated April 18, 1972, counsel for the petitioner appeared before him and requested for more time. The Deputy Registrar thereupon passed the following order:
'Present:--Shri R. S. Mittal, Advocate.
He has requested time to remove the defects pointed out by the office. Let it be refixed on 28-4-1972, after the defects have been removed, as agreed to by the counsel.
D. D. Khanna
The order passed on the file by the Deputy Registrar on April 28, 1972, reads as below:
'Shri R. S. Mittal has informed me on the phone that he is indisposed and as such the case may not be taken up for scrutiny today. Put up tomorrow, the 29th April, 1972, for orders. Counsel may be informed.
12. It is the common case of both sides that by the time the case was placed before the Deputy Registrar on April 29, 1972, the spare copies of the petition had been filed by the petitioner and the other defects had also been removed. The final order of scrutiny passed by the Deputy Registrar on April 29, 1972, is in the following terms:--
'Present: Shri R. S. Mittal, Advocate for Petitioner.
The petition was filed on 18-4-1972, and the result in this case was declared on 13-3-1972; hence it is within time. The petition is accompanied with the security receipt in the sum of Rs. 2,000/- deposited in this Court before filing of the petition under the rules. The petition was scrutinised and as the defects pointed out on the previous date have been removed, it is now prima facie in order. Issue notice for scrutiny of service for 22nd May, 1972, and for settlement of issues for 26th May, 1972.
D. D. Khanna
I will discuss the disputed question about the actual date on which the spare copies of the petition were really filed by the petitioner while dealing with issue No. 3. I will, however, assume for purposes of issue No. 2 that the fatal defect was in fact removed by the petitioner by filing spare copies on or before April 27, 1972, i.e., within the period of limitation for filing the election petition. Counsel for the petitioner submitted that neither Section 80A of the Act nor any rule requires the petition to be presented to a Judge, and inasmuch as the period of limitation prescribed by Section 81(1) of the Act is 45 days, the petitioner had a right to rectify all kinds of defects in the petition up to the last day of limitation even without seeking anybody's permission. Emphasis was laid by the counsel for the petitioner on the fact that no law prohibits an incomplete petition to be completed by the petitioner within the period of limitation.
He relied on the judgment of the Supreme Court in Raj Narain v. Smt. Indira Nehru Gandhi, AIR 1972 SC 1302, in support of his argument to the effect that the Courts should be reluctant to frustrate an action on technical grounds. He also referred to the answer given by the Supreme Court in the negative to the question whether the court should refuse to enquire into allegations of corrupt practices merely because the election-petitioner or someone who prepared his brief did not know the language of the law. I am inclined to think that this argument of the learned counsel for the petitioner is not well founded. The observations of the Supreme Court, on which counsel relied and to which reference has been made above, related to the interpretation of an allegation of corrupt practice made in the election petition, and not to a technical defect of the kind mentioned in Section 81(3) of the Act, which howsoever technical it may appear, has been made fatal by the Legislature in its wisdom. The argument of Mr. Anand Sarup was that sub-section (3) of Section 81 does not require the petition to be complete in all respects, when it is presented. According to counsel, the only purpose of sub-section (3) of S. 81 is to expedite the trial and disposal of the petition and so long as the defect is removed before the petition comes up for hearing before the Judge, the requirement of that a provision should be deemed to have been substantially complied with. According to Mr. Anand Sarup, the Court could not have dismissed this petition under Section 86(1) of the Act if it had been put up before the Judge on April 19, 1972, with the endorsement of the Registrar to the effect that the petition suffered from the defect mentioned in Section 81(3) of the Act. He referred to three sets of cases in support of his argument. The first set of cases relates to the filing of a plaint or a copy of the decree with an appeal with deficient court-fees.
Those cases comprise of the judgment of the Judicial Commissioner in Sukhnandan Prasad Hanuman Prasad v. Baburam Maheswar Lal, AIR 1952 Vindh Pra 12, and the judgment of the Lahore High Court in Mohammad Fazal Elahi v. Ram Lal, AIR 1935 Lah 124(2). In the case of Sukhnandan Prasad Hanuman Prasad, AIR 1952 Vindh Pra 12(supra) it was observed by the learned Judicial Commissioner that when the Court grants time for the removal of the defect, and the defect is remedied, then the suit would normally be deemed to have been instituted not on the day of removal of the defect but the day of tendering the plaint itself because the Court in its discretion has, as it were, condoned the delay. Those observations are obviously of no use to the petitioner as it is nobody's case that the defect under Section 81(3) could be permitted to be removed after the period of limitation even by the Court. In Mohammad Fazal Elahi's case AIR 1935 Lah 124(2) (supra) it was held that the appeal should be deemed to be filed for purposes of limitation only on the day when it is refiled after sufficiently stamping the copy of the decree and the period between the date of making up the deficiency in court-fee on the certified copy of the decree cannot be excluded from the prescribed period of limitation. That proposition again does not help the petitioner. A distinction was sought to be drawn by Mr. Anand Sarup between the date of institution of an action and the date of presentation of the plaint or petition. Counsel argued that the limitation is for instituting the action and not for presenting the petition, and the petition has to be complete when instituted and not when presented. This argument stands repelled by the very phraseology of Section 81(1) of the Act which refers to the petition being presented within 45 days and not being instituted. The words 'accompanied by' in Section 81(3) clearly appear to me to be referable to the time of original presentation of the election petition. The answer to the question as to the date on which this petition was presented can only be April 18, 1972. The answer to the second question whether it was or was not accompanied by spare copies on the date of its presentation cannot possibly be answered in the affirmative on the admitted facts of this case.
13. The second set of cases to which Mr. Anand Sarup referred relates to the addition of a new ground of attack in an election petition within the period of limitation. In this connection he referred to the judgments of the Supreme Court in Ram Dayal v. Brijraj Singh, AIR 1970 SC 110, and in Kashinath v. Smt. Kudsia Begam, AIR 1971 SC 372. In Ram Dayal's case it was held that an application for leave to amend an election petition so as to introduce therein a new ground for setting aside the election filed after the period of limitation, cannot be allowed. In Kashinath's case AIR 1971 SC 372 (supra) it was ruled that the amendment of an election petition so as to rectify a defect therein after the expiry of the period of limitation for filing it is not permissible. There is no quarrel with the propositions of law laid down in Ram Dayal's case and in Kashinath's case. Nor am I able to see any analogy between the provisions relating to the amendment of an election petition on the one hand and the provision relating to the duty cast on the High Court by Section 86(1) of the Act to dismiss an election petition which is not accompanied by spare copies requisite under Section 81(3) of the Act when it is presented under Section 81(1) of the Act on the other. The third set of cases, on which reliance was placed on behalf of the petitioner, deal with the broad legal principles, namely, (i) no litigant should suffer on account of the fault of the Court or of its office and (ii) the substantial compliance rule.
Reference was made to the judgment of the Supreme Court in Jagat Dhish Bhargava, AIR 1961 SC 832, in support of the first proposition. The fault of the office of the High Court referred to by Mr. Anand Sarup lies in the Deputy Registrar having impliedly allowed rectification of the defect under Section 81(3) of the Act in his final order of scrutiny, dated April 29, 1972. Neither any provision in the Act nor in the Rules framed under it, nor any provision in the High Court Rules, authorises the Registrar or the Deputy Registrar to get a fatal defect under Section 81(3) removed from an election petition. In fact High Court Rule 15(a)(i) enjoins on the Registrar the duty to put up to the Judge any election petition which suffers from any of the defects mentioned in Section 86(1) of the Act without even issuing notice of the petition to the respondents named therein. IF, therefore, the Deputy Registrar's order can be construed to amount to rectification of the alleged defect, the same is without jurisdiction and has no force in the eye of law, and cannot absolve the petitioner from the liability incurred by him under Section 86(1) of the Act.
14. Mr. Bakhtawar Singh also referred to the judgment of the Supreme Court in Amin Lal v. Hunna Mal, AIR 1965 SC 1243, for the proposition that the mere inaction of the Registrar in not bringing the defect to the notice of the Court immediately after it was detected does not in any way confer any right on the petitioner to improve his position. That case arose under the unamended Act, and it was held that the power of the Election Tribunal to dismiss an election petition is not in any way affected by the fact that it was not dismissed by the Election Commission at the initial stage.
15. Reliance for the substantial compliance with rule was placed on the Full Bench judgment of the Punjab High Court in Dr. Anup Singh v. Abdul Ghani, ILR (1963) 2 Punj 524=(AIR 1963 Punj 429) (FB) and on the judgment of the Supreme Court upholding the above mentioned judgment of the High Court in Dr. Anup Singh v. Shri Abdul Ghani, AIR 1965 SC 815. Great stress was laid on the judgment of this Court and that of the Supreme Court in Dr. Anup Singh's case, because that case related to a defect under Section 81(3) of the Act. Requisite number of spare copies had been supplied by the election-petitioner and each page of each copy was signed by the petitioner in that case. The only defect pointed out was that the election-petitioner had not made an endorsement on each of the copies of the petition filed by him to the effect 'attested to be true copy of the petition.' The High Court held that the requirement of using the specific words 'attested to be true copy of the petition' is not mandatory but is directory, and substantial compliance with it would meet the object of the provision especially when there has been no prejudice to any respondent to the election petition in his defect. While upholding the judgment of the Full Bench of this court in Dr. Anup Singh's case, it was held by the Supreme Court that though the attestation required by Section 81(3) was not there specifically in the copies, the presence of the signature of the election-petitioner on each copy was sufficient to indicate that the copy was attested as a true copy even though the words 'true copy' were not written above the signatures in the copies. This was held by the Supreme Court to amount to substantial compliance with Section 81(3) of the Act, and in so holding their Lordships followed the view already expressed by them in AIR 1964 SC 1027.
Specific reference was made by Mr. Anand Sarup to the following observations of the Supreme Court in Ch. Subbarao's case:-
'While we are conscious of the need for expeditious disposal of election petitions, and for the strict enforcement of provisions designed to achieve this purpose, we cannot be oblivious to the circumstances that to read every requirement literally might equally defeat the purpose for which Part VI is intended, viz. that elections are conducted in accordance with the relevant statutory provisions framed to ensure purity and orderliness and that the candidate who has not obtained a majority of valid votes or has obtained it in flagrant breach of the statutory provisions is not held entitled to represent the constituency.'
The question of substantial compliance would, in my opinion, arise only in a case where the requirement of Section 81(3) has been complied with though not literally. In the case before me the question does not revolve around the literal or substantial compliance with the requirements of Section 81(3). The question before me is about the point of time at which the requirements of Section 81(3) have to be complied with. The alternative view-points canvassed before me are that according to the petitioner Section 81(3) has to be complied with at any time before the expiry of the period of limitation irrespective of the date of presenting the election petition, but according to the respondent, the provision has to be complied with at the time of original presentation of the petition, and if this is not done, the High Court has no option but to dismiss the petition under Section 86(1) of the Act.
16. Mr. Bakhtawar Singh referred to the authoritative pronouncement of the Supreme Court in Ch. Subbarao's case AIR 1964 SC 1027 to the effect that an election petition is not to be equated to an action at law or in equity but as the rights are purely the creature of statue, if the statute renders any particular requirement mandatory, the courts possess and can exercise no dispensing power to waive such non-compliance. No question of equity arises in an election petition which is a technical right conferred by the statute and has to be exercised within the limitations prescribed by the law conferring that right.
17. I am in respectful agreement with the view expressed by Jagat Narain, J. in Mohan Raj v. Surendra Kumar Taparia, 31 ELR 416 (corresponding to AIR 1968 Raj 287), to the effect that even if the Court omits to notice any defect under Section 82 of the Act at the stage of scrutiny before issuing process to the respondent, it is bound to dismiss the election petition under Section 86(1) of the Act whenever it is brought to its notice that the petition 'as field originally' suffered from any such defect. The learned Judge (now the Chief Justice of the Rajasthan High Court) observed that the provision contained in Section 86(1) is mandatory and a petition which is liable to be dismissed under that provision cannot be allowed to be amended. I agree with the further observations of Jagat Narain, J. to the effect that if any such amendment is permitted by the Court, the amendment itself is void.
In the appeal to the Supreme Court against the judgment of the Rajasthan High Court in Mohan Raj's case 31 ELR 146=(AIR 1968 Raj 287) (supra) Mohan Raj v. Surendra Kumar Taparia, AIR 1969 SC 677, it was clearly held that the provisions of the Code of Civil Procedure cannot be used as curative means to save an election petition which suffers from a defect which falls within the purview of the peremptory provisions of Section 86(1) of the Act as that Section does not admit of any exception. It was held that the Court must enforce the said provision strictly if there is non-compliance with the requirements of Section 82 of the Act. Of course Mohan Raj's case related to non-compliance with Section 82 of the Act, but Section 86(1) of the Act places non-compliance with the requirements of Sections 81, 82 and 117 on the same footing. Their Lordships of the Supreme Court observed in Mohan Raj's case that the Court cannot use Order 6, Rule 17 or order 1, Rule 10 of the Code to avoid the consequences of non-joinder of a candidate as a respondent. The distinction between an ordinary amendment or the striking out of a party who is not necessary on the one hand and the case where the Act requires a person to be necessarily impleaded as a respondent provision for dismissal of the petition in case of non-compliance with that provision was clearly brought out in that judgment. It was authoritatively held that when the Act enjoins penalty of dismissal of the petition for non-compliance with Section 82 of the Act, the Code cannot be used to save such a defective election petition. Section 81(3) of the Act does not in any manner stand on a different plane than Section 82 of the Act so far as incurring of liability under Section 86(1) of the Act is concerned. The requirement of the election petition being accompanied by the copies at the time of its presentation is, in my opinion, mandatory, and the court cannot relieve a defaulting election-petitioner of the consequences of such a defect in the petition. The distinction between the mandatory and the directory portions of Section 81(3) was aptly brought out by the Rajasthan High Court in Sardar Mal v. Smt. Gayatri Devi, AIR 1964 Raj 223.
18. As a result of the above discussion I hold on issue No. 2 that:--
(i) the High Court has not conferred on the Registrar any authority under Rule 14 or Rule 15 of the High Court Rules to permit the rectification of a defect under Section 81, 82 or 117 of the Act even within the period of limitation;
(ii) the Deputy Registrar did not specifically permit the removal of the fatal defect under Section 81(3) of the Act. Even if he could be held to have impliedly permitted the removal of such a defect, his order in that respect is without jurisdiction in view of High Court Rule 15(a)(1) and Section 86(1) of the Act;
(iii) an election petition must comply with requirements of Sections 81, 82 and 117 of the Act at the time when it is originally presented to the authorised officer of the High Court, and no such defect can be permitted to be rectified at any time thereafter;
(iv) the rule of substantial compliance has no application to a case where section 81(3) has not been complied with at all at the time of presenting the election petition; and
(v) the High Court cannot permit any of the defects referred to in Section 86(1) of the Act to be rectified after the petition has once been filed.
19. I am of the view that if the Deputy Registrar had put up this petition before me on any day between April 19, 1972, and April 27, 1972, when the period of limitation for filing the same had not yet expired, and the petition was defective for want of spare copies, I would have had no option but to dismiss the petition under Section 86(1) of the Act without allowing the petitioner any time to rectify the defect if a prayer had been made in that behalf. In view of the findings recorded above, this petition deserves to be dismissed under Section 86(1) of the Act as it did not comply with the mandatory requirements of Section 81(3) of the Act when it was originally presented to this Court.
Issue No. 3:
20. In fact this issue does not arise in view of the findings recorded by me on issue No. 2, but evidence having been led by the parties and arguments having been addressed before me at length on the same I proceed to decide it. The only question involved in this issue relates to the date on which the spare copies of the petition were actually filed by the petitioner or his counsel in the registry of the Court. It is noteworthy that the copies were filed without obtaining the leave of any Judge of the Court, but in exercise of the purported right of the petitioner to file the same in he registry of the Court at any time within the period of limitation. The evidence led by the petitioner in support of this issue consists of the statements of P.W. 3 O. P. Popli, Assistant of the Election branch, P.W. 4, Mr. D. D. Khanna, Deputy Registrar (Judicial) of this Court, P.W. 5 Mr. R. S. Mittal, Advocate for the petitioner, P.W. 6 Mr. Satya Narain election-petitioner, P.W. 7 Mr. Adish Chand Jain, Advocate, Jind, P.W. 9 Mr. Jai Singh Dhillon, Advocate, Jind and P.W. 10 Mr. Jaswant Rai, Advocate, Jind. Mr. Harsukh Rai Mantroo, Superintendent of the Election Branch was examined by me as a Court witness. The respondent has in rebuttal produced R. W. 1 Chaudhry Hari Ram, Senior Subordinate Judge-cum-Chief Judicial Magistrate, Jind. The respondent himself as R. W. 4 has said nothing at all on this issue in the witness-box.
(After discussing evidence in paras 21 to 35 the Judgment proceeds).
In these circumstances I hold that the petitioner has not been able to prove that the spare copies of the petition were in fact filed by him in the Registry of this Court on or before April 27, 1972. Issue No. 3, is therefore decided against the petitioner.
Issue No. 4
36. In view of my findings on issue No. 2 as well as on issue No. 3, I hold that this petition is liable to be dismissed under Section 86(1) of the Act, and the Court has no discretion in the matter. Issue No. 4 is, therefore, decided in favour of respondent No. 1.
Issue No. 5
37. The only material particulars in which the allegations in paragraphs 7(a) and 7(b) of the election petition are said to be lacking relate to the time and date of hiring of the vehicles and the names of the persons from whom the same might have been hired. It was further urged that the petitioner could not be permitted to use two alternative phrases of 'hiring' and 'procuring', but should be pinned down to one of the two expressions. I do not find much force in this submission. A vehicle which is hired is also procured by hiring. No exception can, therefore, be taken to the use of the expressions 'hired' and 'procured' in respect of the alleged vehicles. The alleged defect of not giving the time and date of hiring and not mentioning the names of the owners of the vehicles is not a fatal defect, and If I had not decided issues Nos. 2, 3 and 4 against the petitioner, I would have given the petitioner an opportunity to file better particulars in respect of those allegations. Issue No. 5 is decided in these terms.
Issue No. 6
38. As already stated above, parties made a joint request for issue No. 6 not being treated as a preliminary issue in spite of evidence having been led by both sides on that issue at the preliminary stage. I am also of the view that if the petition were to proceed for trial on merits, it would have been better if the evidence on all the connected issues is recorded before giving a finding on issue No. 6. I therefore, refrain from recording any finding on issue No. 6 at this stage.
39. In view of my finding on issue No. 4, this petition merits dismissal under Section 86(1) of the Act, and is accordingly dismissed with costs. Counsel's fee Rs. 250/-.
40. Petition dismissed.