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Ch. Subbarao Vs. Member, Election Tribunal, Hyderabad - Court Judgment

LegalCrystal Citation
CourtSupreme Court of India
Decided On
Reported inAIR1964SC1027; [1964]6SCR213
ActsRepresentation of the People Act, 1951 - Sections 80, 81(3) and 90(3)
AppellantCh. Subbarao
RespondentMember, Election Tribunal, Hyderabad
Cases ReferredMurarka v. Roop Singh
in an election petition there was no attestation in the copies of the petition that they were true copies- the case questioned whether there had been substantial compliance- it was held that in the present case, the signatures on the copies could not be held to have been merely intended to be a copy of those on the original to have been merely intended to be a copy of those on the original, since a signature in original was not needed on the copy and writing or copying out the name of the signatory would suffice- the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy- the facts and circumstances of the case show that there had been a substantial compliance with the requirement of section 81(3) of the representation..........the signature of the petitioner on thecopies, but there was no attestation by him that 'it was a truecopy'. this constituted a non-compliance with the requirements of s. 81which brought into play the terms of s. 90(3) of the act which required thetribunal to dismiss a petition which did not comply with the provisions of s.81. 17. though the learned counsel for the appellant made several submissions,we propose to deal with only one, as the same is sufficient for the disposal ofthis appeal. this was that in the circumstances of the case there had been asubstantial compliance with the requirements of s. 81(3). before, however,dealing with it, it will be convenient to refer to some of the submissions madeto us by the learned solicitor-general appearing for the contestingrespondents. he.....

Ayyangar, J.

1. This is an appeal by special leave against a judgment of the High Courtof Andhra Pradesh by which a Writ Petition filed by the 3rd Respondent - K.Brahmananda Reddy - was allowed and an Election Petition filed by the appellantwas directed to be dismissed.

2. The facts giving rise to the proceedings with which the appeal isconcerned are briefly as follows : At the General Elections held in the monthof February 1962 for the Legislative Assembly - Constituency of Phirangipuramin Guntur District in Andhra Pradesh - the third respondent Brahmananda Reddy andone Chandramouli, the 2nd respondent before us, were the contesting candidates.The polling at the Election took place on the 26th February 1962 and theReturning Officer declared Brahmananda Reddy, elected as having obtained themajority of valid votes. Thereafter, the appellant who is a voter on the rollsof the said Constituency filed an Election Petition before the ElectionCommission on April 11, 1962 under s. 81 of the Representation of the PeoplesAct, 1951, which we shall refer to as the Act. There was no formal defect inthe petition, it was accompanied by the requisite number of copies provided forby the Act and also by the treasury receipt evidencing the deposit of therequisite sum for security as provided by s. 117 of the Act. The grounds on whichthe election was sought to be set aside were various and included inter aliaallegations of corrupt practices against the returned candidate as well as hiselection agent, as also several irregularities in the polling by having thevotes of dead voters recorded as well as by double voting. The petition wasreceived by the Commission, who after satisfying itself that it was inconformity with the Act had a copy of the petition published in the OfficialGazette on May 17, 1962 as provided by s. 86 of the Act. In due course, anElection Tribunal was constituted and the petition was referred to the Tribunalfor trial. The returned candidate - Brahmananda Reddy - filed his WrittenStatement on September 15, 1962 in which the allegations of fact made in the petitionwere denied. Besides what might be termed the merits of the allegations in theelection petition, Brahmananda Reddy raised by his Written Statement severaltechnical objections pointing out certain defects in the petition. This appealis not concerned either with these technical defects in the election petitionor with defence raised on the merits to the charges that were formulated in it.The merits have yet to be tried, and as regards the technical objections to thepetition raised in the Written Statement dated September 15, 1962, they havebeen disposed of by the High Court and the same are not before us. A few dayslater on September 24, 1962, Brahmananda Reddy filed a further Statement ofobjections to the petition raising mostly objections of a technical nature andof these the only objections which is the subject matter of the present appealis that contained in paragraph 2 which reads, and we quote the material words :

'It is further submitted on behalf of the 1strespondent that the above petition filed u/s 81 of the Act is not an ElectionPetition...... As the requirements of s. 81(3) of Act are not complied with,the petition is, therefore, liable to be dismissed u/s 90(3) of the Act as itdoes not comply with the provisions of section 81 of the Act.........'

3. This second statement contained a prayer that in view of the technicalobjections, the maintainability of the petition might be decided as apreliminary issue as the objections went into the root of the matter.

4. Paragraph (2) extracted earlier is somewhat vague but in the argumentsbefore the Tribunal it was explained as indicating an objection allegingnon-compliance with s. 81(3) of the Act which runs :

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

5. We shall refer later to the precise defect which was relied on in supportof the case that there was a non-compliance with this provision. The Tribunalacceded to this request and by its order dated November 7, 1962, it decided thepreliminary objections including the one just now mentioned in favour of theelection petitioner and fixed a date for the trial of the petition on themerits.

6. Brahmananda Reddy thereupon moved the High Court under Article 226 of theConstitution and prayed for the issue of the Writ quashing this decision of theTribunal and sought the dismissal of the election petition for non-compliancewith the provisions of the Act. The learned Judges of the High Court disallowedthe other technical objections raised, but held that the petition did notcomply with the requirements of s. 81(3) of the Act and for this reason theydirected the dismissal of the Election Petition. The appellant thereafter hasfiled this appeal after obtaining special leave from this Court.

7. The subject of controversy in this appeal lies in a very narrow compass.But before we deal with it, it will be convenient to specify the precise defectwhich the learned Judges have held to be fatal to the maintainability of theElection Petition. As stated earlier, the Election Petition filed was accompaniedby the number of copies required to accompany the petition under s. 81(3). TheElection Petition was type-written and the copies which accompanied thepetition were carbon copies of the type-script, so there was no question of thecopies being other than 'true' copies. The copies bore two signature inoriginal of the Election Petitioner authenticating both the contents of thepetition as well as the verification thereof. The Petitioner did not howeverinsert the words 'true copy' before or above his signatures. The learned Judgesof the High Court considered that this rendered the petition one not inaccordance with s. 81(3) of the Act and it is on this ground that the ElectionPetition filed by the appellant has been dismissed and it is the correctness ofthis decision that is convassed in the appeal before us.

8. In view of the arguments addressed to us it would be necessary to set outa few of the relevant provisions of the Act which bear upon the points urged,but before doing so we shall refer to Art. 329 of the Constitution whichprovides :


329 (b) no election to eitherHouse of Parliament or to the House or either House of the Legislature of aState shall be called in question except by an election petition presented tosuch authority and in such manner as may be provided for by or under any lawmade by the appropriate Legislature.'

9. In accordance with this, we have the provisions of the Act andparticularly those contained in Part VI commencing with s. 79. Section 80repeats the provision in the Constitution already extracted and enacts :

'No election shall be called in question except byan election petition presented in accordance with the provisions of thisPart.'

10. Section 81 deals with the presentation of petitions. It runs :

'81. Presentation ofpetitions. (1) An election petition calling in question any election may be presentedon one or more of the grounds specified in sub-section (i) of section 100 andsection 101 to the Election Commission by any candidate at such election or anyelector within forty-five days from, but not earlier than, the date of electionof the returned candidate, or if there are more than one returned candidate, atthe election and the dates of their election are different, the later of thosetwo dates.

Explanation - In thissub-section, 'elector' means a person who was entitled to vote at the electionto which the election petition relates, whether he has voted at such electionor not.

(2) An election petition shall bedeemed to have been presented to the Election Commission :-

(a) when it is delivered to theSecretary to the Commission or to such other officer as may be appointed by theElection Commission in this behalf -

(i) by the person making thepetition, or

(ii) by a person authorised inwriting in this behalf by the person making the petition; or

(b) when it is sent byregistered post and is delivered to the Secretary to the Commission or theofficer so appointed.

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

11. Before proceeding further it is necessary to advert to the history ofthe provision in sub-section (3) for learned counsel for the respondents laidsome store by the object with which the provision was introduced. As enacted in1951, s. 81 contained only two sub-sections, the first dealing with the timewithin which a petition had to be filed and the second with the person or authorityand the manner in which the petition had to be presented in order to constitutethe presentation one to the Election Commission. At that date the ElectionCommission, after scrutinizing the petitions to ascertain whether there wereany formal defects, had itself to make copies for being served on therespondents. To avoid this trouble and inconvenience to the Commission and thedelay which the making of such copies necessarily involved, sub-section (3)which we have set out earlier was introduced into s. 81 by an amendmentaffected by Act XL of 1961. The point made, based on this feature, we shallreserve for later discussion.

12. Section 82 deals with the parties who are to be impleaded in thepetition and s. 83 with the contents of the petition. Section 83(1)(c) enacts :

'An election petition shall be signed by thepetitioner and verified in the manner laid down in the Code of Civil Procedure,1908, for the verification of pleadings.'

13. Sub-section (2) requires a similar signature and verification ofschedules or annexures to the petition.

14. Section 85 empowers the Election Commission to dismiss a petition incertain contingencies. It reads :

'85. If the provisions ofsection 81 or section 82 or section 117 have not been complied with, theElection Commission shall dismiss the petition :

Provided that the petition shallnot be dismissed without giving the petitioner an opportunity of beingheard.'

15. The succeeding sections deal with the trial of Election Petitions, aftermaking provision for the appointment of an Election Tribunal by s. 86 but whatis relevant in the present context is s. 90 and it is enough to quote thematerial words :

'(1) Subject to theprovisions of this Act and of any rules made thereunder, every electionpetition shall be tried by the Tribunal, as nearly as may be, in accordancewith the procedure applicable under the Code of Civil Procedure, 1908 to thetrial of suits :

Sub-section (3) reads :

'The Tribunal shall dismissan election petition which does not comply with the provisions of section 81,notwithstanding that is has not been dismissed by the Election Commission unders. 85.'

16. The reasoning on which the learned Judges have based their decisionshortly stated is this. It is the requirement of s. 81(3) of the Act that anelection petition should be accompanied by the number of copies specifiedthere, and equally so that the copies so accompanying 'shall be attestedby the petitioner under his own signature to be a true copy of thepetition'. There was, of course, the signature of the petitioner on thecopies, but there was no attestation by him that 'it was a truecopy'. This constituted a non-compliance with the requirements of s. 81which brought into play the terms of s. 90(3) of the Act which required theTribunal to dismiss a petition which did not comply with the provisions of s.81.

17. Though the learned counsel for the appellant made several submissions,we propose to deal with only one, as the same is sufficient for the disposal ofthis appeal. This was that in the circumstances of the case there had been asubstantial compliance with the requirements of s. 81(3). Before, however,dealing with it, it will be convenient to refer to some of the submissions madeto us by the learned Solicitor-General appearing for the contestingrespondents. He submitted to us certain propositions which however we considerreally unexceptionable. He said that an election petition was not to be equatedto an action at law or in equity, but that as the rights were purely thecreature of statute, if the statute rendered any particular requirementmandatory, the courts possessed and could exercise no dispensing power to waivenon-compliance. We consider these propositions are sound and it is in the lightof these basic positions that we shall proceed to consider whether the omissionto add the words 'true copy' in the copies which were admittedlyexact copies of the petition, constituted a non-compliance with s. 81(3) as torender the petition liable to be rejected under s. 90(3) of the Act.

18. Learned counsel for the appellant urged that the jurisdiction of theTribunal under s. 90(3) to dismiss 'an election petition which does not complywith the provisions of s. 81' was attracted only if there was a defect in thepetition itself and that a defect merely in the copy accompanying the petitionwould not be a case of a 'petition not complying with the provisions of s.81' so as to require or even permit the Tribunal to dismiss the petition.In support of this submission, the difference in the language employed in s. 85and s. 90(3) of the Act in the matter of making reference to the requirements ofs. 81 was adverted to. Besides, it was pointed out that both s. 90(3) andbefore it s. 90(4) were in their present form making reference to s. 81 whenthe latter section did not contain the third sub-section relating to copiesaccompanying the petition, and that the content of s. 90(3) should not be heldenlarged because in 1961 sub-section (3) was added to s. 81 particularlybecause the language of s. 90(3) was not altered to reflect the change.

19. We are not impressed by this argument. When s. 81(3) requires anelection petition to be accompanied by the requisite number of copies, itbecame a requirement for the presentation of the election petition to theCommission, and therefore a condition precedent for the proper presentation ofan election petition. If that is a requirement of s. 81, no distinction can bedrawn 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 theprovisions of s. 81(3), the election petition might not be 'an electionpetition presented in accordance with the provisions of this Part' withins. 80 of the Act. We are therefore inclined to consider that if there had beensuch a non-compliance with the requirement of sub-section (3) not merely theElection Commission under s. 85 but the Election Tribunal under s. 90(3) wouldprima facie not merely be justified but would be required to dismiss theelection petition.

20. This takes us to the point as to whether the requirement of s. 81(3) hasbeen complied with or not. The principal submission of the learnedSolicitor-General was based on the language employed in s. 81(3) of the Actread in the light of the direction contained in s. 90(3) which cast on theTribunal the duty to dismiss an election petition which did not conform to therequirements of the former. In particular, he laid stress on the use of theimperative 'shall' in s. 81(3) when denoting the requirement of'attestation' 'under the petitioner's signature' of thecopy bearing the signature being a 'true copy'. It was in thisconnection that he pointed out that the provision for properly attested copiesof the petition accompanying the petition was introduced by the amendmenteffected in 1961, and the object of Parliament was two-fold; first to save thetime and inconvenience which the previous procedure cast on the ElectionCommission, of itself having to make copies for service on the respondents, andsecondly by this means to expedite the conclusion of the trial of an election petition.He submitted that the attainment of these objects would be entirely frustratedif the respondents on whom these copies were served had still to make enquiriesto satisfy themselves whether the copies were true copies, without the samebeing asserted to be so on their face. In support he referred us to thedecisions in Noseworthy v. Overseers of Buckland etc. L.R. 9 C.P. 233 and inSpice v. Bacon (L.R. 2 Ex. D. 463) as illustrating the degree of strictness andliteral compliance which was insisted on by courts in regard to provisions oflike character.

21. The first if these cases was a registration appeal and the Act providedthat a person who objected to a voter's qualification might be heard in supportof his objection if he had given notice to the voter and the manner of givingnotice was by sending it by post addressed to his place of abode 'asdescribed'. It was held that a notice by post addressed correctly but notto the address 'as described' was not a compliance with therequirement and that in consequence the objector could not be heard. We do notconsider that this decision lays down any hard and fast rule or principal ofconstruction which is attracted to every case where a statute calls forinterpretation. In ultimate analysis the question is one of the construction ofthe relevant provision of the particular statutes which proceeds on the basisof the words used understood in the context of the statute.

22. The second case raised a question as to the meaning of the word'true copy' in the Inn-keepers' Liability Act 1863, which requiredthat in order to obtain the benefit of the limitation of liability conferred bythe Act, a 'copy' of the Act had to be exhibited at the Inn. The copywhich was exhibited omitted some material words of the section which wasrequired to be exhibited. The Court held that when a claim was made on theinn-keeper for loss sustained by a guest, he could not claim the benefit of thestatute. We are unable to appreciate the relevance of this decision. It turnedon what was meant by the word 'copy' in the Act and the portion which wasomitted in the copy exhibited was a material portion. There is no doubt thatsuch a 'copy' which differs in material particular from the original is not a'copy' within the Act. In this connection we might make a reference to thedecision of this Court in Murarka v. Roop Singh : [1964]3SCR573 where thequestion as to what is a 'copy' is elaborately discussed and some ofthe English decisions touching this matter have been set out. We shall haveoccasion to refer to Murarka's case later, but for the present we need only addthat the decision relied on by the Solicitor-General is not at variance withwhat this Court has laid down in Murarka's case.

23. The next matter to be considered stems from the submission as regardsthe object of Parliament in enacting sub-section (3) of s. 81 and thatexpeditious disposal of election petitions which was the object would befrustrated if substantial compliance with the provision was held sufficient.

24. We are not impressed with this argument. While we are conscious of theneed for expeditious disposal of election petitions, and for the strictenforcement of provisions designed to achieve this purpose, we cannot beoblivious to the circumstance that to read every requirement literally mightequally defeat the purpose for which Part VI is intended, viz., that electionsare conducted in accordance with the relevant statutory provisions framed toensure purity and orderliness and that the candidate who has not obtained amajority of valid votes or has obtained it in flagrant breach of the statutoryprovisions in not held entitled to represent the constituency.

25. The Court had to deal with a similar question of interpretation of wordswhich appeared mandatory in Kamaraj Nadar v. Kunju Thevar : [1959]1SCR583 .One of the points which arose for consideration was whether the requirement ofs. 117 of the Act which then required the petitioner to enclose with thepetition a Government treasury receipt of Rs. 100 in favour of the Secretary tothe Election Commission had been complied with by the election petitioner ands. 90(4) of the Act which corresponded substantially to the present s. 90(3)required the Election Tribunal to dismiss a petition which did not comply withthe provision, inter alia, of s. 117. The petitioner in that case had made thedeposit of the requisite amount in the institutions named in the section butthe deposit was made in favour of the Election Commission and not in favour ofthe Secretary to the Commission as required by statute. It was contended thatthe petition did not conform to the provisions of s. 117 and had therefore tobe dismissed by the Tribunal. This Court rejected this submission and afteradverting to the purpose of the provisions, held that this was fulfilled by thedeposit made and that though the requirement as to deposit was mandatory, thesame was complied with by the deposit made.

26. We consider that this reasoning is not irrelevant to the construction ofs. 81(3) of the Act either.

27. In this connection we might refer to the decision of this Court inMurarka v. Roop Singh : [1964]3SCR573 in which this Court had to considera question closely related to that now under debate. That case was also concernedwith certain defects similar to what we have in the appeal before us. Thedefects which were there relied on by the returned candidate as justifying orrequiring the dismissal of the Election Petition fell into several categorieswhich included non-compliance with the requirements of s. 81(3). There, ashere, the petition was accompanied with the requisite number of copies asspecified in s. 81(3) but what was urged was as regards certain defects in thecopies filed. These defects fell into two types. First there were two matterswhich it was stated rendered the copies filed not 'true copies'. If theexpressions 'copy' or 'true copy' were read as exact copies of the original,the copies filed did not satisfy that test. The two defects were : (1) The originalpetition contained the signature of the petitioner at the foot of the petitionas required by s. 81(3)(c) of the Act. In the copy filed there was no copy ofthis signature. To that extent therefore the copy was not an exact copy.

28. The second matter under this head was that the verification in the copyserved on the appellant did not exactly correspond to that in the original inthat in the latter one of the paragraphs was stated to be true to the personalknowledge of the petitioner while in the former that paragraph was omitted fromthis group.

29. The other type of defect which was claimed to constitute non-compliancewith s. 81(3) was that the words 'true copy' with the signature of thepetitioner underneath were not put down in one of the annexures to thepetition, copies of which were annexed to the copies of the petition filed. Theorder of the Returning Officer rejecting the nomination paper of the petitionerwas filed with the original petition as annexure to it, and certified copies ofthat order were annexed to the copies of the petition. But this certified copydid not contain an endorsement stating that it was a 'true copy' with thesignature of the petitioner.

30. The High Court had held that so far as the defect in not reproducing thesignature in the petition was concerned, it was cured by the fact that everypage of the copy of the petition was attested to be a true copy and thereforeit would not matter if the last page did not contain the signature. As regardsthe second, the High Court held that the failure to include the paragraph inthe verification was only a clerical defect which had crept in throughoversight and as regards the other that it was no defect at all. This decisionwas upheld by this Court holding that the word 'copy' in s. 81(3) meant a copywhich was substantially so and which did not contain any material orsubstantial variation. By 'copy' in s. 81(3) was meant not an exact copy butonly one so true that nobody by any possibility misunderstands it not being thesame as the original. Applying this test, this Court came to the conclusionthat there was no failure to comply with the last part of s. 81(3), with theresult that s. 90(3) of the Act was not attracted.

31. This Court besides left open the question as to whether any part of s.81(3) was directly or whether any portion of it was mandatory. In the presentcase also, we do not propose to deal with the larger question as to whether s.81(3) or any portion of it is merely directory. In view of the decision of thisCourt it would be clear that if there is a substantial compliance with therequirement of s. 81(3), the election petition cannot be dismissed by theTribunal under s. 90(3). The question then is whether on the factsabove-stated, there is or is not a sufficient and substantial compliance withs. 81(3). We have already pointed out that the appellant has complied with thefollowing requirements :

(1) The petition has beenaccompanied by the requisite number of copies.

(2) The copies that accompaniedthe petition were true copies.

(3) Each of those copies bore thesignatures of the petitioner.

32. If the signature of the petitioner whose name is set out in the body ofthe petition is appended at the end, surely it authenticates the contents ofthe document. Now in regard to this the learned Judges of the High Courtthemselves observed after referring to the terms of s. 81(3) :

'No doubt, what is necessary is a substantialcompliance with the requirement of attestation. For instance, if it is provedthat the election petitioner has signed animo attestendi, and omitted the words'true copy' by mistake or inadvertently, there is a substantial requirement ofthe compliance of s. 81(3). The same may be said if the relative positions ofthe words 'true copy' and of the signature one below the other are notcorrect.'

33. They however held that as there was no evidence of the signature havingbeen appended animo attestendi, there was non-compliance with s. 81(3). Thelearned Solicitor-General while not disputing the correctness of theobservations of the learned Judges just extracted pressed upon us that thesignature at the end of the copy was meant only as a copy of that in theoriginal petition and could not satisfy the requirement as to attestation ofthe copy. He also submitted that the position would have been different ifthere were two signatures instead of one at the end of the copy, even if thewords 'true copy' were omitted to be put down. In that case, he said, onesignature could be treated as representing the copy of the signature on theoriginal and the other might be taken to have been made animo attestendi. We donot however consider that there is really need for so much refinement when onehas to look at whether there is a substantial compliance with s. 81(3), seeingthat a signature in original signatures now found on the copies were intendedto authenticate the document to which it is appended, viz., the copy, it wouldonly mean that the copy did not reproduce the signature in the original. Thereis no compelling necessity to hold that the signatures were merely intended tobe a copy of those on the original in order to spell out a non-compliance withthe requirement of this provision. If the null was not needed on the copy and awriting copying out the name of the signatory would suffice. The decision ofthis Court in Murarka's case : [1964]3SCR573 is authority for theposition that the absence of a writing in the copy indicating the signature inthe original would not detract the copy from being a true copy. In thecircumstances, we consider that there has been substantial compliance with therequirement of s. 81(3) in the petition that was filed by the appellant and thelearned Judges were in error in directing the dismissal of the petition.

34. The appeal is accordingly allowed and the order of the High Courtdismissing the petition is set aside. As owing to the filling of the WritPetition there has been a considerable delay in the trial of the ElectionPetition, we express the hope that the petition would be heard and disposed ofat an early a date as is conveniently possible. The appellant will be entitledto his costs here and in the High Court which will be paid by the contestingthird respondent.

35. Appeal Allowed.

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