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M. Kamalam Vs. Dr. V.A. Syed Muhammed - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKerala High Court
Decided On
Case NumberE.P. No. 6 of 1977
Judge
Reported inAIR1977Ker163
ActsRepresentation of the People Act, 1951 - Sections 81(3), 83 and 86(1)
AppellantM. Kamalam
RespondentDr. V.A. Syed Muhammed
Appellant Advocate S. Easwara Iyer, Adv.
Respondent Advocate C.K. Sivasankara, Adv.
DispositionPetition dismissed
Cases ReferredSatya Narain v. Dhuja Ram
Excerpt:
- - the first part apparently has been satisfied in this case, the second part, on the other hand, is not satisfied. --we are, therefore, clearly of opinion that the first part of section 81(3) with which we are mainly concerned in this appeal is a peremptory provision and total non-compliance with the same will entail dismissal of the election petition under section 86 of the act. on the other hand, that decision only supports the case of the respondent, it shall be noted that both in the first part of section 81(3) and in the second part of section 81(3) the expression used is 'shall'.if the expression 'shall' is mandatory as far as the first part is concerned, i fail to understand how the same expression found in the second part is not mandatory......the election of the respondent to the lok sabha from the kozhikode lok sabha constituency in the election held on 19-3-1977, the main ground upon which the election is sought to be avoided is the commission of certain corrupt practices alleged in the petition. the petition was duly signed and verified by the petitioner and it was also accompanied by the requisite affidavit. on acceptance of summons the respondent entered appearance and raised a preliminary objection regarding the maintainability of the petition on the ground that there is non-compliance with sub-section (3) of section 81 of the act.2. the respondent was served with the copies of the petition, one of which was produced along with the written statement, the contention raised by the respondent is that both the copies.....
Judgment:
ORDER

N.D.P. Namboodiripad, J.

1. This is a petition filed under Sections 80 - 84 read with Section 117 of the Representation of the People Act, 1951 (briefly the 'Act') challenging the election of the respondent to the Lok Sabha from the Kozhikode Lok Sabha Constituency in the election held on 19-3-1977, The main ground upon which the election is sought to be avoided is the commission of certain corrupt practices alleged in the petition. The petition was duly signed and verified by the petitioner and it was also accompanied by the requisite affidavit. On acceptance of summons the respondent entered appearance and raised a preliminary objection regarding the maintainability of the petition on the ground that there is non-compliance with Sub-section (3) of Section 81 of the Act.

2. The respondent was served with the copies of the petition, one of which was produced along with the written statement, The contention raised by the respondent is that both the copies served on him do not contain the signature of the petitioner as enjoined by Section 81(3) of the Act. On a perusal of both the copies it is seen that the copies of the petition served on the respondent do not contain the signatures of the petitioner. The copy of the accompanying affidavit, however, is seen signed by the petitioner. The question is whether the omission to sign the two copies of the petition is fatal. Sub-section (3) of Section 81 reads as follows:--

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

It is clear that the sub-section contains two parts. The first part enjoins that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition. The second part lays down that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part apparently has been satisfied in this case, The second part, on the other hand, is not satisfied. The answer of the petitioner is that there is substantial compliance with law inasmuch as the copy of the affidavit affixed to the petition contains the signature of the petitioner. What an election petition should contain is laid down in Section 83 of the Act, which reads as follows:--'83. Contents of petition.-

(1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided 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 the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed toy the (petitioner and verified in the same manner as the petition.'

The affidavit filed along with the petition undoubtedly is in compliance with the proviso to Sub-section (1) of Section 83. The actual wording of the affidavit filed by the petitioner also shows that the affidavit relates merely to the allegations of corrupt practice contained in the petition. In other words, it cannot be said that the affidavit is a general affidavit in support of the petition. Moreover, a reading of Sections 81 and 83 would show that they relate to different aspects. Section 81relates to the procedure regarding presentation of election petitions and notcontents. In this case there is no dispute regarding the contents of the petition, because as already referred to, the main petition has been properly signed and verified, and it is also accompanied by the requisite affidavit regarding corrupt practice as enjoined by Section 83. But the mere compliance with Section 83 is no answer for non-compliance with Section 31(3) of the Act.

3. I may refer to certain decision brought to my notice by the petitioner to substantiate her contention that a substantial compliance with Section 81(3) is sufficient. Section 81(3) of the Act came up for consideration of the Supreme Court in Ch. Subbarao v. Member, Election Tribunal (AIR 1964 SC 1027). In that case the copies were signed by the petitioner, but there was no attestation in the sense that the words 'true copies' were omitted above the signature of the petitioner. The court held that as the signature was there in the copy that 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 copy. The court held that there was substantial compliance with Section 81(3) of the Act, and the petition should not be dismissed under Section 90 (3). Almost a similar case was considered by the Supreme Court in Dr. Anup Singh v. Abdul Ghani (AIR 1965 SC 815). In that case also the necessary number of copies were filed and the copies bore the signature of the petitioner concerned. The defect was that the attestation required by Section 81(3) was not there specifically on the copies.

The court held on the basis of Ch. Subbarao v. Member, Election Tribunal (AIR 1964 SC 1027), that there was substantial compliance with Section 81(3) of the Act. It should be noted that in both those cases there was the signature of the petitioner in the copies served. Here, it is a case of total absence of signature, and so the petitioner cannot claim that her position is similar to that of the petitioners in the two cases decided by the Supreme Court and referred to above. The next decision pressed into service is Smt. Shodrabai Rai v. Ram Singh Aharwar (AIR 1968 SC 1079). There it was a case where In the copies served, the annexures were not signed by the petitioner. The court held that the annexures do not form part of the 'petition, and hence it was held that the omission wasnot fatal. That apparently is not the situation here. As referred to earlier, the affidavit, though it is part of the petition, is not an affidavit to the entire petition so that the mere signing of the copy of the affidavit does not amount to the signing and attestation of the main petition.

Jagat Kishore v Rajendra Kumar (AIR 1971 SC 342) was a case where there was discrepancy between copy of the petition submitted by the opposite party and the actual petition presented to the court. It was held that there was non-compliance with Section 81(3) and the petition is liable to be dismissed under Section 36(1). I do not know how this decision, is of any assistance of the petitioner. Satya Narain v. Dhuja Ram (AIR 1974 SC 1185) dealt with a case where the requisite copies of the election petition were not filed in court within the period of limitation. The court held that the petition is liable to be dismissed for non-compliance with Section 81(3) of the Act. It was held as follows:--

'We are, therefore, clearly of opinion that the first part of Section 81(3) with which we are mainly concerned in this appeal is a peremptory provision and total non-compliance with the same will entail dismissal of the election petition under Section 86 of the Act.'

The learned counsel for the petitioner relied upon this decision for the proposition that since the first part of Section 81(3) was specifically mentioned as mandatory by the Supreme Court, it may be in-ferentially held that the second part in Section 81(3) is not mandatory. The argument is not at all persuasive. The Supreme Court considered only the first part of Section 81(3) relating to the production of copies. On the other hand, that decision only supports the case of the respondent, it shall be noted that both in the first part of Section 81(3) and in the second part of Section 81(3) the expression used is 'shall'. If the expression 'shall' is mandatory as far as the first part is concerned, I fail to understand how the same expression found in the second part is not mandatory. In view of the aforesaid decision I am inclined to hold that the second part of Section 81(3) also is mandatory and a non-compliance with the provision is fatal to the petition.

4. As referred to earlier, I am unable to appreciate the contention of the petitioner that, in this case there is substantial compliance with the second part ofSection 81(3). The main content of the second part of Section 81(3) is that the copies produced as required by the first part shall be attested by the petitioner under his own signature to be a true copy of the petition. Here, admittedly the copies were not signed at all. If the copies of the petition contained the signature of the petitioner, then the omission to state specifically that the copy is a true copy, may not perhaps be fatal in view of the decisions of the Supreme Court in Ch. Subbarao v. Member, Election Tribunal (AIR 1964 SC 1027) and Dr. Anup Singh v. Abdul Ghani (AIR 1965 SC 815). But when there is a total omission to sign the copies, it is not a case of substantial compliance with Section 81(3), it is a case of total omission to comply with Section 81(3). Section 86(1) of the Act reads as follows:--

'86 (1). The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 83 or Section 147.

Explanation.-- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under Clause (a) of Section 98.'

Paragraph 4 of the decision reported in Satya Narain v. Dhuja Ram (AIR 1974 SC 1185) may be read in this context:

'Our decision restores the primacy of procedure over justice. It makes Section 86(1) a tyrannical master, The rigidity of the rule of precedent ties me to its chains. My only hope now is that Parliament would make a just choice between the social interest in the supply of copies by the election petitioner along with his election petition and the social interest in the purity of election by excluding Section 81(3) from the purview of Section 86(1) of the Act.'

As far as I could see, the position obtained in this case is practically the same. I hold that there is total non-compliance with Section 81(3) of the Act and that the election petition is liable to be dismissed under Section 86(1) of the Act

5. In the result, the election petition is dismissed with costs of Rs. 250 to the respondent.

6. The office will communicate a substance of this order to the Election Commission and to the Speaker of the Lok Sabha, and it shall also send an authenticated copy of the order as soon as it toready to the Election Commission as provided in Section 103 of the Act.


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