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Bhikha Bhai Vs. Lalshanker and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberCivil Election Petn. No. 7 of 1977
Judge
Reported inAIR1978Raj193; 1978(11)WLN45
ActsRepresentation of the People Act, 1951 - Sections 81(3) and 86
AppellantBhikha Bhai
RespondentLalshanker and ors.
Appellant Advocate M. Mridul, Adv.
Respondent Advocate P.B. Desai, Adv.
DispositionPetition dismissed
Cases ReferredNarainSingh v. Karan Singh
Excerpt:
representation of people's act, 1951 - sections 81(3) and 86--copy of election petition not attested by petitioner under his signature--held, mandatory provisions of section 81(3) have not been complied with and election petition is liable to be dismissed.;i am, therefore, firmly of the opinion that part 2 of section 81(3) so far as it relates to the petitioner's own signature on the copy of the petition is of mandatory character and is to be complied with strictly.;the petition being not attested under the petitioner's own signature, the mandatory provision of part 2 of section 81(3) has not been complied with in the case before me and so the petition is liable to be dismissed in the terms of section 86 of the act.;(b) representation of people act, 1951 - section 81(3)--copy of election.....orderm.l. joshi, j. 1. this is a defeated candidate's election petition filed under sections 80 and 81 of the representation of the people act (briefly 'the act') challenging the election of respondent no. 1 shri lal shanker to the sagwara legislative assembly constituency in the election held in june 1977. the main ground upon which the election is sought to be challenged is the commission of corrupt practices alleged in the election petition by respondent no. 1.2. the respondent was served with summons along with the copy of the election petition including annexures and affidavit. the respondent no. 1 submitted his written statement and along with his written statement produced the copy of the election petition sent to him along with the summons. in his written statement respondent no......
Judgment:
ORDER

M.L. Joshi, J.

1. This is a defeated candidate's election petition filed under Sections 80 and 81 of the Representation of the People Act (briefly 'the Act') challenging the election of respondent No. 1 Shri Lal Shanker to the Sagwara Legislative Assembly Constituency in the election held in June 1977. The main ground upon which the election is sought to be challenged is the commission of corrupt practices alleged in the election petition by respondent No. 1.

2. The respondent was served with summons along with the copy of the election petition including annexures and affidavit. The respondent No. 1 submitted his written statement and along with his written statement produced the copy of the election petition sent to him along with the summons. In his written statement respondent No. 1 traversed all the allegations in regard to the commission of corrupt practices and inter alia contended that the copy of the election petition along with the annexures served on him, do not contain the attestation of the petitioner under his own signature that it is a true copy of the original petition as required by Section 81(3) of the Act. It wasfurther contended that the copy of the election petition supplied to him is not a true copy of the original petition, as there are material differences between the contents of the copy supplied to him and the contents of the original petition.

3. On the pleadings of the parties, in all five issues were raised on 9-11-1977. On 4-1-1978, it was directed by the Court that issues Nos. 1 and 2 shall be heard as preliminary issues. Issues Nos. 1 and 2 may be reproduced as under:--

(1) Whether the copy accompanying the election petition is not true copy of the petition and the petitioner has not attested the same under his signature to be a true copy as required by law ?

(Onus on respondent No. 1)

(2) If the answer to issue No. 1 is in the affirmative, is the petition liable to be dismissed ?

(Onus on respondent No. 1) Issue No. 1:--

4. Issue No. 1 consists of two parts. The first part is to the effect whether the copy accompanying the election petition and furnished to the respondent No. 1 is not a true copy of the petition. The second part of the issue No. 1 is whether the petitioner has not attested the copy under his own signature to be a true copy as required by law.

5. Taking up the first part of the issueit may be pointed out that apart fromcertain minor discrepancies referred to inpara. No. 2 of the written statement, thecopy supplied to the respondent No. 1 iscorrect in material particulars. From thecomparison of the original with the copysupplied to respondent No. 1, I do notfind any material discrepancies betweenthe contents of the copy and that of theoriginal election petition excepting a fewminor discrepancies which are of veryinsignificant nature. Learned counsel forrespondent No. 1, when called upon topoint out any material discrepancies, hasfailed to do so. On the other hand, hehad to concede that there are no materialdiscrepancies in the contents of the copysupplied to him which could mislead himas to cause prejudice to him. The firstpart of the issue No. 1 is, therefore,answered against Respondent No. 1.

6. This brings me to the second part of issue No. 1 as to whether the petitioner has not complied with the requirements of Section 81(3) of the Act by not attestingthe copy of the petition under his own signatures to be a true copy of the original petition. The question that arises for consideration is whether the omission to sign and attest the copy of the election petition under the petitioner's own signatures to be a true copy of the original election petition is fatal in this case. Before I deal with the matter, I deem it appropriate to refer to some of the relevant provisions of the Act which have bearing on the point.

7. Section 81 is under the head 'presentation of petitions', It reads as under:

'Section 81. Presentation of petitions-- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate as such election or any elector within fortyfive days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election are different, the latter of these two dates.

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

X X X X (3) Every election petition shall be accompanied by as many copies thereof at there are respondents mentioned in the petition ... ... ... and every such copy shallbe attested by the petitioner under his own signature to be a true copy of the petition.'

Then there is Section 83, which reads as follows :--

'83. Contents of petition-- (1) An election petition -

(a) shall contain a concise 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 Civil P. C. 1908 (5 of 1908) for the verification of pleadings.

Provided that where the petitioner alleges any corrupt practice, the petitionshall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice andthe particulars thereof.

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

8. Section 86 deals with the consequences of non-compliance of Section 81, Section 82, and Section 117 of the Act. The relevant portion thereof is extracted as under:

'Section 86. Trial of election petitions -

(1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. .. ... ... ... ... ... ... ... ... ... ... ... ...

9. Sec, 81(3) of the Act comprises of two parts. The first part lays down that 'every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition'; the second part of Section 81(3) provides that 'every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.'

10. The parties are on common ground that the copy supplied to the Respondent No. 1 has not been attested under the petitioner's own signature that it is a true copy. It is, therefore, contended on behalf of the Respondent No. 1 that since the copy of the petition has not been attested by the petitioner under his own signature to be a true copy of the petition, the petition is liable to be dismissed under Section 86 of the Act. It is submitted that part 2 of Section 81(3) is mandatory in character and it has to be strictly complied with and the same having not been done, the petition is liable to be dismissed. The first question with which I am continence (sic) (concerned?) is whether part 2 of Section 81(3) as to the attestation of the copy under the petitioner's own signature is mandatory or merely directory. Before I directly deal with this question it will be appropriate to point out the distinction between the mandatory and directory provision of law.

11. In Halsbury's Laws of England, Simonds Edition, Volume 36, the distinction between mandatory and directory enactments is explained in Article 656 in the following words :--

'Where a statute requires an act to be done at or within a particular time, orin 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'.

12. In Sutherland's Statutory Construction, Third Edition, Volume 2, Article 2801 it is stated that,--

'The important distinction between directory and mandatory statutes is of consequences, while the failure to comply with the requirements of the latter either invalidates purported transactions or subjects the non compiler the affirmative legal liabilities.................. Althoughdirectory provisions are not intended by the legislature to be disregarded, yet the seriousness of non-compliance is not considered so great that liability automatically attaches for failure to comply.'

13. Crawford in Statutory Construction, 1940 Edition, has brought out the distinction between mandatory and directory provisions as under:

'A statute, or one or more of its provisions, may be either mandatory or directory. While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to the construction of statutes; yet it may be stated, as a general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience rather than of substance, are directory. So, a mandatory statute may be defined as one whose provisions or requirements, if not complied with, will render the proceedings to which it relates illegal and void, while a directory statute is one where non-compliance will not invalidate the proceedings to which it relates.'

14. In Maxwell on Interpretation of Statutes it is stated,--

'The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.'

The above statement of law of Maxwell conveys ex facie the impression thateven in the case of a directory provision, omission in substantial compliance may invalidate the act or the proceeding. This statement of Maxwell does not convey correct exposition of law. The above statement of law in Maxwell's Interpretation of Statutes is based on the observations of Lord Coleridge C. J. in Woodward v. Sarsons, (1875) 10 CP 733. That was a case in which some provisions were mandatory and others were directory. In that situation it was held in that case that if the mandatory provisions were complied with, the proceedings concerned was valid even though the directory provisions were totally disregarded.

15. The correct exposition of law in this behalf has been given in the following passage appearing in footnote (b) to Article 656 Halsbury's Laws of England, Simonds Edition, Volume 36, as under :--

'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. Woodward v. Sarsons (1875) 10 CP 733, at p. 746; Phillips v. Goff, (1886) 17 QBD 805 at p. 812. It appears, however, from the authorities (see, e.g. notes (i)-- (1), 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 overall position where a provision laying down a number of requirements is held to be mandatory 'as to some and directory as to the rest.'

16. Craies on Statute Law, Sixth Edition, at p. 267 dealing with the subject absolute and directory provisions in same Act, observed as under:--

'Where a statute does not consist merely of one enactment, but contains a number of different provisions regulating the manner in which some thing is to be done, it often happens that some of these provisions are to be treated as being directory only, while others are to be considered as essential; that is to say, some of the provisions may be disregarded without rendering invalid the thing to be done, but others not: For 'there is a known distinction,' as Lord Mansfield in R. v. Loxdale ((1758) 1 Burr 445), between circumstances which are of the essence of a thing required to be done by an Act of 'Parliament and clauses merely directory.'

In Govindlal Chhagganlal v. Agricultural Produce Market Committee, AIR1976 SC 263, the Supreme Court has approvingly quoted the following passage from Crawford on Statutory Construction (Edition 1940, Article 261, para 516) as under:

'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed, The meaning and the intention of the legislature must govern and this is to be ascertained and not only from the phraseology of the provision, but also by considering its nature, its design, and the consequence which would follow from construing it the one way or the other.' Their Lordships further observed - 'Thus the governing factor is the manner and intent of the legislature which should be gathered not merely from the words used by legislature but from a variety and other circumstances and consideration......... But the circumstancesthat the legislature has used a language of compulsive force is always of great relevance in the absence of anything contrary in the context indicating that a permissive interpretation is permissible the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature.'

In that case the Supreme Court was dealing with a provision that a notification issued under the provision shall also be published in Gujarati in a newspaper, Their Lordships while considering the provision observed that 'the word also' provides an important clue to the intention of the legislature inasmuch as it made it compulsive that the notification shall also be published in Gujarati in a newspaper, The additional mode of publication prescribed by law was taken to have object behind it and had a meaning and purpose. In Khub Chand v. State of Rajasthan, AIR 1967 SC 1074 at p. 1077, it was observed that -

'The term 'shall' in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurdity or inconvenient consequence or be at variance with the intent of the legislature to be calculated from other parts of the Act.'

In the light of the above exposition of law in regard to distinction between the directory and mandatory provision, I now proceed to deal with the question as to whether the requirements of part 2 of Section 81(3) of the Act that 'every such copies shall be attested by the petitioner under his own signature to be a true copy of the petition' is mandatory or merely directory. Now the words 'under his own signature' provide an important clue to the legislative intent and is not without meaning but has purpose behind it. Such provision shall be deemed to be mandatory, The provisions of Section 81(3) are, both directory as well as mandatory, The words 'under the petitioner's own signature' are the very substance of the provision of part 2 of Section 81(3) and are, therefore, mandatory in nature. It is meant to lend guarantee to the correctness of the copy and is based on the public policy. Its underlying object is to commit to the petitioner to the position that it is the same copy which was furnished by him to be served upon the respondent so that he may not be permitted subsequently to disown the same. The contention of the petitioner that the provision is merely directory has no merit in it. The legislature has clearly given its intention that the copies must contain the petitioner's own signature. If this would not have been the real legislative intent, the whole of the second part of Section 81(3) would be rendered redundant and nugatory which intention cannot be attributed to the legislature. It is well settled that the legislature is not supposed to waste words and enact meaningless provisions. The insertion of words 'under the petitioner's own signature' in part 2 of Section 81(3) have public policy and purpose behind it, the purpose being to commit the petitioner to a position which will not enable him subsequently to disown that the copy furnished to the respondent is not the copy supplied by him with the election petition. In other words the purpose of provision is to ensure guarantee as to the correctness of the copy so as not to enable the petitioner to back out from the same and to tie him to that position for ever. It is with this purpose that the legislature purposely used the words albeit 'under the petitioner's own signature' in Part 2 of Section 81(3). I am, therefore, firmly of the opinion that part 2 of Section 81(3) so far as it relates to the petitioner's own signature on the copy of the petition is of mandatory character and is to be com-plied with strictly. However, the word 'attestation' occurring in part 2 of Section 81(3) relates to the mode of attestation and is merely a matter of form and not of substance. But the signature of the petitioner on the copy Which Is to be furnished to the respondent is the essence of the provision. There is also compulsive force for non-compliance of Section 81(3) so far as it relates to its mandatory provision as enjoined by Section 86 of the Act. Section 86 prescribes the penalty for non-compliance of the provision and lays down that the petition shall be dismissed if the provision is not complied with. I may, however, emphasize that Section 88 will be attracted only when the essence of provision of part 2 of Section 81(3) is not complied with, but the same will not hold good to the non-essential part of Section 81(3). So if there is no word 'attestation' above the signature then it would only be a defect of form and not of essence or substance and in that case Section 80 will not be attracted.

17. It has been contended on behalf of the petitioner that the omission to subscribe signature on the copy of the election petition furnished to the respondent No. 1 was not at all fatal, as subscribing of signature on the copy of the petition is not the essence of the provision. On the other hand, it has been contended on behalf of the respondent No. 1 that provision as to the subscribing of the signature by the petitioner on the copy is the very essence of the provision and non-compliance of it will fall under the mischief of Section 86 of the Act. The learned counsel have cited various authorities in support of their respective contentions and I propose to discuss them presently.

18. In Subbarao v. Member, Election Tribunal, Hyderabad, AIR 1964 SC 1027, 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 Supreme Court held that as the signatures of the petitioner were on the copies, the omission to write words 'true copy' was not fatal. The Supreme Court was of the view that the existence of the signature of the petitioner in the copy was sufficient compliance of Section 81(3) because it could not be said that the copy simply reproduced the signature in the original, as the same was not needed under the law on the copy.

19. In Murarka Radhey Shyam v. Roop Singh, AIR 1964 SC 1545, the copyfurnished to the petitioner contained the signatures on every page of the copy, but a fresh signature below the word 'petitioner' at the foot of the petition was not subscribed. The High Court of Rajasthan had held that such a defect is not a defect at all, Approving the decision of the High Court their Lordships of the Supreme Court observed (at p. 1550),-- 'When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word 'petitioner' was not necessary. Sub-section (3) of Section 81 requires that a copy shall be attested by the petitioner under his own signature and this was done.' The Supreme Court, therefore, overruled the objection on the ground that the signatures of the petitioner were there on each page of the copy of the petition. It can, therefore, be said that it was the signature of the petitioner which was taken to be the essence of the provision of part 2 of Section 81(3) and it was on that account that the Supreme Court overruled the objection in regard to the non-compliance of Section 81(3) of the Act.

20. In Anup Singh v. Abdul Ghani, AIR 1965 SC 815 the copies furnished to the respondents contained the signatures of the petitioner. There was, however, defect to the effect that the requisite attestation was not there in specific terms on the copies. The Supreme Court relying on the authority of Subbarao v. Member, Election Tribunal, AIR 1964 SC 1027 held that there was substantial compliance of the provisions of Section 81(3) of the Act.

21. In both the above cases the copies furnished to the respondents contained the signatures of the petitioner, which were held to be sufficient for fulfilling the requirements of Part 2 of Section 81(3). In the instant case there is total absence of the signature of the petitioner on the copy furnished to the respondent No. 1 and so the present case cannot be treated as similar to those above referred two cases.

22. In Jagat Kishore v. Rajendra Kumar, AIR 1971 SC 342 there were discrepancies between the copies of the petition supplied to the opposite party and actually presented to Court. The discrepancies were of such a nature which could mislead the opposite party and prejudice its defence. It was held that there was no substantial compliance of Section 81(3) and so the petition was liable to be dismissed. In that case it wascontended on behalf of the petitioner that Section 81(3) is merely directory and not mandatory. Their Lordships did not go into that question saying that in their opinion that provision has not been substantially complied with, Substantial compliance was, therefore, held to be necessary in regard to Section 81(3). That case of course related to part first of Section 81(3), but in my opinion the same observations equally apply in the present case.

23. In Satya Narain v. Dhuja Ram, AIR 1974 SC 1185 related to a case where requisite copies of the election petition, as required by Section 81(3) of the Act, were not filed in Court within the period of limitation. The Supreme Court held that the petition is liable to be dismissed for non-compliance of Section 81(3) of the Act. The Court observed as follows (at p. 1192) :

'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.'

24. It was contended on behalf of the petition that this decision specifically dealt with the first part of Section 81(3) and so it should be inferentially held that the second part of Section 81(3) is not mandatory. I am not at all persuaded to concede to this argument as the Supreme Court in that case considered only the first part of Section 81(3). It may, however, be stated here that both in the first part of Section 81(3) and in second part of Section 81(3), the expression used is 'shall'. If the expression 'shall' is mandatory so far as the first part of Section 81(3) is concerned, it is very difficult to say how the same expression 'shall' contained in second part of Section 81(3) is not mandatory, I am fortified in this view of mine of M. Kamalam v. Syed Muhammed, AIR 1977 Ker 163. In that case it has been held that '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 be fatal. However, when there is a total omission to sign the copies, it is not a case of substantial compliance with Section 81(3).........' In that case the copyserved upon the respondent did not contain the signature of the petitioner. It was held that second part lays down that every such copy shall be attested by the petitioner under his signature inbe a true copy of the petition. There being a total omission to sign the copy, there was no substantial compliance and, therefore, the election petition was dismissed, which is also the case here. The main content of second part of Section 81(3) is that the copy produced, as required by the first part, shall be attested by the petitioner under his own signatures to be a true copy of the petition. As observed earlier the signature part is the essence of second part of Section 81(3) and has to be complied with strictly.

25. In Sant Prasad Singh v. Dasu Sinha, AIR 1964 Pat 26 the Division Bench of the Patna High Court has held that Section 81(3) lays down that the provision that the petition should be attested under the petitioner's own signature to be a true copy is a mandatory. The Patna High Court has observed in that case that the respondent must be certain that the contents of the petition cannot be departed from on any plea of failure to comply with this.

26. In Sardarmal v. Smt. Gayatri Devi, ILR (1964) 14 Raj 503 : (AIR 1964 Raj 223) there was a difference of opinion between Modi, J. and Shinghal, J. on the question of interpretation of Section 81(3) of the Act, In that case the petitioner had supplied the required number of copies of election petition which were absolutely correct copies and the attestation 'true copy' was made on the last page of the last annexure and nowhere else. Shinghal, J. was on the opinion that the provision of Section 81(3) has been substantially complied with and it was not necessary to sign at end of each schedule. It was observed by Shinghal, J. that the provision of Section 81(3) as to the attestation has a two-fold purpose, namely, first to lend an assurance that the copies are the true copies and secondly to fasten responsibility on the petitioner for their accuracy. If this purpose has been served that will be a substantial compliance of the provision as in the opinion of Shinghal, J, it is the essence of the provision which is important and it would be wrong to hold that the literal and narrow interpretation should be placed merely for the reason that the legislature has used the word 'shall' and has provided the penalty for its non-compliance. Modi, J. was, however, of the view that each schedule was to be attested and signed as the requirement of attestation has also its essential aspect and is a mandatoryrequirement. On account of differencebetween the two Judges the matter was referred to the third Judge namely, Jagat Narayan, J. Jagat Narayan, J. was of the opinion that the supply of the requisite number of copies as well as their attestation under the petitioner's own signature are essence of the provision of Section 81(3) and are mandatory as both these requirements have a public policy behind them. Jagat Narayan, J. summed up his conclusion as follows (at p. 228) :--

'1. Provision of law are either mandatory or directory or partly mandatory and partly directory. Non-compliance of the mandatory part of the provision renders the act or proceeding concerned invalid irrespective of whether or not any prejudice is caused thereby to any other party.

The use of the expression 'substantial compliance' is only appropriate in relation to a provision which is in part mandatory and in part directory. In case of a wholly directory provision no question of substantial compliance arises.

2. Both the requirements of Section 81(3) that requisite number of copies are supplied and that these copies are attested as true copies under the signature of the petitioner are mandatory but the provisions of the sub-section should not be construed strictly or technically and if there is compliance of the substance or the essence of the two requirements, the petition should not be dismissed even though exact or literal compliance has not been made.

3. The word 'petition' as used in Section 81(3) includes the annexures to the petition containing particulars of corrupt practices alleged there.

4. The manner of attestation under Section 81(3) is left entirely to the petitioner, the only requirement being that the copy of the petition and the copies of each annexure should ex facie appear to he attested under the signature of the petitioner. This may be done by means of single endorsement under the signature of the petitioner by the use of appropriate words which show that it governs the copy of the main petition as well as copies of the annexures or it may be done by more than one endorsement under the signature of the petitioner placed that it appears that all the copies have been certified as true copies.

5. In the present case, it does not ex facie appear that the copy of the petition and the copies of Annexures A & B have been attested. The endorsement at thefoot of the last page of Annexure C appear to govern that annexure only. The requirement of attestation laid down in Section 81(3) has thus not been substantially complied with.'

All the three Judges of this Court in Sardar Mal v. Smt. Gayatri Devi were clearly of the opinion that the provisions as to signing of the copy by the petitioner himself in essence of the provision and is mandatory and I am in respectful agreement with the view taken to this extent in Sardarmal v. Smt. Gayatri Devi.

27. Mr. Mridul, learned counsel for the petitioner, however, placed strong reliance upon Anup Singh v. Abdul Ghani (AIR 1963 Punj 429 (FB)) and Krishan Goyal v. Purshottam Lal, AIR1964 All 363 and Narain Singh v. Karan Singh, ((1970) 44 Ele LR 66 (All)) in support of his contention and urged that the provisions relating to the attestation under the petitioner's own signature are directory. In Anup Singh v. Abdul Ghani and Narain Singh v. Karan Singh the provisions of second part of Section 81(3) have been held directory. The case Anup Singh v. Abdul Ghani was taken to the Supreme Court where the Supreme Court left the question open in regard to the second part of Section 81(3) vide AIR1965 SC 815 (Anup Singh's case). The case Krishan Goyal v. Purshottam Lal is based on Anup Singh's case decided by the Punjab High Court and has not given any additional reasons. It has also held the provision to be directory. I regret to say that I am not at all in agreement with the view taken by the Punjab High Court and the Allahabad High Court for the reasons mentioned earlier as in my opinion the provision is mandatory. Moreover even in Anup Singh and Kishan Goyal cases respectively the copy of the election petition contained the signature of the petitioner himself so it made no difference regarding the correctness of the conclusion reached in these cases.

28. The next case relied upon by Mr. Mridul is Virendra Singh v. Vimal Kumar, AIR 1976 SC 2169. In that case an argument was raised that the petition was liable to be dismissed for non-compliance of Section 81(3) as the copy of the petition meant to be served on the respondent was not accompanied by a copy of Annexure Ex. P-10. That annexure was one leaflet which cast aspersion against the petitioner which according to the petitioner amounted to corruptpractice on the part of the respondent. The allegations of corrupt practice and particulars thereof were, however, given in para 17 of the election petition and were sufficiently clear and precise. In this context the Supreme Court observed :--

'It is also now well settled that failure to give particulars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition, (See Prabhu Narayan v. A. K. Srivastava, AIR 1975 SC 968).'

This case is, therefore, of no assistance to the petitioner.

29. It was then submitted by the the learned counsel for the petitioner that the copy of the petition contains the signature of the counsel of the petitioner and, therefore, in any event the requirements of Section 81(3) have been substantially complied with. It has been submitted that each page of the copy of the petition contains the signature, which is alleged to be of Shri Mridul, Advocate for the petitioner. The question, therefore, which needs to be determined is whether the petitioner can delegate the powers of signing the attestation in favour of his authorised agent. My answer is an emphatic 'no'. The reason is that there is no legislative permission to permit such delegation. The delegatee can only sign the attestation under his signature if there is specific legislative permission conferring power to delegate in that behalf. Whenever the legislature intends that an act is to be done by certain person the act is to be done by that person alone. Wherever the legislature has intended otherwise then it has expressly made a provision that a document can be signed by the person himself or any other person. There is no such legislative permission. In the absence of such legislative permission the power to delegate to sign the attestation on the copy cannot be conferred on an authorised agent. The reference to Order 3, Rule 1, Civil P. C. is also of no avail to the petitioner. Rule 1 of Order 3 lays down that any appearance, application or act in or to any Court, required or authorised by law to be made, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent or by a Pleader, However, under Section 81(3) the signature of attestation is to be under the petitioner's own signature.Thin view finds support from NarainSingh v. Karan Singh (1970) 44 Ele LR 66 (All) wherein it has been held that the power of attestation as true copy under part second of Section 81(3) cannot be delegated.

30. Even otherwise from the perusal of the power of attorney of the Advocate, it will be revealed that there is no delegation of authority empowering the counsel to attest the copy of the petition as a true copy under his signature. It is well settled that the power of the agent is circumscribed within the framework of the authority given by the principal. In the absence of specific delegation as to the attestation of the copy to be a true copy under the signature of the authorised agent, the Advocate is not empowered to attest it. Consequently, there is no substance in this argument either.

31. To sum up, the petition being not attested under the petitioner's own signature, the mandatory provision of Part 2 of Section 81(3) has not been complied with in the case before me and so the petition is liable to be dismissed in the terms of Section 86 of the Act. Part 2 of the Issue No. 1 is therefore decided In favour of the respondent No. 1.

32. In the result the election petition is dismissed. The petitioner shall pay Rs. 750/- (Rupees Seven Hundred Fifty) as costs to the respondent No. 1.


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