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Piaray Lal Karihaloo Vs. Ghulam Mohamad Bhat and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtJammu and Kashmir High Court
Decided On
Case NumberElection Petn. No. 55 of 1983
Judge
Reported inAIR1986J& K32
ActsJammu and Kashmir Representation of the People Act, 1957 - Sections 89, 89(3), 90, 94, 94(1) and 125
AppellantPiaray Lal Karihaloo
RespondentGhulam Mohamad Bhat and anr.
Appellant Advocate B.A. Khan, Adv.
Respondent Advocate Z.A. Shah, Adv.
DispositionPetition dismissed
Cases ReferredIn Jagat Kishore Prasad Narain Singh v. Rajinder Kumar
Excerpt:
- ordera.s. anand, ag. c.j. 1. the petitioner was one of the candidates contesting the election to the jammu and kashmir legislative assembly from 18, habba kadal constituency, srinagar, in the elections held in 1983. he contested the election as the congress (i) candidate. respondent no. 1 who contested the election as the national conference candidate, was the successful candidate. the petitioner has filed this election petition calling in question the election of respondent no. 1 on various grounds detailed in the petition. primarily, the challenge by the petitioner being that respondent no. 1, his agents, workers, and supporters with his consent had committed various corrupt practices which rendered his election invalid. at this stage, it is not necessary to detail the various corrupt.....
Judgment:
ORDER

A.S. Anand, Ag. C.J.

1. The petitioner was one of the candidates contesting the election to the Jammu and Kashmir Legislative Assembly from 18, Habba Kadal constituency, Srinagar, in the elections held in 1983. He contested the election as the Congress (I) candidate. Respondent No. 1 who contested the election as the National Conference candidate, was the successful candidate. The petitioner has filed this election petition calling in question the election of respondent No. 1 on various grounds detailed in the petition. Primarily, the challenge by the petitioner being that respondent No. 1, his agents, workers, and supporters with his consent had committed various corrupt practices which rendered his election invalid. At this stage, it is not necessary to detail the various corrupt practices alleged in the petition and suffice it to say that the challenge to the election of respondent No. 1 is based on commission of corrupt practices. In the written statement filed by respondent No. 1, the returned candidate, it was averred in reply to various paragraphs of the election petition that sufficient particulars with regard to the alleged corrupt practices had not been furnished by the petitioner, and, therefore, the petition did not raise any triable issue. In view of the said objection, the following preliminary issue was raised by this court on 31-10-1983 :

'Do the allegations of corrupt practices levelled in the petition not contain sufficient particulars and if so, what is its effect? OPR.'

No evidence was led on this issue and learned counsel for the parties only made oral submissions.

2. Learned counsel for the petitioner Mr. M. L. Bhat conceded that sufficient particulars had not been furnished in respect of some allegations of corrupt practices allegedly committed by the respondent.No. 1 himself or by others with his consent, knowledge or connivance. He, however, urged that the election petition was not liable to be dismissed on that score alone and he sought an opportunity to move an application seeking amendment of the petition so as to provide the missing particulars. Learned counsel relied upon the law laid down in this behalf in 1978 Kash LJ 148 and Election Petn. No. 7 of 1983 decided on 18-11-1983. The submission found favour with the court and the petitioner was on 19-11-1983 granted three weeks' time to file the application seeking amendment of the election petition so as to furnish better and further particulars of corrupt practices alleged in the petition. The petitioner, thereafter, sought some more time to file the application but in the meanwhile, however, respondent No. 1, the returned candidate, filed CMP No. 3 of 1983, seeking permission of the court to amend the written statement by incorporating therein the pleas detailed in para 2 of the application. The application filed by respondent No. I was allowed vide order of the court dated 25-5-1984 and the respondent was permitted to amend the written statement by incorporating the pleas detailed in Para 2 of C. M. P. No. 3 of 1983. In the amended written statement two additional pleas were raised. The first plea related to an alleged defect in the verification of the election petition, and the amended plea was to the effect that copy of the election petition which had been filed by the petitioner for service on the respondent and was actually served on the respondent was not substantially the true copy of the original petition and, therefore, the election petition was liable to he dismissed. On 30-8-1984 this court declined to frame any issue with regard to the first plea because Mr. Z.A. Shah learned counsel for respondent No. 2, conceded that there was no defect in the verification of the election petition. So far as the second plea was concerned, learned counsel for the petitioner controverted the same in his objections to CMP No. 3 of 1983, and the court, thereupon, raised the following preliminary issue :

'Whether the copy of the election petition which had been filed by the petitioner for service on the respondent and was served on the respondent No. 1 is not substantially the true copy of the original petition filed? If so, what is its effect? O. P. R.'

The respondent was directed to lead evidence first on this issue. Learned counsel for the respondent, however, submitted on 20-9-1984, that he had filed certain documents including the copy of the election petition and annexures served on respondent No. 1 together with the summons of the court, and that question of leading evidence would arise only after admission and denial was recorded on the documents. Learned counsel for the petitioner recorded ad mission/denial on the documents and on 25-10-1984, when the case came up for further proceedings, Mr. Shah, learned counsel for respondent No. 1 submitted that since learned counsel for the petitioner had admitted the documents filed by him (petition together with Annexures and the summons of the court as served on the respondent No. 1), he did not wish to lead any oral evidence in respect of the issue raised on 30-8-1984. Mr. B. A. Khan, Advocate, who was then appearing for the petitioner submitted that he also did not wish to lead any evidence in respect of the preliminary issue and the case was accordingly taken up for arguments on the preliminary issue on 20-12-1984.

3. The issue which, therefore, needs to be decided by this court at this stage is :

'Whether the copy of the election petition which had been filed by the petitioner for service on the respondent and was served on respondent No. 1 is not substantially the true copy of the original petition filed If so what is its effect? O. P. R.

With a view to decide this issue, it would be appropriate to first notice some of the relevant provisions of the Jammu and Kashmir Representation of the People Act, 1957, (for short 'The Act').

4. Section 89 of the Act provides as under :

'Presentation of petitions: (1). An election petition calling in question any election may he presented on one or more of the grounds specified in Sub-section (1) of Section 108 and Section 109 to the High Court by any candidate at such election or any elector within forty five 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 and the dates of their election are different the later of those 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.

(2) xxx xxx xxx

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

Section 94 (1) of the Act provides as under :

'Trial of election petitions. The High Court shall dismiss an election petition which does not comply with the provisions of Section 89, or Section 90 or Section 125'.

A reading of the aforesaid two sections shows that an election petition which does not comply with the provisions of Sections 89, 90 or Section 125 of the Act is liable to be dismissed under Section 94(1) of the Act in limine.

5. The precise submission made by Mr. Shah learned counsel for respondent No. 1 is that the copy of the election petition which was filed for service on respondent No. 1, and was in fact served on respondent No. 1 is not substantially the true copy of the original petition and it contains variations which are material and render the copy served on the respondent No. 1 as not a 'true copy' of the election petition. Learned counsel urged that furnishing of a 'true copy' is mandatory requirement under Section 89 (3) of the Act and non-furnishing of the same is a defect in the jurisdiction in terms of Section 94 of the Act and the election petition, of necessity, has to be dismissed by the High Court. Learned counsel for respondent No. 1 then pointed out the variations which exist between the original election petition as filed in the court and the copy of the election petition served on respondent No. 1. Learned counsel submitted that in the election petition the petitioner had impleaded besides Shri Ghulam Mohamad Bhat, the returned candidate, a respondent No. 1, Shri Ghulam Nabi Bhat son of Lass Jee as party-respondent No. 2, to the petition, and that whereas in the original election petition as filed in the court, the petitioner had carefully and intentionally made corrections in various paragraphs of the petition, to pinpoint that various corrupt practices were committed by respondent No. 1 by adding after 'respondent' the expression 'No. 1' in ink, but the said correction was not carried out in the copy of the election petition served on the said respondent. In this connection, he referred to paragraphs 7, 8, 9, 10, 20, 23, 27 and 28 and urged that by not carrying out the corrections in the copy of the petition served on the returned candidate, the copy served on respondent No. 1 ceased to be a 'true copy' within the meaning of Section 89(3) of the Act and that the omission was vital and meaningful. Some of the other discrepancies between the original petition and the copy served on the returned candidate pointed out were :

ORIGINAL PETITION :

COPY SERVED ON THE RESPONDENT

17-Line 3 at page 4.

'Following or amongst theNotable persons..

'Following or amongst notably.

2/- Line 8 in page 4.

'BashirAhmad son of Ghulam Mohamad Khan.'

'BashirAhmcd son of Ghulam Mohammad Khan resident of Idd Gah.'

3/- Line 19 at page 6.

'Issuing directions andinstructions.'

'Issuing in presence of ShaukatAhmed son of Ab. Mohd. Doompora and Pran Nath son of Moti Lat Ganpat and othersdirections and instructions.'

4/- Line 25 at page 6.

'From supporting thepetitioner and INC.1'

'From supporting thepetitioner and NC.'

5/- Lines 1 and 2 at page 7.

'On 24-5-1983 therespondent No.1 had organized two public meetings.'

'On 24-5-1983 (to becleared the date) therespondent had organized two public meetings.'

6/- Line 6 at page 7.

'And continued up to latein the evening.'

'And continued up to datein the evening.'

7/- Line 10 at page 9.

'BecauseINC is a secular organization.'

'BecauseINC is a similar organization.'

8/- Line 12 at page 18' '

'The NC candidate and therespondent No.1.'

'The NC candidate and therespondent No.1 also.'

9/- Line J at page 19.

'At Iqbal Park and enrouteto Iqbal Park.'

'At Iqbal Park on route toIqbal Park.'

10/- Lines 3 and 4 at page 20.

'It also acted as a threatto the Hindu minority.'

'And it also acted as athreat to Hindu minorities and their enemy.'

11/- Line 3 at page 27.

'Along with some workerswho were sitting.'

'Along with some workerswho were standing.'

12/- Line 12 at page 27.

'Jumped out of the saidvehicle under his directions.'

'Jumped out of the saidvehicle under the directions,'

13/- Lines 21 to 27 at page 31.

'The said respondent isprovided with a vehicle by the Municipal authorities which too was used forrespondent 1's election campaign on certain occasions. The mainpurpose of such tours of the said respondent was to see whether the Municipalemployees were really helping the respondent No.1.'

'The son of respondent No.1 isprovided a car by the Municipal authorities which too was used by therespondent No.1 on certain occasions. The main purpose of such tours ofthe son of the respondent was to see whether the Municipal employees werereally helping respondent No. I.'

14/- Line 10 at page 32.

'Trusted persons to beappointed as Presiding Officers.'

'Trusted person to bearranged as Presiding Officers.'

15/- Line 3 at page 35.

'with the consent andunder the directions of respondent No.1.'

'with the consent anddirections of respondent No.1.'

16/- Line 26 at page 35.

'the following werenoteworthy measures agreed upon.'

'the following were ableworthy measures agreed upon.'

17/- Line 7 at page37.

'the petitioner has noaccess to the same.'

'petitioner has not excessto the same.'

I8/- Lines 23 to 25 at page38.

'that the requisite copiesof the petition duly signed and verified as also annexures are attachedproperly.'

'that the requisite copiesof the petition duly signed and verified are attached as Annexures.'

19/- Tn verification, para 30 hasbeen verified to the knowledge of the petitioner party.

In the verification para 30 as awhole has been verified to the knowledge of the petitioner.

(The words or expressions which are added, altered, or omitted in the original election petition and/or its copy served on the returned candidate have been underlined by me while pointing out the variations.)

6. Learned counsel for respondent No. 1 urged that though the copy of the election petition served on respondent No. 1 was a carbon copy of the election petition filed in the court, yet while the petitioner had made certain corrections, additions, omissions, or alterations in ink in the original petition filed in the court, those corrections, additions, omissions, and alterations had been deliberately left out from the copy of the petition served on respondent No. 1 and these variations rendered the copy served on respondent No. 1 as not a 'true copy' of the petition. Mr. Shah urged that some of the variations were of a very vital nature calculated to misdirect respondent No. 1 in formulating his defence and/or leading evidence, and urged that the variations pointed out by him should be viewed in the context of the addition of 'No. 1' against the 'respondent' in various paragraphs of the election petition and their omission in the copy of the petition and submitted that the intention of the petitioner was to completely misdirect and to mislead the returned candidate respondent No. 1 in formulation of his defence and leading of the evidence.

7. Mr. B. A. Khan, learned counsel for the petitioner in reply submitted that the requirement of Section 89(3) of the Act was only to the effect that every copy of the election petition served on the respondent should be attested by the petitioner under his own signatures to be a 'true copy' of the petition and that a 'true copy' did not mean either 'carbon copy' or even an 'exact copy' but a copy which is 'substantially' a true copy of the original petition. Learned counsel admitted that the discrepancies pointed out by Mr. Shah and noticed in the earlier part of this judgment existed between the original petition and the copy of the petition but not only attributed the omission to carry out the necessary corrections in the copy to 'inadvertence' but also submitted that the discrepancies were typographical and clerical and had not prejudiced the returned candidate. In this connection Mr. Khan pointed that in the written statement filed before the amendment, the returned candidate had nowhere alleged that he had been prejudiced by the variations in the original election petition and the copy served on him. Learned counsel added that the discrepancies did not render the copy of the election petition as not substantially a true copy and, therefore, the election petition was not liable to be dismissed under Section 94 of the Act.

8. Under Section 89(3) of the Act, (corresponding to Section 81(3) of the Central Act) the petitioner is required to supply a 'true copy' of the petition to the respondent and such a copy has to be filed along with the election petition with the attestation by the petitioner under his own signature to be 'true copy'. The object of the provision is clearly to inform the respondent the grounds on which his election is challenged so that he can precisely know the basis of the challenge to his election and formulate his defence accordingly, and further to bind the petitioner personally to the correctness of the copy according to the original petition. In Sharief-ud-Din v. Abdul Ghani Lone, AIR 1980 SC 303, the election petition was dismissed only on the ground that the words 'attested to be a true copy' was not signed by the election petitioner but by his Advocate. The Supreme Court held that there was no sufficient compliance with the provisions of Section 89(3) of the Act. It is well settled by judicial pronouncements that the statutory requirements of the Election Law are required to be properly observed so that the object of the provision is not frustrated as those provisions are meant to protect and safeguard the sacrosanct electoral process.

9. I cannot persuade myself to agree with Mr. B.A. Khan learned counsel for the petitioner that since respondent No. 1 did not state in the written statement that there were variations between the original election petition and the copy of the election petition he could not be heard to say so now because omission to say so earlier implied that such variations had not prejudiced him.

10. A bare reading of Section 94(1) of the Act shows that it is an obligation cast on the court to dismiss an election petition at the thereshold, in limine, which does not comply with the provisions of Section 89, 90 or 125 of the Act. The court is required to do so not only at the time of the scrutiny but whenever the defect of the type mentioned in Section 94(1) of the Act is brought to its notice. The court cannot shirk its responsibility under Section 94(1) of the Act merely because it omitted to notice the defect at the time of scrutiny or the respondent did not point tt out in the written statement. It is no part of the duty of the respondent to wade through the entire record to find out if there are any variations because not only the respondent has no reason to believe that the petitioner who has 'attested' the copy of the petition to be a 'true copy' has in fact not furnished him a true copy but also because the mandate of Section 89 of the Act casts an obligation on the court itself to see that before proceeding further the requirements of the Section have been duly complied with by the petitioner. It is the duty of the election petitioner to see at the time of 'presentation' of the petition that the requirements of Sections 89, 90, and 125 of the Act have been strictly complied with and if he fails to do so, he must thank himself for suffering the consequences envisaged by Section 94 of the Act. Defect of 'presentation' is a serious defect and cannot be condoned.

11. An argument similar to the one raised by Mr. Khan was raised in Mohan Raj v. Surrinder Kumar Taparia, AIR 1968 Raj 287 wherein the facts and circumstances were quite similar to the present case and was repelled in the following terms :

'Under Section 86(1) it is the duty of the court to dismiss the petition if it does not comply with the provisions of Section 81, 82 or 117. The petition is put up before the court to see if there is any defect of the above nature and it is only if the court is satisfied that the petition does not suffer from any such defect that service is effected on the respondents. Even if the court omits to notice any such defect at that stage it is bound to dismiss the petition under Section 86(1) whenever it is brought to its notice that the petition as filed originally suffers from any such defect. The provisions contained in Section 86(1) is mandatory.

In the Rajasthan case, the election petition was presented before the Rajasthan High Court on 7-4-1967 and was put up before the Election Judge on 14-4-1967. It was not detected by the Election Judge at that time that the petition did not comply with certain mandatory provisions and process was issued. Respondent No. 1 appeared through his counsel before the Election Judge on 15-5-1967 and subsequently filed his written statement on 15-6-1967. In the written statement no objection was taken on behalf of the respondent No. 1 that the petition was liable to be dismissed under Section 86(1) for non-compliance with the provisions of Section 82(b). Objections however, were taken that several of the allegations were vague and lacking in necessary particulars of the corrupt practices. The court allowed the amendment of the election petition by asking the petitioner to furnish further and better particulars of the corrupt practices. In the written statement to the amended election petition, an objection was raised to the effect that the petition should have been dismissed under Section 86(1) of the Act for non-compliance with Section 82(b) of the Act. On behalf of the petitioner this objection was sought to be met by urging that after the election petition had been amended it was only the amended petition which could be looked into and that the defect pointed out in the original petition was of no consequence. It was urged that since respondent No. 1 had not urged in the written statement to the original petition that he had in any way been prejudiced, he could not be permitted to raise the objection about the non-compliance later on. All these arguments were repelled and it was held that it was an obligation on the court to dismiss the petition under Section 86(1) of the Act whenever it came to its notice that the petition as filed originally suffered from the defect mentioned therein. I am in respectful agreement with the view of the Rajasthan High Court and repelling the argument of Mr. Khan, I hold that merely because respondent No. 1 did not raise the objection in the written statement filed to the original election petition, it cannot be said that the court is now debarred from dismissing the election petition, if it comes to the conclusion that there has been non-compliance with the mandatory requirements of Section 89(3) of the Act.

12. In the instant case, with a view to find out whether there has been any non-compliance with the provisions of Section 89(3) of the Act, this court has to determine as to what is the meaning of 'true copy' within the provisions of Section 89(3) of the Act. In Murarka Radhey Sham Kumar v. Roop Singh Rathore, AIR 1964 SC 1545, their Lordships of the Supreme Court observed (Para 11) :

'The word 'Copy' in Sub-section (3) of Section XI does not mean an absolutely exact copy but means that the copy shall be so true that nobody can by any possibility misunderstand it. The test whether the copy is a true copy is whether any variation from the original is calculated to mislead an ordinary person.'

Their Lordships also opined that if there had been a substantial compliance with the requirements of Section 81(3) of the Central Act, the election petition need not be dismissed in limine under Section 86(1) of the Central Act.

13. Almost two decades later, their Lordships of the Supreme Court had once again an occasion to consider as to what would be substantial compliance 'in terms of Section 81(3) of the Act (corresponding to Section 89(3) of the State Act). In Mithilesh Kumar Pandey v. Baidyanath Yadav, AIR 1984 SC 305 their Lordships observed thus :

'A perusal of the above Section 81 (3) reveals that the statute intended that before an election petition can be entertained, the copy sent to the returned candidate must be a true copy, failing which there would be a serious disobedience of the mandate contained in Section 81(3) which would be fatal to the maintainability of the said petition.

It is now well settled by the large catena of authorities of this Court that the electoral process by which the verdict of the people has been given is a sacrosanct one and cannot lightly be set at naught unless the grounds mentioned in the Act for setting aside an election are held to be proved. In these circumstances, it is manifest that the provisions of Section 81(3) of the Act should be construed to the letter and spirit of the law because if the election petitioner does not give full and complete notice of the allegations made against the returned candidate, he runs the risk of his petition being dismissed in limine.'

Their Lordships then after considering a catena of authorities starting with AIR 1964 SC 1545 (supra) laid down the following principles on the subject :

'1/That where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes, which are of no consequence, the petition cannot be dismissed straightway under Section 86 of the Act.

2/A true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the Court may not take notice thereof.

3/Where the copy contains important omission or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has been a substantial compliance of the provisions of Section 81(3) of the Act.

4/Prima facie the statute uses the words 'true copy' and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81(31 of the Act, and

5/As Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said Section.'

After the aforesaid judgment in Mithilesh Kumar Pandey's case (supra), the matter was once again raised before their Lordships in Rajendra Singh v. Smt. Usha Rani, reported as AIR 1984 SC 956, their Lordships held in unequivocal terms that it is the duty of the election petitioner to see that the copy served on the respondent is a 'Correct' copy of the original election petition and if the copy served on the respondent does not incorporate the corrections made by the petitioner in the original petition, then the petitioner runs the risk of getting his election petition dismissed, if the variation is neither typographical, nor minimal or clerical. Their Lordships observed :

'A perusal of Sections 81(3) and 86 of the Act gives the impression that they do not contemplate filing of incorrect copies at all and if an election petitioner dis-regards the mandate contained in Section 81(3) by filing incorrect copies, he takes the risk of the petition being dismissed in limine under Section 86. It is no part of the duty of the respondent to wade through the entire record in order to find out which is the correct copy. If out of the copies filed, the respondent's copy is found to be an incorrect one, it amounts to noncompliance of the provisions of Section 81(3) which is sufficient to entail a dismissal of the election petition at the behest.'

In Rajendra Singh's case (supra), the election petitioner had filed number of copies of the election petition for service on the respondents. Out of these copies, some had been corrected to tally with the original petition while others had not been so corrected. The copy that was served on the returned candidate was the one which had not been corrected according to the original. The High Court found that since corrected copies had also been filed by the petitioner, the omission to correct the copy served on the returned candidate was not such a 'serious' mistake which could entail the dismissal of the election petition. The High Court invoked the doctrine of benefit of doubt and held that the defect could be cured by serving the correct copy or correcting the copy already served. In appeal their Lordships of the Supreme Court found that there was absolutely no justification for the High Court to invoke the doctrine of benefit of doubt. They held that since the copy served on the returned candidate was the one which had not been corrected by the petitioner according to the original and the variations were neither clerical nor typographical or insignificant errors, the election petition was liable to be dismissed and allowing the appeal filed by the returned candidate dismissed the election petition under Section 86 of the Act. In J. P. God's appeal which was also decided by the aforesaid authority AIR 1984 SC 956 the copy of the election petition served on the respondent contained page 17 though in the original petition page 17 was missing. Their Lordships repelled the argument that the 'inadvertence' by which one page (page 17) was left out while filing the original petition could not render the petition liable to be dismissed for non-compliance with the provisions of Section 81(3) of the Act. They observed that 'the mandate contained in Section 81(3) enjoins that Uiere should be no difference of any kind whatsoever barring some typographical or insignificant omission between the petition filed and the copy served on the respondent. If an entire page is missing in the petition but it is there in the copy served on the respondent then it is manifest that the copy served was not an exact and true copy of the petition.' In doing so their Lordships reiterated that the mandate of law as contained in Sections 81(3) and 86 of the Act has to be strictly complied with and the theory of 'substantial compliance' has not to be too liberally interpreted or applied.

14. It is in the light of the law notice above, that we have to decide the preliminary issue taking into consideration the variations between the original election petition and its copy served on the returned candidate as detailed elsewhere in this judgment. It is an admitted case of the parties that the copy of the election petition served on the returned candidate is the carbon copy of the election petition filed in the court. It is also an admitted case that while corrections, omissions, additions, and alterations were made in the original election petition in various paragraphs by the petitioner in ink, the same were not incorporated in the copy of the petition served on the returned candidate. In case the Court comes to the conclusion that the variations are only typographical or clerical errors, insignificant omissions, or minimal mistakes, the petition is not liable to be dismissed under Section 94(1) for non-compliance with Section 89(3) of the Act, but in case it is found that the variations are of a vital nature and are important and significant, then the concept of substantial compliance cannot be extended to cover such variations and the Court shall have to hold that the copy furnished to the returned candidate is not the 'true copy' within the meaning of Section 89(3) of the Act and the petition would be liable to be dismissed under Section 94(1) of the Act.

15. It would at this stage be relevant to note the importance which the petitioner himself has attached to the additions, alterations, or omissions made in the original petition. As earlier noticed, all the additions, alterations, or omissions have been made in the original petition in ink after the petition had been typed out, under the initials of the petitioner himself. Unless these omissions, alterations, or additions were of some consequence, I fail to see why the same were made in the original petition. Obviously, the petitioner realised the importance of the omissions, additions, and alterations and made the necessary corrections in the original petition. It was, therefore, his duty to incorporate the same in the copies of the election petition meant for serving on the respondent and actually served on respondent No. I, the returned candidate. At times out of number in the original election petition, the allegations of corrupt practice have been attributed to 'respondent No. 1' by adding 'No. 1' after the word 'respondent' in ink. This is not the position in the copy of the election petition served on the returned candidate, wherein the commission of the corrupt practices is attributed to the 'respondent' without specifying whether the guilty party is respondent No. 1 or respondent No. 2. The addition made in the original petition of 'No. 1' after the word 'respondent' in various paragraphs while levelling charges of corrupt practices and its omission in the copy of the petition cannot be termed either as a typographical error or an insignificant omission. It goes to the very root of the case. The omission as noticed above concerns the allegations of corrupt practices and from perusing the copy of the election petition, an impression is likely to be created in the mind of a person that the petition had not categorically alleged as to whether it was respondent No. 1 or respondent No. 2 or both of them, who had committed the corrupt practice. A charge of corrupt practice, it has been authoritatively setded, has to be proved to the hilt just like a criminal charge and any mistake which contains some element of vagueness would immediately vitiate the election petition and entail its dismissal. [See para 16 of AIR 1984 SC 305]. The variations in the present case would certainly mislead an ordinary person.

16. Mr. B. A. Khan, however, relied upon the judgment in Murarka Radhey Sham's case, AIR 1964 SC 1545, wherein their Lordships after observing that the word 'copy' did not mean an absolutely exact copy went on to observe that it means 'a copy so true that nobody can have any possibility to misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person' to urge that there has been 'substantial compliance' and that the failure to carry out the corrections in the copy of the petition by adding 'No. 1' after the word 'respondent' in the copy of the petition could not have misled the returned candidate because it was his election which was in question. I cannot agree with Mr. Khan. The interpretation which Mr. Khan has placed on Murarka Radhey Sham's case (supra) is too broad. In AIR 1984 SC 305, the Supreme Court explained the import of that judgment in the following words (at p. 307) :

'This Court merely meant to indicate that where the variation is so minimal and insignificant that it is incapable of misleading any person as to the true purport of the allegation, it would be a substantial compliance of the provisions of Section 81(3) of the Act.'

17. On going through the original petition and the copy of the petition served on the respondent, I find that the petitioner has consciously added 'No. 1' after 'respondent' in the original petition but has omitted to do so in the copy of the petition served on the returned candidate. I say so because the petitioner did not appear in the witness box to say that the omission was inadvertent, as alleged by Mr. Khan. It was for the petitioner to explain how and why the variation had occurred and he had failed to do so and he must suffer for it. The aforesaid variation to my mind is not insignificant. It is neither minimal, nor typographical and it can mislead a person to know the person against whom the allegations of corrupt practice have been made. Besides, this, there are other variations also which have been noticed in the earlier part of this judgment and they number 19. Some of these variations, it may be possible to say are minimal or typographical and thus insignificant, but the same cannot be said of other variations found, for example, in line No. 8 of para 4 (variation No. 2), line 19 page 6 (variation No. 3), line 25 page 6 (variation 4), lines 1 and 2 at page 7 (variation No. 5), line 6 at page 7 (variation No. 6), lines 3 and 4 at page 20 (variation No. 10), lines 21 to 27 at page 31 (variation No. 13), line 1 at page 32 (variation No. 14 : line 23 to 25 at page 38 (variation No. 18) or variation No. 19. All these variations are of a significant nature. These are vital variations and would not only mislead an ordinary person but also possibly prejudice the defence of the returned candidate. The returned candidate would while preparing the defence or marshalling his evidence, be looking to the facts stated in the copy of the petition served on him unmindful of the allegations made in the original petition and is thus likely to be prejudiced.

18. The ten variations pointed out above i.e. Nos. 2, 3, 4, 5, 6, 10, 13, 14, 18 and 19 are of a vital nature. These are significant and likely to mislead an ordinary person. The omission, additions, and alterations cannot be said to be typing mistakes and may seriously prejudice the defence of the returned candidate. To illustrate the importance of some of the variations, let us look at the variation No. 2. In the original petition, the petitioner has not given the place of residence of Bashir Ahmed son of Ghulam Mohd Khan, by deleting the words 'resident of Iddgah'. Why? Because the petitioner has left it open to prove the allegation through any Bashir Ahmed while the returned candidate would be ascertaining as to who this Bashir Ahmed of Iddgah is? May be there is no such person at all. Similarly, so far as variation No. 4 is concerned, the returned candidate is not likely to pay any importance to it because there is no allegation against the Congress party, though, cleverly in the original petition the petitioner has levelled the allegation against 'NC' i.e. Indian National Congress, which abbreviation has been used at numerous places in the petition to describe the party of the petitioner. Again, so far as variation No. 13 is concerned, whereas the allegation in the original petition 'that the respondent' was provided with a vehicle which was used for the election campaign of respondent No. 1, in the copy of the petition the allegation is entirely different. In it the allegation is that the son of the respondent had been provided with a car by the Municipal authorities which was 'used' by the returned candidate' on certain occasions.' The variation in the allegations is too vast and serious as the implication of this allegation in the original petition is entirely different from the implication of the allegations in the copy of the petition served on the returned candidate. Same is the position with regard to other variations, but I do not consider it necessary to illustrate the implications as the same are quite apparent on the face of the variations which render the allegations in the original petition as different from the allegations in the copy, depriving the character of the copy as a 'true copy' of the petition.

19. On an over-all consideration of the facts and circumstances of the case, I am of the opinion that the omissions, additions, and variations which exist between the original petition and the copy of the petition served on the returned candidate are neither verbal, nor typographical, or clerical mistakes. They are not minimal but are of a vital and significant nature thereby rendering the copy of the election petition served on the returned candidate not to be a 'true copy' of the election petition. In Jagat Kishore Prasad Narain Singh v. Rajinder Kumar, AIR 1971 SC 342, the mistake between the original petition and the copy of the election petition was only in the name of the person to whom the money was alleged to have been offered. In the election petition it was stated that the money was offered to Jotha Kilsku by Munshi Hansda but in the copy served on the returned candidate instead of Munshi Handda, the name of Paul Hansda was mentioned. The mistake was found by the Court to be possibly a verbal one but the Supreme Court found that the mistake was sufficient to prejudice the defence and accordingly came to the conclusion that the petition was liable to be dismissed under Section 86 of the Central Act.

20. The mistake found in the present case, the variations between the election petition and its copy served on the returned candidate are of much more magnitude and serious nature and the same are sufficient to entail the dismissal of the election petition. The provisions of Sections 89(3) and 94(1) of the Act are harsh, may be even tyrannical, but so long as these provisions exist on the Statute Book the same have to be applied with all their rigour, howsoever harshly they may operate against a petitioner and in this connection, I can do no better than to quote the observations of the Supreme Court in AIR 1974 SC 1185 :

'Our decision restores that primacy of procedure over justice. It takes 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.'

Despite the aforesaid observations, the State Legislature has not chosen in its supreme wisdom to interfere with the 'pre-emptive and mandatory provisions' of Section 89(3) of the Act, and, therefore, this court has no option but to invoke the provisions of Section 94(1) of the Act for the non-compliance with the provisions of Section 89(3) of the Act.

21. Thus, for what has been said above, I find that there has been non-compliance with the provisions of Section 89(3) of the Act by the election petitioner inasmuch as the copy served on the returned candidate is not a 'true copy' of the election petition filed in the Court, and, the election petition is, therefore, liable to be dismissed under Section 94(1) of the Act and I do hereby dismiss the same.

22. The petitioner shall pay Rs. 750/-(seven hundred and fifty rupees only) as costs to respondent No. 1.


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