1979 (11) TMI 225 - SC - Indian Laws

Whether section 81(3) of the Central Act or any portion of it was merely directory? Whether the signatures in original found on the copies were intended to authenticate the documents to which they were appended and that in the circumstances of that case, the absence of the words true copy above the signature of the election petitioner in the copies was not fatal? Held that - Appeal dismissed. The requirement that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non-compliance with that requirement should result in the dismissal of the petition as provided in section 94 of the Act. The High Court was, therefore, right in dismissing the petition on the above ground

Summary

Issues Involved:
1. Compliance with Section 89(3) of the Jammu and Kashmir Representation of the People Act, 1957.
2. Mandatory vs. Directory nature of Section 89(3).
3. Consequences of non-compliance with Section 89(3) under Section 94 of the Act.

Detailed Analysis:

1. Compliance with Section 89(3) of the Jammu and Kashmir Representation of the People Act, 1957:
The primary issue was whether the appellant complied with Section 89(3) of the Act, which mandates that every election petition must be accompanied by copies attested by the petitioner under his own signature to be true copies of the petition. The appellant admitted that the copies were not attested under his own signature but argued that attestation by his advocate constituted substantial compliance.

2. Mandatory vs. Directory Nature of Section 89(3):
The court examined whether Section 89(3) is mandatory or directory. The appellant contended that since the copies were signed by his advocate, it should be considered substantial compliance, arguing that the provision is procedural and should be treated as directory. However, the court emphasized that the critical words in Section 89(3) are "under his own signature," indicating a mandatory requirement. The court noted that the object of this provision is to ensure that the petitioner takes full responsibility for the contents of the petition and to prevent any unauthorized alterations.

The court cited several precedents to illustrate the principles for determining whether a statutory provision is mandatory or directory. It concluded that procedural provisions that prescribe a specific manner for performing an act and specify consequences for non-compliance are generally considered mandatory.

3. Consequences of Non-Compliance with Section 89(3) under Section 94 of the Act:
Section 94(1) of the Act mandates the dismissal of an election petition that does not comply with Section 89. The court found that the appellant's failure to attest the copies of the election petition under his own signature constituted non-compliance with Section 89(3). The court emphasized that the requirement for the petitioner's own signature is crucial to ensure authenticity and prevent tampering.

The court rejected the appellant's argument that attestation by an advocate should suffice, noting that the statute explicitly requires the petitioner's signature. The court also highlighted that the provision's mandatory nature is reinforced by the explicit consequence of dismissal for non-compliance as stated in Section 94.

Conclusion:
The court concluded that the requirement for the petitioner to attest copies of the election petition under his own signature is mandatory. Non-compliance with this requirement necessitates dismissal of the petition under Section 94 of the Act. Consequently, the appeal was dismissed with costs, upholding the High Court's decision to dismiss the election petition for non-compliance with Section 89(3).