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TMI Blog1999 (4) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... election of the appellant stood vitiated by commission of various corrupt practices, as detailed in the Election Petition The Election Petition was resisted by the appellant and on 29.7.1996 the appellant filed his written objections. Various objections were raised but for the purpose of this appeal we are concerned with the objection raised in paragraph 39 of the written objections to the effect that Annexure XV supplied to the appellant was not a true copy of Annexure XV filed with the Election Petition and the election petition was liable to be dismissed on that score alone for non-compliance with the requirements of Section 81(3) of the Representation of People Act, 1951 (hereinafter 'the Act'). Respondent No. 4 to the Election Petition also raised a preliminary objection on 30th of July, 1996. That objection however, has no relevance for the present appeal. Respondent No. l filed his reply to the written objections on 6.8.1996 in which, inter alia, he asserted in paragraph 15 that copy of Annexure XV served on the appellant was a 'true copy' of Annexure XV filed with the Election Petition and that there was no failure on his part to comply with Section 81(3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the Election Petition served on him was defective. That Memo reads thus: 'MEMO SUBMITTED BY S. NARAYANANPOTI, ADVOCATE, FOR THE 1ST RESPONDENT IN THE ABOVE CASE. I am herewith submitting the copy of the Election Petition No. 8 of 1996 served on the 1st respondent for information of the Hon'ble Court, especially copy of the affidavit in form 25 as per Rule 94 of the conduct of Election Rules 1961 in order to show that the verification of the Notary Public is not contained therein and therefore the copy is defective. Both the copies served on the 1st respondent are identical.' 5. Respondent No. l filed his reply both to the above memo as also to C.M.P. No. 2903 of 1996 on 2nd of September, 1996. Apart from stating that objection regarding alleged defect in the supply of true copy of the petition had been raised after issues had been framed, it was maintained that the objection contained in the memo filed on 19.8.1996 appears to have been influenced by the observations made by this Court in Dr. (Smt.) Shipra others v. Skanti Lal Khoiwal others [1996] 3 SCR 1175 and had no validity. Respondent No. 1 stated in paragraph 3 of his reply: Admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly allowing the continuation of the trial of the E.P. 7. On 13th August, 1996 at the suggestion of learned counsel for the parties, following additional issue was raised as issue No. l Whether the Election Petition is liable to be dismissed for the reasons mentioned in C.M.P. 2903 of 1996 ? 8. In the High Court, in support of issue No. l, learned counsel for the appellant relied upon the judgment of this Court in Dr. Shipra's case (supra). It was submitted that the vice which had been noted in Dr. Shipra's case (supra) in the copy of the affidavit served on the returned candidate along with the copy of election petition in that case was also present in the present case inasmuch as the verification of the affidavit, on the copy of the affidavit, supplied to the appellant did not tally with the verification of the affidavit filed along with the election petition. It was pointed out that neither the name of the Notary, nor the stamp and seal of the Notary, had been fixed below the attestation of the verification on the copy of the affidavit, supplied to the appellant, though in the affidavit filed along with the election petition, the name, stamp and seal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en though from the supplementary opinion of Justice Bharucha, contained in para 17 of the report, identity on this point may not be explicit but there being no reservation in the opinion of Justice Bharucha on this point, this view is to be construed as the unanimous decision of the three-Judge Bench. Having heard Shri Sorabjee, we are not too sure that the principle indicated in the said decision can apply to the facts of the present case but certain wide observations, in the opinion of Justice Paripoornan and Justice K. Ramaswamy, may support the appellant's contentions. In our opinion, the matter would, therefore, require reconsideration by a larger Bench to decide whether even in a case like the present one, the decision in Dr. Shipra v. Shanti Lal Khoiwal [1996] 3 SCR 1175 can apply. The papers be laid before the Chief Justice for constitution of a larger Bench. 11. That is, how, this appeal has been placed before the Constitution Bench. 12. We have heard Mr. Harish Salve, learned senior counsel appearing for the appellant and Dr. Rajeev Dhavan, learned senior counsel appearing for respondent No. l and examined the record. 13. From a perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sled in his understanding that imputation of corrupt practices was solemnly affirmed or duly verified before the prescribed authority. For that purpose, Form 25 mandates verification before the prescribed authority. The object appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy cannot be said to be a curable irregularity. Allegations of corrupt practices are very serious imputations which, if proved, would entail civil consequences of declaring that he became disqualified for election for a maximum period of six years under Section 8-A, apart from conviction under Section 136(2). Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petitioner in his/her own signature. The principle of substantial compliance cannot be accepted in the fact-situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attested by the notary. 18. However, Justice Bharucha, in his supplementing opinion while expressing agreement with Justice Ramaswamy pointed out the defect in that case in the following words: The question that must be posed, as indicated by this Court's previous decisions, is: Does the document purporting to be a true copy of the election petition mislead in a material particular? The 'true copy' of the election petition furnished by the appellant (election petitioner) to the respondent (the successful candidate) did not show that the appellant's affidavit supporting his allegations of corrupt practice had been duly sworn or affirmed. Where corrupt practice is alleged, the election petitioner must support the allegation by making an affidavit in the format prescribed. An affidavit must be sworn or affirmed in the manner required by law, or it is not an affidavit. The document purporting to be a true copy of the election petition furnished by the appellant to the respondent gave the impression that the appellant's affidavit supporting his allegations of corrupt practice had not been sworn or affirmed and was, therefore, no affidavit at all; it misle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt after the verification of the affidavit. The appellant had, however, signed the copy of the affidavit below a rubber stamp endorsement to the effect 'attested as true copy'. On account of the above omission, the first respondent and the tenth respondent therein contended before the High Court that the copies of the affidavit served on them were not true copies of the affidavit as required by Section 81(3) of the Act. The issue was tried as a preliminary issue. The High Court found that the copy of the affidavit supplied to the first respondent was not a 'true copy' inasmuch as it did not contain the particulars of the notary below the endorsement made by the notary. The High Court following its previous judgment in Purshottam v. Returning Officer, (supra) which had been approved by this Court in Dr. Shipra's case held that the defect of omission of the particulars of the Notary on the copy of the affidavit served on the answering respondent was fatal. and dismissed the election petition for non-compliance with Section 81(3) of the Act. On an appeal to this Court against the dismissal of the election petition, without trial, for non-compliance with the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Notary, before whom the affidavit had been so affirmed and who had attested the affidavit. 24. The defect found in the present case is almost identical to the defect which had been found in the copy of the affidavit supplied to the first respondent in Anil R. Deshmukh's case (supra). 25. The defect is materially different from the defect found in Dr. Shipra's case, where the true copy of the election petition furnished by the election petitioner to the successful candidate did not show that the affidavit filed in support of the allegation of corrupt practices had been duly sworn or affirmed and verified by the election petitioner before a notary, whose attestation was also found missing. The argument of the learned counsel for the appellant, both in the High Court and before us, is apparently based on the following observations made in the opinion of K. Ramaswamy and Paripoornan, JJ. in. Dr. Shipra's case: 'Thus affirmation before the prescribed authority in the affidavit and the supply of its true copy should also contain such affirmation so that the returned candidate would not be misled in his understanding that imputation of corrupt practic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29. We, therefore, reject the argument of learned counsel for the appellant regarding the applicability of the 'observations' from Dr. Shipra's case to the fact situation in, the present case. 30. Thus, our answer to the reference is that the judgment in Dr. Shipra's case is confined to the 'fact situation' as existing in that case and has no application to the established facts of the present case and the wide observations made therein were made in the context of the facts of that case only. 31. The next question which still arises for our consideration is whether the election petition in the present case was liable to be rejected in limine for non-compliance with section 81(3) read with section 86(1) of the Act on account of the defect in the 'true copy' supplied to the respondent. 32. The precise objection of Mr. Harish Salve, learned senior counsel based on section 81(3) of the Act as already noticed is that the true copy of the affidavit filed in support of the allegations of corrupt practice in form No. 25 as required by Rule 94A had not been served on the appellant inasmuch as in the copy served on the appellant, the name and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution Bench of this Court elaborately dealt with this question after referring to a catena of authorities. It was held that the test to determine whether a copy was a true one or not was to find out whether any variation from the original was calculated to mislead a reasonable person. The Constitution Bench found as untenable the contention that since copies of the petition served on the returned candidate did not contain signatures of the petitioner below the word 'petitioner', on the copies of the petition served on the respondent, they had ceased to be true copies of the original petition, attracting the consequences of Section 86(1) of the Act. The Bench opined: Having regard to the provisions of Part VI of the Act, -we are of the view that the word 'copy' does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility 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. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view of the Constitution Bench in Murarka Radhey Shyam Ram Kumar's case (supra), the Constitution Bench in Ch. Subbarao's case ruled that substantial compliance with section 81(3) was sufficient and the petition could not be dismissed where there had been substantial compliance with the requirements of Section 81(3) of the Act, in limine, under section 81(3) of the Act. We are in respectful agreement with the view expressed by the Constitution Bench in Murarka Radhey Shyam Ram Kumar's case as well as in Ch, Subbarao's case. 38. The object of serving a 'true copy' of an Election Petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in Election Petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form. 39. The expression 'copy' in section 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases would attract the provisions of section 81(3) read with section 86(1) of the Act. Same consequence would not follow from non-compliance with Section 83 of the Act. 41. We are unable to agree with Mr. Salve that since proceedings in election petitions are purely statutory proceedings and not 'civil proceedings' as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into section 86(1) read with section 81(3) of the Act. It is, too late in the day to so urge. The law as settled by the two Constitution Bench decisions of this Court referred to above is by itself sufficient to repel the argument of Mr. Salve. That apart, to our mind, the Legislate intent appears to be quite clear, since it divides violations into two classes-those violations which would entail dismissal of the election petition under section 86(1) of the Act like non compliance with section 81(3) and those violations which attract section 83(1) of the Act i.e. non-compliance with the provisions of section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance ' as expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omply with the provisions of Section 81 of the Act. In this connection, it is also relevant to note that the appellant, neither in the memo of objections nor in the written objections or in C.M.P. No. 2903 of 1996 has alleged that he had been misled by the absence of the name, rubber stamp and seal of the notary on the copy of the affidavit supplied to him or that he had been prejudiced to formulate his defence. Even during the arguments, learned counsel for the appellant was not able to point out as to how the appellant could have been prejudiced by the alleged omissions on the copy of the affidavit served on him. 43. In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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