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1983 DIGILAW 228 (DEL)

GOPAL PARSAD SHASTRI v. ARCHANA KUMAR

1983-08-08

AVADH BEHARI ROHATGI

body1983
( 1 ) THIS is an election petition under Ss. 80 and 81, Representation of the People Act, 1951 (the Act) read with S. 9, Delhi Administration Act, 1960. The petitioner has challenged the election of respondent No, 1 to the Metropolitan Council from R. K. Ruram, Constituency, No. 12. ( 2 ) THESE are the facts. Election was held in the R. K. Purak, constituency on 5-2- 1983. The petitioner was a candidate. So was respondent No. 1. On 6-2-1983 counting took place. The result was declared on the same date. Respondent 1 was declared as a successful candidate. ( 3 ) NOW an election petition under Sections 80 and 81 has to be filed within 45 days from the date of election of the returned candidate. This period of 45 days expired on 23-3-1983. Before the expiry of 45 days, the present petition was filed on 24-2-1983. But what happened is this, that though the election petition was filed, the petitioner did not comply with the provisions of S. 81 (3) of the Act. He did not file copies of the election petition in accordance with the requirement of sub-section (3) of Section 81. In fact he did not file any copies with the election petition. ( 4 ) THE office of the High Court raised an objection on 20-4-1983. The objection says "notices could not be issued for want of copies of petition and, the process fee was returned". It appears that on the next day the petitioner filed copies. On 22-4-1983 notices were issued, to the respondents. ( 5 ) RESPONDENT 1 has raised a preliminary objection that the petitioner has not complied with the provisions of Section 81 of the Act and, therefore, the petition is liable to be dismissed on that short ground. On 2-8-1983 I framed the following issue on this objection :- Whether the petitioner has complied with the provisions of Section 81, Representation of the People Act, 1951 ? If not, what is its effect? ( 6 ) MR. Saxena, oh behalf of the petitioner, says that what is required is a substantial compliance of Section 81 and not a literal compliance. He has argued that on the objection being raised by the High Court Office he complied with the provisions of Section 81 (3) of the Act. Copies, he says, were filed on 20-4-1983 and notices Were issued on 22-4-1983. He has argued that on the objection being raised by the High Court Office he complied with the provisions of Section 81 (3) of the Act. Copies, he says, were filed on 20-4-1983 and notices Were issued on 22-4-1983. This, according to him, is enough compliance and, therefore, there is no case for total non-compliance of the provisions which alone, according to him, would entail the dismissal of the petition. In this connection he has REFERRED TO to Rule 7, Election Rules of 1967, framed by this Court. He has also invited-my attention to Bhikha Bhai v. Lal Shankar, AIR 1978 Raj 193 . ( 7 ) MR. Bansal, on behalf of respondent 1 says that the provisions of Section 81 (3) are mandatory in character and non-compliance with these provisions makes it incumbent on file Judge to dismiss the petition as required by Section 86 (1) of the Act. He relies on Satya Narain v. Dhuja Ram, AIR 1974 SC. 1185 , Sharif-ud-Din v. Abdul Gani, AIR 1980 SC 303 and Ashok Shankar v. Krishna - rao, AIR 1980 Bom 224 . 8. Section 81 (3) says : "81 (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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 86 (1) says : "the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 and Section 117. " ( 9 ) ON a conjoint reading of these provisions it appears to me that Section 81 (3) is mandatory and non-compliance with it must result in the dismissal of the election petition. The purpose of enclosing the copies of the election petition for all the respondents is to enable quick despatch of the notice with the contents of the allegations for service on the respondent or respondents so that there is no delay in the trial at this very initial stage when the election petition is presented. The object of the Act is completely frustrated if there is delay. The object of the Act is completely frustrated if there is delay. Section 81 (3) is, therefore, a peremptory provision and total non-compliance will entail the dismissal of the election petition (Satya Narain ( AIR 1974 SC 1185 ) (supra ). This being the object of the provision and the words of Section 86 being imperative in nature, there can be no doubt that the provisions regarding filing of copies are mandatory in character, "if the object of the law is defeated by non-compliance with it, it has to be regarded as mandatory. " (Sarif- ud-Din ( AIR 1980 SC 303 ) (at p. 306 ). It would defeat the basic purpose of S. 81 (3) if the election petition is not accompanied by the required number of copies. The purpose is that there is no delay in proceeding with the election petition and that all the respondents are intimated about the filing of the petition. For this purpose it is essential that the petition must be accompanied by the requisite number of copies. If this is not done and the period of 45 days has expired he defect cannot be cured subsequently because the provisions of the Act are mandatory in nature. If the copies are filed subsequently, as was done in his case, it will not cure the non-compliance with the section because the mandatory provisions of Section 86 of the Act have come into operation and the Court has no option but to dismiss the petition on the ground of non- compliance with S. 81 (3 ). ( 10 ) I cannot accept Mr. Saxena s arguments that there is a substantial compliance with the provisions of Section 81 (3) in this case. 45 days had expired. The last date for limitation for filing the petition was 23-3-1983. The office raised the objection on 20-4-1983. The copies were filed on 21-4- 1983. Notices were issued on 22-4-1983. So in this process one month was lost. The very object of the section was defeated. This the law does not countenance. The election petition, therefore, must be dismissed in accordance with the provisions of Section 86 (1)of the Act. ( 11 ) MR. Saxena then says that the High Court Rules give power to this Court to save the petition from being dismissed. The very object of the section was defeated. This the law does not countenance. The election petition, therefore, must be dismissed in accordance with the provisions of Section 86 (1)of the Act. ( 11 ) MR. Saxena then says that the High Court Rules give power to this Court to save the petition from being dismissed. Rule 7 says : "the office shall examine the petition with a view to see whether it is in conformity with the requirements of law and the rules, caplicable to the same, and if it is not in conformity with law and the rules, raise objections, which could be removed by the party or the advocate concerned. These objections should be brought to the notice of the party or the advocate on the date fixed for attendance under Rule 6 and such objections shall be removed, subject to the orders of the Court, if any, within two days thereafter. ( 12 ) RELYING on this rule Mr. Saxena says that as the office objection was raised on 20-4-1983 and the requisite number of copies were filed on 21-4-1983, it will be deemed that the Court had granted extension of time to the petitioner to comply with the provisions of Section 81 (3) of the Act. I cannot accept this argument. Rule 7 has no application to the mandatory provisions of Section 81 (3) of the Act. Section 81 (3) has to be interpreted on its own terms. Rule 7 cannot override the provisions of the statute. When the limitation has expired the Judge has no power to condone the delay and to extend the time. Section 81 (3) must come into operation. Once it comes into operation it commands the Court to dismiss the election petition because the mandatory provisions of Section 81 (3) have not been complied with. This is the view of the Supreme Court in Satya Narain ( AIR 1974 SC 1185 ) (supra ). This decision was followed by the Supreme Court in Sarif-ud-Din ( AIR 1980 SC 303 ) (supra ). In Ashok Shankar ( AIR 1980 Bom 224 ) (supra) the Bombay High Court has followed and applied Satya Narain. I do not find anything in Bhika Bhai ( AIR 1978 Raj 193 ) (supra) contrary to the law that the Supreme Court has authoritatively laid down in Satya Narain. In Ashok Shankar ( AIR 1980 Bom 224 ) (supra) the Bombay High Court has followed and applied Satya Narain. I do not find anything in Bhika Bhai ( AIR 1978 Raj 193 ) (supra) contrary to the law that the Supreme Court has authoritatively laid down in Satya Narain. Both Bombay and Rajasthan have merely followed that decision. After Sarif-ud-Din s decision by the Supreme Court there is no manner of doubt that the provisions of Section 81 (3) read with S. 86 (1) are mandatory in character and there is no option to the Court but to dismiss the petition once it finds that there is non-compliance with the requirement of S. 81 (3 ). So I came to the conclusion that this petition must be dismissed because of this fatal flaw. ( 13 ) THE truth is that Ss. 81 (3) and 86 (1) are draconian in their severity. The legislature shows no mercy to a non-complier of Section 81 (3) "the wording is too strong to justify the milder view. " (Smith v. Camme) Laird and Co. Ltd. , 1940 AC 242 (263) per Lord Russel of Kilowen ). ( 14 ) MR. Bansal has raised other objections also. But it is not necessary to argue those points as the point taken by with regard to Section 81 (3) is sufficient to dispose of this case. ( 15 ) FOR these reasons, the election petition is dismissed with costs. Counsel s fee Rs. 750. 00. Petition dismissed.