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Allahabad High Court · body

1985 DIGILAW 1029 (ALL)

Ram Lal v. Sheo Balak

1985-10-18

PARMESHWAR DAYAL

body1985
ORDER Parmeshwar Dayal, J. - In response to a notification dated 28-1-1985 under section 15 of the Representation of the People Act, 1951 for general elections to the U.P. Assembly, nominations were filed for a Constituency No. 113 Salon (Scheduled Caste) of district Rae Bareilly. After scrutiny, 8 persons including the petitioner Ram Lal, contested the election in that constitutency. The counting was done on 6-3-1985 and the respondent No. 1 Sheo Balak was declared elected from that constituency. He had secured 35,736 votes followed by the petitioner Ram Lal who secured 13,841 votes. 2. Ram Lal filed the election petition on 20-4-1985 for declaring void the election of respondent No. 1 from 113 Salon (Scheduled Caste) Constituency and for his declaration as an elected person. He levelled the allegations of corrupt practices of giving bribe to the electors, exercising undue influence, canvassing on the ground of caste, hiring vehicles, obtaining assistance of the gazetted officers in furtherance of the prospects of the election as the respondent No. 1 held the office of Deputy Minister of Uttar Pradesh State Cabinet, threatening the supporters and the another (voters?) of the petitioner, capturing votes, snatching away ballot papers from the Assistant Polling Officer, incurring more expenditure than the authorised expenditure under the rules and so on. 3. The respondent No. 1 Sheo Balak, instead of filing a written statement, moved Civil Misc. Application No. 119(E) of 1985 praying for the dismissal of the election petition under S. 86(1) of the Representation of the People Act (hereinafter to be called Act). He alleged in this application that he got the original file inspected through his counsel and was surprised to note that the copy served on him was not only incomplete copy but also did not contain any copy of the Schedules and the list of the documents and affidavit, filed by the petitioner along with the original petition, and that he failed to comply with the provisions of S. 81(3) of the Act. 4. The petitioner Ram Lal moved C. M. Application No. 120 (E) of 1985 under S. 151 C.P.C. praying that he be permitted to furnish complete, correct and true copy of the election petition to the respondent No. 1 within reasonable time. A counter-affidavit has been filed along with this application and the same is claimed to be an objection to the C.M. Application No. 119(E) of 1985. A counter-affidavit has been filed along with this application and the same is claimed to be an objection to the C.M. Application No. 119(E) of 1985. In this counter-affidavit, it has been averred that it was by the mistake of the clerk of his counsel that the copy of the election petition which was served on the respondent No. 1 was incomplete; since the copies of the annexures prepared at the time of filing the election petition were less than the number of respondents, the copy was served on the respondent No. 1, and that he is now ready to furnish the true, complete and attested copies of the election petition to the respondent No. 1. 5. Thus, it is admitted to the petitioner Ram Lal that a complete, correct and true copy of the election petition was not served on the respondent No. 1. That copy which was served on the respondent No. 1 has been annexed with the C.M. Application No. 119(E) of 1985. The page 11 of this annexed copy shows that the original petition contain paras 19 to 25. When this para 19 of the copy is compared with the original petition, it is found to be para 3 at page 13. This way the paras 19 to 23 of the original petition are missing in the annexed copy. In the original petition itself, the serial number of the paragraph 23 has been repeated. The page 12 of the copy contains the prayer and the prayer is typed and hand-written at page 14 of the original petition. In the copy, the prayer No. 1 is that "the election of respondent No. 1 be declared void" and the prayer No. 2 is that "the petitioner be declared elected in place of respondent No. 1. "In the original, the prayer No. 1 is that "the election of respondent No. 1 from 113 Salon (Scheduled Caste) Constituency be declared void" and the prayer No. 2 is that "the petitioner be declared elected in place of respondent No. 1 from 113 Salon (Scheduled Caste) Constituency." Thus, the copy is not complete with regard to the clause of prayer also. The original petition has been verified by the petitioner but in the copy, the various contents which exist in the original petition are missing in the clause of verification. The original petition has been verified by the petitioner but in the copy, the various contents which exist in the original petition are missing in the clause of verification. Still, this annexed copy has been verified by the petitioner as a true copy of the election petition. 6. The petitioner filed 5 Schedules with his original election petition and they are numbered as pages 16 to 28, and 7 annexures have been attached which are numbered as pages 29 to 43. A list of documents is mentioned at page 44 of the petition. The affidavit accompanying the petition is numbered as pages 46 and A-2/47. The copies of all these 5 schedules, 8 annexures, the list of documents and the affidavit have not been furnished to the respondent No. 1. 7. In view of the aforesaid facts. it has to he seen that if the petitioner may now be given an opportunity to fill this lacuna, at this stage or else the petition is liable to be dismissed under S. 86 11) of the Act. 8. Section 81(3) of the Act lays down that 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. The word "shall" used in the sub- section (3) of S. 81 indicates that it is obligatory on the part of the petitioner to file the attested copies under his own signature with the election petition. 9. The first proviso to S. 83(1) of the Act lays down that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. 10. Section 86(1) of the Act lays down that the High Court shall dismiss an election petition which does not comply with the provisions of S. 81 or S. 82 or S. 117, and the Explanation qualifies that an order of High Court dismissing an election petition under this sub- section (1) shall be deemed to be an order made under clause (a) of S. 98. The word `shall' used in S. 86(1) also shows that it is mandatory to dismiss an election petition which does not comply with the provisions of S. 81 or S. 82 or S. 117. 11. In the instant case, there has not been the compliance of the provisions of S. 81(1)(3?) of the Act, as rightly argued by Sri S.C. Maheshwari, learned counsel of the respondent No. 1. 12. The petitioner's learned counsel contended that there has been a substantial compliance of law. He relied on the case of Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 in which case it was held that non-compliance with the provisions of the law relating to the impleading of parties, viz. S. 82 is not necessarily fatal and can be cured. Obviously, this cited case has no bearing in the instant case where there has been non-compliance of S. 81 of the Act. It cannot be said that he did the substantial compliance of the provisions of S. 8l because he supplied an incorrect and incomplete copy to the respondent No. 1 and he did not furnish the necessary copies of affidavit etc. which form part of the election petition. It can be called a complete non- compliance of the provisions of S. 81 of the Act. 13. It was held in the case of Mithilesh Kumar Pandey v. Baidyanath Yadav, AIR 1984 SC 305 that before an election petition can be entertained, the copies sent to the elected candidate must be a true copy, failing which there would be serious disobedience of the mandate contained in S. 81(1) which may be fatal to the maintainability of the said petition. It was further observed that to determine the question of non-compliance of S. 81 (3), the following principles are well established : "Every petition shall be accompanied by as many copies thereof as there are respondents 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." 14. In view of the above, the election petition was held liable to he dismissed in limine. 15. In view of the above, the election petition was held liable to he dismissed in limine. 15. It was further held in the case of J.P. Goyal v. Raj Narainand, (1984) 3 SCC 339 : AIR 1984 SC 956 , in the case of Bishambhar Nath Pande v. Raj Narain (1984) 3 SCC 339 : AIR 1984 SC 956 that if an election petitioner files a number of copies, some of which may be correct and some may he incorrect, it is his duty to see that the copies served on the respondent is a correct one and that the respondent is not obliged to wade through the entire record in order to find out which is the correct copy. It was further held that if out of the copies filed, the respondent's copy is found to be an incorrect one, it amounts to non-compliance of S. 81(3) which is sufficient to entail dismissal of the election petition at the behest under S. 86. 16. The respondent No. 1 referred to the case of Dr. V.C. Misra v. Dr. Raj Kumar Sanjay Singh decided by this Court on 24-5-1985 in Election Petition No. 10 of 1985 where a notice was not even issued and the petition was dismissed in limine for non-compliance of the provisions of S. 81(3) of the Act. 17. Therefore, this is not the stage for permitting the petitioner to cure the defects, and the C. M. Application No. 119(E) of 1985 is allowed and the objections and reply vide C.M. Application No. 120(E) of 1985 are dismissed. This Election Petition No. 20 of 1985 is also dismissed in limine with costs to the respondent No. 1 which are assessed at Rs. 2000/-. The costs shall be paid out of the security money. Other respondents shall bear their own costs. 18. Substance of this judgment shall be sent for with to the Election Commission and the Hon'ble Speaker of the Uttar Pradesh State Legislative Assembly. Certified copies of the judgment shall be expeditiously sent to the Election Commission in duplicate.