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Himachal Pradesh High Court · body

1990 DIGILAW 142 (HP)

DR. RAKESH KAMAR v. J. P. NEGI

1990-12-10

V.P.BHATNAGAR

body1990
JUDGMENT V P Bhatnagar, J.—By way of the present election petition, Dr. Rakesh Kumar has challenged the election of Shri Suresh Bhardwaj, respondent 2, to the Himachal Pradesh Legislative Assembly from Shimla-8 constituency The petitioner is stated to have passed his M. B. B. S. examination from Indira Gandhi Medical College, Shimla in November 1988 he completed his compulsory internship in December 1989 and thereafter joined the house job for a period of six months with effect from January 1 1990 at an honorarium of Rs. 2,750 per mensem- He wanted to fight elections for Shimla-8 constituency but, as per his allegations, his nomination papers as independent candidate were improperly rejected by the Returning Officer on February 5, 1990. It is the sole ground on which the election of respondent 2 has been challenged. 2. Respondent 2 raised a number of preliminary objections in his reply which gave rise to the framing of as many as six issues on September 5 1990. Since the election petition can be disposed of as a result of the findings which are recorded hereunder against Issue No I, there appears no need to advert to the remaining issues. Issue No. 1 has arisen on account of a preliminary objection taken up by respondent 2 that the petitioner has failed to comply with the mandatory provisions of section 81 (3) of the Representation of the People Act, 1951 (hereinafter referred to as the Act) inasmuch as the petition was not accompanied by as many copies thereof as there were respondents mentioned in the petition Also, the copies were not attested by the petitioner under his own signature to be true copies of the petition. "Whether the petition is liable to be dismissed due to non-compliance of the provisions of section 81 (3) of the Representation of People Act as alleged ? OPR. Issue No. 1 runs as follows— Issue No. 1: 3. Both the parties were afforded due opportunity to adduce evidence on the above issue. "Whether the petition is liable to be dismissed due to non-compliance of the provisions of section 81 (3) of the Representation of People Act as alleged ? OPR. Issue No. 1 runs as follows— Issue No. 1: 3. Both the parties were afforded due opportunity to adduce evidence on the above issue. Whereas respondent 2 examined Shri M. R. Verma, Registrar of this Court as RW 2 in addition to himself stepping into the witness box as RW 1, the petitioner did not adduce any evidence in rebuttal In other words, he did not have anything to say on the points on which evidence was led by respondent I pertaining to the above issue about non-compliance of section 81 (3) of the Act. 4. To begin with, the facts which are relevant and have not been disputed at the time of arguments may be stated. This election petition was filed on April 12, 1990, that is, well within the period of limitation which infact expired on April 16, 1990. It may be noticed here that the last date of limitation was April 14, 1990 but it being a holiday on account of second Saturday followed by Sunday, the last day for filing election petition in this case was April 16, 1990, as stated above The election petition was presented before the Registrar of this Court on April 12, 1990 who marked it to the scrutiny Assistant for examination. The perusal of the scrutiny sheet marked ‘B shows that the scrutiny Assistant, vide his Note dated April 13, 1990 inter alia raised an objection at S, No 9 to the effect that the process fee alongwith spare copies and envelopes had not been filed The matter was then fixed for being listed before the Registrar on April 18, 1990. On the said date the petitioner was present before the Registrar in person and the Registrar recorded in his order that the objections had been removed by the petitioner. It means that the copies of the original petition were handed over in the registry on April IS, 1990. It may be worthwhile to observe here that the period of limitation had expired by that date. It means that the copies of the original petition were handed over in the registry on April IS, 1990. It may be worthwhile to observe here that the period of limitation had expired by that date. That the spare copies were handed over in the registry on April 18, 1990 is further borne out from the perusal of the index marked C wherein the above fact stands recorded under the dated signatures of the petitioner himself. The provisions of the law have to be examined keeping in view the above facts which are not disputed. 5. A bare perusal of section 81 (3) of the Act makes it abundantly clear that it is incumbent upon the petitioner to attach with his election petition copies of the petition equal to the number of respondents and further that such copies have to be attested by him under his own signature to be true copies of the petition. The question of attestation would be dealt with later on and for the present 1 would address myself to that part of subsection (j) of section 81 which makes it a must that copies of the election petition should be attached with the election petition when it is presented. The effect of non-compliance of this provision is contained in section 8c (i) of the Act which provides that an election petition which does not comply with the provisions of section 81 or section 82 or section 117 shall be dismissed by the High Court Once again, the mandate of the law is absolutely clear. To reiterate, the provision of law is that if the petitioner fails to file with the election petition copies of the petition equivalent in number to that of the respondents the election petition would be dismissed on that short ground. Framers of the law had specific reason while putting the above provision on the Statute Book. An election petition cannot be permitted to remain pending for a period more than what is absolutely necessary. For the successful running of a democratic system of Government it is a must that a shadow cast on the election of a person to the legislature of the country is removed one way or the other in the minimum possible time, Actually, a specific provision to that effect stands made in section 86 (6) and (7) of the Act itself. Moreover, there is a catena of case law to fortify the conclusion arrived at and out-lined by me above. Reference in this connection may be had to the law laid down in Satya Narain v. Dhuja Ram and others, AIR 1971 SC 1 85. It is a case which applies to the facts of the case in hand with all appositeness. 6. Equally mandatory and with the same fatal results to the election petition is the other requirement incorporated in section 81 (3) pertaining to the copies of the election petition being attested by the petitioner under his own signature to be true copies of the petition. The dismissal for such a lacuna is postulated once again in section 8o (L) of the Act Support on this point can be had from Sharif-nd-Din v, Abdul Gani Lone, AIR 1980 SC 303 and Ved Parkash Gaur v. Sukhan and others, AIR 1984 Del 276. As regards the facts on this point, it has not been and cannot be disputed that the spare copies handed over to the Registry on April 18, 1990, did not contain any attestation clause at all. If so, the question of the petitioner having signed such a clause would not arise, On this score as well, the preliminary objection raised by respondent No 2 and incorporated in Issue No. 1 is likely to prevail and the election petition liable to be dismissed. 7. Shri Indar Singh, learned Counsel for respondent No. 29 has also brought to my notice a number of discrepancies in-between the copy R-2 which was admittedly delivered to the respondent 2 at the time service was effected upon him and the original copy of the election petition. It is not necessary to deal with the above point in detail as the election petition has to fail in view of the observations already made above. 8. Dr. Rakesh Kumar has not been represented by any counsel before this Court. His only argument today has been that he should have been provided a counsel by the court since he was a lay man. The qualifications of the petitioner have already been stated above. There is no material before me to come to the conclusion that he could not have engaged a counsel if he had seriously wanted to do so. His only argument today has been that he should have been provided a counsel by the court since he was a lay man. The qualifications of the petitioner have already been stated above. There is no material before me to come to the conclusion that he could not have engaged a counsel if he had seriously wanted to do so. For the reasons stated above, Issue No. 1 is decided in favour of respondent No. 2 and the election petition dismissed. The petitioner will pay a sum of Rs. 500 as costs to respondent No. 2. Election Petition dismissed.