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1994 DIGILAW 613 (RAJ)

Mahendra Kumar v. Bheema Raj Meena

1994-08-09

P.K.PALLI

body1994
Honble PALLI, J. — Mahendra Kumar, petitioner, has filed this election petition agast in Bheem Raj. Elections were held on 11.11.1993. Bheem Raj respondent was declared elected from Aspur Assembly Constituency No.136. The election has been challenged by way of this petition that the respondent had given wrong information in the nomination form with respect to his age by concealing the material fact. It is alleged in the petition that the respondent passed out the Secondary Examination from the Board of Secondary Education Rajasthan, Ajmer in the year 1987 where his date of birth is entered as 10.8.1969. In short the entire case as projected in the petition is that the respondent was below the age of 25 years at the time of the filing of the nomination form and under Article 173 of the Constitution of India as well as for qualifying for the membership of the State Legislature. Under Section 5 of the Representation of the People Act, 1951 a candidate seeking such election is not duly qualified to contest if he is less than 25 years of age. This petition was presented in this Court on 3.12.1993/10.12.1993. Whereafter this Court issued notices to the respondent. After completion of service Mr. N.M. Lodha, Advocate put up his appearance on 21.4.1994 and sought time to file the written-statement for which the case was adjourned to 23.5.1994 when the malter come up on 23-5-1994 the respondent moved a petition raising preliminary objections for out-right dismissal of the petition under Section 83 read with Section 86 of the Representation of the People Act. The petitioner was, thus,called upon to put in the reply to the preliminary objections and in sequence of the order the petitioner has placed on record the reply dated 29.6.1994 to the preliminary objections. (2). In the preliminary objections, the respondent has raised the following objections; — 1. That only one set of the election petition was served on the respondent. 2. That the annexures placed with the election petition are not legible. 3. That the petition was not in conformity with law as the verification made in support of Annexures 1 and 2 is not proper and the sources of these documents have not been disclosed. 4. That only one set of the election petition was served on the respondent. 2. That the annexures placed with the election petition are not legible. 3. That the petition was not in conformity with law as the verification made in support of Annexures 1 and 2 is not proper and the sources of these documents have not been disclosed. 4. That in the verification made in the election petition as well as on the Annexarures 1 and 2 the signatures of the petitioner do not appear on the verification meaning thereby that the annexures are not true and correct copies of the originals. 5. That the scrutiny of the nomination form was made after notice and information to the petitioner and no objection was raised at that time and now after the declaration of the result when the petitioner has lost the election, the election petition is not maintainable. 6. That the security has not been deposited as per the provisions of law. (3). In the reply placed on record by the petitioner, it is stated that on 17.1.1994 the summons were ordered to be issued to the respondent to appear extra copies of the petition to be served on 14.2.1994. Counsel appearing for the petitioner furnished necessary on the respondent in accordance with the direction of the court as such there is no lacuna on the part of the petitioner in filing the extra sets of the petition and service of one set of the petition alongwith annexures is sufficient service. It is stated that assuming the document Annex.3 is not legible, it is not a ground to reject the election petition . In respect of verification, it has been replied that the same is in conformity with law and the documents attached with the election petition are the true copies of the originals. The respondent has not denied that the documents Annexs,2 and 3 are not true copies or are false or fabricated all necessary documents have been properly signed and the verification is made in accordance with law and at the time of the scrutiny of the nomination papers the petitioner could hardly know that the date of birth being given in the declaration was not correct and there was no occasion to raise an objection at that time, The objections are stated to be carring no force and are aimed at delaying the proceedings. The respondent has further placed the rejoinder to the reply and what has been stated in the preliminary objection has been reiterated. (4). Learned counsel appearing for the respondent in order to support the preliminary objections has pressed only three points that the copies given are not correct according to the provisions laid lown in section 81(3) and, thus there is lack of compliance. Second point raised is that there is no proper verification of the election petition as well as on the annexures and third that the security deposit was not in accordance with law. (5). On the first point, my attention has been drawn to the fact that the copies were filed latter and as per the requirement of section 81(3) which is mandatory and non-compliance of the same shall render the petition liable to be summarily dismissed in view of the provisions laid down under section 86(1) of the Representation of the People Act and in support of this contention the decisions reported in Satya Narain vs. Dhuja Ram and others (1); Bhika Bhai vs. Lal Shanker and others (2). F.A. Sapa Etc. Etc.vs. Singora and others (3) and Mohan Raj vs. Surendra Kumar Taparia and others (4) have been pressed into service. All these decisions deal with the requirement of spare copies, non- compliance and its effect. (6). Their Lordships while examining the matter in the decision of Satya Narain (supra) have laid down that the requirement of section 81(3) is mandatory and non-compliance results in the dismissal of the election petition. It was held that the right to challenge an election is a special right conferred under a self contained special law and the court will have to seek answer to the questions raised within the four corners of the Act and the powers of the court are circumscribed by its provisions. It is not to be equated with a plaint in a civil suit. The purpose behind the enclosing of the copies is to enable quick despatch of the notice with the contents of the allegationg for service on the respondents so that there is no delay in the trial at the very initial stage when the election petition is presented. (7). To the similar effect are the observations contained in other decision i.e. in the case of Mohan Raj (supra), referred to above. (8). (7). To the similar effect are the observations contained in other decision i.e. in the case of Mohan Raj (supra), referred to above. (8). The decision given in the case of Bhika Bhai (supra) deals with the point where the copy of the petition is not attested by the petitioner under his signatures and this court held that the provisions contained in section 81(3) are mandatory and having not been complied the election petition was liable to be dismissed. (9). Learned counsel for the petitioner while replying to this objection has brought to my notice that on 17.1.1994 this court for the first time ordered the issuance of notice and in the order itself it is said that the petitioner if he has not already furnished the extra copies of the petition shall furnish the same and the office note aappeaing on the margin against this order is dated 18.1.1994 wherein it is recorded "by Regd. Post" (Notice issued to respondent with copy of the election petition with documents through District Judge, Dungarpur) and the second note again appears at S.No.391 on that very date itself i.e. 18.1.1994 recording "Notice issued to respondent with copy of petition with documents through Regd. Post A/D This would show that the petitioner supplied the copies with all promptness and in sequence of the order passed by this court and no time was left to be wasted in this respect. It reveals that the orders for the issuance of notices was given on 17.1.1994 and on 18.1.1994 i.e. on the very next day the notices had been issued by the office throught the District Judge, dungarpur as well as by registered post complete in all respects i.e. that the copy of the election petition as well as the documents. Yet there is a note dated 25.1.1994 stating that the one extra copy of election petition with summons has been filed today and summon to the respondent with copy through the District Judge, Dungarpur and dasti given to Shri N.N. Mathur, Advocate. This endorsement is dated 25.1.1994. The next date fixed was 17.2.1994 and the order of this date records that the notices issued in pursuance of the order dated 17.1.1994 have not been received after service or otherwise. Be awaited. (10). This endorsement is dated 25.1.1994. The next date fixed was 17.2.1994 and the order of this date records that the notices issued in pursuance of the order dated 17.1.1994 have not been received after service or otherwise. Be awaited. (10). This petition had earlier been assigned to Honble Mr, Justice R.S. Verma for disposal and since the Honble Judge had been transferred to Jaipur Bench,the papers were placed before Honble the Chief Justice for fresh assignment and vide the order dated 16.3.1994, the Honble the Chief Justice assigned the trial of the petition to this court and in sequence the petition came up before me on 22.3.1994 on which date it was reported by the office that the notices sent have been returned unserved with the report that the respondent was out of station. On 22.3.1994,1 ordered the issuance of fresh notices by ordinary process as well as by registered post and a copy of the notice was also ordered to be sent to the respondant through the Secretary, Legislative Assembly Rajasthan . When Mr. N.M. Lodha appeared on 21.4.1994 after the notices had been served, he prayed for time to file written-statement and four weeks time in this respect was allowed.Nothing was stated on that date that the copies received by the respondent were not in order or that the same was dim and when the case came up on 23.5.1994, instead of putting in the written-statement these preliminary objections were filed in writing . In view of what has been narrated above, there is no force in the first contention in respect of the supply of copies not being in conformity with section 81 (3) of the Representation of the Pepole Act. (11). The next contention raised by the learned counsel appearing for the respondent is that the copies served upon the respondent are not the true copies and the signatures have not been placed on Annexures 2 and 3 at the place of verification and the defect was fatal. (11). The next contention raised by the learned counsel appearing for the respondent is that the copies served upon the respondent are not the true copies and the signatures have not been placed on Annexures 2 and 3 at the place of verification and the defect was fatal. In short, the submission of the learned counsel in this respect is that these are not the true and correct copies of the originals and that the verification is not in accordance with Order 6 Rule 15 C.P.C. since the source of information has not been disclosed and for that purpose the learned counsel has pressed into service the decisions rendered in the cases of Tarsem Kumar and Mohan Raj (supra). (12). In Tarsem kumars case, while dealingwith the contention in para 29 -at page 1575 their Lordships have observed that every such copy must be attested by the petitioner under his own signature to be a true copy of the petition and non-compliance with the requirements of sub-section (1) or sub-section (3) of section 81 could prove fatal in view of section 86(1) of the Representation of the People Act and this view was further based on a number of decisions given thereunder. (13). I have examined this proposition of law. On a perusal of the petition and the documents which are on record I find that in the petition the verification appears like this— "VERIFICATION I, Mahendra kumar, abovenamed petitioner on this 3rd day of December,1993 at Jodhpur hereby verify that the contents of paras 1 to 3 are true to my knowledge: paras 4,5 & 6 are correct on the basis of school records and paras 7 to 11 are true to my knowledge. Sd/- (MAHENDRA KUMAR) PETITIONER." (14). There is still one set of the petition on the paper-book and each page has been attested to be true copy under the signatures of the petitioner. Coming to the annexures Annex.l is the election result and no objection was raised regarding this . On this document, the petitioner has signed attesting it to be a true copy. The document carries stamp and signatures of the Collector and on the next page the petitioner has verified that Annex. 1 is the photostat attested copy issued by the Returning Officer. (15). On this document, the petitioner has signed attesting it to be a true copy. The document carries stamp and signatures of the Collector and on the next page the petitioner has verified that Annex. 1 is the photostat attested copy issued by the Returning Officer. (15). Annex.2 is the certificate granted by the Board of Secondary Education Rajasthan and it is attested to be the true copy by the authorised officer as well as by the petitioner and the verification with this document reads that the same was the true copy of the mark-sheet of the respondent Bheem Raj Meena issued by the Board of Secondary Education, Rajasthan, Ajmer. (16). Learned counsel appearing for the petitioner has pressed into service the observations made by the Honble Supreme Court of India reported in Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore & others, (5) wherein it is said that where every page of the copy served on the respondent was attested to be a true copy under signature of the petitioner, a fresh signature below the word petitioner was not necessary. (17). In my opinion, there is nothing wrong with this document in so far as its attestation to be a true copy or verification is concerned. (18). Next comes Annex.3 i.e. Scholar Register form issued by the Headmaster and attested by the Principal, Government Senior Higher Secondary School, Saroda (Doongarpur) and the same has also been attested as true copy by the petitioner under his signature and on the verification that the petitioner has verified the same as the attested photostat copy of the Scholar Register form issued by the Principal, Government Senior Higher Secondary School, Saroda. (19). Learned counsel for the respondent argues that this document appears. to be a copy of the copy and is not in conformity with the requirement of law. (20). In my opinion, this objection is untenable as the same stands attested by the Principal of the Institution and has been further attested to be a true copy by the petitioner. This is true that it is a photostat copy bat in any case the same has been attested to be a true copy and from no where the contention is supported that the same was a copy of the copy. This is true that it is a photostat copy bat in any case the same has been attested to be a true copy and from no where the contention is supported that the same was a copy of the copy. This objection also carries no force, True, that the petitioner has not in so many words disclosed the source of knowledge but there is hardly any occasion for it as the documents are attested by the authorised persons and in addition to this the petitioner too has put his signatures after stating it to be a true copy. In the decision which the respondent has himself relied upon i.e. F.A. Sapas case in para 33 their lordships have held that the defect in the verification is not fatal and can be cured and in that case no attempt has been made by the election petilioners to cure the same nor the High Court directed the petitioners to do so and in that case their Lordships made a request to the High Court to issue directions to the petitioner to remove the defect within such time as it may allow and if they fail to do so pass appropriate consequential orders in accordance with law. In my opinion, the defect pointed out by the learned counsei is not fatal and in my opinion, the petitioner can still be asked to clarify the verification more precisely in accordance with law and for that purpose the petitioner is directed to clear the ambiguity within two weeks from the date of this order. With this goes the second objection raised by the learned counsel for the respondent. (21). Now, coming to the third argument in respect of the security deposit, learned counsel for the respondent submits that the security deposit should have been made in the name of the Election Commission because this amount of security is deposited for the purpose of realisation of the cost. My attention has been invited to the provisions contained in section 117 of the Representation of the People Act, which deals with the security for the cost. Under sub-section (1) it is said that at the time of presenting the election petition the petitioner shall deposit in the High Court in accordance with the Rules of the High Court concerned a sum of Rs.2000/- as security for the cost of the petition. Under sub-section (1) it is said that at the time of presenting the election petition the petitioner shall deposit in the High Court in accordance with the Rules of the High Court concerned a sum of Rs.2000/- as security for the cost of the petition. There is no dispute that an amount of Rs.2,000/-stands deposited as security deposit by the petitioner and the same is deposited in the matter of election petition and under the orders of this Court. The petitioner even if he chooses to withdraw this amount the same cannot be permitted to be withdrawn unless the same is permitted to be withdrawn by the orders of this court. The objection is also not tenable and no such defect has been pointed out which would be fatal. (22). Learned counsel half heartedly argued that the objection could be raised at the time of the scrutiny of the nomination papers before the election and no objection having been raised as such the same cannot be permitted to be raised now and therefore, the petition is not maintainable. There is no force either in this contention raised by the learned counsel since the petitioner could hardly be expected to know at that time as to whether the date of birth being given by a candidate was correct or not. (23). In view of what has been said above, the preliminary objections raised by the respondent carry no force and are dismissed. The filing of the objections appears to be solely for the purpose of delaying the proceedings. The question being raised in the election petition is very short and I direct the respondent to put in the written statement without any further delay and the same be filed two days before the next date of hearing with advance copy to the learned counsel for the petitioner.