Phatik Chandra Ganguly v. Raghubar Das — 1996 DIGILAW 12 (PAT)

Judgment P.K.Deb, J. 1. These two Election Petitioner are taken up together for the purpose of decision of preliminary issue regarding the maintainability of the Election Petitions and are being disposed of by this common order. 2. Election Petition No. 1 of 1995 (R) has been filed by one Phatik Chandra Ganguly challenging the election of the returned candidate i.e. Shri Raghubar Das, respondent No. 1 from 291 Assembly Election, Jamshedpur East Assembly Constituency held in the Year 1995. The petitioner is a voter having Serial No. 907, Part No. 147 of Jamshedpur East Assembly Constituency. He has challenged the election on the ground that the Returning Officer illegally rejected the nomination paper of Shri Vijay Kumar Dev and Shri Haldar Soren. 3. In Election Petition No. 2 of 1995(R), the same election was challenged by Shri K.P. Singh who contested the election and, according to him, he got the majority number of votes but due to mis-counting and so many illegalities done at the time of counting have caused the respondent No. l elected on getting maximum number of votes although he did not get such number of votes. 4. On preliminary issue, the main ground of respondent No. 1 is that the copies supplied to the respondent are not the true copies of the election petition and there were various deviations of the copies supplied to the respondent than the election petition itself. Further ground is that (i) the affidavit portion with the seal of Notary Public/Oath Commissioner have not been supplied to the respondent as contained in the affidavit attached to the election petition on various pages; (ii) On the first page of the election petition, there is an endorsement by the election petitioner in the following manner: Attested to be the true copy of the election petition with its annexure. which infers that the election petition which has been submitted to the Court is not the election petition but a true copy of the same. (iii) The Petitioner has not stated in the affidavit as to the person from whom he derived knowledge as to who was present in the Returning Officers room at the time of scrutiny of the nomination papers and with regard to Election Petition No. 2 of 1995(R) as to who was the candidates whose propose has informed the election petitioner as to the miscounting of the votes. 5. 5. There are various allegations made against the Returning Officer but the Returning Officer has not been made party in the election petition which is against all the norms. 6. Mr. Barnwal S. Lal, learned Counsel appearing for and on behalf of the respondent have submitted some omissions or some penning through of the words in the election petition which have not been made as it is in the copy of the petition alleged to be supplied to the respondent. It appears from the order-sheet of Election Petition No. 2 of 1995(R) that respondent No. 1 refused to accept the notice along with a copy of the election petition and as such service was accepted by this Court and then the respondent No. l appeared and filed his written statement. There is no evidence to the effect that as to the copy which has been shown to the Court that the same was served on respondent No. 1 through the process of the Court. The same is the position with Election Petition No. 2 of 1995(R). 7. In course of argument, it has been found that such objections regarding non-penning through of some words in the copy are of no much importance and there is no scope of misdirecting the respondents to fairly contest the election petition. Practically those objections have been raised only for the purpose of objection only. Sec. 81(3) of the Representation of the People Act, 1951 hereinafter referred to as the Act reads as follows: Every election petition shall be accompanied by many copies 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. 8. The word shall used in the above Sub-sec. makes the section and compliance of it as mandatory as has been submitted strenuously by Mr. Barnwal S. Lal and any departure from such implementation shall make the election petition liable to be dismissed in limine under Sec. 86 of the Act. The word shall used in a statute can in no case be mandatory for all purposes. Sometimes it becomes directory also. Any departure from mandatory provisions makes the application/implementation rejectable at the outset, but any directory Statute may not be rejectable only for non-compliance alone unless itself shown to be prejudicial to the adverse party. The word shall used in a statute can in no case be mandatory for all purposes. Sometimes it becomes directory also. Any departure from mandatory provisions makes the application/implementation rejectable at the outset, but any directory Statute may not be rejectable only for non-compliance alone unless itself shown to be prejudicial to the adverse party. The Election Laws are very technical and it is submitted that the provisions are to be madiculously maintained as those are mandatory in nature because of the principle that the election held after much expenses incurred to the exchequer of the State cannot be lightly to be called in question when a person has been elected; by the mandate of the people and such election petition with the departure from the mandatory provision would cause unnecessary harassment to the returned candidate who has got much responsibility on his shoulder because of the mandate of the people to serve the people in his constituency. Although mandatory provision does not require prejudice but the intention of the Legislature is to be gathered from the section itself. Sec. 81(3) of the Act requires that the election petition should be accompanied by the copies of the same being attested by the petitioner under his own signature to be a true copy of the petition which means that the respondent must get the exact copy of the election petition so that he can put up his defence on all material particulars referred to in the petition. The decisions of the Apex Court referred this provision as mandatory provisions but in dealing with the same, their Lordships have also considered as to the nature of prejudice to be caused to the respondents for variation in the election petition and the copies thereof. In this connection, reference may be made to Jagat Kishore Prasad Narain Singh V/s. Rajendra Kumar Poddar and Ors. -- . The Supreme Court has held that the discrepancies between copy of petition supplied to the opposite party and actual petition presented to Court may not be of such nature that it would cause misleading to the opposite party and prejudicing its defence. The question of substantial compliance of Sec. 81(3) of the Act has been rejected and it has been held that it should be meticulously followed so that there may not be any misleading to the opposite party. The question of substantial compliance of Sec. 81(3) of the Act has been rejected and it has been held that it should be meticulously followed so that there may not be any misleading to the opposite party. Nothing has been shown on the first and second point urged by the learned Counsel for the respondents that those wordings had caused any misleading to the opposite party-respondent in preparing his defence It is only stated that the name of the candidate not being shown in the affidavit has caused grievance to the effect that the respondent could not locate the candidate whose proposes had informed the petitioner regarding miscounting of ballot papers, but the names of proposes have been mentioned specifically in the affidavit. Other matters regarding as to whose proposer he was is a matter of evidence and evidence need not be put in the pleadings. 9. Practically Mr. Barnwal S. Lal has harped on non-supply of endorsement of Notary Public on the copy of the affidavit accompanying the election petition, relying on a Single Bench decision of the Bombay High Court in the case of Purushottam V/s. Returning Officer, Amravati and Ors. -- . His Lordship of Bombay High Court has arrived at a decision that the absence of the endorsement of the Notary on the copy of the affidavit accompanying election petition is fatal and the election petition is liable to be dismissed on that ground alone as the same prejudice the respondent in questioning the jurisdiction and power of the Notary Public or the Oath Commissioner. In the election petition is hand, there is no Notary Public whose endorsement are there in the affidavit. The affidavit was sworn before the Oath Commissioner who is none but an employee of the High Court and this is in the official process such affidavit was sworn in Sec. 81(3) of the Act requires the election petition to be accompanied by copies. As mentioned above, when the election petitions are being submitted then the copies are enclosed with the election petition and at the time of submission such affidavits are sworn in before the Oath Commissioner in the High Court. As mentioned above, when the election petitions are being submitted then the copies are enclosed with the election petition and at the time of submission such affidavits are sworn in before the Oath Commissioner in the High Court. Practically such seal of the Oath Commissioner is the official seal of the Oath Commissioner which is not available to the election petitioner and he is not in a position to supply such official seal being filled up by the Oath Commissioner in his official processes. I do not find any illegality caused in not supplying the copy of the official seal being filed by the Oath Commissioner in the High Court in the process of oath to the election petitioner. 10. First of all, let me see as to whether such affidavit is at all necessary in the election petition in hand. Sec. 83 of the Act does not provide for any affidavit for every election petition for which no ground of corrupt practice has been taken. Affidavit is only necessary when there is any allegation of corrupt practice. Election petition on that grounds only require the verification as per the Code of Civil Procedure. The election petition on the ground of corrupt practice have got stringent procedure as is relevant from Sec. 83(1)(b) of the Act and Rule 94-A of the Conduct of Elections Rules, 1961 and the form of the affidavit as contained in Appendix-25. This stringency was required as the election petition on the ground of corrupt practice has got the consequences of penal provision and it was in the form of criminal proceedings. When the affidavit is not a must with the election petition on the grounds than that of corrupt practices, the grounds taken challenging the maintainability regarding the defects in the affidavits of the election petition has got no force. The decision of the Bombay High Court in the case of Purushottam (Supra) is the election petition on corrupt ground. It has got no applicability in the present case. 11. About the Returning Officer being not made a party in the case as urged from the side of the respondent has got no bearing as there is no contemptuous wordings used against the Returning Officer. Only illegality, mis-jurisdiction etc. etc. have been used. It has got no applicability in the present case. 11. About the Returning Officer being not made a party in the case as urged from the side of the respondent has got no bearing as there is no contemptuous wordings used against the Returning Officer. Only illegality, mis-jurisdiction etc. etc. have been used. Moreover in an election petition it is specifically mentioned under Sec. 82 of the Act as to who are the necessary party in the election petition and, as such, this submission has got no force. 12. One ground has been taken to the effect of the endorsement made on the first page of election petition by the petitioners in the case. Such endorsement is nothing but an over-doing from the side of the election petitioner. Such sort of endorsement is not necessary for filling an election petition and there is no scope inferring with the present election petition is not the original election petition but a copy of it rather the election petition is before the Court and presented to the Court itself and any over-doing made in the title page of the election petition cannot vitiate it in any way. However, it cannot be found that it has given an adverse effect to the opposite party or in presenting or the procedures in registering the election petition. Only because something extra written on the margin of the title page cannot vitiate the election petition when it has got no adverse effect as there should not be hyper-technicality to obviate the real cause for enquiring the grounds shown challenging the election. In such sort of election petition when there is no ground of corrupt practice that in it is felt that substantial compliance of all the technicalities as mentioned in Secs. 81 and 83 of the Act should be taken into consideration of. 13. Learned Counsel appearing for and on behalf of both the parties have referred to many decisions of the Supreme Court and also of other Courts. I do not want to discuss all those ruling individually in the case but the principles enunciated in those decisions may be revealed in my discussion of the points as mentioned above. 13. Learned Counsel appearing for and on behalf of both the parties have referred to many decisions of the Supreme Court and also of other Courts. I do not want to discuss all those ruling individually in the case but the principles enunciated in those decisions may be revealed in my discussion of the points as mentioned above. The following decisions/rulings are submitted by the parties in the case: For and on behalf of the Respondents:- - AIR 1992 Bombay 227 Para-11; AIR 1975 Supreme Court 915 (Para 25); AIR 1995 Supreme Court 2152; AIR 1987 Supreme Court 1926 (Para 5 and 7); AIR 1986 Supreme Court 1253 (Para-9) and AIR 1960 Madhya Pradesh 368. For and on behalf of the Petitioner:- - AIR 1978 Supreme Court 840; AIR 1955 Supreme Court 610; AIR 1978 Supreme Court 1583 (Para,5); AIR 1964 Supreme Court 1027 & 1545 (Para 7, 8 & 14); AIR 1968 Supreme Court 1079 (Para 12); AIR 1983 Supreme Court 1311 (Para,8) and AIR 1982 Supreme Court 983 (Para 8 & 9). 14 From the discussions made above, I hold and find that both the election petitions are maintainable and hence the issue is decided in the positive and in falvour of the election petitioner. On the issue of maintainability being decided in favour of the petitioner, the case should go on for trial now. Mr. Barnwal appearing for and on behalf of the respondents wants time to file an appeal before the Supreme Court against the order passed on preliminary issue. Let the case be fixed on 12th of March 1995 for evidence on the side of the petitioner. In the meantime, if the respondents prefer an appeal and bring stay order then the respondent shall be at liberty to move this Court in that event.