Research › Browse › Judgment

Bombay High Court · body

1998 DIGILAW 384 (BOM)

Prataprao Ganpatrao Bangar v. Ramprasad Wamanrao Kadam

1998-08-06

A.D.MANE

body1998
JUDGMENT - A.D. MANE, J.:---This petition is filed on 25-4-1994 under section 100 of the Representation of Peoples Act, 1951 (for the sake of brevity, hereinafter, referred to as the said Act) for quashing and setting aside the election of the returned candidate respondent No. 1, from Jintur Assembly Constituency for Legislative Assembly. 2. The respondent No. 1 filed written statement on 21-12-1995 and raised preliminary objection to the maintainability of the present election petition. 3.In view of the application filed by the respondent No. 1 bearing Civil Application No. 3 of 1997 to try preliminary issue about the maintainability of the petition for non-compliance of the mandatory provisions as contained in sections 81, 83 and 86 of the said Act, following preliminary issue has been raised: "Whether the election petition is liable to be dismissed for non-compliance with the mandatory provisions of sections 83, 86 and 123 of the Representation of Peoples Act, 1951 ? " 4.One of the contentions raised by Shri Dhorde, learned Counsel for the respondent No. 1 is that the respondent No. 1 was served with the copy of the petition along with its annexures, without compliance with the statutory provisions. Shri Dhorde, learned Counsel has filed at Exhibit 28, the original copy which was served with the notice on the respondent No. 1 by the petitioner. It is undisputed fact that the copy of the petition with annexures supplied to the respondent No. 1 is not true copy of the election petition as laid down by the Supreme Court in case of (Dr. (Smt.) Shipra etc. etc. v. Shanti Lal Khoiwal etc. etc.)1, A.I.R. 1996 S.C. 1961, especially when the corrupt practice is alleged in the petition. 5.In the case cited supra, expression "a true copy" as envisaged in section 81(3) of the Act came to be interpreted to mean "a transcript identical to or substitute to the original but not absolutely exact copy." In other words, it has been held in the said case that when the petitioner is enjoined to file an election petition accompanied by an affidavit duly sworn by the applicant duly verifying diverse allegations of corrupt practices imputed to the returned candidate and attested by the prescribed authority it would be obvious that the statute intended that it shall be performed in the same manner as prescribed in Form 25 read with Rule 94-A of the Rules. The attestation of the affidavit by the prescribed authority, therefore, is an integral part of the election petition. 6.In the present case, admittedly, copy of the affidavit supplied to the respondent No. 1 is without attestation. Dealing with the question whether the copy of the affidavit supplied to the respondent without attestation, the portion contained in it though contained in the original affidavit, can be considered to be a "true copy" the Supreme Court has clearly laid down that. "Verification by a Notary or any other prescribed authority is a vital act which assures that the election petitioner had affirmed before the notary etc. that the statement containing imputation or corrupt practices was duly and solemnly verified to be correct statement to the best of his knowledge or information as specified in the election petition and the affidavit filed in support thereof; that reinforces the assertions. Thus affirmation before the prescribed authority in the affidavit and the supply of its true copy should also contain such affirmation so that the returned candidate would not be misled in his understanding that imputation of corrupt practices was solemnly affirmed or duly verified before the prescribed authority. For that purpose, Form 25 mandates verification before the prescribed authority. The object appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate is true copy cannot be said to be a curable irregularity. Allegations of corrupt practices are very serious imputations which, if proved, would entail civil consequences of declaring that he become disqualified for election to a maximum period of six years under section 8-A, apart from conviction under section 163(2). Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petition in his/her own signature. Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petition in his/her own signature. The principle of substantial compliance cannot be accepted in the fact situation." 7.Thus on admitted position in the present case that copy of the affidavit supplied to the respondent No. 1 is not a "true copy" as required under the relevant Rule, which is integral part of the election petition, constituting incurable defect, which results in dismissal of the petition itself. The present election petition is rested only on the imputation of corrupt practices and therefore, non-compliance of service of a "true copy" of election petition on the returned candidate results in non-compliance of the substantial provision of section 81(3) of the Act. That being the case, there is no alternative but to answer the preliminary issue in affirmative, upholding objection of the respondent No. 1. 8.The result, therefore, is that the preliminary point is accepted. The election petition is rejected. There shall however, be no order as to costs. Petition rejected.