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2006 DIGILAW 724 (MP)

Susheela Singh v. Saroj Tiwari

2006-05-17

KRISHNA KUMAR LAHOTI

body2006
ORDER 1. This petition is directed against the order Annexure P-l dated 3.5.2005 passed by the Prescribed Authority-cum-Sub-Divisional Officer, Jabalpur by which preliminary objections filed by the petitioner Annexure P5 were decided and rejected. 2. By Annexure P-5, petitioner raised following preliminary objections: (i) That, no cause of action has been shown in the election petition. (ii) That, copy supplied to the petitioner was not duly attested by the election petitioner as true copy. (iii) That, documents filed alongwith election petition were not supplied to the petitioner. 3. The Sub-Divisional Officer found that the election petition has been filed showing the cause of action. The copy of election petition served on the petitioner was duly attested copy under the signature of election petitioner. So far as documents are concerned, this prayer was not made by the petitioner before the Election Tribunal nor any evidence has been produced showing that these documents were not supplied to him. On the aforesaid grounds, preliminary objections raised by the petitioner were turned down. 4. This order has been assailed by the petitioner on following grounds: (a) That, under M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as the 'election petition rules'), it was mandatory on the part of the election petitioner to supply a duly attested copy under her signature to the petitioner, to be a true copy, but in this case, aforesaid provision was not complied with and under rule 8, election petition was liable to be dismissed. (b) That, no cause of action has been shown in the election petition for filing of the election petition and in absence of this, the election petition itself was liable to be dismissed. Reliance is placed to the apex Court judgment in Bhagwati Prasad Dixit v. Rajeev Gandhi [1986 (II) MPWN 53 (SC)] and submitted that the election petition may be dismissed in limine. (c) That, documents filed alongwith the election petition were not supplied to the petitioner and in default of which, the election petition deserves to be dismissed. 5. Learned counsel for respondents supported the order passed by the Election Tribunal & submitted that copy of the election petition duly signed by the election petitioner was supplied to the petitioner and there was sufficient compliance of rule 3 (2) of the Election Petition Rules. 5. Learned counsel for respondents supported the order passed by the Election Tribunal & submitted that copy of the election petition duly signed by the election petitioner was supplied to the petitioner and there was sufficient compliance of rule 3 (2) of the Election Petition Rules. Documents as stated by the petitioner were not annexed to the petition, nor any reference was made for the election petition, hence for the non-supply of the aforesaid documents, election petition cannot be dismissed. 6. To appreciate the rival contentions of the parties, it is to be seen whether any cause of action for filing the election petition has been pleaded or not. In this regard, it is to be seen whether the election petition discloses the cause of action or not. In case election petition does not disclose a cause of action, it is liable to be rejected in limine. In Bhagwati Prasad Dixit (supra), the apex Court considering the question held that the allegations made in the election petition filed by the election petitioner against the respondent, even if taken as true do not disclose any cause of action or if those allegations are so frivolous and vexatious, only then election petition may be dismissed. But from the perusal of the present petition, it appears that election petitioner in the election petition has made certain allegations against the petitioner challenging the election on the ground that there were serious illegalities in the counting. It was objected immediately which was not considered by the counting officer. Thereafter, election petitioner moved an application in writing to the presiding officer and demanded for recounting which was not considered even the application was not entertained. Thereafter, election petitioner approached to the Deputy District Election Officer on 24.1.2005 but no action was taken in this regard. On these grounds, election petition was filed. From the perusal of the aforesaid, it appears that the election petitioner has filed the election petition based on the cause of action and it cannot be said that it is frivolous and vexatious or even if the allegations made in the election petition are treated to be true, they do not disclose cause of action. In view of the aforesaid, first contention of the petitioner has no force. 7. In view of the aforesaid, first contention of the petitioner has no force. 7. Now second contention of the petitioner may be seen, whether copy of the election petition supplied to the petitioner was a true copy under the signature of election petitioner and the documents filed in the election petition were supplied or not. So far as copy of the election petition supplied to the petitioner is concerned, the petitioner had not filed copy of the election petition supplied to her before the Election Tribunal showing that it was not a duly attested copy under the signature of election petitioner. Before this Court, Annexure P-3 has been filed which is a photocopy of the election petition and bears the signature of election petitioner and at the end of it, it states TC under the signature of election petitioner. The object of serving a true copy of the election petition has been considered by the apex Court in T. Phungzathang v. Hangkhanlian [ (2001) 8 SCC 358 ] wherein the apex Court considering this question held thus: "25. In T.M. Jacob v. C. Poulose the Constitution Bench has reaffirmed the law as stated earlier by two Constitution Benches in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ch. Subbarao v. Member, Election Tribunal and has also explained and expanded the principles laid down by the two earlier Constitution Benches. In T.M Jacob case copy of the election petition delivered to the contesting respondent did not show that the verification of the Notary Public required as per Rule 94A and Form 25 was contained in the original, and, therefore the copy was objected to as being defective and amounting to non-compliance with the requirements of section 81 (3) of the Act. The case was placed before the Constitution Bench specifically for reconsidering the three-Judge Bench decision in Dr. The case was placed before the Constitution Bench specifically for reconsidering the three-Judge Bench decision in Dr. Shipra v. Shanti Lal Khoiwal and while doing so the Constitution Bench also noticed another later three Judge Bench decision of the Court in Anil R. Deshmuk v. Onkar N. The law laid down by the Constitution Bench may be summed up as under:- (i) The object of serving a "true copy" of an election petition and the affidavit filed in support of the allegations of corrupt practice of the respondent in the election petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is of substance and not of form. (ii) The test to determine whether a copy was a true one or not was to find out whether any variation from the original was calculated to mislead a reasonable person. (iii) The word "copy" does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. (iv) Substantial compliance with section 81 (3) was sufficient and the petition could not be dismissed, in limine, under section 86 (1) where there had been substantial compliance with the requirement of section 81 (3) of the Act. (v) There is a distinction between noncompliance with the requirement of section 81 (3) and section 83. A substantial compliance with the requirements of section 81 (3) read with the proviso to section 83 (1) of the Act is enough. Defects in the supply of true copy under section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provisions of section 81 (3) read with section 86 (1) of the Act. The same consequence would not follow from non-compliance with section 83 of the Act. (vi) The argument that since proceedings in election petitions are purely statutory proceedings and not civil proceedings as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into section 86 (1) read with section 81 (3) of the Act, cannot be accepted and has to be repelled. (vi) The argument that since proceedings in election petitions are purely statutory proceedings and not civil proceedings as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into section 86 (1) read with section 81 (3) of the Act, cannot be accepted and has to be repelled. (vii) It is only the violation of section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam and Ch. Subbarao cases. The defect of the type provided in section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. This clearly emerges from the scheme of sections 83 (1) and 86 (5) of the Act. (viii) A certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under section 86 (1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhey Shyam case are sound tests and are now well settled." 8. The apex Court considering scope of relevant provisions held that the object of serving a true copy of a election petition is to enable the respondent to understand the allegations against him so that he can effectively meet the same in the written statement and prepare his defence. The test to determine whether a copy was a true one or not is based on the fact whether there is any variation from the original filed in the Court or copy supplied to the respondent has misled him. In the present case, photocopy of the election petition has been supplied to the petitioner which bears the signature of election petitioner and in the end it has been marked as 'T.C.' under the signature of election petitioner. In the present case, photocopy of the election petition has been supplied to the petitioner which bears the signature of election petitioner and in the end it has been marked as 'T.C.' under the signature of election petitioner. From the perusal of the original record of the Election Tribunal which has been produced by the learned Government Advocate, it is apparent that the copies which are available in the file also bear the signature of election petitioner and also the word 'T.C.' under the signature of the election petitioner. In view of the aforesaid, there is sufficient compliance of the provision of rule 3 (2) of the Election Petition Rules and the election petition cannot be dismissed on this count and this objection has no force. 9. Now third contention may be considered, by which petitioner has stated that the documents filed alongwith the election petition were not supplied to• him. In this regard, judgment of the apex Court in Manohar Joshi v. Nitin Bhaurao Patil [ (1996) 1 SCC 169 ] may be seen wherein the apex Court considering the question held that where documents are incorporated in the petition by reference without reproducing its contents in the body of petition, they form integral part of the petition and non-furnishing copies of such documents would be fatal to the petitioner. But where the contents of the documents are fully incorporated in the petition itself and the documents are produced merely as evidence of the averments made in the petition, non-supply of such documents would not be fatal to the petition. In this case, election petitioner has filed following documents alongwith the election petition separately: (1) Voter list of village Manegaon, (2) List of contesting candidates of Ward No.9 of Gram Panchayat, Manegaon. (3) Copy of original challan showing depositing Rs. 500/- as election petition fee. (4) Application dated 24.1.2005 seeking recounting of the votes. (5) Another application dated 24.1.2005 seeking recounting of votes. In the election petition, these documents are fully referred in the pleadings and are filed alongwith election petition. In view of the law laid down by the apex Court in Manohar Joshi (supra), non-supply of the documents to the petitioner was not fatal. (5) Another application dated 24.1.2005 seeking recounting of votes. In the election petition, these documents are fully referred in the pleadings and are filed alongwith election petition. In view of the law laid down by the apex Court in Manohar Joshi (supra), non-supply of the documents to the petitioner was not fatal. However, respondent No.1 shall supply copy of aforesaid documents to the petitioner within 15 days from the date of communication of this order to Tribunal, so that the petitioner may file reply of the election petition. With the aforesaid direction, this petition is disposed of with no order as to costs.