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Madhya Pradesh High Court · body

2007 DIGILAW 769 (MP)

Yadunandan Singh v. Faggan Singh Kulaste

2007-07-20

AJIT SINGH

body2007
ORDER 1. Heard on IA No. 13/2005 which is an application filed under Order 7, Rule 11 of the Code of Civil Procedure by a returned candidate, respondent No.1, for the dismissal of election petition. 2. Petitioner is an elector and belongs to regional political Gondwana Gantatra Party. He has challenged the election of respondent No.1 as Member of Parliament from Constituency No. 013 Mandla by filing an election petition on 26.6.2004 under section 80A of the Representation of the People Act, 1951 (in short, "the Act"). Petitioner has pleaded in paragraph five of the petition that nine candidates had contested the election in which Hira Singh Markam, a candidate of Gondwana Gantantra Party, secured 173176 votes and respondent No. 1 secured the highest number of 238073 of votes on account of which respondent No.1 was declared elected. Constituency No. 013 Mandla was reserved for scheduled tribe. 3. The main grievance of petitioner in the petition is that respondent No. 1 committed corrupt practice which materially affected the result of election. On this ground he has made a prayer in the petition that the election of respondent No. 1 be declared as void. 4. Respondent No.1 filed his written statement on 6.9.2004 wherein he categorically denied the allegations of corrupt practice made against him by the petitioner. Respondent No.1 has also averred that as the petition has not been filed in accordance with the provisions of the Act and the Conduct of Election Rules, 1961, the same deserves to be dismissed summarily on this ground alone. Along with the written statement, he has filed the photo copy of petition served on him. 5. On 28.3.2005 four issues for determination were framed by this Court. Issue number four is whether the election petition is liable to be dismissed on the ground of non-compliance of section 81 (3) of the Act. 6. It is to be noted that the petition filed by the petitioner is more in the form of writ petition which is normally filed under Article 226 of the Constitution and is without any verification and the affidavit in the prescribed form in respect of alleged corrupt practice. Petitioner has also admittedly not signed the pages from page 8 onwards up to the last page 13 of the petition. Petitioner, in order to cure these defects, filed an Interlocutory Application No. 1212005 on 6.5.2005 for amendment in the petition. 7. Petitioner has also admittedly not signed the pages from page 8 onwards up to the last page 13 of the petition. Petitioner, in order to cure these defects, filed an Interlocutory Application No. 1212005 on 6.5.2005 for amendment in the petition. 7. On 24.6.2005 respondent No. 1 filed the present Interlocutory Application No. 13/2005 for the dismissal of election petition under section 86 of the Act for non-compliance of the mandatory provision of section 81 (3). In the application he has categorically averred that the copy of petition served on him has not been attested by the petitioner under his own signature to be a true copy of the petition. Till this date, the petitioner has not filed any reply to this application. Respondent No.1, also, opposed the proposed amendment by filing a reply to Interlocutory Application No. 12/2005 on 7.9.2005. 8. As already stated above, respondent No.1, alongwith his written statement, has filed a photo copy of the petition received by him. Today, he also filed the copy of the petition which was served on him and the petitioner very fairly did not dispute that it is the same copy which accompanied his election petition. On these circumstances, I deem it proper to decide first as to whether the mandatory provisions of section 81 (3) of the Act are not complied with making the petition liable to be dismissed in limine under section 86. 9. Section 81 and relevant extract of section 86 of the Act read as under: "81. Presentation of petitions. -- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. . (3) Every election petition shall be accompanied by as many copies thereof 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. 86. Trial of election petitions. . (3) Every election petition shall be accompanied by as many copies thereof 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. 86. Trial of election petitions. -- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117." 10. From the reading of section 81 (3) it is clear that (i) the election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition and (ii) every such copy shall be attested by the petitioner under his own- signature to be a true copy of the petition. If the provisions of section 81 are not complied with, this Court is directed by section 86 to dismiss the election petition. In the case in hand, there is no dispute in regard to the compliance of the first part and, therefore, the compliance of the second part alone, which too is mandatory, is to be seen. 11. A bare perusal of the copy of petition, which accompanied the election petition and served on respondent No.1, reveals that it is a photo copy of the original election petition. It is, however, not attested by the petitioner under his own signature to be a true copy of the petition. The signature that appears in the copy of petition is not an original signature of the petitioner but a copy of his signature as made in the petition. It cannot therefore be said that the copy of petition, which accompanied the election petition and was served on respondent No.1, is attested by the petitioner under his own signature to be a true copy of the petition. In Sharif-ud-Din v. Abdul Gani Lone [ AIR 1980 SC 303 ] the Supreme Court has held that the requirement that every copy of the election petition, which is intended for service on the respondent, should be attested by the petitioner under his own signature is a mandatory requirement and the non-compliance with that requirement should result in the dismissal of the petition as provided under section 86 of the Act. Thus, as the petitioner has admittedly not attested the copy of the petition served on respondent No. 1 under his own signature to be a true copy of the election petition, his petition is bound to be dismissed under section 86. 12. Accordingly, allowing IA No. 13/2005 of respondent No.1, I dismiss the election petition. In the result, no order is necessary on IA No. 1212005, which is an application for amendment in the petition, as it will not remove the incurable defect in the election petition.