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2011 DIGILAW 977 (GAU)

Jibontara Ghatowar v. Sunil Rajkonwar

2011-12-13

BROJENDRA PRASAD KATAKEY

body2011
ORDER B.K. Katakey, J. 1. The applicant by the present application is praying for dismissal of the Election Petition No. A/2011 under sub-section (1) of Section 86 of the Representation of People Act, 1951 (in short the Act) alleging non-compliance of sub- section (3) of Section 81 of the Act. Election Petition No. 4/2011 has been filed by the opposite party questioning the election of the present applicant as the Member of Assam Legislative Assembly from No. 115 Legislative Assembly Constituency. According to the applicant though sub- section (3) of Section 81 of the Act requires that every election petition shall be accompanied by as main copies thereof as there are respondents and every such copy is mandatorily required to be attested by the election petitioner under his own signature to be a true copy of the election petition, the copy which has been furnished to the applicant, does not have attestation by the election petitioner that the same is a true copy of the election petition filed. According to the applicant since the condition in sub-section (3) of Section 81 of the Act is mandatory, its violation entails dismissal of the election petition under sub- section (1) of Section86 of the Act. 2. I have heard Mr. S.S. Dey, learned counsel for the applicant/returned candidate and Mr. B. Purkayastha, learned counsel appearing for the opposite party/election petitioner. 3. Referring to the contention of the applicant in the present application seeking dismissal of the election petition, the learned counsel for the applicant submits that since the election petitioner did not attest the copy furnished to the applicant to be the true copy of the election petition as required under sub- section (3) of Section 81 of the Act, the election petition deserves to be dismissed. 4. Per contra, the learned counsel appearing for the opposite party/election petitioner submits that the election petitioner in every page of the copy furnished to the applicant/returned candidate put his Signature signifying that the copy is a true copy of the election petition filed, though the words "true copy" have not been mentioned. According to the learned counsel there is substantial compliance of sub-section (3) of Section 81 of the Act. According to the learned counsel there is substantial compliance of sub-section (3) of Section 81 of the Act. The further contention is that it is not being the case of the applicant/returned candidate that she has not been furnished with the exact copy of the election petition filed by the election petitioner, no prejudice has been caused in not mentioning the words "true copy" by the election petitioner while putting his signature in every page of the copy of the election petition furnished to the applicant/returned candidate. 5. Sub-section (3) of Section 81 of the Act provides that 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. Sub-section (1) of Section 86 of the Act provides that the High Court shall dismiss an election petition which does not comply with the provision of Section 81 or 82 or 117 of the Act. 6. The issue involved in the present application is whether there is compliance of requirement of sub-section (3) of Section 81 of the Act in so far as it relates to supply of the true copy of the election petition filed by the election petitioner to the returned candidate. 7. An election petition is not to be thrown out at the threshold on the slightest pretext of one kind or the other which mayor may not have any material bearing on the factors to be strictly adhered to in such matters. It is the substance not the form which would matter, otherwise the returned candidate would not only be in the look out microscopically for any kind of technical lacunae or defect to abort the endeavor of the petitioner to bring to trial the issues relating to corrupt practices in the election. It is also a well settled position of law that the procedures are hand-maid of justice and not designed to trim the Justice at the threshold. 8. The requirement of such sub-section (3) of Section 81 of the Act is to provide the exact copy of the election petition filed by the election petitioner to the respondent in such petition. It is also a well settled position of law that the procedures are hand-maid of justice and not designed to trim the Justice at the threshold. 8. The requirement of such sub-section (3) of Section 81 of the Act is to provide the exact copy of the election petition filed by the election petitioner to the respondent in such petition. The object of serving a true copy of an election petition and the affidavit filed in support of the allegation of corrupt practice on 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 the defence. The requirement is, therefore, of substance and not of form. 9. A constitution bench of the Apex Court in T.M. Jacob v. C. Poulose and Ors., reported in (1999)4 SCC 274 held : 40. The object of serving a "true copy of an Election Petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in 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, thus, of substance and not of form. 10. The expression "true copy" under sub-section (3) of Section 81 of the Act means a copy which is substantially the same as the original, variation if any from the original should not be vital in nature or should not be such that can possibly mislead a reasonable person in meeting the allegation and if the copy differs in material particulars from the original the same cannot be cured after the period of limitation. [T. Phungzathang v. Hangkhanlian & Ors., (2001)8 SCC 358 ]. 11. In Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar & Ors., reported in (2005) 2 SCC 188 , it has been held by the Apex Court that the requirement of attestation of the copy to be served on the respondent by the election petitioner under his own signature to be true copies is satisfied if the copies attested by the election petitioner to be true copies of the election petition under his own signature. If the defects in attestation or the copy are not material or vital, it would not warrant dismissal of the election petition at the preliminary stage. 12. As discussed above, in the case in hand, the copy of the election petition served on the returned candidate bears the signature of the election petitioner in each and every page and there is no dispute that the copy which has been served is the exact copy of the election petition filed. Non-mentioning of the words "true copy" would, therefore, not cause any prejudice to the returned candidate. The provisions of sub-section (3) of Section 81 of the Act, therefore, has been substantially complied with. In view of the above, I do not find any merit in the application and hence it is dismissed. Application dismissed.