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2014 DIGILAW 1111 (CAL)

Md. Manoar Hossain v. Saiar Rahaman

2014-11-26

SANJIB BANERJEE

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JUDGMENT : Sanjib Banerjee, J. 1. In view of the judgment reported at AIR 1981 SCC 403 (Sharif-ud-Din v. Abdul Gani Lone), the issue sought to be raised by the petitioner herein that the second limb of Section 79(3) of the West Bengal Panchayat Elections Act, 2003 is not mandatory, cannot be accepted. 2. Several judgments have been cited on behalf of the parties, including the judgments reported at (2012) 7 SCC 788 (Ponnala Lakshmaiah v. Kommuri Pratap Reddi) and (1999) 4 SCC 274 (T.M. Jacob v. C. Poulose) by the petitioner. In the most recent judgment cited by the petitioner, the provision in the Representation of People Act, 1951 corresponding to Section 79(3) of the State Act of 2003 was not in issue. 3. Section 79(3) of the said Act of 2003 provides as follows:- "(3) Every 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." 4. Such provision is identical to Section 81(3) of the 1951 Act. Section 84(1) of the State Act of 2003 mandates that the court shall dismiss an election petition which does not comply with the provisions of Section 79 or Section 80 thereof. Section 86(1) of the 1951 Act contains a mandate in identical words that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of that Act. 5. The successful candidate applied before the trial court for dismissal of the election petition since the petitioner did not comply with the mandatory provision of Section 79(3) of the State Act of 2003; and Section 84(1) of the State Act of 2003 required an election petition to be dismissed in such circumstances. The nature of omission was that the petitioner had apparently not appended the petitioner's signature to the copies of the election petition that were deposited in court for service to be effected on the respondents. An issue had arisen at the earlier stage of the proceedings in this court as to whether the petitioner's signature was appended to the service copies or whether the petitioner had attested them to be true copies of the original filed in court. An issue had arisen at the earlier stage of the proceedings in this court as to whether the petitioner's signature was appended to the service copies or whether the petitioner had attested them to be true copies of the original filed in court. It transpires that the petitioner had filed an original petition which contained his signature on every page of the petition and only photocopies thereof were filed in court for service on the respondents to the petition. The number of photocopies deposited in court matched the number of respondents required to be served and the first limb of Section 79(3) of the said Act of 2003 was complied with; but neither the original signature of the election petitioner nor his attestation on the service copies is evident from, at least, the copy of the election petition that was served through court on the opposite party no.1. The service copy of the election petition as received by the opposite party no.1 has been produced in this court pursuant to a previous direction. 6. In the Constitution Bench judgment in T.M. Jacob, the issue raised by one of the respondents to the election petition was whether the absence of the particulars of the notary and the seal and stamp of the notary in the copy affidavits served on such respondent amounted to non-compliance of the second limb of Section 81(3) of the 1951 Act, making the election petition susceptible to summary dismissal under Section 86(1) thereof. It was in such context that the Constitution Bench rendered the opinion that since there was substantial compliance with the mandatory requirement of Section 81(3) of the 1951 Act and the objecting respondent had not been misled by the copy of the petition that was served on such respondent, the nature of the objection did not warrant the invocation of Section 86(1) of the 1951 Act for the summary dismissal of the election petition. It must be emphasised that the judgment in T.M. Jacob did not deal with a situation that has arisen in the present proceedings where the second limb of the equivalent provision of Section 81(3) of the 1951 Act has not been complied with by the election petitioner and an objection in such regard has been taken by the successful candidate. 7. 7. Indeed, the judgment quoted at paragraph 26 of T.M. Jacob should guide how judgments of courts have to be read, where a sentence cannot be extracted out of context to be touted as the ratio decidendi of the judgment without seeing the sentence in the context of the matters in issue that fell for consideration in the judgment: "26. In CIT v. Sun Engg. Works (P) Ltd. (1992) 4 SCC 363 a Bench of this Court to which one of us (Anand, J.) was a party, observed: "It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings." We are in agreement with the above view." 8. A further judgment, reported at (1964) 3 SCR 573 (Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore), has been cited by the petitioner where another Constitution Bench considered the objections raised by the respondents to the election petition and rendered an opinion on the basis of the substantial compliance test which is the corner-stone of the later judgments in T.M. Jacob and Ponnala Lakshmaiah. 9. The successful candidate has referred to the judgments reported at (1964) 6 SCR 213 (Subbarao v. Election Tribunal) and (1974) 4 SCC 237 (Satya Narain v. Dhuja Ram) in addition to the opinion rendered in Sharif-ud-Din. 9. The successful candidate has referred to the judgments reported at (1964) 6 SCR 213 (Subbarao v. Election Tribunal) and (1974) 4 SCC 237 (Satya Narain v. Dhuja Ram) in addition to the opinion rendered in Sharif-ud-Din. Though there is an element of the substantive compliance test applied even in Subbarao, the judgment in Satya Narain categorically held that the first limb of Section 81(3) of the 1951 Act was mandatory and the noncompliance thereof could invite the penalty under Section 86(1) of the Act; but the second limb of Section 81(3) of the 1951 Act was only directory. In some of these cases cited by the parties, the amendment by which Section 81(3) was incorporated in the 1951 Act was noticed. The rationale for the inclusion was that the hearing of the election petitions was delayed prior thereto since the Election Commission or the Tribunal that heard the matters then was required to make copies of the petitions and forward them to the respondents. On the appreciation of the objects of the relevant amending Act that the real purpose of Section 81(3) of the 1951 Act was to ensure that election petitioners were obliged to furnish copies of the petitions for effecting service on the respondents, it may have been observed that the second limb of Section 81(3) of the 1951 Act, which was not born out of the original necessity, was directory. 10. The Satya Narain judgment was noticed in Sharif-ud-Din, where the provision identical to Section 81(3) of the 1951 Act as incorporated in Section 89(3) of the Jammu & Kashmir Representation of People Act, 1957 fell for consideration. In Sharif-ud-Din, the Supreme Court held that in Satya Narain the second limb of Section 81(3) of the 1951 Act was not in issue; thereby implying that the opinion expressed thereon in Satya Narain was by way of an obiter dictum that was not binding on the subsequent Bench of the Supreme Court. In Sharif-ud-Din, the Supreme Court held that in Satya Narain the second limb of Section 81(3) of the 1951 Act was not in issue; thereby implying that the opinion expressed thereon in Satya Narain was by way of an obiter dictum that was not binding on the subsequent Bench of the Supreme Court. In Sarif-ud-Din, it was the second limb of the equivalent provision in Section 89(3) of the statute in Jammu & Kashmir that fell for consideration and the Supreme Court opined that when the provision was couched in a mandatory manner and gave the indication that it was required to be complied with as a condition precedent to the action being instituted or prosecuted, no latitude could be given and the provision had either to be complied with or the action would fail. 11. The issue that has been directly answered in Sharif-ud-Din did not fall for consideration in either T.M. Jacob or Ponnala Lakshmaiah. 12. A judgment is an authority for the proposition that it decides and not what it may have incidentally covered or deemed to have noticed. The matter in issue in Sharif-ud-Din was as to whether the second limb of the equivalent provision as Section 79(3) of the State Act of 2003 could be dispensed with or glossed over on the basis of any substantive compliance test. The Supreme Court answered such issue categorically and specifically in the negative. 13. Notwithstanding the fact that when Sharifud- Din was decided, common gadgets as photocopiers were not in vogue, since the issue has been conclusively decided in such judgment, any decision to the contrary cannot be rendered. 14. C.O. 3136 of 2014 is, accordingly, dismissed but without any order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.