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2016 DIGILAW 101 (JK)

Chander Parkash v. Election Commission of India

2016-03-11

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. Through the medium of this election petition, the petitioner has challenged the election of respondent No. 6 namely, Surjit Singh to the Jammu and Kashmir Legislative Assembly from Vijaypur Constituency No. 69 the result of which was declared on 28.12 2008. 2. It is averred that respondent No. 6 got 21090 votes whereas petitioner stood second in the fray with 19878 votes, thus losing to respondent No. 6 by a margin of 1212 votes Thus, petitioner has challenged the election of respondent No. 6 mainly on the ground that respondent No. 6 was the beneficiary of not less than 4000 invalid votes which were allowed to cast in the said election by the serious acts of omission and commission on the part of respondents 2 to 4. It is alleged that these votes were allowed to cast by certain polling officers using unlawful means, i.e., allowing such persons to cast their votes having no identity cards; allowing a number of persons to cast votes under disguise identity or having doubtful identity; allowing about 600 persons in Polling Station No. 17 carrying fake identity in the shape of Passports; in certain polling stations there was a clear difference between number of voters recorded and number of votes polled; replacing some of the Electronic Voting Machines (EVMS) without the notice of petitioner and allowing number of voters in some of the polling stations to cast their votes even after the expiry of time prescribed. Thus, it is averred that in a number of polling stations in Vijaypur Constituency many polling officers in connivance with respondents 2 to 4 had facilitated bogus voting only to make way for respondent No. 6. Thus, respondents are stated to have committed corrupt practices. 3. Objections have been filed on behalf of respondents 1 to 4 and 6. 4. This Court on 10.07.2015 framed as many as eight issues for the effective disposal of election petition. With the consensus of learned counsel appearing for the parties. Issue No. 1 was treated as preliminary issue, which is to the following effect: "Whether the Election Petition has not been drafted as per the provisions of Jammu and Kashmir Representation of the People Act, 1957 and rules framed thereunder and, if so, its effect? OPR" 5. With the consensus of learned counsel appearing for the parties. Issue No. 1 was treated as preliminary issue, which is to the following effect: "Whether the Election Petition has not been drafted as per the provisions of Jammu and Kashmir Representation of the People Act, 1957 and rules framed thereunder and, if so, its effect? OPR" 5. When this case was taken up on 11.02.2016, learned counsel appearing for the parties agreed to argue on the preliminary issue. Accordingly, the matter was heard on preliminary issue and reserved for pronouncement of judgment. After the matter was reserved, Mrs. Shekhar, learned Sr. AAG, submitted written arguments on behalf of respondents 2 to 4 with regard to preliminary issue. Along with written arguments, she also enclosed copy of election petition received by respondents 2 to 4. Thus, this judgment is primarily confined to this issue only. 6. Learned counsel appearing for respondents argued that the petitioner has failed to comply with the provisions of Sections 89, 90 and 91 of the J&K Representation of People Act, 1957 (hereinafter, for short, the Act), inasmuch as the petitioner has failed to attest and verify every copy of election petition under his own signature as regards the number of respondents, so as to construe every such copy to be true copy of the petition in terms of the Act. 7. Heard learned counsel appearing for the parties and perused the file. 8. The main thrust of argument of learned counsel for the appearing respondents is that every copy of election petition has not been attested by the petitioner under his own signature to be a true copy of the petition as required by Section 89(3) of the Act, and that the election petition has not been drafted in accordance with the Act. 9. Section 89(3) of the Act provides that a copy of the petition shall be attested by the petitioner "under his own signature" to be a true copy of the petition, whereas Section 94(1) of the Act mandates that "the High Court shall dismiss an election petition which does not comply with the provisions of Section 89 or Section 90 or Section 125." 10. Now the question arises for consideration is: whether the requirement that every copy of election petition, which is intended for service on the respondents, should be attested by the petitioner "under his own signature", is a mandatory requirement or not. 11. The Apex Court has dealt with the same issue in detail in Sharif-ud-Din v. Ab. Gani Lone, (1980) 1 SCC 403 . What is held by the Apex Court is reproduced hereunder: "19 The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition appears to be that the petitioner should take full responsibility for its contents and that the respondent or respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the original petition after it is filed into court. We have no doubt that the records and documents in the custody of courts are taken due care of by the courts and the courts would not by themselves give any scope for tampering with them. But still experience shows that allegations are sometimes made that records in the court have been tampered with notwithstanding the care and caution taken by courts. Such allegations may not always be without basis. It is probably to obviate any scope for such an allegation being made or to protect the interest of the respondent, the Legislature thought of enacting sub-section (3) of Section 89 of the Act so that the respondent may rely on the copy served on him when he finds that the original document in the court contains allegations different from those in the copy in his custody. A respondent would not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself. The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature. A respondent would not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself. The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature. If the requirement of the second part of Section 89(3) that copy of the petition should contain the signature of the petitioner himself is not one of substance, there was no need to enact it as the first part of sub-section (3) of Section 89 of the Act would have been sufficient for it provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the word "copies" mentioned therein can only mean "true copies". The importance of the provision contained in Section 94 of the Act which makes it obligatory on the part of the High Court to dismiss a petition when it is established that Section 89 of the Act had not been complied with also cannot be overlooked in this context. 20. We are, therefore, of the view 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 in Section 94 of the Act. The High Court was, therefore, right in dismissing the petition on the above ground." 12. Under Section 89(3), every election petition is required to be accompanied by as many copies thereof as there are respondents in it and every such copy is required to be attested by the petitioner under his own signature to be a true copy of the petition. In the light of this provision, it has to be seen whether every copy of election petition, as supplied to the respondents, is true copy of the petition attested by the petitioner under his own signature. I have perused the written submission filed by Mrs. Shekhar on behalf of respondents 2 to 4 and also examined the copy of election petition. It appears there is no such attestation by the petitioner in terms of Section 89(3) of the Act except the photo-impression of his signatures. 13. I have perused the written submission filed by Mrs. Shekhar on behalf of respondents 2 to 4 and also examined the copy of election petition. It appears there is no such attestation by the petitioner in terms of Section 89(3) of the Act except the photo-impression of his signatures. 13. Therefore, in view of the aforesaid discussion under Preliminary Issue No. 1 and the law laid down by the Apex Court in Sharif-ud-Din (supra) that requirement of attestation of every copy of election petition by the petitioner "under his own signature" is mandatory one, non-compliance with the provisions of Section 89(3) of the Act, thus, renders the election petition liable to be dismissed under Section 94(1) of the Act. Therefore, the preliminary issue is decided in favour of appearing respondents and against the petitioner herein. Accordingly, the election petition along with connected miscellaneous petition, if any, is dismissed on the preliminary issue alone.