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2017 DIGILAW 479 (ORI)

BHUJABAL MAJHI v. NEKKANTI BHASKAR RAO

2017-04-26

BISWANATH RATH

body2017
ORDER Biswanath Rath, J. - This is an application at the instance of the respondent in the Election Petition No.1 of 2016 for dismissing the election case being hit by Section 81(3) read with section 86 (1) of the Representation of The People Act, 1951. 2. Shortly stated the fact at the instance of the respondent is that upon receipt of the notice in the election dispute, the respondent filed two Misc. Cases i.e. Misc. Case No.45 of 2016 to defer filing the written statement till disposal of Misc. Case No.46 of 2016 being filed under Order 6, Rule 16 read with Order 7, Rule 11 of the Code of Civil Procedure along with Sections 81, 82,86 and 87 of the Representation of Peoples Act, 1951 for striking out the pleadings and for the rejection of the election petition for want of cause of action. 3. During course of hearing of Misc. Case No.46 of 2016 on detection of discrepancies in the Court copy and the summon copy served on the respondent, some handwritten insertions inserted in page-6 of the election petition changing the entire gamut involving election case, the respondent claimed that he was compelled to file Misc. Case No.4 of 2017 requesting the Court for dismissal of the election petition for being hit by Section 81(3) and Section 86(1) of the Representation of Peoples Act, 1951 particularly on the premises of non-service of true copy of the election petition filed in this Court on the respondent. Filing the summon copies both ways, through Court process and Registered post, learned counsel for the petitioner attempted to satisfy that there is clear violation of provisions at Section 81(3) of the Representation of People Act, 1951. 4. In response to service of copy of the petition in Misc. Case No.4 of 2017, election petitioner filed objection seriously disputing the truthness in the copy of the election petition filed by the respondent in this Court to establish his allegation involving in Misc. Case. Filing the objection, the objector i.e. the election petitioner alleged that there is tampering in the election petition served on the respondent to make it suffering for non-compliance of the provision under Section 81(3) of the Representation of People Act, 1951 thereby inviting dismissal under Section 86(1) of the Representation of People Act. Case. Filing the objection, the objector i.e. the election petitioner alleged that there is tampering in the election petition served on the respondent to make it suffering for non-compliance of the provision under Section 81(3) of the Representation of People Act, 1951 thereby inviting dismissal under Section 86(1) of the Representation of People Act. It is also alleged that the respondent even has gone to the extent of utilizing skill through computer to manufacture a different set of election petition to make a makeshift demonstration of the election petition to defeat the election petitioner. 5. For the dismissal of Misc. Case No.8 of 2017 by an independent order, this Court now proceeds to decide Misc. Case No.4 of 2017. Deciding Misc. Case No.4 of 2017 taking into consideration the observation of this Court in Misc. Case No.8 of 2017 that there is a great level of discrepancy in between the original and the summon copies particularly keeping in view that the insertion in handwritings made at page 6 of the Election Petition not being carried out in the summon copies both through Court and the postal way. 6. Considering the allegation contained in the Misc. Case No.4 of 2017 and looking to the nature of incorporations in the election petition for its absence in the summon copies, it makes a huge difference which remain incurable. Perusal of the original along with the summon copies presented by the respondent, it becomes manifest that the copies served is not the parallel and true copy of the Election Petition required under law to be served on the respondent, this is a case clearly establishing violation of provision contained in Section 81(3) of the Representation of People Act. 7. Since an allegation is made by the respondent that the copies served on the respondent are not true copies of the election petition, for the provision contained in the Representation of People Act, it becomes the duty of the Election Petitioner to establish the allegation as false. This Court finds in spite of sufficient opportunity, the election petitioner failed in establishing the allegation as false. This Court finds in spite of sufficient opportunity, the election petitioner failed in establishing the allegation as false. Further, this Court considering the maintainability of election petition on the ground of discrepancy between the original petition and the copies served, first takes up the Provision of Law in this regard and proceeds as follows: Section 81 and section 86 of the Representation of The People Act, 1951 reads as follows: "Section 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. 81 (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. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80-A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial." 8. From the reading of both the above Provisions this Court finds Section 81 of the Representation of People Act. mandates filing of as many copies thereof as there are respondents not only attested under his own signature but should also be the true copy of the petition filed. Further, Section 86 of the Act makes provision for dismissal of election petition, if it violates the provisions at Sections 81, 82 or 117 of the Act. In disposal of the Misc. Case No.8 of 2017, this Court has already observed that there exist violation of Section 81(3) for non filing of true copy of the Election Petition for the purpose of summon to the respondent. 9. In disposal of the Misc. Case No.8 of 2017, this Court has already observed that there exist violation of Section 81(3) for non filing of true copy of the Election Petition for the purpose of summon to the respondent. 9. The history of the judgment of the Hon'ble Apex Court in such situation is as follows: In the case of Jagat Kishore Prasad Narain Singh v. Rajendra Kumar Poddar and others, 1970 (2) Supreme Court cases 411 in paragraph-7, the Hon'ble Apex Court observed as follows: "The law requires that a true copy of the election petition should be served on the respondents. That requirement has not been either fully or substantially complied with. Therefore we have no doubt in our mind that the election petition is liable to be dismissed under Section 86 of the Act." In the case of Murarka Radhey Shyam Ram Kumar v. I Roop Singh Rathore and others, AIR 1964 Supreme Court 1545, defining the word 'copy' involving a proceeding under the representation of People Act, the Hon'ble Apex Court in paragraph-11 held as follows: "11 We agree with the High Court and the Election Tribunal that the first defect is not a defect at all. When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word "petitioner" was not necessary. Sub-section. (3) of Section 81 requires that the copy shall be attested by the petitioner under his own signature and this was done. As to the second defect the question really turns on the true scope and effect of the word "copy" occurring in sub-section (3) of Section 81. On behalf of the appellant the argument is that sub-section (3) of Section 81 being mandatory in nature all the requirements of the sub?section must be strictly complied with and the word "copy" must be taken to be an absolutely exact transcript of the original. On behalf of the respondents the contention is that the word "copy" means that which comes so near to the original as to give to every person seeing it the idea created by the original. On behalf of the respondents the contention is that the word "copy" means that which comes so near to the original as to give to every person seeing it the idea created by the original. Alternatively, the argument is that the last part of sub-section (3) dealing with a copy is merely directive, and for this reliance is placed on the decision of this court in Kamaraja Nadar v. Kunju Thevar, 1959 SCR 583 : ( AIR 1958 SC 687 ) We are of the view that the word "copy" in sub-section (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it (see Stroud's judicial Dictionary, third edition, volume 4, page 3098). In this view of the matter it is unnecessary to go into the further question whether any part of sub-section (3) of Section 81 is merely directory. Several English decisions were cited at the Bar The earlier decision cited to us is the decision in Pocock v. Mason, (1834) 131 ER 1111 where it was held that the omission of the words "the" and "by" in the copy of the writ of capias prescribed by the schedule 2 W. 4, c. 39 did not invalidate an arrest. The reason given was thus expressed: "To ascertain whether or not an unfaithful copy produces any alteration in the meaning, supposes an exertion of intellect which it may be inconvenient to require at the hands of those who serve the copy. It was to obviate this inconvenience, that the legislature has given a form, and required that it should be pursued. Nothing but ordinary care is necessary for taking the copy. In a later decision Sutton v. Mary and Burgess, (1835) 149 ER 1291 the copy of the writ served on the defendant omitted the letter "s" in the word "she" It was held that the omission was immaterial as it could not mislead anybody. In Morris v. Smith, (1835) 150 ER 51, there was a motion to set aside the service of the writ of summons for irregularity, on the ground that the defendant being an attorney, he was only described as of Paper Buildings in the Inner Temple, London and the addition of "gentleman" was not given. In Morris v. Smith, (1835) 150 ER 51, there was a motion to set aside the service of the writ of summons for irregularity, on the ground that the defendant being an attorney, he was only described as of Paper Buildings in the Inner Temple, London and the addition of "gentleman" was not given. It was held that the form in the statute 2 Will 4, C. 39 Section 1 did not require the addition of the defendant to be inserted in the Writ and it was sufficient to state his residence. The writ of summons was therefore valid. In another case in the same volume Cooke v. Vaughan, (1938) 150 ER 1346 it was held that where a writ of capias described the defendant by the addition of "gentleman", but that addition was omitted in the copy served, the copy was not a copy of the writ, in compliance with the stat. 2 Will. 4, c. 39, Section 4. On behalf of the respondents a number of decision under the Bills of Sale Act, 1878 and the Amendment Act, 1882 (45 and 46 Vict. c. 43) were cited. The question in those cases was whether the bill was "in accordance with the form in the schedule to this Act annexed" as required by Section 9 of the Bills of Sale Act 1878, and Amendment Act 1882. In In re Hewer Ex parte Kahen, (1882) 21 Ch D 871 it was held that a "true copy" of a bill of sale within the Bills of Sale Act, 1878, Section 10, sub-section (2), must not necessarily be an exact copy, so long as any errors or omissions in the copy filed are merely clerical and of such a nature that no one would be thereby misled. The same view was expressed in several other decisions and it is unnecessary to refer to them all. Having regard to the provisions of Part VI of the Act, we are of the view that the word "copy" does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the appellant, therefore there was no failure to comply with the last part of sub-section (3) of Section 81. In that view of the matter sub-section (3) of Section 90 was not attracted and there was no question of dismissing the election petition under that sub-section by reason of any failure to comply with the provisions of Section 81. This disposes of the second preliminary objection raised before us." In the case of Rajendra Singh v. Smt. Usha Rani and others, (1984) 3 Supreme Court Cases 339, the Hon'ble Apex Court in paragraph-8 held as follows: "8.This being the position, it is manifest that the appellant did not receive the correct copies as contemplated by Section 81 (3) of the Act. The respondent has also not been able to prove that the copies served on the appellant were out of the 10 corrected copies which she had signed and filed. It appears that in view of a large number of the copies of the petition having been filed, there was an utter confusion as to which one was correct and which was not. It is obvious that if an election-petitioner files a number of copies, some of which may be correct and some may be incorrect, it is his duty to see that the copy served on the respondent is a correct one. A perusal of Sections 81 (3) and 86 of the Act gives the impression that they do not contemplate filing of incorrect copies at all and if an election-petitioner disregards the mandate contained in Section 81 (3) by filing incorrect copies, he takes the risk of the petition being dismissed in limine under Section 86. It is no part of the duty of the respondent to wade through the entire record in order to find out which is the correct copy. It is no part of the duty of the respondent to wade through the entire record in order to find out which is the correct copy. If out of the copies filed, the respondent's copy is found to be an incorrect one, it amounts to non-compliance of the provisions of Section 81 (3) which is sufficient to entail a dismissal of the election petition at the behest. 10. From perusal of both the election petition as well as summon copy served on the respondent, this Court observes for not inserting the handwritten manuscript in the summon copy served on the respondent both ways, there is no service of true copy of the election petition on the respondent and under the circumstance, this Court observes the omissions in the summon copy is incurable ultimately making the election petition defective. For the settled principle of law, as laid down by the Hon'ble Apex Court referred to hereinabove and the observations made hereinabove, the election petition is not maintainable for being contrary to the provisions of Section 81 (3) and hence liable to be dismissed following the provisions contained in Section 86 of the Representation of People Act. 11. Further, for the mandatory provision contained in Section 81(3) of the Representation of People Act requiring signature of the election petitioner even on the summon copies served on the respondent, since the Election Petition was originally a typed one and the handwriting insertion is made subsequent to preparation of Election Petition in absence of the signature of election petitioner in the summon copies, particularly, at the incorporation of handwritten materials at page 6 of the original Election Petition, the Election Petition is otherwise also not maintainable being clearly hit by Section 81 (3) of the Representation of People Act. 12. For the variations in between the original election petition and the summon copy, it appears the defect has the effect to misleading the return candidate. Law is also well settled that the right of an elected representative should not be lightly disturbed in the level of differences/omission. Hon'ble Apex Court has even gone to the extent of holding that right of an elected representative cannot be infringed on the basis of defective election petition clearly attempting to mislead the return candidate. 13. Law is also well settled that the right of an elected representative should not be lightly disturbed in the level of differences/omission. Hon'ble Apex Court has even gone to the extent of holding that right of an elected representative cannot be infringed on the basis of defective election petition clearly attempting to mislead the return candidate. 13. This Court has taken into account the decision cited by Sri Goapl Agrawal, learned counsel appearing for the election petitioner and finds the decision since stand on different footing and for the findings therein that the defects did not mislead the elected candidate, the decisions cited on behalf of the petitioner has no relevancy in the present case. 14. As a result, this Court while allowing the Misc. Case No. 4 of 2017 declares the Election Petition No.1 of 2016 as not maintainable and thus while dismissing the Election Petition, for election petitioner wasting the time of Court and also dragging the respondent to face a wholly not maintainable Election Petition, this Court imposes a cost of Rs. 15,000/- (Rupees fifteen thousand) on the election petitioner to be paid to the respondent as compensation towards harassment faced by him in participating in the proceeding all through. Final Result : Allowed