Gauhati High Court
Naba Kumar Sarania vs Sri Daorao Dekhreb Narzary on 26 August, 2021
Page No.# 1/33
GAHC010158132019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No.I.A.(Civil)/3512/2019
NABA KUMAR SARANIA
S/O LATE LKHIKANTA SARANIA
VILL. DIGHALIPAR
P.O. TAMULPUR
P.S. TAMULPUR
DIST. BAKSA
ASSAM
PIN 781367
VERSUS
SRI DAORAO DEKHREB NARZARY
S/O LATE MAHESWAR NARZARY
VILL. KOKRAJHAR TOWN
WARD NO. 5
P.O. KOKRAJHAR
P.S. KOKRAJHAR
DIST. KOKRAJHAR
ASSAM
PIN 783370
------------
Advocate for : MR. M SARANIA
Advocate for : MR. S CHOUHAN appearing for SRI DAORAO DEKHREB NARZARY
Linked Case : I.A.(Civil)/165/2020
SRI DAORAO DEKHREB NARZARY
S/O LATE MAHESWAR NARZARY
VILL. KOKRAJHAR TOWN
Page No.# 2/33
P.O. KOKRAJHAR
P.S. KOKRAJHAR
DIST. KOKRAJHAR
ASSAM
PIN 783370
VERSUS
SRI NABA KUMAR SARANIA
S/O LATE LAKHI KANTA SARANIA
VILL. DIGHLIPAR
P.O. TAMULPUR
P.S. TAMULPUR
DIST. BARPETA
ASSAM
PIN 781367
------------
Advocate for : MR. B C DAS
Advocate for : MR D MAZUMDER appearing for SRI NABA KUMAR SARANIA
Linked Case El.Pet./1/2019
SRI DAORAO DEKHREB NARZARY
S/O. LATE MAHESWAR NARZARY, VILL. KOKRAJHAR TOWN, WARD NO.5, P.O.
KOKRAJHAR, P.S. KOKRAJHAR, DIST. KOKRAJHAR, ASSAM, PIN-783370.
VERSUS
SRI NABA KUMAR SARANIA
S/O. LT. LAKHI KANTA SARANIA, VILL. DIGHLIPAR, P.O. TAMULPUR, P.S. TAMULPUR,
DIST. BAKSA, ASSAM, PIN-781367.
Advocate for the Petitioner : MR. B C DAS
Advocate for the Respondent : MR. D MOZUMDER
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BEFORE
THE HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
For the Petitioner : Mr. D Mazumdar, Sr. Advocate
Mr. M Sarania, Advocate.
For the Opposite Party : Mr. BC Das, Sr. Advocate
Mr. S Chouhan, Advocate.
Date of hearing
Date of Judgment/ Order : 26.08.2021
JUDGMENT & ORDER (CAV)
Heard Mr. D Mazumdar, the learned Senior counsel assisted by Mr. M Sarania, learned
counsel for the respondent applicant and Mr. BC Das, the learned Senior counsel assisted by
Mr. S Chauhan, the learned counsel for the election petitioner opposite party.
2. The IA(C) No. 165/2020 and IA (C) No. 3572/2019 are taken up for disposal by this
common order.
3. The election petition is filed by the election petitioner opposite party in IA (C)
3512/2019 wherein the sole respondent in the election petition as the applicant in IA (C) No.
3512/2019 filed the said application under Section 86 of the Representation of People Act,
1951 (hereinafter referred as Act, 1951) challenging the election petition for non compliance
of the provisions of Sections 81, 82 and 117 of the Act, 1951 read with Chapter VIII A of the
Gauhati High Court Rules. After completion arguments by both the learned Senior counsel in
the said IA(C) 3512/2019, the election petitioner opposite party in the interlocutory
application filed an application seeking leave to adduce evidence in IA (C) No. 3512/2019.
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The said application was registered as IA (C) No. 165/2020 and the outcome of the same is
relevant for disposal of IA (C) No. 3512/2019 as such both the interlocutory applications are
taken up for disposal.
4. The opposite party in IA(C) No. 3512/2019 as the election petitioner filed the election
petition under Section 80 read with Sections 80A and 81 of the Act, 1951 calling in question
the election of the respondent applicant in IA(C) No. 3512/2019 from No. 5 Kokrajhar (ST)
House of People Constituency thereby seeking for a declaration that the election of the
respondent/ returned candidate to be void by virtue of the provisions of Section 100 (1)(a) &
(d) (i) of the Act, 1951. The election petitioner opposite party did not contest the election but
he is an elector of No. 5 Kokrajhar (ST) House of People Constituency his name being
recorded in the electoral roll of No. 30, Kokrajhar East (ST) Legislature Assembly Constituency
which forms a part of No. 5 Kokrajhar (ST) House of the People Constituency.
5. The notice of election for holding the election to the said constituency was issued on
28.03.2019 by the Returning officer of the said constituency with the following schedule:
(a) Last date for filing nomination paper 04.04.2019.
(b) Sorting of nomination papers-05.04.2019
(c) Last date for withdrawal of nomination papers-08.04.2019.
(d) Date of poll-23.04.2019.
6. Alongwith the respondent applicant eight other candidates submitted their nomination
papers which were found valid. The poll of the Constituency was held on 23.04.2019. The
result of the election was declared on 24.05.2019 and the respondent applicant contesting as
an independent candidate was declared to have been duly elected.
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7. The respondent applicant as per the election petitioner submitted his nomination paper
before the Returning officer of the Constituency by declaring his name as "Naba Kumar
Sarania @ Naba Sarania" alongwith a Tribe certificate issued by the All Assam Tribal Sangha,
Tamulpur district unit certifying that the respondent applicant belong to Borokachari
community which is recognized as Schedule Tribe (Plains) under the Constitution of India
(Schedule Tribe) Order 1950, as amended (modification) Order 1956 SC/ST Orders
(Amendment) Act, 1957. But, "Sarania" or "Sarania Kachari" is not a notified/ recognized
Scheduled Tribe and consequently the respondent applicant, a member of Sarania community
is not a member of the Schedule Tribe Community under the Constitution Schedule Tribe
Order, 1950. The respondent applicant as such is not a member of any notified Scheduled
Tribe Community of the State of Assam and on the date of his election he was not qualified to
be choosen to contest from the said constituency and nomination papers of the respondent
applicant claiming himself to be a member of Borokachari Community was improperly
accepted. The said acceptance of the nomination papers materially affected the result of the
election to the constituency. Hence the declaration as aforesaid is sought in this election
petition.
8. Vide order dated 24.07.2019 in the election petition, notice was directed to be issued
for appearance of the respondent applicant and on receipt of the same, the respondent
applicant entered appearance. The written statement was filed on 22.10.2019 by the
respondent applicant wherein the issue of maintainability of the election petition was raised.
Alongwith the written statement, the present applicant filed the application IA (C) 3512/2019
challenging the maintainability of the election petition for non compliance of the provisions of
Sections 81,82 and 117 of the Act, 1951.
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9. The respondent applicant in the application raised the following deficiencies:
(i) The election petition was not presented by the election petitioner opposite party in person
at the time of filing which is a mandatory requirement. Further there is nothing on record to
demonstrate the presence of the election petitioner opposite party. The affidavit filed in
support of the contention in the election petition was not sworn by the election petitioner
before any Oath Commissioner or Notary Public which demonstrates absence of the election
petitioner opposite party during presentation of the election petition.
(ii) The election petitioner opposite party did not furnish true copy of the election petition
upon the respondent applicant as per Section 81(3) of the Act, 1951. It was only after an
order of issuance of summons passed by the court did the election petitioner opposite party
submit true copy of the election petition alongwith notices for onward dispatch to the
respondent applicant. The copy served on the respondent applicant was not the true copy of
the election petition as the affidavit accompanying the election petition did not contain the
endorsement figuring in the original affidavit filed in the court.
(iii) Though a statement was made in the election petition that a challan in support of deposit
of security for costs formed an enclosure but the challan was not furnished to the respondent
applicant with the copy of the election petition. There was violation of Section 81(3) of the
Act, 1951 and Rule 3 of Chapter VIII-A of the Gauhati High Court Rules. Further, the
respondent applicant could not verify the particulars as to whether there was compliance of
Section 117 of the Act, 1951. Thus there was non compliance of the provision requiring
serving of true copy of the election petition to the respondent applicant. Moreover the
election petitioner opposite party failed to attest the copy of election petition furnished to the
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respondent applicant as the true copy of the election petition. The copy served on the
respondent applicant merely consisted of the signatures of the election petitioner opposite
party on the side margin but no attestation endorsing the same to be the true copy in the
entire copy. There is also no mention of date of filing the election petition on its body as a
result there is nothing in the election petition to show that the same was filed within the
period of limitation prescribed under the law.
10. The election petitioner opposite party filed his objections against the grounds raised. It
was the stand of the election petitioner opposite party that he was himself present in the
Registry of the court at the time of presenting the election petition. It was stated further that
he did Swuar the affidavit in support of the election petition before one Sri Gandhi Ram
Kathar, the Oath Commissioner. Denied the fact of non submission of attested copy of the
petition and asserted that he submitted one attested copy of election petition to be served on
the respondent applicant. Further stated that as per the statement made in para 22 of the
election petition a challan supporting the fact that Rs. 2000/- was deposited as security for
the cost of the petition was enclosed with the election petition in compliance of the Section
117 and Chapter VIII A of the Gauhati High Court Rules. There were no deficiencies as
alleged in presenting the election petition in due compliance of Sections 81,82 and 117 of the
Act, 1951.
11. After completion of the argument by both the learned counsel while the IA
(C)3512/2019 was fixed for order, the election petitioner opposite party filed an application
under Order XVI Rule 1(3) of the Code of Civil Procedure, 1908 praying for leave to adduce
evidence in the IA (C) No. 3512/2019. The said application was registered as IA (C) No.
165/2020. It was contended by the election petitioner in the said IA(C) 165/2020 that the
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petitioner (respondent opposite party in IA(C) 3512/2019) was upon bonafide impression that
the matter would be considered on the basis of facts and records. But during the progress of
hearing he realized the requirement of evidence and as such he prayed for the leave to
adduce evidence of two witnesses namely the election petitioner opposite party himself and
another official witness from the Registry of this court.
12. The respondent applicant as the opposite party in IA(C) 165/2020 filed his affidavit
cum written objection against granting of the leave for adducing evidence on the grounds:-
(a) that the election petitioner failed to disclose as to how the evidence of the proposed
witnesses were vital and relevant;
(b) the points raised by the respondent (returned candidate) were essentially matters of
record duly indicated in the endorsement made by the Stamp Reporter and question of oral
evidence does not arise;
(c) the hearing of IA(C) 3512/2019 already concluded and as such examination of the
proposed witnesses were not at all necessary.
13. Considering the convenience the petition seeking leave for adducing evidence is taken
up for disposal in this common order. Let me take note of the deficiencies as alleged by the
respondent applicant resulting in non-compliance of the relevant provisions-
(i) Election petition was not presented by the election petitioner opposite party in person.
(ii) The election petitioner opposite party did not furnish true copies of the election petition
on the respondent applicant including the copy of challan though the same formed part of the
enclosure of the petition.
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(iii) Copy of election petition furnished to the respondent applicant was not attested by the
election petitioner opposite party to be a true copy of the election petition.
(iv) No copy of the election petition duly attested by the election petitioner opposite party to
be a true copy for the respondent applicant accompanied the election petition at the time of
its presentation.
14. The said deficiencies are covered by Sections 81 of the Act, 1951 which stipulates as
follows:
"81. Presentation of petition-(1) An election petition calling in question any election
may be presented on one or more grounds specified in a[sub-section (1)] of Section
100 and Section 101 to the b[High Court] by any candidate at such election or any
elector c[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 the dates of their election are different, the letter of those two dates.]
Explanation- In this sub-section 'elector' means a person who was entitled to vote at
the election to which the election petition relates, whether he has voted at such
election or not.
d[..........]
e[(3) Every election petition shall be accompanied by as many copies thereof as there
are respondents mentioned in the petition f[........], and every such copy shall be
attested by the petitioner under his own signature to be a true copy of the petition.]"
15. Thus Section 81 of the Act, 1951 stipulates the requirements at the time of
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presentation of the election petition. So it is required to examine whether the petition was
filed within the period stipulated therein and whether the petition was accompanied by
requisite numbers of copies as there were respondents and every such copies attested by the
petitioner under his own signature to be a true copy of the petition. It is also required to be
seen as to whether the petitioner was present at the time of presentation of the petition.
16. Section 86 of the Act, 1951 empowers the High Court to dismiss an election petition
which does not comply with the provisions of Section 81 or Section 82 or Section 117. Section
83 of the Act, 1951 is not covered under Section 86(1) of the Act, 1951 though it stipulates
the nature of contents of the election petition. The intent of exclusion of Section 83 from the
purview of Section 86 was discussed by the Hon'ble Supreme Court in Manohar Joshi Vs.
Nitin Bhaurao Patil and another reported in (1996) 1 SCC 169 as follows:
"20. Section 86 empowers the High Court to dismiss an election petition at the
threshold if it does not comply with the provision of Section 81 or Section 82 or
Section 117 of the Act, all of which are patent defects evident on a bare examination
of the election petition as presented. Sub-section (1) of Section 81 requires the
checking of limitation with reference to the admitted facts and sub-section (3) thereof
requires only a comparison of the copy accompanying the election petition with the
election petition itself, as presented. Section 82 requires verification of the required
parties to the petition with reference to the relief claimed in the election petition.
Section 117 requires verification of the deposit of security in the High Court in
accordance with Rules of the High Court. Thus, the compliance of Section 81, 82, and
117 is to be seen with reference to the evident facts found in the election petition and
the documents filed along with it at the time of its presentation. This is a ministerial
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act. There is no scope for any further inquiry for the purpose of Section 86 to ascertain
the deficiency, if any, in the election petition found with reference to the requirement
of Section 83 of the R.P. Act which is a judicial function. For this reason, the non
compliance of Section 83, is not specified as a ground for dismissal of the election
petition under Section 86."
17. Relying the said ratio the Hon'ble Supreme court in Ajay Maken vs. Adesh Kumar
Gupta (supra) and another reported in (2013) 3 SCC 489 distinguished the
consequence between failure to sign and verify the original copy of the election petition filed
in the court as contemplated in Section 83 of the Act, 1951 and failure to attest the copy
served on the respondent to be a true copy of the election petition prescribed by Section 81
(3) of the Act, 1951 as follows:
"7. Legally there is a distinction between failure to sign and verify the original copy of
the election petition filed in the court and failure to attest the copy served on the
respondent to be a true copy of the election petition. While the latter failure falls within
the scope of Section 81(3), the earlier failure falls under sub-section (1)(c) and sub-
section (2) of Section 83. While the failure to comply with the requirements of Section
81 obligates the High Court to dismiss the election petition, the failure to comply with
the requirements of Section 83 is not expressly declared to be fatal to the election
petition. The said distinction is explained by this court in Manohar Joshi vs. Nitin
Bhaurao Patil 2 in paras 203 and 214."
18. From the aforesaid two decisions more specifically in Manohar Joshi (supra) the
deficiencies as highlighted in the application by the respondent applicant being covered by
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Section 81 of the Act, 1951 are required to be examined on the basis of the evident facts
found in the election petition and the documents filed alongwith it at the time of presentation
which are of ministerial acts. The election petitioner opposite party mainly sought the leave
for adducing evidence in order to prove the fact that the election petitioner presented the
petition in person. To that effect there is a report of the stamp reporter and same had been
relied by the learned Senior counsel for the election petitioner in support of the said fact that
the petitioner was present at the time of presentation of the election petition. 'Ministerial act'
as defined in Black's Law Dictionary, (Ninth edition) is an act performed without the
independent exercise of discretion or judgment and such act is mandatory. Thus the question
of application of discretion, judgment or skill does not arise at all. As such performance of
such act can very well be found in the election petition itself. The election petitioner opposite
party argued in favour of granting leave for adducing evidence citing various enabling
provisions of the Code of Civil Procedure, 1908 (CPC) supported by various decisions but in
my considered view no further evidence is required in order to decide the application under
Section 86 of the Act, 1951 for the reasons discussed above. Accordingly the IA (C) No.
165/2020 is dismissed. Let me take up the IA (C) No. 3512/2019.
19. Mr. Mazumdar, the learned Senior counsel submitted that the last date for filing the
election petition was 08.07.2019. But the report as per the records of the Administrative
Officer (Judicial) dated 15.07.2019 is not proper inasmuch as though in the report indicated
the date of filing as 08.07.2019 but the endorsement of Administrative Officer (Judicial) was
on 15.07.2019 which further indicates that the election petitioner was not present on
08.07.2019 but on 15.07.2019. Nowhere from the report of the Administrative Officer
(Judicial) it could be gathered about the presence of the election petitioner opposite party on
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the date of presentation of the election petition. Thus there was specific non-compliance of
the provision under Section 81(1) of the Act, 1951 which stipulates presentation of election
petition either by any candidate or any elector. Relying G.V. Sreerama Reddy and another
Vs. Returning Officer and other reported in (2009) 8 SCC 736 Mr. Mazumdar
highlighted the importance of the presence of the petitioner at the time of presentation of the
election petitioner which the Apex court held that the legislature provided that the petition
must be presented by the petitioner himself so that at the time of presentation the High
Court may make a preliminary verification which ensures that the petition is neither frivolous
nor vexatious. In the said case the Apex court upheld the dismissal order of an election
petition by the Hon'ble High Court of Karnataka on the ground that the election petition was
presented by the Advocate in absence of the election petitioner under Section 81(1) of the
Act, 1951. Mr. Mazumdar also relied Y Vikheho Swu & another vs. Sukhato A Sema
(Dr) & Ors reported in (2019) 1 GLT 718.
20. Referring Section 117 of the Act, 1951, Mr. Mazumdar contended that at the time of
presenting an election petition, the election petitioner was required to deposit a sum of
Rupees two thousand as security for the costs of the petition in accordance with Rules of the
High court. Chapter VIII-A Rule 1 (d) of the Gauhati High Court Rules stipulates that the
election petition shall be accompanied by a challan showing the deposit of Rs. 2,000/- into
the State Bank of India, Gauhati Branch in favour of the Registrar of the Court as security for
the cost of the petition. In the copy of the election petition supplied to the respondent
applicant at para 22 it was pleaded that the challan No. 7/2839 dated 08.07.2019 was
enclosed with the election petition. But no such copy of challan was found to be enclosed
with the copy of election petition.
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21. Arguing further that it was mandatory for an election petition to be accompanied by
the challan and the deposit of Rs. 2,000/- as held by the Apex Court in Sitaram Vs Radhey
Shyam Vishnav and others reported in (2018) 4 SCC 507, as such the copy of challan
ought to have been enclosed with the copy of the election petition supplied to the respondent
applicant at least for the purpose of taking the defence. Moreover, from the pleadings in para
22 of the election petition it was quite clear that the challan formed a part of the election
petition, non supply of the challan itself goes to show that the copy of the election petition
served to the respondent applicant was not a true copy as envisaged under Section 81 (3) of
the Act, 1951. There was no attestation also in the copy of the election petition served to the
respondent applicant by the election petitioner opposite party as true copy. In support of the
said contention Mr. Mazumdar relied M Karunanidhi Vs. HV Hande and others reported
in AIR 1983 SC 558 wherein a photograph was a part of the averment contained in para
18(b) of the election petition and in the absence of the photograph the averment of the said
particular paragraph 18 (b) would be incomplete which formed an integral part of the election
petition. The Apex court relying the Constitutional Bench decision in Ch. Subbarao Vs
Member Election Tribunal reported in AIR 1964 SC 1027 held that "copies thereof" in
sub-section (3) of Section 81 read in context of sub-section (2) of Section 83 must refer not
only to the election petition proper but also to schedule or annexures thereto containing
particulars of any corrupt practice alleged in the election petition.
22. Mr. Mazumdar also relied the decision in Ajay Maken Vs Adesh Kumar Gupta and
another (supra) and submitted that failure to attest copy of election petition furnished to
respondent to be true copy and failure to sign and verify original copy of petition filed in the
court are not on the same footing. The former being non-compliance with Section 81(3) of
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the Act, 1951 would entail dismissal of election petition under Section 86 of Act, 1951 and the
latter though being in violation of Section 83(1) on the Act, 1951 would not be fatal to
election petition. Now as there was no attestation by the election petitioner of the copy
served to the respondent applicant and the same being not a true copy as such it fell within
the category which would entail dismissal of the election petition under Section 81(3) of the
Act, 1951 as per the aforesaid ratio.
23. Referring to the stamp reporter's report dated 15.07.2019 Mr. Mazumdar argued that
the said report specifically stated that the election petitioner opposite party was present on
08.07.2019. The election petition was filed alongwith one spare copy for the office use.
Chapter VIII-A Rule 1(a) of the Gauhati High Court Rules required an extra copy of the
election petition in addition to as many copies thereof as there were respondents mentioned
in the petition. But from the report it could be seen no copy for the sole respondent
accompanied the election petition at the time of its presentation which amounted to specific
non-compliance of Section 81 (3) of the Act, 1951. Accordingly the election petition is not
maintainable and liable to be dismissed for the deficiencies referred by the learned Senior
counsel for the respondent applicant.
24. Mr. Das, the learned Senior counsel for the election petitioner opposite party
countering the contentions of Mr. Mazumdar submitted that the election petition was
maintainable and required to be disposed of after a full fledged trial. The election petition was
presented by the election petitioner himself which stand supported by the report of the
Stamp reporter dated 15.07.2019. Each and every documents forming annexures to the copy
of the election petition served on the respondent applicant were duly verified and there does
not arise any question of non-compliance of the provision under Section 81(3) of the Act,
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1951.
25. Regarding non supply of the copy of challan in support of compliance of Section 117 of
the Act, 1951 for security of cost of the petition, Mr. Das referred to the contents of Section
117 of the Act, 1951 and Rule 1 (d) of Chapter VIII A of the Gauhati High Court Rules. The
election petitioner mandatorily required by the provision of Section 117 of the Act, 1951 to
deposit in the High Court in accordance with the rules of the High Court a sum of Rs. 2,000/-
as security for costs. Rule 1(d) of Chapter VIII A of Gauhati High Court Rules require every
election petition to be accompanied by a challan showing deposit of Rs. 2,000/- to the State
Bank of India, Gauhati Branch in favour of the Registrar of the court as security for costs of
the petition. The challan accompanied with the election petition was in total compliance of
Rule 1 (d).
26. In the election petition in para 22 the fact that there was compliance of Section 117 of
Act, 1951 and the relevant Rule of the Gauhati High court was stated. In support of the said
fact the challan was enclosed as evidence only and not beyond that. As documents forming
evidence does not form integral part of the averment in the election petition so non supply of
the challan cannot be held to be non compliance of Section 81(3) of the Act, 1951. Non
enclosure of the copy of challan itself could not classify the copy of the election petition to be
one within the category as not a true copy. In support of the said contention Mr. Das relied
the decision of the Constitutional Bench in Murarka Radhey Shyam Ram Kumar Vs.
Roop Singh Rathore and another reported in AIR 1964 SC 1545. According to Mr. Das
the respondent applicant miserably failed to show that such variation from the original owing
to non enclosure of the copy of challan was intentional in order to mislead the respondent
applicant by election petitioner opposite party.
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27. Mr. Das in order to buttress his argument relied Ch. Subbarao Vs. Member,
Election Tribunal Hyderabad and others reported in AIR 1964 SC 1027 wherein the
test laid down by Constitutional Bench in Murarka Radhey Shyam Ram Kumar (supra)
was followed by another Constitutional Bench. Similarly another Constitution Bench of the
Apex Court in T.M Jacob Vs.C Poulose and others reported in AIR 1999 SC 1359
followed and accepted the test laid down by the Constitution Bench in Murarka Rahey
Shyam Kumar (supra) and it is further submitted by Mr. Das that 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 was to understand the charge and for effectively taking defence in
his written statement. Requirement is of substance and not of form. He also relied the
decision of the Apex court in T. Phungzathang vs Hangkhanlian and other reported in
(2001) 8 SCC 358.
28. Mr. Das strenuously argued that submission of one single copy of the election petition
was sufficient in order to satisfy the provision of Section 81 (3) of the Act, 1951 inasmuch as
it is the sole respondent required to be served with the election petition. So the submission
made by Mr. Mazumdar that mere submission of the office copy of the election petition
without the other copy amounted to violation of Section 81(3) of the Act, 1951 cannot be
accepted. Finally it was the contention of Mr. Das that application filed by the respondent
applicant was liable to be dismissed.
29. From the aforesaid contentions of both the learned Senior counsel it is found that Mr.
Mazumdar submitted that the copy of the challan which formed an enclosure to the election
petition was not found enclosed to the copy of the election petition served on the respondent
applicant and as such there is violation of Section 81(3) of the Act.
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30. Further there was no attested copy of the election petition accompanying the election
petition. The copy served on the respondent applicant was not the true copy of the election
petition as the affidavit accompanying the petition did not contain the endorsement figuring
in the original affidavit filed in the court. Moreover the copy furnished to the applicant was
not "attested" by the election petitioner opposite party except the signatures of the opposite
party on the side margin of the petition.
31. Now in order to decide the said contentions of Mr. Mazumdar I would like to note the
purpose of Section 81(3) of the Act, 1951. In Ajay Maken Vs Adesh Kumar Gupta
(supra), the Apex Court held that the purpose of Section 81(3) is to put the returned
candidate on notice of the various allegations made against him in order to enable him to
defend himself effectively in the election petition. It was further held that the said stipulation
form one of the basic postulates of the principles of natural justice. In the application it is
stated that due to non enclosure of the challan in the copy of election petition the respondent
applicant could not take the defence properly.
32. Here I would like to look into the provisions of the Code of Civil Procedure, 1908 (CPC)
Order VI Rule 2 CPC which stipulates that every pleading shall contain, and contain only, a
statement in a concise form of material facts on which the party pleading relies for his claim
or defence but not the evidence by which they are to be proved. Order VI Rule 1 CPC
specifies that 'pleadings' shall mean plaint or written statement and for that purpose Order VI
Rule 1 CPC includes the terms "claim or defence".
33. Section 83 of the Act, 1951 stipulates the nature of the pleadings in an election
petition which shall contain a concise statement of the material facts on which the petitioner
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relies. It requires setting forth full particulars of any corrupt practice that the petitioner
alleged. The petition shall be signed and verified in the manner laid down in the CPC for
verification of pleadings. In case of allegation of corrupt practice, the petition is required to
be accompanied by an affidavit in support of the allegation of such corrupt practice and
particulars. Any schedule or annexure to the petition shall also be signed by the petitioner
and verified in the same manner as the petition.
34. Section 81 of the Act, 1951 specifies the requirement at the time of presentation of an
election petition and the period of limitation. It mandates 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. It specify the requirement of schedules or annexures of the petition.
35. Section 87 of Act, 1951 prescribes applicability as nearly as possible of CPC for suits
while conducting a trial of an election petition by the High Court. The Act, 1951 is a complete
code governing the election process under it and the dispute resolution forum and
procedures. As it prescribes applicability of the CPC for trial of suits as such the interpretation
of Section 81 and 83 of the Act, 1951 must be almost in consonance with the procedures
applicable for suit under the CPC as held in Smti Sahodrabai Rai Vs. Ram Singh
Aharwar and Others reported in AIR 1968 SC 1079.
36. Section 83 stipulates for a concise statement of the material facts which is similar to
that of Order VI rule 2 CPC. Section 83 also stipulates any schedule or annexure to the
petition must be signed and verified in the same manner as the petition. This section
stipulates the nature of contents of petition only, which requires a concise statement of the
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material facts on which the petitioner relies. While doing so, if such concise material fact
includes a document and the contents thereof then it would form part of the election petition
and shall have to be signed and verified in the same manner as the election petition. This is
similar to the provision of Order VII Rule 14 CPC which stipulates submission of the
documents relied in the plaint to be filed alongwith the plaint in the court. Order VI Rule 2
mandates that evidence need not be pleaded in the pleadings. So if the contents of a
document is specifically pleaded in the election petition or pleadings that itself forms the
material facts and the document is the evidence of the contents therein. But if reference of a
document is made and the contents thereof are not pleaded in the petition then the
document itself forms a material fact but not evidence inasmuch as the adverse party is
required to take his defence after going through the contents of the document only. So the
said document must form part of the petition, copy whereof must be accompanied with the
election petition in order to form the true copy as stipulated under Section 81 (3) of the Act,
1951.
37. In Smti Sahodrabai Rai -Vs- Ram Singh Aharwar and others (supra) , the
Hon'ble Supreme Court held in a case where an election petition itself reproduced the whole
of the pamphlet in a translation in English as particulars of a corrupt practice and the original
Hindi pamphlet was filed as annexure to the petition but no copy of the annexure was served
on the respondent along with the copy of the petition as follows:-
"12............................... We have already pointed out that Section 81 (3) speaks only of
the election petition. Pausing here, we would say that since the election petition itself
reproduced the whole of the pamphlet in a translation in English, it could be said that
the averments with regard to the pamphlet were themselves a part of the petition and
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therefore the pamphlet was served upon the respondents although in a translation and
not in original. Even if this be not the case we are quite clear that sub-Section (2) of
Section 83 has reference not to a document which is produced as evidence of the
averments of the election petition but to averments of election petition which are put
in not in the election petition but in the accompanying schedules or annexures."
38. Let me reproduce the paragraph 22 of the Election petition which refers to the copy of
challan which was not enclosed with the copy of election petition to the respondent:-
"22. That the election petitioner has made security deposit of Rs. 2000/- as stipulated
under Section 117 of the Act of 1951 vide Challan No. 7/2839 dated 08.07.2019 which
is enclosed herewith."
39. From the aforesaid statement it is apparent that the security deposit of Rs. 2000/- as
per Section 117 of the Act, 1951 was deposited vide the challan. In order to support the said
statement, copy of the challan was enclosed but the material fact is that the mandatory
requirement as prescribed under Section 117 of the Act, 1951 was satisfied vide the challan
bearing No. 7/2839 dated 08.07.2019. The challan enclosed in the petition is the evidence in
support of the said fact. If the ratio laid down in Smti. Sahodrabai Rai (Supra) is applied it
can very well be held that the contents of challan does not form the integral part of the
averment in election petition but is only evidence of the averment in para 22 and form an
annexure to the election petition.
40. In Manohar Joshi Vs Nitin Bhaurao Patil (supra) the Hon'ble Supreme court
relying Sahodrabai Rai (supra) and other decisions of the Apex Court held as follows.
"24. The distinction brought out in the above decisions is that a case where the
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document is incorporated by reference in the election petition without reproducing its
contents in the body of the election petition, it forms an integral part of the petition
and if a copy of that document is not furnished to the respondent with a copy of the
election petition, the defect is fatal attracting dismissal of the election petition under
Section 86(1) of the R.P. Act. On the other hand, when the contents of the document
are fully incorporated in the body of the election petition and the document also is filed
with the election petition, not furnishing a copy of the document with a copy of the
election petition in which the contents of the documents are already incorporated,
does not amount to non-compliance of Section 81(3) to attract Section 86(1) of the
R.P. Act. In other words, in the former case the document filed with the election
petition is an integral part of the election petition being incorporated by reference in
the election petition and without a copy of the document, the copy is incomplete copy
of the election petition and, therefore, there is non compliance of Section 81(3). In the
other situation, the document annexed to the petition is mere evidence of the
averment in the election petition which incorporates fully the contents of the document
in the body of the election petition and, therefore, non supply of a copy of the
document is mere non-supply of a document which is evidence of the averments in the
election petition and, therefore, is no non-compliance of Section 81(3).
41. Relying the ratio of Sahodrabai (supra) the Hon'ble Supreme Court in Ajay Maken
and Adesh Kumar Gupta and another (supra) held as follows:
"37. From the above, it can be seen that two propositions of law are settled by this
court in Sahodrabai case12.
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37.1. Firstly when an election petition is accompanied by annexures, where content is
completely described in the election petition, failure to serve a copy of the election
petition on a respondent to the election petition does not render the copy served on
the respondent anything other than a true copy of the election petition.
37.2 Secondly, even in a case where the content of the annexure is not fully described
in the election petition, the non-supply of such annexure alongwith the copy of
election petition to the respondent does not violate the mandate of Section 81(3) in
the case where annexure is only sought to be used as evidence of same allegation
contained in the election petition."
42. Thus in view of the aforesaid discussions the submission of Mr. Mazumdar, the learned
Senior counsel for the respondent applicant that the copy of the petition served on the
respondent applicant was not a true copy due to non enclosure of the challan and violate
Section 81(3) of the Act, 1951 cannot be accepted.
43. Mr. Mazumdar also submitted that the copy served on the respondent applicant was
not the true copy of the election petition as the affidavit accompanying the petitioner did not
contain the endorsement figuring in the original affidavit filed in the court. In this regard let
me consider the meaning of the expression 'copy' occurring in Section 81(3) of the Act, 1951.
In Murarka Radhey Shyam Ram Kumar's case (supra) it was held that expression
'copy' did not mean an exact copy but only one so true that no reasonable person could by
any possibility misunderstand it as not being the same as original.
44. The aforesaid view of the Constitution Bench was accepted by another Constitution
Bench in T.M. Jacob Vs C Poulose and others (supra) and held as follows:
Page No.# 24/33
"41. The expression "copy" in Section 81 (3) of the Act, in our opinion, means a copy
which is substantially so and which does not contain any material or substantial
variation of a vital nature as could possibly mislead a reasonable person to understand
and meet the charges/ allegation made against him in the election petition. Indeed a
copy which differs in material particulars from the original cannot be treated as a true
copy of the original within the meaning of Section 81(3) of the Act and the vital defect
cannot be permitted to be curved after the expiry of the period of limitation."
45. The deficiency as submitted by Mr. Mazumdar is only in respect of the endorsement
figuring in the original affidavit which are missing in the copy of the affidavit in the petition.
But how the respondent applicant is affected due to the said deficiency is not stated in the
application. The said deficiency falls within Section 83 of the Act, 1951 which is curable. It is
not the case that such endorsements are not found in the affidavit filed alongwith the petition
in the court. Then the same cannot be cured after the expiry of the period of limitation. In
this regard the Constitution Bench decision of the Apex Court in T.M. Jacob Vs. C Poulose
(supra) is relevant which is extracted below:
"43...........That apart, to our mind, the legislative intent appears to be quite clear, since
it divides violations into two clauses-those violations which would entail dismissal of
the election petition under Section 86(1) of the Act like non-compliance with Section
81(3) and the violation which attract Section 83(1) of the act i.e. non-compliance with
the provisions of Section 83. It is only the violation of Section 81 of the Act which can
attract the doctrine of substantial compliance as expounded in Murarka Radhey Shyam
(AIR 1964 SC 1545) and Ch. Subbarao's case (AIR 1964 SC 1027). The defect of type
provided in Section 83 of the Act, on the other hand, can be dealt with under the
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doctrine of curability, on the principles contained in the Code of Civil Procedure........."
46. The aforesaid ratio was applied by the Hon'ble Supreme court in T.Phungzathang Vs
Hangkhanlian and others reported in AIR 2001 SC 3924 and held as follows:
"25. In the above declared legal provision, if we examine the case in hand, we notice
that the only lacuna pointed out by the contesting respondent in his application in Civil
Miscellaneous Election case No. 3/2000 is that the copy supplied to him did not contain
the verification or affirmation made by the Oath Commissioner or the Prescribed
Authority as required in Form 25 and Rule 94 A of the Conduct of Election Rules, 1961.
It is not the case of the respondent No. 1 that the original affidavit alongwith the
election petition in Form 25 did not contain such verification or affirmation. On the
contrary, it is an admitted fact that such affirmation or verification was made in the
original affidavit filed before the High Court. Therefore the question arising in this
appeal is: would this omission as pointed out by the respondent in his petition ipso
facto entail dismissal of the election petition under Section 86(1) of the Act? In view of
the law laid down in Jacob's case (supra), the anSwur then should be 'no' because by
such omission the copy, supplied will not cease to be a 'true copy' and there is no
possibility of any prudent person being misled in defending himself or being prejudiced
in the defence of his case. Further, such omissions are only curable irregularities."
47. Now if the submission of Mr. Mazumdar, the learned Senior counsel for the respondent
applicant is considered and applying the aforesaid ratio, in my considered opinion the
deficiency urged is not fatal under Section 86(1) of the Act, 1951 inasmuch as even today the
election petitioner is at liberty to supply a copy of the affidavit after correcting the defects
Page No.# 26/33
pointed out inasmuch as the said defect does not go to the root at the time of presentation of
the election petition under Section 81 (3) of the Act, 1951 rather the same in my further
considered opinion is a curable defect which occurred at the time of supplying the copy of the
election petition alongwith the notice to the respondent applicant after the order was passed
for taking steps on the respondent.
48. Mr. Mazumdar submitted that the election petition at the time of its presentation was
not accompanied with the copy for the respondent applicant which is a specific violation of
the Section 81 of the Act, 1951 and election petition is liable to be dismissed under Section
86(1) of the Act, 1951. Further, it was submitted that the election petitioner did not present
the election petition on his own. Mr. Das, the learned Senior counsel strongly refuted the
submission of Mr. Mazumdar and relied the report which is on record of the Administrative
Officer (Judicial) of the High Court dated 15.07.2019 and submitted that the said report
clearly mentioned about the presence of the election petitioner on 08.07.2019, the date of
filing the election petition. It was also stated that the said report indicated about submission
of a spare copy of election petition for office use. According to him the election petition
satisfies all the requirements as stipulated by Section 81 of the Act.
49. The report of the Administrative Officer (Judicial) of this court is extracted
hereinbelow:
" REPORT OF THE ELECTION PETITION
1. The election petition has been filed by the petitioner today i.e. 08.07.2019
personally during the office hours. The petitioner is present and signed each of the
pages of the petition, annexure of the petition in my presence.
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2. The petition alongwith one spare copy for the office use and filed within 45 days
and in form.
3. The petition has been supported by an affidavit.
4. One number of written envelope duly stamped for Rs. 130/- with registered A/D
has been filed.
5. One number of written up notice has been submitted for service of notice upon
the sole respondent.
6. Security amount of Rs. 2,000/- has been deposited in the Treasury Office, Kamrup
(M), vide challan No. 7/2839 dated 08.07.2019. A copy of the said challan has been
enclosed.
7. The petition contains 19 pages.
8. The petition is supported by a vakalatnama accepted by 6 nos. of counsels.
Sd/ Illigible
15.07.2019
Adminstrative Officer (Judl)
Gauhati High Court, Guwahati."
50. From the aforesaid report dated 15.07.2019 it is seen that the petitioner filed the
election petition on 08.07.2019 personally during the office hours. The election petition was
accompanied by one "spare copy" for the office use and filed within 45 days purportedly from
the date of result of the election.
51. Section 81 of the Act, 1951 stipulates the requirements at the time of presentation of
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election petition to the High Court to try the said election petition. Section 81(3) of the Act,
1951 stipulates that every election petition shall be accompanied by as many copies thereof
as there are respondents mentioned in the petition. Chapter VIII-A of the Gauhati High Court
Rules stipulates special provisions relating to procedure in election petitions under the
Representation of Peoples Act, 1951 and the relevant portion is extracted below:
"1. An election petition under S. 80-A of Representation of Peoples Act may be
presented duly verified in the form prescribed under Ss. 82 and 83 of the said Act
before the stamp reporter of this court with a court fee of Rs. 6.00 affixed thereon,
within 45 days from the date of election of the returned candidates, or if there are
more than one returned candidate at the election and the dates of their election are
different, the latter of those two dates. Every such petition shall be accompanied by-
(a) as many copies thereof as there are respondents mentioned in the petition
together with one extra copy, all the copies being fully attested by the petitioner under
his own signature to be a true copy of the petition and as many envelopes as there are
respondents being requisite postage stamp to enable service to be effected by
registered post with acknowledgement due."
52. From the report of the Administrative Officer (Judl) dated 15.07.2019 it is seen that the
election petition was filed accompanied by one spare copy for office use. Now Section 81 of
the Act, 1951 stipulates that the election petition must be accompanied by as many copies
thereof as there are respondents mentioned in the petition. Chapter VIII A of the Gauhati
High Court Rules stipulates special provisions requiring the election petition to accompany as
many copies thereof as there are respondents mentioned in the petition together with one
Page No.# 29/33
extra copy. Mr. Mazumdar submitted that as there was only one respondent the election
petition ought to have been accompanied by two copies of election petition. As the only copy
with election petition was for the office use as such, no copy accompanied in terms of Section
81 of the Act, 1951 for the sole respondent amounting deficiency under Section 81 of the Act,
1951. Mr. Das on the other hand objected to the said submission as hereinabove referred and
submitted that as per the mandate of Section 81 (3) of the Act, 1951 the copy for the sole
respondent accompanied the election petition which was sufficient compliance of Section 81.
53. In order to decide the issue arising out of the contentions above made by both the
learned Senior counsel, let me examine the force of Rule 1 of Chapter VIII A inasmuch as it is
sub rule (a) of Rule 1 of Chapter VIII A prescribes one extra copy alongwith as many copies
thereof as the respondents. The Hon'ble Supreme Court in M. Karunanidhi vs H.V. Hande
and others reported in AIR 1983 SC 558 observed as follows:
"17.................There are different sets of rules framed by different High Courts under
Article 225 of the Constitution regulating the practice and procedure to be observed in
all matters coming before the High Court in exercise of its jurisdiction under S.80-A of
the Act......................."
54. Thus the rules so framed by the Hon'ble High Courts are for the purpose of regulating
the practice and procedure to be observed in all matters coming before the High Court as per
Section 80-A of the Act, 1951 for exercising the jurisdiction on such petition under Section 80-
A. In Abdul Jabbar vs. Syeda Anwara Taimur and ors. reported in (1986) 1 GLR 257
an issue was raised whether Rule 1 of Chapter VIII A of the Gauhati High Court Rules which
provides for presentation of the election petition before the Stamp Reporter of the High Court
Page No.# 30/33
was ultra-vires Article 329(b) of the Constitution and Section 169 of the Act of 1951. While
holding against the issue and taking note of the observation in M. Karunanidhi vs. HV
Hande (supra) the learned Single Judge of this court held as follows:
"8. The High Court is a legal entity. It consists of not only the Chief Justice and other
Judges but also officers of various departments. When the Stamp Reporter receives
the election petition or the election petition is presented to the Stamp Reporter he
does not do it as a delegate of the High Court. The Stamp Reporter is a limb of the
High Court and not a delegate as the Stamp Reporter is entrusted to perform his
duties under the rules. By framing the Rules, the High Court has not parted itself with
the power to act under the Act. The Chief Justice is the Head of the body. The Judges
and other officers are limbs or parts of the body (High Court). It is therefore concluded
that the said Rules are not inconsistent with the Article 329 (b) and the provisions of
Section 81 or any other provisions of the Act."
55. Almost a similar issue as the one raised in Abdul Jabbar Vs Syeda Anwara Taimur
(supra) was raised before this Hon'ble Court in Banendra Kumar Mushahary V. Md.
Mohibul Haque reported in AIR 2002 Gau 118. The learned Single Judge of this court
relying the ratio in Manohar Joshi vs. Nitin Bhaurao Patil (supra) and Abdul Jabbar
(supra) held as follows:
"20. The above observation of the Hon'ble Supreme Court that "this is a ministerial
act" sets at rest the controversy at hand. The function involved in the presentation of
an election petition is essentially clerical in character. No exercise of judicial power is
contemplated in the act of presentation and its acceptance. What is needed is the
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scrutiny of the election petition which is essentially clerical. Section 81 has been
quoted hereinabove. There appears to be a vacuum which speaks of presentation of
before the High court and not the manner of presentation. The vacuum, in my opinion,
can be filled up by the High court in exercise of its inherent powers since the Rule in
this behalf will not be in clash with any provisions of law made by the appropriate
legislature. It is for this purpose, the continuance of the Rule appears to be
indispensible till appropriate legislature provide the manner by legislation. Therefore
Rule 1 of Chapter VIII-A of the Gauhati High Court Rules need not be interfered on this
given back ground."
56. In Jamal Uddin Ahmed vs Abu Saleh Najmuddin and another reported in AIR
2003 SC 1917, the Hon'ble Supreme Court held in respect of Chapter VIII-A of the Gauhati
High court Rules as follows approving the ratio in Abdul Jaffar (supra):
"18. Even in the absence of Chapter VIII-A in the Gauhati High Court Rules there
would have been nothing wrong in the High Court or the Chief Justice authorizing any
of its officers to receive the election petition presented to it so as to enable exercise of
the jurisdiction conferred on the High Court by Chapter II of the Act. The Gauhati
High Court thought it proper to incorporate Chapter VIII-A in its Rules in view of the
amendment of Chapter II of the Act.
19. We are therefore of the opinion that presentation of an election petition to the
Stamp Reporter of the High Court is a valid presentation. Such has been the view
taken by High Court of Gauhati consistently. At least three decisions can be referred to
immediately: Abdul Jabbar v. Syeda Anwara Taimur & Ors., (1986)1 GLR 257:
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Shri Melhpura Vero v Shri Vamugo (1990) 1 GLR 290 and Shri Saingura v.
Shri F Sapa & Ors., (1990) 2 GLR (NOC) 48. So is the view taken by the High
Court of Allahabad in Nawab Khan v. Vishwanath Shastri, AIR 1993 Allahabad
104. We find ourselves in agreement with the view so taken by the learned Single
Judges of Gauhati and Allahabad High Court.
57. It would not be out of place to mention that originally in the Act, 1951 an election
petition could be presented to the Election Commission and thereafter to be tried by an
Election Tribunal. Act No. 47 of 1966 amended Chapter II of the Act, 1951 with effect from
14.12.1966 by which jurisdiction to try election petition was conferred on the High Court.
After the amendment, Part VI Chapter II Section 80A of the Act, 1951 gives the jurisdiction to
the High Court to try the election petition and on the basis of the said authority, Gauhati High
Court introduced Chapter VIII-A in the Gauhati High Court Rules consequent to the
amendment of the Act, 1951 by Act No. XL, VII of 1966. The said Rules are not ultra vires
Article 329(b) of the Constitution of India and as such it must be read along with Section 81
(3) of the Act, 1951 and compliance of the Rule 1 sub-rule (a) is mandatory. Thus the
requirements while filing an election petition as per Section 81 of the Act, 1951 must also
require compliance of Rule 1 sub-rule (a) of the Chapter VIII-A of the High Court Rules.
58. In the present case in hand as referred hereinabove from the report of the
Administrative Officer (Judl) extracted hereinabove there was an apparent failure on the part
of the election petitioner in due compliance of Rule 1 sub-rule (a) of the Chapter VIII-A of the
Gauhati High Court Rules as such I am inclined to hold that there was non compliance of
Section 81 of the Act, 1951 as no copy of the election petition for sole respondent applicant
accompanied the election petition inasmuch as the only copy accompanied with the election
Page No.# 33/33
petition was only for office use i.e. in compliance of Rule 1 sub-rule (a) of Chapter VIII-A only
but not the provision of Section 81(1) of the Act, 1951.
59. It was observed in Ajay Maken -vs- Adesh Kumar Gupta and another (supra)
that failure to comply with requirements of Section 81 of the Act, 1951 obligates the High
Court to dismiss the election petition. Now as it is held that there is a specific failure of the
election petitioner opposite party in compliance of Section 81 of the Act, 1951 accordingly I
conclude that IA (C) 3512/2019 is required to be allowed which I accordingly allow. Finally
exercising the jurisdiction under Section 86(1) of the Act, 1951 this election petition is
dismissed with costs.
JUDGE
Comparing Assistant
