MITHILESH KUMAR PANDEY . BAIDYANATH YADAV AND ORS. “January 2, 1984 °
TS. Murtaza FAZAL ALI, O. Cuinnappa REDDY AND co BSS VENKATARAMIAH, JJ]
. 7
Repreientation of the People / Act, 1951, ‘Section 81(3) Construction of “the * provisions of the section-copy of the election petition containing several mistakes of vital character, not " found i in the original—-Election petition is not maintainable and ' must-be dismissed. . — .
‘Tn the genetal elections held i June 1980, the appellant fought as a Congress(I) candidate from Harlakhi Assembly constituency in Bihar’and was’ declared elected. ‘The respondent who was defeated filed an election petition in the Patna High Court” listing a large nuriber of persons through when corrupt practices were. alleged to have been practised by the appellant. Since the copy of the petition, though attested’. by the election petitioner under his own. signature to be a true’ copy, contained several mistakes which were of a very vital ‘character, the appellant contested the petition alleging that the mandatory provisions of section 83(3) of the Representation of People Act not having been complied with at all, the petition should be dismissed in limine without going into the merits of the case. Though the High Court found -as a fact, that a large ‘number of ‘mistakes were there in ‘the copy of the election. pétition supplied to the appellant. Yet, as they were of a superficial and insignifi- ‘cant nature bordering. on clerical or typing mistakes, on the whole, there was a substantial compliance of the. provisions of Section 81(3) of the Act. Hence the i appeal against the interlocutory order.
‘% Allowing the appeal and dismissing the election Petition, “the Court,
“HELD : |: LA perstia! ‘of Sections 81(3). and 86 of the - Representation of the People Act réveals ‘that the- ‘statute intended that before an election petition can’ be entertained, the copy sent to the elected candidate must be a true copy, fiiling which there would. be'a serious disobedience of the mandate contained in —
_ 8.8103) which- would be fatal’ to ‘the maintainability of the said peition. (281 F}
1:2 It is now well settled by a large catena of authorities of this Court that the electoral process by which the verdict of the people hasbeen given is a sacrosanct one and cannot be lightly set at naught unless the grounds mentioned in the Act for setting aside an election are held to be proved. ' In these circumstances, it is manifest that the provisions of s.81(3) of the act should be gonstrued to the letter
_and spirit of the law because if the election petitioner does not give full and complete notice of the allegations made against, the returned candidate, he runs the. risk of his Petition being dismissed in limine. (281 G-H]
..
aT
M.K.- PANDEY v. BAIDYANATH "279
2 ona careful consideration and scrutiny of the law on the subject, the
" folowing principles’are well established.;.
(1). that where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes -which are of no consequence, the petition cannot be dismissed straightway under s.86 of the Act, [283 Fl an
—
(2) A true copy means a copy which is wholly and substantially the same as . the original and where there arc insignificant or minimal mistakes, the court may not také notice thereof, [283 G] oo os
(3) where the copy contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has béen a substantial comptiance of the provisions of s.81(3) of the Act, [284 A] .
(4) Prime facie, the statute uses the words “true copy” and the concept of substantial compliance cannot be extended too far to include serious or-vital mistakes which shed the character of a true copy so that the copy furnished-to the returned candidate ‘cannot be said: to be a truc copy within the meaning of s. 810) of,the Act, and [284 B] |
(5) As s.81(3) is meant to protect and safeguard the sacrosanct electoral process so as not the disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said aii (284 C] :
Mirarka Radhey Shyam Rani Kumar v. Roop Singh ‘Rathore & Ors. [1964] "3 SCR 573; Jagat Kishore Prasad Narain Singh v. Rajendra Kamar Poddar & Ors. (1974] t SCR 821; Satya Narain v. Dhuja Rain & Ors., [1974] 23 SCR 20; Sharif-ud- Din v. Abdul Gani Lone, (1980].1 SCR: 1177: M. Karunanidhi etc: ete. v. HV. Hande & Ors. ete. etc. [1983] 1 SCALE 344 referred to. [284 D-E; 285 G; 286 A; 285 C]
, 3. la the instant case, the mistakes in the copy supplied to the returned candidate related to corrupt practicés, have to be proved to the hilt just like a criminal charge and any mistake which contains an element of vagueness would immediately vitiate the clection petition and merit its -dismissa! under's.86 of the. Act. Among
- ‘the many more mistakes given in Schedule I, the few selected items themselves are vital and may seriously ' prejudice the dfence of theappellant because it will be . very difficult for bim to find out the persons, named. in the copy supplied to hima . who are said to have indulged in corrupt practices at his instance. The present case is a much*worse case than Murarka Radhey Shyam Ram Kumar’s case (supra) where only a slight difference in the title fed this Court to hold that the mistake was a yital one was a valid one. Further, the omission of names cannot be said to be a typing mistake but a very vital and serious on which is sufficient to entail the dismissal of the election petition, {284 D-E; 285 G; 286 A; 285 C]
CLVIL ‘APPELLATE Turispierion Gvil Appeal No. 5307 of 1983
Appeal by Special leave from the Judgment and Order dated the 7th January, 1983 of the Patna High Court in Election Petition
- . . . * referred to as the ‘Act’.) >,
280 | — supretee couRT REPORTS , [1984] 2 s.c.r.
yt
No, 48 of 1980).
.
SN. Kacker, LR. Singh and Gopal Singh for the Aptian
RK. “Garg and DK. Garg for the Respondent,”
The Fudgment of the Court was delivered by
- FAZAL Au, J, By Order dated November 29, 1983, we had allowed, oo the appeal.” We now, Proceed to give the reasons for the said Order.
This election appeal is directed against. an interlocutory. Order dated January 7, 1983 passed by.the Patna High Court overruling a. - preliminary objection taken by the appellant (elected candidate) that the election petition of -the respondent (election petitioner) should be dismissed straightaway under the‘provisions of 8:86 of the Representation of the People. Act. 1951—as amended uptodate—(here’ nafter
. o.
The: appellant’s case is that in the gencral election held in’ June. 1980 he fought as.a Congress G) candidate from Harlakhi Assembly
" constituency in Bihar in which *he was declared elecied, ‘defeating.
the respondent who filed the.election petition in the High Court. He further submitted that the copy of. the clecfion ‘petition. served on : -him contained a large numbet of mistakes in respect of persons through whom corrupt practices were alleged to have been-practised by the appellant during -the. election.. He contended that in view of the very large number of mistakes, which were of a very vital character;
fhe mandatory provisions, of s. 81 (3) Sf the Act were not complied “with at’ all, which.infirmty by itself would bé sufficient to dismiss the election petition in limine without going inlo , the merits. of the
"case.
7 . The stand taken by the respondent was that the mistckes were, undoubtedly there -but they were of a minor and significant nature and did not ‘affect his casé on merit, ’ -
The Jearned Judge of the High Court found asa fact that a large -
* number of mistakes were there in the copy of the election petition |
‘supplied to the appellant but as they were ofa superficial and insignificant nature bordering on clerical or typing mistakes, on the whole
_ there was a‘ substantial compliance of the .provisions of s.81(3y of, ' the Act. The leatned Judge has entered into a detailed discussion of _
M.K, PANDEY ¥. BAIDYANATH (Fazal -4li, J.) ~ 289 the various decisions of this Court and also of High Courts and has correctly held that the provisions of s.81(3) are mandatory and if the. ‘court finds that, they have not been complied with it has no alternative but to dismiss the election ‘petition .straightaway, Unfortunately,
" however, in the process of applying the principles laid ‘down by this * * Court he has completely’ glossed over the nature of the mistakes by describing them-as merely clerical or typing ones. Ona perusal.of - — the aforesaid: mistakes (listed at pp. 64-65 of the “Payerbook) they ‘do not appear to be so, -Section 81(3) of the Act runs thus :
8}. Presentation of petitions .
» 3) Every election petition shall be accompanied by. as many copies thereof ds. there dre 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.”
- The consequence of. non- compliance of this. section hes. been : mentioned i ins, 86(1) which may be extracted thus 7 -
= 436, 2 Trial of election petitions (). The High Court shall dismiss : an election petition oo which does not comply- with ‘the provisions of secticn 8l cr.
ae. section 82 or section VW” sos °
*
A perusal of thé above reveals that the statute intended that. before an election petition can be entertained; the copy: sent 10 the. elected candidate must be a true copy, failing which there would be -
. & serious disobedience of the mandate contained in s.81(3) which "would be fatal to the maintainability of the said petition. ; . \ ,
It is now well settled by. a Jarge catena. of autheritics of this Court that the electoral precess by: wheih the Verdict of the ‘people has been given is a sacrosanct ene and cannot ke‘hightly set at naught unless the grounds mentioned in the Act for setting aside an election are held to be ‘proved. Jn these circumstances, it is manifect that the . Provisions of s.81(3) of the Act should be construed to the letter and spirit of the law because if the election petiticner does not give full, ”
‘and coniplete notice of the allegations made against the returned, candidate, he ‘uns the ‘tisk of his _petition, being dismissed in limine. :
*
282 | SUPREME COURT REPORTS - . [1984] 2 S.C.R.
In‘ the instant case, it is the admitted case of the parties that the . . mistakes in the copy supplied to the appellant related to corrupt, practices indulged in by him through various persons who have been named at pages 64-65 of the Paperbook. In Murarka Radhey Shyim Ram Kumar v. Roop Singh Rathore & Ors.™ this Court made the
. following observations :--- s “Having ‘regard to the provisions “of Part Vi.of the Act. we are of the viewthat 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 truc one is whether any varition trom the original i is ‘calculated to mislead an ordinary person.”
In other, words, this Court merely meant to indicate that where the variation is-so minimal and insignificant that it is incapable of misledding any person as to the true purport of the allegation, it
~ would be a substantial: compliance of. the provisions of s.81(3) of
‘the Act. The High C Court has largely relied on the ratio of this particular case. . ;
There can be no dispute, regarding the principle laid down by this Court but the main difficulty.arises when-we approach the facts of a particular case in order to find out whether the copy supplied to the returned candidate is really a true copy or not.
we e
In Jagat Kishore Prasad Narain Singh y. Rajendra Kumar Podda & Ors. the same principle was laid down, In this case, the mistake’
was that in the election petition it was stated that meney was offered. ‘to one Jetha.Kisku by Munshi Hansda but in the copy served on the ‘returned candidate instead of Munshi Hansda the name of Paul
Hansda was mentioned. Apparently, the mistake was a verbal one but this court held that it was sufficient: to prejudice the defence and accordingly came to the conclusion that the petition was liable to be dismissed under s.86 of the Act.
’
“We shall presently show that in the instant case the mistakes were of a greater nature than those with which this Court was dealing
7 (1) [1964] 3 S.C.R. $73. (2) [1971] 1 S.C.R. 821.”
¥
M.K. PANDEY ¥. BAIDYANATH (Fazal Ali, J.) "283 with in the aforesaid case. In Satya‘ Narain V, Dhuja Ram & Ors. . this Court clearly pointed out that where the first. part of s.81(3) was i not complied with, the provision being a peremptory one, total non-:
_ compliance with the same would. entail dismissal of the election peti- - tion under s.86 of the Act. In a later case in’ Sharif-ud- Din’ v. Abdul ~ Gani Lone®? this Court observed thus -
“tt: is true that section 89(3) of ‘the Act. is purely > procedural in character and that ordinarily procedural law - ' should not be given that primacy by caurts as would defeat the ends of justice, But if a law even though it may be procedural in character insists that an act must be dene in a ‘particular manner and further provides that certain con- ‘sequences should follow if the act is not done in that manner, _ courts have no-option but to enforce the Jaw as it is,”
In a latest decision of the Court in M. Karunanidhi ete. etc. v- H. V. Hande & Ors. etc. etc.,®) the following observations were made :
“Tt is Obvious that the photograph was a part, of the \ averment contained in paragraph 18(b). In the absence ‘of the photograph the averment. contained in paragraph 18(b) ‘Would be incomplete. The photograph referred to in paragraph 18(b) was therefore an integral part of the ~ election petition. lH follows that there was total non-com- ry pliance with thé requirements of sub-s, (3) of s.8] of the Act _ by failure to. serve > the appellant with a copy of the electién ‘ petition.” » Ona careful consideration and scrutiny of the law on the © subject,
- the following principles are well established ;
1) that where the copy of the election petition served on ww the returned candidate contains only clerical. or typoa graphical mistakes which are of no, consequence, the - petition cannot be dismissed straightaway under s. 86 ‘of the Act,
2) A true copy means a copy which is wholly and substan- "tially the same as the original and where there are insignificant or minimal‘ mistakes, the court may: not take .
Y. : notice thereof, . t a . ' Gy [1974] 3 SCR. 20. (2) (1980] 1 S.C.R. 1177.
(3) {1983] 1 SCALE 344.
._
284 . . 7 {SUPREME COURT REPORTS : “a 2 s. CR.
3) where the copy’ contains important omissions or dis: crepancies of a vital nature,- which are’ likely to cause * , prejudice * to the defence of the. returned candidate,” _ it cannot. be said that there has been a. substantial com- ‘ptiance of the provisions of s. 81(3) of the Act. * mA 4) Prima facie, the statute , uses: the. word’ “true copy”. and the concept of ‘substantial compliance cannot. be extended too far to include serious or vital thistakes ‘ which shed the character of a true copy so that the copy ~ furnished to the returned candidate cannot be said to he a tue copy within the meaning of s. 81(3) of the Act, and - 5) As $813). is meant to protect and safeguard the sacrosanct -electoral process so as not to disturb “the. verdict of the voters, there is no toom,for giving a ‘liberal or broad interpretation to the provisions of the " said section. ‘ oy ; ,
We might ‘mention here* that i in the instant case the mistakes in the copy’ supplied to the returned candidate related to corrupt practices which, as has been: held by this Court in.a large number of cases, have to be proved to the hilt just like a criminal charge and any mistake which contains an element of vagueness ‘would immediately vitiate the election petition and merit. its dismissal. under. 5. 86 of the ‘Act.
“fn the view v that we e take, it. is not necessary for us to wade through -.a detailed disgussion of the mistakes because a few mistakes pointed.
out by the Judge himself clearly reveal that they were of a very vital and material nature so as to mislead the returned. candidate and prejudice’ him.in his defence. Schedule J to the election: petition contained the list of persons through whom the corrupt practices were alleged to have been committed; An analysis: of these ‘mistakes may be placed in three cafegories—(1) where there is complete omission
‘of some -names which have been mentioned in the: eléction | petition but not in, the copysupplied to.the returned candidate, (2) giving
‘Coming to the first category,. a few exaniples will suffice .to
TA
“absolutely wrong names which are bound to mislead the. appellant:. ~ ‘in his ‘defence as the persons bearing the Wrong names could not be traced out, and (3)’some names given in the petition appear to be _ mates but in the copy given to the appellant they appear to be females.
MLK. PANDEY ¥. BAIDYANATH (Fazal Ali, J), 285 ne . . : , *. ‘ illustrate our point: ~ 7°. |
Si. No. -in i. Name in ‘the os . Name in the Schedule I~ — _ original petition copy
17 . _ +, +1 Yogendra Jhas ~~ Omitted.
37 , * Bulari Deyi Omitted
188. ' Bal Bhogia Oo, Omitted — . 4450 . Ramdeo Paswan ~ . - Omitied
486. , a Tugeshwari Devi - Omitted
The omission: of names carinot be said to be a typing mistake but a very vital and serious one whichis sufficient to entail the-dismissal of the election petition. “Under the second categoy (giving wrong nares), the following names may: “be mentioned » “3
SI. Noi,in. Name in original i" Name in copy * Séhedule I - ‘ ae 42, 7 __Nanpuran Mitra © - Mahpuran Mitra: 62 - BilasJha - + + >. | Biml Sha” 105... Dukhi Devi =. Sudama Devi 179 Bhekai Paswan , Mokai-Paswan 385 Mauki 7 7 Tetri an
440 - . Kalasiya . ~ Kalya. a
- 466 Kalish Sandra’ Jha . Kali Janwa Tha 479 ' Gayatri Devi © =. Ss Sati Devi 498 -. * — _Udit Mishra oS Udit Mitra 3790s Yashodara Mishra .° * Yashoda Devi. | 679». Shulatia Devi Kaushilya’ Devi Third Category foot t
. 29 , Kiran Jha * » Kiran Devi
" "(May be a male or a female) (Must be a fémale) ~ 444 . Dularia. Ramdeo: Paswan
675. Rajsutiair Yadav "2 °° Rajsunari Yadav
- There are many more mistakes given in schedule I but we have selected only those which are vital.and may seriously prejudice: the
“defence of the appellant ‘because it will be very difficult for him to find
_. out the persons, named in the copy supplied to him; who. are said to te
Te.
have indulged in ‘corrupt practices at his. instance.
_ Thus, on an overall consideration: of the facts and circumstances..
286 SUPREME COURT REPORTS “~ {1984] 2 s.c.r.
of this case, we are unable to agree with the High Court that the mnistakes in the copy were either verbal, typographical or cleriéal. - The present case appears to be a much worse case than: Murarka’
Radhey Shyam Ram Kumar’s case (supra) where only a slight difference _ in the title ree this Court tc to hold that the mistake was a vital one, . 7
- We are, thérefore, of the opiniongthat the Hi gh Court committed ~
“a serious error of law in holding: that there had been a substantial compliance of the provisions of s.81(3) of the Act so as to exclude ©
:_ the application of s. 86 of the Act.
* . ’ :
For, the reasons given above, we allow the appeal and dismiss ‘the election petition filedin the High Court but in the circumstances without any order as to costs. As a result of our judgment, nothing now survives in the High Court. |
*.
SR. | Fe Appeal alloived.
aa