Sh. Harcharan Singh JOSH v. Sh. HARI Kishan

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7936 of 1995. From the Judgment and Order dated 26.5.95 of the Delhi High Court in E.P. No. 6 of 1994.

R.C. Pathak, Ravinder Bagai, R.K. Gupta, Ms. Prerna Tandon and Ms. Naresh Bakshi for the Appellant. R.P. Bansal, Pramod Dayal, Ajay K. Jain and Shashi Bhushan for the Respondent.

The following Order of the Court was delivered : This appeal arises against the order of the Delhi High Court made on 26.5.1995 in Election Petition No. 6/94. The appellant is an unsuccessful candidate in respect of one of the Assembly Constituency known as No. 64, Sadar Bazar, to the National Capital Territory of Delhi Assembly. The elections were held on 6th November, 1993. The respondent secured 27126 votes while the appellant secured 25786 votes. The latter filed an election petition on diverse grounds including corrupt practices under Section 123 of the Representation of the People Act, 1951. The High Court dismissed his election petition under Section 86 of the Act on its findings on four issues framed in that case. While upholding the findings in favour of the appellant on issued Nos. 1 to 3, it held that the requisite number of true

H.S. JOSH v. HARi KISHAN copies of the eloction petition were not supplied lo the respondent in compliance with Section 81 (3) of the Act. Reasons in support thereof arc some grave mistakes including omiS>ion to supply full text of page No. 18 of the election petition. Another contention raised by the respondent was that the affidavit is not a true copy of the affidavit which was filed in the Court along with the election petition. Though it was rc.iccted by the High

Cou_rt as one of the grounds against the rejection of the election petition, the respondent has filed cross objections. It is not necessary for us to go into the grounds on which the election petition was dismissed by the High Court. Suffice it to state that the objections raised by the respondent regarding non-supply of the true copy of the affidavit is a formidable objection which merits acceptance in view of the recent judgment of this Court in Dr. Smt. Shipra Etc. Etc. v. Shanti/a/ Khoiwal Etc. Etc., JT (1996) 4 SC 67. Therein the copy of the affidavit supplied to the respondent was not attested by the Oath Commissioner. This Court, after considering the entire case law, held that the affirmation before the prescribed authority in the affidavit and the supply of its true copy is mandatory so that the returned candidate would not be misled in his understanding that imputation of the corrupt practices were sole1nnly affirmed and duly verified before the prescribed authority. For that purpose, Form 25 prescribed by Section 83 requires verification before prescribed authority. The concept of substantial compliance has on applicalion in such a case. It is seen that the copy of the affidavit supplied to c the respondent does not contain the affirmation by the Oath Commissioner. Under these circumstances, the defect is not a curable defect. Therefore, the dismissal of the election petition on this ground is sustainable in law. Learned counsel for the appellant placed reliance on an order of this Court in C.A. No. 925 of 1995 (Boota Singh v. Sher Singh & 01>.), decided on March 13, 1996. It would be seen that a Bench of two Judges of this

Court has not expressed any conclusiYe opinion on the contro\'ersy. On the other hand, this Court remitted the matter to the High Court for reconsideration in accordance with la\v. Under these circumstances, the ratio therein is of no assistance to the appellant. The appeal is dismissed. But, in the circu1nstances \vithouL costs.

G.N.

Appeal dismissed.