1996 JTR(SC) 844
1996 AIR(SC) 3350 ; 1996 AIR(SCW) 2715 ; 1996 3 ICC 556 ; 1996 5 JT 643 ; 1996 3 RCR(Civ) 316 ; 1996 4 Scale 593 ; 1997 10 SCC 294 ; 1996 Supp1 SCR 682 ; 1996 2 UJ 569 ; 1997 KHC 1213 ; 1996 4 Supreme 407
1996(4) Supreme 407
SUPREME COURT OF INDIA
K. Ramaswamy, B.L. Hansaria and S.B. Majmudar, JJ.
Harcharan Singh Joshi -Appellant
versus
Hari Kishan -Respondent
Civil Appeal No.7936 of 1995
Decided on 23-4-1996
Counsel for the Parties :
For the Appellants : R.C. Pathak, Ravinder Bagai, R.K. Gupta, Ms. Prerna Tandon & Ms. Naresh Bakshi.
For the Respondents : R.P. Bansal, Sr. Adv, Pramod Dayal, Ajay K. Jain & Shashi Bhushan.
IMPORTANT POINT
In an election petition the affirmation before the prescribed authority in the affidavit and the supply of its true copy is mandatory.
Act Referred :REPRESENTATION OF THE PEOPLE ACT : S.83, S.81(3)
A) The relevant statutory provisions are Section 83 and Section 81(3) of the Representation of the People Act, 1951. Section 81(3) mandates that the returned candidate must be supplied with a true copy of the election petition, and the recent judgment emphasizes that the affirmation before a prescribed authority under Section 83 is mandatory. The concept of substantial compliance does not apply, and failure to affix the Oath Commissioner's attestation renders the defect non-curable.
B) Key legal principles include the mandatory requirement of supplying a true copy of the petition attested by the Oath Commissioner, the non-application of the doctrine of substantial compliance in election matters, and the upholding of election petitions dismissed on such procedural defaults.
Facts of the case:
The appellant was an unsuccessful candidate in the Assembly Constituency No.64, Sadar Bazar, Delhi Assembly elections held on 6th November, 1993. The respondent secured more votes, and the appellant filed an election petition on grounds including corrupt practices under Section 123. The High Court dismissed the petition under Section 86, primarily on the ground that the true copy of the affidavit filed in court was not supplied to the respondent.
Findings of Court:
The High Court's finding that the requisite number of true copies were not supplied is sustainable. The copy supplied lacked the affirmation by the Oath Commissioner, constituting a non-curable defect as per the recent precedent.
Issues:
Whether the failure to supply a true copy of the affidavit attested by the Oath Commissioner amounts to a curable defect and whether the dismissal of the election petition on this ground is sustainable.
Ratio Decidendi:
The omission to affix the Oath Commissioner's attestation on the copy supplied to the respondent is a non-curable defect, rendering the dismissal of the election petition valid under Section 81(3) of the Act.
Result:
The appeal is dismissed without costs.
A) The relevant statutory provisions are Section 83 and Section 81(3) of the Representation of the People Act, 1951. Section 81(3) mandates that the returned candidate must be supplied with a true copy of the election petition, and the recent judgment emphasizes that the affirmation before a prescribed authority under Section 83 is mandatory. The concept of substantial compliance does not apply, and failure to affix the Oath Commissioner's attestation renders the defect non-curable.
B) Key legal principles include the mandatory requirement of supplying a true copy of the petition attested by the Oath Commissioner, the non-application of the doctrine of substantial compliance in election matters, and the upholding of election petitions dismissed on such procedural defaults.
Facts of the case:
The appellant was an unsuccessful candidate in the Assembly Constituency No.64, Sadar Bazar, Delhi Assembly elections held on 6th November, 1993. The respondent secured more votes, and the appellant filed an election petition on grounds including corrupt practices under Section 123. The High Court dismissed the petition under Section 86, primarily on the ground that the true copy of the affidavit filed in court was not supplied to the respondent.
Findings of Court:
The High Court's finding that the requisite number of true copies were not supplied is sustainable. The copy supplied lacked the affirmation by the Oath Commissioner, constituting a non-curable defect as per the recent precedent.
Issues:
Whether the failure to supply a true copy of the affidavit attested by the Oath Commissioner amounts to a curable defect and whether the dismissal of the election petition on this ground is sustainable.
Ratio Decidendi:
The omission to affix the Oath Commissioner's attestation on the copy supplied to the respondent is a non-curable defect, rendering the dismissal of the election petition valid under Section 81(3) of the Act.
Result:
The appeal is dismissed without costs.
ORDER
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 copies of the election petition were not supplied to the respondent in compliance with Section 81(3) of the Act. Reasons in support thereof are some grave mistakes including omission 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 rejected by the High Court as one of the grounds against the rejection of the election petition, the respondent has filed cross objections.
2. 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. Shantilal Khoiwal etc. etc.1. 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 solemnly 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 no application in such a case. It is seen that the copy of the affidavit supplied to 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.
3. Learned counsel for the appellant placed reliance on an order of this Court in Boota Singh v. Sher Singh & Ors.2. It would be seen that a Bench of two Judges of this Court has not expressed any conclusive opinion on the controversy. On the other hand, this Court remitted the matter to the High Court for reconsideration in accordance with law. Under these circumstances, the ratio therein is of no assistance to the appellant.
4. The appeal is dismissed. But, in the circumstances, without costs.
Appeal dismissed.
********