Appeal No 419 of 1973
From the Judgement and Order dated the 22nd December 1972 of the Punjab and Haryana High Court at Chandigarh in Election Petition No 2 of 1972
Hardyal Hardy V P Chaudhry Jitendra Sharma and Sharma Chaudhury and Rathi for the appellant
M N Phadke Bakhtawar Singh D N Misra and J B Dadachanji for respondent No 1
The Judgment of P JAGANMOHAN REDDY and P K GOSWAMI JJ was delivered by Goswami J section N Dwivedi J gave a separate Opinion
GOSWAMI J
This appeal under section 116A of the Representation of the People Act 1951 briefly the Act is directed against the judgment and order passed by the High Court of Punjab and Haryana in Election Petition No 2 of 1972 dismissing it on the preliminary ground that the appellant had failed to comply with the mandatory requirement of section 813 of the Act inasmuch as the requisite number of spare copies of the petition for the respondents were not filed along With the petition in the High Court
It was further held by the High Court that the said defect could not be cured subsequently even within the period of limitation prescribed for filing the election petition
The High Court further held that the spare copies were actually filed beyond the period of limitation
The facts may be briefly stated
In the general election to the Haryana Legislative Assembly held on March 11 1972 the appellant and the four respondents were the contesting candidates for the Safidon Assembly Constituency No 30 two candidates having already withdrawn from the contest
The counting of votes took place on March 12 1972 and on the following day
The counting disclosed that the first respondent obtained 19570 votes as against 19462 votes secured by the appellant
The first respondent was therefore declared elected on March 131972
The appellant filed an election petition in the High Court challenging the election of the first respondent on several grounds of corrupt practice within the meaning of section 123 of the Act
It is not necessary for the purpose of this case even to detail these
The election petition was presented by Mr R section Mittal Advocate incharge to the Deputy Registrar Judicial of the High Court on April 18 1972
The same was ordered to be put up for scrutiny on April 24 1972
It is admitted that the application was filed on April 18 1972 without the requisite spare copies and was therefore incomplete on the date of presentation
No schedules were also filed along with the petition but that point is not pressed before us by the respondent s counsel
It is also admitted that the limitation for filing the election petition was up to April 27 1972
According to the appellant the spare copies were filed with the Superintendent of the Election Branch in the afternoon of April 24 1972 well within the period  of limitation
22 It may be necessary to briefly note the sequence of events for the purpose of appreciating the controversy raised between the parties as noted earlier the election petition was presented personally by Mr Mittal without the spare copies on April 18 1972 and the Deputy Registrar had ordered it to be put up on April 24 1972 for scrutiny according to the rules of the High Court
When the petition came up for scrutiny before the Deputy Registrar on April 24 1972 Mr Mittal appeared and requested for time to remove the defects pointed out by the office
It may be appropriate to extract that particular order  Present Shri R section Mittal Advocate
He has requested time to remove the defects pointed out by the office
Let it be refixed on 28 4 72 after the defects had been removed as agreed to by the counsel
Sd D D Khanna 24 4 72 The next order passed by the Deputy Registrar on April 29 1972 runs as follows Shri R section Mittal has informed me on the phone that he is indisposed and as such the case may not be taken up for scrutiny to day
Put up tomorrow the 29th April 1972 for orders
Counsel may be informed
Sd D D Khanna 28  4 72 
The High Court has observed that it is common case of both side that by the time the case was placed before the Deputy Registrar on April 29 1972 the spare copies of the petition had been filed by the petitioner and the other defects had also been removed
The final order of scrutiny passed by the Deputy Registrar on April 29 1972 is in the following terms Present Shri R section Mittal
 Advocate for petitioner
The petition was filed on 18 4 72 and the result in this case was declared on 13 3 72 hence it is within time
The petition is accompanied with the security receipt in the sum of Rs 2000 deposited in this Court before filing of the petition under the rules
The petition was scrutinised and as the defects pointed out on the previous date have been removed it is now prima facie in order
Issue notice for scrutiny of service for 22nd May 1972 and for settlement of issues for 26th May 1972
Sd D D Khanna 29 4 72
23 The matter ultimately came up for hearing before the learned single Judge to whom this election petition was assigned
Several preliminary objections were taken by the sole contesting first respondent
The other respondents did not enter appearance  We are concerned with only one preliminary objection namely that the petition was not in conformity with section 813 of the Act inasmuch as the requisite spare copies thereof were not enclosed with the petition when it was originally presented on April 18 1972 and that the election petition was liable to be dismissed
The learned counsel for the appellant Mr Hardyal Hardy has made only the following two submissions before us  1 The requirement under section 813 of Representation of the People Act 1951 that spare copies of an election petition shall accompany the petition is directory and not mandatory 2 It is substantial compliance with the said directory provision if the spare copies of an election petition inst ead of accompanying the petition are filed before the petition is laid before the Judge for orders or even within the time that may be granted by the Judge for the purpose
Before the High Court both sides examined witnesses
To establish his case the appellant examined himself as PW 6 the Election Assistant Shri O P Popli PW 3 Deputy Registrar Shri D D Khanna PW 4 Shri R section Mittal Advocate PW 5 Shri Adish Chand Jain Advocate PW 7 Shri Jai Singh Dhillon Advocate PW 9 and Shri Jaswant Rai Advocate PW 10
All the Advocates except Shri Mittal were from Jind
Shri Mittal is an Advocate practicing in the High Court
Although the appellant summoned Shri Harsukh Rai Hantroo Superintendent of the Election Branch and was present  in court on 20th July 1972 when the first four witnesses were also examined Shri Mittal who was conducting the case on behalf of the appellant made a statement before the court that he gave up Shri Harsukh Rai Hantroo as unnecessary 
The respondent s counsel however submitted that he should be examined as a court witness and the court ordered for his examination on that very day observing that in the interest of justice that the Superintendent of the Election Branch who was the only other official working between the Deputy Registrar Judicial on the one side and PW 3 on the other should also be examined to clarify the matters so far as possible
 The respondent examined himself and R W Ch
Hari Ram Senior subordinate Judge cum Chief Judicial Magistrate Jind
The appellant sought to establish before the High Court that the spare copies were submitted on April 24 1972 by relying upon the endorsement of Shri Mittal objections removed R section Mittal Ext PW 51 below the order of the Deputy Registrar of April 24 1972 which we have already set out
There is no date given by Shri Mittal when her made his endorsement in the order sheet of the Registry
PW 3 who had initially scrutinised the petition and found the defects was on leave 24 on April 24 1972 and the Superintendent CW 1 was only present
According to Shri Mittal he
went to the Election Office along with the appellant and his Clerk Manphool Sharma and filed these papers at 2 00 P M on April 241972 and made also the above  endorsement Ext
PW 511 Although however Shri Mittal was conscious that the papers had to be filed within time to save the defective petition from being dismissed curiously enough he did not take the necessary care to get any official endorsement in the order sheet by the Deputy Registrar or even by the Superintendent of the Election Branch to the effect that the documents were filed and defects were removed on that day namely on 24th April 1972 notwithstanding the further fact that he had earlier at 1100 AM on the same day requested the Deputy Registrar for time to remove the defects and the next date was fixed on April 28 1972
In face of the order of the Deputy Registrar of 24th April Shri Mittal s responsibility as counsel was greater than he seemed to have thought
On April 28 1972 Shri Mittal informed the Deputy Registrar over the phone that he was indisposed and requested for time till the next day which was given
He deposed that he had even informed the Deputy Registrar that scrutiny could be made in his absence since the defects had already been removed
On this particular aspect of the matter the Deputy Registrar was silent in his evidence and although it was Shri Mittal again who personally examined the Deputy Registrar in court he never put this question to him with regard to his informing him over the phone about removal of defects on 24th April
Again from Shri Mittal s evidence it appears that although he was feverish he actually came to the Election Office on April 28 1972 in connection with Election case No 3 of 1972 Sagar Ram vs Banarsi Das  Ors and removed certain defects in that case on that day namely  28th April 1972 although that case was set down for April 29 1972 which date had been fixed by the Deputy Registrar in his presence on April 24 1972
There is an endorsement in that case by Shri Mittal this time with date 28h April 1972 below the order of the Deputy Registrar dated April 24 1972 to the effect objections removed
The records of that case were also called for in the High Court and were also shown to us here
It is pointed out that the endorsement in that case with date and the endorsement in Ext
PW 51 of Shri Mittal are with the same pen and ink as is even admitted by Shri Mittal
The respondent therefore attaches great significance on the omission of the date in Ext
PW 511 and describes the endorsement as a suspicious entry
it is strenuously submitted by the respondent that the papers were not submitted on April 24 1972 as alleged
Since Shri Mittal asserted in his evidence that he along with the appellant filed the spare copies of the petition in the afternoon of April 24 1972 the respondent by examining the Subordinate Judge RW 1 sought to establish that the appellant as advocate actually appeared in his court at Jind on April 24 1972 in a contested civil suit Kati Ram vs Ram Tirath etc
Civil Suit No 422 of 1967 on behalf of the plaintiff where the defendent was cross examined by him
The appellant denied this and stated that his junior Shri Jai Singh Dhillon PW 9 actually conducted the case on that day
This point was also sought to be supported by examining two other Advocates appearing 25 on behalf of the defendant in that suit namely Adish Chand Jain PW 7 and Jaswant Rai PW 10
It appears that Shri Dhillon even did not file his vakalatnama in that suit and at one stage when he had appeared on behalf of the appellant in that suit it was recorded in the order sheet as was the practice of that court that he was appearing as proxy for the original counsel
There was however no such entry in the order sheet that he appeared on behalf of the appellant on April 24 1972
From the evidence of RW 1 who deposed from the records of the suit produced in the court and gave some convincing reasons the High Court was reasonably and in our opinion rightly satisfied that the appellant appeared in the court of the subordinate Judge Jind on April 24 1972
The High Court has also rightly held that PWs 7 and 1 0 gave hazy evidence from their memory with regard to the appearance of the appellant in the suit on April 241972
The High Court also found several infirmities and contradictions in the evidence of Shri Mittal
It is nobody s case that if the appellant appeared in the suit at Jind on 24th April he could be present in the Election Branch at Chandigarh at200 PM on that day
PW3 has correctly deposed that the words objections removed  in the handwriting of Shri RS Mittal Advocate and the signature of Shri R section Mittal thereunder were not there when he made the endorsement informed  Ext PW 31 on April 28 1972
Even the Deputy Registrar has admitted in his evidence that the endorsement objections removed in the handwriting of and above the signature of Mr R section Mittal was not made in his presence
He also stated that I do not recollect having seen this endorsement at the time I passed my order dated April 28 1972
The evidence of the Deputy Registrar consistent with that of PW 3 is rightly preferred by the High Court to the evidence of Shri Mittal of the appellant and even of the Superintendent of the Election Branch who also deposed from memory
After again carefully examining the evidence of all the witnesses on this point we have no reason to differ from the conclusion of the High Court that the requisite spare copies of the election petition were not submitted by the appellant on April 24 1972
We will therefore have to decide the first submission of the learned counsel for the appellant on the basis that the spare copies were not filed within the period of limitation
The short question is whether section 813 of the Act is mandatory and if so whether non compliance with the same will visit the election  petitioner with the penalty of dismissal of his petition under section 861 of the Act
This question was mooted in Jagat Kishore Prasad Narain Singh vs Rajindra Kumar Poddar and Others1 but the Court did not find it necessary to decide the same
Whether a particular provision in a statute is mandatory or directory has to be construed from the scheme and object of the provisions 1971 1 SCR 821
26 This Court observed in Raza Buland Sugar Co Ltd vs Municipal Board Rampur1 as follows The question whether a particular provision of a statute which on the face of it appears mandatory inasmuch as it uses the word shall as in the present case is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor
The purpose for which the provision has been made and its nature the intention of the legislature in making the provision the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory
The Privy Council also in Montreal Street Railway Company Normandin2 observed to the same effect The question whether provisions in a statute are directory or imperative has very frequently arisen in this country but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at 
Now there are two parts in section 813
The first part provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition
The second part relates to the manner in which such copy shall be attested by the petitioner under his own signature to be a true copy of the petition
We are concerned only with the first part in this appeal
Part VI of the Act deals with disputes regarding election
Chapter 11 therein provides for presentation of election petitions while chapter III for trial of election petitions
The right to challenge an election is conferred under the Act which is made in conformity with the provisions of Article 329B of the Constitution
It is well settled that it is a special right conferred under a self contained special law and the court will have to seek answer to the questions raised within the four corners of the Act and the powers of the court are circumscribed by its provisions
it is not a common law right and an election petition cannot be equated with a plaint in a civil suit
We may therefore immediately read the material sections 80 811 843 and 861 which run as follows 1   975
2  quoted in 1965 1 SCR at pages 975 976 27 Section 80 No election shall be called in question except by an election petition presented in accordance with the provisions of this Part Section 811An 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 fortyfive days from but not later 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 later of those two date section Section 813Every 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 of the petition
Section 861The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117
Explanation  An order of the High Court dismissing an election petition under this sub section shall be deemed to be an order made under clause a of section 98
Section 86 1 refers to three sections namely section 81 section 82 which deals with parties to the petition and section 117 of the Act providing for security for costs
While dealing with section 117 of the Act this Court spoke through one of us Reddy J in Charan Lal Salhu vs Nandkishore Bhatt and others1 and held as follows  The right to challenge an election is a right provided by Article 329b of the Constitution of India which provides that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature
The right conferred being a statutory right the terms of that statute had to be 1  533
28 complied with
There is no question of any common law right to challenge an election
Any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes
If no discretion is conferred in respect of any of these matters none can be exercised under any general law or on any principle of equity
This court has held that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it
In N PPonnuswami vs Returning Officer Namakkal Constituency and Others 1 it was pointed out that strictly speaking it is the sole right of the legislature to examine and determine all matters relating to the election of its own members and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction that special jurisdiction should be exercised in accordance with the law which creates it Similarly in Krishan Chander vs Ram Lal 2 dealing with section 82b of the Act and examining the scheme and the object of the pro  visions this Court again held the same as mandatory
This Court observed The provisions of sec
82b would avoid any such delay as they make obligatory for a person filing an election petition when he makes an allegation of corrupt practice against any candidate to make him a party on pain of the petition being dismissed under section 861 if he omits to do 
This then is the rationale underlying the mandatory requirements of section 82b
It is true in Ch
Subba Rao vs Member Election Tribunal Hyderabad3 reiterating two earlier decisions viz Kamaraj Nadar vs Kunju Thevar4 and Murarka vs Roop Sing5 the Court in  view of the peculiar facts add circumstances of that case and the nature of the defects held that section 813 was substantially complied with and left open the wider question whether section 813 or any part thereof is mandatory or directory
In a later decision in Dr Anup Singh vs Shri Abdul Ghani and another6 which followed Subba Rao s case supra this Court observed  An exactly similar matter came to be considered by this Court in Ch
Subba Rao vs Member Election Tribunal 3
In that case also the copies were signed by the petitioner but there was no attestation in the sense that the words true copy were omitted above the signature of the petitioner
This Court held that as the signature in original was there in the copy the presence of such original signature in the copy was sufficient 1  2  769
3  5  41 29 to indicate that the copy was attested as true copy even though the words true copy were not written above the signature in the copies
This Court further held that there was substantial compliance with section 813 of the Act and the petition could not be dismissed under section 903
Keeping in the forefront the proper functioning of democracy the principal object of the Act is purity of elections
When therefore an election of a returned candidate is challenged under the Act expeditious trial of the election dispute is sought to be enforced by the legislature making all safeguards against delay
Trial has to be necessarily expedited to rid the candidate as well as the constituency interested in the result of the election of any taint or suspicion of corrupt practices which are again clearly enumerated in the Act
To take therefore another important object of the Act viz expeditious disposal of an election petition by section 866 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
Again under section 867  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
Further section 871 introduces the Civil Procedure Code only subject to the provisions of the Act and of any rules made thereunder
Section 872 makes a deeming provision for application of the Evidence Act only subject to the Act
Therefore there is no scope for free play in the application of the provisions of those two Acts
The very object of expeditious trial will be defeated if the presentation of  the election petition should be treated casualty and lightly permitting all kinds of devices to delay the ultimate trial
The purpose of enclosing the copies of the election petition for all the respondents is to enable quick despatch of the notice with the contents of the allegations for service on the respondent or respondents so that there is no delay in the trial at this very initial stage when the election petition is presented
If there is any halt or arrest in progress of the case the object of the Act will be completely frustrated
We are therefore clearly of opinion that the 1st part of section 813 with which we are mainly concerned in this appeal is a peremptory provision and total non compliance with the same will entail dismissal of the election petition under section 86 of the Act
We are therefore not required to consider the second submission of the learned counsel for the appellant with regard to substantial compliance made on the basis of the provisions of section 813 being directory
We may only add here that in the absence of any provision under the Act or the rules made thereunder the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation 30 provided for under the Act
It may be noted that section 169 of the Act provides that the Central Government is the authority to make rules after consulting the Election Commission and in sub section 3 thereof the rules have to be laid before each House of Parliament in the manner provided therein
The only reference to the High Court Rules is found in section 117 of the Act
At any rate we do not feel called upon to pass on the High Court Rules referred to in the judgment of the High Court in this case In the result we find no reason to interfere with the decision of the High Court dismissing the election petition
The appeal is dismissed with costs
DWIVEDI J
I agree with my brethren that the requisite copies of the election petition were not filed in Court within the period of limitation by the appellant
I am constrained also to agree that for this procedural fault his election petition is liable to be dismissed in view of the decision of the Court in Jagat Kishore Prasad Narain Singh vs Rajindra Kumar Poddar and others1
In that case Hegde J said 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 s86 of the Act
 It makes me sad to read this requiem for this election petition
Over a century ago a slip in procedure by a litigant meant denial of justice to him
 Right down to the nineteenth century the choice of the wrong writ involved the loss of the action even though all the merits were with the plaintiff
2 Gradually however courts subordinated procedure to the claims of justice
In Ma Shwe Mva vs Maung Mo Maung 3 Lord Buckmaster said  All rules of court are nothing but provisions intended to secure proper adminis tration of justice
It is therefore essential that they should be made to serve and be subordinate to that purpose
Speaking in the same vein Justice Ameer Ali said  Rules of procedure are not made for the purpose of hindering justice See Raja Indrajit Pratap Bahadur Sahi vs Amar Singh 4 Our decision restores that primacy of procedure over justice
It makes section 861 a tyrannical master
The rigidity of the rule of precedent ties me to its chains
My only hope now is that Parliament would make a just choice between the social interest in the supply of copies by the election petitioner along with his election petition and the social interest in the purity of election by excluding section 813 from the purview of section 961 of the Act
Appeal dismissed
VPS 1 1971 1 section C R 821
2 Holdsworth A History of English Law 9 248
3 AIR 1922 P C 249 at p 250
4 AIR 1923 P C 128 at P 135


Summary:
The first part of section 81 3 of the Representation of the People Act 1951 provider that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and section 96 1 provides that the High Court shall dismiss an election petition which does not comply with the provisions of section 81
The appellant filed an election petition challenging the respondent s election to the State Legislative Assembly but did not file the requisite number of spare copies within the period of limitation
The High Court dismissed the petition on the ground of non compliance with the mandatory requirement of section 81 3
Dismissing the appeal to this Court HELD Per P Jaganmohan Reddy and P KGoswami JJ Whether a particular provision in a statute is mandatory or directory has to be construed from the scheme and object of the provisions25H The right to challenge an election is conferred under the Representation of the people Act which is made in conformity with the provisions of article 329 b of the Constitution
It is a special right conferred under a self contained special law and the Court will have to seek answers to the questions raised within the four corners of the Act
The power of the court are circumscribed by the provisions
it is not a common law right and an election petition cannot be equated with a plaint in a civil suit
Since the principal object of the Act is purity of elections when an election is challenged under the Act expeditious trial of the dispute is sought to be enforced by the Legislature making all safeguards against delay in getting rid of any taint in the result of the election
But the very object of expeditious trial will be defeated if the presentation of the election petition should be treated casually and lightly permitting all kinds of devices to delay the trial
The purpose of enclosing the copies of the election petition for all the respondents is to enable quick dispatch of the notice with the contents of the allegations for service on the respondents
if there is any halt or arrest in the progress of the case the object of the Act will be completely
frustrated
Therefore the first part of section 81 3 is a peremptory provision and total non compliance with it will entail dismissal of the election petition under section 86
27H 99E G Jagat Kishore Prasad Narain Singh vs Rajindra Kumar Poddar and Others 1971 1 SCR 821 Raza Buland Sugar Co Ltd V Municipal Board Rampur  Montreal Street Railway Company vs Normandin  Charan Lal Sahu vs Nand Kishore Bhatt and Others   Ch Subba Rao vs Member Election Tribunal  and Dr Anup Singh vs Abdul Ghani   referred to
Per Dwivedi J The election petition is liable to be dismissed in view of the decision of this Court in Jagat Kishore Prasad Narain Singh vs Rajindra Kullar poddar and others 19711 1 SCR 821
But this makes section 86 1 a tyrannical master giving primacy to procedure over justice
But it is for Parliament to make a just choice between the social interest in the Supply of copies for expeditious disposal and the social interest in the Purity of election by excluding section 81 3 from the purview of section 96 1