Civil Appeal No 2005 of 1978 Appeal under section 123 of the Jammu and Kashmir Representation of People Act 1957 from the Judgment and Order dated the 6th September 1979 of the Jammu and Kashmir High Court in Election Petition No 3 of 1977 D V Patel Vineet Kumar and A Srivastava for the Appellant
Z A Shah M Veerappa J R Das and R N Nath for the Respondent
The Judgment of the Court was delivered by VENKATARAMIAH J
This appeal is filed under section 123 of the Jammu and Kashmir Representation of the People Act 1957 hereinafter referred to as the Act  by the appellant against the judgment of the High Court of Jammu  Kashmir in Election Petition No 3 of 1977 dismissing an election petition filed by him on the ground that he had not complied with section 893 of the Act
At the general election held in the year 1977 to elect members to the Legislative Assembly of the State of Jammu  Kashmir the appellant and the respondent were candidates for the seat to be filled from the Handwara Assembly Constituency
The respondent was declared as the successful candidate by the Returning Officer
Thereafter the appellant filed an election petition before the High Court of Jammu  Kashmir challenging the validity of the respondent s election on various grounds
The respondent raised two preliminary objections to the election petition 1 that the petition had not been presented in accordance with sub section 1 of section 89 of the Act and 2 that the copy of the election petition had not been attested by the appellant under his own signature to be a true copy of the petition as required by section 893 of the Act
The respondent contended that the petition was liable to be dismissed in view of section 94 of the Act which provided that the High Court should dismiss an election petition which did not comply with the provisions of section 89 or section 90 or section 125 of the Act
We are not concerned with the first ground as it has been held by the High Court that the petition had been validly presented in accordance with section 891 of the Act
The appellant while admitting that the copies of the election petition had not been attested by him under his own signature to be true copies of the petition pleaded that section 893 of the Act had been substantially complied with as the copies of the election petition had been signed by his advocate and that they had been authenticated to be true copies of the petition
On the basis of the above pleadings the High Court raised 1181 two preliminary issues one relating to the validity of the presentation of the election petition and the other relating to the effect of the absence of attestation of the copies of the election petition by the appellant
After recording the evidence led by the parties on the preliminary issues and hearing the counsel for the parties the High Court disposed of the petition by the judgment under appeal
In the course of its judgment while the High Court upheld the case of the appellant that the petition had been validly presented under section 891 of the Act came to the conclusion that the petition was liable to be dismissed as required by section 94 of the Act on the ground that section 893 of the Act had not been complied with by the appellant
Accordingly the petition was dismissed
Hence this appeal
Section 893 of the Act reads 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 true copy of the petition Section 941 of the Act provides The High Court shall dismiss an election petition which does not comply with the provisions of section 89 or section 90 or section 125
Section 893 and section 941 of the Act correspond to section 813 and section 861 respectively of the Representation of the People Act 1951 Act No 43 of 1951 hereinafter referred to as the Central Act 
There is no difference between the language of section 893 of the Act and the language of section 813 of the Central Act
The language of section 941 of the Act and the language of section 861 of the Central Act are similar except with regard to the numbers of sections referred to therein
Whereas in Section 94 of the Act the High Court is required to dismiss an election petition which does not comply with the provisions of section 89 or section 90 or section 125 of the Act section 861 of the Central Act requires the High Court to dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the Central Act
The topics dealt with by sections 89 90 and 125 of the Act are the same as the topics dealt with by sections 81 82 and 117 of the Central Act
Section 89 of the Act and section 81 of the Central Act deal with presentation of election petitions
Section 90 of the Act and section 82 of the Central Act deal with the parties to the petition and section 125 of the Act and section 117 of the Central Act deal with security for costs
1182 It is admitted that neither of the two copies of the election petition which had been filed along with it had been signed by the appellant
Both the copies contained identical endorsements at the foot which read Attested true copy Piyare Lal Handoo Advocate
The advocate had presented the election petition alongwith his Vakalatnama
The crucial part of section 893 of the Act with which we are concerned provides that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition and the critical words in this part are under his own signature
The case of the respondent is that the requirement of section 893 of the Act that the copy of the election petition should be attested by the petitioner under his own signature is a mandatory one
It is his further case that the language of section 893 of the Act does not permit of any other mode of compliance and therefore the attestation made by the counsel for the petitioner filing the election petition is no compliance with that provision
It is therefore contended by him that the petition is liable to be dismissed as required by section 94 of the Act
On the other hand the appellant s case is that since the copies of the petition had been signed by his advocate who had been empowered to act for him in the case it should be treated as substantial compliance with section 893 of the Act which having regard to its object must be considered to be directory
The difference between a mandatory rule and a directory rule is that while the former must be strictly observed in the case of the latter substantial compliance may be sufficient to achieve the object regarding which the rule is enacted
Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus The fact that the statute uses the word shall  while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision
In order to find out the true character of the legislation the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted
If the object of a law is to be defeated by non compliance with it it has to be regarded as mandatory
But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of 1183 that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty such provision should be treated as a directory one
Where however a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner the former has to be regarded as a mandatory one
A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on another rule would be contravened
Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow
We shall now proceed to deal with some of the decisions cited before us at the hearing of the appeal
In one of the connected appeals which was disposed of by this Court by its common Judgment in K Kamaraja Nadar vs Kunju Thevar  Ors1 the person who had filed the election petition had deposited in the Government Treasury a sum of Rs 1000 towards security under section 117 of the Central Act for the costs in favour of the Election Commission instead of in favour of the Secretary to the Election Commission as required by that section as it stood then
It was contended that section 117 of the Central Act had been contravened thereby and that the petition was liable to be dismissed under section 903 since repealed of the Central Act which required the Election Tribunal to dismiss an election petition which did not comply with sections 81 82 and 117 of the Central Act notwithstanding that it had not been dismissed by the Election Commission under section 85 since repealed of the Central Act
Without going into the relationship between the Election Commission on the one hand and the Secretary to the Election Commission on the other for the purpose of examining the correctness of the said contention this Court proceeded to negative it with the following observations vide at page 606  1184 It would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of section 117 and would involve a dismissal of the petition under section 85 or section 903
The above illustration is sufficient to demonstrate that the words in favour of the Secretary to the Election Commission used in section 117 are directory and not mandatory in their character
What is of the essence of the provision contained in section 117 is that the petitioner should furnish security for the costs of the petition and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same be he the Secretary to the Election Commission or any one else
 It is seen from the above decision that this Court regarded the words in favour of the Secretary to the Election Commission used in section 117 of the Central Act directory as the essence of section 117 of the Central Act was that the petitioner should deposit the amount by way of security for the costs of the petition and that the said amount should be at the disposal and control of the Election Commission to be used by it in the manner authorised by law
As the amount was in fact at the disposal of the Election Commission the Court held that section 117 of the Central Act had been complied with by the petitioner in that election petition as there was nothing else in the relative provisions which precluded the Court from taking that view
In Ch
Subbarao vs Member Election Tribunal Hyderabad1 the question of non compliance with section 813 of the Central Act directly arose for consideration
The facts of that case were these The petitioner had filed alongwith the election petition sufficient number of copies as required by section 813 of the Central Act
The election petition was type written and the copies which accompanied the petition were carbon copies of the type script
Each 1185 of the copies bore the signature of the petitioner
The petitioner had not however inserted the words true copy before or above his signature
Without going into the question whether section 813 of the Central Act or any portion of it was merely directory this Court held that the signatures in original found on the copies were intended to authenticate the documents to which they were appended and that in the circumstances of that case the absence of the words true copy above the signature of the election petitioner in the copies was not fatal
The Court held that there was substantial compliance with the requirement of section 813 of the Central Act
In Jagat Kishore Prasad Narain Singh vs Rajendra Kumar Poddar  Ors1 this Court dismissed an election petition on the ground of non compliance with section 813 of the Central Act as the copies furnished to the contesting respondents were not true copies as there was divergence between the allegations made in the petition and the allegations made in the copies
This decision has no bearing on the question involved in this case
In Satya Narain vs Dhuju Ram  Ors2 this Court held that the first part of section 813 of the Central Act which required that the election petition should be accompanied by as many copies thereof as there were respondents mentioned in the petition was mandatory in character and non compliance with it was fatal to the petition in view of section 861 of the Central Act
The Court was not concerned in that case with the second part of section 813 of the Central Act
In Kamalam M vs Dr V A Syed Mohammed3 the signature of the election petitioner by way of authentication appeared at the foot of the copy of the affidavit but there was no such signature separately appended at the foot of the copy of the election petition
The respondent by way of preliminary objection to the election petition contended that since the copy of the election petition had not been attested by the petitioner under her own signature to be a true copy there was no compliance with section 813 of the Central Act and hence the petition was liable to be dismissed
The High Court accepted the said contention and dismissed the petition
In appeal 1186 this Court held that section 813 of the Central Act had been complied with for the following reasons Now it is true that no signature was appended by the appellant on the copy of the election petition proper and the signature was placed only at the foot of the copy of the affidavit but that in our opinion was sufficient compliance with the requirement of the last part of sub section 3 of section 81
The copy of the affidavit was for reasons already discussed part of the copy of the election petition and when the appellant put his signature at the foot of the copy of the affidavit it was tantamount to appending signature on the copy of the election petition
The law does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition
It may be at the top of the copy or in the middle or at the end
The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy
When original signature is made by the petitioner on the copy of the election petition it can safely be presumed as pointed out by this Court in Ch
Subbarao s case supra that the signature is made by the petitioner by way of authenticating the document to be a true copy of the election petition
Now here the appellant placed her signature in original at the foot of the copy of the affidavit and the copy of the affidavit was part of a composite document namely copy of the election petition and hence the signature of the appellant must be regarded as having been appended on the copy of the election petition
In fact the copy of the affidavit constituted the end portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the affidavit was therefore clearly referable to the entire copy preceding it and it authenticated the whole of the copy of the election petition to be a true copy
We cannot in the circumstances accept the contention of the respondent that the copy of the election petition was not attested by the appellant under her own signature to be a true copy of the petition
The requirement of the last part of sub section 3 of section 81 was complied with by the appellant inasmuch as the copy of the election petition was authenticated to be a true copy by the appellant by placing her signature at the foot of the copy of the affidavit which 1187 formed part of the copy of the election petition
The High Court was clearly in error in dismissing the election petition under sub section
1 of sec 86
 It is seen from the above decision that this Court held that the second part of section 813 of the Central Act had been complied with after holding that the copy of the petition and the affidavit filed alongwith it as required by law constituted one single document and the signature in original of the petitioner at the foot of the affidavit satisfied the requirements of section 813 of the Central Act
In none of the decisions of this Court referred to above it has been held that the absence of the signature of the election petitioner on the copies of the petition was not a material defect
It was argued by the learned counsel for the appellant that the object of enacting sub section 3 of section 89 of the Act which was merely procedural in character being that the respondents should be able to secure copies of the election petition as early as possible to enable them to file their statement of objections to it early it would be sufficient compliance with the said provision if the true copies are filed alongwith it and since in the instant case there had been no allegation that the copies which were filed were not exact copies of the original election petition the petition should have been disposed of on its merits instead of dismissing it under section 94 of the Act
He contended that the attestation made by the advocate on the copies was sufficient to assure the respondent that the copy served on him was in reality a true copy of the election petition
He also contended that if a suit instituted in a civil court was not to be dismissed on the ground that the copy of the plaint was not authenticated to be a true copy by the plantiff under his own signature there was no justification for treating the second part of section 89 of the Act as mandatory
It is true that section 893 of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts 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 done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner courts have no option but to enforce the law as it is
A rule of limitation for example which is generally considered as procedural in character is strictly enforced by courts since the rule lays down that no court shall entertain a suit an appeal or an application which is barred by time
1188 An election to a Legislative Assembly can be called in question only by filing an election petition and not otherwise
The right to challenge the election by filing an election petition is a statutory right and not a common law right
A successful candidate is entitled to enjoy the privileges attached to the membership of the Legislative Assembly unless his right to do so is successfully challenged in an election petition filed within the prescribed period and in accordance with law
Section 893 of the Act consists of two parts
The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition
The first part of section 893 of the Act has been held to be a mandatory requirement by this Court in the case of Satya Narain supra as this Court was of the view that the copies of the election petition should be filed alongwith it in order to prevent the delay in the disposal of the election petitions
The question whether a provision of law is mandatory or not as observed already depends upon its language the context in which it is enacted and its object
Sub section 3 of section 89 of the Act provides that a copy of the petition shall be attested by the petitioner under his own signature to be a true copy of the petition
The emphasis in the above provision appears to be on the words under his own signature
We do not find the same expression used in section 911c of the Act which provides that an election petition shall be signed by the petitioner and verified in the manner laid down in the Jammu and Kashmir Code of Civil Procedure Act X of 1977 for the verification of pleadings
Sub section 3 of section 89 of the Act was inserted by Jammu and Kashmir Act I of 1962
Section 94 of the Act which requires the High Court to dismiss an election petition when the petitioner has not complied with the provisions of section 89 was enacted in the place of the former section 94 of the Act by Jammu and Kashmir Act XI of 1967 by the Legislature with the full knowledge of the requirements of section 893 of the Act
The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition appears to be that the petitioner should take full responsibility for its contents and that the respondent or respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the original petition after it is filed into court
We have no doubt 1189 that the records and documents in the custody of courts are taken due care of by the courts and the courts would not by themselves give any scope for tampering with them
But still experience shows that allegations are sometimes made that records in the court have been tampered with notwithstanding the care and caution taken by courts
Such allegations may not always be without basis
It is probably to obviate any scope for such an allegation being made or to protect the interest of the respondent the Legislature thought of enacting sub section 3 of section 89 of the Act so that the respondent may rely on the copy served on him when he finds that the original document in the court contains allegations different from those in the copy in his custody
A respondent would not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself
The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature
If the requirement of the second part of section 893 that copy of the petition should contain the signature of the petitioner himself is not one of substance there was no need to enact it as the first part of sub section 3 of section 89 of the Act would have been sufficient for it provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the word copies mentioned therein can only mean true copies
The importance of the provision contained in section 94 of the Act which makes it obligatory on the part of the High Court to dismiss a petition when it is established that section 89 of the Act had not been complied with also cannot be over looked in this context
We are therefore of the view that the requirement that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non compliance with that requirement should result in the dismissal of the petition as provided in section 94 of the Act
The High Court was therefore right in dismissing the petition on the above ground
For the foregoing reasons the appeal fails and is hereby dismissed with costs
SR Appeal dismissed


Summary:
Section 893 of the Jammu  Kashmir Representation of the People Act 1957 reads Every election petition should 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 true copy of the petition
Under Section 941 of the Act The High Court shall dismiss an election petition which does not comply with the provisions of Section 89 or Section 90 or Section 125
Sections 893 and 941 of the Act are in pari materia with sections 813 and 861 of the Central Act 43 of 1951
In the election petition filed by the appellant in the J  K High Court challenging the verdict of the Returning Officer declaring the respondent as a successful candidate from the Handwara Constituency to the State Legislature both the copies of the election petition contained the endorsement Attested true copy
Piare Lal Handoo Advocate
The question arose whether it was a sufficient compliance within the provisions of Section 893 of the Act
Dismissing the appeal the Court  HELD 1
The requirement in Section 893 of J  K Representation of People Act 1957 that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non compliance with that requirement should result in the dismissal of the petition as provided in Section 941 of the Act
1189 F G 2
The object of requiring a copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition is that the petitioner should take full responsibility for its contents and that the respondent or respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of contents of the original petition after it is filed into Court
No doubt the records and documents in the custody of Courts are taken due care of by the Courts and the Courts would not by themselves give 1178 any scope for tampering with them
Still allegations not always without basis are sometimes made that records in the Court have been tampered with notwithstanding the care and caution taken by Courts
To obviate any scope for such an allegation being made or to protect the interest of the respondent the Legislature thought of enacting sub section 3 of Section 89 of the Act so that the respondent may rely on the copy served on him when he finds that the original document in the Court contains allegations different from those in the copy in his custody
A respondent would not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself
The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature
If the requirement of the second part of section 893 that copy of the petition should contain the signature of the petitioner himself is not one of substance there was no need to enact it as the first part of sub section 3 of section 89 of the Act would have been sufficient for it provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the word copies mentioned therein can only mean true copies
The importance of the provision contained in section 94 of the Act which makes it obligatory on the part of the High Court to dismiss a petition when it is established that section 89 of the Act had not been complied with also cannot be overlooked in this context
1188 G H 1189 A E 3
It is true that section 893 of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts 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 done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner courts have no option but to enforce the law as it is
A rule of limitation for example which is generally considered as procedural in character is strictly enforced by courts since the rule lays down that no court shall entertain a suit an appeal or an application which is barred by time
1187 F H An election to a Legislative Assembly can be called in question only by filing an election petition and not otherwise
The right to challenge the election by filing an election petition is a statutory right and not a common law right
A successful candidate is entitled to enjoy the privileges attached to the membership of the Legislative Assembly unless his right to do so is successfully challenged in an election petition filed within the prescribed period and in accordance with law
Section 893 of the Act consists of two parts
The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition
The copies of the election petition should be filed alongwith it in order to prevent the delay in the disposal of the election petitions
Sub section 3 of section 89 of the Act provides that a copy of the petition shall be attested by the petitioner under his own signature
But the same expression is not to be found in Section 911c of the Act which provides that an election petition shall be signed by the petitioner and verified in the manner laid down in the Jammu and Kashmir Code of Civil Procedure Act X of 1977 for the verification of 1179 pleadings
Sub section 3 of section 89 of the Act was inserted by Jammu and Kashmir Act I of 1962
Section 94 of the Act which requires the High Court to dismiss an election petition when the petitioner has not complied with the provisions of section 89 was enacted in the place of former section 94 of the Act by Jammu and Kashmir Act XI of 1957 by the Legislature with the full knowledge of the requirements of section 893 of the Act
1188 A G Satya Narain vs Dhuja Ram and Ors   applied 4
The question whether a provision of law is mandatory or not depends upon its language the context in which it is enacted and its object
The difference between a mandatory rule and a directory rule is that while the former must be strictly observed in the case of the latter substantial compliance may be sufficient to achieve the object regarding which the rule is enacted
Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory are as follows The fact that the statute uses the word shall  while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision
In order to find out the true character of the legislation the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted
If the object of a law is to be defeated by non compliance with it it has to be regarded as mandatory
But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty such provision should be treated as a directory one
Where however a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner the former has to be regarded as a mandatory one
A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on another rule would be contravened
Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow
1182 E H 1183 A C 1188 D K Kamaraja Nadar vs Kunju Thevar and Ors
 Subbarao vs Member Election Tribunal Hyderabad   Kamalam M vs Dr V A Syed Mohd  at p 452 referred to
Satya Narain vs Dhuja Ram and Ors   applied
Jagat Kishore Prasad Narain Singh vs Rajendra Kumar Poddar and Ors 1971 1 SCR 821 held inapplicable