Case: Satya Narain Vs. Dhuja Ram And Others

2. 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respondents were the contesting candidates for the Safidon Assembly Constituency No. 30; two candidates having already withdrawn from the contest.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 195 70 votes as against 19462 votes secured by the appellant. The first respondent was, therefore, declared elected on March 13, 1972. The appellant filed an election petition in the High Court challenging the election of the first respondent o n 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. S. 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 respondents 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.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. S. 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.D. D. Khanna 24-4-72The next order passed by the Deputy Registrar on April 29, 1972, runs as follows:-Shri R. S. 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.D. D. Khanna28-4-72 .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. S. 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. 2, 000/- 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, 19 72, and for settlement of issues for 26th May, 1972.D. D. KhannaThe 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

Reasoning: 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 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 24, 1972, 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 no t 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, o n 24th April, 1972, notwithstanding the further fact that he had earlier at 11.00 A.M. 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 Mittals 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 Apri l. Again, from Shri Mittals 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 v. 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 Mi ttal, 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 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 PW s 7 and 1 0 gave hazy evidence from their memory with regard to the appearance of the appellant in the suit on April 24, 1972. The High Court also found several infirmities and contradictions in the evidence of Shri Mittal. It is nobodys case that if the appellant appeared in the suit at Jind on 24th April he could be present in the Election Branch at Chandigarh at2.00 P.M. on that day. PW3 has correctly deposed that the words (objections removed in the handwriting of Shri R.S. Mittal, Advocate and the signature of Shri R. S. Mittal thereunder were not there when he made the endorsement informed (Ext PW 3/1) 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. S. 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.5. Whether a particular provision in a statute is mandatory or directory has to be construed from the scheme and object of the provisions-The right to challenge an election is conferred under the Act which is made in conformity with the provisions of Article 329(B) 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.10. It is true in Ch. Subba Rao v. Member Election Tribunal, Hyderabad([1964] (6) S.C.R. 213.) reiterating two earlier decisions viz . Kamaraj Nadar v. Kunju Thevar([1959] S.C.R. 583.) and Murarka v. Roop Sing ([1964] (3) S.C.R. 573.), the Court in view of the peculiar facts , add circumstances of that case and the nature of the defects held , that section 81(3) was substantially complied with and left open the , wider question whether section 81(3) or any part thereof is mandatory or directory. In a later decision in Dr. Anup Singh v. Shri Abdul Ghani and another([1965] (1) S.C.R. 38, 41.), which followed Subba Raos case (supra), , this Court observed:An exactly similar matter came to be considered by this Court in Ch. Subba Rao v. 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 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 81(3) of the Act and the petition could not be dismissed under section 90(3).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 86(6) 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 86(7),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 87(1) introduces the Civil Procedure Code only subject to the provisions of the Act and of any rules made thereunder. Section 87(2) 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 o f 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 8 1(3) 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 t he second submission, of the learned counsel for the appellant with regard to substantial compliance made on the basis of the provisions of section 81(3) being, directory. We may only add here that, in the absence of any provision under the Act o r 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 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.