. c

.. 278 •

MITHILESH KUMAR PANDEY

BAIDYANATH YADAV AND ORS .

. January 2, ~984

[S. MURTAzA FAz~L Ai, r; o. CmNNApPA REDDY AND . .

RS. VENKATARAMIAH, JJ.]

Repreientation of the People Act, 1951, Sec.tion•81(3~Co11structio11 of ihe •.provisions of the sectiOn-Copy of ihe election Petition containing several mistakes Of Vital -ch'arater, not fo'und i'n the orig'inal-Election petition is not nwintainable and

nJustbe disn1issed. ·

' . . ' . ' . . . . .

In the genefal.electioiis held irrJune 1980, the appellant fought .is i. Congress(!) candidate from Harlahi Asscmb.ly constituency inBihar•and was.eclared elected. The respondent who was defeated filed an election petition in the. Patna High Court !is.ting a. large nwttber of persons through when corrupt practices werealleged to have been practised by the appellant. Siflce the copy of the petition, th6ugh attested. by the election petitioner under his own_ signature to he a true copy, contitined sCveral mistakes which ,\vere of a vCry vitaJ 'c.haracter, the apj)ellant contested the petition atleging that the mandatory provisions of section 83(3) of. the Representatfon of People Act not having been cOil).plied vvith at an, thC petition should be dismissed in linine withoµt going into the merits of the Case. Though {he High Court found , as a faCt. that a Tafge number of mistakes were there in the copy of the electib-n.

petition su.{, plied to the .appellant. Yef, as they were of a superficial and inSignifiw cant nature bordering_ on clerical or tY'pii1g mistakes, on the whole; there "'.as a substantial compliance of ihe pro'vsions of Section 81(3) of the ACt. Hence the <ippeal ag; i.inst the interlcutory order.

Allowing the appeal .and disrnis_sing the el.tioh petition, ihe c01:u{

. . HELD : r: 1 A Perstia.1 'of Sections 81(3). and 86 Of the R6presentat_ion of _the People Act reveals ·-that the statUtc intended that before an election petition can be entertained~ th~ Copy sent tO the elected candidate n1ust be a 1-rue copy, railing which thcrC Would. be a serious diSobedience of the mandate Contained in . s.81(3) whichwould be fa tar to lhc maintainability of the saidpeition. (281 FJ ' . . . .· . ' . . ..

1 :2 It is now well settled by a large catena Of atithorities of this Court that thc'clectoral process by Which the verdict of the people has'been given is a sacrosanct bne and ca-nnot be lightly set at naught unle;; s the groun_ds rrlendoned in the Act for seiting side an election a.re held to -be proved.

Jn these circumstances, it is manifest that the _provisions of .s.81(3) Of the act should be. G._onstred to te letter and spirit of the law because if the election petitioner docs not give full and Complete n9tice of the allegations inade against. the returned candidate, he runs the. risk of his petition being d.is1nissed in limine. (281 G-H]

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M.K. PANDEY v. BAID~\NATH 279

2 on a careful consideration and i; crutiny of the la\\ on the subject, the following principl.es-are Well established.;~

(l). that where the copy of the eleCtion petition served on the returned candidate contains .only clefical or typographical mistakes Which arc of no consequence, the petition cannot be disn1issed straightway under s .. 86 of the Act, (283 F]

(2) A true copy means a. copy which is wholly and substantially the same as the original and wher~ there arc insignificant or minimal° 1nistakes, the c.ourt n; i.ay _not tak~ notice thCreof, [283 G]

(3) wh.ere the Cop~ cOn{ains important on1issions or discrepanics of a vital nature, which are likel:Y to cause prejudice t~ the defence of the returned candidate, it cannot be aid that there has been a substantial compliance o.f t.he provisions of s.81(3) of !he Act, (284 A]

(4) Prime fade, the statute uses the words "true copy'' and the concept of substantial con1pliance cannot be exten(\Cd too far to include serious or.vital mistakes \vhich shed the char<icter of a trtie copy so that the copy furnished.to the returned candidate cannot be said to be. a true copy within the meaning of s.81(3) of; thc Act, nd [284 Bl~

(5) As s.81(3) is incant to protect and safeguard the sacrasanct electoral

p1'ocess so as not the disturb the verdici of the .voters, there is no room for giVing a .Jiberal -or bt-o<i.d irterpretation to the provisions of the said section. [284 CJ .. . .

Murarka Radhey Shya111 Rani Kunwr v. Roop Singh Rat/u)J"e & Ors. l1964] 3 SCR ~73; Jagat kishore Prasad Narain Singh v. Rajendra Ku111ar Poddar & Ors. [1971] t SCR 821; Satya Narain V. Dhuja Rain&. Ors., [1974] 23 SCR 20; Shari/-ud-

Din v'. Ahd_ul Gpni Loni!, [1980].1 SCR 1177; M. Karunaidhi tc~ etc. v. H. y. Ha1ide & O•s: etc. etc. [1983] 1 SCALE 344 referred to. (284 D-E; 285 G; 286 A; 285 q

.., 3. lfl the instant case, the mistakes iri the copy supplied. to the returned candidate related to corrupt practice-s, have to be proved to the hilt just like a criminal charge and any mistake 'vhich contains an ele1nent of vagueness \Vould immcdia: tely vitiate the election petition and n1erit its disn1issal under' s.86 of the.Act. Among

- 'tbe 1nany 1nore mistakes given in Shedule I, the '.few selected items then1selves are vital and may seriously prejudice the ct.fence of the appellant because it. will be very difficult for him to find out the pe_rsons, named. in the copy supplie.d to hin1At who are said to have indulged in corrupt practiceS a( his instance. The present case is a nluch""worse case than Murarka Radhey Sh:va111 Ra111 Kunw;'s case (supra) \Vherc onlY a slight difference in the title led this Court to hold that the mistake was a vital one was a valid one.

Further, the omission of names cannot be said

t_o be a_ typing 1nistake but a very vital and serious on Which is sufficient to entail the dis1nissal of the election petition. [284 D~E; 285 G; 286 ~; 285 C]

CLVIL APPELLATE JURISDICTION Civil Appeal No. 5307 of 1983

G.'

Appeal by Special leave from the Judgmen.t and Order dated :H the 7th January, 1983 of the Patna High Court in Election Petition

A No. 48 of 1980).

.• S.N. Kacker, L.R. Singh aQd Gopa/ Singh for (he Appellant:

 R.K. -Garg and D:K. Garg for the Respondent.

The Judgmentof the Court was delivered hy

. . ·- ' .

h .. • FAZAl L AWL!; J, By Orderddated}'fov 1 ember 29, Ijl83hwe hdd a 0 l!cd.wed ... ·~ t e a, rrea . . e. now procee to give t 1e reasons JOT t e sai r er.

This election appeal is directed agains't an interlocutory. Order dated Jnuary 7, 1983 passed by the Patna High Court overruling a . preliminary objection taken by the appellant (ele'ctd candidate) that the election petition of.the respondent (e!ectio1i petitioner) should be dismissed str.aightaway uiicter the: provisions of s:86 of the Representation or' the People. Act. l 951-a< .amended uptodate-(here'nafter referred to as the 'Act'.).,

' .

Theappellant's case is'that in the general election held in June. 1980 he fought s; a Congress (I) andidte 'from Harlakhi Assembly c.onsthu_ency in .Bihar in ·\vhich 'he._ was deCJared elected, 'dfe; itini. the respondent who filed the. election petition in the. High Courl.

He further subm.itted that the copy of the <; lection 'peti'tion served on . him contained tt Jarge ~)Uinbet f)nistakesin respecf of Persohs through whom corrupt practices were alleged w h.ave been practised by the appellant c!uring -'the. election.. He . contended that in view of the very large number of mistakes, which were of a very vital character; !he mandatory provisions. of s.81 (3) c; r the Act were not complied ·.with at' all,' which. infirmly by itself woulil be sufficient to dismis the election petition in /imine without going into . the merits of the .· . . -~ case. . /

. ' The stand taken by the respondent ~s tbat the I].listakes were. undoubiedly there but they were of a minor and significant nature ' . \ . . and did not affect his case on merit.

The 1earned Judge .of the Hi, gh Court found as a fact that a large . n\Jmber of mistakes were there in the copy of the election petition 'supplied to i\1e appellantbut as they were ofa superficial and i;1significant nature bordering on clerical or .typing.mistakes, on the whole there was a substantial compliance of .the .provisions of s.81(3)' of. the Act. The learned Jucig:' has entered into a detailed discussion. of

'-i

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M-~· PANDEY"· DAIDYANATH (Faza/ Ali, J.j 281

the various dcisions of this Court and also of High courts and has , correctly held that the provisions .of s.81(3) are mandatory and if the court finds that. they have not been cornpl\ed with ii has no alte111ative bu\ to dismiss the. election petition .straightaway, Unfortunately, however, in the process of applying the principles laid d°'vn by this Court he bas completely glossed over the nature of ilie 1:nistakes by describing them as merely clerial or typing ones. On a perusal. of the aforcsid mistakes (listd at pp. 64-65 of tne"rarerbook) they .do not appear)o b<; so. , Section 81(3) of-the Act run' <\rns:

"l. Presentafio"n of petitions ,.

(3) Every election petition shall be accopanied by. as many .copies thereof as there are respondents mentioned in th~ petition, and every such copy shall be attested 'by tb.e pe1; itioner under his O\v1r signature to be.a truecopy of the

Petition.~.' .

The cunsequen.ce of nOn-compliance of thi.s. section l12s. been D mentio11ed in s.86(1) which may be extacfrd thus '

"86 .. Tfia/ of' c!e"cti"pn petitions ..

(!). Tl1e High Court shall dismiss a1{ election petition which does not compJy.with"the prov'isions of sccticn 81 er • section 82 o'r sectiCn 117.' . .

A pe1"usal of.the above reveals that the statute intended that" before an election peiition can be entertai1icd; the copy sent 'to if.e elected candidate niµst be a true copy, failing which there would be a serious disobedience of the mndate contained in s.81(3) whkh would be fatal_ to the maintainability of the said petition.

\ It is now .\vc!I settled bv. a large catepa of aut.bcit.ics -cf 1l1.is Co.uri that the elec!oral procss by. vhcih th<"vcrdici of lhc .people has been given is a sacrosanct en~ and cai1not .1--:c:li_ghtly Ht at n<1ught unless he gi-Ounds 1nentioned in the Act for setting aside an election a1"e held to be'provcd.

Jn these circumstaHcs. it is ffanifrct :11oat th provisions of s.81'(3) of the Act should be construed to the letter and spirit of the law because if the election petitioner des not give full.. and coo1plcte 'notice of the aflegation.s made against the return(d . candidate. he runs the . risk of hi~. pctit(cn, _being disrnis~(d in lfmine. ,

.. H

A hi the instant case, it is the.a.dmitted case of the parties that the

mistakes in the copy supplied to the. appellant rel.ted to corrupt• practices indulged in by him through various persons who liave been named at pages 64-65 of the Paperbook. In Murarkd Radhey Shylim Ram Kumar v. Roop Singh Rathore & Ors.<ll this Court made the . followitg obsrvations :--

• "Having'rcgard to the prov1s<0ns of Part VI.of the Act we are of the.viewthat the word "copy" does not mean an absolutely exaot copy.

Tt means a .copy so true that nobody ca.n by any possibility.misunderstand it..

The test whether. the copy is a true one is whether any varition frora the original_ is calculated to mislead an ordinary

person.'' . .

In other, words, this Court merely mrant to indicaie that where the variation isso minin1al and insgnificant that it is incapable of misleading any person as to the true purport of the allegation, it would be a substantial complia1ice of. the provisions of s.81 (3) cf the Act.. The High Court has largely relied on the ratio of this particular case.

There can be no dispute. regarding the principle laid down by this Court but the main difficulty.arises when we approach the facts of a particular case in. order to find .out whether the copy .supplied to the returned candidte is really a true copy or not •

Tn Jagat Kio}wre Prasad Narain Singh v. Rajendra Kumar Poddar & Ors.121 the same principle was laid down.

In this case, the mistake was that in the election petition it was stated that rnrney was offered to one Jctba Kisku by Munshi Hansda but in the 'opv served on the returned candidate instead of M).Jnshi Hansda the name of Paul Hansda was mentioned. Apparently, the mistake was a verbal one but this court held that it was sufficient to prejudice the defence and accordingly came to the conclusion that the petition was liable to

 .. -f '

G be dismissed under s.86 of the Act.

We shall presently show that in the instant case the mistak.es were of a greater nature than those with which this Coµrt was dealing 1--

(I) (1964] 3 S.C.R. 573.

(2) [1971] I S.C.R. 821. .

• -f.

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• M.K. PANDEY l'. BAJDYANATH (Faza/ ,4/i, J.) . . , 283

with in the aforeid ase. Jn Satya'Narin v, Dhuja Ram & Ol's.<1 1

this Court clearly pointed out that where the first.part of s.81(3) was n.ot complied with .. the provision being a peremptory one, total nqnc, compliance with the same would. entail dismissal of the election petitio'n under s.86 .of the Act.

In a later case in' Shari[-ud-Din v. Abdul Gani Lonei2> this Court observed thus ·

"It .is true that section 89(3) of the Act is purei'y procedural in character and that ordinarily prccedimil Jaw should not be given that primacy by cuurts a~ would defeat

the ends of justice, But if a Jaw even though it may be procedural in character insists that an act must be done in a particular mam, er .and further provides that certain consequences should follow'ifthe act is not done.in that manner, courts have no.option but to enforce the law as it is." . . . .

In a la(<:st decision of the Court in M. Karunanidhi etc. etc. v.- H.

V. Hrmde & Ors. etc. etc.,<3> the following observations were mad!': .. "It .is obvious that the photograph was a part of the \

verment contained in paragraph l S(b). Jn the absence of the photograph the averment contained in paragraph 18(b) ·, vould be incomplete. The photograph referred to in paragraph 18(b) was therefore ai1 integral part of the election petition. It follows that there was total non-ccimplia'nce \vith the requirements of sub-s.(3) of s.81 f the Act by failure to. serve the appellant with a copy of the elcctidn petition."· · ' On a careful consideration and scrutiuy of the Jaw on the subject, the following principles are wen established :· - ' . . .

I) that where the copy of the election petition. served on the returned candidate conta\ns only clerical or typographical mistakes whiCh are of no. comcquence, the petition cannot be dismissed straightaway under s.86 of the Act,·

2) A true copy _means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal' mistakes, the court may not take notice thereof, ...

(1)' [1974] 3 S.C.R. 20.

(3) [1983) I SCALE 344.


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D ..

3) where the, copf contains importai1t omissions or discrepancies of a vital nature,· which are likeiy to. cause prejudice 'to the defence of the returned candidate;· it cannot be said that there has been a. sbstantial com- . pliance of the provisions ofs.81(3) of.the ct. .

~ 4)

Pri~1a facje, the tatute .uses the. words. "true copy"

.. and the concept of'substai1tial compliance cannot be extended tdo .far to. include se1ious or vital itiisiakcs which :shed the character of a _true copy so that the copy furnished to the returned candidate cannot be said to be a true copy wiibin the meaning of s. 81(3) of ihe Aci,. ; nd

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As s.81(3) is meant to pr<ltect and safeguard the Bacrosanct. electoral process so as not to disturb the verdict of the .voters, there is no. room , for giving a liberal or broad interpretation to the provisions of the

.sid secti.on. ,

We might mention here• that in the instant case the mistakes in the copy supplied .to the returned candidate related to corrupt practices' which, as has beert held by this Court in. a large number of cases, have to be proved to the hili just like a crii11inal charge and any mistake which co.ntains an eleme1it of vagueness would immediately vitiate the election petition and merit its dismissal. under. s.86 of the Ac( . .

A . . .

In the view that. we lake, it.is not necessary for us t<i wade through a detailed dis<; ussion of the mistakes because a few mistakes pointed out by the Judge himself clearly reveal that they were .of a very vital and material nature so as to mislead the returned .. candidat~ . and prejudice him. in his defence. Schedule I to the election petition contained the.· list of persons through whon1 the corrupt practices were alleged to have been committed, An analysis of these mistakes may be plad in three cafego:fie~(l) where there is complete omission of some names which have .been mentioned in the election petition but riot in. the copy'\upplie>[ to the returned candidate, (2) giving . absolutely .wrong names whic11 are bound to mislead the appellant . in his 'defence as the persons bearing the wrong names could not be t.raced out, and (3) some names given in the petition appear to be . . males but i(l the copy given to the appellant they ppear to be feales_.

Coming to the first category, a few exmples will suffice .to

.·~

M.K. PANDEY v. BAI~YANATH (Fazal Ali, i.)

 Q85 • illustrate our point ·

SI. No. in .Name in the Name in the Schedule I orig; nal petitfon copy

17 · Y ogendra Jha '.

Omitted 37 Bufa.ri Devi Omitted .· ft.

Omitted 188 Bal Bhogia 445 Ra1n<leo Pa'swan Omitted 486 ..

Jugeshwari Devi Omitted

The omission of names cannot be said to be a typing misiake but a very vital and serious one which is sufficient to entail the dismissal of the election petition. Under the secod categoy (.giving wrong names), the following names may: be mentioned . . . . .

 . There are many more mistakes given in schedule I but we have se!Ccted only those which are vitaL and may seriously prejudice the .'defence of the appellant because it will be very difficult for hini to find

out the persons,' named in the copy supplied to him, who are said to have indulged in corrupt pradices at his .instance ..

1~ . . . - . ·- Thus, on ,[n oyerall consiiierntion of the facts and circumstances ..

~ -. ' A

' .. A

.286

SUPREME COURT REPORTS [1984] 2 s.c.R. .. of this case, we. are unable to agree with. the High Court that the 'mistakes in the copy were either verbal, typographical 6r clerical..

The present case appears to be a much worse case than Murarka ·

Radhey Shyam Ram Kumar,'s case (supra) where only a slight.difference jn the title led this Co.urt to hold that' the mistake was a vital one .

. . I

We are, therefore, of the opinioq.that the High Court. committed a serious error of law in holding that there had been a substantial compliance of the provisions of' s.81(3) of the Act so a~ to exC!ude the. applica'tion of s.86 of the Act.

• For. the reasons given above, we allow the appeal and dismiss the election r.etitio1\ filed in the High Curt but in the .circumstances without any order as to costs. As a result of our judgment, nothin.g now survive"s iii the High Court. ..

S.R.

Appeal a/!'Oived.

• . . . .. .,