PETITIONER:
SATYA NARAIN
Vs.
RESPONDENT:
DHUJA RAM AND OTHERS
DATE OF JUDGMENT21/12/1973
BENCH:
DWIVEDI, S.N.
BENCH:
DWIVEDI, S.N.
REDDY, P. JAGANMOHAN
GOSWAMI, P.K.
CITATION:
1974 AIR 1185 1974 SCR (3) 20
1974 SCC (4) 237
CITATOR INFO :
E 1980 SC 303 (15,19)
R 1983 SC 558 (36,37,40)
R 1984 SC 305 (13)
R 1984 SC 956 (16,17)
F 1990 SC 924 (13)
R 1991 SC1557 (29)
ACT:
Representation of the People Act, (43 of 1951) Ss. 81 (3)
and 86 (1)–Whether mandatory or directory–Non-filing of
requisite number of copies within period of
limitation–Effect of.
HEADNOTE:
The first part of s. 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 s. 96 (1)
provides that the High Court shall dismiss an election
petition which does not comply with the provisions of S. 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 S. 81 (3).
Dismissing the appeal to this Court,
HELD:
(Per P. Jaganmohan Reddy and P. K.Goswami, JJ.) Whether a
particular provision in a statute is mandatory or
directory has to be construed from the scheme and object
of the provisions.[25H]
The right to challenge an election is conferred under the
Representation of the people Act, which is made in
conformity with the provisions of Art. 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 s. 86. [27H; 99E-G]
Jagat Kishore Prasad Narain Singh v. Rajindra Kumar Poddar
and Others, [1971] 1 S.C.R. 821, Raza Buland Sugar Co. Ltd.
V. Municipal Board Rampur [1965] S.C.R. 1970, Montreal
Street Railway Company v. Normandin, [1917] L. R. A. C. 170.
Charan Lal Sahu v. Nand Kishore Bhatt and Others, [1973] 2
S.C.C. 759, Ch Subba Rao v. Member, Election Tribunal [1964]
6 S.C.R. 213 and Dr. Anup Singh v. Abdul Ghani [1965] 1
S.C.R. 38, 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 v. Rajindra Kullar poddar and
others, (19711 1 S.C.R. 821. But this makes s. 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 s. 81 (3) from the purview of S. 96 (1).
21
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil 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. S. 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 81(3) 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 13,1972. 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. 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 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. 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.
Sd/.
D. D. Khanna 24-4-72″
The 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.
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. 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, 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 81(3) 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 81(3) 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. S. 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 P.W. 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. S. Mittal” (Ext PW 5/1) 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
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 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 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 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 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 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 5/1 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 v. 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 24,1972. 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 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.
The short question is whether section 81(3) 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 86(1 of the Act.
This question was mooted in Jagat Kishore Prasad Narain
Singh v. Rajindra Kumar Poddar and Others(1) 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. v.
Municipal Board, Rampur(1) 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
Normandin,(2) 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 81(3). 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 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.
We may, therefore, immediately read the material sections
80, 81(1) 84(3) and 86(1) which run as follows
(1) [1965] (1) SCR 970, 975.
(2) 1917 L. R. A. C. 170 (quoted in 1965 (1) S.C.R. 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 81(1)”An 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
s.”
Section 81(3)”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 a true of the petition”.
Section 86(1)”The 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 v.
Nandkishore Bhatt and others(1), and held as follows :
“The right to challenge an election is a right
provided by Article 329(b) 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) [1973] (2) S.C.C. 530,533.
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. P.Ponnuswami
v. 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 v. Ram Lal (2) dealing with
section 82(b) 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. 82(b) 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 86(1) if he omits to do….. This then
is the rationale underlying the mandatory
requirements of section 82(b)”.
It is true in Ch. Subba Rao v. Member Election Tribunal,
Hyderabad(3) reiterating two earlier decisions viz. Kamaraj
Nadar v. Kunju Thevar(4) and Murarka v. Roop Sing(5), 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(6), 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 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
(1) [1952] S.C.R. 218. (2) [1973] (2) S.C.C. 759,769.
(3) [1964] (6) S.C.R. 213.(4) [1959] S.C.R. 583.
(5) [1964] (3) S.C.R. 573.(6) [1965] (1) S.C.R. 38,41.
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 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 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 81(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 the 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
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
v. Rajindra Kumar Poddar and others(1). 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 s.86
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 v. 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 v. Amar
Singh) (4)
Our decision restores that primacy of procedure over
justice. It makes S. 86(1) 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 s.
81(3) from the purview of s. 96(1) of the Act.
Appeal dismissed.
V.P.S.
(1) [1971] 1 S. C. R. 821. (2) Holdsworth: A History of
English Law, 9, 248.
(3) A.I.R. 1922 P. C. 249 at p. 250.
(4) A.I.R. 1923 P. C. 128 at P. 135.
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