B.D. Agarwal, J.
1. The respondent herein has been declared elected to the 9th Manipur Legislative Assembly from 6 Keirao Assembly Constituency. The election petitioner was also a candidate for the aforesaid Assembly Constituency. However, the petitioner was defeated by 2 (two) votes. The election result was declared on 27.02.2007. Feeling aggrieved by the said defeat, allegedly due to improper/illegal reception of few votes, the aforesaid election petition has been filed under Sections 100 (1) (d) (iii) (iv) of the Representation of the People Act, 1951 (hereinafter 'ROP Act' in short), so as to declare the election of the sole respondent as void.
2. Having duly notified, the respondent has appeared to contest the election petition. However, before filing his formal written statement, the respondent has filed the present miscellaneous application raising a preliminary objection about the maintainability of the election petition basically on the ground that the petitioner has failed to furnish a copy of the election petition with proper attestation of the petition as required under Section 81 (3) of the ROP Act. With this legal objection, the respondent is seeking dismissal of the election petition under Section 86 of the ROP Act.
2.1. For convenience, the petitioner of this miscellaneous application shall be referred to as the respondent and the respondent of this misc. case as the election petitioner hereinafter.
3. Heard the argument of Shri H.N.K. Singh, learned senior counsel assisted by Mr. Kh. Babulindro, advocate for the respondent and Shri N.P.C. Singh, learned senior counsel assisted by Mr. Th. Babloo, advocate for the election petitioner at length. I have also perused the records of the miscellaneous application and the election petition meticulously.
4. Chapter-III of the ROP Act deals with the procedure for trial of election petitions. Section 86(1) provides that if the petitioner does not comply with the provisions of Sections 81 or 82 or 117 of the ROP Act, such election petition shall be dismissed. Section 82 prescribes the list of persons who can be impleaded in an election petition. In the present miscellaneous application, although non-compliance of Section 82 was alleged, but it was virtually given up during argument. Besides this, the applicant has failed to mention as to who has been leftout in the election petition. Hence, I need not dwell-upon this issue any further. Section 117 relates to deposit of security money. I do not find any violation of this mandatory provision of law. Succinctly, the miscellaneous application confines to alleged non-compliance of Section 81(3) of the ROP Act.
5. As noted earlier, the only objection to entertain the election petition is the alleged non-compliance of Section 81(3), which relates to supply of attested copy of the election petition to the respondent. For ready reference, the aforesaid provision of law is reproduced below:
81. Presentation of Petition-
(1) *** **** ***
(2) *** *** ***
(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 copy of the petition.
5.1. Chapter-VIII-A of the Gauhati High Court Rules has laid down the procedure for filing election petitions. The relevant rules are quoted below for ready reference:
1. An election petition under Section 80-A of Representation of Peoples Act may be presented duly verified in the form prescribed under Sections 82 and 83 of the said Act before the stamp reporter of this Court with a Court fee of Rs. 6.00 affixed thereon, within 45 days from 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 latter of those two dates. Every such petition shall be accompanied by-
(a) As many copies thereof as there are respondents mentioned in the petition together with one extra copy, all the copies being fully attested by the petitioner under his own signature to be a true copy of the petition and as many envelopes as there are respondents hearing requisite postage stamp to enable service to be effected by registered post with acknowledgement due;
(b) *** *** ***
(c) *** *** ***
(d) *** *** ***
Note(I) *** *** ***
Note (II)-Any petition which is presented out of time and without any of the above mentioned requisites duly satisfied shall forthwith be returned by the stamp reporter for refilling.
6. Shri H. N. K. Singh, learned Counsel for the respondent vehemently submitted that the election petitioner should himself attest the copies in his own hand-writing and his signatures should be pre-fixed by the words 'true-copy' or 'certified to be true copy' etc.
7. A bare comparison of the language employed in Section 81 (3) of the ROP Act and Rule 1 of Chapter-VIII-A of the Gauhati High Court Rules shows that attestation of the copies of the election petition by the petitioner in his/her own hand-writing is compulsory. However, neither the ROP Act nor the Gauhati High Court Rules has given any illustration as to in what mode or manner the attestation should be done. Hence, learned Counsel for both the sides have tried to assail and defend the attestation with the help of certain judicial authorities. While the learned Counsel for the respondent insisted for certain pre-fixation of the signatures, the learned Counsel for the election petitioner submitted that only signature of the petitioner would suffice.
8. Apparently, the copy of the election petition supplied to the respondent is a photocopy of the original election petition. I hold so because the copy also bears the facsimile of the Oath Commissioner as well as that of the election petitioner given in the original election petition. There is also no dispute that the copy of the petition supplied to the respondent was again attested by the election petitioner by putting his signatures on every page, albeit without any pre-fixation of the words 'true copy, or 'certified to be true copy' etc. Hence, the only question to be examined by me is whether the signatures of the petitioner alone without any pre-fixation of true copy can be construed as full compliance of Section 81(3) of the ROP Act and the provisions of Gauhati High Court Rules.
9. On behalf of the respondent, few cases from the Hon'ble Supreme Court rendered in the case of Sharif-ud-Din v. Abdul Gani Lone : [1980]1SCR1177 ; Rajendra Singh v. Smt. Usha Rani and Ors. : [1984]3SCR22 , F.A. Sapa v. Singora : [1991]2SCR752a , G. Mallikarjunappa and Anr. v. Shamanur Shivashankarappa and Ors. : AIR2001SC1829 and that of Delhi High Court given in the cases of Ved Prakash Gaur v. Sukhan and Ors. AIR 1984 Delhi 276 were referred.
10. Per contra, learned Counsel for the election petitioner relied upon the judgment of the Hon'ble Apex Court rendered in the case of Dr. Anup Singh v. Shri Abdul Gani and Ors. : [1965]1SCR38 and Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar and Ors. : AIR2005SC547 were cited. Shri N.P.C. Singh, learned senior counsel for the petitioner also relied upon the judgment of the Hon'ble Apex Court rendered in the F.A. Sapa (supra) which was also cited by the respondent.
11. Now, let me examine the ratio of the authorities cited and reffered to by both the sides. Before adverting to the facts of the authorities, I make it clear that in all the cases, an unanimous view has been taken that attestation of copies of election petition is mandatory and non-compliance of this procedure entails dismissal of the election petition under Section 86(1) of the ROP Act.
12. In the case of Sharif-ud-Din (supra), the Hon'ble Supreme Court has lucidly discussed the necessity of attestation of election petition in the following words:
9. 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 summarized 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 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 a 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.
12.1. In the aforesaid case, the election petition was dismissed since there was no attestation from the election petition himself. The copies were only attested by his lawyer. This was not considered to be sufficient compliance of the law. However, in the case in hand, the copies have been duly signed by the petitioner himself.
13. In the case of Rajendra Singh (supra), the Apex Court was confronted with a situation wherein one page was completely missing in the election petition but the same was inserted in the copy for the respondent. This discrepancy in the original petition and the copy thereof was brought within the purview of Section 81(3) with the following observations:
15...The mandate contained in Section 81(3) enjoins that there should be no difference of any kind whatsoever barring some typographical or insignificant omissions between the petition filed and the copy served on the respondent. If an entire page is missing in the petition but it is there in the copy served on the respondent, then it is manifest that the copy served was not an exact and true copy of the petition. The consequences of the mandatory provisions of Section 81 (3) could not be got over by praying for an amendment of election petition because that would defeat the very object and purpose of Section 81(3).
The aforesaid authority is clearly distinguishable on facts of the case in hand.
14. The authority of the Hon'ble Supreme Court given in the case of F. A. Sapa (supra) has been pressed into service by both the parties. While, the judgment has been relied upon by the respondent to assert that compliance of Section 81 (3) is mandatory, the petitioner is relying upon the same authority to buttress his submission that plain signatures of the election petitioner in the copies is sufficient attestation.
15. The answer to the preliminary objection raised by the respondent in this miscellaneous application can be found in paragraph 31 in the aforesaid judgment of F. A. Sapa (supra) by the Apex Court. Hence, even at the cost of making this order bulky, I propose to reproduce the entire paragraph, which exclusively deals with the question of necessity of attestation of copies and the method and mode of attestation thereof.
31. The next objection raised by the appellants is that the copy of the petition served on each one of them is not attested to be a true copy of the original petition as required by Section 81 (3) of the R.P. Act and Rule 1 of the Rules. Each copy is attested as 'certified true copy' and the petitioner has put his signature thereunder. This, contend the appellants, is not in conformity with Section 81 (3) and, therefore, it is obvious that the mandatory requirements of Section 81(3) read with Section 86 (1) is not satisfied. On a plain reading of Section 81 (3) it becomes clear that the requirement of that provision is : (i) the election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition, and (ii) every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. There is no dispute in regard to the compliance of the first part. So far as the second part is concerned, all that the section requires is that the copy should be attested by the petitioner to be a true copy of the petition under his own signature. The requirement of this part of the provision is met by each copy having been signed at the foot thereof by the concerned petitioner. What is essential is that the petitioner must take the responsibility of the copy being a true copy of the original petition and sign in token thereof. No particular form of attestation is prescribed; all that the sub-section enjoins is that the petitioner must attest the copy under his own signature to be a true copy of the petition. By certifying the same as true copy and by putting his signature at the foot thereof, the petitioner of each election petition had clearly complied with the letter and spirit of Section 81 (3) of the R. P. Act. In fact in Ch. Subba Rao v. Member, E.T. Hyderabad : [1964]6SCR213 , which was followed in Kamalam's case : [1978]3SCR446 (supra) this Court had accepted the mere signature without the words like true copy, sufficient attestation under Section 81(3) of the R. P. Act. We are, therefore, in agreement with the finding recorded in this behalf by the High Court.
16. I have already noted earlier that neither ROP Act nor the Gauhati High Court Rules have specified any particular method of attestation of copies of election petition. Hence, putting signatures in his own handwriting by the petitioner and that too on a facsimile copy of the original election petition cannot be termed as incomplete attestation.
17. The case of G Mallikarjunappa (supra) is not arising out of any defect in the attestation of election petition copies. This authority has been cited only to point out that non-compliance of Section 81 (3) would entail dismissal of election petition under Section 86(1) of the ROP Act. I have also said earlier that this legal position has been re-stated by the Hon'ble Apex Court in the last more than five decades and does not require any long discussion by this Court. On merit the authority is distinguishable. Similarly, the judgment Delhi High Court given in the case of Ved Prakash Gaur (supra) is distinguishable on facts. In the said case, there was no attestation at all by the election petitioner, whereas in the case before me, the petitioner has signed each and every page of the election petition.
18. The judgment of the Hon'ble Supreme Court in the case of Dr. Anup Singh (supra) has been rendered by a Constitution Bench of 5 (five) Judges. In that case also, one of the grounds raised by the returned candidates was that there was no proper attestation of the copies of the election petition as required under Section 81 (3). It was contended by the respondent that the election petitioner did not attest the copies by way of using the words 'true copy' just above his signatures. The objection was repelled by the High Court and the same was reaffirmed by the Hon'ble Supreme Court with the following observations:
6. So far as the first point is concerned, the argument is that Section 81(3) requires that 'Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition'. In this case the necessary number of copies were filed and each copy bore the signature of the petitioner concerned. It may also be mentioned that these copies were carbon copies of the original and it is not in dispute that they were true copies thereof. But the attestation required by Section 81 (3) was not there specifically on the copies. Consequently, the appellant contends that there was no compliance with Section 81 (3) and in consequence the petitions should have been rejected under Section 90(3) which provides that 'the tribunal shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 notwithstanding that it has not been dismissed by the Election Commission under Section 85'. It is urged that in view of the penalty provided for non-compliance with Section 81(3), that section is mandatory and has to be strictly complied with. Inasmuch as in this case there was no attestation, the petitions should have been rejected.
(7) An exactly similar matter came to be considered by this Court in Subba Rao v. Member, Election Tribunal : [1964]6SCR213 . 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 a 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). That case applies with full force to the facts of the present case, and it must therefore be held that there was substantial compliance with Section 81(3) and the petitions could not therefore be dismissed under Section 90(3).
19. What crystallizes from the aforesaid authorities is that while the attestation of copies of election petition is mandatory, plain signatures of the election petitioner in the copies without pre-fixing the words 'true copy' or 'certified to be true copy' can be accepted as substantial compliance of Section 81(3) of the ROP Act.
20. In my considered opinion, if election petitions are to be dismissed on such hyper-technical objection by over-stretching the provisions of law, it would certainly be against the intention and objective of the law. I am also of the view that if such unfounded objections are entertained by the courts, it would also amount to gagging the process of justice.
21. In the case of Chandrakant Uttam Chodankar (supra), the Hon'ble Supreme Court had the occasion to examine the question whether true copies of election petition were supplied to the respondent. In that case, two election petitions were filed on 16.7.2002 and 02.8.2002. The returned candidate appeared in the High Court waiving formal notice by the Registry and collected copies of election petition on 02.8.2002. After more than one month i.e., on 08.09.2002, a preliminary objection was raised that mandatory provisions of Section 81 (3), 83(1) and 83(2) of the ROP Act were not complied with and these objections were raised by filing an application under Order 7, Rule 11 of the Code of Civil Procedure. High Court held that true copies of the election petitions were not duly supplied to the respondent. However, this finding of the High Court was over-ruled by the Hon'ble Apex Court. One of the grounds for rejecting the technical objection of the returned candidate was by way of posing a question as to why the application under Order 7, Rule 11 of the Code of Civil Procedure was not filed promptly. According to the Hon'ble Supreme Court, High Court ought to have drawn adverse inference against the respondent for such belated application. In the case before me also, notice upon the sole respondent was issued by registered post on 10.5.2007 and the notice with a copy of the election petition was duly served on 19.5.2007. However, this miscellaneous application, raising preliminary objection about the maintainability of the election petition, alleging non-compliance of Section 81(3) of the ROP Act was filed only on 05.9.2007 i.e. nearly after more than 3 1/2 months. This conduct of the returned candidate is also reprehensible and it can be safely inferred that the technical objection, which is also found to be totally unfounded in law, has been raised only with an oblique motive to delay the hearing of the election petition on merit.
22. In the result, the miscellaneous application is held to be devoid of merit. Consequently, the same is hereby rejected with cost of Rs. 5000/-. The cost shall be deposited along with written statement. The costs imposed upon the respondent shall be payable to the election petitioner.