M.S. Rane, J.
1. The petitioner in this petition has questioned the legality and validity of the election of the respondent herein to the Maharashtra Legislative Assembly from Palghar, district Thane Constituency No. 62 held on 12-2-1995 the result of which was declared after counting on 12-3-1995 in which the respondent was declared as elected having got highest number of votes being 55,399 votes as against 33,250 secured by the petitioner. In all there were five contesting candidates who secured votes less than the petitioner herein. Exhibit 'C' to the petition is the copy of the result as declared by the Returning Officer of the said constituency. The said Palghar constituency is a reserved constituency specifically for the members belonging to the Scheduled Tribe. According to the petitioner he belongs to the schedule tribe viz. Hindu Malhar Koli.
2. The petitioner has challenged the election of the respondent principally on the ground that she does not belong to the Schedule Tribe for which the said Constituency No. 62 was reserved and therefore was not eligible and qualified candidate for the said election from the said constituency. According to the petitioner the respondent belongs to Hindu Maratha caste. The petitioner makes a reference to the objection raised to the candidature of the respondent before the Returning Officer on 18-1-1995 questioning the candidature of the respondent and rejection of the objection raised by one Ramakant Ramchandra by the Returning Officer by his order dated 18-1-1995. The objection and order of the Returning Officer forms part of Exhibits A and B to the petition. The petitioner contends that the rejection of the objection by the Returning Officer was improper and illegal.
3. To substantiate the contention of the petitioner that the respondent does not belong to schedule tribe petitioner has made reference to the caste certificate issued to the respondent and school leaving certificates of the respondent and same of her other relatives like brothers, cousins. Copy of the school leaving certificate of the respondent has been annexed as Ex. D to the petition which shows the religion and caste of the respondent as Hindu Maratha. Further it is stated that the respondent had married to one Manohar Nimkar who is a Brahmin by caste.
4. Referring to and relying upon the material to which reference has been made in the petition the petitioner avers that the respondent was not qualified to contest the said election which exclusively remained reserved for the members belonging to schedule tribe and the rejection of the objection to her nomination by the Returning Officer was illegal. Challenge is made needless to say as provided under section 100 of the Representation of Peoples Act, 1951 (hereinafter referred to as the 'said Act' for brevity sake). The petitioner has inter alia sought relief that the election of the respondent to the Maharashtra Legislative Assembly from Palghar constituency be declared as null and void and the same be quashed and set aside and fresh election be ordered to be held in the said constituency.
5. Upon filing of the petition the respondent was served with the process therein and in response thereto she filed a written statement on 24-10-1995. Written statement has been declared on 22-8-1995. The respondent has categorically denied the contention of the petitioner. It is the case of the respondent that she belongs to the Schedule Tribe. She has relied upon the caste certificate issued to her by the Executive Magistrate, Palghar, district Thane which certificate shows that the respondent belonged to the Schedule Tribe. She has also made reference to the school leaving certificates of her close relatives such as brothers, sisters and cousins which make mention of their caste as belonging to the Schedule Tribe. She asserts that the caste certificate has been issued to her by the concerned authority under the statute viz. Executive Magistrate on consideration of the relevant record and on ascertainment of the facts about the caste. She further states that the Returning Officer has rejected the objection raised to her candidature on taking into consideration all these relevant aspects. In short, she denies the case of the petitioner that she does not belong to Schedule Tribe.
6. The respondent amended her written statement by an application presented subsequent to the filing of the written statement on 10-4-1996 inter alia raising contention that (i) the copy of the election petition served upon her by the respondent was not the true and exact copy of the original election petition filed in this Court and thus there is a failure on the part of the petitioner to comply with the statutory provisions as contained in section 81 of the said Act; (ii) it is also contended that on the date when the petition was presented by the petitioner before the concerned officer of this Court the same was defective and deficient in certain aspects which were very germane and material. The presentation of such defective petition is not a proper presentation of the petition as contemplated under the provisions of section 81 of the said Act, (iii) the third point taken up is that the defects in the petition were rectified/cured after expiry of the period of limitation for presentation of the petition and that being so, the petition as filed is beyond the period of limitation.
7. On the basis of the pleadings on 12-10-1995 and on 10-4-1996 following issues were framed :---
ISSUES
1) Whether the petition is not maintainable and as such liable to be dismissed for want of necessary particulars as required under the law and the rules?
1-A) Whether the petition is liable to be dismissed for non-compliance of provisions of sections 81 and 83 of the Representation of Peoples' Act and the Rules framed thereunder for not furnishing the true copy of the petition and affidavit accompanying in support of the petition.
2) Whether the petition is bad for non-joinder of necessary parties and as such liable to be dismissed?
3) Whether petitioner proves that the respondent does not belong to schedule tribe and as such was not eligible and qualified to file the nomination in the Palghar Constituency (No. 62) which is a reserved constituency for the candidates of schedule tribe?
4) Whether the respondent proves that she belongs to 'Malhar Koli and Warli' Caste and hence is a Tribal entitled to contest the Maharashtra Legislative Assembly Elections from Palghar Constituency in Thane District which is a Reserved Constituency?
5) Whether the Caste Certificate dated 4-2-1992 and Caste Certificate dated 16-12-1994 produced by the respondent were legal and valid?
6) Whether this Court has jurisdiction to make inquiries into the validity of the caste certificate?
7) What order?
8. It would be noticed from the aforesaid issues that Issue No. 1-A which was framed on 10-4-1996 was framed on the basis of amendment to the written statement of the respondent which was allowed by this Court as per her application being Chamber Summons No. 326 of 1996. The respondent by her separate application being Chamber Summons Sr. No. 326 of 1996 claimed the relief that the petition be dismissed in limine for want of compliance of the statutory provisions of the said Act in particular section 81 of the said Act. This relief is claimed under section 86 of the said Act.
9. Since as stated earlier the application is presented by and on behalf of the respondent for dismissal of the petition in limine for non-compliance of the statutory provisions, it has become necessary to consider the said application. It is however necessary to mention that the respondent presented both the applications at the stage when the trial of the petition as far as recording of the evidence is concerned from both the sides was concluded and the matter was listed for the arguments of the learned Counsel for the parties. Since the Court as stated earlier allowed the application of the respondent seeking amendment of the pleadings in the written statement which would relate back to the date of written statement and on the basis of which appropriate issue was framed being Issue No. 1-A and the said issue being an issue of law it was stressed on behalf of the respondent that the said issue be thrashed out as preliminary issue.
10. On the other hand on behalf of the petitioner it was strenuously urged that since the process of adducing evidence by both the parties has been concluded it would be appropriate and proper as also just that the matter is decided on merits as well.
11. It is true that the application on behalf of the respondent for amendment of her pleadings in her written statement and seeking determination of the preliminary point as a sequel to the amendment has been made at the belated stage. However, the point and issue sought to be raised having more or less legal implication and consequences a request made by the respondent for determination of the said preliminary point at the threshold would require consideration for obvious reasons. For that matter if it is proved and established that the petition as presented at the inception was defective which defect being of fatal nature and against the statutory provisions, then in the eyes of law the presentation of such petition would be entirely illegal and improper and inevitable result would be that the same would have to be dismissed as being not in accordance with the provisions of the said Act. It is therefore thought proper that the said preliminary issue is thrashed out first.
12. Before I proceed to consider the said preliminary issue it is necessary to advert to the evidence which has been adduced oral as well as documentary. On behalf of the petitioner he himself examined on oath and has also produced various documents in support of his case. On behalf of the respondent alongwith her two more witnesses have been examined who are Aval Karkun attached to the office of the Tahasildar, Palghar, District Thane who has produced the relevant record in respect of the issuance of caste certificate to the respondent by the Executive Magistrate and the third witness is the Deputy Collector who was at the relevant time Executive Magistrate and who had issued the caste certificate to the respondent. The said caste certificate is Ex. 15 on record. Now, turning to the preliminary point it may be stated that the respondent has sought to raise three contentions viz:
1) The election petition at the time when it was presented was defective in material respect. In as much as the requisite number of copies of election petition did not accompany the petition when presented as required under section 81 of the said Act and exhibits being annexures to the petition were not at all verified by the petitioner as required under section 83(2) of the said Act;
2) Copy of the petition served upon her is not true and correct copy of the original petition;
3) The defects in the petition were corrected or allowed to be corrected after the period of limitation by the officer of this Court who has no power to do so.
To be precise, it is contended that on the date when the petition was presented the same was defective and therefore was not a proper presentation as required under section 81 of the said Act.
13. Since the grievance is made as noticed earlier by the respondent that the copy of the election petition served upon her was not true and correct copy of the original election petition the respondent was directed to make available the original copy of the election petition served upon her along with notice of this petition issued by this Court and accordingly same has been produced before the Court and which forms part of the record and proceedings of this election petition.
14. On comparison of the original petition and its copy served upon the respondent it is found defective in the following respect which the respondent has highlighted:
1) It is not indicated at the end of the petition on page No. 10 whether the petitioner has signed the original petition and the space meant for it i.e. petitioner's signature has been left blank;
2) At the end of the verification on page No. 10 of the petition it is not indicated whether affirming authority, viz. Associate, High Court, Bombay has in fact got verified the petition as the space meant for the signature of Affirming Authority has been left blank in the copy furnished;
3) Exhibit 'A' at page Nos. 16 and 17 and Exhibit 'C' at page No. 20 do not indicate the name and designation of the affirming authority after verification and it does not show whether the said Exhibits of the petition being its annexures have been duly verified;
4) As far as Exhibits (annexures) B, D, E, F, G, H, I, and J are concerned, the same do not indicate whether the Affirming Authority has witnessed the verification and subscribed its signature in token of verification thereof;
5) Concise statement at pages 31 and 32 accompanying the petition does not show whether the same has been verified. It also does not mention the name and designation of the Affirming Authority and the space meant for the same has been left blank;
6) The affidavit accompanying the petition at pages 33-34 does not indicate whether the same has been affirmed. The name or designation of the Affirming Authority has not been at all mentioned thereupon.
This is as far as the copy of the petition served upon the respondent, is concerned.
15. It is further noticed and in fact so pointed out and focussed by and on behalf of the respondent that:-
i) The petition as endorsements made by the Master and Assistant Prothonotary of this Court on is docket shows, has been presented before him/her on 25th April, 1995 i.e. a day before the expiry of limitation period. However on the date of presentation of the petition, it was defective and suffered from lacunae in the following respect:
a) On the date of presentation, the annexures to the petition were not verified by the petitioner as required under section 83(2) of the said Act;
b) Verification of the annexures to the petition is done on 9th May, 1995, which is beyond the period of limitation;
c) Such verification of the annexures has been done or allowed to be done without the order of the Court i.e. the concerned Judge;
d) Such verification of the annexures, which are integral part of the petition, beyond the period of limitation is not permissible under the said Act;
e) At the date of presentation of the petition, requisite number of copies of the petition were not filed alongwith it and thus there is non-compliance of the provisions of section 81(3) of the said Act. Reliance for this is placed on the endorsement made on the docket of the petition by the office of the Court on 9th May, 1995 to read as '2 completed copies of petition to be supplied' and further endorsement of the same date to the effect that the 'objection complied with' by the Advocate for the petitioner, implying that two copies were furnished on 9th of May, 1995;
f) The office endorsement on the docket of the petition shows that the petition was filed on 10th May, 1995 which is beyond the period of limitation.
16. Highlighting these aspects, it is submitted that these defects were in the petition when it was presented and therefore the petition as presented before the Court on 25th April, 1995 being not in conformity with the statutory requirements, it should be taken that no petition has been presented within the period of limitation. It is emphasized that the validity of the petition has to be tested as on the date of its presentation.
17. Certain more facts connected to the deficiency as highlighted hereinabove and which are reflected from the record and proceeding of this election petition would require to be mentioned.
18. The endorsements made by the Master and Assistant Prothonotary of this Court on the docket of the petition indicate as under:-
i) The petitioner has declared and verified the petition on 25-4-1995 before the Associate of this Court;
ii) The petition has been lodged in office on 25-4-1995 and there is an endorsement to that effect made by the Master & Assistant Prothonotary on the docket in his/her hand writing reading as under:-
'The petition is presented by Shri Jagannath Shidu Rahane, the petitioner, today at about 3.00 p.m., who is identified by Mrs. S.A. Mudbidri, Advocate for the petitioner.
The petitioner is directed to deposit a sum of Rs. 2000/- towards costs.
Sd/- X X X
25-4-95'.
(Master & Asst. Prothonotary)
High Court.
On the inner page of the docket of the petition on 28-4-1995 the Officer of this Court has raised certain objections as mentioned therein:-
'Index incomplete.
Proforma to be annexed.
Exhibits to be marked in margin.
Pl. state about membership on V/N.
Ex-E-Pl. check which certificate.
(Page 34-Associates' stamp)
Sd/- X X X
28-4-95'.
On the same page there is further endorsement made by the officer of this Court which reads as under:-
1. 'Page 10- verification initial;
2. Mention true translations of exhs. which are in Marathi in averments.
3. 2 completed copies of petition to be supplied.'
Sd/- X X X
9-5-95.
On the same page there is also endorsement made by the Advocate for the petitioner Ms. S.A. Mudbidri reading as:
'Objections complied with.'
Sd/- X X X
9-5-95
4.15 p.m.
On the first page of the docket there is a rubber stamp: 'Filed 10-5-95', which would show that the petition was treated as accepted and duly filed on 10-5-1995 after removal of all the objections thereto by the petitioner.
19. In the context and in the light of contentions raised by and on behalf of the respondent in support of the preliminary issue mentioned earlier certain more aspects would need to be mentioned.
20. As noticed earlier results of the election were declared on 12-3-1995. Under section 81(1) of the said Act an election petition calling and/or questioning the election has to be presented within 45 days from the date of declaration of the results which would mean that 45 days would expiry on 26-4-95. The petition has been lodged on 25-4-1995 i.e. a day prior to the expiry of the period of limitation. However as noticed earlier the objection crept therein were removed by the petitioner on 9-5-1995 and the office of the High Court has accepted the said petition as being duly presented/filed on 10-5-1995 which is after the expiry of the period of limitation as prescribed under sub-section (1) of section 81 of the said Act. The point of limitation is urged on behalf of the respondent on this background.
21. On behalf of the respondent Ld. Counsel Mr. Manohar highlighted all these various deficiencies/mistakes/omissions and non-compliance. Ld. Counsel for the respondent submitted that on account of non-compliance of mandatory statutory requirements of section 81(1)(3) and sub-section (2) of section 83 the election petition presented on 25th April, 1995 was not in the eye of law a proper election petition. Besides copy of the election petition furnished to the respondent is not a true and correct copy thereof. Various deficiencies and defects in the election petition and variances in its copy furnished to the respondent are material and inevitable consequence would be that as provided under section 86 of the said Act, the election petition must be dismissed.
22. Learned Counsel for the respondent referred to the relevant legal provisions already mentioned hereinabove as also placed reliance upon certain authorities in support of his aforesaid contentions, the reference of which would be made later on.
23. As against this on behalf of the petitioner it was contended that so called deficiencies or non-compliance alleged are not material and the same are inconsequential and insignificant. In any event, it is submitted that the same were curable and in fact defects which remained in the original petition on the date when it was presented were cured or allowed to be cured by the office of this Court and therefore such defects have no longer remained in the petition warranting dismissal.
24. Learned Counsel for the petitioner also made reference to rules framed by this Court in respect of the trial of election petition under the provisions of the said Act and which are contained in Appendix II of the Rules & Forms of the High Court of Judicature at Bombay on the Original Side. In particular reference is made to Rule Nos. 7, 8 and 9 thereof. Said rules and their effect would be considered in the appropriate context and stage.
25. Petitioner's Counsel further asserts that the omissions or defects are not of such a nature resulting in or causing any prejudice to the respondent. It is submitted that on receipt of the notice of this petition alongwith copy thereof the respondent appeared before the Court by engaging her Advocate and filed written statement. The issues were also settled on the basis of pleadings of the parties and trial commenced long back and both the parties including the respondent adduced the evidence without making any grievance with regard to the copy supplied to her. This being the position, the so called defects or deficiencies may not be made as an issue muchless a preliminary issue at the stage where proceedings in this election petition have reached before this Court.
26. It was also submitted by the learned Counsel for the petitioner that omissions to verify the exhibits/annexure to the petition on the date when it was presented would not amount to non-compliance of statute. It is stated that the annexures to the petition are not an integral part of the petition but the same are more in the nature of evidence which the petitioner seeks to rely upon. It is suggested therefore the omission on the part of the petitioner to verify the annexures as required under sub-section (2) of section 83 would not tantamount to non-compliance as such. It is also pointed that section 86 of the said Act does not cover section 83 and therefore non-compliance of sub-section (2) of section 83 should not be made as a ground for dismissal of the election petition.
27. As far as defects in the copy of the affidavit accompanying the copy of the election petition served upon the respondent and as mentioned hereinabove it is submitted on behalf of the petitioner that a separate affidavit of the petitioner was not necessary to be filed alongwith the petition as there is no ground of corrupt practice. The affidavit is necessary only when corrupt practice is one of the grounds as provided under section 83(1) of the said Act.
28. Learned Counsel also made reference to certain decisions of the Supreme Court which would be considered later on.
29. On the light of submissions and contentions raised by and on behalf of both the parties the crucial and decisive question will be whether the flaws and deficiencies as highlighted and pointed out by and on behalf of the respondent and more particularly mentioned hereinabove would tantamount to non-compliance of statutory provisions of the said Act.
30. It will be necessary to advert to the relevant provisions of the said Act. Firstly, section 81 which reads as under:-
'81. Presentation of petitions.---(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 forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates).
Explanation:---In this sub-section, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
1. ..... ..... ..... ....2. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition 3*** and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.)'
The plain reading of the said section shows that the election petition calling in question the election has to be filed within 45 days from the date of election (sub-section 1). Sub-section (3) enjoins that the election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and secondly every such copy shall be attested by the petitioner under his own signature to be true copy of the petition. The expression used in sub-section (3) as 'shall be accompanied by as many copies thereof' would clearly imply and mean that the copies of the election petition in the first instance have to be accompanied with the petition when it is presented and secondly the copy of such petition has to be a true copy and so attested under the signature of the election petitioner to be a true copy thereof. Said provisions are clear and eloquent needing no further elaboration.
31. Next relevant provision is one as contained in sub-section (2) of section 83 which runs as under:-
'83(2) Any Schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.'
The said sub-section (2) clearly provides that any schedule as annexure to the petition has to be signed and verified by the petitioner in the same manner as the petition. Verification is to be done in accordance with the provisions as contained in Code of Civil Procedure in particular Order VI, Rule 15 thereof. The provisions of Code of Civil Procedure have been made applicable to the proceedings under the said Act vide section 87 thereof.
32. From the above provisions it clearly emerges that the copy of the election petition to be furnished should be so true copy that nobody can by any possibility misunderstand it or get misled. A true copy means a copy which is wholly and substantially the same as the original. When the copies served contains clerical or typing mistakes which are of no consequences the same cannot be regarded as lethal flaw warranting dismissal of the petition. If the copy contains important omissions and substantial variations then it would amount to non-compliance of statutory provisions. It is also accepted principle in the context of dispute pertaining to the election under the provisions of the said Act that the concept of substantial compliance cannot be extended too far as to serious or vital mistakes which shed the character of true copy. In the context of flaws which have been highlighted by the respondent herein, bearing in mind these provisions, it is to be considered whether the mistakes pointed out are such serious as would tantamount to non-compliance of statutory provisions.
33. On consideration of statutory provisions as already noticed hereinabove and the rival submissions advanced as also various authorities referred to by both the parties I am of the view that the objections raised by and on behalf of the respondent in terms as aforesaid are well founded and merited. The result is therefore that such lacunae or flaws being of vital importance the same would go to the root of the matter and will clearly contravene the statutory provisions and therefore the inevitable consequences would be the dismissal of the petition.
34. The various flaws/mistakes/omissions highlighted and pointed out and which have been enumerated hereinabove with regard to the copy of the petition furnished to the respondent are discernible to naked eye and this could be ascertained by a comparison of the copy supplied to the respondent from the original petition. The petitioner has filed the affidavit in support of election petition which is at pages 33-34. True it is that in this petition the petitioner has not taken up the ground of corrupt practice questioning the election of the respondent. But it would be besides the point. In the matter herein the fact remains that the petitioner has in fact made an affidavit and has annexed the same to the petition. We are concerned mainly whether there is a compliance of section 81 of the said Act in furnishing a true copy of the petition. The various flaws in the copy of the petition furnished to the respondent have been noted hereinabove in para 14 to which there is no dispute and in my view there cannot be also as the same are apparent on the fact of it. Section 81 of the said Act contemplates of furnishing of true copy of the petition and the petition would include in the context of supply of copy thereof, alongwith the petition all its exhibits, annexures and schedules, which form its integral part. It is undisputed fact that the affidavit forms part of election petition and the copy furnished thereof does not indicate whether in fact the same was affirmed by the petitioner. Same also does not show the name and designation of the affirming authority. In my view, these are serious lacunae and omissions on the part of the petitioner.
35. Similarly, the concise statement which is at pages 31 and 32 of the election petition, the filing of which is statutory requirement as contained in sub-section (1) of section 83(a) of the said Act. From the original petition it is noticed that the petitioner has affirmed and verified the same before the Associate, High Court, Bombay. However as noticed and pointed out earlier copy furnished to the respondent does not so indicate.
36. As far as verification of annexures is concerned the fact that the same have been verified by the petitioner on 9-5-1995 is not in dispute. In fact from the original petition it is noticed---that all the annexures have been verified by him before the concerned officer of this Court on 9-5-95. It therefore clearly shows that on the date when the petition was presented i.e. on 25-4-95 the annexures/schedule to the petition were not verified as required under section 83 of the said Act. Therefore there is clear non-compliance of the provisions of the said Act in particular section 83(a)(1).
37. The submissions advanced by and on behalf of the petitioner that the annexures to the petition are not integral part of the petition and therefore the omission or failure to verify the same at the time of filing of the petition would not make any difference or affect the presentation of the petition. The learned Counsel has relied upon a decisions in the case of Manohar Joshi v. Nitin Bhaurao Patil & another, reported in : AIR1996SC796 and F.A. Sapa Etc. v. Singora & others etc., reported in : [1991]2SCR752a .
38. This aspect is thrashed out at this stage itself. At the outset it may be stated that the ratios or principles as enunciated in both these decisions by the Apex Court would be entirely inapplicable to the facts and circumstances as obtained in the matter herein. In the case of Manohar Joshi, (supra) it is noticed that the issue was for consideration whether the documents annexed to the petition were its integral part or merely as evidence of the pleadings. On facts of that case, it stood established that certain annexures to the petition were referred to as part of evidence and therefore the Court held that failure to annexe the relevant annexures would not amount to non-compliance of sub-section (3) of section 81 of the said Act. Whereas in the instant case, this is not the position. In as much as annexures which form part of this petition include vital and relevant documents such as cast certificates, school leaving certificates, decision of the Returning Officer, etc. efficacy and legality of which has been challenged and questioned by the respondent. Such documents are most crucial and germane on the issues and objections raised in this case and in my view in this matter the same constitute integral part thereof. The ratio of the decision as contained in the case of Sapa (supra) would also not attract in the facts and circumstances as obtained in the matter herein. In that case the facts show that petition in fact was verified and there were some defects in the verification and which the Apex Court held can be cured and the Court should allow the petitioner to cure the same. Whereas in the instant case this is not the point. In as much as there were total absence of the verification of the annexures to the petition. It may be added, in the said decision in para 28 the Apex Court has clearly observed :---
'If, however, the affidavit or the schedule or annexure form an integral part of election petition itself, strict compliance would be insisted upon.'
The above observation leaves no doubt that the failure to comply with the statutory requirements in respect of presentation of the election petition and furnishing of its true copy upon the opposite party is mandatory without any exemption.
39. One more aspect would need consideration in the context of rules which have been framed by this Court with regard to the conduct of trial of election petition presented under the provisions of the said Act. Rules 6 to 9 are germane and which provided as under :---
'6. The election petition along with the necessary copies may be presented at any time during the Court hours. Immediately after it is presented, the date of presentation shall be endorsed thereon, and the petition shall be entered in a special register maintained for the registration of election petitions.
7. After the petition is presented, the party or Advocate shall be asked to attend the office on the third day from the date of the presentation to remove objections, if any. An undertaking in writing will be obtained from the party or Advocate to remain present in the office on the date appointed. The petitioner shall furnish his address preferably in Bombay or Nagpur, as the case may be, where any communication may be addressed to or served on him.
8. The office shall examine the petition with a view to see whether it is in conformity with the requirements of law and the rules applicable to the same, and if it is not in conformity with law and the rules, raise objections which could be removed by the party or the Advocate concerned. These objections should be brought to the notice of the party or the Advocate on the date fixed for attendance under Rule 7 and such objections shall be removed, subject to the orders of the Judge, if any, within two days thereafter.
9. Immediately after the time fixed for the removal of objections, the petition shall be placed before the Judge for such orders as may be required to be passed under section 86 of the Act. If the petition is not dismissed under section 86(1) of the Act, a summons, on the direction of the Judge, shall be issued to the respondents to appear before the High Court on a fixed date and answer the claim or claims made in the petition. Such date shall not be earlier than three weeks from the date of the issue of the summons. The summons shall be for written statement and settlement of issues and shall be served on the respondents through the Sheriff in Greater Bombay, and through the District Judges in the rest of the State, in the manner provided for the service of summons. The Prothonotary and Senior Master and the District Judge will make their best endeavor to serve the summons on the respondents and make a return of the service of the summons with the greatest expedition.'
39-A. By reading the above rules it would be noticed that the election petition has to be presented along with necessary copies which is also requirement of section 81 of the said Act. Rule 7 provides for the removal of objections if any, which may be raised by the concerned officer attached to this Court in respect of election petition presented under Rule 6 above. Rule 8 which is very important in the scheme of the rules framed authorises or empowers the officer of this Court to ascertain and verify whether the petition as presented is in conformity with the requirements of law. The said rule further provides that 'such objection shall be removed, subject to the orders of the Judge, if any, within two days thereafter.' Rule 9 provides for the placing of the election petition before the concerned Judge for passing an order under section 86 of the said Act.
40. I have already mentioned hereinabove as to how the petition came to be processed right from the time when it was presented before the Master and Assistant Prothonotary. The petition has been presented as is clearly borne out from the endorsements before the Master and Assistant Prothonotary, High Court. The first time the petition has been placed before the Court on 20-7-1995. Various deficiencies or objections were allowed to be removed by the office on 9-5-1995. It clearly shows that the matter was not placed before a Judge as required under Rules 8 and 9 of the said rules either at the stage of raising objections or at the time when the objections were allowed to be removed. There is no order of the Judge to the effect that the petitioner should be allowed to remove various objections which have been noted down by the concerned officer. It is obvious that it is the officer concerned who raised the objections and allowed the petitioner to remove the said objections, without placing the matter before the concerned Judge or bringing to his notice. It is also clear that the objections were removed and allowed to be removed after the period of limitation.
41. On reading the relevant rules of this Court which are already reproduced hereinabove, I do not find that the same explicitly or impliedly authorise or empower the officer of this Court to allow the party the election petitioner to cure the defects and deficiencies in the petition without order of the Court. It will therefore be a legitimate question as to whether what the concerned officer of this Court has done in the matter would be permissible either under the said rules or under the statute.
42. The second point which emerges is that the objections were allowed to be removed on 9-5-95 and the petition has been accepted, as the endorsement shows and as mentioned earlier on 10-5-1995. It clearly shows that the petition as such has been properly filed and/or presented in this Court on 10-5-1995 which is beyond the period of limitation as provided under section 81(1) of the said Act. The petition has been accepted as duly filed by the office itself on 10-5-1995. No Judge was concerned or involved upto that stage. The matter in such a situation ought to have been placed before the Court, meaning thereby before the concerned Judge and his orders and directions sought. Rue 9 makes it so imperative. On plain reading and construction and interpretation of the relevant rules framed by this Court under the provisions of the said Act, in my view, this would be proper and appropriate course to be followed and adopted in the situation as obtained in the matter herein. The Court wishes to make it clear that the officer of this Court, be it Prothonotary & Senior Master or Master and Assistant Prothonotary or for that matter any officer concerned has no power or authority to allow the curing of the deficiencies or rectifying defects in the petition after expiry of the period of limitation either under the High Court Rules or under the said Act. In my view, all steps which have been taken by the concerned officer in particular allowing removal of the objections after the period of limitation was wholly illegal and therefore not permissible.
43. In this connection, the position of the law as posited by the Supreme Court in the case of Satya Narain v. Dhuja Ram & others, reported in A.I.R. 1974 S.C 185 is clear on the point. The facts in that case show that the copies of the petition were filed after presentation of the election petition and beyond the limitation and this was sought to be justified under the Rules framed by the High Court (in the said case by Punjab & Haryana High Court). The Supreme Court, while dealing with the point, in para 18 of the judgment observed:-
'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 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.'
44. This Court has occasion to consider the similar situation as obtained in the case in hand, in the context of the provisions of the rules of this Court in the case of Ashok Shankar Gholap v. Krishnarao H. Deshmukh and another, reported in : AIR1980Bom224 . Following ratio of the Supreme Court in Satya Narain's case (supra) in para 10, this is how the position has been explained:-
'10. It is also not open to the petitioner to argue that under the Election Rules framed by the High Court the Officer concerned has a right to ask the parties or Advocate to attend the Office on the third day from the date of presentation of petition to remove the objections and the Advocate or the party is entitled to remove such objections within two days thereafter. From these rules it cannot be deduced that even in a case where an election petition is filed on the last date of limitation, the petitioner would get an additional 5 days for removing objections. Before the expiry of the period of limitation the petition must be before the High Court without any objections relating to non-compliance with section 81(3). In other words, all such objections must be removed by the petitioner before the period of limitation expires.'
45. As noticed and stated earlier the endorsement made on the docket of the petition by the concerned officer on 9-5-1995 shows that two completed copies of the petition were to be supplied. It clearly shows that as on the date when the petition was presented the copies of the petition were not furnished. Attempt is made by and on behalf of the petitioner by taking recourse to Rule 10 of this Court Rules which requires furnishing of extra copy of the petition for service alongwith notice by registered post. It is relevant to note that the petitioner has not explained in his affidavit filed in reply to the application of the respondent that two copies of the petition were required to be furnished under the said Rules of the Court. Apart therefrom admittedly in this petition there is only one respondent and what Rule 10 provides is of furnishing of one extra copy. If the petitioner has already furnished one copy as there is only one respondent then it is not explained by him why the petitioner was called upon to furnish two copies of the petition and why he furnished two copies on 9th May, 1995 without any protest. In the absence of any explanation of the petitioner in his affidavit it would not be possible to accept such a belated explanation which is not supported by his pleadings. In this context I may also usefully make a reference to the endorsement made by the Master and Assistant Prothonotary, High Court, Bombay on 25-4-1995 which has already been reproduced hereinabove. Said endorsement would show that the petition has been presented by the petitioner. It does not mention about the furnishing of copy or copies of the petition. If needed the copy of the election petition was furnished it would have certainly reflected in the endorsement made by the concerned officer. It therefore clearly follows that at the date when the petition was presented required number of copies of the petition did not accompany the petition as required under section 81(3) of the said Act.
46. The learned Counsel for the respondent is therefore right and justified in his contention that this petition has been duly filed only on 10-5-1995 which is beyond the period of limitation. I have already held hereinabove that the annexure to the petition at least some of them do form the integral part of the petition. Record clearly shows that as on date of the presentation of the petition on 25-4-1995 verification thereof was not done by the petitioner. Such verification has been permitted by the officer who as held earlier has neither power or authority to do so.
47. Now, coming to the copy of the election petition as noticed earlier there are material omissions and variances more particularly specified in para 14 of this judgment. The affidavit accompanying the petition does not show whether in fact the same has been affirmed and if so the name and designation of the affirming authority. Similar is the position as far as the concise statement is concerned. It is not the question whether verification is to be done in a particular manner or otherwise. Moot point is furnishing of true copy of the original election petition. The copy admittedly furnished to the respondent does not show and indicate whether the affidavit in question as also concise statement accompanying the petition were in fact duly verified or not. In such a situation it cannot be said that the copy of the election petition served upon the respondent is true and correct copy of the election petition wholly or substantially. In my view, these are serious lacunae with regard to the supply of copy of the petition.
48. The legal position on the point in hand is very clear. The right to challenge an election is conferred under the said 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.
49. The Supreme Court in its decision in the case of Mithilesh Kumar v. Baidyanath, reported in : [1984]2SCR278 and Rajendra Singh v. Smt. Usha Rani & others, reported in : [1984]3SCR22 and cited on behalf of the respondent, has laid down that the copy of the election petition which is required to be supplied to the returned candidate has to be wholly and substantially same as original. If such copy contains important omissions or discrepancy of the fatal nature which are likely to cause prejudice to the defence of the returned candidate then the same cannot be said to be substantial compliance of the provisions of section 81(3) of the said Act.
50. It is further held that the mandate contained in sub-section 81(3) cannot be equated with section 537 of the Code of Criminal Procedure which allows certain omissions as a curable irregularity and no such concept can be imported into the election law because the object of the law is that the electoral process should not be thrown out unless the grounds mentioned in the Act are clearly and fully proved.
51. The aforesaid view has been reiterated and reaffirmed in the case of (Dr. (Smt.) Shipra v. Shri Shantilal), . The absence of endorsement on the copy of the affidavit by an authorised officer administering oath on affirmation is held to be in violation of section 81(3) of the said Act. In the said decision reliance has been placed to the various decisions including those which have been referred to hereinabove.
52. Reference be made to two recent decisions of this Court in Election Petition No. 16 of 1995, Shri Anil Umrao Gote v. Rajwardhan Raghujirao Kadambonde @ Rajubaba, decided on 1-12-1995 and Election Petition No. 2 of 1995 Chhagan Bhujbal v. Balaram Dagdu Nandgaonkar & others, decided on 2-2-1996 (both unreported) where issue was the same as in the case herein in the context of compliance of the provisions of sections 81(1) and 81(3) of the said Act.
53. True it is that the respondent has raised this objection at a very belated stage. However, since the defects and deficiencies noticed in this matter are of fatal nature and go to the root of the matter and the same are clearly in contravention of the statutory provisions that will not affect the merits of the objections raised. Question of prejudice in such situation is besides the point.
54. In the circumstances the preliminary objection raised by and on behalf of the respondent for the maintainability of the petition vide issue No. 1-A has to be answered in favour of the respondent. Consequently, petition has to be dismissed.
55. Before, parting, certain aspects which have been placed before this Court in this matter, impel me to take cognizance thereof. The principal challenge in this matter as noticed earlier is to the caste certificate - social status certificate Ex. 15 issued to the respondent as a member of the Scheduled Tribe by the Executive Magistrate on the strength of which she successfully contested the election in question impugned in this petition, which is a reserved constituency for a member of the Scheduled Tribe. The evidence made available before this Court reveals the manner in which the caste certificate has been procured and easily issued by the Executive Magistrate R.W. 3, without making proper inquiry and without examining and scrutinising the relevant material.
56. School record i.e. school leaving certificate which is Ex. 16 clearly mentions the respondent's caste as Hindu-Maratha, which is not notified as Scheduled Tribe. According to respondent she belongs to Hindu Malhar-Koli Tribe which is notified as a Schedule Tribe, and has obtained caste certificate by relying upon the caste certificates of her relation, such as brothers and cousins, which describe their caste as Malhar Koli. It is however significant to note that the respondent has not offered cogent and convincing explanation as to how school record shows her caste as Hindu-Maratha, either before this Court or even before the Executive Magistrate who issued her the caste certificate. File containing record in respect of issuance of caste certificate to the respondent has been produced which is Ex. 16 wherefrom it is noticed that no proper inquiry has been made to verify the real facts. Record shows that Talathi and Circle Inspector have made a show of inquiry by recording statements of some persons, whose identity cannot be made out. Particulars such as their full names, addresses as also social status are totally wanting. The same also do not show their relations with the respondent. The Executive Magistrate has simply or rather blindly relied upon such inquiry without scrutinising or examining or verifying the genuineness thereof. It is noticed that he has completely ignored the school leaving certificate of the respondent, which as stated, shows her caste as Hindu Maratha and which has great probative evidencing value in determination of caste. Instead he has relied upon the documents furnished by the respondent, such as certificates of her relatives which cannot be held to be conclusive proof to determine the caste claim. The testimony of Executive Magistrate (R. No. 3) who issued a caste certificate to the respondent clearly bears out that he did not conduct proper inquiry on consideration of the entire material together with sociological, anthropological and ethnological perspective of the caste in question. For that matter, elderly close relatives of the respondent such as paternal uncles were available but have not been examined. The Supreme Court has in the case of Kumari Madhuri Patil v. Addl. Commissioner & others, reported in : AIR1995SC94 , laid down the type of inquiry to be conducted and procedure to be followed in such caste claims. I will cite guideline Nos. 4 and 6 appearing in para 12 of the said judgment, which would bring home the point.
'4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in the verification and issuance of the social statues certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, part of or group of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged, in the pro-forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the concerned casts or tribes or tribal communities etc.'
The material placed before this Court does not show that the Executive Magistrate made such an inquiry.
57. Even while dismissing this petition, this Court thought it appropriate to make this observation since the Constitution has guaranteed various privileges to the Schedule Tribes including provisions for Reserved Constituency. (See Chapter XVI of the Constitution) with a view to provide them facilities and opportunities and a proper and eligible persons get benefit of the same at the same time eliminating unscrupulous persons misusing or wrongfully gaining benefit of the same. It is hoped that State Election Commission shall take note of the same in particular guidelines as laid down by the Supreme Court in Kumari Madhuri Patil's (supra) and ensure to follow the procedure in regard to the caste claim of a member availing of the benefit of contesting election from the Reserved Constituency. The Prothonotary & Senior Master is directed to forward the copy of this judgment to the Authority in-charge of the Election Process in this State, specifically drawing attention to paras 55 to 57 thereof.
58. In view of my findings on the preliminary issue as above this petition has to be dismissed. Hence the following order :-
(i) Petition stands dismissed;
(ii) However in the circumstances of the case that the preliminary point was raised by and on behalf of the respondent at the belated stage, practically after conclusion of the trial, there will not be order as to costs.
(iii) Amount deposited by the petitioner stands forfeited to the Government;
(iv) Office of this Court to take appropriate steps to communicate this decision to the concerned authorities as provided under the rules.
(v) As directed in para 57 of this judgment, Prothonotary & Senior Master, High Court, Bombay to forward copy of this judgment to the Election Commission of this State, drawing attention to paras 55 to 57 thereof.
Note: Copy of this judgment be also made available to the Prothonotary & Senior Master, who shall note the observations/findings in paras 39 to 52 and who shall appraise the concerned official-in-charge of accepting Election Petitions filed in this Court.