DINANATH SHARMA Vs. TARUN PRASAD CHATTERJEE

JUDGEMENT

(1.) BY this order, the application (I.A. No. 50/99) under section 86(1) of the Representation of the People Act, 1951, (hereinafter referred to as 'Act' for short), is being disposed off. By this election petition under sections 80 -A and 81 of the 'Act' the petitioner challenges the election of the respondent to the legislative assembly in election held on 25 -11 -1998, from Raipur Gramin Assembly Constituency. The respondent averred in their application (I.A.50/99) that section 81(3) of the 'Act', requires that every election petition shall be accompanied by as many copies thereof as there are respondents and every such copy shall be attested by the petitioner under his own signatures to be a true copy of the petition. It has been alleged in the application that the copies of the election petition as well as annexures, served on the respondent have not been duly attested to be true copy, and that the copies do not fulfil mandatory requirement as above, of section 81(3) of the 'Act'. It has therefore been prayed that the election petition be dismissed under section 86(1) of the 'Act'. The election petitioner in his reply denied the averments as above. It was denied that the copies of the election petition and the annexures thereof do not meet the requirement of section 81(3) of the 'Act'. It was, therefore, prayed that the application (I.A. No. 50/99) under section 86(1) of the 'Act' be dismissed. The learned counsel for the respondent has urged that each copy of the petition to be furnished in accordance with section 81(3) of the 'Act' is required to be mandatorily attested under the signature of the petitioner as true copy of the petition. It has been submitted that as the schedules and annexures to the petition form integral part of the petition; therefore, not only the copy of the petition but the schedules and annexures thereof are also required to be attested as true copy under the signature of the petitioner, under section 81(3) of the 'Act'. Reference in this connection has been made by the learned, counsel for the respondent to a judgment of the Rajasthan High Court in Dr. Jaswant Singh Chowdhary vs. Mr. Paras Ram Maderna (14 ELR 530). It has further been submitted that the Apex Court in Sharif -ud -Din vs. Abdul Gani Lone, : AIR 1980 SC 303, has held that the requirement that copy of election petition intended for service on the respondent may be attested by the petitioner under his own signature, is a mandatory requirement and the non -compliance with that requirement should result in dismissal of the petition as provided in section 94(1) of the Jammu and Kashmir Representation of people Act, 1957 (4 of 1957), which corresponds to section 86(1) of the 'Act'.

(2.) AS against this, the learned counsel for the petitioner submitted that the copies served on the respondent were prepared by same mechanical process; by which the original election petition and its annexures were prepared. It has been submitted, in the above context, that the copy of main election petition served on the respondent is the carbon copy of the original election petition; while the annexures accompanying the original election petition are also photocopies of the original and that the copies thereof served on the respondent were also identical photocopies simultaneously prepared in the same process of photocopying. It has thus been submitted that the annexures filed along with the petition and that furnished to the respondent are identical in nature. It has further been submitted by the learned counsel for the petitioner that the copies have also been duly verified and attested under the signature of the petitioner as is the case with the annexures filed with the original petition. It has therefore been urged that there is no material difference between the annexures accompanying the election petition and the copies of annexures furnished to the respondent along with the copy of the election petition. It has further been submitted that since the copies of the petition as well as the annexures furnished to the respondent bear the signatures of the election petitioner below the endorsement of verification, the requirement of attestation of section 81(3) of the 'Act' stands duly complied with; and mere absence of words 'true copy' above the signatures of the election petitioner, would not attract the objection of non -compliance of section 81(3) of the 'Act'. The learned counsel for the election petitioner has thus submitted that since there was substantial compliance of section 81(3) of the 'Act', the objection raised on behalf of the respondent that the petition deserves to be dismissed under section 86(1) of the 'Act', deserves to be rejected. Learned counsel for the petitioner in this connection has relied upon Ch. Subbarao vs. Member, Election Tribunal Hyderabad and others : AIR 1964 SC 1027, Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore and others, : AIR 1964 SC 1545 and Dr. Anup Singh vs. Shri Abdul Ghani and others, : AIR 1965 SC 815. In view of the aforesaid objections raised by the respondent in I.A. No. 50/99, it has to be considered as to whether the copies of the petition and annexures thereof were duly attested by the petitioner under his own signature to be a true copy of the petition or not and as to whether the election petition deserves to be dismissed under section 86(1) of the 'Act' for non -compliance of the said provision? To appreciate the above controversy in its true perspective section 81(3) of the 'Act' is reproduced which reads:

(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. Thus in order to fulfil the requirements of section 81(3):