T PHUNGZATHANG Vs. HANGKHANLIAN MLA

JUDGEMENT

(1.) The petitioner in Election Petition No. 1 of 2000 was a candidate for the 48-Churachandpur Assembly Constituency in the 7th Manipur Legislative Assembly Election. In the said election, respondent No. 1 was declared elected from the saidconstituency on 26-2-2k. Respondents No. 2 and 3 were also the candidates for the said constituency in the said election. Respondent No. 5 is the Chief Electoral Officer, State of Manipur, and Respondent No. 6 was the Returning Officer for the Churachandpur Assembly Constituency. Respondents No. 7 to 10 were the Presiding Officers of different Polling Stations in the said constituency. In the Election Petition, the case of the petitioner is that the respondent No. 1 and his agents/men committed various corrupt practices within the meaning of Section 123 of the Representation of the People Act,1951, (for short, "the RPA 1951") as narrated in the Election Petition and that the election of the respondent No. 1 was liable to be declared void under Section 100 of the RPA, 1951. The petitioner has inter alia prayed that the election of the respondent No. 1 be declared void and that the petitioner be declared elected from the said Assembly Constituency.

(2.) On 27-4-2k, the Court admitted the Election petition and issued notices to the respondents. The respondent No. 1, returned candidates, has appeared and filed Civil Misc. (Election) Case No. 3 of 2000. In the said Misc. Case, it has been stated in Paragraph 5 that copies of the affidavit supplied to the Respondents in support of the corrupt practices mentioned in the election petition did not contain due verification and attestation by the oath Commissioner or by the prescribed authority and that such omission in the copies of the affidavit supplied to the respondents as true copies was not a curable irregularity and the election petition was liable to be dismissed on this ground alone. Respondent No. 1 has also filed in Court the summons and the copy of the election petition received by him along with the summons to show that the copy of the affidavit along with the copy of the election petition does not contain verification or affirmation by the Oath Commissioner by the prescribed authority. Similarly, respondents No. 5 and 6 have filed a preliminary objection to the maintainability of the election petition stating in paragraph 1 thereof that the copies of the affidavit of the petitioner dated 9-3-2k in Form 25 prescribed by Section 83 of the RPA, 1951 accompanying the copies of the election petition furnished to the respondents-5 and 6 do not contain the affirmation by the Oath Commissioner. Along with the said preliminary objection, the summons from the Court and the copies of the election petition and the accompanying affidavit have also been filed to show that in the copies of the affidavit accompanying the copies of the petition as served on the said respondents No. 5 and 6, affirmation by the Oath Commissioner of the prescribed authority has been omitted. The Court therefore took up hearing on the aforesaid preliminary objection raised by the respondents No. 1, 5 and 6.

(3.) At such hearing on the preliminary objection, Mr. T. Nandakumar Singh, learned counsel appearing for the respondent No. 1, submitted that sub-section (3) of Section 81 of the RPA, 1951, provided that 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. He contended that the said sub-section (3) of Section 81 requires that a true copy of the election petition and a true copy of the affidavit have to be filed along with the election petition for each of the respondents. He further submitted that sub-section (1) of Section 86 of the RPA, 1951, provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 of the RPA, 1951. According to Mr. Nandakumar Singh, therefore, where a copy of the election petition and a copy of the affidavit filed along with the election petition under sub-section (3) of Section 81 of the RPA, 1951, contain omission of vital parts which exist in the original election petition, there is non-compliance of the provisions of sub-section (3) of Section 81 and the High Court is under a mandate under sub-section (1) of Section 86 of the RPA, 1951 to dismiss the election petition at the threshold. Mr. Nandakumar argued that since the copy of the affidavit accompanying the copy of the election petition served along with the summons the respondent No. 1 does not contain verification or affirmation by the Oath Commissioner or the prescribed authority as indicated in Form 25 under Rule 94A of the Conduct of Election Rules, 1961, (for short, Rules, 1961) the election petition is liable to be dismissed for non-compliance of the provisions of sub-section (3) of Section 81 of the RPA, 1951). In support of his aforesaid submission, he citedthe decisions of the Supreme Court in Dr. Shipra v. Shantilal Khoiwal, AIR 1996 SC 1691 : (1997) 10 SCC 294, in which the Supreme Court held that true copy of the election petition supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petitioner in his own signature and if such verification or attestation by the prescribed authority is omitted in the copy of the election petition furnished to the returned candidate, it cannot be said that a true copy of the election petition has been furnished to the returned candidate and the statutory requirement of sub-section (3) of Section 81 is not complied with and the election petition is liable to be dismissed at the threshold. Mr. Nandakumar Singh further submitted that in T. M. Jacob v. C. Poulose, AIR 1998 SC 2939, a slightly different question arose as to whether the name and designation of the Notary and the seal and stamp of the Notary also were required in the copy of the affidavit accompanying the copy of the election petition furnished to the respondents and as to whether in the absence of such name, designation, seal and stamp of the Notary in the copy of the affidavit as furnished to the respondents, there was non-compliance of the provisions of sub-section (3) of Section 81 of the RPA, 1951, and the Supreme Court was not too sure as to whether the principle indicated in the case of Dr. Shipra (supra) would apply to the facts of the case in T. M. Jacob v. C. Poulose and took a view that the matter required consideration by a larger Bench. Thereafter, the (sic) constitution Bench held in its decision in the said case of T. M. Jacob v. C. Poulose, (1999) 4 SCC 274 : (AIR 1998 SC 2939), that the defect found in the true copy of the affidavit in Dr. Shipra's case was not merely the absence of the name of the Notary or his seal and stamp, but a complete absence of Notarial endorsement of the verification as well as absence of affirmation or oath by the election petitioner. Mr. Nandakumar Singh explained that the Constitution Bench in T. M. Jacob v. C. Poulose (supra) has not in any way overruled or altered the law as laid down in Dr. Shipra's case. He therefore vehemently argued that the election petition should be dismissed by the Court at the threshold for non-compliance with the provisions of sub-section (3) of Section 81 of the RPA, 1951 in accordance with the aforesaid law laid down by the Apex Court.