SATYA NARAIN Vs. DHAJA RAM

JUDGEMENT

(1.) THE election of Dhaja Ram respondent (the official Congress (R) Candidate) from the Safidon Assembly Constituency (Number 30) of the Haryana Legislative assembly has been called in question by Satya Narain petitioner, an Advocate of jind, who was defeated in the election in spite of securing 19462 votes as the first respondent secured 19570 votes, that is, 108 votes more than the petitioner. The petitioner has also claimed a declaration under Section 101 of the Representation of the People Act, 1951 that the petitioner be declared to have been duly elected. In the circumstances detailed hereinafter, it is not necessary to travel into the merits of the allegations of corrupt practices etc. , made by the petitioner. Whereas respondent No. 1 contested the petition the other defeated candidates, that is, respondents 2 to 4 did not put in appearance and were proceeded against ex parte. In his written statement dated May 22, 1972, respondent No. 1 (hereinafter called the respondent) took up various preliminary objections, out of which the first one was in the following words:-

(2.) AFTER hearing the counsel for the parties on the above mentioned preliminary objections, I noticed their respective arguments in my order dated May 26, 1972. It was not disputed that the copy of the petition furnished to the respondent had not been attested by the petitioner under his own signatures to be a true copy of the petition. The identity of the copy of the petition produced before me by the respondent as being one of the copies which had been furnished by the petitioner was not disputed. Counsel for the petitioner, however, pointed out that this single copy had by mistake been left defective in the above mentioned sense but as may as ten other copies prepared by him did not suffer from that defect. It was argued that whereas one copy of the petition had been served on the respondent in the ordinary manner through a process server, another copy had been served on him by registered post. This fact was admitted by the respondent. He was, therefore, called upon the produce the other copy of the petition which had been served on him. The argument of the learned counsel for the petitioner to the effect that the copy of the petition served on the respondent being signed by the petitioner both at the place meant for his signatures and also under the verification, it should be held that there has been substantial compliance with the requirements of sub section (3) of Section 81 of the Representation of People Act, 1951 (hereinafter called the Act) was left over to be decided after seeing the duplicate copy of the petition served on the respondent. At the joint request of the counsel for the parties, the hearing of the arguments on the preliminary points was, therefore, adjourned to the next day. Mr. Jagan Nath Kaushal the learned counsel for the respondent, submitted on the next day that his client did not receive the duplicate copy of the election petition by registered post. After hearing the remaining arguments of the counsel for the parties, it was thought unnecessary to travel into the merits of the controversy in view of the law settled in this respect by their lordships of the Supreme Court in Ch. Subbarao v. Member, Election Tribunal, hyderabad, AIR 1964 SC 1027. During the course of dealing with the first preliminary objection, the record of the case was scrutinised by me as well as by the counsel for the parties. As a result of that scrutiny, Mr. Kaushal urged another point which, according to him, was fatal to the maintainability of the election petition. Mr. Kaushal submitted that the petition when filed on April 18, 1972, was not accompanied by any spare copy and this defect was noticed by the Deputy Registrar (Judicial) at the time of the scrutiny of papers on April 24, 1972. Inasmuch as the limitation for filing the petition expired on April 27, 1972. Mr. Kaushal's argument was that the Deputy registrar had no jurisdiction to allow the fatal defect under Section 81 (3) of the act to be removed and that in any case there was nothing to show that the requisite spare copies were filed by the petitioner in the Registry of the Court on or before April 27, 1972, the last date of limitation for filing the petition. Mr. Anand Sarup the learned counsel for the election-petitioner, conceded the fact that the petition when filed on April 18, 1972, was defective in this respect but submitted that the requisite copies had been filed before the expiry of the period of limitation. He could not, however, at that time specify any date on which the copies had been filed. Mr. Kaushal also referred tot he defect regarding the schedules to the petition not having been filed by April 22, 1972, and submitted that this matter may also be taken up as a part of the issues to be framed in respect of his new objection. By my detailed order dated May 27, 1972. I repelled the first preliminary objection that had been raised by the respondent in his written statement; but put the new objections raised by the counsel for the respondent in issues Nos. 2 to 4. By the same order, I framed all the nineteen issues that arose in the case but directed that the first six out of those issues would be treated as preliminary. Evidence was led by the parties on those issues. In the course of hearing arguments on the preliminary issues, counsel for the parties prayed vide their statements dated November 30, 1972, that issue No. 6 relating to the claim of the petitioner for recounting of votes may not be treated as preliminary and may be decided only if and after the evidence of the petitioner has been led on issues Nos. 7 to 14 also. In these circumstances, I am dealing in this judgment with preliminary issues Nos. 1 to 5 only and I am not entering into the merits of the controversy covered by issues Nos. 6 to 19. Following are the first five issues:-

(3.) I will deal with each of the above mentioned five preliminary issues seriatim. Issue No. 1