HARVINDER KAUR Vs. PRESIDING OFFICER ELECTION TRIBUNAL

JUDGEMENT

(1.) THE petition is at the instance of a successful candidate to the election of Sarpanch on being served with notice for setting aside the election before the Election Tribunal. The candidate filed an application under Section 76 for dismissal or rejection of the election petition and stated that the petitioner had not supplied the true and attested copy of the petition, affidavit and documents to respondent No.1 ('petitioner' herein). She also requested for a preliminary issue to be framed whether the petition supplied is an attested copy of the petition and whether she has not complied with the mandatory provisions of the Punjab State Election Act, 1994. The respondent who was the petitioner before the Tribunal filed a reply denying that she had not complied with the mandatory provisions and had not supplied the true and attested copy. She also stated that there was no need for framing of preliminary issue.

(2.) THE case was previously proceeded without taking up a preliminary issue till this Court intervened in a revision filed by the present petitioner earlier to direct that preliminary issue shall be disposed of. On direction from this Court, the present petitioner submitted before the Election Tribunal, the copies received by her did not bear the attestation of the party that they were all true copies. While deciding the objections taken by the petitioner, the Election Tribunal relied on some portions of the judgment in T. Phungzathang Vs. Hangkhanlian and others, decided on 28.08.2001, that paraphrased the Constitution Bench judgment in T. M. Jacob Vs. C. Poulose and others, 1999 4 SCC 274, to say that the objectors serving a copy and the affidavit in support of the allegations is to enable the respondents to understand the charge and the requirement was one of the substance and not of form. The Election Commission, therefore, held that it was not shown before him that the copy furnished to the elected candidate to be different from the original, and therefore, the candidate could file a reply and there was no ground for holding that statutory mandate had not been complied with.

(3.) LEARNED counsel appearing on behalf of the petitioner/ applicant before the Court below points out that the judgment of Hon'ble the Supreme Court was in the context of the objection taken to election petition that did not contained due verification and attestation of the Oath Commissioner. The Court was actually examining whether there was a violation of mandate under Section 81 (1) and 83 (i) of the Representation of People Act. The Court was making specific observations that every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner. What was lacking in the case was the signature at the end of the document as well. The Court said that a fresh signature below the word of the petitioner was not necessary when every page of the copy served had been attested to be a true copy. Elsewhere in the same judgment the Court held after setting out its earlier decisions, that the copy supplied did not contain the verification or affirmation made by the Oath Commissioner but contained no omission of an affirmation that it was true copy, by the party. The Constitution Bench judgment in Jacob's case was found to be, therefore, applicable and that the statutory compliance was to be required in substance and not merely in form. Section 76(2) and Section 80 of The Punjab State Election Commission Act, 1994 is reproduced as under: -