SANT PRASAD SINGH Vs. DASU SINHA

JUDGEMENT

(1.) The appellant, Sant Prasad Singh, filed a petition questioning the validity of the election of the respondent, Dasu Sinha, to the Bihar Legislative Assembly from the Naubatpur Assembly Constituency. The poll was held in the constituency on the 25th February, 1962, and the result was declared on the 28th of February, 1962. The appellant-petitioner made the election petition as a voter from that constituency, the other candidates Being Bhubneshwar Sharma, Tek Narain Lal Yadav, Jugeshwar Prasad, Mahendra Dusadh and J.N. Sahai. The relevant dates can be briefly set out as follows :

(2.) The Election Tribunal of Patna has given a finding against the appellant on all the points except in regard to the publication of the pamphlet appealing in the name of caste to the voters. The Tribunal has also found that the election petition is not maintainable on account of non-compliance of Sub-section (3) of Section 81 of the Act.

(3.) Learned Counsel for the appellant has taken up the question of maintainability of the election petition as the first point in his argument. He has contended that the application has been held to be not maintainable by the Election Tribunal on the ground that it suffers from the defect of non-compliance with the mandatory provisions of Section 81(3) of the Act, inasmuch as the copy meant for the respondent who is only one in number, was not attested by the petitioner under his own signature to be the true copy of the, original; secondly, it was also not accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice and the particulars thereof as required by the proviso to Subsection (1) of Section 83 of the Act. It is admitted that in the original, which was filed before the Election Commission, there is no defect, but in the copy which was attached to it for being served on the respondent as required under Section 81(3) of the Act, the petitioner did not mention that it was a true copy of the original nor were the particulars in support of the allegation of corrupt practice mentioned in the petition. The respondent filed before the Election Tribunal on the 6th September, 1962, the copy of the election petition alleging it to be the copy which was received by him from the Election Commission. A technical objection was, however, raised pa behalf of the petitioner that this copy was inadmissible, alleging that it was not the genuine copy and it was not formally proved to have been the copy served on him. The copy, however, exhibit M, has been held by the Election Tribunal to be admissible on the ground that the respondent Dasu Sinha stated on affidavit that this was the copy which was served on him through the Election Commission. But the petitioner could not swear an affidavit to controvert the allegation. The stamp marks on exhibit M were compared with the original election petition which was forwarded to the Tribunal by the Election Commission and, on a detailed comparison of the two, the Election Tribunal came to the conclusion that this was the copy which was satisfactorily shown by the respondent to have been served on him. It contained the entry that it was a true copy of the original which was certified to be so by the Election Commission and not by the petitioner. Section 81(3) lays down that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission, and every such copy shall be attested by the petitioner under his own signature to be the true copy of the petition. Since there was only one respondent in this case, one copy would have been sufficient. The certification of the copy served on the respondent Dasu Sinha, being a true copy of the original, was given by Sri K.K. Sethi, Under Secretary of the Election Commission, on the 16th of April, 1962. Mr. Birendra Prasad Sinha appearing for the appellant has contended that assuming that the copy served on the respondent was the copy marked exhibit M and even assuming that the petitioner did not attest it in his own handwriting or under his authority to be a true copy of the original, it was a mere irregularity inasmuch as the copy forwarded to the Election Tribunal by the Election Commission tallies in all respects with the copy served on the respondent and as such the irregularity, if any, is only formal and not real. Section 85, no doubt, lays down that the Election Commission shall dismiss the election petition if it has failed to comply with the provisions of Section 81, and similar power has been given to the Election Tribunal under Section 90(3) of the Act, providing that the Tribunal shall dismiss the election petition which does not comply with the provisions of Section 81, even though it has not been dismissed by the Election Commission under Section 85. The mere fact, therefore, that the Election Commission has not dismissed it, prima facie, would not preclude the Election Tribunal from exercising that power. Taking that view of the defect, the Election Tribunal has held the election petition to be not maintainable.