# SATYA NARAIN v. DHUJA RAM AND OTHERS

- **Citation:** [1974] 3 S.C.R. 20
- **Court:** Supreme Court of India
- **Decided:** 1973-12-21
- **Bench:** P. Jaganmohan Reddy, S. N. DWIVEDI .Alm P. K •. GoSWAM!
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satya-narain-v-dhuja-ram-and-others-6257
- **Pages:** 11

## Headnote

Represen1ation of the People Act, (43 o/1951) Ss. 81 (3) and 86 (l}-Whe1!1er
nTandatory or directory-Non-fding of requisite nun:ber of copies within period of
limitation-Effect of.
·
'
The first part of s. 81 (3) of the Representation of the People Act, 1951. provides
that every election petition shall be accompanied by as many copies thereof as there
are respondents mentioned in the petition, and s. 86 (l) provides that the High
Court shall dismiss· an election petition which does not comply with the provisions
~s.8L
I
.
The appellant filed an eJection petition challenging-the!respondent"s election to
the State Legislative Assembly, but did not file the requisite Dumber of spare copies
\\-1thin the period of limitation.
The High Court dismissed the petition on the ground of non-compliance with
· the mandatory requiremeot of s. 81 (3).
Dismissing the appeal to this Court.
HELD:
(Per P. Jaganmohan Reddy and P. K. Goswami, JJ.) Whether a particular
provision in a statute is mandatory or directory has to be construed from the
sckeme and object of the provisions. [2SH]
The right to cba11·!1ge an election is collrerred under the Representation of the
People Act. whic!:.. .lS made in conformity with the provisions of Art. 329 (b) of the
Constitution. It is a special right conferred under a self-contained special Jaw and
the Court will have to seek answers to the questions raised within the four corners
of the Act. The power of the court are circumscribed by the provisions. It is
not a common Jaw right and an election petition caimot be equated with a plaint
in a civil suit.; Since the principal object of the Act is purity of elections, when an
election is challenged under the Act, expeditious trial of the dispute ls sought to
be enforced by the Legislature making all safeguards against delay in getting rid
of any ta.int in the result of the election. But the very object of expeditious trial
will be defeated if the .presentation of the election petition should be treated casually
and lightly, pennitting all kinds of devices to delay the trial The purpose of en ..
cla!ing the copies of the election petition for all the respondents is to enable quick
d~patch of the notice with the contents of the allegations for service on the rcspon ..
dents. If there is any halt or arrest in the progress of the case, the object of the Act
will be completely frustrated. Therefore, the fust part of section 81 (3) is a
peremptory provision and total non-compliance with it will entail ilismissal of the
eJcction petition under s. 86. [27H; 99B--GJ
Jagat Kislwre Prasad }{arai11 Singh v. Rajindra KunUll' PoJJar. and Others. [J971j
J S.C.R. 821, Raza Buland Sugar Co. Ltd. v. }.funicipa/ Board Rampur [1965]
S.C.R. 1970, Montreal Street Railway Company v, Normandin, [1917] L. R. A. C.
170, Charan Lal Sahu v. Nand Kishore Bhatt and Others, [1973) 2 S.C.C. 759, Ch.
Sllhba Rao v. Member, Election Tribunal [1964] 6 S.C.R. 213 and Dr. Anup Sing/1
v. Abdul Ghant [1965] 1 $.C.R. 38, referred to,
Per Dwivedi J: The election petition is liable to be ·dismissed in view
ot the decision of this Court in Jagar JGshore Prasatj Narain Singh v. R.ajindra KunUJr
Poddar and others, [1971] l S.C.R. 821. But this makes s. 86 (I) a tyrannical
master giving primacy to proct;du~e over h'l.tice. But it is for Parliament to make
a just choice bctwee~ t:!te ~l mterest. m the supply of copies for expeditious
disposal and th.e sOCJal mterest m the punty of elcctton by excluding s. 81 (3) from
the purview of s. 86 (I).
.
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SATYA NARAIN v. DHUJA RAM (Goswami, I.)
21
C!vJL APP~TE JUIUSDicrlON: C::ivil Appeal No. 419 of 1973.
From the Judgement and Order dated the 22nd December 1972 of
the Punjab .and Haryana High Court at Chandigarh in Election Petition
No. 2 of 1972.
- ·
•
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'.
Hardyal Hardy, V. P. Chaudhry, Jitendra Sham1a ·and Sharma
Chaudhury and Rathi, for the appellant.
·
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M. N. Phadke, Bakhtawar Singh, D. N. Misra, and /; B. Dadachanji, for

## Text

20
SATYA NARAIN.
v.
DHUJA RAM AND OTHERS
December 21, 1973.
(P. JAGANMOHAN REDDY, S. N. DWIVEDI .Alm P. K •. GoSWAM!; JJ.]
Represen1ation of the People Act, (43 o/1951) Ss. 81 (3) and 86 (l}-Whe1!1er
nTandatory or directory-Non-fding of requisite nun:ber of copies within period of
limitation-Effect of.
·
'
The first part of s. 81 (3) of the Representation of the People Act, 1951. provides
that every election petition shall be accompanied by as many copies thereof as there
are respondents mentioned in the petition, and s. 86 (l) provides that the High
Court shall dismiss· an election petition which does not comply with the provisions
~s.8L
I
.
The appellant filed an eJection petition challenging-the!respondent"s election to
the State Legislative Assembly, but did not file the requisite Dumber of spare copies
\\-1thin the period of limitation.
The High Court dismissed the petition on the ground of non-compliance with
· the mandatory requiremeot of s. 81 (3).
Dismissing the appeal to this Court.
HELD:
(Per P. Jaganmohan Reddy and P. K. Goswami, JJ.) Whether a particular
provision in a statute is mandatory or directory has to be construed from the
sckeme and object of the provisions. [2SH]
The right to cba11·!1ge an election is collrerred under the Representation of the
People Act. whic!:.. .lS made in conformity with the provisions of Art. 329 (b) of the
Constitution. It is a special right conferred under a self-contained special Jaw and
the Court will have to seek answers to the questions raised within the four corners
of the Act. The power of the court are circumscribed by the provisions. It is
not a common Jaw right and an election petition caimot be equated with a plaint
in a civil suit.; Since the principal object of the Act is purity of elections, when an
election is challenged under the Act, expeditious trial of the dispute ls sought to
be enforced by the Legislature making all safeguards against delay in getting rid
of any ta.int in the result of the election. But the very object of expeditious trial
will be defeated if the .presentation of the election petition should be treated casually
and lightly, pennitting all kinds of devices to delay the trial The purpose of en ..
cla!ing the copies of the election petition for all the respondents is to enable quick
d~patch of the notice with the contents of the allegations for service on the rcspon ..
dents. If there is any halt or arrest in the progress of the case, the object of the Act
will be completely frustrated. Therefore, the fust part of section 81 (3) is a
peremptory provision and total non-compliance with it will entail ilismissal of the
eJcction petition under s. 86. [27H; 99B--GJ
Jagat Kislwre Prasad }{arai11 Singh v. Rajindra KunUll' PoJJar. and Others. [J971j
J S.C.R. 821, Raza Buland Sugar Co. Ltd. v. }.funicipa/ Board Rampur [1965]
S.C.R. 1970, Montreal Street Railway Company v, Normandin, [1917] L. R. A. C.
170, Charan Lal Sahu v. Nand Kishore Bhatt and Others, [1973) 2 S.C.C. 759, Ch.
Sllhba Rao v. Member, Election Tribunal [1964] 6 S.C.R. 213 and Dr. Anup Sing/1
v. Abdul Ghant [1965] 1 $.C.R. 38, referred to,
Per Dwivedi J: The election petition is liable to be ·dismissed in view
ot the decision of this Court in Jagar JGshore Prasatj Narain Singh v. R.ajindra KunUJr
Poddar and others, [1971] l S.C.R. 821. But this makes s. 86 (I) a tyrannical
master giving primacy to proct;du~e over h'l.tice. But it is for Parliament to make
a just choice bctwee~ t:!te ~l mterest. m the supply of copies for expeditious
disposal and th.e sOCJal mterest m the punty of elcctton by excluding s. 81 (3) from
the purview of s. 86 (I).
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SATYA NARAIN v. DHUJA RAM (Goswami, I.)
21
C!vJL APP~TE JUIUSDicrlON: C::ivil Appeal No. 419 of 1973.
From the Judgement and Order dated the 22nd December 1972 of
the Punjab .and Haryana High Court at Chandigarh in Election Petition
No. 2 of 1972.
- ·
•
'
'.
Hardyal Hardy, V. P. Chaudhry, Jitendra Sham1a ·and Sharma
Chaudhury and Rathi, for the appellant.
·
· ' ; ·
M. N. Phadke, Bakhtawar Singh, D. N. Misra, and /; B. Dadachanji, for respondent No. J.
The Judgment of P: JAGANMOHAN REDDY and P. K .. GoswM1i.
JJ. was delivered by Goswami, J. S. N .. Dwivedi, J. gave a separate
Opinion.
·
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GoswAMJ, J. This appeal under section 116A of the Representation
of the· people Act, 1951 (briefly the Act• is directed against the judgment
and order passed by the High Court of Punjab and Haryana in Election
Petition No. 2 of 1972 dismissing it on ·the preliminary ground that the
appellant had failed to- comply with the mandatory requirement of
section 81(3) of the Act inasmuch as the requisite number of spare
topies of the petition for the respondents were not filed along with the
petition in the High Court. It was further held by the High Court that
the said defect could not be cured subsequently even within the period of
limitation prescribed for filing the election petition. The High Court
further held that the spare Copies were actually filed beY.ond the period
of limitation.
The facts may be briefly stated. In the general election to the Haryana Legislative Assembly held on March II, 1972, the appellant and
the four respondents were the contesting candidates for the Safidon
Assembly Constituency No. 30; two candidates having already withdrawn from the contest. The counting of votes took place on March
12, 1972 and on the following day. The counting disclosed that the
first respondent obtained 19570 votes as against 19462 votes secured
by the appellant. The first respondent was, therefore, declared
elected on March 13,1972. The appellant filed an election petition in
the High Court challenging the election of the first re,pondent on several
grounds of corrupt practice within the meaning of section 123 of the
Act. It is not neeessary for the purpose of this case even to detail these.
The election petition was presented· by Mr. R. S. Mittal, Advocate incharge, to the Deputy Registrar (Judicial) of the High Court on April
18, 1972. The same was ordered to be put up for scrutiny on April
24, 1972. It is admitted that· the application was filed on April 18,
1972, without the requisite spare copies and was, therefore, incomplete
on the date of presentation. No schedules were also filed along with
the petition but that point is not pressed before us by the respondent's
counsel. It is also admitted that the limitation for filing the election
petition wa8 up to April 27, 1972. According to the appellant the spare
copies were filed with the Superintendent of the Election Branch in
the afternoon of April 24, 1972, well withill the period of limitation.
22
SUPREME COURT REPORTS
I 1974 l 3 s.c.11.
It may be necessary to briefly note the sequence of events for t.he
purpose of appreciating the controversy raised between the parties
as noted earlier, the election petition was presented personally by ~r.
Mittal without the spare copies on April 18, 1972, and the Deptuy Reips·
trar had ordered it to be put up on-April 24, 1972, for scrutiny accord!ng
to the rules of the High Court. When the petition came up for scrutmy
before the Deputy Registrar on April 24, 1972, Mr. Mittal appeared
and requested for time to remove the defects pointed out by the office.
It may be appropriate to extract that particular order :
"Present: Shri R. S. Mittal, Advocate. He has requested
time to remove the defects pointed out by the office. Let it be
refixed on 28-4-72, after the defects had been removed as
agreed to by the counsel.
Sd/·
D. D. Khanna
24-4-72"
The next order passed by the Deputy Registrar on April 28, 1972,
runs as follows:-
"Shri R. S. Mittal has informed me on the phone that he is
indisposed and as such the case may not be taken up . for
scrutiny to-day. Put up tomorrow, the 29th April, 1972 for
orders. Counsel may be informed.
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28-4-72"
The High Court has observed that it is common case of both side
that by the time the case was placed before the Deputy Registrar on
April 29, 1972, the spare copies of the petition had been filed by the
petitioner and the other defects had also been removed. The final
order of scrutiny passed by the Deputy Registrar on April 29, 1972,
is in the following terms:
"Present Shri R. S. Mittal, Advocate for petitioner.
The petition was filed on 18-4-72 and the result in this case
was declared on 13-3-72; hence it is within time. The petition is accompanied W!th the security receipt in the sum of Rs.
2,000/· deposited in this Court before filing of the petition under
the rules. The petition was scrutinised and as the defects
pointed out on the previous date have been removed, it is now
primafacie in order. Issue notice for scrutiny of service for 22nd
May, 1972, and for settlement of issues for 26th May, 1972.
Sd/-
D. D. Khanna
29-4-72".
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SATYA NARAIN v. DHUJA RAM (Goswami, !.)
23
The matter ultimately came up for hearing before the learned single
Judge to whom this election petition was assigned. Several
preliminary objections were taken by the sole contesting first respondent.
T~e other relpondents did not enter appearance. We are concerned
with only one preliminary objection, namely, that the petition :.vas
not inconformity with section 81(3) of the Act inasmuch as the requisite
spare copies thereof were not enclosed with the petition when it
was originally presented on April 18, 1972, and that the election petition \\'as liable to be dismissed.
~
The learned counsel for the appellant, Mr. Hardyal Hardy, has
made only the following two submissions before us
(I) The requirement under section 81 (3) of Representation of the
People Act, 1951 that spare copies of an election petition
shall accompany the petition, is directory and not mandatory.
( 2) It is substantial compliance with the said directory provision
if the spare copies of an election petition, instead of accompan·
ing the petition, are filed before the petition is laid before the
Judge for orders or even within the time that may be granted
by the Judge for the purpose.
Before the High Court both sides examined witnesses. To establish his case, the appellent examined himself as PW 6, the Election
Assistant, Shri 0. P. Popli (PW 3), Deputy Registrar, Shri D. D.
Khanna (PW 4), Shri R. S. Mittal, Advocate (PW 5), Shri Adish Chand
Jain, Advocate. (PW 7), Shri Jai Singh Dhillon, Advocate (PW 9)
and Shri Jaswant Rai, Advocate (PW 10). All the Advocates except
•Shri Mittal were from Jind. .Shri Mittal is an Advocate practising in
the High Court. Although the appellent summoned Shri Harsukh
Rai Hantroo, Superintendent of the Election Branch, and was present
in court on 20th July, 1972, when the first four witnesses were also
examined, Shri Mittal, who was conducting the case on behalf of the
appellant, made a statement before the court that he gave up Shri
Harsukh Rai Hantroo 'as unnecessary'.
The respondent's counsel,
however, submitted that he should be examined as a court witness
and the court ordered for his examination on that very day observing
that "in the interest of justice that the Superintendent of the Election
Branch who was the only other official working between the Deputy
Registrar (Judicial) on the one side and P.W. 3 on the other, should
also be examined to clarify the matters so far as possible .... ". The
respondent examined himself and R. W. Ch. Hari Ram, Senior sub·
ordinate Judge cum Chief Judicial Magistrate, Jind .
. /.:
The appellant sought to establish before the High Court that the spare
copies were submitted on April 24, 1972, by relying upon the endorsement of Shri Mittal, "objections removed, R. S. Mittal" (Ext PW 5/ l)
below the order of the Deputy Registrar of April 24, 1972, which we
have already set out. There is no date given by Shri Mittal when he
made his'endorsement in the order sheet of the Registry. PW 3, who·
had initially scrutinised the petition and found the defects, was on leave
24
SUPREME COURT REPORTS
C 1974 l 3 s.c.R.
on April, 24, 1972, and the Superintendent (CW 1) was only present.
According to Shri Mittal he went to the Election Office along with the
appellant and his Clerk, Manphool Sharma, and filed these papers at
2 · 00 P M. on April 24, 1972, and made also the above endorsement
(Ext. PW 5/1.) Although, however, Shri Mittal was conscious that the
papers had to be filed within time to save the defective petition from
being dismissed, curiously enough, he did not take the necessary care to
get any official endorsement in the order sheet by the Deputy Registrar
or even by the Superintendent of the Election Branch to the effect that
the documents were filed and defects were removed on that day, namely,
on 24th April, 1972, notwithstanding the further fact that he had
earlier at 11 .00 A.M. on the same day requested the Deputy Registrar
for time to remove the defects and the next date was fixed on April 28,
1972. In face of the order of the Deputy Registrar of 24th April,
Shri Mittal's responsibility as counsel was greater than he seemed to
have thought. On April 28, 1972, Shri Mittal informed the Deputy
Registrar over the phone that he was indisposed and requested for
· time till the next day which was given. He deposed that he had even
informed the Deputy Registrar that scrutiny cou,ld be made in his
absence since the defects had already been removed. On this particular aspect of the matter, the Deputy Registrar was silent in his
evidence and although it was Shri Mittal again who personally examined the Deputy Registrar in court, he never put this question to him
with regard to his informing him over the phone about removal of
defects on 24th April. Again, from Shri Mittal's evidence it appears
that, although he was feverish, he actually came to the Election Office
on April 28, 1972, in connection with Election case No. 3 of 1972
(Sagar Ram v. Banarsi Das & Ors.) and removed certain defects in that
case on that day, namely 28th April, 1972 although that case was set
down for April,
29,
1972, which date had been fixed by the
Deputjl
Registrar
in
his
presence
on
April
24,
1972.
There is an endorsement in that case by Shri Mittal, this time,
with date 28h April, 1972, below the order of the Deputy Registrar
dated April 24, 1972, to the effect "objections removed". The records
of that case were also called for in the High Court and were also
shown to us here. It is pointed out that the endorsement in that case
with date and the endorsement in Ext. PW 5/l of Shri Mittal are with
the same pen and ink as is even admitted by Shri Mittal. The respondent, therefore attaches great significance on the omission of the date
in Ext. PW 5/1 and describes the endorsement as a suspicious entry.
It is strenuously submitted by the respondent that the papers were
not submitted on April 24, 1972, as alleged. Since Shri Mittal asserted
in his evidence that he along with the appellant filed the spare copies
of the petition in the afternoon of April, 24, I 972; the respondent
by examining the Subordinate Judge (RW I) sought to establish
that
the
appellant
as
advocate actually appeared in his
court at Jind on April, 24, 1972, in a .contested civil suit (Kali
Ram v. Ram Tirath, etc.-Civil Suit No. 422 of 1967 on behalf of the
plaintiff where the defendent was cross-examined by him. The appellant denied this and stated that his junior, Shri Jai Singh Dhillon
(PW 9) actually conducted the case on that day. This point was also
$Ought to be supported by examining two other Advocates appearing
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SATYA NARAIN v. DHUJA RAM (Goswami, J.)
25
on bebalf of the defendent in that suit, namely, Adish Chand Jain
(PW 7) and Jaswant Rai (PW JO). It appears that Shri Dhillon even
did not file his vakalatnama in that suit and at one stage when he had
appeared on behalf of the appellant in that suit, it was recorded in the
order sheet, as was the practice of that court that he was appearing as
proxy for the original counsel. There was, however, no such entry in
the order sheet that he appeared on behalf of the appellant on April 24,
1972. From the evidence of RW I, who deposed from the records of
the suit produced in the court and gave some convincing reasons, the
High Court was reasonably and, in our opinion, rightly satis~ed that the
appellant appeared in the court of the subordinate Judge, Jind, on
April 24, 1972. The High Court has also rightly held that PWs 7 and 10
gave hazy evidence from their memory with regard to the appearance of
the appellant in the suit on April 24, 1972. The High Court also found
se~eral infirmities and contradictions in the evi?ence of. Shri.Mittal.
It is nobody's case that if the appellant appeared m the suit at Jmd on
24th April he could be present in the Election Branch dt Chandigarh
at 2.00 P.M. on that day. PW 3 has correctly deposed tb'.at "the words
'objections remov•fi' in the handwriting of Shri R.S. Miital, Advocate
and the signature of Shri R. S. Mittal
thereunder were not there
when he made the endorsement 'informed' (Ext PW 3/1) on April
28, 1972". Even the Deputy Registrar has admitted in his e.vidence
that the endorsement "objections removed" in the handwntmg of
and above the signature of Mr. R. S. Mittal was not made in his presence. He also stated that "I' do not recollect having seen this endorsement at the time I passed my order, dated April 28, 1972". The
evidence ·of the Deputy Registrar consistent with that of PW 3 is
rightly preferred by the High Court to the evidence of Shri Mittal, of
the appellant and even of the Superintendent of the Election B~ai;ich
who also deposed from memory. After again carefully exammmg
the evidence of all the witnesses on this point, we have no reason to
differ from the conclusion of the High Court that the requisite spare
copies of the election petition were not submitted by the appellant on
April 24, 1972.
We will, therefore, have to decide the first submission of the learned
counsel for the appellant on the basis that the spare copies were not filed
within the period of limitation.·
The short question is whether section 81(3) of the Act is mandatory
and, if so, whether non.compliance with the same will visit the election
petitioner with the penal[y of dismissa~ of his petition under section
86(1 of the Act. This question was moiited in Jagat Kishore Prasad
Narain Singh v. Rajindra Kumar Poddar and Others(') but the Court
did not find it necessary to decide the sa1~e.
Whether a particular provision in a statute is mandatory or directory
has to be construed from the scheme and object of the provisions.
(I I {1971 J (1) SCR 821.
26
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
This Court observed in Raza Buland Sugar Co. Ltd. v. Municipal
Board, Rampur(l) as follows:-
"The question whether a particular provision of a statute
which on the face of it appears mandatory, inasmuch as it
uses the word 'shall1'-as in the present case-is merely
directory cannot be resolved by laying down any general rule
and depends upon the facts of each case and for that purpose
the object of the statute in making the provision is the determining factor. The purpose for which the provision has been
made and its nature, the intention of the legislature in making
the provision, the serious general inconvenience or injustice
to persotts resulting from whether the provision is read one
way or the other, the relation of the particular provision to
other provisions dealing with the same subject and other
considerations which may arise on the facts of a particular
case including the language of the provision, have all to be
taken into account in arriving at the conclusion whether a
particular provision is mandatory or directory''.
The Privy Council also in Montreal Street Railiray Company v.
Normandin,(2)
observed to the same effect:
'The question whether provisions in a statute arc directory or imperative has very frequently arisen in this country
but it has been said that no general rule can be laid down,
and t~at in every case the object of the statute must be looked
at . ..... "
Now there are two parts in section 81 (3).". The first part provides
that "every election petition shall be accompanied by as many copies
thereof as there are respondents mentioned in the petition .... ".
The second part relates to the manner in which "such copy shall be
attested by the petitioner under his own signature to be a true copy
of the petition".
We are concerned only with the first part in this
appeal.
Part VI of the Act deals with disputes regarding election. Chapter
II therein provides for presentation of election petitions while chapter
III for trial of election petitions.
The right to challenge an election
is conferred under the Act which is made in conformity with the provisions of Article 329(B) of the Constitution. It is well settled that
it is a special right conferred under a self-contained special law and
the court will have to seek answer to the questions raised within the
four corners of the Act and the powers of the court are circumscribed
by its provisions.
It is not a common law right and an election
petition cannot be equated with a plaint in a civil suit.
We may, therefore, immediately read the material sections 80,
81(1) 81(3) and 86(1) which run as follows:-
(1) [1965] (I) SCR 970, 975.
(2) 1917 L. R. A. C. 170 (quoted in 1965 (I) S.C.R. at pages 975'976.)
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SATYA NARAIN v. DHUJA RAM (Goswami, l.)
Z7
Section 80:
"No election shall be called in question
except by an election petition presented
in accordance with the provisions of this
Part."
Section 81(1) :
"An election petition calling in question
any election may be
presented on
one or more of the grounds specified
in sub-sectio!l (1) of section 100 and
section 101 to the High Court by any
candidate at such election or any elector
within fortyfive
days from, but not
later than, the date of election of the
returned ca~didate, or if there are more
than one returned
candidate at the
election and the dates of their election
are different, the later of those two
dates."
Section 81(3):
Section 86(1) :
"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 of the
petition".
"The High Court shall dis1)1iss an electiorr
petition which does not comply with
the provisions of section 81 or section
82 or section 117.
Ex~lanati~i; :-An ord~r of th~ High Court dismissing
an election pell!lon under this sub-section shall be deemed to be
an order made under clause (a) of section 98".
Se~tion 86 (1) refers to three sections, namely, section 81, section 82,
which deals with parties to the petition and section 117 of the Act
providing for security for costs.
While dealing with section 117
of the Act this Court spoke through one of us (Reddy, J) in
Charan Lal Sahu v. Nandkishore Bhatt and others(!), and held
as follows :
. "The right to challenge an election is a right pro~ided by
Article 329(b) of the Constitution oflndia which provides that
no election to either House of Parlia~ent or to the House
or either House of the Legislature of a State shall be called in
q.uestion .except by an election petition presented to such authonty and m such manner as may be provided for by or under any
law made by the appropriate Legislature.
The right conferred
being a statutory right, the terms of that statute hild to be:
(I) (1973] (2) s.c.c. 530,533.
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SUPREME CQURT REPORTS
[ 1974 l 3 S.C.R.
complied with. · There is no question of any common law
right to challenge an election. Any discretion to condone the
delay in presentation ol the petition or to absolve the petitioner from payment of security for costs can only be provided
under the statute governing election disputes. If no discretion
is conferred in respect of any of these matters, none can be
·exercised under any general law or on any principle of equity.
This court has held that the right to vote or stand as a candid te
for election is not a civil right but is a creature of statute or special
1aw and must be subject to the limitations imposed by it. In
N. P.Ponnuswamiv. Returning Officer Namakkal Constituency
.and Others (I) it was pointed out that strictly speaking, it is the
:sole right of the legislature to examine and determine
all
·matters relating to the election of its own members, and if the
'Legislature takes it out of its own hands and vests in a special
·tribunal an entirely new and unknown jurisdiction, that special
jurisdiction should be exercised in accordance with the law which
· ·Creates it".
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Similarly in Krishan Chander v. Ram Lal (2) dealing with section
:82(b) of the Act and examining the scheme and the object of the provisions thi> Court again held the same as mandatory.
This Court
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.. observed:
"The provisions of sec. 82(b) would avoid any such
delay as they make obligatory for a person filing an election
petition when he makes an allegation of corrupt practice against
:any candidate to make him a party on pain of the petition being
.dismissed under section 86(1) if he omits to do ..... This
then is the rationale underlying the mandatory requirements
of section 82(b)". ·
'.It is true in Ch. Subba Rao v. Member Election Tribunal, Hyderabad(')
·reiterating two earlier decisions viz. Kamaraj Nadar v. Kunju Therar(4)
,and Murarkav. Roop Sing(5), the Court in view of the peculiar facts
oand circumstances of that case and the nature of the defects held
·that section 81(3) was substantially complied with and left open the
·wider question whether section 81(3) or any part thereof is mandatory
·Or directory. In'a'later decision in Dr. Anup Singh v. Shri Abdul
·Ghani and another(6), which followed Subba Rao's case
(supra),
·this Court observed :
"An exactly similar matter came to be considered by this
Court in Ch. Subba Rao v. Member, Election Tribunal (3). In
that case also the copies were signed by the petitioner but there
was no attestation in the sense that the words "true copy"
were omitted above the signature of the petitioner.
This Court
held that as the signature in original was there in the copy,
the presence of such original signature in the copy was sufficient
(1) (1952] S.C.R.218.
(3) [1964] (6) S.C.R. 213.
(5) [1964] (3) S.C.R. 573.
·(2) [1973] (2) s.c.c. 759,769.
(4) [1959] S.C.R. 583.
(6) [1965] (l) S.C.R. 38,41.
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SATYA NARAIN v. DHUJA RAM (Goswami, J.)
Z9
to indicate that the copy was attested as true copy, even though
the words "true copy" were not written above the signature
in the copies.
This Court further held that there was substantial compliance with section 81(3) of the Act and the petition
could not be dismissed under section 90(3)".
Keeping in the forefront the proper functioning of democracy,
the principal object of the Act is purity of elections.
When therefore,
an election of a returned candidate is challenged under the Act, expeditious trial of the election dispute is sought to be enforced by
the legislature making all safeguards against delay. Trial has to be
necessarily expedited to rid the candidate as well as the constituency in-.
terested in the result of the election, ofany taint or suspicion of corrupt
practices which are again clearly enumerated in the Act.
To take,
therefore, another important object of the Act, viz., expeditious
disposal of an election petition, by section 86(6) "the. trial of an
election petition shall, so far as is practicable consistantly with
the interests of justice in respect of the trial, be continued from day
to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reason$.
to be recorded".
Again under section 86(7), "every election petition
shall be tried as expeditiously as possible and endeavour shall be.
made to conclude the trial withiff six months from the date on
which the election petition is presented to the High Court for trial".
Further section 87(1) introduces the Civil Procedure Code only subject
to the provisions of the Act and of any rules made thereunder. :lection 87(2) makes a deeming provision for application of the Evidence
Act only subject to the Act.
Therefore, there is no scope for free
play in the application of the provisions of those two Acts.
The
very object of expeditious trial will be defeated if the presentation of
the election petition should be treated casually and lightly permitting
all kinds of devices to delay the ultimate trial. The purpose of enclosing the copies of the election petition for all the respondents is to enable quick despatch of the notice with the contents of the allegations
for service on the respondent or respondents so that there is no delay
i.n the trial at this very initial stage when the election petition is presented.
If there is any halt or arrest in progress of the case, the
object of the Act will be completely frustrated. We are, therefore,
clearly of opinion that the 1st part of section 81(3) with which we·
are mainly concerned in this appeal is a peremptory provision and total
non-compliance with the same will entail dismissal of the election
petition under section 86 of the Act.
'
We are, therefore, not required to consider the second submission
of the learned counsel for the appellant with regard to substantial
compliance made on the basis of the provisions of section 81(3) bein&:
directory,
We may only add here that, in the absence of any provision under the Act or the rules made thereunder, lb~ !liuh ('9urt
Rules. cannot confer upon the Registrar or the Deputy Registrar
any power to permit correction or removal of defects in an election
petition presented in the High Cou~t beyond the period of limitation
.30
SUPREME COURT REPORTS
[ 1974 J '3 S,C.R.
·provided for under the Act.
It may be noted that section 169 of the
Act provides that the Central Government is the authority to make
-rules after consulting the Elei:tion Commission and in sub-section
{3) thereof the rules have to be laid before each House of Parliament
in the manner p:ovided therein. The only reference to the High Court
Rules is found in section 117 of the Act.. At any rate, we do not
feel called upon to pass on the High Court Rules referred to in the
judgment of the High Court in this case.
In the result w~ fini n" reison to interfere with the decision of
'the High Co:irt dismissing the election p•tition.
The appeal is dismissed with costs.
DWIVEDI, J.- I agree with my brethren that the requisite copies
.of the election potition were not filed in Court within the period of .
.Jimitation by the appellant .
I am constrained also to agree that for
{hi• pro:edural fault- his election petition is liable to be dismissed
in view of the decision of the Court in Jag at Kishore Prasad Narain
-Singh v. Rajindra Kumar Poddar and others('). In that case Hegde
J. said: "The law requires that a true copy of the election petition should
be served on the respondents.
That requirement has not been either
fully or substantially complied with.
Therefore we have no doubt
in our mind that the election P'tition is liable to be dismissed under
G. 86 of the Act."
It makes me sad to read this requiem for this election petition .
.Over a -century ago a slip in procedure by a litigant meant denial
of justice to him. " Right down to the nineteenth century the choice
,of the wrong writ involved the loss of the action, even though
1111 the merits were with the plaintiff."(2) Gradually, however,
,courts subordinated procedure to the clai;m of justice.
In Ma Slzwe
_Mva v • • 'Jaung Mo Hnaung, (l) Lord Buckmaster said : "All rules
.of court arc nothing but provisions intended to secure proper adminis·
.-tration of justice. It is therefore essential that they should be made
'to serve and b, subordinate to that purpose.
Speaking in the same vein, Justice Ameer Ali .said: "Rules of
procedure are not made for the, purpose of hindering justice." (See
.(Rajs)lndrajit Pratap Babd~r Saki v. Am~r Singh) (4)
_Our decision restores that primacy of procedure over justice. It
makes s. 86(1) a tyrannical master.
The rigidity of the rule of pre-
. cedent ties me to its chains.
My only hop: now is that Parliament
would make a just choice between the social interest in the supj>ly of
copies by the election petitioner along with his election petition :md
·tlle social interest in the purity of election by excluding s. S 1(3) from
· tke purview of s. 86(1) of the Act ..
:Y.P.S.
Appeal .Jismissed.
(I) (1971] 1,S. C.R. 321.
(2) Holdswor(h: A History of En:lislo Law, 9, 243 ..
(3) A.1.1!.. 1922 P. C. 249 at p. 250.
(4) A.l.R. 1923 P. C. 12i at p. 135.
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