# With this modification, the appeal is dismissed with COlill. Appeal dismissed. CH. SUBBARAO v. MEMBER, ELECTION TRIBUNAL, HYDERABAD

- **Citation:** [1964] 6 S.C.R. 213
- **Court:** Supreme Court of India
- **Decided:** 1963-04-15
- **Case number:** Civil Appeal No. 971 of 1963
- **Bench:** B. P. Sinha, K. Subba Rao, Raghubar Dayal, N. Rajagopala Ayyangar, · J. R. MUDHOLl:AR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/with-this-modification-the-appeal-is-dismissed-with-colill-appeal-dismissed-ch-3067
- **Pages:** 17

## Headnote

R1pre1tntation of th• P•ople Act, 1951 (43 of 1951), 11. 80, 31 (3),
90(3),-.f'ttction Petition-No attutation in the copit1 oj thl
petition that they •re true copit1-Whlth1r lhtr1 hod bt1n 1ub11turl comp/U.nct.
The third respondent was declared elected to the Lesislalive ~
•11 of Andhra Pradesh in the general election held in 1962. Tho appo-
••t, a •oter of tbo constituency ftlcd an election petitioa challeqina
1914
Swa/
R•IM
Ihirani
••
Atamabiul
Tta Co.
AYY•Tllfll". I.
1964
1•nW"'"J, IJ
214
SUPREME COURT REPORTS
1964
the election of the third respondent on several grounds inclμding corrupt
C&
Subbarao practices.
The petition was acCompanied by the requisite nwnber of
y..
copies which w~re true copies and each of them bore the signature of
&limber. Election the petitioner. But there was no attestation at the foot of the coPies that
frllnutal Hydera- they were true copies.
The third respondent raised various preliminary
ktl
objections and the Election Tribunal rejected all of them.
Thereupon
he filed writ petition in the High Court praying for the issue of a writ
quashing the Tribunal's order.
His main contention was that since
the copies of the petition did not contain an attestation stating that the
copies were true copies there has been a violation of the
mandatory
provision of s. 80(3) of the Representaion of the People Act, 1951. Tho
High Court accepted the contention and issued a writ as prayed for.
The present appeal was filed with special leave granted by this Court.
HELD:
(i) If there is a total or complete non compliance with the
provisions of s. 81(3) the election petition might not be ••aa election
petition presented in accordance with the provisions of the part" within
1. 80 of the Act.
(ii) By the expression ''copy" ins. 81(3) it was meant not an exact
copy but only one so true that nobody by any possibility misunderstands
it not being the same as the original.
Murarka v. Roop Singh [1964] 3 S.C.R. 573, referred lo·
Noseworthy v. Overseers
Buckland
etc., L.R. 9 C. P.
233
ancl
Spic~ v. Bacon, L.R. 2 Ex. D. 463, distinguished.
(iii)
In the present case the signatures on the copies cannot be held
to have been merely intended to be a copy of those on the
original,
since a signature in original was not needed on the copy and writing or
copying out the name of the signatory would suffice. The absence of
a writing in the copy indicating the signature in the original would not
detract the copy from being a true copy.
The facts and circumstance
of the case show that there has been a substantial compliance with the
requirement of s. 81(3). The wider question whether s. 81(3) or as part
thereof is mandatory or directory is left open.
The appeal is allowed.
Mur4rka v. Roop Singh [1964] 3 S.C.R. 573 anll Kamara/ Hadar y.
Xunjer Thevar, [1959] S.C.R. 583. followed.

## Text

I
6 S.C.R.
SUPREME COURT REPORTS
213
addresed to the High Court on this point; and ( 4) there had
been no mutation in the revenue records when this sale was
effected and Pir Baksh who was
examined as a witness
admitted this
fact.
These circumstances
are
certainly
capable of explanation, but they show that the claim of the
plaintiffs cannot be accepted by
us
straightaway and a
decree passed in their favour.
In these circumstances, we consider that the proper
order to pass would be to remit the matter to the trial
Court for recording a finding as regards the reality of the
sale on the evidence already on the record and to pass an
appropriate decree in the suit, that is, if the sale under Ex.
12(i) were held to be real, the plaintiffs would be entitled
in addition to the 8 pies share decreed to them by the High
Court, to a further 2 as 13 gondas odd share belonging
to Ashfaq which they obtained under Ex. 12 ( c) through
Pir Baksh, and in the event of the sale not being held to be
real to no more than what the High Court has decreed.
With this modification,
the appeal is dismissed
with
COlill.
Appeal dismissed.
CH. SUBBARAO
Y.
MEMBER, ELECTION TRIBUNAL, HYDERABAD
(B. P. SINHA, C.J., K. SUBBA RAO, RAGHUBAR DAYAL,
N. RAJAGOPALA AYYANGAR AND· J. R. MUDHOLl:AR JJ.)
R1pre1tntation of th• P•ople Act, 1951 (43 of 1951), 11. 80, 31 (3),
90(3),-.f'ttction Petition-No attutation in the copit1 oj thl
petition that they •re true copit1-Whlth1r lhtr1 hod bt1n 1ub11turl comp/U.nct.
The third respondent was declared elected to the Lesislalive ~
•11 of Andhra Pradesh in the general election held in 1962. Tho appo-
••t, a •oter of tbo constituency ftlcd an election petitioa challeqina
1914
Swa/
R•IM
Ihirani
••
Atamabiul
Tta Co.
AYY•Tllfll". I.
1964
1•nW"'"J, IJ
214
SUPREME COURT REPORTS
1964
the election of the third respondent on several grounds inclμding corrupt
C&
Subbarao practices.
The petition was acCompanied by the requisite nwnber of
y..
copies which w~re true copies and each of them bore the signature of
&limber. Election the petitioner. But there was no attestation at the foot of the coPies that
frllnutal Hydera- they were true copies.
The third respondent raised various preliminary
ktl
objections and the Election Tribunal rejected all of them.
Thereupon
he filed writ petition in the High Court praying for the issue of a writ
quashing the Tribunal's order.
His main contention was that since
the copies of the petition did not contain an attestation stating that the
copies were true copies there has been a violation of the
mandatory
provision of s. 80(3) of the Representaion of the People Act, 1951. Tho
High Court accepted the contention and issued a writ as prayed for.
The present appeal was filed with special leave granted by this Court.
HELD:
(i) If there is a total or complete non compliance with the
provisions of s. 81(3) the election petition might not be ••aa election
petition presented in accordance with the provisions of the part" within
1. 80 of the Act.
(ii) By the expression ''copy" ins. 81(3) it was meant not an exact
copy but only one so true that nobody by any possibility misunderstands
it not being the same as the original.
Murarka v. Roop Singh [1964] 3 S.C.R. 573, referred lo·
Noseworthy v. Overseers
Buckland
etc., L.R. 9 C. P.
233
ancl
Spic~ v. Bacon, L.R. 2 Ex. D. 463, distinguished.
(iii)
In the present case the signatures on the copies cannot be held
to have been merely intended to be a copy of those on the
original,
since a signature in original was not needed on the copy and writing or
copying out the name of the signatory would suffice. The absence of
a writing in the copy indicating the signature in the original would not
detract the copy from being a true copy.
The facts and circumstance
of the case show that there has been a substantial compliance with the
requirement of s. 81(3). The wider question whether s. 81(3) or as part
thereof is mandatory or directory is left open.
The appeal is allowed.
Mur4rka v. Roop Singh [1964] 3 S.C.R. 573 anll Kamara/ Hadar y.
Xunjer Thevar, [1959] S.C.R. 583. followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 971
of 1963.
Appeal by special leave from the judgment and order
dated April 15, 1963 of the Andhra Pradesh High Court
in Writ Petition No. 1096 of 1962.
P. A. Choudhury and T. V. R. TaJaclwi, for the appellant.
•
6 S.C.R.
SUPREME COURT REPORTS
215
H. N. Sanyal, Solicitor-General and P. Ram Reddy,
for respondent No. 3.
1964
Ch.
Sub,,_
...
January 13, 1964. The Judgment of the Court was MT ~bmber
1 •. E!~
•
_
t1 una
'llJ~
delivered bybad
AYYANGAR J.-This is an appeal by special leave
Ayyangar /.
against a judgment of the High Court of Andhra Pradesh
by which a Writ Petition filed by the 3rd Respondent-K.
Brahmananda Reddy-was allowed and an Election Petition filed by the appellant was directed to be dismissed.
The facts giving rise to, the proceedings with which the
appeal is concerned are briefly as follows:
At the Genl!ral
Elections held in the month of February 1962 for the 'Legislative Assembly-Constituency of Phirangipuram in Guntur
District in Andhra Pradesh-the third respondent Brahamananda Reddy and one Chandramouli, the 2nd respondent
before us, were the contesting candidates.
The polling at
the Election took place on the 26th 'February 1962 and the
Returning Officer declared Brahmananda Reddy, elected as
having obtained the majority of valid votes.
Thereafter,
ihe appellant who is a voter on the rolls of the said Constituency filed an Election Petition before the Election Commission on April 11, 1962 under s. 81 of the Representation of the ·Peoples Act, 1951, which we shall refer to as
the Act.
There was no formal defect in the petition, it was
accompanied by the requisite number of copies provided
for by the Act and also by the treasury receipt evidencing
the deposit of the requisite sum for security as provided by
a. 117 of the Act.
The grounds on which the election was
sought to be set aside were various and included inter alia
allegations of corrupt practices against the returned candidate as well as his election agent, as also several irregularities in the polling by having the votes of dead voters recorded as well as by double voting. The petition was tcteived ·
by the Commission, who after satisfying itself that it was in
conformity with the Act had a copy of the petition published
in the Official Gazette on May 17, 1962 as provided by s.
86 of the Act.
Jn due course, an Election ·Tribunal was
constituted and the petition was referred to the Tribunal for
trial.
The returned candidate-Brahmananda Reddy-filed
216
SUPREME COURT REPORTS
191~
his Written Statement on September 15, 1962 in which the
Ch.
Suhhara• allegations of fact made in the petition were denied. Be-
••
b Y.EI 1.
sides what might be termed the merits of the allegations in
-•m tt, • ec ion h
l
.
. .
B
.
Tribunal Hydtta· t e e ectlon petll!on,
rahmanda Reddy raised by his Wntba
ten Statement several technical objections
pointing
out
//4yyani• J.
certain defects in the petition. This appeal is not concerned either with these technical defects in the election petition or with the defence raised on the merits to the charges
that were formulated in it.
The merits have yet to be tried,
and as regards the technical objections to the petition raised
in the Written Statement dated Se;itember 15, 1962, they
have been disposed of by the High Court and the same are
not before us.
A few days later on September 24, 1962,
Brahmananda Reddy filed a further Statement of objections
to the petition raising mostly objections of a technical nature
and of these the only objections which is the subject matter
of the present appeal is that contained in paragraph 2 which
reads, and we quote the material words:
"It is further submitted on behalf of the 1st respondent that the above petition filed u/s 81 of the
Act is not an Election Petition ...........•
As the requirements of s. 81 (3) of the Act are
not com;>lied with, the petition is,
therefore,
liable to be dismissed u/s 90(3) of the Act as
it does not comply with the provisions of sec.
lt 1 of the Act. ............. "
This second statement contained a prayer that in view
of the technical objections, the maintainability of the petition might be decided as a preliminary issue as the objections went into the root of the matter.
Paragraph (2) extracted earlier is somewhat vague but
in the arguments before the Tribunal it was explained as
indicating an objection alleging non-compliance with
s.
11(3) of the Act which runs:
"Every election petition shall be accompained by as
many copies thereof as there are respondents
mentioned in
the
petition
and one
more
copy for the use of the Election Commission,
I
6 S.C.R.
SUPREME COURT REPORTS
217
1964
Ch.
Subbtno
Y,
and every such copy shall be attested by the
petitioner under his own signature to be a true
copy of the petitioa. •
Member, B,..,,,_.
Tribunal ll)'U..
We shall refer later to the precise defect which was relied
bad
on in support of the case that there was a non-compliance
A.yyangor 1.
with this provision.
The Tribunal acceded to this request
and by its order dated November 7, 1962, it decided the
preliminary objections including the one just now mentioned in favour of the election ipetitioner and fixed a date for
the trial of the petition on the merits.
Brahmananda Reddy thereupon moved the High Court
under Article 226 of the Constitution and prayed for the
issue of the Writ quashing this decision of the Tribunal and
sought the dismissal of the election petition for non-compliance with the provisions of the Act.
The learned Judges
of the High Court disallowed the other technical objections
raised, but held that the petition did not comply with the
requirements of s. 81 ( 3) of the Act and for this reason they
directed the dismissal of the Election Petition.
The appellant thereafter has filed this appeal· after obtaining special
leave from this Court.
The subject of controversy in this appeal lies in a very
narrow compass.
But before we deal with it, it will be
convenient to specify the precise defect which the learned
Judges have held to be fatal to the maintainability of the
Election Petition.
As stated earlier, the Election Petition
filed was accompanied by the number of copies required to
accompany the petition under s.
8 l (3).
The Election
Petition was type-written and the CQ?ies which accompanied
the petition were carbon copies of the type-script, so there
was no question of the copies being other than 'true' copies.
The copies bore two signature in original of the Election
Petitioner authenticating both the contents of the petition as
well as the verification thereof.
The Petitioner did not however insert the words 'true copy' before or above his signa·
tures.
The learned Judges of the High Court considered
that this rendered the petition one not in accordance with s.
11 ( 3) of the Act and it is on this ground that the Election•
218
SUPREME COURT REPORTS
1964
Petition filed by the ap;:iellant has been dismissed and it is
Ci.
Subb11No the correctness of this decision that is convassed in the appeal
llart11n."· J:•ction before us.
l'illlldtal 6ad 1~•ra·
In view of the arguments addressed to us it would be
necessary to set out a few of the relevant provisions of the
A.7yttngar 1·
Act which bear upon ihe points urged, but before doing
so we shall refer to Art. 329 of the Constitution which pro·
Vides:
329(b) no election to either House of Parliament or I
to the House or either House of the Legislature
of a State shall be called in question except by
an election petition presented to such authority
and in such manner as may be provided for by
or under any law made by the ap;iropriate
Leplature."
In accordance with this. we have the provisions of the Act
and particularly those contained in Part 'VI commencing
with s. 79.
Section 80 repeats the provision in the Constitution already extracted and enacts :
"No election shall be called in question except by an
election petition presented in accordance with
the provisions of this Part."
:Section 81 deals with the presenta.tion of petitions. It runs:
"81. I'ros~ntation cf peli ions. ( 1)
An election
petition ca!ling in question any election may
be presented on one or more of the grounds
specified in sub-section (i) of seetion 100 and
section 10 I to the Election Commission by any
candidate at such eleetion or any elector within
forty-five days from, but not earlier tlwn, the
date of election of the returned cam!idate, 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.
I
6 S.C.R.
SUPREME COURT REPORTS
219
Explanation.-In this sub-section, 'elector' means a
JJU
person who was entitled to vote at the election Ch.
Subb•r•o
to which the election peti~ion relates, whether Member,•· Electio"
he has voted at such elec!ion or not.
Tribulllll Hyder ...
( 2) An election petition shall be deemed to have
been presented to the Election Commission:-
( a) when it is delivered to the Secretary to the
Commission or to such other officer as may
be appointed by the Election Commission in
this behalf-
( i) by the person making the petition, or
(ii) by a person authorised in writing in this behalf by the person making the petition; or
(b) when it is sent by registered post and is delivered to the Secretary to the Commissi"~
or the officer· so appointed.
( 3) 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 a
true copy of the petition."
Before proceeding further it is necessary to advert to the
history of the provision in sub-section
(3)
for learned
counsel for the respondents laid some store by the object
with which the provision was introduced.
As enacted in
1951, s. 81 contained only two sub-sections, the first dealing with the time within which a petition had to be filed
and the second with the person or authority and the manner
in which the petition had to be presented in order to constitute the presentation one to the Election Commission. At
that date the Election Commission, after scrutinizing the
petitions to ascertain whether there were any formal defects,
had itself to make copies for being served on the respon_dents.
To avoid this trouble and inconvenience to the
Commission and the delay which the making of such copies
bti4
AyyallfOr /.
220
SUPREME COURT REPORTS
19H
necessarily involved, sub-section ( 3) which we have set out
Ch.
Subbarao earlier was introduced into s. 81 by an amendment affected
Member,v. Election by Act XL of 1961.
The point made, based on this feaTribunal Hyd.ra- ture, we shall reserve for later discussion.
bad
Section 82 deals with the parties who are to be impleaded
in the petition and s. 83 with the contents of the petition.
Section 8 3 (1 )( c) enacts:
"An election petition shall be signed .by the petitioner and verified in the manner laid down in
the Code of Civil Procedure, 1908, for the verification of pleadings."
Sub-section ( 2) requires a similar signature and verification
of ichedules or annexures to the petition.
Section 85 empowers the Election Commission to dismiss a petition in certain contingencies.
It reads:
"85. If the provisions of section 81 or section 82 or
section 117 have not been complied with, the
Election Commission shall dismiss the petition:
Provided that the petition shall not be dismissed
without giving the petitioner an
opportunity
of being heard."
The succeeding sections deal with the trial of Election
Petitions, after making provision for the 8(?pointment of an
Election Tribunal by s. 86 but what is relevant in the present context is s. 90 and it is enough to quote the material
wordi:
"(1) Subject to the provisions of this Act and of
any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly
as may be, in accordance with the procedure
applicable under the Code of Civil Procedure,
1908, to the trial of iUits:
Svb-scction ( 3 ) reads:
''The Tribunal shall dismiss an
election
petition
which docs not comply with the provision1 of
I
'
·'
I
6 S.C.R.
SUPREME COURT REPORTS
221
section 81, notwithstanding that it has not been
dismissed by the Election Commission under
s. 85."
1964
Ch.
Subbarao
T.
Member, Electitnl
The reasoning on which the learned Judges have
based Tribunaiod Hyd.,..
their decision shortly stated is this.
It is the requirement
of s. 81 (3) of the Act that an election petition should be
A.yyangar 1·
accompanied by the number of copies specified there, and
equally so that the copies so accompanying "shall be attest·
ed by the petitioner under his own signature to be a true
copy of the petition".
There was, of course, the signature
of the petitioner on tl!ie copies, but there was no attestation
by him that "it was a true copy".
This constituted a noncompliance with the requirements of s. 81 which brought
into play the terms df s. 90 (3) of the Act which required
the Tribunal to dismiss a petition which did not com?IY with
the provisions of s. 81.
Though the learned counsel for the appellant made
several submissions, we propose to deal with only one, as the
same is sufficient for the disposal of this appeal.
This was
that in the circumstances of the case there had been a substantial compliance with the requirements of s. 81(3).
Before, however, dealing with it, it will be convenient tn
refer to some of the submissions made to us by the learned
Solicitor-General appearing for the contesting :es;>ondent!.
He submitted to us certain propositions which however we
consider really unexceptionable.
He said that an election
petition was not to be equated to an action at law or in
equity, but that as the rights were purely the creature of
statute, if the statute rendered any particular requirement
mandatory, the courts possessed and could exercise no dispensing power to
waive
non-compliance.
We consider
these i;:iropositions are sound and it is in the light of these
basic positions that we shall proceed to consider whether the
omission to add the words "true copy" in the copies which
were idmittedly exact copies of the petition, constituted a
non-compliance with s. 81 (3) as to render the petition liable
to be rejected under s. 90 ( 3) of the Act.
Learned counsel for the appellant urged that the jurisdiction of the Tribunal under s. 90(3) to dismiss 'an elec-
SUPREME COURT REPORTS
19M.
tion petition which does not comply with the <;>rovisions of
Clo.
Su6baroo s. 81' was attracted only if there was a defect in the petilf•mb.,,.. Election ~ion itself ~~ that a defect merely in the copy accompanyTilbunar ll1d11a- mg the petition would not be a case of a
"petition not
"""
complying with the provisions of s. 81" so as to require
A1Jon1ar 1.
or even permit the Tribunal to dismiss the petition. In
support of this submission, the difference in the language
employed in s. 85 and s. ·90(3) of the Act in !he matter of
making r~ference to the requirements of s. 81 w.a5 adverted
to.
Besides, it was pointed out that both s. 90(3) and
before it s. 90 ( 4) were in their present form making reference to s. 81 when the latter section did not contain the third
sub-section relating to copies accompanying the petition,
and that the content of s. 90 ( 3) should not be held enlarged because in 1961 sub-section ( 3) was added to s. 81
particularly because the language of s. 90(3) was not altered to reflect the change.
We are not impressed by this argument.
When s. 81
( 3) requires an election petition to be accompanied by the
requisite number of copies, it became a requirement for the
presentation of the election petition to the Commission, and
therefore a condition precedent for the proper presentation
of an election petition. If that is a requirement of s. 81,
no distinction can be drawn between the requirements of
sub-sections (1) and (2) and of sub-section
(3).
We
might add that if there is a total and complete non-compliance
with the provisions of s. 81 ( 3), the election petition might
not be "an election petition presented in accordance with
the provisions of this Part" within s, 80 of the Act.
We
are therefore inclined to consider that if there had been such a
non-com;iliance with the requirement of sub-section (3) not
merely the Election Commission under s. 85 but the Election Tribunal under s. 90 ( 3) would prima facie not merely
be justified but would be required to dismiss the election
petition.
This takes us to the point as to whether the requirement of s. 81 ( 3) has been complied with or not.
The principal submission of the learned Solicitor-General was based
on the language employed in s. 81(3) of the Act read in
'
I
6 S.C.R.
SUPREME COURT REPORTS
223
the light of the direction contained in s. 90(3) which cast
J!M4
on the Tribunal the duty to dismiss an election petition Ch. Si4'6which did not conform to the requirements of the former. M
b "· E'..-
In particular, he laid stress on the use of the imperative r,1:::,:1. H~
'shall' in s. 81 (3) when denoting the requirement of "attes-
"""
tation" "under the petitioner's signature" of the copy bearing
Ayyangqr 1.
the signature being a "true co;:>y''. It was in this connection that he pointed out that the provision for properly
attested copies of the petition accompanying the petition was
introduced by the amendment
effected in 1961, and the
object of Parliament was two-fold; first to save the time and
inconvenience which the previous procedure cast on the
Election Commission, of itself having to make copies for
service on the respondents, and secondly by this means to
exq>edite the conclusion of the trial of an election petition.
He submitted that the attainment of these objects would be
entirely frustrated if the respondents on whom these copies
were served had still to make enquiries to satisfy themselves
whether the oopies were true copies, without the same being
asserted to be so on their face.
In support he referred us
to the decisions in Noseworthy v. Overseers of Buckland
etc.(') and in Spice v. Bacon( 2 ) as illustrating the degree
of strictness and literal compliance which was insisted on
by courts in regard to provisions of like character.
The first of these cases was a registration appeal and the
Act provided that a iperson who objected to a voter's qualification might be heard in support of his objection if he
had given notice to the voter and the manner of giving notice
was by sending it by post addressed to his place of abode
"as described".
It was held that a notice by post addressed
correctly but not to the address "as described" was not a
compliance with the requirement and that in consequence
the objector could not be heard.
We do not consider that
this dec.ision lays down any hard and fast rule or principle
of construction which is attracted to every case where a
statute calls for interpretation.
In ultimate analysis the
question is one of the construction of the relevant provision of the particular statutes which iproceeds on the basis
of the words used understood in the context of the statute.
(1) L.R. 9 C. P. 233.
(') L.R. 2 Bx. D. 463.
SUPREME COURT REPORTS
1964
The second case raised a question as to the meaning
Ch.
Subbarao of the word "true copy" in the Inn-keepers' Liability Act
.!M•mhtr v.Election 1863, which required that in order to obtain the benefit of
Iribu11ai Hydera- the limitation of liability conferred by the Act, a "copy" of
bad
the Act had to be exhibited at the Inn.
The copy which
Ayyangar J.
was exhibited omitted some material words of the section
which was required to be exhibited.
The Court held that
when a claim was made on the inn-keeper for loss sustained
by a guest, he could not claim the benefit of the statute. We
are unable to appreciate the relevance of this decision. It
turned on what was meant by the word 'copy' in the Act and
the portion which was omitted in the copy exhibited was a
material portion.
There is no doubt that such a 'copy'
which differs in material particular from the original is not
a 'copy' within the Act. In this connection we might make
a reference to the decision of this Court in Murarka v. Roop
Singh ( 1) where the question as to what is a "copy" is elaborately discussed and some of the English decisions touching this matter have been set out.
We shall have occasion
to refer to Murarka's case later, but for the present we need
only add that the decision relied on by the Solicitor-General
is not at variance with what this Court has laid down in
Murarka's case.
The next matter to be considered stems from the submission as regards the object of Parliament in enacting subsection ( 3) of s. 81 and that expeditious dispClsal of election
petitions which was the object would be frustrated if substantial compliance with the provision was held sufficient.
We are not im;iressed with this argument.
While we
are conscious of the need for expeditious disposal of election petitions, and for the strict enforcement of provisions
designed to achieve this purpose, we cannot be oblivious to
the circumstance that to read every requirement literally
might equally defeat the purpose for which Part VI is intended, viz., that elections are conducted in accordance with
the relevant statutory provisions framed to ensure purity
and orderliness and that the candidate who has not obtained a majority of valid votes or has obtained it in flagrant
(t) [1964]3 S.C.R. 573
6 S.C.k
SUPREME COURT REPORTS
225
breach of the statutory provisions in not held entitled
to
1964
represent the constituency.
Ch.
SubbllNIO
v.
The Conrt had to deal with a similar question of inter- Memb.,, Electio•
Tribunal Hydm1r
pretation of words which appeared mandatory in Kamara;
bad
Nadar~• .• Kunju Thevar(1). One of the points which arose
Ayyaniar 1•
for consideration was whether the requirement of s. 117
of the Act which then required the petitioner to enclose with
the petition a Government treasury receipt of Rs. 100 in
favour of the Secretary to the Election Commission had
been complied with by the election petitioner and s. 90( 4)
of the Act which corresponded substantially to the present
s. 90(3) required the Election Tribunal to dismiss a petition which did not comply with the provision, inter alia,
of s. 117.
The petitioner in that case had made the deposit
of the requisite amount i11 the institutions named in the section but the deposit was made in favour of the Election
Commission and not in favour of the Secretary to the Commission as required by statute.
It was contended that the
petition did not conform to the provisions of s. 117 and
had therefore to be dismissed by the Tribunal. This Court
rejected this submis>ion .and after adverting to the purpose
of the provisions, held that this was fulfilled by the deposit
made and that though the requirement as to deposit was
mandatory, the same was complied with by the deposit
made.
We consider that this reasoning is not irrelevant to the
construction of s. 81(3) of the Act either.
In this connection we might refer to the decision of this
Court in Murarka v. Roop Singh( 2 ) in which this Court
had to consider a question closely related to that now
under debate.
That case was also concerned with certain
defect~ similar to what we have in the appeal before us.
The defects which were there
relied on by the returned
candidate as justifying or requiring
the dismissal of the
Election Petition fell into several categories whiCh includ·
ed non-compliance with the requirements of s. 81 (3 ).
There, as here, the petition was accompanied with the re-
(') (1959] S.C.R. 583.
134-159 SC-15
<'> [1964] 3 s.c.R. 573.
SUPREME COURT REPORTS
[1¢4]
1964
quisite number of copies as specified in s. 81 (3) but what
Ch.
Subharao was urged was as regards certain defects in the copies filed .
., b v.El
.
These defects fell into two types.
First there were two mat-
... m .r,
ect1on
h'
.
ed
ed
.
fil
J'rlbunal Hyd.ra- ters w 1ch 1t was stat
render
the copies
ed not 'true
bad
copies'. If the exipressions 'copy' or 'true copy' w~re read
Ayyangar J.
as exact copies of the original, the copies filed did not satisfy that test.
The two defects were: ( 1) The original petition contained the signature of the petitioner at the foot of
the petition as required by s. 83(1)(c) of the Act. In the
copy filed there was no copy of this signature.
To that
extent therefore the copy was not an exact copy.
The second matter under this head was that the
verification in the copy served on
the appellant did not
exactly correspond to that in the original in that in the
latter one of the paragraphs was stated to be true to the
personal knowledge of the petitioner while in the former that
paragraph was omitted from this group.
The other type of defect which was claimed to constitute non-compliance with s. 81 ( 3) was that the words 'true
copy' with the signature of the petitioner underneath were
not put down in one of the annexures to the petition, copies
of which were annexed to the copies of the petition filed.
The order of the Returning Officer rejecting the nomination
paper of the petitioner was filed with the original petition
as an annexure to it, and certified copies of that order were
annexed to the copies of the petition.
But this certified
copy did not contain an endorsement stating that it was a
'true copy' with the signature of the petitioner.
The High Court had held that so far as the defect in not
reproducing the signature in the petition was concerned,
it was cured by the fact that every page of the copy of the
petition was attested to be a true copy and therefore it would
not matter if the last page did not contain the signature. As
rega•ds the second, the High Court held that the failure to
include the paragraph in the verification was only a clerical
defect which had crept in through oversight and as regards
the other that it was no defect at all.
This decision was upheld by this Court holding that the word 'co;>y' in s. 81 ( 3)
meant a copy which was substantially sc and which did not
6 S.C.R.
SUPREME COURT REPORTS
~7
contain any material or substantial variation.
By 'copy'
1964
in s. 81 ( 3) was meant not an exact copy but only one so Ch.
Sub/Hno
true that nobody by any possibility misunderstand! it not M
be ": Elecltoa
being the same as the original.
Applying this
test, this Trlb~ B1"1»
Court came to the conclusion that there was no failure to
~..,
·
comply with the last part of s. 81 ( 3), with the re1ult that
AY1•n1• 1.
s. 90 ( 3) of the Act was not attracted.
This Court besides left open the question as to whether
any part of s. 81 ( 3) was directory or whether any portion
of it was mandatory. In the present case also, we do not
propose to deal with the larger question as to whether 1.
81(3) or any portion of it is merely directory. In view of
the decis.ion of this Court it would be clear that if there ia
a substantial compliance with the requirement of s. S 1 ( 3),
the election petition cannot be dismissed by the Tribunal
under s. 90 ( 3). The question then is whether on the facts
above-stated, there is or is not a sufficient and substantial
compliance with s. 81 (3).
We have already pointed out
that the appellant has complied with the following requir&-
ments:
( 1) The petition has been accompanied by the requilite
number of copies.
(2) The copies that accompanied the petition were
true copies.
· ·
( 3) Each of those copies bore the
signatures of the
petitioner.
If the signature of the petitioner whose name is set oqt
in the body of the petition is appended at the end, surely
it authenticates the contents of the document. Now in regard
to this the learned Judges of the High Court themselves observed after referring to the terms of s. 81 ( 3) :
·
"No doubt, what is necessary is a substantial com{i-'
liance with the requirement of attestation.
For instance, if it is proved that" the eleetion
petitioner has signed animo atttstendi, and
omitted the words 'true copy' by mistake or
inadvertently, there i5 a substantial requirement of the compliance of s. 81 (3).
The
Ch.
1964
s.,bbarao
...
II.ember, Election
228
SUPREME COURT REPORTS
[1964}
same may be said if the relative positions of
the words 'true copy' and of the signature·
one below the other are not correct."
Tribunal Hyd1ra- 1.
h
h Id h
h
·d
f h
·
bad
hey owever e
t at as t ere was no cv1 ence o t e sig-
<4.yyangar J.
nature having been appended animo attestendi, there was
non-compliance with s. 81 (3). The learned Solicitor-General while not disputing the correctness of the observations of
the learned Judges just extracted pressed upon us that the
signature at the end of the copy was meant only as a ca:;iY
of that in the original petition and could not satisfy the
requirement as to attestation of the copy. He also submitted
that the position would have been different if there were two
signatures instead of one at the end of the copy, even if the
words 'true copy' were omitted to be put down. In that case,
he said, one signature could be treated as representing the
copy of the signature on the original and the other mii:ht be
taken to have been made animo attestendi.
We do not
however consider that there is really need for so much refinement when one has to look at whether there is a substantial
compliance withs. 81(3), seeing that a signature in origisignatures now found on the copies were intended to authenticate the document to which it is appended, viz .. the copy,
it would only mean that the copy did not reproduce the signature in the original.
There is no compelling necessity
to hold that the signatures were merely intended to be a
copy of those on the original in order to spell out a noncompliance with the requirement of this provision. If the
nal was not needed on the copy and a writing copying out
the name of the signatory would suffice.
The decision of
this Court in Murarka's case(') is authority for the
position that the absence of a writing in the copy indicating
the signature in the original would not detract the copy from
being a true copy.
Jn the circumstances, we consider that
there has been substantial compliance with the requirement
d. s. 81 (3) in the petition that was filed by the appellant and
the learned Judges were in error in directing the dismissal o!
the petition.
The appeal is accordingly allowed and the order of the
High Court dismissing the petition is set ru;ide.
As owing
(') [I964J 3 S.C.R. 573 -;
.;,.
I
6 S.C.R.
SUPREME COURT REPORTS
229
10 the filing of the Writ Petition there has been a considerable delay in the trial of the Election Petition, we express the
hope that the petition would be heard and disposed of at
an early a date as is conveniently possible.
The appellant
will be entitled to his costs here and in the High Court which
will be paid by the contesting third respondent.
Appeal Allowed.
IN re: LILY ISABEL THOMAS
(B. P. SINHA, C.J., K. SUBBA RAo, RAGHUBAR DAYAL,
N. RAJAGOPALAN AYYANGAR
AND J. R. MUDHOLKAR, JJ.)
Supreme Court Rules-''Right to practise" if include! "right to act" -
Rule making power-If conflicts with legislative power of Parliament-Supreme Court Rules, 1950 (as amended in 1962). 0. IV. rr.
16, 17-Validity of-Constitution of .India, Art.
145-Advocates
Act, 1961 (25 vf 1961) •·s. 52, 58(3).
The petitioner was enrolled in the Madras High Court under the
Indian Bar Councils Act, and later admitted to the rolls of this Court
under the Supreme Court Rules.
In this petition, it was contended that
under s. 58(3) of the Advocates Act, the petitioner was entitled "as of
right to practise" in this Court. and the "right to practise" included not
merely the right to plead hut also to act; that the rules mad~. N
rr. 16 & 17 of the Supreme Court Rules are invalid; and that that by
a rule made under Art.
145 (l)(a) this Court could neither entitle a
person to practise nor impose qualifications as to tho right to practise,
these matters being entirely within entry 77 and therefore exclusively
for parliamentary legislation.
HELD: (i) The words "right to practise" would in itt normal conaotation take in not merely right to plead but the right to act as well
and if no rules had been made by the Supreme Court restricting the right
to act, the petitioner could undoutedly have had a right both to plead
es well as to act
Ashwani Kumar Ghosh v. Arabinda Bose, [1953) S.C.R. 1, referred
lo.
(ii)
Under s. 58(3) of the Advocates Act, the right conferred on
Advocates enrolled under the Bar Councils Act to practise in the SupRme Court is made subject to any rules made by thia Oourt. SectiOD
1964
Ch. Subbarao
v.
Tribunal Hydera·
Tribunal Hydera·
bad
Ayyanz"1' 1,
1964
January, 14