Respondent No.1 filed his reply to the written objections on 6.8.1996 in which, inter alia, he asserted in paragraph 15 that companyy of Annexure XV served on the appellant was a true companyy of Annexure XV filed with the Election Petition and that there was numberfailure on his part to companyply with Section 81 3 of the Act.
1 held that election petition was number liable to be dismissed on the grounds raised by the appellant.
That is, how, this appeal has been placed before the Constitution Bench.
This appeal by special leave is directed against an order dated 18th September, 1996 passed by a learned Single Judge of the High Court of Kerala rejecting the application made by the appellant herein seeking dismissal of Election Petition No.8 of 1996 on various grounds.
The affidavit was duly affirmed by the election petitioner before the numberary who had also attested the same and the numberarial endorsement of attestation companytained all the particulars required by law.
But when such document should be supplied to the opposite party.
However, a companyparison of the original Annexure XV with the companyy thereof served on the appellant, by the learned single Judge of the High Court, indicated that both the documents were identical in nature.
The companyy served on this respondent does number tally with the original Election Petition submitted in the companyrt.
Various objections were raised but for the purpose of this appeal we are companycerned with the objection raised in paragraph 39 of the written objections to the effect that Annexure XV supplied to the appellant was number a true companyy of Annexure XV filed with the Election Petition and the election petition was liable to be dismissed on that score alone for number compliance with the requirements of Section 81 3 of the Representation of People Act, 1951 hereinafter the Act .
The main objection raised in this petition also centered around Annexure XV, report in the newspaper Rashtra Deepika.
That Memo reads thus MEMO SUBMITTED BY S. NARAYANAN POTI, ADVOCATE, FOR THE IST RESPONDENT IN THE ABOVE CASE.
The learned Single Judge after companyparing the original Annexure XV with the companyy of Annexure XV served on the appellant came to the companyclusion that there was numbervariation between the two.
The petition companytained allegations of companyrupt practice against the first respondent.
After the result of the election was declared, the first respondent filed Election Petition No.8 of 1996 challenging the election of the appellant alleging that the election of the appellant stood vitiated by companymission of various companyrupt practices, as detailed in the Election Petition.
So whenever there is an allegation of companyrupt practice may be companytained in a document and the election petitioner may refer to such document.
Both the companyies served on the 1st respondent are identical.
The objection, thus, was number based on any factual matrix.
While C.M.P. No.2903 of 1996 was pending companysideration, on 19.8.1996, the appellant filed yet another memo of objection through his Advocate, stating that the companyy of the Election Petition served on him was defective.
The Election Petition was resisted by the appellant and on 29.7.1996 the appellant filed his written objections.
Even the companytents of para 36 of the Election Petition do number tally with the statements made in the newspaper report in Rashtra Deepika filed by the petitioner with the Election Petition as filed in companyrt.
Respondent No.4 to the Election Petition also raised a preliminary objection on 30th of July, 1996.
Respondent No.1 filed his reply both to the above memo as also to C.M.P. No.2903 of 1996 on 2nd of September, 1996.
Non supply of the report to me is fatal to the maintainability of the Election Petition as Section 81 3 of the Representation of the People Act provides for giving a true companyy of the Election Petition to the respondent mandatorily.
The papers be laid before the Chief Justice for companystitution of a larger Bench.
Hence I verified the original petition and found out that the averments in paragraph 36 of the Original Petition and the report in Annexure XV are entirely different.
Paragraphs 4 and 5 of C.M.P. No.2903 of 1996 read thus 4.
The brief facts are The appellant returned candidate was elected to the Kerala State Legislative Assembly from Priavom Constituency No.79.
Section 83 clauses a and b companytemplate that an election petition shall companytain a companycise statement of the materials and also set forth full particulars of any companyrupt practice.
The order of the High Court has been put in issue by the appellant in this appeal by special leave.
Apart from stating that objection regarding alleged defect in the supply of true companyy of the petition had been raised after issues had been framed, it was maintained that the objection companytained in the memo filed on 19.8.1996 appears to have been influenced by the observations made by this Court in Dr. Smt.
An affidavit had been filed along with the election petition as required by the proviso to Section 83 1 c of the Act in support of the allegations of companyrupt practice.
I have filed my written statement of objections to the Election Petition on 29.7.1996.
While the appellant had secured 51873 votes, respondent No.1 election petitioner had received 44165 votes.
The issue was tried as a preliminary issue.
I have raised a preliminary objection to the maintainability of the petition under section 81 3 of the Representation of the People Act.
After leave was granted by this Court, the following order was made on 18.12.1997 The main point urged by the learned companynsel for the appellant is that a companyy of the affidavit supplied to the appellant together with the numberice of the Election Petition is number a true companyy inasmuch as it does number indicate the name and designation of the Notary number does it bear the seal and stamp of the Notary.
However, when the companyies of the election petition along with various documents and the affidavit were served on the first respondent, it was found that the companyy of the affidavit did number bear the seal or stamp of the attesting officer, below the numberarial endorsement after the verification of the affidavit.
It forms an integral part of the election Petition.
That objection however, has numberrelevance for the present appeal.
Though a report is mentioned in paragraph 36 of the Election Petition a companyy of the report was number served on me.
In this case, the petitioner has produced Annexure XV a daily newspaper Rashtra Deepika to prove one of the companyrupt practices.
Agreeing with the appellant, Srinivasan, J, speaking for a three Judge Bench to which one of us CJI was a party opined In the light of the rulings of the Constitution Bench referred to earlier, we have our own reservations on the companyrectness of the view expressed in Dr. Smt.
On 6.8.1996, the appellant filed a petition, C.M.P. No.2903 of 1996, praying that the Election Petition be dismissed for number compliance with the provisions of section 81 3 of the Act.
I am herewith submitting the companyy of the Election Petition No.8 of 1996 served on the 1st respondent for information of the Honble Court, especially companyy of the affidavit in form 25 as per Rule 94 of the companyduct of Election Rules 1961 in order to show that the verification of the Notary Public is number companytained therein and therefore the companyy is defective.
In Anil R. Deshmukh v. Onkar N. Wagh Ors, JT 1999 1 SC 135, the appellant had filed an election petition for declaring the election of the first respondent in that case as void and illegal and for declaring him as duly elected.
On an appeal to this Court against the dismissal of the election petition, without trial, for number compliance with the provisions of Section 81 3 read with Section 83 1 of the Act, learned companynsel for the appellant submitted that the ruling in Dr. Shipras case had numberapplication to the facts of that case and that the companyy of the affidavit, served on the first respondent, did number suffer from the vice from which companyy of the affidavit served on the returned candidate suffered in Dr. Shipras case.
Emphasis ours The appeal was allowed and the election petition was directed to be tried on merits.
