Sh.Harcharan Singh Josh vs Sh.Hari Kishan

Hon'ble Mr. Justice K.Ramaswamy Hon'ble Mr. Justice B.L.Hansaria Hon'ble Mr. Justice S.B.Majmudar R.C.Pathak, Ravinder Bagai, R.K.Gupta, Ms.Prerna Tandon and Ms.Naresh Bakshi, Advs. for the appellant R.P.Bansal, Sr. Adv., Pramod Dayal, Ajay K.Jain and Shashi Bhushan, Advs., with him for the Respondent O R D E R The following order of the Court was delivered:

This appeal arises against to the order of the Delhi High Court made 26.5.1995 in Election Petition No.6/94. The appellant is an unsuccessful candidate in respect of one of the Assembly Constituency known as No.64, Sadar Bazar, to the National Capital Territory of Delhi Assembly. The elections were held on 6th November, 1993. The respondent secured 27216 votes while the appellant secured 25786 votes. The latter filed an election petition on diverse grounds including corrupt practices under Section 123 of the Representation of the People Act, 1951. The High Court dismissed his election petition under Section 86 of the Act on its findings on four issues framed in that case. While upholding the findings in favour of the appellant on issued Nos.1 to 3, it held that the requisite number of true copies of the election, petition were not supplied to the respondent in compliance with Section 81(3) of the Act. Reasons in support thereof are some grave mistakes including omission to supply full text of page No.18 of the election petition. Another contention raised by the respondent was that the affidavit is not a true of copy of the affidavit which was filed in the Court along with the election petition. Though it was rejected by the High Court as one of the grounds against the rejection of the election petition, the respondent has filed cross objections.

It is not necessary for us to go into the grounds on which the election petition was dismissed by the High Court. Suffice it to state that the objections raised by the respondent regarding non-supply of the true copy of the affidavit is a formidable objections which merits acceptance in view of the recent judgment of this Court in Dr. (Smt.) Shipra etc.etc. vs. Shantilal Khoiwal etc. etc. [JI 1996 (4) SC 67]. Therein the copy of the affidavit supplied to the respondent was not attested by the Oath Commissioner. This Court, after considering the entire case law, held that the affirmation before the prescribed authority in the affidavit and the supply of its true copy is mandatory so that the returned candidates could not be misled in his understanding that imputation of the corrupt practices ere prescribed authority. For that purposes, Form 25 prescribed by Section 83 requires verification before prescribed authority. The concept of substantial compliance has no application in such a case. It is seen that the copy of the affidavit supplied to the respondent does not contain the affirmation by the Oath Commissioner. Under these circumstances, the defect is not a curable defect. Therefore, the dismissal of the election petition on this ground is sustainable in law.

Learned counsel for the appellant placed reliance on an order of this Court C.A. No. 925 of 1995 (boots Singh vs. Sher Singh & Ors.) decided on March, 13, 1996. It would be seen that a Bench of two Judges of this Court has not expressed any conclusive opinion on the controversy. On the other hand, this Court remitted the matter to the High Court for reconsideration in accordance with law. Under these circumstances, the ratio therein is of no assistance to the appellant.

The appeal is dismissed. But, in the circumstances, without costs.