Case Note & Summary
The appeal arose from the order of the Delhi High Court dated 26 May 1995 in Election Petition No.6/94. The appellant, an unsuccessful candidate in the election to Assembly Constituency No.64, Sadar Bazar, National Capital Territory of Delhi, challenged the election of the respondent, who had secured 27,216 votes against the appellant's 25,786 votes in the election held on 6 November 1993. The appellant filed an election petition on diverse grounds, including corrupt practices under Section 123 of the Representation of the People Act, 1951. The High Court framed four issues. It decided issues Nos.1 to 3 in favour of the appellant but dismissed the election petition under Section 86 of the Act on the ground that the requisite number of true copies of the election petition had not been supplied to the respondent in compliance with Section 81(3), citing grave mistakes including the omission to supply the full text of page 18 of the election petition. The respondent also contended that the copy of the affidavit supplied to him was not a true copy of the affidavit filed in court, as it lacked the affirmation of the Oath Commissioner. The High Court rejected this ground, but the respondent filed cross-objections. In the Supreme Court, the appellant contended that the High Court had erred and relied on an order of this Court in C.A. No.925 of 1995 (Boots Singh v. Sher Singh & Ors.) decided on 13 March 1996, which had remitted a similar matter for reconsideration. The respondent argued that the defect regarding the affidavit copy was fatal. The Supreme Court observed that it was not necessary to go into the grounds on which the High Court dismissed the election petition, as the objection raised by the respondent regarding the non-supply of a true copy of the affidavit was formidable and merited acceptance in view of the recent judgment in Dr. (Smt.) Shipra etc.etc. v. Shantilal Khoiwal etc. etc. [JI 1996 (4) SC 67]. In that case, the copy of the affidavit supplied to the respondent was not attested by the Oath Commissioner, and this Court held that affirmation before the prescribed authority and the supply of its true copy are mandatory so that the returned candidate is not misled. The Court further held that Form 25 prescribed by Section 83 requires verification before the prescribed authority and that the concept of substantial compliance has no application in such a case. Applying this principle, the Supreme Court found that the copy of the affidavit supplied to the respondent in the present case did not contain the affirmation by the Oath Commissioner, making the defect not curable. The Court distinguished the appellant's reliance on Boots Singh, noting that the two-Judge Bench in that case had not expressed any conclusive opinion and had remitted the matter to the High Court for reconsideration; therefore, that ratio was of no assistance. Accordingly, the Supreme Court dismissed the appeal, without costs, upholding the dismissal of the election petition.
Headnote
A) Election Law - Supply of True Copies - Mandatory Compliance - Representation of the People Act, 1951, Sections 81(3), 83, Form 25 - The Supreme Court held that supply of a true copy of the affidavit to the returned candidate is mandatory; a copy of the affidavit supplied to the respondent lacking the Oath Commissioner's affirmation was a fatal defect. The Court followed Dr. (Smt.) Shipra etc.etc. v. Shantilal Khoiwal etc. etc. [JI 1996 (4) SC 67], which held that affirmation before the prescribed authority and supply of its true copy are mandatory so that the returned candidate is not misled. The defect was not curable and the dismissal of the election petition was sustainable in law. (Paras Not mentioned) B) Election Law - Substantial Compliance - Inapplicability - Representation of the People Act, 1951, Section 83 - The Supreme Court held that the concept of substantial compliance has no application where the copy of the affidavit supplied to the respondent does not contain the affirmation by the Oath Commissioner, as the requirement is mandatory. (Paras Not mentioned)
Issue of Consideration
Whether the non-supply of a true copy of the affidavit, lacking the affirmation by the Oath Commissioner, to the returned candidate is a fatal defect under Sections 81(3) and 83 of the Representation of the People Act, 1951, and whether the concept of substantial compliance can cure such a defect.
Final Decision
The Supreme Court dismissed the appeal, without costs, upholding the dismissal of the election petition. It held that the defect of non-supply of a true copy of the affidavit lacking Oath Commissioner's affirmation was not curable and the dismissal was sustainable in law.
Law Points
- Mandatory compliance with Section 81(3) of the Representation of the People Act
- 1951
- supply of true copy of affidavit with Oath Commissioner affirmation is mandatory
- substantial compliance has no application
- defect is not curable
- election petition dismissed under Section 86
- Form 25 verification before prescribed authority required
