Case Note & Summary
The dispute arose from the third general elections held in February 1962, where the appellant was elected to the House of the People from the Jhunjhunu Parliamentary Constituency in Rajasthan. Two electors, Ridmal Singh and Balji, challenged the appellant's election by filing election petitions before the Election Commission. Balji's nomination paper had been rejected by the returning officer, and Ridmal Singh was an elector in the constituency. The appellant, as the returned candidate and a respondent in both petitions, raised preliminary objections to the maintainability of the election petitions. He contended that in Election Petition No. 269 of 1962, Balji was improperly impleaded as a respondent because he was not a contesting candidate, contrary to Section 82 of the Representation of the People Act, 1951. He further argued that the copy of the petition served on him was not a true copy as required by Section 81(3) and that the affidavit accompanying the corrupt practice allegations was neither properly made nor in the prescribed form under Section 83. In Election Petition No. 295 of 1962, the appellant raised similar objections: the petition was not accompanied by true copies because enclosures were not reproduced, the verification lacked date and place, and copies of the treasury receipt and the order rejecting Balji's nomination were not enclosed or signed. The Election Tribunal dismissed the preliminary objections by orders dated August 13, 1962. The appellant then filed writ petitions in the Rajasthan High Court, which were dismissed on August 31, 1962. He obtained special leave to appeal to the Supreme Court. The main legal issues before the Supreme Court were whether the joinder of a non-contesting candidate violated Section 82, whether the copies served complied with Section 81(3), whether defects in verification and affidavit under Section 83 were fatal to maintainability, and whether the Tribunal was obligated to dismiss under Section 90(3). The appellant argued that Section 82 was mandatory and that any contravention required dismissal under Section 90(3). He contended that the word 'copy' in Section 81(3) meant an exact reproduction and that missing enclosures rendered the copies untrue. He also argued that defects in verification and affidavit should lead to dismissal. The respondents opposed these contentions, maintaining that all necessary parties were joined and that the defects were not substantive. The Supreme Court analyzed the provisions of the Representation of the People Act, 1951. It held that Section 82 is mandatory only in requiring the joinder of all contesting candidates, returned candidates, and candidates against whom corrupt practice is alleged. Since Balji was not a contesting candidate and was not required to be joined, his impleadment did not amount to a contravention of Section 82. On the true copy requirement, the Court relied on In re Hewer, Ex parte Kahan, (1882) 21 Ch. D. 871, and held that a 'copy' need not be absolutely exact; the test is whether any variation is calculated to mislead an ordinary person. The court found that the variations complained of were not such as to mislead. Regarding verification and affidavit defects, the Court held that Section 90(3) applies only to non-compliance with Sections 81, 82 or 117, not to Section 83. Therefore, defects in verification under Section 83(1)(c) and defects in the affidavit were not fatal to maintainability and were not grounds for dismissal. The Supreme Court dismissed the appeals, upholding the orders of the Election Tribunal and the High Court, and held that the election petitions were maintainable. All preliminary objections raised by the appellant were rejected.
Headnote
A) Election Law - Joinder of Parties - Section 82 Representation of the People Act, 1951 - The provision is mandatory only in requiring joinder of all contesting candidates/returned candidates and candidates against whom corrupt practice is alleged. Impleading a person whose nomination was rejected and who was not a contesting candidate, though not required, does not amount to contravention of Section 82 when all necessary parties are joined. The preliminary objection based on joinder failed. Held that addition of a non-necessary party is not fatal (Paras 1-11). B) Election Law - True Copy Requirement - Section 81(3) Representation of the People Act, 1951 - The word 'copy' does not mean an absolutely exact copy but a copy so true that nobody could by any possibility misunderstand it. The test whether a copy is true is whether any variation from the original is calculated to mislead an ordinary person, relying on In re Hewer, Ex parte Kahan, (1882) 21 Ch. D. 871. Absence of enclosures or attestation discrepancies do not automatically render copy untrue unless misleading. Held that objections to true copy failed (Paras 1-11). C) Election Law - Verification Defect - Section 83(1)(c) Representation of the People Act, 1951 - A defect in verification of an election petition does not attract Section 90(3) and is not fatal to maintainability. The Tribunal is not required to dismiss under Section 90(3) for such defect. Held that verification defect was not a ground for dismissal (Paras 1-11). D) Election Law - Affidavit in Support of Corrupt Practice - Section 83(1) proviso Representation of the People Act, 1951 - A defect in the affidavit, whether not properly made or not in prescribed form, is not a sufficient ground for dismissal of the petition. The mandatory dismissal provision under Section 90(3) does not extend to affidavit defects. Held that preliminary objection failed (Paras 1-11). E) Election Law - Dismissal by Tribunal - Section 90(3) Representation of the People Act, 1951 - Tribunal must dismiss an election petition only for non-compliance with Sections 81, 82 or 117, not for defects under Section 83. The mandatory dismissal power does not include verification or affidavit defects. Held that the election petitions were maintainable (Paras 1-11).
Issue of Consideration
Whether impleading a non-contesting candidate whose nomination was rejected contravened Section 82 of the Representation of the People Act, 1951; whether copies served were not true copies under Section 81(3); whether defects in verification and affidavit under Section 83 were fatal to maintainability; whether the Election Tribunal was bound to dismiss under Section 90(3).
Final Decision
The Supreme Court dismissed the appeals and upheld the maintainability of the election petitions, rejecting all preliminary objections. It held that addition of a non-necessary party did not contravene Section 82; the word 'copy' in Section 81(3) did not mean absolutely exact copy; defects in verification and affidavit did not attract Section 90(3) and therefore were not fatal to maintainability. The Election Tribunal and High Court orders were affirmed.
Law Points
- All necessary parties under Section 82 must be joined
- addition of non-necessary party does not invalidate petition
- True copy under Section 81(3) need not be absolutely exact
- test is whether variations mislead ordinary person
- Defects in verification under Section 83(1)(c) do not attract Section 90(3) and are not fatal to maintainability
- Defects in affidavit for corrupt practice allegations are not sufficient ground for dismissal of election petition
- Provisions of Section 82 are mandatory only in respect of specified categories
- no contravention if extraneous party joined
- Section 90(3) dismissal applies only to non-compliance with Sections 81
- 82
- or 117
- not Section 83
