CHANDRAKANT UTTAM CHODANKAR versus SHRI DAYANAND RAYU MANDRAKAR AND ORS.

Citation: [2004] SUPP. 6 S.C.R. 916 · Decided: 15-12-2004 · Supreme Court of India · Bench: N. SANTOSH HEGDE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
CHANDRAKANT UTTAM CHODANKAR 
v. 
SHRI DAY ANAND RA YU MANDRAKAR AND ORS. 
DECEMBER 15, 2004 
[N. SANTOSH HEGDE, S.B. SINHA AND 
TARUN CHATTERJEE, JJ.] 
Representation of the People Act, 1951 : Section 86 
C 
Section 81 and 83-Compliances of-Expiained 
Interpretation of Statutes : 
Mandatory provision-Strict construction-May not be called for, 
D having regard to the text and context of the statute. 
Words : 
Shall-Use of-May not confer mandatory nature. 
E 
India Evidence Act, 1872 : 
F 
, 
Section 114(e)-Official acts-Officer of the court-Endorsement made 
by-Presumption of correctness-Challenge as to-Held, onus on the party 
impeaching it. 
Appellant filed election petitions challenging the election of the 
returned candidates. Counsel for the respondents appeared before the 
court and waived notice on their behalf. The election petitions were 
dismiss~d by the High Court for non-compliance of the mandatory 
provisions of the Section 81(3), 83(1)(a) and 83(l)(c), 83(2) of the Rep-
G resentation of the People Act, 1951. Hence this appeal. 
The respondent contended that the copies of the election petitions 
served had defects viz. (1) there was no signature of the election peti-
tioners at page 10 of the petitions after the prayer clause and verifica-
H tions. (2) the stamp in re~pect of the swearing of the affidavit was also 
916 
; 
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR 
917 
absent on the copy of the election petitions and, (3) the affidavit accom-
A 
panying the petition also does not bear the signature of the election 
petitioners, The copies which were alleged to have been served or sup-
plied to the Respondent No. 1 were not the true copies. 
Allowing the appeals, the Court 
B 
HELD : Per Chatterjee, J. (for himself & for Hegde, J.) 
1.1. Under section 116A of the Act Supreme Court is conferred with 
power not only to decide an appeal filed under this section on a question 
of law but it would also be open to the Supreme Court to decide the C 
appeal as facts as well. [925-E] 
2.1. Learned Council for the Respondent No. 1 had no authority to 
collect copies of the Election Petitions from the Registry of the High 
Court before 6th of September 2002 nor was it open to the Registry of the· D 
High Court to supply copies of the election petitions to the Learned 
Counsel for the Respondent No. 1 before the vakalatnamas were filed on 
behalf of the respondent No. 1 i.e. not before 6th of September 2002. Such 
being the admitted position, it is difficult to believe that such copies relied 
on by the learned counsel for the respondent No. 1 were at all supplied by 
the Registry of the High Court to the learned counsel for the respondent 
No. 1. That apart, from the records, it does not appear that there was any 
endorsement from the side of the learned counsel for the respondent No. 
1 to show that he had received copies from the Registry on which they 
made out the case for rejection of election petitions. Therefore, the High 
Court was not justified in rejecting the election petitions relying on the 
copies alleged to have beeri served or supplied to the learned counsel for 
the Respondent No. 1 without there being any direction to file 
vakalatnamas from the High Court. [927-E-H, 928-A) 
E 
F 
2.2. It is no longer res integra that the onus to prove that a copy 
of the election petition is not served on him, must be on the person who G 
alleges such fact. Thus in presence of the endorsement of the Assistant 
Registrar of the High Court dated 19th of July, 2002 that the election 
petitions were in order which would raise a presumption, it would be 
for the successful candidate/Respondent No. 1 to rebut such presump-
tion and discharge his initial burden. In this case, the Respondent No. H 
918 
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R. 
.·A 1 having failed to discharge such onus, it is not open for the Respondent 
No. 1 to say that true copies of the election petitions were not filed at 
the time of presentation of election petitions. [929-F, G] 
2.3. Second part of st:ction 81(3) of the Act, requiring signature of 
B the election petitioner is satisfied if the copy is attested by the election 
petitioner to be true copies of the election petitions under their own 
signature. The defects as noted above cannot lead as to hold that election 
petitions should be rejected for non-compliance of section 81(3) of the 
Act as copies served on the respondent No. 1 cannot be treated to be "true 
copies" within the mean

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