A
SH. HARCHARAN SINGH JOSH
v.
SH. HARi KISHAN
APRIL 23, 1996
B
(K. RAMASWAMY, B.L. HANSARIA AND S.B. MAJMUDAR, .TJ.].
Representation of the People Act, 195 I :
Section 123-Election Petition-Non-supply of copies of docu-
C ments-Objections raised by the other pa1ty of regarding non-supply of tnte
copy of affidavit-Held, it is a fonnidab/e objection which me1its acceptance.
Dr. Smt. Shipra Etc. Etc. v. Shantilal Khoiwal Etc. Etc., JT (1996) 4
SC 67, relied on.
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7936 of
1995.
From the Judgment and Order dated 26.5.95 of the Delhi High Court
in E.P. No. 6 of 1994.
E
R.C. Pathak, Ravinder Bagai, R.K. Gupta, Ms. Prerna Tandon and
Ms. Naresh Bakshi for the Appellant.
R.P. Bansal, Pramod Dayal, Ajay K. Jain and Shashi Bhushan for the
Respondent.
F
The following Order of the Court was delivered :
This appeal arises against the order of the Delhi High Court made
on 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
G elections were held on 6th November, 1993. The respondent secured 27126
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
H appellant on issued Nos. 1 to 3, it held that the requisite number of true
682
H.S. JOSH v. HARi KISHAN
683
copies of the eloction petition were not supplied lo the respondent in A
compliance with Section 81 (3) of the Act. Reasons in support thereof arc
some grave mistakes including omiS>ion 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 copy of the affidavit which was filed in the
Court along with the election petition. Though it was rc.iccted by the High
Cou_rt as one of the grounds against the rejection of the election petition,
B
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 objection which merits acceptance in view
of the recent judgment of this Court in Dr. Smt. Shipra Etc. Etc. v. Shanti/a/
Khoiwal Etc. Etc., JT (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 candidate would not be misled in
his understanding that imputation of the corrupt practices were sole1nnly
affirmed and duly verified before the prescribed authority. For that pur-
pose, Form 25 prescribed by Section 83 requires verification before
prescribed authority. The concept of substantial compliance has on ap-
plicalion 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 Commis-
sioner. Under these circumstances, the defect is not a curable defect.
Therefore, the dismissal of the election petition on this ground is sus-
tainable in law.
Learned counsel for the appellant placed reliance on an order of this
Court in C.A. No. 925 of 1995 (Boota Singh v. Sher Singh & 01>.), decided
c
D
E
F
on March 13, 1996. It would be seen that a Bench of two Judges of this
Court has not expressed any conclusiYe opinion on the contro\'ersy. On the
other hand, this Court remitted the matter to the High Court for recon-
sideration in accordance with la\v. Under these circumstances, the ratio G
therein is of no assistance to the appellant.
The appeal is dismissed. But, in the circu1nstances \vithouL costs.
G.N.
Appeal dismissed.
Lex