TMI Blog1979 (11) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... nd R. N. Nath JUDGMENT The Judgment of the Court was delivered by Venkataramiah, J. This appeal is filed under section 123 of the Jammu and Kashmir Representation of the People Act, 1957 (hereinafter referred to as 'the Act') by the appellant against the judgment of the High Court of Jammu Kashmir in Election Petition No. 3 of 1977 dismissing an election petition filed by him on the ground that he had not complied with section 89(3) of the Act. At the general election held in the year 1977 to elect members to the Legislative Assembly of the State of Jammu Kashmir, the appellant and the respondent were candidates for the seat to be filled from the Handwara Assembly Constituency. The respondent was declared as the successful candidate by the Returning Officer. Thereafter the appellant filed an election petition before the High Court of Jammu Kashmir challenging the validity of the respondent's election on various grounds. The respondent raised two preliminary objections to the election petition-(1) that the petition had not been presented in accordance with sub- section (1) of section 89 of the Act and (2) that the copy of the election petition had not been attested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1951 (Act No. 43 of 1951) (hereinafter referred to as 'the Central Act'). There is no difference between the language of section 89(3) of the Act and the language of section 81(3) of the Central Act. The language of section 94(1) of the Act and the language of section 86(1) of the Central Act are similar except with regard to the numbers of sections referred to therein. Whereas in Section 94 of the Act, the High Court is required to dismiss an election petition which does not comply with the provisions of section 89 or section 90 or section 125 of the Act, section 86(1) of the Central Act requires the High Court to dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the Central Act. The topics dealt with by sections 89, 90 and 125 of the Act are the same as the topics dealt with by sections 81, 82 and 117 of the Central Act. Section 89 of the Act and section 81 of the Central Act deal with presentation of election petitions. Section 90 of the Act and section 82 of the Central Act deal with the parties to the petition and section 125 of the Act and section 117 of the Central Act deal with security for costs. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else." It is seen from the above decision that this Court regarded the words "in favour of the Secretary to the Election Commission" used in section 117 of the Central Act directory as the essence of section 117 of the Central Act was that the petitioner should deposit the amount by way of security for the costs of the petition and that the said amount should be at the disposal and control of the Election Commission to be used by it in the manner authorised by law. As the amount was in fact at the disposal of the Election Commission, the Court held that section 117 of the Central Act had been complied with by the petitioner in that election petition as there was nothing else in the relative provisions which precluded the Court from taking that view. In Ch. Subbarao v. Member, Election Tribunal, Hyderabad [1964]6 SCR 213 the question of non-compliance with section 81(3) of the Central Act directly arose for consideration. The facts of that case were these: The petitioner had filed alongwith the elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence the petition was liable to be dismissed. The High Court accepted the said contention and dismissed the petition. In appeal,this Court held that section 81(3) of the Central Act had been complied with for the following reasons:- "Now, it is true that no signature was appended by the appellant on the copy of the election petition proper and the signature was placed only at the foot of the copy of the affidavit, but that, in our opinion, was sufficient compliance with the requirement of the last part of sub-section (3) of section 81. The copy of the affidavit was, for reasons already discussed, part of the copy of the election petition and when the appellant put his signature at the foot of the copy of the affidavit it was tantamount to appending signature on the copy of the election petition. The law does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. It may be at the top of the copy or in the middle or at the end. The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy. When original signature is made by the petitioner on the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to enable them to file their statement of objections to it early, it would be sufficient compliance with the said provision if the true copies are filed alongwith it and since in the instant case, there had been no allegation that the copies which were filed were not exact copies of the original election petition, the petition should have been disposed of on its merits instead of dismissing it under section 94 of the Act. He contended that the attestation made by the advocate on the copies was sufficient to assure the respondent that the copy served on him was in reality a true copy of the election petition. He also contended that if a suit instituted in a civil court was not to be dismissed on the ground that the copy of the plaint was not authenticated to be a true copy by the plantiff under his own signature, there was no justification for treating the second part of section 89 of the Act as mandatory. It is true that section 89(3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the High Court to dismiss an election petition when the petitioner has not complied with the provisions of section 89 was enacted in the place of the former section 94 of the Act by Jammu and Kashmir Act XI of 1967 by the Legislature with the full knowledge of the requirements of section 89(3) of the Act. The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition appears to be that the petitioner should take full responsibility for its contents and that the respondent or respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the original petition after it is filed into court. We have no doubtthat the records and documents in the custody of courts are taken due care of by the courts and the courts would not by themselves give any scope for tampering with them. But still experience shows that allegations are sometimes made that records in the court have been tampered with notwithstanding th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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