Guljari Lal Patel vs Baldeo Singh and Another

Arun Mishra, J.

Petitioner in the instant writ petition challenges the order P.10 dated 10.12.2002 passed by the S.D.O. The SDO has rejected the objection as to maintainability of election petition on the ground that the documents of which reference has been made in the election petition has not been duly attested and they are forming part of the election petition.

Petitioner''s case is that in para 11 of election petition the reference is made to certain documents, the copies of the same were not duly attested in the manner prescribed for presentation of the election petition. Similar is the position with respect to the documents in para 12, 13 and 14.

I have gone through the documents of which reference is made in para 11, 13 and 14. They are filed collectively as Annexure P.2. In para 11 application dated 03.02.2000 is mentioned. The contents of the same are completely pleaded in para 11 of the election petition. There is another reference; document dated 03.02.2000 in petition. The contents of the same have also been pleaded in para 11 of the petition.

In para 12 of election petition there is no reference to any document or the application. Perusal of para 13 of the election petition shows that petitioner filed an application for not issuing the certificate of election which was filed to the Returning Officer. The contents of this application of 07.02.2000 are also pleaded is apparent from the averment made in the election petition. The contents of another application moved to District authorities moved on 07.02.2000 are also substantially pleaded in the election petition.

Shri S.K. Gangele, learned counsel for the petitioner, has relied upon a Division Bench decision of this Court in W.P. No.5836/2000 decided on 13.03.2002. This Court has considered the question as under:

5 Again in Manohar Joshi Vs. N.B. Patil (AIR 1996 SC 796), this question was considered by the Apex Court and it was observed that in a case where the document is incorporated by reference in the election petition without reproducing its contents in the body of the election petition, it forms an integral part of he petition and if a copy of that document is not furnished to the respondent with a copy of the election petition, the defect is fatal attracting dismissal of the election petition u/s 86(1) of the R.P. Act. On the other hand, when the contents of the document are fully incorporated in the body of the election petition and the document also is filed with the election petition, not furnishing a copy of the document with a copy of the election petition in which the contents of the document are already incorporated, does not amount to non-compliance. The relevant observations contained in para 23 of the report read as under:

The distinction brought out in the above decisions is that in a case where the document is incorporated by reference in the election petition without reproducing its contents in the body of the election petition, it forms an integral part of the petition and if a copy of that document is not furnished to the respondent with a copy of the election petition, the defect is fatal attracting dismissal of the election petition u/s 86(1) of the R.P. Act. On the other hand, when the contents of the document are fully incorporated in the body of the election petition and the document also is filed with the election petition, not furnishing a copy of the election petition in which the contents of the document are already incorporated, does not amount to non-compliance of section 81(3) to attract Section 86(1) of the R.P. Act. In other words, in the former case the document filed with the election petition is an integral part of the election petition being incorporated by reference in the election petition and without a copy of the document, the copy is an incomplete copy of the election petition and, therefore, there is non-compliance of Section 81(3). In the other situation, the document annexed to the petition is mere evidence of the averment in the election petition which incorporate fully the contents of the document in the body of the election petition and, therefore, non-supply of a copy of the document is mere non-supply of a document which is evidence of the averments in the election petition and, therefore, there is no non-compliance of Section 81(3). In U.S. Sasidharan Vs. K. Karunakaran and Another, , this distinction is clearly brought out as under: -

The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81 (3) provides for giving a true copy of the election petition. When a document forms and integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81 (3) and, as such, the Court has to dismiss the election petition u/s 86(1) for non-compliance with Section 81(3).

On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of Section 81(3). The document may be relied upon as an evidence in the proceedings. In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition.

From he above discussion, it is clear that requirement of attestation contained in Rule 3(2) would be attracted only where an annexure has been incorporated by reference or document has become an integral part of the election petition which will depend on the facts of each case. We also hold that the Tribunal can scrutinise the case to find out whether there has been substantial compliance with the Rule and to proceed to deal with the matter on merits.

Thus, it is clear that the documents have not been made annexures to the election petition and the contents of the documents are substantially pleaded. Thus, in my opinion, on the facts of this case, the order of the S.D.O. is just, proper and calls for no interference in the light of Division Bench decision of this Court quoted above and decision of Apex Court in U.S. Sasidharan Vs. K. Karunakaran and Another, , U. S. Sasidharan (supra).

Writ petition is dismissed. Costs on parties.