Ch. Subbarao vs Member, Election Tribunal, Hyderabad

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 971 of 1963

Decision Date: 13 January 1964

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, Raghubar Dayal, J.R. Mudholkar

The judgment concerned an election petition filed by Ch. Subbarao, a voter in a constituency of Andhra Pradesh, against the election of the third respondent, who had been declared elected to the Legislative Assembly of Andhra Pradesh in the general election of 1962. The petition was presented on 13 January 1964 before the Supreme Court of India, with the bench consisting of Justices N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, Raghubar Dayal, and J.R. Mudholkar. The case is reported in 1964 AIR 1027 and 1964 SCR (6) 213, and it has been cited in subsequent reports. The petition relied upon sections 80, 81(3) and 90(3) of the Representation of the People Act, 1951 (43 of 1951). The central issue was whether the absence of an attestation at the foot of each copy of the petition, declaring the copies to be true copies, amounted to a violation of the mandatory requirement of section 80(3) of the Act, and whether such omission rendered the petition non‑compliant with the statutory provisions.

The petition was accompanied by the requisite number of copies, each of which bore the signature of the petitioner, but none of the copies contained a footnote attesting that they were true copies. The third respondent raised several preliminary objections before the Election Tribunal, all of which were dismissed. Consequently, the third respondent filed a writ petition in the Andhra Pradesh High Court seeking a writ to set aside the Tribunal’s order. The High Court accepted the argument that the lack of an attestation violated section 80(3) and issued the writ as prayed for. On appeal, this Court considered three main holdings: first, that a total or complete failure to comply with the requirements of section 81(3) could mean that the election petition is not “presented in accordance with the provisions of the part” of the Act; second, that the term “copy” in section 81(3) is not meant to require an exact replica, but rather a copy that is sufficiently true so that no reasonable person would misunderstand it as being different from the original, referring to Murarka v. Roop Singh and distinguishing the cases of Noseworthy v. Overseers Buckland and Spice v. Bacon; and third, that the signatures appearing on the copies could not be treated merely as copies of the original signatures, because the original signature was not required on the copies and merely reproducing the name of the signatory would have sufficed.

In this case the Court observed that the lack of a statement on the copy indicating the original signature did not prevent the copy from being considered a true copy. The Court further found that the facts and circumstances demonstrated substantial compliance with the requirements of section 81(3). The broader issue of whether section 81(3) or any part of it is mandatory or merely directory was left unsettled. Consequently, the appeal was allowed. The Court relied on the authorities Murarka v. Roop Singh [1964] 3 S.C.R. 573 and Kamaraj Nadar v. Kunjer Thevar [1959] S.C.R. 583.

The appeal, recorded as Civil Appeal No. 971 of 1963, was taken by special leave from the judgment and order dated 15 April 1963 of the Andhra Pradesh High Court in Writ Petition No. 1096 of 1962. Counsel for the appellant, identified as P.A. Chaudhury and T.V.R. Tatachari, appeared for the appellant, while counsel for respondent No. 3, identified as H.N. Sanyal, Solicitor‑General, and P. Ram Reddy, represented that party. The judgment was delivered on 13 January 1964 by Justice Ayyangar. The appeal challenged the High Court’s decision that had allowed the writ petition filed by the third respondent, K. Brahmananda Reddy, and dismissed the election petition filed by the appellant. The factual backdrop involved the general elections held in February 1962 for the Legislative Assembly constituency of Phirangipuram in Guntur District, Andhra Pradesh, where the third respondent Brahmananda Reddy and the second respondent Chandramouli contested. On 26 February 1962 the Returning Officer declared Brahmananda Reddy elected with a majority of valid votes. Subsequently, the appellant, a registered voter in that constituency, filed an election petition before the Election Commission on 11 April 1962 under section 81 of the Representation of the Peoples Act, 1951. The petition contained no formal defect, was accompanied by the required number of copies under the Act, and included a treasury receipt showing the deposit required by section 117. The petition sought to set aside the election on several grounds, including allegations of corrupt practices by the returned candidate and his election agent, as well as irregularities such as votes recorded for deceased persons and instances of double voting. The Commission accepted the petition as conforming to the Act, published a copy in the Official Gazette on 17 May 1962 pursuant to section 86, and later constituted an Election Tribunal to try the petition. The returned candidate, Brahmananda Reddy, filed his Written Statement on 15 September 1962.

In response to the election petition, Brahmananda Reddy denied every factual allegation contained in the petition and, in the written statement filed on 15 September 1962, raised a number of technical objections alleging defects in the petition. The present appeal, however, was not concerned with those technical defects nor with any defence on the merits of the allegations, because the merits of the petition had not yet been tried and the technical objections raised in the written statement of 15 September 1962 had already been disposed of by the High Court and were therefore not before this Court. A few days later, on 24 September 1962, Brahmananda Reddy filed an additional statement of objections that primarily addressed further technical issues; among those objections the only one forming the subject‑matter of the current appeal was contained in paragraph 2. That paragraph, as quoted, asserted that the petition filed under section 81 of the Act was not an election petition and that, because the requirements of section 81(3) of the Act had not been complied with, the petition was liable to be dismissed under section 90(3) of the Act. The second statement also prayed that, on account of those technical objections, the maintainability of the petition should be decided as a preliminary issue, since the objections went to the root of the matter. Although paragraph 2 was expressed in somewhat vague terms, the arguments presented before the Tribunal clarified that it was an objection alleging non‑compliance with section 81(3), which mandates that every election petition be accompanied by as many copies as there are respondents, together with an additional copy for the Election Commission, and that each copy must be attested by the petitioner’s own signature as a true copy of the petition. The Tribunal accepted this request and, by an order dated 7 November 1962, decided the preliminary objections, including the objection under paragraph 2, in favour of the election petitioner and fixed a date for the trial of the petition on its merits. Consequently, Brahmananda Reddy moved the High Court under article 226 of the Constitution, seeking a writ to quash the Tribunal’s decision and to dismiss the election petition on the ground of non‑compliance with the statutory provisions. The learned judges of the High Court rejected the other technical objections but held that the petition did not satisfy the requirements of section 81(3) of the Act and, for that reason, ordered the dismissal of the election petition.

The Court noted that the High Court had ordered the dismissal of the election petition and that the appellant had subsequently filed the present appeal after securing special leave from this Court. The matter in dispute was confined to a very narrow question, namely whether a specific defect identified by the learned judges rendered the petition untenable. Accordingly, the Court first set out the precise deficiency that the High Court had held to be fatal to the maintainability of the petition. The petition, as previously described, had been accompanied by the number of copies required under section 81(3) of the Act. The petition itself had been type‑written and the accompanying copies were carbon copies of the original type‑script, leaving no doubt that the copies were indeed true copies of the petition. Each of those copies bore two original signatures of the election petitioner, signatures that authenticated both the substance of the petition and the verification statement. However, the petitioner had not placed the words “true copy” before or above his signatures. The learned judges of the High Court concluded that this omission meant the petition did not comply with the requirement of section 81(3) of the Act, and on that basis they dismissed the election petition. The correctness of that dismissal formed the subject of the appeal before this Court. In order to consider the arguments presented, the Court found it necessary to refer to certain relevant statutory provisions. First, it recalled article 329 of the Constitution, which provides: “…329(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.” In keeping with that constitutional mandate, the Act contains Part VI, beginning with section 79. Section 80 restates the constitutional rule, declaring: “No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.” Section 81 governs the presentation of petitions and states: “81. Presentation of petitions. (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub‑section (i) of section 100 and section 101 to the Election Commission by any candidate at such election or any elector within forty‑five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. Explanation. In this sub‑section, ‘elector’ means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.”

Section 81 of the Act dealt with the manner in which an election petition was to be presented to the Election Commission. Sub‑section (2) provided that a petition would be deemed to have been presented when it was delivered to the Secretary of the Commission or to any other officer appointed by the Commission for that purpose, either by the petitioner himself or by a person authorized in writing by the petitioner. The same deemed presentation occurred when the petition was sent by registered post and subsequently delivered to the Secretary or the appointed officer. Sub‑section (3) stipulated that every election petition had to be accompanied by a number of copies equal to the number of respondents named in the petition, plus one additional copy for the use of the Election Commission. Each of these copies was required to be attested by the petitioner, under his own signature, as a true copy of the petition. The learned counsel for the respondents drew attention to the purpose underlying this provision. When the section was originally enacted in 1951 it contained only two sub‑sections, one prescribing the time limit within which a petition should be filed and the other prescribing the person or authority and the method of presentation that would constitute a valid presentation to the Election Commission. At that time, after examining a petition for any formal defects, the Commission itself had to make copies for service on the respondents, a process that caused inconvenience and delay. To eliminate that difficulty, sub‑section (3) was inserted by an amendment made by Act XL of 1961, thereby shifting the responsibility of producing the required copies to the petitioner. The Court noted that this historical background would be considered in later analysis. Section 82 then prescribed the parties who had to be impleaded in the petition, while section 83 dealt with the contents of the petition. Clause 83(1)(c) required that an election petition be signed by the petitioner and verified in accordance with the verification procedure laid down in the Code of Civil Procedure, 1908, for pleadings, and subsection (2) imposed a similar signature and verification requirement on any schedules or annexures attached to the petition. Section 85 empowered the Election Commission to dismiss a petition where the provisions of sections 81, 82 or 117 had not been complied with, subject to the condition that the petitioner be given an opportunity to be heard before dismissal. The succeeding provisions concerned the trial of election petitions, including the appointment of an Election Tribunal under section 86. Of particular relevance to the present discussion was section 90, which provided that, subject to the Act and any rules made thereunder, every election petition shall be tried by the Tribunal in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits, and that the Tribunal shall dismiss any election petition that does not comply with the requirements of section 81, even if the Commission had not dismissed it under section 85.

In this case the Court observed that the law provides that, subject to the rules made thereunder, every election petition must be tried by the Tribunal and, as far as practicable, the trial must follow the procedural regime applicable under the Code of Civil Procedure, 1908, to the hearing of suits. The relevant provision, Sub‑section (3), states that the Tribunal shall dismiss an election petition which does not comply with the provisions of section 81, even if the Election Commission has not dismissed the petition under section 85.

The Court explained that section 81(3) requires an election petition to be accompanied by the number of copies specified in that provision and that each accompanying copy must be attested by the petitioner’s own signature as a true copy of the petition. While the petitioner’s signature was indeed present on the copies, there was no attestation that they were “true copies.” This omission amounted to non‑compliance with section 81, thereby invoking section 90(3), which mandates dismissal of a petition that fails to meet the requirements of section 81. Although counsel for the appellant advanced several arguments, the Court elected to address only the argument that, given the facts, there had been substantial compliance with section 81(3). Before analysing that point, the Court found it useful to refer to the submissions of the Solicitor‑General for the respondents. The Solicitor‑General submitted that an election petition is not to be treated as an ordinary action at law or in equity, and that because the rights involved arise solely from statute, any mandatory statutory requirement cannot be waived by the courts. The Court accepted these propositions as sound and, on that basis, considered whether the failure to insert the words “true copy” on copies that were otherwise exact copies of the petition constituted a breach of section 81(3) sufficient to render the petition dismissible under section 90(3). The appellant’s counsel contended that the Tribunal’s power under section 90(3) to dismiss “an election petition which does not comply with the provisions of section 81” should be triggered only by a defect in the petition itself, not by a defect confined to the accompanying copy, and therefore the omission of the phrase “true copy” should not justify dismissal.

The Court noted that counsel had drawn attention to the difference in wording between section 85 and section 90(3) of the Act regarding reference to the requirements of section 81. It was also pointed out that both section 90(3) and the preceding section 90(4), in their current form, referred to section 81 even though, at the time those provisions were drafted, section 81 did not contain the third sub‑section dealing with copies accompanying a petition. Counsel argued that the content of section 90(3) should not be expanded merely because a sub‑section was added to section 81 in 1961 without a corresponding amendment to the language of section 90(3). The Court was not persuaded by this argument. The Court observed that when section 81(3) requires an election petition to be filed together with the prescribed number of copies, that requirement becomes an essential condition for the presentation of the petition to the Election Commission. Consequently, the requirement of sub‑section 3 cannot be distinguished from the requirements of sub‑sections 1 and 2 of the same section. Moreover, the Court added that a total and complete failure to comply with the provisions of section 81(3) would mean that the petition could not be described as “an election petition presented in accordance with the provisions of this Part” under section 80 of the Act. Accordingly, the Court was inclined to hold that, had there been such a non‑compliance with the requirement of sub‑section 3, not only the Election Commission under section 85 but also the Election Tribunal under section 90(3) would, on the face of it, be required to dismiss the election petition. The discussion then turned to the question of whether the requirement of section 81(3) had in fact been fulfilled. The principal submission of the Solicitor‑General was based on the language of section 81(3) read in light of the directive contained in section 90(3), which imposes on the Tribunal a duty to dismiss any election petition that does not meet the requirements of section 81. He emphasized the imperative word “shall” in section 81(3) that creates a mandatory obligation to attach an attested copy bearing the petitioner’s signature and to label it as a “true copy”. He further explained that the provision for properly attested copies accompanying a petition had been introduced by the 1961 amendment, and that Parliament’s purpose was two‑fold: first, to save the time and inconvenience caused to the Election Commission by requiring it to produce copies for service on respondents; and second, to accelerate the conclusion of the trial of an election petition. The Solicitor‑General submitted that these objectives would be completely defeated if the respondents, who had been served with the copies, still had to conduct inquiries to determine whether the copies were indeed true copies.

In this case, the Court observed that the requirement that a document be a ‘true copy’ could not be satisfied merely by a claim on its face that it was a true copy. To illustrate the degree of strictness that courts have applied to similar statutory specifications, the Court referred to the decisions in Noseworthy v. Overseers of Buckland etc. and in Spice v. Bacon. The first decision concerned a registration appeal in which the governing Act allowed a person who objected to a voter’s qualification to be heard only if he had given notice to the voter, and the notice had to be sent by post to the voter’s ‘place of abode as described’. The Court in that case held that a notice that was correctly addressed but did not match the description required by the statute failed to satisfy the statutory requirement, and consequently the objector was barred from being heard. The present Court stated that this earlier ruling did not establish a universal rule of construction applicable to every statutory provision that calls for interpretation; rather, the meaning of a provision must be derived from the actual words used, read in the context of the statute in which they appear.

The second decision that was cited dealt with the interpretation of the expression ‘true copy’ in the Inn‑keepers’ Liability Act of 1863. Under that Act a person could obtain the benefit of the statutory limitation of liability only if a copy of the Act, as required, was exhibited at the inn. In the case before the Court the copy that had been exhibited omitted several material words of the relevant section. The Court held that because the omitted portion was material, the document could not be regarded as a copy within the meaning of the Act, and the inn‑keeper could not rely on the statutory defence. The present Court expressed that it could not see how this decision was relevant to the present question, since the issue there turned on the definition of ‘copy’ and the materiality of the omitted portion. The Court then referred to its own earlier decision in Murarka v. Roop Singh, in which the concept of ‘copy’ had been examined in detail and several English authorities on the subject had been quoted. The Court indicated that it would refer to Murarka’s case later, but for the present purpose it only needed to note that the decision relied on by the Solicitor‑General was consistent with the principles laid down in Murarka. The Court then indicated that the next point for consideration related to the object of Parliament in enacting subsection (3) of section 81, namely the aim of achieving speedy disposal of election petitions.

In this case the Court examined the argument that giving effect to a literal and strict compliance with the provision of section 81(3) would defeat the purpose for which Parliament had enacted the clause, namely the swift disposal of election petitions. The Court stated that although it recognised the importance of disposing of election petitions quickly and of enforcing strictly the rules intended to secure that goal, it could not ignore the circumstance that a rigid literal interpretation of every requirement might equally undermine the purpose of Part VI of the Act. Part VI, the Court explained, is intended to ensure that elections are conducted in accordance with the statutory provisions that are designed to preserve purity and orderliness, and that a candidate who either does not obtain a majority of valid votes or obtains election in open breach of those statutory provisions is not entitled to represent the constituency.

The Court then referred to a earlier decision in Kamaraj Nadar v. Kunju Thevar, where a similar question of interpreting mandatory‑sounding words had arisen. In that case the issue was whether the requirement of section 117 of the Act, which then mandated that a petitioner attach a government treasury receipt of rupees 100 payable to the Secretary of the Election Commission, had been satisfied, and whether section 90(4) of the Act, now substantially reproduced in section 90(3), compelled the Election Tribunal to reject a petition that failed to comply with section 117. The petitioner in that earlier case had deposited the required amount with the offices named in the section, but the deposit was made in favour of the Election Commission rather than in favour of the Secretary as the statute prescribed. The petitioners argued that the failure to make the deposit exactly as required meant that the petition did not meet the provisions of section 117 and therefore had to be dismissed. The Court rejected that submission. After considering the purpose of the provision, the Court held that the deposit made, although not addressed to the Secretary, fulfilled the statutory purpose and therefore satisfied the mandatory requirement.

The Court observed that the reasoning in Kamaraj Nadar v. Kunju Thevar was not irrelevant to the construction of section 81(3) of the Act in the present appeal. It further referred to its earlier judgment in Murarka v. Roop Singh, a case that dealt with a question closely related to the present dispute. In Murarka, the petition was also accompanied by the number of copies specified in section 81(3), but the focus of the challenge was on certain defects in those copies. The Court noted that the defects raised in Murarka fell into several categories, including non‑compliance with the requirements of section 81(3). Although the petition in the present case similarly contained the requisite number of copies, the discussion of the defects in the copies, as introduced in Murarka, was relevant to the Court’s analysis of whether the present petition complied with section 81(3).

In that case the defects were classified into two categories. The first category comprised two matters that were alleged to render the copies filed not to be “true copies.” The argument was that if the terms “copy” or “true copy” were understood to require an exact duplication of the original document, then the copies presented failed that test. The first matter concerned the absence of the petitioner’s signature in the copy. The original petition bore the petitioner’s signature at the foot of the petition as mandated by section 83(1)(c) of the Act, but the copy filed did not reproduce this signature, and therefore the copy was said not to be an exact copy. The second matter in this category related to the verification clause. In the original petition the verification paragraph stated that the contents were true to the personal knowledge of the petitioner, whereas the copy served on the appellant omitted that paragraph entirely. Hence, it was contended that the verification in the copy did not correspond exactly to the verification in the original.

The second category of alleged defect concerned the failure to place the words “true copy” together with the petitioner’s signature in one of the annexures to the petition. The order of the Returning Officer that rejected the petitioner’s nomination paper was attached to the original petition as an annexure, and certified copies of that order were annexed to the copies of the petition. However, the certified copy did not contain an endorsement stating that it was a “true copy” with the petitioner’s signature. The High Court held that the defect of not reproducing the signature in the petition was remedied by the fact that every page of the copy was attested to be a true copy, so the absence of the signature on the last page was not fatal. Regarding the omission of the verification paragraph, the High Court treated it as a mere clerical oversight and not a substantive defect, and it regarded the lack of the endorsement in the annexure as no defect at all. This judgment was affirmed by the Supreme Court, which explained that the word “copy” in section 81(3) meant a copy that was substantially so and did not contain any material or substantial variation. According to that view, “copy” did not require an exact replica but only a copy that was true enough that no reasonable person could be misled into thinking it was different from the original. Applying this test, the Court concluded that there was no failure to comply with the final requirement of section 81(3), and consequently section 90(3) of the Act was not triggered. The Court also left unresolved whether any part of section 81(3) was merely directory or was mandatory, and indicated that it would not address that broader question in the present case.

The Court observed that the larger issue concerned whether section 81(3) or any part of that provision was merely directory. It stated that, in accordance with its earlier decision, when a petition substantially complies with the requirements of section 81(3), the Tribunal lacks authority to dismiss the election petition under section 90(3). Consequently, the Court needed to determine, based on the facts already set out, whether the petitioner had achieved sufficient and substantial compliance with section 81(3). The Court noted that the appellant had satisfied several specific requirements. First, the petition was accompanied by the number of copies mandated by the statute. Second, each of those copies was a true copy of the original petition. Third, each copy bore the petitioner’s signature. The Court added that when the petitioner’s signature, whose name appears in the body of the petition, is placed at the end of the copy, it necessarily authenticates the contents of that copy.

Regarding this point, the learned judges of the High Court had examined the language of section 81(3) and remarked that substantial compliance with the attestation requirement was essential. They gave an illustration: if it were shown that the election petitioner had signed “animo attestendi” but had inadvertently omitted the words “true copy,” such a circumstance would still satisfy the substantial compliance test prescribed by section 81(3). They further explained that a similar conclusion could be reached even if the relative placement of the words “true copy” and the signature were not in the exact order prescribed. Nevertheless, the High Court judges concluded that, because there was no evidence that the signature had been appended “animo attestendi,” the requirement of section 81(3) had not been fulfilled.

The learned Solicitor‑General, while not challenging the correctness of the High Court judges’ observations, pressed the Court on a finer point. He argued that the signature appearing at the end of the copy was merely a reproduction of the signature in the original petition and therefore could not satisfy the attestation requirement for the copy. He further submitted that the situation would have been different if two signatures had appeared at the end of the copy, even though the words “true copy” were omitted. In that hypothetical, one signature could represent the copy of the original signature, while the other could be treated as having been made “animo attestendi.”

The Court held, however, that such detailed refinements were unnecessary when assessing whether substantial compliance with section 81(3) had been achieved. It observed that the signatures appearing on the copies were intended to authenticate the document to which they were attached, namely the copy itself, and that this intention merely indicated that the copy did not reproduce the original signature verbatim. The Court concluded that there was no compelling reason to deem the signatures as only copies of those on the original for the purpose of finding non‑compliance with the statutory requirement.

In this case, the Court observed that if a seal was not required on the duplicate and a written copy of the signatory’s name would be sufficient, the document could still satisfy the statutory requirement. The Court relied on the authority of its earlier decision in Murarka’s case (1), which held that the absence of a literal representation of the original signature in a copy does not prevent the copy from being deemed a true copy. Applying that principle, the Court concluded that the petition filed by the appellant had achieved substantial compliance with section 81(3) of the relevant statute. Consequently, the Court found that the learned judges of the High Court were in error when they directed the dismissal of the petition. The appeal was therefore allowed and the order of the High Court dismissing the petition was set aside. The Court noted that, owing to the reference to Murarka’s case [1964] 3 S.R. 573, there had been a considerable delay in the trial of the election petition after the filing of the writ petition, and it expressed the hope that the petition would be heard and disposed of as early as possible. The appellant was awarded costs in both the Supreme Court and the High Court proceedings, and the Court directed that those costs be paid promptly by the contesting third respondent. The order also reflected the Court’s aim to ensure a speedy resolution of election disputes. The appeal was thus allowed.