Swa/ R•IM v. The Conrt had to deal with a similar question of inter- Memb

Before proceeding further it is necessary to advert to the history of the provision in sub-section for learned counsel for the respondents laid some store by the object with which the provision was introduced. As enacted 1951, s. 81 contained only two sub-sections, the first deal ing with the time within which a petition had to be filed and the second with the person or authority and the manner in which the petition had to be presented in order to cons titute the presentation one to the Election Commission. At that date the Election Commission, after scrutinizing the petitions to ascertain whether there were any formal defects, had itself to make copies for being served on the respon _dents. To avoid this trouble and inconvenience Commission and the delay which the making of such copies 220 SUPREME COURT REPORTS necessarily involved, sub-section ( 3) which we have set out Ch. Subbarao earlier was introduced into s. 81 by an amendment affected Member,v. Election by Act XL of 1961. The point made, based on this fea Tribunal Hyd.ra- ture, we shall reserve for later discussion. 19H I Section 82 deals with the parties who are to be impleaded in the petition and s. 83 with the contents of the petition. Section 8 3 (1 )( c) enacts: "An election petition shall be signed .by the peti tioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the veri fication of pleadings." Sub-section ( 2) requires a similar signature and verification of ichedules or annexures to the petition. Section 85 empowers the Election Commission to dis miss a petition in certain contingencies. It reads: "85. If the provisions of section 81 or section 82 or section 117 have not been complied with, the Election Commission shall dismiss the petition: Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard." The succeeding sections deal with the trial of Election Petitions, after making provision for the 8(?pointment of an Election Tribunal by s. 86 but what is relevant in the pre sent context is s. 90 and it is enough to quote the material wordi: "(1) Subject to the provisions of this Act and of any rules made thereunder, every election peti tion shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of iUits: Svb-scction ( 3 ) reads: ''The Tribunal shall dismiss an election petition which docs not comply with the provision1 of ' ·' I 6 S.C.R. SUPREME COURT REPORTS 221 Ch. 1964 section 81, notwithstanding that it has not been dismissed by the Election Commission under s. 85." Subbarao T. Member, Electitnl The reasoning on which the learned Judges have based Tribunaiod Hyd.,.. their decision shortly stated is this. It is the requirement of s. 81 (3) of the Act that an election petition should be accompanied by the number of copies specified there, and equally so that the copies so accompanying "shall be attest· ed by the petitioner under his own signature to be a true copy of the petition". There was, of course, the signature of the petitioner on tl!ie copies, but there was no attestation by him that "it was a true copy". This constituted a non- compliance with the requirements of s. 81 which brought into play the terms df s. 90 (3) of the Act which required the Tribunal to dismiss a petition which did not com?IY with the provisions of s. 81. A.yyangar 1· Though the learned counsel for the appellant made several submissions, we propose to deal with only one, as the same is sufficient for the disposal of this appeal. This was that in the circumstances of the case there had been a sub stantial compliance with the requirements of s. 81(3). Before, however, dealing with it, it will be convenient tn refer to some of the submissions made to us by the learned Solicitor-General appearing for the contesting :es;>ondent!. He submitted to us certain propositions which however we consider really unexceptionable. He said that an election petition was not to be equated to an action at law or in equity, but that as the rights were purely the creature of statute, if the statute rendered any particular requirement mandatory, the courts possessed and could exercise no dis pensing power to waive non-compliance. We consider these i;:iropositions are sound and it is in the light of these basic positions that we shall proceed to consider whether the omission to add the words "true copy" in the copies which were idmittedly exact copies of the petition, constituted a non-compliance with s. 81 (3) as to render the petition liable to be rejected under s. 90 ( 3) of the Act. Learned counsel for the appellant urged that the juris diction of the Tribunal under s. 90(3) to dismiss 'an elec- SUPREME COURT REPORTS Clo. """ A1Jon1ar 1. tion petition which does not comply with the <;>rovisions of 19M. Su6baroo s. 81' was attracted only if there was a defect in the peti lf•mb.,,.. Election ~ion itself ~~ that a defect merely in the copy accompany "petition not Tilbunar ll1d11a- mg the petition would not be a case of a complying with the provisions of s. 81" so as to require In or even permit the Tribunal to dismiss the petition. in the language support of this submission, the difference employed in s. 85 and s. ·90(3) of the Act in !he matter of making r~ference to the requirements of s. 81 w.a5 adverted to. Besides, it was pointed out that both s. 90(3) and before it s. 90 ( 4) were in their present form making refer ence to s. 81 when the latter section did not contain the third sub-section relating to copies accompanying the petition, and that the content of s. 90 ( 3) should not be held enlarg ed because in 1961 sub-section ( 3) was added to s. 81 particularly because the language of s. 90(3) was not alter ed to reflect the change. ' I We are not impressed by this argument. When s. 81 ( 3) requires an election petition to be accompanied by the requisite number of copies, it became a requirement for the presentation of the election petition to the Commission, and therefore a condition precedent for the proper presentation If that is a requirement of s. 81, of an election petition. no distinction can be drawn between the requirements of (3). We sub-sections (1) and (2) and of sub-section might add that if there is a total and complete non-compliance with the provisions of s. 81 ( 3), the election petition might not be "an election petition presented in accordance with the provisions of this Part" within s, 80 of the Act. We are therefore inclined to consider that if there had been such a non-com; iliance with the requirement of sub-section (3) not merely the Election Commission under s. 85 but the Elec tion Tribunal under s. 90 ( 3) would prima facie not merely be justified but would be required to dismiss the election petition. This takes us to the point as to whether the require ment of s. 81 ( 3) has been complied with or not. The prin cipal submission of the learned Solicitor-General was based on the language employed in s. 81(3) of the Act read in 6 S.C.R. SUPREME COURT REPORTS 223 imperative r,1:::,:1. H~ J!M4 """ Ayyangqr 1. the light of the direction contained in s. 90(3) which cast on the Tribunal the duty to dismiss an election petition Ch. Si4'6- which did not conform to the requirements of the former. M b "· E'.. In particular, he laid stress on the use of the 'shall' in s. 81 (3) when denoting the requirement of "attes- tation" "under the petitioner's signature" of the copy bearing It was in this connec- the signature being a "true co;:>y''. tion that he pointed out that the provision for properly attested copies of the petition accompanying the petition was introduced by the amendment effected in 1961, and the object of Parliament was two-fold; first to save the time and inconvenience which the previous procedure cast on the Election Commission, of itself having to make copies for service on the respondents, and secondly by this means to exq>edite the conclusion of the trial of an election petition. He submitted that the attainment of these objects would be entirely frustrated if the respondents on whom these copies were served had still to make enquiries to satisfy themselves whether the oopies were true copies, without the same being asserted to be so on their face. In support he referred us to the decisions in Noseworthy v. Overseers of Buckland etc.(') and in Spice v. Bacon( 2 ) as illustrating the degree of strictness and literal compliance which was insisted on by courts in regard to provisions of like character. The first of these cases was a registration appeal and the Act provided that a iperson who objected to a voter's quali fication might be heard in support of his objection if he had given notice to the voter and the manner of giving notice was by sending it by post addressed to his place of abode It was held that a notice by post addressed "as described". correctly but not to the address "as described" was not a compliance with the requirement and that in consequence the objector could not be heard. We do not consider that this dec.ision lays down any hard and fast rule or principle of construction which is attracted to every case where a statute calls for interpretation. question is one of the construction of the relevant provi sion of the particular statutes which iproceeds on the basis of the words used understood in the context of the statute. In ultimate analysis ( 1) L.R. 9 C. P. 233. (') L.R. 2 Bx. D. 463. SUPREME COURT REPORTS 1964 The second case raised a question as to the meaning Ch. Subbarao of the word "true copy" in the Inn-keepers' Liability Act .!M•mhtr v.Election 1863, which required that in order to obtain the benefit of Iribu11ai Hydera- the limitation of liability conferred by the Act, a "copy" of the Act had to be exhibited at the Inn. The copy which Ayyangar J. was exhibited omitted some material words of the section which was required to be exhibited. The Court held that when a claim was made on the inn-keeper for loss sustained by a guest, he could not claim the benefit of the statute. We It are unable to appreciate the relevance of this decision. turned on what was meant by the word 'copy' in the Act and the portion which was omitted in the copy exhibited was a material portion. There is no doubt that such a 'copy' which differs in material particular from the original is not a 'copy' within the Act. In this connection we might make a reference to the decision of this Court in Murarka v. Roop ) where the question as to what is a "copy" is ela Singh ( 1 borately discussed and some of the English decisions touch ing this matter have been set out. We shall have occasion to refer to Murarka's case later, but for the present we need only add that the decision relied on by the Solicitor-General is not at variance with what this Court has laid down in Murarka's case. The next matter to be considered stems from the submis sion as regards the object of Parliament in enacting sub section ( 3) of s. 81 and that expeditious dispClsal of election petitions which was the object would be frustrated if sub stantial compliance with the provision was held sufficient. We are not im; iressed with this argument. While we are conscious of the need for expeditious disposal of elec tion petitions, and for the strict enforcement of provisions designed to achieve this purpose, we cannot be oblivious to the circumstance that to read every requirement literally might equally defeat the purpose for which Part VI is inten ded, viz., that elections are conducted in accordance with the relevant statutory provisions framed to ensure purity and orderliness and that the candidate who has not obtain ed a majority of valid votes or has obtained it in flagrant (t) [1964]3 S.C.R. 573 6 S.C.k SUPREME COURT REPORTS 225 breach of the statutory provisions in not held entitled represent the constituency. Ch. 1964 SubbllNIO v. The Conrt had to deal with a similar question of inter- Memb.,, Electio• Tribunal Hydm1r Ayyaniar 1• pretation of words which appeared mandatory in Kamara; Nadar~• .• Kunju Thevar(1). One of the points which arose for consideration was whether the requirement of s. 117 of the Act which then required the petitioner to enclose with the petition a Government treasury receipt of Rs. 100 in favour of the Secretary to the Election Commission had been complied with by the election petitioner and s. 90( 4) of the Act which corresponded substantially to the present s. 90(3) required the Election Tribunal to dismiss a peti- tion which did not comply with the provision, inter alia, of s. 117. The petitioner in that case had made the deposit of the requisite amount i11 the institutions named in the sec- tion but the deposit was made in favour of the Election Commission and not in favour of the Secretary to the Com- mission as required by statute. It was contended that the petition did not conform to the provisions of s. 117 and had therefore to be dismissed by the Tribunal. This Court rejected this submis>ion .and after adverting to the purpose of the provisions, held that this was fulfilled by the deposit made and that though the requirement as to deposit was mandatory, the same was complied with by the deposit made. We consider that this reasoning is not irrelevant to the construction of s. 81(3) of the Act either. ) In this connection we might refer to the decision of this Court in Murarka v. Roop Singh( 2 in which this Court had to consider a question closely related to that now under debate. That case was also concerned with certain defect~ similar to what we have in the appeal before us. relied on by the returned The defects which were there candidate as justifying or requiring the dismissal of the Election Petition fell into several categories whiCh includ· ed non-compliance with the requirements of s. 81 (3 ). There, as here, the petition was accompanied with the re- (') (1959] S.C.R. 583. 134-159 SC-15 <'> [1964] 3 s.c.R. 573. SUPREME COURT REPORTS [1¢4] . h' 1964 ect1on Ayyangar J. quisite number of copies as specified in s. 81 (3) but what Ch. Subharao was urged was as regards certain defects in the copies filed . . These defects fell into two types. First there were two mat- ., b v.El ... m .r, J'rlbunal Hyd.ra- ters w 1ch 1t was stat ed not 'true render If the exipressions 'copy' or 'true copy' w~re read copies'. as exact copies of the original, the copies filed did not satis fy that test. The two defects were: ( 1) The original peti tion contained the signature of the petitioner at the foot of In the the petition as required by s. 83(1)(c) of the Act. copy filed there was no copy of this signature. To that extent therefore the copy was not an exact copy. the copies . The second matter under this head was that the verification in the copy served on the appellant did not exactly correspond to that in the original in that in the latter one of the paragraphs was stated to be true to the personal knowledge of the petitioner while in the former that paragraph was omitted from this group. The other type of defect which was claimed to consti tute non-compliance with s. 81 ( 3) was that the words 'true copy' with the signature of the petitioner underneath were not put down in one of the annexures to the petition, copies of which were annexed to the copies of the petition filed. The order of the Returning Officer rejecting the nomination paper of the petitioner was filed with the original petition as an annexure to it, and certified copies of that order were annexed to the copies of the petition. But this certified copy did not contain an endorsement stating that it was a 'true copy' with the signature of the petitioner. The High Court had held that so far as the defect in not reproducing the signature in the petition was concerned, it was cured by the fact that every page of the copy of the petition was attested to be a true copy and therefore it would not matter if the last page did not contain the signature. As rega•ds the second, the High Court held that the failure to include the paragraph in the verification was only a clerical defect which had crept in through oversight and as regards the other that it was no defect at all. This decision was up held by this Court holding that the word 'co;>y' in s. 81 ( 3) meant a copy which was substantially sc and which did not 6 S.C.R. SUPREME COURT REPORTS ~7 contain any material or substantial variation. By 'copy' in s. 81 ( 3) was meant not an exact copy but only one so Ch. true that nobody by any possibility misunderstand! it not M being the same as the original. Applying this Court came to the conclusion that there was no failure to comply with the last part of s. 81 ( 3), with the re1ult that s. 90 ( 3) of the Act was not attracted. 1964 Sub/Hno be ": Elecltoa test, this Trlb~ B1"1» ~.., AY1•n1• 1. · This Court besides left open the question as to whether any part of s. 81 ( 3) was directory or whether any portion of it was mandatory. In the present case also, we do not propose to deal with the larger question as to whether 1. In view of 81(3) or any portion of it is merely directory. the decis.ion of this Court it would be clear that if there ia a substantial compliance with the requirement of s. S 1 ( 3), the election petition cannot be dismissed by the Tribunal under s. 90 ( 3). The question then is whether on the facts above-stated, there is or is not a sufficient and substantial compliance with s. 81 (3). We have already pointed out that the appellant has complied with the following requir& ments: ( 1) The petition has been accompanied by the requilite number of copies. (2) The copies that accompanied the petition were · · true copies. ( 3) Each of those copies bore the signatures of the petitioner. If the signature of the petitioner whose name is set oqt in the body of the petition is appended at the end, surely it authenticates the contents of the document. Now in regard to this the learned Judges of the High Court themselves ob · served after referring to the terms of s. 81 ( 3) : "No doubt, what is necessary is a substantial com{i-' liance with the requirement of attestation. For instance, if it is proved that" the eleetion petitioner has signed animo atttstendi, and omitted the words 'true copy' by mistake or inadvertently, there i5 a substantial require ment of the compliance of s. 81 (3). The 228 SUPREME COURT REPORTS [1964} 1964 Ch. s.,bbarao ... II.ember, Election Tribunal Hyd1ra- 1. h <4.yyangar J. same may be said if the relative positions of the words 'true copy' and of the signature· one below the other are not correct." h Id h f h ·d h · hey owever e t at as t ere was no cv1 ence o t e sig- nature having been appended animo attestendi, there was non-compliance with s. 81 (3). The learned Solicitor-Gene- ral while not disputing the correctness of the observations of the learned Judges just extracted pressed upon us that the signature at the end of the copy was meant only as a ca:;iY satisfy the of that in the original petition and could not requirement as to attestation of the copy. He also submitted that the position would have been different if there were two signatures instead of one at the end of the copy, even if the In that case, words 'true copy' were omitted to be put down. he said, one signature could be treated as representing the copy of the signature on the original and the other mii:ht be taken to have been made animo attestendi. We do not however consider that there is really need for so much refine ment when one has to look at whether there is a substantial compliance withs. 81(3), seeing that a signature in origi signatures now found on the copies were intended to authen ticate the document to which it is appended, viz .. the copy, it would only mean that the copy did not reproduce the sig nature in the original. There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a non compliance with the requirement of this provision. If the nal was not needed on the copy and a writing copying out the name of the signatory would suffice. The decision of this Court position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. Jn the circumstances, we consider that there has been substantial compliance with the requirement d. s. 81 (3) in the petition that was filed by the appellant and the learned Judges were in error in directing the dismissal o! the petition. in Murarka's case(') is authority for The appeal is accordingly allowed and the order of the High Court dismissing the petition is set ru; ide. As owing (') [I964J 3 S.C.R. 573 -; .;,. 6 S.C.R. SUPREME COURT REPORTS 229 10 the filing of the Writ Petition there has been a considera ble delay in the trial of the Election Petition, we express the hope that the petition would be heard and disposed of at an early a date as is conveniently possible. The appellant will be entitled to his costs here and in the High Court which will be paid by the contesting third respondent. 1964 Ch. Subbarao v. Tribunal Hydera· Tribunal Hydera· Ayyanz"1' 1, Appeal Allowed. I IN re: LILY ISABEL THOMAS (B. P. SINHA, C.J., K. SUBBA RAo, RAGHUBAR DAYAL, N. RAJAGOPALAN AYYANGAR AND J. R. MUDHOLKAR, JJ.) 1964 January, 14 Supreme Court Rules-''Right to practise" if include! "right to act" - Rule making power-If conflicts with legislative power of Parlia ment-Supreme Court Rules, 1950 (as amended in 1962). 0. IV. rr. 16, 17-Validity of-Constitution of .India, Art. 145-Advocates Act, 1961 (25 vf 1961) •·s. 52, 58(3). The petitioner was enrolled in the Madras High Court under the Indian Bar Councils Act, and later admitted to the rolls of this Court under the Supreme Court Rules. In this petition, it was contended that under s. 58(3) of the Advocates Act, the petitioner was entitled "as of right to practise" in this Court. and the "right to practise" included not merely the right to plead hut also to act; that the rules mad~. N rr. 16 & 17 of the Supreme Court Rules are invalid; and that that by a rule made under Art. 145 (l)(a) this Court could neither entitle a person to practise nor impose qualifications as to tho right to practise, these matters being entirely within entry 77 and therefore exclusively for parliamentary legislation. HELD: (i) The words "right to practise" would in itt normal con aotation take in not merely right to plead but the right to act as well and if no rules had been made by the Supreme Court restricting the right to act, the petitioner could undoutedly have had a right both to plead es well as to act Ashwani Kumar Ghosh v. Arabinda Bose, [1953) S.C.R. 1, referred lo. (ii) Under s. 58(3) of the Advocates Act, the right conferred on Advocates enrolled under the Bar Councils Act to practise in the Sup Rme Court is made subject to any rules made by thia Oourt. SectiOD