;

629

M. K.ARUNANIDHI ETC.

V.

H.V. HANDE & ORS. ETC.

March 31, 1983

[A.P. SEN AND E.S. VENK~TARAMIAH, JJ.J

Representation of the People Act, 1951 (43 of 1951)-lnterpretation of~

Sub..,s. (I) of s./17-Two parts-Deposit of security man<iatory-Strict C0111Pliance

necessary-Mode of deposit dtrutory-Substantial compUance sufficient, sub-s.

A

B

(3) of s 81 read with sub-s. (2) of s.83-]$1ection petiMncCopi<S thereof-include

rchedu/e or annexure-/ntegral part-If inclutkd in pleadings-Copy of electjon G

pttition .servcdwithout annexure-Non-compliance with sub-s. (3) of s.81-­

Dismissal of p~titfon in limint.

Madras High Court (Election Petitions) Ru'es, 1967-Rules 8 a_nd 12 read

with Madras High Court (Original Side) Rules, 1956 order 31, r.2-lnterpretation

of-Cash deposited in Reserve Bank through pre-receiptsd challan prepared :0-;

by Hig/1 Court-Substantial comvliance.

Interpretation-Rule of-Statute mandatory or directory dep.nds upo11 intent

and not language pf the Act.

Respondent No. 1 in C.A. 38 of 1981 ftl•d an election petition under

the Representation of the People Act challenging the election of the appellant

to the State Legislative Assembly on various grounds. The petition was accom.. E

panied by <\pre-receipted chaltan prepared by the Accounts Department of

th~ High Court on the basis of the lodgment schedule initialled by the Assistant

Registrar

II,

showing that a sum of Rs. 2000!-had been cr~dited to the ac<;:ount

of the Registrar, High Court, Madras, in the Reseive Bank of India, MHdras,

as security for costs. The facts are more ·or less si.milar to all the appeals.

In C.A. 38/81, which has additional facts, the respondent pleaded. inlet alia, F.

that the appellant was guilty of corrupt practice under sub-s.(6) of s, 123 of

the Act. He alleged tbat the appellant

had erected about

50 fancy bannero each

costiDB not less than Rs. 1000/-and _if this expenditure of Rs. 50,000/-was

added to the amount already disclosed by him in his return of election

expenses it would exceed ttie prescribed limit thus an1ounting to a cofrupt

practice. The respondent filed a photograph of one such fancy banner with

the election petition but did not annex a copy of this photograp' t.O tt.e COpY G'

of. the ~lection Petition furnished .to the appellant.

The appellant raistd two preliminary objections as to the maintainability

of the petition on the ground of non compliance with· ~ub-s.(1) of s. 117 read

with r. 8 of the Election Petitions Rules, and with oubCs.(3) of s. 81. High Court

overruled both the objections and held : (I) there was mbstantial compliance ff

with sub-s. (1) of s. 117; and (2) the banner could not be treated· as· a11 intogF&l

part of the election petition but was merely a piece of evidence as to the nature

~nd trpe of the fancy banners erected br the appellant an~ therefore faUure

630 SUPREME COURT REPORTS [1983) 2 S.C.R.

to supply a copy of its photograph to the appellant along with the copy of the

A election petition did not amoum to a breach of sub-s.(l) of of s. 81.

B

c

D

E

F

On appeal, this Court by its order dated April 2, 19;1 remitted back

the issue with regard

to non-compliance of subs. (1) ofs. 117 read with r. 8

for a decision afresh on the

b;isis of the evidence to be led by the parties.

After_considering the eviderice, the High Court adhe_!ed to its earlier view.

The appellant contended in this Court: (I) the provisions of sub-s. (I)

of s. 117 were maridatory ; there was no distinction between the requiren1ent

as to the making of securily deposit and the manner of making such deposit ;

the words "in accordance with the rules of the High Court" in sub-s. 117 were

mandatory; r. 8 n1ust be read as forming part of sub·s. (1) of s. 117 by

incorporation ; in view of the definite stand taken by lhe respondent that he

had complied with r. 8 it was not possible to fall back on Order 31 of the

Madras High Court (Original Side) Rules, 1956. There was no compliance

with ·.r. 8 as the security amount was not deposited with the Registrrar in cash.

(2) There was

no contpliance \vith the requirements of sub-s. (3) of s. 81 as

the copy

of the election petition served on hitn was not accon1panied by a copy

of the photograph of the fancy banner.

Dismissing all the appeals and

special leave petitions except C.A. 38/81

which partly succeeds and is allo,ved.

HELD:. l(a). Sub-s. (1) of s. 117 is in two parts. The first part provides

that at the time

of presenting an election petition, the petitioner

shall deposit

in the High Court a sum

of Rs.

2000 as security for the costs of the petition,

and the second is that such deposit shall be made

in the

Jiigh Court in

accordance wHh the rules of the High Court. The requirement regarding the

n1aking of a security deposit of Rs. 2000 in the High Court is mandatory, the

non compliance of which must entail dismissal

iJJ

limine of the election petition

under sub-s. (1)

of s. 86 of Act. But the requirement of its deposit in the

High Court in accordance with rules

of the High Court is clearly directory.

The essence

of

sub·s. (1) of s. 117 is that at the ti1ne of filing an election petition

the petitioner sho.uld furnish security for the costs

of the petition. Section 117

should not be strictly or technically construed and substantial compliance with

its requirements should be treated as sufficient. [645-F,

651-E, 652-B]

1(b). A literal and mechanical interpretation of r. 8. of the Election

Petitions Rules would lead to manifest absurdity as it

wo-Uld imply that in every

case the election petitioner shall have to pay to the Registrar a sum

of

G Rs.

2000 in cash towards security for cost~ and obtain a receipt from him there.

for. Rule 8 is silent as to how the cash is to be handled. Inasmuch as r. 8

does not lay down the procedure regulating the manner

of deposit of cash, the

matter

fails to be governed by r. 2 of Order 31 of the Madras High Court

(Original Side) Rules, 1956 by reason of r. 12 of the Election Petitions Rules.

Although Order 31, r. 2 does not in terms apply because Order JI relates to

ff ''payment into court of moneys to the credit of civil court deposits and account

of suitors' money", and though no lodgment schedule can be prepared under

r. 2 except in pursuance

of a deeree or order passed by the High Court i.e. in

relation to some

proce~ding pending, or disposed of, by the High Court~ still

M. KARUNAN!DHI v. H.V. HANDE 631

by virtue of r. 12 of the Election Petitions Rule that is the procedure to be

adopted for deposit of Rs. 2000 in the High Court in cash i.e. by crediting the A

amount on the strength of a pre-receipted· challan prepared by the Accounts

,.,__ ~ Department on the basis of a lodgment'schedule.(649 A·E]

•

In the present case the Assistant Registrar II, Madras High Court,

directed that the money be deposited to the credit of the Registrar

of the

High Court in the Reserve Bank of India.

The election petitioner-deposited

Rs. 2000 with a pre-receipted challan issµed by the Accounts Department to B

the credit of the Registrar of the High Court and the Reserve Bank of India

made the endorsement "received in cash". It must be regarded that the

payment was made in the High Court and the

pre-receipted challan bearing ~ the endorsen1ent of the Reserve Bank must be treated as the receipt of the

Registrar in terms of r. 8, the Reserve Bank acting as an agent of the High

Court. The procedure adopted

.by Assistant Registrar II, was in conforn1ity C

with r. 8. There was due compliance with the requirements of sub-s. (1) of

s. 117 of the Act read with r. 8 of the Election Petitions Rules.

[649-B, E-H]

K. Kamaraja Nadar v. Kunju Thevar & Ors .. [1959] SCR 583 ; Chandrika

Prasad Tripathi v. Siv Frasad Chanpilria & Ors .. [1959] 2 Suppl. SCR 527; Om

Prabha Jain v. Gian Chand & Anr,, [1959] 2 Suppl. SCR 516; Budhi Nath Jha

v. Mani/al Jadav, 22 ELR 86 ; Charan Lal Sahu v. Nandkishore Bhatt & Ors.,

[1974] I SCR 294; Aeltemesh Rein v. Chandulal Chandrakar & Ors., [1981]

3 SCR 142, referred to.

2 (a). Sub-s. (3) of section 81 of the Act is in two part. The first part pro­

vides that every election petition shall be accompanied by as many copies there­

of as there are respondents ment!oned in the petition and the second part relates

to the

n1anner ln. which such copy shall be attested by the petitioner under his

his own signature to be a true c.opy of the

petition. The first part is mand;t­

tory in character and non-cotnpliance wiht it was fatal to the p'etition in view

of sub·s. (I) of s. 86. [655.E, 659·F]

2 (b). The words "copies thereof" in sub-s. (3) of s. 81 read in the

i;ontext of sub-s. (2) of s. 83 roust necessarily refer not only to the

election petition Proper but also to schedules or annexures _thereto containing

particulars of any corrupt practice alleged therein. Sub-s. (2) of s. 83 applies

only to a schedule or annexure which is an integral part of the election petition

and not a document which

is produced as evidence of the averments of the

election petition.

(663-B-C, 656

F-G]

D

E

F

In the instant case, the test to be applied in determining whether the G

photograph referred to in the election petition is an integral part of the election

petition or

was merely a piece of evidence in proof of the allegations contained

therein, depends on whether

it is a part of the pleadings. The photograph

which

gives a visual description of the fancy banner, the cost of which at a

mere look would

show that the expenditure in setting up each such banner

would be Rs.

1000/· or more, was not merely a document accompanying the H

election petition but was a part and parcel of the pleading contained therein.

The averment contained in the election petition would be incomplete as regards

\he allc~ation of the corru~t prncticc committed br the appellant without a

A

B

c

D

E

F

G

H

632 SUPREME COUllT llEPOllTS [1983] 2 s.c.R.

copy of the photograph being supplied with a copy of the election petiton.

Merely alleging

that the appellant had put up fancy banners would be .of

no avail unless there was a description of the banner itself together with the

slogan. The failure to supply a copy

of'the photograph along with a copy of

the elect~on petition to the appellant amounted to non-compliance of sub-s. (3)

of s. 81,(661B,654 F, 661 C,654 C, 655 D, 663 A-B, F-GJ

Sahodrahai Rai v. Ram Singh Aharwar, [1968] 3 SCR 13, held inapplicable.]

Ch. Subbarao v. Member, Election Tribunal. Hyderabad, [ 1964] 6 SCR 213;

Jagat Klshore Prasad Narayn Singh v. Raj Kumar Poddar & Ors. [1971] I SCR

821; Satya Narain v. Dhuja Ram & Ors., [1974) 3 SCR 20 and Kama/am (M) v.

Dr. V.A. Syed Mohamad, [1978] 3 SCR 446, referred to:

Sharif-ud-din

v. Abdul Gani lone, [1980]

I SCR 1176, distinguished.

3. It is aJways important to bear the distinction bet».een mandatory and

directory provisions of :i statute. The general rule of interpretation is well­

known· and 1t is but an aid for ascertaining the true int.ention of the legislatute

which is the determining factor and that must ultimately depend on the context.

The question as to whether a statute is maddatory or directory, depends upon

the _intent of the legislature and not upOn the language in which the intent is

~lothed, The meaning and intention of the legislature must govern, and

these rnllst be ascertained not onJy from the words used, but also by consider­

ing its object and consequences which would follow from construing it one

way or the other. An .ibsolute enactment must be obeyed or fulfilled exactly

but-it is suffic,ient if a directory enactment be obeyed or fulfilled substantially.

An enactment in form mandatory might in substance be directory and the

use of the word "shall" does not conclude the matter. [641 E-H, 646 A-CJ

N.P. Ponnuswami v. Returning Officer, Naniakkal, 11952] SCR 218;

Wo/yerlwmpton New Water Works Company v. Hawkesford, [1359] 6 CB (NS)

336 at 356 ; Jagan Nat11 v. Jaswant Singh & Ors., [1954] SCR 892 ; Maxwell on

the Interpretation of Statutes, 12th Edn. p. 314; Crawford on 'Statut,..ry

Construe.lion' p. 516; State of U.P. v. Manbodhan Lal Srivastva, [1958] SCR

533; State of U.P. & Ors. v. Babu Ram Upadhya, [1961] 2 ~CR 679; Raza

Buiand Suga'

Co. Ltd. v. Municipal Board, Rampur, [1965] 2

SCR 970 and

Montreal Street Railway Co1npany v. !Vormandin LR {1917) AC 170, referred to.

CIVIL APPELATE JURISDICTION : Civil Appeal No. 38(NCE)

of 1981.

Appeal by Special leave from the judgment a'\d Order dated

the

!st

January·, 1980 of the Madras High Court in Application

No. 4309 of 1980 in Election Petition No. 17 of 1980.

AND

Special Leave Petition (Civil) No. 1580 of 1981

From the Judgment and. Order dated the 13th January, 1981

. of the Madras High Court in Election Petition No, 13of1980,

,~,,-

-

M. KA!l.UNANIDHI. v .. H.V HANDE (Sen, J.) 633

AND

Special Leave Petition (Civil) No. 5178 of 1981.

•

From the Judgment and Order. dated .the 8th July, 1981 of

the Madras High Court in Application No. 1967of1981 in Election

Petition No.

14 of

1980.

AND

Civil Appeal No. 4216(NCE) of 1982.

Appeal by Special leave from the Judgment and Order dated C

the 22nd October, 1982 of the Madras High Court in Application

No. 265of1981 in Election Petition No. 5 of

1980.

AND

Civil Appeal No. 1170of1981.

Appeal

by

Special leave from the Judgment and Order dated

the 4th February,

1981 of the Madras

·High Court in Application

·No. 189 of 1981 in Election Petition No. 7 of 1980.

IN CIVIL APPEAL NO. 38/81

G. Ramaswamy, K. Rajendra Chowdhury, N.A. Subhramanyam

and Mahabir Singh for the Appellant.

E

NT " l · R K G VJ "' · d Bhaskar "'hankar F .. ranama at, . . arg, .. rranc1s an "'

for the Respondent.

A.V. Rangam for Respondent No. 10.

A.T.M. Sampath for the intervener.

G

IN SLP (C) NO. 1580 OF 1981

C.S. Vaidyanathan for the Petitioner.

A.T.M. Sampath for Respondent No. I.

A. V. Rangam for Respondent No. 2, ·

634 SUPREME COURT REPORTS (1983) 2 S.C.R.

A

IN SLP(C) NO. 5178 of 1981

K.R. Nambiar for the Petitioner.

f.N. Rama/ingam for the Respondent.

Jl INC.A. NO. 1170of1981

G. Ramaswamy and A.S. Nambiar for the Appellant.

A.T.M. Sampath for Respondent No. 1.

C "A. V. Rangain for Respondent No. 2.

D

E

F

G

H

IN CA. NO. 4216 of 1980

A.S. Nambiar and P. Parmeswaran for the Appellant.

A.T.M. Sampath for Respondent.

A. V. Rangam for Respondent. .

The Judgment of the Court was delivered by

SEN J. These appeals by special ·Jeave and the connected

special

leave petitions from the

judgment and orders of the High

Court of Madras raise · the same question and therefore they are

disposed

of by this common judgment. In Civil Appeal No. 38

(NCE) of 1981, there is a further question involved.

The facts are more or

less similarin all these appeals, except

that in Civil Appeal No. 38(NCE)

of 1981 there are certain

additional facts.

It will suffice for our purposes

tci set out the facts

giving rise to that appeal.

At the last general election to the State Legislative Assembly

of Tamil Nadu from the Anna Nagar Assembly Constituency No. 8

held in May 1980, the appellant, M. Karunanidhi, leader of the

Dravida Munnetra Kazhagam party, contested

as a candidate of

that party and secured 51290 votes. As against this, the respondent

Dr.

H.V. Hande sponsored as a candidate by the All India Anna

Dravida Munnea ~azhagam secured 50591 votes. On June l, 1980

·-

••

•

' •

M. KARU!;ANIDHI v. H.V. HANDE (Sen, J.) 635.

the appellant, M. Karunanidhi, was consequently declared elected

by a margin of 699 votes. The last date for filing an election A.

petition to challenge his election was July 16, 1980. On July 14, 1980

the respondent, Dr. H. V. Han de, filed an election petition under

s. 81 read with s.100 of the Representation of People Act 1951

(for the sake of brevity hereinafter referred to as 'the Act') challeng-

ing the election

of the appellant on various grounds. The election B

petition was accompanied by

a pre-receipted challan prepared by the

Accounts Department of the High Court on the basis

of a lodgment

schedule initialled

by the Assistant Registrar II, High Court, showing

that a sum of Rs.

2,000 had been credited on July 11, 1980, to the

account of the Registrar, High Court, Madras, in the Reserve Bank

oflndia, Madras, as security for costs along with ihe lodgment C

schedule signed by the Assistant Registrar II. ·

The respondent pleaded, inter a/ia, in paragraph 18 of the

petition that the appellant

was guilty of corrupt

practice under

sub-s.(6)

of s. 123 of the Act by incurring or authorising expenditure D

in contravention of s. 77. It was

alleged that he had failed to disclose

certain items

of expenditure in his statement of election expenses

.

filed by him in connection with the election as detailed m sub­

paragraphs

(a) to (e) of

paragraph 18 of the petition. The allegation

in paragraph 18(b) related to an expenditure of about Rs. 50,000 in

erecting fancy banners throughout the constituency and it

was alleged E

that there were such fancy banners about

50 in number, the cost

of each banner being not less than Rs. 1,000 It was averred in

paragraph

18(b)

that a photograph of one such banner was filed

along with the petition. Admittedly, though the respondent had filed.

with the election petition a photograph of one such banner, a copy F

of the photograph was not annexed to the copy of the petition

furnished to the appellant.

On October 30, 1980 the appellant filed his written statement.

He pleaded,

inter

a/ia, that the election petition was liable to be G

dismissed in limine under sub-s. (I) of s. 86 due to non-compliance

with the requirements of sub-s.(1) of s.117 of the Act read with

rule 8

of the Madras High Court (Election Petitions) Rules, 1967,

for the reason that there was no deposit of Rs.

2,000 in cash in the

High Court as security for costs, and also for non-compliance

with

H·

the requirements of sub-s.(3) of s. 81 of the Act as the copy of the

election petition served on the appellant

was not accompanied

by. a

copy of the photograpl: of the alleged fancy banner <1rnexed to the

•,

636 SUPREMll COURT RllPORTS (1983) 2 S.C.R.

petition, as alleged in paragraph 18(b) of the petition. The appellant

A accordingly raised a preliminary objection as to the maintainability + __,,.

B

c

D

E

F

G

of the election petition.

The High Court

by its order dated December 1,

1980, over­

ruled both the preliminary objections. In regard to the objection

based on sub-s'.(l)ofs.117 of the Act read with'Rule 8 of the

Madras High Court (Election Petitions) Rules,

1967 (for short 'the

Election Petitions Rules'), the High Court held that a

sum of

Rs.

'2,000 as security amount had beeu deposited by the respondent

in the Reserve Bank

of India to the credit of the Registrar, High

Court, at

the instance of the High Court, and in accordance with

the procedure followed for deposit

of amounts in court. In reaching

that conclusion,' the High Court relied upon the lodgment schedule

presented

by K. Subramaniam, counsel for the respondent, which

had been prepared

in the Registry by the Assistant Registrar II, and

the challan in triplicate prepared

by the Accounts Department of

the

High Court and signed by the official referee specifying the amount

and the date within which

it had to be deposited. It held that the

requirements

of sub-s,(J} of s. 117 of the Act read with rule 8 of the

Election Petitions Rules for the making

of the deposit of

Rs.2,000

as security for costs in the High Court were mandatory but the

manner of making such deposit

was directory and as the amount of Rs, 2,000 had, in fact, been deposited to the credit of the Registrar,

High Court, within the time allowed therefor, there

was substantial

compliance with the requirements

of sub-s,

(I) of s.117 of the Act.

As regards the objection based on the non-supply of a copy 'Of the

photograph

of the fancy banner adverted to in paragraph 18(b),

the

High Court relying upon the decision of this court in Sahodrabai Rai

v.Ram Singh Aharwar,(') held that the banner could not be treated to

be an integral part

of the election petition but was merely a piece

of evidence as to the nature and type of fancy banners erected by

the appellant and therefore failure to supply a copy of the photograph

to the appellant did not amount to a breach

of the provisions

contained in sub-s.(3) of

s. 81 of the Act. These findings were

reached

by the High Court on the basis of the affidavits filed by the

parties and the material on record.

The High Court had also before

H it a report from the Registry as to the procedure followed with regard

to Court deposits :

(I) [1968] 3 SCR 13.

..

\,

(

.

l \.-

>

i.i. KARUNANlDHI ¥. H.V. HANDE (S~n, J.) 637

"Any person desirous of paying money into Court

shall present a lodgement schedule, duly vouched

by the

concerned Section. regarding the quantum and the time

limit, and initialled by the

Officers of Original

Side or

Appellate side as .the case may be, to the Accounts

Department for the issue

of a Challan to enable the party

to make the payment into Reserve Bank

of India, Madras

to the credit

of the case concerned.

On the presentation

of the Lodgement Schedule to the Accounts Department

a Challan in triplicate specifying the amount and the date

within which

it should be paid will be issued by the

Accounts Department to the person, desirous of

·making

·such payment, who will deliver the Challan to the Bank.

The Bank in turn after deposit deliver one part of the

Challan duly signed to the person making the payment.

On the production of the Challan, the Accounts Depart-

ment

will make necessary credit entries in the ledgers and

the receipt registers. The remaining

two parts of the

Cballan are sent

by Reserve Bank of India, Madras to

Pay and Accounts Office, which in turn sends one part of

it to this Office. Sometimes it takes about one or two

months to receive the· said Challan from the Pay and

Accounts Office. In cases where advocates do not produce

one part

of Challan in Accounts Department, credit

entries are made on the strength

of the Cballan from

Pay

and Accounts Office and the pass book from the Reserve

Bank of India, Madras.

Official receipt for such deposits arc issued under

the signature

of the Assistant Registrar (Original

Side) for

Original Side Deposits and of the Deputy Registrar for

Appellate Side Deposits to such of those parties who

produce one part

of the Challan and make a request for

official receipt to that effect.

It

is also submitted that Accounts Department will

not receive cash without specific orders to that

·effect.

This is the procedure that is being followed by the

Accounts Section of High Court with regard to Court.

A

B

D

E

F

G

Deposits." H

It is against this order of the High Court that this appeal was

filed. The appeal was first heard in April 1981, and this Court by

A

B

D

E

F

H

SUPREME COURT !UlPORTS [i 983j :2 S.C.R,

its order dated April 2, 1981, remitted back the issue with regard

to the alleged non-compliance with the requirements of sub-s.(J)

of s. 117 read with rule 8 of the Election Petitions Rules to the High

Court for a

deci.sion afresh, as it was felt that the point raised was

primarily a matter

of evidence, but the parties had unfortunately not

led

any evidence on the point. It accordingly directed the

Hip Court

to record the evidence that may

be adduced as regards the practice

and procedure followed

by the High Court in regard to the making

of an election petition under s. 81 of the Act and the manner in

which the security amount of Rs.

2,000 was deposited in the High

Court in compliance with the requirements

of sub-s.(I) of s.117 of

the Act read with rule 8 of the Election Petitions Rules.

After the issue

was remitted, the High Court allowed the

parties to lead their evidence both oral

as well as documentary and

has recorded its findings dated July

20, 1981. The High Court adhered

to its earlier

view that on a construction of sub-s. (1) s.

117 of the

Act, the factum of making of deposit of Rs. 2,000 as security for

costs in the High Court was mandatory but the manner

of making

such deposit was directory and further held that although there was

no strict or literal compliance with the requirements

of rule 8 of the

Election

Petitions Rules, there had been substantial compliance with

the requirements

of sub-s.(1

i of s.117 of the Act, in that the

requisite amount

of Rs. 2,000 had actually been deposited to the

credit

of the Registrar, High

CourJ, in the Reserve Bank of India on

July

11,

1980, that is, before the election petition was filed on July

14, 1980, and the same was available for payment of costs. In the

connected cases also, the High Court reached the

same conclusion

after taking evidence 'or the respective parties.

It appears from the evidence adduced in all these cases that

after the general elections to the

State Legislative Assembly of

Tamil Nadu, the then Chief Justice Ismail, C.J., nominated K.S.

Natarajan (P.W. 4) Assistant Registrar II, to deal with all election

petitio1,1s filed under s. 81 of the Act. The evidence of P.W. 4 shows

that he met the officer in charge of the Accounts Department of the

High Court and ascertained the procedure

to

be· followed for

making the security deposit

of Rs. 2,000/-in cash in.the High Court.

He

was informed by the officer in charge that the party filing the

election petition should bring the lodgment schedule. duly.

filed and

that

P. W.4 should inti al it and then the iodgment schedule had to

---~-_,,,_,_

-1.

Iii. kAlttiNANillflh. H.V. HANDI!' (Sen, J.) 63!!.

be taken to the Accounts Department. He was told that the

Accounts Department

would prepare a challan in triplicate and hand A

,

over the same to the party for depositing the money in the Reserve

Bank of India in the q,ame of the Registrar, High Court, and that

the duplicate challan must be filed along with the election petinbh; ,

He deposed that the same procedure was adopted in ,all the cases. The

lodgment

,schedule, Ex

P-2B; prepared by K. Subrazrianiam (P.W.6), &,.,

counsel for the respondent, had been initialled by him and that'he

had also put the date July

14,

1980 by which date the deposit had to

be made K. Subramaniam (P.W.6), counsel for the , respondent,

stated that the respondent had given him the amount of Rs. 2,000

in the first week of July 1980, and accompanied by an authorised

representative of the respondent, he took the lodgement schedule C'.

Ex. P-2B to K.S. Nata;ajan (P. W.4), Assistant Registrar II, who

initialled the same and indicated the date by which the deposit was

to be made. He then took the lodgment schedule to the Accounts

Department where S. Setuiaj (P.W.1) working as challan issuing

clerk, prepared the challan in triplicate. Thereafter,

he took the

I),

challan in triplicate to the Reserve Bank of India and deposited the

amount

of Rs.

2,000 in cash in the name of the Registrar, High

Court, and the duplicate copy of the challan was handed over to him.

The duplicate copy of the challan, Ex. P-2C, bears the seal ofthe ·

Reserve Bank of India, with the endorsement 'received,in cash' and

is dated July 11, 1980. The duplicate copy of the challan Ex P-2C, E

was filed along with the election petition. ,

At this point, it , is necessary to refer to the entries of the

duplicate copy of the challan. Column l of the challan bears the E

beading "By whom paid and name (or designation) and address of

tlie person on whose behalf money is paid" and· the entry reads

"Registrar, High Court, Madras" and bears the seal of the High

Court. Column 2 reads "On what account with authority, if any"

and the entry bears the name of the counsel for the election ,petitioner

and mentions that the amount was deposited as security deposit G

, for the 'election petition. Column 3 bears tlie beading "Amount"

and the amount deposited in each case is entered as Rs. 2,000. The

last column bears the headieg "Head of account" and, gives the head

as "P.D.A/c, Registrar, High Court,' Madras"., A bare reading of

the challans would

show that the amount of Rs.

2,000 as security for fl

costs was received by the High Court and credited to its own

account. When the High Court asked the counsel fgr the electign

640: ."laiPRH!B COURT RlPORTS . ll983j :i S.C.R.

petitioner to "credit the amount in· the Reserve Bank ·along with the ·

A pre-receipted.' challan, it must be deemed that the Reserve Bank was

acting as an : agent of the High Court All the challans bear the··

seal of the Reserve Bank of India with the el\dorsement .. "received: in

cash',_. · -' - .._.__

· . ··Article 3Z9(b) ·of the. C~n~titutio~. -p~ovides, thai nd ~lectimi. iJ ·

.B . either House of Parliament. or to the House or either House of the

Legislature

of the

, State shall be. called .in·. question. except by an '

election petition presented to such authority and in ·such. manner as -

may be p,rovided, by or. under' any: law. ma.de ·bY. the appropriate

. Legislature. The Representation of the, people Act;·1951 is a law

C .· made by Parliament under. Art. 327. of the. Constitution to. provide.

for adjudication

of

disputes regarding, such elections .. Part VI of the: ,_.._

Act is headed. "Disputes regarding Ctections'.• and Chapter II in. 'that'

Part. deals with the presentation· of election ·petitions to the High

Court. Section. 80 provides that rio . election_ shall' be · called iii

question except by 'an election petition pre;ented in accordance with

D; the: provisions. of ...Part YI. Section · 80A .provides that the Court

. having jurisdiction to try an election petiiion shall be 'the High Court.

In.N.P: Ponnuswami v. Returning· Officer, Namakkal;t') this Court

· restated the principle that the right to vote.or stand as a candidate

for election

is not a

civil right but is a creature. 'of statute or special

E' law and.must be.subject to the limitations im~osed by it. .The· Court.

having regard to the non o.bstante i:lause in Art. .· 329 (b) held that the

Act having furnished a complete Code for' challenging an election,

· the election must be challenged in the manner provided. The Court ·

relied. upon the dictum .. of Willes, J. in Wolverhampton New Water

War.b Comp(u(y v. Hawkesfo;d(') which.has b'ecome classical. It is .

....

F· now well recognised that where a right or liability is created by a .

. statute which. gives a special remedy for ellforcing it, the remedy . +

provided by that statute only must be availed of. . , . .

-. - - . , . ' . ... ' ' -. I . . ~ .

.. >'• As· obseNed by this Court in Jagan Nath v. 1aswan1 Singh &

G Ors:,(•) an election contest is noi an· action at law or a suit in equity

~ut is a purely statutory proceeding unknown to the common law and _ l

that the Court possesses no· common law power .. It also added that::

H

' ;. ' • -"·. "' • ' ' .', , ~. 'r '' ''

. · "It is a.sound principle of natural ju~tice that the suceess · ..

: , of a candidate who has won at an election. should ·n.ot ~be.. ·

:,_·_.

'(1). [19521 SCR 218

(2) 1 [18591 6 CB (NS) 336 at 356

(3) [1954] SCR 892 . .

·,.

.'.'

. -'· ' --. ~ . -. -~--

r.-' :.-

' ..) : ;

i • , ; ~ -: - .

. :.. _ _.

• .

, ·.,_

.....

---·

l.1. KARUNANIDHI v: H;V:HANDB. (Sen, J.) 641

lightly. interfered with and any petition. seeking such

interference

.must strictly

conform· to the requirements of A

the-law."· , -

. At the same time, the Court added a note of caution·:

. "It is always to· he borne in mind. that though the .

! election of a successful candidate is not to be lighiiy

. interfered with, one of the essentials' of that law is aiso to

· safeguared the purity of the election process and also. to

see that people do not get elected by flagrant breaches of.

that

law. or by corrupt practices. In cases

wh~re.the

election law. does not prescribe the consequence or does

not lay. down penalty · for non-compliance with certain

·procedu~al requirements of that law, the. jurisdiction of

the tribunal entrusted with the trial of the case is not .

affected." ·

-. -' ....

B

There are two questions that fall for determination. The first D

is whether the election: petition filed by the respondent under s.81

re~d with s. 100 of the Representation of the People Act, 1951 was

·liable to be dismissed in limine under sub·s. (I) of s.86 on the ground

that .·there was non-compliance: with the· requirements of sub-s. (!)

of s.117 of the-Act read with r.8 of the Election Petitions Rules:

The second

is whether

·the election petition is also liable to be

dismissed unaer sub-s. (I) ofs.86 of the Act inasmuch as the copy

of the. dectioa< petition furnished· to the appellaat was not accom­

panied by a copy of the photograph of the fancy banner· referred

to in paragraph

18(b) of the petition as required by

sub-s. (3) of s.81.

of the· Act. . · . " ' ' " · · -· ·· .. ' " · " ·

.•.

In. view of the. arg_uments addressed to · us, it is necessary to

set out a

few of the relevant provisions . which bear upon the

points

raised .. S.81 deals with presentation ofelectiori petitions.;lt run•:

I . , I .. 1''

"81. (I) An election petition calling in question any

election

may be

presented on one or. more of the grounds

specified in sub-section(!) of section 100 and section 101

. to. the. ·High. Court by any candidate: at such election' or

'any elector . within forty-five days from,' but not earlier

tJ:ian, 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 electioit are different; the tater of

.. thosetwodates;,~·:· ... :.-. •. ' ·c•· :-s·:--" "'·

--..._.-.!

E

F

I

A

B

.. SUPllEldB COURT REPC>llTS . fl9a3) 2 S.C.R.

. . 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.

(3) Every election petition shall be accompanied by as

many copies thereof

as there are respondents mentioned

in the petition, and every such copy shall

be attested by

the petitioner under his ow.n signature to be a true copy

of the

petition." ·

Section 82 which is the next section Jays down who shall be

C parties to an election petition. We need not refer to this section in

detail since

we are not concerned

with it. S.83 is however material

and it provides what shall

be the contents of an election petition. It

reads :

D

E

F

G

"'83 (I) An election petition-

(a) shall contain a concise statement of the material

facts

on

which the petitioner relies ;

(b) shall set forth full particulars of any corrupt pract•

icethat the petitioner alleges, including as full a state·

ment as possible of the names of the parties alleged to

have committed such corrupt practice and the date

and place

of the commission of each such practice j

and

(

c) shall be signed by the petitioner and verified in the

manner laid down in the Code

of Civil Procedure,

1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt

practice, the petition shall also

be accompanied by an

affidavit in the prescribed form in support

of the

allega·

tion of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also

be signed by the petitioner and verified in the same manner

H as the petition."

The next chapter which is Chapter III deals with the trial of ;... ""'

election petitions but here we are concerned only with sub·s. (I) of

M. KARUNANIPHI V. ll.V. l!Ai;!DB (Sen, J.) ·1\43

s. 86 which interdicts that the High Court shall, in certain circum•

stances, dismiss an election petition in limine. Sub-s. (!) of s. 86 A

provides as follows :

"86 (I} The High Court shall dismis an election

petition which does not comply with the provisions

of.

section 81 or section 82 or section 117.

Explanation : An

order of the High Court dis]llissing

an election petition under this sub-section shall be deemed

to be an order made under clause

(a) of section

98."

B

io:- Sub-s. (I) of s. 117 which is important for our purposes is in C

these terms :

"117, Security for costs-

(1) At the time of presenting an election petition, the

petitioner shall deposit in the High Court in accor-

D

dance with the Rules of the High Court a sum of

two thousand rupees as security for the costs of the petition."

Rule 8 of the Madras High Court (Election Petitions) Rules,

1967 framed by the High Court under Art. 225 of the Constitution E

which is also important for the purposes of these cases provides as

· follows :

"8. An Election Petitioner before presenting his

Election Petition shall deposit in the High Court in cash a

sum

of two thousand rupees towards security for costs as

provided for under

Section 117 of the Act and shall

produce the receipt of the Registrar

for the

. same at the

time

of presentation of the

petition,"

F

Rule 12 of the Election Petitions Rules is also relevant and G

reads :

"12. Subject to the foregoing rules and to the extent

they are not inconsistent with the provisions

of the Act

the Rules of the High

Cou~t, 1956 (Original Side). shall,

as far as practicable, be observed in all Election Petitions

and all applications taken in respect of thein."

H

A

B

c

D

E

F

H

SlJP!tEMi COURT REPORTS jl983J 2 S.C.R.

Taking up the contentions in the order in which they were

advanced, we shall first deal with the submission that there was

non-compliance with the mandatory requirements of sub-s. (I) of

s. 117 of the Act read with r.8 of the Election Petitions Rules framed

by the High Court, which is common to· all these cases. The factum

of deposit of Rs. 2000/-in each of these cases on the strength of

pre-receipted challans issued by the Accounts Department of the

High Court

in the Reserve Bank of India to the credit of lhe

Registrar, High Court, Madras as security for costs well within the

period of limitation for

filing the election petition is not in dispute

and the controversy turns on the question whether the deposit of the

security amount

was in accordance with the rules of the High Court.

There are different sets

of rules framed by different High Courts

under Art.

225 of the Constilution regulating the practice and

procedure

to be observed in all matters coming

bef9re the High

Court in exercise

of its jurisdiction under

s.80A of the Act: The

words "in accordance with the rules" must therefore connote

"according to the procedure prescribed by the High Court". The

mode of making deposit must necessarily be an internal matter of the

concerned High Court.

In support

of this appeal, learned counsel for the appellant

contends that the provisions

of sub-s.

(I) of s.117 of the Act are

mandatory, non-compliance

of which will entail dismissal of the

election petition

in /imine under sub-s. (1} of s.86 of he Act. It is

urged that uo distinction can be drawn between the requirement as

to the making of a security deposit in the High Court under sub-s.

(I) of s.117 and the manner of making such deposit and sub·s. (I)

of s. I 17 cannot be dissected into two parts, one part being treated as

mandatory and the other as directory. It is further urged that the ·

words "in accordance with the rules of the High Court under sub-s.

(I)

of

s.117" were .as much a mandatory requirement as ihe require­

ment that the election petitioner shall, at the time of presenting an

election petition, deposit in

the High Court a sum of Rs.

2000/-as

security for the costs of the petition. There is therefore no warrant

for the view taken by the High Court that the factum of deposit

of the security amount of

Rs.

2000/-in the High Court was

mandatory and not the manner in which the security deposit was

made. It is also urged that r.8 of the Election petitions Rules

framed

by the High Court under Art. 225 to regulate the mode of

making deposit must be read as

forming part of sub-s.( I) of s.117

by incorporation and therefore the only manner prescribed is by

¥----

M. KARUNANIDHI '· H. v. HANDB (Sen, J.) 645

jllaking deposit in cash with the Registrar. When a statute requires

that something shall be done in a particular manner or from expressly

A

declaring what

ihall be the consequence of non-compliance with it,

the requirement must

be regarded as imperative. Having regard to

the definite stand taken by the respondent that he

·had complied with

the requirements

of r.8, it is not permissible to fall back on

the

provjsions contained in order 31 of the Madras High Court Rules B

relating to deposit of suitors' money. The last submission is that in

view of the finding reached by the High Court that there was no

strict or literal compliance of r.8, the election petition must be

dismissed. Even if the rule

of substantial compliance applies, it is

clear on evidence that there has been no compliance at all much less

any substantial compliance. There is intrinsic evidence to show that C

there has been tampering with the documents. We are afraid, the

contention that there

was no compliance of sub-s. (I) of s.117 of

the

Act cannot prevail in the light of the well settled principles.

The submissions advanced

by learned counsel for the appellant

cannot

be accepted as they proceed on the assumption that no

distinction can

be drawn between the requirement as to the making of

a deposit in the High Court under sub-s. (1) of s.117 and the manner

of making such deposit. There was considerable emphasis laid by ·E

learned counsel that sub-s. ( 1) of s.117 cannot be dissected into two

parts, one part being treated as manddtory and the other as directory.

The contention

is wholly misconceived and indeed runs counter to

several decisions of this Court.

It is always important to bear the

distinction between the mandatory and directory provisions of a

statute. Sub-s. (I) ofs.117 is in two parts. The first part of sub-s. F

(I) of s.117 provides that at the time of presenting an

election petition, the petitioner shall deposit in the High·Court a

sum of Rs. 2000/-as security for the costs of the petition,' and the

second

is that such deposit shall be made in the

High Gourt in

accordance with the rules of the High Court. · The requirement G

regarding the making of a security deposit of Rs. 2000/-in the High

Court

is mandatory, the non-compliance of which must entail

dismissal

in limine of the election petition under sub-s. (I) of s.86 of

the Act. But the requirement

of its deposit in the High Court in

accordance with the rules of the High Court is clearly directory.

·ff

As Maxwell on the Interpretation of Statutes, 12th edn. at p.314

puts it : "An absolute enactment must be obeyed or fulfilled exactly,

12ut it is sufficient if a directory enactment be obe~ed or fulfilled

646 SUPREME ·couRT REPORTS [1983J 2 S.C.R.

A substantially." The rule of construction is well settled and we need

not burden the judgment with many citations. '< _.,,.

It is well established that an enactment in form mandatory

might in substance

be directory and the use of the word

"shall" does

not conclude the matter. The general rule of interpretatfon is well-

B known and it is but an aid for ascertaining the true intention of the

Legislature which

is the determining factor, and. that must ultimately

depend

on the context.

Tlle following passage from Crawford on

'Statutory Construction'

at p.516 brings out the rule:

c

D

E

F

G

H

"The question as to whether a statute is mandatory

or directory depends upon the intent

of the legislature and

not upon the language in which the intent

is clothed.

The meaning and intention

of the legislature must govern,

and these are to be ascertained, not only from the

phraseology

of the provision, but also by considering its

nature, its design, and the consequences which would

follow from construing it the one way or the

other."

This passage was quoted with approval by the Court in State

of U.P. v. Manbodhan Lal Srivastava,(') The State of Uttar Pradesh

& Ors. v. Babu Ram Upadhya(') and Raza Buland Sugar Co. Ltd. v.

Municipal Board, Rampur.(') The Court in ft:'anbodhan Lat's case,

(supra)

where Art.

320 (3) (c) of the Constitution was held to be

directory and not mandatory, relied upon the following observations

of the Privy Council in Montreal Street Railway Company v.

Normandih(

1

) :

"The question whether prov1s10ns in a statute are

directory

or imperative has very frequently arisen in

this

country, but it has been said that no general rule can be

laid down, and that in every case the object

of the statute

must be looked at. The cases on the subject

will be found

collected

in Maxwell on

Statutes, 5th ed., p.596 and

following pages. When the provisions

of a statute relate

to the performance of a public duty. and the case is such

(1) {1958]

SCR 533

(2) [1961] 2 SCR 679

(3) [1965] 1 SCR 970

(4) LR {191(] AC 17Q

,·~

'M. KARVNANIDHI v. u:v. HANDB (Sen, J.) 647

that to hold null and void acts done in neglect of this

duty would work. serious general inconvenience, or

injustice to persons

who have no control over those

entrusted with the duty, and at the

same time·would not

promote the main object

of the Legislature, it has been

the practice to hold such provisions

to be directory only,

tlie neglect of them, though punishable, not affecting the

validity

of the acts

done."

.A

B

In Manbodhun La/'s case, {supra) the contention was that the

reduction in rank after departmental inquiry was invalid for non­

compliance with the requirements of Art. 320 (3) (c) of the Constitu• C

tion which read literally made it obligatory for the Gov~rnment of

India or· a Government of a State to consult the Union Public

Service Commission or the State Public Service Commission in all

disCiplinary matters affecting a person in service of the State. In

turning down the contention it was observed by this Court :

"The use of the word ·"shall" in a statute, though

generally taken in a mandatory sense,

does not necessarily

mean that in every case it shall have that

effect, that is to

·

say, that unless the words of the statute are punctiliously

followed, the proceeding, or the outcome

of the

proceed­

ing, would be invalid."

Following the principle laid down by the Privy Council in

Montreal Street Railway Company's case, (supra) the Court held that

D

E

Art. 320 (3) {c) itself contemplates three grounds, and the word

"shall" appeared in almost every paragraph and every clause or sub- F

clause of that Article. If it were held that the provisions of Art,

320 (3) {c) were mandatory in terms, the other clauses or sub-claui.es

.of that Article would have to be equally held to be mandatory. If they

were

so held, any appointments made to the public services without

observing strictly the terms of these sub-clauses

in cl. (3) of Art

.. 320 (;

would adversely affect the person .so appointed to a public service,

without any fault on his part and without his having any say in the

matter and this could not have been contemplated

by the makers of

the

Constitution. The Court held that if the Article were construed

as mandatory, it would cause serious general inconvenience alld

H

injustice to persons who had no control over .those entrusted with the

duty. As the

Privy Council itself pointed out, the question whether

provisions in a statute are \iirectory or mandatory cannot . be decided

A

B

c

D

E

643 SUPREME COURT llllllORTS (1983) 2 s.c.R

by laying down a general rule and in every case the object of the

statute must be looked at.

In Raza Buland Sugar Co. Ltd.'s case, (supra) the question for

consideration

was whether the whole of

sub·S.(3) of s 131 of the

U.P. Municipalities Act,

1916 was mandatory, or the

pa.i:t of it

requiring publication in the manner laid down in sub·s.(3) of s.94

was merely directory. Per majority, the Court held that sub·s (3)

of s. 131 could be divided into two parts-the first one providing

that the proposal and draft rules for a tax intended to he imposed

should be published for the objections of the public, if any, and the

second laying down that the publication must be in the manner laid

down in Sl!b·s. (3) of s. 94. Considering the object of the provisions

for publication, namely, to enable'the public to place its view point,

the Court found it necessary to hold that the first part of the section

was mandatory, for to hold otherwise would be to render the whole

procedure prescribed for the imposition of tax nugatory. The second

part of the section was however held to be merely directory. In that

case, there

was no regularly published local Hindi newspaper but the

publication was made

in Hindi in a local paper which on the evidence

seemed to have good circulation in Rampur. There was, in the

circumstances, substantial compliance with the provisions of sub·s.(3)

of s. 94 of that Act.

There was quite some discussion at the Bar

as to the legality

and propriety of the procedure adopted in the Madras High Court

as to the making

of a security deposit under

sub·s. (!) of s.117 of

F the Act. The objection is to the manner of such deposit being made

on the strength

of pre-receipted challan prepared by the Accounts

Department on the basis of the lodgment schedule into the Reserve Bank of India to the credit of the Registrar, High Court, Madras.

It was submitted that this was in complete violation of r.8 of the

G Election Petitions Rules. It is said that r. 8 must be read as forming

part of sub-s.(l) of

s.

117 and the only manner prescribed is by

making deposit in cash with the Registrar and obtain his receipt

therefor. It

was urged that it is paradoxical to say that deposit of

money into the Reserve

Bank to the credit of the Registrar, ·High

H Court, Madras is a sufficient compliance of sub·s.(I) of s.117 when

r. 8 provides that the money should be deposited in the High Coul't

in cash, and that

is the only mode prescribed under sub-s.(1) of

s. 117. We are afraid, we are unable to accept this line of

argument.

-

M. KARUNANIPHI v. H.V. HANPE (Sen.-J.) 649

A literal and mechanical interpretation of r.8 would lead to manifest

absurdity as it would imply that in every case the election petitioner A

shall have to pay to the Registrar a sum of Rs. 2,000 in cash towards

security for costs as required

by sub-s.(1) of s.117 of the Act

and

obtain a receipt from him therefor. Rule 8 is silent as to now the Cillih

is to be .handled. It cannot ordinarily be expected that the

Registrar

of a

Higli Court would accept the amount of security . B

deposit in cash. · The procedure adopted by II Assistant Registrar

in directiug that the money

be deposited to the credit of the

Registrar

of the High

Court in the Reserve Bank of India was in

conforl)lity with the requirements of r.8 of the Election Petitions

!lutes. Inasmuch

as r. 8 does not lay down the procedure regulating

the manner of deposit

of cash, the matter falls to be governed by C

r.2 of Order 31 of the Madras High Court (Original

Side)· Rules,

1956 by reason of r. 12 of th.e Election Petitions lilules. Although

Order

31, r. 2 does not in terms apply

becaUJie Order 31 relates to

"Payment into court of moneys to the credit of civil ~ourt deposits

and account of suitor's money", and though no lodgment i;cbedule D

can be prepared under r.2 except in pursua,nce of a decree or order

passed

by the High Court i.e. in relation to some proceeding pending,

or

disposed of, by the High Court, still by virtue of r .. 12 of the

Election Petitions Rules that is the procedure to be adopted for

deposit

of Rs.

2000 in the High Court in cash i.e. by crediting the

amount on the strength

of a pre-receipted cha,Ilan prepared by the E

Accounts Department on the basis of a lodgment

schedule, That was

th~ only procedure applicable and there was nothing wrong in the

procedure adopted

in making the deposit. When the amount was

so deposited with a pre-receipted challan issued. by the

Accouµts

Department to the credit of the Regis'.rar of the High Court and F

the Reserve Bank

of India made the endorse)llent

"Received in

Cash'', it must

be regarded

that the payment was made in the Sigh

Court and the pre-receipted challan bearing the endorsement of the

Reserve Bank of India must

be treated as the receipt of the

Registrar in

krms of r. 8, the Reserve Bank acting as an agent of

the High Court. We are informed that the .same practice and proce· G ·

dure has been followed during the relevant period in all the election

petitions filed

in the Madras High Court and there was no separate

receipt

of the Registrar

except· in one case where the .election

petition

was not tried. We need not dilate on the point. any

f?11her.

It must accordingly be held that there was due compliance with the H

requirements of sub·s.(J) of s. 117 of the Act read with r, 8 of the

l!\ection l'etitions

R~le$,

B

c

D

650 SUPREME COURT REPORTS (1983) 2 S.C.R,

The matter is no longer res integra. The submission runs .

counter to· the decision of this Court in the well-known case of

· K. Kamaraja Nadar v. Kunju Thevar & Ors.(I) That was a case

under the old

s. 117 of the Act as it stood prior to its amendment

by Act 47 of 1966. It read:

'

"The petitioner shall enclose with the petition a

· Government Treasury receipt showing that a deposit of

one thousand rupees had been made either in a Govern­

ment Treasury or in the Reserve Bank of India in favour

of the Secretary to.the Election Commission

as security .

for the costs

of the

petition."

In that case, the petitioner enclosed a Government Treasury

receipt showing a deposit

of

Rs.1000 as security for costs in the

State Bank of India, Ranchi Branch, but it did uot show that the

deposit had been made in favour

of the

Secretary to the Election

Commission. A question arose whether the election petition

was liable to be dismissed summarily under s.85 or sub-s.(3) of s.90

as the requirements of s. 117 .of the Act had not been complied with.

The Court analyzed s. 117 and observed that it consisted of three

parts,

viz :

(I) The Government Treasury receipt must show that

E such deposit had actually been made in a Government Treasury or

in the Reserve Bank

of India. (2) It must show that it had been

made in favour of the

Secretary to the Election Commission. And. (3)

it must further show that it h11d been made as security for the costs

of the petition. The question then arose whether the words "in favour

F of the Secretary to the Election Commission" were mandatory in

character

so that if the deposit had not been made in favour of the Secretary to the Election Commission as therein specified, the deposit

even though made in a Government Treasury or in the Reserve Bank

of India and as security for costs of the petition, would be invalid and

G

of no avail. This Court held that these words in s. 117 were directory

and not mandatory in their character and that the

essence of the

provision contained in

s. 117 was that the petitioner should furnish

security for the costs

of the petition and should enclose along with

the petition a Government Treasury receipt showing that a deposit

· of Rs. 1000/· had been made by him either in a Government

H Trei'sury or in the Reserv.e Bank of India to be at the disposal of the

(I) [1959] SCR 583,

;

•

,.

M. KARUNANIDHI v. 11.V. HANDE (Sen, J.) 651

Election Commission to be utilized by it in the manner authorized

by law and was under its control and payable on a proper application A

being made in that behalf to the Election Commission or to any

person duly authorized

by it to receive the same, be he the Secretary

to the Election Commission or any one

else. If this essential

require·

ment was complied with, no literal compliance was at all necessary

with the words "in favour of the Secretary to the Election Commis·

sioh". Though therefore the making of the deposit and the presenta· B

ti on of the receipt thereof along with the petition was held to be

mandatory, this Court held that the form in which the deposit should

be made was only directory. This Court rejected the contention· that

the election petition was liable to

be dismissed in limine under s. 85

or sub-s.(3) of s.

90 for non-compliance with the requirements of C

s. 117 of the Act and observed :

"It would be absurd to imagine that a deposit made

either in a Government Treasury or in the Reserve Bank

of India in favour of the Election Commission itself would D

not be sufficient compliance with the provisions of s. 117

and would involve a dismissal of the petition under s. 85

or s. 90(3). The above illustration is sufficient to demons·

trate that the words "in favour of the Secretary to the

Elec1ion Commission" used in s.117 are directory and

not mandatory in their·character. What

is of the. essence

of the provision contained in s. 117 is that the petitioner

should furnish security for the costs

of the petition, and

should enclose along with the petition a Government

Treasury receipt showing that a deposit of one thousand

rupees has been made

by him either in a Government

Treasury or in the Reserve Bank

of India, is at the

disposal

of the Election Commission to be utilised by it

in the manner authorised

by law and is under

it~ control

and payable on a proper 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."

The same question was dealt with in Chandrika Prasad Tripathi

v. Siv Prasad Chanpuria & Ors.(') In that case, security deposit of

E

F

G

Rs. 1000/-had been made, but not, in terms, in the name of the Secretary H

~ (I) (1959] 2 fuppl. S,C.R. 527.

•

..

652 SUPREME COURT REPORTS [1983) 2 s.c.R.

to the Election Commisiion ; instead, the deposit was-made "refund-

A . able by order of the Election Commission oflndia, New Deihl". The

Court held that the objection based

on the peculiar wording of the

deposit

was purely technical. To the same effect are the decisions of

~--<

this Court in Om Prabh_a Jain v. Gian Chand & Anr.(

1

)

and Budhi

Nath Jha v. Manila/ Jadav.(') The Court in all these

casei followed

B the decision in Kamaraja Nadar's case, (supra) thats. 117 of the Act

should not be strictly or technically construed and that subs'antial

compliance with its requirements should

be treated as sufficient.

c

D

E

F

G

In contrast, the decisions in Charan Lal Sahu v. Nandkishore

Bhatt

& Ors.(

1

) and Aeltemesh Rein v. Chandula/ Chandrakar cl Ors.(')

were cases where the petitioners made no security deposit before

filing their election petitions. In Charan Lal Sahu's case, supra, the

petitioner applied to the High Court for being absolved

from making

any security deposit or to reduce the amount required to

be deposited

under the Act.

ThiG Court referred to Art. 329 (b} of the Constitu­

tion and held that the petitioner had no right to file an election

' petition except in the manner provided by the Act. There being no

provision to absolve the petitioner from payment

of security for

1

costs, this Court held that the Madhya Pradesh High Court was right

in rejecting the election petition under sub's. (1) o( s.86 of the Act.

In Aeltemes~ Rein's case, supra, it was stated in the petition that a

security amount

of Rs.

2000 was being deposited, but in fact no

deposit

was made. The Madhya Pradesh High Court dismissed

the

election petition. On appeal, the petitioner contended that sub-s.

(I) of s.117 of the Act was _ultra vires Art. 329 (b} of the ·constitution

and therefore the High Court was in error in dismissing the election

petition

on the ground of non-compliance of the provisions of sub-s. (I} of s.117. This Court repelled the contention and expressed the

view that the words "in such manner" in Art. 329 (b). could not be

limited in their operation to procedural requirements. The Court

held:

· "The provision of law which prescribes that an election

petition shall

be accompanied by the payment of security

amount pertains to the area covered

by the m,anner of the

H (I) (1959] 2

Suppl S.C.R, 516.

(2) 22 ELR 86.

•

(3) [1974] l SCR 294,

(4) [1981] 3 SCR 142 •

'

I.I. ICARUNANiDHI JI. H.Y. HANDE (S~n, J.) 653

making of the election petition and is therefore within the

authority

of

Parliament."

Adverting to the dismissal of the election petition by the

High Court,

this Court held that the High Court had no option but •

to dismiss the petition as it was not accQmpanied by payment of the

A

security deposit for sub·s. (!) of s.86 of the Act clearly prC1vides that B.

the High Court shall dismiss an election petition which did not

comply with the "provisions of s.81, or 82 or 117 of the Act.

.,

The remaining part of the case is ·not free from difficulty.

There are two questions that arise, namely :

(!) ,Whether the

photo· C

graph referred to in paragraph 18(b) was a schedule or annexure

within the meaning of sub-s. (2) of s.83 and therefore formed an

integral part

of the election petition and thus the failure to furnish

the appellant with a

copy of the photograph along with a copy of

the election petition amounted to a non-compliance of

sub·s. (3) of

s. 81. (2) Whether the High Court was right in relying upon the D

decision of this Court in Sahodrabai Rai v. Ram Singh Aharwar(') in

holding that the photograph

was merely a document filed along with

the election petition

as a piece of evidence in proof of the allegation

contained in paragraph

18(b) and therefore there was no need for the

respondent to supply the appellant with a copy

of the photograph.

To bring out the points

in controversy, the averments in

paragraph

18(b) may be set out ;

"18. The Petitioner submits that the first Respondent

is guilty of the corrupt practice under Section 123(6) of

the Act by incurring and authorising expenditure in excess

of the limit of Rs. 35,000/· fixed under Section 77 of the

Act.

The first

Respondent has submitted a statement of

election expenses disclosing a total of Rs. 10,125.75 only.

A true photostat copy of the Return

filed by him is filed

herewith as

Annexure·V. He has, however, failed to

disclose the following amount incurred by him in connec­

tion with the election, between the date of his nomination

and the date

of the declaration of the result thereof

..

(b) The first Respondent erected fancy banners

throughout the constituency and the number of such

(I) [1968] 3 SCR 13 .

•

E

F

1G

H

654

A

B

SUPREME COURT REPORTS (1983 2 S.C.R.

banners is about 50. A photograph of one such banner

is filed herewith. The cost of each such banner will be

not less than Rs. 1000. The expenditure involved in

erecting these fifty baaners is about Rs. 50,000. It is

submit.ted that the first Respondent has incurred the above

said expenditure which ·added to the amount disclosed in

the Return of Election Expenses

exceeds the amount

fixed under Section 77 (3) of the Act thus amounting to

a corrupt practice under Section

123(6) of the

Act."

Admittedly, a copy of the photograph was not furnished to the

C appellant along with a copy of the election petition, The averment

contained in paragraph

18(b) would be incomplete without a copy of

the photograph being supplied with a

copy of the election petition.

The averment therein.

is that the appellant committed a corrupt

practice under sub-s.(

6) of s.123 of the Act by incurring or authorising

D expenditure in contravention of s.77. It is alleged that the appellant

had set up fancy banners througouht the constituency and the number

of such banners was about 50, the cost of each such banner being not

less than Rs.

1000 and therefore the expenditure involved in erecting

these 50 banners was not less than Rs. 50,000/-. but that the

appellant had not disclosed the amount in the return

of the election

E expenses and thus committed a corrupt practice under sub-s.(6) of

s.123 of the Act.

It is not possible to conceive of the dimension of the large

fancy banner unless one has a look at the photograph. The photo-

F graph filed with the election petition gives a visual description of the

fancy banner, the cost of which at a mere look

would show that the

expenditure in setting up each such banner would be

Rs.

1000 or

more. The photograph depicts

two election banners.

One of them

is a huge fancy banner or a hoarding on the left side of the road and

•

G the other on the right is a smaller election banner. The fancy

banner depicts two groups, and the appellant is present in both. On

the left hand top there is a large picture of the appellant with the

late Sd Annadurai and at the right hand below there is a smaller

picture

of the appellant with

Smt. Indira Gandhi. The fan~y banner

H shown in tb.e photograph contains an election slogan in Tamil

appealing to the electorate to vote for the appellant. This has been

translated for

us into English and it reads :

•

•

•)

M. kARUNANiDHi v. H.V. HANDE (Sen, J.)

The Electorate in Anna Nagar Constituency

I request you to mark on the Rising Sun and ensure

success

to enable service to you.

Always your affectionate,

Polling Date

31.5.80"

Kalaignar M. Karunanidhi

•

655

It is true that paragraph 18(b) must be read in conjunction with

the opening part

of paragraph 18. Though the words

"in connection

with" do not appear in paragraph I 8(b), these words are there in

paragraph

18 and therefore it must be taken that the fancy banners were set up in connection with the election. Nevertheless, without

being furnished with a copy

of the photograph, the averments in

paragraph

18(b)

would be incomplete as regards the allegation of the

corrupt practice committed

by the appellant.

We are driven to this conclusion by

the mandatory requirement

of sub·s. (3) of s. 81 of the Act which is in two parts. The first part of

sub-s. (3) of s.81 provides that every election petition shall be accum­

panied by as many copies thereof as there are respondents mentioned

in the petition, and the second part relates to the manner in which such

copy shall be attested

by the petitioner under his own signature to be

a true copy of the petition. It has already been stated that mandatory

provisions must

be fulfilled exactly whereas it is sufficient if directory

provisions are substantially fulfilled.

In Ch. Subbarao v. Member,

Election Tribunal, Hyderabad,(

1

)

this Court held that (1) if there is a

total and complete non-compliance

of the provisions of sub-s.(3) of

s.81 the election petition might not be

"an election petition presented

in accordance with the provisions

of this

Part" within the meaning of

s.80 of the Act, and (2) by the expression "copy" in sub-s. (3) of

s.81, it was meant not an exact copy but only one so true that

nobody can possibly misunderstand it being not the same as the

original.

In Ch. Subbarao's case, supra, there was no attestation at

the foot of the copies that they were true copies. It was

held that

the absence in the copy

of a note to the effect that it was a 'true copy'

(1) [1964] 6

SCR 213.

A

B

c

D

E

F .

G

H

~-,

A

656 SUPREME COURT REPORTS il9S3i 2 s.c.R..

could not detract the copy from being a true copy. The facts and

circumstances

of the case therefore showed that there had been a

substantial complianee with the

requirements of sub-s. (3) of s.81 of

the Act. The wider question whether sub-s. (3) of s. 81 or a part

thereof

is mandatory or directory was left open.

On the facts of

that case the Court held that if there was substantial compliance with

the requirements

of sub-s. (3) of s.81, the election petition could not

be dismissed.

It was submitted on behalf of the appellant that there was

total

and complete non-compliance of the requirements of sub-s. (3) of

C s. 81 and therefore the election petition was liable to be dismissed

in limine under sub-s. (I) of s.86. The argument to the contrary

advanced

on behalf of the respondent was that the photograph filed

along with .the election petition had to be treated as a document in

proof

of the allegations contained in paragraph l 8(b) and not as a

part

of the election petition.

1

The submission is that there

is a

D distinction "between a schedule or annexure to the petition referred

to in sub-s.

(2) of s.

83" and "a document which is merely evidence

in the case which

is annexed to the election

petition" and to such a

document sub-s.

(3) of s.81 is not attracted.

F

The preliminary . issue and the appeal turn on a short point of

construction. The question that arises is whether the words

"copies

thereof" in sub-s. (31 of s.81 comprehend the election petition proper

or do they also include a schedule or annexure annexed thereto. The

controversy whether the photograph

was a schedule or annexure in

terms

of sub-s. (2) of s.83 or

m·erely a document only in proof of the

!illc!!Rtions in paragraph 18(b) must turn on a construction of sub-s.

(3} of s.81 read with sub-s. (2) of s.83. It now appears to be well

settled by Sahodrabai's case (supra) that sub-s. (2) of s.83 applies only

to a schedule or annexure

which is an integral part of the election

petition and not to a document which

is produced as evidence of the

·

election petition. In dealing with sub-s. (2) of s.83 of the Act it was

observed: ·

"We are quite clear that sub-s. (2) of s.83 has

reference not to a document which

is produced as

evidence of the averments of the election petition but to

averments

of the election petition which are put, not in

the election petition but in the accompaying schedules or

annexures.

We can give quite a number of examples

(•

..

,

•

,

.·~

M. ltAl\IJNANJDHI v. H.V. HANDE (Sen, J.) 657

from which it would be apparent that many of tht aver·

ments of the election petition are capable of being put as

schedules or annexures. For example, the details

of the

corrupt practice there in the former days used

to be set

out separately in the schedules and which may, in some

cases, be so done even after the amendment of the present

law. Similarly, details

of the averments too compendious

for being included in the election petition

may be set out

in the schedules or annexures

to the election petition.

The

Jaw then requires that even though they are outside

the election petition, they must be signed and verified, but

such annexures or schedules are then treated as integrated

with the election petition and copies of them must be

served on the respondent if the requirement regarding

service of the election petition is to be wholly complied

with. But what we have said here does not apply to

documents which are

merely evidence in the case but

which for reasons of clarity and to lend force to

the

petition are not kept back but produced or filed with the

election petitions. They are in

no sense an integral part

of the averments of the petition but are only evidence

of

those averments and in proof thereof. The pamphlet

therefore must

be treated as a document and not as a part

of the election petition in

so far as averments are

concerned."

The High Court rests its conclusion on the decision of this

Court in

Sahodrabai's case, supra, but that decision, in our opinion,

•

A

B

c

D

E

is inapplicable to the facts and circumstances of the present case. In F

Sahodrabai's case (supra) an election petition was filled together with

a pamphlet

as annexure thereto. A translation in English of the

pamphlet

was incorporated in the body of the election petition and

it

was stated that it formed part of the petition. A preliminary

objection

was raised

t!iat a copy of the pamphlet had not been

annexed to the copy of the ·petition served on the returned candidate G

and therefore the election petition was liable to be dismissed under

sub-s.(I)

of s.86 of the Act. The Madhya Pradesh High Court

sustained the preliminary objection and dismissed

th

0

election

petition. ·011 appeal, this Court held that the words used in sub·s.

(I) of s. 81 are only "the election petition" and there was no mention H

of documents accompanying the election petition. Since the elcction

petitioh itself reproduced .the

whole of the pamphlet in translation

•

A

B

c

D

658 SUPREME COIJRT REPORTS (1983) i S.C.R.

in English, it could not be said that the averments with regard to the

pamphlet

were themselves a part of the petition and therefore the

pamphlet had in fact been served on the returned candidate although

in a translation and not in the original. The Court then stated that

even

if it were not

so, sub-s. (2) of s. 83 of the Act has reference not

to a document which

is produced as evidence of the averments of .the

election petition but to averments

of the election petition which are

put, not in the election petition, but in the accompanying

schedules

or annexures.

It was observed that the details of averments may be too

compendious for being included in the petition and may

be set out

in the schedule or annexure to the election petition. The Court then

gave examples on which it would

be apparent that many of the

averments

of the election petition are capable of being put as

schedu­

les or annexures .. It then went on to say that such annexures or

schedules are treated

as integrated with the election petition and copies

of them must be served on

the· returned candidate if the requirement

regarding

service of the election petition is to be wholly

complied

with. But that this rule was not applicable to documents which are

merely an evidence

in the case but which, for reasons of clarity and ·to lend force to a petition, are not kept back but are produced or

filed with the election petition. The Court added :

"They are in no sense an integral part of the

averments of the petition but are only evidence of those

averments and in proof thereof."

In that view of the matter the Court held that the pamphlet

F in question had to be treated as a document and not as a part of

the election petition so far as the averments were concerned.

G

H

It said :

"It would be stretching the words of sub-s. (21 of s.83

too far to think that every document produced as

evidence in the election petition becomes a part of the

election petition proper.

In

this particular case we do not

think that the pamphlet could

be

sci treated."

It follows as a necessary corollary that if the pamphlet had

not been incorporated

in the body of the electfon petition, the

decision

of the Court in Sahodrabai's case, supra, would have been

otherwise. That precisely

is the case here.

•

•

M. kARUNANIDHI v. H.V. IiANDB (Sen, J.) 659

In this connection, we may next refer to the decisions of this

Court

in Jagat

Kis?wre Prasad Narayan Singh v. Raj Kumar Poddtir A

& Ors. (')and Satya Narain v. Dhuja Ram & Ors. (') In Jagat

Kishose Prasrd Naryan Sitlgh'!i case, supra, there were serious

discrepancies between the original eiection petition

filed in the Court

and

th~ copies supplied to the contesting candidates. This Court

dismissed the election petition on the ground

of non-compliance of B

sub-s. (3) of s.81 as the copies furnished to the contesting

respon­

dents were not true copies and there was divergence between the

allegations made ft! the petition and the allegations made in the

copies, and that such divergence was bound to mislead the contesting

candidates and prejudice their defence, particularly

in a case where

the returned candidate

is charged with corrupt practice. That is C

because he must know the nature of the charge against him, so that

he may prepare his

defence. It was observed :

"The law requires that

a true

copy of an election petitioil should be served on the

respon·

dents. That requirement has not been either fully or substantially

complied with."

The next case

in point is

Satya Narain v. Dhuja Ram & Ors.

(supra) where the election petition was not accompanied by the

requisite number of spare copies for

service on the respondent and

D

no schedules were filed along with the petition. When the petition

'came up

for scrutiny, the Deputy Registrar of the High Court asked E

the election petitioner to remove the defects. Before the date refixed

the spare copies

were filed and the defect removed. The question

before the Court was whether the petition

was liable to be dismissed

in /imine under sub-s. (1) of s.86 of the Act for non-compliance of

sub·s. (3) of s.81. The imporancc of the decision in Satya Narain's

case (supra) lies in tlfe fact that the Court laid down that the first F

·part of sub-s. (3) of s.81 which required that the election petition

should be accompanied by as many copies thereof as there were

respondents mentioned in ~he petition, was mandatory in character

and non-compliance with it was fatal to the petition in view of sub-s.

()of s.86. G

The decision in Kama/am v. Dr. V.A. Syed Mohamad(

8

)

may

also

be referred. What had happened in that case was this. The

signature of the election petitioner

by way of authentication appeared

(1) [1971]1 SCR 821.

(2) [1974] 3

SCR 20.

(3) [1978] 3 SCR 446.

H

A

B

c

D

E

F

G

H

660 SUPREME COURT REPORTS (1983) 2 S.C.R,

at· the foot of the copy of the affidavit but there was no such

signature separately appended

at the foot of the copy of the election

petition. There

was a preliminary objection raised that since the copy

of the election petition had not been

attested by the petitioner under

her own signature to

be a true copy, there was no compliance with sub•s.(3) of s.81 of the Act and hence the petition was liable to be

dismissed in limine under sub-s. (I) of s. 86 of the Act. In repelling

the contention, the Court observed that the second part

of suh-s. (3) of s.81 had been complied with upon the view that the copy of

the petition and the affidavit filed along with it ~s required by law

constituted one single document and the signature in original of the

petitioner in proof of the affidavit satisfied the requirements

of sub-s.

(3) of

s. 81 of the Act. In explaining as to what constitutes an election

petition

for purposes of sub-s. (3) of s.81, it was observed:

"Now, the first question which arises is as to what

constitute an election petition for the purpose

of

section 81, sub-section (3). Is it confined only to election

petition

proper or does it also include a schedule or

annexure contemplated in sub-section (2) of section 83 or

a supporting affidavit referred to in the proviso to section

83, sub-section (I)? To answer this question, we must turn

to section

83 which deals with contents of an election

petition. Sub-section (I)

of that section sets out what an

election petition shall contain and provides that it shall

be signed by the petitioner and verified

in the manner

laid down in the Code

of Civil Procedure,

1908 for the

verification of pleadings. The proviso requires that where

the petitioner alleges any corrupt practice, prescribed

form in support

of the allegation of such corrupt practice

the election petition shall also he accompanied

by an

affidavit in the and

the particulars thereof. The context

in which the proviso occurs clearly suggests that the

affidavit

is intended to be regarded as part of the election

petition. Otherwise, it need not have been introduced

in·

a section dealing with contents of an election petition

nor figured

as a proviso to a sub-section which lays down

what shall

be the contents of an election petition.

Sub­

section (2) also by analogy supports this inference. It

provides that any schedule or annexure to an election

petition shall

be signed by the petitioner and verified in

the same manner as an election petition. It

is now

establi­

shed by the decision of this Court in Sahodrabai Rai v.

I

M. ll:ARUNANIDHI v •. H.v. HANDB (Sen, I.) 661

Ram Singh Aharwar that sub·section (2) applies only to a

schedvle or annexure which is an integral part of the

election peittion

and not to a schedule or annexure which

is

merely evidence in the case but which is annexed to the

election petition merely for the sake

of

addin11 strength

to it."

A

The test to be applied in determinin11 whether the photograph B

'referred to in paragraph 18(b) is an integral part of the election

petition

or was merely a piece of evidence in proof of the allegations

contained therein, depends on whether it is a part

of the pleadings.

Upon the view that the photo11raph was not merely a document

accompanying the election petition but was a part and parcel of the C

pleading contained in paragraph 18(b), it is unnecessary for us to

deal with the submission based on order VII, r.14 of the Code of

·Civil Procedure, 1908. Our attention was drawn to the passage in

Sahodrabai's case, supra, at p.18 of the Report. The Court observed

that under order VII, r.14 where a plaintiff sues upon a document in

his possession or power, h• is required to file only one copy of th• D

document and not as many copies as there are defendants and there·

fore a copy of the document is not expected to be deliberate with the

copy

of the plaint to the

answering defendants when summons is

served on 'them and that it would

be too strict a reading of

the

provisions of sub·s. (3) of s.81 and sub·s. (2) of s.83 to lay down that I:

the election law provides anything different. These observations

cannot, in our opinion, oe read out of context. The decision in

Sahodrabai's case, supra, was that since the election petition itself

reproduced the whole

of the pamphlet in a translation in English,

the

pamphlet. filed along with the petition had to be treated as a docu­

ment and not as a part of the election petition and that being so, the E

Court observed that it would be stretching the words of sub·s. (3) of

s.81 and sub·s. (2) of s.83 too far to think that every document

produced as evidence in the election petition becomes a part of the

election petition proper.

G

We would add for the sake of completeness that we have been

referred

to the decision of this Court in

Sharif-ud·din v. Abdul Gani

Lone (') but that decision is not directly in point. One of us

(Venkataramiah, J.} had occasion to deal with the corresponding

sub-s. (3)

of s.89 of the Jammu & Kashmir Representation of the H

people Act, 1957 which reads :

\I) [1980) I SCR 1177,

662

A

SUPREME COURT REPORTS I 1983] 2 S.C.R.

"Every election petition ·should be accompanied by as

many copies thereof as there are respondents mentioned

in the the petition and

every such copy shall be attested

by

the petitioner under his own signature to be true copy

of the petition."

B In that case, both the copies of the election petition contained

the endorsement "Attested true copy, Piyare Lal Handoo, Advocate".

The question arose whether there

was a sufficient compliance

with

the provisions ofsub-s. (3) ofs.89 of that Act. The Court pointed

out that sub-s.

(3) of s.89 consists of two

part&. The first part ")I

requires that every election petition shall be accompanied by as

C many copies thereof as there are respondents mentioned in the -~

petition and the second part requires that every such copy shall be

a !tested by the petitioner under his own signature to be a true copy

of the petition. The first part of the section has been held to be a

mandatory requirement

by this Court in

Satya Narain's case (supra)

D The Court held the second part also to be mandatory and observed :

E

F

G

"It is true that sub-s.(3) of s.89 of the Act was

purely procfdural 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 ;n character insists that

an act must

be done in a particular manner and further

provides that certain consequences should

follow if the

act

is not done in that manner, the Courts. have no option

but to enforce the law

as it

is."

Upon that view it was held that the attestation of the copies

by counsel for the election petitioner as true copies . was not a

sufficient compliance with the provisions

of sub-s. (3) of s.89 of that

Act

as it required attestation by the election petitioner himself. The

decision

is an application of the rule that mandatory

pr-0visions must

be fulfilled exactly.

It is obvious that photograph was a part of the averment

contained in paragraph

18 (b). In the absence of the photograph the

averment contained in paragraph

18 (b) would be incomplete. The

H photograph referred to in paragrape 18 (b) was therefore an integral

.

part of the election petition. It follows that there was total non­

compliance with the requirements of sub-s. (3 of s.81 of the Act by

failure to

serve the appellant with a copy of the election petition.

II

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M. KAR~NANIDHI v. H.V. HANDB (Sen, J.) .663

Ch. Subbarao' s case, supra, the Court held that if there is a total and

complete non-compliance with the provisions

of sub-s. (3) of s.81, A

the election petition could not be treated an

"election petition

presented

in accordance with the provisions of this

Part" within the

meaning

of s. 80 of the Act. Merely alleging that the appellant had

put up fancy banners would be

of no avail unless there was a

description

of the banner itself together with the slogan.

B

The conclusion is irresistible that the words

"copies thereof" in

sub-s.(3)

of s.81 read in the context

·of sub-s.(2) of s.83 must

nechessarily refer not only to the election petition proper but also to

schedules or annexures thereto containing particulars

of any corrupt C

practice alleged therein. That being so, we are

constrajned to reverse

the judgment of the High Court insofar

as it holds that the

photo­

graph of the fancy banner adverted to in paragraph 18 (b) could not

be treated to be an integral part of the election petition but was

merely a piece of evidence as to the nature and type of fancy banner

erected

by the appellant and therefore failare to supply a copy of the D

phtograph to the appellant did not amount to a violation of the

provisions of sub-s. (3) of

s.81 of

\he Act.

For these reasons, all the appeals and special

leave petitions

except

Civil Appeal No. 38 (NCEJ of 1981 must fail and are E

dismissed. Civil Appeal No.38(NCE) of 1981 partly succeeds' and is

allowed. The judgment of the High Court holding that the amount

of

Rs.

2000 having been deposited to the credit of the Registrar,

High Court in the Reserve Bank of India on the strength of pre•

receipted challans issued by the Accounts Department on the basis

of a lodegment schedule,· there was substantial compliance of the E

requirements ol sub·s. (1) of s.117 of the Act, is upheld. But the

judgment

of the High Court is set aside

imofar as it holds that the

failure to supply a copy

of the photograph of the fancy banner

referred to in paragraph

18 (b) along with a copy of the election

petition to the appellant did not amount to a breach of the provisions

G

contained in

sub·s. (3) of s.81 of the Act. and instead we hold that

the failure to do

so amounted to non-compliance of sub-s. (3) of s.81

inasmuch as the photograph of the fancy banner was an integral

part of the election petition and therefore the election petition must

be dismissed summarily under sub-s. (1) of s.86 of the Representation H

of the People Act, 1951. We further direct that the High Court shall

permit the appellant to withdraw the recrimination petition

filed by

hilll under s.97 of the Act in terms of the undertaking given by lerned

664 SUPREME COURT REPORTS (1983) 2 S.C.R.

.counsel for the appellant during· the course of the hearing of

A

1

the appeal.

B

The costs throughout shall be borne by the parties as incurred.

H.S.K Civil Appeal No. 38/81

partly by allowed.

Petitions & Civil Appeal

Nos. "216/82 and 1170/81

dismissed.

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