Sanchayita Lahkar

In a recent judgement, the Gauhati High Court, Single Bench, of  Justice Sanjay Kumar Medhi, dismissed an election petition challenging the 2024 Lok Sabha election result for the Karimganj Parliamentary Constituency, citing procedural violations under the Representation of the People Act, 1951. The court allowed an application under Section 86 of the Act, filed by the returned candidate, seeking dismissal of the election petition due to non-compliance with Section 81(3) and other mandatory provisions. The court stated that substantial compliance was insufficient for mandatory statutory requirements and dismissed the petition.

The election petition was filed by Hafiz Rashid Ahmed Choudhury, challenging the election of Kripanath Mallah from the No. 7, Karimganj Parliamentary Constituency in the 2024 General Elections. The returned candidate filed an interlocutory application [IA(Civil)/3340/2024] under Section 86 of the Representation of the People Act, 1951 read with Section 151 of the CPC, praying for dismissal of the election petition.

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The petitioner submitted that the election petition was not presented in accordance with the law, particularly Sections 81 and 83 of the Act. He argued that four pages (pages 11, 16, 21, and 22) were missing from the copy served to him, thereby denying him reasonable opportunity to respond. He further claimed that many pages of the served copy lacked the required attestation under Section 81(3), and that affidavits filed in support of allegations of corrupt practices lacked proper notarization, violating Rule 94A of the Conduct of Election Rules, 1961.

Specific objections included the absence of attestation or proper certification on several pages (e.g., pages 119, 125, 139, 143, 153, 157, 160, 163, 166, 169, 172, 174, 176, 183, 186, 189, 198, 205, 208, 210, 213, 214, 215, and 217), and a missing signature on page 141. It was submitted that these deficiencies violated mandatory provisions.

In support, the applicant relied on multiple Supreme Court decisions. In Dr. (Smti.) Shipra vs. Shantilal Khoiwal, (1996) 5 SCC 181, the Court held that a copy of an affidavit served without proper attestation was not a "true copy" and mandated dismissal. In TM Jacob vs. C. Poulose, (1999) 4 SCC 274, the Supreme Court discussed substantial compliance in the context of incomplete notarial details. The applicant contended that unlike that case, there was a total absence of notarization here. Other cited cases included Satya Narain vs. Dhuja Ram, (1974) 4 SCC 237, and Sarif-Ud-Din vs. Abdul Gani Lone, (1980) 1 SCC 403.

The respondent, opposing the application, submitted that the allegation regarding missing pages was an afterthought. He stated that the returned candidate entered appearance on 28.08.2024 but raised no such issue. Subsequent applications also lacked such a claim. The respondent contended that under Section 87(2) of the ROP Act and Section 61 of the Indian Evidence Act, the burden of proof regarding missing documents lay with the applicant, who failed to submit the original served copy.

Regarding attestation, the respondent argued that the terms "attested to be true copy" and "certified to be true copy" were synonymous. He referred to Jibontara Ghatowar vs. Sunil Rajkonwar, 2012 (3) GLT 758, to support the argument that absence of certain words did not cause prejudice. He submitted that all affidavits in the original petition were duly attested and that any difference in served copies did not invalidate the petition.

The respondent further offered to provide the alleged missing pages in the interest of justice, without admitting the deficiency. He relied on multiple judgments including Ch. Subbarao vs. Member, Election Tribunal, Hyderabad, AIR 1964 SC 1027; Anil R Deshmukh vs. Onkar N Wagh, (1999) 2 SCC 205; Murarka Radhey Shyam vs. Roop Singh Rathore, AIR 1964 SC 1545; FA Sapa vs. Singora, (1991) 3 SCC 375; and A Manju vs. Prajwal Revanna, (2022) 3 SCC 269, to argue that minor lapses or curable defects should not lead to dismissal of election petitions.

The Court extensively analysed both the procedural requirements under the ROP Act and judicial precedents. It noted that Section 86(1) mandates dismissal of election petitions not complying with Sections 81, 82, or 117.

On the allegation of missing pages, the Court observed:

"The Returned Candidate had entered appearance through his learned counsel on 28.08.2024 and no mention, whatsoever was made regarding any pages missing and rather, time was sought for to file written statement. Even in the IA(C)/3091/2024 which was filed for extension of time, there was no indication that 4 nos. of pages were missing."

The Court found this omission critical and concluded:

"It is difficult to accept the contention made on behalf of the applicant that 4 nos. of pages were missing in the copy which was served upon the applicant-Returned Candidate."

However, the Court found merit in the procedural lapses regarding attestation and notarization:

"The Election Petition which was served, the endorsement is 'attested to be true copy of the petition', in the rest of the pages, the endorsement is 'certified to be true copy'. Thus even if the argument made on behalf of the opposite party that there is no substantial difference between the aforesaid terms is considered, it is seen that so far as the endorsement 'certified to be true copy' is concerned, it has not been stated that such certification is pertaining to true copy of the petition which is the requirement of Section 81(3)."

Regarding the affidavit under Rule 94A, the Court recorded:

"In case of allegation of corrupt practices, a special affidavit is required to be filed in support of such allegation and such affidavit is required to be as per Form-25... The affidavit must be sworn before a Magistrate of the 1st Class or a Notary or an Oath Commissioner."

The court relied on Dr. (Smti.) Shipra and TM Jacob, distinguishing the present case from the latter due to total absence of notarization. It concluded:

"The requirement under Section 81(3) of the Act is mandatory and any failure or defect is not curable in nature... substantial compliance is not enough and there has to be strict compliance with such requirement."

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The Gauhati High Court concluded:

"In view of the aforesaid facts and circumstances, while this Court is not inclined to accept the contention made on behalf of the applicant regarding missing of 4 nos. of pages in the copy served, the other ground on which the IA has been presented under Section 86(1), namely, lack of attestation/proper attestation has substance. This Court is not able to accept the submission made on behalf of the opposite party regarding substantial compliance..."

Accordingly, the court stated:

"The IA stands allowed for the reasons indicated above. The Election Petition accordingly stands dismissed."

Advocates Representing the Parties

For the Applicant: Shri D. Saikia, Senior Advocate Shri P. Nayak, Advocate

For the Respondent: Shri K.P. Pathak, Senior Advocate Shri M. Dutta, Advocate

Case Title: Kripanath Mallah vs. Hafiz Rashid Ahmed Choudhury

Neutral Citation: GAHC010227202024

Case Number: I.A.(Civil)/3340/2024 in El. Pet./1/2024

Bench: Justice Sanjay Kumar Medhi

[Read/Download order]