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The Representation of the People Act, 1951
F.A. Sapa Etc. Etc vs Singora And Ors. Etc on 10 May, 1991
Dr. (Smt.) Shipra vs Shri Shanti Lal Khoiwal on 3 March, 1996
T.M. Jacob vs C. Poulose & Ors on 15 April, 1999
Jagan Nath vs Jaswant Singh And Others on 20 January, 1954

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Gauhati High Court
T. Phungzathang vs Hangkhanlian And Ors. on 27 June, 2000
Equivalent citations: AIR 2001 Gau 52
Bench: A Patnaik

JUDGMENT

1. The petitioner in Election Petition No. 1 of 2000 was a candidate for the 48-Churachandpur Assembly Constituency in the 7th Manipur Legislative Assembly Election. In the said election, respondent No. 1 was declared elected from the said constituency on 26.2.2k. Respondents No. 2 and 3 were also the candidates for the said constituency in the said election. Respondent No. 5 is the Chief Electoral Officer, State of Manipur, And Respondent No. 6 was the Returning Officer for the Churachandpur Assembly Constituency. Respondents No. 7 to 10 were the Presiding Officers of different polling stations in the said Constituency. In the Election Petition, the case of the petitioner is that the respondent No. 1 and his agents/men committed various corrupt practices within the meaning of section 123 of the Representation of People Act, 1951, (for short, "the RPA, 1951") as narrated in the Election Petition and that the election of the respondent No. 1 was liable to be declared void under section 100 of the RPA, 1951. The petitioner has inter alia prayed that the election of the respondent No. 1 be declared void and that the petitioner be declared elected from the said Assembly Constituency.

2. On 27.4.2k, the court admitted the Election petition and issued notices to the respondents. The respondent No. 1, returned candidates, has appeared and filed Civil Misc. (Election) Case No. 3 of 2000. In the said Misc. Case, it has been stated in paragraph 5 that copies of the affidavit supplied to the Respondents in support of the corrupt practices mentioned in the election petition did not contain due verification and attestation by the Oath Commissioner or by the prescribed authority and that such omission in the copies of the affidavit supplied to the respondents as true copies was not a curable irregularity and the election petition was liable to be dismissed on this ground alone. Respondent No. 1 has also filed in court the summons and the copy of the election petition received by him along with the summons to show that the copy of the affidavit along with the copy of the election petition does not contain verification or affirmation by the Oath Commissioner by the prescribed authority. Similarly, respondents No. 5 and 6 have filed a preliminary objection to the maintainability of the election petition stating in paragraph - 1 thereof that the copies of the affidavit of the petitioner dated 9.3.2k in Form-25 prescribed by section 83 of

the RPA, 9151 accompanying the copies of the election petition furnished to the respondent Nos. 5 and 6 do not contain the affirmation by the Oath Commissioner. Along with the said preliminary objection, the summons from the court and the copies of the election petition and the accompanying affidavit have also been filed to show that in the copies of the affidavit accompanying the copies of the petition as served on the said respondent No. 5 and 6. affirmation by the Oath Commissioner of the prescribed authority has been omitted. The court therefore took up hearing on the aforesaid preliminary objection raised by the respondents No. 1, Sand 6.

3. At such hearing on the preliminary objection. Mr. T. Nandakumar Singh, learned counsel appearing for the respondent No. 1, submitted that sub-section (3) of section 81 of the RPA, 1951, provided that 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 own signature to be a true copy of the petition. He contended that the said sub-section (3) of section 81 required that a true copy of the election petition and a true copy of the affidavit have to be filed along with the election petition for each of the respondents. He further submitted that sub-section (1) of section 86 of the RPA, 1951, provides that the 1 High Court shall dismiss an election petition which does not comply with the provisions of section 81 of the RPA. 1951. According to Mr. Nandakumar Singh, therefore, where a copy of the election petition and a copy of the affidavit filed along with the election petition under sub-section (3) of section 81 of the RPA, 1951, contain omission of vital parts which exist in the original election petition, there is non-compliance of the provisions of sub-section (3) of section 81 and the High Court is under a mandate under sub-section (1) of section 86 of the RPA, 1951 to dismiss the election petition at the threshold. Mr. Nandakumar argued that since the copy of the affidavit accompanying the copy of the election petition served along with the summons the respondent No. 1 does not contain verification or affirmation by the Oath Commissioner or the prescribed authority as indicated in Form-25 under rule 94A of the Conduct of Election Rules, 1961, (for short, Rules, 1961) the election petition is liable to be dismissed for non-compliance of the provisions of sub-section (3) of section 81 of the RPA, 1951. In support of his aforesaid submission, he cited the decisions of the Supreme Court in Dr. Shipra v. Shantilal Khoiwal AIR 1996 SC 3350 = (1997) 10 SCC 294, in which the Supreme Court held that true copy of the

election petition supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petitioner in his own signature and if such verification or attestation by the prescribed authority is omitted in the copy of the election petition furnished to the returned candidate, it cannot be said that a true copy of the election petition has been furnished to the returned candidate and the statutory requirement of sub-section (3) of section 81 is not complied with and the election petition is liable to be dismissed at the threshold. Mr. Nandakumar Singh further submitted that in TM Jacob v. C. Pouiose, AIR 1998 SC 2939, a slightly different question arose as to whether the named designation of the Notary and the seal and stamp of the Notary also were required in the copy of the affidavit accompanying the copy of the election petition furnished to the respondents and as to whether in the absence of such name, designation, seal and stamp of the Notary in the copy of the affidavit as furnished to the respondents, there was non-compliance of the provisions of the sub-section (3) of section 81 of the RPA, 1951, and the Supreme Court was not too sure as to whether the principle indicated in the case of Dr. Shipra (supra) would apply to the facts of the case in TM Jacob v. C. Poulose and took a view that the matter required consideration by a larger Bench. Thereafter, the constitution Bench held in its decision in the said case of TM Jacob v. C. Poulose, (1999) 4 SCC 274, that the defect found in the true copy of the affidavit in Dr. Shipra's case was not merely the absence of the name of the Notary or his seal and stamp, but a complete absence of Notarial endorsement of the verification as well as absence of affirmation or oath by the election petitioner. Mr. Nandakumar Singh explained that the constitution Bench in TM Jacob v. C. Poulose (supra) has not in any way overruled or altered the law as laid in Dr. Shipra's case. He therefore vehemently argued that the election petition should be dismissed by the court at threshould for non-compliance with the provisions of sub-section (3) of section 81 of the RPA, 1951 in accordance with the aforesaid law laid down by the Apex Court.

4. The aforesaid arguments were reiterated by Mr. A Nilmani Singh. learned counsel appearing for the respondent Nos. 5 and 6. He submitted that the respondent No. 5 is the Chief Electoral Officer, Manipur and the respondent No. 6 was the Returning Officer for Churachandpur Assembly Constituency and in the election petition various allegations have been made against the said respondent Nos. 5 and 6. According to Mr. Nilmani Singh, therefore, although

the respondents No. 5 and 6 were not candidates in the election for the said Assembly Constituency they are likely to be affected by the judgment delivered by the court on the said allegations against respondents No. 5 and 6. He referred to the decisions of the Supreme Court in the cases of Dr. Shipra, Harcharan Singh and TM, Jacob (supra) to show that law is now well-settled that where the copy of the affidavit accompanying the copy of the election petition furnished to the respondents does not contain affirmation or oath by the election petitioner or Notarial endorsement of the verification, there is no substantial compliance with the provisions of sub-section (3) of section 81 of the RPA, 1951 and the election petition is liable to be dismissed under sub-section (1) of section 86 of the RPA 1951.

5. Mr. H Nabakumar Singh, learned counsel for the election petitioner, on the other hands, submitted that the affidavit accompanying the election petition in which the petitioner alleges any corrupt practice is required to be furnished under the proviso to section 83 of the RPA, 1951 and if there is any defect in the said affidavit there in only non-compliance of section 83(1) of the RPA 1951. Under section 86(1) the High Court has not been empowered to dismiss an election petition for non-compliance of the provisions of section 83 of the RPA, 1951 and thus the election petition cannot be dismissed in the present case if there is any defect in the copy of the affidavit accompanying the copy of the election petition furnished for the respondents. He also argued that under subsection (3) of section 81 of the RPA 1951 copy the election petition for the respondents attested by the petitioner to be true copy of the Election petition is to be filed and the said sub-section (3) of section 81 does not provided that copy of the affidavit accompanying the election petition attested by the petitioner to be true copy is also to be filed. Accordingly if there is any defeat in the copy of the affidavit filed along with the election petition, the court cannot hold that there is non-compliance with the provisions of sub-section (3) of section 81 of the RPA, 1951. In support of his aforesaid argument, he cited the decision of the Supreme Court in Jagan Nath v. Jaswant Singh, AIR 1954 SC 210, in which it has been held that in cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the election tribunal has to proceed with the trial of the case. According to Mr. Nabakumar Singh, since there is no provision in the RPA, 1951 empowering the High Court to dismiss an election petition for non-compliance with the provisions of section 83 of the RPA, 1951. the court cannot dismiss

the present petition and has to proceed with the trial of the case. He also relied on a decision of Allahabad High Court in Brij Mohan v. ZA Ahmed. AIR 1964 Al. 523, to the effect that the proviso to section 83(1) of the RPA, 1951 is directory and not mandatory and if affidavit as required by the said proviso fled at the time of trial of the election petition, the said proviso is complied with and the election cannot be dismissed. He also cited the decision of the Supreme Court in FA Sapa v. Singoral, AIR 1991 SC 1557. wherein it has been observed that since section 83 is not one of three provision mentioned in section 860), ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under section 81. According to Mr. Nabakumar Singh, affidavit is not an integral part of the affidavit election petition under section 81 and therefore defect in an or in the copy of the said affidavit furnished for the respondent cannot be a ground for dismissal of the election petition. In particular, Mr. Nabakumar Singh referred to the observations of the Supreme Court in the said case of FA Sapa v. Singoral (supra) in para - 28 of the judgment that an allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of section 83 before the parties go to trial. Mr. Nabakumar Singh submitted that the aforesaid decision of the Supreme Court in FA Sapa v. Singoral was followed by the Calcutta High Court in Dibyendu Biswas v. Rabin Deb, AIR 1998 Cal. 99, and the Calcutta High Court has held in the said case that even though there may be defective verification of defective affidavit which may not be fatal, the High Court should ensure its compliance before the parties go to trail, and found that in the case before it the affidavit had been filed before the High Court even before the written statement was filed and the mere fact that the affidavit had not accompanied the election petition did not appear to be fatal. Mr. Nabakumar Singh vehemently argued that the petitioner was guided by the bare provisions of the RPA, 1951 and the said bare provisions nowhere provided that the election petition which does not comply with the proviso to section 83(1) of the RPA, 1951 is to be dismissed by the High Court in limine. He further pointed out that after the said defect in the copy of the affidavit furnished for the respondents came to the knowledge of the election petitioner, the election petitioner removed the said defect in the copy of the affidavit furnished for the respondents by serving copies of the affidavit in Form-25 with necessary endorsements of the election petitioner's oath taken before the Oath Commissioner on the Advocate of the respondents on 7.5.2k even before the respondents filed their written statements. Regarding the decisions of the

Supreme Court in Dr. Shipra v. Shanti Lal Khoiwal & Harcharan Singh Joshi v. Hari Kishan (supra), cited by the learned counsel appearing for the respondent Nos. 1, 5 and 6, Mr. Nabakumar Singh, learned counsel for the petitioner, vehemently argued that the said decisions are per incuriam inasmuch as the Supreme Court has inadvertently not considered its earlier decision of a three Judge Bench in the case of FA Sapa v. Singora (supra) that the defeat in the affidavit in the prescribed Form-25 can be cured and the High Court should ensure its compliance before the parties go to trial. In this context, Mr, Nabakumar Singh relied on the decision of Rajasthan High Court in the case of Bhoor Singh v. District Magistrate, Barmer, 1993 Cril. LJ. 2217, for the proposition that where there are two conflicting judgments of the Supreme Court on the point by Benches consisting of the same number of Judges than the earlier judgment given by the Supreme Court has to be followed as precedent because it subsists until it is expressly over ruled by a larger Bench. According to Mr. Nabakumar Singh, therefore, the earlier judgment of the Supreme Court in FA Sapa v. Singora and the later judgments of the Supreme Court in Dr. Shipra and Harcharan Singh Joshi (supra) being in conflict with each other and having been rendered by Benches consisting of same number of Judges, this court should follow the earlier Judgment of the Supreme Court in FA Sapa v. Singora. He also cited the decision in AR Antulay v. RS Nayak. (1988) 2 SCC 602. for the proposition that if a decision has been given per incuriam, the court can ignore it. According to Mr. Nabakumar Singh, the provisions of section 86 of the RPA, 1951 being penal in nature have to be strictly construed as has been held by the Supreme Court in Manohar Joshi v. NB Patil, AIR 1996 SC 796, and section 86(1) so construed by the court does not warrant dismissal of the present election petition for defect in the affidavit or copy of the affidavit furnished under the proviso to section 83 of the RPA. 1951. He also cited the decision of the Supreme Court in Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261 for the proposition that dismissal of the election petition for want of material particulars was unwarranted.

6. Section 81(3), 83 and 86(1) of the RPA, 1951, to which the counsel for the parties have referred, are quoted hereinbelow :

"81(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 own signature to be a true copy of the petition."

"83(1) Contents of petition. - (1) An election petition -

(a) shall contain a consice statement of the material facts on which the petitioner relies ;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement 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; and

(c) 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 :

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 allegation 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 as the petition."

"86. Trial of election petition. - (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117".

A reading of section 81(3) quoted above would show that 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 own signature to be a true copy of the petition. In M. Kamalam v. AS Mohammad, AIR 1978 SC 840, the Supreme Court has held that an election petition for the purpose of aforesaid sub-section (3) of section 81 is confined not only to election petition proper but also includes a schedule or annexure contemplated in sub-section (2) of section 83 and a supporting affidavit referred to in the proviso to section 83(1). Thus, the affidavit accompanying the election petition in the prescribed form in support of the allegation of corrupt practice and particulars thereof referred to in the proviso to section 83(1) is also part of the election petition for the purpose of sub-section (3) of section 81. Therefore, where the copy of the affidavit accompanying the election petition furnished for the respondents is not a true copy of the affidavit accompanying the original election petition filed in court, there is no compliance with the sub-section (3) of section 81 of RPA, 1951. The contention of Mr. Nabakumar Singh, learned counsel for the election petitioner that affidavit is not part of the election petition for the purpose of sub-section (3) of section 81 of the RPA. 1951 is not correct.

7. Section 86(1) of the RPA, 1951, quoted above provides that the High Court shall dismiss an election petition which does not comply with the provisions of section 81 of the RPA, 1951. Accordingly, where the copy of the affidavit accompanying the election petition furnished for the respondents is not a true copy of the affidavit accompanying the original election petition filed in court, the High Court is under a mandate under section 86(1) to dismiss the election petition.

8. In the present case, at the bottom of the affidavit accompanying the original election petition filed in court, the Commissioner of Affidavits, Gauhati High Court, Imphal Bench, Manipur, on 9.3.2k has recorded the affirmation made before him by the declarant and has stated that the declarant is identified by Kh. Samarjit Advocate, and has certified that he has read over and explained the contents to the declarant and that the declarant seemed perfectly to understand the same. This affirmation and certificate have not been copied out in the copies of the affidavit accompanying the copies of the election petition furnished to the respondents No. 1, 5 and 6 and this fact has not been disputed by the election petitioner. Thus, the copies of the affidavit accompanying the copies of the election petition filed along with the original election petition and affidavit for the purpose of the said respondents No. 1, 5 and 6 do not contain the affirmation and the certificate by the Commissioner of Affidavits. The question as to whether, absence of such affirmation or verification by the Oath Commissioner in the copies of affidavit accompanying the copies of election petition furnished for the respondents amounted to non-compliance with provisions of section 81(3) of the RPA, 1951, arose for decision in the case of Dr. Shipra v. Shanti Lal Khoiwal, (supra), and the Supreme Court held that it amounted to such non-compliance with the provisions of section 81(3) and that the election petition was liable to be dismissed for such non-compliance under section 86(1) of the RPA, 1951. Paragraph - 11 of the judgment in Dr. Shipra v. Shanti Lal Khoiwal, (AIR 1996 SC 1691) is quoted hereinbelow. "In Purushortom v. Returning Officer, Amravati, AIR 1992 Bombay 227, the present question had arisen. In that case the copy contained omission of vital nature, viz., the attestation by the prescribed authority. The High Court had held that the concept of substantial compliance cannot be extended to overlook serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said be a true copy. We approve of the above view. Verification by a Notary

or any other prescribed authority is a vital act which assures that the election petitioner had affirmed before the notary etc. that the statement containing imputation or corrupt practices was duly and solemnly verified to be corrupt statement to the best of his knowledge or information as specified in the election petition and the affidavit filed fn support thereof; that reinforces the assertions. Thus affirmation before the prescribed authority in the affirmation and the supply of its true copy should also contain such affirmation so that the returned candidate would not be misled irrhis understanding that imputation of corrupt practices was solemnly affirmed or duly verified before the prescribed authority. For that purpose, Form-25 mandates verification before the prescribed authority. The object appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy cannot be said to be a curable irregularity. Allegations of corrupt practices are very serious imputations which, if proved, would entail civil consequences of declaring that he becomes disqualified for election to a maximum period of six years under section 8-A, apart from convention under section 136(2). Therefore, compliance of the statutory requirements is an integral part of the election petition and true copy supplied to the returned candidate should as sine qua non contain the due verification and certified to be true copy by the election petition in his/her own signature. The principle of substantial compliance cannot be accepted in the fact situation."

The aforesaid decision of the Supreme Court in Dr. Shipra was followed by the Supreme Court in Harcharan Singh Joshi, (AIR 1996 SC 3350). Paragraph 2 of the said judgment is quoted hereinbelow :

"It is not necessary for us to go into the grounds on which the election petition was dismissed by the High Court. Suffice it to state that the objections raised by the respondent regarding non-supply of the true copy of the affidavit is aformidable objection which merits acceptance in view of the recent judgment of this Court in Dr. (Smt.) Shipra v. Shanti Lal Khoiwal (1996) 4 JT (SC) 67 : (1996 AIR SCW 1772). Therein the copy of the affidavit supplied to the respondent was not attested by the Oath Commissioner. This court, after considering the entire case law held that the affirmation before the prescribed authorities in the affidavit and the supply of its true copy is mandatory so that the returned candidate' would not be misled in his understanding that imputation of the corrupt practices were solemnly affirmed and

duly verified before the prescribed authority. Fir that purpose, Form-25 prescribed by section 83 requires verification before prescribed authority. The concept of substantial compliance has no application in such a case. It is seen that the copy of the affidavit supplied to the respondent does not contain the affirmation by the Oath Commissioner. Under these circumstances, the defect is not a curable defect. Therefore, the dismissal of the election petition on this ground is sustainable in law,"

The aforesaid two decisions of the Supreme Court make it abundantly clear that where the copies of the affidavit accompanying the copies of the election petition furnished for the respondents did not contain the copies of the affirmation or verification by Oath Commissioner or prescribed authority, the election petition was liable to be dismissed for non-compliance with the provisions of section 81(3) of the RPA, 1951.

9. The decisions of the Supreme Court in Jagan Nath v. Jaswant Singh, FA Sapa v. Singora and Manohar Joshi v. N B Patil, and the decisions of Allahabad High Court in Brij Mohan v. ZA Ahmad and of Calcutta High Court in Dibyendu Biswas v. Rabin Deb (supra), on which great reliance was placed by Mr. Nabakumar Singh, learned counsel for the election petitioner were not the cases of non-compliance with the provisions of section 81(3) but cases on non-compliance with the provisions of section 83 of the RPA, 1951. A plain reading of section 86(1) of the RPA, 1951. quoted above, would show that the High Court has not been empowered under the said section 86(1) to dismiss an election petition which does not comply with the provisions of section 83 of the RPA, 1951. It is for this reason that the courts have held in the aforesaid cases cited by Mr. Nabakumar Singh that the court cannot dismiss an election petition where the verification or the affidavit as provided in section 83(1) is either not furnished or is defective and that such defect in the election petition relating to verification or the affidavit can be allowed to be removed by the petitioner before commencement of the trail. But, as indicated above, objection of the respondents No. 1, 5 and 6 is that copies of the affidavit accompanying the copies of the election petition served through the court on the said respondents are not the true copies of the affidavit accompanying the original election petition filed in court. Hence, what is complained of by the said respondents No. 1, 5 and 6 is non-compliance with the provisions of section 81(3) and not non-compliance with the provisions of section 83(1) of the RPA, 1951. Whereas, non-compliance with the provisions of section 83(1) does not entail dismissal of the election petition under section 86(1)

before the trial of the election petition, non-compliance with the provisions of section 81(3) of the RPA, 1951, warrants such dismissal at the threshold under the said section 86(1) of the RPA, 1951.

10. Coming now to the contention of Mr. Nabakumar Singh, learned counsel for the election petitioner that the decisions rendered by the Supreme Court in the cases of Dr. Shipra and Harcharan Singh Joshi, are per incuriam inasmuch as the decision of the Supreme Court in Fa Sapa v. Singora has been inadvertently not considered, in the case Fa Sapa v. Singora, there was no compliant of non-compliance with the provisions of section 83(3) of the RPA, 1951, and the compliant was with regard to non-compliance with the provisions of section 83(1) of the RPA, 1951, and the Supreme Court has held that section 83 is not one of three provisions mentioned in section 86(1) and therefore, ordinarily it cannot be construed as mandatory and the election petition cannot be dismissed on the ground of non-compliance with the provisions of section 83 of the RPA, 1951. In paragraph-29 of the said judgment in the case of FA Sapa v. Singora (AIR 1991 SC 1557) the Supreme Court clearly held that so far as non-compliance with section 81(3) is concerned, the consequence was fatal. In the language of the Supreme Court - "... It must be remembered that non-compliance with the requirement of sub-section (1) or (3) of section 81 can prove fatal in view of Section 86(1) of the RP Act. See Satya Narainv. Dhuja Ram (1974) 4 SCC 237 : (AIR 1974 SC 1185], M Karunanidhi v. Dr. HV Handa. (1983) 2 SCC 473 ; (AIR 1983 SC 558], Mithilesh Kumar Pandey v. Baidynath Yadav, (1984) 2 SCR 278 ; (AIR 1984 SC 305), Rajender Singh v. Usha Rani (1984) 3 SCC 339 ; (AIR 1984 SC 956) and U.S. Sasidharan v. K Karunakaran, (1989) 4 SCC 482 ; (AIR 1990 SC 924). It is quite obvious from these decisions that the requirements of section 81(3) arc mandatory and failure to comply with them would render the petition liable to summary dismissal under Section 86(1) of the RP Act."

The decisions of the Supreme Court in the cases of Dr. Shipra and Harcharan Singh Joshi do not in any way conflict with the aforesaid decision of the Supreme Court in FA Sapa v. Singora. Rather, they are consistent with aforesaid decision in FA Sapa v. Singora, because it was held in the said decisions in Dr. Shipra and Harcharan Singh Joshi that absence of affirmation by the Oath Commissioner or the prescribed authority in the copy of the affidavit

furnished to the respondents amounted to non-compliance with the provisions of section 81(3) and the election petition was liable to be dismissed summarily under section 86(1) of the RPA, 1951. The contention of Mr. Nabakumar Singh, learned counsel for the election petitioner that the decisions of the Supreme Court in the cases of Dr. Shipra and Harcharan Singh Joshi are per incuriam is therefore misconceived and not tenable.

11. For the reasons stated above, Civil Misc. (Election) Case No. 3 of 2000 is allowed, and the election petition is dismissed under Section 86(1) for non-compliance with the provisions of sub-section (3) of section 81 of the RPA, 1951. There shall be no order as to costs.