2024 Lok Sabha Polls: Gauhati HC Rejects Congress Candidate's Plea Challenging BJP Candidate's Election Over Lack Of Proper Attestation

The Gauhati High Court recently dismissed a petition by Congress's Hafiz Rashid Ahmed Choudhury–who contested from Assam's No. 7 Karimganj Constituency in the 2024 Lok Sabha Elections–challenging the election of winning BJP candidate Kripanath Mallah. 

The court dismissed the petition on the ground of lack of proper attestation of the petition. The court also allowed an application moved by Mallah seeking dismissal of Choudhury's election petition on the ground that its presentation was not as per law and that the election petition was filed in violation of the procedure laid down in Sections 81 and 83 of the Representation of People Act. Mallah's application also contended that there were four pages missing in the petition copy served upon him. 

Justice Sanjay Kumar Medhi in his order noted that from pages 1 to 84 of the copy served, the election petitioner has put his signature under a rubber stamp “attested to be true copy of the petition” whereas from pages 85 to 185, the election petitioner has put his signature under a rubber stamp “certified to be true copy”.

“This Court had also noticed that in page 183 of the Election Petition which correspondence to page 215 of the IA, there is neither any attestation nor certification. This Court has also noticed that in the service copy, the verification pages of the various documents annexed to the Election Petition, namely, page nos. 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 do not bear the declaration of attestation as required under Section 81(3) and the only endorsement made is “certified to be true copy”. As noted above, in page 215, there is neither any attestation nor certification,” the Court said.

The Court further noted that so far as attestation/certification is concerned, though it is the case of the election petitioner-opposite party that there is no substantial difference in the aforesaid two terms, the requirement under Section 81(3) is that attestation has to be made to be a true copy of the petition.

“This Court has verified from the documents annexed to the IA and has found that while the pages from 1 to 84 of 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),” the Court observed.

Choudhury had filed the petition under Section 80, Section 80A and Section 81 of the Representation of People Act alleging that the wining BJP Candidate committed multiple 'corrupt practices' both while campaigning as well as on the day of elections, including widespread rigging, booth capturing, voter intimidation through undue influence and bribery, etc. 

Mallah contended that the Election Petition has been filed in violation of the procedure laid down in Sections 81 and 83 of the ROP Act. It was contended that in the Petition, the requirement of verification has not been complied with. It was further highlighted that the Election Petition served upon the applicant, the affidavit which is required to be filed under Section 94A of the Conduct of Election Rules, 1961 (the Rules), there was no notarization.

The Senior Counsel appearing for the applicant-returning candidate submitted that while pleadings are required to be attested, the documents have only been certified and not attested and under Section 81(3) of the ROP Act, there is a requirement of attestation.

It was submitted that in the copy served upon the returned candidate, there should be both attestation and certification. The Senior Counsel for the applicant also submitted that from pages 1 to 84, there is attestation as true copies on the copy of the Election Petition served on his client whereas from pages 85 to 185, the endorsement is certified to be true copy. He has submitted that in the service copy, all pages are required to be attested whether it is a part of the pleadings or annexures which is mandated under Section 81(3).

The Senior Counsel appearing for Choudhury–the election petitioner ( opposite party in application) that under Section 81(3), the manner and mode of self-attestation is not provided and therefore, it does not make any difference whether “attested to be true copy” or “certified to be true copy” is written by the election petitioner.

It was further contended that the applicant has not pleaded that he has suffered any prejudice because of the use of the words “attested to be true copy” in some pages or by the use of the words “certified to be true copies” in some other pages and in absence of any pleaded prejudice, the objection is not sustainable in law.

With respect to the four missing pages argument made by Mallah the court observed, that he had entered appearance through his counsel on 28.08.2024 and made no mention, whatsoever regarding any missing pages but had sought time  to file written statement. It noted that in Mallah's earlier application for extension of time there was was no indication that 4 pages were missing from the election petition. 

Thus  while the court was not inclined to accept the argument made on missing pages, it however found substance in Mallah's argument made in the application regarding lack of attestation/proper attestation in the petition.

"This Court is not able to accept the submission made on behalf of the opposite party regarding substantial compliance and suffering of prejudice inasmuch as, such requirement under the statute is mandatory in nature which is fortified by laying down a consequence of any violation thereof,” it said. 

Thus, the Court allowed the Mallah's IA and dismissed the Choudhury's Election Petition.

Citation: 2025 LiveLaw (Gau) 18

Case Title: Kripanath Mallah v. Hafiz Rashid Ahmed Choudhury

Case No.: I.A.(Civil)/3340/2024 in El. Pet./1/2024

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