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Bombay High CourtIndian Cases

Sayyad Tahir Hussain Mainuddin And … vs The State Of Maharashtra Through … on 24 August 2007

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Bombay High Court
Sayyad Tahir Hussain Mainuddin And … vs The State Of Maharashtra Through … on 24 August, 2007
Equivalent citations: 2007(109)BOM.L.R.1906, 2007(6)MHLJ633
Author: N.V. Dabholkar
Bench: N.V. Dabholkar, M.G. Gaikwad
JUDGMENT

N.V. Dabholkar, J.

Page 1908

1. Appeal under Clause 15 of the Letters Patent challenges order passed by learned Single Judge of this High Court in Writ Petition No. 2366/2007 on 24.4.2007. By the impugned order, learned Judge was pleased to allow the writ petition partly.

2. The dispute is between recently elected Councillors of Udgir Municipal Council because of alleged disqualification incurred by some of the Councillors in view of provisions of the Maharashtra 4 Local Authority Members Disqualification Act, 1987 (henceforth referred to as Disqualification Act for the sake of brevity).

Elections to Udgir Municipal Council took place by voting on 19.11.2006. Appellants and respondent Nos. 2 to 13 along with 33 others were declared elected as Councillors. Elections for the seat of President and Vice President were scheduled on 21.12.2006. It is alleged that party had issued a whip regarding voting at the elections for President and Vice President. Appellants and respondent Nos. 4 to 13, according to respondent Nos. 2 & 3, refused to accept the whip and also voted contrary Page 1909 to the party whip. It appears from the whip issued on 19.12.2006 (paper book page 74) and 21.12.2006 (paper book pages 74 & 75). Party had not only issued a whip that at the elections for President and Vice President of Udgir Municipal Council, the elected members of the party must vote in favour of the candidates as may be indicated by the party whip, but it was specifically directed that the members should vote in favour of respondent No. 3 (Basawraj Bagbande) for the purpose of election as President and respondent No. 2 (Girish Patil) for the election of Vice President. In breach of this whip of the party, present appellants and respondent Nos. 4 to 13 are said to have voted in favour of respondent No. 4 and Sudhir Bhosale respectively at the election for President and Vice President.

Respondent Nos. 2 & 3 filed disqualification application (reference) under Section 7 of the Disqualification Act against present appellants and respondent Nos. 4 to 13. Collector, Latur, was pleased to issue notices on 15.1.2007 in response to which appellants appeared on 31.1.2007 and sought time to file say. On 9.2.2007, appellants filed an application raising preliminary objections regarding the maintainability of disqualification application and prayed for dismissal of the same. Present respondent Nos. 2 & 3 filed their reply on 22.2.2007. By his order dated 17.3.2007, Collector, Latur, was pleased to dismiss the application challenging the maintainability of disqualification reference.

Feeling aggrieved by the decision of the Collector, present appellants approached this Court by way of Writ Petition No. 2366/2007 under Articles 226 & 227 of the Constitution of India. The writ petition is decided by learned Single Judge by impugned order and the same is partly allowed.

3. From the copy of said application available at paper book pages 94 to 98 challenging the maintainability of disqualification reference for non compliance of Rule 6 r/w Rule 7(2) of Maharashtra Local Authority Members Disqualification Rules, 1987, four grounds as under were raised against maintainability of disqualification reference:

(i) The petition has not been verified in the manner laid down in the Code of Civil Procedure, 1908;
(ii) In the said petition large number of documents are annexed and same are annexed; however, the said annexures have not been signed by the petitioners and verified as provided in the Code of Civil Procedure, 1908.
(iii) It is submitted that from the petition it is seen that petition is verified on 8.1.2007, this is recorded in the verification clause itself. In the said petition verified on 8.1.2007, in para 16 therein, the petitioners have referred to the affidavits filed by Shri V.B. Chakote, Shri B.V. Kale and Prof. B.V. Motipawale and it is further alleged that the said affidavits are also submitted herewith. It is now strange to now noticed that the said affidavit of Prof. B.V. Motipawale is dated 10.1.2007 and the affidavit of Mr. B.V. Kale is dated 9.1.2007. This clearly shows that on 8.1.2007, the date on which the said petition was verified the said affidavits were Page 1910 not in existence and this shows that the petitioners have not approached with clean hands to this Honble authority.
(iv) The respondents have reason to believe that some of the documents annexed to the petition are not genuine and therefore they have avoided signing and verification of the said documents.
Learned Single Judge, while partly allowing the writ petition, has upheld the objection regarding verification of the disqualification application. However, while quashing the order of the Collector to that extent, learned Single Judge has directed that amendment application filed by the petitioners by way of correction to the verification should be heard by the Collector and disposed of in accordance with the provisions of law. During the course of arguments, we are informed by learned Senior Counsel that the said application is considered and allowed and, thus, disqualification applicants were allowed to rectify the verification and that defect no more remains on record. Without prejudice to their rights to challenge the said order of the Collector allowing the amendment, at present that ground was not pressed into service. In all fairness, Senior Counsel Shri Shah also conceded that he was not pressing ground No. (i) for the purpose of present letters patent appeal. Shri Shah has pressed into service grounds at Sr. Nos. (ii) and (iv), ground No. (iv) being a corollary of ground No. (ii).

4. To sum up the argument of learned Senior Counsel for appellants in brief, it can be said that ground of challenge against the maintainability of disqualification reference is.

That the copies of the documents accompanying the disqualification petition, although documentary evidence, are annexures to the petition and, therefore, integral part of the petition. Those are required to be signed and verified in the manner laid down in the Code of Civil Procedure, 1908, by virtue of Rule 6(4) of the Rules, 1987. Since those are not so signed and verified, the consequences as prescribed by Sub-rule (2) of Rule 7 must follow i.e. the Collector ought to have dismissed the disqualification reference without sending any intimation or notice to the respondents in the same.

To elaborate his arguments, it was submitted by learned Senior Counsel that in order to prove the respondents having incurred disqualification, the original reference petitioners are required to prove that there was some authorisation to issue whip vested in some office bearer of the party. They must prove the fact of issuance of whip and what was the whip. They must also prove service of whip upon the Councillors, who are sought to be disqualified for acting against the whip and, also the contravention of the whip on their part. He pointed out that authorisation to issue whip (paper book page 80), the whip (paper book pages 74 and 75), service of whip (paper book page 76) and contravention of the whip (minutes of the election meeting – paper book pages 58 to 64 – showing the voting pattern) are tried to be proved by production of documents (as referred by paper book page numbers). These documents are also referred within the body of the petition in paras 5 to 10. The petition could have been incomplete without production of these documents and, therefore, according to learned Senior Counsel, these documents, although documentary evidence, must be termed as annexures to the petition, part and parcel of the petition Page 1911 and, therefore, ought to have been signed and verified by the reference petitioners as required by Rule 6(4).

Respondent Nos. 4 to 13 have supported the arguments advanced on behalf of the appellants. The State has taken a role of observer and matter was mainly contested by respondent Nos. 2 & 3, who were the reference petitioners.

5. Senior Counsel Shri Dixit representing respondent No. 2 advanced main submission. He has placed reliance upon the judgment of the Supreme Court in the matter of Sahodrabai Rai v. Ram Singh , which was also relied upon before learned Single Judge and by placing reliance upon which, learned Single Judge has held that annexure is an integral part of the petition, but not the documents accompanying the petition. Learned Single Judge has arrived at a conclusion that the documents, which are produced alongwith the disqualification application are accompaniments and not annexures and, therefore, compliance of Sub-rule (4) of Rule 6 was not required so far as these documents are concerned. Consequently, the writ petition is partly dismissed so far as objection regarding non compliance of Rule 6(4) pertaining to the documents accompanying the reference petition and unsustainability of the reference petition due to such non compliance.

Learned Senior Counsel Shri Dixit has taken us directly to Rule 6(3) pertaining to contents of the petition as also to Sub-rule (4). According to learned Senior Counsel, the documents expected to be accompanied with the petition as referred to in Sub-rule 3(b) are different than annexures referred to in Sub-rule (4) of Rule 6. The documents which form copies of documentary evidence in support of the petition are compelled by the rules to be accompanied with the petition. That by itself will not give them status of annexures and annexures ought to be integral part of the petition. Since the copies of the documents accompanied with the petition, which is documentary evidence, are not the annexures, compliance of Sub-rule (4) of Rule 6 was not called for and, therefore, learned Single Judge was justified in dismissing the writ petition to the extent it challenged the finding of the Collector that reference petition was not liable to be dismissed for non compliance of Rule 6(4) r/w Rule 7(2) because the copies of the documents accompanying the reference petition were not signed and verified by the reference petition.

6. Advocate Shri Gangapurwala for respondent No. 3 fully supported the arguments of Advocate Shri Dixit. He advanced his arguments by saying that unless the copies of documentary evidence can be given status of annexure and thus integral part of the petition, compliance of Sub-rule (4) of Rule 6 can not be expected from reference petitioners and for default of the same, reference petition would not be liable for dismissal as contemplated by Rule 7(2) of the Rules. Shri Gangapurwala, in order to illustrate as to what is the integral part of the petition, has reminded us of suits filed before the trial Court seeking relief of removal of encroachment and possession and seeking relief of specific performance. According to him, Page 1912 the map of the survey carried out before filing the suit, which shows the lands of the neighbours and the encroachment by whom against whom forms the integral part of the plaint and unless that is read within the plaint, it is impossible for the Court to pass an executable decree. According to Shri Gangapurwala, such a map is annexure of the plaint and integral part of the plaint. In the suit for specific performance, agreement of sale annexed to the plaint is a basic document or foundation of the suit, but that is not an integral part of the plaint, because plaint can be filed even without agreement of sale, which can be produced only at the stage of leading the evidence and it remains a documentary evidence.

7. Having heard the respective counsel and having gone through the reported judgments of the Supreme Court, all considering the provisions of Sections 81 to 83 of the Representation of People Act, 1951, we feel that dispute can be resolved by considering following question:

Whether copies of documentary evidence accompanying the reference petition can be termed to be annexures of the reference petition as contemplated by Rule 6(4) and, therefore, required to be signed and verified in the manner laid down by the Code of Civil Procedure, 1908?
The meaning of word “annex” as per Concise Oxford English Dictionary, 11th Edition, means “add as an annexure or subordinate part”, “an addition to a document”. On considering plain dictionary meaning, it can be said that annexure would mean part and parcel of the document, at the most an extension on a separate piece of paper. In other words, the annexure would be otherwise integral part of the document. Therefore, what is integral part of the reference petition can be designated as annexure, as contemplated by Sub-rule (4) of Rule 6 and would require signature and verification of the petitioner by way of compliance of Sub-rule (4) of Rule 6.
8. Learned Single Judge has placed reliance upon the judgment in the matter of Sahodrabai v. Ram Singh and more particularly para 12 within the same. Learned Counsel Shri Dixit for respondent No. 2 has placed reliance upon certain observations of the Supreme Court in the matter of M. Karunanidhi v. Dr. H.V. Hande and Ors. . Similarly, Advocate Shri Gangapurwala has placed reliance on certain observations of the Supreme Court from the reported judgment in the matter of Suryakant Mahadik v. Saroj Naik .

Having gone through the observations relied upon by learned Counsel and having considered the scheme of Sections 81 and 83 (or to that extent even inclusive of Section 82 of the Representation of People Act, 1951) and the scheme under Rules 6 & 7 of the Disqualification Rules, 1987, we feel that it is not possible to borrow ratio, observations or analogy as laid down or discussed in the matters of Representation of Peoples Act, mutatis mutandis in the matter at hands. This is because, there is one basic and Page 1913 striking difference between the two schemes. We may reproduce the relevant provisions for ready reference:

81. Presentation of petitions:
(1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) 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 than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
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.

(2) [Omitted] (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.

82. Parties to the petition:

83. Contents of petition:

(1) 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 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 (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 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.
To describe the scheme, it can be said that Section 81 lays down the manner in which the petition should be presented and for that purpose, it also prescribes as to on what grounds such a petition can be presented and that it should be presented together with as many copies as there are respondents.

Page 1914 Section 82 can be said to be corollary of Section 81, because the same lays down as to who should be the parties to the petition. Sections 81 and 82 together, therefore, determine the manner in which the petition should be presented. Section 83 is a distinct provision as is evident from the title “Contents of the petition”. Section 83 lays down as to what should be the petition, what should be its contents, what material must be contained within the body and what should be accompanied with the petition. So far as Rules 6 & 7 are concerned, we intend to reproduce only relevant portion.

6. References to be by petitions:

(1) …
(2) Before making any petition in respect of a councillor in relation to a municipal party and a Zilla Parishad party or a member in relation to the Panchayat Samiti party, the petitioner shall satisfy himself that there are reasonable grounds for believing that a question has arisen as to whether such councillor or, as the case may be, member has become subject to disqualification under the Act (3) Every petition
(a) shall contain a concise statement of the material facts on which the petitioner relies;
and

(b) shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing the name and address of such person and the gist of such information as furnished by each such person.

(4) Every petition and any annexure thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil 22 Procedure, 1908 (V of 1908) for the verification of pleadings.

7. Procedure:

(1) On receipt of a petition under Rule 6, the Commissioner, or, as the case may be, Collector shall consider whether the petition complies with the requirements laid down in that rule.
(2) If the petition does not comply with the requirements of Rule 6, the Commissioner, or, as the case may be, Collector shall dismiss the petition and intimate the petitioner accordingly.
(3) to (6) …
The striking distinction between the schemes of Sections 81 to 83 of the Representation of People Act, 1951, on one side and Rules 6 & 7 of Disqualification Rules, 1987, is that the rules require the reference petitioner to ensure accompaniment of copies of all documents upon which he desires to rely as documentary evidence for the purpose of proving the averments raised in the petition. On going through Sections 81 and 83, none of the provisions lay down such requirement or obligate the petitioner in an election petition to annex copies of all documentary evidence upon which he desires to place reliance for the purpose of proving the averments raised in the election petition. Sub-section (3) of Section 81 only requires Page 1915 that election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition and it further requires that each copy should be attested by the petitioner under his own signature to be a true copy of the petition. Sub-section (3) of Section 81, thus, does not speak anything as to what should be the schedule, annexure, enclosure, accompaniment of the petition itself. Section 83 is specific provision regarding contents of petition. Sub-section (1)(a) is verbatim borrowed in Sub-rule (3)(a) of Disqualification Rules, 1987. Sub-section (1)(b) of Section 83 is a special provision applicable when the election petition alleges the respondent to have committed corrupt practice. Clause (c) of Sub-section (1) of Section 83 requires the petitioner to sign and verify the petition as laid down by the Code of Civil Procedure. Proviso to Sub-section (1) of Section 83 requires the petition to be accompanied by an affidavit in the prescribed form. We may lay emphasis to the word “accompanied” as used in the provision and it is a settled legal position that, under various judicial pronouncements in the matters under Representation of People Act; this affidavit to be accompanied with the petition alleging corrupt practices on the part of respondents is treated as integral part of the election petition.

By Sub-section (2) of Section 83, the schedules and annexures to the petition are required to be signed and verified by the petitioner.

We have referred to all the details in both the provisions of Representation of People Act, 1951, in order to demonstrate that none of the provisions require the petitioner to ensure that petition is accompanied by true copies of the documents, which are the documentary evidence desired to be relied upon by the election petitioner.

If we are to consider the two schemes together i.e. Sections 81 to 83 on one side and read with Section 86 of Representation of People Act, and Rules 6 & 7 on the other side, there is one more striking difference. On reference to Section 86(1) of Representation of People Act, 1951, it is evident that non-compliances stand classified into two groups. Non compliance of Sections 81, 82 and 117 invite the High Court to dismiss an election petition, but for non compliance of Section 83, the High Court, while considering election petition, is not required to dismiss the same. Thus, Representation of People Act classifies the defects in the election petition into two groups i.e. curable and not curable. On reference to language of Sub-rule (2) of Rule 7, it is evident that none of the defects in the reference petition or in other words non compliances of Rule 6 are pardonable. Any and every non compliance of Rule 6 meets with only one fate i.e. dismissal of the reference petition either by the Commissioner or the Collector, as the case may be.

9. In the matter of Sahodrabai (supra), we are taken through the entire judgment by learned Counsel for respondent No. 2. We would like to quote concluding part of penultimate para 12 of the judgment, which reads:

It would be stretching the words of Sub-section (2) of Section 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 Page 1916 case we do not think that the pamphlet could be so treated. We are, therefore, of the opinion that whether or not Section 86(1) is mandatory or directory there was no breach of the provisions of the Representation of the People Act in regard to the filing of the election or the service of the copies thereof and the order under appeal was therefore erroneous.
In fact, the concluding portion of para 12 reproduced by us hereinabove is clear indication by Honble Apex Court that the conclusions drawn in the case are not to be treated as ratio decidendi. At the cost of repetition, we quote the sentence due to which we are inclined to so believe. “In this particular case, we do not think that pamphlet could be so treated.”
In the election petition, election was challenged on the allegations, which can be termed as “corrupt practice” under Representation of People Act. It was alleged that the elected candidate appealed to religion through a pamphlet marked as Annexure A. It was contention of the respondent, while challenging maintainability of the election petition, that copy of Annexure A was not served upon him and, thus, there was non compliance of Section 81(3) entailing consequences as under Section 86(1). While considering the issue whether the pamphlet could be described in this case as a part of the election petition, the Honble Apex Court in para 11 considered provisions of Code of Civil Procedure applicable to the election petition under Representation of People Act. Honble the Supreme Court also took into consideration the fact that entire text of the pamphlet was reproduced in the form of English translation within the body of the petition. It was in the light of those facts and circumstances, the Supreme Court held We have already pointed out that Section 81(3) speaks only of the election petition. Pausing here, we would say that since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition and, therefore, the pamphlet was served upon the respondents although in a translation and not in original. Even if this be not the case, we are quite clear that Sub-section (2) of Section 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 in not in the election petition but in the accompanying schedules or annexures.
Having considered the distinction between the schemes under Sections 81 to 83 of Representation of People Act and under Rules 6 & 7 of Disqualification Rules, 1987, it may not be incorrect to say that under all the cases under Representation of People Act, a distinction is required to be drawn between schedules and annexures to the petition and the documents, which are evidence. Whereas under Disqualification Rules, 1987, the documentary evidence, in the form of true copies is required to be accompanied to the petition. Representation of People Act does not mandate the petitioner to disclose all the documentary evidence desired to be relied upon by filing copies of those documents to be relied upon alongwith petition.
10. After considerable length of arguments and interaction between the lawyers and us, there was no disagreement that what is integral part of the petition would require signature and verification of the petitioner as laid Page 1917 down by Sub-rule (4) of Rule 6. Therefore, the nomenclature of the material that is presented alongwith election petition or disqualification reference petition is immaterial. We feel irrespective of the fact whether it is described as annexure, schedule, enclosure, accompaniment or document, if the same is integral part of the petition, it would necessitate compliance of all statutory requirements. The question naturally arises as to what should be the test to determine as to whether a particular “document” is integral part of the election petition/disqualification reference and we feel that following two simple tests may provide the solution.

(1) It must be part of the petition by statutory requirement;

(2) It must be such, in absence of which, the petition would be incomplete.

The two illustrations narrated by Advocate Shri Gangapurwala really demonstrate that a map of the survey annexed to a suit for removal of encroachment would certainly be integral part of the suit. It passes the second test, because without such a map, it will not be possible for the plaintiff to demonstrate, which portion of his land is encroached upon nor it will be possible for the Court to pass a decree, which can be conveniently executed. As against this, the agreement of sale in a suit for specific performance, may be a basic or fundamental document upon which the suit rests, but detailed description of the terms in the agreement of sale within the body of the plaint may enable the plaintiff to present the plaint initially without being accompanied by agreement of sale. The illustration by Advocate Shri Gangapurwala is certainly a good illustration for practical test. But more sound and stiff test should be the statutory requirement. If a particular statute requires presentation of particular type of litigation in a peculiar form and containing particular things within it and accompanying it, we feel everything that is required to be filed either within or with the petition, must be treated a part and parcel of the petition. This is because if petition is presented, short of any of the things required by the statute to accompany the same, it would be presentation of an incomplete petition. And here we are required to refer to Rule 6(3)(b), which we have already reproduced. Rules framed in exercise of the powers conferred by Section 9 of the Disqualification Act, 1987, must be said to be having statutory force and if the rules require the reference petitioner that the reference petition must be accompanied by copies of the documentary evidence, the documents do not loose their character as integral part of the reference petition, merely because they are “documentary evidence” for the purpose of drawing such an inference, we must remind ourselves that scheme of Sections 81 to 83 of Representation of People Act does not compel the election petitioner to file copies of documentary evidence together with the election petition.

11. In the matter of M. Karunanidhi (supra), learned Counsel Shri Dixit for respondent No. 2 has taken us through many portions of the judgment, which are mainly pertaining to an objection raised regarding non compliance of Section 81(3) read with Section 83(2). It was alleged that there was failure Page 1918 to furnish alongwith the petition copy of a document (a photograph) referred to in the petition, without which averments made in the petition would be incomplete. The photograph, thus, was said to be integral part of the petition and, therefore, it was alleged that there was non compliance of Section 81(3) as the copy of election petition served upon the appellant was incomplete as the same was not accompanied by copy of the photograph. It was a photograph of a large fancy banner or a hoarding depicting two groups and the appellant present in both. Reliance was also placed on the decision of Sahodrabai. The Honble the Supreme Court held:

Nevertheless without being furnished with a copy of the photograph, the averments in para 18(b) would be incomplete as regards the allegation of the corrupt practice committed by the appellant.
For the reasons discussed in para 33, it was also observed that decision in the matter of Sahodrabai to be inapplicable. Observations in pars 39 and 41 were relied upon by learned Senior Counsel to demonstrate a test applicable for determining whether a particular document is integral part of the petition. We quote:
39. The test to be applied in determining whether the photograph referred to in para 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 pleadings.
41. It is obvious that the photograph was a part of the averment contained in para 18(b). In the absence of the photograph, the averment contained in para 18(b) would be incomplete. The photograph referred to in para 18(b) was, therefore, an integral part of the election petition.
We must say that the test indicated in the observations of the Honble the Apex Court would certainly be required to be applied while dealing with the matters under Representation of People Act. This is because the Act does not require an election petitioner to annex true copies of all the documents upon which he desires to rely upon. However, under the rules with which we are dealing, the copies of documents desired to be relied upon are required to be accompanied with the petition and, therefore, although basically a piece of evidence to be relied upon, the documentary evidence/true copies of the documents to be relied upon, are given status of an annexure to the petition and integral part of the petition. The documentary evidence in the disqualification petition under Disqualification Rules, 1987, therefore, should pass the test of being integral part of the petition because of support of the statutory provision and it may not require to pass the test as laid down in M.Karunanidhis case.

12. Advocate Shri Gangapurwala, representing respondent No. 3, has placed reliance upon observations in para 6 of the reported judgment in the matter of Suryakant Mahadik (supra), which read thus:

Page 1919 The argument of learned Counsel for the appellant is that in the absence of legible copies of those photographs, the contents of which are relied on for the allegation of corrupt practice under Section 123(3) of the Act, the relevant pleading in that behalf was not supplied to the appellant inasmuch as the copy of the election petition served on him was deficient to that extent. In our opinion, this question does not really arise in the present case since the contents of those posters have also been expressly pleaded in the election petition.
On these facts, the decision applicable is that in Sahodrabai Rai v. Ram Singh Aharwar, which clearly indicates that the failure to supply copy of such a document annexed to the election petition, the contents of which have in addition been expressly pleaded in the election petition, does not amount to non compliance of Sub-section (3) of Section 81 to attract dismissal of election petition under Section 86 of the Act.
It was in that context, it was observed that the document annexed to the petition was only evidence of the pleadings incorporated in the petition.
In fact, we have commenced discussion regarding the difference in the schemes under Representation of People Act and Disqualification Rules, 1987, with our own conclusion that there are striking differences and, therefore, the ratio, conclusions or analogy in the decisions rendered while deciding election petitions under Representation of People Act may not be applicable to the matters pertaining to disqualification references under Disqualification Act, 1987. At the cost of repetition, we may say that Disqualification Rules, 1987, require the copies of documentary evidence to be accompaniment of the disqualification petition thereby conferring upon those a status of annexure of the petition or integral part of the petition.
Advocate Shri Gangapurwala has tried to distinguish by saying that the statement containing the names and addresses of persons, who have furnished information to the petitioners and gist of such information can be termed as annexure of the petition, but not the copies of documents. We are afraid, till the time copies of documentary evidence and a statement containing names and addresses as also gist of information received by the petitioner from the informant are included in one Sub-rule 3(b) as the material required to be accompanied with the petition, they can not be distinguished as one being evidence and other being annexure. In fact, we may say that the nomenclature is immaterial whether annexure, schedule, enclosure, accompaniment or document till the time it forms an integral part of the petition, all the compliances required by the statute will have to be complied.
We may refer to Rule 6 Sub-rule (2) and reproduce only part of it for adding emphasis to our view point.
The petitioner shall satisfy himself that there are reasonable grounds for believing that a question has arisen as to whether such councillor or as the case may be, member, has become subject to disqualification under the Act. Page 1920 The legislation requires the petitioner to take precautions and present the petition only after he himself is satisfied that a Councillor or a member has incurred disqualification. The accompaniments prescribed by Sub-rule 3(b) is a provision in tune with the responsibility placed on the shoulders of the petitioner by Sub-rule (2) and, therefore, it is in the fitness to interpret that the petitioner will have to undertake a responsibility of satisfying and thereafter verifying the correctness of the contents in the documents accompanying the petition. It will be open for the petitioner to claim that the contents are true to his belief and it is not necessary that for every document, he should be able to assert correctness on the basis of personal knowledge.
On reference to Sub-rule (2) of Rule 7, it is evident that there is no option to the Collector or the Commissioner. As and when any petition is found not complying with the requirement of Rule 6, the competent authority is required to dismiss the petition and inform the petitioner accordingly. The strictness of the provision is understandable. The legislature probably desires that a representative of the people elected by his constituency should not be lightly dislodged by a legal battle.
Since Rule 3(b) requires copies of the documentary evidence to be accompanied with the petition, we believe the statute gives the documentary evidence a status of annexure or of being integral part of the petition and, therefore, compliance of Sub-rule (4) of Rule 6 regarding those documents (true copies of documentary evidence to be relied upon) is a must and failure entails the consequences as prescribed by Rule 7(2) of Disqualification Rules, 1987.
13. For the reasons discussed hereinabove, we allow the letters patent appeal. We quash and set aside the order passed by learned Single Judge on 24.4.2007 as also order passed by the Collector on 17.3.2007 and we declare that the disqualification reference fails due to non compliance of Rule 6(4) of Disqualification Rules, 1987, read with Rule 7(2).