BAIJU PRASAD SINGH v. SHEO DENI SHARMA — 1972 DIGILAW 44 (PAT)

JUDGMENT : Shambhu Prasad Singh, J. This appeal under Clause 10 of the Letters Patent of this Court is directed against an ORDER :of a learned Single Judge dismissing an application of the appellant under Articles 226 and 227 of the Constitution of India. The said application was for setting aside an ORDER :dated the 23rd of August, 1971 of respondent no. 3, Presiding Officer, Election Tribunal (Gram Panchayat), Sadar, Patna. 2. The appellant was elected as Mukhiya of Rewan Gram Panchayat within Masaurhi Anchal in the district of Patna at an election which was held on 2nd of June, 1971. Respondent nos. 1 and 2 also contested the said election for the Office of Mukhiya, but were unsuccessful. Respondent no. 1 filed a writ application before this Court challenging the election of the appellant which was numbered as C.W.J.C. 836 of 1971 and was dismissed as withdrawn on 10th of June, 1971. On 12th of June, 1971, Respondent no. 1 filed an election petition before the Election Tribunal and it was numbered as Election Petition 1 of 1971. Besides making a prayer for setting aside the election as Mukhiya of the appellant, it was further prayed therein that respondent no. 1 be declared as the elected Mukhiya. On 17th of June, 1971, the election petition was admitted by the Tribunal Notices of the election petition were issued to the parties to the petition including the appellant fixing 28th of June, 1971 as the date for appearance. According to peon's report, it was served on the appellant on 18th of June 1971. On 28th of June, 1971, the appellant filed appearance in the election case. He also filed an application for adjournment on the ground that he had to obtain copies of certain documents for the purposes of filing a written statement. On 1st of July, 1971, the adjourned date, the appellant again took time on the same ground. On 5th of July, 1971, he filed his written statement. In the written statement he alleged certain facts asserting thereby that respondent no. 1 could not be declared as a validly elected Mukhiya. One of such averments was that respondent no. 1 was disqualified for the Office of Mukhiya of the said Gram Panchayat and his nomination paper ought not to have been accepted. In the written statement he alleged certain facts asserting thereby that respondent no. 1 could not be declared as a validly elected Mukhiya. One of such averments was that respondent no. 1 was disqualified for the Office of Mukhiya of the said Gram Panchayat and his nomination paper ought not to have been accepted. It was further stated that no notice of the ejection petition had been served on the appellant till that date and he came to know of the case on 28th of June, 1971 at 9.45 A.M. at the Patna junction railway station from one Ram Shankar Sharma of village Saguni and then entered appearance on that very date and that the report of the process server was absolutely false and the same had been served Balabala. It was also stated that the appellant was ready to examine a number of persons as per list and was depositing Rs. 10/- as cost for the same. On 6th of July, 1971, the appellant filed a chalan showing deposit of Rs. 10/along with a petition which contained inter alia the following :- "That your petitioner has under Rule 81 of the G. P. Act and Rule 1959 deposited rupees ten as security amount for procuring the attendance of the P.WS. whom he wants to examine in his case.” On that very date, the appellant also filed a paper suggesting ten issues. Issue no. 2 of these issues read as follows; “Whether the ORDER :dated 5.4.71 passed by Shri R. N. Mishra, S. D. O., i.e. regarding the acceptance of nomination paper of Shri Sheo Deni Sharma is bad in law as well as illegal?" Thereafter respondent no. 1 filed a petition before the Tribunal claiming that facts alleged in paragraphs 7(d)(e),(i), 8 and 12 were re-criminative in nature and unless a separate petition was filed, the Tribunal could not go into the truth or otherwise of the allegations made therein. By its older dated 12th of August, 1971, the Tribunal refused to frame issue no. 2 as suggested by the appel1ant. Then the appellant filed a petition before it praying therein for reconsideration of the matter on the ground that issue no. 2 was a vital issue. By ORDER :dated 23rd of August, 1971, the Tribunal rejected that petition. 3. By its older dated 12th of August, 1971, the Tribunal refused to frame issue no. 2 as suggested by the appel1ant. Then the appellant filed a petition before it praying therein for reconsideration of the matter on the ground that issue no. 2 was a vital issue. By ORDER :dated 23rd of August, 1971, the Tribunal rejected that petition. 3. One of the issues suggested by the appellant was "Whether there is sufficient compliance of Rule 78 of the Panchayat Election Rules 1959?" Rule 78 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as 'the Rules') runs as follows :- "If the election petition is not dismissed under Rule 73 or 77 the Election Tribunal shall fix a date for the hearing of the petition and shall, not less than ten days before the date w fixed, cause a notice of the presentation of the petition and of the date fixed for hearing d the same together with a copy of the petition to be served on each respondent and on the Sub-divisional Magistrate, and shall forthwith forward a copy of the petition to Government." By framing this issue the Tribunal has permitted the parties to lead evidence on the question whether the notice of the election petition was served on the appellant on 18th of June, 1971 as is the peon's report, or, there was no service of the notice on him, as is his case, and he came to know of it for the first time on 28th of June, 1971. Before the learned Single Judge it was submitted on behalf of respondent no. 1 that the report of the process server was correct and the circumstances of the case showed that the said notice was served on the appellant on 18th of June, 1971. It was contended that it was apparent from the very fact that the appellant appeared before the Tribunal on the date fixed in the notice and on that date and on 1st of July, 1971 merely prayed for time on the ground of obtaining copies of certain documents and did not mention that no notice had been served upon him on 18th of June, 1971 and he came to know of the petition for the first time on 28th of June, 1971. In view of paucity of the materials on the record and also the fact that respondent no. In view of paucity of the materials on the record and also the fact that respondent no. 1 did not file any writ application before this Court challenging the ORDER :of the Tribunal framing the above-quoted issue, the learned Single Judge rightly held that he could not go into that question, refrained from giving his opinion on the point and proceeded on the assumption that the petitioner (now the appellant) learnt a bout the institution of the election case only on 28th of June, 1971, when he appeared before the Tribunal. Learned counsel for respondent no. 1 attempted before us to challenge this part of the JUDGMENT : of the learned Single Judge, but could not convince us that the learned Single Judge has committed any error in this regard. It is true that the learned Single Judge has observed-“It is well settled that the disputed question of fact cannot be decided in a writ application", and in some recent decisions the Supreme Court has observed that in appropriate cases disputed questions of fact can also be decided in writ applications. Disputed questions of facts can be decided in a writ application only if there are materials available for the purpose before the Court. In the cases where materials for deciding disputed questions of fact are not available before the Court, the Court cannot decide such questions in a writ application. The aforesaid observation of the learned Single Judge in the context it has been made means only this that as sufficient materials for deciding disputed questions of fact as to service of notice were not on the record, he was restraining himself from deciding it. Further respondent no. 1 having not filed any writ application against the Tribunal framing that issue, the question could not be gone into in a writ application filed by the appellant against the ORDER :of the Tribunal refusing to frame issue no. 2. 4. Further respondent no. 1 having not filed any writ application against the Tribunal framing that issue, the question could not be gone into in a writ application filed by the appellant against the ORDER :of the Tribunal refusing to frame issue no. 2. 4. Rule 81 of the Rules is as follows : “Where, at a trial of an election petition, any candidate other than the returned candidate claims the seat for himself, the returned candidate or any other party to the proceeding may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition bad been presented complaining against his election : "Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he had, within fourteen days of the service of notice under Rule 78, given notice of his intention to do so to the Election Tribunal, and deposited as security a sum of ten rupees only." According to the case of respondent no. 1, as the appellant failed to comply with the requirement of this rule, the Tribunal rightly refused to frame issue no. 2 as suggested by him. According to the appellant's case, he has complied with the requirements of this rule and, therefore, the Tribunal was wrong in refusing to frame that issue. In this connection it was contended before the learned Single Judge and it has been so contended before us by learned counsel for respondent no. 1 that the notice required by Proviso to the aforesaid rule must be by a formal re-criminative petition. The contention of learned counsel for the appellant was and is that no formal petition of re-crimination is required to be filed by Proviso to this Rule. According to him, only a notice to the Election Tribunal and a deposit of Rs.10/- within ten days of the service of the notice of the election petition are the requirements of this rule and if they are met with, evidence can be led to show that if the election petitioner or any other candidate would have been returned, his election would have been void. 5. Section 97 of the Representation of the People Act, 1951 corresponds to rule 81 of the Rules. 5. Section 97 of the Representation of the People Act, 1951 corresponds to rule 81 of the Rules. Section 97 runs as follows:" “When in an election petition a declaration that any Candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party any give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively. (2) Every notice referred to in Sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner." Relying on decisions of the Supreme Court in (1) Jabar Singh V. Genda Lal (A.I.R 1964 Supreme Court 120) and (2) Ravindra Nath V. Raghbir Singh and another (A.I.R. 1963 Supreme Court 300), which deal with Section 97 of the said Act, the learned Single Judge has held that a formal petition of recrimination was necessary and in absence of that, an issue like issue no. 2 could not be framed. It was contended before the learned counsel Judge by learned counsel for the appellant and has also been contended before us that provisions of Section 97 of the said Act and Rule 81 of the Rules are not in pari materia and the decisions of the Supreme Court have got no application to the facts of the present case. In support of this contention our attention was drawn by learned counsel for the appellant to the fact that rule 81 contains no provision like Sub-section (2) of Section 97. In my opinion, there is substance in the contention of learned counsel for the appellant. In support of this contention our attention was drawn by learned counsel for the appellant to the fact that rule 81 contains no provision like Sub-section (2) of Section 97. In my opinion, there is substance in the contention of learned counsel for the appellant. When the Rules were framed in the year 1959, the provisions of Section 97 of the Representation of the People Act, 1951, were there and the rule making body in its wisdom did not include a provision in the Rules similar to Section 97(2) of that Act. The decisions of the Supreme Court, referred to above, interpret Section 97 of the said Act. The ratio thereof cannot be made applicable to the instant case for interpretation of Rule 81 of the Rules. 6. Learned counsel for respondent no. 1 placed reliance on the following passage of the Supreme Court decision in (1) Jabar Singh's case :- "There are, however cases in which the election petition makes a double claim: it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that Section 100 as well as Section 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that Section 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and the se would be pleas of attack and it would be open to the returned candidate to take to these pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative Candidate. The result of Section 97 (1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counterclaim made by the returned candidate. The result of Section 97 (1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counterclaim made by the returned candidate. That being the nature of the proceedings contemplated by Section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by Section 97 (1) proviso and Section 97(2). If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under Section 100 so far as the validity of the returned candidates election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate." These observations were made by their Lordships of the Supreme Court with reference to both Section 97 (1) and (2) of the Representation of the People Act. It cannot be held on the basis of these observations that even when Rule 81 of the Rules does not contain a provision similar to Section 97(2) of the said Act, the respondent to an election petition will be debarred from leading evidence in recrimination on the ground that he has not filed a formal petition of recrimination. 7. In (2) Ravindra Nath's case, their Lordships of the Supreme Court made the following observations with reference to Section 97 of the Representation of the People Act, 1951 :- “It is only when the election petition claims a declaratian that any candidate other than the returned candidate has been duly elected that Section 97 comes into play. 7. In (2) Ravindra Nath's case, their Lordships of the Supreme Court made the following observations with reference to Section 97 of the Representation of the People Act, 1951 :- “It is only when the election petition claims a declaratian that any candidate other than the returned candidate has been duly elected that Section 97 comes into play. If the respondent desires to contest this claim by leading evidence to prove that the election at the other candidate would have been void if he had been the returned candidate and an election petition had been presented calling in question his election, the respondent must give a formal notice of recrimination and satisfy the other conditions specified in the proviso to Section 97. The notice of recrimination is thus in substance a counter petition calling in question the claim that the other candidate has been duly elected. In this background, it is not surprising that the legislature provided that notice of recrimination must be accompanied by the statement and particulars required by Section 83 in the case of an election petition and signed and verified in the like manner and the recriminator must give the security and the further security for costs required under Sections 117 and 118 in the case of an election petition. Great reliance was placed by learned counsel for respondent no. 1 en the observation of their Lordships of the Supreme Court that the notice of recrimination is thus in substance a counter petition calling in question the claim that the other candidate has been duly elected and that in this background, it is not surprising that the legislature provided that notice of recrimination must be accompanied by the statement and particulars required by Section 83 in the case of an election petition and signed and verified in like manner. In my opinion, by observing that notice or recrimination is in substance a counter petition and, therefore, Legislature provided what is there in Section 97(2) of the said Act, their Lordships cannot be deemed to have said that Section 97 (2) was redundant and even if it would not have been there, a formal petition for recrimination would be necessary. In my opinion, by observing that notice or recrimination is in substance a counter petition and, therefore, Legislature provided what is there in Section 97(2) of the said Act, their Lordships cannot be deemed to have said that Section 97 (2) was redundant and even if it would not have been there, a formal petition for recrimination would be necessary. It is true that it is desirable that a respondent to an election case, if he wants to recriminate, must bring to the knowledge of the Election Tribunal, and through it to other side, the grounds for recrimination so that the other side may be able to meet the case of the recriminator; but, it does not follow from it that a formal petition for recrimination must be filed and if it is not filed the recriminator will be debarred from leading evidence. The language of Rule 81 does not appear susceptible of such an interpretation. An, interpretation like that will be too technical. In the instant case, the grounds for recrimination good or bad were stated in Paragraphs 7 (d), (e), (i), 8 and 12 of the written statement of the appellant. The allegations in these paragraphs were re-criminative in nature was also the case of respondent no. 1 in his petition filed objecting to the framing of issue no. 2. The appellant does not want to recriminate on any other ground except those mentioned in the aforesaid paragraphs of his written statement rather he wants to limit his recrimination to issue no. 2. The petition which the appellant filed on 6th of July, 1971, along with a chalan showing deposit of Rs. 10/- was a notice to the Tribunal as required by Rule 81 of the Rules. Similarly because what had already been stated in the aforesaid paragraphs of the written statement was not restated in that petition, it cannot be held that petition was not a valid notice of recrimination within the meaning of Rule 81. When the grounds of recrimination had already been stated in the written statement, it will be too technical a view to debar the appellant from leading evidence in support of his averments of recrimination on the ground that those averments were not repeated in the petition dated 6th of July, 1971. 8. The relevant passage from the petition dated 6th July, 1971of the appellant has already been quoted. 8. The relevant passage from the petition dated 6th July, 1971of the appellant has already been quoted. It was contended by learned counsel for respondent no. 1 that since it was stated therein that Rs.10/- were being deposited as security amount for procuring the attendance of the P.Ws. whom the appellant wanted to examine in the case, it cannot be held that the deposit was under proviso to Rule 81 and would entitle the appellant to lead evidence in support of recrimination. The chalan shows that the deposit was under Rule 81 of the Rules. The petition dated 6th of July, 1971 also mentions Rule 81 of the Rules specifically. No other rule has been brought to our notice under which the appellant was required to deposit Rs. 10/- as security for examination of witnesses. It is not possible, therefore, to hold that the deposit of Rs.10/- was not a deposit under proviso to Rule 81. 9. Learned counsel for respondent no. 1 also drew our attention to Paragraph 10 of the election petition and Paragraph 12 of the written statement. Paragraph 10 of the election petition is as follows :- "That the petitioner, who was a candidate for the Office of the Mukhiya, as submitted above, had absolutely no notice about my addition of further voters because there was no publication in respect of those voters at all as required by Rule 13(1) of the Rules." Paragraph 12 of the written statement which was in reply to Paragraph 10 of the election petition is as follows :- "That the statement made in Paragraph 10 is incorrect and denied. He had full knowledge of the voters of serial nos. 1923 to 1978 as published on 15.3.1971. To this effect, the petitioner is ready to examine a number of persons as per the list. Today petitioner is depositing Rs.10/- as cost for the same. No notice of the election petition has been served on this petitioner as yet. This petitioner came to Patna on 28.6. 1971 at 9.45 A. M. and at Patna Junction he was informed by one Sri Ram Shankar Sharma of village Saguni, police station Masaurhi, district Patna about the present case. The petitioner hurriedly rushed to court and contacted with Mr. Ram Chandra Prasad, Advocate, who advised him to file a petition for time. Accordingly, petition was filed for time. 1971 at 9.45 A. M. and at Patna Junction he was informed by one Sri Ram Shankar Sharma of village Saguni, police station Masaurhi, district Patna about the present case. The petitioner hurriedly rushed to court and contacted with Mr. Ram Chandra Prasad, Advocate, who advised him to file a petition for time. Accordingly, petition was filed for time. The report of the process server is absolutely false and the same has been served bala bala. On the alleged date of service this petitioner was at Patna taking his oath which was organised by the C. P. I. at its District Head Quarter which situates in R -Block, Quarter No. 16, Road No.8, Patna". It was contended by learned counsel for respondent no. 1 that according to Paragraph 12 of the written statement also, Rs. 10/- was deposited only for examining witnesses to show that respondent no. 1 had full knowledge of the voters mentioned in that paragraph and, therefore, the said deposit cannot be held to be a deposit as security for recrimination under proviso to Rule 81 of the Rules. It has already been pointed out earlier that the chllan depositing the said amount of Rs. 10/- as well as the petition filed on 6th of July, 1971 along with the chalan state that the deposit was under Rule 81 of the Rules Further Paragraph 12 of the written statement also contains averments that the appellant had no notice of the election case before 28th of June, 1971. These averments would have been irrelevant unless Rs. 10/- was being deposited as security for recrimination as required by Rule 81. The averments as to knowledge on 28th June, 1971 only and not before that were made to show that the deposit was made within the time mentioned in Rule 81 and this was security for recrimination. Paragraph 12 of the written statement has to be read as a whole and I do not find it possible to agree with the contention of learned counsel for respondent no. 1 that on the statements made in Paragraph 12 of the written statement itself the deposit of Rs. 10/- cannot be held to be a depJsit under proviso to Rule 81 of the Rules. 10. Rule 81 of the Rules, as observed earlier, does not require any formal petition to be filed. 1 that on the statements made in Paragraph 12 of the written statement itself the deposit of Rs. 10/- cannot be held to be a depJsit under proviso to Rule 81 of the Rules. 10. Rule 81 of the Rules, as observed earlier, does not require any formal petition to be filed. It merely requires a notice to the Election Tribunal of the intention of the respondent to the election case to recriminate. It was contended by learned counsel for the appellant that a notice of recrimination as required by Rule 81 may be given even orally. In support of this contention he relied on the decision of the Supreme Court in (3) Nilkantha Sidramappa Ningashetti V. Kashinath Somanna Ningashetti and others (A. I. R. 1962 Supreme Court 666). In that case while dealing with Section 14(2) of the Arbitration Act (1940) it was held that notice under Section 14 (2) by the Court to the parties of the filing of the a ward need not be a notice in writing and could be given orally. Since the petition dated 6th of July, 1971 was a notice in writing of the intention of the appellant to examine witnesses in recrimination, it is not necessary in this case to decide whether the notice of recrimination under Rule 81 can be given to the Tribunal orally or not. 11. After having carefully considered the contentions of learned counsel for both the parties and JUDGMENT : of the learned Single Judge of the Court, I am of the opinion that the Election Tribunal after having framed an issue as to whether Rule 78 of the Rule was complied with or not, ought not to have refused framing of issue no. 2 on the ground that no formal petition of recrimination was filed. A court of justice has to look at the substance of the things and not on mere form. The averments in the written statement clearly indicated the ground on which the appellant wanted to recriminate. Respondent no. 1 is not going to be prejudiced in any way if witnesses are examined by the appellant in 'support of those averments. However, in my opinion, it is not a case where this Court should direct outright the Election Tribunal to frame issue no. 2. Respondent no. 1 is not going to be prejudiced in any way if witnesses are examined by the appellant in 'support of those averments. However, in my opinion, it is not a case where this Court should direct outright the Election Tribunal to frame issue no. 2. The proper procedure in this case will be that the Election Tribunal should try first as a preliminary issue the issue as to the compliance of Rule 78. If the issue is answered in the affirmative, issue no. 2 need not be framed. If that issue is answered in the negative, issue no. 2 ought to be framed. 12. In the result, the Letters Patent Appeal as well as the application of the appellant under Articles 226 and 227 of the Constitution are allowed and the Election Tribunal is directed to proceed with the hearing of the election case according to the directions given in the preceding paragraph. In the circumstances, there will be no ORDER :as to costs. S. P. SINHA, J. I agree. Appeal allowed.