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1972 DIGILAW 6 (PAT)

Azizul Husnain v. G. Mishra

1972-01-06

KANHAIYAJI

body1972
Judgment Kanhaiyaji, J. 1. This is an application under Article 227 of the Constitution of India to quash the order dated 7-7-1970 passed by the Gram Panchayat Election Tribunal, Motihari. The petitioner was the successful candidate for the post of Mukhia for Sonwat Gram Panchayat within Harsidih Police Station, Block Paharpur in the district of Champaran, in the election held on 17-1-1970. Opposite party No. 2 Jagat Narain Prasad filed an election petition under the Bihar Panchayat Election Rules, 1959 thereinafter referred to as the Rules) challenging the validity of the election of the petitioner on several grounds. 2. The petitioner on notice appeared before the Election Tribunal and it was submitted on his behalf that the election petition was not verified in the manner laid down in the Code of Civil Procedure as required under the Rules. Therefore, the election petition should be summarily dismissed in accordance with the provisions of Rule 77 of the Rules. From the perusal of the election petition the Election Tribunal found that the verification of the petition was not made on oath or on solemn affirmation. On consideration, however, the Tribunal came to the conclusion that it could allow amendment to cure the defect in the verification before the petition was taken up for hearing. The Tribunal took the view that the wordings of Rule 77 to the effect that "if there is any failure to comply with the provisions of ........ Sub-rule (1) and Clause (a) of Sub-rule (2) of Rule 75......" mean that the petitioner should b" given reasonable chance to comply with the provisions of the rules referred thereto, otherwise the petitioner would not have been given chance to be heard before dismissal of the petition. It also referred to Rule 87 and the provisions of the Code of Civil Procedure in ordering amendment to cure tke defect in the verification. 3. Learned counsel appearing for the petitioner has submitted that the view taken by the Election Tribunal is erroneous and must be set aside. In order to appreciate his argument it is necessary to set out the statutory provisions having bearing on this question. Rules 72, 73, 75, 77, 79 (1) (2) and 87 read thus:- - "72.(1) An election petition calling in question any election may be presented to the Election Tribunal by any candidate or voter. In order to appreciate his argument it is necessary to set out the statutory provisions having bearing on this question. Rules 72, 73, 75, 77, 79 (1) (2) and 87 read thus:- - "72.(1) An election petition calling in question any election may be presented to the Election Tribunal by any candidate or voter. (2) An election petition against a returned candidate shall be presented to the Election Tribunal within thirty days from the date of the declaration of the result of the election. Every election petition shall be tried as expeditiously as possible. (3) When the period prescribed by sub-rule (2) for the presentation of an election petition expires on a day which is a public holiday within the meaning of Sec.25 of the Negotiable Instruments Act, 1881, or has been notified by the State Government to be observed as a holiday in Government offices or courts, the petition shall be considered as having been presented in due time if it is presented on the next succeeding day which is neither such public holiday nor a day so notified." "73. An election petition shall be accompanied by a Treasury Challan showing a deposit of ten rupees under the head LII -- Miscellaneous -- Receipts, under the Panchayat Act--Fees, fines and forfeiture under Bihar Fanchyat Eaj Act, 1947 --Other receipts." "75.(1) An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall, where necessary, be divided into paragraphs numbered consecutively. It 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. (2)(a) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full statement as possible as to the names of the parties alleged to have committed any corrupt or illegal practice and the date and place of the commission of each such practice. (b) The Election Tribunal may upon such terms as to costs and otherwise as it may direct, at any time, allow the particulars included in the said list to be amended or order such further and better particulars in regard to any matter referred to therein to be furnished as may, in its opinion, be necessary for the purpose of ensuring a fair and effectual trial of the petition: Provided that the Election Tribunal shall not by means of any such amendment allow particulars to be furnished of any corrupt or illegal practice other than a corrupt or illegal practice set forth in the list furnished by the petitioner under Clause (a)." "77. If there is any failure to comply with the provisions of sub-rules (2) and (3) of Rule 72, Rule 73, sub-rule (1) and Clause (a) of sub-rule (2) of Rule 75, the election Tribunal shall summarily dismiss the election petition: Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard," "79.(1) The trial shall be held at such place or places as may be appointed by the Election Tribunal. (2) Subject to the provisions of these rules, every election petition shall be tried by the Election Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: Provided that it shall be sufficient for the Election Tribunal to make a memorandum of the substance of the evidence of any witness examined by him, and it shall not be necessary for the Election Tribunal to take down the evidence of any witness at length unless he thinks fit for any special reason to do so: Provided further that so long as the election petition is not disposed of, the Election Tribunal shall not grant any temporary injunction restraining any respondent from exercising any right or performing any duty which such respondent is entitled to, or required by law to perform. ******** "87. In respect of any matter not specifically provided for in these rules, the Election Tribunal shall proceed in such manner as it considers proper in the circumstances of the case. 4. ******** "87. In respect of any matter not specifically provided for in these rules, the Election Tribunal shall proceed in such manner as it considers proper in the circumstances of the case. 4. The provision of the Code of Civil Procedure relating to verification in Order VI, Rule 15, Patna amendment, is as follows:- - "Save as otherwise provided by any law for the time being in force, the facts stated in every pleading shall be verified by solemn affirmation or on oath of the party or of any of the parties pleading or of some other persons proved to the satisfaction of the Court to be acquainted with the facts of the case, before any officer empowered to administer oath under Sec.139 of the Code." 5. Admittedly the facts stated in the petition filed before the Election Tribunal were not verified by solemn affirmation or on oath. The question is what is the legal consequence of this infringement. This takes us to the construction of Rule 77. In Satyanand Singh V/s. Bnihlal Singh (C. W. J. G No. 237 of 1965 decided on 12-12-1966 -- Pat), a Bench of this Court has held that the Election Tribunal has no discretion but to dismiss the election petition under Rule 77 if there is non-compliance with the provisions of Rule 75 (1) (2) (a). 6. The nest question which arises for consideration is whether the Election Tribunal would have allowed the amendment in the verification of the election petition. The Election Tribunal has no power under the Rules to allow amendment of the verification. It has only power under Rule 75 (2) (b) to allow the particulars included in the list of the corrupt and illegal practices to be amended. As stated above, Rule 77 is not directory but mandatory. The Election Tribunal has no discretion but to dismiss the election petition summarily if there is no compliance of the provisions noted in Rule 77. The provisions of the Code of Civil Procedure apply subject to the provisions of the Rules. There is no provision in the Code of Civil Procedure for dismissal of a plaint for want of proper verification. The provisions of the Code of Civil Procedure apply subject to the provisions of the Rules. There is no provision in the Code of Civil Procedure for dismissal of a plaint for want of proper verification. When the Rule provides that the defective verification will be a ground for dismissal of the petition under Rule 77 and when the provisions of Rule 77 are mandatory, I do not think the Election Tribunal is competent to allow amendment for the reasons stated in its order. The view taken by a Division Bench of this Court in Raja Ram Sahu y. Brijraj Bahadur (ILR 38 Pat 95), dealing with an election petition under the Bihar Municipal Election and Election Petition Rules will be applicable in the present case, because the rule regarding verification of election petition (Rule 65) is very similar to Rule 75 of the Rules. There the verification was held to be not in accordance with the provisions of the Code of Civil Procedure (Order VI Rule 15) then in force and Kanhaiya Singh, J., who delivered the judgment after discussing the entire case law, held that non-compliance with the provisions of that rule would be fatal. It is true that when the-aforesaid judgment was delivered in 1958 the later Patna amendment of 1961 by which verification was required to be done either by solemn affirmation or on oath, bad not come into force, but the principle laid down by that Bench to the effect that if an election petition is not verified in the manner required by the Code of Civil Procedure, the election petition should be summarily dismissed, would apply equally here. 7. The provisions of Rule 87 of the Rules can be taken recourse to only in respect of any matter not specifically provided for in the Rules. The consequences of non-compliance with some of the rules in mandatory terms are contained in Rule 77. Therefore, it cannot be said that what the Election Tribunal would have done when there was no compliance of Rule 75 (1) is not specifically provided in the Rules. In my opinion, the Election Tribunal has illegally taken recourse to the provisions of Rule 87 in allowing amendment. 8. For the reasons stated above, I hold that the order dated 7-7-1970 allowing amendment of the verification portion of the election petition is illegal and it must be set aside. 9. In my opinion, the Election Tribunal has illegally taken recourse to the provisions of Rule 87 in allowing amendment. 8. For the reasons stated above, I hold that the order dated 7-7-1970 allowing amendment of the verification portion of the election petition is illegal and it must be set aside. 9. As a result the application Is allowed, the impugned order is set aside and the Election Tribunal is directed to dispose of the election petition according to law. As the other side has not appeared to oppose this application there will be no order for costs.