ABDUL QASIM KHAN v. NAURANG SINGH — 1973 DIGILAW 239 (PAT)

JUDGMENT : Madan Mohan Prasad, J. 1. This is an application under Articles 226 and 227 of the Constitution of India for the purpose of quashing an ORDER :passed by the Election Tribunal setting aside the election of the petitioner as Mukhia of a Gram Panchayat. 2. The petitioner's case is as follows. The election for the office of Mukhia of the Gram Panchayat of Bhadeya in the district of Gaya was to take place and the petitioner and the first respondent besides one more person filed their nomination papers which were accepted. Thereafter' the third person withdrew from the contest and an election was held as a result of which the petitioner secured 712 votes whereas the first respondent got 705 votes and, therefore, the petitioner was declared duly elected. The first respondent then filed an election petition before the Tribunal the petition was not verified in accordance with law nor was the schedule of, corrupt practices attached to the petition verified as required by rules nor was it supported by any affidavit as required by rules nor was it supported by any affidavit. It should have, therefore, been dismissed. The Election Tribunal, however, proceeded to hear the matter and without settling any issues or taking any evidence or affidavits the Tribunal held a recounting of votes and as a result thereof set aside the election of the petitioner and declared the first respondent as duly elected. The petitioner was then asked to hand over charge to the respondent but he has not done so. Hence this application for quashing the ORDER :of the Tribunal. 3. A counter-affidavit has been filed by the first respondent. It is stated therein that the counting of the votes at the election and the announcement of the result, was not correct and fraud had been practised therein and the Tribunal, therefore, has rightly held recounting. It is further said that no objection had been raised by the petitioner to the aforesaid recounting and in fact he had agreed to it and thus it is not open to him to challenge that. With regard to verification of the election petition it is stated that the petitioner had not taken any objection thereto and that it was properly verified as required by law. With regard to verification of the election petition it is stated that the petitioner had not taken any objection thereto and that it was properly verified as required by law. It is also said that the only issue involved in the case was known to both the parties and it required no evidence or affidavit and the questions do not arise. 4. Learned counsel for the petitioner has raised the following points. Firstly, that the petition not being verified or supported by any affidavit and there being no list of corrupt practices accompanying the petition as required by Rule 75 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as 'the Rules') and the defect being fatal the Election Tribunal should have dismissed the petition under Rule 77 thereof. Secondly, that the recounting was improper for the reasons (a) that no case had been made out in the election petition by disclosing materials facts, (b) that the Tribunal had framed no issue nor taken any evidence, and (c) that the Tribunal has given no reasons for accepting or rejecting certain votes at the recounting. 5. To take up the first point it will be convenient 'to refer to the relevant provisions in Rules 75 and 77 of the-Rules. Rule 75 is as follows :- "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 which the petitioner alleges, 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 or any corrupt or illegal practice other than a corrupt or illegal practice set forth in the list furnished by the petitioner under Clause (a)." Rule 77 provides as follows : "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. " It is thus obvious that the election petition as well as the list of corrupt practices accompanying the petition have to be verified in the manner laid down in the Code of Civil Procedure (hereinafter referred to as 'the Code', for verification of pleadings. The aforesaid provision is to be found in ORDER :VI Rule 15 of the Code which as amended by this Court is as follows :- "(1) 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 one of the parties pleading or of some other person proved to the satisfaction of the court to be acquainted with the facts of the case, before any officer empowered to administer oath under Section 139 of the Code. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon inform1tion received and believed to be true. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon inform1tion received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." Turning to Section 139 of the Code we find the following provision: In the case of any affidavit under this Code (a) any Court or Magistrate, or (b) any officer or other person whom a High Court may appoint in this behalf, (c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, may administer the oath to the deponent. A plain reading of the aforesaid provisions thus shows that an election petition has to be verified by solemn affirmation or on oath before any court or Magistrate or any officer appointed by the High Court or by any other court empowered. 6. Learned counsel for the respondents has, however, urged that ORDER :VI Rule 15 of the Code as amended by this Court does not require a solemn affirmation to be made in the presence of any officer empowered to administer oath under Section 139 of the Code. He has invited me to read the aforesaid provision so as that the words "before any officer empowered to administer oath under Section 139 of the Code do not govern the words "by solemn affirmation" but only the words on "oath". It is said that it is enough if the petition contains the solemn affirmation of declaration to the effect that the contents of the petition are true to his knowledge or information and belief. I am unable to accept this contention. 7. The words "solemn affirmation" according to the shorter Oxford' English Dictionary, volume I, page 131, mean a solemn declaration having the value and penalties of an oath, by persons, who conscientiously decline an oath. In Bouvier's law Dictionary the word "affidavit" is said to mean "a statement or declaration reduced to writing or sworn to or affirmed before some officer who has the authority to administer oath or affirmation. In Bouvier's law Dictionary the word "affidavit" is said to mean "a statement or declaration reduced to writing or sworn to or affirmed before some officer who has the authority to administer oath or affirmation. According to the Chamber's Dictionary (page 17) "to affirm" means "to declare formally without an oath" and "affidavit" means a written declaration on oath" It will thus appear that solemn affirmation is made by a person who does not want to take oath. There are thus two ways which may be adopted by the person making an affidavit. One is by solemnly affirming the facts to be true and the other is by swearing in the name of God the facts to be true. An affidavit may thus be either on solemn affirmation or on oath. The word "affidavit" thus is said to embrace declaration either sworn to or affirmed. Bouvier's Law Dictionary goes as far as saying that the oath or affirmation is to be made before an authority appointed to administer oath or affirmation. It is thus difficult to accept the interpretation put upon this provision of law by learned counsel for the respondents. It is not possible to read the word8 "before any officer empowered to administer oath" mentioned in Rule 15 of ORDER :VI of the Code so as to govern merely oath and not solemn affirmation. In the view which I have taken I am supported by the observations of learned Judges of this Court in the case of (1) Radhakrishna Das and another v. Hari Naik (A.I.R. 1941 Patna 172, at page 172, column 2). In this case their Lordships were concerned with the question whether the application presented by the petitioner had been properly verified as required by Rule 3, Chapter III of the Rules of this Court. There was no affidavit in support of the statements made in the petition nor had the petitioner appeared before the Commissioner for oaths to verify them by his solemn affirmation. He had merely signed the declaration a t the end of the petition. The argument raised was that it was not necessary for the petitioner to verify it in the presence of a Commissioner for oaths or any other officer and all that he was required to do was to verify it in the manner in which pleadings were verified. He had merely signed the declaration a t the end of the petition. The argument raised was that it was not necessary for the petitioner to verify it in the presence of a Commissioner for oaths or any other officer and all that he was required to do was to verify it in the manner in which pleadings were verified. This argument was repelled, but their Lordships pointed out some lacuna in the rules, as a result of which it appears the said Rule 3 was amended vide Correction Slip No. 1 of file No. X-1 1939, dated the 25th November 1940. Their Lordships observed as follows :- "Besides the use of the words 'solemn affirmation' suggests that it is to, be made before a court or some person otherwise...." 8. Learned counsel for the respondents has drawn my attention to Rule 3 under Chapter III of Part II of the Rules of this Court and has urged on that basis that there is a distinction between "solemn affirmation" and "oath". Rule 3 as it stands now is as follows:- "The facts stated in every petition shall be verified either by solemn affirmation or on oath of the petitioner or by a separate affidavit, annexed to the petition the solemn affirmation or oath being made in every case before a commissioner for affidavits or other officer appointed for the purpose. (2) Affidavits may also be filed in support of facts brought to the notice of the Court otherwise than by petitions referred to in Sub-rule (1). The solemn affirmation or oath required for such affidavits shall also be made before the Commissioner for affidavits or other officer appointed for the purpose." It cannot be disputed by anyone that there is a difference between solemn affirmation and oath. The very dictionary meaning shows the difference. The question raised is that a solemn affirmation need not be made in the presence of an officer empowered under Section 139 of the Code. There is nothing in this rule which would suggest such an interpretation. Chapter III in which this rule occurs provides for general rules regarding applications and affidavits." The requirement of the rule is that every petition has to be verified either by solemn affirmation or on oath or by a separate affidavit. There is nothing in this rule which would suggest such an interpretation. Chapter III in which this rule occurs provides for general rules regarding applications and affidavits." The requirement of the rule is that every petition has to be verified either by solemn affirmation or on oath or by a separate affidavit. It, however clearly lays down that the solemn affirmation or oath has to be made in every case before the Commissioner for affidavits or other person appointed. The requirements similar with regard to the affidavit annexed to the petition. The rule does not, therefore support the contention of learned counsel. 9. It is thus apparent that an election petition has to be in accordance with Rule 75 of the Rules and thus to be verified either on solemn affirmation or on oath before an officer appointed to administer oath under Section 139 of the Code. It is also clear that the list of corrupt practices mentioned in Sub-rule (2) of Rule 75 has also to be verified in like manner. It is further clear that if there is any failure to comply with Sub-rule (1) or Clouse (a) of Sub-rule (2) of Rule 75 the Election Tribunal has to summarily dismiss the election petition. 10. It is relevant at this stage to refer to a decision of a Full Bench of this Court (2) Letters Patent Appeal No. 37 of 1971 (Saratchandra Mandal V. Phani Bhusan Singh and others) (1974 P. L. J. R. 1) disposed of on the 10th September, 1973. The question of law referred to the Full Bench was- "Whether an Election Tribunal has got power to allow amendment of the verification of an election petition challenging the election of a Gram Panchayat in this state, if it is not verified in accordance with the requirements of the Code of Civil Procedure and whether it is imperative• for the Tribunal to dismiss the petition without affording an opportunity to the election petitioner for amending it? Untwalia, C. J., the other learned Judges agreeing with him, held that the provisions contained in Rule 75 (1) are mandatory and in view of Rule 77 if there is any failure to comply with the provisions of Sub-rule (1) of Rule 75 the election petition has to be summarily dismissed by the Tribunal. On the question of amendment it was held. " . . . . On the question of amendment it was held. " . . . . if there is no verification at all in accordance with ORDER :VI Rule 15, or if there is a verification but it is so very defective that in the eye of law, there is failure to comply with the requirements of ORDER :VI Rule 15 then, in that event the Election Tribunal cannot take recourse to its power under the Code which it derives under Rule 79(2) for the trial of election petition. But there may be a case where there is sufficient compliance with the requirements of Rule 75(1) although there may not be literal compliance and there is some defect of a minor character.... If there is sufficient compliance with the requirements of the Rules, even though there may not be full compliance or compliance to the hilt, it will be difficult to say that there is failure to comply with any provision of the rule". Ultimately it was held :- " .... that the Election Tribuna1 has got power to allow amendment of the verification of an election petition challenging the election of a Gram Panchayat in this State, if it is not verified in accordance with the requirements of the Code, only if the defects or the cumulative effect of the defects is of minor nature so as not to take the matter out of the realm of the rule of sufficient compliance with the requirements of the Rules. If there is sufficient compliance, literal compliance is not necessary. In many cases of this type amendment may not be necessary or possible. But if there is no sufficient compliance, then it is imperative for the Tribunal to dismiss the election petition. It cannot afford to give an opportunity to the election petitioner for amending the election petition for removal of major and fatal defects." 11. The question, has, therefore, to be answered" in the instant case whether the defect pointed out in respect of verification of the election petition" is a major" one and thus fatal. The election petition is produced as Annexure 1. It appears therefrom that at the end of the petition the verification is in the following terms "I, Naurang Singh son of Mossahib Singh do hereby solemnly declare that the contents of this election petition are true to the best of my knowledge and belief. The election petition is produced as Annexure 1. It appears therefrom that at the end of the petition the verification is in the following terms "I, Naurang Singh son of Mossahib Singh do hereby solemnly declare that the contents of this election petition are true to the best of my knowledge and belief. Verified and signed at Gaya the 2nd day of June, 1971. There is no affidavit in support of this verification. In other words, there is no affirmation or oath declaring the facts to be true made before any officer empowered under section 139 of the Code. It is thus a case where there is no verification at all in accordance with ORDER :VI Rule 15 of the Code. This is undoubtedly a major defect and in view of the Full Bench decision this could not be cured the Election Tribunal having no power to allow an amendment thereof. The second defect is that the contents are said to be true to the best of the petitioner's "knowledge and belief". It has not been specified as to which statements are true to his knowledge and which to his belief. This, however, has been held by the Full Bench to be a case of minor defect and the Election Tribunal could afford an opportunity to the petitioner to amend the verification suitably. In view, however, of the first defect pointed out above which is fatal there is no escape from the conclusion that the petition was not verified in the manner required by law and thus the Election Tribunal had no jurisdiction to allow this defect to be removed and it had no option but to dismiss the election petition after giving the election petitioner a proper opportunity of hearing as required by Rule 77. 12. The is yet another defect with which the election petition suffers. It appears therefrom that there are a number of allegations of corrupt practices made in the petition itself. It is said that the presiding officer was "hand in gloves" with respondent no. 1, that he had illegally rejected many ballot papers, that he had ousted the polling agent of the petitioner and "it is suspected that he affixed seal on some 80 ballot papers in favour of respondent no. It is said that the presiding officer was "hand in gloves" with respondent no. 1, that he had illegally rejected many ballot papers, that he had ousted the polling agent of the petitioner and "it is suspected that he affixed seal on some 80 ballot papers in favour of respondent no. 1 that he had made an announcement at the end of the poll that 430 ballot pa per were issued to the voters but ultimately 510 ballot papers were counted, that votes were cast in the name of dead and non-existent persons also, that the counting of the ballot papers had been done in a mala fide and illegal manner etc. It appears from paragraph 4 of the election petition that it is stated that the details of the booth wise results as announced are set forth in schedule A. There is such a schedule attached to the election petition. The point which arises is that there is no separate list of corrupt practices accompanying the election petition as required by Sub-rule (2) of Rule 75. The schedule mentioned above merely gives "the details of results." It is thus obvious that it is not a list of corrupt practices. It may further be mentioned that schedule A has not even been signed by the election petitioner muchless verified or supported by any affidavit stating on oath or affirmation the, particulars to be true. Thus, neither there is a list of corrupt practices nor even if schedule A be deemed to be such a list, it is verified in the manner required by ORDER :VI Rule 15 of the Code. 13. A reference to Sub-rule (2) of Rule 75 will show (1) that the election petition has to be "accompanied by a list of corrupt practices", (2) it has to be verified in the manner required for, verification of pleadings by the Code, (3) it has to set forth full particulars of any corrupt or illegal practice which the petitioner alleges, and (4) it has to contain as full statements as possible regarding the name of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice. It is obvious that the rule making authority laid down these requirements with a view to ensure that the election petitioner made allegation of corrupt practices pleading his oath or affirmation in support thereof so that he could be held responsible for the statements aforesaid and further in ORDER :that the particular of corrupt practices should be so full and specific that they may give sufficient notice to the respondent as also lead the Tribunal to know specifically what the petitioner alleges and to decide thereupon. In case there is an absence of such a list the safeguards which the rule making authority had in mind will be set at naught. Even so if there is a list of corrupt practices but it is not signed and verified in the manner required it will have the same result., That is the reason why the .rule making authority has taken care to say in Clause (b) of Sub-rule (2) that the particular given in the list may be allowed to be amended or further and better particulars to be given but they have to be only in regard to any matter referred to in the list. The proviso specifically lays down that by means of such an amendment the Tribunal shall not allow particulars other than those set forth in the list to be furnished. The right of amendment or supply of better particulars is thus limited to the matters already raised in the list of corrupt practices. It follows therefrom that the Tribunal has no jurisdiction to allow the election petitioner to submit a fresh list of corrupt practices. This conclusion is supported by the provision of Rule 77 which lays down that if there is any failure to comply with the provisions of Clause (a) of Sub-rule (2) of Rule 75 the Election Tribunal shall summarily dismiss the election petition. Thus in a case where corrupt practice is alleged to have been resorted to at the election and there is no list of corrupt practices annexed to the petition it is violation of the provision of Clause (a) of Sub-rule (2) of Rule 75. Thus in a case where corrupt practice is alleged to have been resorted to at the election and there is no list of corrupt practices annexed to the petition it is violation of the provision of Clause (a) of Sub-rule (2) of Rule 75. Again if such a list has been tiled but it is not signed and verified in the manner required by ORDER :VI Rule 15 and the defect in respect of verification is not a minor defect and cannot be deemed to be a sufficient compliance of the rule, it is a violation of the mandatory provision of the aforesaid sub-rule. It is obvious that the provision of Clause (a) of Sub-rule, (2) of Rule 75 in respect of the petition being accompanied by a list and the list being signed and verified is mandatory in nature because Rule 77 entails a summary dismissal of the election petition on the failure to comply with the aforesaid provision. 14. In the instant case the election petition thus suffered from the defect of not-compliance with the provisions of Clause (a) of Sub-rule (2) of Rule 75 also in as much as no list of corrupt practices accompanied the petition and even if what was filed as a schedule be taken to be such a list it was not signed or verified at all. The defect is obviously fatal and the Election tribunal had no jurisdiction but to dismiss the election petition under Rule 77, after giving the petitioner an opportunity of being heard. 15. Learned counsel for the petitioner has placed reliance on two decisions of a learned single judge of this Court, one in the case of (3) Dhananjay Mandal and another v. Sudhangsu Mandal and others (C.W.J.C. No, 1776 of 1970 disposed of by S.N.P. Singh, J. on the 2nd November, 1973 where there was a verification in almost the same manner as in the instant case but it was not supported by an affidavit. His Lordship held that it was a major defect and the tribunal could not have allowed any amendment of the petition by filing the affidavit on support of the verification. His Lordship held that it was a major defect and the tribunal could not have allowed any amendment of the petition by filing the affidavit on support of the verification. In another case of (4) Badrul Haque V. Priyabrata Narain Singh and others (C.W.J. C. No. 793 of 1971) disposed of on the 2nd November, 1973, where there was no affidavit in support of the verification, the sane learned judge held likewise, Thus in the view which I have taken I am supported by these two decisions. 16. There is, however, another ground raised before me in this aspect. It has been urged that the petitioner had not specifically raised before the tribunal the objection in respect of the improper verification or absence of affidavit or absence of list of corrupt practices and, therefore, he ought not to be allowed to raise the point in this Court. The written statement filed before the tribunal by the present petitioner has been produced. It appears that the very first objection raised by the petitioner was that the application as framed was not maintainable. The second was "that the election petition has not been presented in accordance and in conformity with the provisions of the election rules". The third was that "the election petition is fit to be rejected as it is not accompanied with a requisite list setting forth full particulars of the" corrupt and illegal practice referred to in the election petition". Reading the three objections aforesaid it is quite obvious that the present petitioner had raised before the Tribunal by ground no. 2 the objection that the petition was not in accordance with the provisions of the rules. It is well known that a written statement does not have to contain arguments in support of a case made therein. It is true that the second objection aforesaid does not say in so many words that the verification was not supported by an affidavit or that it did not say as to which statements were true to the knowledge and which to the belief etc. These are obviously matters of details which can be pointed out at the hearing itself. The whole purpose of pleadings is to give the other party an opportunity of meeting a case and the court has to restrict the parties to its pleadings. These are obviously matters of details which can be pointed out at the hearing itself. The whole purpose of pleadings is to give the other party an opportunity of meeting a case and the court has to restrict the parties to its pleadings. The parties have right to lead evidence and raise arguments in support of their pleadings. When the present petitioner had stated before the Tribunal what he did by way of the second objection, in my view, it cannot be said that the point had not been raised viz., the election petition was not in accordance with Rule 75 (1). The third objection is so specific that there is no room for the argument that the point regarding the absence of list of corrupt practices was not raised before the Tribunal. There is thus no escape from the conclusion that the points raised by the petitioner in this Court have not been raised for the first time. 17. In support of his argument learned counsel has placed reliance on the decision of the Division Bench in the case of (2) Saratchandra Mandal (1974 P.L.J.R. 1). After the question of law formulated by the Bench had been answered by the Full Bench, the learned Judges who ultimately disposed of the case held that in the case before them the point regarding the 'defect" in verification had not been raised by the petitioner before the Tribunal and could not be allowed to be raised in this Court. There were several considerations leading to this conclusion. The verification was as follows :- "I do hereby solemnly declare and affirm that the statements made in this petition are true to the best of my knowledge, belief and information and I sign this verification at Dhanbad on 26.6.1969." Sd/- Saratchandra Mandal. Thus it did not state that the contents of such and such paragraphs were true to his knowledge and contents of such and such, to his belief. In that case, the learned Judges had pointed out that the written statement before the Tribunal merely stated that the application was not legally maintainable. The defect in verification was held to be curable by amendment. The question was whether to send back the case to the Tribunal. In that case, the learned Judges had pointed out that the written statement before the Tribunal merely stated that the application was not legally maintainable. The defect in verification was held to be curable by amendment. The question was whether to send back the case to the Tribunal. It appears that the learned Judges found that an issue had been raised on the point of maintainability, evidence was led on an point and the respondent had not been prejudiced by the defect in the verification and further they found that the case was being decided after more than a year and the records before the Election Tribunal are destroyed after a period of one year and thus they came to the conclusion that it was not necessary to send the case back to the Tribunal. Circumstances in the instant case before me are entirely different inasmuch as no issues were framed, no evidence was led and the defects were fatal and, more important than these that the point had been raised by the petitioner but not decided. As I have pointed out there is a specific mention in the objection of the election petition not being in accordance with the provision of the rule, the list of corrupt practices not having been filed at all and further there was a prayer in the written statement that the election petition be rejected. Further, in the instant case the objection is entirely different inasmuch as there was no affidavit at all and thus no solemn affirmation or oath in support of the application, which is a fatal defect. On facts, therefore, the instant case is different and learned counsel can derive no support from the decision in the case aforesaid. 18. The question may be viewed in another aspect. On facts, therefore, the instant case is different and learned counsel can derive no support from the decision in the case aforesaid. 18. The question may be viewed in another aspect. In view of a large number of decisions of this Court to the effect that the provisions of Rule 75(1) are mandatory and in view of the full Bench decision holding these decisions to be correct, subject to the exception that in cases where sufficient compliance with the rule is found, it will not be deemed to be a case of non-compliance or where requirements which are not essential or directory are not fulfilled, it will not be a case entailing dismissal, it cannot be said that the complete absence of verification by oath or solemn affirmation will not be deemed to be a non-compliance with a mandatory provision relating thereto in Rule 75(1). In the case of (5) Satyanand Singh V. Bujhlal Singh and others (1967 Bihar Law Journal Reports 439) there was neither verification on solemn affirmation nor on oath as required by ORDER :VI Rule 15 of the Code as amended by this Court in 1961 and the defect was held to be fatal and thus entailing the dismissal of the petition under Rule 77. In respect of the aforesaid decision of a Division Bench Untwalia, C. J. observed in the JUDGMENT : of the Full Bench:- “So far as the rules are said to be mandatory, the view expressed in that decision does not require any modification.” The aforesaid decision has thus not been overruled in this respect by the Full Bench. In fact the position was similar in the case of (6) C.P. Sinha V.I.P. Mahton (I.L.R, 30 Patna 1257) though it was a case under the Bihar District Board Election Petition Rules, inasmuch as there was a complete absence of verification of the list of corrupt practice and the verification was supplied after the expiry of the period of limitation for filing of the election petition. The learned Judges had held that the Election Commissioner had no power to allow curing of the defect of the kind that was there in that case. The learned Judges had held that the Election Commissioner had no power to allow curing of the defect of the kind that was there in that case. The learned Chief Justice in respect of this decision says : "Broadly speaking, I am in respectful agreement with the view expressed, in this case subject to the riders which I have mentioned above.” The riders are in respect of sufficient compliance with the rule and in respect of some matters contained in Rule 75 (1) which are directory in nature. A similar decision was given in the case of (7) Raja Ram Sahu V. Brijraj Bahadur (I.L.R. 38 Patna 95) which was a case under the Bihar Municipal Election and Election petition Rules where it was held that provisions were mandatory and that the election petition could be dismissed for a defect in the verification even at the time of its final hearing. The learned Chief Justice in the Fun Bench JUDGMENT : found himself, broadly speaking to be in agreement with the view expressed in this case. I have already referred to the case of Satyanand Singh which followed the aforesaid two decisions. In the case, of (8) Dhani Lal Mishra V. Dwarkanath Mishra (1967 Bihar Law Journal Reports 86) Kamla Sahai, J. had held that the verification could be amended and "Rule 77 cannot be construed to provide a prohibition against the authority of the Tribunal to allow amendment of the election petition." In that case only two signatures had been put and there was no verification at all. The learned Chief Justice says :- "Amendment in accordance with the power conferred by ORDER :VI Rule 17 of the Code, in my opinion, cannot be allowed for curing a defect of the kind which was there in the election petition and which was the subject matter of consideration in Dhaini Lal Mishra's case. The learned Chief Justice says :- "Amendment in accordance with the power conferred by ORDER :VI Rule 17 of the Code, in my opinion, cannot be allowed for curing a defect of the kind which was there in the election petition and which was the subject matter of consideration in Dhaini Lal Mishra's case. I, therefore, say and say so respectfully, that the view expressed by the learned single judge was not correct." The learned Chief Justice referred to two unreported decisions of this Court in the cases of (9) Upendra Jha V. Karim Khan and others (C.W.J.C. No. 28 of 1965) and (10) Rameshwar Mahto and another V. Election Tribunal, Biharshariff and others (C.W.J.C No. 1018 of 1965) both decided on the 19th December, 1966 by U.N. Sinha, J. and the case of (11) Kishunlal Yadav V. Sihip Lal Yadav and others (C.W.J.C. No. 549 of 1966) decided on the 7th February, 1967 by G.N. Prasad, J. and said :- "The views expressed so far by the Patna High Court, if I may say so with respect, are to be appreciated with the modification and the rider which I have put earlier in my JUDGMENT :. Subject to them I respectfully agree with the views." It will thus follow from the several decisions mentioned above that there is a complete absence of verification of the election petition or there is a similar major defect in such verification the election petition has got to be dismissed under Rule 77. There in no decision brought to my notice except the case of (8) Dhani Lal Mishra (supra) which has been overruled by the Full Bench, to support the proposition that even though there be no oath or affirmation in support of a verification as required by Rule 15 of ORDER :VI of the Code as amended by this Court, the defect is curable and that it will not entail a dismissal under Rule 77. 19. I had occasion to consider the true effect of Rules 75 and 77 in several earlier cases. In the case of Jadav Gilua V. Suraj Narain Jha reported in 1973 PLJR 24 = 1973 Bihar Law Journal Reports 74, following the earlier decisions of this Court I had held that the election petition not having been verified in the manner required by ORDER :VI Rule 15 of the Code, had to be dismissed under Rule 77. In the case of Jadav Gilua V. Suraj Narain Jha reported in 1973 PLJR 24 = 1973 Bihar Law Journal Reports 74, following the earlier decisions of this Court I had held that the election petition not having been verified in the manner required by ORDER :VI Rule 15 of the Code, had to be dismissed under Rule 77. Another point which had been raised in that case was that the objection regarding the verification had not, been raised in the court below. I had held that it is the duty of the Ejection tribunal to dismiss the petition under Rule 77 of the rules and it did not depend upon the tribunal not to do so unless the error and non-compliance was pointed out by the opposite party. In this respect there was an earlier decision of this Court by a learned single judge in the case of (9) Upendra Jha V. Karim Khan and others (supra) where it was held that irrespective of the objection it was the duty of the Tribunal to dismiss it and I respectfully agreed with the view expressed by the learned Judge. These two decisions do not appear to have been brought to the notice of the Division Bench hearing the case of (2) Saratchandra Mandal (Supra). The Full Bench considered the decision of U.N. Sinna, J. In the case of (9) Upendra Jha (Supra) and found it to be correct but the point regarding the raising of objection was not noticed specifically and nothing has been said thereon. The aforesaid discussions on the point are thus not yet overruled by any Division Bench or Full Bench. The question of absence of objection having been raised in a case where there is a fatal defect in the election petition did not come up for consideration in the aforesaid case of (2) Saratchandra Mandal. The defect in that case was not absence of verification altogether but a mere defect therein which upon the Full Bench decision could have been allowed to be amended. There is thus no decision brought to my notice which lays down that even though the defect in an election petition be fatal still if the point has not been raised before the Tribunal it cannot be allowed to be raised in this Court. There is thus no decision brought to my notice which lays down that even though the defect in an election petition be fatal still if the point has not been raised before the Tribunal it cannot be allowed to be raised in this Court. I am of the opinion that where the defect is a major one and fatal to the petition and is a question of law which does not necessitate any statement of facts but which is obvious and apparent on the face of the petition itself, the Election Tribunal is under the duty to dismiss the petition irrespective of the fact whether the point had been raised before it or not. The law requires the Election Tribunal to apply its mind to the petition and see whether it is fit to be dismissed being in violation of Rule 75 (1), or not. There is no estoppel against statute and a pure question of law can be raised for the first time in this Court. No authority is needed for this proposition. Where facts have to be brought forward in ORDER :to substantiate a question of law, the matter is different. 20. In the result, the direction petition filed before the Tribunal did not comply with the requirements of Sub-rules (1) and (2) of Rule 75 and the Election Tribunal had thus no jurisdiction to allow the fatal defect pointed out earlier to be amended and thus the election petition had to be dismissed under Rule 77 after giving the election petitioner a hearing. On this ground alone, therefore, the ORDER :passed by the Tribunal setting aside the election of the petitioner and declaring respondent no. 1 as the elected Mukhia must be quashed. 21. In view of the decision on the first point it is not necessary to enter into a discussion of the second contention of learned counsel that the ORDER :of recounting was on merits bad in law. I would, however, briefly indicate that the point was resisted on behalf of the respondent on the ground that the petitioner had agreed to the recounting and it is not open to him to challenge the same. I would, however, briefly indicate that the point was resisted on behalf of the respondent on the ground that the petitioner had agreed to the recounting and it is not open to him to challenge the same. In this connection it may be mentioned that after the arguments for the parties were heard a supplementary affidavit was filed by the respondent along with which the petition filed before the Tribunal by this petitioner and the ORDER :of the Tribunal with regard to the holding of recounting were produced. A reply thereto was filed by the petitioner denying that he had consented to recounting and producing a certificate from the lawyer appearing for the petitioner before the Tribunal to the effect that he had not given his consent to the recounting aforesaid. The question is thus a disputed question of fact and is unnecessary to be gone into. Assuming that the petitioner, had agreed to the recounting aforesaid the two points raised by him would still be available to him to be agitated namely, that the Tribunal had not framed any issues or take any evidence on the point and that it had given no reason whatsoever for accepting or rejecting the votes at the recounting. It is, however, in the circumstances of the case unnecessary to be gone into. 22. In view of what has been stated above I would quash the ORDER :dated the 11th of December, 1972 passed by the Election Tribunal by which the election of this petitioner has been set aside and respondent no. 1 declared to be elected as the Mukhia. Let a writ be issued to that effect. The application is accordingly allowed with costs of Rs. 51/- payable by the first respondent to the petitioner. Application allowed.