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2000 DIGILAW 134 (PNJ)

Gurman Singh v. Lal Singh

2000-02-03

SWATANTER KUMAR

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Judgment Swatanter Kumar, J. 1. This revision is directed against the order passed by the learned Presiding Officer. Election Tribunal. Moga, dated 27.9.1999. Vide impugned order the learned Judge allowed an application filed by the petitioner in an Election Petition filed under Section 76 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as the Act) 2. Lal Singh petitioner, had challenged the election of respondent No. 1 Gurnam Singh as Sarpanch of the Gram Panchayat Kalan, District Moga and had further prayed in the petition that election of the said respondent be set aside and the petitioner be declared as elected. The election was also challenged on various grounds. After issuance of notice to the respondents and when reply was filed by the respondents, also taking an objection that Rupinder Singh was also a necessary party to the petition, an application for amendment of the election petition was filed with a limited prayer that in order to avoid legal objection the name of Rupinder Singh be added as respondent No. 4 in the original petition. It was specifically stated that the basic facts and fundamental character of the election petition would remain to be the same and no prejudice would be caused to the non-applicants. 3. The respondents-non applicants took up the plea that application for amendment was not permissible under the relevant law and as such the application was not maintainable. However, there is hardly any dispute on the facts in the application. The learned Election Tribunal after hearing the learned counsel for the parties allowed the application and permitted the name of respondent No. 4 to be added in the petition. Even before this Court the basic contention of the learned counsel for the petitioner while assailing the impugned order is that application for amendment was not maintainable before the learned Tribunal in an election petition. He further contended that provisions of the Code of Civil Procedure in terms do not apply the proceedings before the Election Tribunal while relying upon A.I.R. 1969 S.C. 677 titled as Mohan Raj v. Surinder Kumar. On the other hand, the learned counsel for the respondents contended that in view of the provisions of the Act and the Punjab Panchayat Election Rules 1994, there is nothing impermissible to dislodge or render the application for amendment as not maintainable. On the other hand, the learned counsel for the respondents contended that in view of the provisions of the Act and the Punjab Panchayat Election Rules 1994, there is nothing impermissible to dislodge or render the application for amendment as not maintainable. Rule 53 of the said rules makes it mandatory to comply with certain provisions and default thereof would render the petition liable to be dismissed. The said rule reads as under: "53. Petitions to be dismissed for non-compliance of rules. - If any of the provisions of Rules 51 and 52 and Section 76 of the Act has not been complied with, the Election Tribunal shall pass an order of dismissing the election petition and such order shall be final." A bare reading of Rule 53 makes it abundantly clear that an election petition is not liable to be rejected or dismissed for every default. The default are restricted to non-compliance of Rules 51 and 52 of the Rules and Section 76 of the Act. Under Rule 51, the petitioner is required to set-forth in the petition full particulars of any material remedies and its detail and further directions that election petition would be in paragraphs. Rule 52 relates to the deposit of the requisite fee as prescribed in that Rule. Section 76 of the Act provides how an election petition is to be presented, limitation of its presentation, then the copies required to be furnished to the respondents in each petition. Section 81 of the Act reads as under:- "81. Rule 52 relates to the deposit of the requisite fee as prescribed in that Rule. Section 76 of the Act provides how an election petition is to be presented, limitation of its presentation, then the copies required to be furnished to the respondents in each petition. Section 81 of the Act reads as under:- "81. Procedure before the Election Tribunal.- (i) Subject to the provisions of this Act and of the rules made thereunder, every election petition shall be tried by the Election Tribunal, as nearly as may be, in accordance with the procedure contained in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) to the trial of suits: Provided that the Election Tribunal shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses, if it is of opinion that the evidence of such witness or witnesses is not material for the decision of the election petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings of the election petition." (2) The provisions of the Indian Evidence Act, 1872 (Central Act 1 of 1872) shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition." The effect of Section 81 is that an election petition shall be tried by the Election Tribunal as nearly as may be in accordance with the provisions of the Code. The provisions of the Code, thus, are not to be enforced in derogation to the specific provisions of the Act and the Rules framed there under, but where-ever there is no specific provision in relation to the procedure or otherwise, no error of jurisdiction can be committed by the Tribunal if it takes recourse to the provisions of the Code to do justice between the parties and to meet the ends of justice with an underlying object of up-holding the rule of fair and free election. 4 The cumulative effect of the reading of the above provisions is that there being no specific provision of which the petitioner committed a default by not adding the name of respondent No. 4 when there is no relief, substantial or otherwise, claimed against the said respondent No. 4 within the purview and scope of the provisions of the Act. 4 The cumulative effect of the reading of the above provisions is that there being no specific provision of which the petitioner committed a default by not adding the name of respondent No. 4 when there is no relief, substantial or otherwise, claimed against the said respondent No. 4 within the purview and scope of the provisions of the Act. As such the petition of the petitioner would not fall within the mischief of the stringent provisions of Rule 52 of the Rules. General provisions of the Code would come to the aid of the Tribunal for procedural progress and disposal of the petition so far they are in harmony and do not defeat the purpose of the special enactment i.e. the Act and the Rules framed thereunder. 5. The Honble Supreme Court of India the case of Mohan Raj (supra) was concerned with the provisions of the Representation of the People Act, 1951; where a petition would have to be dismissed in face of Section 86(1) and 82(b) and other relevant provisions of that Act. Still their Lordship clearly made the distinction abundantly clear by saying that "Section 82(b) makes it incumbent that any candidate against whom a change of corrupt practice is made must be joined as a party." In those circumstances the Court held that aid to the provisions of Order 6 Rule 17 and Order 1 Rule 10 of the Code was not permissible and as such the provisions could not be used as curative means to save the election petition which was liable to be dismissed in face of the statutory provisions afore-indicated. In the present case no substantive relief was being claimed against respondent No. 4 The application was simplicitor for impleadment of Rupinder Singh as respondent No. 4 in view of the objection taken by the respondents in reply to the election petition. 6. In the present case no substantive relief was being claimed against respondent No. 4 The application was simplicitor for impleadment of Rupinder Singh as respondent No. 4 in view of the objection taken by the respondents in reply to the election petition. 6. It is contended by learned counsel for the petitioner while relying upon the judgment of the Supreme Court in the cases of Ramprasad Dagaduram v. Vijaykumar Motilal Hirakhanwala and Ors., A.I.R. 1967 Supreme Court 278 and Anil Kumar Singh v. Shivnath Mishra, 1995(1) R.C.R. (Civil) 660 (S.C.) to contend that where an objection of non-joinder is taken and there can be complete and final adjudication by impleading such party to the petition with the aid of Order 6 Rule 17 and more particularly Order 1 Rule 10(2) of the Code, the impleadment of respondent No. 4 has been validly allowed by the learned Election Tribunal. 7. As I have already noticed that no corrupt practices were attributable to respondent No. 4 nor relief of any kind was being claimed against respondent No. 4, but he was being impleaded as a proper party to the election petition, there appears to be no justifiable reasons to interfere in the discretion exercised, by the learned Tribunal. Furthermore, none of the rules afore-referred nor any other rule were pointed out by the learned counsel for the petitioner to show that non-impleadment of such proper party would entail dismissal of the petition per-se. 8. For the reasons afore-stated I see no reasons to interfere with the order of the Election Tribunal. The petition is dismissed without any order as to costs.