Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 239 (PAT)

Bambhola Rai v. State Election Commission

2004-02-27

R.N.PRASAD

body2004
Judgment R.N.Prasad, J. 1. The writ petition has been filed for quashing the order dated 24.1.2003 passed by Sub-Judge VI, Vaishali at Hajipur in Election Case No. 228/2001 whereby the amendment petition filed by the plaintiff-respondent No. 4 was allowed. 2. The case of the plaintiff-respondent No. 4 was that he filed nomination form for the post of Member of Panchayat Samiti of Bahrampur Gram Panchayat. The election was held on 11.4.2001. He lost the election and the defendant-petitioner was elected as Member of the Panchayat Samiti. The respondent No. 4 filed the election petition stating therein that election was held under large scale of booth capturing, firing, violence, etc. On 11.4.2001, the election of booth Nos. 74 and 75 was cancelled and re-poll was conducted. On booth Nos. 67 and 68 about 92 per cent polling was done but the Election Officer deliberately submitted wrong report due to which the Election Commission cancelled the votes polled at those booths. The respondent No. 4 claimed that he secured the highest number of votes at the aforesaid booths, i.e.; booth Nos. 67 and 68 and made a prayer in the election petition for recounting of the votes polled at booth Nos. 67 and 68 and to declare the result of the Bahrampur Panchayat Samiti taking into account the votes polled at the aforesaid booths. The defendant-petitioner filed a written statement stating therein that barring stray incidents the polling was peaceful. The votes polled at booth Nos. 67 and 68 were not taken into consideration on the report of the Election Officer. There was nothing wrong in the report. Similarly, the written statement was also filed on behalf of the defendant-respondent 1st set reiterating that there was nothing wrong in excluding the votes polled at booth Nos. 67 and 68 and declaring the result as there was a report of the Election Officer with respect to the said booths. 3. After filing of the written statement as indicated above, the election petition was taken up for hearing. The plaintiff-respondent No. 4 adduced evidence and his evidence was closed. The evidence of the contesting defendant-petitioner was going on. On 13.12.2002 the plaintiff-respondent No. 4 filed an application for amendment of the election petition. By the amendment the plaintiff-respondent No. 4 wanted to add booth Nos. 70 and 73 along with booth Nos. 67 and 68 for recounting. The plaintiff-respondent No. 4 adduced evidence and his evidence was closed. The evidence of the contesting defendant-petitioner was going on. On 13.12.2002 the plaintiff-respondent No. 4 filed an application for amendment of the election petition. By the amendment the plaintiff-respondent No. 4 wanted to add booth Nos. 70 and 73 along with booth Nos. 67 and 68 for recounting. The petitioner-defendant filed rejoinder to the amendment petition stating therein that the evidence of the plaintiff has already been closed and evidence on behalf of the petitioner is going on and as such no amendment could be made at the belated stage. No reason has been assigned for such amendment. Moreover, there is no provision of amendment of the election petition under the Bihar Panchayat Election Rules, 1995. The witnesses of the plaintiff did not complain anything wrong at booth Nos. 70 and 73. The respondent 1st set also filed rejoinder to the amendment petition challenging the amendment stating therein that no amendment could be made in the election petition as there is no provision of amendment, and that too at the belated stage. 4. The Tribunal after hearing the parties, allowed the amendment petition by the order impugned which is under challenge. 5. At the outset it is to be noted that Bihar Panchayat Raj Act, 1993 , hereinafter referred to as the Panchayat Act, 1993 for brevity, deals with the election of the Panchayat, Panchayat Samiti and Zila Parishad. Any dispute with respect to the election has to be decided in accordance with the provisions of the Act. sec. 140 of the Panchayat Act, 1993 deals with the election petition and it says that election to any office of the Panchayat shall not be called in question except by election petition as prescribed. The Rule was framed under the Act known as Bihar Panchayat Election Rules, 1995, hereinafter referred to as the Election Rules, 1995 for brevity. The relevant rules for the purpose of better appreciation are quoted hereinbelow : Rule 108. Election Petition.--Election petition against any elected candidate may be filed u/s. 140 of the Act before the prescribed Court within thirty days of the declaration of the election result. Rule 110. Verification of facts of election petition--The election petition will contain such facts and details on which the plaintiff depends. Election Petition.--Election petition against any elected candidate may be filed u/s. 140 of the Act before the prescribed Court within thirty days of the declaration of the election result. Rule 110. Verification of facts of election petition--The election petition will contain such facts and details on which the plaintiff depends. The plaintiff will sign the election petition and in the manner prescribed under Order 6 of the Civil Procedure Code, 1908 verify his pleadings. Rule 11. Hearing of election petition.--The competent Court will hear the election petition in the manner prescribed by Civil Procedure Code, 1908. Rule 113. Application of the provisions of the Indian Evidence Act in the hearing of the election petition--In the hearing of the election petition the Indian Evidence Act, 1872 will apply. 6. It is evident from the Election Rules quoted above that an election petition against the elected candidate has to be filed u/s. 140 of the Panchayat Act, 1993 within 30 days of the declaration of the election result. The election petition will contain such facts and details on which the plaintiff depends. The plaintiff will sign the election petition and in the manner prescribed under Order 6 of the Civil Procedure Code verify his pleadings. The Indian Evidence Act, 1972 will apply in hearing the election petitions. There is no provision either in the Act or in the Election Rules for amendment of the election petition. The competent Court wilt hear the election petition in the manner prescribed by the Civil Procedure Code. It is thus obvious that application of Civil Procedure Code in Election case is limited to the manner of hearing as prescribed in the Civil Procedure Code. The manner prescribed in the Civil Procedure Code will not include the amendment of the election petition. The application of Civil Procedure Code is limited only to the manner of hearing of the election petition. The Act and the Rules are self-contained and as such, unless the Act or the rules provide for amendment of the election petition, no amendment of the election petition can be allowed. 7. In this context the relevant provisions of Bihar Panchayat Election Rules, 1959 are relevant. The Act and the Rules are self-contained and as such, unless the Act or the rules provide for amendment of the election petition, no amendment of the election petition can be allowed. 7. In this context the relevant provisions of Bihar Panchayat Election Rules, 1959 are relevant. Rule 75 of the Bihar Panchayat Election Rules, 1959 deals with the contents of the election petition and it says "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". Sub-rule (b) of Rule 75 says, "the Election Tribunal may, upon such terms as to costs and otherwise as it may direct, that 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)". 8. It is thus, obvious from the aforesaid provisions that in Bihar Panchayat Election Rules, 1959 there was a provision for amendment to the certain limit but in the Bihar Panchayat Election Rules, 1995, no such provision has been made. In the case of Saratchandra Mandal V/s. Phani Bhushan Singh and Ors., AIR 1974 Pat 40 , a Full Bench of this Court held that the Tribunal has power to amend defective verification, but it cannot afford to give an opportunity to the election petitioner for amending the election petition for removal of major and fatal defects. In the case of Saratchandra Mandal V/s. Phani Bhushan Singh and Ors., AIR 1974 Pat 40 , a Full Bench of this Court held that the Tribunal has power to amend defective verification, but it cannot afford to give an opportunity to the election petitioner for amending the election petition for removal of major and fatal defects. It is thus obvious from the provisions of the Bihar Panchayat Election Rules, 1959 as well as the decision referred to above, that though there was a provision for amendment but the Full Bench of the Court has held that amendment could be allowed only with respect to removing the defect in verification and not for amending the election petition for removal of major and fatal defects. 9. The instant case has to be governed by the Panchayat Act, 1993 and the Election Rules, 1995. It has already been stated that there is no provision either under the Act, 1993 or the Election Rules, 1995 for amendment of the election petition. Detailed procedure of the Civil Procedure Code will not apply to the instant, case except with respect to the manner of hearing of the election petition as has been provided under Rule 111 of the Election Rules, 1995. However, the manner of hearing does not include the amendment of the plaintiff/pleading/election petition. Moreover, in the instant case the evidence of the witnesses of the plaintiff had already been closed and six witnesses of the defendant-petitioner had been examined before the amendment petition was filed. Thus, in any point of view, the amendment allowed by the Sub Judge/Tribunal cannot be held to be legal in law. 10. Thus, on consideration, as discussed above, this writ application is allowed. The order impugned is hereby quashed but without cost.