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2009 DIGILAW 3868 (ALL)

SARITA GUPTA v. SNEH KAMAL SETH

2009-12-24

SABHAJEET YADAV

body2009
JUDGMENT Hon’ble Sabhajeet Yadav, J.—By this petition, the petitioner has challenged the orders dated 17.12.2007 and 15.10.2008 passed by Additional District Judge, Jaunpur in Election Petition No. 4 of 2006, whereby the amendment application filed by respondent No. 1 in said election petition has been allowed and election petition was held to be maintainable at the instance of respondent No. 1. 2. The brief facts leading to the case are that in respect of election of Nagar Panchayat Kerakat District Jaunpur process of election was started in the month of October, 2006. However the polling had taken place on 3.11.2006 and the result of which was declared on 6.11.2006. In the said election for the office of President, the petitioner and six other persons namely Ashok Kumar Sahu, Sneh Kamal Seth, Ram Das Yadav, Kaushal Gupta, Naseeruddin and Sanjay Kumar were candidates. In the counting of votes, the petitioner had secured highest number of valid votes (3819) and was declared elected as President of Nagar Panchayat by a margin of 1550 votes. However, Ashok Kumar Sahu had secured 2269 votes, Sneh Kamal Seth had secured 05 votes, Ram Das Yadav secured 207 votes, Kaushal gupta secured 157 votes, Naseeruddin secured 25 votes and Sanjay Kumar had secured 12 votes. It is stated that although the respondent No. 1 was not in contest at all, and had secured only 5 votes out of total 6678 polled votes but he filed an election petition bearing No. 4 of 2006 in the Court of District Judge, Jaunpur challenging the election of the petitioner on various grounds with a relief for setting aside the election of the petitioner and prayed for fresh election of President of Nagar Panchayat. A copy of the election petition initially filed by the respondent No. 1 is on record as Annexure-1 to the writ petition. While filing the election petition Respondent No. 1 did not claim himself to be declared elected and arrayed only the writ petitioner and respondent No. 2 as respondents in the election petition. All the unsuccessful candidates were not arrayed as party and there were only two respondents in the said election petition. 3. While filing the election petition Respondent No. 1 did not claim himself to be declared elected and arrayed only the writ petitioner and respondent No. 2 as respondents in the election petition. All the unsuccessful candidates were not arrayed as party and there were only two respondents in the said election petition. 3. The petitioner who was returned candidate and respondent No. 1 in the said election petition, filed her written statement and denied the allegations made in the election petition and further stated that the election of the petitioner was quite legal and valid. Thereafter the petitioner filed an amendment application to amend her written statement upto the extent as given in application itself. The said amendment application was filed on 27.11.2006 and was allowed on 4.12.2007 consequently suitable amendments were incorporated in the written statement by the petitioner. In the said written statement the petitioner has raised a specific plea of the maintainability of election petition for non-compliance of provisions of Sections 19 and 20 of the U.P. Municipalities Act -1916 (herein after referred to as the Act) but when the amendment in the written statement of petitioner was allowed on 4.12.2007, the respondent No. 1 who was election petitioner filed amendment application dated 4.12.2007 stating therein that he may be permitted to amend the election petition by incorporating the relief to the effect that he may be declared elected after setting aside the election. In the said application there was no prayer for impleading all the unsuccessful candidates. Admittedly the said amendment application was filed beyond a period of 30 days as provided under Section 20(1) of the Act. Therefore, the petitioner filed an objection dated 17.12.2007 to the said amendment application of respondent No. 1. But in spite of the objection filed by the petitioner the amendment application of respondent No. 1 was allowed videorder dated 17.12.2007, by which relief prayed in election petition was amended and relief of declaration was added. It is further stated that though the election petition was liable to be rejected and was not liable to be heard but the Court below proceeded to hear the election petition and the issues were framed. Issue No. 3 of the issues was regarding the maintainability of the election petition for non-compliance of Section 20 of the Act which was illegally decided videorder dated 15.10.2008 holding it to be maintainable, hence this petition. 4. Issue No. 3 of the issues was regarding the maintainability of the election petition for non-compliance of Section 20 of the Act which was illegally decided videorder dated 15.10.2008 holding it to be maintainable, hence this petition. 4. Heard learned counsel for the parties. 5. Learned counsel for the petitioner has submitted that on the date of presentation of election petition, the election petitioner has not claimed any declaration in his favour to be declared elected, therefore, the election petition was not maintainable according to the provisions of Section 20(3) of the Act and was liable to be rejected under Section 22 of the Act. It is further submitted that the amendment, which was sought for and incorporated by the election petitioner in the election petition, was admittedly beyond a period of 30 days and the said amendment was not permissible in any manner as the same has entirely changed the nature of the case, but it was wrongly said in the order dated 17.12.2007 that it had not changed the nature of the case. It is further submitted that the Court below has wrongly decided the issue No. 3 and passed an illegal order dated 15.10.2008 holding that the election petition was maintainable. It is further submitted that the election petition filed by the election petitioner-respondent No. 1 was defective petition in which the election petitioner tried to remove the defect by seeking said amendment but the defect was not completely removed as all the unsuccessful candidates were not impleaded in terms of Section 20(4) of the Act. Thus the order dated 17.12.2007 and order dated 15.10.2008 are quite illegal and against the provisions of law. It is further submitted that in spite of the fact that the election petition is still defective and is not maintainable under law, the Court below is proceeding in the matter and hearing the election petition. In support of his submission he has placed strong reliance upon a decision of this Court rendered in Faizam Ali Khan v. Member of Election Tribunal, 1968 ALJ 70 and another decision rendered by this Court on 11.3.2008 in Writ Petition No. 13056 of 2008, Kamlesh Chaudhary v. State of U.P. and others. 6. Contrary to it learned counsel appearing for contesting private respondent/election petitioner, at the strength of assertions made in the counter-affidavit, has tried to justify the orders impugned in the writ petition. 7. 6. Contrary to it learned counsel appearing for contesting private respondent/election petitioner, at the strength of assertions made in the counter-affidavit, has tried to justify the orders impugned in the writ petition. 7. In order to appreciate rival contention of the parties, it would be useful to refer the relevant provisions of the Act dealing with the question in controversy involved in the case. Section 43 of the Act deals with the election of the President of Municipality, which reads as under : “43. Election of President.— (1) The President of the municipality shall be elected on the basis of adult suffrage by the electors in the municipal area. (2) An outgoing President shall be eligible for re-election. (3) The provision of this Act and the rules framed thereunder in relation to election (including disputes relating to election and electoral offences) of a member shall, mutatis mutandis, apply in relation to election of the President. (4) If in a general election a person is elected both as member and President of the municipality or being a member of the municipality is elected President thereof in any bye-election, he shall, except as provided in Section 49, cease to be a member from the date of his election as President.” 8. Thus from a careful reading of Section 43(3) of the Act, it is clear that the provisions of Act and Rules framed thereunder in relation to election (including disputes relating to election and electoral offences) of a member shall, mutatis mutandis, apply in relation to election of the President, therefore, there can be no scope for doubt about the application of provisions of Sections 19, 20, 21, 22 and 23 of the Act in respect of election and election disputes of President of the Nagar Panchayat. 9. The provisions of Section-19 of the Act deals with the grounds on which the election of any person as a member of a municipality may be questioned by an election petition, which reads as under:- “19. 9. The provisions of Section-19 of the Act deals with the grounds on which the election of any person as a member of a municipality may be questioned by an election petition, which reads as under:- “19. Power to question municipal election by petition.—(1)The election of any person as a member of a municipality may be questioned by an election petition on the ground— (a) that such person committed during or in respect of the election proceedings a corrupt practice as defined in Section 28; (b) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or for any other reason was not duly elected by a majority of lawful votes; (c ) that such person was not qualified to be nominated as a candidate for election or that the nomination paper of the petitioner was improperly rejected. (2) The election of any person as a member of a municipality shall not be questioned— (a) on the ground that the name of any person qualified to vote has been omitted from, or the name of any person not qualified to vote has been inserted in, the electoral roll or rolls; (b) on the ground of any non-compliance with this Act or any rule, or of any mistake in the forms required thereby, or of any error, irregularity or informality on the part of the officer or officers charged with carrying out this Act or any rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election. 10. From a careful reading of the provisions of Section 19(1) (c ) of the Act, it is clear that the election of any person as a member of a municipality may be questioned by an election petition inter alia on the ground that such person was not qualified to be nominated as a candidate for election or that the nomination papers of petitioner was improperly rejected. It is not in dispute that the election of writ petitioner has been challenged by the respondent No. 1 on the ground that the petitioner of instant writ petition/respondent No. 1 in the said election petition was not qualified to be nominated as a candidate for election of President of the Nagar Panchayat in question, which was reserved for the candidate belonging to the backward class and as alleged in the election petition that the returned candidate was not member of the backward class and could not attain the age of 30 years on the date of her nomination as candidate of President of Nagar Panchayat, instead thereof she was less than 30 years old, therefore, in my opinion, no fault can be found so far as ground on which the election of writ petitioner has been questioned by the respondent No. 1. 11. Section 20 of the Act deals with the form and presentation of election petitions and by whom such election petition can be filed. The provisions of Section-20 are extracted in extenso as under : “20. Form and presentation of election petitions.—(1) An election petition shall be presented within 30 days after the day on which the result of the election sought to be questioned is announced by the Returning Officer, and shall specify the ground or grounds on which the election of the respondent is questioned and shall contain a concise statement of the material facts on which the petitioner relies and set forth the full particulars of any corrupt practices that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practices and the date and place of the commission of each such practice. (2) The petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act No. V of 1908), for the verification of pleadings. (3) The petition may be presented by any candidate in whose favour votes have been recorded and who claims in the petition to be declared elected in the room of the person whose election is questioned or by ten or more electors of the municipality or by a person who claims that his nomination paper was improperly rejected. (3) The petition may be presented by any candidate in whose favour votes have been recorded and who claims in the petition to be declared elected in the room of the person whose election is questioned or by ten or more electors of the municipality or by a person who claims that his nomination paper was improperly rejected. (4) The person whose election is questioned and, where the petitioner claims that any other candidate should be declared elected in the room of such person, every unsuccessful candidate who is not a petitioner in the petition shall be made a respondent to the petition. (5) The petition shall be presented to the District Judge exercising jurisdiction in the area in which, the municipality, to which the election petition relates, is situate : Provided that the petition shall not be entertained by the District Judge, unless it is accompanied by a Treasury challan showing that the prescribed security has been deposited.” 12. Section 21 of the Act deals with the recriminatory proceedings, which reads as under : “Recriminatory proceedings.—(1) Where 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 may give evidence to prove that the election of such other 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 shall not be entitled to give such evidence unless he has within twenty-one days from the date of service upon him of the notice of the election petition, given notice to the Election Tribunal of his intention to do so and has also deposited the security prescribed in the case of an election petition questioning the election of a member. (2) Every notice referred to in sub-section (1) shall be accompanied by a statement of ground or grounds and of material facts and full particulars required by Section 20 in the case of an election petition and shall be signed and verified in like manner.” 13. Section 22 of the Act deals with the provisions pertaining to the hearing of election petition, which reads as under:- “22. Section 22 of the Act deals with the provisions pertaining to the hearing of election petition, which reads as under:- “22. Hearing of election petition.—(1) An election petition not complying with the provisions of Section 20 or upon which the requisite Court fee has not been paid at the time of presentation or within such further time not exceeding fourteen days as the (District Judge), as the case may be, may have granted, shall be rejected by such Judge. (2) An election petition not rejected under sub-section (1) shall be heard by the District Judge.” 14. From a careful reading of the provisions of Section 20 of the Act it appears that under sub-section (1) of said Section an election petition can be filed within 30 days from the date on which the result of election sought to be questioned is announced by the Returning Officer. Sub-section (3) provides that such election petition may be filed either (i) by any candidate in whose favour votes have been recorded and who claims in the petition to be declared elected in the room of person whose election is questioned; or (ii) by ten or more electors of the Municipality; or (iii) by a person who claims that his nomination paper was improperly rejected. Sub-section (4) of said Section provides that the person whose election is questioned and where the election petitioner claims that any other candidate should be declared elected in room of such person, every unsuccessful candidate who is not petitioner in the said petition, shall be made a respondent to the petition. Sub-section (5) provides that the petition shall be presented to the District Judge exercising jurisdiction in the area in which Municipality to which the election relates is situated. A proviso is attached with this sub-section (5) which further provides that the petition shall not be entertained by the District Judge unless it is accompanied by a treasury challan showing that the prescribed security has been deposited. A proviso is attached with this sub-section (5) which further provides that the petition shall not be entertained by the District Judge unless it is accompanied by a treasury challan showing that the prescribed security has been deposited. Section 22 of the Act deals with the hearing of election petition sub-section (1) of which provides that an election petition not complying with the provisions of Section 20 of the Act or upon which the requisite Court fee has not been paid at the time of presentation or within such further time not exceeding 14 days as the District Judge, as case may be, may have granted, shall be rejected by such Judge. Sub-section (2) of Section 22 further provides that an election petition not rejected under Sub-section (1) shall be heard by the District Judge. 15. Section 23 of the Act provides application of civil procedure code for hearing of election petition. Sub-section(1) of which is relevant for the purpose of instant case, as such is extracted as under : “23. Procedure.—(1) Except so far as may be otherwise provided by this Act or by rule, the procedure provided in the Civil Procedure Code (Act V of 1908) in regard to suits, shall, so far as it is not inconsistent with this Act or any rule and so far as it can be made applicable, be followed in the hearing of election petitions.” 16. From a careful reading of the provisions of Section 23(1) of the Act it is clear that except otherwise provided by this Act or Rule the procedure provided in the Code of Civil Procedure in regard to suits, shall so far as it is not inconsistent with the provisions of this Act or any Rule framed thereunder and so far as it can be made applicable, be followed in the hearing of election petitions. It implies that the procedure provided in the Code of Civil Procedure, in regard to suits, so far as it is not inconsistent with provisions of this Act or Rule and so far as it can be made applicable to the hearing of the election petition, shall be followed in hearing of such election petition, except otherwise provided by this Act or Rules. 17. 17. Now question arises for consideration is that as to whether the provisions of Order 6 Rule 17, C.P.C. which are applicable in regard to suits are inconsistent or contrary to any provision of the Act or Rules framed thereunder? In this connection it is to be pointed out that from survey of entire provisions of Act and Rules framed thereunder there is nothing to indicate that the provisions of Order 6 Rule 17, C.P.C. are inconsistent to any provision of the Act or Rules framed thereunder. Learned counsel for the petitioner could not point out any such provision under the Act or Rules, which may be according to him, would be inconsistent or contrary to the aforesaid provisions of Code of Civil Procedure, that is why he did not rightly dispute the application of aforesaid provisions of the Code in the proceedings of the election petition, but in order to make it more clear I may conveniently refer a decision of this Court rendered in Amir Ullah v. L.P. Nigam and another, 1956 ALJ 189, wherein Hon’ble Mootham C.J. (as he then was) has held that the procedure provided in the Code of Civil Procedure except as otherwise provided by the Act and Rule applies to the entire proceeding of election petition before the election Tribunal and further held that tribunal could exercise the powers of amendment conferred on a Court by Order 6 Rule 17, C.P.C. The pertinent observations made by this Court at page (191-192) of the journal are as under : “In my opinion the Tribunal was wrong in law in holding that it had no power to allow the petition to be amended. Sub-sec (1) of Section 23 of the U.P. Municipalities Act provides that : “23(1) Except so far as may be otherwise provided by this Act or by rule, the procedure provided in the Civil Procedure Code (Act V of 1908) in regard to suits, shall, so far as it is not inconsistent with this Act or any rule and so far as it can be made applicable, be followed in the hearing of election petitions.” In the opinion of the Tribunal the “hearing” of an election petition refers only to “what happens in open Court when witnesses are examined and cross-examined, addresses delivered by counsel and judgment is delivered”; it does not include any proceedings which are anterior in time to this. The Tribunal relied on certain passages in the judgment of the Bombay High Court in Sitaram Hirachand Birla v. Yograjsing Shankarsing Parihar and others. In the course of its judgment, which was delivered by Chagla, C.J. the Court was of opinion that the trial of a suit does not mean the same thing as the hearing of a suit, and that the latter was only a part of the trial and was restricted to what happens in open Court. The Court had however in that case to consider the meaning and effect of Section 90(2) of the Representation of the People Act, 1951, which provides that “Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, to the trial of suits.” There is in my opinion no clearly accepted difference in meaning between a trial and a hearing. The learned editor of Wharton’s Law Lexicon (14th Edition)treats both terms as having the same meaning, a trial being defined by him as the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land.... What therefore has to be determined is the meaning, in Section 23(1) of the U.P. Municipalities Act, of the expression “the hearing of elections petitions”. Now the procedure provided in the Act for the disposal of petitions against the election of a member of a Board is to be found in Sections. 19 to 25. Section 19 provides that the election of a member can be challenged on certain specified grounds, and Section 21 deals with the form and presentation of the petition. Section 22 is important for the present purpose for it provides that every election petition “shall be heard by the Tribunal” appointed by the State Government, and I do not think that there can be any real doubt that the hearing for which provision is made in this section includes everything which is done by the Tribunal from the time when the petition comes before it until judgment is finally delivered. In other words the expression “shall be heard by a Tribunal” in Section 22 of the Municipalities Act means exactly the same thing as “shall be tried by the Tribunal” in Section 90(2) of the Representation of the People Act. Indeed the words “heard” and “tried” appear to be used in this part of the former Act without any distinction in meaning. Thus sub-sec. 2(a) of Section 23 reads thus: “Provided that two or more persons whose election is called in question may be made respondents to the same petition, and their cases may be tried at the same time, and any two or more election petitions may be heard together; but, so far as is consistent with such joint trial or hearing, the petition shall be deemed to be a separate petition against each respondent;” Here there is reference to ‘case’ being ‘tried’, to ‘petitions’ being ‘heard’ and to a “joint trial or hearing”; and in sub-section 2(e) of the same section there is a reference to the ‘hearing’ of a ‘case.’ In the circumstances I am of opinion that the procedure provided in the Code of Civil Procedure, except as otherwise provided by the Act or any rule, applies to the entire proceedings before the Election Tribunal; and as it is not suggested that there is any other provision which is relevant, I hold that the Tribunal could exercise the powers of amendment conferred on a Court by Order 6, Rule 17 of the Code.” 18. I am in full agreement with the aforesaid observation of this Court, I am also of the view that the election tribunal is competent to permit the parties of election petition to amend their pleadings within the ambit of provisions of Order 6 Rule 17, C.P.C., as there is nothing to indicate that the aforesaid provisions of C.P.C. are otherwise inconsistent or contrary to any provisions of the Act or Rules. 19. 19. However, so far as the further submission of learned counsel for the petitioner that the amendment application moved by the respondent No. 1 in the election petition beyond 30 days from the date of declaration of result of election could not be allowed, by the election tribunal is concerned, it to be noted that admittedly the result of President was declared on 6.11.2006 and amendment application in the said election petition was moved by the respondent No. 1 on 4.12.2007, which was after expiry of a period of one year from the date of declaration of result of said election, therefore, the question arises for consideration is that as to whether such amendment application is barred by time or law of limitation? In this connection it is to be noted that Section 20(1) of the Act merely provides that an election petition can be presented within 30 days after the day on which the result of the election sought to be questioned is announced by the Returning Officer, but this period of 30 days of limitation, in my considered opinion, is provided for presentation of election petition before election tribunal, it has no bearing with the seeking amendment in the pleadings of the election petition. Under the provisions of Act or Rules framed thereunder, no such period of limitation has been prescribed for amendment in the pleadings of election petition. Therefore by virtue of provisions of Section 23 (1) of the Act the provision of Order 6 Rule 17, C.P.C. Can be pressed in to service, for the simple reason that there, exist no express provisions under the Act or Rules, which is inconsistent or contrary to the said provisions of the code. Order 6 Rule 17 reads as under : “Order 6 Rule 17: Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 20. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 20. Thus from a careful reading of the aforesaid provisions of the Code it is clear that no period of limitation has been prescribed by the Code either for seeking amendment in pleadings or for allowing such amendment sought for by the parties in pleadings, instead thereof the Court is empowered to allow either party to alter or amend his pleadings at any stage of proceeding in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. The restriction which is imposed upon the powers of Court to allow application for amendment by the proviso of Order-6 Rule 17 is that no such application for amendment shall be allowed after trial has commenced unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of trial. Thus in view of the aforesaid provisions of the code, I am of the considered opinion that no period of limitation has been prescribed either for seeking or for allowing the amendment in pleadings under the Code. The only restriction upon exercise of power of the Court to allow amendment in the pleadings is that such power shall not be exercised after commencement of trial unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of trial. 21. Applying the aforesaid legal proposition in case of election petition filed by the Respondent No 1 it is to be noted that it is not the case of the petitioner that election Tribunal has allowed the amendment of respondent No. 1 after commencement of the trial/ hearing of the election petition, therefore, in my considered opinion, no fault can be found in allowing the amendment sought for in election petition, after expiry of period of 30 days from the date of declaration result of election in question. I am of the considered opinion, that no such period of limitation for seeking and or allowing the amendments in the pleading of election petition is prescribed either under the provisions of Order-6 Rule17, C.P.C. Or under the provisions of Act and Rules framed thereunder. Therefore the aforesaid submission of learned counsel for the petitioner is misplaced and has to be rejected. 22. However, another aspect of the submission of learned counsel for the petitioner in this regard is that the amendment has changed the nature of case. In my opinion, the submission of learned counsel for the petitioner at this score is also misplaced and is liable to be rejected for the simple reason that on the basis of earlier existing pleadings in election petition, merely some more relief was sought to be added by the amendment sought for. No fresh cause of action was added in the election petition. At any view of the matter by such amendment in the pleadings of election petition, the nature of the case had not changed, therefore, the view taken by the election Tribunal in this regard cannot be faulted with. In this view of the matter the impugned order dated 17.12.2007 passed by election Tribunal A.D.J. Jaunpur does not call for any interference by this Court. 23. Further submission of the learned counsel for petitioner is that by said amendment application dated 4.12.2007 the respondent No. 1 had sought for amendment merely for adding that he or respondent No. 2 of said election petition be declared elected in place of writ petitioner i.e. respondent No. 1 in the said election petition but he did not implead other unsuccessful candidates of said election, in the election petition therefore, due to said defect or discrepancy the election petition was not in compliance of the provisions of sub-section (4) of Section 20 of the Act, as such it could be liable to be rejected by virtue of Section 22(1) of the Act, and could not be heard by the election Tribunal in view of express mandate of sub-eection (2) of the said section, but by impugned order dated 15.10.2008, tribunal has wrongly decided the issue framed and erroneously held that the election petition filed by respondent No. 1 was maintainable. In support of his submission he has also drawn attention of the Court on the various observations made by this Court. In support of his submission he has also drawn attention of the Court on the various observations made by this Court. In Faizan Ali Khan v. Member of Election Tribunal, 1968 A.L.J., 70. 24. Before proceeding to deal with the aforesaid contention of learned counsel for the petitioner it is necessary to point out that from the perusal of the impugned judgement and order of election Tribunal dated 15.10.2008, it appears that only issue which was framed by the election Tribunal was as to whether in view of the provisions of Section 20 (3) of the Act, in given facts and circumstances of the case, the election petition in question at the instance of election petitioner/respondent No. 1 was maintainable or not. After dealing with the said issue, the learned Court below has held that since the election petitioner was a candidate in the said election, and votes were recorded in his favour and in the election petition (after amendment) he had claimed to be declared elected in place of the returned candidate therefore he could validly maintain the said election petition. However, with regard to the another objection about the maintainability of election petition on account of non-compliance of the provisions of Section 20(4) of the Act, that election petitioner did not implead every unsuccessful candidate of said election as necessary party in the array of respondent in the election petition, the Court below held that since it was not subject matter in issue, therefore on that count the election petition could not be held to be not maintainable. In this view of the matter I do not find any illegality in the impugned order dated 15.10.2008 passed by Court below on that score. 25. In this view of the matter I do not find any illegality in the impugned order dated 15.10.2008 passed by Court below on that score. 25. Although having regard to the number of votes admittedly secured by the election petitioner in comparison to other unsuccessful candidates of the said election, the locus of election petitioner/respondent No. 1 to challenge the said election has been disputed by writ petitioner/returned candidate before this Court also but the Court below has already held that he has locus standi to question the validity of said election, for the reasons stated herein before and further held that as to whether the election petitioner would be declared elected in place of returned candidate or not, can be examined at the time of trial/hearing of election petition, in my opinion, said approach of the Court below appears to be correct. In case that would have been condition precedent to question the validity of election of Municipality, the legislature would have used different words under Section 20(3) of the Act, by authorising only those candidates to question the validity of election of returned candidate who may be likely to be declared elected in place of returned candidate on the basis of votes secured in the election but since under Section 20(3) of the Act, besides unsuccessful candidates even ten or more electors of Municipality and a person whose nomination has been improperly rejected have also been authorised to challenge the election of returned candidate, therefore, merely because of the reason that the petitioner had not secured such number of votes so as to be declared elected, it can not be held that he has no locus standi to challenge the election in question. I am of the further opinion that denial of right to a candidate of election to challenge the election of returned candidate in given facts and circumstances of the case would be discriminatory and would also be undemocratic and contrary to all the cannons of election laws. 26. I am of the further opinion that denial of right to a candidate of election to challenge the election of returned candidate in given facts and circumstances of the case would be discriminatory and would also be undemocratic and contrary to all the cannons of election laws. 26. There is yet another reason for upholding the locus of election petitioner to challenge the election of the returned candidate that after trial/hearing of election petition if the allegations made therein are found to be proved, and if it is found that returned candidate was disqualified to be nominated as candidate of the election in question, in that eventuality she cannot be permitted to continue in office of President of Nagar Panchayat, which is a public office and said office should be vacated only by setting aside her election. It is immaterial as to whether in her place election petitioner can be declared elected or another candidate can be declared elected or not and further such another candidate has not challenged the election of returned candidate and/or election petition filed by the respondent No. 1 can or cannot be enured to the benefit of such another candidate. 27. It is wrong notion of law that election petition filed by respondent No. 1 can not be enured to the benefit of respondent No. 2, who had secured second highest number of votes in the said election and has also been impleaded as respondent No. 2 in the election petition particularly when the election of returned candidate can be challenged by ten or more electors of Municipality or by a candidate whose nomination was improperly rejected. It is no doubt true that under the aforementioned last two conditions of challenge of election a vacancy in the office of President would be caused and a fresh election may be held. But in any view of the matter, at the event of setting aside the election of returned candidate, it shall be open for the election Tribunal to decide the aforesaid issue as to whether vacancy caused on account of setting aside election of returned candidate would be kept for fresh election or another candidate can be declared elected in place of returned candidate but on that count tribunal shall not refuse to complete the trial/hearing of election petition unless it is concluded to its logical end. 28. 28. However, so far as non-compliance with the provisions of Section 20 (4) of the Act is concerned it is to be noted that since aforesaid argument raised by learned counsel for the petitioner before the Court below, and before this Court goes to the very root of the jurisdiction of election Tribunal trying/hearing the said election petition, therefore, I would like to deal with issue herein after. 29. Now coming to the decision of this Court, in Faizan Ali Khan’s case (supra) wherein while considering the import of sub-section (4) of Section 20 with the help of provisions of Sections 20 (3) and 21 of the Act, this Court has held that where an election petition prays that petitioner be declared elected in the room of returned candidate, every unsuccessful candidate is necessary party and has to be impleaded as respondent. It was further held that in view of mandatory provisions of Section 22 (1) of the Act the election Tribunal was bound to reject the election petition. Only such election petitions are not liable to be rejected under sub-section (1) of Section 22 can be referred to the Election Tribunal for hearing. Under sub-section (2) of Section 22 the Election Tribunal had no jurisdiction to proceed with the hearing of an election petition which was liable to be rejected under sub-section (1) of Section 22 of the Act. 30. The pertinent observation made by this Court in aforesaid decision are extracted as under : “In my opinion, where an election petition prays that the petitioner be declared elected in the room of the returned candidate, every unsuccessful candidate is a necessary party and has to be impleaded as a respondent. In the instant case the second respondent claimed to be declared elected, but he did not implead the other unsuccessful candidates. There was a clear non-compliance with the provisions of sub-section (4) of Section 20. Section 22(1) says that an election petition not complying with the provisions of Section 20 shall be rejected by the Judge (meaning the Judge before whom it is presented). In view of this mandatory provision, the Judge was bound to reject the election petition. Only such election petitions as are not liable to be rejected under sub-section (1), can be referred to the Election Tribunal for hearing. In view of this mandatory provision, the Judge was bound to reject the election petition. Only such election petitions as are not liable to be rejected under sub-section (1), can be referred to the Election Tribunal for hearing. Under sub-section (2) of Section 22 the Election Tribunal had no jurisdiction to proceed with the hearing of an election petition which was liable to be rejected under sub-section (1). The Election Tribunal ought to have dismissed the election petition of the second respondent as incompetent. In any event, the Election Tribunal has also found that there was no satisfactory explanation for the delay in making the application for amendment. The finding is of fact. It does not suffer from any manifest error of law. The application for amendment for impleading the unsuccessful candidates was rightly rejected.” 31. I am in full agreement with the view taken by this Court that where the election petitioner claims that he be declared elected in the room of the returned candidate, every unsuccessful candidate is necessary party and has to be impleaded as respondent to the said election petition and non-compliance of which shall make the election petition liable to be rejected under Section 22 (1) of the Act, but in my opinion rest of the observations have been made by this Court in context of the facts of the aforesaid case, which are distinguishable from the facts of the instant case. In the aforesaid case, the amendment application for impleadment of unsuccessful candidate was made but the Election Tribunal had rejected the same on account of unsatisfactory explanation for delay caused in making the said application. Therefore, in view of the aforesaid decision also it appears that there was some scope for curing the defect in the election petition by amending it and by adding every unsuccessful candidate as respondent in the said election petition. Therefore the question arises for consideration before this Court is that as to whether in given facts and circumstances of the case the election petition filed by Respondent No 1 is liable to be rejected or it can be proceeded with by curing its discrepancies? 32. Therefore the question arises for consideration before this Court is that as to whether in given facts and circumstances of the case the election petition filed by Respondent No 1 is liable to be rejected or it can be proceeded with by curing its discrepancies? 32. In this connection it is to be pointed out that from a careful reading of Section 22 of the Act it reveals that sub-section (1) of Section 22 provides two alternative contingencies under which the election petition can be rejected by the election Tribunal viz; (i) an election petition not complying with the provisions of Section 20 or (ii) an election petition upon which the requisite Court fees has not been paid at the time of presentation; or within such further time not exceeding 14 days as the District Judge, may have granted. In instant case it is not a case of petitioner that while presenting the election petition before the election Tribunal the requisite Court fees was not paid by the election petitioner, instead thereof the submission of learned counsel for the petitioner is that even after amendments made by election petitioner as stated earlier the defect or discrepancy relating to impleadment of every unsuccessful candidate as respondent in election petition was not completely cured by him, thus the same was liable to be rejected on account of non-compliance with the provisions of Section 20(4) of the Act. Therefore, I have to examine and confine my discussion only in respect of first contingency i.e. “An election petition not complying with the provisions of Section 20 of the Act” referred to in Section 22 (1) of the Act. 33. From a plain reading of the above noted phrase used under Section 22 (1) of the act, it appears that an election petition not complying with the provision of Section 20, shall be rejected by District Judge. But from a close scrutiny and comparison of first part, with another part of this sub-section (1), it appears that in another contingency referred therein an election petition upon which requisite Court fees was not paid either at the time of presentation or within such further time not exceeding fourteen days as the District Judge may have granted, shall be rejected by such Judge. Thus the legislature has intended to make clear distinction between the aforesaid two parts of sub-section (1) of Section 22 so far as timing and stage of rejection of election petition is concerned. Under first contingency i.e. first part of sub-section (1) of Section 22 there is nothing to indicate that at the time of presentation of election petition, the compliance of the provisions of Section 20 of the Act was so essential as to non-compliance of which would empower the election Tribunal to reject such election petition outrightly. It implies that if there remains some discrepancy or defect in relation to compliance of the provisions of Section 20 of the Act at the time of its filing before the election Tribunal, such election petition shall not be rejected by the District Judge outrightly at once at the time of its presentation, instead thereof such discrepancy can be cured by the election petitioner by seeking amendments before the commencement of trial/hearing of election petition, otherwise instead of using aforesaid expressions under first part of sub-section (1) of Section 22, the Legislature would have used different words or expressions for the said part of the legislation mandating therein compliance of provisions of Section 20 of the Act is essential at the time of presentation of election petition. But such omission on the part of Legislature, in my considered, is deliberate otherwise the provisions of Section 23 of the Act, whereby the provisions of C.P.C. have been made applicable to the trial/hearing of election petition including application of provisions of Order 6 Rule 17, would be rendered redundant. 34. Thus in view of aforesaid discussion a reasonable and harmonious construction of Section 22 (1) with the other pieces of legislation contained under the same Act, leave no scope for doubt to hold that, if there remains some discrepancies or defects in relation to compliance of Section 20 of the Act, at the time of presentation of election petition before the District Judge, such discrepancies can be cured by the election petitioner, subsequently by seeking amendments before commencement of trial/hearing of the election petition, and such election petition should not be rejected by the election Tribunal outrightly at the time of its presentation before such Tribunal. However, it is needless to say that if such discrepancies are not cured by the election petitioner, as indicated herein before, the election Tribunal has no option but to reject the election petition and only such election petition can be heard by the Tribunal, which is not rejected under sub-section (1) of Section 22. 35. In view of legal position stated herein before, in given facts and circumstances of the case there can be no scope for doubt to hold that before further proceeding with trial/hearing of the election petition, it was necessary for the election Tribunal to decide the issue of maintainability of the election petition on account of non-compliance of the provisions of Section 20 (4) of the Act, for the simple reason that only such election petition which is not rejected under Section 22(1) of the Act can be heard by the election Tribunal. Therefore, election Tribunal shall hold its hands and not to proceed further with the trial/hearing of election petition. Since I have already decided the aforesaid issue of non-compliance of the provisions of Section 20(4) of the Act as indicated herein before, therefore, the Tribunal shall not decide the aforesaid issue again. The election Tribunal shall merely ask the election petitioner to add or implead remaining unsuccessful candidates of the said election as respondents in the election petition and after adding the remaining unsuccessful candidates as party in the array of respondent, the election Tribunal shall proceed with the election petition de novo from the aforesaid stage in accordance with the provisions of law. 36. With the aforesaid observations and direction, writ petition stands disposed of. ————