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2010 DIGILAW 705 (HP)

DEVINDER SINGH v. DEPUTY COMMISSIONER, SHIMLA

2010-04-07

KURIAN JOSEPH, P.B.MISHRA

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JUDGMENT KURIAN JOSEPH, C. J. ( 1 ) WHETHER the election petition filed under Section 163 of the H. P. Panchayat Raj Act, 1994, hereinafter called "the Act" should be dismissed by the Authorized Order for the only reason that the petition is not furnished in the prescribed manner, is the question that arises for consideration in this appeal. ( 2 ) SHORT facts. Election to the post of pradhan, Gram Panchayat, Munish Bahli in district Shimla was held on 22nd December, 2005. The writ petitioner and the third respondent (parties are described as they appeared in the writ petition) had contested the election. The petitioner was declared elected, having secured 283 votes. The third respondent filed an election petition mainly on the ground that the petitioner was not qualified to be elected. The petitioner raised a preliminary objection that the election petition had not been filed in the manner prescribed under Section 164 of the Act and the Rules. However, disregarding the objection, the matter was considered on merits and the election was set aside by order dated 22nd January, 2007. The appeal before the Deputy commissioner was dismissed on 24th April, 2007 and thus the writ petition. ( 3 ) THE learned single Judge held that respondent No. 3 should be given an opportunity to cure the defect, if any, in the matter of presentation of the election petition in the prescribed manner since the issue of defect, if any, in verification was a curable defect and thus remanded the matter to the original authority. Aggrieved, the appeal at the instance of the writ petitioner. ( 4 ) STATUTORY Provisions, Section 163 of the Act provides for presentation of the election petition which reads as follows : "163. Presentation of petition. (1) Any elector of a Panchayat may, on furnishing the prescribed security in the prescribed manner, present within thirty days of the publication of the result, on one or more of the grounds specified in sub-section (1) of Section 175, to the authorized officer and election petition in writing against the election of any person under this Act. (1) Any elector of a Panchayat may, on furnishing the prescribed security in the prescribed manner, present within thirty days of the publication of the result, on one or more of the grounds specified in sub-section (1) of Section 175, to the authorized officer and election petition in writing against the election of any person under this Act. (2) The election petition shall be deemed to have been presented to the authorized officer (a) when it is delivered to him (i) by the person making the petition; or (ii) by the person authorized in writing in this behalf by the person making petition; or (b) when it is sent by registered post and is delivered to the authorized officer or any other person empowered to receive it. ( 5 ) SECTION 164 of the Act provides for contents of the petition which reads as follows : "164. Contents of petition. (1) Any election petition (a) shall contain concise statement of the material facts on which the petitioner relies, (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice, and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure. 1908 for the verification of pleading : provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corruption practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petitioner. ( 6 ) SECTION 165 of the Act deals with the procedure on receiving an election petition. It reads as follows : "165. Procedure on receiving election petition. If the election petition is not furnished in the prescribed manner, or the petition is not presented within the period specified in Section 163 the authorized officer shall dismiss the petition : provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard. ( 7 ) SECTION 2 (30) of the Act defines expression "prescribed" to mean 'prescribed by rules made under this Act'. ( 7 ) SECTION 2 (30) of the Act defines expression "prescribed" to mean 'prescribed by rules made under this Act'. ( 8 ) RULES 94 and 95 of the Himachal pradesh Panchayati Raj (Election) Rules, 1994 (hereinafter called, "the Rules") provides for procedure of presentation of the election petition. They read as follows : "94. Presentation of Petition. (1) The election petition under Section 163 of the Act shall be presented to the authorized Officer under whose territorial jurisdiction the Gram panchayats, Panchayat Samiti or Zila parishad, as the case may be situated. (2) The election petition shall enclose with petition copies of the petition and of its enclosures equal to the number of respondents. (3) The affidavit referred to in the proviso to sub-section (i) of Section 164 of the act shall be in Forum 43 and shall be shown in before a Magistrate. " 95. Security deposit to be made with the petition. At the time of presentation of an election petition the petitioner shall deposit a sum of Rs. 300/- as security money in the government Treasury or Sub-Treasury under the appropriate head of account in the name of Authorized Officer to whom the petition is presented or caused to be presented. " ( 9 ) ORDER VI, Rule 15, CPC provides for verification of pleadings which reads as follows : "order VI, Rule 15, Verification of pleadings. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (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 information 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. (4) The petition verifying the pleading shall also furnish an affidavit in support of his pleadings. ( 10 ) IT is to be noted that sub-rule (4) of order VI, Rule 15 was introduced only with effect from 1-7-2002. ( 11 ) THE Factual Disputes. (4) The petition verifying the pleading shall also furnish an affidavit in support of his pleadings. ( 10 ) IT is to be noted that sub-rule (4) of order VI, Rule 15 was introduced only with effect from 1-7-2002. ( 11 ) THE Factual Disputes. It is the case of the third respondent that the petitioner had been convicted in a criminal case, Sessions trial No. 33 of 2003 on 12th October, 2004 on the file of Sessions Judge, Kinnaur at rampur, for an offence involving moral turpitude and since the period of six years had not elapsed and the disqualification under section 122 (1) (b) of the Act was attracted. The conviction was under Sections 332 and 353, IPC. The petitioner has suffered the sentence of Rs. 1000/- and Rs. 500/- respectively. ( 12 ) THE election petition dated 16th January, 2006 contains the verification as follows :"i, the above named petitioner, do hereby solemnly verify that the contents of the petition are true to the best of my knowledge. No part of it is false and nothing has been concealed therefrom. " ( 13 ) THE petitioner had annexed a certified copy of the judgment in the sessions trial no. 33 of 2003. ( 14 ) THE contention of the writ petitioner is that the election petition does not satisfy the mandatory requirements of (1) verification as provided under the CPC and (2) as required under Section 164 (2) of the Act and hence the same is to be dismissed by the authorized Officer. ( 15 ) WE shall deal with the second contention first. The second contention is that the Annexure to the election petition has not been verified in the same manner as the main petition. The only Annexure to the petition is the duly certified copy of the judgment in sessions trial No. 33 of 2003 issued from the court of Session Judge, Kinnaur at Rampur. Being duly certified copy of the judgment, the same does not require any further verification, even if the same is an Annexure to the election petition, in view of Section 77 of the Indian Evidence Act, 1872, which reads as follows : "77. Proof of documents by production of certified copies. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. Proof of documents by production of certified copies. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. " ( 16 ) SECTION 164 of the Act provides among other things that the election petition shall be verified in the manner laid down in the code of Civil Procedure, 1908 for the verification of the pleadings. There cannot be any doubt that the said provision is a legislation by reference to another statute, namely, the code of Civil Procedure, 1908 and not a legislation by incorporation of a specific provision in a statute. Therefore, the reference has to be construed as a reference to the verification of the pleadings as prescribed and as in force from time in the Code of Civil Procedure. This position has been settled by the supreme Court in Mahindra and Mahindra ltd. v. Union of India (1979) 2 SCC 529 : (AIR 1979 SC 798 ). Hence the contention that the amendment to CPC introduced with effect from 1st July, 2002 as per Rule 15 (4)in Order VI providing for an affidavit apart from verification does not apply to the panchayati Raj Act, 1994, cannot be appreciated. The object underlying in Order VI, rule 15 is to fix upon the party verifying or on whose behalf verification is made the responsibility for the statement that it contains and to prevent as far as possible disputes as to whether the suit was instituted or defended with the knowledge or authority of the part who has signed the verification or on whose behalf it has been signed (See A. K. K. Nambiar v. Union of India (1969) 1 SCC 864 : (AIR 1970 SC 652 ). The position is well settled as far as Order VI, Rule 15, CPC is concerned that a defect in verification is merely an irregularity and not an illegality. Such defect therefore is curable. It is not fatal in the sense that on account of such curable defect a plaint or petition cannot be dismissed. Such defects can be cured at any stage of the proceedings, as held by the Supreme Court in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, AIR 1955 SC 610 and followed in several decisions and latest available being Narayanaswamy v. C. P. Thirunavukkarasu, AIR 2000 SC 694. Such defects can be cured at any stage of the proceedings, as held by the Supreme Court in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, AIR 1955 SC 610 and followed in several decisions and latest available being Narayanaswamy v. C. P. Thirunavukkarasu, AIR 2000 SC 694. ( 17 ) LEARNED counsel for the appellant contends that since the Panchayati Raj Act itself has prescribed the consequences of the defects under Section 165, the defective election petition should be dismissed at the threshold. Reliance is placed on a Bench decision of this Court in Deepender Rohal v. Suresh Thakur, 2008 (2) SLJ (HP) 759: (AIR 2008 (NOC) 1534 (HP) ). It has been held in paragraphs 11 and 12 of the judgment as follows : "in the present case the verification is admittedly not in accordance with the provisions of the Code of Civil Procedure. The provisions of Section 165 of the Act cast a mandatory duty on the authorized Officer to dismiss the petition if the election petition is not furnished in the prescribed manner or the petition is not presented within the period specified under Section 163. The manner of filing the petition is prescribed in Sections 163, 163-A, 164 and Rules framed thereunder. Section 164 clearly lays down that the petition must be signed and verified in the manner laid down by the Court for verification of the pleadings. Therefore, without going into the question whether the averments made in the petition amounted to laying charges of corrupt practice, the petition had to be verified in accordance with the provisions of Code of Civil Procedure. This has admittedly not been done. It is thus clear that the petition has not been furnished filed in the prescribed manner. The Rulings relied upon by Sh. B. C. Negi have no applicability to the present case. The language of Section 165 of the Act is much wider than Section 86 of the RP Act. Under section 86 the High Court can reject only those petitions which do not comply with the provisions of Sections 81, 82 or 117 of the rp Act. Under Section 165 of the Act the authorized Officer shall dismiss a petition which is not furnished in the prescribed manner or within the prescribed time. The legislature in its wisdom framed the section in such wide terms. Under Section 165 of the Act the authorized Officer shall dismiss a petition which is not furnished in the prescribed manner or within the prescribed time. The legislature in its wisdom framed the section in such wide terms. The Court cannot add or substract any word from the statute. The language of Section 165 leads to only one clear-cut conclusion that any election petition not filed in the manner prescribed under the Act or the Rules has to be dismissed. " ( 18 ) STRONG reliance is also placed on a decision of the Supreme Court in Baldev singh v. Shinder Pal Singh, reported in (2007) 1 SCC 341, wherein it has been held in paragraph 23 as follows : "the verification of an election petition, it was trite, must be done strictly in terms of order 6, Rule 15 of the Code of Civil Procedure. It was, thus, incumbent on the part of the respondent herein to specifically State as to which statements made in the election petition were true to his knowledge and which were true to his belief. A factual averment made in the election petition cannot be both true to the knowledge and belief of the deponent. " ( 19 ) LEARNED counsel for the party respondent and learned Additional Advocate General contended that the defect in the verification of the election petition is curable defect and that position has been settled by the various decisions of the Supreme Court, with reference to the Representation of the People act, 1951, wherein also the provision regarding verification of the petition is similar. Reference is invited in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, AIR 1955 SC 610; murarka Radhey Shyam Ram Kumar v. I. Roop Singh Rathore, AIR 1964 SC 1545; F. A. Sapa v. Singora, 1991 (3) SCC 375 : (AIR 1991 SC 1557); Dr. Vijay Laxmi Sadho v. Jagdish, AIR 2001 SC 600 and Sardar harcharan Singh Brar v. Sukh Darshan Singh, 2004 (11) SCC 196 : AIR 2005 SC 22. ( 20 ) AS far as the decision of this Court in deepender Rohal's case (supra) is concerned, the same does not refer to the proviso to section 165 of the Act wherein it is clearly provided that no election petition shall be dismissed without giving the petitioner an opportunity of being heard. What is the purpose of that proviso is the crucial question. What is the purpose of that proviso is the crucial question. ( 21 ) IN F. A. Sapa v. Singora (supra) it has been held as follows : "the verification of the petition as required by Section 83 (1) (c) must be in the manner laid down by Rule 15 of Order 6, civil Procedure Code. The defect in the verification can be (i) of a formal nature and not very substantial (ii) one which substantially complies with the requirements and (iii) that which is material but capable of being cured. The object of requiring verification of an election petition is clearly to fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time discouraging wild and irresponsible allegations unsupported by facts. . . . . . . . . . . . . . . . . . . . . . . . . . A defect in the verification, if any, can be cured. Mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. Since section 83 is not one of three provisions mentioned in Section 86 (1), ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under section 81. " ( 22 ) IN Dr. Vijay Laxmi Sadho's case (supra) the Supreme Court held as follows : "an election petition is liable to be dismissed in limine under S. 86 (1) of the Act only if the election petition does not comply with either of the provisions of S. 81 or S. 82 or S. 107 of the Act. The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in S. 83 (1) of the Act. Thus, an election petition is not liable to be dismissed in limine under S. 86 of the Act, for alleged non-compliance with provisions of S. 83 (1) of the Act or of its proviso. What other consequences, if any, may follow from an allegedly 'defective' affidavit, is to be judged at the trial of an election petition but S. 86 (1) of the Act in terms cannot be attracted to such a case. What other consequences, if any, may follow from an allegedly 'defective' affidavit, is to be judged at the trial of an election petition but S. 86 (1) of the Act in terms cannot be attracted to such a case. Defect in verification of an affidavit is curable and does not merit dismissal of an election petition in limine under S. 86 (1) of the act. " ( 23 ) IN Sardar Harcharan Singh Brar's case (supra) the Supreme Court held as follows : "the proviso to Section 83 (1) of the Act is couched in a mandatory form inasmuch as it provides that a petition alleging corrupt practice shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. The form is prescribed by Rule 94-A. Non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86 (1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of section 83 (1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may flow from an allegedly 'defective' affidavit, is required to be judged at the trial of an election petition but section 86 (1) of the Act in terms cannot be attached to such a case. Having formed an opinion that there was any defect in the affidavit, the election petitioner should have been allowed an opportunity of removing the defect by filing a proper affidavit. Else the effect of such failure should have been left to be determined and adjudicated upon at the trial. The election petition is therefore restored to the file of the High Court. " ( 24 ) BOUND and guided by the above settled principles, it is fairly clear that the legislature by the proviso under Section 165 of the act intended to give an opportunity to the petitioner in an election petition to cure the curable defects. The election petition is therefore restored to the file of the High Court. " ( 24 ) BOUND and guided by the above settled principles, it is fairly clear that the legislature by the proviso under Section 165 of the act intended to give an opportunity to the petitioner in an election petition to cure the curable defects. ( 25 ) IN Deepender Rohal's case (supra) decided by this Court, the proviso under Section 165 of the Act and the impact thereof have not been considered and therefore, the said decision in Deepender Rohal v. Suresh thakur, 2008 (2) SLJ (HP) 759 : (AIR 2008 (NOC) 534 (HP)) is rendered per curiam and it does not hence reflect the correct position of law. ( 26 ) IN Baldev Singh v. Shinder Pal Singh (supra) the Supreme Court considered the impact of Section 78 of the Punjab State Election Commission Act, 1994. Section 78 of the said Act reads as follows : "78 (1) (a) contain a concise statement of the material facts on which the petitioner relies; (b) set forth full particulars of any corrupt practice that the petitioner alleges, including a statement as possible, of the names of the parties alleged to have committed such corrupt practice or practices and the date and place of the commission of such practice; and (c) be signed by the petitioner and verified in the manner laid down in the Code of civil Procedure, 1908 for the verification of pleadings. " ( 27 ) IT is to be noted that the said provision does not contain a proviso for giving an opportunity to the petitioner, as specifically provided under Section 165 of the Himachal pradesh Panchayati Raj Act, 1994, Bereft of such a proviso only, the Apex Court held that the verification should be strictly in terms of order VI, Rule 15, Code of Civil Procedure. Therefore, Baldev Singh's case (supra) is of no support to the appellant. ( 28 ) AS already stated above, the provision regarding verification of election petition under the Himachal Pradesh Panchayati raj Act is only a legislation by reference. Therefore, the general principles regarding verification and curing the defects in verification should apply to the defects, if any, in the election petition as referred to in Section 164 of the Act. ( 28 ) AS already stated above, the provision regarding verification of election petition under the Himachal Pradesh Panchayati raj Act is only a legislation by reference. Therefore, the general principles regarding verification and curing the defects in verification should apply to the defects, if any, in the election petition as referred to in Section 164 of the Act. ( 29 ) ALL that apart it has also to be seen that expression under Section 165 of the Act 'prescribed manner' has also to be understood in terms of Section 2 (30) of the himachal Pradesh Panchayati Raj Act, 1994 as prescribed by the Rules made under the act. Rules 94 and 95 provide for presentation of the petition and security deposit. Rule 94 (3) alone speaks of affidavit and that affidavit is only the affidavit referred to in proviso to sub-section (1) of Section 164 regarding corrupt practice and it is prescribed that the same shall be in Form 43 and shall be sworn before the Magistrate. In the instant case, the election petition is not grounded on corrupt practice and therefore, the question of the affidavit in the prescribed manner does not as such arise in this case. In that view of the matter also, the position that the defect in the verification of the pleadings is only a curable defect is reinforced. ( 30 ) AS already noted herein before, the election petition in this case does contain a verification. The only Annexure is a certified copy of a judgment which does not require verification. Apparently, the only defect is that there is no separate affidavit as required under Order VI, Rule 15 (4), a separate affidavit in support of the pleadings, as required by the amendment introduced with effect from 1st July, 2002 by the amendment act No. 46 of 1999. That certainly is a curable defect, in view of well settled position referred to above. ( 31 ) THE learned single Judge has only given such an opportunity to the petitioner to cure the defects, in case at the time of trial it is found that there are curable defects. ( 32 ) IN the above circumstances, we do not find any merit in the appeal. It is accordingly dismissed. ( 31 ) THE learned single Judge has only given such an opportunity to the petitioner to cure the defects, in case at the time of trial it is found that there are curable defects. ( 32 ) IN the above circumstances, we do not find any merit in the appeal. It is accordingly dismissed. In view of the fact that the election petition has been filed in the year 2006, there will be a direction to the Sub-Divisional Officer (Civil), Rampur Bushehr to dispose of the election petition within a month from the date of production of a copy of the judgment by either party. Appeal dismissed. --- *** --- .