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2013 DIGILAW 291 (ORI)

Upendra Dhal v. Gouranga Prasad Sahoo

2013-08-12

B.K.NAYAK

body2013
JUDGMENT B.K. NAYAK, J. 1. In this Writ Petition, in which the Petitioner challenges the Judgment passed by the Civil Judge (Junior Division), Jajpur in Election Misc. Case No.7 of 2012 (Annexure-4) & the Judgment passed by the District Judge, Jajpur in Election Appeal No.9 of 2013 (Annexure-5), the only question that arises for consideration is whether for want of affidavit in support of the pleadings in the Election Petition as required under Order-VI. Rule 15 (4) of the Code of Civil Procedure the Election Petition would become incompetent & hence liable to be dismissed. 2. The Petitioner & Opp. Party No.1 contested the election to the office of Sarpanch of Bitana Gram Pancayat in the district of Jajpur & the Petitioner was declared elected. Opp. Party No.1 filed Election Misc. Case No.7 at 2012 before the Civil Judge (Junior Division), Jajpur challenging the election of the Petitioner on the ground that the Petitioner was disqualified to contest the election since he had three children after the cut off date & that though Opp. Party No.1 raised such objection at the time of nomination, the Election Officer illegally rejected such objection. The Petitioner filed objection to the Election Petition inter alia challenging the maintainability of the proceeding on ground of non-compliance of Section 33 (2) of the Orissa Gram Panchayat Act read with Order-VI, Rule 15 (4) of the Code of Civil Procedure. While deciding the question in Issue No.1 the Civil Judge (Junior Division) in his Judgment dated 29.03.2013 has not given any finding on the objection raised though it declared the election of the Petitioner void on the ground that he was disqualified to contest the election to the office of Sarpanch. 3. The Petitioner challenged the Judgment passed in the Election Case before the District Judge, Jajpur by filing Election Appeal No.9 of 2013. By Judgment dated 14.5.2013 (Annexure-5), the Learned District Judge, Jajpur dismissed the appeal & confirmed the Judgment passed by the civil Judge (Junior Division) in the Election Case. it appears from the Appellate Judgment that no question with regard to maintainability of the Election Petition for non-compliance of the provision of Section 33 of the Orissa Gram Panchayat Act read with Order-VI, Rule 15 (4) of the Code of Civil Procedure was raised by the Petitioner before the Appellate court & therefore, no decision on such question has been given. 4. 4. Chapter-V comprising of Sections 27 to 43 of the Orissa Gram Panchayat Act, 1964 (in short 'the Act') provides for conduct of Election & election dispute. Section 30 of the Act provides that no election of any person as a member, Sarpanch or Naib Sarpanch of a Gram Panchayat held under this Act shall be called in question except by an election petition presented in accordance with the provisions of Chapter-V. Under Section 31, the Civil Judge (Junior Division) having jurisdiction over the place at which the office of the Gram Sasan is situated, has been constituted the Election Tribunal before whom the Election Petition is to be filed. The said Section also provides for the limitation for presenting the petition with further provision for condonation of delay. Section 32 relates to the parties to the Election Petition. Section 33 of the Act which provides for the contents of the petition & the manner of its filing, & with which we are concerned, is extracted hereunder: "33. Contents of petition: (1) An election petition: (a) shall contain a 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 & the date & place of the commission of each such practice; & (c) shall be signed by the Petitioner & verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings. (2) Any schedule or annexure to the petition shall also be signed by the Petitioner & verified in the same manner as the petition." 5. It is seen from Clause (c) of sub Section (1) of Section 33 that the Election Petition shall be verified in the manner laid down in the Code of Civil Procedure, 1980 for the verification of pleadings. Order-VI, Rule 15 stipulates the manner in which pleadings are to be verified. It is seen from Clause (c) of sub Section (1) of Section 33 that the Election Petition shall be verified in the manner laid down in the Code of Civil Procedure, 1980 for the verification of pleadings. Order-VI, Rule 15 stipulates the manner in which pleadings are to be verified. It provides as under: "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 the verifies of his own knowledge & what he verifies upon information received & believed to be true. (3) The verification shall be signed by the person making it & shall state the date on which & the place at which it was signed." (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings. 6. Sub Rule(4) of Rule 15 of Order VI of the C.P.C. was inserted by way of C.P.C. Amendment Act, 46 of 1999 with effect from 30.12.1999. Prior to the amendment, affidavit of the person verifying the pleadings was not required. The Election Petition filed by Opp. Party No.1 before the Civil Judge (Junior Division), Jajpur has been brought on record as Annexure-1 to the Writ Petition. Admittedly, It does not contain any affidavit or the verificant (Opp. Party No.1 as required under Order 6. Rule 15 (4) of the C.P.C.T his factual position is not disputed by the leaned Counsel for Opp. Party No.1. While Learned Counsel for the Petitioner contends that non-furnishing of affidavit, as required under Order-VI Rule 15 (4) of the Code of Civil Procedure, which is part of verification, makes the petition incompetent & hence non-maintainable, the Learned Counsel for Opp. Party No.1 submits that the provision is not mandatory & non-compliance thereof does not vitiate the proceeding & the Judgment passed therein in view of the provision in Section 99 of the C.P.C. 7. Party No.1 submits that the provision is not mandatory & non-compliance thereof does not vitiate the proceeding & the Judgment passed therein in view of the provision in Section 99 of the C.P.C. 7. Section 33 of the Act is pari materia to Section 83 of the Representation of the People Act, 1951 except that a proviso has been added to Section 83(1) to the following effect: "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 corrupt practice & the particulars thereof." 8. The Supreme Court in the case of Jyoti Basu & others v. Debi Ghosal & others: AIR 1982 SC 983 held as follows:. "8. A right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a Common Law Right It is pure & simple a statutory right So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected & no right to dispute an election. Statutory creations they are, & therefore subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common Jaw nor the principles of equity apply but only those rules which the statute makes & applies. It is a special jurisdiction & a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law & Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes is what the statute lays down. In the trial of election disputes, Court is put in a straightjacket 9. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes is what the statute lays down. In the trial of election disputes, Court is put in a straightjacket 9. In the case of Regu Mahesh alias Regu Maheswar Rao v. Rajendra Pratap Bhanj Dev & another: AIR 2004 SC 38 , while examining the contention, among others, that the affidavit with regard to corrupt practice in election accompanying the election petition was not in the prescribed form & that verification done did not conform to the requirements as laid down in the statute, the Apex Court relying upon its earlier decision in the case of F.A. Sapa v. Singora : AIR 1991 SC 1557 held as follows: "12. It is, therefore, a settled position in law that defect in verification or an affidavit is curable. But further question is what happens when the defect is not cured. There is gulf of difference between a curable defect & a defect continuing in the verification affidavit without any effort being made to cure the defect. 13. In F.A. Sapa's case (supra) it was held that even though ordinarily a defective verification can be cured & the failure to disclose the grounds or sources of Information may not be fatal, failure to place them on record with promptitude may lead the Court in a given case to doubt me veracity of the evidence ultimately tendered. 14. xxx xxx in the present case the detect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed & pursued by arguing the same before the Court. However, the Petitioner persisted in pursuing the : position without proper verification which the Petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, tile petition could not have been tried." 10. A two-Judge Bencher the Apex Court in the case of P.A. Mohammad Riyas v. M.K. Raghavan & Ors.: AIR 2012 SC 2784 was directly confronted With the question of want of affidavit as per Order – VI, Rule – 15(4) of the C.P.C. in the election petition & held as follows: 25. xxx xxx In this context, we are unable to accept Mr. xxx xxx In this context, we are unable to accept Mr. Venugopal's submission that despite the fact that the proviso to Section 83(1) of the 1951 Act provides that where corrupt practices are alleged, the Election Petition shall also be accompanied by an affidavit in the prescribed form, it could not have been the intention of the legislature that two affidavits would be required, one under Order VI Rule 15(4) CPC & the other in Form 25. We are also unable to accept Mr. Venugopal's submission that even in a case where the proviso to Section 83(1) was attracted, a single affidavit would be sufficient to satisfy the requirements of both the provisions Mr. Venugopal's submission that, in any event. since the Election Petition was based entirely on allegations of corrupt practices, filing of two affidavits in respect of the selfsame matter, would render one of them redundant, is also not acceptable. As far as the decision in F.A. Sapa's case (supra) is concerned, it has been clearly indicated that the petition, which did not strictly comply with the requirements of Section 86(1) of the 1951 Act could not be said to be an Election Petition as contemplated in Section 81 & would attract dismissal under Section 86(1) of the 1951 Act. xxx xxx ." 11. The correctness of P.A. Mohammad Riyas (supra) having been doubted, the matter was referred to a larger Bench. A three Judge Bench of the Court in the case of G.M. Siddeshwar v. Prasanna Kumar: (2013) 4 SCC 776 held as follows: "22. A Plain reading of Rule 15 suggests that a verification of the plaint is necessary. In addition to the verification, the person verifying the plaint is "also" required to file an affidavit in support of the pleadings. Does this mean, as suggested by the Learned Counsel for Siddeshwar that Prasanna Kumar was obliged to file two affidavits one in support of the allegations of corrupt practices & the other in support of the pleadings? 23. A reading of Section 83(1) (c) of .the Act makes it clear that what is required of an election Petitioner is only that the verification should be carried out in the manner prescribed in CPC. That Order 6 Rule 15 requires an affidavit "also" to be filed does not mean that the verification of a plaint is incomplete if an affidavit is not filed. That Order 6 Rule 15 requires an affidavit "also" to be filed does not mean that the verification of a plaint is incomplete if an affidavit is not filed. The affidavit, in this context, is a stand alone document. 24. xxx xxx xxx 25. It seems to us that a plain & simple reading of Section 83(1) (c) of the Act clearly indicates that the requirement of an additional affidavit is not to be found therein. While the requirement of "also" filing an affidavit in support of the pleadings filed tinder CPC may be mandatory in terms of Order 6 Rule 15(4) CPC, the affidavit is not a part of the verification of the pleadings both are quite different. While the Act does require a verification of the pleadings, the plain language of Section 83(1) (6) of the Act does not require an affidavit in support of the pleadings in an election petition. We are being asked to read a requirement that does not exist in Section 83(1) (c) of the Act. 26. xxx xxx xxx 27. xxx xxx xxx 28. xxx xxx xxx 29. While the necessity of filing an affidavit in: support of the facts stated in a plaint may be beneficial & may have salutary results but we have to go by the law as it is enacted & not go by the law as it ought to be CPC no doubt requires that pleadings be verified & an affidavit "also" be filed in support thereof. However, Section 83 (1)(d) of the Act merely requires an election Petitioner to sign & verify the contents of the election petition in the manner prescribed by CPC. There is no requirement of the election Petitioner "also" filing an affidavit in support of the averments made in the election petition except when allegations of corrupt practices have been made. 12. It is apparent from the law laid down by the Apex Court in the case of G.M. Siddeshwar (supra) that the requirement of filing an affidavit in terms of sub rule (4) of Rule 15 of Order-VI of the C.P.C. is not part of the verification of the election petition as required under Section 83 (1) of the Representation of the People Act. The same principle would also apply to an election petition under Section 33 of the Orissa Gram Panchayat Act. Therefore, non-filing of affidavit by Opp. The same principle would also apply to an election petition under Section 33 of the Orissa Gram Panchayat Act. Therefore, non-filing of affidavit by Opp. Party No.1 under Order-VI Rule 15(4) of the Code of Civil Procedure is not fatal & does not affect the maintainability of the election petition. Besides, in the election appeal the Petitioner has not raised the contention with regard to non-filing of affidavit as per Order-VI Rule 15(4) of the Code of Civil Procedure by Opp. Party No.1. In the aforesaid view of the matter, I find no merit in the Writ Petition, which is accordingly dismissed.