Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 449 (ORI)

Upendra Dhal v. Gouranga Prasad Sahoo

2013-10-10

B.N.MAHAPATRA, I.MAHANTY

body2013
JUDGMENT : B.N. MAHAPATRA, J. - The Appellant in the present Writ Appeal assails the legality/validity of the Judgment dated 12.08.2013 passed by the Learned Single Judge in W. P.(C) No.11859 of 2013 upholding the Judgment/Order Dated 29.03.2013 passed by the Civil Judge (Junior Division), Jajpur (for short, 'Election Tribunal') in Election Case No.7 of 2012 & the Appellate Order Dated 14.05.2013 passed by the District Judge, Jajpur (for short, 'Appellate Authority') in Election Appeal No.9 of 2013. 2. Appellant's case in a nut shell is as follows:- The election for the post of Sarapanch of Bitana Grama Panchayat in the district of Jajpur was held on 15.02.2012. The Appellant & Respondent No.1 along with other candidates filed their nominations. The nomination of the Appellant was challenged by Respondent No.1 before the Election Officer on the ground that the Appellant has three children after the cutoff date. The said objection was rejected.' The Appellant won the Election as 1443 votes were polled for the Appellant & 1394 votes were polled for Respondent No.1. Accordingly, the present Appellant was declared as returned candidate & as Sarapanch of Bitana Grama Panchayat. Challenging the election of the Appellant, Petitioner-Respondent No.1 filed an Election petition under the Orissa Grama Panchayat Act, 1964 (for short, 'the Act, 1964') before the Election Tribunal, i.e., the Civil Judge (Junior Division), Jajpur being Election Case No.7 of 2012. Written statement (Ann'exure-2) was filed taking a ground that the Election Case was filed without being supported by any affidavit as required under Section 3(2) of the Act, 1964 read with Order VI, Rule 15(4), CPC. Respondent No.1 never asked for curing the defect. Learned Election Tribunal with the above defect tried the Election petition on merit & nullified the election of the Appellant as Sarapanch vide Order Dated 29.03.2013 (Annexure-3). Being dissatisfied, the Appellant filed Election Appeal No.9 of 2013 before the designated Appellate Authority, which was dismissed upholding the Order Dated 29.03.2013 of the Election Tribunal vide Order Dated 14.05.2013 passed under Annexure-4. Learned Appellate Authority has affirmed the order of the Trial Court on merit without recording any finding as regards the maintainability of the proceeding in absence of curing the defect which is in contravention of Section 33(2) of the Act, 1964 read with Order VI Rule 15(4), CPC. Learned Appellate Authority has affirmed the order of the Trial Court on merit without recording any finding as regards the maintainability of the proceeding in absence of curing the defect which is in contravention of Section 33(2) of the Act, 1964 read with Order VI Rule 15(4), CPC. Challenging the order passed under Annexure-4, the Appellant filed a Writ Petition before this Court on the ground that the Election petition was put to trial by the Election Tribunal with incurable defect as the Election petition was not supported by affidavit & that had no 3rd child on the date of filing the nomination. Name of the 3rd child disclosed by the Respondent No.1 is not his child & happens to be the natural daughter of Gajendra Dhala & Susamarani Dhala. The Writ Petition was disposed of on 12.08.2013 under Annexure-5 holding that non-compliance of Section 33(2) of the Act, 1964 read with Order VI, Rule 15(4), CPC is a curable defect & non-curing of the same is not fatal & does not affect the maintainability of the Election petition. On that sole ground, the Writ Petition was dismissed & the order of Election Tribunal as well as the Appellate Authority disqualifying the Appellant for the post of Sarapanch of Bitana Grama Panchayat was upheld. Hence, the present Writ Appeal. 3. Mr. Rath, Learned Counsel appearing on behalf of the Appellant submitted that the order passed by the Learned Single Judge is contrary to law & erroneous one. The Appellant in paragraph 4 of his objection, took a specific stand that the Election petition is barred by Section 33(2) of the Act, 1964 read with Order- VI, Rule 15(4), CPC & the Petitioner having not complied with these statutory provisions, the Election petition is liable to be rejected. Despite such specific objection of the Appellant, the Learned Trial Court neither decided the question of maintainability on preliminary issue before putting the election petition to trial nor passed the order dealing with the above objection with other issues in the trial. Similarly, the Appellate Court has also failed to take cognizance of the above objection & record any finding on such objection. The Courts below should have dismissed the Election petition at the outset without going into merits of the case. Similarly, the Appellate Court has also failed to take cognizance of the above objection & record any finding on such objection. The Courts below should have dismissed the Election petition at the outset without going into merits of the case. If the same is held to be directory, the Appellate Court should have remanded the matter to the Trial Court for curing of the defect by the election Petitioner before the election Tribunal. As the requirement of Section 33(2) is held to be directory, the requirement has to be complied with & the defect should have been removed by the Trial Court. Learned Single Judge has erroneously held that non-filing of affidavit in the election petition is not fatal & does not affect the maintainability of the Election petition. The intention of the Legislature is that the Election-Petitioner for redressal of his dispute is required under the Act, 1964 & CPC to file the Election petition in proper format & procedure. In the present case, the election petition was not presented in the prescribed format & procedure being not accompanied by affidavit. Under the Election Law, the election dispute cannot be treated at par with the procedure prescribed by the common law proceeding. The provisions in the Act, 1964 are mandatory in nature. A democratically elected candidate cannot be put to harassment on a vague plea & improper petition. The Learned Single Judge is not correct in holding that Section 33(2) of the Act, 1964 read with Order VI, Rule 15(4), CPC is not mandatory. Learned Single Judge failed to appreciate the decision of the Hon'ble Supreme Court in the case of P. A. Mohammad Riyas Vs. M.K. Raghavan & Ors., AIR 2012 SC 2784 & the larger Bench decision in G.M. Siddeshwar Vs. Prassanna Kumar, 2013 (4) SCC 776 . In the case of G.M. Siddeshwar (supra) as per Section 83(1)(c) of the Representation of the People Act read with Order VI, Rule 15(4), CPC one affidavit was filed with verification of the plaint. So in that case it was held that one affidavit is sufficient in an Election petition. This means an affidavit filed with defect can be cured by the election Petitioner, but in the present case no affidavit was filed by the election-Petitioner at all. So the defect was not curable either by parties or by the Trial Court or by the Appellate Court. This means an affidavit filed with defect can be cured by the election Petitioner, but in the present case no affidavit was filed by the election-Petitioner at all. So the defect was not curable either by parties or by the Trial Court or by the Appellate Court. Therefore, non-curing of defect in the election proceeding in terms of the Act, 1964 is fatal as the defect is inherent in nature. Moreover in G.M. Siddeshwar (supra), the Hon'ble Court has held that requirement of filing an affidavit is mandatory. Concluding his argument, Mr. Rath made a prayer to allow the Writ Appeal. 4. Mr.S.S. Das, Learned Counsel appearing on behalf of Respondent No.1 submitted that the Appellant cannot, as a trickster, escape from the rigours of Law on the ground of mere technicality which does not have any nexus or bearing on the merit of the case, particularly when it has been categorically established beyond any reasonable doubt that the Appellant got himself elected as Sarapanch of Bitana Grama Panchayat in the district of Jajpur by committing fraud & misrepresentation. The Trial Court as well as the Appellate Court has taken into consideration both oral & documentary evidence & come to the conclusion that the Appellant had earned disqualification with the scope & ambit of Section 25(1)(V) of the Act, 1964 as he has more than two children after the commencement of Orissa Grama Panchayat (Amendment) Act, 1994. Placing reliance on Section 99, CPC, Mr. Das submitted that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal, on account of any misjoinder or nonjoinder of parties or causes of action or any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the case or the jurisdiction of the Court. The present election proceeding in pith & substance being a Suit & the trial culminating into its finality through the Judgment dated 29.03.2013 passed by the Trial Court & confirmed by Order Dated 14.05.2013 in Election Appeal No.9 of 2013, there remains no scope for interference at this level on the sole ground that the Election petition suffered from a defect due to want of an affidavit as required under Order VI Rule 15(4), CPC though verification was made by the Appellant in consonance with Order VI, Rule 15(1), (2) & 3, CPC. In support of his contention, Mr.Das relied on a Judgment of the Hon'ble Supreme Court in the case of Kiran Singh & ors Vs. Chaman Paswan & ors, AIR 1954 SC 340 . 5. Mr. Das, further placing reliance on the Judgment of the Hon'ble Supreme Court in the case of Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar legislative Council & others, AIR 2005 SC 69 , submitted that on account of non-filing of an affidavit as required by sub-Rule (4) of Rule 15 of Order VI, CPC, the petition would not be rendered invalid if sub-Rules (1), (2) & (3) of Order VI Rule 15, CPC are complied with. On strict compliance of such technicalities it would so happen that a defaulting party who has otherwise incurred the disqualification would be able to get away by taking the advantage of even a slight or insignificant error in the petition. Further placing reliance on the Judgment of the Hon'ble Supreme Court, in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, AIR 2005 SC 3353 , it was submitted by Mr. Das that the purport of inclusion of sub-Rule (4) of Rule 15 of Order VI, CPC has been clarified & held that the affidavit required to be filed has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings & such an affidavit would not be evidence for the purpose of the trial. Further placing reliance on the Judgments of the Hon'ble Supreme Court in the cases of P.A. Mohammad Riyas Vs. M.K. Raghavan & Ors., AIR 2012 SC 2784 & G.M. Siddeshwar (supra), Mr. Das submitted that the affidavit, which is required to be filed in support of the pleading is not a part of verification of pleading but a stand alone document; in absence of compliance of Order VI, Rule 15(4), CPC an Election petition would not be rendered void. Further placing reliance on the Judgment of the Hon'ble Supreme Court in the case of Jai Jai Ram Manohar lal Vs. National Building Material Supply, Gurgaon, AIR 1969 SC 1267 (para 5), it was submitted that Rule-s of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence, or even infraction of the Rules of procedure. National Building Material Supply, Gurgaon, AIR 1969 SC 1267 (para 5), it was submitted that Rule-s of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence, or even infraction of the Rules of procedure. Placing reliance on the Judgment of the Hon'ble Supreme Court in the case of Meghamala & Ors. Vs. G. Narasimha Reddy & Ors., 2010 (II) OLR (SC) 778, Mr. Das submitted that the Appellant had already incurred disqualification as per Section 25(1) (V) of the Act, 1964. Despite the same, by suppressing material facts in a clandestine manner the Appellant got elected by committing fraud not only on the authorities but also on the electorates. An affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine. 6. Mr. Das further submitted that the Appellant having earned liability of being disqualified from the membership of Grama Panchayat has approached this Court without having any equity in his favour. Rather by taking advantage of a technical defect an attempt has been made by him to perpetuate an act of fraud to achieve something which is not his entitlement under any legislation. The written statement in which the Appellant took a stand of non-filing of affidavit as per Order VI, Rule 15(4) CPC cannot be treated to be a part of the pleading since the said written statement was not verified by the Appellant. In other words, in absence of compliance of Order VI, Rule 15 (1), (2) & (3) while submitting an objection or written statement it can only be said that the said statement does not form a part of pleadings. Thus, in the instant case, it can be unequivocally stated that there has been no objection regarding maintainability of the Election petition at any stage & even at the Appellate stage. The said aspect has not been also addressed while recording evidence of the parties in the proceeding. The entire endeavour of the Appellant in the instant case is only to get illegal enrichment by taking certain untenable plea. Moreover, a party who approaches this Court with unclean hands cannot claim any equity in whatever manner may it be. Concluding his argument, Mr. Das submitted for dismissal of the Writ Appeal. 7. The entire endeavour of the Appellant in the instant case is only to get illegal enrichment by taking certain untenable plea. Moreover, a party who approaches this Court with unclean hands cannot claim any equity in whatever manner may it be. Concluding his argument, Mr. Das submitted for dismissal of the Writ Appeal. 7. On the rival contentions raised by the parties, the only question that falls for consideration by this Court is as to whether in the facts & circumstances of the case, the Learned Single Judge is justified in holding that non-filing of an affidavit by Respondent No.1 along with election petition as required under Order-VI, Rule 15(4), CPC is not fatal & does not affect the maintainability of the election petition. 8. Learned Single Judge placing reliance on the Judgment of the Hon'ble Supreme Court in the case of G.M. Siddeshwar (supra), more particularly paragraphs 22, 23, 25 & 29 held that the requirement of filing of an affidavit in terms of sub-rule (4) of Rule 15 of Order VI, CPC is not part of the verification of the election petition as required under Section 83(1) of the Representation of the People Act, 1951. The relevant portion of the Judgment of Learned Single Judge is extracted below: "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 of an affidavit in terms of sub-rule (4) of Rule 15 of Order VI of the CPC is not part of the verification of the election petition as required under Section 83(1) of the Representation of People Act, 1951. 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." 9. 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." 9. Learned Counsel for the Appellant placing reliance on paragraph 52 of the Judgment of the Hon'ble Supreme Court in the case of G.M. Siddeshwar (supra), submitted that since there is total & complete non-compliance of Order-VI, Rule 15(4), CPC, the Election petition filed by Respondent No.1 is an invalid petition & the Tribunal lacks jurisdiction to entertain such petition & the said petition is liable to be dismissed at the threshold. This submission of the Appellant is totally misconceived because it is not the case of the Appellant that the Election petition has not been verified as required under Section 33 of 1964 Act. 10. At this juncture, it is relevant to reproduce here paragraphs 23, 25, 29, 33, 34 & 52 of the Judgment of the Hon'ble Supreme Court in G.M. Siddeshwar (supra). "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. The affidavit, in this context, is a stand-alone document. 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 under 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)(c) 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. 29. While the Act does require a verification of the pleadings, the plain language of Section 83(1)(c) 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. 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)(c) 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. 33. The final contention urged under this subject was that in view of the language used in Section 83(1)(c) of the Act, the doctrine of legislation by reference would need to be invoked inasmuch as any amendment to CPC would be applicable to the working of the Act. It was argued that since an amendment was made to Rule 15(4) of Order 6 CPC, that amendment has been legislated by reference in the Act & so the election Petitioner would be bound by the terms thereof & would, therefore, not only need to sign & verify the contents of an election petition, but also file an affidavit in support thereof. Reliance was placed on a Constitution Bench decision in Girnar Traders (3) v. State of Maharashtra. In that case, after an analysis of the entire case law on the subject, the Constitution Bench held: "148. Having perused & analysed the various Judgments cited at the Bar we are of the considered view that this rule [of legislation by reference] is bound to have exceptions & it cannot be stated as an absolute proposition of law that wherever legislation by reference exists, sub-sequent amendments to the earlier law shall stand implanted into the later law without analysing the impact of such incorporation on the object & effectuality of the later law. The later law being the principal law, its object, legislative intent & effective implementation shall always be of paramount consideration while determining the compatibility of the amended prior law with the later law as on relevant date." 34. We are not inclined to debate the contention whether Order 6 Rule 15 CPC has been legislated by reference or by incorporation into the Act for the reasons already indicated above, namely, that on a plain reading of Section 83 of the Act, only a verification & not an affidavit in support of he averments in an election petition is required, except when allegations of corrupt practices are made by the election Petitioner. Any amendment in CPC is of no consequence in this regard unless the meaning of "verification" is amended to include an affidavit. 52. The principles emerging from these decisions are that although non-compliance with the provisions of Section 83 of the Act is a curable defect, yet there must be substantial compliance with the provisions thereof. However, if there is total & complete non-compliance with the provisions of Section 83 of the Act, then the petition cannot be described as an election petition & maybe dismissed at the threshold." 11. A reading of paragraphs 23, 25, 29 & 34 makes it clear that Section 83(1)(c) of the Representation of the People Act requires the verification of the pleading & it does not require an affidavit in support of the pleading in an election petition. Section 83(1)(c) requires the election Petitioner to sign & verify the contents of the election petition in the manner as required by CPC. There is no requirement of the Election Petitioner to file an affidavit in addition to the verification in support of the averments made in the Election petition except when allegation of corrupt practices has been made. As per paragraph-52 of the Judgment although non-compliance with the provisions of Section 83 of the Act is a curable defect, yet there must be substantial compliance with the provisions thereof & if there is total & complete non-compliance with the provisions of Section 83 of the Act, then the petition cannot be described as an election petition & may be dismissed at the threshold. It is nobody's case that the election petition has not been signed by the Petitioner & verified in the manner laid down in C.P.C. for verification of the pleadings. It is nobody's case that the election petition has not been signed by the Petitioner & verified in the manner laid down in C.P.C. for verification of the pleadings. Therefore, there is no defect so far verification of the pleadings is concerned. In other words, verification of the pleadings is complete. The only allegation is that an affidavit as required under Order VI Rule 15(4) has not been furnished along with election petition. As the Hon'ble Supreme Court has categorically held that Section 83(1)(c) of the Act merely requires an election Petitioner to sign & verify the contents of the election petition in the manner prescribed by C.P.C. & there is no requirement of the election Petitioner "also" filing an affidavit in support of the averments made in the election petition except when the allegations of corrupt practices have been made, we do not find any merit in the contentions of the Appellant that the election petition suffers from any defect. 12. At this stage, it is relevant to extract Section 83 (1)(c) of Representation of the People Act & Section 33 of the Act, 1964: 83. 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: 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. (2) Any schedule or annexure to the petition shall also be signed by the Petitioner & verified in the same manner as the petition." 13. Section 33 of the Act, 1964 is pari materia to Section 83 of the Representation of the- People Act, 1951 except that a proviso as highlighted in bold letters above has been added to Section 83(1). Corrupt practices have been defined under Section 41 of the Act, 1964. Section 33 of the Act, 1964 is pari materia to Section 83 of the Representation of the- People Act, 1951 except that a proviso as highlighted in bold letters above has been added to Section 83(1). Corrupt practices have been defined under Section 41 of the Act, 1964. We are not concerned here about any corrupt practice. 14. In the present case, there is no dispute that the election petition has been verified as required under Section 33 of the Act, 1964 read with Order-VI, Rule 15, CPC. Only dispute is that an affidavit in support of the pleadings as required under Order-VI, Rule 15(4), CPC has not been furnished. In view of the Judgment of the Hon'ble Supreme Court in G.M. Siddeswhar ( supra) that Order VI, Rule 15, CPC requires an affidavit "also to be filed" does not mean that verification of plaint is incomplete if the affidavit is not filed & the affidavit in that context is a stand alone document & there is no requirement of the election Petitioner filing an affidavit in support of the averments made in the election petition except when the allegations of corrupt practices have been made, we are of the considered view that the election petition in question is a valid petition & the Election Tribunal has acquired jurisdiction to deal with such petition. 15. For the reasons stated above, the Learned Single Judge is justified in holding that non-filing of affidavit by Respondent No.1 under Order VI, Rule 15(4) of CPC is not fatal & does not affect maintainability of the election petition. 16. In view of the above, we do not find any infirmity or illegality in the order passed by the Learned Single Judge warranting interference by this Court. 17. In the result, the Writ Appeal is dismissed. Appeal dismissed.