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2013 DIGILAW 524 (HP)

TULA RAM v. STATE OF H. P.

2013-06-12

KULDIP SINGH, SANJAY KAROL

body2013
JUDGMENT KULDIP SINGH, J. 1. THE order dated 19.3.2013 passed by Deputy Commissioner, Shimla in Appeal No. 24 of 2012 affirming order dated 23.7.2012 passed by the Authorised Officer-cum-Sub Divisional Officer (Civil), Rampur Bushahr has been assailed under Articles 226 and 227 of the Constitution of India. 2. THE pleaded case of the petitioner is that he contested the election of Pradhan, Gram Panchayat, Badhal notified on 29.11.2010. The respondents No. 3 and 4 also contested the said election. The petitioner was elected as Pradhan, Gram Panchayat, Badhal. The respondent No.3 challenged the election of petitioner by Whether the reporters of the local papers may be allowed to see the Judgment? yes filing election petition under the Himachal Pradesh Panchayati Raj Act, 1994 (for short 'Act'). The petitioner moved an application under Section 164 (2) of the Act before the Authorised Officer-cum-Sub Divisional Officer (Civil), Rampur Bushahr on 16.5.2012 on the ground that the petition filed by respondent No.3 was not in consonance with the Act and more particularly Section 164 (2) of the Act. The respondent No.3 contested the application on the ground that the application has been filed at belated stage. It was contended that no annexures were filed, rather some documents in the form of evidence have been filed which need no signatures and verification as those documents are per se admissible. 3. THE Authorised Officer-cum-Sub Divisional Officer (Civil), Rampur Bushahr dismissed the application on 23.7.2012 on the ground that the application has been filed when the evidence of the parties is over. The petitioner filed an appeal before the Deputy Commissioner, Shimla against the order dated 23.7.2012, but that appeal has also been dismissed on 19.3.2013. 4. IT has been stated that the authorities below did not appreciate Section 164 (2) of the Act and erred in dismissing the application, Section 164 (2) is mandatory and non-compliance thereof leads to dismissal of the petition. We have heard learned counsel for the parties. The petitioner moved an application under Section 164 (1) (C) and Section 164 (2) of the Act and stated that as per Section 164 (1) (C), the election petition is to be verified in accordance with Order 6 Rule 15 (4) CPC, but respondent No.3 did not file any affidavit in support of the petition. The petitioner moved an application under Section 164 (1) (C) and Section 164 (2) of the Act and stated that as per Section 164 (1) (C), the election petition is to be verified in accordance with Order 6 Rule 15 (4) CPC, but respondent No.3 did not file any affidavit in support of the petition. The Section 164 (2) of the Act provides signing and verification in the same manner of annexures filed in support of the petition. But the documents filed with the petition have not been signed and verified in accordance with Section 164 (2) of the Act. The petitioner prayed for dismissal of the election petition. 5. THE respondent No.3 contested the application and has pleaded that the petition was fixed for final arguments but the petitioner deliberately in order to delay the final disposal of the petition on merits moved frivolous application. The Section 164 (1) (C) has been complied with. The petition has been properly verified and supported by an affidavit. The respondent No.3 has not filed any annexure rather the documents in the form of evidence have been filed which do not require signature and verification. The said documents if not per se admissible are to be proved in accordance with law. 6. THE Section 164 of the Act is as follows: "164. Contents of petition.-(1) An 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 corrupt 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 petition." The Section 165 of the Act is as follows: "165. (2)Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." The Section 165 of the Act is as follows: "165. Procedure on receiving election petitions.-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. THE learned counsel for the petitioner has submitted that Section 164 (2) of the Act provides that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. It has also been urged that as per Section 165 of the Act if the election petition is not furnished in the prescribed manner the Authorised Officer shall dismiss the petition after giving an opportunity of being heard. The documents filed with the petition are not signed and verified in the manner provided in sub section (2) of Section 164 and, therefore, the petition is liable to be dismissed. The affidavit in support of the petition has not been filed and on this ground also the petition is liable to be dismissed. 8. IT has been provided in Section 164 of the Act 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 and the particulars thereof. There is no averment in the application that any corrupt practice has been alleged in the petition, therefore, the petition cannot be dismissed for want of affidavit as alleged in the application. The sub section (2) of Section 164 of the Act provides that any schedule or annexure to the petition shall be signed and verified in the same manner as the petition. It doesn't require signing and verification of a document. The sub section (2) of Section 164 of the Act provides that any schedule or annexure to the petition shall be signed and verified in the same manner as the petition. It doesn't require signing and verification of a document. Some times for elaborating the pleadings in a better way, schedule or annexure is used to make the point clear in the pleadings, for example, if suit involves huge properties then instead of describing the properties in particular paragraphs of the plaint, the details of the properties are given in a schedule, similarly if a property is to be identified, then that property sometimes is identified by putting marks or colouring on a paper and tagged with the plaint either as schedule or annexure. In that situation, schedule or annexure becomes part of the pleadings in the plaint. In that context, where schedule or annexure is made as part of pleadings in the petition under the Act then such schedule or annexure is required to be signed and verified in the same manner as petition. 9. IT will be appropriate to refer to Section 83 of the Representation of the People Act, 1951 (for short Rs.1951 Act') in order to appreciate the contention of learned counsel for the petitioner that for want of signatures and verification on the annexures filed with the petition, the petition is to be dismissed under Section 165 of the Act. The Section 83 of the 1951 Act is as follows : "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 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 (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 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 petition." 10. THE Section 83 (2) of the 1951 Act which is para materia to Section 164 (2) of the Act has been interpreted by the Supreme Court in Smt. Sahodrabai Rai vs. Ram Singh Aharwar and others AIR 1968 SC 1079 . In that case, it has been held as follows: "We are quite clear that sub-section(2) of Section 83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put in not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition." The stand of respondent No.3 is that he has filed documents in the form of evidence. There is no specific averment in the application that annexures filed with the petition are in fact part of the pleadings of respondent No.3 in the petition. The petitioner in the application has averred that respondent No.3 has filed documents i.e. copy of missal hakiyat, copy of application for regularization, copy of report made by the Patwari and copy of Tatima which are not signed by the petitioner as per requirement of Section 164 (2) of the Act. The perusal of Section 164 (2) would show that the only schedule or annexure to the petition is required to be signed and verified by the petitioner in the same manner as petition. The Act does not provide the signing and verification of a documents filed with the petition which have been filed by the petitioner to prove the averments made in the petition and when such documents are not part of pleadings. 11. The Act does not provide the signing and verification of a documents filed with the petition which have been filed by the petitioner to prove the averments made in the petition and when such documents are not part of pleadings. 11. IN view of above, there is no merit in the petition, which is dismissed, so also the pending application(s), if any.