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2015 DIGILAW 434 (GAU)

Sushmita Begum v. State of Assam

2015-04-08

A.K.GOSWAMI

body2015
ORDER : ” Heard Mr. A.M. Buzarbaruah, learned senior counsel for the petitioner. Also heard Mr. M.U. Mahmud and Mr. N. Borah, learned standing counsel appearing for the State Election Commission, Assam; Mr. H. Rahman, learned State counsel as well as Mr. D Mazumdar, learned senior counsel appearing for the respondent No. 5. 2. The State Election Commission issued a Notification dated 17.12.2012 to hold General Election to the Panchayats in the State of Assam in three phases as per schedule mentioned thereto. The last date of filing nomination was fixed on 08.01.2013 and counting of votes was slated on 14.02.2013 and 15.02.2013. The respondent No. 5 submitted her nomination paper for the post of Member from 70 No. Baligaon Gram Panchayat area to No.6 Bechimari Anchalik Panchayat. The writ petitioner had also submitted her nomination paper for the said post of Member. The petitioner was declared elected for the post of Member. 3. The respondent No. 5 had filed an election petition on 10.04.2013 under Section 129 of the Assam Panchayat Act, 1994, for short, the Act, in the Election Tribunal, Mangaldai, Darrang, which was registered as Misc. (Election) Petition No. 25/2013, challenging the election of the writ petitioner as Member of 70 No. Baligaon Gram Panchayat area to No.6 Bechimari Anchalik Panchayat and praying for her election to be declared as null and void by setting aside the recounting of votes as well as result sheet furnished in Assamese. A further prayer was made to declare the said respondent No.5 to be duly elected. 4. On receipt of summons, the writ petitioner submitted her written statement denying the allegations and praying for dismissal of the election petition. 5. Subsequently, the petitioner filed an application under Order 6, Rule 17 read with Section 151 of the CPC, registered as Misc. (Election) Case No.42/2013, for amendment of the election petition stating that due to oversight and inadvertence, the date of accrual of cause of action was not mentioned in paragraph 22 though there was a reference to cause of action in the said paragraph. Accordingly, the proposed amendment was sought to be made in paragraph No. 22 as follows:- ' Proposed amendment' (ii) In para No.(22), the following word may kindly be added after ' arisen' and before ' within'. Accordingly, the proposed amendment was sought to be made in paragraph No. 22 as follows:- ' Proposed amendment' (ii) In para No.(22), the following word may kindly be added after ' arisen' and before ' within'. ' on 15/02/2013 when the result of election was declared and the order of recounting was passed keeping the declaration of result in abeyance and on receipt of the Assamese result sheet on 16th March, 2013 furnished by R/O through the Public Information Officer as per R.T.I. application dated 8/03/2013 by the petitioner and every subsequent date.' 6. Paragraph 22, in its original form, read as follows: ' That the cause of action of the election petition has arisen within the jurisdiction of the Hon” ble Tribunal and as such this Tribunal has the jurisdiction to try the election petition. 7. An objection was filed against the said amendment application contending that the application was filed at a belated stage after filing of the written statement in order to fill up the lacunae in the plaint and if the amendment, as prayed for is allowed, it will change the nature and character of the proceeding. Accordingly, prayer is made for dismissal of the amendment application. 8. The learned Tribunal took up the said application filed under Order 6, Rule 17 read with Section 151, CPC for consideration and by an order dated 24.7.2013, allowed the amendment as prayed for holding that the proposed amendment will not change the nature and character of the case and that refusal to grant the prayer of amendment would make the case of the petitioner infructuous. This order dated 24.7.2013 is the subject matter of challenge in the writ petition. 9. In the writ petition, apart from praying for setting aside the said order dated 24.7.2013 passed in Misc. (Election) Case No.42/2013, prayer is also made for dismissing the election petition being Misc. (Election) Petition No.25/2013 or for a direction to the Election Tribunal, Darrang, Mangaldai to decide the preliminary issue as to whether the election petition is maintainable in view of violation of provision of Section 81(3) of the Representation of the People Act, 1951, for short, the R.P. Act, and for filing the amendment petition after the prescribed period of limitation of 60 days as provided under Section 129(b) of the Act was over. 10. 10. It is pleaded in the writ petition that from the copy of the election petition that was served upon her, it is apparent that the pages of the election petition had not been attested by the election petitioner under her own signature in each page to be a true copy of the election petition, which is not in conformity with the mandatory requirement of Section 81 of the R.P. Act which is also applicable in Panchayat elections in view of Rule 54 of the Assam Panchayat (Constitution) Rules, 1995, for short, 1995 Rules. It is stated that in the written statement the writ petitioner had prayed for rejection of the election petition on the ground of infraction of Section 81(3) of the R.P. Act and that the preliminary objection was not taken up for consideration although urged at the time of consideration of the amendment application. 11. In the affidavit filed by the respondent No. 5, it is stated that question of maintainability of the writ petition did not arise at all in view of the fact that the order dated 24.7.2013 was passed by the learned Election Tribunal on the application filed by her for amendment of the election petition. It is stated that after counting was over, it emerged that she had secured 2770 votes and the writ petitioner had received 2755 votes and accordingly, the result sheet was prepared showing the aforesaid figures. Subsequently, on the basis of an application submitted by the writ petitioner to the Assistant Returning Officer for recounting of votes counted on table No. 6 alleging that she had secured 242 votes as against 234 votes secured by the respondent No. 5, recounting was held behind the back of the respondent No. 5 and the writ petitioner was illegally declared elected. 12. Mr. A.M. Buzarbaruah has submitted that in the written statement, the writ petitioner had specifically taken the plea that there was no cause of action for filing the election petition. It was also pleaded that the petitioner in her election petition had no- where mentioned when and where the cause of action had arisen and as such the election petition was liable to be dismissed as per Order 7, Rule 11, CPC. It is only because to cover the lacunae in the election petition, the application for amendment was filed. It was also pleaded that the petitioner in her election petition had no- where mentioned when and where the cause of action had arisen and as such the election petition was liable to be dismissed as per Order 7, Rule 11, CPC. It is only because to cover the lacunae in the election petition, the application for amendment was filed. However, the same was filed after the period of limitation for filing election petition was over. While accepting that refusal to grant the prayer for amendment would render the election petition infructuous, the learned Tribunal totally failed to take into consideration the fact that the said petition was filed beyond the period of limitation. He has submitted that in the written statement, plea was also taken that the election petition was liable to be rejected for not fulfilling the criteria laid-down in Section 81(3) of the R.P. Act. However, the learned Tribunal did not advert to that aspect of the matter while considering the application for amendment. He cited a decision of the Apex Court in the case of Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, reported in 1987 (Supp) SCC 93 : ( AIR 1987 SC 1577 ) with special reference to paragraphs 30 and 31 thereof. 13. Mr. D Mazumdar, learned senior counsel for the respondent No. 5 has submitted that no adjudication had taken place with regard to the issue as to whether the election petition filed by the respondent No. 5 is maintainable or not and therefore, the argument advanced by the writ petitioner that the election petition be dismissed as not maintainable, may not be taken into consideration by this Court at this stage. 14. He has submitted that the election petition is to be read in its entirety and a perusal of the same would demonstrate that cause of action for filing the same is implicit therein and only to make it very specific, amendment application was filed in the election petition. He has submitted that amendment is to be liberally granted. There is no infirmity in the impugned order and as such the writ petition is liable to be dismissed. He has submitted that amendment is to be liberally granted. There is no infirmity in the impugned order and as such the writ petition is liable to be dismissed. He has submitted that not much should be read into the observation of the learned Tribunal that refusal to grant the prayer for amendment would render the petition infructuous inasmuch as the same is a stray observation without being backed up by any reasoning whatsoever. The amendment was allowed on the ground that the same will not change the nature and character of the case. Since the application for amendment was allowed, there was no occasion for the respondent No. 5 to question the aforesaid observation. In the ultimate analysis, amendment having been rightly allowed, the writ petition is liable to be dismissed, he submits. To support his contentions, learned Senior Counsel has relied upon the judgments of the Apex Court in the cases of (i) Lakshmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and Ors., reported in AIR 1964 SC 11 , (ii) Samant N. Balkrishna and Anr. v. George Fernandez and Ors., reported in (1969) 3 SCC 238 : ( AIR 1969 SC 1201 ), (iii) Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, reported in 1987 (Supp) SCC 93 : ( AIR 1987 SC 1577 ), (iv) United India Insurance Co. Ltd. and Ors. v. Patricia Jean Mahajan and Ors., reported in (2002) 6 SCC 281 : ( AIR 2002 SC 2607 ), (v) Sampath Kumar v. Ayyakannu and Anr., reported in (2002) 7 SCC 559 : ( AIR 2002 SC 3369 ), (vi) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Ors., reported in (2009) 10 SCC 84 : (AIR 2009 SC (Supp) 2897), (vii) Rameshkumar Agarwal v. Rajmala Exports Private Limited and Ors., reported in (2012) 5 SCC 337 : ( AIR 2012 SC 1887 ), (viii) Prithi Pal Singh and Anr. v. Amrik Singh and Ors., reported in (2013) 9 SCC 576 . 15. I have heard the learned counsel for the parties and have considered the materials on record. 16. The proximate cause for filing the writ petition is allowing the application for amendment. v. Amrik Singh and Ors., reported in (2013) 9 SCC 576 . 15. I have heard the learned counsel for the parties and have considered the materials on record. 16. The proximate cause for filing the writ petition is allowing the application for amendment. Though in the written statement plea was taken for rejection of the election petition for violation of Section 81 of the R.P. Act, no material has been placed before the court that the writ petitioner by filing any application had prayed for framing any preliminary issue on the maintainability of the election petition. As the learned Tribunal has not yet considered maintainability of the election petition, this Court is not inclined to consider whether the election petition merits rejection for alleged violation of Section 81 of the R.P. Act and will confine the sphere of adjudication to the correctness or otherwise of the impugned order dated 24.07.2013. 17. In Lakshmidas ( AIR 1964 SC 11 ) (supra), the Apex Court held that leave to amend under Order 6, Rule 17, CPC will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time and that the said principle will apply only when either fresh allegations are added or fresh reliefs are sought by way of amendment. In Sampath Kumar ( AIR 2002 SC 3369 ) (supra), it was held that amendment of pleadings can be allowed at any stage of the proceeding and on such terms as may be just so as to determine the real questions in controversy between the parties. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing of the suit has proceeded. An amendment, generally, once incorporated relates back to the date of the suit. In Prithi Pal Singh (supra), the Apex Court reiterated the principles relating to doctrine of relation back considered in Sampath Kumar (AIR 2009 SC (Supp) 2897) (supra). An amendment, generally, once incorporated relates back to the date of the suit. In Prithi Pal Singh (supra), the Apex Court reiterated the principles relating to doctrine of relation back considered in Sampath Kumar (AIR 2009 SC (Supp) 2897) (supra). In Revajeetu (supra), the Apex Court after considering a large number of English and Indian cases, noted some of the basic principles, as illustration, which ought to be taken into consideration while considering an application for amendment, such as (a) whether the amendment sought is imperative for proper and effective adjudication of the case; (b) whether the application for amendment is bona fide or mala fide; (c) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (d) refusing amendment would in fact lead to injustice or lead to multiple litigation; (e) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and as a general rule decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of the application. In Rameshkumar ( AIR 2012 SC 1887 ) (supra), while reiterating the principles laid-down in Revajeetu (supra), it was emphasized that liberal approach should be taken shunning out hyper-technical approach while considering application for amendment. 18. Dhartipakar ( AIR 1987 SC 1577 ) (supra) was a case arising out of an election petition filed under R.P. Act. It was observed that an election contest is not an action at law or a suit in equity but a purely statutory proceeding unknown to common law and that the court possesses no common law power. In the context of Section 100 of the R.P. Act, the Apex Court had considered the difference between material facts and particulars. The cited case does not have much bearing in the present case having regard to the ground on which the present election petition was filed. In Dhartipakar (supra), it was held that a new ground cannot be raised or inserted in an election petition beyond the time specified in Section 81 of the R.P. Act. Taking note of the fact that amendments sought to be made by the appellant being not in the nature of supplying particulars but new grounds of challenge, amendment applications were rejected which were filed after expiry of limitation. 19. Taking note of the fact that amendments sought to be made by the appellant being not in the nature of supplying particulars but new grounds of challenge, amendment applications were rejected which were filed after expiry of limitation. 19. In Patricia Jean ( AIR 2002 SC 2607 ) (supra), the Apex Court had observed that where a stray remark or observation is made by the court which is not very clear and is vague, and a different picture emerges from the other part of the judgment, it may be open for the court to ascertain the correct position on the basis of the totality of the observations made in the judgment itself. 20. It is a well established principle that the object of courts is to decide the rights of the parties. Where an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, question of a bar of limitation does not come into consideration in allowing such clarification of a matter which is already contained in the original pleading. Order 6, Rule 17, CPC confers jurisdiction upon the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be considered just and proper. Amendments which are directed to seek determination of real questions in controversy should be permitted to be made. In case amendment is sought for after trial has commenced, questions of prejudice to the opposite party may arise and in that case the same has to be answered by reference to the facts and circumstances of each individual case. The doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases, the court, while permitting amendment, may direct that amendment is allowed subject to the condition that it shall not relate back to the date of the suit. Though as a general rule, amendments are not allowed if a fresh suit is barred by limitation, it does not affect the power of the court if the amendment is required in the interest of justice. 21. The election petition was filed, styled as an election petition, under Section 129 of the Act challenging declaration of result of election as Anchalik Panchayat Member declaring the writ petitioner as elected from No.70 Baligaon Gaon Panchayat Constituency. 21. The election petition was filed, styled as an election petition, under Section 129 of the Act challenging declaration of result of election as Anchalik Panchayat Member declaring the writ petitioner as elected from No.70 Baligaon Gaon Panchayat Constituency. Section 129(b) provides that no election to any Panchayat shall be called in question except by an election petition presented within sixty days from the date of declaration of election results to the Tribunal constituted under Section 127 of the Act. In the prayer portion also, as noticed earlier, prayer was made for declaring the election result of the writ petitioner as null and void. Material facts and particulars relating to declaration of result are given in the various paragraphs of the election petition. For instance, it is stated that result of the election has been materially affected for unauthorized and illegal recounting thereby allowing the opposite party No. 1 (writ petitioner herein) to win the election. Reading the election petition as a whole, leave no manner of doubt that the cause of action for filing the election petition is implicit in the election petition as was originally filed. 22. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. In the instant case, the election petitioner did not add any allegation or made any claim for fresh relief and merely prayed for clarification by way of amendment in respect of cause of action for filing the election petition. The observation of the learned Tribunal that refusal to grant the prayer of amendment would make the case of the election petitioner infructuous, as rightly submitted by Mr. Mazumdar, is an off-the-cuff observation without any discussion whatsoever. This Court has found that such remark is without any basis. 23. Considering the matter in its entirety, I am of the considered opinion that no case is made out to exercise extra ordinary jurisdiction under Article 226 of the Constitution of India to interfere with the order dated 24.07.2013 passed by the learned Election Tribunal, Mangaldai. Accordingly, the writ petition is dismissed. No cost. 24. 23. Considering the matter in its entirety, I am of the considered opinion that no case is made out to exercise extra ordinary jurisdiction under Article 226 of the Constitution of India to interfere with the order dated 24.07.2013 passed by the learned Election Tribunal, Mangaldai. Accordingly, the writ petition is dismissed. No cost. 24. However, before parting with the records, it is observed that in the event of the writ petitioner filing any petition for taking up of the maintainability of the election petition as a preliminary issue in view of alleged infraction of Section 81 of the R.P. Act, the same shall be taken up as a preliminary issue and disposed of in accordance with law. Petition dismissed.