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2016 DIGILAW 526 (RAJ)

Nenu Ram v. Amara Ram

2016-04-13

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against order dated 16.10.2015 passed by Senior Civil Judge, Parbatsar ('the learned Judge'), whereby the application filed by the petitioner under Rule 82(1) and (2) of the Rajasthan Panchayati Raj (Election) Rules, 1994 ('the Rules') read with Order 6, Rule 15 CPC and Order 7, Rule 11 CPC has been rejected. 2. The respondent Amara Ram filed election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 ('the Act') read with Rule 82 of the Rules calling in question the election of petitioner Amara Ram as Member, Zila Parisad, Nagaur on the ground of alleged disqualification. 3. The petitioner filed his reply to the election petition, inter alia, raising objections regarding the maintainability of the election petition. The petitioner also filed an application, inter alia, contending that the election petitioner has not followed the mandatory provisions of Rule 82(1) and (2) of the Rules and the verification is not in accordance with Order 6, Rule 15 CPC, the documents produced along with the election petition do not bear any verification and, therefore, for lack of compliance with the provisions/verification, the election petition was not maintainable and was liable to be dismissed under Order 7, Rule 11 CPC. 4. The respondent filed reply to the application contesting the same, inter alia, questioning the applicability of the law relied on by the petitioner and contending that for non-compliance of Order 6, Rule 15 CPC, an election petition cannot be dismissed. 5. The learned Judge after hearing the parties, came to the conclusion that the election petition is not based on grounds of corrupt practise, the documents produced with the election petition are public documents and dismissal of election petition on technical grounds is neither legal nor justified; distinguished the judgments cited by the petitioner on the ground that the same pertained to election petition with allegations of corrupt practise and, consequently, rejected the application. 6. It is submitted by learned counsel for the petitioner that the learned Judge was not justified in dismissing the application filed by the petitioner for the reasons indicated in the impugned order. It was submitted that the finding of the learned Judge that as election petition was not based on allegations of corrupt practise, the provision pertaining to verification of documents was not applicable is per se incorrect. 7. It was submitted that the finding of the learned Judge that as election petition was not based on allegations of corrupt practise, the provision pertaining to verification of documents was not applicable is per se incorrect. 7. It was further submitted that admittedly the documents filed along with the election petition were not verified and, therefore, for non-compliance of provisions of Rule 82(2) of the Rules, the petition was liable to be dismissed. It was prayed that the order passed by the learned Judge cannot be sustained and the same deserves to be quashed and set aside. 8. Reliance was placed on P.A. Mohammed Riyas v. M.K. Raghavan & Ors., 2012 (7) SRJ 259. 9. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 10. The petitioner in his application seeking dismissal of the election petition, while alleging non-compliance of provisions of Rule 82(2) of the Rules placed reliance on and cited judgments pertaining to the provisions of Section 83 of the Representation of the People Act, 1950 ('ROP Act'), wherein the provision pertaining to an affidavit in the prescribed format in support of the allegation of corrupt practise was the subject matter. However, the provisions of Rule 82 of the Rules and Section 83 of the ROP Act, which deal with the contents and verification of election petition though have material difference with respect to the provisions of filing affidavit in support of allegations pertaining to corrupt practise, the provisions regarding verification of the election petition and any schedule or annexure to the petition are pari mataria. The respective provisions reads as under:- "Rule 82. Contents and verification of election. - (1) The petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act V of 1908), for the verification of pleadings." "Section 83. Contents of petition. Contents and verification of election. - (1) The petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act V of 1908), for the verification of pleadings." "Section 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 practise that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practise and the date and place of the commission of each such practise; 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 practise, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practise 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." 11. There is substance in the submissions made by learned counsel for the petitioner that the learned Judge was misguided in coming to the conclusion that as the election petition was not based on grounds of corrupt practise, lack of verification on the documents was of no consequence. 12. However, what needs to be examined is whether a defective verification of the election petition and lack of verification on the schedule or documents annexed with the election petition can be fatal and lead to dismissal of the election petition. 13. The law in this regard is fairly well settled as in Murarka Radhey Shyam v. Roop Singh Rathore, AIR 1964 SC 1545 , it was held by Hon'ble Supreme Court as under:- "It is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Clause (c) of sub-section (1) of Section 83 is fatal to the maintainability of the petition." 14. Again in G. Malikarjunappa & Anr. Again in G. Malikarjunappa & Anr. v. Shmanur Shivashankarappa & Ors., AIR 2001 SC 1829 , it was held as under:- "The defect in verification is curable defect and the petition is not liable to be dismissed on that count and the consequences entailing from such defect are required to be adjudged at the trial." 15. Further, in H.D. Revanna v. G. Puttaswamy Gowda & Ors., AIR 1999 SC 768 , it was held as under :- "The defect in verification of the election petition or the affidavit accompanying the election petition has been held to be curable and not fatal." 16. In view of the above well settled position of law, the prayer made by the petitioner seeking dismissal of the election petition only on account of lack of verification of the documents accompanying the election petition has no basis and the same could not have been granted. 17. So far as the judgment in the case of P.A. Mohammd Riyas (supra) is concerned, the judgment pertained to lack/defective verification in the affidavit accompanying the election petition on the grounds of corrupt practise. As already noticed the provisions of Section 83 of ROP Act pertaining to filing of affidavit in an election petition alleging corrupt practise are materially different from the provisions of Rule 82(2) of the Rules and, therefore, the said judgment has no application to the facts of the present case and in so far as the provisions of Rule 82(2) of the Rules and Section 83(2) of the ROP Act are concerned, as noticed herein before, the law in this regard is well settled. 18. In view of the above discussion, no interference is called for in the order impugned passed by the learned Judge. 19. However, the learned Judge may consider the factual aspect of the matter and if the documents accompanying the election petition have not been verified, the election petitioner may be directed to cure the said defect. In view of the above discussion, the writ petition filed by the petitioner, but for the observations made herein before, is dismissed.