Patna High Court
Deo Sharan Mahto vs Ram Bilash Singh And Ors. on 2 May, 1974
Equivalent citations: AIR1975PAT107, AIR 1975 PATNA 107
JUDGMENT S.N.P. Singh, Ag. C.J. 1. These two writ applications have been heard together and they are being disposed of by this common judgment. 2. The relevant facts for the disposal of these two applications may be briefly stated as follows. Deo Sharan Mahto, the petitioner of the two writ applications, was declared elected as the Mukhiya of Kuin-bar Gram Panchayat within Imamganj An-chal, Gaya, in the election which was held on the 20th of May, 1971. Ram Bilash Singh (respondent No. 1), who was also a candidate for the election of Mukhiya but was defeated, filed an election petition before the Election Tribunal, Sadar, Gaya, on the 3rd of June, 1971, under Rule 72 of the Bihar Panchayat Election Rides, 1959 (hereinafter to be called "the Rules"), a copy whereof has been made Annexure '1' to the writ applications. In the election petition respondent No. 1 alleged, inter alia, as follows: "7. That after the first round counting of both the booths it was found that the petitioner has secured largest number of votes. But immediately thereafter the polling agent of the petitioner was asked to vacate the place and the Presiding Officer of Maira Portable booth held a secret and confidential party and negotiation with the respondent No. 1 and then it was later announced that respondent No. 1 has been declared elected. 8. That it is clear from the facts stated above that Shri Deonandan Prasad, Presiding Officer of Maira and Sri Baleshwar Singh, Presiding Officer both played a fraud and deception in manipulating the situation in favour of respondent No. 1 after the 1st round of election and then by mis-counting the votes in favour of respondent No. 1 turned the table in his favour and converted the success of the applicant into his fault at the poll. 9. That several votes which were clearly valid were shown as invalid and were rejected. About 80 valid votes of the petitioner were rejected at Kuinbar Portable booth and 22 valid votes at Maira Portable booth. In this way as a matter of fact, the petitioner had secured largest number of valid votes and was fit to be declared elected. 10. That about 25 votes which were fit to be rejected at Kuinbar booth were illegally counted in favour of respondent No. 1 due to the collusion of Sri Bafeshwar Prasad Singh, the Presiding Officer. 11. That in counting the ballot papers, the method elucidated in the Bihar Pancha-yat Election Rules were not followed and adopted and hence it warrants a recounting of the ballot papers." The election petition was verified by respondent No. 1 in these words: "I, Ram Bilash Singh, son of Sri Math'ura Singh, resident of village Maira, P. S. Imamganj, district Gaya, do hereby solemnly affirm declaration that the contents of this petition from paras 1 to 13 and reliefs (a) and (b) are true to the best of my personal knowledge and belief. Signed and verified at Gaya, this the 3rd day of June, 1971." Admittedly no affidavit in support of the verification was filed. The petitioner filed his written statement denying the various allegations made by respondent No. 1. The petitioner also challenged the maintainability of the election petition on certain grounds. Tn paragraph 6 of the written statement it was stated as follows: "That the election petition is not properly verified as required under the provision of law and the election petition is liable to be dismissed only on this ground because the same is not supported by an affidavit as required under the provisions of law." By the order dated the 14th of August, 1972, the Election Tribunal disallowed the objection of the petitioner about the non-maintainability of the election petition on the ground of improper verification and by the same order he allowed the prayer made on behalf of respondent No. 1 for recounting of votes. Being aggrieved by that order the petitioner filed C. W. J. C. No. 1085 of 1972 which was admitted on the 15th of November, 1972. 3. As stated in paragraph 18 of C. W. J. C. No. 1174 of 1972, on the 4th of September, 1972, an application was made by the petitioner before the Election Tribunal for adjournment of the case and for postponement of the recounting on the ground that the petitioner had filed a writ application before this Court. A certificate to that effect from the lawyer of the petitioner in the High Court was filed. It is alleged that when the case was called out by the Election Tribunal at about 2 p. m. on the 4th of September, 1972, a petition for time was moved but no order was passed as the Election Tribunal was busy otherwise. It is further alleged that the Tribunal observed that the petitioner would be sent for if required. Accordingly the peti tioner came to the Bar library and the petitioner's lawyer with the leave of the Election Tribunal went to attend another case before the District Judge, Gaya, which had been taken up. Subsequently when the petitioner along with his lawyer Sri Akhileshwar Prasad Sinna came to the Court of the Election Tribunal at 3.40 p. m. they were surprised to find that behind the back of the petitioner and his lawyer and without intimation to them the Election Tribunal bad taken up the recounting of votes without disposing of the petitioner's prayer for time. An objection was taken by the petitioner but to no effect. According to the petitioner, the recounting proceeded even after 4.30 p. m. and the Election Tribunal illegally and mala fide took out 22 ballots out of 92 rejected ballots of Kuinbar booth and one rejected ballot from Maira Portable booth and declared the same as valid in favour of respondent No. 1. The Election Tribunal further discarded two ballots from Kuinbar booth and one ballot from Maira Portable booth in favour of the petitioner and declared respondent No. 1 to have been elected at 6 p. m. that day. A copy of the order dated the 4th of September, 1972, passed by the Election Tribunal has been made Annexure '5', and it is the subject-matter of challenge in C. W. J. C. No. 1174 of 1972. 4. Mr. K. P. Verma No. 2, learned counsel appearing for the petitioner, raised only one contention, namely, that the election petition filed by respondent No. 1 suffered from the fatal defect inasmuch as it had not been verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings as required by Rule 75 (1) of the Election Tribunal under Rule 77 of the Rules. Mr. Verma also very faintly urged that the Election Tribunal erred in law in allowing the recounting of votes as the allegations contained in the election petition are vague and no cogent reason has been given by the Tribunal for ordering the recounting. 5. As these two applications are bound to succeed on the first point, it is not necessary to deal with the second contention which has been raised on behalf of the petitioner. Rule 75 of the Rules reads as follows: "(1) An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall, where necessary, be divided into paragraphs numbered consecutively. It shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. (2) (a) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges including as full a statement as possible as to the names of the parties alleged to have committed any corrupt or illegal practice and the date and place of the commission of each such practice. (b) The election Tribunal may, upon such terms as to costs and otherwise as it may direct, at any time, allow the particulars included in the said list to be amended or order such further and better particulars in regard to any matter referred to therein to be furnished as may, in its opinion, be necessary for the purpose of ensuring a fair and effectual trial on the petition: Provided that the Election Tribunal shall not by means of any such amendment allow particulars to be furnished of any corrupt or illegal practice other than a corrupt or illegal practice set forth in the list furnished by the petitioner under Clause (a)." As provided under Rule 77, if there is any failure to comply with the provisions of Sub-rules (2) and (3) of Rule 72, Rule 73, Sub-rule (1) and Clause (a) of Sub-rule (2) of Rule 75 the Election Tribunal shall summarily dismiss the election petition. In the case of Saratchandra Mandal v. Phani Bhu-san Singh, AIR 1974 Pat 40 (FB) a Full Bench of this Court upon a construction of Rule 75 of the Rules held that, broadly speaking, the requirements of Sub-rule (1) of Rule 75 are (1) that an election petition shall contain a concise statement of the material facts, (2) that it shall be divided into paragraphs numbered consecutively, (3) that it shall be signed by the petitioner, and (4) that it shall be verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. It was also held that since Rule 77 enjoins the Tribunal to dismiss an election petition summarily for non-compliance with the provisions of Rule 75 (1) the latter rule has got to be held to be mandatory. As to what is the effect of the mandatory provision contained in Rule 77 has been stated by Untwalia, C. J., in these words: "It may be pointed out that even though a provision like Rule 75 (1) as a whole is mandatory, yet it does not necessarily follow therefrom that every requirement or every part of it is mandatory. As I have said above, the requirements of Rule 75 (1), are, broadly speaking, four. The election petition must contain a concise statement or the material facts. If the material facts are wanting then the election petition may not disclose a cause of action. The statement may be concise according to one, may not be meticulously concise according to the other. Can anybody say that if the Tribunal think that the material facts are there, but they have not been incorporated in the election petition in a concise form and, therefore, there is a failure in compliance with the rule and the election petition must be dismissed? The answer is obviously in the negative. The requirement of consecutively numbering the paragraphs cannot be mandatory. Supposing the paragraphs are there, but they are not consecutively numbered, or while numbering them, a mistake has been committed, say, after paragraph No. 2 paragraph No. 4 has been written instead of 3. Will it be reasonable to hold that there is failure to comply with the requirements of Rule 75 (1) in such a situation? Obviously not. Broadly speaking, in an election petition the material facts should be there and as far as possible, they should be consecutively numbered. But a literal compliance cannot meticulously be insisted upon. The petition has got to be signed by the petitioner. I shall not multiply my examples as to which will be a major defect and which will be a minor defect. Absence of signature on the petition may be treated as a major defect. While verifying a statement in the petition the petitioner may commit a default in not verifying it in accordance with the requirements of the Patna Amendment of the Code. It may be a major defect. He may forget to put the place and date of the verification. In that event, it may also be a major defect. It will depend on the facts and circumstances of each case. The cumulative effect of all the defects will have to be judged." Thus, according to the ratio of the decision of the Full Bench if there is a minor defect it is curable but if the defect is a major one then it is not curable and the election petition must be dismissed summarily. According to the observation quoted above, if there is a default in the verification and it is not in accordance with the requirements of the Patna Amendment of the Code of Civil Procedure, it would be a major defect. Order 6 rule 15, as amended by this Court, reads as follows: "Save as otherwise provided by any law for the time being in force, the facts stated in every pleading shall be verified by solemn affirmation or on oath of the party or of any of the parties pleading of of sorne other person proved to the satisfaction of the Court to be acquainted with the facts of the case, before any officer empowered to administer oath under Section 139 of the Code." On a plain reading of Sub-rule (1) of Rule 15 of Order 6 it appears that the facts stated in every pleading are required to be verified either by solemn affirmation or on oath. Mr. Gorakh Nath Singh appearing on behalf of respondent No. 1 submitted before us that when the facts stated in the pleading are verified by solemn affirmation, it is not necessary to do so before the officer appointed to administer oath under Section 139 of the Code of Civil Procedure and as such no affidavit is necessary. Similarly, when the facts stated in the election petition are verified on solemn affirmation it is not necessary to do so before the officer appointed to administer oath under Section 139 of the Code of Civil Procedure. The contention raised by Mr. Gorakh Nath Singh has no substance and it has to be rejected. It is clear that the expression "before any officer appointed to administer oath" under Section 139 of the Code of Civil Procedure has been used both in relation to verification by solemn affirmation and verification on oath. Section 139 of the Code of Civil Procedure provides as follows: "In the case of any affidavit under this Code-- (a) any Court of magistrate, or (b) any officer or other person whom a High Court may appoint in this behalf, or (c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, may administer the oath to the deponent." According to Mr. Gorakh Nath Singh, the words "administer the oath to the deponent" occurring in Section 139 indicate that the provision of that section is applicable when verification has to be made on oath and not on solemn affirmation. I do not find force in this contention. Reading Section 139 with Order 6, Rule 15 (1), as amended by the Patna High Court, I am of the view that it makes no difference whether the facts stated in a pleading are verified by solemn affirmation or on oath. In either case an affidavit is necessary and it has to be sworn before an officer who is empowered to administer oath under Section 139 of the Code of Civil Procedure. In C. W. J. C. 132 of 1973 (Abdul Quasim Khan v. Naurang Sixigh), disposed of on the 21st December, 1973, Madan Mohau Prasad, J, sitting singly held that an election petition has to be in accordance with Rule 75 of the Rules and it has to be verified either by solemn affirmation or on oath before an officer appointed to administer oath under Section 139 of the Code of Civil Procedure. In paragraph 7 of the judgment the learned single Judge has given very cogent reasons in support of his view. I am in full agreement with the view expressed by the learned single Judge in that case on the question. As already stated, in the instant case it is an admitted position that no affidavit was sworn in before an officer empowered to administer oath under Section 139 of the Code of Civil Procedure in support of the facts alleged in the election petition. The verification of the election petition, which I have quoted above, cannot be said to be a verification in accordance with the requirements of Rule 75 (1) of the Rules. In the counter-affidavit filed on behalf of respondent No. 1 a faint attempt has been made to show that there was no defect in the verification and it is stated in paragraph 5 thereof as follows: "The certified copy of the election petition which is in possession of this respondent No. 1 shows that the election petition was duly signed by the election petitioner (Respondent No. 1) and it was duly verified in accordance with the Patna Amendment of Order VI, Rule 15 C. P. C. According to the Patna Amendment of Sub-rule (1) of Rule 15 of Order VI C. P. Code, the verification of the pleading is to be either on solemn affirmation or on oath administered by an officer specially appointed to administer oath under Section 139 C. P. Code. The election petitioner verified the election petition on solemn affirmation. He ratified the same verification on solemn affirmation before the Officer before whom he presented the election petition by putting his one more signature below the verification. The election petitioner was not required to swear an affidavit." As I have already stated, an affidavit in support of the verification was absolutely necessary and that having not been done, the defect in the election petition was fatal. The mere fact that the election petitioner put his signature on the election petition before the Election Tribunal did not cure that defect. That being the position, the election petition ought to have been summarily rejected by the Election Tribunal. Mr. Gorakh Nath Singh submitted before us that the plea should not be entertained by this Court as it was not specifically raised by the petitioner in his show cause petition. There is no substance in this contention. As I have already stated, in paragraph 6 of the written statement the petitioner specifically took this plea. 6. For the foregoing reasons, I hold that the Election Tribunal should have rejected the election petition in limine and should not have passed any order on the basis of that election petition. 7. In the result, all the proceedings including the order as contained in An-nexure '2' to C. W. J. C. No. 1085 of 1972 and the order as contained in Annexure '5' to C. W. J. C. No. 1174 of 1972, which are based on the election petition (Annexure '!' to the writ applications), are quashed. In the circumstances, the parties are directed to bear their own costs. S.K. Jha, J.
I agree.