C.R. No. 976 of 2009 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.R. No. 976 of 2009
Date of Decision: August 13, 2009
Chet Ram
.....Petitioner
Vs.
State of Punjab and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. Vikas Bahl, Advocate
for the petitioner.
Ms. Rajni Gupta, Addl. A.G., Punjab.
Mr.R.P. Dhir, Advocate
-.-
M.M.S. BEDI, J.
Election of the petitioner as Municipal Councillor stands
challenged in an election petition which is pending before Deputy
Commissioner-cum-Election Tribunal, at Nawanshahar. The petitioner has
approached this Court under Article 227 of the Constitution of India for
setting aside an interim order dated January 19, 2009 by virtue of which the
C.R. No. 976 of 2009 [2]
Deputy Commissioner-cum-Election Tribunal has allowed a Misc.
application filed by respondent No.2 (Election petitioner) to amend and cure
the defects in the petition as well as the annexures/ schedule attached with
the election petition. The respondent during the pendency of his election
petition before the Election Tribunal, Nawanshehar, filed an application for
permission to sign on each page of the petition and on each page of the
schedule and annexures attached and also to make verification of the
annexures, pleadings that the respondent could not sign on each page of
petition, schedule and annexures and further that he could not verify the
same by over-sight and that he be allowed to do the needful.
After giving notice of the application to the petitioner, a reply
was filed by the petitioner strongly objecting to the application stating that
non-compliance of mandatory provisions of Punjab State Election
Commission Act, 1994, (hereinafter referred to as ‘the Act’) and non-
verification of the petition, annexures/ schedule by the respondent has given
a valuable right to the petitioner which cannot be allowed to be undone. A
further plea was taken that the election petition has not been filed within
limitation and it was barred by time as such Misc. application was also not
maintainable. The petitioner submitted in the application that even the
Apex Court vide order dated December 1, 2008 has protected the rights of
the petitioner to raise all questions of facts and/ or law as permissible under
law before the Election Tribunal which are required to be considered on
merit and to be decided. The petitioner raised legal objections that Section
78 of the Act prescribes that an Election petition is required to be signed by
C.R. No. 976 of 2009 [3]
the petitioner and verified in a manner as laid down in CPC and annexures
to the petition shall also be signed by the petitioner and verified in the same
manner as the petition. The Election Tribunal allowed Misc. application
after considering all the objections of the petitioner observing that the
respondent has only prayed for the correction of procedural lapses and has
not prayed for any amendment of any document as such the Tribunal
allowed the application of the respondent and granted permission to sign
and verify the petition, annexures/ schedule without prejudice to the legal
and factual defences available to the petitioner under law.
Mr. Vikas Bahl, counsel for the petitioner vehemently argued
that in the garb of the term correction of procedural error, the Election
Tribunal has permitted the respondent to remove such defects which would
have entitled the petitioner for dismissal of the Election Petition. He has
argued that an application under Section 5 of the Limitation Act for
condonation of delay has been filed by the respondent. Copy of the said
application has been placed on record an annexure P-7.
On the other hand, counsel for the respondent No.3-
Mr.R.P.Dhir has argued that the formal procedural errors have been
permitted to be rectified vide impugned order as the provisions of Section
78 of the Act require that the election petition is to be signed by the
petitioner and verified in a manner laid down in CPC and that Section 76(2)
of the Act requires that the annexures attached with the petition are required
to be signed and verified by election petitioner. The respondent had merely
C.R. No. 976 of 2009 [4]
sought a permission to sign and verify the annexures attached with the
petition.
I have heard counsel for the petitioner as well as counsel for
the respondent. Before adverting to the facts of the present case, the
relevant provisions pertaining to the election petition are required to be
referred to. Sections 74, 75, 76, 77, 78, 79, 80 and 103 of the Act read as
follows:-
“74. Election Petitions: – No election shall be called in
question except by an election petition presented in
accordance with the provisions of this Chapter.
75. Election Tribunal to try election petitions.-(1)
Only the Election Tribunal having jurisdiction shall have
the power to adjudicate upon the election petitions.
(2) The Election Tribunal in its discretion may, in the
interests of justice or convenience, try an election
petition wholly or partly, at a place other than its
specified headquarters.
76. Presentation of petition.-(1) An election petition
may be presented on one or more of the grounds
specified in sub-section (1) of section 89 to the Election
Tribunal by any candidate to such election or by any
elector within a period of forty five days from the date of
election of the returned candidate or if there are more
than one returned candidates at the election and there are
C.R. No. 976 of 2009 [5]
different dates of their election, then the later of these
dates shall be taken into account for this purpose.
(2) Every election petition shall be accompanied by as
many copies thereof, as there are respondents mentioned
in the petition and every such copy shall be attested by
the petitioner under his own signatures to be a true copy
of the petition.
77. Parties to the petition.-A petitioner shall join as
respondent to his petition-
(a) where he, in addition to claiming declaration that the
election of all or any of the returned candidates is void,
claims a further declaration that he himself or any other
candidate has been duly elected, all the contesting
candidates and where no such further declaration is
claimed, all the returned candidates; and
(b) any other candidate against whom allegation of any
corrupt practice is made in the petition.
78. Contents of Petition.-(1) As election petition shall,-
(a) contain a concise statement of the material facts on
which the petitioner relies;
(b) set forth full particulars of any corrupt practice that
the petitioner alleges, including a statement as possible,
of the names of the parties alleged to have committed
C.R. No. 976 of 2009 [6]
such corrupt practice or practices and the date and place
of the commission of such practice; and
(c) be signed by the petitioner and verified in the manner
laid down in the Code of Civil Procedure, 1908, (Central
Act 5 of 1908) for the verification of pleadings.
Provided that where the petitioner alleges any corrupt
practice, the petition shall be accompanied by an
affidavit in the prescribed form in support of the
allegation of such corrupt practice and the relevant
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.
79. Relief that may be claimed by the petitioner: – A
petitioner may in addition to claiming a declaration that
the election of all or any of the returned candidates is
void, claim further declaration that he himself or any
other candidate may be declared as duly elected.
80. Trial of election petitions.-(1) The Election Tribunal
shall dismiss an election petition which does not comply
with the provisions of Section 76 or section 77 or section
103.
(2) Where more than one election petition are presented
to the Election Tribunal in respect of the same matter,
C.R. No. 976 of 2009 [7]
the Presiding Officer of the Election Tribunal may, in his
discretion, try them separately or in one or more groups.
(3) Any candidate not already a respondent shall, upon
application made by him to the Election Tribunal within
fourteen days from the date of commencement of the
trial of the election petition and subject to any order as to
security for costs which may be made by the Election
Tribunal, be entitled to be joined as a respondent.
(4) The election Tribunal may, upon such terms as to
costs and otherwise, as it may deem fit, allow to
particulars of any corrupt practice alleged in the petition
to be amended or amplified in such manner, as may in its
opinion be necessary for ensuring a fair and effective
trial of the petition, but shall not allow any amendment
of the petition which will have the effect of introducing
particulars of a corrupt practice which has not been
previously alleged in the petition.
(5) The trial of an election petition shall, so far as is
practicable consistently with the interest of justice in
respect of the trial be continued from day-to-day until the
conclusion, unless the election Tribunal finds the
adjournment of the trial beyond the following day to be
necessary for reasons to be recorded in writing.
C.R. No. 976 of 2009 [8]
(6) Every election petition shall be tried as expeditiously
as possible and every endeavor shall be made to
conclude the trial within a period of six months from the
date on which the election petition is presented to be
Election Tribunal for trial.
103. Security of Costs.- (1) At that time of presenting
an election petition, the petitioner shall deposit in the
Election Tribunal such sum, as may be prescribed as
security for the costs of the petition.
(2) During the course of the trial of an election petition,
the Election Tribunal may, at any time, call upon the
petitioner to give such further security for costs, as it
may direct.”
A perusal of the above provisions indicate that according to
Section 80 of the Act, the Election Tribunal shall dismiss an election
petition which does not comply with the provisions of Section 76 of the Act
or Section 77 or Section 103 of the Act. The Act is a complete code in
itself which lays down the grounds of setting aside an election and the
procedure which is required to be adopted while filing the election petition.
So far as the procedural law is concerned, it has been settled by Hon’ble
Supreme Court in Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh
and another, 2005 AIR SCW 5851 that procedural provisions should not
be allowed to defeat substantive rights or to cause injustice. The Supreme
Court has clarified the exceptions to the said principle. The relevant portion
C.R. No. 976 of 2009 [9]
pertaining to some of the procedural errors and the exceptions are
reproduced hereunder:-
16. An analogous provision is to be found in Order 6
Rule 14 CPC which requires that every pleading shall be
signed by the party and his pleader, if any. Here again, it
has always been recognized that if a plaint is not signed
by the plaintiff or his duly authorized agent due to any
bona fide error, the defect can be permitted to be
rectified either by the trial court at any time before
judgment, or even by the appellate court by permitting
appropriate amendment, when such defect comes to its
notice during hearing.
17. Non-compliance with any procedural requirement
relating to a pleading, memorandum of appeal or
application or petition for relief should not entail
automatic dismissal or rejection, unless the relevant
statute or rule so mandates. Procedural defects and
irregularities which are curable should not be allowed to
defeat substantive rights or to cause injustice. Procedure,
a hand-maiden to justice, should never be made a tool to
deny justice or perpetuate injustice, by any oppressive or
punitive use. The well recognized exceptions to this
principle are :-
C.R. No. 976 of 2009 [10]
i) where the Statute prescribing the procedure, also
prescribes specifically the consequence of non-
compliance.
ii) where the procedural defect is not rectified, even
after it is pointed out and due opportunity is given for
rectifying it;
iii) where the non-compliance or violation is proved
to be deliberate or mischievous;
iv) where the rectification of defect would affect the case
on merits or will affect the jurisdiction of the court.
v) in case of Memorandum of Appeal, there is complete
absence of authority and the appeal is presented without
the knowledge, consent and authority of the appellant.”
The Hon’ble Supreme Court in Uday Shankar Triyar’s case
(supra) was dealing with a case in which a memorandum of appeal was not
signed by the appellant or his pleader. It was held that non-compliance of
procedural provision does not always entail automatic rejection of the
appeal without giving opportunity to rectify defect. It was while dealing
with the said proposition the Apex Court made observations mentioned
hereinabove. In view of the abovesaid provisions the procedural defects
and other irregularities which could be cured should not be permitted to
defeat the substantive right or to cause injustice to a litigant. Procedure, a
hand-maiden of justice should not be made a tool to deny justice or
perpetuate injustice by any punitive use of the procedural provisions unless
C.R. No. 976 of 2009 [11]
and until the statute prescribes a procedure and also specifically prescribes
consequence of non-compliance.
Examining the facts of this case with reference to the principles
laid down in Uday Shankar Triyar’s case (supra), it is apparent that the
procedural law of election petition under Section 78 of the Act requires
under Section 78 (1) (c) that the election petition has to be signed and
verified in a manner laid down in Civil Procedure Code, 1908 for the
verification of pleadings. In this concern, the reference can be made to
Order 6 Rule 14 CPC which requires that every pleading shall be signed by
the party and his pleader, if any. Section 78 (2) of the Act prescribes that
any schedule or annexure to the petition shall also be signed by the
petitioner and verified in the same manner as the petition.
The next point which is required to be examined is whether the
non-compliance of any of the requirements of Section 78 of the Act would
entail straightway dismissal of the election petition or it could be permitted
to be rectified if pointed out in time. In this context, a reference to Section
80 of the Act is relevant which lays down that Election Tribunal shall
dismiss an application petition which does not comply with the provisions
of Section 76 or 77 or Section 103 of the Act. The legislature in its wisdom
has intentionally omitted Section 78 in Section 80 of the Act, meaning
thereby, that in case of any procedural error as enshrined in Section 78 of
the Act, will not entail dismissal of the election petition straightway.
In the present case the respondent has been, vide impugned
order, permitted to sign and verify the petition and annexures/ schedule
C.R. No. 976 of 2009 [12]
without prejudice to the legal and factual defences of respondent available
to them under law. The defect which has been permitted to be cured does
not fall in Section 80 of the Act and does not entail automatic dismissal or
rejection as per the scheme of the statute and the non-compliance of
provisions of Section 78 of the Act do not entail automatic rejection of
Election petition, no fault could be found in the exercise of jurisdiction by
the Election Tribunal.
It will not be out of place to mention here that counsel for the
petitioner has contended that the respondent has filed an application under
Section 5 of the Limitation Act. Before filing the election petition, the
respondent alongwith Ram Parkash had filed a writ petition in the High
Court challenging the election of the petitioner bearing CWP No. 14592 of
2008, decided on August 20, 2008 alleging that there had been violation of
Section 27 of the Act. While disposing of the said petition, it was observed
by Division bench of this Court that the alleged non-compliance of Section
27 of the Act would constitute a ground to get the election declared void but
the petition was disposed of with liberty to the respondent and others to file
an election petition before the Election Tribunal. It was also directed that
Election Petition, if filed, shall be decided expeditiously. The said order
had been challenged by the elected candidates Kulwant Kaur and others in
SLPs Nos. 27853-27854 of 2008 before the Apex Court. The SLP was
dismissed, however, permission was granted that all points of facts and/ or
law as permissible under law could be raised before the Election Tribunal
C.R. No. 976 of 2009 [13]
and that the Tribunal shall consider the said questions on merits and decide
the petition in accordance with law.
Mr.Vikas Bahl, counsel for the petitioner has got an
apprehension that the dismissal of this petition would prejudice the rights of
the petitioner regarding the limitation as the respondent has filed an
application under Section 5 of the Act for condonation of delay in filing the
Election Petition. It is claimed by the counsel that after the dismissal of the
writ petition by the High Court, the Election Petition has been filed beyond
the period of limitation.
Petition is dismissed without prejudice to the rights of the
petitioner, if any, accrued to him on account of alleged delay in filing of the
election petition which would be determined by the Election Tribunal in
accordance with law. Anything said in this order will not affect the
adjudication of the application under Section 5 of the Limitation Act which
is pending before the Election Tribunal.
August 13, 2009 (M.M.S.BEDI) sanjay JUDGE