JUDGMENT
Untwalia, C.J.
1. A Bench of this Court has formulated a question of law in this Letters Patent Appeal and referred it to a Full Bench for its opinion under Rules 1 and 3 of Chapter V, Part II of the Patna High Court Rules. The question of law referred to is in the following terms:–
“Whether an Election Tribunal has got power to allow amendment of the verification of an election petition challenging the election of a Gram Panchayat in this State, if it is not verified in accordance with the requirements of the Code of Civil Procedure and whether it is imperative for the Tribunal to dismiss the petition without affording an opportunity to the election petitioner for amending it ?”
2. Respondent No. 1 was the elected Mukhiya of Gamaria Gram Panchayat in the district of Dhanbad. The appellant filed an election petition before the Election Tribunal for setting aside the election of respondent No. 1 and for declaring him duly elected to the office of the Mukhiya in accordance with the Bihar Panchayat Election Rules, 1939 (hereinafter called ‘the Rules’). The petition was contested by respondent No. 1 on various grounds. The Election Tribunal framed several issues for trial, and decided them in favour of the appellant, declaring the election of respondent No. 1 to be void and the appellant to be ‘duly elected. Respondent No. 1 filed C.W. J. C. No. 98 of 1971 in this Court under Articles 226 and 227 of the Constitution of India, challenging the decision of the Tribunal. The writ case came UP For hearing before B. D. Singh, J. The learned Judge found that the verification of the election petition was not made as required by Rule 75 (1) of the Rules hence the election petition was liable to be dismissed summarily under Rule 77. On a discussion of the various authorities on the point and following a Bench decision of this Court in Satya Nand Singh v. Bujhlal Singh (1967 BLJR 439), the learned Judge allowed the writ application and dismissed the election petition. The appellant preferred this Letters Patent Appeal.
3. When the appeal came up for hearing before a Bench of this Court
consisting of Shambhu Prasad Singh and Shiveshwar Prasad Sinha, JJ., the Hon’ble Judges, as indicated in their order of reference, were pleased to doubt the correctness of the view expressed by a Bench of this Court in Satva Nand Singh’s case (1967 BLJR 439). After elaborately referring to the various aspects of the matter, the decisions of the Supreme Court as also of this Court on the point, the Bench has formulated a question of law for our opinion, as stated above.
4. I shall proceed to discuss the law on the joint with reference to the relevant rules in the Rules and the appropriate authorities. 5. Rule 70 of the Rules provides:-- "No election held under these rules shall be called in question in any other manner on any ground whatsoever other than by a petition before the Election Tribunal appointed under these rules." I shall read Rules 75 and 77 in full- "75. (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 the like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full 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 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 of 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). 77. 'If there is any failure to comply with any of 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; Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard."
We are not concerned in this case with the interpretation of Sub-rule (2) of Rule 75. But it may be pointed out that the power which has been conferred on the Election Tribunal to allow amendment of the list of corrupt or illegal practice is of a limited kind. Under Rule 79 (2) an election petition has to be tried by the Election Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure 1908 (hereinafter called ‘the Code’) to the trial of suits. But this is ”subject to the provisions of these rules”. So it is well-settled by now that the curtailed power; of amendment given under Sub-rule (2) (b) will prevail over the general power of amendment granted under Order VI. Rule 17 of the Code. Broadly speaking, the requirement of Sub-rule (1) of Rule 75 of the Rules are (i) that an election petition shall contain a concise statement of the material facts, (ii) it shall be divided into paragraphs numbered consecutively, (iii) it shall be signed by the petitioner, and (iv) it shall be verified in the manner laid down in the Code for verification of pleadings. Since the requirement is in regard to the procedure for instituting election petitions, ordinarily and generally, the requirement would be mandatory, because an election petitioner is required to make his petition in conformity with the requirements of Sub-rule (1). Whether by itself it would have been mandatory or not, since the consequence has been provided in Rule 77, there cannot toe any doubt about Rule 75 (1) being mandatory. Rule 77 provides for summary dismissal of election petition if there is any failure to comply with the provisions of Sub-rule (1) of Rule 75. The Supreme Court in State U. P. v. Manbodhan Lal Srivastava (AIR 1957 SC 912) has quoted, with approval a passage from Crawford on Statutory Construction (Section 26-1 at page 516)-
“The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intention is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it one wav or the other ……
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 sot to be
held to be mandatory. The language of Rule 77 makes it mandatory. There cannot be any doubt about it. The use of the word “shall” indicates that it is imperative for the Election Tribunal to summarily dismiss the election petition if there is a failure to comply with certain provisions of the Rules. If the rule would have been directory and discretion would have been conferred on the Election Tribunal, the word “may” would have been used instead of “shall”. In this connection, a few passages from Sutherland’s Statutory Construction, 3rd Edition, Volume 3 may be usefully quoted. Section 5813, at page 95 reads thus:–
“With respect to the question of mandatory and directory operation, as with any question of statutory construction, the primary consideration is that of determining the intent of the legislature. Each case stands pretty much on its own facts, to be determined on an interpretation of the particular language used. Various methods of attacking the problem are employed. One oft-repeated formula is that statutory requirements that are of the essence of the thing required by statute are mandatory while those things which are not of the essence are directory. And it is said that the ordinary meaning of the language should always be favoured.
However, all of these criteria are at best highly nebulous concepts. A much more satisfactory approach to the problem is to use, whenever possible, the various aids for determining legislative intent.”
Section 5826 at pages 122-23 reads thus-
“The cases in which statutes regulating Court procedure are construed show a considerable lack of uniformity on the question of mandatory and directory construction, so that little can be done by wav of rationalizing them. However, a few generalizations can be made. Where a statute specifies acts to be done by parties litigant to entitle them to maintain an action or to perfect an appeal, it is generally mandatory. Where rights or privileges are denied an individual because of his own failure to comply strictly with statutory directions, he has no cause for complaint. And statutory regulations intended to protect the rights of litigants or of persons accused of crime are mandatory. On the theory that procedural statutes should be liberally construed to avoid setting up technical obstacles to the prosecution of a law suit, provisions intended for the benefit of the litigant, or involving only inconsequential matters, where no private rights are involved, should be directory. Statutes authorizing certain remedies or the imposition
of penalties, where it can be presumed that the legislature intended to allow for an exercise of judicial discretion with respect thereto, are permissive only, and not mandatory.”
The underlying principle for determination of the oft-vexed question of mandatory or directory character of a rule or a provision of any statute, as quoted from Sutherland’s Statutory Construction, also lends support to my view that Rules 75 (1) and 77 of the Rules are mandatory.
6. The proviso to Rule 77 makes it obligatory for the Tribunal not to dismiss an election petition under this rule without giving the petitioner an opportunity of being heard. This is in conformity with the principle of natural justice that a suitor should not be defeated without hearing him. The requirement of giving an opportunity of hearing by itself does not detract from the mandatory character of Rule 77.
7. Rule 78 says-
“If the election petition is not dismissed under Rule 73 or 77 the Election Tribunal shall fix a date for the hearing of the petition and shall not be less than ten days before the date so fixed cause a notice of the presentation of the petition and of the date fixed for hearing of the same together with a copy of the petition to be served on each respondent and on the Subdivisional Magistrate, and shall forthwith forward a copy of the petition to Government.”
If the election petition is not dismissed
under Rule 77 and proceeds to hearing, then in terms, Rule 77 is not attracted. But then, it is not possible to sustain the contention that the opposite Party cannot take advantage of the mandatory Provisions of the rules like Rule 77, because the Election Tribunal has failed to exercise its power under that rule. If the opposite party appears, and points out to the Tribunal that the election petition is liable to be summarily dismissed under Rule 77, the Tribunal on hearing the parties, at any stage, or at the trial of the election petition, will be bound to dismiss the election petition, even if it was not summarily dismissed, provided It suffers from the vice of non-compliance with certain mandatory provisions of the rules as provided for in Rule 77. If in terms that rule will not be applicable, Rule 87 can be pressed into service for that purpose. The said rule says-
“In respect of any matter not specifically provided for in these rules, the
Election Tribunal shall proceed in such
manner as it considers proper in the circumstances of the case.”
In a situation like this it will be perfectly legitimate for the Election Tribunal to
proceed to dismiss the election petition on the principles of law engrafted in Rule 77, at any stage, even at the final hearing of the election petition.
8. The mode of verification of the pleadings as provided in Order VI Rule 15 of the Code under the Patna Amendment of the Rule is as follows:–
“(1) 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 one of the parties pleading or of some 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.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.”
One of the questions for consideration in this case would be, whether the Election Tribunal can allow amendment of the election petition, if there is no verification in accordance with Order VI Rule 15 of the Code, or if the verification is defective, if so, to what extent the power of amendment can be utilised? It may be that in many cases where the defect or defects are of a minor nature, amendment may not be necessary or even possible. Can there always be a power of amendment under Order VI Rule 17 be cause of the provisions contained in Rule 79 (2) or because of Rule 87? In my opinion, if there is no verification at all in accordance with Order VI Rule 15, or if there is a verification but it is so very defective that in the eve of law, there is failure to comply with the requirements of Order VI Rule 13, then, in that event, the Election Tribunal cannot take recourse to its power under the Code which it derives under Rule 79 (2) for the trial of election petition, because that power has been conferred. I may repeat, subject to the provisions of the Rules. But, there may be a case where there is sufficient compliance with the requirements of Rule 75 (1), although there may not be literal compliance and there is some defect of a minor character. In that situation, is it reasonable to take the view that an election petition, in all events, has got to be dismissed in accordance with Rule 77? It will be too technical and unreasonable a view to take and, in my opinion, would be against the spirit of the phrase, “failure to comply with”, occurring in Rule 77. If there is sufficient compliance with the requirements of the Rules, even though there may not be full compliance or compliance to the hilt, it will be difficult to say that there is failure to comply with any provision of the rule.
9. 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 of 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, But supposing in putting the name of the place of verification he commits a spelling mistake or commits a clerial mistake in putting the date, as for example, instead of putting the date on an election petition filed today, i. e, 10-9-73, he puts
the date as 10-0-74. Obviously, this will be such a defect which cannot warrant the extreme penalty of summary dismissal of the election petition under Rule 77. Although it is to be emphasised that the requirement of Sub-rule (2) of Rule 15 or Order VI of the Code is not to be lightly ignored — one should be careful while verifying the pleadings as to which statements and which paragraphs are true to the knowledge of the person verifying land which statements he is veryfying are based on information received and believed to be true — yet such a kind of defect is so common even in the affidavits filed in the High Court in Writ matters as well as in other matter that it has come to be treated as negligible and a minor one. It causes no Prejudice to the other side. If the verification is there, the petitioner may be asked to specify, if he has not already specified in his verification, as in which statements are true to his knowledge and which statements are made based on information received and believed to be true. To my mind, such a defect can be added to the small list of examples which I have already given of minor defects which, even if it be there, cannot be teamed as non-compliance with the requirements of Rule 75 (1) or a failure to comply with them.
10. In the instant case, in the judgment of B. D. Singh. J., has been quoted the verification clause put in the election petition and it runs as follows:–
“I do hereby solemnly declare and affirm that the statements made in this petition are true to the best of my knowledge, belief and information and I sign this verification at Dhanbad on 26-6-1969.
Sd. Sarat Chandra Mandal.”
11. I new proceed to deal with some of the relevant authorities on the point While dealing with the authorities of the Supreme Court with reference to the Representation of the People Act, 1951 (Act 43 of 1951), a mistake or confusion is likely to crop up if the relevant provisions of the statute which were in force at the relevant time when a particular case was decided by the Supreme Court are not very carefully and clearly kept in mind. Some of the relevant provisions of the Representation of the People Act, which were in force before the amendment (Central Act No. 27 of 1956), when some election cases were decided by the Supreme Court, were contained in Sections 85 and 90 (4). The said two Sections at that time read as follows:–
Section 85. “If the provisions of Section 81, Section 83 or Section 117 are not complied with, the Election Commission shall dismiss the petition;
Provided that if a person making the petition satisfies the Election Commission that sufficient cause existed for his failure to present the petition within the period prescribed therefor, the Election Commission may in its discretion condone such failure.”
Section 90 (4)– “Notwithstanding anything contained in Section 85, the Tribunal may dismiss an election petition which does not comply with the Provisions of Section 81, Section 83 or Section 117.”
Section 82 relating to the parties to the petition was not contained in Section 85 and that is the reason whv Mahaian, C. J., delivering the judgment of the Court in the case of Jagan Nath v. Jaswant Singh, (AIR 1954 SC 210) did not find the point of non-joinder of parties fatal. In Dinabandhu v. Jadumoni, (AIR 1954 SC 411) Venkatarama Ayyar, J. repelled the argument that the Election Tribunal was bound to dismiss the election petition, if the Election Commission had failed to do so in accordance with Section 85 of the Representation of the People Act. The learned Judge pointed out that if in fact, an election petition has not been dismissed by the Election Commission under Section 85 and has proceeded for disposal to the Election Tribunal under Section 86, then the Tribunal’s power under Sub-section (4) of Section 90 was discretionary and not mandatory because of the use of the word “may” in that sub-section. The same learned Judge had also found in a Madras case, as a Judge of the Madras High Court that because of the discretionary power of the Tribunal under Section 90 (4), Section 85 could not be held to be mandatory. This view was expressed by the learned Judge in A. S. Subbarai v. M. Muthiah, (AIR 1954 Mad 836) which has been noticed by a Bench of this Court in the case. Raja Ram Sahu v. Brijraj Bahadur, ILR 38 Pat 95).
12. I would usefully oupte a passage front the judgment of Bose, J., in Sangram Singh v. Election Tribunal, Kotah, (AIR 1955 SC 425), at page 429, paragraph 16, in support of my view expressed above, that a Court even with respect to a mandatory provision of law cannot afford to be too strict so as to make the law unreasonable almost amounting to absurdity. The passage runs as follows:–
“Now a code of procedure must be regarded as such. It is ‘procedure’, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties: not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to ‘both,’ sides) lest the very means designed for the furtherance of justice be used to frustrate it.”
The observation of Jasannadhadas, J., in Bhikaji Keshao v. Brijlal Nandlal (AIR 1955 SC 610), at page 615, column 1 to the following effect, “it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of absence of date of verification”, must be understood with reference to the provision of law. i.e. Sub-section (4) of Section 90 of the Representation of the People Act, as it stood at that point of time. Since the Power of the Tribunal was discretionary, such a defect could not be held to be fatal. I do not want to multiply my examples for the purpose of showing whether such a defect would be fatal because of the mandatory character of Rule 75 (1) and Rule 77. Even absence of date of verification in a given case may not be fatal and in another it may prove fatal. I am not concerned with that matter in this case. Bv the Representation of the People (Second Amendment) Act (Act 27 of 1956). Section 83 was deleted from Section 85 and Section 82 was introduced in it. The discretionary power of the Tribunal as couched in the language of Sub-section (4) of Section 90 was given a go by and instead in the amended Section 90 (3) was provided :–
“The Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117, notwithstanding that it has not been dismissed by the Election Commission under Section 85.”
It would thus be seen that the power of the Election Tribunal was placed on the same obligatory footing as that of the Election Commission. It is because of that Bhagwati, J., in Kamaraja Nadar v. Kunju Thevar (AIR 1958 SC 687) points out in paragraph 29.
“If the provisions of Section 82 which prescribes who shall be joined as respondents to the petition are not complied with, the Election Commission is enjoined under Section 85 of the Act to dismiss the petition and similar are the consequences of non-compliance with the provisions of Section 117 relating to deposit of security of costs. If the Election Commission, however, does not do so and accepts the petition, it has to cause a copy of the petition to be published in the official gazette and a copy thereof to be served by post on each of the respondents and then refer the petition to an election tribunal for trial. Section 90 (3) similarly enjoins the Election Tribunal to dismiss an election petition which does not comply with the provisions of Section 82 or
Section 117 notwithstanding it has not been dismissed by the Election Commission under Section 85. Section 90 (3) is mandatory and the Election Tribunal is bound to dismiss such a petition if an application is made before it for the purpose.”
But in paragraphs 30 and 31 of the judgment the learned Judge pointed out that the words “in favour of the Secretary to the Commission” used in Section 117 are directory and not mandatory in their character. The essence of the provision is that the petitioner should furnish security for the costs of the petition and should enclose alone with the petition a Government Treasure receipt that a deposit of Rs. 1000/- has been made by him either in a Government Treasury or in the Reserve Bank of India. If the money is at the the disposal of the Election Commission, then the compliance with the requirement is sufficient and no literal compliance with the terms of Section 117 is at all necessary. I have respectfully followed the dictum of the Supreme Court in Kamaraia Nadar’s case AIR 1958 SC 687 while expressing my view above.
13. In a Bench decision of this Court in Mahesh Prasad Sinha v. Manjay Lal (AIR 1964 Pat 53) while considering the proviso to Sub-section (1) of Section 83 of the Representation of the People Act I had said at page 56 column 2-
“…………it seems that the substance
and the matter of the essence embodied in the proviso is that when allegations of corrupt, practices are made in the election petition, it must be accompanied by an affidavit, but the requirement of its being in the prescribed form is not of the essence and is directory”.
14. By the time the judgment of S.K. Das, J. came to be delivered in Murarka Radhey Shyam v. Roop Singh (AIR 1964 Supreme Court 1545), the law had been further amended by Act 40 of 1961 and Section 117 had been taken out of Sub-section (3) of Section 90 of the Representation of the People Act. The amended Section did, however, contain Section 82. The question to be decided in Murarka Radhey Shyam’s case was whether if an unnecessary party had been joined to the election petition besides all the necessary parties, can it be said that there was non-compliance with the provision of Section 82 making the application liable to be dismissed compulsorily under Section 90 (3) of the said Act? The learned Judge did not decisively pursue the matter because it was held:–
“It is open to the Election Tribunal to strike out the name of the party who is not necessary Party within the meaning of Section 82 of the Act. The position will be different if a person who is required to be joined as a necessary Party under Section 82 is not impleaded as a party to the petition. That however is not me case here and we are of the view that the learned counsel for the appellant has failed to make out the very foundation on which his argument on this part of the case is based.”
But a discussion in the judgment considerably lends support to the view that the provision otherwise would have been held to be mandatory and nothing was said against the ratio of the Supreme Court decision in Kamaraia Nadar’s case (AIR 1958 SC 687).
15. Learned counsel for the appellant placed reliance upon a Supreme Court decision in Smt. Sahodrabai Rai v. Ram Singh (AIR 1968 SC 1079). But in my opinion the decision is not quite apposite on the point. The discussion in paragraph 10 at page 1081 to which our attention has been drawn by learned counsel is not helpful to the point at issue. Learned counsel for respondent No. 1 placed reliance on two more decisions of the Supreme Court, namely. Jagat Kishore Prasad Narain Singh v. Rajendra Kumar (AIR 1971 SC 342) and Hardwari Lal vi. Kanwal Singh (AIR 1972 SC 515). In the former case. Hegde, J. held there was no substantial compliance with the requirement of Section 81 (3) of the Representation of the People Act, whether the said requirement was directory or mandatory. Even directory requirements are meant to be substantially complied with. Ray, J., as he then was, was of the opinion in the other case that the material facts mentioned in the election petition did not disclose a cause of action. If that was so, even in accordance with Order VII Rule 11 of the Code, which was applicable to the trial of election petitions, the petition could be dismissed for non-disclosure of cause of action.
16. I now proceed to discuss the decisions of the Patna High Court. In C. P. Sinha v. I. P. Mahton (ILR 30 Pat 1257) = (AIR 1952 Pat 158). Jamuar, J., with whom Rai J. agreed, had to consider the relevant rule of the Bihar District Board Election Petitions Rules, 1939. Both Sub-rules (1) and (2) of Rule 7 of the said Rules were exactly the same as Rule 75 of the Rules. A provision like Rule 77 of the Rules was contained in Rule 10 (1) of the District Board Election Petition Rules. On the facts of this case it was found that there was complete absence of verification on the list of corrupt practices. The verification was supplied after the expiry of the period of limitation for filing of the election petition. In that view of the matter, it was held that the Election Commissioner had no power to allow curing of the defect of the kind which was there
in that case, such as want of verification of the list The power under the Code could not be relied on because there was no provision in the Code for rejection of the plaint in limine for want of verification for the like, while there was definite provision in the Election Petitions Rules aforesaid for rejection of the election petition if it is not presented in accordance with the Rules. Broadly speaking, I am in respectful agreement with the view expressed in this case, subject to the riders which I have mentioned above. In Raja Ram Sahu v. Brijraj Bahadur (ILR 38 Pat 95) Kanhaiya Singh, J. delivered the leading judgment and Ramaswami, C. J. agreed with him. Rule 65 (1) of the Bihar Municipal Election and Election Petitions Rules, 1953 was in pari materia with Rule 75 (1) of the Rules. Summary dismissal of the election petition as provided in Rule 77 was to be found in Rule 68 of the Municipal Election Petitions Rules aforesaid. Following the decision of the Supreme Court in Kamaraia Nadar’s case (AIR 1958 SC 687), it was held that the provisions were mandatory and that the election petition could be dismissed for a defect in the verification even at the time of its final hearing. Argument to the contrary advanced with reference to Rule 69 of the Municipal Election Petitions Rules, which is equivalent to Rule 78 of the Rules, was rejected. I again say and say so with respect that I find myself, broadly speaking, in agreement with the view expressed in this case, but not to the full extent. On the facts, the case seems to have been rightly decided, if I may say so with respect. The defects in the verification were three, one of which being exactly of the kind we find in the instant case and the other two defects were that neither the date of verification nor the place at which it was signed was stated in it. The defects were, therefore, too many, the cumulative effect of which was that it could not come within the ambit of sufficient compliance with the rule. To a large extent, with the principles which have been laid down in this case I do not disagree, but I agree with them subject to the view which I have expressed, that in all cases a meticulous and literal compliance cannot be insisted upon. In Satya Nand Singh’s case (1967 BLJR 439), Narasimham, C.J. and A.B. N. Sinha, J. followed the earlier two Bench decisions of this Court, namely, these reported in ILR 30 Pat 1257 = (AIR 1952 Pat 158) and (1959) ILR 38 Pat 95. They distinguished the Supreme Court decision in Murarka Radhey Shyam’s case (AIR 1964 SC 1545). The defect in the verification in Satya Nand Singh’s case 1967 BLJR 439 was that it was in accordance with the general Rule 15 of Order VI of the Code, but it was neither
on solemn affirmation nor on oath as required by the Patna Amendment of the Rule. I do not know what would have been the decision of the Bench in that case, if the attention of Hon’ble the Chief Justice and the learned Judge would have been drawn to the distinction, though thin vet substantial, between literal compliance with the rule and sufficient compliance with it. So far as the rules are said to be mandatory, the view expressed in that decision does not require any modification. But even in the case of mandatory requirement, a literal compliance with the rule cannot always he insisted upon and non-compliance with the requirements which are not of the essence or are directory cannot entail the extreme penalty of dismissal of the election petition.
In Chandrika Tiwary v. Thakur Ray (1970 Pat LJR 529) sitting singly. I had followed the Bench decision in Satya Nand Singh’s case, as I was hound to follow. When it was argued before me by learned counsel for respondent No. 1 in that case, that, Satya Nand Singh’s case was wrongly decided, because the Supreme Court in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani (AIR 1955 SC 610) and Harish Chandra Baipai v. Triloki Singh (AIR 1957 SC 444) had held that amendment could be allowed, I answered by pointing out the difference in the two provisions, one, namely. Section 90 (4) of the Representatoon of the People Act, containing the word “may”, and the other, namely. Rule 77 of the Rules using the word “shall”. The defect in the verification in Chandrika Tiwary’s case, which was decided by me, was exactly the same as in Satya Nand Singh’s case. Sitting singly, I was not called upon to decide whether a defect of that kind would necessarily entail dismissal of the election petition. In Musai Rai v. State of Bihar (1967 BLJR 534) = (AIR 1967 Pat 346) I sitting with my learned Brother, S.N.P. Singh, J., decided that the Election Tribunal had power to allow amendment. But the amendment which was the subject-matter of consideration in that case was not in relation to the failure to comply with the requirement of Rule 75 (1) entailing dismissal under Rule 77.
17. In Dhanilal Mishra v. Dwarka Nath Mishra (1963 BLJR 86). Kamla Sahai, J., sitting singly, opined, that since according to the Code of Civil Procedure, amendment of the pleadings can be allowed, defects in the verification can also be allowed to be amended and “Rule 77 cannot be construed to provide a prohibition against the authority of the Tribunal to allow amendment of the election petition”. In that case, only two signatures had been put and there was no verification at all. Amendment in accordance with the power conferred by Order VI Rule 17 of the Code, in my opinion, cannot be allowed for curing a defect of the kind which was there in the election petition and which was the subject-matter of consideration in Dhanilal Mishra’s case. I, therefore, say and say so respectfully that the view expressed by the learned Single Judge in that case was not correct. In the case Chandrika Singh v. N. C. Ganguli (M.J.C. 1259 decided on the 21st July, 1961), decided by Choudhary J., there was compliance with the requirement of Rule 75 (1), but to a large extent only. The defect was that signature below the contents of the election petition and above the verification clause was not put. The verification was there in the manner laid down in the Code and was a signed one. But the minor defect of not affixing one more signature below the contents and above the verification was there. In such a situation the learned Judge held that the power of summary dismissal under Rule 77 was not attracted. Reading the provision of Rule 77 and comparing the law under the Code to deal with plaints having defective verification, the learned Judge said that every requirement of Rule 75 (1) is not material and absence of one signature was not fatal to the fate of the election petition, as every requirement was not mandatory). The view expressed by the learned single Judge in Chandrika Singh’s case, if I may say so with respect, seems to be more or less on the lines indicated by me above.
18. In two unreported decisions, namely, Upendra Jha v. Karim Khan (C. W. J. C. No. 28 of 1965) (Pat) and Rameshwar Mahto v. Election Tribunal Bihar Sharif (C. W. J. C. No. 1018 of 1965) (Pat), both decided on 19-12-1966 U. N. Sinha, J., as he then was, held that the provision of Rule 75 (1) was mandatory and failure to put any verification according to Rule 15 Order VI of the Code would make that election petition liable to be dismissed. G. N. Prasad, J., sitting singly, in C. W. J. C. 549 of 1966 (Pat) (Kissun Lal Yadav v. Shihip Lal Yadav), decided on 7-2-1967, took the same views. The views expressed so far by the Patna High Court, if I may say so with respect, are to be appreciated with the modification and the rider which I have put earlier in my judgment. Subject to them. I respectfully agree with the views.
19. Before I finally express my opinion on the question referred to the Full Bench, I would like to point out that in the written statement filed by respondent No. 1 in paragraph 5 it has been merely stated that the application was not legally maintainable and it was barred by limitation. The Election Tribunal held it
to be maintainable as it was in accordance with Rule 75 (1). The exact defect in the verification was not made a Ground of attack in the written statement nor was there any prayer made to dismiss the election petition summarily in accordance with the provision of Rule 77. Perhaps the reason was that identical defect was there in the verification clause of the written statement out in by respondent No. 1. He had also jumbled up the verification as true to his knowledge, belief and information.
20. For the reasons stated above, I would hold that the Election Tribunal has got power to allow amendment of the verification of an election petition challenging the election of a Gram Panchayat in this State, if it is not verified in accordance with the requirements of the Code, only if the defects or the cumulative effect of the defects is of minor nature so as not to take the matter out of the realm of the rule of sufficient compliance with the requirements of the Rules. If there is sufficient compliance, literal compliance is not necessary. In many cases of this type amendment may not be necessary or possible. But if there is no sufficient compliance, then it is imperative for the Tribunal to dismiss the election petition. It cannot afford to give an opportunity to the election petitioner for amending the election petition for removal of major and fatal defects.
S.N.P. Singh, J.
21. I entirely agree and have nothing further to add.
S.K. Jha, J.
22. I fully concur in the opinion expressed by my Lord the Chief Justice.