{"id":209656,"date":"2009-08-13T00:00:00","date_gmt":"2009-08-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kulwant-kaur-vs-state-of-punjab-and-others-on-13-august-2009"},"modified":"2018-01-19T15:27:53","modified_gmt":"2018-01-19T09:57:53","slug":"kulwant-kaur-vs-state-of-punjab-and-others-on-13-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kulwant-kaur-vs-state-of-punjab-and-others-on-13-august-2009","title":{"rendered":"Kulwant Kaur vs State Of Punjab And Others on 13 August, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Kulwant Kaur vs State Of Punjab And Others on 13 August, 2009<\/div>\n
C.R. No. 978 of 2009                                                  [1]\n\n\n\n\n        IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n\n                               CHANDIGARH.\n\n                                C.R. No. 978 of 2009\n\n                                Date of Decision: August 13, 2009\n\n\n\nKulwant Kaur\n\n                                     .....Petitioner\n\n            Vs.\n\nState of Punjab and others\n\n                                     .....Respondents\n\n\nCORAM:      HON'BLE MR. JUSTICE M.M.S. BEDI.\n\n                         -.-\n\nPresent:-   Mr. Vikas Bahl, Advocate\n            for the petitioner.\n\n            Ms. Rajni Gupta, Addl. A.G., Punjab.\n\n            Mr.R.P. Dhir, Advocate\n\n                  -.-\n\n\n\nM.M.S. BEDI, J.\n<\/pre>\n
            Election of the petitioner as Municipal Councillor stands<\/p>\n
challenged in an election petition which is pending before Deputy<\/p>\n
Commissioner-cum-Election Tribunal, at Nawanshahar. The petitioner has<\/p>\n
approached this Court under Article 227 of the Constitution of India for<\/p>\n
setting aside an interim order dated January 19, 2009 by virtue of which the
\n C.R. No. 978 of 2009                                                     [2]<\/p>\n
Deputy Commissioner-cum-Election Tribunal has allowed a Misc.<\/p>\n
application filed by respondent No.2 (Election petitioner) to amend and cure<\/p>\n
the defects in the petition as well as the annexures\/ schedule attached with<\/p>\n
the election petition. The respondent during the pendency of her election<\/p>\n
petition before the Election Tribunal, Nawanshehar, filed an application for<\/p>\n
permission to sign on each page of the petition and on each page of the<\/p>\n
schedule and annexures attached and also to make verification of the<\/p>\n
annexures, pleadings that the respondent could not sign on each page of<\/p>\n
petition, schedule and annexures and further that she could not verify the<\/p>\n
same by over-sight and that she be allowed to do the needful.<\/p>\n
             After giving notice of the application to the petitioner, a reply<\/p>\n
was filed by the petitioner strongly objecting to the application stating that<\/p>\n
non-compliance of mandatory provisions of Punjab State Election<\/p>\n
Commission Act, 1994, (hereinafter referred to as ‘the Act’) and non-<\/p>\n
verification of the petition, annexures\/ schedule by the respondent has given<\/p>\n
a valuable right to the petitioner which cannot be allowed to be undone. A<\/p>\n
further plea was taken that the election petition has not been filed within<\/p>\n
limitation and it was barred by time as such Misc. application was also not<\/p>\n
maintainable. The petitioner submitted in the application that even the<\/p>\n
Apex Court vide order dated December 1, 2008 has protected the rights of<\/p>\n
the petitioner to raise all questions of facts and\/ or law as permissible under<\/p>\n
law before the Election Tribunal which are required to be considered on<\/p>\n
merit and to be decided.   The petitioner raised legal objections that Section<\/p>\n
78 of the Act prescribes that an Election petition is required to be signed by
\n C.R. No. 978 of 2009                                                     [3]<\/p>\n
the petitioner and verified in a manner as laid down in CPC and annexures<\/p>\n
to the petition shall also be signed by the petitioner and verified in the same<\/p>\n
manner as the petition. The Election Tribunal allowed Misc. application<\/p>\n
after considering all the objections of the petitioner observing that the<\/p>\n
respondent has only prayed for the correction of procedural lapses and has<\/p>\n
not prayed for any amendment of any document as such the Tribunal<\/p>\n
allowed the application of the respondent and granted permission to sign<\/p>\n
and verify the petition, annexures\/ schedule without prejudice to the legal<\/p>\n
and factual defences available to the petitioner under law.<\/p>\n
             Mr. Vikas Bahl, counsel for the petitioner vehemently argued<\/p>\n
that in the garb of the term correction of procedural error, the Election<\/p>\n
Tribunal has permitted the respondent to remove such defects which would<\/p>\n
have entitled the petitioner for dismissal of the Election Petition. He has<\/p>\n
argued that an application under Section 5 of the Limitation Act for<\/p>\n
condonation of delay has been filed by the respondent.<\/p>\n
             On the other hand, counsel for the respondent No.3-<\/p>\n
Mr.R.P.Dhir has argued that the formal procedural errors have been<\/p>\n
permitted to be rectified vide impugned order as the provisions of Section<\/p>\n
78 of the Act require that the election petition is to be signed by the<\/p>\n
petitioner and verified in a manner laid down in CPC and that Section 76(2)<\/p>\n
of the Act requires that the annexures attached with the petition are required<\/p>\n
to be signed and verified by election petitioner. The respondent had merely<\/p>\n
sought a permission to sign and verify the annexures attached with the<\/p>\n
petition.\n<\/p>\n
 C.R. No. 978 of 2009                                                     [4]<\/p>\n
            I have heard counsel for the petitioner as well as counsel for<\/p>\n
the respondent.   Before adverting to the facts of the present case, the<\/p>\n
relevant provisions pertaining to the election petition are required to be<\/p>\n
referred to. Sections 74, 75, 76, 77, 78, 79, 80 and 103 of the Act read as<\/p>\n
follows:-\n<\/p>\n
                  “74. Election Petitions: – No election shall be called in<\/p>\n
                  question except by an election petition presented in<\/p>\n
                  accordance with the provisions of this Chapter.<\/p>\n<\/blockquote>\n
                  75.   Election Tribunal to try election petitions.-(1)<\/p>\n
                  Only the Election Tribunal having jurisdiction shall have<\/p>\n
                  the power to adjudicate upon the election petitions.<\/p>\n
                  (2)   The Election Tribunal in its discretion may, in the<\/p>\n
                  interests of justice or convenience, try an election<\/p>\n
                  petition wholly or partly, at a place other than its<\/p>\n
                  specified headquarters.\n<\/p><\/blockquote>\n
                  76.   Presentation of petition.-(1) An election petition<\/p>\n
                  may be presented on one or more of the grounds<\/p>\n
                  specified in sub-section (1) of section 89 to the Election<\/p>\n
                  Tribunal by any candidate to such election or by any<\/p>\n
                  elector within a period of forty five days from the date of<\/p>\n
                  election of the returned candidate or if there are more<\/p>\n
                  than one returned candidates at the election and there are<\/p>\n
                  different dates of their election, then the later of these<\/p>\n
                  dates shall be taken into account for this purpose.\n<\/p><\/blockquote>\n
 C.R. No. 978 of 2009                                                   [5]<\/p>\n
                 (2) Every election petition shall be accompanied by as<\/p>\n
                 many copies thereof, as there are respondents mentioned<\/p>\n
                 in the petition and every such copy shall be attested by<\/p>\n
                 the petitioner under his own signatures to be a true copy<\/p>\n
                 of the petition.\n<\/p><\/blockquote>\n
                 77. Parties to the petition.-A petitioner shall join as<\/p>\n
                 respondent to his petition-\n<\/p><\/blockquote>\n
                 (a) where he, in addition to claiming declaration that the<\/p>\n
                 election of all or any of the returned candidates is void,<\/p>\n
                 claims a further declaration that he himself or any other<\/p>\n
                 candidate has been duly elected, all the contesting<\/p>\n
                 candidates and where no such further declaration is<\/p>\n
                 claimed, all the returned candidates; and<\/p>\n<\/blockquote>\n
                 (b) any other candidate against whom allegation of any<\/p>\n
                 corrupt practice is made in the petition.<\/p>\n<\/blockquote>\n
                 78. Contents of Petition.-(1) As election petition shall,-<\/p>\n<\/blockquote>\n
                 (a) contain a concise statement of the material facts on<\/p>\n
                 which the petitioner relies;<\/p><\/blockquote>\n
                 (b) set forth full particulars of any corrupt practice that<\/p>\n
                 the petitioner alleges, including a statement as possible,<\/p>\n
                 of the names of the parties alleged to have committed<\/p>\n
                 such corrupt practice or practices and the date and place<\/p>\n
                 of the commission of such practice; and
\n C.R. No. 978 of 2009                                                 [6]<\/p>\n
                 (c) be signed by the petitioner and verified in the manner<\/p>\n
                 laid down in the Code of Civil Procedure, 1908, (Central<\/p>\n
                 Act 5 of 1908) for the verification of pleadings.<\/p>\n
                 Provided that where the petitioner alleges any corrupt<\/p>\n
                 practice, the petition shall be accompanied by an<\/p>\n
                 affidavit in the prescribed form in support of the<\/p>\n
                 allegation of such corrupt practice and the relevant<\/p>\n
                 particulars thereof.\n<\/p>\n
                 (2) Any schedule or annexure to the petition shall also be<\/p>\n
                 signed by the petitioner and verified in the same manner<\/p>\n
                 as the petition.\n<\/p>\n
                 79. Relief that may be claimed by the petitioner: – A<\/p>\n
                 petitioner may in addition to claiming a declaration that<\/p>\n
                 the election of all or any of the returned candidates is<\/p>\n
                 void, claim further declaration that he himself or any<\/p>\n
                 other candidate may be declared as duly elected.<\/p>\n
                 80. Trial of election petitions.-(1) The Election Tribunal<\/p>\n
                 shall dismiss an election petition which does not comply<\/p>\n
                 with the provisions of Section 76 or section 77 or section<\/p>\n
                 103.<\/span><\/p>\n
                 (2) Where more than one election petition are presented<\/p>\n
                 to the Election Tribunal in respect of the same matter,<\/p>\n
                 the Presiding Officer of the Election Tribunal may, in his<\/p>\n
                 discretion, try them separately or in one or more groups.\n<\/p>\n
 C.R. No. 978 of 2009                                                    [7]<\/p>\n
                 (3) Any candidate not already a respondent shall, upon<\/p>\n
                 application made by him to the Election Tribunal within<\/p>\n
                 fourteen days from the date of commencement of the<\/p>\n
                 trial of the election petition and subject to any order as to<\/p>\n
                 security for costs which may be made by the Election<\/p>\n
                 Tribunal, be entitled to be joined as a respondent.<\/p>\n
                 (4) The election Tribunal may, upon such terms as to<\/p>\n
                 costs and otherwise, as it may deem fit, allow to<\/p>\n
                 particulars of any corrupt practice alleged in the petition<\/p>\n
                 to be amended or amplified in such manner, as may in its<\/p>\n
                 opinion be necessary for ensuring a fair and effective<\/p>\n
                 trial of the petition, but shall not allow any amendment<\/p>\n
                 of the petition which will have the effect of introducing<\/p>\n
                 particulars of a corrupt practice which has not been<\/p>\n
                 previously alleged in the petition.\n<\/p>\n
                 (5) The trial of an election petition shall, so far as is<\/p>\n
                 practicable consistently with the interest of justice in<\/p>\n
                 respect of the trial be continued from day-to-day until the<\/p>\n
                 conclusion, unless the election Tribunal finds the<\/p>\n
                 adjournment of the trial beyond the following day to be<\/p>\n
                 necessary for reasons to be recorded in writing.<\/p>\n
                 (6) Every election petition shall be tried as expeditiously<\/p>\n
                 as possible and every endeavor shall be made to<\/p>\n
                 conclude the trial within a period of six months from the
\n C.R. No. 978 of 2009                                                    [8]<\/p>\n
                   date on which the election petition is presented to be<\/p>\n
                   Election Tribunal for trial.\n<\/p>\n
                   103. Security of Costs.- (1) At that time of presenting<\/p>\n
                   an election petition, the petitioner shall deposit in the<\/p>\n
                   Election Tribunal such sum, as may be prescribed as<\/p>\n
                   security for the costs of the petition.\n<\/p>\n
                   (2) During the course of the trial of an election petition,<\/p>\n
                   the Election Tribunal may, at any time, call upon the<\/p>\n
                   petitioner to give such further security for costs, as it<\/p>\n
                   may direct.”\n<\/p>\n
            A perusal of the above provisions indicate that according to<\/p>\n
Section 80 of the Act, the Election Tribunal shall dismiss an election<\/p>\n
petition which does not comply with the provisions of Section 76 of the Act<\/p>\n
or Section 77 or Section 103 of the Act.       The Act is a complete code in<\/p>\n
itself which lays down the grounds of setting aside an election and the<\/p>\n
procedure which is required to be adopted while filing the election petition.<\/p>\n
So far as the procedural law is concerned, it has been settled by Hon’ble<\/p>\n
Supreme Court in Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh<\/p>\n
and another, 2005 AIR SCW 5851 that procedural provisions should not<\/p>\n
be allowed to defeat substantive rights or to cause injustice. The Supreme<\/p>\n
Court has clarified the exceptions to the said principle. The relevant portion<\/p>\n
pertaining to some of the procedural errors and the exceptions are<\/p>\n
reproduced hereunder:-\n<\/p>\n
 C.R. No. 978 of 2009                                                   [9]<\/p>\n
                 16. An analogous provision is to be found in Order 6<\/p>\n
                 Rule 14 CPC which requires that every pleading shall be<\/p>\n
                 signed by the party and his pleader, if any. Here again, it<\/p>\n
                 has always been recognized that if a plaint is not signed<\/p>\n
                 by the plaintiff or his duly authorized agent due to any<\/p>\n
                 bona fide error, the defect can be permitted to be<\/p>\n
                 rectified either by the trial court at any time before<\/p>\n
                 judgment, or even by the appellate court by permitting<\/p>\n
                 appropriate amendment, when such defect comes to its<\/p>\n
                 notice during hearing.\n<\/p>\n
                 17.   Non-compliance with any procedural requirement<\/p>\n
                 relating to a pleading, memorandum of appeal or<\/p>\n
                 application or petition for relief should not entail<\/p>\n
                 automatic dismissal or rejection, unless the relevant<\/p>\n
                 statute or rule so mandates. Procedural defects and<\/p>\n
                 irregularities which are curable should not be allowed to<\/p>\n
                 defeat substantive rights or to cause injustice. Procedure,<\/p>\n
                 a hand-maiden to justice, should never be made a tool to<\/p>\n
                 deny justice or perpetuate injustice, by any oppressive or<\/p>\n
                 punitive use. The well recognized exceptions to this<\/p>\n
                 principle are :-\n<\/p>\n
                 i)    where the Statute prescribing the procedure, also<\/p>\n
                 prescribes    specifically   the   consequence   of   non-<\/p>\n
                 compliance.\n<\/p>\n
 C.R. No. 978 of 2009                                                         [10]\n\n\n\n\n                   ii)    where the procedural defect is not rectified, even\n\n<\/pre>\n
                   after it is pointed out and due opportunity is given for<\/p>\n
                   rectifying it;\n<\/p>\n
                   iii)   where the non-compliance or violation is proved<\/p>\n
                   to be deliberate or mischievous;\n<\/p>\n
                   iv) where the rectification of defect would affect the case<\/p>\n
                   on merits or will affect the jurisdiction of the court.<\/p>\n
                   v) in case of Memorandum of Appeal, there is complete<\/p>\n
                   absence of authority and the appeal is presented without<\/p>\n
                   the knowledge, consent and authority of the appellant.”<\/p>\n
            The Hon’ble Supreme Court in Uday Shankar Triyar’s case<\/p>\n
(supra) was dealing with a case in which a memorandum of appeal was not<\/p>\n
signed by the appellant or his pleader. It was held that non-compliance of<\/p>\n
procedural provision does not always entail automatic rejection of the<\/p>\n
appeal without giving opportunity to rectify defect. It was while dealing<\/p>\n
with the said proposition the Apex Court made observations mentioned<\/p>\n
hereinabove. In view of the abovesaid provisions the procedural defects<\/p>\n
and other irregularities which could be cured should not be permitted to<\/p>\n
defeat the substantive right or to cause injustice to a litigant. Procedure, a<\/p>\n
hand-maiden of justice should not be made a tool to deny justice or<\/p>\n
perpetuate injustice by any punitive use of the procedural provisions unless<\/p>\n
and until the statute prescribes a procedure and also specifically prescribes<\/p>\n
consequence of non-compliance.\n<\/p>\n
 C.R. No. 978 of 2009                                                       [11]<\/p>\n
             Examining the facts of this case with reference to the principles<\/p>\n
laid down in Uday Shankar Triyar’s case (supra), it is apparent that the<\/p>\n
procedural law of election petition under Section 78 of the Act requires<\/p>\n
under Section 78 (1) (c) that the election petition has to be signed and<\/p>\n
verified in a manner laid down in Civil Procedure Code, 1908 for the<\/p>\n
verification of pleadings. In this concern, the reference can be made to<\/p>\n
Order 6 Rule 14 CPC which requires that every pleading shall be signed by<\/p>\n
the party and his pleader, if any. Section 78 (2) of the Act prescribes that<\/p>\n
any schedule or annexure to the petition shall also be signed by the<\/p>\n
petitioner and verified in the same manner as the petition.<\/p>\n
             The next point which is required to be examined is whether the<\/p>\n
non-compliance of any of the requirements of Section 78 of the Act would<\/p>\n
entail straightway dismissal of the election petition or it could be permitted<\/p>\n
to be rectified if pointed out in time. In this context, a reference to Section<\/p>\n
80 of the Act is relevant which lays down that Election Tribunal shall<\/p>\n
dismiss an application petition which does not comply with the provisions<\/p>\n
of Section 76 or 77 or Section 103 of the Act. The legislature in its wisdom<\/p>\n
has intentionally omitted Section 78 in Section 80 of the Act, meaning<\/p>\n
thereby, that in case of any procedural error as enshrined in Section 78 of<\/p>\n
the Act, will not entail dismissal of the election petition straightway.<\/p>\n
             In the present case the respondent has been, vide impugned<\/p>\n
order, permitted to sign and verify the petition and annexures\/ schedule<\/p>\n
without prejudice to the legal and factual defences of respondent available<\/p>\n
to them under law. The defect which has been permitted to be cured does
\n C.R. No. 978 of 2009                                                    [12]<\/p>\n
not fall in Section 80 of the Act and does not entail automatic dismissal or<\/p>\n
rejection as per the scheme of the statute and the non-compliance of<\/p>\n
provisions of Section 78 of the Act do not entail automatic rejection of<\/p>\n
Election petition, no fault could be found in the exercise of jurisdiction by<\/p>\n
the Election Tribunal.\n<\/p>\n
            It will not be out of place to mention here that counsel for the<\/p>\n
petitioner has contended that the respondent has filed an application under<\/p>\n
Section 5 of the Limitation Act. Before filing the election petition, the<\/p>\n
respondent alongwith Ram Parkash had filed a writ petition in the High<\/p>\n
Court challenging the election of the petitioner bearing CWP No. 14592 of<\/p>\n
2008, decided on August 20, 2008 alleging that there had been violation of<\/p>\n
Section 27 of the Act. While disposing of the said petition, it was observed<\/p>\n
by Division bench of this Court that the alleged non-compliance of Section<\/p>\n
27 of the Act would constitute a ground to get the election declared void but<\/p>\n
the petition was disposed of with liberty to the respondent and others to file<\/p>\n
an election petition before the Election Tribunal. It was also directed that<\/p>\n
Election Petition, if filed, shall be decided expeditiously. The said order<\/p>\n
had been challenged by the elected candidates Kulwant Kaur and others in<\/p>\n
SLPs Nos. 27853-27854 of 2008 before the Apex Court. The SLP was<\/p>\n
dismissed, however, permission was granted that all points of facts and\/ or<\/p>\n
law as permissible under law could be raised before the Election Tribunal<\/p>\n
and that the Tribunal shall consider the said questions on merits and decide<\/p>\n
the petition in accordance with law.\n<\/p>\n
 C.R. No. 978 of 2009                                                     [13]<\/p>\n
             Mr.Vikas Bahl, counsel for the petitioner has got an<\/p>\n
apprehension that the dismissal of this petition would prejudice the rights of<\/p>\n
the petitioner regarding the limitation as the respondent has filed an<\/p>\n
application under Section 5 of the Act for condonation of delay in filing the<\/p>\n
Election Petition. It is claimed by the counsel that after the dismissal of the<\/p>\n
writ petition by the High Court, the Election Petition has been filed beyond<\/p>\n
the period of limitation.\n<\/p>\n
             Petition is dismissed without prejudice to the rights of the<\/p>\n
petitioner, if any, accrued to her on account of alleged delay in filing of the<\/p>\n
election petition which would be determined by the Election Tribunal in<\/p>\n
accordance with law.        Anything said in this order will not affect the<\/p>\n
adjudication of the application under Section 5 of the Limitation Act which<\/p>\n
is pending before the Election Tribunal.\n<\/p>\n<\/p>\n
August 13, 2009                                     (M.M.S.BEDI)\n sanjay                                               JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Kulwant Kaur vs State Of Punjab And Others on 13 August, 2009 C.R. No. 978 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 978 of 2009 Date of Decision: August 13, 2009 Kulwant Kaur …..Petitioner Vs. State of Punjab and others …..Respondents CORAM: HON’BLE MR. 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