IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1413 of 2007 Judgment reserved on 23.11.2009 Date of decision : 26.11.2009 ____________________________________________________________ Ashok Kumar Gupta …Petitioner. Versus State of Himachal Pradesh & Ors. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioner : Mr. Rajeev Sood, Advocate. For the Respondents : Mr. Anshul Bansal, Addl. A.G. with Mr. R.P. Singh, Assistant AG, for respondent No.1. Mr. Rahul Mahajan, Advocate for respondent No.2. None for respondent No.3. Kuldip Singh, Judge This petition has been filed for setting aside the order dated 15.5.2007 passed by learned Appellate Authority in case No.12/9 of 2006 and for affirming order dated 30.9.2006 passed by Authorized Officer- Sub Divisional Officer ( Civil), Solan in Case No.4/Eln/06. 2. The facts in brief as per petitioner are that respondent No.2 had filed election petition before Sub Divisional Magistrate, Solan ________________ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 and challenged the election of Pardhan, Gram Panchayat Dharampur held on 18.12.2005, in which three candidates contested the election. The respondent No.2 on 5.12.2005 had objected the nomination of the petitioner for the post of Pardhan on the grounds that the petitioner had not paid the dues which were standing in his name as per Audit Report for the years 4/95 to 3/2000 but, respondent No.3 despite objection illegally accepted the nomination papers of the petitioner. The petitioner had produced a false and fictitious NOC before respondent No.3. The respondent No.2 objected to the NOC also. The respondent No.2 filed affidavit in support of the petition which was attested by Notary Public. The respondent No.2 had prayed for setting aside the election of petitioner. 3. The petitioner had contested the petition by filing reply in which prayer has been made for dismissal of the election petition as the same has not been verified in accordance with law. The petition was filed in the court of Sub Divisional Magistrate and not before Prescribed Authority under the Himachal Pradesh Panchayati Raj Act, 1994 (for short Act). The petition is bad for non-joinder of necessary parties. There were three candidates namely petitioner, respondent No.2 and one Prem Chand. It has been alleged that Prem Chand, a necessary party, has not been impleaded in the petition and therefore, the petition is liable to be dismissed on this ground alone. He denied all the averments made in the election petition. The objections of respondent No.2 with respect to NOC is frivolous. The petitioner denied that any amount was due from him to Gram Panchayat. 3 4. The respondent instead of filing any rejoinder had filed an application under Order 1 Rule 10 CPC for substituting Sub Divisional Officer in the title of the petition in place of Sub Divisional Magistrate on the ground that due to clerical error the mistake has crept in. A prayer was made for impleading Prem Chand as proforma respondent. The petition was heard on maintainability and the learned Authorized Officer dismissed the petition on 30.9.2006. 5. The respondent No.2 filed appeal before Appellate Authority under the Act, who allowed the appeal on 15.5.2007 and remanded the case to the Authorized Officer-Sub Divisional Officer (Civil). The petitioner has filed the writ petition against the order dated 15.5.2007. 6. Mr. Rajeev Sood, learned counsel for the petitioner has submitted that Appellate Authority has erred in allowing the appeal. He has submitted that the election petition was wrongly presented before Sub Divisional Magistrate instead of Authorized Officer under the Act. He has also submitted that Prem Chand was a necessary party and in absence of Prem Chand the election petition was not maintainable. The affidavit in support of the petition was not on Form No.43. In these circumstances, the Authorized Officer had rightly dismissed the petition under the Act. The Appellate Authority has erred in setting aside the order dated 30.9.2006 passed by the Authorized Officer-Sub Divisional Officer(Civil), Solan and remanding the case. The learned counsel for the petitioner has not argued regarding the alleged defect in the verification of the petition. 4 7. A copy of election petition dated 24.12 2006 has been placed on record. This petition has been addressed to learned Sub Divisional Magistrate, Solan, District Solan. The grievance of the petitioner is that the election petition should have been addressed to Authorized Officer and once the election petition was addressed to Sub Divisional Magistrate, Solan then it cannot be construed to be an election petition presented to Authorized Officer, Solan. 8. The election petition addressed to Sub Divisional Magistrate, Solan instead of Sub Divisional Officer( Civil), Solan is only an inconsequential mistake or at the most error in describing the Authorized Officer. The officer before whom the election petition was actually filed was Authorized Officer-Sub Divisional Officer (Civil), Solan under the Act to hear the election petition. It is not the case of the petitioner that Sub Divisional Magistrate, Solan and Sub Divisional Officer (Civil), Solan were two different officers. It has been submitted on behalf of the respondents that same officer was having powers of Sub Divisional Magistrate, Solan as well as Sub Divisional Officer (Civil), Solan. This contention has not been denied by learned counsel for the petitioner. In these circumstances, it is held that there was no defect in presenting the election petition by respondent No.3, even though; it was erroneously addressed to Sub Divisional Magistrate, Solan instead of Sub Divisional Officer(Civil), Solan when Sub Divisional Magistrate , Solan and Sub Divisional Officer ( Civil), Solan were not two different officers, rather one officer was Sub Divisional Magistrate, Solan as well as Sub Divisional Officer (Civil), Solan and was also Authorized Officer under the Act. 5 9. It is the case of the petitioner that respondent No.2 had challenged the election of petitioner on the ground of wrongful acceptance of the nomination papers of petitioner. There is no allegation of corrupt practice in the petition. It has been contended on behalf of the petitioner that petitioner had filed an affidavit in support of the petition which was attested by Notary Public and not on form No.43 by Magistrate and therefore, in absence of proper affidavit the petition was rightly dismissed by Authorized Officer. The Section 164 of the Act provides contents of petition. Proviso to Section 164 of the Act provides that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. Sub rule (3) of rule 94 framed under the Act provides that the affidavit referred to in the proviso to sub section (1) of Section 164 of the Act shall be in form 43 and shall be sworn before a Magistrate. It is admitted case of the petitioner that there is no allegation of corrupt practice in the election petition filed by respondent No.2, therefore, in view of proviso to Section 164 of the Act and Sub rule (3) of rule 94 the affidavit was not required to be on Form No.43 duly sworn by Magistrate, hence, there is no defect in the affidavit filed with the petition as contended by learned counsel for the petitioner. 10. Learned counsel for the petitioner has submitted that Prem Chand is a necessary party in the election petition in as much as Prem Chand was also a candidate and contested the election of Pardhan. Section 163-A of the Act provides that where the petitioner, in addition to claiming declaration that the election of all or any of the 6 returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates shall be joined as respondent in the petition. The clause (b) of Section 163-A further provides that any other candidate against whom allegations of any corrupt practice are made in the petition is also required to be joined as respondent in the petition. In the election petition the respondent No.2 has not sought declaration for declaring him or any body else duly elected, nor there any allegation of corrupt practice. In these circumstances, Prem Chand is not a necessary party and for not impleading Prem Chand the petition was not defective. 11. The learned counsel for the petitioner has submitted that Appellate Authority has wrongly ordered substitution of the name of the court. There is no merit in this contention also. It has already been held above that there was no defect in the presentation of the petition. The Appellate Authority has permitted the substitution of the name of the court only which has caused no prejudice to the petitioner. The learned counsel for respondent No.2 has referred Ishwar Rohal vs. Mohinder & Ors. 2004(1) Cur. L.J.(HP) 363. In that case the application of returned candidate under Section 165 for dismissal of petition for non compliance of statutory provisions was dismissed. This Court remanded the case for deciding application under Section 165 of the Act. In the present case there is no allegations of corrupt practice, in these circumstances Ishwar Rohal supra is not applicable in the present case. 7 12. The learned counsel for the petitioner has relied Hochtief Gammon vs. Industrial Tribunal, Bhubaneshwar, Orissa and others AIR 1964 SC 1746 and has submitted that in view of law laid down by the Supreme Court, the power to add a party to the proceedings pending before a tribunal which may be exercised under the Code of Civil Procedure under Order 1 Rule 10 is not included in Section 11(3) of the Industrial Disputes Act, 1947. The Section 167 of the Act provides that subject to the provisions of the Act and of any rules made there under every election petition shall be decided by the authorized officer as expeditiously as possible and ordinarily within a period of six months from the date of its presentation under section 163 in accordance with the procedure applicable under the code of Civil Procedure, 1908 to the trial of suits. The Act, thus does not exclude the applicability of Civil Procedure Code for trial of election petition, however, applicability of Civil Procedure Code is subject to Act and Rules framed there under. In any case, this contention of learned counsel for the petitioner is only academic in as much Prem Chand is not a necessary party in the petition as held above. The Appellate Authority has not specifically ordered impleadment of Prem Chand as party in the petition 13. No other point was urged. 14. The result of the above discussion, petition fails and is accordingly dismissed. The parties through their counsel are directed 8 to appear before Sub Divisional Officer ( Civil), Solan- Authorized Officer, Solan on 21.12.2009. November 26, 2009. (Kuldip Singh), (sks) Judge