C.R. No. 979 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 979 of 2009 Date of Decision: August 13, 2009 Balwinder Kumar …..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. 979 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. 979 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. 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 sought a permission to sign and verify the annexures attached with the petition. C.R. No. 979 of 2009 [4] 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 different dates of their election, then the later of these dates shall be taken into account for this purpose. C.R. No. 979 of 2009 [5] (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 such corrupt practice or practices and the date and place of the commission of such practice; and C.R. No. 979 of 2009 [6] (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, the Presiding Officer of the Election Tribunal may, in his discretion, try them separately or in one or more groups. C.R. No. 979 of 2009 [7] (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. (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 C.R. No. 979 of 2009 [8] 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 pertaining to some of the procedural errors and the exceptions are reproduced hereunder:- C.R. No. 979 of 2009 [9] 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 :- i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non- compliance. C.R. No. 979 of 2009 [10] 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 and until the statute prescribes a procedure and also specifically prescribes consequence of non-compliance. C.R. No. 979 of 2009 [11] 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 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 C.R. No. 979 of 2009 [12] 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 and that the Tribunal shall consider the said questions on merits and decide the petition in accordance with law. C.R. No. 979 of 2009 [13] 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