IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.744 /2007 Reserved on: 11.11.2008 Decided on:3.12.2008 Devinder Singh. …Petitioner. Versus Deputy Commissioner, Shimla and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the petitioner : Mr. Sanjeev Bhushan Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General for respondents No.1 and 2. Mr. S.C. Sharma, Advocate for respondent No.3. Rajiv Sharma, J. The present petition is directed against the order dated 24.4.2007 passed by the learned Deputy Commissioner, Shimla in case No. 1/2007. Briefly stated facts of the case are that the elections to the post of Pradhan, Gram Panchayat, Munish Bahli, Tehsil Rampur were held on 22.12.2005. The petitioner and respondent No.3 filed nomination papers for the post of Pradhan Gram Pradhan. The nomination papers were scrutinized and thereafter the petitioner was declared elected on the same day i.e. 22.12.2005 securing 283 votes. Respondent No.3 preferred 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 election petition under section 163 read with section 175 of the Panchayati Raj Act, 1994 (hereinafter referred to as ‘the Act’ for brevity sake) before the prescribed authority. The election petition was contested by the petitioner. The petitioner has taken a specific preliminary objection that the election petition was not filed in accordance with the provisions of section 164 and the same was also not accompanied with proper affidavit. The prescribed authority accepted the election petition on 22.1.2007. The election of the petitioner as Pradhan, Gram Panchayat, Munish was set aside. The petitioner feeling aggrieved and dissatisfied with the order dated 22.1.2007, preferred an appeal before the learned Deputy Commissioner, Shimla on 14.2.2007. The appeal was dismissed by the learned Deputy Commissioner on 24.4.2007. Mr. Sanjeev Bhushan has strenuously argued that the preliminary objection raised by the petitioner has not at all been considered by the Sub Divisional Officer (Civil)-cum-Authorized Officer, Rampur Bushahar while deciding the election petition on 22.1.2007. He also contended that the petitioner has specifically taken the ground in the appeal to the effect that the election petition filed by respondent No.3 was not in conformity with section 164 of the Act. He strongly relied upon the judgment rendered by this Court reported in 2008(2) S.L.J (H.P.) 759, Deepender Rohal versus Suiresh Thakur and others decided on 14.12.2007. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the order passed by the prescribed authority and the appellate authority. Mr. S.C. Sharma appearing on behalf of respondent No.3 has strenuously argued that this Court could not interfere while exercise the powers under Article 226/227 of the Constitution of India with the orders passed by the authorities below. He also contended that assuming not 3 conceding that the election petition was not in conformity with law, it was merely a technicality and the same should be over looked by the Court. The record was produced by the learned Senior Additional Advocate General and the parties were permitted to see the same at the time when the matter was listed for speaking to minutes on 24.11.2008. It will be apt at this stage to take into consideration few provisions of the Himachal Panchayati Raj Act, 1994. Sections 164 and 165 read thus: “164. Contents of petition.- (1) An election petition- (a) shall contain concise statement of the material facts on which the petitioner relies, (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice, and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleading: Provided 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. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 165. Procedure on receiving election petitions.- if the election petition is not furnished in the prescribed manner, or the petition is not presented within the period specified in section 163 the authorised officer shall dismiss the petition: 4 Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.” It will be pertinent to take note of Rules 93, 94, 95, 98 and 99 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994, which read as under: “Rule-93. Election disputes.- Disputes relating to elections to Panchayats shall be disposed of in accordance with the provisions of Chapter-XI of the Act. Rule-94. Presentation of petition.(1)The election petition under section 163 of the Act shall be presented to the authorized officer under whose territorial jurisdiction the Gram Panchayats, Samiti or Zila Parishad, as the case may be is situated. (2) The election petition shall enclose with the petition copies of the petition and of its enclosures equal to the number of respondents. (3) The affidavit referred to in the proviso to sub- section (i) of section 164 of the Act shall be in From 43 and shall be shown before a Magistrate. Rule-95. Security deposit to be made with the petition.-At the time of presentation of an election petition the petitioner shall deposit a sum of Rs. 300/- as security money in the Government Treasury of Sub- Treasury under the appropriate head of account in the name of authorized Officer to whom the petition presented or caused to be presented. Rule-98. Communication of orders of petition.- The authorized officer to whom the election petition is made or transferred, as the case may be, shall after conclusion of the election petition, send a copy of the order to the appellate authority and the Director.’ Rule-99. Procedure in presentation of appeal.-(A) Any person aggrieved by an order made by the authorized officer under sections 174 and 175 of the Act 5 may within a period of thirty days make an appeal to the authorities referred to in section 181 of the Act. Provided that the appellate authority may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) In computing the period of limitation for filing an appeal under the Act, the period spent in obtaining a copy of the order shall be excluded. (3) Every appeal preferred under sub-rule (1) shall be in the form of the memorandum by the appellant or his duly authorized agent and shall be accompanied by a Treasury Challan evidencing the deposit of a sum of Rs. 200/- as fee in the Government Treasury or Sub- Treasury under the appropriate head of account in the name of appellate authority to whom the appeal is presented, or caused to be presented, the memorandum shall set forth consisting the grounds of objections to the order appealed from and shall be accompanied by a copy of such order. (4) On receipt of an appeal under sub-rule (1) the appellate authority may after calling for record from the authorized officer against whose decision the appeal has been preferred and giving an opportunity to the parties of being heard and after making such further enquiry, if any, as may be necessary, pass such orders as it thinks fit and the order of the appellate authority shall be final. (5) A copy of the order passed in appeal shall be sent to the Director.” In the present case, the election petition was filed by respondent No.3 on 16.1.2006. Admittedly, no affidavit has been filed with the election petition. There is no para-wise verification. Alongwith election petition, the judgment of the learned Sessions, Kinnaur dated 12.10.2004 rendered in Sessions Trial No. 33 of 2003 has been annexed. It has also 6 not been verified in the prescribed manner. It is clear from the language employed in section 164 of the Act that the election petition is to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleadings. The relevant provisions i.e. order 6 rule 15 dealing with the verification of the pleadings reads thus: “Order 6 Rule 15. Verification of pleadings (1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (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. [(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.]” Mr. Sanjeev Bhushan has argued that since the election petition has not been filed in conformity with section 164 of the Act, the same was liable to be rejected by the competent authority under section 165 of the Act. He has relied upon the judgment, as noticed above, of Hon’ble Mr. Justice Deepak Gupta rendered in Deepender Rohal versus Suresh Thakur and others decided on 14.12.2007. Paras 10,11,12,and 13 of the judgment read thus” “From a perusal of the judgments of the Apex court it is clear that the Apex Court has repeatedly held that an election petition is liable to be dismissed in limine under Section 86(1) of the RP Act if the election petition does 7 not comply with either the provisions of Sections 81 or 82 or Section 117 of the RP Act. Under the RP Act the requirement of verification and filing of an affidavit is under Section 83. Section 86 empowers the Court to dismiss the petition in limine only if the provisions of Sections 81, 82 or 117 are not complied with. Section 86 does not empower the Court to dismiss a petition in limine in case of non-compliance of Section 83. It is because of this reason the Apex Court in a number of judgments has held that the defect in verification is a curable defect and hence the petition cannot be dismissed in limine. In the present case the verification is admittedly not in accordance with the provisions of the Code of Civil Procedure. The provisions of Section 165 of the Act cast a mandatory duty on the Authorized Officer to dismiss the petition if the election petition is not furnished in the prescribed manner or the petition is not presented within the period specified under section 163. The manner of filing the petition is prescribed in Section 163, 163-A, 164 and Rules framed there under. Section 164 clearly lays down that the petition must be signed and verified in the manner laid down by the Court for verification of the pleadings. Therefore, without going into the question whether the averments made in the petition amounted to laying charges of corrupt practice, the petition had to be verified in accordance with the provisions of Code of Civil Procedure. This has admittedly not been done. It is thus clear that the petition has not been furnished/filed in the prescribed manner. The Rulings relied upon by Sh.B.C.Negi have no applicability to the present case. The language of Section 165 of the Act is much wider than Section 86 of the RP Act. Under Section 86 the High Court can reject only those petitions which do not comply with the provisions of Sections 81, 82 or 117 of the RP Act. Under Section 165 of the Act the Authorized Officer shall 8 dismiss a petition which is not furnished in the prescribed manner or within the prescribed time. The legislature in its wisdom framed the section in such wide terms. The Court cannot add or subtract any word from the statute. The language of Section 165 leads to only one clear-cut conclusion that any election petition not filed in the manner prescribed under the Act or the Rules has to be dismissed. In view of the above discussion I am of the considered opinion that since the election petition filed by respondent No.1 was not verified in the manner laid down under the Code of Civil Procedure for verification of pleadings, the petition had to be rejected under Section 165 of the Act. This defect may be a curable defect but the legislature in its wisdom has directed that a petition which is defective must be dismissed. Consequently, the order of the learned Appellate Authority is set-aside and the order of the learned Authorized Officer is upheld and the election petition filed by the respondent No.1 is deemed to be rejected under Section 165 of the Act. No costs.” The learned Single Judge has in extenso quoted sections 81, 82, 83 and 86(i) of the Representation of the People Act, 1951. It is clear from the language provided in section 83 of the Representation of the People Act, 1951 and section 164 of the Himachal Pradesh Panchayati Raj Act, 1994 that the language employed in these sections is pari materia. Mr. Sanjeev Bhushan has further argued that in section 165 of the Act word ‘shall’ occurs and the same implies that the provisions of section 165 are imperative and mandatory in nature. Mr. S.C. Sharma on the other hand has argued that even if the election petition may not be in conformity with section 164 of the Act, it was incumbent upon the prescribed authority i.e. Sub Divisional Officer (Civil) to return the same to permit respondent 9 No.3 to verify the pleadings in conformity with the provisions of the Code of Civil Procedure by assigning reasons. Now, the moot question is: whether respondent No.3 could be permitted to amend the election petition to bring it in conformity with the provisions of the Code of Civil Procedure, more particularly, order 6 rule 15 thereof or not? This question in a similar situation had arisen before the Hon’ble Madras High Court under section 85 of the Representation of the People Act, 1951 in A.S. Subbaraj versus Muthiah, AIR 1954 Madras 336. The learned Single Judge has held that section 85 did not make it imperative on the part of the Election Commission to dismiss the election petition for defective verification and whatever might be the powers of the Election Commission under section 85 when the matter comes before the Tribunal, it is thereafter governed by section 90 (4) and under this section the Tribunal has a discretion in the matter of dismissing the petition for non-compliance with the requirements of section 83. The learned Single Judge has further held that the words Election Commission shall dismiss the petition are in form undoubtedly mandatory, but it is well settled that though the words in a statute should be construed in their ordinary natural sense, nevertheless a reading of the enactment as a whole might indicate that sense was not what was intended by the legislation. The learned Single Judge has further held that the use of the word “shall” is not conclusive and the intention of the Legislature must be gathered on a reading of the enactment as a whole. The learned Single Judge after discussing how the word “shall” is to be construed held that three provisions, section 85, proviso, section 83 (3) and section 90 (4) lead to the conclusion that it is not mandatory on the part of the Election Commission to dismiss the petition and that the words “shall dismiss” should be construed as meaning “shall have the power to dismiss.” The 10 learned Single Judge has also discussed order 6 rule 15 of the Code of Civil Procedure since these provisions have been made applicable to the election petition. The learned Single Judge has further held that defective verification is merely irregularity and does not affect the jurisdiction of the Court to entertain the suit notwithstanding that the rule provides that the verification ‘shall’ be in the manner prescribed thereof. The learned Single Judge has held as under: “This contention should, in my opinion, fail firstly because on its true construction S.85 does not make it imperative on the part of the Election Commission to dismiss the Election Petition for defective verification and secondly whatever might be the powers of the Election Commission under section 85, when once the matter comes before the Tribunal, it is thereafter governed by S. 90(4) and under this section the Tribunal has a discretion in the matter of dismissing the petitioner for non-compliance with the requirements of S. 83. On the first question the petitioner strongly relies on the language of S. 85 that the “Election Commission shall dismiss the petition.” These words are in form undoubtedly mandatory. But, it is well settled that though the words in a statute should be construed in their ordinary natural sense, nevertheless a reading of the enactment as a whole might indicate that that sense was not what was intended by the Legislature Halsbury states the position thus: “Upon the principle that the ordinary sense of enacting words is primarily to be adhered to, provisions which appear on the face of them to be imperative cannot without strong reason be held to be director…. Broadly speaking, it may be said that powers conferring jurisdiction on a judicial body, provisions as to time in regard to procedure, and generally in public statutes, 11 enacting words where the thing to be done is for the public benefit or in advancement of public justice, must be taken to have a compulsory force. On the other hand, statutes conferring private rights, or prescribing that certain things are to be done within a certain time, time not being of the essence, or ‘in a certain manner’, or by those whose action the person invoking the aid of the statue is unable to control are usually directory only.” (Volume 31 pp. 529-530 paragraph 692). Thus in – ‘Jones v. Robson’, 1901-1 QB 673 (G), S.6, Coal Mines Regulation Act, 1896 provided that a secretary of State may by order prohibit the use of explosives and notice thereof shall be given in such manner as he may direct. The order was passed but no notice was given. It was held that the provision as to notice was only directory and did not affect the validity of the order. In – “The Kind v. Lincolnshire Appeal Tribunal; Stubbins ex parte’, (1917) 1KB 1 (H), it was held tht the requirements of the statute as to the form of the notice of appeal were not mandatory, even though the statute provided that such notice shall be served on the opposite side. In – ‘Chinnappa Reddi v. Thomasu Reddi’, AIR 1928 Mad 265 (1) where the question was whether the word “shall” in S. 43, Provincial Insolvency Act was mandatory or directory, Kumaraswami Sastri J. observed as follows: “The word “shall” in its ordinary signification is mandatory though there may be considerations which influence the court in holding that the intention of the Legislature was to give a discretion.” In- ‘Madangopal v. Bhagwandas’, 11 AII 304 (J), the word “shall” in S. 64 (b) of the Civil Procedure Code was construed as directory and not as mandatory. In – 12 ‘Pandurang v. Ramachandra’, AIR 1930 Bom 554 (K), a provision that a notice of 14 days shall be given for a meeting was held to be directory rather than mandatory. It must, therefore, be taken that the use of the word “shall” is not conclusive and that the intention of the Legislature must be gathered on a reading of the enactment as a whole. Now, there are three provisions in the statute which are material as reflecting the legislative mind. They are the proviso to S. 85, S. 83 and S. 90(4). The proviso to S. 85 is as follows: “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 therefore, the Election Commission may, in its discretion, condone such failure.” Under the proviso the Election Commission would have acted within its powers if it had received a new petition duly verified and excused the delay in presentation on the ground that a petition, though defective in form had been presented in time. Taking the matter one step further, the Election Commission could have permitted the verification to be amended and treated the petition as presented on the day of amendment and excused the delay in presentation. If even a delay in presentation can be excused under the proviso, it is difficult to believe that the Legislature intended that a defective verification should be fatal to the life of the Election Petition. Coming next to S. 83(3) it is as follows: “The 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 other 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.” 13 This provision comes into operation after the petition comes up before the Election Tribunal by transfer under S. 86. It will be noticed that under S. 83 (2) the election petition should be accompanied by a list giving full particulars and signed and verified in the manner laid down in the Civil Procedure Code. If that is not done, the petition is liable to be dismissed under S. 85. The particulars in the list are to the very essence of an election petition; they furnish the real ground for attack on the merits and they are also required to be verified like a plaint. If the Legislature considered that even particulars could be amended, it is difficult to believe that they regarded a defective verification as incurable and fatal to the maintenance of the application. Then comes S. 90 (4) which is as follows: “Notwithstanding anything contained in S. 85, the Tribunal may dismiss an election petition which does not comply with the provisions of S. 81 S. 83 or S.117.” The Language of this provision is clearly directory; it does not impose a duty on the Election tribunal to dismiss the petition; it confers on it a power to dismiss it at its discretion. If it is mandatory with the Election Commission to dismiss the petition under S. 85 for defective verification, S. 90 (4) should consistently have enacted that the Election tribunal should do what the Election Commission was under a duty to do and dismiss the application. But the fact that the tribunal is given a discretion in the matter goes far to support the view that S. 85 should not be construed as mandatory.” A Constitution Bench in Bhikaji Keshao Joshi and another versus Brijlal Nandlal Biyani and others, AIR 1955 SC 610 while interpreting section 83 (1) of the Representation of the People Act, 1951 has held that there may be cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of 14 discretionary power to dismiss an application on the sole ground of absence of date of verification. Their Lordships have further held that in such a case the applicants should normally be called upon to remove the lacuna