C.J*.^^. IN THE HIGH COORT OF JDDZCATORElCHHB.TTISSaRH; BIIASSVR VSaV ^TITION N0. OF 2006 PETITXONER -^ RftM DAS SINGH aged 33 yrs. s/o Shri Sonsai r/o Gram :Mukhtiyarpara Tah :Manendragarh Distt: Korea CG - VERSUS •{^ RESPONDENTS /4 ^.^' •./:"'<^?v-;'" .-• ^/i^^...--"' .^^ ,^y" '<?<A.--'"" 1 /^l^^ -».3'^.'^ j''ii.'"^—-'^ y ^."' r f^^s^E^ " .^"'? v%h.''^91v^y "'^n.^.-,--" /' Balram Singh s/o Shri Shivmangal Gond r/o Gram : Mukhtiyarpara Tah : Manendragarh Distt: Korea CG Kamala Singh s/o Shri Basant Gond Pran Singh s/o Shri Subran singh Gond Fakeer Singh s/o Shri Bihari Singh SantlaJ- S/o Jeetrai Gond all r/o : Gram: Mukhtiyarpur Tah : Manendragarh Distt: Korea CG The Sub-Divisional Officer Tah - Manendragarh Distt- Korea CG WRIT PETITICOI DNDER SKriCtE 226/227 OE' THE CONSTITOTTON OF INDIA 1-0:6H COURT OF CHHATTISeARH AT BILASPUR Writ Petition No. 2968 of 2006 /I-F^ Petitioner ftam &as Sin9h Versus Respondents : Balram Singh 5/o 5hri Shivmangal Gond and others .^. Post for order on ^ becember, 2006 Sd/- Satish K. Agnihotri Judge h' KE6H COURT OF CHHATTES6ARH AT BILASPUR Writ Petition No. 2968 of 2006 Petitioner ; Ram Ctas Singh Versus Respondents : Balram Singh S/o Shri Shiymangal 6ond and others Sirgle Bench; Hon'ble Mr. Justice Satish K. Agnihotri. Shri Anurag Daya! 5hrivastava, counsel for the petitioner. None oppears for the respondents No. 1 to 5. Shr\ N.K. Agrawal, Deputy Advocate Senerat with Siri Arun 5ao, Deputy Sovernment Advocate for the respondent No. 6/State. OR D E R ( 4 Ctecember, 2006) 1. The present writ petition filed under Article 226/227 of the Constitution of India challenges the correctness flnd validity of the order dated 18.5.2006 (Annexure P/l) passed by the Sub &ivisiona;l Officer, (R.), Manendragarh, District Koria in Election Appeal No. 234/B [2]/2004-2005, whereby the election of the petitioner (non-applicont No. 1 in the Court below) on the post of Sarpandi was set aside and the office of the Sarpanch in the Grwn Panchayat, Muktiyarpara was declared cis vacant. 2. The indisputabte facts in brief and steps leading to this petition are thort- ttie petitioner vws elected as Sarpanch of the Gram Panchayat, AAuktiyarpara, Tdhsil Manendrgflach— District Koria, held on 20.1.2005. The reqaondent No. l (election petitioner) fited a petition under Section 122 of the Chhattisgarh PanchoEyat Raj Avam Grcmf Swaraj Adhiniyam, 1993 (hereinafter referred to as "the Adhiniyam, 1993") ^eking a retief that the election of +he writ petitioner be declared as void and unlowful on the ground that the third child of the petitioner was born after 26.1.2001, vAich is a disquatification for being an office-bearer of Ponchctyat os prescribed under Section 36 (tn) of the Adhiniyam. 1993. The 5ub Divisionat Officer, in the election petition, fited under Section 122 of the Ac iiniyam, 1993, declared the etection of tiie petitioner as void and the office of Sarpanch of the Gram Pcmchayat, Muktiyarpara was declared vacant. 3. Being aggrieved, the returned canctida+e namely +he petitioner filed this petition challenging ttie impugned ofder dated 18.5.2006 (Annexure P/l) pdssed by the &jb Divisional Officer (R.), Monendragarh in Etection Appeat No. 234/B [2]/2004-2005 on the grounds 1+iat the petition *ws not filed in accordance with the statutory requirement as prescribed under -the OihatMsgarh Ponchayats (Election Petitions, Corrupt Practices ond Disqualification For Memberdiip) Rutes, 1995 Oiereinafter referred to as "the Rutes. 1995"). Rute 5 of the Rules 199S prescribes that the election petition diatl o, be signed by •the petitioner and verified in the monner laid down in the Code of Civil Procedure, 1908 (Vof 1908), for the verification of pleadings. Rule 7 of the Rules, 1995, which requires for depositing the security amount with the specified officer, has also not been complied with, as the specified officer under Section 122 of the Adhiniyam, 1993 is 1+ie Sub Divisional Officer, as the security was deposited with the Tahsildar, not with the specified officer. The finding of the 5ub bivisional Officer that the Ihird child of the petitioner was born after 26.1.2001 is also erroneous. 4. Siri Anurag Dayal Shrivastrava, learned counsel appearing for the petitioner would submit that the compliance of Rule 5 and Rule 7 are mandatory. Failure to comply with the statutory requirement leads to dismissal of thepetition under Rule 8 of the Rules 1995. It was further contended that the election petitioner (respondent No. 1) has moved an opplication on 16.8.2005 before the specified officer for wi-thdrawing the election petition. The said opplication was dismissed ouid the Sjb Divisional Officer proceeded with the ccise, which is not permissible in law. It was further contended that the election petition has been decided without framing proper issues. 5. Shri N.K. Agrawal, learned Deputy Advocate Seneral with Siri Arun Sao, learned Deputy Sovernment Mmcate^ 4 appearing for the respondent No. 6 would contend that the %curity amount was deposited with the Tahsildar, who is a Sub-ordinate officer to the ^ecified officer. Thus, the deposit amount with the Tahsildar is aifficfent compliance of the Rule 7 of the Rules 1995. On the question of verification, learned counse! for 1+ie petitioner would submit tiiat the defect of not pre%nting petition duly verified in the manner laid dovm in the Code of Civit Procedure, 1908 (V of 1908), for •rtie verifications of pleadings is a cur-able defect and that cannot be the sufficient ground for dismissat of the petition. 6. With regard to non-framing of issues by the Sub Divisional Officer, it wos contended that though the specified officer had not framed issues, however, •the qsecified offic®rhad gone into all aspects, while deciding the election apptication filed by the respondenl' No. 1. 7. Despite serwce of notice to the reqsondents No. 1 to 5, the respondents No. l to 5 have not diosen to appear in the matter. 8. I have heard learned counsel for the petitioner as also learned counsel appearing for the respondent No. 6 and pervsad the petition, return ond documents appencted thereto. To appreciate the submission of the parties, it is ff necessary to quote relevant provisions of law. The retevant provisions are quoted below, Rule 2 M of Ihe Ruks 1995 reads as under:- "Ruk 2 (d) "^secified Officer" means 1he Officer specified in sub-^ct'mn (1) of Section 122 of Ihe Act in relation ts> ffram Panchayat, Janpad Pcndwyat and Zih Pandiayat, as iiie ca^ may be." Rule 5of •ihe Ruksl995 t'eadsgswsder;- "Ruk 5 Confents of ihe petitimi.- /4n etection peti+ion ^mll' (a) ccntain a concise statement of all mateHal facfs on which Ihe petitioner relies: ff>) set forih with sufficient particuhrs. Ihe grounds on whidi the election is called in quesiion: (c) be signed by -the petitioner cend verified in Ifie mwiner hiddown in -the Code of Cwil Prvcedure. 1908 (V of 1908). for Ihe ver'ifications ofpleactings," Ruk Tof-the Rules. 1995readsasunder;- "Rute 7 Defsosit of securi-ty.- At fhe time ofpre^nfaficn af cm eled-ion petifion. the peti'tioner ^iatl deposit wi^i 1fie specified offiwr a sum of Re. Five Hundred as setvrity. Where 1he ekcfit/n of more thevi one candichte is called in question, a separafe deposit of an equivaknt amiwnt shall be required m re^ject ofeac/i ajcfi reiumed avididates." Rule 8 of the Ruks 1995 reads as unden- %/fe 8 Procedure on receivvig petition.- if the provisions of nik 3 or rule 4 or ruk 7have noi' been comfilied with, ifie petifion, shatlbe dssmissedby fhe qwcifiecS officers: 6 Proyided ihat ihe petition diall not be dismissed under Ihis rvk withouf giving Ihe petifioner an opporivnity ofbeing heard." Ruk 13 of ihe Ruks 1995 reads as under;- "Rule 13 WMidrawal of election petitwn.-(l) No efection petition diall be withdrawn w'fthout Itie kaye of the specified ofFicer. (S) If -tfiefe are more petitioners •Ifian one, no eppliaition ft? wiihdfuw a petition ^iall be made except wiih the consent of alt Itie petitionefS. (3) When cn epp!icat'mn for wiifidrawal is niade. a nofscs Ihereof fiwng <i date for ihe hearmg of the cppfication shalfbegiven to all oltier pafties fo fhepetition. (4) No application for wfthdrawal diall be entertained after ihe evidefwe of ifie petifioner is over. (5) If 1he <ypfication is gran-ted. the petitioner ^iatl be ordered to pay ihe costs of the re^sondents thereto as mcurred or such portion -fhereof as Ihe qsecified officer may deem fif." 9. In -the case of M. Karunanidhi Vs. &r. H.V. Hande and others ®tc., the &jpreme Court obaarved in paras 19 and 30, as under'.- "19..........it is always impprtant to bear the distinction betwaen the mandatory and directory provisionsof a statute. Sjb-section (1) of the Section 117 is in two parts. The first part of sub-section (1) of Section 117 provides that at the time of presenting an election petition, the petitioner shall deposit m the High Court a aim of Rs «=^^^,.- ^ 2000 as security for -the costs of the petition, and the second is that such deposit shalt be made in the 1-ligh Court in accordance with the rules of the High Court. The requirement regarding the making of securit/ deposit of Rs 2000 in the l-ligh Court is mondatory, the non- compliance of which must entail dismissa! in timine of the election petition under sub-section (1) of Ssction 86 of the Act. But the requirement of its deposit in the High Court in accordance with the rules of the High Court is clearly directory. As Maxwetl on the Interpretation of Statutes, 12th Edn.. at p. 314 puts it : "An ofcsolute enactment must be obeyed or fulfilled exactfy, but it is sufficient if a directory enactment be obeyed or futfilled substantially." The rule of construction is well settted ouid we need not burden the judgment with mcary citations. 30.......... it has already been stated that rrKMidatory provisions must be fulfilled exactly whereas it is sufficient if directory provisions are ajbstcmtialty fulfitled......." 10. In the case of Amarsingh s/o Hiralal Vs. Sub-Divisional Officer Khilchipura and others , "the High Court of Madhya Pradesh, while considerjng the simitai* issue of deposit of ^curity amount with the prescribed outhority hetd that the deposit of sum of Rs. 250/- as security cost is mandatory, thus, non-compliance of nwndatory provisions of Rule 7 is that the election petition suffers from fatal defects. 8 ^s' Consequently, the Sub Divisiona! Officer had no option thon to dismiss the petition. 11. In the case of V. Narayanaswamy Vs. C.P. Thirunavukkarasu , •the Supreme Court obsarved pura 23, as under:- 23..........Non-compliance with the provisions of Section 83 mdy lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persist that the verification is correct and the affidavit in the form prescribed does not ajffer from any defect theallegations of corrupt practices cannot be inquired and tried at all. In such a case the petition has to be rejected on the threshold for non-complkince with the mandatory provisions of law as to pleadings. It is no part of the duty of the court suo motu even to direct furnishing of better particulou's i^ien objection is raised by the other side. Where the petition does not disctose ony cause of action it has to be rejected. The Court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. The petition has to be considered as a whole. There ccnnot be a partial rejection of the petition." ^ 12. In the case of R.P. Moidutty Vs. P.T. Kuryu Mohammad and another , •the &ipreme Court observed in para 35, as under:- "35. All the averments made in paras 1 to 17 of the petition have been stated to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclo^d. As observed by the Supreme Court in F.A. Sapa v. Singora the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and altegations in the petition on the person signing the verification and, at the same time, discoura9ing wild and irresponsibte allegations unsupported by facts. HoMBver, the defect of verification is not faital to the petition, it can be cured (see Murarka Radhey Siyam Ram famar v. Roop Singh Rathore9 and A.S. Subbaraj v. ^SA. Muthiah ). In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by ou-guing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitt-eci to do. In our opinion, unless the defect in verification was rectified, the petition could not have been tried. For want of affidavit in the required form and also for lack of particulars, the allegations of corrupt practice could not have been enquired into the tried at all. In fact, the preserrt one is a fit case where the petition should have been rejected at the threshold for non-^ 10 ^ vr^ compliance with the mouidatory provisions of law as to pteadings" 13. In the case of Regu ttahesh AKas Reyi Maheshwar Rao Vs. Rajandra Pratap Bhanj t>ev and another', theSupreme Court observed in paras 12 and 18, as under: "12. It is, therefore, a ^ttled position in law that defect in verification or an affidavit is curoble. But further question is what happens when the defe.et 'is not cured. There is a gulf of difference between a curable defect and a defect continuing in the verification affidavit without any effort bein9 made to cure the defect. 18....... The onus on the election petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious onid sensitive matt-er involving great public importance cannot be countenanced or glossed over too liberally as for fun." 14. In the case of Chandrakant Uttam Chodankar Vs. Dayanand Rayu Mandrakar and others , •the Supreme Court observed in para 68, as under:- "68. In Ch. Subbarao v. Atember, Election Tribunal the Constitution Bench accepted the submission of the leorned counsel appearing for the appellant therein to the effect that the election petition was not to be equated to an election at law or in equity, but as the rights are purely creature of the statute, if the statute renders cuiy particular requirement mandatory, the courts possess and can exercise no dispensing power to waive non-coi'BBljance. 11 The Constitution Bench following Murarka Radhey Shyam case1 hetd: (AIK pp. 1033-34, para 26) "We do not however consider that there is realty need for so much refinement urfien one has to look at whether there is a substantial conipliance wi+h the requirement of this provision. If the signatures now found on the copies were intended to authenticate the document to which it is eppended viz. tiie copy, it would onty mean that the copy did not reproduce the signature in the original. There is no compelling necessity to hotd +hat the signortures were merely intended to be a copy of those on the original in order to spell out a non-compfiance with Section 81 (3), %eing that a signature in originaf vws not needed on tiie copy and a writing copying out the name of the signatory would suffice." 15. In the case on hand, admittedly, •Hie petitioner has not comptied with the mandatory requirement as prescribed under Rule 5 (c) of the Rules, 1995. There is no verification of pleacfings and the affidavit filed by the respondent No. 1 does not disciose source of information con-tained in the pleadings. The yerification ot •the bottom of the affidovit verifies contents of +he affidavit to the extent of name of the cleponent, residence of the deponent ond filing of the petition. Thus, itamounts to non-compliance of the mandatory requirement of Rule 5 of the Rules, 1995. 12 16. It is a curabfe defect. The respondent No. 1, it oppears, has not exercised his option to cure the defect, but filed an application for withdrawal of the petition on 16.8.2005, which wis rejected. With regard to compltance of Rule 7 of the Rules 1995, the respondent No. 1 has, admitl-edly, deposited a sum of Rs. 500/- with the Tahsildar, who is not a specified officer as defined under Rule 2 (d) of the Rules, 1995. Deposit of the security amount is a mandatory requirement as held by +he Supreme Court- in the case of M. Karunanidhi Vs. Dr. H.V. Hande and others etc. (supra). The deposit of the security amount with any officer, other than the ^iecified officer, may be a Sub-ordinate officer, does not satisfy the inondatory requirements of the provisions of Rule 7 of the Rutes, 1995. Thus, in absence of compliance of the mandatory provisions of •the Rules, 1995, •this petition ought not to have been tried on merits, even otherwise the same would have been dismissed at threshold. Thus, it is not necessary to go into merits. The petition fiied before the specified authority 17. is accordingly dismissed. As a result and for foregoing rensons. this petition is allowed. No order as To COSTS. Sd/- Satish K. Agnihotri Judge '{({9S3) 2 SCC 473} 3{(2000) 2 SCC 294} 5{(2004) 1 SCC 46} 2{1997(2) M.P.L.J 192} 4{(2000) 1 SCC -481} '{(2005) 2 SCC 188}