SUJAN SINGH Vs. ILLAQA MAGISTRATE

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution of India challenging the order of the prescribed authority, i. e. the Ilaqa Magistrate under the Gram Panchayat Act, where by the application Sled on behalf of the petitioner, who is respondent in the election petition, for dismissing the election petition for non-verification, was dismissed.

(2.) GURDIAL Singh Respondent filed the election petition under Section 13-B of the Punjab Gram Panchayat Act, 1952, against Sujan Singh petitioner, Sarpanch of village Dhanauda The said petition was filed on September 1; 1988. On March 9, 1989, the respondent therein moved an application that since the election petition has not been verified, it was liable to be dismissed. Upon this, a preliminary issue was framed ''whether the petition is liable to be dismissed for non-verification? OPD". The learned Ilaqa Magistrate after hearing the learned counsel for the parties came to the conclusion that "i have heard the arguments of the learned counsel for the parties and have also perused the evidence and rulings cited by the parties and am of the view that non-verification of the petition is a defect in the petition. Though this defect was not a basic one and was only an irregularity which can be rectified. Hence I allow the petition for the verification. The petitioner should file verified petition op 6-9-1989". 3 At the time of motion hearing, learned counsel for the petitioner cited a Full Bench judgment of Patna High Court reported in Saratchandra v. Phani Bhusan, A. I. R. 1974 Pat. 40, in support of the proposition that the provisions of Rules 75 and 77 of the Bihar Panchayat Election Rules, 1959, were mandatory. According to him the wordings of Rule 75 are pari materia to the provisions of Section 13-D. of the Punjab Gram Panchayat Act, 1952, as applicable to the State of Haryana. 4. Learned counsel for the petitioner submitted that the present is not a case of defective verification but is a case where there was no verification at all Thus, argued the learned counsel, in the absence of any verification the election petition was liable to be dismissed. He also cited Kashinath v. Smt. Kudsia Begam and Ors. , A. I. R. 1971 S. C. 372 in addition to the above said Patna High Court judgment. 5. After hearing the learned counsel for the petititioner, I do not find any merit in this petition. In the Patna High Court judgment there was a specific Rule 77, but there is no such rule as regard the Punjab Gram Panchayat Act. Moreover, it was held therein that: "we would hold that the election Tribunal has got power to allow amendment of the verification of an election petition challenging the election of a Gram Panchayat: in this State, if it is not verified in accordance with the requirements of the Code, only if the defects or the cumulative effect of the defects is of minor nature so as not to take the matter out of the realm of the rule of sufficient compliance with the requirements of the Rules. If there is sufficient compliance, literal compliance is not necessary. In many cases of this type amendment may Dot be necessary or possible. But if there is no sufficient compliance, then it is imperative for the Tribunal to dismiss the election petition. It cannot afford to give an opportunity to the election petitioner for amending the election petition for removal of major and fatal defects" As observed earlier, in the absence of any rule in the Punjab Act the non-verification itself was no ground for throwing away the election petition. As regards the Supreme Court judgment it has absolutely no applicability because therein what was sought was the amendment of the election petition and, therefore, it was held that rectification of defective petition by way of amendment after the expiry of period of limitation for filing it was not permissible. As regards this Court the matter is directly covered by the judgment reported in Amar Singh v. The State and Anr. , 1965 Cur. L. J. 228. It was held therein, "it is always open to the Prescribed Authority to have the verification amended and also to call for further particulars, if and when necessary. " 6 In this view of the matter, the revision petition fails and is dismissed with no order as to costs. 7. Since further proceedings ware stayed by this Court, the parties are directed to appear before the Prescribed Authority on November 2, 1989.