CHANDRIKA TIWARY Vs. THAKUR ROY AND ORS.

JUDGEMENT

(1.) An election petition was filed by respondent no. 1 to challenge the election of the petitioner to the office of Mukhiya of Takiya Gram Panchayat in the district of Champaran. The election petition was filed on the 1st December, 1969; but it was not verified as required under Rule 75 of the Bihar Panchayat Election Rules, 1959, hereinafter called 'the Rules', read with Order 6, Rule 15 of the Code of Civil Procedure, inasmuch as the verification of the election petition was neither on oath nor on affidavit as required under the amended provision of the Code of Civil Procedure. The petitioner took objection to the entertainment of such an election petition and asked the Tribunal to dismiss it under Rule 77 of the Rules. The Tribunal allowed the amendment, asked for by respondent no. 1, instead of dismissing the petition on account of defect aforesaid. By the same order dated the 21st February, 1970, by which the amendment has been allowed, the Tribunal has also ordered recounting of the ballot papers. The petitioner has obtained a rule from this Court against the respondents to show cause why the order of the Tribunal dated the 21st February, 1970, be not set aside by grant of an appropriate writ or writs in exercise of the powers of this Court under Article 226 of the Constitution Cause has been shown on behalf of respondent no. 1. In my opinion, the first objection taken on behalf of the petitioner is directly covered by a Bench decision of this Court in (1) Satyanand Singh V. Bujhlal Singh and others (1967 B.L.J.R. 439). The Tribunal has no power to allow the amendment asked for by respondent no. 1 for non -compliance with the requirement of Rule 75 of the Rules. The election petition has got to be dismissed, of course, after giving an opportunity to the person who has filed the election petition to be heard as required by the proviso to Rule 77.

(2.) Mr. Nagendra Prasad Singh, learned advocate for respondent no. 1 submitted that the Bench decision aforesaid of this Court requires reconsideration as even before the amendment in the Representation of the People Act, 1951, when the power was there in the Election Tribunal to dismiss an election petition, as engrafted in Sub -section (4) of Sec. 90 of the said Act, it was held by the Supreme Court in (2) Bhikaji Kesho Joshi and another V. Brijlal Nandlal Biyani and others ( : A.I.R. 1955 SC 610), and, in (3) Harish Chandra Bajpai and another V. Triloki Singh and another ( : A.I.R. 1957 SC 444) that the amendment asked for could be allowed. This aspect of the matter was not considered by the Division Bench in Satyanand Singh's case. I am unable to accept this contention as correct. The word used in Sub -section(4) of Sec. 90 of the Representation of the People Act was 'may', while in Rule 77 of the Rules the word used is 'shall'. The Supreme Court, therefore, said in (2) Bhikaji Kesho Joshi's case ( : A.I.R. 1955 SC 610) that the power was discretionary, while the Division Bench in Satyanand's case on an interpretation of the Tribunal to dismiss an application which suffers from an infirmity of the kind as the election petition in question suffers.

(3.) Although, recently, a Full Bench of this Court in (4) Rasik Lal Yadav V. Bhola Prasad Mandal and others ( : 1970 B.L.J.R. 96) has taken the view that re -counting can be ordered by the Election Tribunal in respect of Gram Panchayat election, it has to be pointed out that ordering a re -counting of ballot papers is not the rule. It is still an exception, and a proper case has got to be made out for ordering re -counting. The Tribunal was in error in ordering recounting mechanically as it appears to have been done. For the reasons stated above, I allow the application, set aside the order of the Tribunal dated the 21st February, 1970 and, in exercise of the powers of this Court under Article 226 of the Constitution, direct it to give an opportunity to respondent no. 1 to show cause as to why his election petition should not be dismissed under Rule 77 of the Rules. After giving him such an opportunity, it is directed to pass an order in accordance with law in the light of this judgment. I shall make no order as to cost.