AZIZUL HUSNAIN Vs. G MISHRA

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India to quash the order dated 7-7-1970 passed by the Gram Panchayat Election Tribunal, Motihari. The petitioner was the successful candidate for the post of Mukhia for Sonwat Gram Panchayat within Harsidih Police Station, Block Paharpur in the district of Champaran, in the election held on 17-1-1970. Opposite party No. 2 Jagat Narain Prasad filed an election petition under the Bihar Panchayat Election Rules, 1959 thereinafter referred to as 'the Rules') challenging the validity of the election of the petitioner on several grounds.

(2.) The petitioner on notice appeared before the Election Tribunal and it was submitted on his behalf that the election petition was not verified in the manner laid down in the Code of Civil Procedure as required under the Rules. Therefore, the election petition should be summarily dismissed in accordance with the provisions of Rule 77 of the Rules. From the perusal of the election petition the Election Tribunal found that the verification of the petition was not made on oath or on solemn affirmation. On consideration, however, the Tribunal came to the conclusion that it could allow amendment to cure the defect in the verification before the petition was taken up for hearing. The Tribunal took the view that the wordings of Rule 77 to the effect that "if there is any failure to comply with the provisions of ........ Sub-rule (1) and Clause (a) of Sub-rule (2) of Rule 75......" mean that the petitioner should b" given reasonable chance to comply with the provisions of the rules referred thereto, otherwise the petitioner would not have been given chance to be heard before dismissal of the petition. It also referred to Rule 87 and the provisions of the Code of Civil Procedure in ordering amendment to cure tke defect in the verification.

(3.) Learned counsel appearing for the petitioner has submitted that the view taken by the Election Tribunal is erroneous and must be set aside. In order to appreciate his argument it is necessary to set out the statutory provisions having bearing on this question. Rules 72, 73, 75, 77, 79 (1) (2) and 87 read thus:--