Dashrath Khunte vs Sammelal Jangde and Others

Satish K. Agnihotri, J.

Writ Petition Under Article 226 of The Constitution of India

Challenge in this petition is to the order dated 14.07.2010 (Annexure P/1) passed by the Sub Divisional Officer (for short ''the SDO), Bilaigarh, in Panchayat Election Petition No. 3/A/89 (21)/2009-10, whereby the SDO has dismissed the objection filed by the Petitioner.

Shri Kalamkar, learned Counsel appearing for the Petitioner submits that since there was defect in filing of the election petition by the Respondent No. 1, the Petitioner filed an application for dismissal of the petition on the ground that the petition was not verified by the election Petitioner. The said application was rejected and the Respondent No. 1 was directed to file proper documents and supply a set of the said documents, to the Petitioner.

On the other hand, Shri Dubey, learned Counsel appearing for the Respondent No. 1 submits that admittedly, there was a defect as pointed out by the Petitioner i.e. non-compliance of provisions of Rule 5 of the Chhattisgarh Panchayat Election (Election Petition Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short ''the Rules, 1995''). However, the same is a curable defect and the election petition may not be dismissed on this count alone. Shri Dubey further submits that some time may be granted to cure the defect, as aforestated. In support of his contention, he relies on a decision of the Supreme Court in K.K. Ramchandran Master v.M.V. Sreyamakumar and Ors., Kedar Shashikant Deshpande and Ors. v. Bhor Municipal Council and Ors., and by this Court in Ram Das Singh v. Balram Singh and Ors.

On verification of the original documents, it is found that the election petition was not properly verified as required under the provisions of Rule 5(c) of the Rules, 1995.

Rule 8 of the Rules, 1995 provides that if the provisions of Rule 3, 4 or 7 of the Rules, 1995 has not been complied with, the petition shall be dismissed after giving the election Petitioner an opportunity of being heard. It is clear that the petition is liable to be dismissed at the threshold, if there is non compliance of the mandatory provisions as provided under Rule 3, 4 or 7 of the Rules, 1995. In the case on hand, it is not the case of the Respondent No. 1 that there was non-compliance of Rule 3, 4 or 7 of the Rules, 1995, but non-compliance of Rule 5(c) of the Rules, 1995.

In K.K. Ramchandran Master1, the Supreme Court held that deficiency in not filing the verification in the manner laid down for the verification of the pleadings, the petition cannot be dismissed on the ground of deficiency, even if the election Petitioner does not, dispute opportunity provided to cure the defect, do the needful. This defect can be considered at the trial of the election.

Further, in Kedar Shashikant Deshpande and Ors.2, the Supreme Court held that non-verification of the pleadings in the manner laid down in the CPC for verification does not affect the jurisdiction of the Tribunal to entertain and decide a disqualification petition. Even otherwise, this defect is curable and not fatal.

This Court, in Ram Das Singh3, held that the non-verification of the pleadings is a curable defect.

Thus, the election petition of the Respondent No. 1 cannot be dismissed on this ground at the threshold, if, on being granted opportunity to the election Petitioner to cure the defect, the election Petitioner has not removed the defect. This may be examined at the trial of the election petition.

Shri Dubey, learned Counsel appearing for the election Petitioner/Respondent No. 1 submits that no opportunity of hearing was given to the election Petitioner to cure the defect of not verifying the pleadings, as laid down in the manner in the Code of Civil Procedure. The Tribunal has rightly declined to dismiss the petition. He further submits that time may be granted to cure the defect.

Learned Counsel appearing for the Petitioner as well as other Respondents have no objection.

In view of the above, the Respondent No. 1 is granted 15 days time from today, to cure the defect, as aforestated. The impugned order dated 14.7.2010 (Annexure P/1) is modified to the above extent.

With the aforesaid observation and direction, the writ petition is disposed of. No order as to costs.

The original papers/record may be sent back to the Tribunal, forthwith.