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HIGH COURT OF HIMACHAL PRADESH
KURIAN JOSEPH, C. J. AND P. B. MISRA, J.
DEVINDER SINGH
VS.
DEPUTY COMMISSIONER, SHIMLA
L. PA. No. 149 of 2008
Advocates Appeared APRIL 7, 2010
Election Petition - H. P. Panchayat Raj Act, 1994 - Section 163, Section 164, Section 165, Order VI Rule 15 CPC - Summary of Acts and Sections: The court discussed the provisions of Section 163, Section 164, and Section 165 of the H. P. Panchayat Raj Act, 1994, along with Order VI Rule 15 of the CPC. It highlighted the requirements for presentation and verification of election petitions, the consequences of defects, and the curability of such defects.
Fact of the Case:
The election petition was filed challenging the election of a pradhan, and the petitioner raised a preliminary objection regarding the manner of filing the petition. The court considered the defect in the verification of the election petition and the requirement for a separate affidavit in support of the pleadings.
Finding of the Court:
The court found that the defect in the verification of the election petition was curable and provided the petitioner with an opportunity to cure the defects. The court dismissed the appeal and directed the Sub-Divisional Officer to dispose of the election petition within a month.
Issues: The issues involved the manner of filing the election petition, the requirements for verification, and the curability of defects in the petition.
Ratio Decidendi: The court held that defects in the verification of election petitions are curable and do not warrant dismissal at the threshold. It emphasized the need to provide the petitioner with an opportunity to cure such defects.
Final Decision: The appeal was dismissed, and the Sub-Divisional Officer was directed to dispose of the election petition within a month.
KURIAN JOSEPH, C. J.
( 1 ) WHETHER the election petition filed under Section 163 of the H. P. Panchayat Raj Act, 1994, hereinafter called "the Act" should be dismissed by the Authorized Order for the only reason that the petition is not furnished in the prescribed manner, is the question that arises for consideration in this appeal.
( 2 ) SHORT facts. Election to the post of pradhan, Gram Panchayat, Munish Bahli in district Shimla was held on 22nd December, 2005. The writ petitioner and the third respondent (parties are described as they appeared in the writ petition) had contested the election. The petitioner was declared elected, having secured 283 votes. The third respondent filed an election petition mainly on the ground that the petitioner was not qualified to be elected. The petitioner raised a preliminary objection that the election petition had not been filed in the manner prescribed under Section 164 of the Act and the Rules. However, disregarding the objection, the matter was considered on merits and the election was set aside by order dated 22nd January, 2007. The appeal before the Deputy commissioner was dismissed on 24th April, 2007 and thus the writ petition.
( 3 ) THE learned single Judge held that respondent No. 3 should be given an opportunity to cure the defect, if any, in the matter of presentation of the election petition in the prescribed manner since the issue of defect, if any, in verification was a curable defect and thus remanded the matter to the original authority. Aggrieved, the appeal at the instance of the writ petitioner.
( 4 ) STATUTORY Provisions, Section 163 of the Act provides for presentation of the election petition which reads as follows :
"163. Presentation of petition. (1) Any elector of a Panchayat may, on furnishing the prescribed security in the prescribed manner, present within thirty days of the publication of the result, on one or more of the grounds specified in sub-section (1) of Section 175, to the authorized officer and election petition in writing against the election of any person under this Act. (2) The election petition shall be deemed to have been presented to the authorized officer (a) when it is delivered to him (i) by the person making the petition; or (ii) by the person authorized in writing in this behalf by the person making petition; or (b) when it is sent by registered post and is delivered to the authorized officer or any other person empowered to receive it.
( 5 ) SECTION 164 of the Act provides for contents of the petition which reads as follows :
"164. Contents of petition. (1) Any election petition (a) shall contain concise statement of the material facts on which the petitioner relies, (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice, and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure. 1908 for the verification of pleading : provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corruption practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petitioner.
( 6 ) SECTION 165 of the Act deals with the procedure on receiving an election petition. It reads as follows :
"165. Procedure on receiving election petition. If the election petition is not furnished in the prescribed manner, or the petition is not presented within the period specified in Section 163 the authorized officer shall dismiss the petition : provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.
( 7 ) SECTION 2 (30) of the Act defines e
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