Judgment:
M.L. Singhal,J.
1. Kashmir Singh filed petition under Section I76(4)(b) of the The Haryana Panchayati Raj Act, 1994 in the Court of Additional Civil Judge (Senior Division), Kurukshetra whereby he has questioned the election of Swaran Singh to the office of Sarpanch, Gram Panchayat Mughal Majra. Swaran Singh has filed written statement to the election petition.
2. Swaran Singh made an application on 29.9.2000whereby he sought the dismissal of the election petition on two grounds namely; (i) that the election petitioner has not given as many copies of the petitioner asthere are the respondents and each copy is not duly certified/attested/duly signed by the election petitioner;and (ii) that the election petition is bad for misjoinderof parties inasmuch as none else but the contestantscould be arrayed as respondent whereas in this electionpetition, the election petitioner has arrayed Shri MayaRam, Returning Officer as well. It was stated in thisapplication that both these provisions are mandatoryas such the election petition was bad and deserved tobe dismissed. Vide order dated 3.11.2000, AdditionalCivil Judge (Senior Division), Kurukshetra dismissedthis application.
3. Not satisfied with this order, Swaran Singh (returned candidate) has come up in revision to this Court under Article 227 of the Constitution of India read with Sections 115/151 CPC.
4. I have heard the learned counsel for the parties.
Learned counsel for the petitioner submitted that no doubt the election petition is tried according to the procedure laid down in the Civil Procedure Code but it is not a plaint, It is governed by the provisions of The Haryana Panchayati Raj Act, 1994 and if on any matter, this Act is silent, it will be governed by the provisions of The Representation of the People Act, 1951. It was submitted that the validity of any election of a member of a gram panchayat, Panchayat Samiti or ZilaParishad or Up-Sarpanch or of Sarpanch of Gram Panchayat, Chairman or Vice Chairman, President or Vice President of Panchayat Samiti orZila Parishad is questioned under 176 of The Haryana Panchayati Raj Act, 1994. Section 176(2) of the Haryana Panchayati Raj Act, 1994 provides that 'a petitioner shall not join as respondent to his election petition except the following persons :-
(a) where the petitioner in addition to challenging the validity of the election of all or any of the relumed candidates claims a further relief that he himself or any other candidate has been duly elected all the contesting candidates other than the petitioner and where no such further relief is claimed, all the returned candidates;
(b) any other candidate against whom allegations of any corrupt practices are made in the election petition.'
It was submitted that sub-section 176(2) of The Haryana Panchayati Raj Act, 1994 is mandatory and the mandatory character of this provision is apparent from the use of the word 'shall'. It was submitted that if election petition were a plaint, provisions of the Code of Civil Procedure would apply. It was submitted that order 1 Rule 9 CPC which lays down that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, shall not apply to an election petition because elect ion petit ion is governed by the provisions of The Haryana Panchayati Raj Act, 1994 and if The Haryana Panchayati Raj Act, 1994 is silent, on any matter, it will be governed by the provisions of the Representation of the People Act, 1951. It was submitted that Section 81(3) of the Representation of the People Act lays down that 'Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.' It was also submitted that as per Section 82 of the 1951 Act 'a petitioner shall join as respondents to his petition :- (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any olher candidate against whom allegations of any corrupt practice are made in the petition.' It was submitted that as per Section 86 of the 1951 Act, the elect ion petition which does not comply with the provisions of Section 81 or 82 or Section 117 has to be dismissed. Article 243 of the Constitution of India lays down that 'no election to any panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a Stale.' It is clear that this election could be called in question only by an election petition to be presented to such authority and in such manner as is laid down in The HaryanaPanchayati Raj Act, 1994 enacted by the Haryana Legislature. It was submitted that the copy of the election petition supplied to Swaran Singh (returned candidate) had not been signed/verified by the election petitioner, as such the election petition was bad. In support of this submission, he drew my attention to Mrs. Vinod (Vi-nod Chadha) v. Kirpal Singh Dhillon, AIR 1987 P&H; 110 where it was laid down that it is the duty of the petitioner to certify even the photostat copy of the petition to be true copy and if it is not done, the petition is liable to be dismissed. It was election petition filed by Mrs. Vinod whereby she had challenged election to the State Legislative Assembly under The Representation of the People Act, 1951. It was submitted that non-compliance of this provision would affect the very maintainability of the election petition and make it non est.
5. Suffice it to say, there is no such provision in The Haryana Panchyati Raj Act, 1994. Here we are concerned with the election petition filed under The Haryana Panchayati Raj Act, 1994 and not with the election petition filed under the 1951 Act. For questioning election to the State legislative and the Houses of the Parliament, 1951 Act was enacted by the Union Parliament. Election petition for questioning election to the State legislatures and the Houses of Parliament are governed by the Provisions of the 1951 Act.
6. In my opinion, Section 81 of The Representation of the People Act, 1951 cannot be invoked to dismiss this election petition. So far as Section 176(2) of The Haryana Panchayati Raj Act, 1994 is concerned, to my mind, the use of the word 'shall' at times can be viewed as directory and at times can be viewed as mandatory, if the election petitioner impleaded Shri Maya Ram, returning officer at the election of the gram panchayat Mughal Majra, I do not think the implead-ment of Maya Ram returning officer at election to Gram Panchayat Mughal Majra should entail the dismissal of the election petition because it is not laid down in Section 176(2) of the Haryana Panchayati Raj Act, 1994 that where the petitioner has impleaded persons apart from the returned candidate, the election petition shall be dismissed whereas Section 86 of the 1951 Act provides that the High Court shall dismissal an election petition which does not comply with the provisions of Section 81 or 82 or 117.
7. In the impugned order, the learned Court has observed that the petitioner had attached with the petition the copies of the petition duly signed by the petitioner. Learned counsel for the respondent submitted that no wonder the petitioner relied upon a copy of the petition which was manoeuvred by him. Election petition filed by respondent Kashmir Singh before the Court was accompanying copies of the election petition which had been duly verified and signed by Kashmir Singh. In my opinion, the election petition cannot be dismissed on such hyper-technicalities. In an election petition thrust should be to ascertain the will of the electorate. If the election petitions are dismissed on such hyper-technicalities, this fact will remain obscure so far asCourt is concerned, whether the electorate wanted the election petitioner or the returned candidate. In a democracy, people have been given the right to demonstrate who should represent them on the seat of governance. In a democracy, people rule themselves by proxy.
For the reasons given above, this revision petition fails and is dismissed.
8. Revision dismissed.