Kameshwar Singh Son of Sri Rajeshwar Singh Vs. Surya Narayan Rai Son of Late Ram Nath Rai and ors. - Court Judgment

Excerpt:
- - 1, surya narayan rai, one of the defeated candidates thereafter filed an election case no. 13. even though section 87(1) of the act lays down that the procedure applicable to the trial of an election petition shall be like that of the trial of a suit, the act itself makes important provisions of the code inapplicable to the trial of an election petition. ' 14. it is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation. in our opinion however the limitation act cannot apply to proceedings like an election petition inasmuch as the representation of the people act is a complete and self-contained code which does not admit of the introduction of the principles or the..... ramesh kumar datta, j.1. heard learned counsel for the petitioner, learned counsel appearing for respondent no. 1 and learned counsels for the state election commission and for respondent nos. 4 to 7.2. the petitioner seeks quashing of the order dated 11.7.2007 passed by munsif 2nd court, saran in election case no. 6 of 2006 (surya narayan rai v. the chief election commissioner and ors.) through which he has allowed the application for addition of respondent no. 1 as the party to the election petition filed by him and also by other contesting candidate. the further prayer is to issue a mandamus commanding the respondents to discharge their legal obligation and to declare the election case no. 6 of 2006 as not maintainable since it suffers from non-joinder of necessary party within the.....

Judgment:

Ramesh Kumar Datta, J.

1. Heard learned Counsel for the petitioner, learned Counsel appearing for Respondent No. 1 and learned Counsels for the State Election Commission and for Respondent Nos. 4 to 7.

2. The petitioner seeks quashing of the order dated 11.7.2007 passed by Munsif 2nd Court, Saran in Election Case No. 6 of 2006 (Surya Narayan Rai v. The Chief Election Commissioner and Ors.) through which he has allowed the application for addition of Respondent No. 1 as the party to the election petition filed by him and also by other contesting candidate. The further prayer is to issue a mandamus commanding the respondents to discharge their legal obligation and to declare the Election Case No. 6 of 2006 as not maintainable since it suffers from non-joinder of necessary party within the time frame allowed in Rule 106 of the Bihar Panchayat Election Rules, 2006.

3. The petitioner was a candidate for the post of Mukhiya of Gram Panchayat, Raj Mukimpur in 2006 Gram Panchayat Election. The petitioner was declared as the successful candidate. The results of the election were published on 16.6.2006. Respondent No. 1, Surya Narayan Rai, one of the defeated candidates thereafter filed an Election Case No. 6 of 2006 on 29.6.2006 with a prayer to declare the election of the petitioner on the post of Mukhiya as invalid on account of bungling in counting of votes by Respondent Nos. 5 to 7 and further prayer was made for a direction for recounting of votes and to declare the person who receives maximum vote as elected. The petitioner appeared in the case and filed written statement on 9.8.2006 in which he also raised the issue of maintainability of election petition on the ground of non-joinder of necessary party as one Chhote Lal Rai, the proposed opposite party who was also one of the contesting candidate to the said party, was not made party to the election petition. Thereafter on 18.7.2006 an application for amendment in the election petition was filed under Order 6 Rule 17 of the Code of Civil Procedure for adding the said Chhote Lal Rai as opposite party in the case. The said Chhote Lal Rai also filed an application on 25.7.2006 under Order 1 Rule 10 of the Code of Civil Procedure for impleading him as opposite party in the case claiming that he was one of the candidates for the post of Mukhiya in the said election and thus he was necessary party. The petitioner filed his objection against the said applications stating that the applications were not maintainable. After hearing the parties the learned Munsif 2nd Court, Saran allowed the said applications by the impugned order dated 11.7.2007.

4. Learned Counsel for the petitioner submits that under Section 137(2) of the Bihar Panchayat Raj Act, 2006 it is provided that a petitioner shall join as respondent to his petition, where the petitioner in addition to claiming declaration of the election of all or any of the returned candidates as void, claims further that he himself or any other candidate should be declared elected, all the contesting candidates other than the petitioner. He also refers to Rule 106 of the Bihar Panchayat Election Rules, 2006 Sub- rule (2) of which makes a similar provision regarding the parties to the petition and Sub-rule (1) whereof provides that any election petition under Section 137 of the Act must be filed within 30 days of the declaration of the Election result.

5. On the basis of the above two provisions it is argued by learned Counsel for the petitioner that the application for amendment was filed by Respondent No. 1 on 18.7.2006 more than 30 days after the results were published i.e., 16.6.2006, and therefore since an application on the said date would be barred by limitation, hence the addition of parties also would not be allowed after the expiry of the period of 30 days provided for the filing of any election petition. In support of the aforesaid proposition learned Counsel relies upon a decision of the Supreme Court in the case of K. Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi and Ors. AIR 1969 SC 879, para 13 and 14 of which are quoted below:

13. 'Even though Section 87(1) of the Act lays down that the procedure applicable to the trial of an election petition shall be like that of the trial of a suit, the Act itself makes important provisions of the Code inapplicable to the trial of an election petition. Under Order 6, Rule 17 C.P.C. a Court of law trying the suit has very wide powers in the matter of allowing amendments of pleadings and all amendments which will aid the Court in disposing of the matters in dispute between the parties, are as a rule allowed subject to the law of Limitation. But Section 86(5) of the Act provides for restrictions on the power of the High Court to allow amendments. The High Court is not to allow the amendment of a petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. With regard to the addition of parties which is possible in the case of a suit under the provisions of Order 1, Rule 10 subject to the added party's right to contend that the suit as against him was barred by limitation when he was impleaded, no addition of parties is possible in the case of an election petition except under the provisions of Sub-section (4) of Section 86. Section 82 shows who are necessary parties to an election petition which must be filed within 45 days from the date of election as laid down in Section 81. Under Section 86(1) it is incumbent on the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82. Again the High Court must dismiss an election petition if security for costs be not given in terms of Section 117 of the Act.'

14. 'It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation. But an election petition stands on a different footing. The trial of such a petition and the powers of the Court in respect thereof are all circumscribed by the Act. The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a Court of law unless the application thereof has been excluded by any enactment: the extent of such application is governed by Section 29(2) of the Limitation Act. In our opinion however the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act.

6. He also relies upon a decision of a Division Bench of this Court in the case of Jageshwar Rai v. The State of Bihar and Ors. 2007 (1) PLJR 327, in para 14 whereof it is held as follows:

Thus in the aforesaid facts and circumstances and in view of the abovementioned position in law it is held that not only the principle, but even the procedures, including the provision of amendment, prescribed in the Code will be applicable in such election matters, except those which are specifically barred by any provision of the Act or the Rule under which the elections were held.

7. Learned Counsel also refers to a decision of a learned Single Judge of this Court in the case of Neelam Kumari @ Neelam Devi v. The State of Bihar and Ors. 2008 (3) PLJR 187, para 23 to 25 of which lay down as follows:

23. 'At this stage, the Court considers it appropriate to refer to Rule 106(1) of the Bihar Panchayat Election Rules, which is quoted hereinafter:

v/;kns'k dh /kkjk 137 es fofgr U;k;ky; ds le{k fdlh fuokZfpr vH;FkhZ ds fo:) pquko ;kfpdk fuokZpu ifj.kke dh ?kks'k.kk ds rhl 30 fnuksa ds Hkhrj dh tk ldsxhA

The Rule provides that election petition has to be instituted within 30 days from the date of declaration of the result. In C.W.J.C. No. 10105 of 2006 it has been held that this period of 30 days was mandatory notwithstanding that the consequences would not have been provided for, since the laws governing elections are special laws. This judgment came to be affirmed by a Division Bench in L.P.A. No. 243 of 2007.'

24. 'To hold otherwise, that need for compliance with the statutory requirements of Section 137(2) and Rule 106(2) was not mandatory in absence of any provision of consequences, but, shall depend on the facts and pleadings of each case, shall create a very anomalous situation. Quite apart from, in similar cases, rendering the statutory provision and the intention of the legislature as cases, rendering the statutory provision and the intention of the legislature as redundant there shall prevail a complete state of uncertainty with individualized interpretation in each case contrary to the intention of the legislature, which is required to be uniformly followed by the Courts.'

25. 'The question of non-impleadment of necessary parties when specifically provided by the statute as distinct from necessary parties based on the relief sought in pleadings becomes a question of jurisdiction. If it becomes a question of jurisdiction, non-compliance renders the suit without jurisdiction. The analogy may be drawn from the provisions of the Limitation Act. It is the solemn duty of the Court to throw out the petition which is barred by limitation notwithstanding that the objection could not have been raised as a defence. This is based on the premise that the law bars the suit. Similar would be position here. The suit ought to have been thrown out at the very inception not being in consonance with and fulfillment of statutory requirements.

8 Learned Counsel for the Respondent No. 1 on the other hand submits that the decision of the Supreme Court in K. Venkateswara Rao case (supra) was decided in the context of the provisions of the Representation of the People Act, 1951 in which the consequences of non-compliance of the provisions of Section 81 and 82 of the said Act have been specifically provided in Section 86(1) of the Act. It is submitted that under Section 86(1) of the Representation of the People Act, 1951 the High Court is incumbent to dismiss an election petition which does not comply with the said provisions whereas no such provisions are to be found in the Bihar Panchayat Raj Act which clearly shows the intention of the legislature not to treat the provisions as mandatory. He also relies upon a decision of the Supreme Court in the Case of Rupadhar Pujari v. Gangadhar Bhatra : AIR2004SC5007 , in para 8 of which it has been held as follows:

True it is that the relief clause in the election petition in the present case is not very happily worded. The election petitioner would have been better advised to specifically seek a declaration to the effect that he was elected. However, we cannot be oblivious of the fact that Panchayat elections are part of Gram Swaraj system. Most of the provisions relating to election and election petitions in the laws governing Panchayats are pari materia with the provisions contained in the Representation of the People Act 1951. Yet the procedural laws relating to Panchayat elections and election petitions cannot be allowed to be interpreted with too much of rigidity and by indulging in hair-splitting. A recent decision by a Constitution Bench in Sardar Amarjit Singh Kalra (dead) by L.Rs. and Ors. v. Pramod Gupta (Smt)(dead) by L.Rs. and Ors. : [2002]SUPP5SCR350 , once again reminds us to remember that laws of procedure are meant to regulate effectively, assist and aid the object of doing substantive and real justice. Procedural laws must be liberally construed to really serve as handmaid of justice, make them workable and advance the ends of justice. Technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of the law inevitably necessitates it.

9. Learned Counsel for the Respondent No. 1 further relies upon the learned Single Judge decision in the case of Ajit Singh v. State of Bihar and Ors. 2005 (3) BLJ 447, para 5 of which lays down as follows:

No provision similar to that of Sections 82, 83 and 86 of the Representation of People Act, 1951 is incorporated in G.P. Act, 1993 or the Rules framed thereunder, thus the law laid down in the case of Md. Zakir (supra) has no application to the provision of G.P. Act., 1993 and the Election petition filed thereunder.

10. On a consideration of the facts and circumstances of the case and the submissions made by learned Counsels for the parties, this Court finds sufficient force in the contention of learned Counsel for the petitioner. It is true that the provisions of the Bihar Panchayat Raj Act, 2006 read with the rules framed thereunder and those of the Representation of the People Act, 1951 are not exactly the same since there is no comparable provision to Section 86(1) of the Representation of the People Act, 1951 so far as the Bihar Panchayat Raj Act is concerned. However, the decision of the Supreme Court in K. Venkateswara Rao case (supra) was not given wholly in the context of Section 86(1) of the R.P. Act, 1951 but it dealt also with the applicability of the general laws in the matter of trial of Civil suits. It has been clearly laid down in the said decision that while the powers in the matter of allowing amendments are quite wide but they are allowed subject to the law of limitation. It was specifically held that the election petition stands on a different footing and trial of such a petition and the powers of the Court in respect thereof are all circumscribed by the Act. It was further held that Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Limitation Act. In my opinion, the said observations of the Supreme Court, even apart from what has been held in regard to Section 86(1) of the R.P. Act, 1951 apply with equal force to an election petition filed under the Bihar Panchayat Raj Act. There cannot be importation of the provision of the Limitation Act into the provisions concerning the Election to the Panchayats when specific provision has been laid down limiting the filing of election petition within 30 days of the declaration of the result of the election. The clear effect of such a provision would therefore be that even in the absence of provisions like Section 86(1) of the Representation of the People Act, if at all necessary parties are to be impleaded the same must be done within the period of limitation of 30 days provided for the filing of an election petition under Rule 106 of the Bihar Panchayat Election Rules.

11. To the same effect is the decision of this Court in the Case of Neelam Kumari @ Neelam Devi case (supra) in which under similar circumstances, this Court had held that the provisions of Section 137(2) and Rule 106(2) were mandatory and if the same were not complied with, the election petition would be liable to be thrown out. Reference is made in para 23 of the said judgment to another decision of this Court in C.W.J.C. No. 10105 of 2006 where it was held that the period of 30 days for filing an election petition was mandatory notwithstanding the consequences of non-compliance have not been provided since the laws governing elections are special laws and that the said judgment has been affirmed by a Division Bench in L.P.A. No. 243 of 2007.

12. In the aforesaid view of the matter, this Court is clearly of the view that the provisions of Section 137(2) and Rule 106(2) of the Act and Rules respectively are mandatory and the election petitioner ought to have impleaded the necessary parties within a period of 30 days from the declaration of the result of the election and in any case no application for amendment of parties after the mandatory period of 30 days can be entertained by the election tribunal.

13. So far as the reliance by learned Counsel for the Respondent No. 1 in the case of Rupadhar Pujari is concerned, the said decision was rendered in a very different situation where the election petitioner had failed to pray for a relief of being declared elected in the election petition, yet considering the circumstances that there were only two contesting candidate in the said election and the nomination of one of them was held by election tribunal to be invalid, it was held by the Supreme Court that even in the absence of a prayer for such a relief since the natural consequence of there being only one valid candidate would be that he would have to be declared elected, the relief granted by election tribunal was justified and the High Court ought not to have interfered with the same. The facts of the instant case are on an entirely different footing and the issue here is not merely the technicality of relief not being made in proper terms but rather the election petition being filed without impleading a necessary party within the statutory period of 30 days.

14. The reliance on Ajit Singh case also cannot help the petitioner, as it is not clear from the facts mentioned in the said case as to what was the relief that had been sought in the said case. In fact, this Court does not find any discussions of the provisions of the Bihar Panchayat Raj Act and Rules and only on the basis of the consideration of the provisions of the Representation of the People Act, the matter has been decided. Thus no reliance can be placed on the said decision. Moreover, as pointed out above, it has already been upheld by a Division Bench of this Court in L.P. A. No. 243 of 2007 as stated in Neelam Kumari @ Neelam Devi case (supra) that the provisions of Section 137(2) and Rule 106(2) are mandatory and the same will over-ride any decision to the contrary by any other Single Judge Bench of this Court.

15. In the light of the aforesaid discussions, the writ application is allowed, the order dated 11.7.2007 passed by the Munsif 2nd Court, Saran in Election Case No. 6 of 2006 is set aside. It will be open to the petitioner to file an application before the Election Tribunal regarding the maintainability of the election petition in the absence of one of the contesting candidates in view of the reliefs claimed in the election petition, and if such an application is filed, the tribunal shall consider and dispose of the same expeditiously in accordance with law.