1999 PLP 565 (CLC)

6. In order to determine the effect of failure on the part of the petitioner to append the names of the witnesses desired to be produced by him during trial of the petition and the gist of their depositions as required by notification referred above, a perusal of section 53 of the Representation of the People Act (No.LXXXV of 1976) is necessary. It provides:‑‑ "(1) An .election petition shall be presented by a petitioner and shall be deemed to have been presented:‑‑ (a) When it is delivered in person to the Secretary to the Commission or to such other Officer as may be appointed by the Commission in that behalf, (i) by the petitioner; or (ii) by a person authorised in writing in this behalf by the petitioner; or (b) when delivered by registered post to Secretary to the Commission onto such other officer as aforesaid. (2) An election petition, if sent by registered post shall be deemed to have been presented in time if it is posted within the period specified in subsection (2) of section 52. " Section 54 relates parties of petition whereas section 55 deals with contents of petition. Section 56 provides the procedure on receipt of petition by the Commissioner. It lays down:‑‑ (1) If the Commissioner finds that any provision of section 52, section 53 or section 54 has not been complied with, the petition shall t be dismissed forthwith. (2) If an election petition is not dismissed under subsection (1), the Commissioner shall refer it for trial to a Tribunal. "

7. The instant petition was found in order by the Election Commissioner and was sent to Tribunal under subsection (2) of section 56 for trial. The dismissal of the petition on account of failure on the part of the petitioner to append the aforestated documents with his petition at the time of filing the same, at the stage, would be an extreme penalty not envisaged by sections 53 to

56. It was the duty of the Election Commissioner to scrutinize the petition and if it was found deficient in any respect, notice should have been given to the petitioner for making up the same. No such notice was issued to the petitioner by the Election Commissioner. The petition was found in order and referred to this Tribunal for trial. Non‑compliance of Notification is merely a procedural omission and not a mandatory in nature. The dismissal of petition at preliminary stage of trial is provided under section 63 which reads as under:‑‑ "The Tribunal shall dismiss an election petition, if:‑‑

(a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62. " In the Act there is no such provision for dismissal of the election petition on the short ground of its not having been in confirmity with the Notification relied upon by the respondent. The failure on the part of the Secretary to the Commissioner to ensure compliance of departmental instructions contained in the Notification at the time of entertaining the petition and not raising any objection with regard to aforestated documents, cannot entail dismissal of the petition or declaring it non‑maintainable. In the cases of Ihsanul Haq, Mian Azizur Rehman Chan and Peter John Sahotra, referred to above, the petitions being violative of the instructions contained in the Notification, were not declared non‑maintainable. If the petition was deficient, the Secretary should have informed the petitioner so that he could remove the defect in time. Now the petition having been referred to this Tribunal by the Commissioner for trial, it cannot be dismissed for non‑compliance of procedure at the relevant time. Moreover, the petitioner in rejoinder to the written reply of respondent No.6, has appended the required documents with the petition and the apprehension of the respondent that he may not be taken by surprise is no more available. He is aware that petitioner has filed with rejoinder the list of witnesses desired to be produced by him alongwith their affidavits and gist of evidence, before framing of the issues. No prejudice is likely to cause to respondent No.6. The Election Commissioner itself had not considered the defect as fatal, otherwise it should have proceeded under section 56 of the Act. It should have proceeded under section 56 of the Act. For the aforegoing reasons, the preliminary objection of respondent No.6 for dismissal of the election petition being not maintainable, is hereby overruled. Now the election petition shall come up on 9‑12‑1998 for evidence of the petitioner. H.B.T./M‑920/L Order accordingly