2002 PLP 1395 (YLR)

5. On the other hand learned counsel for respondent No.3 has opposed this writ petition on the ground that the impugned order has been passed in accordance with law as rule 72 sub‑rule (3) of the Punjab Local Government Election Rules, 2000 specifically states that the election petition shall be signed and verified in accordance with Order 6, rule 15 of C.P.C. Rule 77 specifically states that the petition will be dismissed if the provision of rule 72 is not complied with, the penalty has been imposed for the non compliance of the Rules and in such circumstances the provision of Rule 72, sub- rule (3) has become mandatory hence the election petition has been rightly dismissed. He relied upon the following judgments:‑‑ 1995 CLC 150, 394, 1994 CLC 687 and 1366. and prays for the dismissal of this petition.

6. I have considered the arguments of the learned counsel for the parties and also perused the impugned order. Rule 70 of the Punjab Local Government Elections Rules, 2000 provides a remedy for challenging the election through election petition made by a candidate for that election and this election petition has to be presented to the Tribunal appointed by the Chief Election Commissioner within 30 days of the publication of the official Gazette regarding the name of the returned candidate and it has to be accompanied by a receipt showing that the petitioner has deposited a sum of Rs.1,000 as fee for the petition in any scheduled Bank. Rule 71 states that all the contesting candidates shall be joined as respondents to the Election Petition and they shall be served personally. Rule 72 is relevant in the present case which is reproduced as under:‑‑ "

72. Contents of petition.‑‑‑ (1) Every election petition shall contain‑‑ (i) a precise statement of the material facts on which the petitioner relies; (ii) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full as possible a statement of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and (iii) the relief claimed by the petitioner. (2) A petitioner may claim as relief any of the following declarations, namely:‑‑ (i) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or (ii) that the election as a whole is void. (3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings." Rule 77 empowers the Tribunal to dismiss the election petition if the provisions of rules 70, 71 and 72 have not been complied with. From the bare perusal of this provision it has become crystal clear that the election petition and every schedule or annex to that petition has to be signed by the petitioner and verified in the manner laid down in the C.P.C. 1908 for the verifications of pleadings. In case of non‑compliance of this, Rule 77 empowers the Tribunal to dismiss the petition hence if the election petition is not verified and signed in accordance with rule 72, sub‑rule (3) it is liable to be dismissed. Admittedly the petitioner has not verified the election petition hence this is illegal because the mandatory provision has not been followed. The consequence of non‑verification or non- signing of election petition is to dismissal of the same. Case cited by the learned counsel for the petitioner 2000 CLC 191 also supports this proposition and does not support the case of the petitioner. The finding of the Court in this case is that the provisions of C.P.C. will be applicable if the provision of Local Government Ordinance or Local Council Election Rules, are with conflict thereto, and in case there is no specific provision or rule to the contrary the provision of C.P.C. will apply as nearly as possible in the area during the trial of election petition. The relevant portion is reproduced as under:‑‑ "In case of inconsistency between the provisions of the Code of Civil Procedure and the provisions of Ordinance or Rules, former will yield to the latter, but the provisions of Code of Civil Procedure will, of course, apply as nearly as possible, in the area, during trial of election petition, where there is no specific provision or rule to the contrary." I am also fortified by the view taken by this Court in the case relied upon by the learned counsel and the first case is reported as 1995 CLC

150. The relevant portion is reproduced as under:‑‑ "Representation of People Act (LXXXV of 1976), S.55‑‑‑Non verification of pleadings/election petition in terms of O.VI, R.15, C.P.C. ‑‑‑Effect‑‑‑Non‑verification of main election petition was not only a mere technicality or formality but being a mandatory provision, its non‑compliance would result in dismissal of the same." Similar view has also been taken in 1995 CLC 394 by this Court in which it has been held that the provisions for the verification of the election petition are mandatory and these have to be observed in letter and spirit by all the parties and non‑compliance of any provision will result into dismissal of the election petition having not been signed and verified. The relevant portion is reproduced as under:‑‑ "Ss.54 & 63‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑‑Omission to sign and verify election petition‑‑ Penalty‑‑‑Election petition is to be signed and verified in terms of O.VI, 9.15, C.P.C.‑‑‑Failure to observe provision of O.VI, R.15, C.P.C., however, is not visited by ,any penalty‑‑‑Defect in signing, verifica tion or presentation of plaint in a civil suit is thus, not fatal, but curable at any stage of proceedings‑ ‑Provision of S.63, Representation of the People Act, 1976, however, provides that election petition would be dismissed for non‑compliance of provisions of Ss.54 & 55 of the Act relating to signing and verification of election petition which is manda tory ‑‑‑Election petition having not been signed and verified was dismissed in circumstances." Similar view has also been taken in 1994 CLC 1366 which is reproduced as under:‑‑ "Verification of election petition not in accordance with provision of O.VI, R.15, C.P.C.‑‑‑Effect‑‑ Election petition, every schedule and annexure to petition were required to be signed and verified in the manner prescribed by O. VI, R.15, C. P. C.‑‑ Failure to observe provisions of O. VI, R.15, C.P.C., was not visited by a penalty‑‑‑Defect in signing, verification or presentation of plaint was not fatal but curable by amendment at any stage of proceedings‑‑‑Provision of S.63 Representation of the People Act, 1976; however, makes the whole difference for it makes the provisions relating to signing and verification of election petition mandatory‑‑‑List of documents, list of witnesses, receipt annexure, postal receipts, Fard Pata and power of attorney having not been verified in accordance with law (verification where, was mandatory) election petition was dismissed as not maintainable." From the bare perusal of the above-said case law and the relevant provisions it has become crystal clear that the procedure laid down for the filing of the election petition under rule 72, sub‑rule (3) was mandatory and the penalty is provided for the non‑compliance of the provision under rule 77 and the consistent view of the superior Courts is that where the penalty is provided for non‑compliance a provision that provision is mandatory and has to be followed in letter, and spirit. As the petitioner has not verified the election petition and has not signed the same. Learned Election Tribunal has rightly dismissed the same and no exception can be taken to the order impugned in this petition. This petition has no merits and is dismissed. Q.M.H./M.A.K./M‑10/1078/L Petition dismissed.