Election Petitions | SDO Exercises Powers Of ‘Civil Court’, Verification Of Pleadings By Oath Commissioner Not Incurable Defect: MP High Court

The Madhya Pradesh High Court has recently held that a Gazetted officer such as the Sub-Divisional Officer (SDO), under the Election Petition Rules, 1995, exercises the functions of a ‘civil court’.

The petitioner candidate had won the Sarpanch Elections to Sikri Jagir Janpad Panchayat. This was challenged by the respondent candidate through an election petition before the Sub Divisional Officer on account of alleged discrepancies in the counting process. The petitioner preferred an application under Order VII Rule 11 CPC seeking rejection of the election petition on the ground that it was not duly supported by an affidavit, as required in the CPC, and that the pleadings in the affidavit had been verified by an oath commissioner instead of a civil judge or Notary. Such an application was rejected by the specified officer. Aggrieved by the same, the petitioner candidate preferred the present writ petition before the High Court.

In rejecting the plea, a single bench of Justice Anand Pathak observed that, upon a conjoint reading of Section 3 of the Indian Evidence Act and applicable statutory rules, an Oath Commissioner could administer oath in respect of any proceedings before the SDO on which the Civil Procedure Code is applicable. The bench held that verification of pleadings by an Oath Commissioner would ‘not at all be a defect or is a curable defect’ as per Rule 11 of Election Petitions Rules, 1995.

It added that when applicable statutory provisions such as Rule 31-A of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995 had already provided for an affidavit in the election petition to be sworn before an Oath Commissioner, the respondent candidate could not have relied on the mechanism provided in other statutes, since it would "cause injustice to the very spirit of concept of “Local Self Government and 73th and 74th Constitutional Amendments".

Upon referring to Rule 11 of the M.P. Panchayat (Election Petitions, Corrupt Practices and Disqualification of Membership), Rules, 1995 (Election Petition Rules, 1995) wherein the powers of the specified Officer had been mentioned, the Court further observed, "When the specified Officer (SDO in the present case) has powers to examine witnesses and incidental powers under Code of Civil Procedure, then he exercises the power of Civil Court for all practical purposes.” 

Jurisdiction of Oath Commissioner to Verify Affidavit & SDO as ‘Civil Court’

The crux of the arguments put forward by the petitioner candidate was that the Sub Divisional Officer couldn’t be regarded as a civil court, and the Oath Commissioner could not have verified the affidavit. It was argued that a strict interpretation of Rule 5 and Rule 2(b) of Commissioner of Oath's Rules, 1976 indicate that verification of the affidavit filed in support of the election petition could not have been done by the Oath Commissioner, since the commissioner did not have the requisite jurisdiction.

However, the court interpreted provisions such as Rule 2(d) of Oath Rules, 1976 differently from the petitioners, which clearly define the scope of a Commissioner of Oath's powers. 

“Definition of Commissioner of Oaths clarifies the position that it excludes Civil Courts or Magistrates authorized under Section 139 (a) of C.P.C. or under Section 297 of Cr.P.C., but it includes Officer appointed by any other court which the State Government has generally or specially empowered in this behalf and that Officer may administer the oath to the deponent. Said definition impliedly includes Officer/other person as provided in section 139(b) of C.P.C. beside section 139 (c) of C.P.C”, the court observed while adding that it would include Commissioner of Oaths as appointed by the High Court/Court of Session as per Section 297(b) of CrPC.

The court then relied on the Apex Court's judgment in State of M.P. & Ors v. Anshuman Shukla to hold that an SDO qualifies as a ‘court’. The MP High Court judgment in Bhagwati Prasad Singhal v. State of M.P. was also referred to buttress the legal position that an Oath Commissioner can administer affirmation in respect of any affidavit used in any proceeding before any court to which CPC or CrPC is made applicable.

While holding that SDO comes within the definition of a ‘civil court’ from the conjoint reading of Oaths Rules, Evidence Act, CPC, CrPC and Election Petitions Rules, 1995, the court noted:

“…any person who has been authorized to take evidence is a “Court” in the eyes of law. Secondly, when the Election Petitions Rules, 1995 gives the power to the competent officer to record or receive evidence and all powers which were vested in a Court under Code of Civil Procedure then the law relating to the Evidence Act would automatically become applicable and thus, it would be mandatory that the proceedings must satisfy the condition of Section 3 of the Evidence Act. Procedure as referred in Rule 11 of Election Petitions Rules, 1995 can only be ensured when Code of Civil Procedure/Evidence Act is made applicable”. 

Effect Of Rule 8 of Election Petition Rules

It was observed that while Rule 8 of the Election Petition rules spoke about the rejection of election petitions as a result of non-compliance with certain formalities mentioned in Rules 3,4 and 7 such as the presentation of the election petition in the prescribed hours, a declaration regarding the joining of necessary parties and deposit of security; the mandate that the election petition should be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings was given in Rule 5(c). Citing the same, the court noted as below:

“…In other words, non- compliance of Rule 3, 4 and 7 is fatal but Rule 8 nowhere attaches any fatality in respect of non-compliance of Rule 5. Verification as pleaded by the present petition finds place in Rule 5.”

Noting the same, the court held that the verification of pleadings by the Oath Commissioner was not a defect or at best a curable defect under the Election Petition Rules. It observed:

“Keeping in view the provisions of Act, 1951/Rules, 1961 in juxtaposition to the Panchayat Nirvachan Niyam and Election Petitions Rules, 1995, legislative intent does not permit to incorporate Rule 5 of the Election Petitions Rules, 1995 into the Rule 8 of the Rules. Same is not permissible on the ground of strict interpretation of election laws.” 

Accordingly, the court concluded that the Sub-Divisional Officer had rightly rejected the application under Order 7 Rule 11 CPC preferred by the petitioner Sarpanch, and added that the parties would be at liberty to lead their evidence in accordance with the law before the Sub-Divisional Officer.

Advocate Gaurav Mishra appeared for the petitioner

Advocate M.S Jadoun appeared for the Sub-Divisional Officer

Advocate Sankalp Sharma appeared for the respondent candidate

Case Title: Rabindra Kumar Upadhyay v. The SDO (Revenue) Lahar & Anr., Writ Petition No. 12380/2023

Citation: 2023 LiveLaw (MP)

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