RAMANLAL SURAJBHAN PREMY v. SHIVPRATAP SINGH — 1975 DIGILAW 30 (MP)

JUDGMENT : ( 1. ) THIS election petition, calling in question the election of the respondent No. 1 Shivpratap Singh to the Madhya Pradesh Legislative assembly from Guna Constituency No. 27, was presented to the High Court on 26-4-1972. The Deputy Registrar (Judicial) who is the person authorised to receive such petitions, made the following endorsement at the time of receiving the petition: "presented by Shri A. R. Choubey, Advocate for the petitioner Ramanlal, who is said to be a candidate, on this 26th April, 1972, at 1. 45 P. M. . It is accompanied by Receipt no. 31 Book No. 84994 dated 25-4-1972. Shri Choubey is personally known to me. The petition is accompanied by an affidavit. " ( 2. ) THE petition was, thereafter, checked by the Office and Reader to the deputy Registrar (Judicial) reported that it was doubtful if the petition could be treated as "properly presented" since it was not presented by the candidate himself but by his counsel, and under sub-section (1) of section 81 of the representation of the People Act, 1951 the election petition could be presented only by the candidate at such election or by an elector. ( 3. ) THE election petition was placed before Honble Dwivedi, J. on 14-11-1972, drawing His Lordships attention to the said Office-note. On this day, the petitioner had appeared before the Court personally along with his counsel Shri J. P. Gupta. Their attention was invited to the Office-note and shri Gupta, having been engaged on that very date, asked for ten dayss time to make his submissions. The hearing stood adjourned for 29-11-1972. On 29 11-1972, the counsel was heard and the Honble Judge reserved the case for orders. On 14-12-1972, the Judge passed the orders in the following terms: "according to Shri J. P. Gupta, the presentation by the counsel would be sufficient compliance with the provisions of section 81 (2) (a) (ii) of the Act. The question of proper presentation will be considered if and when such objection is taken by the other side. In the meantime subject to any objection regarding the proper presentation which may be subsequently raised, this petition be registered. " ( 4. The question of proper presentation will be considered if and when such objection is taken by the other side. In the meantime subject to any objection regarding the proper presentation which may be subsequently raised, this petition be registered. " ( 4. ) IT would be pertinent to note here itself that though the petitioner and his counsel were apprised of the Office objection regarding the invalidity of presentation, the petitioner did neither personally nor through his counsel, assert before the Court on either of these two dates that he was personally present when the petition was presented to the Deputy Registrar by his counsel and that the fact of his presence was not noted by him either due to inadvertance, or because he or his counsel omitted to disclose that the person accompanying the counsel was none else but the petitioner-candidate himself. ( 5. ) ON 16-2-1973, the respondent No. 1 filed his return. In para 18, he raised a specific plea that the petition was not properly presented, reiterating how the Office had raised an objection regarding it and the petitioner taking a firm stand that the presentation by a counsel was a proper presentation, and nowhere suggesting that he either personally presented it or was present at the time of its presentation by the counsel. The petitioner filed no rejoinder to this. On 16-3-1973, Dwivedi, J. framed issues and the issue No. 11 related to the plea of invalidity of presentation. The petitioner did not come forward with a statement that the issue would hardly be relevant since he was personally present at the time the petition was presented to the Deputy Registrar. ( 6. ) THE issues were recasted by me sometime in September, 1974, and issue No. 13 relates to invalidity of presentation. The respondent No. 1 prayed that this issue be heard preliminarily since the decision on it, if it went favourable to him, the petition could be thrown out without going into merits. The petitioner, then, for the first time, came with an application on 16-12-1974 pleading that he was present at the time his counsel Shri A. R. Choubey presented the petition to the Deputy Registrar. I permitted this plea of fact to be raised though it was belated. The petitioner, then, for the first time, came with an application on 16-12-1974 pleading that he was present at the time his counsel Shri A. R. Choubey presented the petition to the Deputy Registrar. I permitted this plea of fact to be raised though it was belated. The matter had so long proceeded on the assumption that the presentation of the petition was made by the counsel in the absence of the petitioner. The endorsement of the Deputy Registrar, the office-note by the Reader to the Deputy Registrar and the note of the Judge dated the 14th December, 1972, proceeded on the basis that the petitioner was not present at the time of the presentation of the petition. The plea that the petitioner was present at the time of its presentation, came two years after, and it was bound to be shrouded with suspicion and susceptible of an attack that the plea was an after thought and against all probabilities. The learned counsel for the respondent No. 1 argued that sooner the office raised the objection of validity of the presentation, had the petitioner been present at the time of its presentation, he would have rushed in with affidavits of his own and of his counsel, or of any of his companions who was present at that time, to point out that the Office endorsement of presentation was wrong, and that he was personally present. Instead, the plea was that the presentation by a counsel was a proper presentation. Such a plea admitted of no other inference than that the petitioner was not present. Such an inference would be consistent with the course of natural human conduct. Besides, the Office endorsement and the Office objections have their own presumptive value. The Deputy registrar (Judicial) was not a Ministerial Officer. He was an officer belonging to Judicial Service, of the rank of an Additional District Judge, and he knew the implications of presentation; the person who should present and the manner in which the presentation ought to be made. Had the petitioner been present along with the counsel, the Deputy Registrar would definitely have endorsed the fact of his presence. He was an officer belonging to Judicial Service, of the rank of an Additional District Judge, and he knew the implications of presentation; the person who should present and the manner in which the presentation ought to be made. Had the petitioner been present along with the counsel, the Deputy Registrar would definitely have endorsed the fact of his presence. He would not have raised the office objection regarding the invalidity of presentation, with reference to the provision of law as contained in section 81 of the Representation of the People Act which was, presumably, in his mind at the time he received the petition. ( 7. ) BE that as it may, the petitioner has examined himself and Shri a. R. Choubey to prove that he was present at the time of the presentation of the petition. The petitioner says that he and his counsel Shri Jain came to jabalpur on the night of the 23rd April. They had travelled in Shri Jains car. On the 25th April, he got the election petition prepared. He gave Vakalatnama on the 25th to Shri Choubey. On that very day, he had deposited the security amount and had sworn the affidavit. But certain documents remained to be typed and the petition though ready on the 25th, could not be presented on that day. He had, therefore, to stay on. On the 26th, he went along with his counsel to the Deputy Registrars chamber and his counsel presented the petition, very much in his presence. He left Jabalpur on the 26th afternoon after taking leave of his counsel. The petitioner says that he does not recollect whether he had signed the petition on the 25th or on the 26th. But he positively recollected that the date 26 below the verification clause was put by him on the 26th itself. That would show that he was present here at jabalpur on the 26th. And for a man who had come all the way from Guna for presentation of a petition, it would be reasonable to expect, his counsel contends, that he would get it presented in his presence before taking leave to go. ( 8. ) STRANGELY enough, Shri Choubey is not willing to support him on two vital points. And for a man who had come all the way from Guna for presentation of a petition, it would be reasonable to expect, his counsel contends, that he would get it presented in his presence before taking leave to go. ( 8. ) STRANGELY enough, Shri Choubey is not willing to support him on two vital points. He says that he cannot recollect whether the petitioner had accompanied him and was present with him when the petition was handed over to the Deputy Registrar. As far as he recollected, he met the petitioner somewhere outside the Deputy Registrars room when he came out after presentation of the petition. As regards the date under the verification clause is concerned, Shri choubey says that the date was in the handwriting of his clerk. This belies the petitioner that he had put the date on the 26th. Another pertinent fact to be taken notice of is that the petitioner had signed the petition on the 25th itself before he proceeded to the Deputy registrar Office for an affidavit on that day. Shri Choubey says that the affidavit could be sworn in only after the petition was ready and duly signed. The petitioner saying that he signed the petition on the 26th, would not be correct. ( 9. ) IT appears that the party thought that an election petition could be presented by his counsel and, therefore, it was not necessary for him to accompany the counsel to the Deputy Registrars room. He stayed behind and took leave of the counsel after be came out of the room or may be that he had left for Guna on the 25th evening itself, leaving behind someone to remind the counsel to present the petition on the 26th positively. Shri Choubey recollects that someone was reminding him on the 26th that he had to present the election petition. Who should that person be? Was he the petitioners counsel Shri Jain or the petitioner himself? Shri Choubey could not positively say that. ( 10. ) THE fact remains that the petition was presented by Shri Choubey and there is no definite and reliable evidence that it was done in the immediate presence of the petitioner. The petitioners uncorroborated testimony does not deserve to be accepted in view of the endorsement of the Deputy Registrar and the Office-noting going against him. ( 10. ) THE fact remains that the petition was presented by Shri Choubey and there is no definite and reliable evidence that it was done in the immediate presence of the petitioner. The petitioners uncorroborated testimony does not deserve to be accepted in view of the endorsement of the Deputy Registrar and the Office-noting going against him. I hold that the petition was not presented by the petitioner or in his immediate presence. ( 11. ) THE respondent No. 1 has examined one witness by name Babulal who was an active worker of the respondent No. 1 during the election. He says that Shivpratap Singh had asked to him to find whether an election petition was contemplated by the losing candidate. He happened to come to guna and while alighting from the bus, he saw Ramanlal Premy alighting from the other bus which reached soon after. He asked Ramanlal if the election petition had been filed and the reply was that he had handed over the petition duly drafted and signed to,his counsel a day before and it would be presented that very day (i. e. on the date of their meeting ). In his cross-examination, a suggestion was made that Ramanlal had gone to Jabalpur in Shri Jains car and had returned in the same car. The witness then fumbled and said that he had seen Ramanlal alighting from a bus which had reached an hour after his bus had reached. Soon after, he said that he bad not seen him alighting from any bus but after he had returned from the bazar, he casually met him at the bus-stand. ( 12. ) IT was difficult to believe a witness of this type. A person of a hostile camp, as he was, Ramanlal would not volunteer to give him all the details of the presentation. If he were to tell him anything, he would just say that the election petition had been filed. ( 13. ) THOUGH I do not believe this witness, yet the circumstances and probabilities as discussed above, lead me to hold that the petition was presented by the counsel, not in the immediate presence of the petitioner, but when he was somewhere away. ( 14. ( 13. ) THOUGH I do not believe this witness, yet the circumstances and probabilities as discussed above, lead me to hold that the petition was presented by the counsel, not in the immediate presence of the petitioner, but when he was somewhere away. ( 14. ) THE question then is whether this was a valid presentation of the petition; whether presentation by the counsel could be treated as presentation by the candidate within the meaning of section 81 of the Representation of the People Act. Section 81 reads as under : " (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. Explanation:-In this sub section "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. " Reference may be made to section 87 of the Act which permits the procedure of the Code of Civil Procedure to be applied in the trial of election petitions. It reads as under : "87 (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits: provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. (2) The provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition. " ( 15. (2) The provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition. " ( 15. ) READING the two sections together, it is clear that the provisions of the Code of Civil Procedure could be invoked only where the Representation of the People Act or the Rules made thereunder made no such procedural provisions. But where the Act or the Rules provided for a particular procedure, the Code to that extent would stand excluded. The manner of presentation of an election petition has been provided for in the Act itself and, therefore, any reference to the provisions of the Code of Civil Procedure in the matter of presentation of plaints or applications would be out of place. It would be wrong to suggest that since the trial of an election petition begins with the presentation of the petition and the "trial" used in a general sense, denotes taking judicial note of the state of affairs from the initiation of the petition till its final conclusion, the presentation of the petition would form an integral part of the trial, and because the Code applied for trial, it should also apply for the presentation of the petition by a counsel. Such a construction would render the opening words of section 87 (I) nugatory. The words are "subject to the provisions of this Act and of any Rules made thereunder, every election petition shall be tried". It has been repeatedly said by the supreme Court that an election contest is not an action at law or a suit in equity but is purely statutory proceeding unknown to common law and that the Court possesses no common law power. And the general rule is well settled that a statutory requirement of election law must be strictly observed. If the statute rendered any particular requirement mandatory, the Courts possessed and could exercise no dispensing power to waive non-compliance. The court has no implied power to cut down or enlarge the scope of the express provision of the Statute by invoking the provisions of the Code. The Code must operate subject to the provisions of the election law. If the election law directs the Court to act in a particular manner, it cannot have power to act in any other manner. The Code must operate subject to the provisions of the election law. If the election law directs the Court to act in a particular manner, it cannot have power to act in any other manner. The trial of the election petition must strictly be governed by the Statute. Under Article 329 (b), a provision is made that "no election shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature". And where the manner of presentation is prescribed in the election law, its scope cannot be extended or enlarged by importing into the provisions something from the Code or from the general law. ( 16. ) IN this view of the matter, the presentation of the election petition ought to have been made by the candidate himself. Though the words himself or personally have not been incorporated in the body of the section, the intention of the legislation is clear enough. "the candidate at such election" particularises the person as such. If the Legislature intended that the presentation could be done by an authorised agent, the provisions of Order 3, Rule 1 of the Code were very much within their knowledge, and it could be so expressed. Even in the provision of Order 3, Rule 1, the general rule of appearance or acting by the recognised agent or a legal practitioner, could be curtailed. The words except where otherwise provided curtail the absolute operation of the general rule. As an illustration, the presentation of a plaint by a pauper under Order 33, Rule 3 has to be made by the pauper-plaintiff in person. The mode of presentation implies delivery of the document to the Court or to its Officer. There are three recognized modes in the Code of Civil Procedure. Presentation by the party in person, or by his recognized agent, or by his pleader. And where the express provision, as contained in section 81, is presentation by a candidate, the meaning is implicit that the presentation has to be made by the candidate in person, though the words "in person" are not in the body of the section. ( 17. And where the express provision, as contained in section 81, is presentation by a candidate, the meaning is implicit that the presentation has to be made by the candidate in person, though the words "in person" are not in the body of the section. ( 17. ) THE Court is enjoined by section 86 (1) of the Representation of the people Act to dismiss the petition if the presentation did not comply with the provisions of section 81. The manner of presentation, by the very nature of penalty imposed for non-compliance, makes it obligatory, and the compliance ought to be strictly within the letters of the law. The Court has no power to act in any other manner. Where the Legislature has in its wisdom made the observance of certain formalities and provisions mandatory, the failure in that respect must be visited with a dismissal of the petition. ( 18. ) THE learned counsel for the petitioner relied on the authority of the supreme Court reported in Sheodan Singh v. Mohan Lal, AIR 1969 SC 1024 . wherein the presentation of an election petition by an Advocates clerk in the immediate presence of the petitioner was held to be proper presentation. The Court said that it was in substance though not in form, presentation by the petitioner himself, and, therefore, the requirement of law was fully satisfied. The learned counsel says that the presentation, in the instant case, was made by the counsel, in the immediate presence of the candidate; whether the candidate was present in the room itself or outside, should hardly matter when he was available to the counsel if the Deputy Registrar had any questions to ask, which should be within the personal knowledge of the candidate, or if he had any doubts as to the identity of the person presenting the petition. The candidate did appear before the Deputy Registrar on the previous day for swearing an affidavit. The petition was kept duly signed on that day. The authenticity of the person was not in doubt. Should it not, therefore, be sufficient compliance if the formality of presentation was done by the counsel and the candidate waited outside the room? If required, he could be called in. ( 19. The petition was kept duly signed on that day. The authenticity of the person was not in doubt. Should it not, therefore, be sufficient compliance if the formality of presentation was done by the counsel and the candidate waited outside the room? If required, he could be called in. ( 19. ) IN my view, the formality of presentation by the candidate himself, howsoever insignificant it may appear under the circumstances, was yet a mada-tory formality, the non-observance of which invalidated the presentation. If the candidate waited outside the room or was somewhere away, the presentation could not be construed as one in his immediate presence, to imply presentation by him personally. It was all the same presentation by a counsel. ( 20. ) THE result follows that the petition must be dismissed for noncompliance of section 81 (1) of the Representation of the People Act. It is, therefore, hereby dismissed. The petitioner shall pay to the respondent No. 1 alone his costs. Counsels fee Rs. 500. The Office shall communicate the result to the Election Commission and the Speaker of the State Legislature as required by section 103 of the Representation of the People Act, 1951. Petition dismissed.