Navaratan Singh v. Chandi Dan — 1984 DIGILAW 435 (RAJ)

M.C. JAIN, J.—The petitioner by this writ petition seeks to quash the order dated April 16, 1983 (Ann. 1) passed by the learned Munsif & Judicial Magistrate, First Class, Bilara, whereby the objection of the petitioner as to the invalidity of the presentation of the election petition was overruled. 2. I may state the few relevant facts. In connection with the re-constitution of the Gram Panchayat, Borunda of the Panchayat Samiti, Bilara, the elections were held on December 14, 1981. The petitioner Navaratan Singh and the respondent No. 1 Chandi Dan contested the election for the Office of Sarpanch. The petitioner was declared elected. The respondent No. 1 questioned the election of the petitioner by presenting the election petition on January 13, 1982. The election petition was presented to the Reader of the court of the Munsif Magistrate, Bilara. Shri Baldeopuri Goswami, Munsif & Judicial Magistrate, Bilara on account of his transfer had handed over the charge on January 11, 1982 and an order was passed by the District Judge and authorising Shri Madho Singh, Munsif Magistrate, Piparcity to look after the work and dispose of urgent matters of the court of Munsif Magistrate, Bilara in addition to his duties. On January 13, 1982, the respondent No. 1 submitted an application in the prescribed form for depositing the security amount as envisaged by r. 79 of the Rajasthan Panchayat & Nyaya Up-Samiti Election Rules, 1960 (for short the Rules) to the Munsif, Piparcity, who directed that the amount of Rs. 50/- may be deposited. Accordingly, the respondent No. 1 deposited this amount. However, the respondent No. 1 presented the election petition to Shri Vasudeo Dewal, Criminal Clerk, who was working as a Reader. The respondent No. 1 inter alia challenged the election on the ground that the election petition was not Validiv presented as it can only be presented to the Munsif and not to the Reader. The presentation was, therefore, invalid. It was only on February 18, 1981, Shri Mohammed Ayyub Khan took over the charge of Munsif & Judicial Magistrate, Bilara. The objection relating to the invalid presentation of the election petition, was heard by the learned Munsif & Judicial Magistrate, Bilara and the same was over - ruled by the learned Munsif by his impugned order. 3. It was only on February 18, 1981, Shri Mohammed Ayyub Khan took over the charge of Munsif & Judicial Magistrate, Bilara. The objection relating to the invalid presentation of the election petition, was heard by the learned Munsif & Judicial Magistrate, Bilara and the same was over - ruled by the learned Munsif by his impugned order. 3. The question that arises for consideration is as to whether the presentation of the election petition to the official of the court of Munsif & Judicial Magistrate, Bilara, who was acting as Reader, is a valid presentation. The relevant portion of r. 78 of the Rules reads as under:— "78. Manner of challenging an election or co-option under Rules: — The election or co-option of any person as the Panch of a Panchayat or the election of any person as the Sarpanch or Up-Sarpanch of a Panchayat or as the member or Chairman of a Nyaya Panchayat may be railed in question by presenting a petition to the Munsif, or, where there is no Munsif to the Civil Judge, within whose jurisdiction the place of head-quarters of the Panchayat or the Nyaya Panchayat, as the case may be, is situated, within thirty days from the date on which the result of such election or co-option is declared, on any one or more of the following grounds- (a)......... ......... (b)......... (c)......... ......... ........ (d)......... ......... (e)................ ........ (f)......... ......... 4. It would appear from the above provision that the petition has to be presented to the Munsif. On behalf of the petitioner Mr. M. M. Singhvi, his learned counsel urged that in view of the above provision, the petition has to be presented to the Munsif or not to any other person. No one else can entertain and if the election petition is presented to some official of the court of Munsif, it would be non- observance of the statutory rule, which is mandatory in character, Non-observance of the statutory rule, according to Mr. Singhvi would be fatal to the election petition. The words, "to the Munsif" can only mean that the petition has to be presented to the Munsif in person and these words cannot be interpreted to mean that the petition can be presented to the court of Munsif. It is only where there is no Munsif, the election petition can be presented to the Civil Judge. The words, "to the Munsif" can only mean that the petition has to be presented to the Munsif in person and these words cannot be interpreted to mean that the petition can be presented to the court of Munsif. It is only where there is no Munsif, the election petition can be presented to the Civil Judge. The omission of the words "the court" is significant, also the framers of the rules could have provided that the election petition can be presented to the court of Munsif. If the expression "the Court of Munsif would have been used by the framers, the Reader of the court could have entertained the election petition but in the absence of the words "the court of Munsif" the election petition can only be presented to the Munsif or the Civil Judge in person as the case may be. Mr. Singhvi, emphasised that the election law is a special law and being a special law, the provisions have to be interpreted literally and strictly in their natural and plane sence and the provisions should not be given equitable or liberal construction and in case, liberal construction is put the democratic rights of the people would be adversely affected. According to Mr. Singhvi, the provisions relating to resolving of the election disputes lay down a complete Code and so, the provisions have to be interpreted treating the provisions as special law relating to the matters of election disputes. Mr. Singhvi tried to support his contention by reference to some case law. It may, however, be stated that so far as r. 78 of the Rules is concerned, there is no direct authority on the point. 5. First of all, Mr. Singhvi, learned counsel for the petitioner referred to a decision of this Court in Keshav Dev vs. Radhey Shyam (1). This authority simply lays down that the Munsif or Civil Judge hearing the election petition under r. 78 of the Rules, is a persons designate and being persons designate, it has been held that the District Judge has no jurisdiction to transfer an election petition from one Munsif to another Munsif or from Munsif to Civil Judge. 6. He further made a reference to the decision of the Division Bench of this Court in Rewachand vs. Anandsingh Kachhawaha (2). 6. He further made a reference to the decision of the Division Bench of this Court in Rewachand vs. Anandsingh Kachhawaha (2). This was an election matter filed under the Representation of the People Act and came up for consideration of the rules 247-E and 247-H of the High Court Rules. It was held that the said rules are mandatory in character and non-compliance of the rules would result into dismissal of appeal. In this case, reliance was placed on a decision of the Supreme Court in Rattan Anmol Singh vs. Ch. Atma Ram (3) and after extracting the portion, it was observed that the necessary paper-books should not only have accompanied the memorandum of appeal, but further the said books should have been certified by the advocate of the party preparing the copy as to the correctness of the translation and typing of the paper-book at the time when memorandum of appeal, was filed. It was further observed that not only that this has not been done, but no such valid certificate appears until this date on the paper-books. Because of the Rules, it was held that the appeal is invalidated 7. The next authority, which has been relied upon by Mr. Singhvi is State of U.P. Vs. Singhara Singh (4). It was observed in this case- "When a statute confers a power on certain judicial officers, that power can obviously be exercised only by those officers. No other officer can exercise that power, for it has not been given to him." 8. In that case, it was held that power under Sec. 164 is conferred on Magistrate of higher classes and confession can not be recorded by the Magistrate of the lower classes. 9. Reliance has further been placed by Mr. Singhvi on Ashok Shankar Cholap vs. Krishna Rao H. Deshmukh(5). This was also a case under the Representation of the People Act. There was non complaince of the provisions of Sec. 81(3). In that case, the election petition was filed on the last day of limitation for filing an election petition without requisite number of copies. The Clerk of the Advocate merely kept the copies of the election petition in the Board Department. It was held that there was non-compliance of Sec. 813). The matter relating to the presentation, came to be disposed of in view of the specific provisions contained in Sec. 86. 10. The Clerk of the Advocate merely kept the copies of the election petition in the Board Department. It was held that there was non-compliance of Sec. 813). The matter relating to the presentation, came to be disposed of in view of the specific provisions contained in Sec. 86. 10. In J.P. Goyal vs. Raj Narain (6) again, it was observed that the procedural requirements must be mandatorily complied with and it was also the matter under the Representation of the People Act. In that case, the attested true copies were mixed up with incorrect copies of petition. The election petitioner filed a number of copies, some of which may be correct and some may be in correct. It was his duty to see that the copy served on the respondent is a correct one. It was held that if the respondents copy is found to be an incorrect one, it amounts to non-compliance of Sec. 81(3), which is sufficient to entail a dismissal of the election petition at the behest under Sec. 96. 11. In the present case, it is noteworthy that there does not exist a parallel provision like the provision of Sec. 86 contained under the Representation of the People Act. So far as, the Representation of the People Act is concerned, the authorities or the decisions, cannot be of much help in view of the special provisions contained in Sec. 86 of the Act. If Sections 81,82 and 117 of the Representation of the People Act are not complied with, then the petition cannot be proceeded with under the Representation of the People Act. 12. Mr. Mridul, learned counsel for the respondent No. 1 has referred to some decisions of the Supreme Court. In Hukumdev Narayan Yadav vs. Lalit Narayan Mishra (7), in para 23 of the report, it has been observed as under:— "If no discretion was conferred in respect of any of these matters, none can be exercised under any general law or on any principles of equity. If for non-compliance with the provisions of Sections 82 and 117. which are mandatory, the election petition has to be dismissed under S. 86 (1) the presentation of election within the period prescribed in S. 81 would be equally mandatory, the non-compliance with which visits the penalty of the petition being dismissed." 13. If for non-compliance with the provisions of Sections 82 and 117. which are mandatory, the election petition has to be dismissed under S. 86 (1) the presentation of election within the period prescribed in S. 81 would be equally mandatory, the non-compliance with which visits the penalty of the petition being dismissed." 13. In K. Venkateswara Rao vs. Bekkam Narasimha Reddi (8) again, it has been observed in para 18 of the report as under:- "No right is however given to the High Court to entertain an election petition, which does not comply with the provisions of Sec. 81,Sec. 82 or Sec. 117." 14. It was observed in that case that the Limitation Act cannot be applied to the 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. 15. Thus, so far as the authorities based on the Representation of the People Act are concerned, in my opinion, they cannot be pressed into service in order to interpret the provisions of R. 78 of the Rules. 16. Mr. Mridul, learned counsel for the respondent No. has relied on the two decisions of this Court, wherein the question of presentation of the election petition before the official of the court was considered. 17. The first case is Sansilal vs. Manoharlal (9). The Division Bench of this Court while considering the provisions of Sec. 19(1) and 19(2) of the Rajas-than Town Municipalities Act observed as under:- "Let us look at what Sec. .9(1) provides in this matter. That lays down that any ten voters or any candidate who stood for election may apply to the Judge having jurisdiction over the district within which the election has been held for the determination of the validity of the election. The election petition has to be made therefore to the Judge having jurisdiction over the district. This, in our opinion, is nothing more than laying down that the election petition shall be filed in the court of the District Judge having jurisdiction in the area in which the election is held. We are not prepared to hold that these words in Sec. 19(1) of the Municipalities Act mean that the election petition must be presented to the Judge himself. We are not prepared to hold that these words in Sec. 19(1) of the Municipalities Act mean that the election petition must be presented to the Judge himself. It is enough in our opinion if it is presented to the officer who normally accepts petitions relating to his court. We are, therefore, of opinion that there was no irregularity whatsoever in the presentation of the petition in this case to the Munsarim of the Judge having jurisdiction over the district within which the election was held." The Division Bench held that the presentation of the election petition to officer of the court of the District Judge, who normally accepts the petition is enough and this connection was negatived that the election petition must be presented to the Judge himself. This decision was followed in Madan Gopal Gupta vs. Dr. Leelaram (10). 18. It may be stated that r. 78 of the Rules deals with the manner of challenging an election and it is provided that an election may be called in question by representing the petition "to the Munsiff" and the period provided for the presentation of the petition is 30 days from the date on which the result of such election is declared. Rule 78 makes a provision with regard to presentation and a provision with regard to limitation. Rule 79 makes a provision for a person, who can present the election petition and sub-r. (2) of R. 79 of the Rules further lays down that no petition shall be deemed to have presented under these rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security for the costs of the opposite party. It would appear that sub-r. (2) of r. 79 is a negative deeming provision. For presentation of the election petition, if sub-r. 2) is not complied with, it would mean as if the election petition is not presented at all. No such negative or penal provision has been enacted in any rule, in connection with the non-observance of r. 78 of the Rules. I need not dilate on the question as to what matters provided in r. 78 are of mandatory character. 19. No such negative or penal provision has been enacted in any rule, in connection with the non-observance of r. 78 of the Rules. I need not dilate on the question as to what matters provided in r. 78 are of mandatory character. 19. With regard to the provision of presentation of the election petition, the matter has to be considered from this point as to whether the authority framing the rules intended to deny the petitioners, who want to challenge the election, the remedy of presenting the petition if the same is not presented to the Munsif in person. When an election is open to challenge and when the man-ner is provided to challenge the same then it should be taken that the framers have provided an effective not an illusory remedy, which can be taken away for no fault on the part of the petitioner. Within the period of limitation, a petition can be presented and if, on the last date of limitation for any reason the presiding officer is not there in the court then it would not be possible for the petitioner to present the petition to the Munsif in person and if he presents the petition to the official who normally entertains such papers, that would be rendered invalid. In my opinion, such cannot be the intendment of the rule and intention of the framers of the rule. The framers of the rule, simply appear to have provided that the petition should be presented to the court within limitation else it would mean that though the remedy is provided but the same may be rendered futile or meaningless for no fault on the part of the petitioner. In a situation like the one considered above, in my opinion the provision of r,-78 should be interpreted in the manner that the election petition can be presented to the court of Munsif and that, the presentation need not be made to the Munsif in person. If interpreted otherwise then the very object of providing the remedy to challenge the election by way of election petition, would be defeated as the election petitioner would be required to keep a continuous watch for 30 days as to whether the presiding officer would remain present in court or not, so that the petition can be presented on the date when the presiding officer is not on leave. 20. 20. I may refer here a decision of the Division Bench of the Madras High Court Rathnam Pillai vs. Sollappa Reddiar (11). In that case, a question arose with regard to the presentation of the election petition under the Madras Panchayat Act. Rule 1(3) provided that the District Munsif or other officers mentioned therein shall exercise jurisdiction as persons designate and not in the personal capacity. Under r. 2. the election petition could be presented within 15 days from the date of the declaration of the result of the election. There was no specific provision to whom the election petition can be presented. Explanation of r. 2 provided that if the officer of the election court is closed on the last date of the fifteen days aforesaid, the petition may be presented to the election court on the next following day on which such court opens. It was observed as under:- "An Election Commissioner under the rules, if not functioning as a Civil Court, but only as a persons designate, only means that he is performing his judicial acts as such. That does not, however, mean that the District Munsif should not have the assistance of his subordinates for the performance of ministerial acts. Those ministerial acts like the receiving of the petition, making out copies, issuing of process, can be done by the subordinates of the District Munsif. The explanation to rule 2 impliedly recognises this. On the question, whether it should be presented to the District Munsif in person or to his subordinates in this office." It was held that:- "the presentation of the petition to the head-clerk- the accredited Officer for the purpose of receiving plaints was a proper presentation." 21. In the light of what I have considered above, in my opinion, it would be in accord with the intention of the framers of the rules that r. 78 may be interpreted in the manner by which the petition may be presented to the court of Munsif. 22. I need not examine the contention based on r. 83 as to what the expression hearing means and whether the provision of O. IV, r. 1 of the Civil Procedure Code would apply or not. 23. In the light of what I have discussed above, the order of Munsif does not call for any interference and the preliminary objection regarding invalidity of the presentation has been rightly over-ruled. 23. In the light of what I have discussed above, the order of Munsif does not call for any interference and the preliminary objection regarding invalidity of the presentation has been rightly over-ruled. 24. In the above view of the matter, the writ petition has no force, so, it is hereby dismissed.