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1997 DIGILAW 357 (MP)

Shivdhari v. Jaduman

1997-07-07

D.P.S.CHOUHAN

body1997
ORDER 1. As per the order dated 28.4.97 and order dated 1.7.97 and with the consent of the parties, the petition is disposed of finally. Heard the learned counsel for the petitioner and the learned counsel for the respondent No.1. 2. The petitioner before this Court Shivdhari was elected as Sarpanch of Gram Panchayat Chachar, Tahsil Singrauli, District Sidhi. The result of the election was declared on 24.5.94. This election was challenged by means of an election petition under section 122 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the Act) by respondent No. 1 Jaduman. 3. The learned counsel for the petitioner .raised the following two points :- (1) That the requirement of rule 3 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1991 (hereinafter referred to as the Rules) was not complied with, inasmuch as: (i) the election petition was not presented before the prescribed authority by the person challenging the election of the petitioner i.e. the respondent No. 1 nor by any other person authorised in this behalf by the election petitioner; (ii) the election petition, as per the requirement of sub-rule (2) of rule 3 of the Rules, was not accompanied by as many copies as there are respondents mentioned in the election-petition together with the required attestation. (2) That the security deposit of Rs. 250/- was not done but only a sum of Rs. 50/- was deposited and that too on 29.6.94 and not at the time of the presentation of the election-petition. The submission of the learned counsel for the petitioner is that the election petition was liable to be dismissed under rule 8 for non-compliance of the provisions of rule 3 which was the mandatory requirement under the law. 4. The above questions involved are purely questions of law and the facts have only perpheral relevance. So far as the declaration of the result of the election is concerned, there is no dispute and the date of declaration of the result was 24.5.94. Further there is no dispute that the election petition was filed on 1.6.94 before the Tahsildar Singrauli. There is also no dispute that the election petition was not accompanied with as many copies as there were respondents mentioned in the petition and no certification was done on such copies, to be true copies. The security amount of Rs. Further there is no dispute that the election petition was filed on 1.6.94 before the Tahsildar Singrauli. There is also no dispute that the election petition was not accompanied with as many copies as there were respondents mentioned in the petition and no certification was done on such copies, to be true copies. The security amount of Rs. 50/- was deposited instead of Rs. 250/-, as the then was the requirement of law, on 29.6.94. 5. In support of the first point, learned counsel for the petitioner invited the attention of the Court to Annexure P-7 which is the copy of the order-sheet. The order-sheet dated 1.6.94 in Annexure P-7 mentions that the election petition has been presented and the same be placed before the Prescribed Authority on 6.6.94. The Sub-Divisional Officer taking the petition to be within time and also since the election-petitioner was inclined to deposit Rs. 50/- which could not be deposited because of the non-availability of the MPTC-6, directed that the security amount be deposited subsequently It was on 29.6.97 that the security amount was deposited by challan. 6. Learned counsel for the petitioner submitted that from the above facts, it is clear that the election petition was not presented before the Prescribed Authority by the election petitioner himself or by any other person authorised in this behalf. Secondly, the security amount was not deposited by the election-petitioner at the time of the filing of the election-petition. Learned counsel further submitted that regarding security amount, the election-petitioner in para 13 of the election-petition stated to the following effect :- **¼13½s ;g fd vkosnd izfrHkwfr tek djus dk gsM u tku ldus ds dkj.k izfrHkwfr dh jkf"k 50@& :i;s pkyku }kjk ugha tek dj ldk] og U;k;ky; dk vkns"k gksus ij uxn 50@& :i;s izfrHkwfr dh jkf"k tek djus dks rS;kj gSA** This fact itself indicates that the election petitioner could not make deposit not because of the non-availability of MPTC-6 but because of the ignorance of law. This statements in the election-petition itself is verified on 1.6.94 and goes to indicate that on 1.6.94, there was no stage regarding non-availability of MPTC-6. The election-petitioner could not make deposit of security amount on account of the fact that he had no knowledge about the same. This statements in the election-petition itself is verified on 1.6.94 and goes to indicate that on 1.6.94, there was no stage regarding non-availability of MPTC-6. The election-petitioner could not make deposit of security amount on account of the fact that he had no knowledge about the same. Thus, the statement recorded in the order-sheet that the election petitioner could not deposit the security amount because of non-availability of MPTC-6, looking to Para 13 of the election petition is not correct as there was no stage regarding non-availability of MPTC-6. 7. Secondly, it is also clear that the election-petition was not filed before the prescribed authority but was sent by the Tahsildar before whom such election petition was filed, on 1.6.94, ordered for being placed before the Prescribed Authority on 6.6.94. The question is whether such presentation would be a presentation of the election-petition before the prescribed authority within the meaning of rule 3 of the Rules? It was not a presentation to the Prescribed Authority but before a person who under the law had no authority to entertain or accept its presentation. As such, it 'would be clear that the election petition was not presented before the Prescribed Authority but it was presented before the Tahsildar. However, the matter was sent to the Prescribed Authority by the Tahsildar who took cognizance of the matter on 6.6.94 and the petition was within time on that date. 8. Learned counsel for the respondent submitted that the election petition would be treated to have been presented as per the requirement of rule 3, on 6.6.94 as no interest of the respondent (i.e. the present petitioner) was effected, as the petition was within time. It is not necessary to decide this aspect of the matter. 9. In view of the admitted position of the fact that the election petition was not accompanied by such number of certified copies of the election petition as there were respondents, which is a mandatory requirement the same cannot be treated to have been validly presented as per the requirement of rule 3. 10. So far as the deposit of security amount is concerned, the security deposit of Rs. 50/- only was made on 29.6,94 which is the date subsequent to the period of limitation provided for filing election-petition. 11. 10. So far as the deposit of security amount is concerned, the security deposit of Rs. 50/- only was made on 29.6,94 which is the date subsequent to the period of limitation provided for filing election-petition. 11. Learned State counsel submitted that after coming into force of the M.P. Panchayat Raj Adhiniyam, 1993, no rules were framed under the new Act and by virtue of the provisions of section 25 of the M.P. General Clauses Act, 1957, the rules framed under a repealed Act shall continue to remain in force on the enactment of a new Act until new rules are framed. Accordingly the rules Madhya Pradesh Panchayats (Election Petition, Corrupt Practices and Disqualification for Membership) Rules, 1991 framed under section 93 (1) read with section 119 Madhya Pradesh Panchayat Raj Adhiniyam, 1990 (No. 13 of 1990) were made applicable with effect from 25.1.92 and according to rule 7 of the said Rules, Rs. 50/- was substituted by Rs. 250/-. So far as the fact that the rules were made applicable with retrospective effect i.e. from 25.1.91 is concerned, it has no relevance. Here it is not the question of retrospectivity. The question is whether the security amount of Rs. 50/- or Rs. 250/- was deposited within the period of limitation for challenging the election. Learned State counsel also pointed out that the matter would be governed by old rules anterior to the coming into force of the new Act as at that time, the new rules had not been framed and under the old rules, the security amount was provided under the aforesaid Adhiniyam for applicability of the old rules and in that regard the learned State Counsel relies on section 130 (1) proviso of the Act which says that the rules framed under the repealed Act, in so far as they immediately on coming into force of the new Act, are not inconsistent with the provisions of the Act, shall continue to be in force and accordingly, unless and until they are superseded by any special order or notification, the old rules shall prevail. So according to it, at the relevant time the old rules would be applicable to the election petition, filed under section 122 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993. So according to it, at the relevant time the old rules would be applicable to the election petition, filed under section 122 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993. On the point of deposit of security amount, the learned counsel for the petitioner relied on Lalaram v. Laxman Singh, 1996 (II) MPWN 132, Mohan v. Shankar Lal, 1996 (I) MPWN 126 and Babulal and another v. State of M.P. and others, 1985 JLJ 644 for the purpose that for such defect, the petition was liable to be dismissed at any stage. 12. Learned. counsel for the respondent relying on the proviso to rule 8 of the Rules, which says, that "provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard." So far as the matter at the stage of the Election Tribunal is concerned, the election petition was not dismissed and therefore there was no question of giving any opportunity of being heard by the election tribunal, to the election-petitioner. Before this Court, adequate opportunity is given to the election-petitioner. 13. In view of the mandatory requirement of rule 8 of the aforesaid Rules, the election petition was not competent and was liable to be dismissed. The writ petition is accordingly allowed. The impugned order is set aside. The election petition is dismissed. The petitioner's status to continue as elected Sarpanch of Gram Panchayat Chachar is restored. In the facts and circumstances of the case, no order as to costs.