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1997 DIGILAW 53 (RAJ)

Bimla v. Mata Deen

1997-01-10

SHIV KUMAR SHARMA

body1997
JUDGMENT 1. :- This appeal arises from the judgment dated September 4, 1996 of the Additional District Judge, Khetri, Distt. Jhunjhunu, whereby the Election Petition, filed by the petitioner appellant (for short the petitioner) under Section 34 read with section 36 of the Rajasthan Municipalities Act, 1959 (for short the Act 1959) was ordered to be dismissed at the outset. 2. The facts are fairly not in dispute. The admitted position is that the petitioner filed an election petition on September 27, 1995 against the respondent Mata Deen (for short the respondent) and the Returning Officer, under sections 34 and 36 of the Act 1959 in the court of District Judge, Jhunjhunu, in the matter of election results announced by the Returning Officer on August 28, 1995 relating to Ward No. 7. Municipal Board Khetri Distt. Jhunjhunu. An amount of Rs. 200/- as security for cost, was deposited by the petitioner vide challan No. 158 dated September 26, 1995 in accordance with Section 53 of the Act 1959. 3. Election of Ward No. 7 had taken place on August 27, 1995 and after counting of votes on August 28, 1995 the result was announced. A look at the result sheet goes to show that as many as 233 votes were polled in favour of the respondent whereas total votes polled in favour of the petitioner were 252 and the respondent was declared elected by a margin of one vote only. The petitioner questioned the election of the respondent on the ground that in fact the petitioner had received a majority of valid votes. The petitioner prayed that the election of the respondent be declared void and the petitioner be declared duly elected. 4. The respondent on January 25, 1996, raised preliminary objection by filing an application before the court of the Additional District Judge, Khetri where the election petition was transferred by the District Judge Jhunjhunu. 5. Following preliminary objections were raised by the respondent: (i) An amount of Rs. 200/- as security for cost ought to have been deposited by the petitioner for each of the respondents, whereas the petitioner had only deposited Rs. 200/- which was for one respondent only. (ii) The copy of the election received by the respondent did not bear attestation as "true and correct copy of the original" (iii) The election petition was not legally verified. 200/- which was for one respondent only. (ii) The copy of the election received by the respondent did not bear attestation as "true and correct copy of the original" (iii) The election petition was not legally verified. (iv) The officer against whom the allegations of discrimination and corruption were levelled in the election petition, was not impleaded as party. (v) The election petition was barred by limitation. (vi) Copy of the election petition was not sent to the District Collector. 6. The learned Additional District Judge Khetri vice impugned judgment allowed the application of the respondent and dismissed the election petition of the petitioner at the outset on the grounds, that the copy of the election petition did not bear the endorsement of the "true and correct copy" and it was not presented within limitation of 30 days. 7. It is well settled that an election petition can be dismissed at the outset under order 7 rule 11 of the Code of Civil Procedure when it does not disclose cause of action. Such is not the situation in the instant case. Therefore I proceed to examine the relevant provisions of the Act of 1959. 8. Sub-section (3) of Section 44 of the Act of 1959 provides that the trial judge shall dismiss an election petition which does not comply with the provisions of section 36 or section 37 or section 53 of the said Act. (Emphasis added) 9. Section 36 of the Act of 1959 reads thus : "(1) An election petition shall be presented within thirty days from the date on which the result of the election in question is announced by the returning officer. (2) The petition may be presented by any candidate at such election or by any elector of the ward." 10-11. Section 36 of the Act of 1959 reads thus : "(1) An election petition shall be presented within thirty days from the date on which the result of the election in question is announced by the returning officer. (2) The petition may be presented by any candidate at such election or by any elector of the ward." 10-11. Section 37 of the Act of 1959 provides that:- "A petitioner shall joint as respondents to his:- (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition." Section 53 of the Act of 1959 reads as under:- "Security for costs : (1) A person filing an election petition shall enclose with the petition a Government Treasury receipt showing that a deposit of two hundred rupees if the case of a City or of one hundred rupees in the case of any other municipality has been made by him in a Government Treasury in favour of the Judges as security for the costs of the petition. (2) During the course of the trial of an election petition, the judge may at any time call upon a petitioner to give such further security for costs as he may direct and may, if, the petitioner fails to do so, dismiss the petition." 12. First I take up the objection with regard to limitation. Indisputedly the result of election was announced on August 28, 1995 and election petition was filed on September 27, 1995. As per section 36 of the Act of 1959, the election petition had to be presented within thirty days from the date on which the result of the election was announced by the returning officer.13. Now, the core question which arises for determination is as to whether the 'day' on which result of election was announced shall be excluded in computing the period of limitation or not ? Now, the core question which arises for determination is as to whether the 'day' on which result of election was announced shall be excluded in computing the period of limitation or not ? In order to decide this controversy, a look at the provisions contained in section 12(1) of the Limitation Act is necessary which provides that in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.14. In Ram Nandan Singh v. Ramadhar Singh and others AIR 1966 Patna 297 Full Bench of the Patna High Court has observed that use of the word "from" the date of declaration of the result of the election, according to the General Clauses Act has to be interpreted as indicating the exclusion of the date of declaration of the election in counting the period of "thirty days". (Emphasis supplied,15. In view of the provisions contained in Section 12(1) of the Limitation Act and the ratio of Ram Nandan Singh's case (supra) the day of August 28, 1995 on which the result of election was announced ought to have been excluded but the learned trial judge did not care to read section 12(1) of the Limitation Act and dealt with the Full Bench decision of Patna High Court in the following manner : HINDI MATTER 360981 (Contention of Learned counsel for the petitioner that the date for filing the election petition shall be reckoned from the next day of declaration of the result, is devoid of any force. In this connection the learned counsel has placed reliance on a ruling of Hon'ble Patna High Court but the said ruling is of no help to the petitioner as it is related to Panchayat Election) 16. It has shocked my judicial conscience that a judicial officer of the rank of an Additional District Judge, has dealt with the Full Bench decision of Patna High Court like a layman. At least his much is expected from him to go through the facts and the ratio of the citation. He ought to have distinguished the ruling logically. It appears that learned Judge did not spare time to read it. Also, there is a complete silence in the impugned judgment about section 12(1) of the Limitation Act. At least his much is expected from him to go through the facts and the ratio of the citation. He ought to have distinguished the ruling logically. It appears that learned Judge did not spare time to read it. Also, there is a complete silence in the impugned judgment about section 12(1) of the Limitation Act. The reasons for not discussing section 12(1) in the impugned judgment, are best known to the learned trial judge.17. So I am of the considered view that the election petition was filed by the petitioner within a period of limitation prescribed in section 36 of the Act of 1959. The petitioner and the respondents were the only candidates, who contested the election, as such provisions of section 37 of the Act of 1959 have also been complied with. Security for costs was deposited by the petitioner in accordance with the provisions of section 53 of the Act of 1959. Therefore the election petition could not have been dismissed under sub-section (3) of section 44 of the Act of 1959.18. Provisions contained in Section 81(3) of the Representation of People Act provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission and every said copy shall be attested by the petitioner under his own signature to be a true copy of the petition. No compliance of this provision entail the dismissal of election petition under section 86 of the Representation of People Act. Case laws, Shipra v. Shanti Lal AIR 1995 Rajasthan 50 and Mithilesh Kumar v. Vidya Nath AIR 1984 Supreme Court 305 relate to the provisions of the Representation of People Act and are not applicable in the instant case.19. The framers of the Act 1959 have not borrowed the provisions of section 81(3) and 86 of the Representation of People Act. As already stated the election petition under the provisions of the Act of 1959 can either be dismissed at the outset under Order 7 Rule 11 Civil Procedure Code or under the provisions of sub-section (3) of Section 44 of the Act of 1959. Provisions of sections 81(3) and 86 of the Representation of People Act are not applicable in the election petition arises from the Act of 1959.20. Provisions of sections 81(3) and 86 of the Representation of People Act are not applicable in the election petition arises from the Act of 1959.20. In the premises aforesaid, the judgment of the trial judge is unsustainable, Accordingly, I allow the appeal and set aside the judgment dated September 4, 1996 passed by the Additional District Judge Khetri with costs.21. The petitioner has also filed a transfer application under section 24 of the Code of Civil Procedure for transferring the election petition from the Court of Additional District Judge to any other competent court. In this regard I may like to observe that for the purpose of section 24 Civil Procedure Code, the Additional District Judge is subordinate to the District Judge and the aforesaid application is not maintainable in this court, therefore I reject it, However, if such application is filed before the learned District Judge Jhunjhunu, it shall be considered keeping in view the observations made in this judgment.22. The record of the case be sent forthwith and parties are directed to appear before the trial judge on January 29, 1997. The election petition shall be tried as expeditiously as possible and endeavour shall be made to comply the provisions contained is sub section (11) of section 41 of the Act of 1959.Appeal allowed; transfer application rejected. *******