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Madhya Pradesh High Court · body

2006 DIGILAW 735 (MP)

Asha Bai v. Preeti Bai

2006-05-18

KRISHNA KUMAR LAHOTI

body2006
ORDER 1. The petitioner has invoked jurisdiction of this Court under Article 226 and 227 of the Constitution of India assailing the order dated 26.6.2005 passed by the Sub-Divisional Officer-cum-Prescribed Authority in Gram Panchayat Election Petition No. 3-A/98/2004-05 by which the Election Tribunal rejected the preliminary objections filed by the petitioner. 2. Facts in short, necessary for the decision of the present petition are as under: That, the petitioner is an elected Sarpanch of Gram Panchayat Kamti, Tahsil Gadarwara. She was declared as returned candidate on 19.1.2005 and the notification in this regard was issued on 30th January, 2005. Respondent No.1 Smt. Preeti was the nearest rival of the petitioner. She filed an election petition under section 122 of Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act') challenging the election of the petitioner. The petitioner on receiving notice of election petition, filed objections on 11.3.2005 (on page 18 of paper book) by which following objections were raised: (i) That the copy of the election petition supplied to the petitioner has not been verified by the election petitioner. (ii) That the election petitioner has not deposited the security amount Rs. 500/and in the order sheet reference of the receipt No. 3557 is not related to the respondent No.1. On the aforesaid grounds, it was prayed that the election petition be dismissed. 3. Respondent No.1 filed the reply and denied that the copy of election petition supplied to the petitioner was not duly attested copy by the respondent. That the security amount was duly deposited by respondent No.1 on 7.2.2005 of which receipt was issued by the concerned clerk, but the said clerk by mistake endorsed wrong receipt number in the order sheet. The receipt number relates to the security deposit of another case deposited on the same day and by mistake that receipt has been included in this case and the petitioner's security deposit receipt has been tagged with the case of Smt. Nandni Bai. On the aforesaid ground the application was contested. 4. The election Tribunal after hearing both the parties found: (a) That the copy supplied to the petitioner is duly attested by the election petitioner. Every page of the election petition is not required to be verified as true copy. In the election petition, the documents which had been supplied to the petitioner are duly attested by the election petitioner. 4. The election Tribunal after hearing both the parties found: (a) That the copy supplied to the petitioner is duly attested by the election petitioner. Every page of the election petition is not required to be verified as true copy. In the election petition, the documents which had been supplied to the petitioner are duly attested by the election petitioner. (b) That the security amount was deposited by the election petitioner on 7.2.2005 Rs. 500/- of which the receipt No.3557/02 was issued to the election petitioner. But because of the error of Court clerk, another receipt of Nandni Bai has been included in the file and the same number has been referred in the order sheet. This is a clerical error for which the election petitioner is not responsible. On 7.3.2003, other election petitions were also filed in which security of Rs. 500 was deposited. It appears that the error as such occurred because of this and the receipt of Nandni Bai was included in this file. The SDO on knowing this error issued warning to J.L. Koshti, Reader of the Court not to repeat this error in future. The SDO after considering the mistake directed the clerk to include the correct receipt in this election petition. Recording aforesaid, the preliminary objections raised by the petitioner were rejected. 5. This order is under challenge in this petition. 6. (a) The learned counsel for petitioner submitted that copy of the election petition supplied to the petitioner was not attested by the respondent as required by sub-rule (2) of rule 3 of Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafore referred to as 'Rules') and the security amount was not deposited as required under rule 7 of the Rules. The election petitioner failed to comply with the rule 3 (2) and rule 7 of the Rules so the election petition itself was liable to be dismissed under rule 8 of the Rules. The SDO has not properly appreciated the facts. Though the copy of election petition was signed by the election petitioner, but nowhere it was mentioned that it is true copy of the petition. Until and unless this fact finds place in the copy of petition, there is non-compliance of sub-rule (2) of rule 3 and the election petition was liable to be dismissed. Though the copy of election petition was signed by the election petitioner, but nowhere it was mentioned that it is true copy of the petition. Until and unless this fact finds place in the copy of petition, there is non-compliance of sub-rule (2) of rule 3 and the election petition was liable to be dismissed. Reliance is placed to a judgment of this Court in Shivdhari v. Jaduman [ 1998 (2) JLJ 183 = 1999 (1) MPLJ 291 ]. (b) That in this case, no application for recounting was made at the time of counting of votes before declaration of the result, but in the election petition, the petitioner has prayed for counting and such relief cannot be granted in view of the judgment of the apex Court in Ram Rati v. Saroj Devi [1997 (2) Vidhi Bhasvar 195 = 1997 AIR SCW 3111]. The election petition is based on the sole ground, in which, only the recounting is prayed. The election petition may be dismissed, in view of Ram Rati (supra). 7. (a) The learned counsel appearing for respondent No. 1 opposed the prayer and submitted that the true copy of the election petition duly signed by respondent No. 1 was served on the petitioner, it was not necessary on the part of respondent No. 1 to state true copy of each and every page of the election petition. The requirement of Rule is to attest the copy by the petitioner under her own signature to be a true copy of the petition. A photostat copy of the election petition was supplied to the petitioner which fulfills requirement of the law. Reliance is placed to the judgment of the Supreme Court in Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar and others [ (2005) 2 SCC 188 ], and a single Bench judgment of this Court in Radheshyam Agrawal v. Hariom Trading Co. [ AIR 1992 MP 168 ]. (b) The security amount was duly deposited by respondent No.1 before the Election Tribunal. The requirement is of deposit of the security amount and if the clerk wrongly gave particulars of another security deposit in this election petition, then it will not be a ground to dismiss the election petition. [ AIR 1992 MP 168 ]. (b) The security amount was duly deposited by respondent No.1 before the Election Tribunal. The requirement is of deposit of the security amount and if the clerk wrongly gave particulars of another security deposit in this election petition, then it will not be a ground to dismiss the election petition. (c) Though the election petition has been filed for recounting of the votes on certain grounds, but in Para 5 of the Election Petition, it has been very specifically pleaded that such prayer was made to the prescribed officer in writing, but he had refused to accept it and respondent No.1 was directed to file such an application to the Returning Officer at Saikheda. The petitioner then submitted an application to the Returning Officer, who also ignored the prayer of petitioner. In these circumstances, respondent No.1 has complied with the provisions and election petition cannot be dismissed on this ground. Reliance is placed to apex Court judgment in Sohan Lal v. Babu Gandhi [2002 (2) Vidhi Bhasvar 300 = 2002 AIR SCW 4803] and submitted that the judgment in Ram Rati (supra) has been overruled by the apex Court in this judgment. The contention of the petitioner has no force and this petition may be dismissed. 8. To appreciate rival contentions of the parties, firstly, the question of deposit of security amount may be seen. The security deposit is envisaged in rule 7 of the Rules which reads thus: "7. Deposit of security -- At the time of presentation of an election petition, the petitioner shall deposit with the specified officer a sum of Rs. five hundred as security. Where the election of more than one candidate is called in question, a separate deposit of an equivalent amount shall be required in respect of each such returned candidates. "The aforesaid provision provides that the election petitioner at the time of presentation of an election petition shall deposit with the specified officer a sum of Rs. 500/- as security. The petitioner duly deposited security amount as it finds place from the impugned order. "The aforesaid provision provides that the election petitioner at the time of presentation of an election petition shall deposit with the specified officer a sum of Rs. 500/- as security. The petitioner duly deposited security amount as it finds place from the impugned order. When at the time of presentation of the election petition security amount was deposited, the respondent No.1 has complied with rule 7 of the Rules, merely Reader or the Clerk of the Election Tribunal has wrongly mentioned the receipt number in the order sheet, by itself will not be a ground to dismiss the election petition for the non-compliance of rule 7 of the Rules. The dismissal of the election petition is envisaged under rule 8 which provides that if there is non-compliance of the rule 7, the election petition shall be dismissed by the specified officer. The aforesaid rule further provides that the petition shall not be dismissed under rule 8 without giving the petitioner an opportunity of being heard. This proviso specifically provides that before dismissal of an election petition, an opportunity of hearing, deserves to be extended to the election petitioner, so that the election petitioner may meet out the objection. If the election petitioner has deposited the security amount and the number of receipt in the order sheet, is wrongly mentioned, for this election petitioner cannot be penalised by the dismissal of the election petition. The Election Tribunal has rightly extended such an opportunity and on ascertaining fact it had arrived at a finding that the election petitioner has duly deposited the security amount and wrong receipt number has been mentioned by the Reader in the order sheet, the Tribunal was right in not dismissing the election petition on this ground because of any clerical error or error of the Court a litigant should not suffer. In this case, on the date when election petition was filed, various other election petitions were also filed and apparently incorrect particulars of receipt were made by the reader, which appears to be human error and on this ground, the election petition was rightly not dismissed. 9. In this case, on the date when election petition was filed, various other election petitions were also filed and apparently incorrect particulars of receipt were made by the reader, which appears to be human error and on this ground, the election petition was rightly not dismissed. 9. Now another question may be considered "whether because of non-filing of an application for recounting after counting of votes, such prayer cannot be accepted in the election petition." In this regard, now the law is well settled by the apex Court in Sohan Lal's case (supra), the apex Court overruled its previous judgment in Ram Rati and held thus: "13. In this case, as stated above, the appellant had been orally told that he had won. He only came to know that respondent No. 1 had been declared elected after the result was declared. At this stage, he could not have approached the Returning Officer for recount. The only remedy, therefore, available to the appellant was to file an Election Petition. 14. In view of section 122 and the rules, we are unable to agree with the ratio laid down in Ram Rati 's case. It is not correct to hold that, in an election petition, after the declaration of the result, the Court or Tribunal cannot direct recounting of votes unless the party has first applied in writing for recounting of votes: There is no prohibition in the Act or under the Rules prohibiting the Court or Tribunal to direct a recounting of votes. Even otherwise a party may not know that the recounting is necessary till after result is declared. At this stage, it would not be possible for him to apply for recounting to the Returning Officer. His only remedy would be to file an Election Petition under section 122. In such a case, the Court or the Tribunal is bound to consider the plea and where case is made out, it may direct recount depending upon the evidence led by the parties. In the present case, there was obvious error in declaring the result. We, therefore, held that the ratio laid down in Ram Rati 's case is not correct." 10. In this case, the case of the petitioner is that before the Presiding Officer, a prayer for recounting was made pointing out certain irregularities to the notice of the Presiding Officer. In the present case, there was obvious error in declaring the result. We, therefore, held that the ratio laid down in Ram Rati 's case is not correct." 10. In this case, the case of the petitioner is that before the Presiding Officer, a prayer for recounting was made pointing out certain irregularities to the notice of the Presiding Officer. The prescribed authority did not pay any heed to the aforesaid prayer and refused for the recounting. It appears that the petitioner tried to give a written application to him, but the prayer of the petitioner was not accepted and turned down. The petitioner was directed to approach to the Returning Officer at Saikheda where the petitioner approached and moved an application in writing, but it was overlooked. In this case petitioner made efforts to file application to the authorities in time, but it was not accepted. Merely on the ground that no written application was filed after counting, then, if the petitioner is denied an opportunity to make out a case for recounting, it will be injustice to the petitioner. The facts of the present case are similar to the facts of Sohan Lal 's case (supra) and the law laid down by the apex Court is fully applicable in the present case. 11. Now, the third question may be considered about attestation of copy which was supplied to the petitioner. Copy P-1 was supplied to the petitioner which bears the signature of the respondent No.1 on each page. On the first page, respondent No.1 has very specifically stated that it is a true copy and it bears her signature. Rule 3 (2) of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification For Membership) Rules, 1995, provides as under: "3. Presentation of election petition. -- (1) ......... (2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." The provision is very clear which provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under her own signature to be true copy of the petition. The requirement of the law is to supply a true copy of the petition to the respondents. If respondent No.1 had supplied a copy of election petition under her own signature, it is the sufficient compliance of the rule. Photocopy of the election petition is supplied to the respondent. The respondent ought to have shown that the copy supplied to him was not the correct true copy of the petition. Until and unless, some prejudice is shown, merely not putting the word 'true copy' of the election petition will not be a ground to dismissed the election petition. If the Rule has been complied with substantially, then on tills technicality, the election petition cannot be dismissed. The apex Court in Chandra Kant's case considering this question held thus:- "29. The High Court found that after the prayer clause at internal P.10 of the election petition, above the word petitioner and beneath the verification there was no signature of the election petitioner above the word "petitioner" and held that the copy of the election petition would show that the election petition was neither signed and verified nor was it attested before any authority. The High Court also found that there was no endorsement of the officer before whom the election petitioner had signed. It was also found that there was absence of signature of the advocate who had identified the election petitioner. The High Court further found that although an affidavit was filed by the appellants but the copy of the election petition however did not show that the affidavit was affirmed by the election petitioner and, there was also no signature of the election petitioner above the word "deponent". Accordingly the High Court held that the copies of the election petitions on which reliance was placed by respondent 1 were found to be not true copies of the election petitions that were filed. In our view, the defects as shown above would not entail the High Court to dismiss the election petition under section 86 of the Act. Section 81 (3) has two parts -- the first part relates to filing of as many copies of the election petitions as that of the number of respondents in the same. The second part is that copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Section 81 (3) has two parts -- the first part relates to filing of as many copies of the election petitions as that of the number of respondents in the same. The second part is that copy shall be attested by the petitioner under his own signature to be a true copy of the petition. In our view, the second part of section 81 (3) of the Act requires that every such copy should be attested by the election petitioners under their own signature to be true copies. Second part of section 81 (3) of the Act, in our view, is satisfied if the copy is attested by the election petitioner to be true copies of the election petitions under their own signature. In our view, the defects as noted above cannot lead us to hold that the election petitions should be rejected for non-compliance with section 81 (3) of the Act as copies served on respondent 1 cannot be treated to be "true copies" within the meaning of the second part of section 81 (3). 30. The High Court held that the election petitions were liable to be rejected on a finding that the abovenoted defects were vital in nature and therefore there was total non-compliance with section 81 (3) of the Act. In our view, even the defects alleged as aforesaid in the election petitions could not be held to be vital in nature and thereby did not entail the High Court to dismiss the election petitions at the preliminary stage for non-compliance with section 81 (3) of the Act. Let us now examine whether the election petitions were liable to be rejected for the defects shown above. 31. As noted herein earlier, section 81 (3) postulates that every copy of the election petition shall be attested by the election petitioner under his own signature to be a true copy of the petition. From a bare perusal of the defects which have been referred to herein earlier, we can safely conclude that such defects cannot be said to be of vital nature. From a bare perusal of the defects which have been referred to herein earlier, we can safely conclude that such defects cannot be said to be of vital nature. According to respondent 1, (1) there was no signature of the election petitioners at P.10 of the petitions after the prayer clause and verifications, (2) the stamp in respect of the swearing of the affidavit was also absent on the copy of the election petitions, and (3) the affidavit accompanying the petition also does not bear the signature of the election petitioners. 32. The Supreme Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore held as follows: "When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word 'petitioner' was not necessary." 33. The principles laid down as aforesaid were also followed in Anil R. Deshmukh v. Onkar N Wagh. So far as the second defect namely the stamp in respect of the swearing of the affidavit was absent on the copy of the petition is concerned, we are of the view that mere omission to stamp in respect of the swearing of the affidavit would not at all be material when each and every copy of the petition was attested by the election petitioners. Reliance in this connection may be placed on the decision of this Court in the case of Ram Prasad Sharma v. Mani Kumar Subba. Similar is the position in respect of defect (3) from the record it appears that on each and every page a handwritten attestation in ink under the signature of the election petitioner was made by the election petitioners. Therefore, mere omission to sign by the election petitioners in the affidavit accompanying the petition would not also be material. From the above, we can only conclude that such defects in the copies of the election petitions cannot lead us to reject the election petitions. 34. Even otherwise, the election petitions ought not to have been rejected by the High Court for non-compliance with section 81 (3) of the Act. From the above, we can only conclude that such defects in the copies of the election petitions cannot lead us to reject the election petitions. 34. Even otherwise, the election petitions ought not to have been rejected by the High Court for non-compliance with section 81 (3) of the Act. What should be the meaning of "true copy" in section 81 (3) of the Act was considered by this Court in Shipra (Dr.) v. Shanti Lal Khoiwal in which it was held that the defects of the aforesaid nature were not curable, and therefore, the election petition was liable to be dismissed on that ground. This decision of the Supreme Court, namely, Dr. Shipra case was doubted in a latter decision in the case of T.M. Jacob v. C. Poulose and the matter was referred to the Constitution Bench of this Court. The Constitution Bench in T.M. Jacob case held: "It is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of section 81 (3) of the Act with the consequences under section 86 (1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under section 86 (1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard-and-fast formula can be prescribed. The tests suggested in Murarka Radhey Shyam case are sound tests and are now well settled. We agree with the same and need not repeat those tests. Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of section 86 (1) of the Act for alleged non-compliance with the last part of section 81 (3) of the Act and that there had been substantial compliance with the requirements of section 81 (3) of the Act in supplying 'true copy' of the affidavit to the appellant by the respondent." (Emphasis in original) 35. The difference of opinion was settled by the Constitution Bench in Jacob case by enunciating the principles as noted hereinabove. We have carefully examined the defects as noted herein earlier and on a careful examination of the defects we cannot be persuaded to the view that the defects in the present case also are material or it was vital in nature or the absence of stamp of attestation could be treated to be a ground for rejection of the election petitions under section 81 (3) of the Act. It may be mentioned herein that the decision of this Court in Anil R. Deshmukh case was approved by the Constitution Bench and in which it already distinguished the case of Dr. Shipra. It must not be forgotten that in the Constitution Bench decision of this Court, it was evident that: "(a) the expression 'copy' in section 81 (3) of the Act means a copy which is substantially the same as the original, variation if any form the original should not be vital in nature or should not be such that can possibly mislead a reasonable person in meeting the allegation; (b) if the copy differs in material particulars from the original the same cannot be cured after the period of limitation." The same principle was enunciated following a Constitution Bench's decision of this Court in T. Phungzathang v. Hangkhanlian. In this decision also it was held that the defects indicated in these cases for which dismissal of the election petition was sought for did not attract section 86 (1) of the Act for dismissal of the election petitions for non-compliance with section 81 (3) of the Act. For the reasons aforesaid and applying the principles laid down in the aforesaid decisions of this Court, we are of the view that the High Court ought not to have rejected the election petitions for non-compliance with the provisions of section 81 (3) of the Act as the defects shown by respondent 1 cannot be said to be fatal and the copies which were alleged to have been served or supplied to respondent 1 were wholly and substantially the same as the original. That apart, it is an admitted position, as noted herein earlier, true copies of the election petitions were duly served or supplied to respondent 1. That apart, it is an admitted position, as noted herein earlier, true copies of the election petitions were duly served or supplied to respondent 1. The question that was raised by the learned counsel for respondent 1 before us was whether subsequent supply of such true copies on respondent 1 could be treated to be a sufficient compliance with section 81 (3) of the Act. Apart from the conclusions made hereinbefore, we are also of the view that in view of the decision of this Court in Anil R. Deshmukh v. Onkar N. Wagh this question needs to be decided in favour of the appellant and against respondent 1. In Para 17 of the aforesaid decision this Court observed as follows: "We have already referred to the fact that even before arguments were heard on the preliminaly objection by the High Court in this case, the true copies of the affidavits had been served on the first respondent and his counsel. In the facts and circumstances of this case, we have no doubt that there was sufficient compliance with the provisions of section 81 (3) read with section 83 (1) (c) of the Act even if it could be said that the copies served in the first instance on the first respondent were not in conformity with the provisions of the Act." (Emphasis supplied) The apex Court held that sufficient compliance of the aforesaid provision is enough. Where the defaults in copies were curable/non-vital in nature the election petition cannot be dismissed at the threshold for the non-compliance of this rule. If the copies are attested by the election petitioner under her own signature, the defect pointed out that each page requires to be written as true copy, neither vital nor fatal in nature so as to warrant dismissal of the petition at the threshold. In this case, the copy supplied was photostat copy and thereby the same as of the original and could not be treated to be not true copy within the meaning of rule 3 (2) of the Rules. In this case, the copy supplied was photostat copy and thereby the same as of the original and could not be treated to be not true copy within the meaning of rule 3 (2) of the Rules. In the case, when the petitioner is unable to state anything that the copy of the election petition supplied to her was not the true copy of the original or any prejudice has been caused to her, on this ground, the election petition cannot be dismissed~ If every page of the election petition is signed, merely non mentioning of the words 'true copy' at the end of election petition will not be a fatal. Respondent No.1 on the first page of the election petition has specifically stated that it is true copy and put her signature. In the opinion of this Court, it is sufficient compliance and on this ground, her petition cannot be dismissed. 12. In the case of Rameshwar Dayal (supra), a similar question arose before this Court in which it was held thus:- "8. Before examining other decision cited at the Bar, on the basis of the holding in Kamalam ( AIR 1978 SC 840 ) (supra) that the signature placed by the election petitioner at the foot of the copy of the affidavit was sufficient compliance of the provisions contained in S. 81 (3), I am inclined to dispose of Shri Shinde's objection relating to signatures of the election petitioner not being made in token of attestation on certain documents accompanying the election petition. In the instant case, it is not disputed that the copy of the affidavit furnished along with the copy of the election petition to the respondents bears the signature of the election-petitioners. As held by their Lordships, it is no requirement of law that the signature has to be made in conjunction with such endorsement as "Attested True Copy". As their Lordships have held, the requirement contemplated is of a "Signature" only and it is even not that the same should be made at any particular space in the copy of the election petition. Indeed, the requirement is of the "original signature" of the election petitioner by which he expresses his intention of authenticating the copy. As their Lordships have held, the requirement contemplated is of a "Signature" only and it is even not that the same should be made at any particular space in the copy of the election petition. Indeed, the requirement is of the "original signature" of the election petitioner by which he expresses his intention of authenticating the copy. I would, therefore, hold reliance of Shri Shinde on Sharif-ud-din [ AIR 1980 SC 303 ] (supra) to be misonceieved and inappropriate because in that case, the signature was not of the election-petitioner. The Court sustained objection of the respondent based on noncompliance of S. 81 (3) on the ground that the copies served on the respondent bore that endorsement.... "Attested True Copy, Pyarelal Handu, Advocate". Evidently, even the words "Attested True Copy" failed to act as the magic wand. Indeed, most cetegorical1y in Subbarao [ AIR 1964 SC 1027 ] their Lordships held that absence in the copy of a note to the effect that it was a "True Copy" could not detract the copy from being a true copy. I reiterate that S. 81 (3) does not require copy of each and every paper filed along with election petition for service on the respondents, to be signed by the election petitioner and that the canvassed requirement of any note to be appended to the signature of the copies served (viz. "True Copy", is wholly imaginary and unwarranted. " 13. In the present case, respondent No.1 has substantially complied with the rule 3 (2) and the defect was not of such nature which may entail dismissal of the election petition under rule 8 of the Rules. The SDO has rightly turned down the objections raised by the petitioner in which there is no jurisdictional error warranting interference of this Court. This petition is without merit and is dismissed with cost.