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Madhya Pradesh High Court · body

2007 DIGILAW 1011 (MP)

LATA PATLE v. SMT. KAMLESH GAUTAM

2007-09-19

R.S.GARG, R.S.JHA

body2007
Judgment ( 1. ) THE appellant/petitioner being aggrieved by the order dated 10-5-2007 passed by the learned single Judge in Writ Petition No. 15573/2006 whereby the writ application filed by the petitioner was dismissed, is before this court with a submission that the learned single Judge without appreciating the facts has wrongly rejected the writ petition. ( 2. ) THE short facts necessary for the disposal of the present appeal are that the petitioner Smt. Lata Patle and the contesting respondent Smt. Kamlesh gautam contested the election to the office of the Sarpanch, Gram Panchayat, chimnakhari. The respondent was declared returned candidate, the petitioner being aggrieved by the result of the election challenged the result of the declaration by filing election petition under section 122 of the M. P. Panchayat and Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the act) on various grounds. In that writ petition Smt. Lata Patle made an application for recounting of the votes. It is to be noticed that the election petition was filed on 10-2-2005, the Presiding Officer after going through the election petition and the documents annexed with it directed that notices be issued to the returned candidate. Notices were accordingly issued. The summons which were issued to the present respondent came back with the endorsement made by the process server that the summons were served along with the copy. The summons issued by the concerned Tribunal directed that the matter would be taken up for hearing on 7-3-2005. The matter was taken up on 7-3-2005 but however, as the Presiding officer was not available the matter was adjourned. The matter was again taken up on 28-3-2005 and 11-4-2005 but as the Presiding Officer was not available the matter was adjourned. On 13-4-2005 the learned Presiding Officer recorded that despite service of the notice there was no representation from the side of the respondent. He accordingly ordered that the matter be proceeded ex parte. In the same proceedings he again observed that it appeared from the records that summons were not served upon the- respondent. He accordingly ordered that summons be issued afresh. Notices were issued for 18-4-2005. As 18-4-2005 was declared a holiday the matter was taken up on 20-4-2005. The respondent did not appear in the Court but however her husband appeared and obtained copy of the election petition and other documents. He accordingly ordered that summons be issued afresh. Notices were issued for 18-4-2005. As 18-4-2005 was declared a holiday the matter was taken up on 20-4-2005. The respondent did not appear in the Court but however her husband appeared and obtained copy of the election petition and other documents. The written statement came to be filed on 25-4-2005. It is to be noted that in the written statement dated 25-4-2005 any objection in relation to non-deposit of the security cost or non-verification of the copy of the petition served upon the present respondent were not raised. On 26-5-2005 under an independent application objections relating to non-deposit of security cost and non-verification of the copies served on the respondents were raised. It appears that the learned Election Tribunal without taking into consideration the objections raised by the parties and even without casting issues directed that the ballot papers be re-counted. It is not in dispute before us that before the respondent could file Writ Petition No. 4237/2005 the ballot papers were re-counted and the result of recounting of the votes were declared in favour of the present petitioner. Writ Petition No. 4237/2005 filed by Smt. Kamlesh gupta (present respondent) was allowed by this Court on 20-7-2005 observing that the order passed by the Election Tribunal could not be allowed to stand. The court after setting aside the order remanded the matter back to the Election tribunal with a further direction that if objection with regard to non-compliance of the mandatory provisions were raised then issue be framed in that regard. It appears that after remand, the Election Tribunal did not cast the issues on the question of maintainability of the election petition. It also appears that the parties probably did not crave indulgence of the Election Tribunal to the fact that under the directions of the High Court it was required to cast such issues. The parties joined the issue and proceeded with the evidence. The learned trial Court after recording the evidence and hearing the parties held that present was a fit case for recounting. It accordingly allowed the writ application and held that the declaration of the result in favour of the present respondent was illegal. The respondent again being aggrieved by the order dated 31-10-2005 passed by Sub divisional Officer, Revenue, Barghat, District Seoni, came to this Court in Writ petition No. 14243/2005. It accordingly allowed the writ application and held that the declaration of the result in favour of the present respondent was illegal. The respondent again being aggrieved by the order dated 31-10-2005 passed by Sub divisional Officer, Revenue, Barghat, District Seoni, came to this Court in Writ petition No. 14243/2005. The matter was heard and finally disposed of on 16-5-2006. After discussing the entire material available on the record this Court observed that the Election Tribunal was unjustified in not casting necessary issues which related to non-compliance of Rule 3 (2) and Rule 7 of the Election petition Rules. The Court accordingly framed the following two issues and remanded the matter back to the Election Tribunal for decision afresh after recording further evidence of the parties. Issue No. 1 : whether, the copy of the election petition supplied to Smt. Kamlesh was in accordance with Rule 3 (2) of Election Petition Rules? issue No. 2 : whether, the election petitioner Smt. Lata Patle deposited the security amount as required under Rule 7 of the Election Petition Rules? ( 3. ) THE learned Court below, in accordance with the directions of this Court granted appropriate opportunity to the parties to lead evidence. The respondent besides examining her own self examined her husband in support of the objections. The present petitioner Smt. Lata Patle in addition to her examination examined one Sitaram Thakur working in the office of the Sub Divisional officer, Revenue, Barghat. After hearing the parties the learned Election tribunal rejected the objections raised by the respondent in relation to non-deposit of the security cost and non-compliance of Rule 7 of the Election Petition rules. It however held that the copy of the election petition supplied to the present respondent was not in accordance with Rule 3 (2) of the Election Petition rules. As a consequence of the findings it dismissed the election petition. The election petitioner being aggrieved by the order dismissing the election petition filed W. P. No. 15573/2006, after rejection of the same, is now before this Court. ( 4. As a consequence of the findings it dismissed the election petition. The election petitioner being aggrieved by the order dismissing the election petition filed W. P. No. 15573/2006, after rejection of the same, is now before this Court. ( 4. ) SHRI P. C. Paliwal, learned counsel for the petitioner after taking us through Rules 3, 4, 7 of the Election Petition Rules and the proceeding dated 10-2-2005 recorded by the Presiding Officer of the Election Tribunal submitted that even before directing issue of notices to the present respondent the Presiding officer did not find any defect and under these circumstances nobody can say that the petition was suffering with fatal defects under Rule 3 or Rule 7 of the election Petition Rules. It is also submitted by Shri Paliwal that in accordance with Rule 3, copies were filed and it appears that the said copies were sent to the respondent along with summons which were issued on 26-2-2005. Placing reliance upon the endorsement made on the summons which reads "yachika Prati sanlagn Hai" (copy of the petition is enclosed ). He submitted that if these summons were served upon the respondent and such is the endorsement made by the bailiff/process server then there is no good reason to hold that authenticated verified copy was not filed with the election petition. In relation to non-deposit of the security cost it was submitted that the security cost was deposited on 10-2-2005 but the clerk of the S. D. O. being under some confusion did not issue necessary receipts and after receiving the instructions from the S. D. O. if he had issued the receipt on 26-2-2005 then the same would not come in the way of the election petitioner. He submitted that from the statements of Clerk of the S. D. O. it would clearly appear that a sum of Rs. 500/- in cash was deposited with the s. D. O. but the receipt was issued on 26-2-2005. He submits that even otherwise the Election Tribunal has held that there was no violation of Rules. ( 5. ) SHRI Vipin Yadav, learned counsel for the respondent on the other hand submitted that the summons issued on 26-2-2005 were never served upon the present respondent. He submits that even otherwise the Election Tribunal has held that there was no violation of Rules. ( 5. ) SHRI Vipin Yadav, learned counsel for the respondent on the other hand submitted that the summons issued on 26-2-2005 were never served upon the present respondent. He also submitted that in absence of the signatures of the present respondent under the caption copy of notice received or served it cannot be held that summons were served. He also submitted that from the observations made by learned Presiding Officer it would clearly appear that the summons issued on 26-2-2005 were not served on the respondent. He also submitted that in accordance with Rule 3 if copies with authentication or verification are not supplied along with the election petition the election petition is to be rejected at the threshold. It is also contended by him that if the security cost was deposited on 10-2-2005 then there was no reason for the officer or clerk of the office not to issue the receipts. He submitted that to remove the defects the security was deposited at a later stage. ( 6. ) WE have heard the parties at length and have gone through the provisions of law, the objections raised by the parties and the findings recorded by the Tribunal and the order passed by the-learned single Judge. ( 7. ) THE M. P. Panchayats (Election Petitions, Corrupt Practices and disqualification for Membership) Rules, 1995 were framed by the State government under section 95 (1) read with sub-sections (1) and (3) of section 122 of the Act. Rules 3, 7 and 8 which are relevant for this writ appeal read as under : 3. Presentation of election petition - (1) An election Petition shall be presented to the specified Officer during the office hours by the person making the petition, or by a person authorized in writing in this behalf by the person making the petition. (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. 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. 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. 8. Procedure on receiving petition - If the provisions of rule 3 or rule 4 or rule 7 have not been complied with, the petition, shall be dismissed by the specified officers : provided that the petition shall not be dismissed under this rule without giving the petitioner an opportunity of being heard. Sub-rule (2) to Rule 3 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 his own signature to be a true copy of the petition. Rule 7 provides that at the time of presentation of an election petition, the petitioner shall deposit a sum of Rs. five hundred as security and if there are more than one respondent/candidate then a separate deposit of an equivalent amount shall be made in respect of each such returned candidates. Rule 8 provides that if provisions of Rule 3, Rule 4 or Rule 7 of the Election Petition Rules are not complied with, the petition, shall be dismissed by the specified officers. The proviso appended to the rule however provides that the petition shall not be dismissed under the rules without giving petitioner an opportunity of being heard. Undisputedly this Court has held that observance of Rule 3, Rule 4 and Rule 7 is mandatory otherwise consequences as provided under Rule 8 would ensue. ( 8. ) IN the present matter it is to be seen that on 10-2-2005 the Presiding officer did not find any defect in the election petition. He did not say that the security was not deposited or the necessary verified copies were not filed. Instead he observed that along with the election petition necessary documents and affidavits were filed. ( 9. ) IN the present matter it is to be seen that on 10-2-2005 the Presiding officer did not find any defect in the election petition. He did not say that the security was not deposited or the necessary verified copies were not filed. Instead he observed that along with the election petition necessary documents and affidavits were filed. ( 9. ) IF under the scrutiny which was required to be made by the Presiding officer no wrong was found and there was no report of non-compliance of Rule 3 or Rule 7 of the Election Petition Rules then the burden would be extra heavy on the other side to prove that the proceedings recorded on 10-2-2005 were not in accordance with law or were recording incorrect facts. ( 10. ) IN the present matter the parties were allowed to lead evidence in support of their contention. Smt. Kamlesh Gautam the respondent stated before the Court that the copy of the petition received by her was not properly verified. However, in cross-examination she submitted that the copy was not received by her but her husband had received the copy. Firstly she said that when the copy was received by her husband Adhar Singh Gautam she was present but immediately thereafter she said that when the copy was supplied to her husband she was not present. She even stated in her statement that in her written statement dated 25-4-2005 she had already taken the plea that the verified copy of the election petition was not received. She was suggested that after the recounting when the results were declared and she lost, her husband changed the copy and filed a forged copy in evidence. Adhar Singh Gautam the husband of the respondent was also examined. He had filed the copy of the petition which was received by him. In the cross-examination he clearly admitted that on 20-4-2005 he informed his wife that the copy of the petition supplied to them was not properly verified and that along with the election petition the security cost was not deposited. ( 11. ) SITARAM Thakur, Assistant Grade III of Sub Divisional Officer, Barghat, appeared before the Court as a witness and submitted that the receipt was issued on 26-2-2005 and the entry in the ledger were made on 26-2-2005. If this was the sum total of the evidence then this would have been a different matter. ( 11. ) SITARAM Thakur, Assistant Grade III of Sub Divisional Officer, Barghat, appeared before the Court as a witness and submitted that the receipt was issued on 26-2-2005 and the entry in the ledger were made on 26-2-2005. If this was the sum total of the evidence then this would have been a different matter. In the cross-examination when he was put certain questions he started narrating facts which were not asked to him in examination-in-chief. He stated that the proceedings dated 10-2-2005 were recorded under the directions of the Presiding officer. He also stated that it was correct to say that a sum of Rs. 500/- was deposited in cash with the Tribunal. He also stated that the proceedings dated 10-2-2005 were not recorded by him under any pressure or force. He also stated that rs. 500/- was deposited in cash and as he was not knowing under which head the amount was to be deposited, the receipt could not be issued. Apart from that he also stated that prior to filing of this election petition some other election petitions were also filed and in the said petitions security cost was deposited in cash under the orders of the Presiding Officer. In each case the receipts were issued on 26-2-2005. If this was the statement of the witnesses in the cross-examination then one cannot be allowed to say that the cross-examination be ignored and the examination-in-chief only be relied upon. Cross-examination of a witness is an integral part of the statement of the witness. Any statement is to be read as a whole. One cannot be allowed to say that if the witness does not support the case and cause of the party in the examination-in-chief, then the statements made in the cross-examination should at all not been seen. ( 12. ) FROM the statement of Sitaram Thakur it would clearly appear that security cost was deposited in the case on 10-2-2005 and in accordance with the practice observed by the S. D. O. money was received in cash and the receipts to all election petitioners were issued on 26-2-2005. Rule 7 referred to above simply provides that at the time of presentation of an election petition, the petitioner shall deposit with the specified officer a sum of Rs. 500/- as security. Rule 7 referred to above simply provides that at the time of presentation of an election petition, the petitioner shall deposit with the specified officer a sum of Rs. 500/- as security. The rule does not say that such an election petitioner is bound and obliged to file a copy of the receipt along with the election petition. In a given case if the Presiding officer receives the security cost in cash and does not issue the receipt immediately thereafter, then for such a lapse or inaction on the part of the presiding Officer or his office, election petitioner cannot be allowed to suffer. The question of deposit or non-deposit of the security cost is being discussed by us in detail because, Shri Vipin Yadav, learned counsel for the respondent submitted that the findings recorded by the learned Election Tribunal in relation to non-compliance of Rule 7 were perverse and bad. ( 13. ) FOR the reasons stated aforesaid we must hold that the Court below was absolutely justified in holding that there was no violation of the Rule 7. ( 14. ) SO far as violation of rule 3 is concerned the Court below has in a very cursory and casual manner observed that the copy served upon the respondent was not duly verified, therefore. Rule 3 was not complied with. Rule 3 (2)referred to above, 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 his own signature to be a true copy of the petition. Requirement of the rule is that as many copies looking to the number of the respondents should be filed, every such copy shall be attested by the petitioner and the attestation shall be under the signature of the election petitioner with a clear say that the copy of the election petition is true copy of the original. ( 15. ) IN the present matter the present petitioner had stated on oath that along with the election petition she had filed the required copies. After receiving the petition along with the necessary documents when the Sub Divisional Officer made the scrutiny he did not find violation of Rule 3. ( 16. ( 15. ) IN the present matter the present petitioner had stated on oath that along with the election petition she had filed the required copies. After receiving the petition along with the necessary documents when the Sub Divisional Officer made the scrutiny he did not find violation of Rule 3. ( 16. ) FROM the summons dated 26-2-2005 it would clearly appear that the summons were issued along with a copy of the election petition. It is nobodys case that some other copy was supplied for issuing notices. We would be justified in holding that the copy which was filed by the election petitioner along with the election petition was sent along with the summons dated 26-2-2005. We are not ready and willing to hold that the endorsement made on the back of summons dated 26-2-2005 are wrong or bad. The present respondent does not say that the bailiff who had submitted the report had an axe to grind against the present respondent. There is a presumption of validity in favour of the official action taken by the public officers. Presumption is rebuttable but unfortunately in the present case the present respondent did not say that the bailiff, helped and assisted the present election petitioner to make such an endorsement. Even if such an allegation was made then too it was not to benefit the present election petitioner because fresh notices were directed to be issued and after the present respondent appeared in the Court copy were supplied to him by the Presiding officer. It is still a mystery who supplied additional copy to the Presiding Officer so that it could be supplied to the present respondent. It is however not in dispute before us that copy of the election petition was supplied by the Presiding Officer to the present respondent. The dispute still is that Ex. B2 (somewhere referred to as Ex. D2) was the copy supplied to the respondent or a copy of Ex. B2-C was supplied to the respondent. From the records it would be clear that the two copies are different, one bears the necessary endorsement and verification and the other does not. ( 17. ) SHRI Vipin Yadav, learned counsel for the respondent submitted that a comparison of the original election petition with Annexure B2-C would make it clear that Annexure B2-C is not photocopy of the original election petition. ( 17. ) SHRI Vipin Yadav, learned counsel for the respondent submitted that a comparison of the original election petition with Annexure B2-C would make it clear that Annexure B2-C is not photocopy of the original election petition. He submits that Annexure B2-C was later on concocted to suit the case and cause of the election petitioner. The submission made by the learned counsel for the respondent is without any foundation. Smt. Lata Patle the election petitioner never stated before the Court the Ex. B2-C was true photo copy of the election petition which was filed in the Court. She had stated that a true photo copy of ex. B2-C was supplied by the election petitioner to the present respondent. Supply of the copy to the respondent is to be found in Rule 9. Rule 9 simply says that the specified officer shall, as soon as may be, cause a copy of petition to be served on each respondent. Rule 9 does nowhere say that the copy required to be verified under Rule 3 is only to be served upon the respondent. If we take such a strict view of Rule 9 then the objection raised by the respondent must fail. However a juxtapose reading of Rule 9 with Rule 3 we must observe that the copies submitted under Rule 3 (2) must only be supplied to the party/respondent after they put in their appearance in the Court. In the present matter if along with the summons dated 26-2-2005 the verified copy was sent for service upon the respondents and later on assuming an ordinary copy was served upon the present respondent there would be no violation of Rule 3 because the necessary and required copies were once supplied along with the election petition. ( 18. ) EVEN otherwise from the facts it would clearly appear that the election petitioner had served a photo copy of Ex. B2-C and not a copy on which the respondent was placing reliance. The findings recorded by the Election Tribunal are contrary to record, bad and can be condemned as perverse. In view of discussion aforesaid we must quash the findings. We accordingly hold that the tribunal was not justified in holding that the election petition was liable to be dismissed for non-compliance of Rule 3 of the Election Petition Rules. ( 19. ) FOR the reasons stated aforesaid the writ appeal is allowed. In view of discussion aforesaid we must quash the findings. We accordingly hold that the tribunal was not justified in holding that the election petition was liable to be dismissed for non-compliance of Rule 3 of the Election Petition Rules. ( 19. ) FOR the reasons stated aforesaid the writ appeal is allowed. The order passed by the learned single Judge is set aside and the order passed by the learned Election Tribunal is quashed. The parties present before this Court shall appear before the learned Tribunal on 8-10-2007. It shall be the duty of the election petitioner to file a copy of this order to inform the Election Tribunal that it is required to decide the matter in accordance with the earlier directions given by this Court. The Election Tribunal shall decide the matter finally within 8 weeks from the date of appearance of the parties. ( 20. ) THE learned counsel for the State shall see that the original records are immediately dispatched so as to reach the learned Tribunal before the date fixed. ( 21. ) THE appeal is allowed. There shall be no order as to costs. Writ appeal allowed.