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Madhya Pradesh High Court · body

2009 DIGILAW 1091 (MP)

Babulal Verma v. Additional Collector, Chhindwara

2009-09-03

R.S.JHA

body2009
ORDER 1. The petitioner has filed this petition assailing the legal validity of the order dated 10.1.2007, passed by Additional Collector, Chhindwara whereby the election petition filed by the petitioner assailing the election of the private respondent as President of Janpad Panchayat Chourai, District Chhindwara has been dismissed on account of non-compliance of the provisions of rule 3(2) of the Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership ) Rules, 1995 (hereinafter referred to as the 'Rules of 1995'). 2. The brief facts leading to filing of the present petition are that the respondent No.2 had contested and was declared the returned candidate for the post of President of Janpad Panchayat Chourai, District Chhindwara in the election which took place on 14.2.2005. The petitioner being aggrieved by the election of the respondent filed an election petition under the provisions of the Rules of 1995 before the prescribed authority. The reply was filed, matter was heard and, thereafter, written arguments were filed by the parties. The Election Tribunal, after hearing the parties, dismissed the election petition filed by the petitioner holding that the petition was filed in violation of the mandatory provisions of rule 3(2) of the Rules of 1995. 3. It is submitted by the learned counsel for the petitioner that a defect of attestation is curable if it is established that there is substantive compliance of the provisions. In support of his submission, the learned counsel has relied upon judgments of the Supreme Court in the case of T. Phunathang v. Hangkhanlian and others [ AIR 2001 SC 3924 ], and Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar and others [ (2005)2 SCC 188 ]. 4. Per contra, it is submitted by the learned counsel for the respondent No.3 that the Election Tribunal has rightly dismissed the petition filed by the petitioner on account of non-compliance of the provisions of rule 3(2) of the Rules of 1995 as the said rule is mandatory and non-compliance of the same would result in dismissal of the petition as prescribed by rule 8 of the Rules of 1995. In support of his submission, the learned counsel has relied upon a judgment of this Court in the cases of Babulal Kaluram Kirar and another v. State of M.P. and others [ 1985 JLJ 644 = 1985 MPLJ 411 ], Dr. In support of his submission, the learned counsel has relied upon a judgment of this Court in the cases of Babulal Kaluram Kirar and another v. State of M.P. and others [ 1985 JLJ 644 = 1985 MPLJ 411 ], Dr. Om Prakash Soni v. Ashok Kumar Bhargava and others [1995(2) Vidhi Bhasvar 309= AIR 1996 MP 43 ], Sarla Tripathi (Smt.) v. Smt. Kaushilya Devi and others [ 2004(2) JLJ 263 ], FA. Sapa etc v. Singora and others etc. [ AIR 1991 SC 1557 ], and an unreported judgment of this Court in Writ Appeal No. 136/2009, Smt. Phoolwati v. Smt. Rama Patel and others, dated 13.5.2009 5. From a perusal of the record of the case as well as the written arguments filed by the respondent No.3 before the Election Tribunal, copy of which has been filed by the petitioner along with the petition, it is clear that the petitioner did not attest as true copies or sign the copy of the petition that was served upon the respondent No.3 The issue involved in the present petition is as to whether non-compliance of the provisions of rule 3(2) of the Rules of 1995 entails dismissal of the petition in spite of the fact that the respondent did not raise any objection at that time? 6. To appreciate the issue involved, it is necessary to look into the provisions of rules 3 and 8 of the Rules of 1995 which 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 authorised 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. 8. Procedure on receiving 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. 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." From a perusal of the aforesaid rules it is clear that the election petitioner was required to file as many copies of the petition as there are respondents in" the petition and that every such copy should be attested by the petitioner under his own signature to be a true copy. It is not disputed that the copies of the petition furnished by the petitioner along with the election petition were not signed by him nor were they attested to be true copies of the petition. It is also true that the Election Tribunal did not dismiss the election petition filed by the petitioner at the threshold but issued notice thereon and dismissed the election petition only after hearing both the parties extensively. It is also clear that the Election Tribunal addressed itself to the defect of non-compliance of rule 3(2) only when the same was pointed out to the Election Tribunal by the respondent No.3. 7. A perusal of rule 8 makes it abundantly clear that a petition which does not comply with the rules 3, 4 or 7 shall be dismissed by the specified officer. This Court, in the case of Babulal Kalura Kirar (supra), while dealing with the provisions of identical Rules of 1962, has held in paragraph 8 that rules 3, 4,7 and 8 of the Rules are pari materia with the provisions of section 81, 82,117 and 86 of the Representation of People Act and has further gone on to state that the provisions of rules 7 and 8 are mandatory in nature and has held that violation of the provisions of rules 7 and 8 would result in dismissal of the petition, in the following terms in paragraph 11 and 12 : 11. In rule 8, the expression used is 'the prescribed authority shall dismiss the petition'. In rule 8, the expression used is 'the prescribed authority shall dismiss the petition'. This clearly means that duty is cast on the Tribunal to dismiss the petition on the non-compliance of the provisions enumerated in rule 8. It is an important provision. The Tribunal has no option, but to dismiss the petition, on being satisfied about noncompliance -- the non-compliance may come to its knowledge -- in any manner. From the language of rule 7 it appears that as a petition being presented, the Tribunal should verify before taking its cognizance and proceeding with the trial, whether security amount is deposited along with it or not. The proviso to rule 8 of the Election Rules cannot be read to mean that the Tribunal has the jurisdiction to dismiss for non-compliance of the provisions mentioned in the parent provision of rule 8 only when an objection is raised by the respondent. To hold that the Tribunal can dismiss for non-compliance only when objection is raised by respondent, would mean adding something which is not there in the rule and taking out the jurisdiction of the Tribunal. The proviso is nothing but expresso verbis incorporation of the audi alteram partem rule of natural justice. To uphold the argument of the learned counsel for respondents No.3 and 4 would tantamount to holding that a petition though suffering from the non-compliance of the rules referred to in the parent rule 8 of the Election Rules can never be dismissed when no one appears to oppose the petition and it is proceeding ex parte. Further, the question of waiver also does not arise in view of the fact that we have held the provision as mandatory and a compulsion on the petitioner based on public policy. 12. In the above view of the matter, we hold that even when no objection is raised about the non-compliance of rule 7 of the Election Rules, it is incumbent on the Tribunal to dismiss the petition on being satisfied about the non-compliance of that rule. It has no jurisdiction to proceed with its trial." 8. In the case of Dr. In the above view of the matter, we hold that even when no objection is raised about the non-compliance of rule 7 of the Election Rules, it is incumbent on the Tribunal to dismiss the petition on being satisfied about the non-compliance of that rule. It has no jurisdiction to proceed with its trial." 8. In the case of Dr. Omprakash Soni [1995(2) Vidhi Bhasvar 309= AIR 1996 MP 43 ] (supra), this Court, while dealing with the case of noncompliance of the provisions of rules 3 and 8 of the Rules of 1995, has held that rule 3 was pari materia with the provisions of sections 81 and 86 of the Representation of People Act and that violation of rule 3(2) would entail dismissal of the petition, relying upon the judgment of the Supreme Court in the case of F.A. Sapa etc. [ AIR 1991 SC 1557 ] (supra). In the case of Sarla Tripathi (Smt.) [ 2004(2) JLJ 263 ] (supra), a Division Bench of this Court on a matter being referred to it, held the provisions of rules 7 and 8 to be mandatory and has held that in non-compliance of the provisions of these rules at the time of presentation of the petition the petition has to be dismissed in view of rule 8 of the Rules of 1995 in the following terms in paragraph 8: "8. In the present case, it is not disputed that the amount was not deposited at the time of presentation of the petition but later on. In somewhat similar situation, a Division Bench of this Court in Babulal v. State of M.P.) (supra), has observed that the expression "shall deposit" and the penalty of failure prescribed in rule 8 clearly spell out that the provision of rule 7 is mandatory and the requirement of making the deposit of security amount is along with the petition as clear from the expression "at the time of presentation of an election petition". Para 10.01 of the report containing the said observations reads under: 10.01. On a plain reading of rule 7 the requirement of making the deposit of securityamount is along with the petition. The expression "at the time of presentation of an election petition" in rule 7 is very significant. Para 10.01 of the report containing the said observations reads under: 10.01. On a plain reading of rule 7 the requirement of making the deposit of securityamount is along with the petition. The expression "at the time of presentation of an election petition" in rule 7 is very significant. Thus, the requirement of deposit of security amount along with the petition is an essential link in the chain of presentation of the petition. Therefore, if this link is missing, there is no valid presentation of the petition.The Tribunal has a jurisdiction only when there is a validly presented petition before it." The same view has been reaffirmed by a Division Bench of this Court in Writ Appeal No. 136/2009, Smt. Phoolwati v. Smt. Rama Patel and others, dated 13.5.2009. 9. In the case of F.A. Sapa etc. [ AIR 1991 SC 1557 ] (supra) , the Supreme Court, while interpreting the provisions of sections 83 and 86 of the Representation of People Act, 1951, has held that while a defect in verification is curable, a defect relating to absence of attestation as true copy is incurable and the petition has to be dismissed, in the following terms in paragraphs 20 and 29 : "20. It must at the outset be realised that section 86(1) which lays down that the High Court 'shall' dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 does not in terms refer to section 83. It would, therefore, seem that the legislature did not view the non-compliance of the, requirement of section 83 with the same gravity as in the case of sections 81, 82 or 117. It would, therefore, seem that the legislature did not view the non-compliance of the, requirement of section 83 with the same gravity as in the case of sections 81, 82 or 117. But it was said that a petition which does not strictly comply with the requirements of section 83 cannot be said 'to be an election petition within the contemplation of section 81 and hence section 86(1) was clearly attracted, in Murarka Radhey Shyam v. Roop Singh Rathore [ (1964)3 SCR 573 = AIR 1964 SC 1545 ], one of the defects pointed out was that though the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on advice and information received from legal and other sources, the petitioner did not in so many words state that the advice and information received was believed by him to be true. The Election Tribunal held that this defect was a matter which came within section 83(1) (c) and the defect could be cured in accordance with the principles of the Code'. This Court upheld this view in the following words (at p.l549 of AIR): "It seems clear to us that reading the relevant sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Cl. (c) of sub-section (1) of section 83 is fatal to the maintainability of the petition." It is thus clear from this decision which is binding on us that mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. As observed earlier since section 83 is not one of three provisions mentioned in section 86(1), ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under section 81." 29. The next objection is based on the language of section 81 of the RP. Act. This section deals with the presentation of an election petition. The next objection is based on the language of section 81 of the RP. Act. This section deals with the presentation of an election petition. Sub-section (1) thereof says that an election petition may be presented by any candidate at such election or any elector within 45 days from, but not earlier than, the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different, the later of those dates. This sub-section specifies on what ground or grounds the election of the returned candidate can be challenged, who can challenge the election and imposes a period of limitation for filing such a petition. Sub-section (1) of this section was omitted by Act 47 of 1966. Then comes sub-section (3) which stipulates 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. This sub-section enjoins (i) supply of such number of copies of the petition as are respondents, and (ii) every such copy must be attested by the petitioner under his own signature to be a true copy of the petition. There is no controversy regarding the first aspect, the controversy centres round the second part. It must be remembered that non-compliance with the requirement of sub-section (1) or (3) of section 81 can prove fatal in view of section 86(1) of the RP. Act. See Satya Naran v. Dhuja Ram [ (1974)4 SCC 237 = AIR 1974 SC 1185 ], M. Karunanidhi v. Dr. H. V. Handa [ (1983)2 SCC 473 = AIR 1983 SC 558 ], Mithilesh Kumar Pandey v. Baidyanath Yadav [( 1984)2 SCR 278= AIR 1984 SC 305 ], Rajender Singh v. Usha Rani [ (1984)3 SCC 339 = AIR 1984 SC 956 ], and U.S. Sasidharan v. K. Karunakarar [ (1989)4 SCC 482 = AIR 1990 SC 924 ]. It is quite obvious from these decisions that the requirements of section 81 (3) are mandatory and failure to comply with them would render the petition liable to summary dismissal under section 86(1) of the RP. It is quite obvious from these decisions that the requirements of section 81 (3) are mandatory and failure to comply with them would render the petition liable to summary dismissal under section 86(1) of the RP. Act" The decision of the Supreme Court relied upon by the petitioner rendered in the aforesaid case deals with the defects in verification and non-defects in attestation and, therefore, is not applicable to the issue involved in the present petition. Even otherwise, the defect in verification under rule 5 of the Rules of 1995 is not automatically fatal as rule 8 does not include non-compliance of rule 5 of the Ruls of 1995 and, therefore, the defects under rule 5 stands on a different footing from the requirements of the rules 3, 4 and 7. 10. In the circumstances, the contention of the learned counsel for the petitioner which is based on the aforesaid judgment is misconceived. In the case at hand the Election Tribunal has recorded categorical findings that the copies of the election petition served on the respondent did not bear his signatures, were not verified and did not bear attestation as required by rule 3(2) of the Rules of 1995 and has accordingly dismissed the election petition. In my considered opinion the finding cannot be found fault with as has been held by a Division Bench of this Court in the case of Babulal Kaluram Kirar [ 1985 JLJ 644 ]. I am also of the opinion that the Election Tribunal can take and decide the aforesaid issue regarding defect of noncompliance of the rules at any stage and it is not incumbent upon the authority to do so only at the threshold. The decision of the Division Bench of this Court also makes it clear that there can be no waiver of the requirement of rule 8 of the Rules of 1995 and failure of the authority to dismiss the petition at the threshold would not prohibit or prevent the authority from doing so at the later stage. In the circumstances the contention of the petitioner to the contrary also deserves to be rejected. 11. In view of the aforesaid discussions, the petition filed by the petitioner being meritless is accordingly dismissed. The order passed by the Election Tribunal dated 10.1.2007 is hereby confirmed. In the circumstances the contention of the petitioner to the contrary also deserves to be rejected. 11. In view of the aforesaid discussions, the petition filed by the petitioner being meritless is accordingly dismissed. The order passed by the Election Tribunal dated 10.1.2007 is hereby confirmed. In the peculiar facts and circumsances of the case there shall be no order as to costs.