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Madhya Pradesh High Court · body

2009 DIGILAW 555 (MP)

MANOHAR LAL GOLE v. DILIP

2009-04-28

A.M.SAPRE, DIPAK MISRA

body2009
Judgment ( 1. ) IN this writ petition preferred under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issued of a writ of certiorari for quashing of the order dated 20. 12. 2007 (Annexure-P-1) passed by the divisional Commissioner (Revenue), the Election Tribunal under the Madhya pradesh Krishi Upaj Mandi Adhiniyam, 1972 (for brevity the Act) whereby the said Election Tribunal has declined to deal with the election petition on merits on the ground that the election petition was not presented by the petitioner himself but through his counsel which was against the mandate of Rule 43 (6) of M. P. Krishi Upaj Mandi Rules, 1974 (for short the 1974 Rules ). ( 2. ) THE facts which are imperative to be stated for the purpose of adjudication of the writ petition are that the election was held for the purpose of representative of agriculturist of Krishi Upaj Mandi Samiti, Sendhwa in which the petitioner and the respondents No. 2 to 6 were candidates. The respondent no,. 1 was elected and his election was notified on 18. 6. 2005. Being grieved, the petitioner preferred an election petition on 06. 7. 2005 under section 66-A of the act before the Election Tribunal questioning the election of the said respondent on many a ground. Before the Election Tribunal the respondents No. 1 and 8 filed their reply and raised an objection that the election petition deserves to be rejected on the ground that it was presented through his counsel but not by himself. ( 3. ) AN affidavit was filed by the petitioner stating, inter alia, that he was present with his counsel at the time of presentation of the election-petition. The said affidavit has been brought on record as Annexure-P-4. ( 4. ) IT is contended in the petition that the State Government has framed M. P. Krishi Upaj Mandi (Mandi Samiti Ka Nirvachah) Rules, 1997 (hereinafter referred to as the 1997 Rules) and the said Rules do not contemplate that the election petition should be presented by the petitioner himself and, therefore, the presentation through his counsel was valid. It is put forth that 1974 Rules are not applicable to the case at hand but the Prescribed Authority has erroneously come to hold that the said rule operates in the field. It is put forth that 1974 Rules are not applicable to the case at hand but the Prescribed Authority has erroneously come to hold that the said rule operates in the field. It is urged that there is no mandate in the Rule that the election petition should be presented by the petitioner. ( 5. ) WE have heard Mr. S. R. Saraf, learned counsel for the petitioner, Mr. P. V. Bhagwat. learned counsel for the respondent No. 1 and Mr. A. S. Kutumbale, learned additional Advocate General for the respondent-State. ( 6. ) AT the very outset we may state with profit that the issues that have emanated to be addressed in this writ petition can be compartmentalized into three heads, viz. (i) whether 1974 Rules or 1997 Rules would apply to the case at hand (ii) whether Rule 43 of 1974 Rules makes it mandatory that the election petition has to be presented by the election petitioner failing which the same has to be dismissed; and (iii) whether the filing of an affidavit at a later stage would save the election petition. ( 7. ) FIRST we shall advert to the first issue. The State Legislature amended the Act by incorporating section 66-A with effect from 06. 5. 1999. The said provision reads as under:- "66-A. Election petition- (1) An election under this Act shall be called in question only by a petition presented in the prescribed manner to the Commissioner of the Division. (2) No such petition shall be admitted unless it is presented within thirty days from the date on which the election in question was notified. (3) Such petition shall be enquired into or disposed of according to such procedures as may be prescribed. Prior to incorporation of the said provision a set of rules, namely, 1997 Rules had been framed. ( 8. ) IN this context it would be appropriate to refer to the decision rendered in Ashok kumar Jain vs. Neetu Kathoria and others, (2004)12 SCC 73 wherein the Apex court interpreting Rule 90 of the 1997 Rules expressed the view as under: "10. At this juncture, it may be indicated that the power to frame rules is vested in Section 79 of the Act. All the rules have been framed in exercise of the power conferred by the aforesaid provision. At this juncture, it may be indicated that the power to frame rules is vested in Section 79 of the Act. All the rules have been framed in exercise of the power conferred by the aforesaid provision. We may then peruse Rule 44 of the 1974 rules which provides the manner in which and the grounds on which an election could be challenged. Whatever manner for presenting an election petition is provided under the Rules of 1974, which is not covered by the Rules of 1997, would continue to be operative but for the changes effected by Section 66-A, that is to say, the forum for challenging the election would be the Commissioner and the period of limitation would be thirty days for any election under the Act. The rest of the manner of filing/presenting an election petition if not provided under the 1997 Rules shall continue to be same as provided under the Rules of 1974. That being the position, we uphold the finding recorded by the Division Bench that an election petition was maintained and could be filed challenging the election of the Chairman of the Krishi Upaj Samiti. " ( 9. ) IN view of the aforesaid enunciation of law, the issue is no ore res integra that 1974 Rules would govern the field. ( 10. ) WE may state with profit that number of decisions were cited that substantial compliance with the Rules would subserve the cause of justice. Our attention has been invited to the Constitution Bench decisions rendered in Murarka Radhe shyam Ram Kumar vs. Roop Singh Rathore, AIR 1964 SC 1545 : T. M. JACOB vs. C. Poulose, (1994) 4 SCC 274: Ram Prasad Sarma vs. Mani Kumar Subba, (2003) 1 SCC 289 : and Chandrakant Uttam Chodankar vs. Dayanand Rayu mandrakar and others. AIR 2005 SC 547 . ( 11. ) IN the aforesaid decisions the doctrine of substantial compliance and curability of defects have been dealt with. In the case at hand, we are not required to deal with the said facet. This Court, we are disposed to think, is only required to dwell upon whether Rule 43 of 1974 Rules makes the presentation an election petition by the candidate or the voter mandatory and by such non-presentation the election petition has to be dismissed. ( 12. In the case at hand, we are not required to deal with the said facet. This Court, we are disposed to think, is only required to dwell upon whether Rule 43 of 1974 Rules makes the presentation an election petition by the candidate or the voter mandatory and by such non-presentation the election petition has to be dismissed. ( 12. ) LEARNED counsel for the respondent has placed, heavy reliance has been placed on the decision rendered in Suman Santosh Kumar Patel vs. Bhanwati mahesh Pratap Patel and another, 1999 (1) MPLJ 88 and Tara vs. Dabla alias Lalita and others, 2002 (3) MPLJ 591 , wherein it has been held that an election petition prescribed under Rule 3 of the M. P, Panchayats (Election Petitions, corrupt Practices and Disqualification for Membership) Rules, 1995 [for short rules 1995] if not presented by himself and presented through a counsel without proper authorisation would entail in dismissal. In this context We may refer with profit to Rule 8 of 1995 Rules. It stipulates as under: "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 officer. Provided that the petition shall not be dismissed under this rule without giving the petitioner an opportunity of being heard. " ( 13. ) THUS, the aforesaid Rule makes it crystal clear that non- compliance of rule 3 would result in dismissal of the election petition The said Rule has been held to be mandatory. We have to analyse and see whether there is any kind of mandatory facet in the present set of rules with which we are concerned with. Rule 43 occurring in Chapter XI deals with election petition. Rule 43 (1) provides that no election of a member shall be called in question except by a petition in writing. How reliefs should be couched have been provided therein. Sub-Rule (3)stipulates about the deposit of security. Sub-Rules (2 ). to (7) which are relevant for the present purpose are reproduced below : "43. Election petition- (1)XX XX XX XX (2) The petition shall be presented, to the Collector within fourteen days from the date on which the result of the election was published under sub-rule (3) of Rule 38. . Sub-Rules (2 ). to (7) which are relevant for the present purpose are reproduced below : "43. Election petition- (1)XX XX XX XX (2) The petition shall be presented, to the Collector within fourteen days from the date on which the result of the election was published under sub-rule (3) of Rule 38. . (3) The petition shall be accompanied by (deposit of two hundred and fifty rupees as security for the costs of petition. (4) The petition shall- (a) contain a concise statement of the material facts on which the petitioner relies: (b) set forth with sufficient particulars, the ground or grounds on which the election is called in question; (c) he signed by the petitioner and verified in the manner prescribed in Code of Civil Procedure, 1908 (V of 1908), for verification of pleadings. (5) Such petition may be presented by any candidate at such election or by a voter of the constituency concerned. (6) A petition filed by any person other than those specified in sub-rule (5) shall not he accepted and it shall forthwith he dismissed. (7) No petition shall be deemed to have been duly made unless such deposit as referred to in sub-rule (3)has been made and the Collector shall dismiss such petitions as are not accompanied by such deposit. ( 14. ) IN this context we may refer with profit to Rule 3 of the 1995 Rules. It reads 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. " ( 15. ) IF we see anatomy of the Rule 3 it really prescribes that an election petition shall be presented to the Specified Officer by the person making the petition. The said wordings are absent in Rule 43 (5 ). " ( 15. ) IF we see anatomy of the Rule 3 it really prescribes that an election petition shall be presented to the Specified Officer by the person making the petition. The said wordings are absent in Rule 43 (5 ). Learned counsel for the respondent has drawn our attention to Section 81 of the Representation of Peoples Act to draw inspiration that unless it is presented by the candidate as election, the election petition is not to be entertained. It is worth-noting that Section 86 of the representation of Peoples Act, 1951 enjoins dismissal of the petition if the presentation does not comply with the provisions of Section 81. In the present case, we are not required to advert to whether what proper presentation would be under Representation of Peoples Act or not. We have only referred to the said provisions to appreciate under what circumstances it has been held to be mandatory. ( 16. ) AS we perceive; under the 1995 Rules Rule 8 mandates consequence and that is the dismissal of the election petition for non-compliance of Rule 3. Under the Representation of Peoples Act Section 86 stipulates for dismissal. Rule 8 of the 1995 Rules has been held to be mandatory. Thus, question would be whether such a provision is present in the 1947 Rules. ( 17. ) IN this regard it would appropriate to Rule 15 which is occurring in Chapter viii that deals with nomination of candidates Sub-rule (1) of Rule 15 reads as under: "15. Nomination Paper and Deposit.- (1) On the date fixed under clause (b) of sub-rule (2) of rule 14 for presenting nomination papers of the candidates, each candidate shall, either in person or by his proposer or seconder, present to the election authority a nomination paper completed in Form IV, subscribed by the candidate himself as assenting to the nomination and by two duly qualified voters of the constituency as proposer and seconder. " ( 18. ) WE have referred to the said rule as it uses the terminology to the effect that each candidate while presenting the nomination paper shall either in person or by his proposer or seconder, present to the election authority a nomination paper in Form IV, subscribed by the candidate himself. In sub-rule (5) of Rule 43 the term himself as well as present is absent. ( 19. In sub-rule (5) of Rule 43 the term himself as well as present is absent. ( 19. ) SUBMISSION of the learned counsel for the respondent is if Sub-Rule (6) of rule 43 is understood in proper perspective the same makes the presentation by the election petitioner mandatory. On a reading of Sub-Rule (5) of Rule 43 we find that the petition is to be presented by any candidate of such election or by a voter of the constituency concerned. Sub-Rule (6) uses the word file. It prescribes that a petition filed by any person other than those specified in Sub-Rule (5) shall not be accepted and it shall forthwith be dismissed. There may be circumstances the terms presentation and file may have different connotation but it is well acceptable principle of law of interpretation the same words can be used in different connotation depending upon the context. Sub-Rule (6) the word must take its meaning from the text and context. On a keener scrutiny of the Rules, we are disposed to think it relates to the locus standi of the petitioner as on certain occasions the term file refers to preferring of a petition, Had the rule-making authority thought of making presentation by the candidate mandatory it would have clearly and categorically so stated. It has not been so done. On the contrary, the Rule is couched in a manner which conveys with regard to the category of persons who can file the petition. It is pertinent to note that Sub- Rule (7) of Rule 43 unequivocally lays down that no election petition shall be deemed to have been duly made unless the deposit as referred to in Sub-Rule (3) has been made and the Collector shall dismiss such petitions. The language is clear as crystal. It does not allow any other kind of interpretation. On the contrary, Sub-Rule (6) does not cast such a mandate. The object of the rule-making authority, we are inclined to think, pertains to the category of persons and not to presentation of election petition. In this context we may refer with profit to a three-judge Bench decision rendered in m. Y. Ghorpade v. Shivaji Rao M. Poal and others, AIR 2002 SC 3105 wherein their Lordships held as under: "the requirement of making a security deposit of Rs. In this context we may refer with profit to a three-judge Bench decision rendered in m. Y. Ghorpade v. Shivaji Rao M. Poal and others, AIR 2002 SC 3105 wherein their Lordships held as under: "the requirement of making a security deposit of Rs. 2,000/-is mandatory and the same has to be made while presenting an Election Petition, but the mode of deposit as well as the person who could make a deposit has to be complied with in accordance with the rules of the High Court in question and, as per Karnataka High Court Rules through whom the amount will be deposited etc. cannot be held to be mandatory. That being the position, and in the case in hand although petition was filed by agent of defeated candidate and the receipt of deposit of security issued in name of defeated candidate, when the evidence of the defeated candidate unequivocally pointing out that it is the Election Petitioner who deposited that amount of Rs. 2,000/-, there has been compliance of S. 117 of the Act and consequently the Election Petition is maintainable and could not be dismissed under S. 86 on the ground of non compliance of S. 117 of the Act. " ( 20. ) IN the aforesaid case the mode of security deposit could be different depending upon the Rules of the High Court. It is interesting to note that Sub-Rule (2) provides that a petition shall be presented to the Collector. The said power has been vested with the Commissioner after coming into force of the 1997 Rules. That has been so held in Triyugi Narayan Shukla vs. State of M. P. and others, 2006 (3) MPLJ 98 . In the said Rule it has not been stipulated that the election petitioner means who presents the election petition. Such a stipulation, as has been indicated earlier is also absent in Sub-Rule (5 ). Thus, mode of presentation as we perceive, there is no command that the election-petitioner should present the election-petition to introduce such a facet to anatomy of rules on the basis of sub-Rule (5) would not be correct interpretation as the language of Sub- Rule (6)conveys a different meaning. At the cost of repetition we may state with certitude that it only refers to categories of persons and has no nexus with the presentation of the election petition. At the cost of repetition we may state with certitude that it only refers to categories of persons and has no nexus with the presentation of the election petition. Thus, in the absence of any consequential mandate to the effect that non-presentation of the election petition filed by the election-petitioner before the competent authority shall entail in dismissal of the petition, the provision cannot be construed as mandatory. ( 21. ) RESULTANTLY the writ petition is allowed and the order passed by the commissioner contained in Annexure-P/1 dismissing the election petition due to non-compliance of Rule 43 (6) is quashed and the said authority is commanded to proceed with the election petition as per law. In the peculiar facts and circumstances of the case, there shall be no order as to costs. Petition allowed.