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2011 DIGILAW 431 (MP)

Sanjay v. Shri Lal

2011-04-06

BRIJ KISHORE DUBE, S.K.GANGELE

body2011
JUDGMENT S.K. Gangele, J. 1. Appellant has filed this appeal against the order dated 22.03.2011 passed by learned Single Judge of this Court in Writ Petition No. 6205/2010. 2. Respondent No. 1 filed an election petition questioning the election of Appellant to the post of Sarpanch of Gram Panchayat, Garhi, Tehsil Vijaypur, district Sheopur. An election petition was presented on 19.02.2010 by the Counsel of Respondent No. 1 before the Specified Officer, Respondent No. 7. After receiving a notice, the Appellant raised preliminary objection in regard to maintainability of the election petition. He pleaded that the election petition was not presented before the Specified Officer by Respondent No. 1 himself and the counsel was not authorized by Respondent No. 1 to submit the election petition. The Appellant further contended that the copy, which was sent to the Appellant by Respondent No. 1, has not been certified as 'true copy' and the Respondent No. 1 did not sign the copy as required under Rule 3 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995, hereinafter referred to as the 'Rules of 1995', hence, the election petition is liable to be dismissed. 3. Respondent No. 1 in his reply submitted that the provisions of Rule 3 of the Rules of 1995 are not mandatory in nature and if there is any violation thereof the election petition is not at all liable to be dismissed. 4. The Specified Officer vide order dated 26th July 2010 has held that the objections of the Appellant in regard to maintainability of the election petition shall be considered at the time of final hearing. Against the aforesaid order the Appellant filed a petition before this Court. The learned Single Judge of this Court vide impugned order has held that the objections in regard to maintainability of the election petition of the Appellant are technical in nature and on the aforesaid ground the election petition could not be dismissed. The learned Single Judge further observed that it is the duty of the Appellant to contest the election petition on merits and dismissed the petition. 5. The learned Single Judge further observed that it is the duty of the Appellant to contest the election petition on merits and dismissed the petition. 5. Learned Counsel for the Appellant has contended that the provisions of Rule 3 of the Rules of 1995 are mandatory in nature and if there is noncompliance of Rule 3, the election petition is liable to be dismissed in accordance with the provisions of Rule 8 of the Rules of 1995. In support of his contentions the learned Counsel relied on the following judgments: (1) Suman Santosh Kumar Patel v. Bhanwati Maqhesh Pratap Patel and Anr. 1999 (I) MPLJ 88 ; (2) Tara v. Dabla alias Lalita and Ors. : 2002 (3) MPLJ 591 ; (3) Sarla Tripathi (Smt.) v. Smt. Kaushilya Devi and Ors. 2004 (2) JLJ 263 ; (4) Urmila Devi v. Returning Officer (Panchayat) and Ors.: 2008 (4) MPHT 410 ; (5) G.V. Sreerama Reddy and Anr. v. Returning Officer and Ors.: (2009) 8 SCC 736 ; and (6) Baijulal Verma v. Additional Collector, Chhindwara and Ors. I.L.R. (2010) MP 129. 6. Contrary to this, the learned Counsel for Respondents No. 1 to 5, has contended that the provisions of Rule 3 of the Rules of 1995 are not mandatory in nature and if there is any violation of Rule 3, then the election petition could not be dismissed at the initial stage. In support of his contentions learned Counsel relied on the following judgments of the Hon'ble Supreme Court: (1) Patel Dipakbhai Chimanbhai (2005) 12 SCC 187; (2) Umesh Challiyil v. K.P. Rajendran,: AIR 2008 SC 1577 ; (3) Kedar Shashikant Deshpande and Ors. v. Bhor Municipal Council, and Ors.: (2011) 2 SCC 654 ; and (4) Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar and Ors.: (2005) 2 SCC 188 ; 7. The admitted facts of the case are that the election petition was presented by the counsel of Respondent No. 1 before the Specified Officer on 19.02.2010. It is clear from the order sheet dated 19.02.2010, the Respondent No. 1 did not file the copy of the Vakalatnama, in which it has been mentioned that the counsel was authorized to file election petition. Copy of the election petition, which was served on the Appellant, has also not been attested by the Respondent No. 1. It is clear from the order sheet dated 19.02.2010, the Respondent No. 1 did not file the copy of the Vakalatnama, in which it has been mentioned that the counsel was authorized to file election petition. Copy of the election petition, which was served on the Appellant, has also not been attested by the Respondent No. 1. Photocopy of the election petition, which was served on the Appellant, has been filed before the Writ Court as Annexure P-4. The aforesaid copy has not been signed by Respondent No. 1 and on the last page it has been mentioned a 'T.C' (True Copy), and it has been signed by the counsel of Respondent No. 1. 8. Rule 3 of the Rules of 1995 prescribes procedure for 'Presentation of election petition'. The aforesaid rule is 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. 9. Rule 8 of Rules of 1995 prescribes 'Procedure on receiving petition'. The aforesaid Rule is 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 officers: Provided that the petition shall not be dismissed under this rule without giving the Petitioner an opportunity of being heard. 10. From perusal of Rule 3 of the Rules of 1995, it is clear that an election petition shall be presented by the person making the petition or a person authorised in writing in this behalf by the person making the petition. Rule 3 (2) further prescribes that every copy of the election petition shall be attested by the Petitioner under his own signature to be a true copy of the petition and Rule 8 prescribes that if the provisions of Rule 3 is not complied with, the petition shall be dismissed. Admittedly, in the present case, there is violation of Rule 3 of the Rules of 1995. 11. Admittedly, in the present case, there is violation of Rule 3 of the Rules of 1995. 11. The learned Single Judge of this Court in the case of Baijulal Verma v. Additional Collector, Chhindawara and Ors. I.L.R. (2010) MP 129, after considering various judgments of the Hon'ble Supreme Court and this Court has held that if there is violation of Rule 3 of the Rules 1995, the election petition is liable to be dismissed. 12. Another Single Bench of this Court in the case of Urmila Devi v. Returning Officer (Panchayat) and Ors. 2008 (III) MPWN 92 , has held that if election petition is presented by the counsel and not by the Petitioner himself and the counsel was not authorised for presentation of election petition then it is liable to be dismissed. The same principle has been laid down by learned Single Judges of this Court in the cases of Tara v. Dabla alias Lalita and Ors. 2002 (2) MPLJ 591 and Suman Santosh Kumar Patel v. Bhanwati Mahesh Pratap Patel and Anr.: 1999 (1) MPLJ 88 . 13. Learned Single Judge of this Court further in Shivdhari Laakheswar Chamar v. Jaduman Bishwanath Kumar and Ors.: 1999 (1) MPLJ 291 , has held that requirement of Rule 3 (2) of the Rules of 1995 are mandatory in nature and noncompliance thereof will result in dismissal of the election petition. The learned Single Judge has held as under: 12. In view of the admitted position of the fact that the election petition was not accompanied by such number of certified copies of the election petition as there were Respondents, which is a mandatory requirement the same cannot be treated to have been validly presented as per the requirement of Rule 3. 14. The Constitution Bench of the Hon'ble Supreme Court in the case of Ch. Subbarao v. Member Election Tribunal, Hyderabad and Ors.: AIR 1964 SC 1027 , has considered the provisions of Section 81(3) of the Representation of the People Act, 1951 and held as under: 7. In view of the arguments addressed to us it would be necessary to set out a few of the relevant provisions of the Act which bear upon the points urged, but before doing so we shall refer to Article 329 of the Constitution which provides: .... In view of the arguments addressed to us it would be necessary to set out a few of the relevant provisions of the Act which bear upon the points urged, but before doing so we shall refer to Article 329 of the Constitution which provides: .... 329(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature." In accordance with this, we have the provisions of the Act and particularly those contained in Part VI commencing with S. 79. Section 80 repeats the provisions in the Constitution already extracted and enacts: No election shall be called in question except by an election petition presented in accordance with the provisions of this part." Section 81 deals with the presentation of petitions. It runs: 81. Presentation of the petitions. -(1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the Election Commission by any candidate at such election or by any elector within forty-five 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 two dates. Explanation. -In this Sub-section, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (2) An election petition shall be deemed to have been presented to the Election Commission (a) when it is delivered to the Secretary to the Commission or to such other officer as may be appointed by the Election Commission in this behalf (i) by the person making the petition, or (ii) by a person authorised in writing in this behalf by the person making the petition; or (b) when it is sent by registered post and is delivered to the Secretary to the Commission or the officer so appointed. (3) Every election petition shall be accompanied by as many copies thereof as there are Respondents mentioned in the petition and one more copy for the use of the Election Commission, and every such copy shall be attested by the Petitioner under his own signature to be a true copy of the petition. 8. Before proceeding further it is necessary to advert to the history of the provision in Sub-section (3) for learned Counsel for the Respondents laid some store by the object with which the provision was introduced. As enacted in 1951, S. 81 contained only two Sub-sections, the first dealing with the time within which a petition had to be filed and the second with the person or authority and the manner in which the petition had to be presented in order to constitute the presentation one to the Election Commission. At that date the Election Commission after scrutinizing the Petitions to ascertain whether there were any formal defects, had itself to make copies for being served on the Respondents. To avoid this trouble and inconvenience to the Commission and the delay which the making of such copies necessarily involved, Sub-section (3) which we have set out earlier was introduced into S. 81 by an amendment effected by Act XL of 1961. The point made, based on this feature, we shall reserve, for later discussion. 9. Section 82 deals with the parties who are to be imp leaded in the petition and S. 83 with the contents of the petition. Section 83(1)(c) enacts: An election petition shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. Sub-section (2) requires a similar signature and verification of schedule or annexures to the petition. 10. Section 85 empowers the Election Commission to dismiss a petition in certain contingencies. It reads: 85. If the provisions of Section 81 or Section 82 or Section 117 have not been complied with the Election Commission shall dismiss the petition: Provided that the petition shall not be dismissed without giving the Petitioner an opportunity of being heard. 11. 10. Section 85 empowers the Election Commission to dismiss a petition in certain contingencies. It reads: 85. If the provisions of Section 81 or Section 82 or Section 117 have not been complied with the Election Commission shall dismiss the petition: Provided that the petition shall not be dismissed without giving the Petitioner an opportunity of being heard. 11. The succeeding section deal with the trial of Election Petitions, after making provision for the appointment of an Election Tribunal by S. 86 but what is relevant in the present context is S. 90 and it is enough to quote the material words: (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: .... Sub-section (3) reads: The Tribunal shall dismiss an election petition which does not comply with the provisions of S. 81, notwithstanding that it has not been dismissed by the Election Commission under Section 85. The reasoning on which the learned Judges have based their decision shortly stated is this. It is the requirement of S. 81(3) of the Act that an election petition should be accompanied by the number of copies specified there, and equally so that the copies so accompanying 'shall be attested by the Petitioner under his own signature to be a true copy of the petition". There was, of course, the signature of the Petitioner on the copies, but there was no attestation by him that "it was a true copy". This constituted a non-compliance with the requirements of S. 81 which brought into play the terms of S. 90(3) of the Act which required the Tribunal to dismiss a petition which did not comply with the provisions of S. 81. 12. Though the learned Counsel for the Appellant made several submissions, we propose to deal with only one, as the same is sufficient for the disposal of this appeal. This was that in the circumstances of the case there had been a substantial compliance with the requirements of S. 81(3). Before, however, dealing with it, it will be convenient to refer to some of the submissions made to us by the learned Solicitor-General appearing for the contesting Respondents. This was that in the circumstances of the case there had been a substantial compliance with the requirements of S. 81(3). Before, however, dealing with it, it will be convenient to refer to some of the submissions made to us by the learned Solicitor-General appearing for the contesting Respondents. He submitted to us certain propositions which however we consider really unexceptionable. He said that an election petition was not be equated to an election at law or in equity, but that as the rights were purely the creature of statute, if the statute rendered any particular requirement mandatory the courts possessed and could exercise no dispensing power to waive non-compliance. We consider these propositions are sound and it is in the light of these basic positions that we shall proceed to consider whether the omission to add the words "true copy" in the copies which were admittedly exact copies of the petition, constituted a non-compliance with S. 81(3) as to render the petition liable to be rejected under Section 90(3) of the Act. 15. The provision of Rule 3 (2) of the Rules of 1995 is similar to Section 81(3) of the Representation of the People Act, 1951. As quoted above, the Constitution Bench of the Hon'ble Supreme Court has clearly held that the copy of the election petition has to be attested by the Petitioner under his own signatures and this is a mandatory compliance. 16. In the present case, there is no signature of Respondent No. 1, who filed the election petition, on the copy of the election petition, which was served on the Appellant. Hence, there is noncompliance of the mandatory provision of Rule 3 of the Rules of 1995. In such circumstances, the election petition is liable to be rejected. 17. The judgments cited by the learned Counsel appearing on behalf of Respondent No. 1 are distinguishable on facts because in the present case, as we have held that there is noncompliance of the mandatory provisions of Rule 3 of the Rules of 1995. It is not a case where there is a substantial compliance of the Rule (3) of the Rules of 1995. In such circumstances, the learned Single Judge has committed an error of law in holding that on technicalities the election petition of Respondent No. 1 could not be dismissed. 18. Consequently, the appeal filed by the Appellant is hereby allowed. It is not a case where there is a substantial compliance of the Rule (3) of the Rules of 1995. In such circumstances, the learned Single Judge has committed an error of law in holding that on technicalities the election petition of Respondent No. 1 could not be dismissed. 18. Consequently, the appeal filed by the Appellant is hereby allowed. The impugned order dated 22.03.2011 passed by the learned Single Judge as well as the order passed by the Specified Officer dated 26th July 2010 are hereby quashed. The election petition filed by Respondent No. 1 is hereby dismissed. No order as to costs.