Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 537 (MP)

Shyamvati Kushwaha v. Shobhav Dev Vishwakarma

2011-05-04

SANJAY YADAV

body2011
JUDGMENT : Since contesting parties are served, with their consent the matter is heard finally. This petition under Article 227 of the Constitution of India is directed against order dated 30-08-2010 passed by Specified Officer in Panchayat Election Petition No. 03/C744/2009-2010. Petitioner herein got elected as Sarpanch, Gram Panchayat Bhaiswar, district Satna, in election held on 18-01-2010. Respondent No. 1 aggrieved of petitioner's election as Sarpanch filed an election petition under section 122 of the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. Along with the petition, she affixed the court fee stamps of Rs. 500/-, in place of depositing the security amount of Rs. 500/-. Later on with the leave of Specified Officer granted on 31-05-2010 respondent No. 1 deposited the amount of Rs. 500/- vide challan dated 01-06-2010. The petitioner on being served with the notice of election petition raised objection under rule 8 of the Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (M.P.) (hereinafter referred to as the Rules of 1995), on the ground of non-compliance of provision contained under Rule 7 of the Rules of 1995. The Specified Officer rejected the application for the reasons that the election petition was accompanied with court fees of Rs. 500/- and later on the defect if any got cured on 01-06-2010 when in pursuance to order dated 31-05-2010. Petitioner is aggrieved of this order. It is contended that provisions of Rule 7 of Rules of 1995 being mandatory in nature, the non-deposit of security amount thereunder at the time of presentation of election petition was fatal as the petition could not have been entertained. Though the contention of petitioner is being countered b y learned counsel for the respondent on the ground that the defect, if any, was minor in nature and was cured with the leave of Specified Officer. However, keeping in view the provisions, i.e., Rule 7 & 8 of the Rules of 1995, the contentions put forth on behalf of petitioner have force. Rule 7 of the Rules of 1995 requires : "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. 500/- as security. Rule 7 of the Rules of 1995 requires : "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. 500/- 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." Rule 8 of the Rules of 1995 provides for : "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." Division Bench of this Court in Sarla Tripathi (Smt.) v. Smt. Kaushilya Devi and others; 2004 (2) JLJ 263 while creating out different view which then existed regarding the nature of Rule 7 & 8 of the Rules of 1995 opined :- "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 hat 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 he 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 security amount 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." 9. It appears that this decision was not brought to the notice of the learned Single Judge in Kailash Narayan (supra). 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." 9. It appears that this decision was not brought to the notice of the learned Single Judge in Kailash Narayan (supra). The decisions noticed in the said case relate to the question of amendment and, therefore, were not relevant for deciding as to whether or not the amount of security required to be deposited at the time of the presentation of the petition could be deposited after presentation on a later date. Section 86(5) of the Representation of People Act, 1951 itself permits amendment as regards particulars of any corrupt practices alleged in a petition as may be necessary for ensuring fair and effective trial. In F.A. Sapa v. Singopa ( AIR 1991 SC 1557 ), the Supreme Court has observed that the defect in the verification of an election petition is not fatal but failure to cure the same would be fatal as observed in R. P. Moidutty v. P.T. Kunju Mohd.[ 2000(1) SCC 481 ]. This requirement is contained in section83(1) of the Representation of People Act while section 86(1) requires the High Court to dismiss an election petition which does not comply with the provisions of section 81 or 82 or section 117 and not a petition which does not comply with the provisions of section 83. Rule 8 of the Election Petition Rules clearly provides for dismissal of the petition if the provisions of Rules 3, 4 or Rule 7 have not been complied with. Therefore, any decision with regard to the curability of the defect in verification of the petition or with regard to the permissibility of the amendment is not relevant in respect of requirement of deposit of security laid down by Rule 7 and the consequence of failure provided in rule 8. C. K. Prasad, J. has followed the judgment in Kailash Narayan in Ravi Thakur and has distinguished the case of Babulal (supra) on the ground that the question whether the security amount could be deposited within the period of limitation after presentation of the petition was not in issue in the said case. We are afraid, we cannot subscribe to this view of the learned Single Judge. We are afraid, we cannot subscribe to this view of the learned Single Judge. As apparent from the passage quoted hereinabove, the Division Bench has clearly held that the requirement of making the deposit of security amount is along with the petition which clearly implies that there is no option to deposit the amount on a later date. Rule 7 is clear, without ambiguity and unequivocal. It requires deposit at the time of the presentation of the petition and thus, any deposit made after the date of the presentation of the election petition would not be its compliance. It is not a case where along with the presentation of the election petition that deposit of security was made in the manner other than the one prescribed by rule 7. The view expressed by Dharmadhikari, J. in Uday Singh (supra) appears to be the correct exposition of the Rules. The view expressed in Kailash Narayan (supra) and Ravi Thakur (supra) is not correct. Since it is not disputed in the present case that the election petition was filed on 10-2-2000 while the security deposit was made on 3-3-2000, the election petition was liable to be dismissed under rule 8." In the case at hand admittedly no amount as required under rule 7 was deposited along with the election petition as a security deposit. The amount was later on deposited on 01-06-2010, the election petition was liable to be dismissed. In the result the impugned order dated 30-08-2010 is hereby quashed. Election petition filed by respondent No. 1 is dismissed. The petition is allowed. However, no costs.