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Madhya Pradesh High Court · body

2012 DIGILAW 271 (MP)

Roopa Singh v. State of M. P.

2012-03-06

K.K.TRIVEDI

body2012
ORDER 1. By this petition under Article 226 of the Constitution of India, the petitioner has called in question the order dated 12.07.2010 (Annexure P-10) by which the election petition filed by the petitioner against the election of respondent No.2 has been dismissed holding that the same was not maintainable in view of non-compliance of the statutory provisions of the Rules governing the conduct of such election petition. It is contended by the petitioner that the election of respondent No.2 was called in question in an election petition earlier filed along with which a requisite deposit of security amount was made. It was found by the election petitioner that such an election petition was not properly drafted, there were certain necessary averments, which were left, therefore, a prayer was made for withdrawal of the said election petition on 06.03.2010, which was allowed. A fresh election petition was thereafter filed on the same date by the petitioner in appropriate manner within the limitation but an objection was raised that the deposit of the security amount was not made while presenting the second election petition and, therefore, on the said objection the matter was heard. After hearing the parties, the Election Tribunal reached to the conclusion that the election petitioner has not deposited the amount of security, therefore, the election petition was dismissed. It is contended that the petitioner has annexed with the second election petition the security deposit made by her when the first election petition was submitted and that deposit should have been treated as security deposit in compliance of the provisions of Rule 7 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (herein after referred to as ‘Rules). It was grossly overlooked by the Election Tribunal that such a deposit was not withdrawn by the petitioner when the earlier election petition was withdrawn and the said deposit could have been treated as a deposit for the purposes of filing of a second election petition on the same subject matter. Thus, it is contended that the dismissal of the election petition on such a technical objection is not justified. It is claimed that the order impugned is liable to be quashed and the Election Tribunal is liable to be commanded to decide the election petition of the petitioner in accordance to law on merits. 2. Thus, it is contended that the dismissal of the election petition on such a technical objection is not justified. It is claimed that the order impugned is liable to be quashed and the Election Tribunal is liable to be commanded to decide the election petition of the petitioner in accordance to law on merits. 2. Opposing the claim made by the petitioner, the respondent No.2, the returned candidate, has filed a return. Along with the return the respondent No.2 has placed the similar documents on record, which the petitioner had filed. Certain more order-sheets have been placed on record. It is contended that there was mandatory requirement of Rule 7 of the Rules that a deposit of security should be made while presenting the election petition. It is specifically provided in the said Rule that where the election of more than one candidate is called in question, a separate deposit of security in equal amount shall be required in respect of each such returned candidate. Therefore, it was necessary on the part of the petitioner to deposit the security amount afresh for the purposes of filing of a second election petition. It is further contended that no liberty was claimed for filing of the second election petition and by such simple withdrawal of the earlier election petition, the petitioner has lost the right to challenge the election of the returned candidate by way of filing another petition. It is contended that in view of this, the election petition of the petitioner was rightly dismissed as not maintainable and no wrong is committed by the Election Tribunal. Thus, it is contended that the petition being devoid of merits, is liable to be dismissed. 3. After hearing the rival submissions of learned Counsel for the parties, it is to be seen whether on such a technical ground, rejection of the election petition was justified or not. The settled position of law is that if the specific provisions are made with respect to filing and conduct of an election petition, the said provisions of law are required to be fulfilled. If there is non-compliance of such mandatory provisions, the consequence is already provided in the Rules. The scheme of Rules prescribes that the election petition is to be presented as per Rule 3 of the Rules. The parties to the petition are prescribed in Rule 4 of the Rules. If there is non-compliance of such mandatory provisions, the consequence is already provided in the Rules. The scheme of Rules prescribes that the election petition is to be presented as per Rule 3 of the Rules. The parties to the petition are prescribed in Rule 4 of the Rules. The contents of the petition are prescribed in Rule 5 of the Rules. The relief which may be claimed by an election petitioner is prescribed in Rule 6 of the Rules. In definite words under Rule 7 of the Rules, the procedure for deposit of the security for the purpose of filing of an election petition is provided, which read thus : “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.” 4. The consequence of non-compliance of any such provisions of Rule 3, Rule 4 or Rule 7 of the Rules has been provided in Rule 8 of the Rules where it is specifically provided that while receiving the election petition, the Election Tribunal is required to see whether the compliance of the provisions of Rule 3, Rule 4 or Rule 7 of the Rules has been made or not. In definite words it is provided that in case of non-compliance of the aforesaid provisions of the aforesaid Rules, the Election Tribunal shall dismiss the election petition. However, the only other provision made is that before dismissal of the election petition on such grounds or for such reasons, an opportunity of hearing is required to be granted. But it nowhere relaxes the default of non-compliance of aforesaid Rules and even no power is conferred on the Election Tribunal to condone such defaults. 5. It is seen that the petitioner has filed the election petition calling in question the election of respondent No.2 on 22.02.2010. Along with the said election petition the petitioner has made a deposit of Rs.500/- as security, which was deposited on 19th February, 2010. The said election petition was entertained on 22.02.2010 itself by the Election Tribunal and the direction was issued for issuance of notice of the said election petition. Along with the said election petition the petitioner has made a deposit of Rs.500/- as security, which was deposited on 19th February, 2010. The said election petition was entertained on 22.02.2010 itself by the Election Tribunal and the direction was issued for issuance of notice of the said election petition. Instead of paying the process fees for issuing the notices of the said election petition, the petitioner moved an application on 06.03.2010 categorically contending that the election petition filed on 22.02.2010 was not properly drafted, there were certain errors of law and, therefore, the petitioner was willing to file a fresh election petition duly constituted. For the said purpose it was also said that because of filing of such an election petition, the petitioner was willing to withdraw the earlier election petition filed on 22.02.2010. Such a permission was granted on 06.03.2010. In the application, placed on record as Annexure P-3, no prayer was made for refund of the security amount deposited by the petitioner along with the first election petition. If this was not done, the amount was not to be reclaimed nor could be adjusted for the purposes of filing of another election petition. Even when the withdrawal was not made, it was contended that the election petition was being filed by the petitioner afresh. It further appears that the election petition was prepared and filed on 06.03.2010. If that was the situation, in fact the petitioner was required to make a deposit of the amount of security for the purpose of filing of the election petition on 06.03.2010 and she could have claimed a refund of the security amount, which was already deposited along with the earlier election petition. She could not have said that the amount deposited with the first election petition may be treated as deposit of security as per the provisions of Rule 7 of the Rules for the purpose of entertaining the second election petition. In fact the same challan of deposit was annexed with the election petition filed on second occasion, which was in fact for the purpose of deposit of security when the first election petition was filed. This cannot be said to be the compliance of Rule 7 of the Rules. 6. In fact the same challan of deposit was annexed with the election petition filed on second occasion, which was in fact for the purpose of deposit of security when the first election petition was filed. This cannot be said to be the compliance of Rule 7 of the Rules. 6. The Division Bench of this Court has considered the effect of non-compliance of the aforesaid provisions of law and the Rules in the case of Sarla Tripathi (Smt.) vs. Smt. Kaushilya Devi & others, 2004 (2) JLJ 263 . This has been categorically held by this Court that if any of the provisions of Rules 3, 4 or 7 of the Rules is not complied with, the only consequence of such non-compliance is nothing but the dismissal of the election petition in accordance to the provisions of Rule 8 of the Rules. In one of the cases where the deposit of security was made in cash, this Court has considered whether production of the receipt of deposit of security is required or not. This is not the case of the petitioner that she has made the deposit of security along with the second election petition filed by her in cash. Therefore, nothing was required to be done except dismissing the election petition of the petitioner and this has rightly been done by the Election Tribunal. 7. In view of the aforesaid, the order passed by the Election Tribunal is just and proper and need no interference by this Court in exercise of its power under Article 226 and Article 227 of the Constitution of India. The petition is wholly misconceived and deserves to be and is hereby dismissed. There shall be no order as to cost.