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2012 DIGILAW 539 (MP)

Rakesh v. Returning Officer, Panchayat Nirvachan

2012-05-16

N.K.MODY

body2012
ORDER 1. Prayer in the petition is for quashment of order dated 16.8.2010 (Annexure P-3) passed by Sub-Divisional Officer, Neemuch in Case No.2/C-144/2009-10 whereby election petition filed by the petitioner was dismissed. 2. Short facts of the case are that in the election of Sarpanch of Gram Panchayat Chitakheda, which took place on 18.1.2010, Basantilal respondent No.10 was elected as Sarpanch. Elelction petition was filed by the petitioner under section 122 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, wherein the validity of the election of Sarpanch held on 18.1.2010, was challenged. The application was filed by respondent No.10 under rule 3(2) and 8 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 alleging that copies of the election petition filed by the petitioner ought to have been accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy was to be attested by the petitioner under his own signature to be a true copy of the petition. In the application, it was alleged that neither the requisite copies of the election petition were filed by the petitioner nor they are signed as per rule 3, therefore, the petition was dismissed. The application was contested by the petitioner. After hearing the parties, learned counsel for the parties, learned Court below allowed the application filed by respondent No.10 and dismissed the election petition filed by the petitioner against which present petition has been filed. 3. Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be dismissed. Learned counsel submits that election petition, which was filed before the Court below bears signture of the petitioner. The election petition has not been dismissed by the learned Court below on the ground that requisite copies have not been filed by the petitioner and some of the copies do not bear the signature of the petitioner. It is submitted that there was substantial compliance, therefore, election petition could not have been dismissed by the learned Court below. The election petition has not been dismissed by the learned Court below on the ground that requisite copies have not been filed by the petitioner and some of the copies do not bear the signature of the petitioner. It is submitted that there was substantial compliance, therefore, election petition could not have been dismissed by the learned Court below. For this contention, reliance is placed on a decision of this Court in the matter of Rajendra Bharti v. Narotam Mishra [ILR (2010) M.P. 1132], wherein preliminary objection of respondent that the copy served on the respondent is not attested as true copy and the same being in violation of section 81(3) of the Representation of the People Act. This Court has held that in the absence of complete and total non-compliance of section 81(3) of the Act, election petition cannot be legally dismissed in limine. Learned counsel submits that in the facts and circumstances of the case, petition filed by the petitioner be allowed and the impugned order passed by the Court below be set aside. 4. Shri C.L. Yadav, Senior Advocate appearing for the respondent No.10 has placed reliance of rules 3 and 8 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 which reads as under : “3. Presentation of Election 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.” 5. Learned counsel for the respondent No.10 submits that provisions are mandatory in nature. Learned counsel has placed reliance on a decision in the matter of Dr. Omprakash Soni v. Ashok Kumar Bhargava and others [ AIR 1996 M.P. 43 ], wherein this Court has held that Rules in question are mandatory, failure would lead to summary dismissal of election petition. It was also observed that attestation by Advocate would not save petitioner. Further reliance is placed on a decision in the matter of Uday Singh v. Himmat Singh and others [ 1999(1) JLJ 200 ], wherein election petition neither signed nor verified. It was also observed that attestation by Advocate would not save petitioner. Further reliance is placed on a decision in the matter of Uday Singh v. Himmat Singh and others [ 1999(1) JLJ 200 ], wherein election petition neither signed nor verified. This Court has also held that even if it is assumed that it could be amended the petition is liable to be dismissed for non-compliance of rule 3(2). It is submitted that in the facts and circumstances of the case, learned Court below committed no error in dismissing the election petition filed by the petitioner. It is also submitted that the petition has no substance and the same be dismissed. 6. This Court in the matter of Tikaram v. Darshanlal [1988(I) MPWN 139], wherein this Court held that even if attested copies of election petition not filed, the same may be filed later on. Further reliance is placed on a decision of this Court in the matter of Kusum Singh Mahdele v. Shri Shrikant Dubey, decided on 15.11.2010 in Election Petition No.5/2009 (Jabalpur), wherein this Court observed that copy of petition furnished to respondent is apparently an exact photocopy of original reflecting photo impressions of signature of petitioner on each page thereof, hence, it can safely be concluded that the object underlying provision of section 81(3) of the Act is duly fulfilled. Lastly, reliance is placed on a decision in the matter of Ku. Parwati Bai Thakur v. State of M.P. [2007(2) Vidhi Bhasvar 107= 2007(3) MPHT 63 ], wherein copy of election petition supplied to the respondent was signed by the election petitioner on every page though there was non-mention of the words “true copy”, it was held that there was substantial compliance of rule 3(2) and hence the writ petition. 7. The object of serving a “true copy” of an election petition and the affidavit filed in support of the allegations on the respondent in election petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form. The requirement is, thus, of substance and not of form. In a decision of Hon’ble apex Court in the matter of T.M. Jacob v. C. Poulose [ AIR 1999 SC 1359 ], wherein Hon’ble apex Court held that since copies of the petition served on the returned candidate did not contain signatures of the petitioner below the word “petitioner” on the copies of the petition served on the respondent, they had ceased to be true copies of the original petition. 8. In the facts and circumstances of the case, this Court is of the view that learned Court below committed no error in dismissing the election petition filed by the petitioner as the petitioner failed to fulfil the mandatory requirement of rule 3 of the Rules and the objection was raised at the initial stage. 9. In view of this petition filed by the petitioner has no merits and the same stands dismissed.