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2014 DIGILAW 466 (SC)

Raj Kumar v. Mukhtyar Singh

2014-04-22

A.K.SIKRI, S.S.NIJJAR

body2014
ORDER : 1. We have heard learned counsel for the parties. 2. Leave granted. 3. This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court in Civil Revision No. 8458 of 2010 dated 1.4.2011 dismissing the Revision Petition filed by the appellant herein. The appellant and the respondent No.1 were both candidates for Sarpanch of the Gram Panchayat, Gopalgarh, Tehsil Hodal, District Palwal, Haryana. It appears that both the appellant and Respondent No.1 got equal number of votes. Thereafter in the resulting draw of lots, respondent No. 1 was declared elected. His election was challenged by the appellant by filing an Election Petition under Section 176(4) of the Haryana Panchayati Raj Act, 1994 (hereinafter referred to as the Haryana Act). The Election Petition was filed in the Court of Civil Judge, Senior Division, Palwal. However, it appears that the petition was not presented to the Court by the appellant in person. Consequently, relying on the provisions contained in the Representation of People Act, 1950 in particular, Sections 80 and 81, the Election Petition was dismissed. The appellant thereafter filed a Revision Petition in the High Court, as noticed above. The aforesaid Revision Petition has also been dismissed by the High Court. 4. The High Court, in dismissing the Revision Petition relied on judgment of this Court in G.V. Sreerama Reddy and another v. Returning Officer and others reported in 2009 (8) SCC 736 wherein this Court has held as under :- "This Court, on previous occasions, had the chance to interpret Section 81(1). It must be noted that the Representation of the People Act is a special statute, and a self-contained regime. In K. Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi and Ors. (1969) 1 SCR 679 , a question arose whether 45 days period provided under Section 81(1) could be condoned through the application of the Limitation Act? After examining the relevant provisions of the Act, this Court held: ...the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act. 14. After examining the relevant provisions of the Act, this Court held: ...the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act. 14. This has been reiterated in Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133 , wherein this Court has again read the requirements under Section 81 strictly, while stating that the Act is a self- contained special statute. 15. While interpreting a special statute, which is a self-contained code, the Court must consider the intention of the Legislature. The reason for this fidelity towards the Legislative intent is that the statute has been enacted with a specific purpose which must be measured from the wording of the statute strictly construed. The preamble of the Representation of the People Act makes it clear that for the conduct of elections of the Houses of Parliament or the Legislature of each State, the qualification and disqualification for membership of those Houses, the corrupt practise and other offences in connection with such allegations the Act was enacted by the Parliament. In spite of existence of adequate provisions in the Code of Civil Procedure relating to institution of a suit, the present Act contains elaborate provisions as to disputes regarding elections. It not only prescribes how election petitions are to be presented but it also mandates what are the materials to be accompanied with the election petition, details regarding parties, contents of the same, relief that may be claimed in the petition. How trial of election petitions are to be conducted has been specifically provided in Chapter III of Part VI. In such circumstances, we are of the view that the provisions have to be interpreted as mentioned by the Legislature. 16. One can discern the reason why the petition is required to be presented by the petitioner personally. An election petition is a serious matter with a variety of consequences. Since such a petition may lead to the vitiation of a democratic process, any procedure provided by an election statute must be read strictly. 16. One can discern the reason why the petition is required to be presented by the petitioner personally. An election petition is a serious matter with a variety of consequences. Since such a petition may lead to the vitiation of a democratic process, any procedure provided by an election statute must be read strictly. Therefore, the Legislature has provided that the petition must be presented "by" the petitioner himself, so that at the time of presentation, the High Court may make preliminary verification which ensure that the petition is neither frivolous nor vexatious. 17. In this context, earlier decisions of this Court regarding the interpretation of Section 81(1) must be understood. In Sheo Sadan Singh v. Mohan Lal Gautam, 1969 (1) SCC 408 , in paragraph 4, this Court held that: 'The High Court has found as a fact that the election petition was presented to the registry by an advocate's clerk in the immediate presence of the petitioner. Therefore, in substance though not in form, it was presented by the petitioner himself. Hence the requirement of the law was fully satisfied.' Learned Counsel for the appellant submitted that even though the "form" of the provision was not followed, i.e. the petition was not presented "by" the petitioner "personally", in "substance", it was followed. It is to be noted that in Sadan Singh's case, it is not in dispute that the petition was presented to the Registry in the immediate presence of the petitioner. In other words, the officer authorised by the High Court had an opportunity to verify him but in the case in hand, admittedly, it was presented only by the advocate and the petitioners were not present before the Registrar (Judicial). In view of the same, the said decision is not helpful to the appellant's case. This is because the petitioner therein had, in substance, complied with the provision as strictly construed. 18. Learned Counsel appearing for the appellants relied on a decision of the High Court of Rajasthan (Jaipur Bench) in Bhanwar Singh v. Navrang Singh AIR 1987 Raj 63 . In the case before the learned Single Judge, the election petition had been presented by one Rajendra Prasad, Advocate and not by the petitioner himself. 18. Learned Counsel appearing for the appellants relied on a decision of the High Court of Rajasthan (Jaipur Bench) in Bhanwar Singh v. Navrang Singh AIR 1987 Raj 63 . In the case before the learned Single Judge, the election petition had been presented by one Rajendra Prasad, Advocate and not by the petitioner himself. It was argued by learned Counsel for the petitioner therein that election petition had been validly presented under Section 81(1) of the Act because Section 81(1) of the Act only makes a provision as to who can file an election petition and does not deal with as to who should actually present it before the Registry. It is further submitted that Section 81 of the Act nowhere provides that the petitioner should be physically present at the time of presentation of the election petition. The learned Single Judge, after adverting to the words - "by", "presented" concluded that these words used in Section 81(1) of the Act have to be given wide meaning and found that election petition filed through an advocate without the presence of candidate or elector is valid. We are unable to accept the said conclusion. 19. We have already pointed out that in spite of provisions in CPC and Evidence Act relating to institution of suit and recording of evidence etc. this Act provides all the details starting from the presentation of the election petition ending with the decision of the High Court. In such circumstances, it is but proper to interpret the language used by the Legislature and implement the same accordingly. The challenge to an election is a serious matter. The object of presenting an election petition by a candidate or elector is to ensure genuineness and to curtail vexatious litigations. If we consider Sub-section (1) along with the other provisions in Chapter II and III, the object and intent of the Legislature is that this provision i.e. Section 81(1) is to be strictly adhered to and complied with. 20. In view of the endorsement by the Registrar (Judicial) on 07.07.2008 that the election petition was presented only by an advocate and not by the election petitioners, we accept the reasoning of the High Court in dismissing the election petition. 20. In view of the endorsement by the Registrar (Judicial) on 07.07.2008 that the election petition was presented only by an advocate and not by the election petitioners, we accept the reasoning of the High Court in dismissing the election petition. We further hold that as per Sub-section (1) of Section 81, election petition is to be presented by any candidate or elector relating to the election personally to the authorised officer of the High Court and failure to adhere such course would be contrary to the said provision and in that event the election petition is liable to be dismissed on the ground of improper presentation. Since, the High Court has correctly dismissed the election petition, the civil appeal fails and the same is dismissed with no order as to costs." 5. Apart from the aforesaid observations, the High court has also relied on a judgment of the Punjab and Haryana High Court in Gurlal Singh v. Presiding Officer, Election Tribunal, Block Lehra, District Sangrur and others reported in 2010 (5) RCR (Civil) 474 which has been rendered under the Punjab State Election Commission Act, 1994. Before the High Court a submission was made on behalf of the appellant that no reliance can be placed on the provisions of the Representation of People Act, 1950 or on the provisions contained in the Punjab State Election Commission Act, 1994 (hereinafter referred to as the 'Punjab Act') as the provisions contained under the Haryana Act are different. 6. The High Court, has, however, negatived the aforesaid arguments with the following observations :- "So far as argument of learned counsel for the petitioner that there is no provision under Haryana Act like Section 80 of the Punjab Act that if petition is not presented in person, as required under Section 76 of the Punjab Act, the same shall be dismissed, is concerned, I am of the view that the said fact is not of any help to the case of present petitioner. Once, a provision is held to be mandatory in nature, non-compliance of the said provision would be having obvious effect, i.e., dismissal for noncompliance." 7. On this basis it has been held that since the provisions contained in Section 176 of the Haryana Act was mandatory, the non presentation of the petition in person by the Election Petitioner would entail dismissal of his petition. 8. On this basis it has been held that since the provisions contained in Section 176 of the Haryana Act was mandatory, the non presentation of the petition in person by the Election Petitioner would entail dismissal of his petition. 8. Challenging the aforesaid conclusion, it is submitted by Mr. B.S. Mor that the aforesaid three Acts i.e. the Representation of People Act, 1950, Haryana Act and the Punjab Act are independent acts and the provisions of each Act have to be interpreted independently. Therefore, the provisions of the Haryana Act have to be interpreted by making a reference to that Act alone. 9. We find substance in the submissions made by the learned counsel for the appellant. The provision contained in Section 176 of the Haryana Act, 1994 is not followed by a consequential section entailing dismissal of the Election Petition, if it is not presented by the Election Petitioner in person. On the other hand, in both Section 81 of the Representation of People Act and Section 80 of the Punjab Act, non presentation of the Election Petition by the Election Petitioner by himself/herself would entail dismissal. Clearly, therefore, the Haryana Legislature had intended to make the provision in Section 176 procedural. Thereby making the defect in non-presentation of the Election Petition by the Election Petitioner in person curable. A discretion has been vested in the Court to permit the Election Petitioner to cure the defect by appearing before the Court on a later date, if so directed by the Court. 10. In view of the above, we find that the judgments of the Courts below cannot be sustained and have to be set aside. Although the appellant succeeds on the point of law, unfortunately it would only be pyrrhic victory, as no advantage can now, possibly accrue to the appellant. Since more than four years have elapsed and the next elections are round the corner, no useful purpose would be served by remanding the matter to the Trial Court for fresh consideration of the Election Petition filed by the Election Petitioner. 11. The appeal is, accordingly, disposed of.