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2016 DIGILAW 532 (RAJ)

Jannati v. State of Rajasthan

2016-04-18

M.N.BHANDARI, VIJAY KUMAR VYAS

body2016
ORDER : By these writ petitions validity of Rule 81 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short “Rules of 1994”) has been challenged. Learned counsel for the petitioners submit that explanation appended to Rule 81 of the Rules of 1994 is in conflict with Section 43 of Rajasthan Panchayati Raj Act 1994, (for short “Act of 1994), thus it may be struck down. Learned counsel submit that as per Section 43 of the Act of 1994, an election can be called in question by any candidate at such election by presenting a petition in the prescribed manner to the District Judge. As per the mandate of Section 43 of the Act of 1994, presentation of the petition has to be by a candidate at such election. The explanation appended to Rule 81 of the Rules of 1994, however, allows presentation of the petition by the person making the petition or by a person authorized in writing in this behalf by the person making the petition. The explanation authorized any other person to present the election petition whereas it is not so permitted under Section 43 of the Act of 1994. The explanation to the rule 81 is thus in conflict with the Act thus deserves to be struck down. In view of the above, while declaring explanation to Rule 81 (1) of the Rules of 1994 to be illegal, the election petition preferred by the respondent be held to be not maintainable. To support the arguments, judgment of the Apex Court in the case of G.V. Sreerama Reddy and Another Vs. Returning Officer and Others reported in (2009) 8 SCC 736 has been referred. We have considered the submissions made by the learned counsel for the petitioners and scanned the matter carefully. The explanation to Rule 81(1) of the Rules of 1994 has been challenged. It is said to be in conflict with Section 43 of the Act of 1994. It would be gainful to refer Rule 81 of the Rules of 1994 and also Section 43 of the Act of 1994. Both the provisions are quoted hereunder for ready reference:- “43. The explanation to Rule 81(1) of the Rules of 1994 has been challenged. It is said to be in conflict with Section 43 of the Act of 1994. It would be gainful to refer Rule 81 of the Rules of 1994 and also Section 43 of the Act of 1994. Both the provisions are quoted hereunder for ready reference:- “43. Determination of dispute as to elections.- (1) An election under this Act or the rules made there under may be called in question by any candidate at such election by presenting in the prescribed manner to the District Judge having jurisdiction a petition in this behalf on the prescribed grounds and within the prescribed period: Provided that an election petition presented as aforesaid may, for the reasons to be recorded in writing, be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him. (2) A petition presented under sub-section (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final.” “81. Who may present election petition.- (1) A petition under rule 80 may be presented by any candidate at such election. Explanation.- The petition shall be deemed to have been duly presented, if it is delivered by the person making the petition or by person authorised in writing in this behalf by the person making the petition. (2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 500/- alongwith the petition by way of security for the costs of the opposite party. (3) The petitioner shall also send a copy of the petition under a certificate of posting to the District Election Officer (Panchayats) concerned.” Section 43 of the Act of 1994 first provides that an election may be called in question by any candidate at such election. In view of the above, the petition to challenge the election has to be by any candidate at such election. The Act further provides about its presentation. It should be in the prescribed manner to the District Judge having jurisdiction. The second part makes a reference about the presentation of a petition and it has to be in the prescribed manner. The manner of the presentation has not been given under the Act but given under Rules of 1994. The Act further provides about its presentation. It should be in the prescribed manner to the District Judge having jurisdiction. The second part makes a reference about the presentation of a petition and it has to be in the prescribed manner. The manner of the presentation has not been given under the Act but given under Rules of 1994. According to the learned counsel for the petitioners, it is not only that the petition has to by the candidate at such election but its presentation should also by him only. The explanation appended to Rule 81(1) provides the manner of presentation of the petition. It provides about delivery of the petition by the person making the petition i.e. by the candidate at such election or by person authorized in writing. The explanation appended to Rule 81(1) cannot be said to be in conflict with Section 43 of Act of 1994 rather it supplants the main provision of the Act of 1994, though according to the petitioner, it is supplanting it. In our opinion, Section 43 of the Act of 1994 has two parts and is to be given interpretation accordingly. As per the first condition, the election can be called in question only by a candidate at such election, thus there exists necessity of a petition only by a candidate at such election. The second part talks about its presentation. As per Section 43, of the Act of 1994, the petition needs to be presented to the District Judge in the manner prescribed. What is the prescribed manner for presentation of petition is given under the Rule 81(1) of the Rules of 1994. It allows presentation of the petition by any candidate at such election, however, explanation appended to it has a deeming clause where presentation of petition can by the candidate himself or on his behalf on an authority is given in writing. If the presentation of petition is made in the manner prescribed under Rule 81(1) of the Rules of 1994 and explanation given thereunder, it can not be said to be in conflict to the Section 43 of the Act of 1994. The learned counsel for the petitioners have given reference of the judgment of the Apex Court in the case of G.V. Sreerama Reddy (supra). The learned counsel for the petitioners have given reference of the judgment of the Apex Court in the case of G.V. Sreerama Reddy (supra). Therein Section 81(1) and (3) read with Section 86(1) of Representation of People Act 1951 (for short 'Act of 1951') was given interpretation. The provision thereunder is different than exists under the Act of 1994 and Rules of 1994. Para 9 of the said judgment makes a reference of Section 81(1) of the Act of 1951 thus quoted hereunder. “9. Section 81 relates to presentation of election petitions which reads thus: "Presentation of 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 High Court by any candidate at such election or 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 dates of their election are different, the later of those two date. Explanation.- In this subsection, "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) Omitted by Act 47 of 1966 with effect from 14.12.1966. (3) 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." Sub-section (1) makes it clear that any challenge or dispute relating to an election may be presented in the form of an election petition highlighting the grounds specified in subsection (1) of Sections 100 and 101. It further mandates that the election petition is to be filed only before the High Court having jurisdiction either by any candidate or any elector within the prescribed time. As per sub-section (1), election petition is to be filed within 45 days from the date of election of the returned candidate.” The perusal of Section 81(1) of the Act of 1951 requires a petition before the High Court by any candidate at such election or any elector. As per sub-section (1), election petition is to be filed within 45 days from the date of election of the returned candidate.” The perusal of Section 81(1) of the Act of 1951 requires a petition before the High Court by any candidate at such election or any elector. The language of Section 81 of the Act of 1951 does not suggest presentation of the petition in prescribed manner but requires it to be a candidate or elector. The word “by” has been given interpretation which is after taking into consideration the language of Section 81 of the Act of 1951, which is quite different than the Section 43 of the Act of 1994. Under Section 43 of the Act of 1994, word “by” has been used at two places. Firstly, for maintaining a petition. It is by the candidate at such election. The interpretation of “by” herein is to be taken in the same manner, as has been given by the Apex Court in the case (supra). The word “by” at second place has been used for presentation of the petition in the prescribed manner. The word “by” does not refer to a candidate but refers to presentation of the petition in prescribed manner. The manner to present a petition has been given under the Rules, thus in our opinion and as per the discussion made above, the explanation to Rule 81 of the Rules of 1994, providing deeming clause for presentation of the election petition cannot be said to be in conflict with Section 43 of the Act of 1994. In view of the above, we are unable to accept the challenge made by the petitioners to explanation to Rule 81(1) of the Rules of 1994. These writ petitions are accordingly dismissed. The petitioners would, however, be at liberty to take all the issues available to them to contest election petition and, therein, a liberty would be to show that the presentation of the election petition was not in the prescribed manner and for it this judgment would not affect them in any manner.