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2016 DIGILAW 933 (MP)

Laxmi v. Beena

2016-10-19

PRAKASH SHRIVASTAVA

body2016
ORDER 1. This writ petition under Article 227 of the Constitution has been filed by the petitioner challenging the order of the Election Tribunal dated 22.1.2016 whereby the petitioner’s objection relating to non-compliance of the rule 3(2) of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules 1995, has been rejected. 2. In brief, the respondent No.1 had filed the election petition under section 122 of the M.P. Panchayat Evam Gram Swaraj Adhiniyam 1993 challenging the election of the petitioner to the post of sarpanch and the petitioner had filed an application before the Election Tribunal raising an objection that the copy of election petition along with the list of documents supplied to the petitioner was not authenticated by the respondent No.1 by signing on them as true copy, hence, there was non-compliance of rule 3(2) of the Rules of 1995 and election petition was liable to be dismissed under rule 8. The Election Tribunal by the impugned order has rejected the said application. 3. Learned counsel for petitioner submits that the requirement of authenticating the copy of election petition and the documents supplied to the petitioner is a mandatory requirement and since the requirement of rule 3(2) has not been complied with, therefore, the election petition ought to have been dismissed. 4. As against this, learned counsel for respondent No.1 has supported the impugned order. 5. Having heard the learned counsel for parties and on the perusal of the record, it is noticed that the Election Tribunal on examination of the record has found that the election petition was signed by the respondent No.1 as well as his advocate. Respondent No.1 had filed the photocopy of the said election petition, the original of which contain the signature of the election petitioner and his advocate and the same was supplied by the Election Tribunal to the petitioner. It has been noted by the Tribunal that since original election petition contains the signature and photo copy of the said signed original petition has been supplied to the petitioner which is the correct true copy, therefore, photocopy was not required to be again signed by the respondent No.1. Same was the position in respect of documents supplied to the petitioner, hence the Election Tribunal has taken the view that the compliance of rule 3(2) has been done. 6. Same was the position in respect of documents supplied to the petitioner, hence the Election Tribunal has taken the view that the compliance of rule 3(2) has been done. 6. Hence the nature and scope of rule 3(2) of the Rules of 1995 needs consideration which reads as under :- “[2] 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 petitioner”. 7. The consequence of non-compliance of rule 3(2) is given in rule 8 of the Rules of 1995 which provides that in case of non-compliance of rule 3, the petition shall be dismissed by the specified officer. 8. The above rule 3(2) in clear terms provides that “every such copy shall be attested by the petitioner under his own signature”. 9. The requirement of the above rule is very clear that the copy of election petition filed for supplying to the respondent must be attested by the petitioner under his own signature. The above rule requires the election petitioner to put his original signature in the copy of the election petition to authenticate the copy to be the true copy of the election petition. The object is that the petitioner must take the responsibility of the copy being a true copy of the original petition by putting his original signature in the copy in token thereof. Therefore, if the original copy of the election petition contains the signature of the election petitioner and its photocopy is taken having the impression of the signature of the petitioner taken from the original without there being the original signature of the election petitioner in the copy of the election petition authenticating it to be the true copy of the original, then there is non-compliance of the provisions contained in rule 3(2) of Rules of 1995. Since the requirement is to have the authentication by the original signature of the election petitioner, therefore, supplying the photocopy containing copy of the impression of the signature instead of the original signature cannot be treated to be the substantial compliance of the provision. Such a compliance cannot be accepted also for the reason that possibility of interpolation or manipulation at the time of taking the photocopy of the original document, cannot be ruled out. 10. Such a compliance cannot be accepted also for the reason that possibility of interpolation or manipulation at the time of taking the photocopy of the original document, cannot be ruled out. 10. The aforesaid view is duly supported by the judgment of the Supreme Court in the matter of F.A.Sapa Etc v. Singora and others, reported in AIR 1991 SC 1557 , wherein the para materia provision contained in section 81(3) of the Representation of the People Act has been considered and it has been held that the petitioner must attest the copy under his own signature to be the true copy of the petition. Similarly in the matter of M.Kamalam v. Dr.V.A.Syed Mohammed, reported in AIR 1978 SC 840 , it has been held that when the original signature is made by the petitioner on the copy of the election petition, the compliance of section 81(3) can be presumed, therefore, the emphasis is on putting the original signature on the copy of the election petition. In the matter of Ajay Maken v. Adesh Kumar Gupta and another, reported in (2013)3 SCC 489 , the Supreme Court while drawing the distinction between the failure to attest copy of the election petition furnished to the respondent to be true copy of the election petition and failure to sign and verify the original copy of the election filed in the Court has held that the former being in non-compliance with section 81(3) would entail dismissal of the election petition under section 86. This Court also in the matter of Dr. Omprakash Soni v. Ashok Kumar Bhargava and others, reported in AIR 1996 MP 43 , Amol Singh v. Hamir Singh, reported in 1996(1) MPWN 122, Baijulal Verma v. Addl. Collector, Chhindwara and others reported in 2010(1) MPHT 477 , and Rakesh v. Returning Officer, Panchayat Nirvachan and others, reported in 2012(III) MPWN 121 = 2012(5) MPHT 194 , considering rule 3(2) of the Rules of 1995 has held that the said Rule is mandatory in nature and if the copy of the election petition for service to the respondent is not attested by the petitioner under his own signature to be the true copy of the petition, then there is non-compliance of rule 3(2) and the same would entail dismissal of the election petition under rule 8 which is mandatorily worded. Same is the view taken by the Punjab and Haryana High Court in the matter of Mrs.Vinod (Vinod Chadha) v. Kirpal Singh Dhillon and another, reported in AIR 1987 P and H 110. 11. Counsel for respondent has placed reliance upon the judgment of this Court in the matter of Mrs. Indira Singh v. Mrs. Anjana Sharma and others, reported in 2006(4) MPHT 152 , but that was a case where though the copy of the election petition was signed by the election petitioner but the words 'attested true copy' were missing, therefore, this Court has taken the view that the defect was not fatal, but in the present case the original signature of the election petitioner itself is missing in the copy of the election petition supplied to the respondent in the election petition. Similarly the judgment of single bench of this Court in the matter of Ku. Parwati Bai Thakur v. State of M.P. and others, reported in 2007(3) MPHT 63 , is distinguishable since in that case also the copy supplied to the respondent was signed by the election petitioner on every page though there was no mentioning of the word 'true copy', hence this Court has held that there is substantial compliance of rule 3(2). 12. Keeping in view the aforesaid position in law since in the present case the copy of the election petition supplied to the present writ petitioner (respondent in the election petition) does not bear the original signature of the election petitioner, therefore, there is clear non-compliance of rule 3(2) of the Rules of 1995. Therefore, the mandatory provision contained in Rule 8 is attracted entailing the dismissal of the election petition. The trial Court has failed to consider the above aspect of the matter, hence the impugned order of the trial Court is set aside and the application filed by the petitioner under rule 3(2) read with rule 8 of Rules of 1995 is allowed and election petition filed by the respondent No.1 is dismissed.