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Madhya Pradesh High Court · body

2017 DIGILAW 399 (MP)

Akbar Kha v. Prathviraj

2017-03-23

VIVEK RUSIA

body2017
ORDER 1. The petitioner along with respondents No.1 to 8 contested election for the post of Sarpanch of Gram Panchyat, Muwala, Tahsil, Sitamau, District Mandsaur. The election was held on 9.2.2015 and the Returning Officer declared respondent No.1 elected as Sarpanch. The petitioner filed election petition on 5.3.2015 challenging the election of respondent No.1. The election petition was presented before the prescribed authority on 5.3.2015 who has fixed the date for arguments on admission on 12.3.2015. On 12.3.2015 and 16.3.2015, the arguments could not be taken place. On 17.3.2015, counsel Shri G. S. Rathore, appeared and argued on admission and the Court has admitted the petition and directed to pay process fee for issuance of notice to the respondent. Thereafter, respondent No.1 appeared on 8.4.2015 and on 15.4.2015, he filed an application dated 8.4.2015 for dismissal of the election petition for non-compliance of mandatory provision of rule 3 of Panchyat (Election Petition Corrupt Practices and Disqualification of Membership) Rules, 1995. He has alleged that the election petitioner has not signed the election petition as true copy/certified copy and additional copy given for notice to the respondent were also not signed by the petitioner himself as true copy. The petitioner filed the reply to the said application by submitting that he has signed the election petition and all the copies as true copy. 2. The SDO, vide order dated 27.4.2015 upheld the objection taken by respondent No.1 and dismissed the election petition for non-compliance of rule 3(2), of the Rules, 1995, hence the present writ petition. 3. Shri Abhishekh Tugnawat, counsel appearing on behalf of the petitioner submits that the impugned order passed by the learned cannot be sustained as he himself admitted the petition after being satisfied that the election petition was filed in accordance with the rules, 3, 4 and 7 of the Election Rules, 1995, therefore, he has no right to dismiss the petition later on for non-compliance of rule 3. He has further submitted that the petitioner has signed the election petition, which is reflected from Annexure P-1, which is certified copy issued by Tahsildar, Sitamau, in which, name, signature, place and date is reflected. In support of his contention, he has placed reliance over the order dated 3.8.2016 of this Court passed in Writ Petition No.4181/2015 (Brajrajsingh s/o Mangusing v. Padamsingh s/o Roopsingh Chouhan and others). In support of his contention, he has placed reliance over the order dated 3.8.2016 of this Court passed in Writ Petition No.4181/2015 (Brajrajsingh s/o Mangusing v. Padamsingh s/o Roopsingh Chouhan and others). Placing reliance over the aforesaid order, he has further submitted that even if there was defect, learned authority could have given opportunity to cure the same and if the petitioner fails to remove the defects despite opportunity, then the petition is liable to be dismissed. 4. Shri K. K. Tiwari, counsel for the respondent submits that learned authority after perusing the record and under the provision of Election Rules, 1995 has rightly dismissed the election petition. The conditions are mandatory in nature and if the same has not been followed, it lead to dismissal of the petition. He has placed reliance over the order delivered in the case of Rakesh v. Returnign Officer, reported in 2012(III) MPWN 121 and Uday Singh v. Himmat Singh and others, reported in 1999(1) JLJ 200 . 5. At the outset, it is submitted that copy of election petition filed as Annexure P-1 is certified copy issued by the Tahsildar, Sitamau, which reflects that each and every page of the election petition is signed by the petitioner. Election petition was presented by the petitioner himself. There is verification also signed by the petitioner, therefore, the main copy of the election petition which was filed before the SDO was in compliance of the rule 3. 6. So far as the numbers of copies filed along with the main election petition for service to the respondent are concerned, they are required to be signed by the petitioner to be a true copy of the petition. All the copies have been dispatched to the respondent and were not available on record. 7. Learned authority has decided the objection on the basis of talwana form, by which, it cannot be decided whether copies were signed or not. 8. Even otherwise, the compliance of the rules 3, 4 and 7 of M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) 1995 are required to be seen by the prescribed authority at the time of filing of the election petition. If these rules are complied with, then only the petition is required to be admitted and notices are directed to be issued to the respondent. If these rules are complied with, then only the petition is required to be admitted and notices are directed to be issued to the respondent. Rules 3, 4, 7 and 8 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) 1995 is reproduced below : 3. Presentation of election petition :- (1) An election petition shall be presented to the specified Officer during the office hours by the person making the petition, or by a person authorized in writing in this behalf by the person making the petition. (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 petition. 4. Parties to the petition :- Where the petitioner in addition to claiming a declaration that the election, of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected he shall join as respondents to his petition all the contesting candidates at the election. 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. 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. 9. Rule 8 specifically provides that 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 after giving opportunity of hearing. Here vide order dated 17.3.2015, after hearing counsel for the petitioner and after verification of record, notices were issued to the respondents. Notices are issued to the respondent/s under the rule 9, therefore, compliance of rules 3, 4 and 7 are to be seen before admission of the election petition. Here vide order dated 17.3.2015, after hearing counsel for the petitioner and after verification of record, notices were issued to the respondents. Notices are issued to the respondent/s under the rule 9, therefore, compliance of rules 3, 4 and 7 are to be seen before admission of the election petition. Once the petition is admitted, the same cannot be dismissed later on for non-compliance of rules, 3, 4 and 7. After issuance of the notice and appearance of the parties, the Tribunal cannot go back to rule 8 for dismissal of the petition. After conducting entire trial, the Court can decide the petition or declare the result as void on the ground mentioned in rules 21 and 22. 10. This Court in the case of Brajrajsingh s/o Mangusing (supra), has held that if the defect pointed out is curable and the election petition is liable to be dismissed only when the defects are not cured despite the opportunity are given. In the application, the respondent has not mentioned that he has compared the copy of the election petition, which he received with the original copy of the election petition filed in Court. In absence of such averments, it cannot be held that the copy which the respondent has received is not true copy of the election petition. 11. In view of the above, learned SDO has not considered all these aspects. Accordingly, the impugned order is set aside and the matter is remanded back to the authority to decide afresh in accordance with the provisions of the Rules, 1995. Present writ petition is allowed. No order as to cost.