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2019 DIGILAW 1361 (RAJ)

Panna Ram v. Ramu Ram

2019-05-03

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition claiming the following reliefs: "It is, therefore, most respectfully prayed that the writ petition of the petitioner may kindly be allowed with cost and appropriate order, writ, or direction, the impugned order dated 29.03.2019 (Annexure-5) passed by learned Senior Civil Judge Nagour, may kindly be set aside; and consequence thereof the application may kindly be allowed. Any other appropriate writ, order or direction, which may be considered just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner." 2. Brief facts of the case as noticed by this Court are that the election of Gram Panchayat Aakala, Tehsil Khivsar, District Nagaur which was held on 28.01.2015, in which, the petitioner was declared as the successful candidate for the post of Sarpanch and the respondent filed an election petition on the ground of forged and false information being given alongwith nomination paper. The election petition was submitted on 21.02.2015 before the Munsarim of the learned District Court, Merta. The petitioner has moved an application under Order 7 Rule 11 CPC submitting that the election which happened on 28.01.2015 could have been challenged only within a period of 30 days from declaration of the result and that too in the right spirit of Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the "Act of 1994"). 3. Learned counsel for the petitioner submits that the petition as per Section 43 of the Act of 1994 was required to be presented before the learned District Judge on or before 28.02.2015, whereas the respondents have moved the election petition only before the Munsarim of the learned District Judge on 28.02.2015, which did not confirm to the parameters laid down under Section 43 of the Act of 1994. Section 43 of the Act of 1994 reads as follows: "43. Determination of dispute as to elections. Section 43 of the Act of 1994 reads as follows: "43. Determination of dispute as to elections. - (1) An election under this Act or the rules made thereunder 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 of 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-sec. (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final. 1 Deleted by Notification No.F 4(1)/Vidhi/2/2000 (Ordinance No.2 of 2000) dated 6-1-2000, published in Rajasthan Government Gazette Extraordinary, Part 4 (Kha), Dated 6-1-2000 with immediate effect (Act No.9 of 2000)." 4. Learned counsel for the petitioner has relied upon Rule 432 of the General Rules (Civil), 1986 (herein after referred to as the "Rules of 1986"), as it clearly provides that no delegation of duties would be permitted to Munsarim, where the specific performance of such duty was imposed by the legislature upon the court itself. Rule 432 of the Rules of 1986, reads as under: "Rule 432 Delegation of Duty. - No duty the performance of which is specifically imposed by the Legislature upon the court itself, shall be delegated to the Munsarim or any other officer." 5. Learned counsel for the petitioner has distinguished Rule 32 of the Rules of 1986 from being applicable in the present case by stating that in ordinary circumstances, where Civil Procedure Code is applicable, Rule 32 of the Rules of 1986 will come into operation but once the legislature makes special designation of a particular authority for the purpose then he shall only be entitled to receive the presentation of the petitioner. Rule 32 of the Rules of 1986, reads as under: "Rule 32 Duty of Munsarim or Reader in respect of plaints. Rule 32 of the Rules of 1986, reads as under: "Rule 32 Duty of Munsarim or Reader in respect of plaints. - A Munsarim or Reader of a civil court appointed to receive plaints shall examine each plain presented to him, and shall report thereon whether the claim is within the jurisdiction of the court, constitutes a cause of action, and has been presented within the period prescribed for the institution of such a suit. The Munsarim or reader shall see that the actual date of the presentation of the plaint is entered upon the impressed stamp and adhesive label, if any, below the date of purchase endorsed on them. On the back of all plaints the Munsarim or Reader shall note:- (a) date and time of presentation of the plaint. (b) Name of presenter, (c) classification of suit, and (d) court fee paid." 6. Learned counsel for the petitioner has also submitted that Section 3 (17) of the General Clauses Act, clearly defines a District Judge and once the District Judge himself was only entitled to take the petition in accordance with Section 43 of the Act of 1994, then no other authority could have been delegated with the power to take the presentation of the election petition. Section 15 of the General Clauses Act has also been relied upon by learned counsel for the petitioner whereby it was the requirement of law that any duty which has been imposed upon any authority, the authority shall be required to perform such duty unless there is different intention which appear. Section 3(17) and Section 15 of the General Clauses Act, reads as follows: "Section 3(17) - "District Judge" shall mean the judge of a principal Civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction;" "Section-15 - Power or duty to be exercisable from time to time :- Where, by any Rajasthan Law, any power is conferred or any duty is imposed then, unless a different intention appears, that power may be exercised and that duty shall be performed from time to time as occasion requires." 7. Learned counsel for the petitioner on being questioned whether the Order 7 Rule 11 CPC was applicable on the election petition has submitted that even if Order 7 Rule 11 CPC was not applicable, then also Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 puts in the rider of the limitation law, which is 30 days and which is a statutory requirement and cannot be overcome by the election tribunal for adjudicating the dispute any further. 8. Learned counsel for the petitioner has however submitted that the categorical mention of word 'District Judge' is different from the word 'District Court' in various legislations and the word 'District Judge' means the Judge himself who is supposed to take the presentation in accordance with Section 43 of the Act of 1994. 9. Learned counsel for the respondent submits that broadly if the Civil Procedure Code and Order 7 Rule 11 CPC is made applicable then the Rules of 1986, shall also be applicable. 10. Learned counsel for the respondent however, submits that the legislative intention behind Section 43 of the Act of 1994 was that the presentation of the election petition has to be done in the office of District Judge and does not mean that the District Judge himself shall be presented a copy of the election petition. 11. Learned counsel for the respondent further submits that there is a mechanism for presenting the petitions before the courts and such mechanism includes the court staff which is Munsarim or Reader in such courts, who is empowered under Rule 32 of the Rules of 1986 to accept the presentation of the petition and then enter it alongwith all other details of the plaintiff or the presenter. 12. Learned counsel for the respondent also submits that Rule 432 of the Rules of 1986 is regarding the delegation of judicial duties, which cannot be done in any case to any staff other than the Judge himself. 13. Learned counsel for the respondent submits that Section 3 (17) and Section 15 of the General Clauses Act, have to be read in consonance with the civil rules, which prescribed a definite modus-operandi for presenting a petition and which remains uniform for all kind of presentations, whether it be a presentation of election petition or any other ordinary suit. 14. Learned counsel for the respondent submits that Section 3 (17) and Section 15 of the General Clauses Act, have to be read in consonance with the civil rules, which prescribed a definite modus-operandi for presenting a petition and which remains uniform for all kind of presentations, whether it be a presentation of election petition or any other ordinary suit. 14. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the provisions applicable, this Court is of the opinion that the procedural laws shall be broadly applicable wherever the specific or special law is silent. A condition of procedure which is not being dealt with by the special law, shall have to be operated with the help of the statutory procedural law as prescribed. 15. This Court finds that though the presenting authority for the election petition is a District Judge but that is to overcome the Section 15 of Civil Procedure Code, which requires every plaint and presentation to be made before the lowest competent court. Since the special duty was cast upon a Judge in the election matter, therefore, it was deemed appropriate by the legislator that such sensitive work shall be discharged only by an officer as senior as District Judge, and therefore, the legislative intention of Section 43 of the Act of 1994 was that the District Judge shall be the forum where the election tribunal would be conducting itself. 16. This Court also finds that Section 3(17) and Section 15 of the General Clauses Act have no bearing upon the facts of the present case as the meaning or the definition of District Judge is not under challenge by either of the parties and it is an accepted position that the District Judge shall be judge of principal civil court of original jurisdiction and does not require any further deliberation by this Court as it is not disputed by the respondents that the equivalent courts were holding the election tribunal. The issue under adjudication is whether the presentation was done by the election petitioner within the period of 30 days as prescribed. 17. It is an accepted fact that the election had taken place on 28.01.2015 whereas the election petition was presented before the Munsarim on 28.02.2015. The issue under adjudication is whether the presentation was done by the election petitioner within the period of 30 days as prescribed. 17. It is an accepted fact that the election had taken place on 28.01.2015 whereas the election petition was presented before the Munsarim on 28.02.2015. The bone of contention in the present case is whether the presentation before the Munsarim would entitle the election petitioner to satisfy the claim of filing the election petition within the stipulated time period of 30 days before the District Judge. 18. This Court is also of the opinion that Rule 32 envisages that a Munsarim or Reader of a civil court as appointed, shall receive plaints, which shall be presented to him and prepared a report accordingly describing the details of presentation. The Rules of 1986, clearly prescribed the duty of Munsarim or Reader, who accepted the presentation of the plaint as entered upon alongwith all the necessary requirements. Rule 432 of the Rules of 1986, clearly debars the Munsarim from taking up any judicial duty or any duty, which is directly to be performed by the Judge himself and in this case, it is not the judicial duty which is being delegated to the Munsarim, but only the presentation which as per the Rule 32 of the Rules of 1986 has to to be taken by the Munsarim of the concerned court is being fulfilled. It shall be a failure of the system, if a Judge in person is required to discharge the duty of taking presentation and it is an accepted norm in practice and procedure that the office of the concerned Judge whether at whatever level it may be, is entitled to accept the presentation and do all the needful administrative procedural work, so as to enable the concerned judge to make the judicial adjudication. 19. There is no doubt that the judicial adjudication can be done by the judge himself but apart from that any other administrative work pertaining to the judicial adjudication has to be discharged in consonance with Rule 32 of the Rules of 1986 in State of Rajasthan and analogous rules in other courts. 19. There is no doubt that the judicial adjudication can be done by the judge himself but apart from that any other administrative work pertaining to the judicial adjudication has to be discharged in consonance with Rule 32 of the Rules of 1986 in State of Rajasthan and analogous rules in other courts. The very meaning of appointing Munsarim or Reader in the learned courts is that they shall assist the court in performing all the administrative duties for conducting the court and also for completing the other exercise, which is administrative in nature and which shall absolutely exclude the judicial adjudication but include presentation of claims. 20. In light of the aforesaid observations, the order passed by the learned court below is justified and does not call for any interference by this Court, hence, the present petition is dismissed. Stay petition No.4869/2019 also stands dismissed accordingly.