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2024 DIGILAW 2024 (ALL)

Mamta v. Krishna Devi

2024-09-09

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. Narendra Kumar Pandey, learned counsel for the petitioner, Mr. Awadhesh Kumar Mishra, learned counsel for respondent No.1 and Mr. Krishna Mohan Mishra, learned Additional Chief Standing Counsel for the State-respondents. 2. Brief facts of the case are that petitioner was elected as Pradhan of Gram Panchayat-Khutaha, Block-Haliya, Tehsil Lalganj, District-Mirzapur on the basis of election held on 26. 04.2021. In respect to the aforementioned election of Gram Pradhan, respondent No. 1 filed an Election Petition on 30. 06.2021 under Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as ' the Act of1947') read with Rule 3 (1) of Uttar Pradesh Panchayat Raj (Settlement of Election Dispute) Rules 1994 (hereinafter referred to as 'the Rule of 1994') which was registered as Election Petition No. 1576 of 2021, Computerized Case No.202116530201576.The summon/ notice in the aforementioned election petition was issued accordingly petitioner put in her appearance through counsel on 23-07-2021 and filed her objection dated 08-07-2022 with regard to the maintainability of the election petition as the election petition was not filed in presence of election petitioner. Respondent No.1 filed her cross-objection dated 13-07-2022 to the petitioner's application dated 8-07-2022. Prescribed authority vide order dated 5-08-2022 rejected the objection raised by petitioner with regard to maintainability of the election petition, hence, this writ petition for the following relief. "(1). Issue order/s or direction/s calling for the record of the case and set aside the orders dated 2-07-2021 and 05-08-2022 (annexure No. 1 to this application) passed in Election Petition No. 1576 of 2021, (Computerized Petition No. T202116530201576) Krishna Devi Vs. Mamata Vs. and others, preferred by the Respondent No.1. (2). Issue order/s or direction/s to dismiss the Election Petition No. 1576 of 2021, (Computerized Petition No. T202116530201576) Krishna Devi Vs. Mamta and others, preferred by the Respondent No.1". 3. This Court on 09.11.2022 passed the following order: "Counter affidavit has been filed on behalf of respondent no.1 in the Court today, the same is taken on record. It is argued by the counsel for the petitioner that on 30.06.2021 the presiding officer was not present in the Court. The pleadings in this regard has been made in paragraph-25 of the writ petition. In response to the same, a counter affidavit has been filed on behalf of respondent no.1. It is argued by the counsel for the petitioner that on 30.06.2021 the presiding officer was not present in the Court. The pleadings in this regard has been made in paragraph-25 of the writ petition. In response to the same, a counter affidavit has been filed on behalf of respondent no.1. In paragraph- 2 it is stated that on 30.06.2021 itself the various orders were passed by the same presiding officer and certified copies of the same are appended along-with counter affidavit. In this view of the matter, the Court is of the opinion that Shri Ashish Mishra, learned Counsel appearing on behalf of High Court of Judicature at Allahabad will seek instructions from the said Prescribed Authority under Section 12(C) of the Uttar Pradesh Panchayat Raj Act & Rules 1994 /Sub Divisional Officer, Lalganj, District - Mirzapur within a week. Shri N.K. Pandey, learned counsel for the petitioner will supply copy of the present writ petition to Shri Ashish Mishra, learned counsel within 24 hours. Put up this matter as fresh on 21.11.2022, showing the name of Shri Ashish Mishra A/R-1303/2012 as counsel for the High Court of Judicature at Allahabad/respondent" 4. On 21.11.2022 following order was passed by this Court: "Pursuant to the order passed by this Court, instructions received from the office of Sub Divisional Magistrate, Lalganj Mirzapur dated 14.11.2022 placed before the Court by Sri Ashish Mishra, learned counsel for the respondent, the same is taken on record. He is directed to provide a copy of the instructions to Sri Narendra Kumar Pandey learned counsel for the petitioner. As prayed by Sri Narendra Kumar Pandey learned counsel for the petitioner, two weeks time is granted to seek further instructions in the matter from his client. Put up as fresh on 12.12.2022." 5. Learned Counsel for the petitioner submitted that Election Petition has not been filed by Respondent No.1 on 30-06-2021 as per provision of Section 12-C of the Act of 1947 read with Rules of 1994, as such, the Election Petition filed by Respondent No. 1 is liable to be rejected. Put up as fresh on 12.12.2022." 5. Learned Counsel for the petitioner submitted that Election Petition has not been filed by Respondent No.1 on 30-06-2021 as per provision of Section 12-C of the Act of 1947 read with Rules of 1994, as such, the Election Petition filed by Respondent No. 1 is liable to be rejected. He further submitted that from perusal of first page of the Election Petition, it is fully demonstrated that respondent No.1/ Election Petitioner was not present at the time of filing of Election Petition as well as the Election Petition was not accompanied by treasury challan which is contravention of the provisions of the Act of 1947 read with Rule 3(1) of Rules of 1994 as such, the impugned order dated 05.08.2022 passed by Prescribed Authority is wholly illegal. He further submitted that order sheet of the other two cases fully demonstrate that concern Presiding Officer was not holding the court on 30-06-2021. He further submitted that perusal of the contents of Election Petition fully established that the Election Petition has been filed on a bald and vague allegations of corrupt practice of bribery, undue influence and irregularities committed by the counting staff during counting of votes. He submitted that non-compliance of the mandatory provision of the Act and Rules regarding the presentation of election petition is not a curable defect as such, the objection filed raised by the petitioner before the prescribed authority cannot be rejected. He further submitted that in view of the decision of full Bench of this court reported in 2020 (6) ADJ 134 , Sumitra Devi vs. Special Judge/Addl. District & Sessions Judge, E.C. Act, Hardoi and Others the non-presentation of the election petition by the election petitioner himself/ herself personally will result in dismissal of the petition by the prescribed authority. He further placed reliance upon the following judgments of this Court in support of his arguments: (i) 2011 (9) ADJ 219 Devendra Yadav Vs. District Election Officer/ District Magistrate, Mau. (ii) 2014 (1) ADJ 486 Viresh Kumar Tiwari Vs. Additional District Judge, Ballia and others. He further submitted that impugned order is liable to be set aside and election petition filed by the petitioner is liable to be rejected as not maintainable. 6. On the other hand, Mr. District Election Officer/ District Magistrate, Mau. (ii) 2014 (1) ADJ 486 Viresh Kumar Tiwari Vs. Additional District Judge, Ballia and others. He further submitted that impugned order is liable to be set aside and election petition filed by the petitioner is liable to be rejected as not maintainable. 6. On the other hand, Mr. Awdhesh Kumar Mishra, learned counsel appearing for respondent No.1 submitted that instant writ petition is not maintainable as the order impugned is interlocutory order and election petition is pending before the prescribed authority where trial is under progress. He submitted that election petition has been rightly presented by respondent No.1 complying the provision of the Act of 1947 and Rules of 1994. He submitted that there is no provision in the Uttar Pradesh Panchayat Raj Act for filing Election Petition by election petitioner personally. He submitted that inspite of the aforementioned fact, respondent No.1/ Election Petitioner was present along with her advocate Sri Visheshwar Prasad Gupta at the time of the presentation of the election petition on 30.06.2021 before the prescribed authority and has also deposited requisite fee of Rs. 50/- in the head of Gram Sabha through challan. He submitted that all the provision of the Act of 1947 and the Rules of 1994 has been complied with as such argument advanced by learned counsel for the petitioner cannot be accepted. He further submitted that allegations made in the election petition for declaring election of petitioner as null & void will be examined by prescribed authority on the basis of the evidence on record. He submitted that no interference is required in the matter and writ petition is liable to be dismissed. 7. I have considered argument advanced by learned counsel for the parties and perused the record. 8. There is no dispute about the fact that petitioner was elected as Gram Pradhan of the Gram Panchayat concern on the basis of election held on 26.04.2021. There is also no dispute about the fact that election petition under Section 12-C of the Act of 1947 has been filed respondent No. 1 which is pending before prescribed authority. There is also no dispute about the fact that application/ objection filed by petitioner regarding maintainability/presentation of the election petition has been rejected by the prescribed authority under the impugned order dated 05.08.2022. 9. There is also no dispute about the fact that application/ objection filed by petitioner regarding maintainability/presentation of the election petition has been rejected by the prescribed authority under the impugned order dated 05.08.2022. 9. In order to appreciate the controversy involved in the matter, the perusal of Section 12-C of the Act of 1947 and Section 81 of the Representation of People Act 1951 will be relevant for perusal which are as under: 12-C. Application for questioning the elections – (1) The election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the Panch of the Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that – (a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or (b) that the result of the election has been materially affected – i- by the improper acceptance or rejection of any nomination or; ii- by gross failure to comply with the provisions of this Act or the rules framed thereunder. (2) The following shall be deemed to be corrupt practices of bribery or undue influence for the purposes of this Act. (A) Bribery, that is to say, any gift, offer or promise by a candidate or by any other person with the connivance of a candidate of any gratification of any person whomsoever, with the object, directly, or indirectly of including – (a) a person to stand or not to stand as, or withdraw from being, a candidate at any election; or (b) an elector to vote or refrain from voting at an election; or as a reward to – (i) a person for having so stood or not stood or having withdrawn his candidature; or (ii) an elector for having voted or refrained from voting. (B) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right; Provided that without prejudice to the generality of the provisions of this clause any such person as is referred to therein who (i) threatens any candidate, or any elector, or any person in whom a candidate or any elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or (ii) induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause. (3) This application under sub-section (1) may be presented by any candidate at the election or any elector and shall contain such particulars as may be prescribed. Explanation – Any person who filed a nomination paper at the election whether such nomination paper was accepted or rejected, shall be deemed to be a candidates at the election. (4) The authority to whom the application under sub-section (1) is made shall in the matter of - (i) hearing of the application and the procedure to be followed at such hearing; (ii) setting aside the election, or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner, have such powers and authority as may be prescribed. (5) Without prejudice to generality of the powers to be prescribed under subsection (4) the rules may provide for summary hearing and disposal of an application under sub-section (1). (5) Without prejudice to generality of the powers to be prescribed under subsection (4) the rules may provide for summary hearing and disposal of an application under sub-section (1). [(6) Any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one or more the following grounds, namely – (a) that the prescribed authority has exercised a jurisdiction not vested in it by law; (b) that the prescribed authority has failed to exercise a jurisdiction so vested; (c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity. (7) The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer. (8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order of the prescribed authority or remand the case to the prescribed authority for re-hearing and pending its decision pass such interim orders as may appear to it to be just and convenient. (9) The decision of the prescribed authority, subject to any order passed by the revising authority under this section, and every decision of the revising authority passed under this section, shall be final.] Section 81. 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 the dates of their election are different, the later of those two dates]. Explanation.—In this sub-section, "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. Explanation.—In this sub-section, "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. [(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.]" 10. Perusal of Rule 3 and 4 of Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 will be also relevant which is as under: 3. Election Petition.- (1) An application under sub-section (1) of Section 12-C of the Act shall be presented before the Sub-Division Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respondent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground: Provided that no such application shall be entertained unless it is accompanied by a treasury challan to show that the amount of rupees fifty has been deposited in the Personal Ledger Account of the Gram Panchayat concerned as security. (2) The person whose election is questioned and where the petition claims that the petitioner or any other candidates shall be declared elected in place of such person, every unsuccessful candidate shall be made a respondent to the application. (3) Every respondent may give evidence to prove that any person in respect of whom a claim is made that such person be declared elected, should not be declared so elected on the same ground or ground on which his election could have been questioned if he had been elected. 4. Hearing of the petition. (3) Every respondent may give evidence to prove that any person in respect of whom a claim is made that such person be declared elected, should not be declared so elected on the same ground or ground on which his election could have been questioned if he had been elected. 4. Hearing of the petition. (1) Subject to the provisions of the Act and these rules, every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial file Provided that (i) the Sub-Divisional Officer may hear the petitioner or his counsel and if he finds that the petition has no substance, reject the same without the issue of any notice to the opposite parties; (ii) it shall not be necessary for the Sub-Divisional Officer to record the evidence in full and he may maintain only a memorandum of evidence produced by the parties before him; (iii) if there is a sole petitioner and he dies, or there is a sole respondent and he dies, the petition shall abate; (iv) the Sub-Divisional Officer may allow only such evidence to be produced as he deems relevant for the purpose of deciding the petition; (v) the District Magistrate may at any stage, on sufficient cause being shown, transfer and application made under sub- section (1) of Section 12-C for hearing to another Sub-Divisional officer; (vi) an application not presented within time or unaccompanied by a treasure challan as required under sub-rule (1) of Rule 3 may at any time be dismissed by the Sub-Divisional Officer; and (vii) the Sub-Divisional Officer ma, on an application of either party made within fie days after the date of his decision, review his order. 11. Perusal of the first page of the election petition will be necessary which is as under: 12. Perusal of first order sheet dated 02.07.2021 of the election petition will be relevant which is as under: 13. The perusal of the question answer supplied by office of respondent No.2/ Sub Divisional Officer will be necessary which is as under: 14. The perusal of the instruction dated 14.11.2022 sent by respondent No.2/Sub Divisional Officer will be also relevant which is as under: 15. The perusal of the question answer supplied by office of respondent No.2/ Sub Divisional Officer will be necessary which is as under: 14. The perusal of the instruction dated 14.11.2022 sent by respondent No.2/Sub Divisional Officer will be also relevant which is as under: 15. The perusal of the aforementioned record as quoted above demonstrate that there is no record/ order sheet which demonstrate that election petitioner was present on the date of presentation of election petition. 16. The ratio of law laid down by the full bench of this Court in Sumitra Devi (Supra) will be also relevant which is as under: 81. Based on the discussion made, and subject to it, we summaries our answers to the questions referred to us (as rephrased by us), as under:- 1. (a) An Election Petition under Section 12-C(1) and (3) of the Act, 1947 has to be necessarily and mandatorily presented by the candidate/ Election petitioner himself, personally, if it is in his name. However, if it is presented by the Advocate or his clerk, in the presence of the candidate/ Election Petitioner before the Prescribed Authority, it would be sufficient compliance of Section 12-C(3) . (b) In the event an election petition is not presented as aforesaid then it would be fatal and an incurable defect which has to result in dismissal of the petition by the Prescribed authority with liberty however, to the candidate to file a fresh petition, if the limitation is still available and before it expires, in accordance with Section 12-C(3), personally, or by his Advocate or Clerk in his presence. He can not adjourn the matter to some other date for rectification of the incurable defect in those proceedings. 2. The decision in Lal Bahadur Singh's case (supra) does not lay down the law correctly as regards Question No.1. The decision in Viresh Kumar Tiwari's case (supra) lays down the law correctly subject to the proposition that an election petition filed by the Advocate or his Clerk in presence of the candidate before the Prescribed Authority is also in accordance with section 12-C (3) of the Act 1947. In Urmila's case (supra) Question No.1 has not been decided. 17. The decision in Viresh Kumar Tiwari's case (supra) lays down the law correctly subject to the proposition that an election petition filed by the Advocate or his Clerk in presence of the candidate before the Prescribed Authority is also in accordance with section 12-C (3) of the Act 1947. In Urmila's case (supra) Question No.1 has not been decided. 17. The perusal of the issue answered by the Full Bench in Sumitra Devi (supra) as quoted above fully demonstrates that the election petition under Section 12-C (1) & (3) of the Act has to be necessarily and mandatorily presented by the candidate/election petitioner himself/herself personally if it is in his/her name. However, if it is presented by advocate or his clerk in presence of the candidate/election petitioner before the Prescribed Authority which would be sufficient compliance of Section 12-C(3) of the Act. The answer as quoted above further demonstrates that if the election petition is not presented as aforesaid, then it would be fatal and incurable defect which has to result in dismissal of the petition by the Prescribed Authority with liberty to the candidate to file fresh petition if the limitation is still available before it expires in accordance with the provisions of Section 12-C(3) of the Act personally or by his advocate or clerk in his presence. 18. In paragraph no.74 of the judgment of the Full Bench in Sumitra Devi (supra), it has been held that any objection regarding non-presentation of the election petition by a candidate as aforesaid should be raised at the earliest when the trial is pending before the Prescribed Authority and not after disposal of the election petition, such as, at the revisional stage or before the High Court as if the objection is not raised during trial, a specific issue cannot be framed in this regard and the parties would not be able to lead evidence in respect to it as well as if the objection is raised at a later stage, evidence may not be available by then or the officer before whom the petition was presented. It has been also held by the Full Bench in the same paragraph that once there is adjudication of election petition on merit, then it would be highly inequitable to allow such a plea or objection to be raised at the revisional level or before the High Court under Article 226 of the Constitution when the election petition has succeeded and it will be treated that objection regarding presentation of the election petition has been waived by the party concerned. The paragraph no.74 & 75 of the judgment rendered in Sumitra Devi (supra) is as under:- "74. We are also of the view that any objection regarding non-presentation of an Election Petition by a candidate as aforesaid should be raised at the earliest when the trial is still pending before the Prescribed Authority and not after disposal of the Election Petition such as at the Revisional stage or before the High Court. This is for the reason firstly, if not raised during trial a specific issue can not be framed in this regard and the parties would not be able to lead evidence in respect to it, secondly, if raised at a later stage evidence may not be available by then or the Officer before whom the petition was presented may himself not be available. Thirdly, once there is an adjudication of the Election petition on merits, then, it will be highly inequitable to allow such a plea or objection to be raised at the Revisional level or before the High Court under Section 226 of the Constitution, especially when, the Election Petition has succeeded. It will therefore have to be treated as waived, as has been held in Devendra Yadav's case (supra)." 75. We are also of the view that Prescribed Authorities should specifically and mandatorily record in the order sheet as to whether the Election Petition has been presented by the candidate personally or, by his Advocate or clerk in the presence of the candidate, or not ? The consequences will follow accordingly as discussed above. This will avoid unnecessary litigation based on such pleas and save a lot of time and energy of all the stakeholders. The Prescribed Authorities and Revisional Authorities under Section 12-C(1) and 12-C(6) of the Act, 1947 are directed to strictly comply with these observations/directions. 19. The consequences will follow accordingly as discussed above. This will avoid unnecessary litigation based on such pleas and save a lot of time and energy of all the stakeholders. The Prescribed Authorities and Revisional Authorities under Section 12-C(1) and 12-C(6) of the Act, 1947 are directed to strictly comply with these observations/directions. 19. In the instant matter the specific objection/ application dated 08.07.2022 has been filed by the petitioner regarding non-presentation of the election petition filed by election petitioner herself but the same has been rejected in arbitrary manner under the impugned order. 20. Mere signature of the election petitioner on the election petition, photograph of election petitioner on the election petitioner and affidavit in support of election petition will not amount to presence of the election petitioner at the time of presentation unless there is specific order sheet regarding presence of election petitioner at the time of presentation. In the instant matter, there is no order sheet or any other record to the effect that the election petitioner was present at the time of presentation. In the full bench decision of Sumitra Devi (Supra) which was passed on 12.06.2020 there was specific direction in paragraph No.75 of the full bench to the prescribed authorities who were exercising jurisdiction under Section 12-C of Uttar Pradesh Panchayat Raj Act, 1947 to maintain proper order sheet of the election petition regarding presentation of election petition as such non mentioning of the presence of the election petitioner will result into dismissal of the election petition as the same is incurable defect. The limitation for filing fresh election petition has already expired as such further trial of election petition for adjudication of election petition on merit is abuse of process of law. 21. No useful purpose will be served by remanding the matter again before prescribed authority to examine the issue of presentation of election petition as under the impugned order issue regarding presentation of election petition has been considered accordingly this court has examined the issue of presentation of election petition in the light of evidence brought on record by both parties. The issue relating to mandatory deposit of Rs.50/- along with election petition is not required to be adjudicated in view of the adjudication of the issue regarding presentation of the election petitioner by election petitioner. 22. The issue relating to mandatory deposit of Rs.50/- along with election petition is not required to be adjudicated in view of the adjudication of the issue regarding presentation of the election petitioner by election petitioner. 22. Considering the entire facts and circumstances of the case, the impugned order dated 05.08.2022 rejecting the petitioner's objection dated 08.07.2022 regarding non-presentation of election petition by election petitioner herself as well as order dated 02.07.2021 entertaining the election petition are liable to be set aside and the same are hereby set aside. The objection dated 08.07.2022 filed by petitioner is allowed and election petition filed by respondent no.1 is hereby dismissed. 23. Writ petition stands allowed. 24. No order as to costs.