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2024 DIGILAW 500 (MP)

Rabindra Kumar Upadhyay v. Sub Divisional Officer

2024-07-12

ROOPESH CHANDRA VARSHNEY, VIVEK RUSIA

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ORDER Rusia, -- J. 1. Appellant/petitioner has filed this Writ Appeal under section 2 (1) of M.P. Uchcha Nayayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 challenging the order dated 1.7.2024 (Annexure A-1) whereby the Writ Court has dismissed the Writ Petition No.1863/2024 and upheld the impugned order dated 15.1.2024 passed by respondent No.1/the Sub-Divisional Officer, Lahar, District Bhind dismissing the application filed by appellant/petitioner under Order 7 Rule 11 CPC. 2. The facts of the case in short are as under :-- (i) The petitioner and respondents No.2 to 6 contested the election for the post of the Sarpanch of Gram Panchayat Sikri Jagir, Janpad Panchayat Lahar, Tehsil Mihona, District Bhind. The Petitioner secured 425 votes and was declared as Sarpanch on 14.7.2022. The respondent No.2 secured 407 votes and lost. (ii) Respondent No.2 filed an Election Petition under section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as ‘the Panchayat Act’) before the Specified Officer challenging the election of petitioner/appellant. The Election Petition was presented on 10.8.2022 before the Sub-Divisional Officer, Lahar District Bhind. Respondent No.2 sought permission to deposit Rs.500/- as a security deposit amount before the Tehsildar, Lahar, District Bhind. The Specified Officer registered the case and directed the petitioner to submit the receipt of a deposit of the security amount of Rs.500/-. Notices were directed to be issued to nonapplicants therein by submitting an adequate number of copies. The petitioner deposited Rs.500/- on 10.8.2022 before the Tehsildar and submitted the receipt before the Sub-divisional Officer on the same day as the date of filing of the Election Petition. After receipt of the notice, the appellant/petitioner appeared and sought time to file a reply. (iii) The Petitioner/appellant filed an application dated 31.10.2022 under rule 8 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred as ‘the Election Petition Rules ‘) by stating that the election petitioner did not deposit Rs.500/- i.e. the security amount, at the time of presentation of the Election Petition; hence, the same is liable to be dismissed. The said application was opposed by the Election Petitioner and vide order dated 16.1.2023, the said application was dismissed by the Specified Officer. The said application was opposed by the Election Petitioner and vide order dated 16.1.2023, the said application was dismissed by the Specified Officer. (iv) The petitioner did not challenge the aforesaid order by way of the writ petition and filed another application that the affidavit is not verified by the Oath Commissioner; therefore, in the absence of a valid affidavit, the Election Petition is liable to be dismissed. The said application was also dismissed vide order dated 17.5.2023. Despite that the reply was not filed and the petitioner/appellant filed WP No.12380/2023 before this Court but vide order dated 22.11.2023, the Writ Petition was dismissed by this Court. Thereafter, the Specified Officer framed the issue on 18.12.2023 and fixed the case for evidence. (v) Thereafter, the petitioner/appellant filed another application under Order 7 rule 11 CPC on 8.1.2024 seeking dismissal of the Election Petition due to noncompliance with the provisions of Rule 7 of the Election Petition Rules. The said application was opposed by respondent No.2 and vide impugned order dated 15.1.2024, the Specified Officer dismissed the said application. (vi) The petitioner filed Writ Petition No.1863/2024 challenging the impugned order dated 15.1.2024. Vide order dated 5.2.2024, by relying on the judgment passed by the Apex Court in the case of Sitaram v. Radhe Shyam Vishnav and Ors reported in (2018) 4 SCC 507 . Initially, the writ Court stayed the further proceedings pending before the Sub-Divisional Officer. The respondents filed the reply and vide order dated 1/7/2024, the Writ Court dismissed the said Writ Petition. Hence, this Writ Appeal before this Court. 3. Shri Gaurav Mishra, learned counsel appearing for appellant/petitioner submits that Rule 7 of the Election Petition Rules mandates that at the time of presentation of an Election Petition, the election petitioner shall deposit with the Specified Officer a sum of Rs.500/- (Rupees Five Hundred Only) as security and in absence of such deposit, the Election Petition shall be dismissed by the Specified Officer. No order is required to be passed by the Specified Officer for deposit of the said amount. It is further submitted by the learned counsel that if the said amount has been deposited on the same day, that would not cure the defect and the election petition shall be dismissed by the Specified Officer. No order is required to be passed by the Specified Officer for deposit of the said amount. It is further submitted by the learned counsel that if the said amount has been deposited on the same day, that would not cure the defect and the election petition shall be dismissed by the Specified Officer. In support of his contention, he has relied on the judgment passed by this Court in the case of Roop Singh v. State of M.P. reported in 2012 (2) MPLJ 435 , Sarla Tripathi v. Kaushailya Devi and Ors reported in 2004(2) JLJ 263 . Shri Mishra has also placed reliance on the judgments passed by apex Court in the case of M Y Ghorpade v. Shivaji Rao M Poal and Ors. reported in (2002) 7 SCC 289 , Lalli Patel v. State of M.P. reported in (2018) 17 SCC 486 , Rangoli Rajak v. State of M.P. reported in AIR 2023 MP 130. He has strongly placed reliance on the judgment passed by the Apex Court in the case of Sitaram v. Radhe Shyam Vishnav and Ors. reported in (2018) 4 SCC 507 where the Apex Court has held that the deposition of security deposit along with an Election Petition is mandatory and failure to do so may lead to dismissal of the Election Petition. Any subsequent deposit of the security after the filing of an Election Petition is fatal and will result in the dismissal of the Election Petition. 4. Learned counsel appearing for respondent No.2 opposes the aforesaid by submitting that the election petitioner filed the Election Petition on 10.8.2022 and deposited Rs.500/-as the security amount on the same day and presented the receipt before the Specified Officer. It is further submitted that on the same ground, the second application filed under Order 7 rule 11 CPC would be barred by constructive res judicata. The petitioner/appellant filed an application initially under rule 8 of the Election Petition Rules seeking dismissal of the Election Petition due to non-compliance with Rule 7 of the Election Petition Rules and the said application was dismissed and the said order has attained finality. Therefore, on the same ground, the second application under a different provision is not maintainable and has rightly been dismissed by the Specified Officer and upheld by the Writ Court. Thus, no interference is called for. Therefore, on the same ground, the second application under a different provision is not maintainable and has rightly been dismissed by the Specified Officer and upheld by the Writ Court. Thus, no interference is called for. It is further submitted that the petitioner/appellant is not permitting the Specified Officer to conclude the proceedings expeditiously and unnecessarily causing delay by filing frivolous applications to create hindrance in early disposal; hence, the Specified Officer may be directed to conclude the proceedings as early as possible. 5. We have heard the learned counsel for the parties at length and perused the record of the case. 6. Respondent No.2 being an Election Petitioner presented the Election Petition on 10.8.2022 and sought permission to deposit the amount of Rs.500/- in the Court of Tehsildar. The Sub-Divisional Officer issued a letter to the Tehsdilar and directed the petitioner to submit a receipt of a deposit of Rs.500/-. The petitioner deposited Rs.500/- and submitted the receipt. This fact is not in dispute. It is also correct that there is a requirement of law that at the time of the filing Election Petition, the petitioner shall deposit Rs.500/- as the security amount. No permission or order is required from the Sub-Divisional Officer for compliance with the mandatory provision. Even if the mistake has been committed by the Specified Officer by directing the petitioner to deposit Rs.500/- before the Tehsildar and submit the receipt, the petitioner has deposited Rs.500/- and submitted the receipt on the said day. Hence respondent No.2 complied with the provision of Rule 7. 7. Rule 3 of the Election Petition Rules says that an Election Petition shall be presented to the Specified Officer during office hours by the person making the petition or the authorized person. Therefore, the time for filing of the Election Petition would be from office hours i.e. 10:30 a.m. to 5:30 p.m. as the case may be and within the said time, the Election Petition shall be filed. The sub-rule (2) of rule 3 of Election Petition Rules says that every petition is accompanied by as many attested copies thereof as there are respondents mentioned in the petition. Rule 7 of the Election Petition Rules says that at the time of presentation of the election petition, the petitioner shall deposit Rs.500/- as the security deposit. The sub-rule (2) of rule 3 of Election Petition Rules says that every petition is accompanied by as many attested copies thereof as there are respondents mentioned in the petition. Rule 7 of the Election Petition Rules says that at the time of presentation of the election petition, the petitioner shall deposit Rs.500/- as the security deposit. Thus, by reading rule 3(2) & rule 7 of the Election Petition Rules conjointly, the election petition shall be presented and the security shall be deposited during the office hours. If the election petition is filed on 10.8.2022 within office hours, and the security amount is deposited on the same day during office timing there is compliance with the provisions of Rule 7. Hence then there is true compliance with Rules 3 and 7 and the Election Petition is not liable to be dismissed under Rule 8 of the Election Petition Rules or under Order 7 Rule 11 CPC. 8. Besides the above the language of Rule 7 of the Election Petition Rules can not be read as that there is a condition of pre-deposit of Rs.500/- and the receipt is liable to be enclosed along with a memo of Election Petition. In the case of Sitaram (Supra), the apex Court considered the language of Rule 3(5)(d) of the Rajasthan Municipalities Election Petition Rules, 2009. In that case, the Election Petition was filed on 9/9/2015 without accompanying the treasury challan of Rs.1,000/- and the same was deposited on 16/08/2015; therefore, an application under Order 7 rule 11 CPC was filed seeking dismissal of the Election Petition. Rule 3(5)(d) of the Rajasthan Municipalities Election Petition Rules, 2009 says that an Election Petition shall be accompanied by a treasury challan of rupees one thousand but rule 7 of the Election Petition Rules nowhere says that Election Petition shall be accompanied by a receipt of deposit of rupees five hundred as the security; therefore, the law laid down by the Apex Court in the case of Sitaram (supra), is on different facts and rules which are not paramaterial to rule 7 of the Election Petition Rules. Therefore, the Writ Court has not committed any error while dismissing the Writ Petition. 9. Therefore, the Writ Court has not committed any error while dismissing the Writ Petition. 9. The Writ Court has also considered an important fact that the second application filed under Order 7 rule 11 CPC was not maintainable because vide order dated 16.1.2023, an application under rule 8 of the Election Petition Rules had already been dismissed by the Specified Officer. Both applications were filed under the same provision which is hit by constructive res judicata. The order dated 16.1.2023 had attained finality which was not challenged by the petitioner/appellant. The subsequent application is nothing but a misuse of the process of law for which the Specified Officer and the Writ Court ought to have imposed cost upon the petitioner. 10. The Election Petition is liable to be decided as early as possible but the appellant/petitioner has not left any occasion but to cause delay in deciding the Election Petition by making unsuccessful attempts again and again. Almost 2 years have passed from the date of the election petition; therefore, Writ Appeal is dismissed with a cost of Rs.10,000/- (Rupees Ten Thousand Only) payable to respondent No.2- Akhilesh Sharma and the Specified Officer is directed to decide the Election Petition within three months.