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Judgment
A.K. Shrivastava, J.—By this petition under Article 226 of the Constitution of India the Petitioner/returned candidate is challenging the validity of the impugned order dated 19.10.2010 (Annexure P-5) passed by the Sub-Divisional Officer (Revenue), Jabalpur (Respondent No. 2) and the order dated 27.1.2011 (Annexure P-7) passed by Additional Collector affirming the said order of Sub-Divisional Officer.
No exhaustive statements of fact are required to be narrated for the purpose of disposal of this petition. Suffice it to say that an election petition u/s 122 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "the Adhiniyam") has been filed by Respondent No. 3 which is pending for its adjudication before the Sub-Divisional Officer (Respondent No. 2). The returned candidate/Petitioner was served and an application was submitted by him that election petition should be dismissed at the threshold because the copies accompanied were not duly verified and signed by the election Petitioner and therefore, there is non-compliance of the mandate given in Rule 3(2) of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as "the Rules of 1995").
The election Petitioner/Respondent No. 3 denied the averments made in the application and the objection which has been raised by the Petitioner. The Sub-Divisional Officer overruled the said objections vide order dated 19.10.2010 (Annexure P-5). Against this order a revision petition has been filed by the Petitioner before Additional Collector which has been dismissed by the impugned order on 27.1.2011 (Annexure P-7).
In this manner this petition has been filed by the Petitioner.
The contention of learned Counsel for the returned candidate/writ Petitioner is that Rule 3 is mandatory in nature and because the copies of the election petition are not accompanied by attesting it by the election Petitioner under his own signature to be the true copy, therefore, Respondents 1 and 2 erred in not rejecting the election petition at the threshold.
On the other hand, Shri R.K. Choubey, learned Counsel for the election Petitioner/Respondent No. 3 argued in support of the impugned order.
Having heard learned Counsel for the parties I am of the view that this petition deserves to be allowed.
On bare perusal of the application under Rule 3 of the Rules of 1995 it is gathered that allegation of writ Petitioner/returned candidate is that there is non-compliance of Rule 3. No specific reply has been filed by the election Petitioner against this application. According to me, if there is non-compliance of Rule 3, in terms of Rule 8 the election petition of the election Petitioner can be dismissed, but, the question is whether that stage has arrived at or not. The question whether the copy of memorandum of election petition sent along with the summons has been duly attested under the signature of the election Petitioner in terms of Rule 3 or not and further whether it is a same copy which returned candidate is saying that it is has not been duly attested and verified, evidence is required to decide this disputed question of fact. Therefore, in order to take out the grain from the chaff the parties shall be free to lead evidence in this regard. In this context, I may profitably place reliance on the Division Bench decision of this Court Mohansingh Rajput v. Bhanwarlal Nahata, Legal Practitioner 1963 MPLJ 498 para-37 wherein specifically it has been held that this being a mixed question of fact and law the evidence is required to be adduced. The Supreme Court Chandrakant Uttam Chodankar Vs. Shri Dayanand Rayu Mandrakar and Others, while construing the similar provision of Section 81(3) of the Representation of the People Act, 1951 which is equivalent to the present Rule 3, has held in para-38 that onus of compliance lies on the person who is alleging non-compliance.
Since this is a mixed question of fact and law, let an issue be framed in this regard and parties may lead evidence on this issue. For present, impugned orders dated 19.10.2010 (Annexure P-5) and the order of Additional Collector dated 27.1.2011 (Annexure P-7) are hereby set aside.
This petition is allowed to the extent indicated herein-above with no order as to costs.