Dindar vs Yamin and Another

Paramjeet Singh, J.—In pursuance of order dated 26.08.2013 passed by this Court, certified copies of petition filed under the provisions of Haryana Panchayati Raj Act, 1994 and zimni order dated 17.07.2010 have been filed in Court, which are taken on record. Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 07.08.2012 (Annexure P/2) passed by learned Civil Judge (Junior Division) Ferozepur Jhirka, District Mewat (exercising the powers of Election Tribunal under the Act), whereby application filed by the petitioner for rejection/dismissal of the election petition has been dismissed.

Brief facts of the case are that election for the post of Sarpanch of Gram Panchayat Kultajpur Kalan, Tehsil Ferozepur Zhirka, District Mewat was held on 06.06.2010. The petitioner and respondents contested the said election. The petitioner was elected as Sarpanch of the Gram Panchayat. Respondent No. 1-Yamin filed an election petition under the provisions of Haryana Panchayati Raj Act, 1994 (hereinafter referred to as the "Act") in the Court of learned Civil Judge (Junior Division), Ferozepur Jhirka, District Mewat, assailing the election of the petitioner.

On notice, the petitioner appeared and filed an application alleging that according to Section 176(1) of the Act, the election petition is required to be presented by the election petitioner in person, but in the instant case, election petition has not been presented in person by respondent No. 1-election petitioner and the same has been presented by the counsel for respondent No. 1 election petitioner. Therefore, the election petition is liable to be dismissed/rejected. Respondent No. 1 election petitioner alleged that the election petition was presented in person along with his counsel. There is no provision in the Act requiring presentation of election petition in person by the election petitioner. The trial Court vide impugned order dated 07.08.2012 (Annexure P/2) dismissed the said application moved by the petitioner. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner vehemently contended that perusal of the certified copy of the election petition clearly indicates that it was presented by Mr. M.K. Goel, Advocate, for respondent No. 1 and from the order dated 17.07.2010 it does not transpire that it was presented by respondent No. 1 in person. Learned counsel for the petitioner has drawn the attention of the Court to the stamp affixed on the first page of the election petition where it is not recorded that it was presented by respondent No. 1 in person. Learned counsel for the petitioner further referred to zimni order dated 17.07.2010 and contended that it also does not show as to when the petition was presented and whether respondent No. 1 - election petitioner was present before the Court. Learned counsel further contended that in view of this, since the election petition has not been presented by respondent No. 1 in person, the same is liable to be dismissed.

Learned counsel for respondent No. 1 vehemently opposed the contentions raised by the learned counsel for the petitioner and contended that every page of the election petition bears thumb impression of the election petitioners - respondent No. 1 herein and on the back of the first page also thumb impression of respondent No. 1 is affixed. From the perusal of the election petition, it is clear that it was presented by the election petitioner - respondent- No. 1 herein and it was a valid presentation.

I have considered the rival contentions of the learned counsel for the parties and perused the record.

Firstly, the stamp on the first page of the election petition reads as under:--

Presented by Sh. M.K. Goel, Adv. for Plff.

Assigned to Sh. Sunil Chauhan Ld. Civil Judge

To Appear there on 17.7,109.

Addl. Civil Judge (Senior Division) Dtd 16.7.10 F.P. Jhirka Mobile Court, PNA.

The zimni order dated 17.07.2010 also reads as under:--

Yamin v. Dinder etc;

Present: Sh. M.K. Goyal, counsel for the petitioner.

Suit received by assignment. It be checked and registered. Let, notices of the suit be given to the respondents for 6.8.2010 on filing of PF and copy of plaint etc. Dasti summon be given, if so desired. It be stated clearly in the said notice with red ink that the defendant shall file his written statement within 30 days from the date of service of summon.

Sd/- (Sunil Chauhan) CJ (JD) F.P J. 17.7.2010.

Since it is not recorded in the stamp affixed on the election petition that it was presented by the election petitioner in person before the Additional Civil Judge (Senior Division), Ferozepur Jhirka nor any thumb impressions of the election petitioner were taken nor the same has been attested by the competent authority indicating that the same was presented on the date i.e. 16.07.2010 by respondent No. 1-election petitioner by appearing before the Court in person, rather stamp indicates that it was presented by Mr. M.K. Goyal, advocate for respondent No. 1-election petitioner and the name of the election petitioner - respondent No. 1 herein has not been mentioned.

This Court has granted sufficient time to learned counsel for respondent No. 1 to show that he appeared before the Court in person and presented the petition.

Admittedly, the election petition was typed outside the Court and thereafter, thumb impressions were put. Even so, it cannot be presumed that the petition was presented by respondent No. 1 in person. It is the duty of the counsel as well as respondent No. 1, in view of the mandatory provisions i.e. Section 176(1) of the Act to present the election petition in person by election petitioner as the requirement of Act is very clear and the counsel is required to get marked the presence of the election petitioner at the time of presenting the election petition before the Court.

Counsel for respondent No. 1 failed to show that it was done. Section 176(1) of the Act stipulates that the election petition is to be presented by the election petitioner in person. Non-compliance of this provision would mean that the election petition was not validly presented and instituted and therefore, the same is liable to be rejected on this short ground. In support of this, reliance is placed upon judgments of this Court in Gurlal Singh v. Presiding Officer, Election Tribunal, Block Lehra, District Sangrur and others, 2010 (5) RCR (Civil) 474, Major Singh Vs. Pesiding Officer, Election Tribunal (A.D.C.) and Others, and Fazruddin v. Abdul Gafoor and others, C.R. No. 4511 of 2011, decided on 18.04.2012.

In view of the above, it is crystal clear that the election petition having not been presented and instituted validly in accordance with mandatory provisions of Section 176(1) of the Act, is liable to be rejected. Consequently, impugned order of the trial Court is perverse, illegal and suffers from jurisdictional error. The impugned order is, therefore, not sustainable in the eyes of law. Resultantly, the instant revision petition is allowed. Impugned order (Annexure P/2) passed by the trial Court is set aside. Application (Annexure P/3) moved by the elected Sarpanch - petitioner herein is allowed and election petition instituted by respondent No. 1 herein before the Civil Court (exercising the powers of Election Tribunal) is rejected.