Kana Mandal vs State of M.P. and others

Sanjay Yadav, J.

Shri S. K. Dwivedi, learned counsel for the petitioner.

Shri Harish Agnihotri, learned Government Advocate for respondent State of M. P.

Shri Sanjay Agrawal, learned counsel for respondents No. 1A.

With consent the matter is heard finally.

Grievance put forth by the petitioner is against the order dated 6-3-2010 whereby the Sub Divisional Cum, Prescribed Authority instead of dwelling upon the preliminary objection as to maintainability of an election petition u/s 122 of the M. P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter to be referred as Adhiniyam, 1993) directed the petition to be posted for hearing on merit.

Facts briefly are that, in a election of Sarpanch Gram Panchayat Nado held on 18-1-2010, the petitioner was declared elected as Sarpanch. The respondent No. 1A, one of the contestant being aggrieved filed an election petition u/s 122 of Adhiniyam and the Rules framed thereunder.

The petitioner raised an objection as to maintainability of the election petition on the ground of non-compliance of provisions of Rules 3, 5 and 7 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter to be referred as Rules of 1995) contending inter alia that, the election petition filed on 4-2-2010 was not duly verified and that the security amount required to be deposited at the time of presentation of an election petition was not deposited with the specified officer but later on 8-2-2010 was deposited with Tehsildar Amrapatan who being not an authorised officer, the deposit of security amount was thus not in consonance with the Rules of 1995. It is further contended that the authorised officer was under obligation to have first dwell upon the preliminary objection raised, instead, the matter was posted for decision on merit. It is accordingly, urged that, since the authorised officer has failed to exercise the jurisdiction vested in him this Court may interfere in the matter and dismiss the election petition.

The respondent on his turn has to submit that the prescribed authority did not commit any error in posting the matter for hearing on merits instead of confining to the preliminary submissions. It is accordingly urged that the petition being devoid of substance deserves to be dismissed.

Considered the rival submissions.

Rules of 1995 are framed u/s 95(1) read with sub-sections (1) and (3) of section 122 of the Adhiniyam, 1993. Rule 3 makes a provision regarding presentation of election petition. It stipulates :

(1) An election Petition shall be presented to the specified Officer during the office hours by the person making the petition, or by a person authorized in writing in this behalf by the person making the petition.

(2) 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 true copy of the petition.

In the case at hand, the election petition was presented on 4-2-2010 by the counsel on behalf of the respondent No. 1A, the petitioner in the election petition, as will are evident from order sheet dated 4-2-2010. The presentation of the election petition by the counsel seems to be on the basis of the Vakalatnama, Annexure P-5-A, which does not specifically authorised him to present the petition. The order sheet dated 4-2-2010 records :

Though it is observed that there is a signature of the respondent No. 1A in the margin, but the order sheet dated 4-2-2010 does not acknowledge nor does it record that the respondent No. 1A presented the election petition.

In Suman Santosh Kumar Patel vs. Bhanwati Mahesh Pratap Patel and another, 1999(1) MPU 88 it was observed by his Lordship :

8........... There is distinction between the "present" and "presentation". Even if the election petitioner was present before the Sub Divisional Officer on 26-7-1997 even then it cannot be said that the election petition as required under sub-rule (1) of Rule 3 of 1991 Rules was presented by the election petitioner before the Sub Divisional Officer on 26-7-1994 as it is established from the record that it was in fact presented to the officer Superintendent of the Collectorate Rewa on 23-7-1994 and by evidence no link has been established regarding the fact that it was taken back from the superintendent on 23-7-1994 and was presented on 26-7-1994 to the Sub Divisional Officer. It thus cannot be held that the election petition was presented to the Prescribed authority on 23-7-1994 by the Election petitioner himself. Apart from this, it is a settled position of law that if a thing is required to be done in a particular manner, then either it should not be done in the manner provided for or it should not be done at all. The presentation of the election petition was not done in the manner provided thereof.

In Tara vs. Dabla, 2002(3) MPU 591 this Court observed :

The present factual matrix has to be tested on the anvil of the aforesaid enunciation of law. I have perused election petition which was filed on 25-2-2000. On a scrutiny of the endorsement made in the election petition it is quite vivid that the election petition had not presented the election petition. It was presented by the counsel of the petitioner. I have also scrutinised the ''Vakalatnama'' which was filed along with the election petition. On a scrutiny of the language employed in the "Vakalatnama" it does not transpire that there was any authorisation authorising the counsel to present the election petition before the Specified officer. The "Vakalatnama" in question is couched in general terms and there is no specific authorisation and hence, it cannot be said that the counsel was authorised in writing for presenting the election petition before the Election Tribunal. Thus the law laid down in the case of Suman Santosh (supra) would squarely be applicable to the case at hand.

In the instant case since the presentation of election petition was not strictly in accordance with Rule 3 of the Rules of 1995 the same was liable to be dismissed in limine.

Furthermore, Rule 5 of this Rules, 1995 stipulates that:

Contents of the petition. - An election petition shall -

(a) contain a concise statement of all material facts on which the petitioner relies:

(b) set forth with sufficient particulars the ground on which the election is called in question;

(c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908) for the verifications of pleadings.

Thus it is the requirement of Rule 5(c) that the election petition be signed and verified by the petitioner in the manner laid down in the Civil Procedure Code, 1908 (hereinafter to be referred as Code of 1908) for the verifications of pleading under Order 6, Rule 15 of the Code of 1908 which stipulates that:

Verification of pleadings. - (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

(4) The persons verifying the pleading shall also furnish an affidavit in support of his pleadings.

In this case at hand as is evident from the election petition Annexure P/l that though the same is signed but is not verified as required under Rule 5(c) read with the Code of 1908.

Regarding contention that, the election petition was not accompanied by requisite security. It is observed that the amount of Rs. 500/- was deposited with Tehsildar on 8-2-2010 with Tehsildar Amarpatan.

Rule 7 stipulates :

Deposit of Security. - At the time of presentation of an election petition, the petitioner shall deposit with the specified officer a sum of Rs. Five Hundred as security. Where the election of more than one candidate is called in question, separate deposit of an equivalent amount shall be required in respect of each such returned candidates.

The provisions has been held to be mandatory by Division Bench of this Court in Sarla Tripathi (Smt.) Vs. Smt. Kaushilya Devi and Others, wherein it was observed by their Lordships :

In the present case it is not disputed that the amount was not deposited at the time of presentation of the petition but later on. In some what similar situation, a Division Bench of this Court in Babulal vs. State ofM. P. (supra) has observed that the expression "shall deposit" and the penalty of failure prescribed in Rule 8 clearly spell out that the provisions of Rule 7 is mandatory and the requirement of making the deposit of security amount is along with the petition as clear from the expression "at the time of presentation of an election petition." Para 10.01 of the report containing the said observations read under :

On a plain reading of Rule 7 the requirement of making the deposit of security amount is along with the petition. The expression : "At the time of presentation of an election petition" in Rule 7 is very significant. Thus the requirement of deposit of security amount along with the petition is an essential link in the chain of presentation of the petition. Therefore, if this link is missing, there is no valid presentation of the petition. The tribunal has a jurisdiction only when there is a validly presented petition before it.

In the case at hand, in the order sheet dated 4-2-2010 in the margin there is an endorsement of Receipt No. 2804/1 : 500/- 4-2-2010; it is however submitted by learned counsel for the petitioner that the date indicated against the Receipt No. 2804/1 at 4-4-2010 is not correct. Relying on the Receipt No. 2804/1 brought on record as Annexure P/4-A, it is submitted by the learned counsel for the petitioner that said receipt is dated 8-4-2010 and is being issued by the Tehsildar Amarpatan who is not a prescribed authority under Rules. It is therefore, contended that, a fraud was being played to extract undue advantage.

There is no denial of the fact that it is by virtue of Annexure P/4-A that the amount towards security was deposited on 8-2-2010 with Tehsildar and not the prescribed authority i.e., the Sub Divisional Authority. Furthermore, there is no plausible explanation coming forth from respondent No. l.A regarding mention of Receipt No. 2804/1:500/- 4-2-2010, nor such receipt is brought on record, obviously the same is misleading to gain an undue advantage and an attempt to overcome the bar as provided under Rule 7 of the Rules of 1995. In this case the petitioner is guilty of creating wrong impression on wrong facts knowingly. In view of this also the election petition deserved dismissal.

Rule 8 stipulates the procedure on receiving petition. It provides for :

Procedure on receiving petition. - If the provisions of Rule 3 or Rule 4 or Rule 7 have not been complied with the petition, shall be dismissed by the specified officers;

Provided that the petition shall not be dismissed under this rule without giving the petitioner an opportunity of being heard.

In Uday Singh Vs. Himmat Singh and Others, it was held by this Court:

There is another non-compliance of Rule 5(c) pointed out under which the election petition has to be duly signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure. On the date the election petition was filed, it was neither signed nor contained any verification clause. The verification clause was inserted in the petition by subsequent amendment. Even if the submission made on behalf of the election petitioner is accepted that the defect of signature and verification could be allowed to be rectified under the general powers of the Election Tribunal and in accordance with the provisions of the CPC which have been adopted for trial of election petitions under Rule 11(2) there is another vital defect in the petition because of non-compliance of Rule 3(2) of the Rules on account of which the petition deserved summary rejection under Rule 4. Rule 3(3) read thus :

1)..........

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.

In the instant case, since the original petition and the copies did not contain signatures and verification clause, the provision of sub-rule (2) of Rule 3 was not complied with and under Rule 8, for non-compliance of Rule 3 the election petition deserved summary dismissal. The Gauhati case in Kailash Singh vs. Hiralal Dey, AIR 1994 Guh 12 relied on behalf of the election petition is not an election case. That is a case decided on the basis of Order 7 Rule 11 read with Order 6 Rule 14 and 15 of the Civil Procedure Code. As held by learned Singh Judge T. S. Doabia, J. in the case of Dr. Omprakash Soni, compliance of Rule 3(2) is mandatory and non-compliance thereof will be fatal.

In the case at hand, there being violation of mandatory provision. It was mandatory for the tribunal to have dealt with the objection regarding maintainability. It however, faltered in discharging its obligatory function.

In view of above the petition deserves to be and is hereby allowed with cost of Rs. 2000/- to be borne by respondent No. 1 A. There election petition filed by the respondent No. 6 thus fails and is dismissed.