Smt. Lusia Khadia V/S. Sub Divisional Officer Revenue & Others

The petitioner has filed the present petition being aggrieved by order dated 30.9.2015 passed by Sub Divisional Officer, Thandla, District Jhabua, by

which the election petition has been dismissed due to non-compliance of Rule 3(2) of M.P. Panchayat Raj (Election Petition, Corrupt Practice and

Disqualification) Rules, 1995 (hereinafter, for short, “Rules of 1995â€​).

Facts, in short, are that the election for the post of Surpanch for Gram Bada Julwaniya, Tehsil Thandla, District Jhabua was held on 5.2.2015, in

which, the petitioner and respondent No. 2 to 7 had contested. The result of the election was declared on the same day, in which, the respondent No.2

was declared as an elected Surpanch. Being aggrieved by the election of respondent No.2, the petitioner filed Election Petition u/s. 122 of the M.P.

Panchayat Nirvachan Adhiniyam. The election petition was registered as Case No.04/C-144/2014-15 by the Sub Divisional Officer (SDO) & the

Prescribed Authority, Thandla, District Jhabua.

After receipt of the notice, the respondent No.2 filed an application seeking dismissal of the election petition on the ground that the copy of the

petition sent to her along with the notice has not been signed by the petitioner to be attested as a “true copyâ€, therefore, in violation of mandatory

Rule 3(2) of Rules of 1995, the election petition is liable to be dismissed under Rule 8 of the Rules of 1995.

The petitioner submitted the reply to the said application by submitting that she has submitted the original copy of the election petition by affixing her

thumb impression. There is no non-compliance of Rule 3(2) of the Rules of 1995 and the election petition is liable to be decided on merit.

The learned SDO vide order dated 30.9.2015 has dismissed the election petition, hence the present writ petition before this Court.

Learned counsel appearing for the petitioner submits that the petitioner is an illiterate lady, therefore, she has affixed her thumb impression on the

election petition as well as on all copies of the election petition annexed with the main election petition for service of notices to the respondents. All the

copies are the original copies of the election petition, therefore, she was not required to mention the words “true copy†above her thumb

impression. The learned SDO has wrongly dismissed the election petition without considering the law laid down by this Court in Ku. Parwati Bai

Thakur V/s. State of M.P. : 2007 (3) MPHT 63.

Per contra, learned counsel appearing for State as well as respondent No.2, submit that the provisions of Rules of 1995 are mandatory in nature in

respect of presentation of the election petition. Rule 3(2) mandates that every election petition shall be accompanied by as many as copies thereof as

there are respondents and every copy shall be attested by the petitioner by his/her own signatures to be true copy of the election petition. Rule 8

specifically provides that if the provisions of Rule 3, 4 and 7 have not been complied with, the petition shall be dismissed by the specified officer,

therefore, the learned SDO has not committed any error while dismissing the election petition and this petition is liable to be dismissed.

Undisputedly, the petitioner has presented the election petition accompanied by copies of the election petition under her thumb impression only

without mentioning the words “true copy†of the petition. According to the learned counsel for the petitioner, all copies are original copies. The

requirement of mentioning “true copy†of the petition is mandatory when the election petition is presented along with photocopy of the election

petition.

The contention of the learned counsel for the petitioner is misconceived. The intention behind presenting of the election petition along with number

of true copies of election petition is that all copies must contain the same pleadings and material which is available in the main election petition.

Therefore, the election petitioner is required to be attested as “true copy†of the petition. The petition which is filed before the Prescribed

Authority is the original petition and rest of the copies are true copy of the election petition. All the copies cannot be termed as a original copy.

Therefore, the copies of the election petition is not an original petition, but true copy of the election petition.

In the case of Baijulal Verma V/s. Additional Collector : 2009 (4) MPHT 548, this Court has held that the copies of the election served to the

respondents must bear the signature and attestation as required by Rule 3(2) of the Rules of 1995 and failing which, the election petition is liable to be

dismissed.

In the present case, the petitioner has put the thumb impression on each copy of the election petition, but failed to attest the same as “true

copy†of the election petition. In the case of Ku. Parwati Bai Thakur (supra), this Court has held that mere non-mention of “true copy†would

not be sufficient to hold that Rule 3(2) of the Rules of 1995 has not been complied with. This Court has placed reliance over the judgment of the apex

Court in the case of Subba Rao V/s. Member, Election Tribunal : AIR 1964 SC 1027, in which, it has been held that as the signature in original was

there in the copy, the presence of such original signature in the copy was sufficient to indicate that the copy was attested as a true copy even though

the words “true copyâ€​ were not written above the signature in the copies. Para 6 of the aforesaid judgment is reproduced below :

“6. Having heard the learned Counsel for the parties, I find that the petition has no merit. A perusal of the copy of the election petition (Annexure

P-1) which was accompanied with the election petition and was supplied to the petitioner, reveals that on each and every page the third respondent

has put her signature. In the circumstances, mere non-mention of 'true copy' would not be sufficient to hold that the Rule 3(2) of the Rules has not

been complied with. In the case of Subba Rao v. Member, Election Tribunal : AIR 1964 SC 1027 the Supreme Court held that as the signature in

original was there in the copy, the presence of such original signature in the copy was sufficient to indicate that the copy was attested as a true copy,

even though the words ""true copy"" were not written above the signature in the copies. The Supreme Court considering the matter under Sections

81(3) and 90 of the Representation of People Act, 1951, further held that there was substantial compliance of Section 81(3) of the Representation of

People Act and the petition could not be dismissed under Section 90(3) of the Representation of People Act, 1951. The facts of this case shall apply

with full force to the facts of the present case. In the circumstances, it can be safely held that there is substantial compliance of Rule 3(2) of the

Rules.â€​

In the case of Ravindra Singh V/s. Sub Divisional Officer : 2006 (3) MPLJ 570, this Court has held as under :-

“8. As far as attestation of the true copies sent alongwith the notice to respondent No. 1 is concerned, Rule 3 Sub-rule (2) of the Rules of 1995

contemplates that 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 present case, the material available on

record indicates that the copies sent to the respondents bore the signature of the petitioner, however the words ""attested as true copies"" were not

mentioned above his signatures and it was on this count that non-compliance with Rule 3(2) has been found to be established and the election petition

dismissed. The question of incorporating the words ""true copy"" or ""attested true copy"" while filing an election petition under the Representation of the

People Act was considered by the Five Judge Bench of Supreme Court in the year 1965 in the case of Dr. Anup Singh (supra). In Para 6 of the

aforesaid judgment, Supreme Court has referred to Section 81(3) of the Representation of the People Act and the provisions reproduced therein

indicate that the said provision is pari materia with Rule 3(2) of the Rules of 1995. The provision of Section 81(3) of the Representation of the People

Act also contemplates that every copy shall be attested by the person under his own signatures to be true copy of the petition.

Thereafter in Para 7 exactly similar situation as is existing in the present case is considered and it is observed by the Supreme Court in the aforesaid

order as under:

“7. An exactly similar matter came to be considered by this Court in Subba Rao v. Member, Election Tribunal : [1964]6SCR213 . In that case also

the copies were signed by the petitioner but there was no attestation in the sense that the words ""true copy"" were omitted above the signature of the

petitioner. This Court held that as the signature in original was there in the copy, the presence of such original signature in the copy was sufficient to

indicate that the copy was attested as a true copy, even though the words ""true copy"" were not written above the signature in the copies.This Court

further held that there was substantial compliance with Section 81(3) of the Act and the petition could not be dismissed under Section 90(3). That case

applies with full force to the facts of the present case, and it must therefore, be held that there was substantial compliance with Section 81(3) and the

petitions could not therefore be dismissed under Section 90(3).â€​ (Emphasis supplied)

From the aforesaid it is clear that if the copies sent to the respondents bear the signature of the petitioner mere omission to write the words ""true

copy"" or ""attested true copy"" will not make any difference. This question is again considered by a Bench of this Court in the case of Rameshwar

Dayal Arale (supra). In Para 8 of the aforesaid judgment the effect of not making the endorsement, i.e., ""attested true copy"" was considered and after

relying upon an earlier judgment of the Supreme Court in the case of M. Kamalam (supra), it has been held by this Court that if the copies of the

election petition for service on the respondent is signed by the election petitioner, then the requirement of mentioning the words ""true copy"" is wholly

imaginary and unwarranted. Keeping in view the law laid down by the Supreme Court so also by this Court in the aforesaid case it has to be held that

on the ground of non-compliance of Rule 3(2), the election petition could not be dismissed and it has to be held that the requirement of Sub-rule (2) of

Rule 3 of Rules of 1995 have been complied with and therefore, dismissal of the election petition on this ground was unwarranted.â€​

In the present case, the respondent No.2 appeared before the SDO and submitted that she received the photocopy of the election petition without

any signature and attestation. She has not annexed the copy of the election petition along with her application which she received from the SDO to

state that she has not received the attested copy of the petition.

This Court in the case of Akbar Kha V/s. Prathviraj : 2017 (4) MPLJ 575 has held in Para 9 and 10 has held as under :

“9. Rule 8 specifically provides that 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 after giving opportunity of hearing. Here vide order dated 17-3-2015, after hearing counsel for the petitioner and after

verification of record, notices were issued to the respondents. Notices are issued to the respondent/s under the Rule 9, therefore, compliance of Rules

3, 4 and 7 are to be seen before admission of the election petition. Once the petition is admitted, the same cannot be dismissed later on for non-

compliance of Rules, 3, 4 and 7. After issuance of the notice and appearance of the parties, the Tribunal cannot go back to Rule 8 for dismissal of the

petition.

After conducting entire trial, the Court can decide the petition or declare the result as void on the ground mentioned in Rule 21 and 22.

This Court in the case of Brajrajsingh s/o Mangusing (supra) has held that if the defect pointed out is curable and the election petition is liable to be

dismissed only when the defects are not cured despite the opportunity are given. In the application, the respondent has not mentioned that he has

compared the copy of the election petition, which he received with the original copy of the election petition filed in Court. In absence of such

averments, it cannot be held that the copy which the respondent has received is not true copy of the election petition.â€​

For the reasons mentioned above, this petition deserves to be and is hereby allowed. The impugned order dated 30.9.2015 is set aside. The matter

is remitted back to the learned SDO to decide the election petition in accordance with law, preferably within a period of six months from the date of

receipt of certified copy of this order.

No order as to costs.