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Judgment
K. Sreedhar Rao, J.—The 1st petitioner contested to the election to Karnataka Legislative Assembly from No. 140 Bagepalli Constituency. The 2nd petitioner is the election agent of the 1st petitioner. The 2nd respondent is the candidate who has successfully elected from No. 140 Bagepalli Constituency held on 10.5.2008. Petitioners have filed this petition challenging the validity of the election of the 2nd respondent. The petition is presented before the Registrar (Judicial) of the High Court on 7.7.2008. The Registrar has made the following endorsement:
Presented by Shri V. Shivareddy, Adv. for the petitioners on 7/7/08 at 3.30 p.m. He is directed to attend the H. C. Registry within 3 days from today to remove objections, if any. Petitioners were not present while presenting this petition.
Sd/- R(J) 7/7/08
Section 81 of the Representation of People Act, 1951 (for short the Act'') reads thus:
Presentation of petitions
(1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
(emphasis supplied by me)
The Registry has raised objection with regard to maintainability of the petition on the ground that the petition is not properly presented by the candidate or elector in the manner required in law.
Sri G. Gangjreddy, learned Counsel for the petitioners relied upon the ruling of the Andhra Pradesh High Court in the case of Medurumalti Janardhana Reddy v. Y.C. Ranga Reddy and Ors. E.L.R. Vol 46 page 374. In the said decision it was held that the election petition presented by the advocate duly authorised, the petition should be deemed to have been presented in accordance with law. Since the Act does not laid down different procedures for presentation for election petition than the one prescribed by the Code of Civil Procedure. Learned Counsel also referred to the ruling of the Supreme Court in the case of Jamal Uddin Ahmad Vs. Abu Saleh Najmuddin and Another, . In para 22 the Supreme Court made the following observations:
Whether the High Court has the power to frame the rules under the provision of RPA, or not, is a question which need not be gone into. As we have already held, the High Court and the Chief Justice, as the case may be, have the power to frame rules and issue directions regulating the own affairs and conduct of business in the High Court. Even in the absence of rules or directions if there is any practice prevailing under which the administrative or ministerial functions of the High Court are being performed, unless there be something inherently objectionable or impermissible about it the same should be allowed to prevail if it satisfies the test of being incidental and essential to the performance of the main judicial functions of the High Court. The rules may not be referable to the provision of RPA as the source of power of the High Court - on which we express no opinion as the same is not necessary -the fact remains that such rules manifest the administrative decision of the High court to which the Chief Justice is a party. Inasmuch as such decision does not run counter to any rule of law it is binding and must be upheld.
Learned Counsel for the petitioners also filed an affidavit of the 2nd petitioner which declares that the 2nd petitioner was present at the time when the petition was presented. On the basis of the above rulings and the affidavit it was argued that the presentation of the petition is quite in accordance with law. The rigid interpretation that the candidate and the elector of the constituency should personally present the petition is not warranted and that the Supreme Court has given liberal interpretation with regard to receiving of petition in the decision cited above. In that view, it is argued that the presentation of petition is in accordance with law. Even otherwise on fact it is submitted that in view of the affidavit the 2nd petitioner was present at the time of presentation, hence there is no defect in presentation.
The 3 Bench decision of the Supreme Court in Sheo Sadan Singh Vs. Mohan Lal Gautam, the following observations are made:
Before going into the merits of the appeal, it is necessary to deal with the preliminary objections to the appeal, taken by the respondent. The first objection taken was that the petition was not maintainable as it was not property presented. The second objection was that the petition ceased to be maintainable as a result of the dissolution of the U.P. Legislative Assembly as per the President''s Proclamation of April 15, 1968 under Article 356(1) of the Constitution. That Proclamation was issued during the pendency of this election petition before the High Court.
The High Court rejected both those contentions but those contentions were again pressed for acceptance at the hearing of this appeal.
The High Court has found as a fact that the election petition was presented to the registry by an advocate''s clerk in the immediate presence of the petitioner. Therefore, in substance though not in form, it was presented by the petitioner himself. Hence the requirement of the law was fully satisfied.
A plain reading of Section 81 discloses that the law contemplates, presentation of petition by the candidate or the elector of the Constituency. In so far as receiving the application is concerned it is well settled by the Supreme Court in Jamal Uddin Ahamad''s case that any of the functionaries of the High Court who are delegated with the power by the High Court is competent to receive the petition. In so far as presentation of the petition is concerned it is mandatory that the candidate or elector should be present the petition personally. In the decision of the Supreme Court in Sheodan Singh v. Mohan Lal gautam cited above it was held that though the petition was presented by the advocate''s clerk, petitioner was also present at the time of presentation. In that view the Supreme Court held that there is substantial compliance of Section 81 of the Act in presentation of petition and that the petition is deemed to have been presented by the petitioner personally. But in the instant case, the endorsement of the Registrar discloses that none of the petitioners were present when the petition was presented, and it was presented by the advocate for the petitioners. The affidavit now filed to contend that the 2nd petitioner was present at the time of presentation cannot be accepted, in view of the authentic endorsement of the Registrar.
For the reasons and discussions made above, the objection of the Registry that there is no proper presentation of the petition is sound and proper. Accordingly the election petition is dismissed.